FMCSA tries to shield hours rules

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International Truck and Engine Corp. said it will develop and produce engines in the 11- to 13-liter range to be offered in International Class 8 highway tractors and severe service trucks, beginning in fall 2007. The International engines will be a product of a previously announced strategic agreement with MAN Nutzfahrzeuge to collaborate on design, development, sourcing and manufacturing of components and systems for commercial trucks. The truckmaker will continue to offer Cummins and Caterpillar engines in its Class 8 vehicles.

American Trucking Associations’ Truck Tonnage Index fell 1.0 percent from November to 158.0 in December. The decrease followed a 1.4 percent increase in November. The 2004 index, which was 6.1 percent higher than 2003, was the highest since 1998.

Freight Transportation Services Index rose 1.0 percent to 128.9 in November from the October level of 127.6 for the second consecutive monthly rise, according to the Department of Transportation’s Bureau of Transportation Statistics. The November 2004 level is 7.0 percent higher than the November 2003 level of 120.4.

California air-quality regulators are enforcing a new anti-idling rule that prohibits diesel trucks from standing for more than five minutes and buses for more than 10 minutes. Drivers caught ignoring the rule, which took effect Feb. 1, could draw a citation carrying a minimum civil penalty of $100 and one of a range of criminal penalties. Long-haul drivers who sleep by the side of the road are exempt, but trucks weighing more than 10,000 pounds aren’t allowed to idle within 100 feet of a residence or a school.

Environmental Protection Agency said J&R Schugel Trucking, New Ulm, Minn., became the 100th partner in the agency’s SmartWay Transport Partnership – a voluntary program launched in February last year by EPA and the freight transportation industry to reduce greenhouse gases and air pollution. Separately, EPA recently unveiled a new public service announcement campaign, “Products on Wheels,” that is designed to encourage shippers and carriers to join. For more information about the SmartWay Transport Partnership, visit this site.

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In a move aimed at thwarting a major court defeat, the Bush administration last month proposed legislation that would convert the current hours-of-service regulations for truck drivers into statutory law. The proposal, included in a package of adjustments to the administration’s highway reauthorization request, is intended to render moot a federal appeals court ruling that overturned the rules because the Federal Motor Carrier Safety Administration failed to consider the impact on driver health to the extent the court believes Congress had demanded.

Another measure in the Department of Transportation’s legislative proposal would limit the scope of the FMCSA’s jurisdiction over driver health to ensuring that “the operations of commercial motor vehicles are free from recognized hazards that cause or are likely to cause death or serious physical harm to the operators.”

FMCSA Administrator Annette Sandberg announced the legislative proposals Feb. 8 at the American Trucking Associations’ Winter Leadership Meeting in Washington, D.C. Sandberg said that although FMCSA is moving forward with a reconsideration of the rules through rulemaking, the failure of Congress to enact a highway programs authorization bill last year presented an opportunity this year to protect the rules from the litigation initiated by Public Citizen and its allies.

Sandberg told ATA members that in November she proposed that DOT ask Congress to make the hours-of-service regulations permanent by writing them into statutory law. “As of Monday [Feb. 7], that has been approved,” she declared. The suggested changes were presented to the key House and Senate committees with jurisdiction over trucking. The same week, House transportation leaders re-introduced their highway bill (H.R. 3) without the proposed revisions (see “Resetting the clock,” opposite page), but there remain several opportunities for Congress to adopt them.

Rewriting history
The July 16, 2004, decision of the U.S. Court of Appeals for the District of Columbia Circuit holds that FMCSA likely departed from congressional intent in several respects. In effect, FMCSA proposes to fix this problem retroactively by establishing favorable congressional intent before Public Citizen filed its lawsuit.

Under DOT’s proposed legislation, the regulation issued in April 2003 would be “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.” But the trucking industry wouldn’t necessarily be stuck with the current rules forever. The proposal would give FMCSA authority to make changes to the rules in the future through the normal rulemaking process.

In an explanation that accompanied its proposal to Congress, DOT said that many motor carriers have reported accident experience under the new regulations that is comparable to, if not better than, their experience under the old rules:

“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.”

The explanation further states that work on the hours rules 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.”

Health equals life?
Although the appeals court raised objections for several reasons, its rejection of the rules technically is based on FMCSA’s supposed failure to adequately consider driver health as Congress has directed it to do in all rulemakings. By law, FMCSA must ensure that “the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators.” Instead, DOT wants the scope limited to conditions that threaten death or serious physical harm.

In its explanation of the proposed change, DOT said that the ability of scientists to detect deleterious effects “at very low levels of exposure has increased enormously in the last 20 years.” As a result, the current law “has become a potential roadblock to Department of Transportation safety initiatives because it could be read as prohibiting any regulation that allows a deleterious effect, however minor, to affect a commercial motor vehicle driver.” The result, DOT said, would be an unnecessary conflict with the jurisdiction of other federal agencies, such as the Occupational Safety and Health Administration.

“Congress did not intend to make DOT responsible for every conceivable health problem associated with truck driving,” the department said. The language regarding death and serious physical harm was taken from a congressional directive regarding a joint study of DOT, the National Institute for Occupational Safety and Health and the Department of Labor. DOT says the proposed change would allow it to consider only significant threats to driver safety.

Following her brief speech to ATA members, Sandberg told reporters that the court’s broad reading of FMCSA’s obligation to consider driver health made it very difficult for the agency to pinpoint whether health conditions truly were related to the hours rules or to numerous other factors, including drivers’ own decisions regarding exercise, diet and so on.

The White House hopes to gain enactment of a new highway bill by May, when the current program extension ends. If Congress does enact the bill and includes the codification of the hours rules into law, FMCSA will stop work on its current rulemaking to reconsider the regulations, Sandberg said. In the meantime, however, FMCSA is continuing to work on the rule. As part of the highway bill extension last year, the current rules are held in place only until Sept. 30, 2005. Therefore, FMCSA encourages interested parties to comment on the agency’s notice of proposed rulemaking by March 10 despite the possibility of a legislative fix to the agency’s problem.

Resetting the clock
All three branches of the federal government – executive, judicial and legislative – are involved in the struggle over drivers’ hours-of-service regulations. The following legislative proposals for modifying the hours rules in some respect had been introduced in the 109th Congress, which began in January, by Feb. 10:

H.R. 3 – The leadership of the House Transportation Committee on Feb. 9 reintroduced the highway bill, which died at the end of the 108th Congress. Among the numerous changes in motor carrier safety programs is a provision that would exempt drivers of utility service vehicles from federal, state and local laws, rules, regulations or standards regarding drivers’ hours of service. The provision was in both versions of the highway bill in the last Congress and presumably will become law eventually.

As introduced, H.R. 3 does not include the Bush administration’s proposals to write the current hours-of-service regulations into statutory law or to redefine the scope of the Federal Motor Carrier Safety Administration’s jurisdiction over driver health.

H.R. 572 – Rep. Jerry Moran (R-Kan.), House Agriculture Committee ranking Democrat Rep. Colin Peterson (D-Minn.) and other co-sponsors introduced legislation Feb. 2 to make the agricultural exemption from the hours regulations permanent. The bill, which is strongly supported by the Agricultural and Food Transporters Conference of the American Trucking Associations, also would define the term “agricultural commodities” more comprehensively.

“This legislation is the number one legislative priority for the Agricultural and Food Transporters Conference, and we look forward to it being included in any highway reauthorization bill passed in the 109th Congress,” AFTC Executive Director Fletcher Hall said.

H.R. 623 – Rep. John Boozman (R-Ark.) and 17 co-sponsors proposed legislation Feb. 8 to allow truck drivers to take up to two hours of off-duty time during their daily tour of duty. Boozman had offered the amendment to the highway bill last year, but withdrew it following a promise from House Transportation Committee Chairman Don Young (R-Alaska) to work on the issue in a conference with the Senate. The highway bill died at the end of the 108th Congress.

“While FMCSA may have thought that giving the drivers more consecutive rest time would be beneficial, the reality is, the rule has actually forced them to push harder to complete their workload,” Boozman said. “This makes for an unnecessary strain on truckers and creates more incidents of driver fatigue.”

–Avery Vise

DOT inspector general: On-site reviews stall Mexico deal
The Federal Motor Carrier Safety Administration has sufficient staff, facilities, equipment and procedures in place to handle the entry of Mexican long-haul trucks into the United States, the Department of Transportation’s Office of Inspector General (OIG) concluded. Despite this finding, the OIG said that expanded operations should be blocked until certain disagreements between the U.S. and Mexican governments are resolved.

Several years ago, Congress required that the OIG make certain certifications before Mexican carriers could expand their scope of operations beyond the narrow commercial zones across the U.S. border. Among the OIG’s findings is a drop in the vehicle out-of-service rate for Mexican motor carriers from 40 percent to 23 percent between fiscal 1999 and fiscal 2003. That performance puts the OOS rate for Mexican carriers at virtually the same as the 22 percent average for U.S. interstate carriers.

“However, until an agreement or other understandings related to on-site safety reviews is reached with Mexico, FMCSA cannot, in our view, grant long-haul operating authority to any Mexican motor carrier,” the OIG said. The legislation governing the Mexican operations requires that 50 percent of Mexican motor carriers applying for long-haul authority be reviewed on-site and that on-site reviews cover at least 50 percent of the estimated truck traffic in any year. The OIG noted that there still is no agreement between the countries for such reviews, although the need for and contents of a protocol regarding on-site reviews are under review.

Another obstacle for expanded Mexican carrier operations is the new background checks for U.S. drivers applying for hazardous materials endorsements, the OIG said. “An agreement will need to be in place with Mexico before vehicles owned or leased by a Mexican motor carrier that is granted operating authority by FMCSA can be permitted to haul hazardous materials beyond the commercial zones.” The Transportation Security Administration will negotiate with Mexico on this issue.

As of September 2004, FMCSA had received applications from 678 Mexican motor carriers seeking long-haul authority to operate about 4,000 vehicles. That is up from the 232 carriers that had applied as of March 2003, with the intention of operating about 1,400 long-haul vehicles.

DOT to review current, planned regs
The U.S. Department of Transportation announced in late January that it plans to review its current regulations and planned rulemakings in an effort to make its rules more effective and less costly and burdensome. The department also wants to identify rules that no longer are needed as well as new rules that are needed but not currently under consideration. And DOT wants to prioritize its rulemaking activities. As part of the review effort, DOT has asked for comments on these matters by April 29. The department also plans to hold public meetings April 12 and April 19 in Washington, D.C., to receive and discuss comments. For a copy of DOT’s notice, visit this site and search Docket No. 20112.

CCJ Equipment Demand Index: A hat trick for Texas

April ’04 ’03 ’02
Texas 1 1 1
Illinois 2 2 4
Ohio 3 5 5
Georgia 4 4 2
Tennessee 5 3 3
Indiana 6 9 12
N Carolina 7 8 8
California 8 6 7
Missouri 9 7 6
S Carolina 10 13 11
Alabama 11 10 10
Wisconsin 12 11 14
Kentucky 13 16 16
Louisiana 14 12 15
Michigan 15 17 18
April ’04 ’03 ’02
Texas 1 4 1
Alabama 2 5 5
Ohio 3 2 4
Georgia 4 6 2
Arkansas 5 3 6
Illinois 6 1 3
Tennessee 7 8 10
Indiana 8 7 8
N Carolina 9 9 7
S Carolina 10 10 9
Mississippi 11 11 13
Kentucky 12 12 11
Michigan 13 14 17
Florida 14 17 14
Louisiana 15 15 18
April ’04 ’03 ’02
Texas 1 3 2
Florida 2 1 1
California 3 2 3
Georgia 4 4 4
Arkansas 5 6 7
Illinois 6 8 6
Wisconsin 7 13 15
Ohio 8 10 11
Missouri 9 9 9
New York 10 19 14
N Carolina 11 18 14
Mississippi 12 17 13
Tennessee 13 14 8
Oregon 14 11 11
Minnesota 15 23 26

If this April resembles last April, the Lone Star State should be the richest source of spot-market freight for the three most important equipment types – dry van, flatbed and refrigerated. As is typical, Texas topped dry van searches in April 2004. Illinois was second with 19 percent fewer equipment searches.

Texas also took first place in flatbed demand as it had done in April 2002. Alabama ranked second with 40 percent fewer flatbed searches. And Texas topped reefer demand in April 2004. Florida was second with 16 percent fewer reefer searches.

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.