Stop illegal shutdowns

WASHINGTON -- The United Motorcoach Association wants federal transportation safety regulators to order New York state officials to cease enforcement of a controversial regulation the state adopted this past summer that allows them to shut down motorcoach operators with safety violations.

In a letter to the head of the Federal Motor Carrier Safety Administration, UMA President and Chief Executive Victor Parra said the state overstepped its authority when it adopted the emergency regulation in July.

"The key problem with the emergency rulemaking is that it is at its core ultra vires (beyond its power)," Parra said in his letter to Anne S. Ferro, FMCSA administrator.

"It assumes power to revoke and suspend authorization of carriers which New York has no power to grant in the first place."

Parra urged the federal agency to quickly review the regulation and then enjoin New York from enforcing it, stressing that it not only violates federal law but also imposes unnecessary costs and burdens on interstate commerce.

"And worse, (it) will fail to enhance public safety," Parra asserted.

The regulation was rammed through the adoption process at the state Department of Transportation by Gov. Andrew Cuomo who said he was responding to a rash of deadly motorcoach crashes this past spring. It gave the state commissioner of transportation sweeping powers to sideline carriers when they have three to five violations within a six-month period.

Eight carriers initially were cited under the rule. State transportation officials did not return calls seeking the status of the eight carriers and if others have been put out of service under the rule.

N.Y.: Follow the law

Parra said that while UMA supports strong enforcement and zero tolerance policies that may help reduce bus accidents, it also believes that standards, penalties and enforcement must be tailored to efficiently address the safety concerns in a cost-effective and lawful manner.

"As the largest industry representative of motorcoach carriers, UMA has never been complacent about the industrys record as one of the safest modes or travel," he said.

Parra hit hard at the ultra vires issue in his letter, citing federal statutes, rules and court decisions supporting his contention that regulation of motorcoaches with intrastate operations is a federal responsibility.

He pointed to the Transportation Equity Act for the 21st Century (TEA-21) adopted by Congress in 1998 as a key element in UMAs position against New York adopting the regulation.

"The law was considered to completely eliminate licensure or authority requirements that (it) provided no state may promulgate any rule that requires a motor carrier to display any form of identification other than forms or identification required by the Secretary of Transportation," he emphasized.

Parra stressed that TEA-21 was so clear regarding federal preemption that soon after it took effect every state, except New York, repealed their own laws governing motorcoach operating authority, as well as the safety rules and regulations they were using for bus inspections.

Although New York did not drop its laws, he said lawmakers in the state apparently recognize their limitations because they have not exercised any authority to suspend or revoke a motorcoach operators license since then.

Crossing boundaries

"Quite ironically, the New York legislature seemingly recognizes its own boundaries even as the New York Department of Transportation seeks to cross them," he said.

Parra maintained, too, that the New York rule places an undue burden on interstate commerce, noting that it may treat out-of-state and in-state carriers differently by imposing one set of rules on carriers that travel intrastate as opposed to interstate.

"The rule will require carriers to be held accountable to separate standards and enforcement authorities a state standard and a federal standard, which are incompatible with one another," he said.

Parra said the rule also placed carriers based in New York at an economic disadvantage because motorcoach companies located in neighboring states are not subject to the new regulation.

So long New York

"There is at least anecdotal evidence that some passenger carriers may be choosing to register their companies for economic advantages in other states while all the while their actual base of operation is New York State, further placing domiciled carriers at an economic disadvantage," he said.

Parra also maintained that current federal regulations require the U.S. Secretary of Transportation to review the New York rule before it can be enforced.

"And when the secretary reviews state regulations on commercial motor vehicle safety that are in addition to or more stringent than those imposed by the federal government as is the case here, the state regulation can only be enforced if the secretary expressly finds the regulation benefits safety, is compatible with regulations prescribed by the secretary, and does not unduly burden interstate commerce," he noted.

Parra suggested that once the rule is reviewed, the secretary will find that it is irreconcilable with federal standards as a matter of law.

"The public outcry from the recent crashes in New York and New Jersey is understandable," he said.

"However, UMA also understands that the public attention obscures in the public mind the fact that such accidents are fortunately also very rare and that the best safety rules are written after time for analysis and study."