Big-Time Carriers Urge FMCSA to Keep HOS Rules

Transportation Topics, published by the American Trucking Associations, has reported that several major fleets, including UPS Freight (fka Overnight), Con-Way Truckload, and Schneider National, have urged the FMCSA to retain the 11 hour driving and 34-hour restart portions of the revised Hours of Service rules, which were originally put into effect in 2005. The Carriers presented statistics showing that their accident and injury rates have declined since the HOS rules were revised, presumably implying that the revised rules have not had a negative impact on safety.

Of course, the FMCSA is the agency that developed the new rules and is responsible for implementing them, so there is somewhat of a preaching-to-the-converted aspect to the carriers' plea.

Public comment on the revised rules has been extended until March 17. Groups including Public Citizen, the Teamsters, and Advocates for Highway and Auto Safety oppose the rule, which effectively increases the workday for drivers (to 11 hours) and decreases the minimum amount of time a driver must stop driving before restarting the work week (34 hours). These groups believe that this would increase driver fatigue and increase accident rates. The statistics cited by UPS, Con-Way, Schneider National, et al., dispute this.

Port of Long Beach Approves Clean Trucks Program

On February 19, 2008, the Long Beach Board of Harbor Commissioners approved a Clean Trucks Program for the Port of Long Beach. Details are posted on their web site.

The Board also approved $2 billion subsidy program to finance the purchase or lease of "clean trucks" according to their web site. The Ports of Los Angeles and Oakland are also implementing clean truck programs aimed at reducing emissions from drayage trucks.

I will be reviewing the implementation documents from the Port of Long Beach program, and will provide an analysis in my next post.

Public -Private Highway Partnerships and Trucking

The United States Government Accountability Office (GAO) released a report that was on balance critical of public-private highway partnerships, as reported on the Truckline website. Truckline is a website operated by the American Trucking Associations.

The report, which is 96 pages long, was prepared by the GAO at the request of Congress in response to the increasing pressure on Federal and State governments to partner with private entities to fund highway construction and maintenance.

The report concluded that, while their are advantages to public-private partnerships, such as the ability to build and maintain roads without additional public funding, there are serious disadvantages as well. These disadvantages run the risk of working against the public interest, including the interests of the trucking industry.

The GAO points out that there is no "free" money in public-private partnerships, and that the potential problems with these partnerships include tolls that would increase at a rate higher then they would on a public road (which may have no toll at all); that the profit motive of a private entity that would build and maintain a highway would result in tolls that exceed the costs of the facility; and the concern that a private entity that controlled too many highways in a given area could exert "market power" (in other words, could charge whatever they wanted because the motoring public would have no real alternative) in setting tolls. The GAO recommended that the Secretary of Transportation "develop objective criteria for identifying national public interests in highway public-private partnerships." I think that means that the GAO wants the government to play its roll in protecting the public interest on our Nation's highways.

We are living in a time of decreased faith in government. It is tempting to conclude that talk of "public private partnerships," whether they be in the military, public safety, highway construction, or education, is more about benefiting private business than the public at large. This GAO report calls out some of the potential risks and pitfalls of such an arrangement. Our highways are for public benefit, and that benefit should be protected by the government. Let us hope that government's faith in the public has not decreased as well.

HOS Ruling, Part 2

Earlier I wrote that I was looking into the D.C. Circuit Court of Appeals rejection of Public Citizen, et al's challenge to the 34 hour restart and 11 hour day portions of the HOS rules. Try as I might, I couldn't get a copy of the court's ruling from their web site. Most news accounts said little more than what I've already said, but J.J. Keller has a little blurb on the ruling.

What If You're Turned Down for your TWIC

The Transportation Security Agency (TSA) is rolling out its Transportation Worker Identification Credential (or TWIC) program at ports throughout the United States. This program was implemented with the intent of increasing security at the ports. This is presumably accomplished through a background check designed to weed out potential security threats.

Those who need a TWIC include merchant mariners, port facility employees, longshoremen, truck drivers, and others who need unescorted access to a MTSA regulated maritime facility or vessel. The program is being rolled out piecemeal, and should be completed by September 2008. In California, TWIC was deployed at the Port of Oakland in November 2007 and Los Angeles/Long Beach in December 2007. The program is set to roll out in San Diego and Richmond, California in the first quarter of 2008, in Port Hueneme, San Francisco, and Sacramento in the second quarter of 2008, and in Eureka and Stockton in the third quarter of 2008.

You don't have to be a U.S. citizen to apply for a TWIC. Once you file the application, TSA reviews the application and performs a background check including review of your criminal record, your immigration status, and terrorist watch list. They then issue an Initial Determination of Threat Assessment (IDTA) where your application is either approved or denied. If it is approved, your credential will be mailed to you. If it is denied, then you can either apply for a waiver of the assessment, or appeal the ruling.

If you think the IDTA was incorrect, you can appeal it. You have 60 days from the date of the IDTA to request an appeal. You can also request that TSA provide you with the non-classified materials that they based the IDTA on. If you do this, then you will have an additional 60 days from the date TSA provides you with the documents. This basically doubles the amount of time you have to request an appeal, since you can send the request for documentation up to 60 days after the date of the IDTA, and then send the request for an appeal within 60 days from TSA's response to your request for materials.

TSA then has another 60 days to notify you of their decision on the appeal.

If you think that you should be entitled to a TWIC because you no longer pose a security threat (e.g., because the reasons the TSA denied your application occurred more than 7 years ago) you can request a waiver. You can request a waiver for any disqualifying offense except these:

• Espionage
• Sedition
• Treason
• A federal crime of Terrorism, or comparable state law

If the TSA denies your waiver, you may seek review of the waiver denial by an Administrative Law Judge.

If you are denied for a TWIC, don't assume that it is the end of the road. This process is brand new, and mistakes get made.

You don't need an attorney to appeal or request a waiver, but you may not need to necessarily go down that path. You may be able to get something cleared up with a simple phone call. I have helped truck drivers who have been turned down for a TWIC by calling the TSA and explaining the situation. The most important thing to do is address the issue as soon as possible. If you do not request a waiver or appeal within 60 of the IDTA, then the IDTA becomes final, and you cannot get a TWIC card.

If you have been turned down for a TWIC and are not sure what to do next, call me at (510) 500-4013 or e-mail me.