February 8, 2005

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Headline News

• Protect Yourself When Talking About Past or Potential Employees
• HOS Comments Due to FMCSA March 10; Agency Questions Compiled
• Compliance Date for Implementation of FAST Card Requirement for Brass Shipment Drivers Delayed Until May 1, 2005
• Hazardous Materials Regulations Amended
• TSA’S HM-CDL Background Check Implementation Date Reminder
• RSPA Issues Notice and Request for Comments on DOT Reorganization Bill

Protect Yourself When Talking About Past or Potential Employees

The Nebraska Trucker ran a story in its December 2004 issue highlighting the importance of thinking before speaking when having conversations about past and potential employees. The best way to keep the employees you have, gain more, and keep your company out of a courtroom is to follow the tips below and pass them on to your staff:

•  If an employee develops some type of physical restriction (not a disability limiting major life activities) such as a chronic back condition which does not allow him to do the work for which he was hired, your obligation is to engage the employee and try to find another option for him in the company. Talk with the employee about his ideas for what else he could or would like to do, treat the employee fairly and attempt to accommodate him, document this process. However, if there is not way to reasonably accommodate the person, you can legally terminate him.

•  When speaking to a potential employer about a previous employee, the safest thing to do is to simply provide the dates of employment and the duties performed.

•  If you do chose to speak further about a previous employee the opinion should be based on first hand knowledge and provided by someone who worked with the employee in question.

•  When discussing past and potential employees company representatives should keep comments as conservative as possible keeping in mind that companies can be charged with defamation.

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HOS Comments Due to FMCSA March 10; Agency Questions Compiled

As we have been reminding you from week to week, the Federal Motor Carrier Safety Administration (FMCSA) published in the January 24, 2005 Federal Register a Notice of Proposed Rulemaking (NPRM) on the current hours of service (HOS) rules. As we have reported to you, this proposal contains no proposed changes to the current HOS rules, but instead in the NPRM the FMCSA is seeking industry input and answers to a number of questions as they relate to the current rules. In order to assist you in the filing of comments to this NPRM, we have summarized for you the questions as posed by the agency which can be accessed by clicking here. We strongly encourage your filing of comments on this critical issue, and they must be filed with the FMCSA by March 10, 2005 because of their “compressed schedule” -- the current rules remain in effect until September 30, 2005 .

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Compliance Date for Implementation of FAST Card Requirement for Brass Shipment Drivers Delayed Until May 1, 2005

The U.S. Cus tom s and Border Protection (CBP), an agency of the Department of Homeland Security (DHS), announced on January 28 an extension of the compliance date for implementation of the Free and Secure Trade (FAST) Card requirement for Border Release Advance Screening and Selectivity (BRASS) shipment drivers to May 1, 2005 . The enforcement date, for this component of the Trade Act of 2002 requirements, had been scheduled to begin on January 31, 2005 , for the first group of 40 ports. The Canadian Trucking Alliance (CTA) and the American Trucking Associations (ATA) had lobbied for an extension due to concerns that driver backlogs for FAST registrations would create considerable trade disruptions had the January 31 deadline remained in place. The CTA estimates that around 70,000 of the 87,000 or so drivers involved in cross-border trucking have applied for FAST registration, but less than 30,000 of those drivers have completed the process, leaving more than 40,000 drivers at various stages of processing.

The BRASS program is an au tom ated system designed to expedite the processing of certain repetitively shipped products. BRASS is a voluntary system that requires the entry filer to submit an application for participation to Cus tom s identifying required information. Shipper/manufacturers, importers, entry filers and products, in combination, must be approved to participate in BRASS, and approved participants are assigned a unique identifying code for use in BRASS transactions. As a temporary accommodation for the Trade Act of 2002, the CBP allowed motor carriers carrying BRASS merchandise to only utilize drivers who are registered under the FAST program and carrying a FAST driver card. To participate in the FAST program, drivers must undergo a background check and be admissible to the U.S. and Canada . If approved, the driver is issued a FAST driver card that provides such benefits as expedited processing and the use of a dedicated FAST lane where available. According to the CBP, “The surge in FAST driver applications has exceeded the capacity of the FAST processing center to process the applications leading to delays and backlogs in the application process… in addition, there are approximately 15,000 conditionally approved drivers who have not completed the interview process to receive their cards.”

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Hazardous Materials Regulations Amended

The DOT's Research and Special Programs Administration (RSPA) issued a Final Rule in the January 24, Federal Register that amends the Hazardous Materials Regulations (HMR) by incorporating into the regulations the provisions of certain widely used exemptions which have established a history of safety and which may be converted into regulations for general use. In addition, in the Final Rule the agency is making minor revisions to the requirements for use of packagings authorized under exemptions. The revisions provide wider access to the benefits of the provisions granted in these exemptions and eliminate the need for the current exemption holders to reapply for renewal of the exemption, thus reducing paperwork burdens and facilitating commerce while maintaining an acceptable level of safety. The effective date of these amendments is March 25, 2005 , however, RSPA is authorizing immediate voluntary compliance with these amendments.

Specifically, in the Final Rule, amendments are made to the following sections of the HMR:

•  Under Part 171 – General Information, Regulations, and Definitions -- Part 171.7 – Reference material;

•  Under Part 173 – Shippers-General Requirements for Shipments and Packagings - Part 173.3 Packaging and exceptions; Part 173.5a – Oilfield service vehicles and mechanical displacement meter provers; Part 173.12 – Exceptions for shipment of waste materials; Part 173.13 – Exceptions for Class 3, Divisions 4.1, 4.2, 4.3, 5.1, 6.1, and Classes 8 and 9 materials; Part 173.22a – Use of packagings authorized under exemptions;

•  Under Part 174 – Carriage by Rail – Part 174.81 – Segregation of hazardous materials; Under Part 176 – Carriage by Vessel – Part 176.83 – Segregation; and Part 176.84 – Other requirements for stowage and segregation for cargo vessels and passenger vessels; and under Part 177 – Carriage by Public Highway – Part 177.848 – Segregation of hazardous materials.

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TSA'S HM-CDL Background Check Implementation Date Reminder

As a reminder, on January 31, 2005 , individuals wishing to obtain a hazardous materials endorsement ( HME ) on their commercial driver's license ( CDL ) must be fingerprinted as part of the Transportation Security Administration's (TSAs) security threat assessment procedure. The starting date of the fingerprint-based checks for transfer and renewal applicants remains as May 31, 2005 . As we reported to you a couple of weeks ago, the group Integrated Biometric Technologies (IBT) in Nashville, Tennessee has been awarded the contract by TSA to conduct fingerprinting in implementation of the agency's mandate to perform the criminal-based background checks for both initial and renewals of the HME.

Please keep in mind that IBT will be operating only in the 34 states that have elected to have fingerprinting performed by a TSA contractor. Those states are: Alabama , Alaska , Arizona , Arkansas , California , Colorado , Connecticut , Delaware , District of Columbia , Georgia , Hawaii , Idaho , Louisiana , Maine , Massachusetts , Michigan , Minnesota , Missouri , Montana , Nebraska , Nevada , New Hampshire , New Jersey , North Carolina , North Dakota , Ohio , Oklahoma , Oregon , Rhode Island , South Dakota , Utah , Washington , West Virginia , and Wyoming . In addition, TCA has learned that IBT will be creating a new website at www.hazprints.com and will provide a drivers' help desk at (877) 429-7746. These services should be up and running right around the end of this month when TSA's new rules take effect. TCA also acquired a copy of the state-by-state listing of IBT fingerprinting sites, which can be accessed by clicking here.

One other issue as it relates to the HM-CDL background check regulation that the agency tried to address in the new rule involves drivers who move from one state to another. TCA has recently received a number of inquiries on this issue. Information we received on this issue explains, “Drivers commenting to TSA cited ‘the difficulty a driver faces if he/she undergoes security threat assessments for example, in February 2005 in Virginia , and must complete a second security threat assessment if he/she moves to another state in the following year.' The interim final rule attempts to make that process easier for CDL holders with hazardous materials endorsements. Under the rule, if a driver completes a background check and then moves, he or she will not have to complete another security check until the check from the first state normally would expire.”

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RSPA Issues Notice and Request for Comments on DOT Reorganization Bill

The Research and Special Programs Administration (RSPA) issued a notice and request for comments in the January 26 Federal Register on the “Norman Y. Mineta Research and Special Programs Improvement Act of 2004” [H.R. 5163]. This legislation was signed into law by President Bush on November 30, 2004 and amends Federal transportation law to establish the Pipeline and Hazardous Materials Safety Administration (PHMSA) in the Department of Transportation (DOT) [As was summarized in the December 21, 2004 issue of the Truckload Carrier Report ]. This legislation also replaces the Research and Special Programs Administration (RSPA) with the Research and Innovative Technology Administration (RITA), and these new organizations will be effective no later than February 28, 2005 .

The reason for the January 26 notice and request for comments is that Section 4(g) of the Act directs the incoming RITA Administrator to prepare a report to Congress, due March 20, 2005 , on the research activities and priorities of the DOT. As a part of this stakeholder review process, the DOT published this notice and is soliciting comments from Federal, state, private sector, and not-for-profit institutions with a few questions on the following three primary topics:

•  Identification of Priorities;

•  Research Duplication; and

•  The Role of Stakeholders.

The agency states that all ideas and concerns identified by those filing comments in response to this notice will be considered for integration into their planning endeavors.

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