Below you’ll find the language of the 10 recommendations, and I thought I’d also share here some statistics that the Owner-Operator Independent Drivers Association has put together relative to the potential total cost of treatment of drivers under the 35 BMI testing mandate proposed. These costs are estimated at a $180 million total annual cost to the industry. That’s the testing alone. Granted, it assumes an average $2,500-$3,000 figure for an in-lab sleep test, which sleep specialists note has fallen somewhat in recent years. (However, in public comment near the end of the meeting yesterday, former small fleet owner — and current school bus fleet owner — Donald Fowler, of Richmond, Mo., referenced an October sleep study he himself had that was billed, all told, at just shy of $2,000.)

Furthermore, in a member survey OOIDA conducted, 72 percent of operators said their medical policies would not cover sleep apnea expenses. An argument Spencer and others made today, too, demonstrated something of a safety net loss if a large number of experienced operators are in fact forced out of the industry by the regulation (the OOIDA stats estimate 12 percent of the 3.5 million or more CDL drivers have BMI above or equal to 35) and are replaced by a less-experienced group, naturally more prone to making on-highway mistakes.

That’s all of course not counting the time and miles lost to downtime during testing, which for some operators could be significant if their apnea problems turn out to be significant themselves — some operators concluded to have apnea would be disqualified until treated. See below for specifics.

Another interest part of the proceedings was the fact the final recommendations from the subcommittee on acceptable areas of treatment put the most confidence in continuous positive airway pressure (CPAP) machines, not least due to the ease of monitoring that is in place in current devices. This came in spite of dental practices in existence today that specialize in sleep medicine, as some of you I know are already well aware of. Midwest Dental Sleep Center’s Scott Craig, of Woodridge, Ill., characterized the exclusion of dental treatment of apnea in the recommendations as a mistake that is the result of the lack of a dental specialist on the FMCSA’s Medical Review Board. “Currently there are commercially available products to monitor compliance,” he said, showing me the Smart Retainer device by Scientific Compliance as an example.

The manufacturer inserts electronic temperature sensors into dental retainers in order to allow doctors to scan the device to retrieve information about use and other data.

MRB members effectively dismissed much of the literature on studies relating to dental appliances as non-objective, borderline “commercials,” one said.

MCSAC member and Texas-based Clark Freight Lines’ Danny Schnautz put in his objection to the exclusion of the devices. Schnautz could well see such devices’ potential attraction to drivers who might otherwise need to idle their trucks to ensure power to a CPAP machine and truck starting power overnight. “I think we might be shutting the door tighter than we should have,” he said, making reference to language in the MCSAC recommendations that state dental devices’ “long-term efficacy” cannot “be demonstrated currently, so these technologies are unapproved alternatives at this time.”

Full language of the recommendations as I best followed their drafting/revision follows. (Note: there may be further revision as yet before they are sent formally to FMCSA, though their intention as outlined here should largely remain. Italics represent committee annotations about intentions.)

RECOMMENDATION LANGUAGE:
Recommendation 1 — General

• Obstructive sleep apnea (OSA) diagnosis precludes unconditional certification.
• A driver with OSA diagnosis can be certified if:
  • The driver has untreated OSA with apnea-hypopnea index (AHI) < 20 (i.e., mild-to-moderate OSA) AND
  • The driver does not admit to experiencing sleepiness during the major wake period OR
  • OSA is being effectively treated.

A driver with an OSA diagnosis may be recertified annually, based on demonstrating compliance with therapy.

• Minimally acceptable compliance with PAP means at least 4 hours/day of use 70 percent of days.
  • § Drivers should be encouraged that more hours of PAP use is preferable.
  • § Optimal treatment efficacy occurs with 7 hours or more of daily use during sleep.

• The intent behind the AHI threshold is to prioritize those drivers with OSA that need immediate treatment.
  • Drivers with mild OSA (AHI levels as low as 5) may benefit from OSA treatment, and should be encouraged to explore treatment options.
  • Drivers with an AHI between 5 and 20 should be encouraged to seek treatment, if they have a history involving a fatigue-related crash or a DOT-defined single vehicle crash [footnote reference: crash involving a CMV that results in a fatality or injury treatable away from the scene or disabling damage requiring tow away], or if they report sleepiness while operating a motor vehicle.
• Why set the AHI threshold at 20?
  • Crash risk in the moderate-to-severe OSA range is statistically higher than for drivers with mild OSA.

From a practical perspective, setting the AHI limit at 15 or above makes it more difficult to get a patient under treatment to that AHI level. Although AHI of 15 is likely a safer threshold, there is not data to show this.

RECOMMENDATION 2 — Drivers with any of the following should be disqualified immediately or denied certification: 

• Report excessive sleepiness during the major wake period while driving, OR
• Experienced a crash associated with falling asleep, OR
• Have been found non-compliant in treatment per Recommendation 1.

RECOMMENDATION 3 — Drivers with any of the following may be granted conditional certification per Recommendation 4:

• Have AHI > 20 until compliant with PAP, OR
• Have undergone surgery and are pending post-op findings per Recommendations 10-12, OR
• Have a BMI > or equal to 35 kg/m² (pending sleep study).

Notes:

• BMI cutoff of 33 is supported by studies (MRB).
• BMI cutoff should be objectively related to crash risk (Conway).

RECOMMENDATION 4 — Conditional certification

• Driver with BMI > or equal to 35 kg/m² may be certified for 60 days pending sleep study and treatment (if diagnosed with OSA).
• Within 60 days, if a driver being treated with OSA is compliant with treatment (per Recommendations 8-12), the driver may receive additional 90 day conditional certification.
• After 90 days, if the driver is still compliant with treatment, the driver may be certified for no more than 1 year.  Future certification dependent on continued compliance.

Refer to Recommendation 1 for definition of minimal compliance. [Insert clinical evaluation educational footnote]

[CLINICAL EVALUATION EDUCATION FOOTNOTE]

• Medical examiners should screen all drivers for OSA.
• The driver is judged at-risk for OSA based on:
• The driver’s answers to a validated questionnaire (e.g., Berlin), OR *Some other validated screening tool.
• Symptoms:  loud snoring, witnessed apneas, sleepiness during major wake period.
• Risk factors may include the following. A single risk factor alone may not infer risk. Need to look at multiple factors.
• Factors contributing to high risk

1. Small or recessed jaw
2. Neck size > 17” male, 15.5” female (strongly correlated with obesity, which is associated with sleep apnea)

• Other factors

1. Age 42 and aove
2. BMI > 28 kg/m²
3. Small airway (Mallampati Scale score of Class 3 or 4)
4. Family history
5. Male or post-menopausal female
6. Experienced a single-vehicle crash

• Conditions associated with high risk:

1. Hypertension (treated or untreated)
2. Type 2 diabetes (treated or untreated)
3. Hypothyroidism (untreated)

RECOMMENDATION 5 — Method of diagnosis and severity

• Methods of diagnosis include in-laboratory polysomnography, at-home polysomnography OR a FDA-approved limited channel ambulatory testing device which ensures chain of custody.
• In-laboratory polysomnography, which is more comprehensive, should be considered when the clinician suspects a sleep disorder in addition to sleep apnea.
• Note that new technologies will likely emerge that will be able to screen for OSA.
• Driver should be tested while on usual chronic medications.

• Note that the joint medical committee did not consider AHI levels from unattended studies, but only in-lab sleep studies, which detect the arousal component of hypopneas (not just saturation).
• An in-home sleep study may underestimate AHI when compared to an in-lab sleep study.
• An AHI detected on an in-home sleep study may be less than an in-lab study because the in-home study likely does not consider total sleep time.
• Therefore, the medical examiner should use clinical judgment when interpreting results of an unattended sleep study.

• If the clinician believes the level of apnea is greater than the level reported by the in-home study, the clinician should consider recommending an in-laboratory sleep study.

RECOMMENDATION 6 — Treatment, PAP

• All individuals with OSA should be referred to a clinician with relevant expertise.
• PAP is the preferred OSA therapy.
• Adequate PAP pressure should be established through one of the following:
  • Titration study with polysomnography
  • Auto-titration system

A driver who has been disqualified may be conditionally certified (per Recommendation 4) if successfully treated for 1 week AND

• The driver can demonstrate at least minimal compliance (4 hrs/use 70% of nights) AND
• The driver does not report excessive sleepiness during major wake period.

RECOMMENDATION 7 — Treatment alternatives

There are limited data regarding compliance with and the long-term efficacy of dental appliances cannot be demonstrated currently, so these technologies are unapproved alternatives at this time.

Surgical treatment is acceptable (see Recommendations 10, 11 and 12).

RECOMMENDATION 8 — Bariatric surgery

After bariatric surgery, a driver may be certified if:

• Compliant with PAP, OR 6 months have passed since surgery (for weight loss), AND
• Cleared by treating physician, AND
• No reported excessive sleepiness during major wake period.
• After six months have passed since surgery, a repeat sleep study may be considered to evaluate for the presence of ongoing sleep apnea.

Annual recertification

• Maintain stable weight

If clinically indicated, repeat sleep study.

RECOMMENDATION 9 — Oropharyngeal surgery, facial bone surgery

After oropharyngeal or facial bone surgery, a driver may be certified if:

• 1 month has passed since surgery, AND
• Cleared by treating physician, AND
• No reported excessive sleepiness during major wake period.

After 1 month has passed since surgery, if the apnea appears to have resolved, a repeat sleep study should be considered to test for the presence of ongoing sleep apnea.

Annual recertification

• If clinically indicated, repeat sleep study.

RECOMMENDATION 10 — Tracheostomy

After tracheostomy, a driver may be certified if:

• 1 month has passed since surgery, AND
• Cleared by treating physician, AND
• No reported excessive sleepiness during major wake period.

After 1 month has passed since surgery, if the apnea appears to have resolved, a repeat sleep study should be considered to test for the presence of ongoing sleep apnea.

Annual recertification

• If clinically indicated, repeat sleep study.

After debate and consideration of more than 90 amendments, the 5-year, $260 billion bill was passed 29-24 and moved to the House floor. Debate could begin the week of Feb. 13. The Senate is considering similar legislation covering two years and $109 billion, and the two versions would have to be negotiated before becoming law.

Surviving the House committee bill was further tinkering with the 34-hour restart rule. If the provision makes it through to final legislation, the Federal Motor Carrier Safety Administration would have to do a field study of the restart rule by March 31, 2013. Depending on if the study supports the rule, the FMCSA may have to revisit the rulemaking to alter the rule. The agency’s rewrite of hours of service is scheduled to take effect in July 2013.

The bill includes several provisions of interest to the trucking industry. A clearinghouse for positive drug and alcohol tests by commercial drivers would be created. Also, directives to study crashworthiness standards for large trucks and standards to expand use of electronic logging devices would be established. The bond for brokers and freight forwarders would be increased to $100,000 from $10,000.

In addition, the bill would ensure that all federal user fees – including more than $8 billion in diesel tax the trucking industry pays annually – go to highway projects.

Another amendment stripped from the bill was a provision that would increase truck weight limits to 97,000 pounds from the current 80,000 pounds.

The last meeting of the sleep apnea subcommittee was leaning toward a screening standard including a body mass index measurement and/or certain neck size, including a stand-down order for those drivers required to be tested and/or treated.

Otherwise, today on the blog its Q&A time with Overdrive Equipment Editor John Baxter (pictured below), a man with vast technical knowledge of truck maintenance and systems. If you ever have a technical/maintenance question you want answered, send it my way and I’ll get it to John for an answer. Here’s his latest, responding to a note about the worth of injector-cleaning fuel additives.

Q: Should I bother with fuel additives that claim to clean the injectors?

A: The answer is that this is probably a good idea. The gasoline you buy for your car has additives in it to continuously clean the fuel injectors all modern cars use.

We spoke with Peter Jutras, senior accounts manager at Howes Lubricator, a Rhode Island company that’s been making fuel additives and selling them to the trucking industry since 1920. “Our Meaner Power Cleaner keeps carbon deposits and varnish off the injector tip,” he says. “Carbon and varnish can rob the injection system of optimum performance.” He explained that deposits can interfere with proper atomization, which, in turn, will mean deteriorated combustion. Diesel experts also talk of deposits as something that can interfere with the “spray pattern,” or the how evenly the fuel is distributed in the combustion air.

Jutras pointed out that in trucks fitted with a DPF, good injection system performance is even more critical than with older vehicles. Clean combustion matters more on these vehicles because of the way soot must be constantly burned off inside the DPF, and the fact that hard deposits can make the unit hard to clean.

He added that the product also contains a lubricity agent to make up for the fact that ULSD is “a drier fuel” than traditional diesel fuel with much more sulfur in it, referring to the fact that refining the fuel to remove sulfur also removes most of its natural lubricating ability. While diesel fuel suppliers add lubricity agents, adding more yourself could offer some assurance that your injectors will be properly lubricated, which will prevent scoring of close fitting parts.

The Howes website has a page that includes a return on investment calculator for their Meaner Power Cleaner. When I input a fuel cost of $3.70 per gallon, the calculator showed a cost of $9.56 per 200 treated fuel gallons for their product, and a potential savings of $27.44 in fuel cost. A one-quart bottle of their additive will treat 320 gallons of fuel.

Although the product can be used to clean injectors that have run for a long time, Jutras suggests continuous use because “once carbon coking develops on an injection nozzle, it can be really hard to get rid of,” he says. Normal savings, compared with not running an injector cleaner, could be in the range of 4.9 percent, he adds.

There are lots of reputable manufacturers of diesel fuel additives that help keep injectors clean. Their products are probably worth a close look-see. –John Baxter

Post technical/maintenance questions in the comments or send them to tdills [at] randallreilly.com.

Five texting and cell phone use violations will now contribute the highest (10 points) weighted severity to carriers’ numerical rankings in the Unsafe Driving Behavior Analysis and Safety Improvement Category (BASIC).

The violations include two each relating to operating a commercial motor vehicle while texting and operating a CMV while using a handheld mobile telephone. The fifth violation applies to motor carrier safety procedures, assigning a 10-point severity weighting to carriers’ “allowing or requiring driver to use a hand-held mobile telephone while operating a CMV.”

The SMS snapshot carriers will see this month will also provide more detailed breakouts of existing brake, wheel and coupling regulations, the agency said, which in part will help clarify the party responsible for violations in which intermodal equipment providers are involved. All told, the added detail turns six current Vehicle Maintenance violations into 22.

Those improvements are the results of a joint FMCSA and Commercial Vehicle Safety Alliance effort, the agency said, to increase data uniformity through improved processes and tools.

FMCSA is revising Appendix A of the SMS Methodology document to take these changes into account.

The three contenders for the 2011 Owner-Operator of the Year award are Kirby Killgore of O&S Trucking, Larry Severson of Dart Transit Co. and Bryan Smith of Art Pape Transfer.

The 2011 Owner-Operator of the Year will win a Cummins-powered Dodge Ram.

The contest is sponsored by Overdrive and the Truckload Carriers Association. The grand prizewinner will be announced at TCA’s annual convention March 4-7, at the Gaylord Palms in Kissimmee, Fla.

Also announced there will be the 2011 Company Driver of the Year, sponsored by Truckers News and TCA. The three contenders are John Moeller of Roehl Transport, James Coles of MacKinnon Transport, and Ronald Round of Pottle’s Transportation.

The six truckers competing for the honors were among other finalists featured in Overdrive or Truckers News during 2011. 

Kirby Killgore

“We are pleased to be able to honor these exemplary truckers in the pages of Overdrive and Truckers News,” said Jeff Mason, senior vice president of trucking for Randall-Reilly Business Media & Information Co., which publishes Overdrive and Truckers News. “And thanks to the generosity of our sponsors – Cummins and Dodge – each winner will receive a Cummins-powered Dodge pickup truck.”

Bryan Smith

To be eligible for the contests, driver applicants had to meet certain minimum criteria, such as having driven one million consecutive, accident-free miles. Selection of the top three in each category was based on safety record, efforts to enhance the industry’s image and contributions to their communities. For owner operators, judges also reviewed business plans and financial statements.

The 2012 competition is underway. Finalists are being profiled in both magazines this year. The top three in both categories will be named in late 2012 and the grand prizewinners will be recognized at TCA’s 2013 Annual Convention in Las Vegas.

— Staff Reports

SHORT HAULS

NEARLY $1.6 BILLION from the Federal Highway Administration will be available to states and territories to help cover the costs of repairing roads and bridges damaged by natural disasters. Vermont, hit by Hurricane Irene, will receive $125.6 million; North Dakota will receive $89.1 million for damage caused by spring 2011 runoff; and Iowa will receive $37.5 million to repair damage caused by Missouri River flooding.

FREIGHT INCREASED 0.3 percent in November from October, as measured by the American Trucking Associations’ seasonally adjusted For-Hire Truck Tonnage Index. For the year, tonnage was up 5.4 percent over the same period in 2010.

CLASS 8 TRUCK ORDERS for December were 46 percent higher than in November and 11 percent greater than a year earlier, says FTR Associates. Modest growth is expected in 2012.

DAIMLER TRUCKS North America will add a second shift and nearly double production at its Freightliner Truck Manufacturing Plant in Cleveland, N.C., this year. The company plans to hire about 1,100 workers to increase production. The increase in production capacity is designed to reduce a six-month order backlog for Cascadias.

Cross-border program lawsuits advance

A court has consolidated lawsuits opposing the U.S. cross-border program with Mexico. Meanwhile, a second Mexican carrier has gained operating authority under the program. 

The Teamsters union, Public Citizen and Sierra Club petitioned the U.S. Court of Appeals for the 9th Circuit Nov. 15. The court granted the Department of Justice’s request to transfer that case to the District of Columbia’s appellate court, where the Owner-Operator Independent Drivers Association had filed suit July 6, also seeking to block the program from proceeding.

On Jan. 6, the court ordered oral arguments in both cases are to be on the same day before the same panel of judges, but no date had been set. The Federal Motor Carrier Safety Administration’s brief was due Feb. 1 and the petitioners’ reply brief Feb. 22.

The agency had granted provisional operating authority to Moises Alvarez Perez of Tijuana, Baja California Dec. 28. The carrier, DBA Distribuidora Marina El Pescador, lists one truck and one driver, according to a Jan. 9 FMCSA report.

Transportes Olympic, which has one truck and two drivers, was the first program participant to deliver beyond the border zone Oct. 21. The carrier, based in Apodaca, Nuevo León, is the only applicant to receive permanent operating authority.

Distribuidora Marina, Transportes Olympic and Grupo Behr of Apodaca, Nuevo León, have cleared Pre-Authority Screening Audits, which the agency conducts on applicants to verify program compliance.

FMCSA had intended to grant Grupo Behr authority, but announced Oct. 14 it would extend review to investigate questions raised by groups on its PASA results.

The agency reported Jan. 9 it had conducted compliance reviews in Mexico on Distribuidora Marina and Transportes Olympic in February 2009 under the previous cross-border program.

PASA results are pending for three additional program applicants.

On Oct. 20, the agency’s Office of Inspector General began its program audit for Congress, in accordance with 2007 law. It will decide if sufficient data exists to determine if the program reduces trucking safety and whether compliance can be assured.

Turnpike rates rise

Turnpike toll rates in Ohio, Pennsylvania and New Jersey increased Jan. 1.

Under the new rates, the cost to travel the entire 241-mile Ohio Turnpike from Indiana to Pennsylvania for five-axle vehicles increases to $44 from $40 for cash customers. The E-ZPass rate for the end-to-end turnpike rises to $35 from $32.

Higher truck rates in New Jersey, Ohio and Pennsylvania were among toll increases implemented in several locations the first of the year.

Rates for travel between one or two interchanges may not change, the Ohio Turnpike Commission said. The new rates were approved by the Ohio Turnpike Commission in March 2009. View 2012 rates at ohioturnpike.org.

Cash tolls on the Pennsylvania Turnpike rose 10 percent on Jan. 1, while E-ZPass rates stayed the same.

For a trucker driving from the Ohio border to the Delaware River Bridge, the five-axle cash rate increased to $185.50 from $168.60. Rates are unchanged for E-ZPass customers, who account for about two-thirds of Turnpike travelers, the Pennsylvania Turnpike Commission said.

The increase is applied to all vehicle classes on all Turnpike sections except the Southern Beltway (Turnpike 576) in Allegheny and Washington counties, where rates are unchanged, the PTC said. For details, go to paturnpike.com.

In New Jersey, cash five-axle rates for the length of the New Jersey Turnpike jumped more than 50 percent to $49.75 from $32.50. E-ZPass tolls increased to $45.45 from $29.70. Garden State Parkway tolls rose 50 percent.

This is the second phase of a two-phase toll increase approved in 2008. Visit www.state.nj.us/turnpike for details.

— Staff reports

— Jill Dunn

SHORT HAULS

A FORMER FEDERAL Motor Carrier Safety Administration official in New York state was sentenced to 18 months in prison for accepting bribes from trucking companies.

James H. Wood, 45, of Delevan, N.Y., former supervisor of the Buffalo office of the Federal Motor Carrier Safety Administration, pled guilty in June to taking bribes from third parties working for Canadian trucking companies. Wood also was ordered to forfeit $41,300.

SURFACE TRANSPORTATION trade between the United States and Canada and Mexico rose 12 percent in October over a year earlier to $79 billion, according to the U.S. Department of Transportation. U.S.-Canada trade increased 14 percent year-over-year, while U.S.-Mexico gained 9 percent. 

Baltimore bridge tolls rising

Tolls on Baltimore Harbor bridges and tunnels were raised Jan. 1, the first of two toll hikes over the next 17 months.

The cash rate for five-axle vehicles on the JFK Highway (I-95) and the Hatem Memorial Bridge (U.S. 40) rose from $30 to $36 and will increase to $48 on July 1, 2013.

For the Fort McHenry Tunnel (I-95 and I-395), Baltimore Harbor Tunnel (I-895) and Francis Scott Key Bridge (I-695), the cash toll for five-axle trucks increased from $12 to $18 on Jan. 1 and will go to $24 on July 1, 2013.

For the Harry W. Nice Bridge (U.S. 301) and William Preston Lane (Bay) Bridge (U.S. 50 and U.S. 301), the cash rate rises from the $15 to $36 by 2013.

— Staff reports

December strong for trucking jobs

The for-hire trucking industry added 5,100 new payroll employees in December, the most in one month since March, according to preliminary numbers the Bureau of Labor Statistics released.

The gain comes on top of small upward adjustments for October and November.

Compared with December 2010, trucking employment is up by 40,100 jobs, or 3.2 percent. The number of trucking jobs, just under 1.3 million, remains 157,200 jobs, or 10.8 percent, below peak employment in January 2007.

The BLS numbers for trucking reflect all payroll employment in for-hire trucking, but they don’t include trucking-related jobs in other industries, such as a truck driver for a private fleet.

— Avery Vise

SHORT HAULS

TRUCKERS FOR TROOPS campaign by Owner-Operator Independent Drivers Association raised $73,560 for care packages for military personnel overseas, primarily in Iraq and Afghanistan. Shell Rotella donated $5,000.

TRAILER NET ORDERS increased in November to 28,393, according to ACT Research. The monthly order volume is the strongest since March 2006.

Safety board urges total cell phone use ban

The National Transportation Safety Board recommended banning all U.S. drivers from using mobile phones or sending text messages, even with headsets or portable speakers, to prevent distracted-driving crashes.

Systems built into cars and global positioning systems wouldn’t be affected nor would passengers. Phones could be used to call 911.

NTSB announced its recommenda-tion during a hearing detailing its investigation into an August 2010 crash in Gray Summit, Mo., in which a 19-year-old pickup driver sent or received 11 text messages in 13 minutes before hitting the rear of a tractor-trailer. Two school buses collided with the stopped trucks. The pickup driver and one bus passenger were killed, and the truck driver and 37 other people were injured.

NTSB’s recommendation would have to be adopted separately by each state since states have authority over driver behavior. States should adopt electronic-device bans and support the laws with aggressive enforcement like they have with seatbelt use and drunk driving, NTSB Chair Deborah Hersman said.

Fatal accidents caused by distracted operators have increased in all modes of transportation, including trucks, planes, trains, boats, buses and private cars and trucks, Hersman said. The use of phones by operators is so prevalent that securing call records and the devices themselves is one of the first steps investigators now take after accidents, she said.

NTSB called for a total ban on mobile phones for truck and bus drivers in September. The Federal Motor Carrier Safety Administration banned handheld cell phones for interstate truck and bus drivers last month and banned texting in January 2010.

— Staff reports

SHORT HAULS

TEN TRUCKER FAMILIES from the United States and Canada received $700 each in this year’s Trucker Charity Christmas Group fundraiser. The 10 families were selected from among 23 nominations. Since the all-volunteer Christmas group was formed in 2008, more than $37,000 has been raised and distributed to 59 needy trucking families. The money is donated by drivers and others in the industry.

Groups want hours lawsuit dismissed

Both sides in the lawsuit that resulted in the new hours of service rule have asked a federal court to dismiss the case.

The Washington, D.C., appellate court had asked both parties on Dec. 7 to file motions to govern further court proceedings. They were given until Jan. 23, when the Advocates for Highway and Auto Safety, Teamsters union, Public Citizen, Truck Safety Coalition and the Federal Motor Carrier Safety Administration filed a joint motion requesting voluntary dismissal of the case.

The court, per the parties’ 2009 settlement agreement, is holding the case in abeyance while the agency undertook a new HOS rulemaking to replace the 2008 HOS rule that prompted the lawsuit.

— Jill Dunn

HIGHWAY HAPPENINGS

FLORIDA. Two I-75 rest areas near Tampa-St. Petersburg that were torn down have been rebuilt. The new rest area on northbound I-75 north of State Road 56 (Exit 275) has 58 truck parking spaces, while the rest area on the southbound freeway south of County Road 54 (Exit 279) has 53 truck parking spaces.

ILLINOIS. Truck speed limits on non-interstate highways in the state increased Jan. 1. Big rig speeds on various four-lane roads rose to 65 mph from 55 mph on more rural roads outside of Chicago, matching the passenger car speed limit.

KENTUCKY. The U.S. 60 Ledbetter Bridge across the Kentucky River is closed to heavy trucks until 2014 as the state builds a new bridge nearby. Truckers face a 120-mile detour on U.S. 60 to U.S. 641.

MARYLAND. A state pilot program provides truck parking in select park and ride lots during snowstorms of six inches or more. A new smartphone application also is available to locate parking at 45 locations statewide where park and ride lot snow removal also is provided.

NEVADA. The state banned all drivers from texting and using hand-held cell phones while driving. Hands-free cell phone use is allowed if the device is used throughout the call. The law is a primary offense, meaning law enforcement can stop and cite drivers solely for that offense.

NEW HAMPSHIRE. A new law increases the maximum weight limit by up to 400 pounds for trucks equipped with auxiliary power units. A 2005 federal law allows states to permit trucks to exceed the 80,000-pound limit to encourage use of idling-reduction technology.

OHIO. Construction on I-75 in Dayton will continue until 2017. The first phase involved adding a third I-75 lane in the area of Ohio Route 4, while removing a sharp curve and other work to relieve congestion. Work is ongoing to add lanes in the area of U.S. 35, with the last phase of the project ahead to improve the interstate through downtown Dayton.

OREGON. Under a new law, trucks that aren’t equipped with an auxiliary power unit or other idle-reduction technology are prohibited from idling more than five minutes an hour on property open to the public. Idling is permitted for defrosting, air conditioning and heating when outside temperatures are below 50 degrees and above 75 degrees. Idling up to 30 minutes is allowed while a truck is waiting to load or unload, as well as loading or unloading.

PENNSYLVANIA. Cash tolls on the Pennsylvania Turnpike increased 10 percent on Jan. 1, while E-ZPass rates stayed the same. For a trucker driving from the Ohio border to the Delaware River Bridge, the 5-axle cash rate increased to $185.50 from $168.60. Rates remained the same on the Southern Beltway (Turnpike 576) in Allegheny and Washington counties.

TENNESSEE. A bridge for U.S. Hwy. 41 over the Tennessee River at Nickajack Lake is expected to be complete by February 2014. The existing bridge has been closed. A detour route that adds 1.5 miles to the current route has been posted.

Court sets EOBR deadline for FMCSA

A federal court has given the Federal Motor Carrier Safety Administration until Feb. 6 to answer a cease-and-desist motion regarding truck electronic on-board recorders.

On Jan. 24, U.S. Court of Appeals for the Seventh Circuit issued the deadline for the FMCSA’s response to the Owner-Operator Independent Drivers Association’s motion.

Last August, the association successfully appealed the agency’s 2010 recorder rule. That regulation would have required EOBRs for all trucks used by a carrier with a greater than 10 percent rate of noncompliance with hours-of-service regulations in any single compliance review

The court determined that “the rule cannot stand because the agency failed to consider an issue that it was statutorily required to address.” The Truck and Bus Safety and Regulatory Reform Act of 1988 “requires the agency to ensure that any such device is not used to ‘harass vehicle operators.’”

— Jill Dunn

TCA Highway Angels named

Guy Knudsen, a driver for ABF Freight System of Fort Smith, Ark.; Gyslain “Juice” Lemelin, a driver for N. Yanke Transfer of Saskatoon, Saskatchewan; and W. Paul Lothary, a driver for Tom Joy & Son Trucking of Peshtigo, Wis., have been named Highway Angels by the Truckload Carriers Association.

On Jan. 7, 2011, Knudsen was driving westbound on Interstate 80 east of Reno, Nev., when he came around a blind curve in a narrow canyon. Blocking the road was an upside-down car with no lights. He swerved but could not avoid hitting it.

As Knudsen asked his dispatcher to call 911, another truck hit the vehicle. Together, Knudsen and this truck driver attempted to prevent traffic from further hitting the wreck.

Knudsen figured the driver of the original vehicle must have been ejected from the car prior to the collisions. He injured himself and risked his own life by jumping over a barricade and sliding down a steep embankment to the eastbound lanes. There, he found a dazed and confused woman with a head injury near the edge of the freeway.

Knudsen moved her to safety as the ambulance and police arrived at the scene above. Eventually, Knudsen got the disoriented woman to stay in place while he climbed back up the embankment to notify the authorities where she could be found.

On Oct. 23, Lemelin was heading west on the Trans-Canada Highway near Virden, Manitoba, when he was passed by two people in a pickup truck. As they passed by, Lemelin smelled a burning chemical-like odor coming from the pickup. Just moments later, he saw white smoke in the distance and knew the motorists were in trouble.

By the time Lemelin arrived at the scene, the truck was on fire. He used his fire extinguisher to put out the flames while the motorists removed their dogs and valuables from the vehicle. When the fire was out, he allowed the couple to use his cell phone to call for assistance.

On Nov. 7, Lothary used his truck to block traffic from causing further harm in the aftermath of a serious accident on Highway 41 in Germantown, Wis.

One man was pinned inside his vehicle, his nose was split open and had numerous injuries to his eyes and face. Lothary checked his breathing, placed pressure on his wounds and made him comfortable until authorities arrived.

— Staff reports

Cargo theft rises in 2011

FreightWatch International Jan. 19 said the number of U.S. cargo theft incidents reported last year increased 8.8 percent from the year before.

FreightWatch said 974 cargo theft incidents were recorded last year, with an average value of $319,000 per theft incident. Many cargo thefts aren’t reported.

“While the rate of theft continues to rise, we are pleased to see the average value per incident begin to decline,” said Barry Conlon, chief executive officer of FreightWatch, a global logistics security services provider. “This shows that shippers and the industry as a whole are beginning to secure their high-value cargo more effectively, forcing criminals to target less valuable loads.”

According to the firm, the most commonly targeted freight in 2011 was food and beverage products, electronics and building materials. Specific items most targeted by criminals include televisions, canned food products, cell phones, energy drinks and roofing materials. Those items can be sold easily on the black market.

The top four states for cargo theft were California, Florida, New Jersey and Texas. More than 87 percent of the thefts were full truckload or container thefts.

Thefts targeting electronics continued to decline from previous years, accounting for 17 percent of incidents last year, compared with 38 percent five years ago.

One of the reasons the average theft value dropped was the pharmaceutical theft average loss fell sharply from previous years.

— Staff reports

Embezzler gets 13-year sentence

A Kentucky judge has sentenced a former Mercer Transportation employee to 13 years in prison after she pleaded guilty to embezzling more than $1 million from the company.

On Jan. 11, Jefferson County Circuit Judge Irv Maze sentenced Jennifer Carmichael, 37, of Louisville. Carmichael pleaded guilty to the entire 96-count indictment, according to the Office of Commonwealth Attorney, which had prosecuted the case.

A Louisville Metro Police Financial Crimes Unit investigation indicated the mother of two children had embezzled from the owner-operator truckload carrier over an eight-year period.

— Staff reports

Navistar loses SCR lawsuit

A judge dismissed Navistar’s legal bid to force the U.S. Environmental Protection Agency to recall 2010 model year engines using selective catalytic reduction to cut truck emissions.

Navistar is using in-cylinder exhaust gas recirculation-only technology to meet the current standards in conjunction with banked EPA credits for meeting and beating pre-existing emissions regulations in effect prior to the 2010 regulations.

Navistar alleged in the suit filed July 5 with the U.S. District Court for the District of Columbia that the truck maker, a contractor it hired and the California Air Resources Board all say nitrogen oxide emissions skyrocket when drivers don’t keep diesel exhaust fluid topped off, rendering EPA’s SCR rule “irrelevant” altogether. Furthermore, Navistar accused EPA Director Lisa Jackson of not doing her duty to uphold the Clean Air Act and her agency of not doing its part to protect public health. U.S. District Judge Colleen Kollar-Kotelly dismissed Navistar’s claims.

Navistar said in July the lawsuit was about ensuring a level playing field in the heavy-duty truck market. Testing done by Navistar showed that operators can “defeat” SCR systems by adding water or other substances to the system instead of DEF, allowing the trucks to operate indefinitely, in violation of 2010 emissions regulations. SCR engine manufacturers, however, said the lawsuit was nothing new.

EPA in June had updated its guidance for certification of truck engines using SCR to reduce emissions, calling on SCR engine makers to continue developing warning systems that alert drivers when the truck’s DEF tank is nearly empty or filled with a liquid other than DEF. The June guidance, mostly in response to previous claims made by Navistar that SCR technology can be circumvented, also urged OEMs using SCR to research methods that would inhibit tampering with SCR system operation and incorporate further inducements for drivers to comply.

Navistar previously had sued both EPA and CARB over their acceptance of SCR technology without stronger measures to prevent engine operation without DEF or an operational SCR system. The truck maker in 2010 settled both lawsuits by garnering a commitment for further review.

— Staff reports n

But, as they say, the lead may well have been buried — language in the bill, says Drew Anderson, director of sales for the CSA data mining services firm Vigillo, would in effect give the Department of Transportation expanded authority to disqualify a driver from operating in interstate commerce. In essence, this is the Senate’s attempt to make reality what so many drivers feared about the CSA program when information about it was initially rolled out to the public: that the DOT was about to get into the business of rating drivers and, based on those ratings, revoking CDLs.

“Under the present statutes,” says J.J. Keller’s Tom Bray, “the only time a driver can be disqualified by the FMCSA is if the driver is found to be an ‘imminent hazard’ under 383.52 or the driver disregards a Notice of Claim,” a levied fine for a violation.

The section of concern in S.1950 is 310, which deals with the definition of “disqualification” of a driver in the federal code.

Senators Frank Lautenberg (D-N.J.), John Rockefeller (D-W.Va.) and Mark Pryor (D-Ark.), who introduced the bill, “want FMCSA to ramp up the DSMS side of CSA,” says Anderson. “If that legislation passes as is, the federal government will have the ability to put the driver out of service, off the road, and suspend their license.”

The chances of that legislation passing, judging by a similar bill introduced in the last Congressional sessions, as Tom Bray points out, might be slim. No action has been taken on it since its early-December introduction.

Should it pass, “any of this would require rulemaking that has not even been proposed yet,” as Bray notes. “The FMCSA would need to pass rules to implement the provisions of the statute that would allow them to directly disqualify a driver. Driver SMS scores in the CSA program would tie into this as one possible reason the FMCSA would look to disqualify a driver in the future, but the FMCSA would have to get it into their regulations first.”

“We’re headed into an election year [where the economy is expected to be the biggest issue],” says Anderson, commenting on the lack of potential for much of this to proceed in any way quickly, then asking, ”Do you think the FMCSA wants to be in the position of putting drivers out of work?”

Language of Section 310 is included below, and for the full text of the bill, see this page.

Some related stories:
GAO recommends more transparency for CSA
A window on FMCSA’s CSA driver-enforcement authority goals
Report: FMCSA wants to release driver safety data
CSA: Compliance plus or safety politics?
Language lurking in GAO’s CSA report to Congress

SEC. 310. FEDERAL DRIVER DISQUALIFICATIONS.

(a) Disqualification Defined- Section 31301, as amended by section 205 of this Act, is amended–

(1) by redesignating paragraphs (6) through (15) as paragraphs (7) through (16), respectively; and

(2) by inserting after paragraph (5) the following:

`(6) `Disqualification’ means–

`(A) the suspension, revocation, or cancellation of a commercial driver’s license by the State of issuance;

`(B) a withdrawal of an individual’s privilege to drive a commercial motor vehicle by a State or other jurisdiction as the result of a violation of State or local law relating to motor vehicle traffic control, except for a parking, vehicle weight, or vehicle defect violation;

`(C) a determination by the Secretary that an individual is not qualified to operate a commercial motor vehicle; or

`(D) a determination by the Secretary that a commercial motor vehicle driver is unfit under section 31144(g).’.

(b) Commercial Driver’s License Information System Contents- Section 31309(b)(1)(F) is amended by inserting after `disqualified’ the following: `by the State that issued the individual a commercial driver’s license, or by the Secretary,’.

(c) State Action on Federal Disqualification- Section 31310(h) is amended by inserting after the first sentence the following:

`If the State has not disqualified the individual from operating a commercial vehicle under subsections (b) through (g), the State shall disqualify the individual if the Secretary determines under 31144(g) that the individual is disqualified from operating a commercial motor vehicle.’.

This rule is a follow-up to the agency’s Notice of Proposed Rulemaking, issued last June, which proposed amending a 2008 final rule.

That 2008 final rule required CDL holders subject to federal physical qualification provide an original or copy of their medical examiner’s certificate to their state driver’s licensing agency. State agencies must post the medical certification information in the Commercial Driver’s License Information System, the federal electronic database.

After the 2008 final rule, several states told the FMCSA their offices lacked the capacity to comply by today’s deadline. The agency extended the paper copy requirement for interstate CDL holders and carriers two years to provide sufficient overlap for state agencies.

However, the FMCSA did not extend the deadline for state agencies. Beginning Jan. 30, drivers applying for or renewing CDLs under the non-excepted interstate category will have to self-certify and provide the certificate or a copy to the state licensing agency. All drivers affected by the rule will have to comply by Jan. 30, 2014.

More information on the final rule, FMCSA-1997–2210, is available here.

Diane and I woke up this morning in our Florida vacation house where we plan to stay until mid-February. Today was the same as most other days we have spent here; a nice vacation day.

Most people having anything to do with trucking know that new hours of service rules were recently announced and that most of them will not take effect until mid-2013. Because of the distant effective date, I have not paid close attention. I thought Diane and I would hear more about this at Landstar BCO Appreciation Days last week but company people there barely mentioned it. When they did, it was only to say that the rule makers will be sued (yet again) and the rules may very well change (yet again).

The trucking industry press has covered this topic in depth. There is one thing, however, that no one has mentioned; at least no one I have heard or read. That is the environmental impact of the new rules.

The new rules require truck drivers to take a 30 minute break during their work day. Non-truckers may not understand this but that is not good news for someone who gets paid by the mile, is frequently delayed by shipping and receiving departments, often gets delayed by traffic, commonly faces a challenge when finding a legal parking place large enough for a truck and is given a limited number of hours to work each day.

People have talked about the productivity aspect of this required break but not about air quality. Most truckers will take their legally required break in their trucks. They will run generators or idle their truck engines to remain safe with the doors locked and windows closed in a parked truck, and comfortable when outside temperatures necessitate use of the truck’s heater or air conditioner (which is almost always).

I have no way of knowing what amount of diesel engine emissions will be added to the atmosphere because all truckers are now required to take a 30 minute break, but I do know that hundreds of thousands, perhaps even millions, of drivers will run their diesel engines while doing so. Under the old rules such breaks were not mandated and were not taken to the extent they will be next year.

Some people are suggesting that the productivity decline may be significant enough to prompt carriers to add more trucks to their fleets so they can move the same amount of customer freight as before in the same amount of time. If that happens, there will be more trucks on the road, burning more fuel to move the same amount of freight.

Even without such an addition of trucks, most drivers will park and burn fuel 30 minutes a day, not because they are required to burn fuel but because they are required to park and they will burn fuel to stay safe and comfortable in their trucks.

The EPA claims to have improved air quality by regulating diesel engine manufacturers and operators. Harmful emissions coming out of truck exhaust pipes have been reduced because of legally required and very expensive engine add-ons. I’m wondering, to what extent do the new FMCSA regulations counteract the air quality effects of the EPA regulations?

In other words, is the FMCSA putting back into the air what the EPA is taking out?

On Jan. 24, U.S. Court of Appeals for the Seventh Circuit issued a Feb. 6 deadline for the FMCSA’s response to the Owner-Operator Independent Drivers Association’s motion. The agency requested a 30-day extension and OOIDA countered with seven days. The court allowed an extra 15 days.

Last August, the association successfully appealed the agency’s 2010 recorder rule. That regulation would have required EOBRs for all trucks used by a carrier with a greater than 10 percent rate of noncompliance with hours-of service-regulations in any single compliance review

The court determined that “the rule cannot stand because the agency failed to consider an issue that it was statutorily required to address.” The Truck and Bus Safety and Regulatory Reform Act of 1988 “requires the agency to ensure that any such device is not used to ‘harass vehicle operators.’”

Since that decision, OOIDA has stated agency officials pursued “a policy of encouraging motor carriers to adopt the use of EOBRs without first promulgating regulations ensuring that such devices are not used to harass drivers.”

The association included an October news report to illustrate FMCSA’s policy direction in exhibits submitted to the court.

The August ruling eliminated any provision in regulations for “adoption of a device called an ‘EOBR,’ either under an agency mandate or voluntarily,” OOIDA attorney Paul Cullen wrote in his November letter to the FMCSA’s chief counsel.

A Notice of Proposed Rulemaking has not been published to address options for ensuring that the devices, when used for HOS enforcement, are not used to harass drivers.

“Under no circumstance should the FMCSA permit or facilitate the deployment of a device to be used as an hours-of-service enforcement tool that the Seventh Circuit declared was non-compliant with a federal statute,” Cullen wrote.

The agency’s attorney had responded that the court ruling has no effect on carriers that install and use HOS monitoring devices that satisfy preexisting regulatory requirements.

OOIDA wants the court to direct the FMCSA to “cease and desist from authorizing, sanctioning or in any way encouraging” using electronic monitoring devices to increase HOS compliance until the rule ensures the devices will not be used to harass drivers.

The Washington, D.C., appellate court had asked both parties on Dec. 7 to file motions to govern further court proceedings. They were given until Jan. 23, when the Advocates for Highway and Auto Safety, Teamsters union, Public Citizen, Truck Safety Coalition and the Federal Motor Carrier Safety Administration filed a joint motion requesting voluntary dismissal of the case.

The court, per the parties’ 2009 settlement agreement, is holding the case in abeyance while the agency undertook a new HOS rulemaking to replace the 2008 HOS rule that prompted the lawsuit.

The FMCSA’s Dec. 22 rule “supersedes the rule at issue in this case,” the Jan. 23 motion states. “Because the rule challenged in the petition no longer exists, the parties agree that the case should be dismissed.”

The motion notes both sides agree to be responsible for their own litigation costs.

The 2009 joint agreement states if the “FMCSA promulgates a new rule that is substantially different from the 2008 rule, that may obviate the need for judicial review of the current rule.”

After the petitioners sued, the Owner-Operator Independent Drivers Association, the American Trucking Associations and four other transportation and business groups filed with the defense as intervenors, or those who voluntarily enter a lawsuit because of a personal stake. The Union of Concerned Scientists and four other policy groups filed friend of court briefs for the petitioners.

The same court overturned a 2003 hours rule, issued in 2004, and a 2005 rule, issued in 2007.