FMCSA Asks Congress For Help On Hours Of Service Rule
If the move is successful, the rule will stand as it is now written and the agency will stop work on its current hours of service rulemaking.
Oliver B.Patton
Washington Editor
Unveiling a new tactic in the legal battle over its hours of service rule, the Federal Motor Carrier Safety Administration is asking Congress to change the law and, in effect, negate a court finding that the rule is illegal.
If the move is successful, the rule will stand as it is now written and the agency will stop work on its current hours of service rulemaking, said Administrator Annette Sandberg.
Meanwhile, work on the rulemaking continues.
The change the agency is seeking has to do with language concerning driver health. The law now says that agency regulations must ensure that driving a truck does not "have a deleterious effect on the physical condition" of the driver - in other words, that it doesn't harm his health.
This is the provision that the U.S. Court of Appeals cited last July when it decided that the hours rule is illegal. The court agreed with the safety advocacy group Public Citizen that the rule should be thrown out because the agency did not consider this factor when it wrote the rule.
As a consequence of that ruling, the hours rule is now in legal limbo. It remains in effect under a temporary reprieve from Congress while the agency scrambles in an ongoing rulemaking to come up with changes that will satisfy the court.
The agency is asking Congress to change that provision of the law. It wants to replace the phrase, "deleterious effect," with language that says it only has to consider significant threats to driver safety when it writes rules.
"We are asking Congress to clarify its intent on driver health," Sandberg said. The agency's provision makes it clear that FMCSA would retain the right to revise the rule if necessary, she said.
The current language "could be read as prohibiting any regulation that allows a deleterious effect, however minor, to affect a commercial motor vehicle driver," the agency said in its message to Congress.
Among other problems, this creates a conflict with other federal agencies that directly regulate employee health, such as the Occupational Safety and Health Administration, the agency said. Also, the necessity of conducting another rulemaking is taking FMCSA resources away from other tasks. And, the agency continued, it appears that the current rule is producing good results.
"The Department (of Transportation) believes that it would be beneficial to end the prolonged struggle over hours of service and to ratify permanently the 2003 rule," the agency said.
"This will also enable the motor carrier industry and state and federal enforcement officials to plan their training and compliance activities without having to worry about the expense and effort of adapting to some as-yet-unknown hours of service regulation."
The agency wants to attach this amendment to the highway reauthorization bill that Congress has been postponing for the past 17 months. That mammoth bill, which sets national highway policy for the next six years, is being taken up again as the new Congress opens for business. Still at issue in the bill is how much money the federal government is going to spend on highways, and how will that money be divided among the states.
It remains to be seen, first, if Congress will agree with what the agency is proposing, and second, if Congress can come to terms on the highway bill and send it to the president.
Washington Report continued...
