FMCSA May Lack Enough Time to Revise HOS by Court Deadline, Industry Execs Say

This story appears in the Nov. 29 print edition of Transport Topics.

Trucking industry officials said they question whether the Federal Motor Carrier Safety Administration will be able to complete its work on a new hours-of-service rule in time to comply with a court order.

The agency sent its latest HOS proposal, which is believed to contain cuts in driving time and other changes, to the White House in late July, complying with the first step of a federal court order that it complete a revision by July 26, 2011.

But White House review of that regulation is taking an unusually long time, leaving the agency’s ability to meet the July 2011 deadline for a new final rule in doubt. The White House Office of Management and Budget had been expected to finish its review by October or early November.

“This delay means FMCSA is going to have precious little time to review, understand and act upon the comments from the public,” said Dave Osiecki, senior vice president for policy and regulatory affairs with American Trucking Associations.

When all is said and done, he said, FMCSA is “going to be down to about 60 days” to review the comments and write a final rule.

In 2009, as part of a settlement with Public Citizen and other groups, FMCSA agreed to issue a new hours-of-service rule.

Public Citizen and the other groups successfully sued FMCSA twice since the agency first revised the driving limits in 2003. The 2009 settlement put a third lawsuit on hold while the agency revised the rule again.

Osiecki said that, working back from that deadline, including the usual 90-day OMB review, the rule will need to be sent to the White House by April.

“If FMCSA publishes the proposal in early December, and they provide the public 60 days to comment, that puts the end of comment period into early February,” he said. “So, FMCSA basically has February and March to review, understand and draft the final rule. It must then go through the internal FMCSA and DOT processes before they get the rule to OMB.”

FMCSA spokeswoman Candice Tolliver told Transport Topics the agency “will meet the court-ordered deadline to publish an HOS final rule.”

“I know they’re committed to making it happen, but until they see the comments they can’t make those promises,” said Stephen Keppler, executive director of the Commercial Vehicle Safety Alliance. “Regardless of what happens, there’s going to be a lot of people commenting on the rule, and that’s going to take a long time for the agency to wade through those comments. I mean, if there’s 50,000 comments, like the agency received previously, it’s going to be tough.”

Keppler said the expected high number of comments, coupled with the possibility of significant rule changes, create “some potential risk of not meeting that timeline, particularly since it’s taking some time to review at OMB.”

With the delay at OMB, Osiecki said FMCSA will have “very little time to be dealing with such an important issue,” and it was “not advisable” to rush through such a complicated regulation.

At this point, he said it was “a legitimate option” to consider pursuing some “flexibility in the court’s deadline of July 26, 2011.”

Greg Beck, an attorney with Public Citizen, said the advocacy group has not begun discussing a possible delay in the 2011 deadline.

“We haven’t discussed it with them, but we were aware from the beginning that OMB was the unknown factor,” he said. “We were aware that it could be a problem, and we tried to build in some time for that.”

Beck thought it was possible that OMB “can shave some time off [reviewing the final rule], given that they’ve taken some extra time now.”

The delay itself is leading officials to speculate the agency may have significant changes in store for the rule, but no one knows exactly what the regulation will say.

When asked to speculate about the delay, which now approaches nearly  a full month, Osiecki said it was not “too big of a stretch to believe that there may be concerns about reducing the drive time, given past findings by the agency in their own cost-benefit analyses.”

Specifically, he cited FMCSA’s analysis in support of the 2008 final rule that said: “. . . ‘eliminating the 11th hour is unlikely to be cost-effective under any reasonable set of circumstances’ — that’s a quote from the agency’s own analysis.”

“It’s the best-kept secret around,” Keppler said of the proposal’s content.

Given the opposing views on the rule presented to the agency by the advocacy groups that have sued and industry groups seeking to retain the current rule, Keppler said the final rule was unlikely to please both sides.

“It seems to me there may be some things in there that cause people some consternation,” he said.

Beck said the regulatory process was “an opaque process, and we’re as much in the dark as you are on” what the rule might say.