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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