Final HOS Decision: Court Declares ‘FMCSA Won The Day’

This just in: the U.S. Court of Appeals for the District of Columbia Circuit has made its final decision on the recent HOS changes.  The decision was a massive victory for the FMCSA and a very minor victory for select drivers.

“FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.”

In May, the U.S. Court of Appeals listed to arguments against the changes to HOS.  Today, the court released its judgment.

In a 22-page report Judge Janice Rogers Brown addresses each HOS provision.

The court has ruled that all current provisions shall stand, however, the court has ruled that short-haul drivers shall be exempt from the 30-minute break rule.

Here’s what Brown had to say about the provision:

“In general,” however, “short-haul trucking work has far more in common with other occupations than it does with regional or long-haul trucking.” …. short-haul positions tend to be “5-day-a-week jobs” with typical “8 to 10 hour[]” work days and, quite often, an opportunity for overtime. “Most of the work” tends to be “regular in character” with drivers going to “basically the same places and do[ing] the same things every day.” Id. The record also tells us that “[s]hort-haul drivers rarely drive anything close to 11 hours, and available statistics show that they are greatly under-represented in fatigue-related accidents.” 2005 Final Rule at 49,980.

It should come as no surprise then that FMCSA has historically distinguished between long-haul and short-haul operations. Under 49 C.F.R. § 395.1(e)(2), for example, short- haul drivers who operate vehicles that do not require a commercial driver’s license and who operate “within a 150 air-mile radius of the location where the driver reports to and is released from work,” and, among other things, “return to the normal work reporting location at the end of each duty tour,” had greater flexibility in scheduling. Two days a week they could drive between the 14th and 16th hour after coming on duty, whereas long-haul drivers could never drive beyond the 14th hour after coming on duty. Qualifying short-haul drivers were also exempted from the requirement that drivers keep logs recording their “duty status for each 24 hour period.” In most other respects, however, short- and long-haul drivers were bound by the same HOS provisions.

The substance of the NPRM was clear: the proposed change to the existing HOS regulations would impose an off-duty break of “at least 30 minutes.” 2010 NPRM at 82,171. That FMCSA would apply that requirement to short-haul truckers was obviously a logical outgrowth of the NPRM, which proposed eliminating the § 395.1(e)(2) exemption and requiring short-haul drivers to “comply with the standard HOS limits.” The only way ATA can circumvent this reality is to manufacture ambiguity in the proposal’s scope, and that is exactly what the association attempts to do by relying heavily — if not exclusively — on the NPRM’s discussion of the § 395.1(e)(2) exemption.  As best we understand the contention, ATA believes interested parties could not have reasonably anticipated FMCSA’s decision to apply a 30-minute off-duty break to short-haul drivers because doing so would constitute a narrowing of § 395.1(e)(2), and the NPRM proposed only the elimination of that exemption, not a narrowing.

We fail to see how any reasonable commentator would have read the NPRM to suggest the agency would not do what it was otherwise free to: apply the 30-minute break requirement to short- and long-haul truckers alike. That several interested parties expressly recognized this possibility only confirms as much.  2011 Final Rule at 81,145 (referring to comment by19 FedEx that “a 30-minute rest break by the 7th hour after coming on duty would . . . hinder local package pickup and delivery drivers”).

“It is often said the third time’s a charm. That may well be true in this case, the third of its kind to be considered by the Circuit. With one small exception, our decision today brings to an end much of the permanent warfare surrounding the HOS rules. Though FMCSA won the day not on the strengths of its rulemaking prowess, but through an artless war of attrition, the controversies of this round are ended.

“For the foregoing reasons, we grant ATA’s petition in part and vacate the rule insofar as it subjects short-haul drivers to the 30-minute off-duty break requirement. In all other respects, the petitions of both ATA and Public Citizen are…Denied,” the report states.