Cracking the code: New law improves access to employee records

In Washington parlance it's called "drilling down," a routine practiced by lawyers and consultants who burrow deep into complex laws to understand how various sections and sub-sections are going to affect their clients. In the case of the Transportation Equity Act for the 21st Century, or TEA-21, the arduous analysis process has already begun, revealing some startling changes for the trucking industry.The

In Washington parlance it's called "drilling down," a routine practiced by lawyers and consultants who burrow deep into complex laws to understand how various sections and sub-sections are going to affect their clients. In the case of the Transportation Equity Act for the 21st Century, or TEA-21, the arduous analysis process has already begun, revealing some startling changes for the trucking industry.

The most important section, and the one generating the most attention, concerns how drivers are hired and fired. In the past, drivers could sue carriers that gave other carriers their safety records - especially if they contained derogatory information about a driver's performance. Under the new law, carriers cannot be sued for handing over a driver's safety performance history, provided they have appropriate documentation. "If you do it right, you will have some protection from liability," says Garen Dodge, an attorney at Washington, D.C.-based Keller & Heckman, LLP, a law firm that represents carriers.

Dodge notes that the law - which becomes effective January 1, 1999 - applies only to safety-related issues, and actually is catching up to about 30 states that already have similar laws on the books. "TEA-21 provides a federal floor for carriers," he adds.

The new law also states that carriers do not need written authorization to get a driver's motor vehicle record from a third party. This will help carriers hire drivers faster, perhaps even beginning the process over the phone, and without a lot of paperwork. "We're elated about these changes," says Wayne Cederhom, senior vice president for administration at C.R. England in Salt Lake City. "This will make the process a lot less cumbersome." He notes that the carriers that actually get to drivers first are often the ones that sign them on.

The new law doesn't take care of hiring concerns, however. The Fair Credit Reporting Act (FCRA), designed to protect consumer privacy, is still giving carriers heartburn during their quest to hire drivers quickly. The FCRA, which was passed last October, requires that drivers and other consumers must give written permission before anyone else can see their consumer and financial records. The act also gives consumers the right to see their reports to make sure they're accurate.

"While TEA-21 says that carriers do not need written authorization to get motor vehicle driver records, it doesn't address other driver records," says Dave Berry, labor counsel for the American Trucking Assns. "It's a limited fix of the FCRA. We got what we could."

These issues are overshadowing the other driver issues contained in TEA-21, which also have far-reaching consequences. The first is a provision that directs the Secretary of Transportation to establish a nationwide toll-free telephone system to be used by commercial drivers and others "to report potential violations of Federal Motor Carrier Safety Regulations." DOT will monitor the calls, cast out those that are obviously frivolous, and use the information to set priorities for safety audits and other enforcement activities.

It's unclear whether this system will become a powerful tool in helping to identify legitimate safety problems or simply become a 'gripe phone' for individuals with an ax to grind against a specific carrier. Callers' identities will be kept confidential.

The new law also requires DOT to review its current testing system for commercial driver's licenses, including consideration of a graduated licensing system.

Also in the offing is a pilot program in cooperation with state motor vehicle agencies to improve the current system for exchanging driver performance and safety records. The test will determine whether records related to fines, penalties, and failures should be included as part of a federal information system. If successful, this test program could usher in a new era of information sharing among states, the federal government, and carriers.

Congress responded to carriers and drivers when they asked for help with truck-stop shortages. TEA-21 requires DOT to conduct a study to determine the location and number of commercial truck stops, travel plazas, and public rest areas that could be used by motor carriers to comply with federal hours-of-service rules. The nationwide inventory will be used to address the issue of rest-area shortages, and may also play a role in DOT's future efforts to refine its hours-of-service regulations.

One other provision is worth noting: Every CDL issued after January 1, 2001, will include "unique identifiers" to minimize fraud and duplication, preventing unsafe drivers from using the ever-growing practice of "true identity" fraud (taking on another person's identity) to obtain employment. The law mentions the possible use of a "biometric indicator." Today, this usually means a fingerprint. But if technology proceeds as expected by 2001, it could mean a person's DNA code or a "map" of eyeball vein configurations - systems both currently used by the military and companies requiring high security.

Biodiesel boost The Senate last month approved a measure designed to get government buses and trucks to use biodiesel, diesel fuel blended with a soy additive. The measure, which was attached to an agricultural spending bill, still must win approval by the House.

How do you rate? One of FHWA's prime enforcement mechanisms - the safety fitness rating system - may be getting a facelift. The agency wants to base the rating on a carrier's actual safety performance. So it is seeking comments on what issues should be considered in constructing such a system in the future. Comments must be received on or before September 18, 1998. In a related development, FHWA is looking at revising the criteria it uses to place vehicles and drivers out of service.

DOT crackdown As part of its ongoing crackdown on violators of motor carrier regulations, the Dept. of Transportation has charged four South Carolinians and the company they worked for conspired to make false statements with the agency and filed false claims with insurance companies. To date, DOT's investigations have led to 27 indictments, 7 convictions, resulting in 67 months of imprisonment, 30 years of probation, and $170,000 in fines. Some 43 investigations remain under way.

Beam me up FCC plans to auction licenses by the end of the year that will let trucking companies use the air waves to track the location of vehicles in their fleet. The FCC said it will sell 528 licenses for a wireless technology known as the "location and monitoring service," or LMS.

Haz-mat routes DOT has released a current listing of all designated and restricted state routes for transporting hazardous materials that have been reported to it.

In response to a somewhat underwhelming response by the trucking industry, the Federal Highway Administration (FHWA) has sweetened the pilot program that exempts qualified light- and medium-duty carriers from certain federal safety rules. Not only does the revised program exempt the carriers from more rules, it also eases the eligibility criteria and gives fleets until Jan. 30, 1999 to get their names in the hat.

The demonstration project is aimed at interstate fleets that operate commercial motor vehicles with gross vehicle weight ratings (GVWR) between 10,001 and 26,000 lb. and that have "exemplary safety records."

To help make it more appealing, FHWA opened the door to any motor carrier with an accident rate of 0.5 or fewer accidents per million miles of travel over the past three years. Carriers with less than one million miles would be considered, providing they had only one accident during the same period of time.

Motor carriers seeking to gain exemptions would still have to develop written safety control plans. The plans must indicate how fleets would ensure their current level of safety under the exemptions. Carriers would also have to generate and monitor safety data for the agency.

In exchange, motor carriers would be exempt from the following regulations:

Driver qualifications. Under the original program, drivers were not required to furnish carriers with an annual list of motor vehicle violations, to complete a road test, or provide an application. Motor carriers would not have to include this information in the driver qualification file.

FHWA is now also proposing to eliminate the English language requirement for drivers, as well as the requirement that carriers document investigations of driver employment histories,perform an annual review of driver records and a biannual medical certification. In addition to driver qualification exemptions, motor carriers will be relieved of the unauthorized passenger transportation prohibition.

Hours-of-service. FHWA will extend the record-keeping exemption from 10 hours to 12 hours.

Inspections. In the original notice, FHWA relieved participating motor carriers from performing annual vehicle inspections. It therefore made sense to exempt fleets from the annual inspector qualification requirements, as well as the brake inspector qualifications.

Although there are more trucks traveling more miles, the accident rate involving commercial motor carriers is falling, according to Jack Van Steenburg, president of the Commercial Vehicle Safety Alliance. "Clearly, there has been a steady and significant improvement in commercial vehicle highway safety," he said in comments last month before the National Press Club.

The rate for crashes involving fatalities fell from 3.9 to 2.4 in 1996, the last year for which figures are available. Equally impressive is the out-of-service rate, which was as high as 39% in 1986 and today stands at 20%.

Much of the credit goes to the roadside safety inspections spearheaded by Van Steenburg's group. Last year, more than 2.1-million truck and bus inspections were conducted - the highest number since the Motor Carrier Safety Assistance Program (MCSAP) began in 1984. By way of comparison, 159,000 inspections were conducted that first year.

FLEET OWNER has moved to new headquarters in Connecticut. For mail to reach us, you must include the Post Office box. The address is 11 River Bend Drive South, P.O. Box 4211, Stamford, Conn. 06907-0211. Our new telephone number is 203-358-9900; the toll-free number is still 800-776-1246.

New federal truck identification program aimed at boosting safety

Truck carriers will have two years to erase their old Interstate Commerce Commission (ICC) numbers on truck doors and replace them with Dept. of Transportation-issued numbers that will bring uniformity to all commercial vehicles used in interstate commerce, according to a DOT proposal.

The proposal also calls for all trucks operating in the United States - including Mexican and Canadian carriers - to have the legal name of the owner or operator on the vehicle in addition to its city and state of record. Carriers have five years to comply with these additional requirements.

The main reason for the change is safety. "FHWA believes it is important that commercial vehicles be properly marked so that the public has an effective means to identify motor carriers operating in an unsafe manner. Such markings will assist state officials conducting roadside inspections and accident investigations in attributing important safety data to the correct motor carrier," the proposal stated.

This proposal conforms to marking requirements that DOT mandated in 1992, but which didn't apply to vehicles that had ICC numbers. The Federal Highway Administration notes that because of new information collection systems, such as SafeStat and bypass weigh station programs, a standardized numbering plan is necessary.

According to the proposal, "one of the ultimate goals of the MCMIS (Motor Carrier Management Information System) is to receive adequate and reliable safety performance data on each individual carrier to support overall trends and evaluate program effectiveness." This unified numbering system will support that goal, the FHWA said.

It also said that the numbering system would eliminate the problem of differentiating among carriers with similar names. "The identity of the motor carrier cannot always be determined from the data recorded on the roadside inspection report. For example, many motor carriers in the United States and Canada have the same or similar names. Likewise, the use of multiple names and addresses by motor carriers makes it difficult for the FHWA to match roadside inspection data with a specific motor carrier in the MCMIS.

According to FHWA records for calendar year 1996, 212,712 of the 1,479,259 roadside inspections could not be matched to the correct motor carrier because of non-uniform numbering.

A federal district court in Wilmington, Del., last month ruled that a truck transmission design of Rockwell International Corp. and Meritor Automotive infringes on a patent held by Eaton Corp. The jury decision included a $1.25-million award. Since the jury found the infringement to be willful, it is possible that the damages could be increased up to three times the award.

Eaton claimed that the Engine Synchro Shift (ESS) transmission infringed on a patent Eaton holds on the development of a specific clutchless shifting system that allows shifting of heavy-duty truck transmissions without the use of the vehicle's master clutch. Meritor's automotive components business was a part of Rockwell at the time Eaton filed the lawsuit last year.

Eaton has asked the court to block Meritor from manufacturing or selling the ESS transmission. At the time FLEET OWNER went to press, the court had yet to reach a decision on the injunction.

Meritor said it would appeal the verdict. In a prepared statement, the company emphasized that the court must still evaluate other defenses that would render the patent unenforceable.

Due to a production error, a photo of the 1999 GMC Sierra pickup was not included in July's New Model coverage for light-duty trucks. All-new for 1999, the full-size pickup will also be offered by Chevrolet as the Silverado. Both versions will be offered in 1/2-ton and 3/4-ton models.

At this June's summer meeting of The Maintenance Council in Milwaukee, fleets were updated on key federal regulatory activities. Larry Strawhorn, vp-engineering for the American Trucking Assns., filled attendees in on four "hot" issues.

For starters, according to Strawhorn, when the Office of Motor Carriers (OMC) references Federal Motor Carrier Safety Regulations (FMCSR) with Federal Motor Vehicle Safety Standards (FMVSS), motor carriers must now comply on four points:

1. Have "knowledge of" the FMVSS - the safety rules manufacturers must meet on new vehicles;

2. Ensure that their sources of vehicles and components can certify they meet the FMVSS;

3. Use "knowledgeable and capable" maintenance personnel, and

4. Use maintenance personnel "who recognize there are FMVSS - and know whether their repairs will restore the vehicle to its 'previous' condition."

In the braking arena, Strawhorn reported that FMCSR 393.55 - which became effective June 3 - requires fleets "to retain and maintain" antilock-braking systems (ABS) on vehicles so equipped per FMVSS 121. This rule has no retrofit requirement, and he emphasized that carriers need not maintain systems on vehicles built before ABS was mandated on new equipment.

Rules on maintaining underride guards are also in the offing. OMC intends for carriers to maintain guards meeting FMVSS 223 and 224. The underride proposal would make carriers directly responsible for ensuring that guards retain their original dimensions. However, OMC has sidestepped the strength issue by proposing that "in-service" guards retain the certification labels that manufacturers must affix.

"Their reasoning that a guard with the proper dimensions and certification has the correct strength is sensible," Strawhorn said. "However, it promises to change underride-guard maintenance practices." He noted out that since the certification labels must be on the horizontal members of the guards - which normally sustain damage - keeping the labels on and replacing damaged horizontal members will be a problem if the proposal is enacted.

Another FHWA docket, MC-94-1, examines retrofitting conspicuity materials to trailers. It is in keeping with the new highway act, which requires completion of rulemaking on this matter within one year.

Under this proposal, carriers will have two years to retrofit conspicuity material to all heavy-truck trailers built before December 1, 1993. Comments on the proposal are due September 17. Strawhorn also noted that Canada is taking similar action. The national and some provincial governments may require conspicuity retrofitting of trailers built before December 1, 1993 - and that it be done before January 1, 2002.

Other activities that Strawhorn suggesting keeping an eye on include revision of the federal annual inspection; changes in recordkeeping rules to embrace new technology; possible mandate of convex crossview mirrors on new vehicles; and rules requiring brake linings to be friction-rated and so marked. - David Cullen

Dana's Spicer Heavy Axle & Brake Div. and Haldex Brake Products Corp. signed a letter of intent to jointly develop an air-operated disc brake for heavy commercial vehicles. The disc brake assemblies will be developed for steering, drive, and trailer axles.

For components sold in North America, Haldex will work exclusively with Spicer and market the air disc brakes under the Spicer name. Haldex will market its proprietary air-brake assemblies under the Haldex brand name in other parts of the world. "We look forward to the opportunity of combining the respective strengths of our two organizations to more rapidly design and market advanced air disc brakes suitable for the North American market," said Claes Warnander, CEO of the Haldex Group.

Dana's Spicer Heavy Axles & Brake Div. was formerly Eaton's Axle & Brake Operations. For the past 10 years, Haldex and Eaton have been partners in marketing the Haldex-made, Eaton-brand automatic brake adjuster for drum brakes to the U.S. market.

Shots of both new and historic Kenworth trucks accompany a detailed account of the OEM titled

"Kenworth: The First 75 Years." Written by Doug Siefkes, the book chronicles the history of the company from the "Gersix," which was first built in an auto repair shop, to the T2000, KW's latest model, which was $100 million and three years in the making.

Michelin North America Inc. conducted a "coast down" event last month to demonstrate the real-world impact its low-rolling-resistance tires can have on fuel economy. The coast-down was staged outside Toronto over a flat, closed-off stretch of highway.

Specifically, the demo was set up to compare the rolling resistance of Michelin and a competitive brand. According to Randy Clark, Michelin's director of marketing, the intent was to show the fuel-economy potential of low-roll-resistance tires compared to "average-rolling-resistance" tires.

Two runs were made with Michelin tires on one truck and a competitive brand on the other. To keep the procedure unbiased, all tires were to be switched between the trucks and the two runs repeated. However, due to some seized trailer lug nuts, the second set of tests consisted of two "mixed" runs.

In every run, the trucks traveled with cruise control set at 40 mph for about one mile. As the front of each vehicle passed a designated point, the driver depressed the clutch and let the truck coast to a stop. The trucks in each run set out approximately 30 seconds apart to prevent air flow from affecting the coasting distances. Two identical Sterling tractors coupled to 53-ft. Stoughton trailers, each with a total weight of 79,200 lb., served as the test vehicles.

In both tests, the Michelins came out ahead by as much as 350 ft. As for the mixed runs, Michelin's results showed that the trucks fitted with a majority of its tires also coasted farthest.

Summing up the event's significance, Michelin's Clark commented that "even with fuel prices dropping, fuel is still the number-one operating expense for most fleets. So a savings on fuel," he added, "has the largest impact on the bottom line."

The National Institute for Automotive Service Excellence (ASE) recently announced the availability of the first advanced-level test for technicians of medium- and heavy-duty tests: The Electronic Diesel Engine Diagnosis Specialist Test (L2).

The exam tests knowledge of mechanical and computer-controlled fuel systems, including diagnosis of general diesel engines, electronic diesel engine controls, diesel engine air induction and exhaust systems, diesel fuel systems, and specific fuel systems.

Registration deadline for the November 5, 1998 test is October 2. You can register online via ASE's Web site at www.asecert.org, or by calling ASE at 703-713-3800. There is a $25 nonrefundable registration fee per person and a $40.00 test fee. To register, you must be currently certified in the regular Medium/Heavy Truck Diesel Engines (T2) and Electrical/Electronic Systems (T6) test categories.

Beginning July 1, federal diesel fuel tax rules apply generally to kerosene as well. Fleet owners who on that date held more than 2,000 gallons of kerosene that they intended to add to highway fuel are liable for a one-time "floor stocks tax" of 24.4 cents per gallon. That tax must be paid by August 31, according to Internal Revenue Service Announcement 98-57.

That announcement also publicized a brief fuel tax holiday. Fuel taxes (other than the kerosene floor stocks tax) that would normally be payable in August and September are not due this year until October 5. Both changes result from the Taxpayer Relief Act of 1997.

More than 25,000 private carriers, operating more than 2.7-million units, are listed in the 1998-99 edition of the Private Fleet Directory, recently published by Transport Technical Services. Profiles include name, address, fleet type, as well as number of trucks, tractors, and trailers.

The directory is available in a single volume for $295, as well as individual state editions. All or any part of the database is available on disk or CD-ROM. For more details, contact TTS at 500 Lafayette Blvd., suite 230, Fredericksburg, Va. 22401; call them toll-free at 888-665-9887; or visit their Web site at www.ttstrucks.com.

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