Though FMCSA operations unaffected, shutdown could delay hours of service revisions

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Updated Jan 20, 2019

The partial shutdown of the U.S. government could delay the publication of a proposed rule to reform hours of service regulations, according to a U.S. DOT official.

Federal Motor Carrier Safety Administration officials hinted in December that a notice of proposed rulemaking offering potential revisions to federal hours regs could come as early as March. But the lingering closure of federal agencies will impede FMCSA’s ability to proceed with the rulemaking process, the official said.

Though the Federal Motor Carrier Safety Administration remains mostly unaffected by the shutdown, operations at other branches of the DOT have been hampered. More than 20,000 U.S. DOT workers are furloughed, including more than 400 of the 1,470 employees at the the DOT’s Office of the Secretary (OST). Also, 327 employees at the White House’s Office of Management and Budget’s (OMB) 488 employees have been furloughed.

Those two agencies — the OST and the OMB — must review and approve the hours of service notice of proposed rulemaking before it’s published. Since operations at those agencies have been mostly shutdown, “everything’s stopped,” the official said, referring to the federal rulemakings process.

The official didn’t say whether FMCSA had filed an hours of service proposal with OST, which must clear it before it heads to OMB. But there’s “back and forth” required between the three agencies (OST, OMB and FMCSA), the official said.

It usually takes weeks, if not months, for rulemakings to be cleared for publication. Once cleared, the proposed rule will be sent back to FMCSA.

“Until [the shutdown] is rectified,” the official said, the hours rule will be hung up in that procedural process.

What’s more, when the government shutdown ends and employees at the OST and OMB return to work, they’ll have a large backlog of rulemakings and filings to address from all other government agencies, the official said, which will further impede the hours of service proposal.

FMCSA boss Ray Martinez has insisted the agency wanted to “fast track” the hours of service rulemaking. However, that was well before the shutdown fight ensnared D.C. The partial government shutdown is now in its fourth week and is the longest in U.S. history. President Trump and Congressional leaders remain at odds over funding for a wall along the southern border of the U.S.

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Despite the hours of service proposal likely being delayed by the shutdown, other FMCSA operations remain unaffected. Agency functions like compliance reviews, grants to states for enforcement, new entrant carrier processing, reviews of DataQs challenges and issuance in CDLs, to name a few, have not been affected by the lapse in funding for the U.S. DOT. FMCSA derives much of its funding from the Highway Trust Fund, funded by gas and diesel taxes and not annual appropriations from Congress.

In sum, more than 800,000 workers nationwide have been furloughed by the shutdown. Employees at many government contractors have also been furloughed over the funding lapse.