Federal Update
OOIDA takes challenge of HOS to the courts
Association continues to fight for common sense changes to the regs

By Jami Jones
senior editor

The Owner-Operator Independent Drivers Association has officially filed a petition for review of the current hours-of-service regulations.

The Association filed its petition with the U.S. Court of Appeals for the District of Columbia Circuit Jan. 23.

"We think the agency made substantial errors in the way they implemented the split sleeper-berth provisions that are contrary to the interest of safety," OOIDA President and CEO Jim Johnston said.

"They did not do adequate research to justify the decisions they did make."

OOIDA initially petitioned FMCSA for two "commonsense changes" to the current hours-of-service regulations on Aug. 29, 2005.

The current regulations are set up in a way that if a trucker chooses to split up the required 10 hours of off-duty time, one of the two periods must be at least eight hours. That eight-hour rest period stops the 14-hour on-duty clock. The other two off-duty hours can be taken at another time - either in the sleeper or out - to fulfill the 10-hour off-duty requirement, but they do not stop the 14-hour clock.

FMCSA stressed the importance of the two-hour portion of the split sleeper-berth provision in its rulemaking.

"The second period will allow a driver to have time for a nap or rest break or provide an opportunity to attend to personal matters. The opportunity to take a nap later in the day is an important benefit," the rulemaking states.

Elsewhere in the rulemaking, naps and rest breaks are called "an important tool in combating fatigue and the FMCSA encourages their use."

Despite the encouragement in the rulemaking for truckers to cash in on the opportunity for a nap or short rest period, the fact that the two-hour break does not stop the 14-hour clock is a disincentive for truckers to utilize the break, according to OOIDA's rejected request for reconsideration.

"We were simply asking in our petition to FMCSA that those two hours also stop the clock, that the driver could take those off-duty and not count against his working time," Johnston said. "We think it's common sense because it's consistent with the 10-hour off-duty requirement."

The other change OOIDA petitioned for Aug. 29, 2005, involved split sleeper-berth provisions for team drivers.

Under the current HOS regulations, team drivers have to take a minimum of eight consecutive hours off in the sleeper berth.

"That's impractical for most team operations," Johnston said. "We initially petitioned the DOT to retain what was then the current sleeper-berth exemption, which allowed the drivers to take sleeper-berth time in whatever increments they wanted, as long as no period was less than two hours."

OOIDA's Aug. 29, 2005, petition contended that FMCSA's abandonment of the sleeper-berth rules, at least as far as team drivers go, was based in part on the assumption that a schedule, such as the one where the driver goes on duty for five hours and then off duty for five hours, only gives a driver a five-hour window of opportunity to obtain rest.

"This is simply not the case with team drivers," OOIDA's petition stated. "Often the period of a driver's rest is a combination of the length of the other (team) driver's driving period plus the other driver's breaks to take care of business."

FMCSA denied OOIDA's petition for reconsideration in a Dec. 5, 2005, letter, leaving the Association no other choice but to take its challenge of the HOS regs to the U.S. Court of Appeals.

"We intend to press our case very aggressively with the court and hope the court will agree with us," Johnston said.

And OOIDA most likely will not be alone in its challenge of the hours-of-service regs.

"We're also looking forward to other industry interests joining with us in this case," Johnston said. "The California    Trucking Association has already indicated that they would like to piggyback on our suit since, procedurally, they were not allowed to file a suit on their own."

That's not just speculation on Johnston's part either.

Stephanie Williams, executive vice president of the California Trucking Association, made her association's intention to join in on the OOIDA court challenge very clear in a recent Transport Topics article.

Although CTA objected to the split sleeper-berth provision, it is not eligible to sue on its own because it didn't petition FMCSA for reconsideration.

"We were very confident that someone would intervene," she told the publication. "We're going to take our opportunity. We got a Christmas present."