White House seeks to protect hours rules from litigation

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The Bush administration proposed legislation Monday that would convert the current hours-of-service regulations into statutory law, a move that would keep the rules in effect despite a federal court’s action to overturn them.

The White House also is proposing to limit the Federal Motor Carrier Safety Administration’s jurisdiction over driver health to conditions that would cause death or serious injury, FMCSA Administrator Annette Sandberg said Monday.

The appeals court ruled in July that FMCSA had failed to consider driver health to the extent the court interpreted its obligation to do so.

Speaking at the American Trucking Associations’ Winter Leadership Meeting in Washington, D.C., Sandberg said the failure of Congress to enact a highway programs authorization bill last year presented an opportunity to end the litigation initiated by Public Citizen and its allies. In November, Sandberg proposed that the Bush administration ask Congress to make the hours-of-service regulations permanent. “As of Monday, that has been approved,” she told ATA’s board of directors.

Under the Bush administration’s new highway bill proposal, the rules issued in April 2003 and implemented in January 2004 would be “adopted and confirmed as fully legalized, as if it had, by prior Act of Congress, been specifically adopted on the date that rule (including the subsequent technical amendment) was originally issued.”

The proposed legislation would, however, give FMCSA authority to make changes to the rules in the future through the normal rulemaking process.

If enacted by Congress, the proposed legislation would trump the ruling of the U.S. Court of Appeals for the District of Columbia Circuit because the court’s opinion was based on its interpretation of congressional intent.

In an explanation that accompanied its proposal to Congress, the Bush administration said that many motor carriers have reported accident experience under the new regulations that is comparable to, if not better than, their experience under the old rules:

“Definitive statistics on accidents and fatalities are not yet available, but the industry has already concluded that the rule is responsible — directly and indirectly — for producing more rest for drivers, better use of driver time, more efficient handling of freight by shippers and receivers, and increased productivity for motor carriers.”

The explanation further states that work on the hours rules is time-consuming and involves a tremendous allocation of agency resources:

“Because the safety and operational results of the 2003 final rule appear to be favorable, and FMCSA may be required to undertake additional rulemaking activities without a significant increase in staff, the department believes that it would be beneficial to end the prolonged struggle over hours of service and to ratify permanently the 2003 rule. This will also enable the motor carrier industry and state and federal enforcement officials to plan their training and compliance activities without having to worry about the expense and effort of adapting to some as-yet-unknown hours-of-service regulation.”

The proposed legislation on driver health would establish that FMCSA’s authority over driver health in all regulations is limited to ensuring that “the operations of commercial motor vehicles are free from recognized hazards that cause or are likely to cause death or serious physical harm to the operators.”

Sandberg told reporters that the court’s broad reading of FMCSA’s obligation to consider driver health made it very difficult for the agency to pinpoint whether health conditions were truly related to the hours rules or to numerous other factors, including drivers’ own decisions regarding exercise, diet and so on.

The White House hopes to gain enactment of a new highway bill by May. If Congress does enact the bill and includes the codification of the hours rules into law, FMCSA will stop work on its current rulemaking to reconsider the regulations, Sandberg said. She emphasized, however, that in the meantime, the agency will proceed with the rulemaking and strongly encouraged interested parties to submit comments. Comments are due March 10.

To view FMCSA’s notice of proposed rulemaking, visit http://dms.dot.gov/search and search Docket No. 19608.