This is part 2 of a 3 part post discussing the hours-of-service regulations. You can read part I here.
In 1999, Congress passed the Motor Carrier Safety Improvement Act, which created the FMCSA. The newly created agency was tasked with making the nation’s roads safer and empowered to promulgate rules that would advance this goal. At the time that the FMCSA was created, the existing regulations governing trucking operations had been in effect since 1962 and were woefully outdated. The FMCSA’s first rulemaking initiative proposed significant revisions to the antiquated regulations, including the hours-of-service rules.
In 2003, the FMCSA promulgated a final rule that substantially modified the hours-of-service regulations in a number of ways. First, the final rule increased the number of hours that a property-carrying commercial motor vehicle operator, i.e. a truck driver, could drive in a day from 10 hours to 11 hours. Second, the final rule decreased the number of hours that a property-carrying commercial motor vehicle operator could be on-duty in a day from 15 hours to 14 hours. Third, the final rule increased the number of hours that a property-carrying commercial motor vehicle operator must be off-duty from 8 hours to 10 hours. Finally, the 2003 rule created a new exception to a property-carrying commercial motor vehicle operator’s weekly hour limit that was referred to as the 34-hour restart. In essence, the 34-hour restart allowed a property-carrying commercial motor vehicle operator to reset their 70-hour weekly limit to 0 by taking 34 consecutive hours off-duty.
Trucking industry associations and safety-oriented public interest groups opposed the 2003 final rule, albeit for much different reasons. One such safety group, Public Citizen, filed a legal challenge to the 2003 final rule and argued that it was arbitrary and capricious because the FMCSA failed to comply with its statutory requirement to ensure that the operation of a commercial motor vehicle does not have a detrimental effect on the physical condition of such drivers. In Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir. 2004), the United States Court of Appeals for the District of Columbia agreed with Public Citizen’s argument and vacated the final rule in its entirety. In response to the Court’s ruling, Congress enacted the 2003 final rule as law until the FMCSA could promulgate a new rule.
The FMCSA promulgated a new final rule in 2005 that was almost identical to the successfully challenged 2003 final rule. Again, trucking industry associations and safety-oriented public interest groups challenged the final rule and argued that it was arbitrary and capricious. In Owner-Operator Indep. Drivers Ass’n, Inc. v. FMCSA, 494 F.3d 188 (D.C. Cir. 2007), the United States Court of Appeals for the District of Columbia found two technical shortcomings in the rule and vacated it on those narrow grounds.
The FMCSA went back to the drawing board following the Court’s ruling, in 2008. Instead of promulgating an entirely new rule, the agency reissued the 2005 final rule with supplemental explanations and analysis that were designed to ameliorate Court’s criticisms of the 2005 rule. Once again, trucking industry associations and safety-oriented public interest groups were dissatisfied with the 2008 final rule and sought judicial intervention.
Following the 2008 final rule challenge, the FMCSA promulgated a new final rule in 2011. The 2011 final rule was substantially similar to the agency’s prior final rules. However, the most recent final rule also included several new safety provisions: 1) the 30-minute off-duty break; 2) the once-per-week provision; and 3) the two-night requirement. Concerning the first new provision, the 2011 final rule prohibits property-carrying commercial motor vehicle operators from driving more than 8 hours unless they have had an off-duty break of at least 30 minutes. The second new provision, the once-per-week restriction, was created to prevent drivers from abusing the 34-hour restart. Under the once-per-week restriction, drivers are able to invoke the 34-hour restart only once every 168 hours or 7 days. Finally, the two-night requirement was designed to ensure that drivers get two nights of rest when they use the 34-hour restart. In furtherance of this objective, the 2011 final rule mandates that the restart include two blocks of time from 1:00 a.m. to 5:00 a.m. The trucking industry and safety groups went back to the Court to challenge the 2011 final rule. In the final part of this three-part series, I will address the current hours-of-service rules and challenges thereto.