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12/30/2005
SPECIAL REPORT: OOIDA plans to take HOS challenge to court

Following the Federal Motor Carrier Safety Administration's denial of OOIDA's petition to reconsider two aspects of the new hours-of-service regulations, the Association plans to take its challenge of the new regs to court.

"We will appeal the agency's hours of service," Paul Cullen Sr., OOIDA's general counsel, told "Land Line Now" Thursday, Dec. 29, 2005.

"We will be playing both offense and defense here," he said.

Part of the offense is that OOIDA is unhappy with the split sleeper-berth provision and its effect on team drivers.

"We are affirmatively asking the court to overturn agency action in so far as team driver regulations are concerned," Cullen said.

OOIDA is also asking the court to have both periods of the split sleeper-berth provision be off the 14-hour on-duty clock to provide needed flexibility for solo drivers.

As far as the defense goes, OOIDA is ready to stand behind the new regs because they don't include electronic on-board recorders - or EOBRs.

OOIDA expects that others may actually appeal FMCSA's decision to exclude electronic on-board records from the new regulations.

Cullen said OOIDA will be "vigilant" in opposing efforts by other groups to twist FMCSA's arm and get EOBRs included in the current hours-of-service regulations.

In 2004, FMCSA conducted an advance notice of proposed rulemaking on EOBRs. The purpose was to ensure any future mandate concerning them would be appropriate as well as reflect state-of-the-art communication and information management, according to FMCSA.

The EOBR comment period closed on Nov. 30, 2004. Industry insiders expect a specific proposal on EOBRs sometime in the first part of 2006.

OOIDA's planned court challenge of the hours-of-service regulations is the second step the Association has taken to have the current regulations modified.

OOIDA petitioned FMCSA on Aug. 29, 2005, and asked "that the split sleeper-berth provision from the 2003 rule be retained for team drivers," and "that both minimum rest periods under the new sleeper-berth provision be excluded from the 14-hour on-duty limit for solo drivers."

In a letter dated Dec. 5, 2005, FMCSA denied the Association's petition for reconsideration.

In its petition, the Association argued that the split sleeper-berth provision forces team drivers to actually drive longer periods of time that "wear them out."

"They prefer being able to switch drivers after much shorter periods of time, which gives them more frequent rest opportunities, and leaves them more refreshed each time they drive," OOIDA's petition stated.

FMCSA denied the Association's request to retain the 2003 rule's split sleeper-berth provision for teams by claiming that the current regs "ensure that drivers can obtain seven to eight hours of uninterrupted sleep during one sleeper-berth period."

"This action provides drivers with a work/rest schedule that is more likely to prevent fatigue," the denial stated.

The second provision OOIDA asked to be reconsidered was that both portions of the split sleeper-berth provision be excluded from the 14-hour clock. The current regs allow for the eight-hour portion of the split to not count against the daily on-duty clock, but the remaining two hours, while off-duty, do not stop the on-duty clock.

The Association argued that not stopping the daily on-duty clock for the two-hour off-duty portion of the split sleeper-berth provision "does nothing to alleviate drivers' disincentives to take a break that cuts into available driving time."

FMCSA flatly denied this request, stating "the two-hour break for sleeper-berth drivers in the 2005 rule is mandatory, so there is no question of incentives or disincentives."

OOIDA isn't alone. The Teamsters had also petitioned for some changes to the split sleeper-berth provision for teams. On Dec. 5, 2005, FMCSA sent a letter to Teamster President James Hoffa denying that group's request. The agency's rationale for rejecting the Teamster petition was similar to its reasons for rejecting the OOIDA petition.

- By Jami Jones, senior editor
jami_jones@landlinemag.com

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