Counting the Hours
By Henry E. Seaton

September 2007
Reprinted from

Q What is the effect of the recent decision by the U.S. Court of Appeals for the District of Columbia Circuit on the hours-of-service rules?

A By order and decision entered July 24, the court found the most meritorious aspects of the Federal Motor Carrier Safety Administration’s revised hours-of-service rules to be “arbitrary and capricious.” Although the decision rests on procedural issues, FMCSA?faces a big challenge to preserve the current regulations. I am sure there will be an effort to appeal and/or seek congressional action, but to me success seems unlikely.

What the court did was to strike down the 34-hour weekly restart and extension of driving time from 10 to 11 hours. Remember that it was these two concessions in the revised rules that gave some relief to the harsh inflexibility of the initial rule.

As a result of the decision, the industry will be left with the toughest parts of the old and current rules: (1) no ability to log “off duty”; (2) 10 hours of driving in any 14-hour tour of duty; (3) 10 consecutive hours off duty with sleeper berth of limited use (one of the two sleeper-berth periods must be eight hours in duration); and (4) the driver will not be able to reset his weekly time clock with the 34-hour restart.

Productivity will be adversely affected by this decision, which becomes effective in 52 days after entered unless stayed. The range of a solo driver will be reduced by about 15 percent per day, and next-day service assumptions in existing shipper contracts will have to be re-evaluated. Also, the 34-hour restart means that long-haul drivers who exceed their cumulative hours get to spend a whole weekend away from their family.

How, you ask, did the industry get in this mess, and what is the root cause for the court’s decision? The answer is simple: The initial hours-of-service decision was based upon junk science and findings about circadian rhythms that ignored the value of a nap and attempted to legislate human behavior in the name of highway safety.

When FMCSA finally recognized that the initial rule required amelioration, it offered the restart and the one-hour extended drive time in the revised rules without repudiating the junk science or laying a new factual predicate to support the relaxation of the original rule. Public Citizen, the self-appointed protector of highway safety and driver health, opposed the revised rule because it argued FMCSA did not justify relaxing its initial rule based upon the agency’s own finding as a fact.

The result of the court’s decision is frustrating to anyone in the industry who has made even a cursory review of sleep science. We should be measuring fatigue, not straitjacketing drivers’ productivity.

With the D.C. Circuit Court’s decision, we have lost that important battle. Clearly the industry will respond with efforts to delay the outcome and revisit the decision. (The American Trucking Associations is filing a petition.) Like the weather, the forecast could change, but the prediction is gloomy. It will be at least Sept. 14 before any final action is taken.
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