Journal – January 2004

U.S. Department of Transportation’s Office of Inspector General said it will audit the Federal Motor Carrier Safety Administration’s progress in complying with certain provisions of the Motor Carrier Safety Improvement Act of 1999, including implementation of new entrant safety audits and OIG recommendations from an April 1999 audit as well as completion of various rulemakings required by the 1999 law.

U.S. Transportation Secretary Norman Mineta last month launched a national public-private partnership to combat low safety belt use among the nation’s 11 million truck drivers. The campaign follows a new study released by DOT finding that only 48 percent of commercial vehicle drivers wear safety belts. Nationally, 79 percent of passenger vehicle drivers wear safety belts, DOT says.

Volvo Trucks North America received the largest order ever for its Volvo VN tractors – 4,000 units for Swift Transportation. Under the deal, which includes a two-year agreement and a third-year option, initial units in the order will be produced in the first quarter of 2004. The VN670 will be equipped with Cummins ISX and Volvo D12 engines.

Pilot Travel Centers and IdleAire signed a long-term agreement allowing installation of IdleAire Advanced Travel Center Electrification technology in all Pilot-owned travel centers in the United States. IdleAire currently operates about 600 parking spaces in 13 truck stops.

THEY’RE HERE!
Barring a highly unlikely stay during the last week of the year, the new hours-of-service regulations took effect Jan. 4. Although the Federal Motor Carrier Safety Administration had established an eight-month period for outreach, education and training, several significant questions lingered until nearly a month before implementation, and at least one wasn’t fully resolved until less than three weeks before the regulatory switchover. And still another portion of the rule is the subject of a petition for rulemaking by the trucking industry. Meanwhile, a federal appeals court will hear arguments in April regarding a challenge to the new rules by safety advocates.

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On Nov. 25, John Hill, FMCSA’s assistant administrator and chief safety officer, issued a memorandum of enforcement policy on the hours rule covering five specific issues:

• Calculating the 14-hour rule following two qualifying sleeper berth periods totaling 10-hours;
  
• Combining sleeper berth and off-duty time;
  
• Use of the 34-hour restart provision;
  
• Length of out-of-service time required when a driver has violated the 11- or 14-hour rules in a sleeper berth operation;
  
• Length of OOS time required when a driver has exceeded 60/70 hours in 7/8 days.

Hill also noted that ATA had filed a petition for rulemaking that “has raised genuine issues in need of resolution.” ATA’s petition, filed Nov. 3, asked for a change in the new rule to allow a driver to stop the 14-hour clock with a single sleeper berth period in between two on-duty periods. “The requested exception would permit drivers greater operational flexibility while encouraging and supporting more rest and sleep – both naps taken in the sleeper berth and primary anchor sleep during 10-hour continuous off-duty periods at home or in motels,” ATA said in its petition. ATA said it believed the request “would increase commercial driver safety while preserving part of the operational flexibility of the current HOS rule.”

In addressing the combination of sleeper berth and off-duty time, Hill said drivers with at least two qualifying sleeper berth periods totaling at least 10 hours immediately prior to taking 10 or more consecutive hours can combine the last sleeper berth period with the 10 consecutive hours off duty. “The agency believes if sleeper berths are being used appropriately, drivers should not have to spend time in the sleeper berth upon going off-duty for 10 or more consecutive hours in order to remain in compliance.”

Hill, however, reaffirmed the interpretation that prompted ATA’s petition for rulemaking, saying that “it is important to prevent drivers who do not regularly use sleeper berths from extending their day by taking a single sleeper berth period.” (For further discussion of this issue, see “Tired but legally rested,” page 36.)

One of the most contentious FMCSA interpretations proved to be its determination that the out-of-service period for drivers splitting rest is to take into account the most recent sleeper berth period. For example, if a driver violated the 11-hour limit on driving or the prohibition on driving after the end of the 14th hour after taking three hours in the sleeper berth, the out-of-service period would be seven hours. That’s how the old rule was enforced.

The Commercial Vehicle Safety Alliance, which represents the law enforcement community and drafts the standard out-of-service criteria each year, had argued, however, that the new rule as drafted clearly set 10 consecutive hours off duty as the out-of-service period. CVSA asked FMCSA to reconsider its position and hinted it might stick to its own interpretation. But FMCSA stood by the interpretation and urged CVSA not to take a contrary position. On Dec. 15, CVSA agreed to abide by the FMCSA interpretation and began shipping out copies of the new out-of-service criteria the following day.

In other interpretations, FMCSA confirmed that the 14-hour rule did not restart following two qualifying sleeper berth periods. In other words, the calculation of the 14-hour rule works the same way as the calculation of the 11-hour limit on driving. Some in the industry had contended that a second qualifying sleeper period should complete a 14-hour day and that drivers should not be on the clock after exiting their sleepers until they began work.

FMCSA also confirmed that the 34-hour restart is available to a driver only if he has not exceeded 60/70 hours in seven/eight days when he took the restart. Likewise, a driver found to exceed the 60-/70-hour limits must be placed out of service until the end of seven- or eight-day period.

Hill noted that some of the policies outlined in the memo would be debated as part of ATA’s petition. “The agency cannot predict the outcome of this petition,” Hill said. “For the moment, however, this memorandum represents the agency’s best judgment on fair and reasonable enforcement policies.”

In a related development, the U.S. Court of Appeals for the District of Columbia Circuit has scheduled April 15 for oral arguments in a challenge of the new hours rules by Public Citizen, Citizens for Reliable and Safe Highways and Parents Against Tired Truckers. In their briefs to the appeals court, the groups argue that the new rule “abandons virtually every principle FMCSA had pronounced necessary for improving obsolete HOS rules and will lead to many more unnecessary deaths and injuries.”

The safety advocacy groups charged that the new rules don’t fix the problems in the old rules regarding drivers’ circadian rhythms. They also challenged continuation of the sleeper berth exception, increase in the maximum driving hours to 11, the 34-hour restart provision and the omission of electronic onboard recorders for hours compliance.

30 SECONDS WITH…ELLEN ENGLEMAN, NATIONAL TRANSPORTATION SAFETY BOARD CHAIRMAN
Most well known for its role in aviation, the National Transportation Safety Board is the lead agency that determines what happened and why when accidents occur in all modes of transportation. CCJ spoke briefly with NTSB Chairman Ellen Engleman at a recent industry meeting.

What role does the NTSB play in the trucking industry?
We want to show the industry we care and that we want to work with them to ensure roads are safe for drivers of all vehicles in all modes of transportation. Our mission is to determine the probable cause of accidents so they don’t happen again and then to issue safety recommendations.

What goals does NTSB have for trucking?
Our specific areas of focus are fatigue, training and maintenance. We believe all vehicles should have electronic data recorders – not to be Big Brother – but to get the facts, not guess.

How do you select which accidents to investigate?
We can’t do everything – we don’t have the resources. We investigate if there are significant safety factors involved and significant loss of life. We also focus on accidents where we can learn something, combined with other knowledge we have.

Nearly 45,000 people die on our highways each year. Realistically, what kind of reduction in accidents is your agency striving for?
I am a safety advocate and I believe that we want everyone to come home safely. The only right answer is to always try to achieve 100 percent safety in all modes.

CCJ EQUIPMENT DEMAND INDEX: MIDWEST IS FOR VANS

Three Midwest states – Ohio, Indiana and Illinois – should provide ample spot-market freight during February, according to the CCJ Equipment Demand Index. In February 2003, Ohio bumped Illinois from the top position for van demand, while Indiana jumped to the No. 3 position.
For the sixth consecutive month, Ohio was in the top position for flatbed demand. Illinois came in close, but continued to stay in second place, with only 4 percent fewer flatbed searches. Ohio traditionally has strong demand for flatbeds in February, holding first place three years in a row.

In reefer demand, Illinois reversed positions with Ohio. February is typically the month for strong reefer demand in Illinois.

The index, based on equipment searches performed by TransCore customers, shows the top 15 states in terms of demand for trucks in the spot market in the three most common equipment types: dry vans, flatbeds and refrigerated units. The index is intended to help fleet operators identify the most promising opportunities for backhaul and other spot-market freight in the month after its publication.

WERNER TO CONTINUE PAPERLESS LOGS
Federal Motor Carrier Safety Administration proposes to grant Werner Enterprises an exemption from the requirements for paper logs to allow the carrier to continue using GPS technology to manage and record drivers’ duty status. Under a memorandum of understanding signed in June 1998 and revised in March 2002, Werner has used paperless logs on a pilot demonstration basis. FMCSA’s proposed action would grant Werner a formal exemption to use its GPS system to comply with the requirements for records of duty status.

FMCSA proposes to grant Werner an exemption that would be renewed every two years. “The agency does not believe that it is appropriate to amend the safety regulations based on a technology that is currently being used by only one motor carrier,” it said.

As proposed, the exemption would be subject to various conditions regarding the operation of its paperless system and documentation of system failures. Werner also will be required to file quarterly reports on compliance and to permit FMCSA representatives reasonable access to the carrier’s safety management information system. In addition, Werner must furnish FMCSA upon request a driver-specific report of violations of the requirements related to maximum driving time. The carrier also must be prepared to show what disciplinary or remedial action was taken.

Comments on the proposed Werner exemption are due Jan. 12. For more information, visit this site and search Docket No. 15818.

NTSB RATES FMCSA’S PROGRESS
The Federal Motor Carrier Safety Administration received mixed ratings on its progress in the National Transportation Safety Board’s Most Wanted safety recommendations. The NTSB released its revised Most Wanted safety recommendations, which follow up on the board’s decision in May to overhaul its Most Wanted program.

It rated the FMCSA green (signifying acceptable response and progress) for preventing motor carriers from operating if they use vehicles with mechanical problems or allow unqualified drivers to drive. But the board assigned the agency a yellow rating (signifying acceptable response, but slow progress) for its prevention of medically unqualified drivers from operating commercial vehicles. Its recommendations include tracking all medical certificate applications and enhancing oversight of invalid certificates.

The board will review recommendations to states and industry next fall. Those recommendations include increasing highway safety by reducing “hard-core drinking and driving” and improving recreational boating safety.

SUPREME COURT TO REVIEW MEXICAN BORDER DELAY
The U.S. Supreme Court has granted the Bush administration’s request that it review a court decision delaying opening the border to Mexican trucks. The court agreed Dec. 15 to review the 9th Circuit appeals court decision that upholds a federal law requiring a detailed environmental impact statement and a general conformity evaluation before allowing Mexican trucks to do business in the United States.

U.S. Solicitor General Thomas Olson filed a request Sept. 8 for the review, arguing that the lower court had “misapplied the nation’s environmental laws and constrained the President’s discretion to conduct foreign affairs.” President Bush had sought to meet the requirements of the North American Free Trade Agreement when he declared the border open in November 2002, Olson had written.

Last January, the appeals court ruled in favor of Public Citizen and other environmental and labor groups, who had brought the suit demanding the environmental analysis.

“We believe that when the Supreme Court reviews all the facts, the justices will rule that federal environmental laws require the government to determine the health impact of these trucks before – not after – they begin rolling through the American heartland,” said Joan Claybrook, Public Citizen’s president.

The Federal Motor Carrier Safety Administration began the first stages of the environmental analysis in October and said at that time that the evaluation was expected to take 12 to 18 months. Public Citizen said federal officials indicated the reviews required by the court might be complete as early as summer 2004.

The organization has charged that by 2010, Mexican trucks will release twice as much particulate matter and nitrogen oxides as U.S. trucks. It has also argued that Mexican trucks are not bound by a 1998 settlement between U.S. officials and engine makers, which bars American trucks from having emissions-defeat devices that enable them to mislead inspection officials.