FMCSA unable to publish final hours rule by court deadline

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The Federal Motor Carrier Safety Administration on Friday, Oct. 28, announced that it would not be able to publish its final rule for truck drivers’ hours of service by Friday’s court-imposed extended deadline.

“The petitioners have agreed to extend the October 28, 2011, deadline for publication of a final hours-of-service rule,” the agency said in a statement Friday, Oct. 28. “FMCSA will continue to work toward publishing a final rule as quickly as possible. The parties to the settlement agreement will file their next status report with the court on November 28, 2011.”

The U.S. Court of Appeals for the District of Columbia originally set the Federal Register publication deadline for July 26, which it later extended to Oct. 28. FMCSA sent the proposal to U.S. Transportation Secretary Ray LaHood Aug. 11. The Office of Management and Budget was to review it before publication, but OMB had not received the rule this week, leading to speculation that FMCSA would be unable to meet the court deadline.

In 2009, FMCSA had entered into a settlement agreement with safety advocacy groups and the Teamsters union to revisit the 2008 rule and publish a revised rule. This agreement stipulated if the agency produces a “substantially different” rule from the current one, this “may” eliminate the need for further judicial review.

American Trucking Associations President and Chief Executive Officer Bill Graves and Chairman Dan England have questioned LaHood’s contention in a letter to Congress that the administration is drafting a new hours-of-service proposal based on the “most comprehensive and up-to-date data and analysis.”

U.S. Sen. Kelly Ayotte (R-N.H.) last week proposed to add language to the transportation appropriations bill (H.R. 2112) that would block the planned changes to the hours-of-service regulations. The measure, Senate Amendment 754, states that “none of the funds made available under this heading may be used to finalize, enforce, or implement the hours-of-service regulations proposed by the Federal Motor Carrier Safety Administration on December 29, 2010.” The Senate is expected to consider the transportation appropriations bill within the next week or so.

LaHood sent a letter to Ayotte asking the senator to drop the measure. “The amendment would prevent the Federal Motor Carrier Safety Administration from applying the most comprehensive and up-to-date data and analysis to the issue of driver fatigue and allowable hours of service,” LaHood wrote. “The final rule, if put in jeopardy, potentially undermines the entire regulatory process.”

In a letter to LaHood dated Friday, Oct. 21, Graves and England said the secretary’s contention was well off-base. “There is little or no comprehensive up-to-date evidence, data or science supporting FMCSA’s proposal,” ATA wrote. “FMCSA readily admitted it did not have sufficient data on which to base a driving time limit change, yet the agency argued for and stated it ‘currently favors’ reducing the limit.”

Under the current proposal, FMCSA is, among other changes, considering whether to reduce the daily driving limit from 11 hours to 10 hours and has proposed to limit the 34-hour restart provision by requiring that it include two periods from midnight to 6 a.m. and limiting its use to once per week. ATA and the Owner-Operator Independent Driver Association have said the proposal is costly and unnecessary since studies indicate safety improvements under the 2008 rule.

House Speaker John Boehner and Majority Leader Eric Cantor wrote a letter to President Obama Oct. 5 asking the president to withdraw the proposed hours-of-service revision because its costs would hurt the U.S. economy. “Current rules have led to record low levels of crashes and fatalities involving trucks,” Boehner and Cantor wrote, adding that the White House and Congress should work together to prevent a potential “$1 billion in regulatory burden.”

Their letter came two weeks after a similar Sept. 23 letter to Obama from House Transportation Committee Chairman John Mica. The Florida Republican wrote that the proposed rule would be an unnecessary and costly regulatory burden on truckers given the improved record of truck safety since the 2008 rule became effective.

Three other Republican committee members signed Mica’s letter: Tennessee’s John Duncan, Highway Subcommittee chairman; Pennsylvania’s Bill Schuster, chairman of the Railroads, Pipelines and Hazardous Materials Subcommittee; and Missouri’s Sam Graves, Small Business Committee chairman. Should FMCSA proceed with the new rule, the four House members would weigh options that could include hearings or legislation.

On Aug. 30, Obama responded to Boehner’s request to review pending regulations with compliance costs of more than $1 billion. Seven proposed rules qualified, including the HOS proposal at more than $1 billion and electronic onboard recorders at $2 billion. Soon after issuing that list, Obama withdrew the U.S. Environmental Protection Agency’s ozone proposal, which would have been by far the costliest at $19 billion to $90 billion.

Meanwhile, U.S. Democrat Sens. Barbara Boxer of California, Jay Rockefeller of West Virginia and Frank Lautenberg of New Jersey backed the proposal in a letter to Obama on Wednesday, Oct. 26, saying the plan would reduce fatigue-related crashes and ensure flexible working hours while addressing issues noted in U.S. Court of Appeals decisions to overturn the 2003 and 2005 HOS rules. Boxer is the Environment and Public Works Committee chairman, while Rockefeller chairs the Commerce Committee. Lautenberg heads the Commerce Committee’s Surface Transportation subcommittee.