SPECIAL REPORT: Battle lines drawn in HOS challenge

| 9/15/2006

Sept. 15, 2006 - The court challenge of the current hours-of-service regulations has, to this point, been filled with a plethora of legal filings, the latest of which is a reply brief filed by the Owner-Operator Independent Drivers Association.

OOIDA's reply brief takes to task FMCSA's defense of the current rule on a variety of fronts.

When Congress mandated new HOS regs in 1995, the Federal Highway Administration - the agency governing trucking at that time - was instructed to deal with fatigue-related issues including loading and unloading operations.

The Federal Motor Carrier Safety Administration, formed to take over regulation of the trucking industry, rolled out a new version of the HOS regs in 2003. That version was quickly overturned by the U.S. District Court of Appeals for the District of Columbia Circuit in July 2004.

In August 2005, FMCSA unveiled revised HOS regs, which OOIDA is now contesting in court.

In its most recent filing, the Association challenged FMCSA's handling of loading and unloading issues.

"The FMCSA never proposed or considered how to deal with the effect of loading and unloading on fatigue-related issues," OOIDA's reply brief stated.

"The government's citation to parts of the publication of the final rule demonstrate no more than passing references to comments related to loading and unloading. FMCSA completely ignored the congressional mandate to 'deal with' loading and unloading issues."

In an earlier filing in the impending court-room battle over the current HOS, FMCSA officials argued that loading and unloading issues had in fact been addressed in developing the current regulation. In an attempt to boost that argument, FMCSA officials pointed to comments filed by OOIDA on that very subject.

However, in its reply brief, OOIDA directs the court's attention to the fact that FMCSA "actually misstates OOIDA's comments and positions on loading and unloading."

OOIDA requested the 14-hour clock be stopped for naps and short rest breaks - not for loading and unloading.

"OOIDA's comments during the rulemaking asked the agency to help drivers deal with the uncompensated and unpredictable amounts of time that they face when loading and unloading. These have a concrete effect on driver fatigue," the reply brief stated.

The reply brief outlines several of the problems drivers face because of loading and unloading - including the ultimate "Catch-22" many truckers face when they are scheduled to pick up and deliver when they are out of hours.

"If his motor carrier belongs to a consumer reporting agency, such as USIS Commercial Services (DAC Services), the carrier can label the driver with either the term 'Log Violation' or 'Late Pick Up/Delivery' on a . DAC Report sold about the driver to other motor carriers," the brief pointed out.

Beyond loading and unloading, OOIDA again took to task the way the agency arrived at the current version of the reg.

"FMCSA failed to alert interested parties sufficiently in order to solicit meaningful comments," the reply brief pointed out.

FMCSA proposed the 2003 version of the regulations. The agency said the purpose of the notice "was to ask what changes, 'if any,' were required to address the court's concerns. The agency also identified various changes that could be made to the 2003 rule - for example, five variations of the sleeper berth rule.

"By identifying virtually every possible option for changing the sleeper berth exception, the agency really proposed nothing," OOIDA's reply brief stated.

Filings and various legal paperwork were due to the court by the end of September. After filings are completed, the court will set dates for oral arguments.

- By Jami Jones, senior editor