A three-judge panel hearing arguments Monday against some of the changes in the hours-of-service rule implemented by the Federal Motor Carrier Safety Administration in 2020 focused roughly equal time on the modification of the 30-minute break rule and changes in rules for short-haul providers.
While there were other provisions in the changes from May 2020, the Teamsters and a coalition of groups focused on safety challenged those two modifications in the U.S. Court of Appeals for the District of Columbia Circuit in a petition filed last December.
Oral arguments were available over the court’s YouTube channel.
At the heart of much of the discussion about the 30-minute break rule — allowing periods of 30 minutes while drivers conduct activities such as refueling and eating to count against the existing half-hour break requirement — was a focus by Judge Judith Roberts on whether that is an adequate rest period.
Questioning Brian Springer, a Justice Department attorney representing the federal government and FMCSA, Roberts laid out a scenario in which a driver could split the 14 hours of allowable on-duty service into six hours of what she described as preparatory and office work and then drive the maximum eight hours to fill the 14-hour limit without a 30-minute break.
“Here there is no indication or analysis of the impact on the 30-minute break on health,” Rogers said. “The agency only talks about it broadly.”
She said it was “particularly problematic” given that FMCSA’s implementation of the current HOS rules, with the 11/14 split–which restricts driving to 11 hours out of a total 14-hour on-duty day–and the 30-minute required break in the eight-hour cap on a single run, “found that there would be benefits to the 30-minute break.”
“The rule wouldn’t require a break but the agency finds that drivers are likely to take breaks when they need to,” Springer said. “When they need time to rest and take a break, they will do so.”
Rogers said of the changes, “It sounds like self-regulation.”
“That sort of situation is not likely to happen,” Springer said of the scenario she spelled out.
Adina Rosenbaum was the attorney for the group of plaintiffs in the court petition, a lineup that includes the Citizens for Reliable and Safe Highways, Advocates for Highway and Auto Safety, and Parents against Tired Truckers, as well as the Teamsters. She is an attorney with the Public Citizen Litigation Group.
Judge Patricia Millett questioned why Rosenbaum’s coalition was opposed to the extension to 14 hours for short-haul driving, given that the 11-hour on-duty limit remains. “If they just did the driving radius, I don’t know what your objections would be, because you would still have the 11 hours,” the judge said. Changes in the short-haul rule also included an extension of the radius that constitutes short haul, to 150 miles from 100 miles.
“The extension to 14 hours gives more opportunity not to comply,” Rosenbaum said. With that addition, Rosenbaum said, it is easier to violate HOS rules “or be pressured by an employer to violate them.”
Millett asked Rosenbaum whether she believed the widening of the radius goes hand in hand with the added short-haul HOS, and whether the court could overturn one without overturning both. Rosenbaum said if the radius extension were kept intact by the court, her group would still challenge the extension of the hours of service.
“I do think they are part and parcel,” Rosenbaum added. “I do think that the change in the radius exacerbates the change in the hours of service, because it allows drivers to go a greater distance without stopping.” Rosenbaum added that it would not occur all the time.
Rosenbaum said FMCSA “did not reasonably explain its conclusion that expanding the HOS for short haul would not affect the hours-of-service rule.”
Any reference during the oral arguments to driver fatigue under the changes, whether it was the modification to the 30-minute break rule or the widening of the short-haul total HOS window, inevitably came with a discussion of the interpretation of the so-called Blanco report.
Blanco is a 2011 study from FMCSA formally titled “The impact of driving, non-driving work and rest breaks on driving performance in commercial motor vehicle operations.” According to various testimony from both Springer and Rosenbaum, the Blanco report did conclude that the longer a driver is behind the wheel, safety can worsen. .
“The Blanco study said that when drivers drive further into their 14-hour workday, there was a negative safety implication from that,” Rosenbaum said.
Springer’s argument, which is at the heart of altering the rules of the 30-minute break to also include fuel and food stops, is that FMCSA’s view of Blanco is that any break from driving “creates a benefit to the driver.”
The Owner-Operator Independent Drivers Association is involved in the legal petition as an intervenor. During oral arguments, Paul Cullen of The Cullen Law Firm, OOIDA’s longtime Washington legal counsel, spoke primarily about parking issues and noted that a 30-minute mandated rest stop — one in which the driver needed to be off the road — could result in a 60- or 90-minute hunt for parking. The new rule reduces that need.
He was asked from the bench whether the issue from OOIDA’s perspective wasn’t more of “flexibility.” Permitting the 30-minute break requirement to be met by such activities as refueling or tying down a flatbed would help provide that flexibility, Cullen said.