FMCSA Seeks One-Year Delay to Address Court’s HOS Ruling
By Sean McNally, Senior Reporter
This story appears in the Oct. 1 print edition of Transport Topics.
The Federal Motor Carrier Safety Administration asked a federal court for a year-long delay in implementing its decision to strike down two parts of the agency’s driver hours-of-service rule.
In its first substantive comment since the U.S. Court of Appeals for the District of Columbia decided in July to invalidate the rule’s 11 hours of driving and letting drivers restart their workweek after a 34-hour rest, FMCSA backed a request from American Trucking Associations for an eight-month stay and asked for even more time.
ATA’s petition “made a strong case for maintenance of the status quo pending a new rulemaking,” FMCSA said in papers filed with the court Sept. 21.
“The agency intends to conduct a rulemaking to consider new data, allow notice and comment on any proposed methodology and address the procedural issues identified by the court,” FMCSA said. “The agency expects that process to take approximately 12 months and therefore urges the court to grant a stay of 12 months, rather than the eight months requested by ATA.”
If a stay is not granted, FMCSA said it could issue “an interim final rule to avoid substantial disruption to trucking operations and hours-of-service enforcement.”
The agency said if it did nothing to put some regulation in place, some people might argue that there is no hours limit in place, “because the daily driving limit in the 2005 rule has been vacated, and the limit in the pre-2003 rule has been rescinded.”
The court based its July decision striking down the 11th hour of driving and the 34-hour restart on findings that FMCSA didn’t provide enough time for comments and didn’t disclose the research it used to support adding one hour to the allowable driving time. FMCSA and ATA have asserted those issues are “procedural,” and the agency indicated it may try to buttress those provisions with more data, rather than drastically change the rule.
“As ATA explains,” FMCSA said, “this court’s decision did not foreclose issuance of a new rule that contains the 11-hour and 34-hour provisions, assuming the agency provides the requisite notice and comment and adequately explains its reasoning.”
Some industry observers said FMCSA’s filing indicated it would try to bolster its case for the current rule rather than change it.
“If I were to read it literally,” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance, “I would say . . . [FMCSA officials] are going to lay out their data on the provisions and allow the public to comment on it, rather than propose something different.”
CVSA is one of several groups that filed motions in support of ATA’s request for a stay (9-24, p. 1).
Dave Osiecki, ATA vice president of safety, security and operations, agreed, saying, “Not only did they support the request for the stay, but they did that apparently so they could initiate a rulemaking to better explain their policy decisions relating to the driving time limit and the 34-hour restart.”
In its own Sept. 21 filing, the advocacy group Public Citizen urged the court not to grant the stay and expressed concern that the rule “will yet again contain the 11-hour daily driving limit and 34-hour restart provisions that have twice been vacated by unanimous panels of this court.”
In 2004, the court vacated the entire rule, not just the provisions currently in question, saying FMCSA failed to consider the rule’s effects on driver health.
In response, FMCSA issued a rule in 2005 that was substantively the same as the vacated rule, with additional information about the potential effects on the health of drivers.
“The 11-hour limit and 34-hour restart have already been in place too long,” Public Citizen said. “There is no good reason to delay their elimination further.”
Osiecki said ATA would file a response to Public Citizen’s brief on Sept. 28.
This story appears in the Oct. 1 print edition of Transport Topics.
The Federal Motor Carrier Safety Administration asked a federal court for a year-long delay in implementing its decision to strike down two parts of the agency’s driver hours-of-service rule.
In its first substantive comment since the U.S. Court of Appeals for the District of Columbia decided in July to invalidate the rule’s 11 hours of driving and letting drivers restart their workweek after a 34-hour rest, FMCSA backed a request from American Trucking Associations for an eight-month stay and asked for even more time.
ATA’s petition “made a strong case for maintenance of the status quo pending a new rulemaking,” FMCSA said in papers filed with the court Sept. 21.
“The agency intends to conduct a rulemaking to consider new data, allow notice and comment on any proposed methodology and address the procedural issues identified by the court,” FMCSA said. “The agency expects that process to take approximately 12 months and therefore urges the court to grant a stay of 12 months, rather than the eight months requested by ATA.”
If a stay is not granted, FMCSA said it could issue “an interim final rule to avoid substantial disruption to trucking operations and hours-of-service enforcement.”
The agency said if it did nothing to put some regulation in place, some people might argue that there is no hours limit in place, “because the daily driving limit in the 2005 rule has been vacated, and the limit in the pre-2003 rule has been rescinded.”
The court based its July decision striking down the 11th hour of driving and the 34-hour restart on findings that FMCSA didn’t provide enough time for comments and didn’t disclose the research it used to support adding one hour to the allowable driving time. FMCSA and ATA have asserted those issues are “procedural,” and the agency indicated it may try to buttress those provisions with more data, rather than drastically change the rule.
“As ATA explains,” FMCSA said, “this court’s decision did not foreclose issuance of a new rule that contains the 11-hour and 34-hour provisions, assuming the agency provides the requisite notice and comment and adequately explains its reasoning.”
Some industry observers said FMCSA’s filing indicated it would try to bolster its case for the current rule rather than change it.
“If I were to read it literally,” said Steve Keppler, director of policy and programs for the Commercial Vehicle Safety Alliance, “I would say . . . [FMCSA officials] are going to lay out their data on the provisions and allow the public to comment on it, rather than propose something different.”
CVSA is one of several groups that filed motions in support of ATA’s request for a stay (9-24, p. 1).
Dave Osiecki, ATA vice president of safety, security and operations, agreed, saying, “Not only did they support the request for the stay, but they did that apparently so they could initiate a rulemaking to better explain their policy decisions relating to the driving time limit and the 34-hour restart.”
In its own Sept. 21 filing, the advocacy group Public Citizen urged the court not to grant the stay and expressed concern that the rule “will yet again contain the 11-hour daily driving limit and 34-hour restart provisions that have twice been vacated by unanimous panels of this court.”
In 2004, the court vacated the entire rule, not just the provisions currently in question, saying FMCSA failed to consider the rule’s effects on driver health.
In response, FMCSA issued a rule in 2005 that was substantively the same as the vacated rule, with additional information about the potential effects on the health of drivers.
“The 11-hour limit and 34-hour restart have already been in place too long,” Public Citizen said. “There is no good reason to delay their elimination further.”
Osiecki said ATA would file a response to Public Citizen’s brief on Sept. 28.
