February 22, 2005

Note: To print this newsletter in its entirety, simply press the print button on your web browser.

CLICK HERE to send us your comments about this newsletter.

Headline News

• PTDI Staff Transition, Do You Know Who to Contact?
• Closing of Comment Period on FMCSA Hours of Service (HOS) Proposal Drawing Nearer
• GAO Reports Implementation of the New Transportation Worker Identification Card (TWIC) Likely Delayed
• Two New Agencies at DOT Officially Launched
• RSPA Issues Notice of Regulatory Flexibility Act Section 610 Review
• Attempt to “Fix” Current HOS Rule by Inclusion in Transportation Bill
• Six-Year Highway Bill Legislation Introduced in the House
• HOS News - Legislation Introduced Allowing Drivers to Take Meal or Rest Breaks off the Clock

PTDI Staff Transition, Do You Know Who to Contact?

The Professional Truck Driver Institute and Truckload Carriers Association have experienced some recent staff transitions.

Nancy O'Liddy has assumed responsibility as Director of the Professional Truck Driver Institute (PTDI). She will serve as the overall director for the PTDI, work with the Board and Committees in developing and implementing strategic plans for PTDI and will continue to write and develop new branding marketing materials for PTDI. Nancy hopes to further identify, establish and cultivate relationships with industry vendors and members who support PTDI.

Top

Closing of Comment Period on FMCSA Hours of Service (HOS) Proposal Drawing Nearer

As we have been reminding you on a weekly basis, comments to the Federal Motor Carrier Safety Administration's (FMCSA's) January 24, 2005 Notice of Proposed Rulemaking (NPRM) on hours of service (HOS) must be filed with that agency by no later than March 10, 2005 . A recent development that we announced last week is that the American Trucking Associations (ATA) developed a guide for responding to this NPRM that will assist motor carriers in the filing of these comments.

By way of review, in the proposal the agency asks a number of questions which you may choose to follow, however, the ATA guidance document provides a means to organize thoughts into six categories and produce what they perceive to be more “motor carrier friendly” and uniform industry responses. These categories have been referenced to select questions raised in the proposal, which will allow you to review what is being requested by the FMCSA and the agency's intent. The guide's requests are only suggestions to motor carriers relative to areas of concern and of primary interest to the agency.

In the agency's own words, the primary aim of their proposal is to gain information and preferably data “on the relationships between driver health and safety generally, but also between the net effect of the changes produced by the 2003 HOS rule…” As you will find considerable emphasis is being place on the driver health issues. The FMCSA is interested in actual data and (by general inference in the rulemaking approach) information that would serve to preserve the current HOS rules. The agency states that “commenters should address the incremental, direct impact of any proposed changes in the HOS requirements on driver health, the safe operation of commercial motor vehicles (CMVs), and economic factors….there should be a clear rationale for any recommendations offered, along with documentation and data to support the recommendation.”

The guide for the filing of comments to the NPRM can be accessed by clicking here. As mentioned earlier, the deadline for filing of comments is March 10, 2005 , which may be filed electronically at the DOT website: http://dms.dot.gov . If you have any questions on how to use this filing approach, contact Rich Clemente by email: rclemente@truckload.org or phone (703) 838-8847. Filing instructions by mail, fax, Internet transmission, or hand delivery can be found on page 3339, column 3 of the January 24 Federal Register NPRM. The Docket Number to be referenced for this rulemaking is FMCSA-2004-19608.

Top

GAO Reports Implementation of the New Transportation Worker Identification Card (TWIC) Likely Delayed

On February 15, the General Accounting Office (GAO) formally issued a report entitled “Transportation Security, Systematic Planning Needed to Optimize Resources.” As one section of this 40-page document, the GAO reported that efforts to put a Transportation Workers Identification Card (TWIC) in the hands of those who have unescorted access to high-value cargo at ports could finally be resolved later this year, but “it will be at a price and likely require more fingerprinting.” The report said that the Transportation Security Administration (TSA) has not yet decided on what approach to take with the TWIC that could be required for truckers – would it be Federal, decentralized, or a “best practices” approach? The GAO said that the Federal government could wind up designing, financing and managing the program or it would fall to port(s) facilities to “design, finance and manage programs to issue identification cards.”

The GAO has recommended that the government consider adopting “industry best practices” to help develop a “comprehensive” project plan, but says it's in TSA's hands ultimately to choose, and the TWIC progress has been slow. Because of the delays associated with developing the credential, the GAO said that some port facilities are “proceeding with plans for local or regional identification cards that may require additional investment in order to make them compatible with the TWIC system.” The Department of Homeland Security (DHS) budget includes about $245 million for TWIC and includes “the costs of personnel, contractors, equipment maintenance, software and license updates, background checks, fingerprint processing, and adjudication of results.” The budgeted amount will allow about two million cards to be distributed by the end of fiscal year (FY) 2006.

The TSA announced late last year the award of a $12 million contract to begin the Prototype Phase of the TWIC program. This is the third phase in developing a program to improve security at seaports, airports, rail, pipeline, trucking and mass transit facilities creating a nationwide credential that will prevent unauthorized persons gaining access to secure areas. The goal of the seven-month prototype is to analyze the administrative and business processes involved in collecting transportation worker data, performing background checks, issuing credentials and studying the day-to-day use of the cards. TSA began the TWIC program in the spring of 2002.

•  Phase I, the Planning Phase, was completed in the spring of 2003, and

•  Phase II, the Technology Evaluation Phase, closed later that year.

•  The intent of Phase III was to last seven months, and then the agency would perform a further review and prepare for Phase IV, the nationwide TWIC “rollout.”

The TWIC involves a technology wherein an individual applicant goes through a background check, digital fingerprinting and photograph, retinal scan, etc. All relevant information is then entered into a microchip that is embedded into what resembles a credit card. The objective of the TWIC is the same as that of the proposed fingerprints checks for HM-CDL endorsements -- i.e., verifying the identity of the cardholder. That said, in their formal appeal of TSA's current HM-CDL fingerprint background check rule, the ATA expressed “serious concerns” with the rule, and requested the agency to reconsider the implementation of the fingerprint-based background checks. They further stated that their primary goal in submitting the appeal was to persuade the agency to implement the TWIC and apply its security threat assessment procedures to the issuance of HM-endorsements.

For a copy of the complete report, go to http://www.gao.gov/docsearch/repandtest.html .

Top

Two New Agencies at DOT Officially Launched

In the February 18 Federal Register , the DOT, Office of the Secretary (OST) officially announced the creation of two new agencies at DOT – one to focus on innovation and research and the other on pipeline and hazardous materials (HM) safety. These agencies were formed to help the DOT to more effectively execute its mission of developing and applying innovative technologies to create the transportation system of the 21 st century. The effective date of this final rule is February 20, 2005 , which is the date these two new agencies will begin operation.

The Research and Innovative Technology Administration (RITA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) were authorized on November 30, 2004 when President Bush signed the “Norman Y. Mineta Research and Special Programs Reorganization Act” [H.R. 5163]. RITA will be dedicated to the advancement of the department's priorities for innovation and research in transportation technologies and concepts. PHMSA will oversee the safety of the more than 800,000 daily shipments of HM in the U.S. and the 64 percent of the nation's energy that is transported by pipelines. RITA will be composed of staff from the Research and Special Programs Administration's (RSPAs) Office of Innovation, Research and Education, and include the Volpe National Transportation Systems Center in Cambridge , MA and the Transportation Safety Institute in Oklahoma City , OK . RITA also will house the Secretary's Office of Intermodalism and the Bureau of Transportation Statistics (BTS). Staff from the former RSPA Office of HM Safety and Office of Pipeline Safety will form PHMSA.

Top

RSPA Issues Notice of Regulatory Flexibility Act Section 610 Review

The DOT's Research and Special Programs Administration (RSPA) issued a notice and request for industry comments in the February 15, 2005 Federal Register on the economic impact of its regulations on small businesses. As required by the Regulatory Flexibility Act and as published in the DOT's Semi-Annual Regulatory Agenda, the agency is analyzing the rules applicable to general shipment and packaging requirements for shippers to identify requirements that may have a significant economic impact on a substantial number of small businesses. RSPA also requests comments on ways to make these regulations easier to read and understand.

For purposes of the review schedule, RSPA has divided its Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) into 10 groups by subject area. Each group will be reviewed once every 10 years, undergoing a two-stage process – an Analysis Year and section 610 Review Year. The section 610 review will determine whether a specific rule should be revised or revoked to lessen its impact on small businesses and the agency will consider:

•  the continued need for the rule;

•  the nature of complaints or comments received from the public;

•  the complexity of the rule;

•  the extent to which the rule overlaps, duplicates, or conflicts with other federal rules or with state or local government rules; and

•  the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

A 10-year “RSPA Section 610 Review Plan 1999-2009” and review schedule is included in the notice.

Top

Attempt to “Fix” Current HOS Rule by Inclusion in Transportation Bill

The Bush Administration proposed legislation on February 7 th that would convert the present hours of service (HOS) rules into statutory law. In addition, the White House is also proposing to limit the Federal Motor Carrier Safety Administration's (FMCSA's) jurisdiction over driver health to conditions that would cause death or serious injury, according to FMCSA Administrator Sandberg. The Administration's proposed HOS changes to H.R. 2088, the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2003 (SAFETEA) [as introduced by request on May 14, 2003 ] read verbatim in the following two sections:

SEC. _____. ADOPTION AND LEG ALIZATION OF HOURS OF SERVICE RULE.

(a) IN G ENER AL.--The final rule on hours of service of drivers adopted by the Federal Motor Carrier Safety Administration on April 28, 2003 (68 Fed. Reg. 22456-22517), as technically amended on September 30, 2003 (68 Fed. Reg. 56208-56212), is adopted and confirmed as fully legalized, as if it had, by prior Act of Congress, been specifically adopted on the date that rule (including the subsequent technical amendment) was originally issued.

(b) FUTURE REVISION.--The final rule referred to in paragraph (a) is subject to revision by the Federal Motor Carrier Safety Administration in accord with the Administrative Procedure Act and other applicable statutes.

SEC. ___. HOURS OF SERV ICE RULE.

This section makes permanent the Congressional directive in section 7(f) of the Surface Transportation Extension Act of 2004, Part V (118 Stat 1144, at 1154), enacted on September 30, 2004 . That measure retained the hours-of-service regulation issued (and amended) by the Federal Motor Carrier Safety Administration (FMCSA) in 2003 and made applicable to motor carriers and drivers in early 2004 until the effective date of a new regulation addressing the issues raised by the D.C. Circuit in Public Citizen et al. v. Federal Motor Carrier Safety Administration , 374 F.3d 1209 (July 16, 2004) or September 30, 2005, whichever occurs first.

Although the Public Citizen decision faulted FMCSA's handling of certain Administrative Procedure Act requirements--especially its failure to discuss driver health under 49 U.S.C. 31136(a)(4)--it did not address the reduced fatigue and improved safety FMCSA claimed for the new rule.

Many motor carriers have reported accident experience under the new hours-of-service rule that is comparable to, if not better than, their experience under the old rule. Definitive statistics on accidents and fatalities are not yet available, but the industry has already concluded that the rule is responsible--directly and indirectly--for producing more rest for drivers, better use of driver time, more efficient handling of freight by shippers and receivers, and increased productivity for motor carriers.

Work on the hours-of-service regulation is time-consuming and involves a tremendous allocation of agency resources. Because the safety and operational results of the 2003 final rule appear to be favorable, and FMCSA may be required to undertake additional rulemaking activities without a significant increase in staff, the Department believes that it would be beneficial to end the prolonged struggle over hours of service and to ratify permanently the 2003 rule. This will also enable the motor carrier industry and State and Federal enforcement officials to plan their training and compliance activities without having to worry about the expense and effort of adapting to some as-yet-unknown hours-of-service regulation. Subsection (b), however, gives FMCSA the authority to amend the 2003 rule through notice and comment rulemaking, should subsequent developments make that necessary or desirable.

If enacted by Congress, this proposed legislation would “trump” the HOS ruling of the U.S. Court of Appeals for the District of Columbia because the Court's opinion was based on its interpretation of Congressional intent. The proposed legislation would, however, give the agency the authority to make changes to the HOS rules in the future through the normal proposed rulemaking and comment process. The White House hopes to finalize the “new” Highway Bill by May, and if Congress does enact the bill and includes the codification of the HOS rules into law, the FMCSA will stop their work on its current rulemaking to reconsider the regulations. In the meantime, the agency is proceeding with this HOS rulemaking. To that point, and as a reminder as well, the comment period for submitting comments to the agency's January 24, 2005 NPRM on the current HOS rules closes on March 10, 2005, and we continue to strongly encourage your filing of comments on this issue. A copy of the compiled NPRM questions can be accessed from the February 8, 2005 issue of our newsletter.

Top

Six-Year Highway Bill Legislation Introduced in the House

A six-year highway and transit-funding bill that would guarantee $283.9 billion through the year 2009 was officially introduced in the U.S. House of Representatives on February 9 th . The bipartisan legislation -- H.R. 3 – “The Transportation Equity Act: A Legacy For Users” (TEA LU) was introduced by Representative (Rep.) Don Young (R-AK), Chairman, Transportation and Infrastructure (T&I) Committee; Rep. James Oberstar (D-MN), Ranking Democrat, Transportation Committee; Rep. Tom Petri (R-WI), Chairman, Highways, Transit and Pipelines Subcommittee; and Rep. Peter DeFazio (D-OR), Ranking Democrat, Highways and Transit Subcommittee. A couple of important points from the Executive Summary of this proposed legislation are as follows:

•  TEA LU reauthorizes the federal highway, public transportation, highway safety, and motor carrier safety programs for six years (from fiscal years (FY) 2004-2009). The policy features of the bill from the last Congress are retained;

•  The $283.9 billion in guaranteed funding represents a 42% increase over the guaranteed funding for TEA-21 (FY 1998-2003); and

•  The bill's funding level has been formally endorsed by the current Administration. President Bush's updated reauthorization proposal, which was submitted with the FY 2006 budget, supports a six-year reauthorization at $283.9 billion.

According to Chairman Young, “I strongly believe that we have a much better chance of moving this legislation quickly in the 109 th Congress, now that we are working with the same top line funding level that the President has endorsed…. I am committed to getting back to conference as fast as possible.”

If Congress accepts the President's budget, the Federal Motor Carrier Safety Administration (FMCSA) would receive a 5% increase, from $443 million this FY to $465 million next year. Overall DOT spending would go up by just under a billion dollars, to $59.5 billion. The FMCSA budget includes $189 million for safety rulemaking, compliance enforcement, operations, safety education, physical certification of drivers, information and analysis and safety technology. Hazardous materials (HM) safety would receive $10 million, and HM security would get $8 million. The budget also includes a total of $232 million in the agency's Motor Carrier Safety Assistance Program (MCSAP), $10 million of which would be specifically designated for HM enforcement.

Top

HOS News - Legislation Introduced Allowing Drivers to Take Meal or Rest Breaks off the Clock

On February 8, U.S. Representative John Boozman (R-AR) introduced legislation to change the current hours of service (HOS) rules to allow drivers to take meal or rest breaks off the clock. The language in the bill -- H.R. 623 -- would provide up to two hours of off-duty time during a truck driver's day to take breaks. The specific language in the bill reads as follows:

“BREAKS DURING TOTAL TOUR OF DUTY. – notwithstanding any other provision of law, an operator of a property carrying commercial motor vehicle shall be permitted to operate such vehicle and perform other work-related activities at the end of the 14 th hour from the time the driver begins duty, for a period of time for which the driver has been off duty during the 14-hour period, not to exceed a total of 16 hours.”

According to Representative Boozman, “we do not have the right to say that truck drivers don't have time for meal or rest breaks… we don't do this in other industries and we certainly shouldn't require it for a job where safety is so important. In an industry where we are experiencing a scarcity of drivers, and in an environment where we are trying to increase safety, allowing optional voluntary time for rest breaks is the right thing to do.”

Top