Public Citizen v. FMCSA (II)

Auto and Highway Safety
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Case Description: 

In a petition filed in the U.S. Court of Appeals for the District of Columbia Circuit, Public Citizen, along with four other groups, asked the court to review the final hours-of-service rule issued August 25, 2005, by the Federal Motor Carrier Safety Administration (FMCSA). The petition is the first step in legally challenging the rule. Three of the groups — Public Citizen, Citizens for Reliable and Safe Highways (CRASH) and Parents Against Tired Truckers (PATT) — successfully sued the government over the rule in 2003 and this time are joined by Advocates for Highway and Auto Safety, which filed a critical amicus brief in the previous case, and the International Brotherhood of Teamsters.

Like the nearly identical rule issued by FMCSA in April 2003, which the court struck down in 2004, the 2005 rule dramatically increases both the number of hours that truckers may drive without a break and the number of hours truckers may drive per week. Before 2003, truckers were permitted to drive no more than 10 consecutive hours before taking a break. Now, truckers can drive for 11 hours straight. Before 2003, drivers were barred from driving after they had worked 60 hours in the previous seven days or 70 hours in the previous eight, depending on the company schedule. Under the new rule, truckers can now drive 77 hours in seven days or 88 hours in eight days — a more than 25 percent increase. On-duty hours during which truckers may drive have also climbed, so that a driver working 14-hour shifts under the new rules can now work as many as 84 hours in seven days or 98 hours in eight days — a 40 percent increase over the old limits.

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: the 11-hour consecutive driving limit and the 34-hour restart provision.

On September 6, 2007, the American Trucking Associations (ATA), which represents the trucking industry, filed a motion in the D.C. Circuit requesting that the court stay its mandate. A stay of the mandate would push back the effective date of the court's order. Public Citizen and the other groups that brought this case oppose that motion. On September 28, 2007 the Court issued an order granting a 90-day stay of its mandate, rather than the 8-month stay that ATA requested or the 1-year stay that FMCSA requested.

On December 10, 2007, FMCSA issued an interim final rule (IFR) (published in the Federal Register on December 17, 2007) 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--the two provisions vacated by the Court. The IFR updates the agency's operator-fatigue model and provides 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 IFR affords 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. Petitioners contend that the IFR violates the court's July 2007 decision and the September 2007 order granting the agency only a 90-day stay.

In late 2007, The Journal of Transportation Law, Logistics & Policy published an article, Hours of Service - Missed Opportunities, Illegal Shortcuts, by Bonnie I. Robin-Vergeer, lead attorney for the groups challenging the hours-of-service rules, presenting the petitioners' views on why the 11-hour consecutive driving limit and the 34-hour restart provision are indefensible.