No matter who occupies the White House in January, Washington is going to have to get back down to business. For trucking that means security, hours of service and long-haul carriage across the Mexican border, among other issues.

It's been almost three years since Congress ordered the Department of Transportation to start conducting background checks on hazardous materials drivers. The program has proved much more difficult in execution than in theory. There were structural problems in the government - midway through, the job was transferred from DOT to the newly created Department of Homeland Security - and many states were not equipped to handle the fingerprinting that is the key component of the program.

Fingerprinting is scheduled to begin Jan. 31. If that happens, it will be over the objections of American Trucking Assns., said Dave Osiecki, vice president of safety and operations. ATA does not oppose fingerprinting but it does not believe the states will able to handle the task, Osiecki said.

Under the procedure, drivers are supposed to be fingerprinted by the state department of motor vehicles - for a fee. If the background check reveals that a driver is a security threat or has been convicted of a serious felony - for example, treason or sedition, robbery, rape, bribery or the unlawful possession of firearms or controlled substances - within the past seven years, he will not be allowed to haul hazmats. There is an appeal process, in which a driver can correct the record if there has been a mistake.

If a driver does not clear the check, TSA will notify the driver's state motor vehicle agency, which will in turn notify the driver. It will be up to the driver to talk to his employer. Drivers who believe they may not get past the check should contact TSA - they may be eligible for a waiver.

Meanwhile, the Transportation Security Administration, a division of DHS, is checking the names of some 3.5 million hazmat drivers against FBI and immigration data bases. Osiecki said that so far that check has tagged about 50 names as possible security risks.

Longer term, all truck drivers face the probability of background checks with fingerprints or some other biometric identifier. DHS is in the third phase of a program to create a Transportation Worker Identification Credential, a kind of universal security card that could double as a CDL for truck drivers. The credential will not be put into use in 2005 but it could start showing up the year after.

ATA supports this program, Osiecki said.

Trucking is also going to have to be concerned about security issues raised by the 9/11 Commission. The commission pointed to an alarming weakness in the nation's ability to guard against infiltration of weapons through international shipping containers.

Two members of the commission, Jamie Gorelick and John Lehman, recently warned Congress that despite improvements in maritime security, "significant vulnerabilities remain." TSA has missed its deadline for coming up with a strategic plan to improve transportation security, Gorelick and Lehman told the Subcommittee on Coast Guard and Maritime Transportation.

The plan is supposed to spell out goals, determine how to achieve them, identify who is responsible for the work, and figure out how much they will cost and how to pay for them.

"TSA is now almost three years old, DHS nearly two. The time for planning to plan is past. We need these vital blueprints, including the delineation of roles and missions, and we need them soon."

Security expert Stephen Flynn of the Council on Foreign Relations underscored the urgency of the situation, warning that the White House and Congress have not invested nearly enough money in maritime security.

The Maritime Security Transportation Act, passed by Congress in 2002, adopted the International Ship and Port Facility Security Code (ISPS), which set new security standards. But Congress has provided only $516 million of the $5.6 billion needed to make ISPS work, and the White House's 2005 budget calls for just $50 million more, Flynn said.

Also underfunded is the Customs and Border Protection Directorate at DHS, he said. CBP has taken steps to improve cargo container security, but "the paucity of resources being dedicated to support these efforts leaves America dangerously vulnerable to another act of catastrophic terrorism."

One shortcoming in particular is a lack of support for the Customs-Trade Partnership Against Terrorism (C-TPAT), Flynn said. This program, well known to motor carriers involved in international shipping, encourages companies to voluntarily improve their security. In return, the companies get a "low-risk" designation and are cleared from routine examinations.

The problem is, Flynn said, the Customs and Border Protection Directorate does not have enough staff to review the initial C-TPAT applications it has received.

"Worse still, they do not have the manpower to provide an ongoing system that verifies that companies are actually taking tangible steps to bolster supply chain and transportation security. As a result, the regime is essentially, a 'trust-but-don't-verify' approach."

Flynn's fear is that terrorists will use a C-TPAT company that ships through an ISPS-certified port to infiltrate a weapon of mass destruction. "Our enemies will then successfully discredit the entire regime now in place," he said.

"Announcing ambitious security initiatives without providing adequate resources to make them credible is dangerous business," he warned.

Safety

At the top of the Federal Motor Carrier Safety Administration's list for next year is the driver hours of service rule. The agency has decided not to challenge a court rejection of the current rule - instead it is asking the court to keep the rule in place while it figures out how to fix it (See story page 10). There remains the possibility that the court will order the agency to revert back to the old rule while it works on fixing the new.

Given the scope of the changes the court says are needed, it is likely that the regulatory process will spill over into 2005. Certainly there will be changes in the rule, requiring revision of company operations and training of personnel. It also is possible that a reopening of the rule will embolden stakeholders to ask for congressional intervention - an additional complication that will add uncertainty to the process.

Meanwhile, Congress is considering a measure that would exempt utility trucks from the rule, an amendment linked to highway funding legislation that is supposed to pass this year but may fall victim to presidential election politics.

FMCSA also is working on revisions to SafeStat, the online data system it uses to rate trucking company safety performance.

The rating system is flawed, as the agency has acknowledged, and some of the data has been removed from the public web site. Also, the agency has installed a new system intended to make it easier for trucking companies to fix mistakes in the data, and a map indicating which states do a good job of reporting their data, and which do not. The agency plans to restore the data once it has been repaired.

FMCSA also plans to get involved in regulating intermodal chassis. Earlier this year Transportation Secretary Norman Mineta announced that the agency will write a new rule to create a comprehensive safety inspection program for chassis, making chassis owners subject to the same enforcement and penalties that trucking companies now face.

Driving this issue is the long-held contention by intermodal carriers that since they do not own the chassis they cannot be expected to maintain them. Yet the carrier is legally responsible for the chassis' condition once it is on the road - and frequently they are not fit to be on the road. The result, carriers say, is that they are hit with fines when the chassis fails a roadside inspection, and the citation becomes part of its official safety record.

The agency is working on the proposed rule, but a spokesman could not say when it will be published. Meanwhile, ATA and the Teamsters and Longshoremen's unions will be pushing for legislative solution.

Also on the agency's agenda for next year are new rules for hours of service recordkeeping, and changes in state management of the commercial driver's license system.

Mexico

Earlier this year the Supreme Court cleared the way for opening the Mexican border to long-haul trucking by reversing a lower court finding that FMCSA must complete a major study of the environmental impact of incoming Mexican truck traffic before the border can open.

The border remains closed, however. One unresolved issue is a diplomatic question concerning access of U.S. safety inspectors to Mexican trucking companies. Under the safety agency's rules, inspectors must visit Mexican companies to conduct safety audits before they can start cross-border service. The U.S. and Mexico have yet to come to terms on the agreement that will allow the inspectors to visit the Mexican fleets.

Meanwhile, one of the groups that sued to block the border over the environmental issue, Public Citizen, is back in the fray.

In an August letter to DOT Secretary Mineta, the safety activist group charged that DOT has not fulfilled its promise to ensure that Mexican trucks and drivers meet the same safety and operating standards that U.S. and Canadian carriers face.

"There remain . . . significant baseline differences between U.S. and Mexican law, regulation and procedure that govern motor carriers," Public Citizen said. Among them: The U.S. and Mexican driver's license standards are not equivalent, and compliance with alcohol and drug testing requirements cannot be ensured.

If nothing else, Public Citizen has set the stage for the next chapter in the years-long struggle to open the border.

About the author
Oliver Patton

Oliver Patton

Former Washington Editor

Truck journalist 36 years, who joined Heavy Duty Trucking in 1998 and has retired. He was the trucking press’ leading authority on legislative and regulatory affairs.

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