DOT Moves Driver Hours Rule to White House for OMB Review

This story appears in the Nov. 7 print edition of Transport Topics.

The Department of Transportation advanced its hours-of-service rule revision to the White House Office of Management and Budget last week, the final procedural step before the public gets a first glimpse of the new regulation.

DOT submitted the rule to OMB only four days after the Federal Motor Carrier Safety Administration announced that it would not complete the rule in time to meet a court settlement deadline of Oct. 28.

The agency, which gave no reason for the delay, said it was working to complete the rule “as soon as possible” but would not give a firm date.

Dave Osiecki, an American Trucking Associations senior vice president, said OMB officials could take as little as a few weeks to 90 days or more to give the rule a green light.

The proposed rule was the result of a settlement FMCSA reached with advocacy groups that have sued twice successfully in federal court to block the agency’s revision of driving limits dating back to 1938.

When it announced the hours proposal in December, FMCSA said it was leaning toward cutting driving hours back to 10 from 11 and modifying the 34-hour reset provision by requiring that it include two rest periods of at least six hours and mandating that they fall between midnight and 6 a.m.

Gregory Beck, an attorney representing Public Citizen and the Teamsters union, plaintiffs in the federal lawsuit that forced the revised rule, said he was disappointed that the agency did not meet the deadline.

“But it seems like they’re close to finishing a final rule,” Beck said. “It seems like they’re working in good faith to issue a revised rule, and they intend to have something by Nov. 28, which is when we’re supposed to update the court on the status.”

All the parties in the lawsuit are required to issue a status report to a federal judge by Nov. 28.

Beck said FMCSA’s attorney did not give a reason for the delay.

“From what I can tell they’re just still working on it,” Beck said. “It’s important that they get it right because there are important issues at stake about public safety and the health of drivers. We want a well-thought-out rule, and we don’t want them to cut corners on it.”

Henry Jasny, co-counsel for the plaintiffs, also said that he was disappointed that FMCSA missed its deadline.

“But we have this built-in court deadline coming up Nov. 28,” Jasny said. “It looks like we’re toward the end. But we’ll have to wait and see what they say about how long OMB will take.”

Jasny added, “We couldn’t get into court much sooner than that anyway, even if we were upset about it. We’re going to have to file a joint statement about where the case is headed on that date.”

“We’re more interested in them getting it right than the fact that it will take another 30 days.”

Jasny said that even though it can take OMB up to 90 days to clear a rule, he’s hopeful it will take less time since both ATA and the plaintiffs have had private meetings with OMB officials.

“They’re well versed on the issues,” Jasny said. “They’ve seen this rule before. So we’re hoping it doesn’t take the full 90 days.”

If the agency does publish a final rule that includes a cut in driving time it will likely be headed back to court.

ATA, which has said the agency cannot justify cutting hours in light of the industry’s good safety record, has pledged to file a lawsuit.

FMCSA also in recent weeks has been getting pressure from Congress to leave its current hours rule in place.

House Speaker John Boehner (R-Ohio), and Majority Leader Eric Cantor (R-Va.), have asked President Obama to withdraw the pending rewrite and stick with the current rule. The new rule, they said, would cost the industry $1 billion.

Rep. John Mica (R-Fla.), chairman of the House Transportation Committee, also sent warnings to Obama that he will do whatever he can to block implementation of the new rule if it goes forward.

In the Senate, Sen. Kelly Ayotte (R-N.H.) introduced a measure to block the hours rule revision, but Senate Majority Leader Harry Reid (D-Nev.) blocked a vote on the amendment that would have been included in the transportation appropriations bill passed last week.

Ayotte’s office declined to comment on the amendment’s fate.

But also last month, three Democratic senators sent a letter to Obama supporting FMCSA’s proposed rule.

“The DOT’s proposal would permit increased flexibility for CMV drivers to get the adequate rest when they need it and to adjust

their schedules to account for unanticipated delays without sacrificing a full day’s work,” said the letter signed by Sens. Frank Lautenberg (D-N.J.), John Rockefeller (D-W.Va.) and Barbara Boxer (D-Calif.).