September 5, 2006

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Headline News

FMCSA Seeks Comments on Petition Filed by Truck Manufacturers Association (TMA) Regarding Turbochargers

The Federal Motor Carrier Safety Administration (FMCSA) is requesting public comment on the merits of a petition for rulemaking filed by the Truck Manufacturers Association (TMA). TMA, who represents all of the major North American manufacturers of medium and heavy-duty trucks, has petitioned FMCSA to amend the Federal Motor Carrier Safety Regulations to eliminate turbochargers from the list of equipment considered to be noise dissipative devices. TMA contends that virtually all trucks are now equipped with turbochargers. Hence, these trucks cannot be cited for failure to meet the visual exhaust system inspection requirements of FMCSA safety regulations if they have no muffler.

Click here for a copy of the request as it appeared in the Federal Register.

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FMCSA Announces Withdrawal of HOS Exemption Application

The FMCSA has announced that it is withdrawing its notice of an application for exemption upon the request of the applicant, FedEx Ground Package System, Inc. (FedEx).

As reported in the August 8th installment of the Truckload Carrier Report , FMCSA had published a notice requesting public comment on FedEx's application for an exemption from certain hours-of-service requirements for truck drivers (71 FR 43277). FedEx sought a limited exemption from the definition of "on duty'' under FMCSA Hours-of-Service (HOS) regulations governing drivers who operate commercial motor vehicles. FedEx has subsequently withdrawn its exemption application.

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Additional 18 Drivers Exempted From Vision Requirements

FMCSA has announced its decision to renew the exemptions from its vision requirement in the Federal Motor Carrier Safety Regulations for 18 drivers, for a two-year period. Their statutory authority enables them to exempt individuals from the vision requirement if the exemptions granted will not compromise safety. It has concluded that granting these exemptions will provide a level of safety that will be equivalent to, or greater than, the level of safety maintained without the exemptions for these Commercial Motor Vehicle (CMV) drivers.

Click here for a copy of the exemption renewal and a list of those exempted as it appears in the Federal Register .

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Compete For Coveted Safety Awards

The TCA 2006 National Fleet Safety Awards Program is upon us. As a TCA member, you are eligible to compete for these coveted awards. First, second and third place winners will be honored in six divisions based on number of miles operated from October 1 st , 2005 to September 30 th , 2006. Each division winner will then have the opportunity to compete for one of two grand prize awards. Carriers with annual mileage of 25 million miles or less will compete for one Grand Prize and carriers with annual mileage over 25 million miles will compete for a separate grand prize award.

What are the benefits? As a division or grand prizewinner, you elevate your company to an elite status that allows you to share with your customers, drivers, administrative staff, industry leaders and shareholders that you are the best of the best. And who would not want to be associated with part of the best. As a winner, that often leads to better profitability, better employee/contractor retention, and better customer loyalty.

All you have to do is complete the one page application and entry form to submit your company and reap the many benefits as a TCA member. Applications must be received by 5:00 pm, EST on November 6th , 2006 and are available within the members only section of www.truckload.org.

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Office of Management and Budget (OMB) Completes Final Rule Review

On September 14 th , the Office of Management and Budget (OMB) completed its review of the Supporting Documents final rule submitted by the Federal Motor Carrier Safety Administration (FMCSA).

While OMB ordered changes to the final rule, the details of those changes remain uncertain for the publication of this rule. The NPRM issued in November of 2004 defined Supporting Documents as any document that is generated or received by a motor carrier or commercial motor vehicle driver in the normal course of business that could be used, as produced or with additional identifying information, to verify the accuracy of a driver's record of duty status. For the purposes of this definition, any document includes, but is not limited to any record or document, either written or electronic, that is available individually or in combination with other records or documents, to provide a date, time, or location to verify the accuracy of a driver's record of duty status. Examples of supporting documents include the following:

Accident/incident reports
Bills of lading
Border crossing reports
Carrier pro forma invoices (pros or waybills)
Cash advance receipts
Credit card receipts and statements
Customs declarations
Delivery receipts
Dispatch/assignment records
Driver reports (facsimile or call-in logs)
Expense vouchers
Freight bills
Fuel billing statements
Fuel receipts
Gate receipts
Global positioning reports
Inspection reports
Invoices
Interchange reports
International Registration Plan receipts
International Fuel Tax Agreement receipts
Lessor settlement sheets
Lodging receipts
Lumper receipts
On-board computer reports
Over/short and damage reports
Overweight/oversize reports and citations
Port of entry receipts
Telephone billing statements
Toll receipts
Traffic citations
Transponder reports
Trip permits
Trip reports
Waybills
Weight/scale tickets
Other transportation and payroll-related documents

While it remains unclear whether an EOBR mandate will alleviate the supporting documents final rule, it will be one to two years before any EOBR rule is adopted. TCA had filed written comments regarding the SPRM on Supporting Documents citing the following concerns:

Scope of the Proposed Rule is Far Too Broad;
The Proposal is Ambiguous and Does Not Meet the Statutory Provisions of the Hazardous Materials Transportation Authorization Act of 1994 (HMTAA);
Accuracy of Supporting Documents;
Privacy and Liability Issues;
There Currently is No Proof Linking this Proposal to the Agency's Ultimate Goal of Reducing Accidents and Eliminating Driver Fatigue; and
Lack of Agency Resources and Staff for Currently Performing Compliance Reviews (CRs) of Motor Carriers.

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Mary Peters Succeeds Norman Mineta

Mary Peters was confirmed by the U.S. Senate on Saturday Sept. 30 th to be the next transportation secretary and will succeed Norman Mineta, who was the longest-serving DOT secretary. Peters was federal highway administrator under President Bush for four years, until she stepped down in 2005 to join HDR Inc., an engineering firm based in Omaha, NE. Before her first Bush appointment, Peters was transportation director for the state of Arizona.

Peters also is a member of the National Surface Transportation Policy and Revenue Commission, tasked by Congress with examining the condition and future needs of the nation's surface transportation system and coming up with alternatives to fuel taxes for highway funding.

“Mary is an innovative thinker who will work with state and local leaders to confront challenges and solve problems,” Bush said shortly after Peters' confirmation. “I look forward to working with her to reduce highway and aviation congestion, modernize our nation's infrastructure and increase the efficiency of travel in our country.”

As reported in the September 12 th issue of the Truckload Carrier Report, Chairman Pottle supported her nomination by saying “Peters has the necessary experience within the transportation industry and a deep understanding of the issues, which affect our industry. We look forward to her tenure as the Secretary of the Department of Transportation.”

The U.S. transportation secretary, a member of the president's Cabinet, is in charge of the U.S. Department of Transportation, which includes such high-profile agencies as the Federal Motor Carrier Safety Administration, the Federal Highway Administration and the Federal Aviation Administration, according to Commercial Carrier Journal Magazine (CCJ) .

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Department of Transportation Will Ensure CDL Applicants are U.S. Citizens

The U.S. Senate approved a port-security bill on Sept. 14 th that would require the Department of Transportation (DOT) to ensure that Commercial Driver License (CDL) applicants are U.S. citizens. Currently, only hazmat haulers must prove their citizenship.

Senators unanimously passed the amendment, introduced by Mark Pryor, D-Ark., and Jim Talent, R-Mo., which requires DOT to implement its 2004 recommendations to crack down on CDL fraud.

The Senate version of the Port Security Improvement Act of 2006 is very similar to the U.S. House version passed in May. A conference committee now must reconcile the two versions.

A recent report estimates that thousands of CDLs have been issued to drivers through corrupt testing processes. Federal investigators have busted such schemes in several states in recent years.

Many of the thousands of truckers on the road daily are not U.S. citizens and have obtained licenses fraudulently, Talent said. “We need to make certain that the people behind the wheel of trucks on our roadways are who they say they are and have gotten their commercial driver's licenses legally.”

The amendment “helps close some serious loopholes in our nation's security efforts,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association, based in Talent's home state of Missouri .

“The senators' common-sense approach to trucking security isn't about building bureaucracies, but about making our nation more secure,” Spencer said.

The measure also directs the DOT and the U.S. Department of Homeland Security to provide uniform guidelines and procedures that states can use to enforce federal immigration and customs laws that apply to foreign trucks and drivers, according to the eTrucker Website .

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Life of Passenger Saved By Highway Angel

FOR IMMEDIATE RELEASE
October 3, 2006
Contact: Tom Burns, Communications Manager
703/838-1950 or tburns@truckload.org

TCA Salutes Highway Angel Edison Yeager of Burnside , Pennsylvania

Alexandria , VA , October 3, 2006 – The Truckload Carriers Association (TCA) recently recognized Edison Yeager of Burnside , Pennsylvania , as a Highway Angel for his selfless actions, which saved the life of an elderly passenger in a car.

Yeager, a driver for Kephart Trucking, was driving eastbound on I-80 to pick up a load in New Jersey , when he saw a car ahead of him parked on the shoulder of the road. An elderly woman got out of the car and began waving for help. He carefully parked his truck on the shoulder and ran towards her car.

“She told me to please hurry because her husband was choking. When I arrived at the car, he was still in his seat, so I got him out of his seat and performed the Heimlich Maneuver on him , which dislodge the food from his throat,” Yeager said. Fortunately, for the elderly couple, Yeager had received medical training while working as an EMS and the U.S. Army.

He told her that they should drive to the nearest hospital to make sure that her husband was all right. They thanked him for helping them, asked for his contact information and went back on the highway. The husband “had been eating a sandwich which caused him to choke,” Yeager said. As the only person who stopped to help them he provided emergency medical care to the husband and saved his life.

“The right thing to do is to help people on the road. You never know who it might be,” said Yeager.

Since its inception in August 1997, the Highway Angel program has recognized hundreds of drivers for the unusual kindness, courtesy, and courage they have shown others while on the job. TCA has received letters and emails from people across the country nominating truck drivers for the program.

“The kindness and generosity of these professional truck drivers, who risk everything to save the life of a driver or passenger on our roads, continues to amaze us”, said Nancy O'Liddy, director of public relations and marketing for TCA. “TCA is proud and delighted to provide this program, to highlight the positive impact these drivers have on our roads.”

Yeager received a Highway Angel lapel pin, certificate, and patch for his efforts, and his employer, Kephart Trucking , also received a certificate for acknowledging a Highway Angel in their midst. Yeager has been driving for Kephart Trucking for one year and developed a passion for driving trucks while in the U.S. Army.

To view archival copies of past Highway Angel press releases, visit our website address at www.truckload.org/pressroom/index.htm#angelnews. To nominate a driver online, go to www.truckload.org/highwayangels/nominate.asp. For more information on the program, contact TCA at 703/838-1950 or via email at Angel@truckload.org.

TCA is the only national trade association whose collective sole focus is the truckload segment of the motor carrier industry. The association represents dry van, refrigerated, flatbed, and intermodal container carriers operating in the 48 contiguous states as well as Alaska , Mexico , and Canada . Representing operators of over 200,000 trucks, which collectively produce annual revenue of over $20 billion, TCA is an organization tailored to specific truckload carrier needs.

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Legal Ramifications of Security Measures

TCA held an audio conference on September 28 th entitled, “Security-Are You Prepared for the Worst?” Every company knows the importance of security but often does not know the legal ramifications of security measures. Timothy W. Wiseman, Partner from Scopelitis, Garvin, Light & Hanson in Indianapolis , Indiana addressed these issues.

1. Overview of Federal Regulations Impacting Transportation Security

Most of the security-related regulations impacting the trucking industry concern the transportation of hazardous material.
The Patriot Act of 2001 required, among other things, that a criminal background check be conducted by the federal government on any CDL driver wishing to obtain or renew a CDL hazardous material endorsement.
On March 25 th 2003, the former Research and Special Programs Administration published the HM-232 Final Rule requiring persons who offer certain types and quantities of hazardous material for transportation or who transports such commodities to develop and implement written security plans. In addition, all hazmat employees are required to receive training on the security risks associated with hazmat transportation and covering the precautions that should be taken to minimize such security risks.
Starting in January of 2005, the Federal Motor Carrier Safety Administration (FMCSA) implemented its new HM Safety Permitting Program requiring transporters of certain types of ultra-hazardous materials to obtain a HM Safety Permit. One of the stated purposes of the new permitting requirements is to reduce the chance that such hazardous materials can be used in a terrorist attack. The new HM Safety Permit is required for transporters that transport the following types of hazardous materials:

Highway route-controlled quantities of radioactive materials.
Division 1.1, 1.2 or 1.3 explosives.
Toxic by inhalation materials.
Shipments of compressed or refrigerated liquefied methane or liquefied natural gas.

The FMCSA is now carefully auditing hazmat carrier's security plans to verify that they are adequate to address the requirements of HM-232 and to ensure that the necessary training of hazmat employees is being conducted. Non-compliance with the new security plan requirements is considered a “critical” violation and, as such, can jeopardize a motor carrier's DOT safety rating.

2. Limitations on Driver Screening

One key element of any trucking company's security plan is to conduct a thorough prequalification screening on any potential driver or other employee/contractor that may effect the safe and secure transportation of freight. Such screening may include the background employment verifications required by the FMCSA and a review of the applicant motor vehicle record as required by 49 C.F.R. Part 391. In addition, some carriers are now conducting a more in-depth credit and criminal background check on their employee and contractor applicants.
It is important that a company's screening program be carefully reviewed to ensure that it does not; either directly or indirectly, discriminate against any protected class. The screening procedures should be enforced uniformly with all applicants, and should not distinguish between applicants of different race, sex, religion or age. In addition, in a very few states, it may be unlawful to discriminate against applicants who have a prior history of felonies or misdemeanors. For this reason, it is important that companies carefully review the applicable state and federal laws and regulations that may impact their ability to screen, qualify and retain driver applicants or other security-sensitive employees.
Federal and state regulations may require motor carriers to treat certain information obtained through the screening process as confidential. For example, regulations promulgated in 2004 by the Federal Trade Commission to enforce provisions of the Fair and Accurate Credit Transaction Act of 2003 require employees who possess a consumer, or other records containing information derived from a consumer report, to take reasonable measures in the disposal of such record, such as shredding or burning, to prevent unauthorized access by third parties. In addition, the Fair Credit Reporting Act (FCRA) may prohibit employers from sharing information obtained from a credit or consumer report with unauthorized third parties.
FCRA prohibits the procurement of an investigative consumer credit report unless written authorization is obtained from the job applicant. FCRA obligates an employer obtaining a credit report to make a complete and accurate disclosure of the nature and scope of the investigation within five days of a request by a job applicant. If the applicant is denied employment based on information contained in the consumer credit report, the perspective employer must advise the applicant, supply the name and address of the consumer reporting agency, and advise the applicant of his or her rights to obtain a free copy of a consumer credit report from a consumer reporting agency.
The Driver Privacy Protection Act requires employers to treat information contained on a driving record or driver's license confidential under certain circumstances. However, there is a limited exception to this federal law for motor carriers to obtain the motor vehicle record information for a commercial driver's license holder that is required by the FMCSA. Still, a motor carrier should be careful about providing driver's license information to any third party, including a shipper, without obtaining specific written authorization from the employee or contractor.
The Employee Polygraph Protection Act (EPPA) prohibits the use of lie detectors in employment decisions with a few limited exceptions. EPPA makes it unlawful for most employers to require, request, or even suggest that an employee or perspective employee submit to a lie detector test. Motor carriers that wish to adopt a policy regarding the use of polygraph tests for certain security-sensitive employee or contractor positions should consult with their attorneys before determining whether an exception from the polygraph prohibition exists for their specific security operations.
The FMCSA regulates the drug and alcohol testing required for all CDL drivers. While a motor carrier may enact more stringent drug and alcohol testing regulations, it cannot do so under the guise of a DOT-required policy. Moreover, several states have enacted laws and regulations restricting or, in some cases, prohibiting the drug and alcohol testing of employees under certain circumstances. Thus, if a motor carrier chooses to enact a drug and alcohol policy more stringent than the FMCSA requirements, it should first verify that such testing is allowed under applicable state law.

For more information, please contact Mr. Tim Wiseman at (317) 637-1777 or by e-mail at twiseman@scopelitis.com.

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New TCA and PTDI Headquarters Address

In case you missed the news, TCA and PTDI have moved their headquarters as of August 21, 2006 to the following address:

NEW TCA and PTDI HEADQUARTERS ADDRESS

555 E. Braddock Road
Alexandria , VA 22314
PTDI Main line: 703-647-7015
Fax: 703 836-6610

Please note that at the present time, we no longer have individual extensions, so if you need to reach a staff person, please contact them at the main number 703-838-1950.

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