Hours Away from HOS Certainty

If you’re biting your nails watching the clock waiting for the new final rule on truck driver hours of service to hit the presses today you might as well relax — it’s not going to happen. Yes, the final driver hours rule was supposed to be published Oct. 28, but like a truck on the Washington Beltway at rush hour, it’s been delayed.

In fact, as of today, the rule hasn’t even made it to the White House Office of Management and Budget for final review. The OMB currently has 13 rulemakings from the Department of Transportation on its plate, including two from the Federal Motor Carrier Safety Administration. The hours-of-service rule isn’t one of them.

(Check http://www.reginfo.gov/public/jsp/Utilities/index.jsp for a listing of current rules on the OMB’s desk. The site is a greatresource.)

That means the FMCSA is in violation of its court settlement with the Teamsters union, consumer advocates Public Citizen and other highway safety groups that suspended their legal challenge to the current rules in 2009 on the basis the agency draw up new rules by July 2011, a deadline that wasextended until Oct. 28.

Trucking Info’s Oliver B. Patton reports today that the agency has pushed its HOS deadline out buy at least a month, promising to file a status report with the court and the other parties to the settlement Nov. 28. Technically, those challengers could resume their lawsuit, though they’re likely to wait for the final rule before acting.

So the FMCSA missed its delivery window. But remember, they write the rules, which means they don’t just run out of hours.

When the HOS rule does eventually emerge and is published in the Federal Register, I expect one group or another (and perhaps all of them) will pounce on it.

If the FMCSA keeps the current driver work rule more or less intact, the Teamsters union and its allies are likely to resume their lawsuit. And they’ve successfully challenged the HOS rules in court twice since 2003. If the FMCSA goes ahead with its proposed changes, reducing driving hours per day to 10 and amending the weekly restart provision, the American Trucking Associations will certainly sue to and try to get a federal court to block the new rule until the legal battle is lost or won.

It’s increasingly likely that Congress will step in to stop the proposed changes from taking effect and keep current rules in place. House Republicans could add language to the surface transportation spending bill or other legislation that would block FMCSA from changing the rules. Rep. Kelly Ayotte, R-N.H., already introduced such an amendment to the fiscal 2012 transportation appropriations bill.

That’s exactly what happened in 2000 when Congress derailed the Clinton administration’s proposed HOS reform and in 2004 when Congress stepped in again to keep the 11-hour rule and 34-hour restart in place after a federal court vacated the2003 rule. Powerful Senate Democrats back the proposed changes, but will they be willing to sacrifice a DOT appropriations bill for the sake of HOS reform?

This battlecould run on through 2012 and into 2013, as the FMCSA and various interest groups duke it out in federal court or on Capitol Hill. And if the new rule is shot down by Congress or thrown out by a court, the FMCSA will have to go back to the drawing board yet again to craft another proposed HOS rulemaking.

We’ve got more than a few hours to go before this issue is resolved.

Contact William B. Cassidy at wcassidy@joc.com. Follow him on Twitter at @wbcassidy_joc

For the full story: Log In, Register for Free or Subscribe