Article

View From The Hill

Infrastructure, emissions incentives, hours of service, NAFTA and Mexico are the hot issues for 2008.

October 2007, TruckingInfo.com - Feature

by Oliver Patton, Washington Editor - Also by this author

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For the trucking industry, the fall session of Congress began with a bang. Early in September, Rep. James Oberstar, D-Minn., chairman of the House Transportation and Infrastructure Committee, held hearings on the condition of the nation's bridges – and on his proposal to raise fuel taxes for a new trust fund to pay for bridge repairs.

It is too early to know where and how fast Oberstar's proposal will go, but the hearings jumpstart the key transportation debate of the decade: How much money it will take to unclog highway congestion, how that money will be collected and how it will be disbursed.

Oberstar's initiative was in response to the collapse of the I-35W bridge in Minneapolis during evening rush hour on Aug. 1. The incident claimed 13 lives.

His program would establish a fund, similar to the Highway Trust Fund, dedicated to the repair, rehabilitation and replacement of deficient bridges. It would prohibit federal and administration earmarks so funds are distributed on the basis of safety and need. And it would improve bridge inspection requirements.

Oberstar has not yet committed to a funding approach, but has suggested a 5-cent-per-gallon user fee on gasoline and diesel, or a $1 fee on each barrel of oil at the refinery. These funding mechanisms would be temporary, lasting only three years. The fuel levy would produce about $25 billion, while the per-barrel tax would produce about $16 billion.

President Bush has said that he will not support a tax increase.

It would be a break from tradition for Congress to seriously take up the idea of a bridge trust fund this year. Typically that kind of issue is handled on a six-year cycle when legislators take up reauthorization of the federal highway program – due in 2009.

But the Minnesota bridge collapse may trigger an out-of-cycle action. The collapse has been widely termed "a wakeup call" on the condition of the nation's infrastructure. Oberstar has said that the value of the highway construction dollar has dropped 47 percent in the 12 years since 1993.

"We've got to keep up with inflation. The last (highway) bill didn't. We will do that in the future."

No matter what happens with Oberstar's bridge proposal, Congress will continue to hold hearings on the condition of U.S. highways in preparation for the 2009 highway reauthorization.

A major issue will be funding – how to raise money for what everyone agrees is an underfunded system. The Highway Trust Fund, which is fed by fuel and excise taxes, has not kept pace with needs because the fuel tax has not been raised since 1994. Oberstar is insisting that higher fuel taxes be part of the highway reauthorization plan.

Oberstar insists that the trust fund will remain the core funding mechanism, but he is open to additional approaches. On the table are tolls on existing roads, and public-private partnerships (PPPs) in which a private investor fronts the money for a new road or maintenance of an existing road in return for an income stream from tolls. Perhaps the best-known example of such an arrangement is the 75-year lease of the Indiana Toll Road to an international consortium.

Trucking interests are deeply concerned about the PPP alternative. The American Trucking Associations and the Owner-Operator Independent Drivers Association are leading a group of highway users who are urging legislators to go slowly. "We must take the time to consider the long-term impact privatization will have on our nation's transportation system," ATA President and CEO Bill Graves has warned.

NATIONAL DRUG, ALCOHOL CLEARINGHOUSE

Another issue pending on Capitol Hill is a request by the ATA for legislation to create a national system to identify truck drivers who have tested positive for drugs and alcohol.

ATA says there is a loophole in the current system. It is up to the driver to report to a prospective employer that he tested positive in his former job. If he does not, the carrier might wind up hiring a person who has not been evaluated, treated and cleared for duty.

Some states have set up their own drug and alcohol clearinghouses – North Carolina, Arkansas, Texas, Oregon and Washington – but ATA wants a national program. The association has drafted a bill that would require DOT to set up a national clearinghouse. The proposal would give employers three days to report a positive drug or alcohol test, or a refusal to take a test. Employers who are hiring would have to request test results from the clearinghouse, with the driver's permission.

The bill sets security measures. For example, users would have to be registered and authenticated, a log of data requests would be kept, and pre-employment screening services would not be able to release information to anyone who is not authorized to receive it. Civil and criminal penalties would apply for violations.

The bill would authorize $2.5 million a year for FMCSA to run the program. Graves wants to move the bill as quickly as possible, but in any event as part of the highway reauthorization bill.

2010 EMISSIONS INCENTIVES

In other moves on Capitol Hill, trucking interests are looking for a financial incentive to ease the transition to the next diesel emissions requirement from the Environmental Protection Agency, coming in 2010.

The industry has a good argument for incentives, based on its experience coping with the 2007 EPA standard. Fleets pre-bought 2006 trucks to avoid the risk and expense of the 2007 engines – in effect countering the intent of the rule by keeping more older engines in service. Plus, there has been a 40 percent drop-off in truck sales this year as a consequence of the pre-buy, which has put people out of work and disrupted the business of truck manufacturers and their suppliers.

But incentives are a hard sell on Capitol Hill. The price tag is probably more than $1 billion – serious money even by congressional standards – and Congress this fall will be consumed by debate over the war in Iraq and positioning for a presidential election year.

Trucking dodged a problem earlier this year when it was able to convince the Senate that it should not pass legislation that would force fuel economy standards on heavy trucks. The legislation, which is scheduled to move through the House this fall, now gives DOT and EPA 18 months to come up with a way to measure efficiency in on-highway trucks. The method will have to take into account the type of operation and the work that the trucks do, as well as their design and the types of roads they use.

After that, DOT would have two years to come up with a proposed rule. The rule would have to give four model-years of lead time and three model-years of regulatory stability.

Trucking interests hope to include a long-sought measure in this legislation – a prohibition against states establishing their own fuel economy standards for trucks. That language is not in the Senate bill, but sources indicate there's a good chance it will show up in the conference bill.

Congress is also working this fall on a massive farm bill that will set federal policy regarding alternative fuels such as biodiesel and ethanol. The House version of the bill, which was approved in July, continues support payments to soybean growers and funds a biodiesel education program. The Senate is supposed to take up the issue this fall.

ZOMBIE RULE DOMINATES FMCSA AGENDA

The Federal Motor Carrier Safety Administration's to-do list for the coming year is as long as a trip to the moon and begins with the Zombie rule – the hours of service regulation that seems destined to wander forever between life and death.

In the latest HOS development, the American Trucking Associations asked a federal court to stay its decision on truck driver hours of service for eight months, arguing that the action is needed to prevent serious disruption to trucking operations.

The U.S. Court of Appeals for the D.C. Circuit vacated the 11-hour driving limit and the 34-hour restart rule effective Sept. 14, but ATA's petition in effect pushed back that deadline until the court responds.

ATA told the court that eight months should give the agency enough time to come up with a new rule. It said the delay is necessary to prevent serious problems for carriers. "The trucking industry and its customers could not instantaneously shift to an hours of service regime with a different daily driving time and without the 34-hour restart," ATA said. "Such a conversion would require months of preparation."

ATA also has petitioned the agency to keep the 11-hour limit and the 34-hour restart, and to begin a formal process of correcting the shortcomings found by the court.

As HDT went to press the safety agency still had not responded to the court's decision.

In a related development, the Owner-Operator Independent Drivers Association asked the court to reconsider its rejection of OOIDA's petitions in the case. OOIDA had contended that FMCSA did not address the issue of fatigue caused by cargo loading and unloading, but the court found that the agency did in fact do so. The court also said the agency did justify the 14-hour daily work rule and the sleeper-berth provisions, both of which OOIDA wanted changed.

NAFTA & MEXICO

A second major decision up in the air as HDT went to press was if the Bush administration would be able to start letting Mexican carriers provide long-distance service into the U.S. (See Washington Report, page 12.)

Cross-border trucking service was approved in principle by the U.S. and Mexico in the 1994 North American Free Trade Agreement, but has been stalled over the years by an alliance of labor unions, owner-operator interests and safety advocates. Their opposition triggered congressional orders that FMCSA construct a robust program to ensure the safety of the Mexican trucks.

Earlier this year FMCSA tried to launch a test of its safety program: permit up to 100 Mexican carriers that have been vetted by on-site inspectors to provide service for one year. Opponents of the border opening blocked that move for a while, but on the last day of August a federal appeals court rejected their bid for an emergency stay of the program.

The U.S. Court of Appeals for the Ninth Circuit in San Francisco denied the request by the Teamsters, Public Citizen and the Sierra Club, among others. The court said the petitioners did not meet the legal requirements for a stay.

On Sept. 6, the Federal Motor Carrier Safety Administration permitted Transportes Olympic of Nuevo Leon, Mexico, and Stagecoach Cartage and Distribution of El Paso, Texas, to commence operations north and south of the border.

They are the first of up to 100 carriers from each country that will be allowed to operate under a year-long program designed to demonstrate that FMCSA has effective safety controls in place. If the program goes well, the U.S. Department of Transportation plans to open the border to all carriers that comply with safety standards.

Both the House and Senate have passed appropriations bills with provisions that end funding for the program. The measure had not cleared a conference committee as HDT went to press, but it is likely to do so. The final measure faces a veto threat from President Bush, who has complained that it appropriates too much money.

And more legal action is possible – the court said in its brief statement that its briefing schedule on the matter will remain in effect.

OTHER MAJOR DECISIONS PENDING

Electronic Onboard Recorders: FMCSA proposed that truck lines that fail to meet hours of service standards be required to install electronic onboard recorders, and that compliant carriers be encouraged to use them by lightening regulatory requirements. The proposal also spells out new performance standards for the devices, taking into account myriad technological developments that have occurred since the current voluntary rule was established in 1988.

A final rule is supposed to be ready by next September.

- Speed limiters: FMCSA and its sister agency, the National Highway Traffic Safety Administration, are studying a petition by ATA and a public interest group called Road Safe America to limit heavy-duty trucks to 68 mph.

The agencies may decide to do nothing, but if the data show that safety could be improved, they may propose a rule requiring speed limiters and punishments for anyone who tampers with a limiter.

The agency has not posted a schedule for this issue.

- New Entrant Standards: The agency has proposed stiff new safety standards for new entrants into the trucking business.

In its proposal for the new standards, published early in the year, the agency said that the current standards are not tough enough. During the first year of the current standards, the agency and its state partners audited about 10,000 applicants for safety compliance and cleared practically all of them.

The agency now has proposed to turn the safety audit into a real barrier to entry: If an applicant commits any of 11 violations, he would fail the audit. If he does not correct the violation, his application would be denied.

The agency is targeting new entrants because, statistically, their safety records are significantly worse than those of experienced carriers. They are involved in more accidents and their drivers and vehicles are more often out of compliance.

The final rule is due in March 2008.

- Intermodal Container Chassis Roadability Standards: The agency proposed a rule designed to clarify who is responsible for making sure that container chassis are maintained in safe operating condition.

The proposal, which was ordered by Congress, says that responsibility would lie with the company that provides the equipment. The provider would have to establish a system for inspecting and maintaining chassis, and for responding to drivers' reports about defects. The provider also would have to obtain a DOT number and display it on the chassis.

The agency's intent is to clear up a problem that has plagued the intermodal business for years. Carriers contend that the owner of the chassis – often the steamship line – should be responsible for the chassis, but truckers are the ones who must pay the fines if a chassis fails a roadside inspection. By placing responsibility for the equipment explicitly with the provider, the agency hopes to ensure that the equipment is properly maintained.

The final rule is due in April 2008.

- National Registry of Certified Medical Examiners: The registry would identify qualified examiners who understand the truck driver's working environment and are up to date on current medical standards.

When the agency began the rulemaking in 2005 it had little information about the current pool of medical examiners – it could only guess how many there were. According to the National Transportation Safety Board, an independent federal agency that serves as a safety watchdog, there are "serious flaws" in the current medical certification process. Many drivers have serious medical conditions that are not reported to licensing authorities, and enforcement officials cannot gauge the validity of medical certificates, the board says.

The agency may require examiners to take a training course that uses a standard curriculum, and pass an exam. Examiners would have to be recertified, as well, to ensure that they remain qualified and competent. In addition, the agency has suggested that its new registry web site ( www.nrcme.fmcsa.dot.gov ) be the clearinghouse for the program.

The agency plans to publish a proposed rule next January.

- Driver Training: The agency is working on a proposal to toughen up its current rules by adding a requirement for on-the-road training.

The rulemaking was initiated by a 2005 court order. In a suit brought by Advocates for Highway and Auto Safety, a federal appeals court said the current rule is not adequate.

Right now, the rules require all new truck and bus drivers to receive training above what they need to pass their commercial driver's license exam. The training covers general information about driver qualification requirements, such as vision and hearing standards, as well as the hours of service rules, driver wellness and "whistleblower" protections.

But the rule does not spell out any requirements for on-the-road training. Advocates argued, and the court agreed, that this is a fatal shortcoming.

The proposed rule was sent to the White House for clearance in August. It is due to be published this month.

- CDL Testing and Learner Permit Standards: The agency is considering a proposal to revise the CDL knowledge and skills tests, and set minimum standards for commercial driver learner permits issued by states.

The proposal is due next February.

- Safety Fitness Determination: The agency is preparing a proposal to use safety data, such as crashes, inspections and violation history, rather than compliance reviews to assess carrier safety performance. It is part of a broad agency initiative to get more leverage out of its limited resources.

A proposed rule is due next March.

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