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Court of Appeals Vacates 11-Hour Driving Rule, 34-Hour Reset for Hours of Service

National Private Truck Council
July 30, 2007

The U.S. Court of Appeals for the D.C. Circuit has vacated the Federal Motor Carrier Safety Administration's hours of service rules that allow commercial motor vehicle drivers to operate 11 hours in one duty period. In addition, the court threw out the FMCSA rule that allows drivers to restart a weekly on-duty period with 34 consecutive hours off duty. The decision came July 24, 2007 in Owner-Operator Independent Drivers Ass'n v. FMCSA, No, 06-1035.

The court's decision does not go into effect immediately. There is a 45-day period before the court issues its mandate, which is an order to implement the terms of the decision. Seven days after the mandate is issued, if no stay has been granted by the court, then the decision is effective. Thus, the effective date of the court's decision will most likely be September 14, 2007. Once the court's decision becomes effective, the FMCSA may no longer enforce the 11-hour daily driving limit or the 34-hour reset provisions. All other provisions of the hours of service regulations in 49 CFR Part 395 remains in effect, however.

There is an issue as to what rules will be enforced once the court's decision is effective. Clearly the 34-hour reset will no longer be allowed, and drivers will have to work within the 60 hours in 7 days or 70 hours in 8 days weekly on-duty limits. One option is that the 10-hour daily driving limit will automatically go back into effect, but if the FMCSA takes the legal position that the 10-hour rule was superseded by the 2005 rulemaking establishing the 11-hour rule, then it would most likely take yet another rulemaking action (such as an interim final rule or an emergency rule) to put in place a daily driving limit.

NPTC is trying to confirm what approach the FMCSA will take and will report to you as soon as more information is available. To date, the FMCSA has said only that it is evaluating its options and reviewing the court's opinion to determine the agency's next steps.

Many industry trade groups are also considering asking the court of appeals for a stay of its decision while the FMCSA reviews its options. But it appears unlikely that the court will stay the effect of it decision-courts generally look at the seriousness of the rule's deficiencies and the extent of doubt whether the agency chose correctly in determining whether to vacate a rule or let the rule remain in place while the agency corrects the legal shortcomings. In this case, the court has already determined that the two relevant provisions in the FMCSA's HOS rule must be vacated, and thus it seems unlikely that the court would reverse itself and now allow those provisions to remain in effect while the FMCSA engaged in yet another rulemaking.

It is also possible that Congress could, by statute, freeze the current rule in place for a period of time to allow the FMCSA to revise its regulations-this was the approach taken in 2004 when the court overturned the hours of service rules the last time. But Congress recesses this week for its summer break and does not reconvene until after Labor Day, leaving little time for a legislative fix before the court's decision becomes effective.

The three-judge panel vacated the 11-hour driving limit because the FMCSA failed to disclose certain methodology on which it based its operator-fatigue model until the agency published the 2005 final rule. Under the Administrative Procedure Act, an agency must provide notice of and an opportunity to comment on the methodology that underlies the agency's regulatory analysis.

The court also vacated the 34-hour restart rule because the FMCSA ignored data on cumulative fatigue from increased weekly driving and working hours that are available with a restart of the on-duty limits. The FMCSA admitted that the 34-hour restart could allow another 17 hours of driving time in a 7-day work week, compared to the limit of 60 hours of driving time without the restart provision.

In contrast, the court denied OOIDA's challenge to the 8-hour sleeper berth provision, which requires 8 consecutive hours in the sleeper to extend the 14-hour daily on-duty limit. OOIDA argued that the notice of proposed rulemaking did not include this requirement, thus denying interested parties an opportunity to comment on the proposal, but the court held that the rule was included as one of the options set out by the agency in the proposed rule.

The court also held that the non-extendable 14-hour daily on-duty limit was not arbitrary or capricious even though it might discourage some drivers from taking breaks during the day-the court found that the FMCSA properly determined that the overall benefits of a non-extendable 14-hour daily limit outweighed the risk of some drivers refusing to take breaks.

The Bottom Line: Carriers should prepare for a 10-hour daily driving limit and no 34-hour reset commencing on or about September 14, 2007. It does not look promising for getting any relief from the court or Congress before then.

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