December 7, 2004

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Headline News

• Meeting the New Entry-Level Standards
• TCA Files Comments in Opposition to Mandatory Electronic On-Board Recorders (EOBRs), Voices Member Concerns to FMCSA
• Less Restrictions At Border Crossings
• NHTSA Announces Extension of Safety Belt Grant Program, Money Provided For Innovative Safety Belt Use Programs
• Changes to Haz-Mat Background Check Requirement
• OSHA National Advisory Committee on Ergonomics Completes Charter, Trucking Still Unaffected
• Change to Rear Impact Guard Labels, New Placement Allowed

Meeting the New Entry-Level Standards

Historically, the nation's economy has always depended on professional drivers to move raw materials and manufactured products from point of origin to end-user. And today, because the professional driver's knowledge and skill is even more critical, the Federal Motor Carrier Safety Administration (FMCSA) has issued new Minimum Training Requirements for entry-level drivers of commercial motor vehicles (CMV).  These requirements went into effect October 18, 2004 .

The new mandate requires all new professional drivers required to obtain a commercial driver's license to complete training in four subject areas - Hours of Service, Whistleblower Protection, Driver Qualifications and Driver Wellness. In the transportation industry, management and drivers' time are valuable commodities in short supply, so Thomson Delmar Learning has developed a tool that allows the new training requirement to fit into everyone's busy schedule. 

Entry-Level Truck Driver Regulation Training, supported by the Professional Truck Drivers Institute (PTDI), is a user-friendly, all-inclusive training solution for the new regulations. It provides straight-forward, easy-to-read information that lends itself to self-paced learning for the individual as well as for use in effective group classes. The core manual is available as a book (Order # 1401899366) or CD-ROM (Order# 1401899358)

At the end of the training, a comprehensive 50-question review is provided so that each entry-level driver can test his or her understanding of the four required topics. Each topic is thoroughly discussed, using the most up-to-date information available.  All medical terms are translated into everyday language and each concept is presented in a clear, easy-to-understand format and is offered in a choice of media. A certificate of completion is also provided, once a passing grade is achieved.

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TCA Files Comments in Opposition to Mandatory Electronic On-Board Recorders (EOBRs), Voices Member Concerns to FMCSA

In comments filed with the Federal Motor Carrier Safety Administration (FMCSA) on November 30, 2004 , the Truckload Carriers Association (TCA) told the agency “TCA is opposed at this time to any potential future Electronic On-Board Recorder (EOBR) mandate.” Our comments were filed in response to the agency's September 1, 2004 Federal Register Advance Notice of Proposed Rulemaking (ANPRM) and request for comments on the use of EOBRs for hours of service (HOS) compliance in commercial motor vehicles. In order to obtain pertinent information and feedback for the development of our comments – and to best represent the TCA membership on this issue – we forwarded a brief survey to the member companies with questions regarding a potential EOBR mandate. The comments submitted to the agency were developed primarily from these survey responses.

In the November 30 filed comments, specific concerns expressed regarding an EOBR mandate included the following: privacy issues; cost – not only for installation of the devices, but also other potential start-up costs, replacement costs, additional monthly charges, training costs [for industry and the enforcement community], and additional hardware costs; potential furtherance of the current driver shortage problem; the question of who owns the EOBR data; and the current limitations of the EOBR technology (i.e., reliability of data). A number of various other concerns with respect to a potential EOBR mandate are discussed in detail as well.

By way of background, the September 1 ANPRM was published shortly after the D.C. Circuit Court of Appeals July 16, 2004 decision to vacate the agency's “new” HOS rules. Despite the fact that the Court vacated the rules as the agency “ignored the issue of the driver's health”, the Circuit Court Judge also wrote, “the agency's justification for not requiring EOBRs….is another aspect of the final HOS rule of questionable rationality.” In addition, the Court had suggested that the FMCSA had not fulfilled its duty in properly testing and evaluating EOBRs. In response, the FMCSA stated, “This ANPRM, which has been under development for some time, is an effort to do just that.”

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Less Restrictions At Border Crossings

The U.S. Department of Homeland Security (DHS) recently announced that it has decided that under the USVISIT program truck drivers that are permanent residents of Canada – but who are not Canadian citizens – will not have to be fingerprinted and photographed each time they enter and exit the U.S. It was feared that such a requirement would increase congestion and inefficiencies at the busiest border crossings, particularly in southern Ontario and the lower mainland of British Columbia where non-citizens represent a higher proportion of the truck driver population.

A recently published USVISIT fact sheet published by DHS on this issue, says that while Cus tom s and Border Protection (CBP) officers always retain the discretion to refer a driver for USVISIT processing as part of the inspections process, Canadian permanent resident drivers, including those in the FAST program, will only have to report for USVISIT processing when they renew their multiple entry I-94 – typically every 6 months. The link to the multiple entry I-94 process is significant because it means that no driver will have to stop who isn't currently required to do so. A copy of this and other fact sheets on the USVISIT program can be downloaded off the DHS website at www.dhs.gov .

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NHTSA Announces Extension of Safety Belt Grant Program, Money Provided For Innovative Safety Belt Use Programs

In the November 30, Federal Register , the National Highway Traffic Safety Administration (NHTSA) announced the sixth year of a grant program under section 1403 of the Transportation Equity Act for the 21 st Century (TEA-21), as extended, to provide funding to States for innovative and effective projects to increase safety belt use rates. Under this program, funds are allocated each fiscal year (FY) to States that exceed the national average safety belt use rate or that improve their State safety belt use rate, based on certain required determinations and findings. Pursuant to subsequent extensions of TEA-21, this grant program currently is authorized through May 31, 2005 .

In the November 30 notice, NHTSA describes in detail the application and award procedures for receipt of funds under the program for FY 2005. This description includes the requirements for content of a State proposal and the elements, procedures and criteria the agency will use to determine which proposals are eligible for award and the amount of each award. Detailed application instructions are provided in the Application Procedure and the Application Contents and Grant Criteria sections of the notice. Applications must be received by the appropriate NHTSA Regional Office on or before close of business on January 10, 2005 .

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Changes to Haz-Mat Background Check Requirement

The Transportation Security Administration (TSA) issued a lengthy Interim Final Rule (IFR) and request for comments in the November 24 Federal Register in which the agency is amending certain standards relating to security threat assessments on drivers seeking or renewing a hazardous materials (HM) endorsement on their CDL. A number of substantive changes are detailed in the IFR, most notably the rule moves the start date of the fingerprint-based checks for transfer and renewal applicants back to May 31, 2005 . [Please note, however that TSA is not extending the compliance date for new entrants, which remains as January 31, 2005 .] The rule no longer requires the States to forward all driver applications to TSA, but the States must retain the applications for one year. States that elect to collect fingerprints and driver information must submit the information and fingerprints electronically, with some initial assistance from the agency. In addition, TSA is reducing the amount of advance notice the States must provide to drivers who hold HM-endorsements regarding the need for a security threat assessment upon renewal to 60 days. The IFR effective date is December 24, 2004 , and the agency is accepting comments on it up through this date as well. In this IFR, TSA is amending a number of aspects of the current rule which are detailed as follows:

• This rule will now require each State to declare whether it wishes to capture and submit fingerprints, application information, and fees itself, or alternatively chooses to have TSA complete those tasks. TSA must be informed of this decision no later than December 24, 2004 , and the declaration will remain in place until January 31, 2008 , unless otherwise authorized by TSA;

• TSA is changing the standards to permit certain aliens who are qualified to hold a CDL to apply for a security threat assessment;

• The agency is removing one felony offense, simple drug possession, from the list of disqualifying crimes, and adding the unlawful purchase, receipt, transfer, shipping, transporting, import, export, and storage of a firearm or explosives to the list. They are also reclassifying the offense of murder as a permanent rather than an interim disqualifier;

• TSA is changing the rule concerning transferring an HM-endorsement from one State to another so that drivers do not have to undergo a new background check when obtaining a license in a new State, subject to some restrictions;

• The agency is enhancing the appeal procedures for an individual who is determined to pose a security threat as a result of the intelligence-related check. The TSA is also increasing the response time limits for appeals and waivers. An individual may appeal an Initial Determination of Security Threat if they assert that they meet all standards for security threat assessment. If an applicant wishes to receive copies of the releasable material upon which the Initial Determination was based, they must serve TSA with a written request within 30 days after the date of service of the Initial Determination. TSA's response to this request is due within 30 days as well; and

• TSA has revised a number of the definitions and terms in the rule text in §49 CFR Part 1572.3 to describe the security threat assessment process, as well as “reorganizing” the rule's text so that it is easier to follow.

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OSHA National Advisory Committee on Ergonomics Completes Charter, Trucking Still Unaffected

On November 16-17, OSHA's National Advisory Committee on Ergonomics (NACE) met for it's sixth and last time, from their original two-year charter that began back in early 2002. At this time, it is unclear whether or not the group will be re-chartered for yet another term. At the last meeting, NACE members provided the agency with a set of five statements intended to guide its future work on ergonomics. These statements – “Considerations for Development of Future Guidelines, Outreach and Assistance, and Research” – are intended to provide OSHA with “perspective” on ergonomics work, according to J. Dan McCausland, safety and human resources director for the American Meat Institute. These five guidelines/recommendations are available for download on OSHA's website at www.osha.gov . NACE also agreed by unanimous consensus to formally recommend that the agency consider eight gaps in existing ergonomics-related research and forward them to “relevant” organizations. According to NACE, more research is needed:

• To examine the validity of techniques used to establish a diagnosis of musculoskeletal disorders (MSDs);
• To examine the role of psychosocial factors that contribute to or impact the development of MSDs;
• To examine the validity and reliability of existing exposure assessment measures [and] develop additional assessment methods;
• To determine the economic impact to organizations of what are commonly described as ergonomic interventions;
• Addressing the multifactorial causes of MSDs, such as psychosocial, occupational, and non-occupational factors, and their interactions;
• To describe the natural history of diseases or injuries, commonly known as MSDs;
• Regarding factors in workers' compensation systems and other statutory payment mechanisms on finding the causation, diagnosis, the duration of the disability, and other outcomes related to what are commonly known as MSDs; and
• To develop additional [animal] models in which the effects of physical loading on living tissues can be studied in a controlled manner.

OSHA Administrator Henshaw, who attended the meeting, told the members that the agency hopes to make a formal presentation on these research gaps identified by the committee at the next National Occupational Research Agenda session. The voluntary ergonomic guidelines have already been developed and implemented by OSHA for the nursing home and retail grocery industries. Henshaw also announced in September that employers and workers in the poultry processing industry now have a set of voluntary guidelines to draw on to help reduce ergonomic-related injuries. The trucking industry however continues to be unaffected with any proposed or draft ergonomic guidelines resulting from NACE recommendations or other OSHA initiatives on this issue. TCA will keep you informed if the trucking industry is affected in any way by these on-going discussions.

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Change to Rear Impact Guard Labels, New Placement Allowed

The National Highway Traffic Safety Administration (NHTSA) issued a Final Rule in the November 19, Federal Register that amends the Federal Motor Vehicle Safety Standard (FMVSS No. 223) on rear impact guards (underride guards). Under the current standard, rear impact guards must be permanently labeled with the guard manufacture's name and address, the month and year in which the guard was manufactured, and the letters “DOT.” However, in response to a number of petitions for rulemaking, NHTSA issued a March 29, 2002 Notice of Proposed Rulemaking (NPRM) proposing to allow manufacturers to place the label on the rear impact guard where it may be less exposed to damage, provided it did not interfere with the required retroreflective sheeting and is readily accessible for visual inspection.

As the agency received no industry comments to this NPRM, in this Final Rule they have adopted the proposal as set forth in the NPRM. 49 CFR Part 571.223; on Rear Impact Guards has been amended to read: “The label shall be placed on the forward or rearward facing surface of the horizontal member of the guard, provided that the label does not interfere with the retroreflective sheeting required by S5.7.1.4.1(c) of FMVSS No. 108 (49 CFR 571.108) and is readily accessible for visual inspection.”

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