The Owner-Operator Independent Drivers Association announced Monday, Sept. 10, that it had filed a petition requesting the U.S. Court of Appeals for the District of Columbia to reconsider its opinion on certain hours-of-service rules. OOIDA asked the court Friday, Sept. 7, to rehear portions of its July opinion on sleeper-berth provisions and the prohibition on drivers from stopping the 14-hour clock to take short rest breaks and naps on two legal grounds.
OOIDA contends the Federal Motor Carrier Safety Administration did not give adequate public notice of the possible changes to sleeper-berth exceptions and used an overly-technical legal test to conclude that the public should have been on notice that the final rule was a possibility. Consequently, the agency received no comments about what problems and safety issues the eight-hour/two-hour sleeper-berth split might raise for team drivers until after the final rule was announced.
“Truckers were blindsided by the changes,” says Rick Craig, OOIDA director of regulatory affairs. “It wasn’t clear what the public was supposed to comment on, and so it was no wonder there were no posted objections on the docket until after the final rule was published.”
The court’s July 24 opinion rejected the argument that the public had inadequate notice of FMCSA’s likely move to curtail use of sleeper berths sharply. In its Jan. 25, 2005, notice of proposed rulemaking, FMCSA devoted considerable attention to its concerns with use of the sleeper berth and said it would consider a variety of possible changes, including allowing a shorter, continuous period — such as 8 hours — substitute for the 10 consecutive hours of rest or even eliminating split rest altogether.
“Indeed, the prospect that a new sleeper-berth exception would contain a minimum requirement of 8 hours for one of the two periods (or ‘splits’) could hardly have been a surprise to anyone,” the court ruled.
The second issue deals with the court’s opinion that FMCSA adequately considered the issue of drivers being discouraged from taking short rest breaks and naps during the 14-hour workday because the agency concluded that “other considerations minimized or outweighed this disadvantage.” OOIDA argues that because the court has vacated the 11th hour of driving and the 34-hour weekly restart provision of the hours-of-service rule, it almost certainly caused the “other considerations” relied upon by the agency to be altered. FMCSA now must be ordered to reconsider this driver issue as it promulgates a new hours-of-service rule in compliance with the court’s order.
“We believe FMCSA’s change to the HOS rules will make highways less safe and create more problems than it solves, therefore we hope for further analysis,” Craig says.
Separately, the American Trucking Associations has filed a motion with the court asking for an eight-month stay of its mandate to eliminate the 11-hour and 34-hour weekly restart provisions. A stay would leave the two provisions in place pending a review by FMCSA.