Welcome to the Front Lines
Response to FMCSA (MC-ESS)
Following is our response to FMCSAs determination and response (MC-ESS) to our petition submitted for the initiation of a proceeding to remove Virginia's MCSAP eligibility...
**********
The American Driver
507 Main Street, Nocona, Texas 76255
940-923-3267 ~ 940-642-1640
April 25, 2009
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Attn: William A. Quade
Associate Administrator for
Enforcement and Program Delivery
(c/o Jack.Kostelnik@gov.gov)
Re: MC-ESS
(Response to our Petition for FMCSA to initiate a proceeding under §350.215 for withdrawal of the state of Virginia’s eligibility for all Basic Program and Incentive Funds dated April 25, 2009)
Dear Mr. Quade:
As you have stated in your response…
(Quote) The MCSAP is a Federal grant program that provides financial assistance to States to reduce the number and severity of crashes and hazardous materials incidents involving CMVs. The goal of the MCSAP is to reduce CMV involved crashes, fatalities, and injuries through consistent, uniform, and effective CMV safety programs. The MCSAP includes conditions for participation by States and local jurisdictions and promotes the adoption and uniform enforcement of safety rules, regulations, and standards compatible with the Federal Motor Carrier Safety Regulations and the Federal Hazardous Materials Regulations for both interstate and intrastate motor carriers and drivers.
While I understand your concerns regarding Virginia’s enforcement of a two-hour parking restriction in State rest areas, the State’s enforcement policy does not violate the MCSAP compatibility rules. MCSAP recipients must agree to adopt and enforce regulations compatible with Parts 390-397 of the Federal Motor Carrier Safety Regulations (FMCSRs) (see 49 CFR 350.201(a)). The FMCSRs, however, do not require States to make parking available to CMV drivers. The Virginia parking restriction cannot be held incompatible in the absence of a Federal standard on the same subject.
It is true that FMCSA has the authority, under certain circumstances, to preempt State laws or regulations “on commercial motor vehicle safety” (49 U.S.C. 31141), but the rest area parking restrictions are applied to all vehicles, private cars as well as commercial trucks. It is therefore difficult to argue that this is a policy “on commercial motor vehicle safety.” Even if the parking restrictions were directed solely at CMVs, it is not clear that they would “cause an unreasonable burden on interstate commerce” (49 U.S.C. 31141(c)(4)(C)), the relevant legal test in this situation. After all, Virginia does not prohibit CMVs from parking for extended periods elsewhere. CMV operators have the option to leave interstate highways and find another place to park. While this may be inconvenient to truckers, it does not violate the MCSAP requirements, nor is it otherwise illegal under Federal law.
Therefore, the FMCSA will not take any action to withdraw Virginia's MCSAP Basic and Incentive funding.
If you have any questions regarding this matter, please contact Jack Kostelnik at 202-366-5721, or e-mail him at jack.kostelnik@dot.gov. (Close Quote)
With all due respect…it seems apparent we must clarify, and make extremely clear, our concerns and FMCSAs responsibility.
(1) Our petition does not contend the State of Virginia is required to provide parking for CMV drivers. It does, however, address an issue regarding the enforcement of a parking time limit incompatible with FMCSA regulations within parking areas which are provided to CMV drivers. We contend where parking is available, and CMV drivers are able to locate legal parking spots, a State is required to ensure no laws are enforced upon CMV drivers which are incompatible with FMCSRs Parts 390-397…in accordance to FMCSA MCSAP Part 350. FMCSRs 49 CFR 350.333(d), 355.1(a) and 355.21(a) does not state, nor are there exceptions stipulated, regarding options. These regulations are very clear regarding the compatibility of State laws to Federal Motor Carrier Safety Regulations Parts 390-397 to remain eligible for MCSAP funding. Your reasoning that CMV drivers have options and therefore this grants a State the authority to enforce a law which is in direct conflict with 49 CFR 395.3(a)(1) and 49 CFR 395.3(a)(2) is not a liberty FMCSA is allowed to determine. The regulations are very clear regarding the compatibility of State laws to FMCSRs Parts 390-397. We will also point out safety rest areas were built with federal funding, maintained with federal funding and are located within the federal jurisdiction of the National Highway Network. These safety rest areas, where available, do not have FMCSA MCSAP regulations allowing enforcement of incompatible State laws to FMCSRs Parts 390-397.
(2) CMV drivers are a core component to interstate commerce. State laws being enforced upon non-commercial vehicles does not violate FMCSA MCSAP regulations. However, the enforcement of those laws upon CMV drivers, a core component to interstate commerce, which are not compatible to FMCSRs Parts 390-397 is a violation. There is no FMCSA regulation stipulating the allowance of incompatible State laws to FMCSRs Parts 390-397 to be allowed enforcement because the incompatible laws are being enforced upon non-commercial vehicles. This position is clearly contrary to FMCSAs responsibilities charged to FMCSA by Congress in the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159 - December 9, 1999).
(3) Your statement that enforcement of a two-hour parking time limit upon CMV drivers is not clear that they would “cause an unreasonable burden on interstate commerce” may be a debatable topic, but has no bearing on this issue. And for you to make this determination in regards to this serious safety issue, once again, demonstrates a position contrary to FMCSAs responsibilities charged to FMCSA by Congress in the Motor Carrier Safety Improvement Act of 1999. We contend it is extremely clear the enforcement of a two-hour parking time limit upon CMV drivers, which is in direct conflict with 49 CFR 395.3(a)(1) and 49 CFR 395.3(a)(2), not only violates FMCSA MCSAP regulations, but creates an extremely serious highway safety issue. CMV drivers which have accumulated 11 hours of drive time and are required to take a 10 hour break by federal law, being forced to return to our highways after two hours of rest, is obviously a serious safety situation. For FMCSA to determine this is not a serious safety issue, as well as not a violation of FMCSA MCSAP regulations, demonstrates a lack of responsibility regarding “safety as highest priority” as stipulated in the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159 Title.I.Section.113(a).)
The petition submitted by The American Driver, Michael Schaffner and Frederick Schaffner, per §350.335(d), to initiate a proceeding under §350.215 for the withdrawal of the state of Virginia’s eligibility for all basic program and incentive funds, addressed a clear violation of FMCSA MCSAP regulations. We had exhausted all avenues available to address this issue at the state level, and was left with no other option but to file a petition with FMCSA. However, the State of Virginia has since taken appropriate measures to correct this serious safety issue. Whether our submission of a petition to initiate a proceeding to remove Virginia’s MCSAP funding eligibility was the reason for Virginia’s change of position regarding parking time limits being enforced upon CMV drivers…or if Virginia’s change of position came about from our attempts to communicate the serious safety issue being created by parking time limits being enforced upon CMV drivers…we are not certain. But we are certain the actions by the state of Virginia does correct the serious safety issue which was being created by the enforcement of an incompatible State law with the FMCSRs, and we are grateful the State of Virginia has identified the circumstance we were trying to correct and have taken the appropriate measures regarding CMV drivers attempting to remain compliant and safe.
Therefore, because the State of Virginia has taken steps to truly assist CMV drivers in their requirements by Federal Motor Carrier Safety Regulations…we are formally withdrawing our petition.
In addition, due to FMCSAs determination and response to our petition, we will make our opinion clear regarding FMCSAs lack of upholding the responsibilities charged to FMCSA by Congress. The serious safety issue we presented in our petition was clear. The violations of FMCSA MCSAP regulations was clear. The action required by FMCSA was clear as well. For FMCSA to determine there was no serious highway safety issue or violations of FMCSA MCSAP regulations demonstrates to us…as well as the American motoring public…that FMCSA has neglected their agency’s responsibility towards commercial motor vehicle safety. It disturbs us greatly that FMCSA has made the determination that there‘s no justification for the initiation of a proceeding under 49 CFR 350.215 regarding CMV drivers being forced to violate Hours of Service regulations and drive tired. We hope that any future situations requiring an action of petitioning for a proceeding under 49 CFR 350.215 will be treated with the correct course of action by FMCSA.
Respectfully,
Frederick Schaffner
507 Main Street
Nocona, Texas 76255
940-642-1640
Michael Schaffner
507 Main Street
Nocona, Texas 76255
940-923-3267
Cc:
Department of Transportation
Office of Inspector General
1200 New Jersey Avenue, S.E.
Washington, DC 20590
(hotline@oig.dot.gov)
Office of the Governor
Patrick Henry Building, 3rd Floor
1111 East Broad Street
Richmond, VA 23219
(contact form on Virginia.gov)
**********
Stand Up, Speak Out or Accept What Comes!!!
Safe Trails and God Bless,
~SilverSurfer~
**********
507 Main Street, Nocona, Texas 76255
940-923-3267 ~ 940-642-1640
April 25, 2009
Federal Motor Carrier Safety Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Attn: William A. Quade
Associate Administrator for
Enforcement and Program Delivery
(c/o Jack.Kostelnik@gov.gov)
Re: MC-ESS
(Response to our Petition for FMCSA to initiate a proceeding under §350.215 for withdrawal of the state of Virginia’s eligibility for all Basic Program and Incentive Funds dated April 25, 2009)
Dear Mr. Quade:
As you have stated in your response…
(Quote) The MCSAP is a Federal grant program that provides financial assistance to States to reduce the number and severity of crashes and hazardous materials incidents involving CMVs. The goal of the MCSAP is to reduce CMV involved crashes, fatalities, and injuries through consistent, uniform, and effective CMV safety programs. The MCSAP includes conditions for participation by States and local jurisdictions and promotes the adoption and uniform enforcement of safety rules, regulations, and standards compatible with the Federal Motor Carrier Safety Regulations and the Federal Hazardous Materials Regulations for both interstate and intrastate motor carriers and drivers.
While I understand your concerns regarding Virginia’s enforcement of a two-hour parking restriction in State rest areas, the State’s enforcement policy does not violate the MCSAP compatibility rules. MCSAP recipients must agree to adopt and enforce regulations compatible with Parts 390-397 of the Federal Motor Carrier Safety Regulations (FMCSRs) (see 49 CFR 350.201(a)). The FMCSRs, however, do not require States to make parking available to CMV drivers. The Virginia parking restriction cannot be held incompatible in the absence of a Federal standard on the same subject.
It is true that FMCSA has the authority, under certain circumstances, to preempt State laws or regulations “on commercial motor vehicle safety” (49 U.S.C. 31141), but the rest area parking restrictions are applied to all vehicles, private cars as well as commercial trucks. It is therefore difficult to argue that this is a policy “on commercial motor vehicle safety.” Even if the parking restrictions were directed solely at CMVs, it is not clear that they would “cause an unreasonable burden on interstate commerce” (49 U.S.C. 31141(c)(4)(C)), the relevant legal test in this situation. After all, Virginia does not prohibit CMVs from parking for extended periods elsewhere. CMV operators have the option to leave interstate highways and find another place to park. While this may be inconvenient to truckers, it does not violate the MCSAP requirements, nor is it otherwise illegal under Federal law.
Therefore, the FMCSA will not take any action to withdraw Virginia's MCSAP Basic and Incentive funding.
If you have any questions regarding this matter, please contact Jack Kostelnik at 202-366-5721, or e-mail him at jack.kostelnik@dot.gov. (Close Quote)
With all due respect…it seems apparent we must clarify, and make extremely clear, our concerns and FMCSAs responsibility.
(1) Our petition does not contend the State of Virginia is required to provide parking for CMV drivers. It does, however, address an issue regarding the enforcement of a parking time limit incompatible with FMCSA regulations within parking areas which are provided to CMV drivers. We contend where parking is available, and CMV drivers are able to locate legal parking spots, a State is required to ensure no laws are enforced upon CMV drivers which are incompatible with FMCSRs Parts 390-397…in accordance to FMCSA MCSAP Part 350. FMCSRs 49 CFR 350.333(d), 355.1(a) and 355.21(a) does not state, nor are there exceptions stipulated, regarding options. These regulations are very clear regarding the compatibility of State laws to Federal Motor Carrier Safety Regulations Parts 390-397 to remain eligible for MCSAP funding. Your reasoning that CMV drivers have options and therefore this grants a State the authority to enforce a law which is in direct conflict with 49 CFR 395.3(a)(1) and 49 CFR 395.3(a)(2) is not a liberty FMCSA is allowed to determine. The regulations are very clear regarding the compatibility of State laws to FMCSRs Parts 390-397. We will also point out safety rest areas were built with federal funding, maintained with federal funding and are located within the federal jurisdiction of the National Highway Network. These safety rest areas, where available, do not have FMCSA MCSAP regulations allowing enforcement of incompatible State laws to FMCSRs Parts 390-397.
(2) CMV drivers are a core component to interstate commerce. State laws being enforced upon non-commercial vehicles does not violate FMCSA MCSAP regulations. However, the enforcement of those laws upon CMV drivers, a core component to interstate commerce, which are not compatible to FMCSRs Parts 390-397 is a violation. There is no FMCSA regulation stipulating the allowance of incompatible State laws to FMCSRs Parts 390-397 to be allowed enforcement because the incompatible laws are being enforced upon non-commercial vehicles. This position is clearly contrary to FMCSAs responsibilities charged to FMCSA by Congress in the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159 - December 9, 1999).
(3) Your statement that enforcement of a two-hour parking time limit upon CMV drivers is not clear that they would “cause an unreasonable burden on interstate commerce” may be a debatable topic, but has no bearing on this issue. And for you to make this determination in regards to this serious safety issue, once again, demonstrates a position contrary to FMCSAs responsibilities charged to FMCSA by Congress in the Motor Carrier Safety Improvement Act of 1999. We contend it is extremely clear the enforcement of a two-hour parking time limit upon CMV drivers, which is in direct conflict with 49 CFR 395.3(a)(1) and 49 CFR 395.3(a)(2), not only violates FMCSA MCSAP regulations, but creates an extremely serious highway safety issue. CMV drivers which have accumulated 11 hours of drive time and are required to take a 10 hour break by federal law, being forced to return to our highways after two hours of rest, is obviously a serious safety situation. For FMCSA to determine this is not a serious safety issue, as well as not a violation of FMCSA MCSAP regulations, demonstrates a lack of responsibility regarding “safety as highest priority” as stipulated in the Motor Carrier Safety Improvement Act of 1999 (Public Law 106-159 Title.I.Section.113(a).)
The petition submitted by The American Driver, Michael Schaffner and Frederick Schaffner, per §350.335(d), to initiate a proceeding under §350.215 for the withdrawal of the state of Virginia’s eligibility for all basic program and incentive funds, addressed a clear violation of FMCSA MCSAP regulations. We had exhausted all avenues available to address this issue at the state level, and was left with no other option but to file a petition with FMCSA. However, the State of Virginia has since taken appropriate measures to correct this serious safety issue. Whether our submission of a petition to initiate a proceeding to remove Virginia’s MCSAP funding eligibility was the reason for Virginia’s change of position regarding parking time limits being enforced upon CMV drivers…or if Virginia’s change of position came about from our attempts to communicate the serious safety issue being created by parking time limits being enforced upon CMV drivers…we are not certain. But we are certain the actions by the state of Virginia does correct the serious safety issue which was being created by the enforcement of an incompatible State law with the FMCSRs, and we are grateful the State of Virginia has identified the circumstance we were trying to correct and have taken the appropriate measures regarding CMV drivers attempting to remain compliant and safe.
Therefore, because the State of Virginia has taken steps to truly assist CMV drivers in their requirements by Federal Motor Carrier Safety Regulations…we are formally withdrawing our petition.
In addition, due to FMCSAs determination and response to our petition, we will make our opinion clear regarding FMCSAs lack of upholding the responsibilities charged to FMCSA by Congress. The serious safety issue we presented in our petition was clear. The violations of FMCSA MCSAP regulations was clear. The action required by FMCSA was clear as well. For FMCSA to determine there was no serious highway safety issue or violations of FMCSA MCSAP regulations demonstrates to us…as well as the American motoring public…that FMCSA has neglected their agency’s responsibility towards commercial motor vehicle safety. It disturbs us greatly that FMCSA has made the determination that there‘s no justification for the initiation of a proceeding under 49 CFR 350.215 regarding CMV drivers being forced to violate Hours of Service regulations and drive tired. We hope that any future situations requiring an action of petitioning for a proceeding under 49 CFR 350.215 will be treated with the correct course of action by FMCSA.
Respectfully,
Frederick Schaffner
507 Main Street
Nocona, Texas 76255
940-642-1640
Michael Schaffner
507 Main Street
Nocona, Texas 76255
940-923-3267
Cc:
Department of Transportation
Office of Inspector General
1200 New Jersey Avenue, S.E.
Washington, DC 20590
(hotline@oig.dot.gov)
Office of the Governor
Patrick Henry Building, 3rd Floor
1111 East Broad Street
Richmond, VA 23219
(contact form on Virginia.gov)
**********
Stand Up, Speak Out or Accept What Comes!!!
Safe Trails and God Bless,
~SilverSurfer~
Replies to This Discussion
-
Permalink Reply by Donna on -
Fred and JB,
Thanks for sharing all the letters of correspondence with everyone. I've read them all and I must say that it is truly a blessing to be able to read and evaluate all that has transpired since day one of this ordeal. This has been an uphill battle and every time I digest another correspondence notification, I think of the saying, "you can't fight city hall," and then I think again, "Yes you can!" VICTORY IN VIRGINIA .......Congratulations!
Thanks again and we're on to the next battle.
Donna Smith
www.AskTheTrucker.com
I
About
Site Links
![TheAmericanDriver [From Drivers - For Drivers] ~ Assisting Professional Drivers At No Cost and Fighting To Bring Positive Change To The Trucking Industry](http://www.theamericandriver.com/images/theamericandriver_truckbanner_200x100.gif)
OIL IS WHAT PRICE?
Music
Trucking Daily
COMPETITION WATCH: Teamsters union attempts to rally Challenger workers
CAMBRIDGE, Ont. -- The Teamsters Union served notice today that it is campaigning to organize workers fro... [Full Story]Transportation company designs homeless shelter out of used shipping container
VANCOUVER, B.C. -- Shadow Lines Transportation Group is finding a new use for an old container and provid... [Full Story]COMPETITION WATCH: Bison Transport launches safety program for mechanics
WINNIPEG, Man. -- Bison Transport, already well-known for its on-road safety record, is expanding its saf... [Full Story]National Truck League alters name
LONDON, Ont. -- National Truck League has rebranded itself to better reflect the scope of its service off... [Full Story]Energotest confirms dump trailer tarps save fuel
ST-HYACINTHE, Que. -- Mechanical tarp manufacturer ElCargo participated in the latest Energotest conducte... [Full Story]© 2009 Created by OverTime on Ning. Create a Ning Network!
