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Paul Cullen, Jr.
The Cullen Law Firm

While much of Washington kept its eyes on the impeachment hearings during the end of 1998, OOIDA turned its focus to several ongoing federal rulemakings that affect the interests of small-business truckers.

Physical Fitness Exam

In one rulemaking, the Federal Highway Administration set out to revise the medical examination report used to determine the physical qualification of drivers. Much of the old form used out-of-date medical terminology and did not reflect current understanding of which physical standards are relevant to driving a commercial motor vehicle.

Although OOIDA (in the comments it submitted) generally supported the revision, it expressed concern for the way the medical information collected by the examination process would be available to other parties (i.e. potential employers). Whereas motor carriers are only required to see a driver's certificate to verify current physical qualification, they often require that a driver provide the long form medical examination report on which the medical examiner has recorded specific medical data about the driver. OOIDA is concerned about this practice and is looking into the legality of a potential employer's use of medical information for purposes other than confirming legal fitness to drive a commercial motor vehicle (CMV).

OOIDA believes trucking with more resources than currently established

OOIDA expressed concern for the ways in which the proposed medical examination report requires the collection of private medical information and the performance of medical tests that are unnecessary and irrelevant to determining a person's fitness to drive a CMV. OOIDA recommended that the requirements of the report be limited to only those necessary to permit a driver's medical certification. Medical information that does not bear directly on a driver's medical certification should not be recorded on reports that third parties, such as the driver's employer/motor carrier, may have access to or request. This is an issue that OOIDA will continue to monitor in terms of rulemakings and industry practices.

Out-of-service criteria

The always-controversial issue of out-of-service criteria was the subject of a FHWA Advance Notice of Proposed Rulemaking for which OOIDA also submitted comments. The purpose of this notice was to ask whether or not the out-of-service criteria of the Commercial Vehicle Safety Alliance should be adopted and published as part of the Federal Motor Carrier Safety Regulations after undergoing the same notice and comment rulemaking process that all federal regulations go through.

OOIDA's comments were driven by the concern that current out-of-service criteria are enforced as if they are the law even though they are written and created by a private organization and are not freely available to everyone who could be punished for their violation. OOIDA supports the adoption of the out-of-service criteria into federal regulations. This would mean that the public would have the opportunity to participate in the formal announcement of the rules and any amendments to them. OOIDA says the criteria should include a uniform and predictable set of standards that truckers could rely on to ensure that they are in compliance with safety regulations in any state. Predictable standards reduce the discretion of inspecting officers and provide more certainty for drivers.

Hours of service

Finally, on the rulemaking front, the Federal Highway Administration has given notice of its consideration of a negotiated rulemaking on hours-of-service regulations. This is a relatively new regulatory process that allows interested parties to participate in the drafting of a new rule before it is published. This process allows the agency to resolve contentious issues and reduce the chance for strong opposition to new regulations before the rule is formally proposed. A negotiated rulemaking is an additional step to the rulemaking process and does not replace any of the notice and comment periods required before the final publication and adoption of a regulation. OOIDA has participated at every step in the ongoing hours-of-service rulemaking and expects to be a full participant in any negotiated rulemaking on this vital issue to small business truckers.

Congress

In Congress, the Transportation and Infrastructure Committee in the House of Representatives has determined its new membership for the 106th Congress. Despite the close ratio of Democrats to Republicans in the new House, the ratio of 41 Republicans to 34 Democrats on the committee will remain the same as the 105th Congress.

Congress starts its engines, but is likely to idle on transportation issues at the start of the 106th

Republicans leaving the committee are Jay Kim and Frank Riggs of California, Charles Pickering of Michigan, Roy Blunt and Jo Ann Emerson of Missouri, Vito Fossella and John Fox of Pennsylvania, and Kay Granger of Texas. Replacing these Republicans are veteran congressman John Doolittle and freshmen Gary Miller of California, Lee Terry of Nebraska, John Sweeney of New York, Don Sherwood of Pennsylvania, and Jim DeMint of South Carolina.

Three Democrats left the committee. They were James Clyburn (SC), Jay Johnson (WI), and Glenn Poshard (IL). They have been replaced by freshmen Brian Baird (WA), Shelley Berkley (NV), and Ronnie Shows (MS).

The Washington Insider encourages those of you whose congressional representative has been appointed to this committee to note the extra influence you may now have on transportation issues. You may wish to communicate more frequently with your representative if he or she has been appointed to this committee.

Transportation and Infrastructure Chairman Bud Shuster (R-PA) announced a restructuring of the internal committee organization. In an effort to achieve a more balanced workload among subcommittees, the Surface Transportation subcommittee and the Railroads subcommittee will be combined. A new subcommittee, the Investigation, Oversight and Emergency Management Subcommittee, will be created. This is expected to increase the committee's ability to exercise supervision over the use of the billions of dollars the committee authorizes.

On the Senate side of the Hill, there was only one change to the committee that oversees most transportation issues – the Commerce Committee. Democrat Max Cleland (D-GA) will replace Sen. Wendell Ford (D-KY) who retired last year. Chairman John McCain has announced his committee's initial priorities for the new Congress, but other than reauthorization of the Federal Aviation Administration, there were no transportation issues on the immediate list.

Although perhaps not on his list of immediate priorities, one issue that Sen. McCain has said that he will hold hearings on will be the proposal by Rep. Frank Wolf (R-VA) to move the Office of Motor Carriers (OMC) under the National Highway Traffic Safety Administration (NHTSA). Rep. Wolf, chairman of the Transportation Appropriations Subcommittee, initiated this proposal by inserting it into last year's transportation appropriations bill. This proposal did not pass Congress, but it raised the ire of a lot of motor carriers, and drew a lot of attention to the safety issues that Rep. Wolf champions. Although no hearings have ever been held on this issue, Rep. Wolf says that the OMC has become too close to the motor carrier industry and with such a close relationship has abrogated its responsibilities as an oversight agency to enforce federal motor carrier safety regulations. Moving the OMC to an organization whose focus is safety, reasons Rep. Wolf, will mean better enforcement of safety regulations and therefore safer highways. Sen. McCain's hearings will be useful to flesh out the implications of this proposal.

OOIDA looks upon Rep. Wolf's proposal with uncertainty. It is not clear how such a move would affect the small business trucker. OOIDA looks forward to Sen. McCain's hearings on this subject. The OOIDA board of directors has taken the position that the trucking industry needs a stronger agency, perhaps a Federal Motor Carrier Administration, on par with the prestige and powers of the Federal Aviation Administration and the Federal Railroad Administration. The OOIDA board of directors adopted this position as a resolution at their October meeting. The trucking industry moves several times the value of the freight moved by rail or air, and the American economy relies on trucking more than all other forms of shipping combined. For these and many other reasons, OOIDA believes trucking should have an agency with more resources and stature than is currently established. In this way it may better address all of the issues, including safety, that affect the trucking industry. Stay tuned to the Washington Insider as this issue develops in the coming months. LL