FMCSA submitted its proposed HOS changes to the Office of Management and Budget (OMB) on March 28, 2019, for review, which is typically the final hurdle before publication. OMB, more specifically the Office of Information & Regulatory Affairs within OMB, typically takes between 30 and 90 days to review federal Agency rules before it clears them for publication.
FMCSA’s HOS proposal has been at OMB for more than 100 days, so industry leaders are turning to STC to understand what OMB does during its review period, and what might be holding up the HOS proposal.
OMB plays at least three important roles in the rulemaking process:
- It serves as a ‘policy traffic cop’ in determining whether policies contained in the rule(s) are consistent with the Administration’s policy approach and, more specifically, whether they are consistent with similar policies administered by other Agencies in that particular Department (think FMCSA rules compared to Federal Aviation Administration and/or Federal Railroad Administration rules, etc.)
- It takes a fine-tooth comb to an Agency’s regulatory impact analysis, commonly called a cost-benefit analysis
- OMB evaluates the basis for the proposed rule(s) and tries to determine whether the information, data and/or research the Agency is relying on adequately supports the rule the Agency wants to issue (or, in the case of HOS, the rules FMCSA wants to change)
So why the HOS delay? It’s hard for anyone outside of OMB and FMCSA to know the precise reason for the delay, but STC’s experience suggests OMB is focusing its energy on numbers 2 and 3 — the adequacy of the cost-benefit analysis; the strength of the information, data, and research being cited by FMCSA in its proposal.
Almost all HOS changes made by FMCSA in the last 20 years were met with legal challenges from one side or another. OMB is very likely evaluating the strength of the underlying data and research should any future HOS changes meet the same legal fate.