The Federal Motor Carrier Safety Administration announced this morning that the new hours of service rule, due to have been published today, will be pushed back at least a month.

"FMCSA will continue to work toward publishing a final rule as quickly as possible," the agency said in a statement. "The parties to the settlement agreement will file their next status report with the Court on November 28, 2011."


The settlement agreement is between the Department of Transportation and a group of safety advocacy groups led by Public Citizen. In 2009 the groups agreed to suspend their long-term suit against FMCSA while the agency considered the revisions that were supposed to be posted today.

It has been apparent for a while that the agency was not likely to meet the deadline. The rule must be vetted by the White House Office of Management and Budget before it can be published, and it still has not been forwarded to OMB.

Legal battles

FMCSA is revising the rule in order to resolve a long-running legal fight with Public Citizen, the Teamsters union and other groups. Twice since 2003 these groups won rulings in which the court ordered the agency to tighten work hours, and each time the agency came back with a defense of the rule. Then in 2009 the agency reversed course, agreeing to revisit the rule while Public Citizen suspended its suit. Public Citizen reserved the right to renew its suit if it does not like the new rule.

The rule was originally scheduled to be published last summer under a settlement agreement with the plaintiffs. However, when the FMCSA decided to add four new studies to the rulemaking process last spring, they gave the agency until Oct. 28 to issue the final rule.

Even once the final rules are published, the most likely outcome of this process will be more uncertainty for the trucking industry. If the agency decides to keep the changes it has proposed, American Trucking Associations will sue. And if it sticks with the rule as is, Public Citizen will renew its suit. A final rule that falls somewhere in between could lead in any direction.

In the meantime, there has been action in Congress to block the rules, with Republican leaders in both chambers calling on the DOT, in a letter to Transportation Secretary Ray LaHood, to keep the current rule to avoid burdening the trucking industry with costly and unnecessary regulations. New Hampshire Republican Senator Kelly Ayotte even introduced a measure to block the pending rewrite of the hours of service rule.

Enforcement watching

The Commercial Vehicle Safety Alliance, which represents the state police who must enforce the hours rule, is concerned that with the delay, the rulemaking process won't give enforcement officials enough time to prepare for changes, said executive director Steve Keppler.

CVSA sends out the ballot for next year's Out of Service Criteria in November in order to meet the April 1 deadline.

"If there are changes to the rule we need time to discuss and deliberate about changes to the OOS criteria," Keppler said.

Another issue is time for training. "Most states do their in-service training during the winter. If there's no final rule by that time, it presents issues for training and software updates," he said.

CVSA, by the way, supports the rules as they are today. "The agency needs more research to justify the change," Keppler said.