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Lawmakers ask Ferro to reconsider rejection of HOS delay

Sen. Susan Collins, R-Maine, was one of three lawmakers who told FMCSA Administration Anne Ferro in a letter than Ferro's decision not to delay HOS implementation was "ill-advised." (The Trucker file photo)

By LYNDON FINNEY
The Trucker Staff

3/21/2013

WASHINGTON — And the letters just keep on coming.

Wednesday, just two days after four colleagues sent a letter to Transportation Secretary Ray LaHood asking him to delay the implementation of the new Hours of Service rule until three months after the court issues its opinion on the rule’s validity, a senator and two members of the House have sent a letter to Federal Motor Carrier Safety Administration Administrator Anne Ferro asking her to reconsider her agency’s rejection of the American Trucking Association’s earlier request virtually identical to the request made to LaHood on Monday.

Expressing disappointment in the FMCSA decision in late February, the letter Wednesday encouraged Ferro “to quickly reconsider that ill-advised decision to provide a reasonable delay in the effective date (July 1), especially given the uncertainty of any court ruling.”

The letter, dated March 20, was signed by Sen. Susan M. Collins, ranking member of the Senate Committee on Appropriations and the subcommittee on Transportation, Housing and Urban Development and Related Agencies; Rep. Thomas Latham, chairman of the House committee on Appropriations and subcommittee on Transportation, Housing and Urban Development and Related agencies; and Rep. Ed Pastor, ranking member of the House committee on Appropriations and subcommittee on Transportation, Housing and Urban Development and Related agencies.

An FMCSA spokesman declined comment on the letter, citing the agency’s long-standing policy not commenting on pending litigation.

A spokesperson for the Department of Transportation said late Thursday that the DOT would respond to the letter to LaHood.

The letter to Ferro noted that the Congressmen were aware that the trucking industry, the manufacturing and freight shipping industries and the truck safety community head each requested a similar postponement of the effective date “and for good reason. By FMCSA’s own estimate, the trucking industry will spend more than $300 million between now and July 1 to train drivers, make software changes and implement other modifications to prepare for the new rule” and that shippers, receivers and federal and state enforcement officials will also spend considerable sums to prepare for a rule that could be changed or vacated by the court.

“Delaying the July 1 effective date of the rule is the most responsible course of action to take given the uncertainty of where the court will come down,” the letter said. “This is not to suggest we are taking a position on the substance of the litigation. Rather, we simply believe the effective date of the rule should be extended due to the timing of the court decision and the resulting uncertainty in the affected stakeholder communities.”

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_____________________________________________________________________________________________________________________The lawmakers noted that the agency chose to provide 18 months from the time of the publication of the new rule and said that it was reasonable to argue that an additional delay of a few months might have a measurable impact on highway safety, a reference to a comment in the rejection of the ATA request that to delay the implementation of the rule until three months after the ruling would negatively impact highway safety.

“Even FMCSA’s own regulatory impact analysis accompanying this rule does not support that contention,” the lawmakers wrote.

The letter to LaHood asked the secretary consider staying the implementation of the new Hours of Service rule until three months after resolution of the petitions for review of the rule currently under consideration in the U.S. Court of Appeals for the District of Columbia.

“A stay on the HOS rule would avoid costly and unnecessary training of enforcement officials and alleviate any confusion regarding the impact the court’s decision could have on the HOS rule,” the four lawmakers wrote in a letter to LaHood Monday.

The congressmen include committee chairman Bill Shuster and ranking member Nick J. Rahall II, and subcommittee chairman Tom Petri and subcommittee ranking member Peter DeFazio.

 “The trucking industry and law enforcement community will invest substantial resources to train personnel and adjust safety management systems to comply with rulemaking,” the letter said. “Most of the training will occur three months before the rule’s compliance date (July 1).

If LaHood grants the delay, he would reverse a decision made by Ferro when the ATA made its request in January.

The FMCAS said the ATA did not present sufficient evidence to grant the delay, using what amount to litigation rules to deny the request and cited the aforementioned safety issue.

The ATA said the FMCSA “hid behind an irrelevant, legalistic analysis” in rejecting the federation’s request.

The court heard oral arguments on March 15 and likely will reach a decision in June, the lawmakers predicted.

 “Therefore, moving forward under the current schedule would be an inefficient use of the industry, enforcement community and FMCSA resources if the HOS is altered by the court’s decision,” the letter said.

The Trucker staff can be reached to comment on this article at editor@thetrucker.com.

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