Public Citizen Seeks to Reinstate Old HOS

Public Citizen’s response submitted to the Washington D.C. Circuit Court of Appeals categorically opposes the main arguments for a stay in the hours of service (HOS) rules sought by the Federal Motor Carrier Safety Administration (FMCSA) and the intervenors, including the American Trucking Assns. (ATA) and other industry trade groups.

The consumer advocacy group cited grave safety risks associated with the current HOS rules in its pitch to have the Court deny the motions to stay HOS and reinstate the old rules.

“Although FMCSA and the intervenors complain that reverting to the old HOS rules for the next few years during proceedings on remand would be inconvenient, disruptive, and expensive, they have failed to establish either irreparable harm or that the claimed injuries to the trucking industry or short-term wrinkles in state enforcement outweighs the costs and significant risks inherent in keeping the new, unlawful rules,” Public Citizen states in a sweeping criticism of the arguments for a stay.

FMCSA proposed a stay of six months for the agency to assess how long it would take to develop a new HOS rule and to administrate and enforce such rules. The agency also said it would provide a status report in 90 days, and another report or a motion at the end of the six-month period.

The core argument of FMCSA’s motion to stay the mandate is that it is necessary “to avoid substantial disruption in the enforcement of HOS while affording the agency a reasonable amount of time to address the Court’s decision.”

The agency pointed out that state authorities bear the burden of conducting roadside inspections. “States that use administrative or legislative processes to adopt safety regulations compatible with the federal rule will require time to adopt new HOS regulations,” the agency stated. Therefore, the immediate vacating of the current HOS would create “a patchwork of different rules throughout the states.”

Public Citizen responded, ”FMCSA’s partnership with the states in enforcing the HOS…coupled with its ultimate authority to preempt incompatible state laws, allows it to lead the commercial vehicle safety arena with an iron fist in a velvet glove. There is every reason to believe that when the new HOS rules are vacated and the old rules reinstated, FMCSA and the states will work together cooperatively to make the transition as rapid and as smooth as possible.”

Public Citizen further argued that because the new HOS has been enforced only since March 4— 19 weeks before the Court’s ruling— it would cause less industry and enforcement confusion if the rules were immediately vacated. “The sooner the temporary reversion to the old rules, the better,” Public Citizen stated.

However, both camps note a reversion back to the old HOS would likely cause economic and enforcement disruptions. “At the very least, one cannot conclude at this point that continuation of the current rule will result in harm,” FMCSA stated.

The agency added, “Granting a stay is not likely to cause injury. While petitioners (Public Citizen) are not satisfied with the current rule, neither were they satisfied with the old rule.”

“Petitioners conceded that our goal is to improve upon the old HOS rules. Petitioners’ views on the old rules are beside the point, however, because the new rules are much worse,” Public Citizen responded.

Additionally, the advocacy group implied that the current HOS would likely cause more accidents, resulting in a greater negative economic impact if a stay is granted. “Thus, from a highway safety standpoint alone, a single fatality that results from the fact that under the new, invalidated rules truck drivers now drive…will cost the public significantly more in pure monetary terms than the transition expenses that will be borne by any of the largest motor carriers,” Public Citizen stated.

The advocacy group urged against the issuance of a stay. If the Court is inclined to issue a stay, Public Citizen proposed a defined period of no longer than 90 days and “should make it clear that the stay is finite and intended only to give states time to prepare for enforcement of the old, reinstated HOS rules.”

FMCSA is expected to file a response to the Court next week. The Court is expected to make a decision in the weeks ahead.

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