On December 17, 2007, the U.S. Department of Transportation's Federal Motor Carrier Safety Administration ("FMCSA") announced an Interim Final Rule ("IFR")[i] reinstating the 2005 Hours-of-Service ("HOS") Regulations vacated in July 2007 by the U.S. Court of Appeals for the District of Columbia Circuit.[ii] The IFR sets forth the regulations that will govern daily driving time and weekly recovery periods. Specifically, the two HOS provisions that are the subject of the IFR allows long-haul commercial drivers of property commercial motor vehicle drivers up to 11 hours of driving time within a 14-hour, non-extendable window from the start of the workday, following 10 consecutive hours off duty ("11-hour rule"). This interim rule also allows motor carriers and drivers to restart calculations of the weekly on-duty time limits after the driver has at least 34 consecutive hours off duty ("34-hour restart provision").
The IFR became effective December 27, 2007, and will remain in effect until the FMCSA announces its final HOS Rule, which the FMCSA anticipates will be issued in 2008.
The Current HOS Rule Including the Interim Rule:
Including the IFR, the HOS Rule, codified at 49 C.F.R. § 395, that will govern long haul commercial drivers of property in the motor carrier transportation industry are as follows:
1. The daily driving limit. Drivers are not allowed to drive for more than 11 hours without taking a required off-duty period.
2. The daily on-duty limit. Even if they had not reached the 11-hour driving limit, drivers cannot drive after they have been on duty for 14 hours.
3. The daily off-duty requirement. In order to restart the 11-hour driving limit and the 14-hour on-duty limit, drivers are required to take at least 10 consecutive hours off duty.
4. The weekly off-duty limit. Drivers were not allowed to drive after having been on duty for 60 hours in the past 7 consecutive days or 70 hours in the past 8 consecutive days.
5. The 34-hour restart provision. Drivers are allowed to restart their 7- or 8-day period after taking 34 consecutive hours off duty.
During the interim the FMCSA will be reviewing and reconsidering the HOS regulations published on August 25, 2005 ("2005 Rule"). The FMCSA is reconsidering the 2005 Rule to determine what changes may be necessary to be consistent with the holdings and dicta of the 2007 Owner-Operator decision. The FMCSA has put forth the IFR to allow public comments on what changes to the rule, if any, are necessary to respond to the concerns raised by the Court and to provide data to support the proposed changes and continued use of the 2005 Rule. Comments must be received on or before February 15, 2008.
Background on HOS Regulations
HOS Regulations limits the number of hours a driver may operate commercial motor vehicle during each 24 hour workday, sets the minimum off-duty period before a driver may start the next workday, and controls the cumulative number of on-duty hours during the work week after which time a commercial motor vehicle may not be driven. In reality, the federal government has been regulating HOS since the late 1930s, when the Interstate Commerce Commission (ICC) promulgated the first HOS regulations under the authority granted it by the Motor Carrier Act of 1935. Over the years, jurisdiction over HOS regulations passed from the ICC to the Federal Highway Administration in 1995, and then to the FMCSA in 2000.
The HOS regulations have seen more action in the last four years than they have in their entire 70 years of existence. In 2003, FMCSA proposed modified HOS regulations applicable to property carriers and their drivers, but not passenger carriers and their drivers. The 2003 regulations increased the daily driving limit from 10 hours to 11 hours; reduced the daily on-duty limit, which included driving time, from 15 to 14 hours; increased the daily off-duty time from 8 to 10 consecutive hours; allowed drivers to restart their weekly on-duty clock after they took a minimum of 34 consecutive hours off duty; and preserved the sleeper berth exception allowing drivers using a sleeper berth to satisfy their off-duty requirement in two separate periods as long as each of them was at least 2 hours long. The 14-hour window was non-extendable, i.e., miscellaneous off-duty periods could not be used to extend the workday. As a result of these changes, drivers were prohibited from driving after the 14th hour regardless of whether they used up the maximum 11 hours of driving time.
The 2003 Rule did not change the then-existing 60- and 70-hour weekly limitations for carriers working six-day and seven-day weeks, respectively. The 2003 Rule did, however, allow drivers to restart the weekly time clock after they took 34 consecutive hours off-duty. Based on studies conducted and assessed by the FMCSA, these provisions improved the opportunity for drivers to obtain restorative sleep, moving them toward a work-rest schedule that more closely matched the natural 24-hour circadian cycle and gave drivers the opportunity to obtain 7 to 8 hours of uninterrupted sleep per day. The 34-hour restart provision gave drivers the opportunity for two 8-hour periods of restorative sleep, which research identified by the FMCSA showed can overcome cumulative fatigue.
In 2004, the U.S. Court of Appeals for the District of Columbia Circuit overturned the 2003 Rule on the grounds that the FMCSA failed to adequately address the issue of driver health, as required by the Motor Carrier Safety Act of 1984, 49 U.S.C. 31136(a)(4).[iii] Subsequently, to avoid industry disruption, Congress provided that the 2003 Rule would remain effective until the effective date of a new final rule addressing the issues raised by the Court or September 30, 2005, whichever occurs first. The FMCSA reviewed the Court's decision and re-proposed the 2003 Rule as originally published and sought public comment. On August 25, 2005, the FMCSA published a final HOS Rule (known as the 2005 Rule) with most provisions contained in the 2003 Rule. The 2005 Rule changed the sleeper berth provision to require drivers to take at least 8 consecutive hours in the sleeper berth and to take an additional 2 hours either off-duty or in the sleeper berth.
The 2005 Rule in turn was challenged on procedural grounds in Owner-Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007). Prior to the adoption of any rule, the Administrative Procedures Act requires agencies that contemplate the adoption of a rule to give notice of the proposed rule, invite public comments, consider the comments, and only then adopt a final rule that includes a statement of basis and purpose. An agency also must make available to the public any technical studies and data that it has employed in reaching the decisions to propose particular rules.
The Owner-Operator court vacated the 2005 Rule's 11-hour driving limit and the 34-hour restart provisions, finding that the FMCSA failed to satisfy several procedural mandates of the APA. The Court found that the FMCSA failed to give notice and provide an opportunity for public comment on the methodology of the operator-fatigue model that it used to analyze the benefits of alternate changes to the HOS rules.
The Court also vacated the 11-hour driving limit because the FMCSA failed to provide a sufficient explanation for certain critical elements in the operator-fatigue model's methodology that plotted crash risk as a function of time-on-task/hours of driving. In vacating the 34-hour restart provision, the Court found that the FMCSA provided no explanation for the failure of its operator-fatigue model to account for cumulative fatigue due to the increased weekly driving and working hours permitted by the 34-hour restart provision. The Court did note, however, that the FMCSA had made the sleeper berth provision safer, and it is important to note that the Court found no fault with the 2005 Rule's substance.
Later, in September 2007, the American Trucking Associations filed a motion asking the Court to delay implementation of the rules for eight months to allow the FMCSA time to come up with a solution. On September 28, 2007, however, the court issued an Order giving the FMCSA 90 days, or until December 27, 2007, to promulgate new rules, or the current regulations, but without the 11-hour rule and 34-hour restart provisions.
Good Cause for an IFR?
The court’s orders presented the FMCSA with a December 27, 2007, deadline for rulemaking. Thus, the Owner-Operator court, having found that the FMCSA committed procedural error by violating the notice and comment requirements, created a situation requiring immediate response from the FMCSA.
The APA provides an exception from the pre-adoption notice and comment requirements when the agency finds that notice and public procedure thereon are “impracticable, unnecessary, or contrary to the public interest.” In its simplest form, the APA's good cause exception dispenses with the traditional pre-adoption procedures and is commonly seen when an IFR is adopted in response to an imminent rule implementation deadline imposed by a judicial decision. Notably, each provision in the IFR must be justified by exigent circumstances.
Plainly aware of this requirement, the FMCSA explained that failure to issue an IFR by the court’s deadline would result in “confusion and uncertainty concerning what HOS rules govern, and result in poor compliance by the motor carrier industry, as well as reduced and inconsistent enforcement by Federal and State officials.” An IFR would ensure that “a familiar, uniform set of national rules govern motor carrier transportation” while FMCSA gathers additional public comments, conducts peer review of its analysis, and considers an appropriate final rule addressing the court’s concerns. Thus, if challenged under the "good cause" exception, the IFR will likely satisfy the APA mandate requiring an explanation of the exigent circumstances warranting the rule's immediate issuance and effective date.
Renee Y. Little
Carlock, Copeland, Semler & Stair
[i] Hours of Service of Drivers, 72 Fed.Reg. 71247, 71249 (December 17, 2007)(codified at 49 C.F.R. §§ 385 and 395).
[ii] See Owner-Operator Independent Drivers Association v. Federal Motor Carrier Safety Administration, 494 F.3d 188 (D.C. Cir. 2007).
[iii] See Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004).
[iv] 5 U.S.C. § 801 (Supp. III 1997)
[v] 58 Fed.Reg. 51735 (1993).
[vi] 2 U.S.C. 1532, et seq.
[vii] NEPA, 42 U.S.C. 4321, et seq., as amended).
[viii] 64 Fed.Reg. 43255 (1999).
[ix] 53 Fed.Reg. 8859 (1988).
[x] 61 Fed.Reg. 4729 (1996).
[xi] 72 Fed.Reg. 71247, 71266-71269 (2007).