U.S. Likely to Miss Deadline on HOS Rule, Officials Say

GRAPEVINE, Texas — The Federal Motor Carrier Safety Administration’s top official said the agency is working feverishly to complete a controversial final hours-of-service rule, but trucking executives predicted last week that FMCSA won’t finish by an Oct. 28 deadline set by a U.S. court.

“We continue to work toward the Oct. 28 date,” FMCSA Administrator Anne Ferro told the American Trucking Associations hours-of-service panel at a meeting here on Oct. 16. “As it gets closer, of course, we have to be realistic.”

At Transport Topics’ press time, the final rule had yet to be sent to the White House Office of Management and Budget, which is required to review it before the rule can be published, said Dave Osiecki, an ATA senior vice president.

“It takes time,” Osiecki told TT. “It just doesn’t seem possible” to meet the deadline.

In a regulatory briefing at ATA’s Management Conference & Exhibition, Osiecki said that while there probably have been informal discussions between OMB and the Department of Transportation leadership, the formal OMB review has not begun.

The proposed rule was the result of a settlement FMCSA reached with advocacy groups that have twice sued successfully in federal court to block the agency’s revision of job limits established around the time of the Great Depression.

In its December proposal, 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 the rest periods fall between midnight and 6 a.m. (1-3, p. 1).

ATA opposes the proposed rule and has threatened to file a lawsuit if it reduces driving hours.

ATA President Bill Graves and three ATA staff members made their case for keeping the current rule in an Oct. 7 meeting with Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs.

“We made hopefully a pretty effective case that there’s no evidence that the current rule is problematic,” Osiecki said of the meeting. “I think all four of us from the ATA side came away thinking that the OMB staff understood our arguments.”

In a related development, Sen. Kelly Ayotte (R-N.H.) last week said she planned to introduce a measure that would stop FMCSA from implementing its planned HOS revision.

Ayotte said she was considering an amendment to the 2012 transportation appropriations bill to block funds to “finalize, enforce, or implement” the hours rule.

“This is yet another heavy-handed federal regulation that would disrupt business operations and increase costs for the trucking industry and consumers, and New Hampshire’s truckers are rightfully concerned about the impact of these changes,” Ayotte said in an Oct. 19 statement.

The Senate appropriations committee had not considered the amendment as of TT press time, and Transportation Secretary Ray LaHood sent a letter to Ayotte urging her to reconsider.

LaHood’s letter hinted that the hours rule could contain some significant changes.

“The amendment would prevent FMCSA 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,” LaHood wrote.

Sen. Patty Murray (D-Wash.), the top Democrat on the subcommittee that crafted the transportation spending bill, agreed with LaHood.

“Sen. Murray opposes this amendment because it would erode the FMCSA’s ability to prevent accidents and keep roads safe,” Eli Zupnick, a spokesman for Murray, told TT.

Attorneys representing Public Citizen and Advocates for Highway and Auto Safety, parties in the HOS lawsuit, said they had not been notified by FMCSA about possible delays in meeting the Oct. 28 deadline.

“It’s a frustration that the hours-of-service issue is lingering on,” outgoing ATA Chairman Barbara Windsor said at a news conference at MCE last week. “We all anticipated that by Oct. 28 we would see it in final, but now we find out it hasn’t even reached OMB.”

The OMB review process can routinely take between 60 and 90 days, said former FMCSA administrator Annette Sandberg, even for less controversial rules than the proposed HOS revision, which received 40,000 comments from myriad stakeholders.

“I’ve never seen OMB clear a regulation in 12 days,” Sandberg told TT last week. “I will be shocked to see the rule clear by the 28th.”

Staff Reporters Timothy Cama and Michele Fuetsch contributed to this story.