ARLINGTON, Va. — The American Trucking Associations said Thursday that rather than deal in good faith with the ATA’s request that implementation of the Hours of Service rule be delayed pending a court decision, the Federal Motor Carrier Safety Administration “hid behind an irrelevant, legalistic analysis” in rejecting the federation’s request.
The FMCSA last Friday told the federation it was denying the request for delay, saying 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.
“While the ATA asked merely for the agency to extend the rule’s implementation deadline — a request the agency could grant so long as there is a reasonable basis to do so — FMCSA’s chief counsel instead analyzed the request as though ATA were asking a court for an injunction forcing the agency to delay,” Prasad Sharma, ATA senior vice president and general counsel, wrote in a letter to T.F. Scott Darling III, the FMCSA’s chief counsel and the author of the Friday letter to the ATA. “So rather than giving the ATA’s request its natural reading, FMCSA contrived an analysis under an inapplicable test to critique the sufficiency of ATA’s request.”
A spokesman for the FMCSA declined comment on the letter.
The new rule, set to go into effect July 1, is the subject of litigation by both trucking interests and safety advocates, who, for differing reasons, want the new regulation overturned.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia will hear oral arguments in the case March 15.
If the new rule is overturned, it would mark the third time the court has thrown out an HOS rule since the FMCSA drastically revised the regulation in 2003.
In a Jan. 25 letter from ATA President and CEO Bill Graves to FMCSA Administrator Anne Ferro, the association said delaying the effective date until three months after the court renders its decision would 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 measurable impact on highway safety.
The FMCSA’s rejection of the request, Sharma said in the letter to Darling, will be costly for the industry and for the enforcement community, if the court rejects any of the challenged provisions of the rule.
“Despite a record of adverse decisions in past Hours of Service litigation,” Sharma wrote, “FMCSA is willing to risk wasting significant training resources – some of it taxpayer money used to train both agency staff and the state enforcement community.”
Based on the agency’s own estimate of the time necessary to train drivers on the new rule, along with software reprogramming and related transition costs published by FMCSA, the trucking industry alone will spend $320 million between now and July 1. And, this cost does not include costs to shippers, receivers and others in the supply chain, ATA said. In addition, state enforcement agencies must spend taxpayer money to adapt to the rule changes. If the court agrees, in whole or in part, with ATA that the rule changes at issue must be rejected, those expenditures will have been irrecoverably squandered, the lobbying group continued.
“At a time of rising diesel prices, increased equipment and labor costs, the decision by the head of FMCSA to reject a reasonable request for a brief delay in enforcing this rule is unbelievable,” ATA President and CEO Bill Graves said.
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