FMCSA Makes The “Most Expensive List”

Here’s more bad news for the FMCSA. Recently, House Speaker Boehner asked the Obama Administration to identify pending rules which will cost business more than $1 billion each. Each executive agency when it develops a regulatory rule is required to estimate how much the rule will cost in dollars and cents. So, the Obama Administration took count of all its rules, and identified 7 rules which it estimates will cost more than $1 billion each. These are the Obama Administration’s estimates, so you know in reality these rules will actually cost much more than that.

Here is an article from Bloomberg which talks about this issue. Of the seven, four of the most expensive where EPA rules. No surprise there. Another was a rule by NHTSA, potentially requiring back-up cameras on cars. The final two rules were the FMCSA re-write of the hours of service rules, and the FMCSA mandate of EOBRs.

This means FMCSA is now being mentioned in the same breath as EPA! Way to go FMCSA! Seriously, this is no small accomplishment. FMCSA is, by the size of their agency and their budget, pretty small in terms of governmental agencies. To have not just one, but two of the most expensive rules in all the government, is really saying something. FMCSA may finally be getting the recognition it deserves. In fact, it’s possible this is the first time the Speaker of House has ever even heard of “FMCSA”. Hopefully he, and the rest of the GOP caucus will keep these uber-expensive regulations in mind when it comes time to pass the over-due Highway Reauthorization bill.

FMCSA = DOT

For you people who do not eat, drink and breath this stuff like I do; I would like to clarify what “DOT” and “FMCSA” means. DOT means the US Department of Transportation. It is a Cabinet level agency which reports to the President. Under its umbrella are all the various government agencies which regulate the modes of transportation, such as the Federal Aviation Administration, the Federal Rail Administration and the Federal Motor Carrier Safety Administration (FMCSA). FMCSA is the organization which writes and enforces the truck safety rules. They are the ones who audit you, they are the ones who fine you, and they are the ones who tell you what the rules are. The Administrator of FMCSA is Anne Ferro. She reports to her boss, Ray LaHood, who is the head of the Department of Transportation. LaHood is appointed by the President, and approved by Congress, just like the Secretary of State or Defense.

So, FMCSA is a subdivision of DOT. When I write my articles, I use the two interchangeably. Why? Early in my work-life, I learned no one in the trucking industry recognizes the term “FMCSA”. Or back in the day when I learned this, they were called the Office of Motor Carriers. However, all truckers recognize “DOT”. So, I will liberally refer to DOT when I am referring to FMCSA. For my purposes, they are the same thing.

DOT Suffers an EOBR Setback

Last week, a US Court of Appeals threw out one of DOT’s Electronic On-Board Recorder (EOBR) rulemakings. To clarify, there are two EOBR rulemakings. The first is a final rule, which stated that carriers who are found to have hours of service violations will be forced to put EOBRs in their trucks starting in June, 2012. The second is the proposed rule which was issued in January, 2011. This is the one which says all trucks which require logs will be forced to put EOBRs in them at some unspecified future date…. probably 2014 or 2015.

Since the 2014, sweeping, industry-wide edict is only a ‘proposed’ rule, no one can sue DOT over it. Yet. The first rule, which would have been effective next year, was challenged in court by the Owner Operator Independent Driver Association (OOIDA). They challenged it on a number of grounds. One of which was “harassment”. Apparently in the law which gives DOT the authority to monitor drivers’ hours of service, it says whatever they come up with cannot be harassing to the drivers. The Court, by a 2-1 vote, found DOT did not sufficiently address the harassment issue, and threw out the 2012 rule.

So, what does it mean? I am a well-known opponent of government-mandated EOBRs. If they work for you and your fleet, by all means, feel free to use the e-logs. However, carriers who do not want to use the EOBRs should not be forced to do so. This decision is a good thing. Not a great thing. A good thing. I think what has happened here could likely be a legal technicality, which might only be a temporary roadblock to the sweeping EOBR mandate wanted by the Obama Administration and the American Trucking Association.

The DOT made very little effort in their rulemaking to address the harassment issue, which is one of the things the Court pointed out. The law says the monitoring system cannot be “harassing”; OOIDA argued this was harassment. DOT in their rulemaking virtually ignored the harassment clause in the law, merely stating, “yes, we considered that, this isn’t harassment”. Basically they made so little effort on this point, the Court had no choice but to rule for OOIDA.

So what happens next? DOT as we speak, is huddling, deciding how to save their EOBR mandate, which they very well may be able to do. The Court did not say this type of rulemaking was illegal, or could never happen. It merely laid out a number of points it wanted DOT to address on the harassment issue. My guess is once DOT does address these points, the Court will waive its objections on the harassment issue.

The points the Court wanted addressed are not things which DOT can throw together in a week or even a month. In fact, there is a very good chance they will decide to scrap the remedial EOBR rulemaking struck down by the Court altogether, and focus their efforts on the pending final rulemaking which will apply to virtually all carriers in 2014 or 2015.

The clock is starting to turn against DOT. Things move at a glacial pace anyway at DOT, and the Court just added a huge pile of work for them to do in order to force all motor carriers to use EOBRs. Even before this Court decision, DOT said it would probably be next summer before they had their final EOBR rulemaking finished. They probably need to issue the rulemaking before November 6, 2012.

Why that date? That is date of next Presidential election. If President Obama loses, that means DOT Secretary Ray LaHood is out, too. Granted, these rules often take on a life of their own, especially if the ATA is pushing it. The next President could very well let all of the previous Administrations rulemakings carry forward. On the other hand, if the economy is still in the tank, which it probably will be, the new President should be concerned about dumping more productivity-killing regulations on business. Of course, there’s probably a 50% chance Obama wins again, in which case EOBRs will be mandated. Look on the bright side: if Obama is re-elected, buying and using EOBRs will be the least of your worries.

Back to the 21st Century

Well, my office is finally back to normal, I think. We lost power over the weekend due to this tropical storm Irene. I refuse to call it a hurricane, because it wasn’t a hurricane here, despite what Met-Ed says. So, today I think everything is back working… if you’ve tried to call in the past few days and couldn’t get through… that’s why.