Hours of Service Ruling Bulletin - 7/25/2007

Here is what we know at present with regards to the unanimous ruling the three-judge panel to the DC Court of Appeals’ issued on the Hours of Service Regulations (most decisions issued by any of the federal courts of appeal come from three-judge panels acting on behalf of the individual circuit court).    You can tell your drivers that no immediate changes have occurred and that the current rules will remain in effect for the next 52 days as a minimum. 

1.         The Court vacated the 11-hour driving time and 34-hour restart provisions.   Its reason for doing so was that FMCSA failed once again to properly show all the material it considered in arriving at its rulemaking, which in the Court’s opinion denied Public Citizen the opportunity to adequately comment on what FMCSA was considering.    While it isn’t the Court’s role to determine whether FMCSA is right and Public Citizen is wrong or vice versa, a federal agency is required to sufficiently “show your work” under the Administrative Procedures Act.

2.         The Court upheld the 14-hour on duty provision and the 8-hour split-sleeper berth requirement despite a petition by OOIDA joined in part by the California Trucking Associations and the Truckload Carriers Association, among others.   The Court ruled that FMCSA did adequately show its work in these instances, such that its regulation reflected a logical outcome of the factors it considered in developing these provisions.  

3.         The current regulations will remain in effect for at least 52 days.   Parties have 45 days to petition the three-judge panel of the Court of Appeals for a rehearing or to petition for a rehearing before all of the judges sitting on the DC Court of Appeals (“en banc”).   Unless something else is done in the meantime, the Court’s ruling will issue and the current rules will be vacated one week after the conclusion of the 45th day.   Petitions for rehearing, as well as appeals to the next court, in this case the United States Supreme Court, are not strong hands to play especially considering the three judges were unanimous (i.e. no judge dissented).

4.         ATA is likely to petition the Court for a stay, which if granted would allow the current rules to remain in effect for some period longer than just the 52 days.   ATA will conduct a conference call tomorrow to address this issue as part of the larger discussion addressing the Court’s ruling.   Although ATA would presumably argue that it is too disruptive to suddenly be returned to the pre-2003 regulations, we have no way of knowing at this point whether the Court will be amenable to such a request.   Public Citizen would be likely to oppose it.  

5.         It is not known at this point what DOT will do, or whether any of the parties will appeal the Court’s ruling.   So far, DOT hasn’t publicly commented.   Likewise, the OOIDA website doesn’t offer any insights as to OOIDA’s plans.