June 21, 2005

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Headline News

• Power to Drive Program Receives Program of the Year Award for National Transportation Week
• EPA Announces New 2007 Diesel Engine Testing Program
• OSHA Issues Proposed Rule on Electrical Power Generation, Transmission, Distribution, and Electrical Protective Equipment
• PHMSA Issues Two Separate Final Rules on Various Technical Amendments to Hazardous Material Regulations (HMR)
• FMCSA Issues Notice of Proposed Rulemaking (NPRM) on Cargo Securement Rules; Petition Issues Favorable Addressed by Agency
• FMCSA Issues Notice and Request for Comments on Xora Application for Exemption from the Design Requirements for Automatic On-Board Recording Devices (AOBRs)
• Latest Briefs Filed on FMCSA Entry-Level Driver Training Rule Lawsuit; Next Step Scheduling of Oral Arguments
• Listening Is the Cornerstone of Communicating with Drivers
• PARADE READYING SECOND ATTACK ON TRUCKING AND DRIVERS Industry Questions Motive as Sunday Magazine “Revisits” Alleged Fatigue Issues

Power to Drive Program Receives Program of the Year Award for National Transportation Week

Arrow Truck Sales, KRTS Transportation Specialists, and TST Truckload Express were presented with the Program of the Year Award at the 36th annual National Transportation Week ( Ontario ) Awards Breakfast in Toronto .

The Program of the Year Award is presented annually during national Transportation Week to a new program, product, service or management philosophy recently introduced that has been successful in increasing sales, profit, reducing cost, or that has improved the image of transportation.

The Power to Drive Program is a collaborative effort between Arrow Truck Sales, KRTS Transportation Specialists, and TST Truckload Express. This highly successful program was launched in 2004 in order to help attract quality people to become owner-operators by supplying training, financing and a contract all in one deal.

The results and the program speak for themselves. So far TST Truckload has hired on 16 new owner-operators, representing approximately ½ of their annual number of new contracts. KRTS Transportation Specialists has provided all of the training for the new entrants and Arrow Truck Sales has supplied the new candidates with late model reliable equipment. These new candidates receive ongoing coaching by a TST coach once they are in the program and TST pays the participants $2000 during this mentorship training. At the end of the training the participant receives a $1000 signing bonus and if the new owner-operator stays on board with TST for one year the tuition of the Power to Drive Program is reimbursed in full.

In recognition of innovation in transportation, the NTW Ontario Committee presented Arrow Truck Sales, TST Truckload Express and KRTS Transportation Specialists with the NTW Ontario Program of the Year. For a photo of the winners click here.

What is National Transportation Week? Each year, during the first week of June, Canadians observe National Transportation Week in recognition of the hundreds of thousands of men and women who keep Canada moving safely, efficiently and reliably.  National Transportation Week runs June 1-10, 2005

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EPA Announces New 2007 Diesel Engine Testing Program

In the June 14, 2005 Federal Register , the Environmental Protection Agency (EPA) issued a Final Rule which establishes a manufacturer-run, in-use emissions testing program for 2007 and later model year heavy-duty diesel vehicles. This new in-use testing program will require engine manufacturers to measure exhaust emissions from their diesel engines using portable emissions measuring systems. In addition, for the first time, all manufacturers will be regularly providing EPA with a significant quantity of emissions data generated from engines used in regular service, which the agency will evaluate to ensure the engines comply with specified emissions requirements. This Final Rule and program are the result of an agreement between the EPA and the Engine Manufacturers Association. Prior to this program, the testing of diesel engine emissions required removal of the engine from the truck and testing in the laboratories, and these former testing procedures were more cumbersome, less accurate and more expensive.

There will be a pilot program in calendar years 2005 and 2006 for gaseous pollutants ( i.e ., nonmethane hydrocarbons (NMHC), carbon monoxide (CO), and oxides of nitrogen (NOx)). In calendar years 2006 and 2007, there will be a pilot program for particulate matter (PM). Subsequent to these programs, the fully enforceable in-use test program begins, and therefore, the enforceable program starts in the year 2007 for gaseous pollutants and the year 2008 for PM. In those years, the test program will apply to 2007 and later year model engines.

In addition, the EPA also issued a companion notice in which they announced that they are revising the test procedures to reflect current state of the art portable emission measurement technology, and that this rule also creates unified testing requirements for all engines that will streamline laboratory efforts for EPA and the industry. “This program is a dramatic addition to the EPA's Clean Diesel Campaign and will result in healthier air for all Americans,” said EPA Assistant Administrator for Air and Radiation Jeff Holmstead. “This collaborative effort with engine manufacturers will help ensure that diesel trucks run cleaner as long as they are on our roads.”

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OSHA Issues Proposed Rule on Electrical Power Generation, Transmission, Distribution, and Electrical Protective Equipment

The Occupational Safety and Health Administration (OSHA) issued a proposed rule in the June 15, 2005 Federal Register that proposes to update the standard for the construction of electric power transmission and distribution installations to make it consistent with the recently revised general industry standard. According to the agency, the existing rules as they relate to this electrical standard have been in effect since the early 70's, are out of date, and are not consistent with the more recent, corresponding rules for the operation and maintenance of electric power transmission and distribution systems. Furthermore, OSHA states in the notice that there is a need for this rule as employees performing work involving electric power generation, transmission, and distribution are exposed to a variety of significant hazards, such as fall, electric shock, and burn hazards, that can and do cause serious injury, or potentially death.

Specifically for general industry -- including the trucking industry -- there are a number of proposed changes in the 29 CFR 1910 OSHA standards including changes in §1910.136, Foot Protection, §1910.137, Electrical Protective Equipment; and §1910.269, Electrical Power Generation, Transmission, and Distribution. These changes address, among other things, Class 00 rubber insulating gloves, electrical protective equipment made from materials other than rubber, training for electrical power generation, transmission and distribution workers, host-contractor responsibilities, job briefings, fall protection, protective clothing, and protective grounding.

The proposed standard also includes requirements relating to enclosed spaces, working near energized parts, grounding for employee protection, work on underground and overhead installations, work in substations, and other special conditions and equipment unique to the transmission and distribution of electrical energy. The proposal revises both the general industry and construction standards to reflect current technology in protecting employees from hazards associated with the industry. OSHA will hold an informal public hearing on this initiative on December 6, 2005 beginning at 10:00 a.m., which will be held at the U.S. Department of Labor Building in Washington , D.C. Industry comments on the June 15 proposal must be filed with OSHA no later than October 13, 2005.

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PHMSA Issues Two Separate Final Rules on Various Technical Amendments to Hazardous Material Regulations (HMR)

The DOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a Final Rule in the June 14, 2005 Federal Register which makes a number of technical amendments and corrections to the Hazardous Materials Regulations (HMR) that were originally changed by the then Research and Special Programs Administration (RSPA) on December 20, 2004 to align with international standards. The effective date of this Final Rule is June 14, 2005.

The aforementioned RSPA amendments included changes to:

•  proper shipping names,
•  hazard classes,
•  packing groups,
•  special provisions,
•  packaging authorizations,
•  air transport quantity limitations and
•  vessel stowage requirements.

The effective date of that rule's amendments was January 1, 2005, and compliance with them is generally required beginning January 1, 2006 – as it is with their June 14 Final Rule. According to the agency, the continually increasing amount of HM transported in international commerce warranted the harmonization of domestic and international requirements to the greatest extent possible, and the goal was to harmonize without diminishing the level of safety currently provided by the HMR and without imposing undue burdens on the regulated public. A copy of the June 14 Register technical amendments notice, including all of the changes in the §172.101 Hazardous Materials Table (HMT) is available here: PDF, HTML.

On the day prior, the PHMSA issued another Final Rule in the Register that makes a number of other miscellaneous amendments to the HMR based on petitions for rulemaking that the agency has received, along with PHMSA initiatives. The intended effect of these changes is to update, clarify or provide relief from certain regulatory requirements. The effective date of this Final Rule is August 12, 2005.

This June 13 Final Rule reduces regulatory burdens on the motor carrier industry by incorporating changes into the HMR based on PHMSA's own initiatives and petitions for rulemaking submitted in accordance with 49 CFR 106.95. In their continuing effort to review the HMR for necessary revisions, the agency is eliminating, revising, clarifying and relaxing certain other regulatory requirements. The agency makes a number of specific technical amendments to the following sections of the HMR: 49 CFR Parts 171-173, and Parts 178-180. A section-by-section summary of the changes, and where applicable, a discussion of the industry comments received is included in the Register notice. A copy of the revised §172.101 HMT, with these new changes is included as well.

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FMCSA Issues Notice of Proposed Rulemaking (NPRM) on Cargo Securement Rules; Petition Issues Favorable Addressed by Agency

In the June 8 Federal Register , the Federal Motor Carrier Safety Administration (FMCSA) issued a Notice of Proposed Rulemaking (NPRM) to amend its Final Rule concerning protection against shifting and falling cargo for commercial motor vehicles (CMVs) engaged in interstate commerce. This proposal was issued in response to petitions for rulemaking from the American Trucking Associations (ATA), the Canadian Council of Motor Transport Administrators (CCMTA), and a number of other industry trade groups who had concerns with the Final Rule that was originally issued on September 27, 2002 -- and took effect on January 1, 2004. TCA had sent a letter of support of the ATA petition in its entirety on June 18, 2004, and we concurred with all of the recommendations in their petition.

Of the three primary concerns raised by ATA in their petition the most important one for our industry is related to tiedown devices and the rub rail issue. ATA petitioned the agency to remove §393.104(f)(4), as they believed the following paragraph from this section of the regulations was ambiguous and should be removed: “All tiedowns and other components of a cargo securement system used to secure loads on a trailer equipped with rub rails, must be located inboard of the rub rails whenever practicable.” In the NPRM, the agency states that they agree with this contention, and have proposed to entirely eliminate current §393.104(f)(4) accordingly.

The FMCSA also agreed with the ATA that §393.102(c) should be revised to use 0.4g deceleration in the forward direction and 0.25g acceleration in a lateral direction when determining whether the working load limit for cargo securement devices or systems would be exceeded. Finally, they also agree with the ATA on the need to revise §393.118(d)(3)(iv)(B). The agency agreed that the requirement should be interpreted to mean that if a stack contains three bundles, then the middle and top bundles must be secured by tiedowns in accordance with the provisions §§393.100 through 393.114. Furthermore, the agency proposes that if a stack contains more than three bundles, then one of the middle bundles and the top bundle must be secured by tiedown devices in accordance with these same provisions.

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FMCSA Issues Notice and Request for Comments on Xora Application for Exemption from the Design Requirements for Automatic On-Board Recording Devices (AOBRs)

The Federal Motor Carrier Safety Administration (FMCSA) issued a notice in the June 8, 2005 Federal Register , which requests public comment on Xora, Inc.'s (Xora) application for an exemption from the requirement that Automatic On-Board Recording Devices (AOBRs) for monitoring hours of service (HOS) compliance “be integrally synchronized with the commercial motor vehicle (CMV) in which it is installed.” §395.15 of the Federal regulations presently allows the use of AOBRs, as defined in §395.2, instead of handwritten records of duty status (RODS) – and an AOBR is defined in §395.2 as a device that “must be integrally synchronized with specific operation of the CMV in which it is installed.” Xora's phone-based log system does not meet this requirement, and this is why they have requested the exemption. They also requested the exemption to enable their motor carrier clients to use its HOS management system as an alternative to AOBRs that are integrally synchronized with specific vehicle operations.

Xora believes its Global Positioning System (GPS) enabled handheld HOS monitoring system provides several advantages when compared to the handwritten RODS. Furthermore, they requested that motor carriers covered by the exemption be allowed to use a GPS-enabled wireless telephone that can record vehicle speed, detect small changes in motion and identify stop/start events. A copy of the complete Xora exemption application can be accessed here.

The FMCSA in the August 20, 2004 Register , published a Final Rule implementing section 4007 of TEA-21 which adopted as final its interim regulations at 49 CFR Part 381, on Waivers, Exemptions and Pilot Programs. This rule established the procedures applicants must follow to request waivers and apply for exemptions from the FMCSRs and procedures to propose and manage pilot programs. It established procedures that govern how the agency will review, grant, or deny requests for waivers, applications for exemptions, and proposals for pilot programs. Finally, it also established the requirements for publishing notice of exemption applications or proposals for pilot programs through the Register while affording an opportunity for public comment. The agency's decision must ultimately be published in the Register and if they deny the request, the reason for doing so must be stated. If the decision is to ultimately grant the exemption, the notice must specify the person or class of persons receiving the exemption as well as the effective period of the exemption (which can go up to 2 years). These were the formal procedures established that Xora (or any other entity) must follow, in an attempt to get their proposed exemption formally approved by the agency.

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Latest Briefs Filed on FMCSA Entry-Level Driver Training Rule Lawsuit; Next Step Scheduling of Oral Arguments

You will recall that on April 21 of this year, the Public Citizen group officially submitted to the U.S. Court of Appeals for the D.C. Circuit a brief filed in opposition to the Federal Motor Carrier Safety Administration's (FMCSAs) entry-level driver training rule promulgated by the agency in May 2004. The joint brief was filed on behalf of the Advocates for Highway and Auto Safety (AHAS), the Owner-Operator Independent Drivers Association, Inc. (OOIDA) and the United Motorcoach Association (UMA). The Petitioner's brief presented detailed arguments including:

•  The Final Rule is arbitrary and capricious because it is contrary to the evidence before the agency; and

•  The Final Rule is arbitrary and capricious because the agency has presented no evidence that it will enhance the safety of commercial motor vehicle (CMV) operations.

Early last week the FMCSA issued their response to the Public Citizen filing. In their defense, the agency stated that the entry-level driver training rule was only one part of a “six-part strategy” to improve safety on America 's highways. They also contend that the FMCSA, and all Federal agencies have discretion in implementing solutions to problems under their jurisdiction. The Petitioners disagreed, and in their latest filing pointed to the specific mandate from Congress regarding the entry-level driver-training rule. In 1991, Congress included the training mandate in the ISTEA legislation, and gave the agency two years to finalize a rule. Thirteen years later, in May 2004, the agency published its entry-level driver-training rule, which mandated training in the following four areas:

•  driver qualifications;
•  hours of service;
•  driver wellness; and
•  whistleblower protection.

That said, the Petitioners conclusion reads: “The Court should declare the final rule arbitrary and capricious, vacate it, and remand to the agency with instructions that it promulgate a new final rule requiring entry-level CMV operators to receive training in the skills and knowledge necessary to actually operate a CMV.” In their initial filing back in April, the Petitioners had expressed this same conclusion as well.

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Listening Is the Cornerstone of Communicating with Drivers

Listening is a vital tool that fleet mangers can use to resolve conflict, reduce driver turnover, anticipate problems, and prevent accidents and service failures.

Good listeners are made, not born as explained in the excerpt below from TCA's Daily Dispatch Challenge Training Guide the “Seven Deadly Sin of Bad Listeners” and “Ten Actions of Good Listeners.”

The Seven Deadly Sins of Bad Listeners

•  Bad listeners “listen with their answer running.” They think about what they plan to say to the speaker while the speaker is still talking.

•  Bad listeners get distracted from the conversation by what is going on around them. This is especially easy in a hectic operations department.

•  Bad listeners interrupt. They try to put in their own opinion, correct the grammar, or finish the sentence for the speaker.

•  Bad listeners start thinking about some unrelated topic or start daydreaming because they think they know what the speaker will say next.

•  Bad listeners jump to conclusions. They think they know where the conversation is headed (e.g., “I've heard this one before”).

•  Bad listeners don't respond to the speaker.

•  Bad listeners approach the conversation with a negative attitude.

Ten Actions of Good Listeners

•  Good listeners concentrate attention on the person who is speaking and tune out distractions.

•  Good listeners listen openly and with empathy. They withhold making judgments until the speaker is done.

•  Good listeners try to understand what the speaker means and not just hear what she says.

•  Good listeners seek clarification if they don't understand what the speaker means.

•  Good listeners pay attention to the speaker's voice inflections to see what they indicate about the speaker's feelings.

•  Good listeners act like good listeners. They jot down notes and sit up straight when talking on the phone.

•  Good listeners don't attempt to control the conversation. They let the speaker complete her comments without interrupting.

•  Good listeners use several techniques to fully comprehend the message: They ask questions, paraphrase, and rephrase.

•  Good listeners respond to the speaker in an interested way that shows they understand. They let the speaker know that they understand both the factual and emotional content of the message.

•  Good listeners judge the message, not the messenger.

For more information on the Daily Dispatch Challenge Training Guide (ISBN 1-4018-3227-X, $24.95) or CD-ROM (1-4018-5498-2, $495), please contact Joel Morrison at Thomson Delmar Learning, 1-800-998-7498 x4850, joel.morrison@thomson.com.

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PARADE READYING SECOND ATTACK ON TRUCKING AND DRIVERS

Industry Questions Motive as Sunday Magazine “Revisits” Alleged Fatigue Issues

Despite new studies confirming that truck drivers are operating safer and that loading docks are being run more efficiently, PARADE , the tabloid-style Sunday newspaper insert is “revisiting” the trucking industry and the Hours-of-Service issue. The article is expected to run by September 2005.

Industry followers and professional truck drivers may recall that a May 1999 PARADE story mischaracterized trucking industry operations in relation to federal Hours-of-Service regulations, including a serious overstatement of the role of fatigue in fatal car-truck crashes. Unverified statements from anti-trucking organizations and self-appointed “safety advocates” were given precedence over research-based facts provided by the trucking industry.

American Trucking Associations safety experts recently met with PARADE reporter Bernard Gavzer, also author of the 1999 report, to present and discuss the impact of the new Hours-of-Service regulations, as well as the current trucking industry safety record and supporting statistics.

ATA explained that the new rule has cut the old work day from 15 cumulative hours to 14 consecutive hours, and limits driving time to 11 hours. Though driving time is increased by one hour, mandatory rest time has been increased from eight to at least ten hours. This is enough time, according to government fatigue experts, within which truck drivers can get recuperative rest each day. Another safety benefit of the new rule is that new on-duty and off-duty requirements promote a much more regular work-rest cycle for drivers.

Gavzer also received a copy of the just-completed American Transportation Research Institute survey that shows the industry to be operating more safely under the new rules. The study is the largest to date on the subject. Responses from participating motor carriers and their drivers find less fatigue among truck drivers and a reduction in the number of truck-involved crashes compared to the last year under the old rule.

ATA provided other documented safety and truck driver fatigue research to PARADE. Of particular interest are Federal Motor Carrier Safety Administration comments citing fatigue as a factor in just three to six percent of all fatal car-truck crashes. PARADE also received the FMCSA's top ten list of driver-related crash factors, which does not include driver fatigue, a fact omitted by PARADE in the 1999 article.

Reporter Gavzer also received copies of the FMCSA and AAA Foundation for Traffic Safety crash-causation studies that show up to 75 percent of all fatal car-truck crashes begin with an error on the part of the car driver.

ATA provided PARADE with a federal study that shows most truck-involved fatal crashes occur within the first hour on the road; only four percent after a driver had driven more than eight hours at the time of the crash.

Indications are the pending PARADE article may have been prompted by industry opponents' speculation that truckers are driving more hours under the new Hours-of Service regulation. ATA safety experts say available data and real world experience refute these charges.

Responding to supererogatory questions on the use of amphetamines or other stimulants by truck drivers, ATA gave PARADE the most current FMCSA truck driver drug and alcohol testing results. The mandatory random drug testing for truck drivers produced just 1.5 percent positive results, one-fourth the rate of other workplaces. The estimated violation rate for alcohol use based on mandatory random testing of drivers is less than one quarter of one percent. And, while the alcohol intoxication rate for drivers of large trucks involved in fatal crashes was two percent, the rates for drivers of other vehicles involved in fatal crashes are 22 percent for passenger cars, 23 percent for pickup trucks, and 31 percent for motorcycles.

ATA also provided PARADE with its Share the Road car-truck safety guidelines and graphics outlining the blind spots and special space requirements of large trucks while sharing the road with other motorists.

And PARADE was informed of ATA-backed safety provisions included in the current version of the highway reauthorization legislation now before the U.S. Congress; a program to provide more parking spaces for truck drivers and language allowing the use of roadside inspection funds to enforce safe driving practices around large trucks.

Though PARADE has in hand very thorough, factual, and science-based reports on the trucking industry's positive safety record, past practice indicates that the information may not be given “equal time” or even used at all, for that matter.

To assure that trucking's safety record is available to the general public for review, ATA has posted supporting safety documents on its Web site: www.truckline.com . The original May 1999 PARADE article, Is the Long Haul Too Long?, is included in the Truckline.com package.

In addition, ATA is asking its members, other trucking industry organizations, and industry supporters to contact local newspapers that deliver PARADE and offer to forward the safety information or to be available before or after the PARADE report to present the trucking industry's factual safety story.

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