Lawyers seldom deliver welcome news, and attorney David Sauvey of Evansville, Ind., certainly is no exception.
Sauvey has written a sobering assessment of the U.S. Court of Appeals decision that struck down the new hours-of-service rules for truckers.
"If trucking companies, owner-operators and shippers did not like the hours-of-service regulations that went into effect Jan. 4, they could hate what the Federal Motor Carrier Safety Administration comes up with following the decision in Public Citizen v. FMCSA," Sauvey writes in a recent issue of Transport Topics, a leading trucking industry publication.
"There are many who think this is an easy problem to fix," says Sauvey. "Simply have FMCSA issue additional findings that say it has considered the health effects of the regulations and they have no adverse effect on driver health.
"However, this approach ignores the bulk of the court's opinion, in which the judges pointed out all the other problems they saw with the new rules and why they considered them to be arbitrary and capricious. Any one of these other problems would have been sufficient to declare the regulations void.
"The appellate court gave FMCSA a road map that will lead it safely to judicial approval of new hours-of-service regulations. However, as I read that map, it leads to only one place: fewer hours of both driving and total work time for truck drivers. The whole point of changing the old regulations was to address the problem of driver fatigue and in the court's view the new rules did not come close to solving that problem," Sauvey maintains.
The three-judge panel also did not believe the justifications presented by FMCSA for increasing the number of driving hours to 11 from 10 were legally sufficient. The studies cited by FMCSA showed that driver performance begins to degrade between the eighth and 10th hours and degrades "geometrically between hours 10 and 11."
FMCSA had no data to show that decreasing the total number of work hours somehow offsets the adverse effects of increasing driving hours.
Sauvey says the FMCSA cannot go back to the old rules because it was directed by Congress to make changes. Keeping the new rules also is out, even if it could come up with some "health-of-the-driver" justification. "Anything it produces would certainly be suspect in the eyes of the court, and would not solve all the other problems identified by the judges," says the attorney.
Even if the Supreme Court overturns the Court of Appeals, the only issue before the Supreme Court would be the "health of the driver."
"There is little doubt the D.C. Circuit would invalidate the new regulations if all the other problems were not corrected. In other words, the only option left to FMCSA is to come up with yet another new regulation."
And, according to Sauvey, the appellate court has given FMCSA the perfect political and legal cover. "It can now ignore all outside interests and promulgate a rule based solely on the science of fatigue.
"If I were a betting man, I would say that the number of driving hours will be reduced to nine, the total number of working hours will be reduced to 12, and the total number of rest hours increased to 12 - at least 10 of which have to be taken in a single block.
The motorcoach industry escaped the hours-of-service rules that the court vacated. It may not be so lucky next time if the FMCSA decides Congress wanted all over-the-road drivers to drive fewer hours.