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Congress Should Respect D.C. Circuit Court Decision on Hours of Service, Consumer Groups Say

Sept. 13, 2004

Congress Should Respect  D.C. Circuit Court Decision on Hours of Service, Consumer Groups Say

Groups Ask Court to Refuse Government’s Extraordinary Request
to Maintain Harmful Rules as Indefinite “Interim Measure”

WASHINGTON, D.C. – Consumer safety groups are urging congressional leaders not to undermine a recent court ruling holding new hours-of-service rules for truckers to be unsafe, unsound and contrary to law.  Also, three safety groups today filed a brief with the court asking it to uphold its decision overturning the new rules by refusing the government’s highly unusual request for an indefinite stay. 

In a letter to leaders of the U.S. Senate and U.S. House of Representatives, six groups outlined the findings of the U.S. Court of Appeals for the District of Columbia, which in July determined that new hours-of-service rules that went into effect in January were arbitrary because the agency had not evaluated their impact on driver health.  The court’s opinion also raised substantial questions about the lack of good science supporting the other areas of the rules challenged by consumer groups.

Under the new rules, truckers can drive 11-hours shifts instead of the previous 10-hour shifts and can resume driving with far less rest each week after reaching weekly driving limits.  As a result, the new rules permit truckers to drive as many as 77 hours in a seven-day period or 88 hours in an eight-day period – an increase in total driving hours of nearly 30 percent.  The new rules also failed to make important safety improvements, such as eliminating the sleeper-berth exception, which permits drivers to take their required rest in two short segments instead of a single block (thereby assuring that these drivers will be driving in a perpetual state of exhaustion) and requiring long-haul drivers to use electronic onboard recorders to monitor driving hours to reduce the widespread noncompliance with driving limits.

Safety groups sued in June 2003.   After an exhaustive review of thousands of pages from the agency’s rulemaking record, a three-judge panel of the D.C. Circuit Court ruled, in a scathing, unanimous opinion written by Circuit Judge David B. Sentelle, that the new hours-of-service regulations were fundamentally flawed in every respect and were unsupported by scientific evidence.    The court faulted the Federal Motor Carrier Safety Administration (FMCSA) for engaging in circular reasoning and for using implausible assumptions in its cost-benefit analysis to support an 11-hour shift, expressing doubts that other changes in the rules would compensate for the “conceded and documented ill effects from the increase.” The court ordered the rules to be thrown out and rewritten. 

Without filing a petition for rehearing or indicating that the agency intends to seek certiorari in the Supreme Court, and without assigning any error to the court’s July ruling, FMCSA has nevertheless asked the D.C. Circuit for an indefinite stay of the effect of the court’s ruling. Such an open-ended stay is not consistent with the court’s rules and is contrary to the public interest, given the risk to drivers and the public alike presented by the longer driving hours authorized by the rules.  Although this delay may be intended to allow time for industry to appeal to Congress to override the court’s decision, that outcome would be dangerous for truckers and others on the road and would violate core notions of the balance of powers, the safety groups said in a recent letter to legislators.

“Congress should not intervene or override the rule of law,” wrote representatives of the groups, which included Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways (CRASH), Parents Against Tired Truckers (PATT), the Truck Safety Coalition, Public Citizen and the Trauma Foundation. “Usurpation of the judicial process in this case will undermine the constitutional separation of powers and the U.S. democratic form of government.”

The groups added that “The failure of the FMCSA to draft a legally sufficient, scientifically sound, and safe set of HOS [hours-of-service] rules is undoubted.   Congress should not intervene where the judicial branch has done its job properly and rendered a fair and reasonable decision.”

Today, Public Citizen, PATT and CRASH filed a brief with the court calling on it to refuse to grant the government’s motion for an indefinite stay of the court decision.   FMCSA and several trucking industry interveners have asked the court to allow the new rules, already deemed unlawful and fundamentally flawed by the court, to govern while replacement rules are being written, claiming that it would be inconvenient and expensive to revert back to rules that were in effect for decades prior to January 2004.

That’s nonsense, according to the safety groups.  Any economic losses that would result from reverting to the old rules would be “dwarfed by the safety and health risks entailed by the retention of the new (invalidated) rules.”  The safety groups also pointed out in the brief that FMCSA is notoriously slow to develop and implement new rules and that the new hours-of-service rule itself was the result of a separate lawsuit, also brought by Public Citizen, to force FMCSA to issue a new rule after years of unnecessary foot-dragging.

“The court looked at the full record and was deeply concerned by what it saw ─ a set of rules critical to highway safety that were issued without justification or analysis either with respect to the rules’ impact on the physical conditions of drivers or their dangerous ramifications for highway safety,” said Public Citizen President Joan Claybrook. “Any efforts by the industry or lawmakers to compel Congress to keep the overturned rules in place will needlessly imperil the health and safety of truck drivers and the American public using the highways. They should be rewritten as quickly, but as thoroughly, as possible, and the old rules should remain in effect while that process goes on.  Out of respect for the role of different branches of government, Congress should not allow itself to be part of any attempt at an end-run around the unequivocal court decision in this case. ”

To read the letter, click here. To read the brief, click here.