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Bus and Motor Coach Library

Even the Rulemakers Must Follow the Rules

Author - Tom Frenkel (2003)

The Federal Motor Carrier Safety Administration (FMCSA) is a federal administrative agency which was created by statute in 1999. Congress clearly directed that safety is the FMCSA's highest priority. It is charged with the task of creating rules which govern the hours of service which commercial drivers are required to obey. Prior to the creation of the FMCSA, the Federal Highway Administration was charged with that task. In 1995 Congress ordered the Federal Highway Administration to "issue an advance notice of proposed rulemaking dealing with a variety of fatigue-related issues pertaining to commercial vehicle safety (including 8 hours of continuous sleep after 10 hours of driving, loading, and unloading operations, automated and tamper-proof recording devices, rest and recovery cycles, fatigue and stress in longer combination vehicles, fitness for duty, and other appropriate regulatory and enforcement countermeasures for reducing fatigue-related incidents and increasing driver alertness)." The FMCSA inherited that Congressional mandate in 1999.

Before we delve into a recent case which caused newly enacted hours of service rules to be vacated (pronounced "thrown out"), let's review how the FMCSA is empowered. When Congress is faced with concerns regarding an area requiring specialized knowledge, and determines (institutionally) that the public will be better served by governance through specialists in that field, it will often authorize the formation of an administrative agency to create and enforce rules and regulations in that field. Congress passes an enabling statute to accomplish that purpose. Such an agency is part of the Executive Branch of government. Congress charges each agency with specific duties, and allocates budgeted funds to accomplish those duties. Due process of law requires that the public has both notice of proposed rules and an opportunity to respond to those propositions. Therefore, Notices of Proposed Rulemaking are published for public review with a time allotted for public comment. The FMCSA is such an agency and, when rulemaking, must strictly adhere to Congress' directives as well as appropriate procedures. Now let's look at FMCSA's actions under Congress' 1995 directive.

In May 2000, the FMCSA proposed and published new hours of service rules for cargo-carrying commercial motor vehicles pursuant, in part, to the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. In April 2003, following comment and revision, new trucking hours of service rules were put into effect. Incidentally, through valiant and concerted efforts by several trade associations involved in the charter and operation of passenger buses and motorcoaches, the bus industry was spared the imposition of changes to its drivers' hours of service regulations. There was considerable discourse over the new trucking rules, and a lawsuit was brought against the FMCSA by certain public interest groups. In Public Citizen, et al. v. FMCSA, Petitioners to the United States Court of Appeals for the District of Columbia ("the Court") alleged that the rulemaking was arbitrary and capricious, because the FMCSA failed to take account of a statutory limit on its authority. On July 16, 2004, the Court agreed with the Petitioners and vacated the rule.

In its opinion, the Court noted that the final rule was considerably different from the published Notice of Proposed Rulemaking. The Court invoked a long-held legal standard that an agency is required to make a "rational connection between the facts found and the choice made." That is to say that the agency's proposed rule must be a rational extension of facts available to the agency, as applied to Congress' directive. The Court held that, by statute, when "regulations on commercial motor vehicle safety" are put forth, the FMCSA is required "at a minimum to ensure that ... the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators." The Court found no evidence that the agency considered the drivers' health in its deliberations. Even though the FMCSA may have considered the effect of driver health on vehicle safety, it did not satisfy the requirement that it consider the effect of the new regulations on driver health. The Court held that the agency's failure to consider how the regulations would affect driver health was sufficient grounds for the Court to vacate the new rules, but the Court's critique did not end there.

When a court wants to communicate a message to the litigants, reviewing (appellate or supreme) courts, or the public, it can add language to its opinion which is beyond the legal "holding." Such language is called dicta. In dicta, the Court referred to "the troubling nature of [the following] other facets of the [FMCSA] rulemaking." First, the Court questioned whether the "increase in maximum driving time from ten to eleven hours" was consistent with the goals of driver health and motor vehicle safety. Second, the Court was critical of the "sleeper-berth exception," a method by which truckers can extend their maximum daily duty time by splitting their rest period through the use of a sleeper compartment. Third, the Court was critical of the agency's justification for not requiring electronic on-board recorders (EOBRs). In this regard the Court noted that EOBRs may address widespread hour of service violations and counter the large incentives drivers have to falsify their logbooks. The opinion is critical of the FMCSA for failing to conduct adequate research and cost-benefit analyses of EOBRs. The fourth and final criticism involved a "thirty-four hour restart." This provision allowed a driver to begin a new work week after taking 34 hours off which, under certain scenarios, could extend the number of maximum driving hours during a continuous period, instead of the initial NPRM which defined and required mandatory weekend rest periods. The dicta in this case is as important as the holding. All parties and reviewing courts are now on notice of the Court's concerns. Whether this decision is appealed (no appeal has been taken as of the date this article is authored), or not, every proponent and opponent of FMCSA regulatory changes is on notice of what the Court believes should be analyzed in concert with FMCSA's Congressional safety mandate.

Even though motorcoach and bus drivers were not included in the recently enacted (and subsequently vacated) hours of service rules, we should pay heed to this opinion and its potential effect. The Court sent a message to the FMCSA regarding its future conduct, including serious references to that agency's duty to address matters such as driver health, vehicle safety, hour of service violations, log book irregularities, and electronic on-board recorders. The Court found a statutory basis for each of these concerns. The Public Citizen Court's opinion invites increased scrutiny of a variety of potential safety-related regulations, as well as hours of service regulations. Those regulations govern every type of commercial carrier, not just cargo carriers. Naturally, the best way to avoid increasingly costly regulation is to comply with the rules and maintain excellent safety records. There's no better time than the present to look at your operations and put forth an "ounce of prevention," because the "pound of cure" might include expensive equipment and serious regulatory overhead. Good business management includes good risk management. Be sure your safety programs get the attention they deserve. That'll yield safe operations -- the result which both Congress and the FMCSA want to see.

Thomas R. Frenkel is an attorney, licensed to practice in Illinois, Minnesota, and the District of Columbia.  Mr. Frenkel has a unique blend of legal and practical transportation and hospitality industry experience.  He is a past president of the National Tour Association (NTA), a past two-term board member of the Travel Industry Association of America (TIA), a founding member of the Hospitality Skills Standards Board (which was created under directive of the United States Department of Labor), and a member of the Transportation Lawyers Association.  Tom Frenkel was the Editor in Chief of the Southern Illinois University Law Journal.  He practices law from his office at Feirich/Mager/Green/Ryan, Attorneys at Law, a law firm which enjoys the highest ratings in both quality of legal service and quality of ethical standards by Martindale-Hubbell, an independent service which rates legal professionals.  Tom Frenkel may be contacted at FMGR, 2001 West Main Street, P.O. Box 1570, Carbondale, Illinois, USA, 62903-1570.  Phone: (618) 529-3000, email: tfrenkel@fmgr.com.  This magazine is proud to feature Mr. Frenkel's commentary, as a contributing writer.  This column is featured for the interest of our readers, but does not constitute legal advice; nor does any attorney-client relationship arise through its publication.