Washington Insider
Gold star student

By Laura C. O'Neill
OOIDA government affairs counsel


In January, Secretary of Transportation Ray LaHood issued a “regulatory guidance” immediately outlawing “texting” while operating a commercial truck. OOIDA supports a ban on texting while operating any sort of motor vehicle and was one of the first in the trucking industry to denounce the extra-curricular activity. However, OOIDA simply can’t support the use of a regulatory guidance to ban the activity because of the implications it has on the integrity of the rulemaking process as a whole.

Now, are we just being nerds here? Being the smart kid in class who everyone picks on because he corrects the teacher? Well … maybe … but with issues like hours of service and electronic on-board recorders quickly coming down the regulatory pike, we will take our chances with the agency bullies who may want to shove us in our locker.

So why did we have a bee in our bonnet the morning that LaHood issued the guidance? Well, here is the situation: Essentially, the agency issued guidance before there was a rule or regulation in place for which to offer guidance. Confused? We were, too. A regulatory guidance is usually put forth to help folks understand and guide them through the regs. Without a regulation, how can you have guidance? You follow me here?

We certainly aren’t mad at the DOT for tackling the issue of texting; quite the contrary, we find the practice deplorable. But there are some ancillary issues accompanying the prohibition of texting that we were looking forward to having clarified in the rulemaking process. For example, how are drivers’ privacy rights protected? May a police officer seize and search a phone in order to determine if a truck driver has been texting? We have a little bit to say about these issues and feel we had the right to comment.

Doesn’t the threat of a nearly $3,000 fine for truckers dictate a need to look at this further?

So, what exactly is the rulemaking process and why does it make our nerdy hearts skip a beat? As you are all aware, the DOT functions under the Executive Branch which, at least according to the Constitution, doesn’t have the authority to make laws. Rather, our Constitution vests the legislative authority in Congress under Article I. However, as the nation has evolved, it has become impractical, if not impossible, for Congress to act as the regulatory arm for all issues facing the nation. Therefore Congress gives up some of its inherent power to administrative agencies who then engage in rulemaking and adjudicatory procedures, under the guidance of the Administrative Procedures Act, paying particular deference to due process.

In short, Congress, under the authority granted to it by the Constitution, in theory passes a law directing the DOT to pursue a particular objective. Then, in order to adhere to separation of powers, Congress steps aside and allows DOT to work with the public to accomplish the desired goals. As part of the rulemaking process, the public normally is provided with a meaningful opportunity to comment. Arguably, Congress has never specifically directed the DOT to address the issue of texting. Moreover, DOT did not engage in any sort of rulemaking process.

As I have said, we fully support the DOT in their objective to fight distracted driving. This issue is a no-brainer. However, the DOT, although they believed they had the congressional authority to act, bypassed the rulemaking process on this issue while we still had a few things to say. Now, can you imagine if, on some of the other big ticket issues, such as hours of service or EOBRs, the DOT simply issued a “guidance” changing the hours or mandating expensive tracking equipment?

I think the secretary was standing on a slippery slope when he announced the regulatory guidance, which essentially functions as a rule. If our pants are run up the flag pole for questioning that authority (or lack of), well … that’s a chance we are willing to take. LL