Washington Insider
Washington Insider

There has been a significant change of pace in the Federal Motor Carrier Safety Administration's (FMCSA) work on the proposed new hours-of-service rules. Perhaps because of enormous public opposition to the rules, and perhaps from pressure from Congress, the FMCSA appears to have eased off the feverish pace it exhibited when it introduced the proposed rule and declared that it would publish a final rule by year's end.

The FMCSA has received more than 50,000 public comments on its hours-of-service proposal, the vast majority of them disapproving. This negative reaction has not been lost on Congress. Early in the summer, the Senate, with the leadership of the Chairman of the Senate Transportation Appropriations Subcommittee Sen. Richard Shelby (R-AL), passed a provision in the DOT spending bill that would prohibit the DOT from working on the proposed hours-of-service rule for one year. 

This proposal was opposed by both Rep. Frank Wolf (R-VA) and by Secretary of Transportation Rodney Slater. Rep. Wolf, Chairman of the House Transportation Appropriations Subcommittee, declared that he would not allow the Senate bill to get through the House with that provision in it. Secretary Slater announced the administration's veto threat of the DOT spending bill should it contain that prohibition.

After these threats simmered for a while this summer, both sides began to back down from their original positions.

In August, Acting Deputy Administrator for the FMCSA Clyde Hart, announced a second extension of the deadline for public comments on the proposed rule. The new deadline is Dec. 15, 2000. Hart also announced several public roundtables where the agency will gather more public input on specific issues related to the proposed rule. Representatives from several organizations will be invited to the three two-day public roundtables. No single organization will be invited to more than one roundtable. Each roundtable will discuss different issues:

After these roundtables conclude, and all public comments are submitted in December, the agency's next step is unclear. Normally the agency would go through a laborious process of going through the (50,000) public comments, redraft its proposed rule (keeping public comments in mind) and then publish a final rule. Given the thousands of public comments submitted - many of them as detailed and as long as the proposed rule - this process could take many months. This process is further complicated by the fact that there will be a change in presidential administrations in January 2001.

The current acting head of the FMCSA, Clyde Hart, is a political appointee. The new president, no matter who it is, will replace all political appointees with personnel of his own choosing. Aside from the change in political appointees, a new administration could slow down the rulemaking process until it has an opportunity to review its purpose and progress. It could then decide whether it wants to change or modify the policy choices and direction proposed by the previous administration.

The most likely course of action is for the FMCSA to review the public comments submitted as of Dec. 15, revise and republish its proposed rule, and then invite the public to participate in an entirely new comment period on that revised rule. This process could easily stretch this rulemaking process into 2002.

Given this likely scenario, Congress is backing away from its threat to deny funding for the rulemaking. In a compromise supported by Sen. Ben Nighthorse Campbell (R-CO), the final DOT spending bill is likely to allow the agency to keep working on the rule as long as it does not publish a final rule within the next year. Both sides of this dispute seem satisfied with this compromise.

In summary, though, it is safe to say that a new hours-of-service rule is not going to be in effect very soon, and it is not going to look like the proposed rule. In a meeting with Todd Spencer and Jim Johnston on fuel prices, Secretary Slater stated that the rule they finally produce would not resemble the rule they proposed. He explained that these past few months of intense public comment is educating the DOT, and the final rule would be shaped by that public comment. 

This is how all rule makings are supposed to work. We'll get a good idea how well the agency has understood all the public comments if and when they publish a revised proposed rule next year.

Roundtable discussions

Sept. 25 and 26, Chevy Chase, MD

  • Economic impacts of revising the current hours-of-service rules
  • Fatigue Research
  • Enforcement

Sept. 28 and 29, Washington, DC

  • Sleeper berth requirements
  • Communications during rest periods
  • End of workweek rest periods
  • Hours of work permitted each day

October 5 and 6, Washington, DC

  • Categories of carrier operations
  • Electronic on-board recorder requirements
  • allowable exemptions (OOIDA President Jim Johnston has been invited to this roundtable)