The gloves are off in the ATA-FMCSA HOS battle
February 28, 2013
When it comes to the ongoing quarrel between the American Trucking Associations and the Federal Motor Carrier Safety Administration over the pending motor carrier Hours-of-Service (HOS) changes, did anyone really think that ATA would not have the last word, at least for now anyhow?
What I am referring to is a news story we published on this site earlier this week, regarding how the FMCSA in a letter to ATA President and CEO Bill Graves rejected ATA’s request to FMCSA delay the compliance effective date for those (rules) provisions until three months after the D.C. Circuit issues its decision in this case, which is expected to happen in March, rather than the FMCSA-scheduled date of July 1.
Graves said that 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 measurable impact on highway safety.
As the story points out, FMCSA Chief Counsel T.F. Scott Darling III explained in a reply to Graves (also in a letter) that the ATA’s request to delay the compliance date of the rule “is really a request for a stay pending the decision of the court, plus an additional three months of non-compliance,” adding that FMCSA has evaluated the issues raised in ATA’s January letter and determined that the compliance date of the rule is not warranted and has denied ATA’s request.
“[Y]our letter fails to discuss any party’s likelihood of success on the merits, a key requirement for obtaining a stay,” wrote Darling. “Moreover, you admit there is genuine uncertainty as to the outcome of the pending litigation. Therefore, we will not address the merits of the arguments before the court here. Further, you argue that a compliance date will have ‘no measureable impact on safety.’ Given that the final rule is intended to improve public safety, however, a bare assertion to the contrary fails to satisfy the public interest prong of the analysis.”
Your turn, ATA.
ATA did not wait long to send the FMCSA a letter penned by ATA General Counsel Prasad Sharma, who explained to the FMCSA’s Darling that his response to the ATA was essentially a legal analysis that is wholly inapplicable to what ATA was requesting from FMCSA.
“So rather than giving ATA’s request its natural reading, FMCSA contrived an analysis under an inapplicable test to critique the sufficiency of ATA’s request,” Sharma wrote. “Despite a record of adverse decisions in past hours-of-service litigation. 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.”
But, wait, there is more.
ATA officials said in a statement that based on the FMCSA’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.
What’s’ more, ATA added that this cost does not include costs to shippers, receivers and others in the supply chain, adding that 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,” said ATA.
The ATA’s top executive Bill Graves noted that with diesel prices on the rise, coupled with increased equipment and labor costs, FMCSA’s decision to reject ATA’s “reasonable request for a brief delay in enforcing this rule is unbelievable.”
While that may be the ATA’s perspective, what it is entirely believable is that the gloves are truly off and we all have a front row seat to see what happens next in the latest chapter of the ongoing HOS saga.
Looks like the mid-March HOS hearing at the D.C. Circuit Court could be one for the ages. Get your popcorn ready.
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