The Department of Transportation has completed work on a final driver hours-of-service regulation and sent it to the White House for a final review. Along with related regulations concerning electronic onboard recorders, the hours rules are the most significant regulations on the Federal Motor Carrier Safety Administration’s plate as the Bush administration tries to wrap up key rulemakings before it ends in January.
Details regarding the new rules will not be disclosed until the White House Office of Management and Budget (OMB) completes its review and the rules are published in the Federal Register.
The regulations now pending at OMB represent FMCSA’s third attempt at a rewrite of the regime that had stood for more than six decades. Following a lawsuit by Public Citizen and others, the U.S. Court of Appeals for the District of Columbia invalidated the first attempt in July 2004 on the grounds that the agency had failed to consider the effects of the rules on driver health as required by Congress.
In August 2005, FMCSA issued new rules that sharply limited the use of sleeper berths for split rest, but it left other key elements in place, including the 11 hours of driving and the 34-hour restart. Public Citizen and its allies sued again, and the appeals court struck down the rules once again in July 2007, this time on the grounds that FMCSA had not provided adequate notice of its methodology for analyzing crash risk.
In December of last year, FMCSA issued an interim final rule holding the current regulations in place and requesting comments and data to help in its reconsideration of the regulations. Because the appeals court invalidated the current hours rules on procedural grounds, it has yet to consider the merits of Public Citizen’s challenge. Another lawsuit following the third final rule is virtually inevitable.
Four other FMCSA rulemakings – final rules regarding intermodal equipment, new entrant fitness and medical certification; and a proposed rule to establish a National Registry of Certified Medical Examiners – are under final review by OMB.
