2004 Member News
2004
Florida DOT No Longer Considers Gasoline and Diesel Fuel as "Relief Supplies"
Major Ken Carr of the Motor Carrier Compliance Office of the Florida Department of Transportation has notified CVSA that while Governor Bush had issued Executive Order 04-248 on November 23, 2004 to extend previous orders for agencies to provide regulatory relief for another 60 days, gasoline and diesel fuel can no longer be considered "relief supplies." Therefore, beginning Wednesday, January 5, 2005, the transportation of gasoline and diesel fuel will be subject to statutory weight limitations and enforcement of the motor carrier safety regulations, i.e., driver hours of service and vehicle parts and accessories. Major Carr said this should give those affected the lead time to ensure the resumption of normal activities if they haven't done so already.
Relief activities such as debris removal, movement of temporary housing, and others specifically mentioned in permits issued by the Florida Department of Transportation will still be allowed according to the terms of the permits.
2004
Congress Extends Current Hours-of-Service Rules
The Congress has passed, and the President has signed into law, an extension of the TEA-21 Highway Program that also extends the current hours-of-service rules for one year.
The legislation specifies that the current hours-of-service rules are to remain in effect until FMCSA develops a new set of regulations or September 30, 2005, whichever comes first. This action by the Congress overrides any decision the U.S. Court of Appeals for the District of Columbia may make with respect to the request for a stay by FMCSA, CVSA, and ATA. As of the time the Congress acted yesterday, the Court had not rendered a decision with respect to the stay.
CVSA, along with ATA, had been seeking a legislation solution that would retain the current rules until FMCSA develops a new rule pursuant to the July 16 Court decision.
The Congress was forced to pass another extension of the TEA-21 Highway Program since House-Senate Conferees on the Reauthorization bill had reached an impasse that was not expected to be resolved before the Congress adjourns sometime in early October.
2004
CVSA President to Address CMV Safety Issues
Captain Paul Claunch, who is with the Arkansas Highway Police and is the current President of the Commercial Vehicle Safety Alliance, will be the guest speaker at the Transportation Table Luncheon on September 24 at the National Press Club in Washington, D.C.
Captain Claunch will be addressing recent Congressional actions regarding highway reauthorization, hours of service, and security, as well as commercial vehicle safety issues in North America.
To make reservations to attend the luncheon, please call the Transportation Table at 202-661-3373.
2004
New Hours-of-Service Rules in Effect at Least until September 24, 2004
We have been advised by our Legal Counsel that a ruling from the Court on the request for a stay of the new rules is not expected until September 17 at the earliest. Under the Court's rules, the FMCSA motion filed on August 30 automatically stayed the issuance of the mandate (which would allow the old rules to become effective) until the court issues a decision. Public Citizen, who initially filed the lawsuit, has 8 workdays to reply and FMCSA has 5 workdays to respond to their reply. That extends the stay to September 17. The Court could issue a decision on the stay any time thereafter. If that decision is a denial of the requests for a stay, the Court's rules provide a further 7 day delay before it actually issues its mandate.
The Court has several options in response to the Government's request for a stay that include:
- Denying the motion for a stay and allowing the mandate to issue. This would mean that at the federal level the old rules would become effective 7 days after the decision. At the state level, it would mean that those states that automatically adopt new FMCSRs would also revert to the old HOS rules
- Granting an indefinite stay until FMCSA has issued a revised rule or otherwise responded to the Court's July decision. The status quo would be retained in the interim. This would be the best outcome, even though it may not be the most likely decision by the Court
- Issuing a stay for a specified period of time (such as 6 months) putting pressure on FMCSA to issue a revised rule or issue a corrected decision within this period
- Issuing a stay for a specified period of time, but allowing FMCSA to provide updates on its progress in complying with Court's decision. If the Court finds FMCSA is making progress but needs more time, it could extend the stay. This would be a reasonable outcome that would maintain the status quo and ensure that the FMCSA takes action in accordance with the Court's directives
We will continue to keep you informed as we learn more information.
2004
Size and Weight Allowances Extended Because of Hurricane Frances
With Hurricane Frances headed for Florida and other eastern states, Florida Governor Jeb Bush has issued a executive order extending the allowances for size and weight that are still in effect from Hurricane Charley. Governor Bush asks the states to continue allowing commercial vehicles providing relief supplies and services to traverse their states enroute to Florida to operate according to the same parameters as those provided in the previous request. (Visit www.dot.state.fl.us/mcco to view those allowance parameters and permits.)
Major Ken Carr of the FL DOT/Motor Carrier Compliance Office has asked CVSA to pass this information on to the Member States. He says Hurricane Frances is much bigger, much stronger and will be slower than Charley. This one, he says, is expected to be the "Big One".
For these reasons, CVSA asks for your cooperation to the extent possible.
2004
CVSA Files Court Motion to Keep Existing Hours-of-Service Rules in Place
The Commercial Vehicle Safety Alliance has filed a motion with the Unites States Court of Appeals for the District of Columbia in support of a motion staying the Court's July 16 decision overturning the new hours-of-service rule. This motion was filed August 30 by the Department of Justice on behalf of the Federal Motor Carrier Safety Administration seeking to keep the existing new hours-of-service rules in place for at least 6 months while FMCSA writes a new rule to correct the Court's concerns about the current rules expressed in its July 16 decision.
CVSA believes that if the motion is not granted, and the old rules were brought back into place during this interim period, substantial disruption in the enforcement of hours of service regulations would occur and compromise highway safety.
In its filing, CVSA told the Court that it brings a unique perspective to the proceeding since it represents the front line agencies and personnel who are responsible for enforcing the country's laws and regulations governing commercial vehicles, drivers and highway safety. It cited the different methods and varying lengths of time by which states adopt revisions to the Federal Motor Carrier Safety Regulations and told the Court that immediate vacating of the current HOS rule would result in differing HOS rules at the state level. This would ultimately affect uniformity in enforcement.
In addition, CVSA cited the cost and complexity of retraining enforcement officers, prosecutors and others on the current rules. This process would have to be repeated if the old rules were put back in place, not to mention repeating the process when FMCSA issues a corrected rule sometime in the future.
2004
Florida Department of Transportation
Tropical Storm Bonnie and Hurricane Charley Emergency Response, Road Use Permits for the movement of Emergency Housing Units Executive Order Number 04-182 issued August 10, 2004 delegates certain powers to the Director of the Division of Emergency management "to suspend the effects of any statute or rule governing the conduct of state business, and further authority to suspend the effect of any order or rule of any government entity."
With this authority, the Florida Department of Transportation provides this letter to permit the movement of vehicles transporting emergency housing units and its components. These vehicles may be up to fourteen (14) feet wide, up to eighty (80) feet in length, legal height and weight.
Authorized time of travel is as follows: Vehicles eight (8) feet six (6) wide or less may travel all days, all hours. Vehicles which exceed eight (8) feet six (6) inches in width, up to fourteen (14) feet wide may travel all days, daytime hours only. The vehicles shall be marked and have working lights in accordance with current laws and Federal requirements.
Movement requirements are as follows: Vehicles which exceed ten (10) feet in width, up to twelve (12) feet wide are to travel with one (1) amber rotating light while operating on state maintained roadways in Florida. Vehicles greater than twelve (12) feet wide, up to fourteen (14) feet wide are to travel with one (1) certified escort and four (4) amber rotating lights while operating on state maintained roadways in Florida. Please honor this letter as a Road Use Permit issued for the purpose of the Tropical Storm Bonnie and Hurricane Charley emergency response, for a period of time not to exceed thirty (30) days from the date of this letter.
Please call (850) 410-5777, Florida Department of Transportation Road Use Permits Office, if you require additional information.
2004
FMCSA Considers Options to Appeal Hours-of-Service Court Decision
FMCSA is considering its options to appeal the July 16 U.S. Court of Appeals decision to vacate the new hours-of-service rule. It has 45 days from the date of the decision in which to seek a rehearing with this Court. If the motion is denied, the Court's mandate to remand the issue to FMCSA for further action will be issued 7 days after the denial. If the rehearing is granted, the Court will issue a new order staying the issuance of the mandate until determination of the case after the rehearing.
FMCSA could also choose to appeal directly to the U.S. Supreme Court within the same 45-day period. As part of its appeal, FMCSA could request an additional 90-day stay for a total of 135 days (which could be extended further if the Supreme Court decides to grant the petition). If the Supreme Court denies the request, the Court of Appeals is required to issue the mandate immediately.
If FMCSA does not choose either of the above, the mandate or actual Court order remanding the matter to FMCSA would be issued 7 days after the rehearing period runs out. This would be a total of 52 days after the decision date, which would fall on September 7 (September 6 is a Federal holiday).
Until the Court issues its mandate remanding the issue to FMCSA, depending on which action may be exercised, the new hours-of-service rules remain in effect.
If any, or all, of FMCSA's efforts to appeal the decision should fail, FMCSA must start a new rulemaking process. Or, FMCSA could decide not to exercise any of its appeal options and start a new rulemaking process. The important question becomes which set of rules would be in effect during the time it would take for a new rulemaking process — old or new? The legal community's consensus seems to be the old rules.
There may be a possibility of CVSA petitioning the Court to keep the new rules in effect during this entire period. The opportunity to do this depends on whether FMCSA chooses one or other of the appeal processes. We cannot do it independently. There also is the possibility of seeking a Congressional directive in the 2005 appropriations process to have the new rules remain in effect during the time needed for the new rulemaking. However, the Congressional schedule for passing the 2005 appropriations bills remains in doubt. (The 2005 appropriations bill may not pass until October or in a "lame duck session" in November.) Or, there may a Continuing Resolution (the 2004 bill) into next year. It also should be noted that there has not been overwhelming Congressional support for the new rules.
CVSA is acutely aware of the need for uniform enforcement of the new rules to ensure highway safety. We recognize that the states have different means with which federal rules are adopted into state law, and that it presents a major issue for the members. If FMCSA exercises one or more of its appeal options, CVSA may need to consider filing a brief with the Court. This brief would outline the concerns and impacts of any decision to alter the current rules. In preparation of this potential scenario, CVSA staff will be distributing a survey to the members in the next several days. It is very important that everyone complete and return this to CVSA Headquarters.
We will keep you updated on events as they occur.
2004
U.S. Court of Appeals Vacates New Hours-of-Service Rules
The U.S. Court of Appeals decided to vacate the new hours of service rules that became effective January 4, 2004. The Court of Appeals' decision remands the rule to the Federal Motor Carrier Safety Administration for further action consistent with this opinion.
The CVSA Headquarters is working on getting answers to questions that arise from Members and Associate Members. The specific information and answers will be shared as soon as possible.
Until further notice, the current hours-of-service regulations will remain in effect.
For the complete opinion, click here. Also, for the latest statement from FMCSA, click here.
If you have questions or comments, please send them by e-mail to cvsahq@cvsa.org.
2004
Supreme Court Says Environmental Study of Mexican Trucks Not Needed
On Monday, June 7, the Supreme Court ruled that an environmental study on the effect of opening the United States Southern border to Mexican trucks is not necessary. This decision removes an important obstacle to opening the border and allows the Bush Administration to begin the process of fully implementing cross-border commercial vehicle traffic for both the United States and Mexico.
The exact date for opening the border is yet to be determined. Both the U.S. Department of Transportation and the Federal Motor Carrier Administration are reviewing the Court's decision. There will be at least a 30 day waiting period before any implementation steps can be taken.
Prior to this court challenge, the Department of Transportation had taken steps to comply with the border truck safety standards and enforcement procedures set by the Congress in 2001.
2004
Truck and Bus Safety Inspectors to Compete in Championship Event
During the week of August 16-22, 2004 more than 50 highly-trained commercial motor vehicle safety inspectors from Canada, the U.S. and Mexico will gather in Salt Lake City, Utah to participate in the 12th annual North American Inspectors Championship. The inspectors will have the honor of representing their state or province.
Throughout the week, the inspectors will test their abilities on how to determine whether truck and bus drivers and their vehicles meet minimum highway safety requirements. While those who make the highest marks will receive achievement awards, every inspector will be a winner who gains knowledge by attending classes on the latest transportation technology, North American Standard Inspection Procedures, North American Standard Out-of-Service Criteria and regulations concerning hours of service, hazardous materials or transportation of dangerous goods and North American cargo securement requirements. The Championship event also provides an opportunity for the inspectors to share ideas, techniques and experiences.
The competing inspectors are among the nearly 10,000 safety inspectors who play an important role in promoting highway safety throughout North America. Their continuing goal is to reduce the number of fatalities and injuries resulting from crashes that involve commercial vehicles. While most of the inspections are conducted at highway inspection stations or weigh scales, there is a growing use of mobile vehicle inspection stations that are helping to improve highway safety.
This event, which is funded by the Federal Motor Carrier Safety Administration, is managed and coordinated by the Commercial Vehicle Safety Alliance and its team of international, inter-agency and private industry members who provide the inspector contestants with a memorable and rewarding experience.
The North American Inspectors Championship event will take place at the Salt Palace Convention Center where the American Trucking Associations will be conducting their annual National Trucking Driving Championship. Members of the public are invited to observe the activities at both events.
2004
FMCSA Hazmat Guidebook Now Available to States
The FMCSA State Hazardous Materials Program Model Guidebook is now available on the FMCSA website: http://www.fmcsa.dot.gov/safetyprogs/hm.htm.
The Guidebook was derived from the State Hazardous Materials Compliance Effectiveness Study, which was a review of state hazmat programs to identify outstanding, unique, and/or notable initiatives in individual state programs.
The Guidebook uses examples from other states' experiences to provide various fundamental and enhanced program elements of a state hazmat program. The Guidebook and the Effectiveness Study also provide the states with an opportunity to share ideas that may be used as a model in their own programs. If you have questions about the Guidebook or Effectiveness Study, please contact Michael Johnsen at michael.johnsen@fmcsa.dot.gov.
2004
Canada and United States Investing in Projects to Relieve Border Congestion
The Canadian governments have invested C$287 million (about $218 in U.S. dollars) for Canadian/US Border projects that are intended to ease traffic congestions and increase the flow of trade and tourism in both directions.
This funding, which is part of the total C646 million ($491 million in U.S. dollars) allocated by Canada and the United States, is intended for the Southern Ontario border crossings. This includes a special lane for pre-cleared commercial drivers at the Queenston-Lewiston Bridge at Queenston, Ontario and a dedicated lane on Highway 405 for pre-cleared drivers traveling to the bridge.
This funding also will include improving the Queen Elizabeth Way, which is the principle trade corridor to four major Canada-U.S. border crossings and improving the access to the Blue Water Bridge at Point Edward, Ontario, which is Canada's second busiest truck border crossing.
2004
New Information on Utility Industry Safety Made Available to CVSA
An analysis of recent crash, injury and fatality data provided to CVSA by FMCSA clearly shows, contrary to the claims of the utility industry, its safety record is no better than the rest of the trucking industry, which is subject to the hours-of-service regulations. In fact, utility vehicle and driver North American Standard Out-of-Service rates are higher and getting worse compared to the rest of the industry over the past three years.
We are continuing to work on a number of other important motor carrier safety issues that will be on the agenda for an expected upcoming House-Senate Conference on the Highway Reauthorization bill. These efforts, with respect to the Conference, will still include an attempt to change or modify the total hours-of-service exemption for utility industry drivers. The analysis of this new utility industry data should prove useful. We also are attempting to gather similar information from some of the states. We will keep you updated.
2004
Clarifying the Federal Definition of "Conviction"
The Federal Motor Carrier Safety Administration recently issued an Information Memorandum to address a state's responsibility for taking appropriate action when notified that a driver is subject to an out-of-state "failure to appear" or a "failure to pay."
The Memorandum clarifies the federal definition of "conviction" under 49 CFR 383.5 and says, that while some states are aware of the federal definition and are taking the appropriate actions, others may need to review their current practices to make sure they are in compliance.
For a copy of the Memorandum, click here. Also, if you have questions regarding the definition, please feel free to call CVSA Headquarters at 202-775-1623.
2004
TSA Delays Implementation of USA Patriot Act
The Transportation Security Administration has issued an amendment delaying implementation of the USA Patriot Act requirement for security threat assessments on individuals applying for, renewing, or transferring a hazardous materials endorsement (HME) on a Commercial Drivers License. This action was in response to the Interim Final Rule published on May 5, 2003. In the amendment, TSA has added a definition for "revocation" and moved (to April 1, 2004) the date on which fingerprint-based criminal history record checks are to begin. In addition, the amendment states that a Notice of Proposed Rulemaking will be issued shortly to address the criminal history background check, as well as the entire security threat assessment process for HME applicants.
By April 1, 2004, states must be collecting biographical and criminal history information and submitting fingerprints to TSA. The fingerprint collection must be accomplished in a manner consistent with FBI procedures. States not able to meet this deadline must request an extension from TSA. Such request must include a plan of action. TSA will not grant any extensions beyond December 1, 2004. Prior to December 2004, TSA will be conducting name-based background checks of Federal and international databases relating to terrorist activity, checks for warrants and crimes, checks of an individual's citizenship status, and checks using the Interstate Identification Index.
For further information, and to see the amendment, go to the TSA web site (http://www.tsa.gov/public) or the DOT docket management system web site (http://dms.dot.gov/search). The Docket number is TSA-2003-14610.
2004
New FMCSA Hours of Service FAQ's
http://www.fmcsa.dot.gov/Home_Files/hos/hos_faqs.asp
Detailed information about the rule can be found at www.fmcsa.dot.gov.
2004
Keeping Up to Date on Latest Hazmat Shipping Papers
This update is to remind you of changes that now affect the basic descriptions of hazardous materials regarding packaging and shipping instructions.
At present, under the International Civil Aviation Organization (ICAO) and the International Maritime Dangerous Goods (IMDG) regulations, we have two possible valid orders for shipping descriptions for hazardous materials:
- The "traditional" order is still valid (proper shipping name, class or division, ID number and packing group, where applicable). So, for gasoline the sequence "Gasoline, 3, UN 1203, II" is valid
- Under the revised regulations, the ID number may optionally come first. The sequence: "UN 1203, Gasoline 3, II," also is valid. See the revised CFR section 172.202(b). Also, the word "Class" or "Division," may appear before the hazard class or division number; so the correct description could read "UN 1203, Gasoline, Class 3, II." Shippers and carriers have begun using the alternative sequence to facilitate international commerce
- Additional shipping paper requirements also have been introduced in HM-215E with a delayed compliance date of October 1, 2004 for most changes. To obtain a copy of the HM.215E Final Rule, go to http://hazmat.dot.gov/
As you may know, the U.S. Hazardous Materials Regulations (HMR) reflect various international regulations in most respects. And every two years, the United Nations Committee of Experts on the Transport of Dangerous Goods updates its Recommendations (so-called UN Orange Book). Other international regulations, particularly the ICAO Technical Instructions and the IMDG Code usually reflect those changes almost immediately. Also, using the ICAO Technical Instructions and the IMDG Code for the highway portion of air and water Hazardous Materials shipments is allowed and recognized in 49 CFR 171.11 and 171.12. The United States publishes most of its international harmonization changes under the HM-215 Docket series.
For more information, please contact Paul Bomgardner at paulb@cvsa.org or by telephone at 202-775-1623.
2004
CVSA Urges Congress to Reject the Public Utilities Industry Request for Total Exemption from Hours-of-Service Regulations
The public utilities industry is continuing to present arguments to the House Transportation and Infrastructure Committee in efforts to obtain a total exemption from the hours-of-service regulations in the upcoming Reauthorization bill.
CVSA finds the industry's information on the need for the exemption to be inaccurate and has written to Congressman Don Young, the Committee's Chairman, and to Congressman James Oberstar, the Ranking Member, to explain why the exemption should not be granted. To view the letter, click here. If you have questions regarding the requested exemption, please feel free to call CVSA headquarters at 202-775-1623.
We should point out that the total exemption for utility service vehicle drivers is now in effect since it is in a provision in the FY 2004 Appropriations bill that passed the Senate yesterday and is on the way to the President for his signature. However, this exemption expires on September 30, 2004, the end of the fiscal year. Therefore, our efforts are now directed to the House Transportation and Infrastructure Committee to keep it out of the Reauthorization bill.
In a separate Legislative Update coming shortly, we will review the DOT FY 2004 Appropriations bill and its provisions for motor carrier safety funding in more detail.