And Now for Something Not So Completely Different

October 11, 2011

Politics. It is how the sausage factory of lawmaking works—or does not work.

The latest round comes from House Speaker John Boehner and Majority Leader Eric Cantor in an October 5, 2011 letter to President Obama. “Current rules have led to record low levels of crashes and fatalities involving trucks,” Boehner and Cantor wrote. The White House and Congress should work together to lift a potential “$1 billion in regulatory burden.”

This action follows a September 23 letter to the President from Florida Representative John Mica, Chairman of the House Transportation and Infrastructure committee. The letter says that House Transportation Committee leaders will "aggressively" block any changes to the hours-of-service rules that would cut driver's hours.

Three other committee members signed Mica’s letter:  Tennessee’s John Duncan (R), Highway subcommittee chairman; Pennsylvania’s Bill Schuster (R), chairman of the Railroads, Pipelines, and Hazardous Materials subcommittee; and Missouri’s Sam Graves (R), committee member and Small Business committee chairman. Should FMCSA proceed with the new rule, these four House members allude to options including hearings or legislation that "will aggressively oversee any attempt by the U.S. DOT to impose new regulatory burdens on the trucking industry by making changes to the current hours-of-service rules."

On Aug. 30, President Obama responded to Boehner’s request for 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 (EOBR) at $2 billion. Soon after issuing that list, Obama withdrew the U.S. Environmental Protection Agency ozone proposal, which would have been by far the costliest at $19 billion to $90 billion.

Currently the EOBR rule is in a shambles, five weeks after the U.S. Seventh Circuit Court of Appeals threw out the 2010 rule, chiding FMCSA for failing to ensure that the devices would not be used to harass truck drivers. FMCSA officials remain silent on whether they will restart the rule-making process or issue a supplementary rule that addresses the issue raised by the court.

On the HOS rule, there is precedent for congressional action. Congress got involved in the process in 2004, when a federal Appeals Court said that the then-new rule increasing driving hours from 10 hours to 11 hours failed to account for drivers’ health. In that action Congress passed a measure that allowed the rule to stand while FMCSA made changes to satisfy the court.

Further action in court brought another round of changes to the rules, another set of lawsuits, and another U.S. Federal Court action. In the current action, started on March 9, 2009, Advocates et al. (Advocates for Highway and Automotive Safety, Public Citizen, the International Brotherhood of Teamsters, and the Truck Safety Coalitions) filed a petition for review of the 2008 rule in the DC Circuit Court. In October of 2009 DOT, FMCSA, and Advocates et al. reached a settlement agreement. DOT and FMCSA agreed to submit a new HOS Notice of Proposed Rule Making (NPRM) to the Office of Management and Budget by July 26, 2010, and to publish a final rule by July 26, 2011. The parties filed a joint motion to hold the 2009 lawsuit in abeyance, pending the publication of the notice to publish. The agreement stipulated that if FMCSA produced a “substantially different” rule from the current one, this might eliminate the need for further judicial review.

The rule was published in December 2010, and the final rule is yet to be published. The court allowed an extension to October 28 to allow FMCSA to consider additional data regarding driver fatigue provided by the University of Virginia.

FMCSA appears likely to publish an HOS final rule by its court-ordered October 28 deadline. The agency sent the proposal to Transportation Secretary Ray LaHood on August 11, and after LaHood finishes consideration of the proposal, the Office of Management and Budget will review it before publication.

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