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Two Former ICC Counsel Denied Priority Employment Rights
with FAA
Separate federal courts have denied two former Interstate Commerce
Commission ("ICC") employees' challenges of FAA's decision denying them
priority employment rights for vacant agency positions.
The United States Court of Appeals for the Seventh Circuit in
Anagnost v. Garvey(1) and the
United States District Court for the District of Columbia Circuit in Thomas
v. Slater(2) both held that a
provision in the 1995 Act terminating the ICC,(3) placing displaced ICC employees on
a DOT priority employment list, did not apply to open positions within the
FAA.
Section 203(c) of the ICC Termination Act states, "notwithstanding
all other laws and regulations, the Department of Transportation shall place
all Interstate Commerce Commission employees separated from the Commission as a
result of this Act [on the DOT priority employment list]." The cases involved
actions by two former ICC counsel who lost their jobs following the abolition
of the ICC. Both applied for vacant attorney positions within the FAA and
advised the agency that they were entitled to priority employment status under
the ICC Termination Act. While both parties were apparently deemed qualified
for the positions for which they sought employment, the FAA rejected the
applicants' requests for priority employment status and ultimately hired other
persons for the job vacancies.
The question at issue in the cases was whether the Act conferred
on laid-off ICC employees the right to priority employment with all agencies
within the DOT, including the FAA. The courts both agreed that while the FAA
was an "administration" within DOT,(4) the agency was not subject to the
priority employment provision included in the ICC Termination Act. The courts'
decisions were, in part, based on 49 U.S.C. § 106(f)(2),
which affords the FAA control over its own employment system -- a
system separate from that of DOT.(5)
The courts in both Anagnost and Thomas agreed with the FAA that a
person's placement on the DOT priority employment list does not confer on them
employment rights for job vacancies within the FAA. The justification was based
on the specialized employment needs of the FAA. As stated by the Seventh
Circuit in Anagnost, at 705-06:
Having its own employment system enables the FAA to hire air
traffic controllers (and specialists in aviation) without regard to the red
tape that governs most public employment. A statutory preference for applicants
with expertise in railroads, trucks, buses, and barges (the province of the
ICC) is the sort of red tape that could cause problems for an agency that needs
experts in aviation.
The end result of Anagnost and Thomas is the
limiting of incentives designed by Congress to give laid-off ICC employees a
leg-up in their pursuit of employment within DOT agencies.
Rules Governing Motor Carrier Cargo Tank
Loading/Unloading Upheld
A federal district court has rejected efforts by gas companies
seeking to block enforcement of rules governing the loading and unloading of
cargo tank motor vehicles as adopted by DOT's Research and Special Programs
Administration ("RSPA").
National Propane Gas Association v. DOT,(6) ("NGFA") involved a
challenge of final rules adopted in 1997 under DOT's Hazardous Material
Regulations ("HMA") entitled, "Hazardous Materials: Cargo Tank Motor Vehicles
in Liquefied Compressed Gas Service."(7) The rules address federal safety
standards governing emergency discharge control devices used to mitigate
spillage and release of hazardous gases and materials delivered by cargo tank
trucks. The rules were adopted, in part, in response to a September, 1996
incident in Sanford, North Carolina, resulting in the release of 35,000 gallons
of propane gas when a discharge hose burst due to failure of a stop valve as
the gas was being transferred at a bulk storage facility. The incident, and a
subsequent investigation by RSPA, revealed widespread non-compliance with
existing regulations governing the design and use of cargo tank motor vehicles
involved in liquefied compressed gas service.
After adoption of an emergency interim final rule(8) designed to give cargo carriers
time to implement improvements to their equipment to minimize the threat of
emergency gas discharge accidents, RSPA adopted the interim rules in final form
in December, 1997.(9) The rules
govern the unloading of cargo and the activation of specified self-closing stop
valves designed to control discharge caused by transfer hose failure. The rules
give impacted cargo carriers three alternatives for complying with the safety
rules.(10)
The final rules in question were challenged by the plaintiffs in
NGFA under the Administrative Procedure Act ("APA") as arbitrary and
capricious. The plaintiffs alleged that the rules were based on a
misunderstanding by RSPA of the problem, were burdensome and unnecessary, or
otherwise impracticable.
The court in NGFA concluded as a threshold matter, that it
"ha[d] difficulty" overturning rules which allowed as an alternative the
plaintiffs to comply with long-standing applicable safety requirements first
implemented in 1941.(11) The court
also concluded that besides this factor, the Final Rule otherwise met the
applicable APA requirements. Relying on the RSPA's expertise over
transportation safety matters, the court rejected the plaintiffs' allegation
that the rule unlawfully provided for an "absolute" rather than an "adequate"
level of safety protection, and provided for safety measures that were
unnecessary given the relative low risk of accidental discharge.(12) The court found that
"[i]ndustry disregard for the [safety standards], coupled with the potential
for extremely dangerous propane discharges, warranted the Final Rule."(13) The court in NGFA
also rejected the plaintiffs' allegation that none of the safety compliance
alternatives were feasible or otherwise affordable. The court concluded that
the plaintiffs had at least two viable, affordable alternatives for compliance
with the rules in question.(14)
The plaintiffs' claimed that the Final Rule violated existing
regulations governing the distance away from the cargo tank in which the
operator attending the discharge of cargo must stand. That argument was
rejected by the court. The court held that the standard sought to be enforced
was consistent with current practice under governing rules.(15) Finally, the court in
NGFA rejected as unfounded the plaintiffs' claims that the rule violated
the federal Regulatory Flexibility Act, requiring a detailed description of the
rule, affected parties, alternatives, etc.(16)
On a related note, RSPA, in proposed rules issued on March 22,
1999, has received comments on proposals intended to update and replace the
provisions in the safety rules challenged in NGFA.(17) Comments were due on the
proposal on April 21, 1999. Final rules implementing RSPA's revised
requirements for cargo tank emergency discharge control equipment are due to be
implemented by the time of this publication.
Hot DOT Spots
- DOT has sent to Congress legislation authorizing monies for
construction of the Woodrow Wilson Memorial Bridge located southeast of
Washington, D.C. on the Potomac River, despite a decision rendered in April,
1999 by the United States District Court for the District of Columbia which
blocked construction plans for failure to adhere to certain federal
environmental requirements related to the National Environmental Policy Act and
the National Historic Preservation Act. The six-lane drawbridge, built in 1961,
was designed to handle approximately 75,000 vehicles per day. It now handles
far above that amount, and travel is estimated to reach 275,000 vehicles per
day by the year 2020. The proposed legislation would provide advance contract
authority, to begin in 2004, of $600 million for construction of a new
replacement bridge -- $150 million per year over a four year period. This
funding is in addition to the $900 million authorized last year by the
Transportation Equity Act for the 21st Century. DOT is appealing part of the
court's decision blocking its construction plans, and it believes that its
construction schedule can remain on-track if the appeal is successful. The
federal bridge construction project now awaits action by the Congress on
funding.
- The FAA is taking comments on a rulemaking proposal revising
its regulations located at 14 C.F.R. § 145, governing domestic and foreign
maintenance and repair stations. The revisions were deemed necessary to improve
outdated repair standards first developed during the infancy of the aviation
industry. Among other things, the new requirements are designed to require U.S.
repair stations to implement tougher standards for maintenance work outsourced
to contractors, improve quality control for individual repair stations, improve
the responsibility of repair stations for contractor work, and improve
training, training manuals, and recordkeeping at the stations. There are
currently over 4,500 repairs stations in the United States, and over 500 such
stations are located abroad. Comments on the proposed rules are due by October
19, 1999. The FAA's Notice of Proposed Rulemaking can be found at 64 Fed. Reg.
33142 (June 21, 1999).
- The FHWA has adopted new rules requiring certain truck
semitrailers and trailers be retrofitted with reflectors or reflective tape on
the sides and rear. The rulemaking was ordered by the Transportation Equity Act
for the 21st Century and is the result of concerns expressed over the incidence
and severity of collisions between passenger cars and large trailers during
periods of darkness. The rules cover trailers manufactured before December 1,
1993. Installation of the reflective materials on trailers covered by the rule
are required by June 1, 2001. The final rule can be located at 64 Fed. Reg.
15588 (March 31, 1999).
- DOT Secretary Slater has announced the appointment of two
individuals to agency posts. George R. Molaski was appointed to the position of
Chief Information Officer, a newly created agency position. He has been
assigned as principal advisor to the Secretary on matters involving information
resources and information services management. Among other things, Mr. Molaski
will be assigned to the agency's work on making its computer systems Year 2000
compliant. Mr. Molaski has a background in information technology, and has been
associated with various private businesses involved in the field. Linda Bauer
Darr has been named deputy assistant secretary for DOT's Office of Budget and
Programs. Ms. Darr most recently worked for the American Trucking Association,
and has served on several transportation and commerce related boards and
committees.
1. 170 F.3d 704 (7th Cir. 1999).
2. No. Civ.A. 98-0004(JHG), 1999 WL 35590
(D.D.C., Apr. 28, 1999).
3. Interstate Commerce Commission Termination
Act, Pub. L. No. 104-88, 109 Stat. 803 (1995). The Act abolished the ICC and,
in its place, established the three member Surface Transportation Board, which
retained jurisdiction over certain remaining agency functions. The Act resulted
in a large reduction in employees necessary to carry-out retained agency
functions.
4. See 49 U.S.C. § 106(a).
5. The FAA Reauthorization Act of 1996, P.L.
No. 104-264, 110 Stat. 3229 (codified at 49 U.S.C. § 106), enacted
subsequent to the 1995 ICC Termination Act, at § 106(f)(2)(D),
specifically excludes DOT from personnel decisions within the FAA.
6. No. Civ.A. 3:97-CV-2576-D, 1999 WL 150322
(N.D. Texas, March 17, 1999).
7. See 62 Fed. Reg. 65188 (1997) (codified at
49 C.F.R. § 171.5(a)(1)(iii). The plaintiffs in the case included the
National Propane Gas Association, Northwest Butane Gas Company, and Huffhines
Gas, Incorporated. The case was decided on individual summary judgment motions
filed with the court by the plaintiffs and the defendant.
8. 62 Fed. Reg. 7638 (Feb. 19, 1997).
9. See 62 Fed. Reg. 44038 (1997), as
modified at 62 Fed. Reg. 65188 (1997).
10. The Rule, at 19 C.F.R.
§171.5(a)(1)(iii) specifies that activation by a "qualified person" of an
emergency self-closing stop valve may be accomplished through:
(A) Compliance with § 178.337-11(a)(1)(i) of this subchapter
[governing protection through the use of an excess flow or stop valve].
(B) A qualified person positioned within arm's reach of a
mechanical means of closure of the internal self-closing stop valve at all
times the internal self-closing stop valve is open . . .; or
(C) A fully operational remote-controlled system capable of
stopping the transfer of lading by operation of a transmitter carried by a
qualified person attending unloading of the cargo tank motor vehicle. . . .
11. NGFA, at *10.
12. Id.
13. Id. at *11.
14. Id. at *12-*14.
15. Id. at *16-*17.
16. Id. at *14-*16.
17. See Hazardous Materials:
Revision to Regulations Governing Transportation and Unloading of Liquefied
Compressed Gases, 64 Fed. Reg. 13856 (March 26, 1999).
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