On the Road

HOS, windmills, dropped balls and the DOT

November 8, 2011

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What do the Federal Motor Carrier Safety Administration and the Federal Aviation Administration have in common -- aside from coming under the purview of the Department of Transportation? They both apparently have a penchant for dropping the ball on rulemaking.
More than 100 windmill pilons standing 440 tall in the middle of Nantucket Sound pose no threat to navigation, the FAA says. Tell that to a VFR pilot on approach to Martha's Vinyard in crummy weather.
More than 100 windmill pilons standing 440 tall in the middle of Nantucket Sound pose no threat to navigation, the FAA says. Tell that to a VFR pilot on approach to Martha's Vinyard in crummy weather.


As we in trucking know only too well, our beloved Hours of Service regs have been in and out of court and thus in and out of regulatory limbo for seven years now. Two challenges, two court rulings, and two findings that the agency either ignored some part of the rulemaking process or just dropped the ball in developing the rules. A third court challenge filed in 2009 was more or less pre-empted when the courts directed FMCSA to redraft the rule rather than vacate it yet again.

As we await the outcome of that politically fired fiasco, we learned that the FAA isn't much better than FMCSA at following its own rules. The agency apparently overlooked the threat to general aviation in deciding, last year, that construction of an offshore wind farm could proceed in the federally regulated waters of Nantucket Sound.

A project called Cape Wind has been in development there for more than a decade that would see 130 440-foot wind turbines erected in a 25-square-mile area roughly centered in a triangular arrangement between Barnstable, Nantucket, and Martha's Vineyard, Mass.

The Boston-based developer has $2.5 billion tied up in Cape Wind already, but opponents of the plan took advantage of FAA's fumbling to stall the project yet again.

You see, there are three General Aviation airports at located at Barnstable, Nantucket and Martha's Vineyard, and in a botched safety assessment of the area conducted in 2010, FAA concluded that the cluster of 440-foot towers posed no threat to air navigation provided they were suitably marked.

Opponents to the plan went to court, arguing the FAA hadn't sufficiently considered the impact on flights under Visual Flight Rules -- where pilots actually look out the windscreen to see where they are going, as opposed to Instrument Flight Rules (IFR), which electronically put aircraft on predetermined paths much like freeways.

The town of Barnstable, Mass., and a group of opponents to the project challenged FAA's opinion, arguing that the agency "violated its governing statute, misread its own regulations, and arbitrarily and capriciously failed to calculate the dangers posed to local aviation."

Sounds eerily familiar, doesn't it?

Managers of GA airports at Barnstable, Nantucket and Martha's Vineyard told the court that the "finely balanced airspace over Nantucket Sound is already one of the most congested, foggy, and dangerous airspaces on the eastern seaboard." Adding turbines to the area, they said, would create a "disaster waiting to happen."

The FAA-commissioned study found that 425 planes under VFR rules passed near the Cape Wind project zone in a 90-day period.

"Once the turbines are built, many of these flights may be forced to be rerouted or to proceed in violation of the FAA's own regulation ... which requires a 500-foot distance between an aircraft and any structure," the court said.

The FAA now must review and re-submit its findings in the case.

Was it simply a blunder on FAA's part? Incompetence? Or political interference?

Divisive Issues

As is the case with our HOS tribulations, camps on both sides of the issue are pulling out all the stops to influence the outcome of this case.

The Boston Herald reports that Cape Wind opponents cheered the ruling, while the Boston-based developer vowed to plow on with its $2.5 billion plan.

"It's a key victory and an important step toward Cape Wind's ultimate failure," Audra Parker, president of the Alliance to Protect Nantucket Sound, was quoted by the paper. "With this decision, Cape Wind can't begin construction or move forward."

And that's precisely the point.

When a federal agency doesn't do its job with appropriate regard to the law, and fumbles critical aspects of its decision-making process, it tosses everyone into the spin cycle -- and at tremendous cost both in financial terms and in terms of long-term planning requirements.

The Cape Wind project has been in the works for more than a decade now, and the developer must be feeling pretty much the same way trucking feels about FMCSA's handling of HOS in recent years.

Government agencies shouldn't be allowed to get away with that kind of ineptitude.

The potential impact of a significant change to HOS would cost billions in systems overhauls, lost productivity, and the inevitable retraining and eventual fines resulting from yet another overhaul to HOS, all because the regulators left a door open that diligent opponents found and charged straight through.

I can't even imagine what all the uncertainty -- created in July 2004 when the court threw out the first major overhaul to HOS since 1939 -- has cost the industry, the HOS opponents, the courts, or indeed, the agency itself. It would be staggering. And I'll bet not even a single civil servant lost a job over it.

For what it's worth, there's some comfort in knowing we're not alone in our struggles.

For those interested, a far more thorough analysis of the FFA decision -- or lack thereof -- can be found here.

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Author Bio

Jim Park

Equipment Editor

Truck journalist 13 years, commercial driver 20 years. Joined us in 2007. Specializes in technical/equipment material (including Tire Report), brings real-world perspective to test drives.

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