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June 23, 1999 10:57 AM, EDT

Don’t look for a negotiated rulemaking on hours of service.

Prospects for reforming driver hours by general consensus withered when the Transportation Department released a report June 10 that recommended against trying to bring interested parties around the table to work out a new regulation.

Negotiations were “unlikely” to produce a consensus, concluded an outside study. The study, commissioned by FHWA, instead endorsed the creation of scientific advisory panel to examine data on driver fatigue and safety management. The committee would include representatives from industry, government, safety watchdog groups, drivers, law enforcement, shippers, accident victims and insurers.

A negotiated rulemaking “is still under consideration, but for all intents and purposes it’s doubtful,” said David Longo, spokesman for the Federal Highway Administration’s Office of Motor Carrier and Highway Safety.

FHWA, in the meantime, has developed a proposal that it can take to the industry and public for comment, the traditional rulemaking approach. But the report also recommended against that tack, unless the advisory panel, too, fails to reach consensus.

Many saw the handwriting on the wall at a May 27 news conference, when Transportation Secretary Rodney Slater observed that “a lot of the parties continue to be grounded in their personal interests, so [negotiated rulemaking] does not look all that promising.”

American Trucking Associations had asked FHWA to go the negotiated route.

“We strongly supported [negotiations] because we believed that this process would expedite issuance of the final rules,”Laurie Baulig, ATA’s senior vice president for policy and regulatory affairs, said last week, “We remain open to other procedures designed to ensure that the department will move quickly to issue new, science-based rules.”

For its part, ATA’s Safety and Engineering Committee has developed a plan of what it wants to see in an hours-of-service rule. The recommendation the committee adopted June 16 at ATA’s summer leadership meeting was to be presented to the ATA board of directors June 18.

ATA declined to release any details of the recommendation.

Meanwhile, some industry sources are predicting that FHWA will publish its proposal within the next several weeks. FHWA officials themselves have said they hope to call for comments by the end of the summer.

Decision-making on hours-of-service reform has not come easily to FHWA. A final rule on new regulations was due in March. It has been almost eight months since an FHWA official promised a decision within two weeks on whether the department would proceed with a traditional or negotiated rulemaking.

FHWA hired Alana Knaster and Charles Pou in December 1998 to help the agency determine whether a negotiated rulemaking was feasible. The advisors are known as convenors.

n their report, the convenors cited four main reasons for giving “reg-neg,” as the process is colloquially known, a thumbs-down:

ul>

li>Difficulty in finding neutral moderators the various camps would be comfortable with.

li>The short time the negotiating committee would have to get its job done.

li>Reservations in the minds of some about the FHWA’s ability to lead the effort, given recent controversies about Office of Motor Carrier and Highway Safety.

li>The decision by some players not to participate in a reg-neg.

/ul>

he Teamsters union and some safety watchdog groups had said they planned to sit out the reg-neg.

Although ATA wanted to negotiate, the association did not see the convenors’ report as a major defeat.

“We’re not going to go fall on our swords because we’re not going to a negotiated regulation,” said Paul Bomgardner, ATA’s director of hazardous materials policy.

Parents Against Tired Truckers’ Daphne Izer also was philosophical about the development.

“We were OK with it,” Izer said. “We told them we’d certainly be at the table, though it’s easier for a lot of people to get to Washington than us. But we felt there would never be a consensus.”

Izer and other safety groups have backed a system of 12 hours on, 12 off for commercial truck drivers, with no more than 10 hours behind the wheel. Much of the industry is leaning toward 14 hours on, 10 hours off, with no distinction between driving and non-driving on-duty time, and with a 24-hour restart of the clock.

The report acknowledged that the scientific dialogue might not end in consensus, either, but that it nonetheless “holds the greatest promise for engaging the opposing groups of stakeholders in meaningful dialogue.”

“You’ve got a very diverse industry and a rule that’s trying to fit everyone,” observed Timothy Lynch, president of the Motor Freight Carriers Association, which represents unionized LTL carriers in negotiations with the Teamsters union. “You’d need the wisdom of Solomon to figure it out.”

ATA’s Bomgardner said the panel must first come to an agreement on the science that’s going to be used. “If you can’t to an agreement on that, you’re certainly not going to come to agreement on the issues.”