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Public Citizen v. FMCSA (II)

In a petition filed in the U.S. Court of Appeals for the District of Columbia Circuit, Public Citizen, along with Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways, International Brotherhood of Teamsters, and Parents Against Tired Truckers, asked the court to review the final hours-of-service rule issued August 25, 2005, by the Federal Motor Carrier Safety Administration (FMCSA).

In 2003, Public Citizen, along with two of the other groups, successfully sued FMCSA over the earlier rule. Like the nearly identical rule issued by FMCSA in April 2003, which the court struck down in 2004, the 2005 rule dramatically increased both the number of hours that truckers could drive without a break and the number of hours truckers could drive per week. For example, under the rule, truckers would be able to drive 77 hours in seven days or 88 hours in eight days — a more than 25 percent increase. On July 24, 2007, the U.S. Court of Appeals for the D.C. Circuit struck down the two provisions of the 2005 hours-of-service rule that permitted truck drivers to increase their driving hours: a 11-hour consecutive driving limit and a 34-hour restart provision.

On December 10, 2007, FMCSA issued an interim final rule, retaining during new rulemaking proceedings the hours-of-service rule it adopted in 2005, including the 11-hour consecutive driving limit and the 34-hour restart that had been vacated by the court. The interim final rule updated the agency’s operator-fatigue model and provided other new data and justifications for the rule’s driving-hour increases. Despite the Court’s July 2007 ruling that the 2005 rule was unlawful for failing to provide advance notice and an opportunity for comment on an earlier version of the model, the interim final rule afforded an opportunity for public comment only after-the-fact.

On December 19, 2007, Public Citizen and the other petitioners filed a motion in the D.C. Circuit asking it to set aside the IFR as unlawful. The motion contended that the interim final rule violated the court’s July 2007 decision and the September 2007 order granting the agency only a 90-day stay. In a January 2008 order, the court denied the motion without prejudice to petitioners’ right to petition for review of the interim final rule. Public Citizen later challenged the new rule.

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Read Hours of Service – Missed Opportunities, Illegal Shortcuts (2007), by Bonnie I. Robin-Vergeer, lead Public Citizen attorney on the case, explaining why the 11-hour consecutive driving limit and the 34-hour restart provision were indefensible.