FMCSA denies ATA request to delay implementation of HOS
ATA Senior Vice President Dave Osiecki (above) said FMCSA’s response means that carriers, shippers and FMCSA-funded state enforcement agencies will have to spend time and money on training and adapting systems to a rule whose final form will not be certain until the court issues its decision. (The Trucker file photo)
By LYNDON FINNEY
The Trucker Staff
WASHINGTON — The Federal Motor Carrier Safety Administration has denied the request of the American Trucking Associations to delay implementation of the new Hours of Service rule pending a decision by the court on the merits of a petition by ATA and safety advocacy groups to have the rule overturned.
The ATA made the request in a letter Jan. 25 from ATA President and CEO Bill Graves to FMCSA Administrator Anne Ferro.
“The FMCSA has evaluated the issues raised in your letter and, for the reasons set forth in this response, has determined that staying the compliance date of the rule is not warranted,” FMCSA Chief Counsel T.F. Scott Darling III, said in a Feb. 22 letter to Graves.
The new rule is effective July 1.
The Court of Appeals for the District of Columbia is scheduled to hear oral arguments on the petition March 15.
“The requested delay will avoid potentially duplicative and unnecessary training, prevent confusion if the court’s decision alters in any manner the final rule, and, given the anticipated short length of the delay, will have no measureable impact on highway safety,” Graves wrote in his letter to Ferro.
“We are disappointed that FMCSA refused to delay enforcement of its upcoming HOS rule changes until after the D.C. Circuit has ruled on ATA’s [and other groups’] pending challenges to the rule,” Dave Osiecki, ATA senior vice president of policy and regulatory affairs, said in response to the denial. “FMCSA’s response means that carriers, shippers and FMCSA-funded state enforcement agencies will have to spend time and money on training and adapting systems to a rule whose final form will not be certain until the court issues its decision. That’s why not only ATA, but also the Commercial Vehicle Safety Alliance, the National Industrial Transportation League and the National Association of Manufacturers all asked the FMCSA to provide three months after the court’s decision before enforcing the rule changes.”
The FMCSA said it did not believe that the ATA had demonstrated good cause to delay the compliance date of the rule.
“Mere uncertainty over the possible outcome of the litigation, which you recognize is a matter over which the parties differ, does not create a likelihood that the industry or the enforcement community will suffer due to wasted training resources or confusion,” Darling said in his letter to Graves. “Moreover, the agency is unwilling to sacrifice what may be several months of public safety benefits from the timely implementation of the rule.” (To read the entire letter from FMCSA to ATA, click here.)
The FMCSA’s denial acknowledged that the relevant question should be whether there is “good cause” for delay, Osiecki said.
“But the agency didn’t address whether avoiding confusion and waste of carrier, shipper, and federal and state enforcement [taxpayer] dollars amounted to ‘good cause.’ Instead, it applied an irrelevant legal standard a court would apply if a party asked the court to order the agency to forbear — a far higher standard. The ATA went to FMCSA, rather than straight to the court, because we gave the agency the benefit of the doubt that it would treat our reasonable request in good faith. Their decision to apply irrelevant standards makes it clear that FMCSA isn’t interested in giving a fair hearing to the industry’s reasonable requests.”
The FMCSA said in denying the ATA request that the agency did not believe that a stay is warranted under the four criteria that were customarily applied by a court to determine whether a judicial stay pending appeal should be granted — the likelihood of prevailing on the merits of litigation, the prospect of irreparable harm to the party seeking the stay if it is not granted, the potential harm to other parties if a stay is issued and the public interest.
“With oral arguments in the rule challenges scheduled for March 15, 2013, ATA’s request [and CVSA’s among others] would likely have meant only a brief delay in the current July 1 effective date,” Osiecki said. “Especially in the current economic climate, carriers and shippers can ill afford to squander resources on a moving target like this. We’re disappointed that FMCSA is willing to risk squandering public training and enforcement funds this way.”
In his January letter to Ferro, Graves noted that the FMCSA had recognized that "industry and law enforcement may need extra time to train personnel and to adjust schedules and automated systems," a phrase lifted directly from the new rule published Dec. 27, 2011.
“Several commenters noted that software development, programming and testing would take up to 18 months,” Graves wrote. “Much of that work is well under way. However, to preserve the effectiveness of training by linking it as closely as possible to the date the rule changes become effective for compliance purposes, motor carriers and law enforcement have yet to fully deploy their training resources. In our discussions with our respective members, that training is expected to begin three months prior to the compliance effective date, consistent with comments in the [public] record. . . . FMCSA's own schedule suggests training materials will not be delivered to the states until ‘between April and June of 2013.’”
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Graves said the ATA had hoped that the related litigation would have been decided far enough in advance for industry and the enforcement community to be certain of the rules on which to train various constituencies.
Unfortunately, the court's scheduling of oral argument for March 15 makes that unlikely, Graves told Ferro.
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