Friday Deadline Looms for FMCSA to Post Hours of Service Rule
By Truckinginfo Staff
The Federal Motor Carrier Safety Administration faces a deadline of this Friday to publish its final hours of service revised rule, but it is looking increasingly doubtful the agency will be able to meet the deadline.
The rule is scheduled to be published Oct. 28, but as of last night it still had not been sent from the Department of Transportation to the White House Office of Management and Budget, which must clear it before it can be published.
While it can take as long as 60 to 90 days for OMB to review a rulemaking and make recommendations for changes, sources at DOT have said, off the record, that the OMB has agreed to "fast track" the rule, and that the agency has been working closely with the White House during the rewrite.
Dave Osiecki, senior vice president at American Trucking Associations, met with OMB officials about the rule in early October, and reported that the meeting went well. "They listened, and they asked very good questions," he said. "Only time will tell whether we made an effective case."
Legal battles
FMCSA is revising the rule in order to resolve a long-running legal fight with Public Citizen, the Teamsters union and other groups. Twice since 2003 these groups won rulings in which the court ordered the agency to tighten work hours, and each time the agency came back with a defense of the rule. Then in 2009 the agency reversed course, agreeing to revisit the rule while Public Citizen suspended its suit. Public Citizen reserved the right to renew its suit if it does not like the new rule.
The rule was originally scheduled to be published last summer under a settlement agreement with the plaintiffs. However, when the FMCSA decided to add four new studies to the rulemaking process last spring, they gave the agency until Oct. 28 to issue the final rule.
Even if the deadline is met, the most likely outcome of this process will be more uncertainty for the trucking industry. If the agency decides to keep the changes it has proposed, ATA will sue, Osiecki said. And if it sticks with the rule as is, Public Citizen will renew its suit. A final rule that falls somewhere in between could lead in any direction.
If ATA sues, the process will begin with a request for a stay of the new rule pending completion of judicial review, Osiecki said.
Court review of a case like this typically takes a year to 18 months, said Ken Siegel, a veteran transportation attorney with the Washington, D.C., firm of Strasburger and Price. On top of that, if the rule contains significant changes, the agency is likely to schedule a year or two for implementation, he said.
In the meantime, there has been action in Congress to block the rules, with Republican leaders in both chambers calling on the DOT, in a letter to Transportation Secretary Ray LaHood, to keep the current rule to avoid burdening the trucking industry with costly and unnecessary regulations. New Hampshire Republican Senator Kelly Ayotte even introduced a measure to block the pending rewrite of the hours of service rule.
Changes
The agency has proposed many changes, key among them a possible reduction in daily driving time from 11 to 10 hours.
Another proposed change would give drivers a one-hour break during the day by limiting actual duty time within the 14-hour driving window to 13 hours. And a third significant change would modify the 34-hour restart to include two periods between midnight and 6 a.m., to be used only once a week.
The trucking and shipping community view these possible changes with alarm, arguing that they will do nothing to improve safety and will add significant costs to doing business.
ATA's Osiecki told OMB that if the proposed rule becomes final it will lead to lower wages for hundreds of thousands of drivers, greater costs for carriers and billions in lost productivity.
In a letter to Cass Sunstein, administrator of information and regulatory affairs at OMB, Osiecki applauded the Obama administration's commitment to streamlining regulatory requirements and eliminating red tape. The pending hours rule is a prime candidate for OMB review in light of this commitment, Osiecki said.
Enforcement needs time to prepare
The Commercial Vehicle Safety Alliance, which represents the state police who must enforce the hours rule, is concerned that if the rule is not published on schedule, the rulemaking process won't give enforcement officials enough time to prepare for changes, said executive director Steve Keppler.
For starters, FMCSA's ability to meet the Oct. 28 deadline is an issue, he said. CVSA sends out the ballot for next year's Out of Service Criteria in November in order to meet the April 1 deadline.
"If there's no resolution to the rule by that time it could present some challenges on our end," Keppler said. "If there are changes to the rule we need time to discuss and deliberate about changes to the OOS criteria."
Another issue is time for training. "Most states do their in-service training during the winter. If there's no final rule by that time, it presents issues for training and software updates," he said.
CVSA, by the way, supports the rules as they are today. "The agency needs more research to justify the change," Keppler said.
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By Truckinginfo Staff
The Federal Motor Carrier Safety Administration faces a deadline of this Friday to publish its final hours of service revised rule, but it is looking increasingly doubtful the agency will be able to meet the deadline.
The rule is scheduled to be published Oct. 28, but as of last night it still had not been sent from the Department of Transportation to the White House Office of Management and Budget, which must clear it before it can be published.
While it can take as long as 60 to 90 days for OMB to review a rulemaking and make recommendations for changes, sources at DOT have said, off the record, that the OMB has agreed to "fast track" the rule, and that the agency has been working closely with the White House during the rewrite.
Dave Osiecki, senior vice president at American Trucking Associations, met with OMB officials about the rule in early October, and reported that the meeting went well. "They listened, and they asked very good questions," he said. "Only time will tell whether we made an effective case."
Legal battles
FMCSA is revising the rule in order to resolve a long-running legal fight with Public Citizen, the Teamsters union and other groups. Twice since 2003 these groups won rulings in which the court ordered the agency to tighten work hours, and each time the agency came back with a defense of the rule. Then in 2009 the agency reversed course, agreeing to revisit the rule while Public Citizen suspended its suit. Public Citizen reserved the right to renew its suit if it does not like the new rule.
The rule was originally scheduled to be published last summer under a settlement agreement with the plaintiffs. However, when the FMCSA decided to add four new studies to the rulemaking process last spring, they gave the agency until Oct. 28 to issue the final rule.
Even if the deadline is met, the most likely outcome of this process will be more uncertainty for the trucking industry. If the agency decides to keep the changes it has proposed, ATA will sue, Osiecki said. And if it sticks with the rule as is, Public Citizen will renew its suit. A final rule that falls somewhere in between could lead in any direction.
If ATA sues, the process will begin with a request for a stay of the new rule pending completion of judicial review, Osiecki said.
Court review of a case like this typically takes a year to 18 months, said Ken Siegel, a veteran transportation attorney with the Washington, D.C., firm of Strasburger and Price. On top of that, if the rule contains significant changes, the agency is likely to schedule a year or two for implementation, he said.
In the meantime, there has been action in Congress to block the rules, with Republican leaders in both chambers calling on the DOT, in a letter to Transportation Secretary Ray LaHood, to keep the current rule to avoid burdening the trucking industry with costly and unnecessary regulations. New Hampshire Republican Senator Kelly Ayotte even introduced a measure to block the pending rewrite of the hours of service rule.
Changes
The agency has proposed many changes, key among them a possible reduction in daily driving time from 11 to 10 hours.
Another proposed change would give drivers a one-hour break during the day by limiting actual duty time within the 14-hour driving window to 13 hours. And a third significant change would modify the 34-hour restart to include two periods between midnight and 6 a.m., to be used only once a week.
The trucking and shipping community view these possible changes with alarm, arguing that they will do nothing to improve safety and will add significant costs to doing business.
ATA's Osiecki told OMB that if the proposed rule becomes final it will lead to lower wages for hundreds of thousands of drivers, greater costs for carriers and billions in lost productivity.
In a letter to Cass Sunstein, administrator of information and regulatory affairs at OMB, Osiecki applauded the Obama administration's commitment to streamlining regulatory requirements and eliminating red tape. The pending hours rule is a prime candidate for OMB review in light of this commitment, Osiecki said.
Enforcement needs time to prepare
The Commercial Vehicle Safety Alliance, which represents the state police who must enforce the hours rule, is concerned that if the rule is not published on schedule, the rulemaking process won't give enforcement officials enough time to prepare for changes, said executive director Steve Keppler.
For starters, FMCSA's ability to meet the Oct. 28 deadline is an issue, he said. CVSA sends out the ballot for next year's Out of Service Criteria in November in order to meet the April 1 deadline.
"If there's no resolution to the rule by that time it could present some challenges on our end," Keppler said. "If there are changes to the rule we need time to discuss and deliberate about changes to the OOS criteria."
Another issue is time for training. "Most states do their in-service training during the winter. If there's no final rule by that time, it presents issues for training and software updates," he said.
CVSA, by the way, supports the rules as they are today. "The agency needs more research to justify the change," Keppler said.
Please feel free to comment to any of the posts on this blog. The intent is to start discussions on the subject content. If you have articles for post or comments about the blog in general please contact: Thank you Preferred Logistics----------- www.preferredlogistics.biz
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