The American Trucking Assns. (ATA) characterized the changes the Federal Motor Carrier Safety Administration (FMCSA) made to driver Hours--of-Service (HOS) rules in 2011 as “driven” by an agenda in arguments it made before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Friday.

“The existing rules have a proven track record, and the agency’s purported reasons for tinkering with them were baseless,” said ATA general counsel Prasad Sharma. “We’re hopeful the judges will see through the agency’s mere pleas for deference and after-the-fact explanations for a rule that was agenda-driven rather than evidence-based.”

According to ATA, FMCSA’s 2011 HOS changes would put “onerous restrictions” on drivers’ ability to effectively manage their schedules by limiting the use of a restart period to once every seven days as well as “inflexibly mandating” off-duty breaks during the workday. The trucking lobby contended that these changes were not supported by the data available and thus should be rejected.

ATA pointed out in a news release that, separately, a coalition of “outside [safety] advocacy groups” challenged FMCSA’s retention of the 11th hour of driving and the existence of the restart at all. “Public Citizen and its cohorts also faced tough questions they didn’t have good answers for,” Sharma said. “Despite Public Citizen’s arguments, neither the law nor the data support Public Citizen’s contention that FMCSA was obliged to make the hours-of-service regulations more onerous than they are. Nothing they said today [before the court panel] changed that.”

The trucking lobby stated that the heart of its HOS challenge rests in the agency’s limitations on the restart (limiting it to once per week and requiring that it span two consecutive 1am-5am periods); to the requirement that the mandatory 30-minute break within 8 hours of starting a duty period be completelyoff-duty (rather than just a break from driving); and the unannounced application of the break requirement to local delivery drivers.

ATA holds that the challenged rules are arbitrary and capricious, which it said is the relevant legal standard.

ATA said it presented a detailed rebuttal of FMCSA’s justification for the rule changes:

·         “While FMCSA is entitled to deference in its rulemaking, that deference is not unbounded. It must still articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. An agency action is not reasonable if its explanation runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Where an agency changes its mind on prior positions, it must indicate that it is aware it is changing positions and provide an adequate explanation for its departure.”

·         “FMCSA justified the rule changes largely on the basis of an analysis from which it concluded that the benefits of the rule changes would outweigh their costs.”

·         “If the agency’s analysis had not made these errors, it would have been clear that the costs of the rule outweigh its benefits. FMCSA’s reliance on the analysis as the primary support for the rule was thus improper. Indeed, the flaws in FMCSA’s analysis make it clear that it had an outcome in mind during this rulemaking and then worked backwards to fabricate a justification.”

According to ATA, its challenge of the HOS rule changes is supported by the National Industrial Transportation League, the Truckload Carriers Assn., the Owner-Operator Independent Drivers Assn. and the National Shippers Strategic Transportation Council as well as by another 15 organizations representing shippers or the business community in general.

There’s no deadline for when the appellate court must rule, but ATA said it is “hoping for a swift decision.”

The trucking lobby noted that despite its requests, as well as those of the Commercial Vehicle Safety Alliance (CVSA) and other stakeholders, that the agency delay implementation of the HOS rule changes until three months after the court issues its decision—“to save the industry and enforcement community the expense of preparing for a rule that might never go into effect”– FMCSA has indicated it plans to begin enforcement as scheduled this July 1st.

Click on ‘Handle’ to follow David Cullen on Twitter: @Hammer_Lane