SPECIAL REPORT: Intervenors file arguments in HOS challenge

| 7/25/2006

Several groups who have joined the Owner-Operator Independent Drivers Association's court challenge of the current hours-of-service regulations filed arguments with the U.S. Court of Appeals for the D.C. Circuit.

OOIDA filed its legal challenge of the current regulations Jan. 23 with the U.S. Court of Appeals for the District of Columbia Circuit.

Groups which joined in on OOIDA's lawsuit on behalf of the Association as intervenors include the International Brotherhood of Teamsters, AFL-CIO; the California Trucking Association; the Truckload Carriers Association and the Ohio Trucking Association.

The arguments submitted July 18 collectively by the intervenors take to task the way Federal Motor Carrier Safety Administration officials went about arriving at the current HOS regs.

In stern language throughout the 42-page argument, the intervenors challenged the fact that in the "notice of proposed rulemaking" leading up to the current regulations, FMCSA officials merely "proposed" the 2003 version of the regulations.

In addition to "proposing" the 2003 regulations, agency officials broke down the notice into 29 areas of inquiry, each of which contained multiple questions about the 2003 rule and possible changes to the regs.

"The breadth of the options under considerations was extremely wide, and the lack of focus on specific proposals for a new rule was obvious," the intervenors arguments state.

The intervenors challenged that the "notice of proposed rulemaking" and the way information was presented and comments were solicited smacked more of an "advanced notice of proposed rulemaking" rather than the last stop before a final rule is announced.

These are just two of the examples the groups presented in contending that the promulgation of the current HOS was not in accordance with law.

The groups argue that FMCSA officials did not provide the public with an adequate notice and opportunity to comment.

"The 2005 NPRM merely 'proposed' the 2003 rule (which was vacated by the court) as the basis for requesting public comments on what changes 'if any' are necessary to bring that rule into compliance with the court's opinion," the arguments state. "The range of possible choices for a final rule was so broad and unfocused as to prevent meaningful comment."

The contention that FMCSA officials failed to provide adequate notice of the actual proposed rules as required was dissected in OOIDA's written arguments submitted to the court. The intervenors "fully support the argument set forth by petitioner OOIDA on that subject."

The intervenors also challenge the current regs by saying they are "arbitrary and capricious" because the agency's determination is not based on the record that was before it.

"In many instances the agency either misconstrued the evidence before it or quoted portions of that evidence out of context in order to create a justification for its revisions to the exception," the groups argued.

Oral arguments on OOIDA's court challenge of the current hours-of-service regulations have not been scheduled by the court.

- By Jami Jones, senior editor