Grasping at laws

The bureaucrats at the Federal Motor Carrier Safety Administration really, really don’t want to change the current hours-of-service regulations again. Can you blame them?

Consider how frustrating this rulemaking has been already for FMCSA and its predecessor, the Office of Motor Carriers of the Federal Highway Administration. Nearly 10 years ago, Congress ordered FHWA to undertake a rulemaking. After the agency issued an advance notice of proposed rulemaking in 1996, it suffered years of criticism that it was dragging its feet on issuing a proposed rule.

FMCSA’s May 2000 proposed rule met the resounding disapproval of the trucking industry, which got its friends in Congress to block a final rule. FMCSA went back to the drawing board and already had planned to issue a rule in the spring of 2003 when safety advocate Public Citizen and its allies sued the Department of Transportation to issue a number of overdue rulemakings, including revisions to the hours rules.

After FMCSA issued the rule in April 2003, Public Citizen promptly sued again on various grounds. In July 2004, a federal appeals court sided with Public Citizen and ordered a new rulemaking. Congress kept the current rules in place until October 2005. Then FMCSA in January reissued as a notice of proposed rulemaking its current regulations, seeking comment by March 10.

I am fatigued just summarizing the rulemaking’s history. I can only imagine how tiresome it must be for FMCSA.

So things stood when last month the Bush administration offered some changes to its proposed highway program reauthorization, including a curious provision. The regulation issued in April 2003 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.” FMCSA would, however, retain authority to modify the rule through normal rulemaking.

In effect, DOT wants to render the appeals court ruling moot by writing the rules into statutory law retroactively. A separate legislative proposal would narrow the scope over FMCSA’s duty to consider driver health, which was the central controversy in the litigation. Citing positive results from the current rules and the strain on FMCSA resources, DOT said it “believes that it would be beneficial to end the prolonged struggle over hours of service and to ratify permanently the 2003 rule.”

What the Bush administration is seeking will be controversial and is hardly a done deal. The House Transportation Committee leaders did not include the measures in its reintroduced highway bill (H.R. 3), although that doesn’t mean they oppose the plan. Public Citizen and other safety advocates will fight it and try to portray the legislation as a gift to a special interest.

In general, Congress should leave rulemaking processes alone. Normally, the tension between courts and federal agencies leads to reasonable compromises that are roughly acceptable to the stakeholders. Given the history of this rulemaking, however, DOT and FMCSA have correctly concluded that Congress should step in.

The highly critical opinion issued by the appeals court suggests that significant changes in the hours rules would be needed to withstand another inevitable round of litigation. But the trucking industry’s support of the current rules is fragile. A regulation that is acceptable to the appeals court surely will be unacceptable to trucking. If that happens, don’t be surprised if Congress blocks the revised regulation by zeroing out funding for it or through some other move. And on the struggle would go.

The current rules may need some tweaking, but for now, it’s more important to end the uncertainty.