FMCSA fast tracks industry-backed rule changes in waning days of Bush Presidency
As a trucking accident lawyer in Atlanta, I have been following developments in rule changes on truck driver hours of service for several years. There has been quite a history of the administration proposing longer driving hours, with trucking industry backing, only to have the rules struck down by courts as arbitrary, capricious, etc. However, the regulators have persevered in repeatedly reissuing controversial temporary rules extending driving time from 10 driving time to 11 hours driving out of 14 hours on duty, after 10 continuous hours off duty.
Yesterday the Federal Motor Carrier Safety Administration released its final rule on truck drivers’ hours of service. It seeks to make permanent the extension of hours truckers can drive from 10 hours to 11 hours.
According to a report in the Wall Street Journal, this is part of a broad-ranging last-minute push to enact regulations supported by business and in numerous instances opposed by consumer, safety and environmental groups. Also included are new rules that open the way for commercial development of oil shale on federal land and add restrictions on employee time off under the Family and Medical Leave Act.
The Federal Motor Carrier Safety Administration (FMCSA) first isued the hours-of-service rule in 2003, increasing the number of hours truckers can legally drive. The Court of Appeals for the D.C. Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.
FMCSA issued a new Notice of Proposed Rulemaking in January 2005, proposing a rule that was essentially the same as the 2003 rule that had been struck down. On July 24, the U.S. District Court of Appeals for the D.C. Circuit for the second time threw out the rule that increased driving time to 11 hours from 10 hours and allowed drivers to go back to work after being off duty for only 34 hours. In a 39-page opinion, Judge Merrick Garland called the rule "arbitrary and capricious."
The Teamsters Union called yesterday’s action "a dangerous midnight move" and vowed to fight it.
Joan Claybrook, president of Public Citizen was quoted saying, “This rule will continue to force truck drivers to continue enduring sweatshop-like working conditions. This puts the health and safety of drivers at risk, along with the public who must share the road with tired truckers.”
Ken Shigley in Atlanta is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice. He served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. Shigley has won multi-million dollar jury verdicts in trucking cases and lectures on trucking and insurance topics at national continuing legal education programs. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.