States Implementing Safety Measures as Federal Govt. Enforcement Lags
By Eric Miller, Staff Reporter
This story appears in the Feb. 4 print edition of Transport Topics. Click here to subscribe today.
ATLANTA — Several states are planning or have approved motor carrier safety and environmental measures because federal regulators have failed to enforce their own regulations, a prominent transportation lawyer said in an update on regulatory and legislative matters at SMC3’s recent winter conference here.
“It’s sad to report, but it’s very, very true that federal agencies are unable to deal with the important transportation issues that are before them,” said John Bagileo, a legal counsel to SMC3 and a Washington, D.C., lawyer who has specialized in transportation issues for more than 40 years.
“Something is very broken on the federal side, and it’s causing many of the problems that we see, forcing the states to do things,” he said.
Among examples of state actions, he cited:
• North Carolina has a statute that bans trailers longer than 48 feet on roads other than the national network system.
• California Gov. Arnold Schwarzenegger (R) has signed a law requiring hazmat haulers to submit to physical inspections of their vehicles every two years.
• In Michigan, a legislative committee is considering a bill that would toughen penalties for drivers who operate recklessly in construction zones.
• Pennsylvania is considering legislation intended to reduce idling of large trucks.
“What the federal government is not doing, the states are trying to do,” Bagileo said.
He also cited several problems with implementing the Federal Motor Carrier Safety Administration’s revised hours-of-service regulation.
FMCSA has lost twice in federal courts on the HOS rule — and could be headed for a third loss, Bagileo said. “I have never seen an agency reversed twice.”
He said the HOS rule ultimately could be fashioned by Congress. “And that’s not something you want to happen,” Bagileo said.
“It’s not that the FMCSA does not have knowledgeable people,” he said. “The problem is they don’t have expertise in the industry.”
Likewise, FMCSA issued its first driver-training rule in 2004, but the U.S. Court of Appeals for the D.C. Circuit overturned the rule and sent
it back to the agency for further consideration. On Dec. 27, the agency issued a notice of proposed rulemaking on the issue and has asked for public comment.
Although a 1994 law directed FMCSA to verify truck drivers’ duty status, the agency has yet to issue a rule.
Bagileo also was critical of FMCSA because he said it does not administer serious punishment to carriers who are safety violators.
“An unsafe carrier gets caught, simply closes its doors, files a two-page, $300 application, and within 30 days is up and running as another carrier,” Bagileo said. “They [FMCSA] may find out who violates the law, but they do nothing about it.”
A spokeswoman for FMCSA declined to comment on Bagileo’s criticism.
In the 1960s, the Interstate Commerce Commission, the predecessor to FMCSA, did a good job regulating the railroads, motor carriers, water carriers and pipelines with only 1,800 employees, Bagileo said.
The U.S. Department of Trans-portation now employs about 10,000 people and “simply cannot do the job they’re assigned,” he said.
By his count, he said, 51 lawsuits have been filed in various courts in the United States, alleging that carriers have broken antitrust laws by conspiring to set fuel surcharge rates.
The central focus of the allegations is that by publishing their fuel-surcharge rates on the Internet, carriers were signaling to one another what they should charge their customers.
“There’s no proof of any of this,” he said. “I believe the carriers will prevail in the end, but the shame of it is that it will take millions of dollars and a considerable period of time to get to that point.”
He said the accusers “just don’t understand the industry.”
