Last month's decision by the U.S. Court of Appeals for the District of Columbia Circuit Court to vacate the current federal hours-of-service rules apparently puts the rules in legal limbo once the 52-day period in which the Federal Motor Carrier Safety Administration (FMCSA) has to respond expires on Sept. 7.

“During that period of time, the current hours-of-service rule, announced April 2003, remains in effect,” said FMCSA administrator Annette Sandberg.

The Court kicked the rules back to FMCSA when it agreed with a public interest group that the agency had neglected to review the rule's impact on the health of commercial vehicle operators. (www.cadc.uscourts.gov.)

Sandberg said the agency will review the decision in the allotted time and decide whether to seek other legal remedies.

According to Bob Digges, assistant general counsel for ATA, FMCSA has two choices — appeal or not appeal. Should FMCSA decide to appeal, it must prove the HOS rulemaking was not “arbitrary and capricious,” as the Appeals Court found. If FMCSA decides not to appeal, then the rules have to be revised so they address the Court's concern.

The real concern is what will happen to the rules after the 52-day period expires. “While they are considering these options, the concern becomes what rules will be in place,” Digges said.

Gary Petty, president & CEO of the National Private Truck Council, warns there's a real possibility HOS will be revised. “The agency is in a tough spot,” he said.

“One could argue the rules are putting more pressure on drivers, and in an unintended way encouraging them to engage in behavior that is deleterious over time,” Petty said. “I think the strength and the sharpness of the opinion would suggest that the agency has a huge hurdle to overcome to getting this decision overturned.”

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