Bottom Line
Washington Insider
FMCSA leadership change could indicate a revised HOS rule

Paul Cullen Jr.
The Cullen Law Firm, PLLC

Joe Clapp, the former head of the Federal Motor Carrier Safety Administration, said last year he would stay at the agency until the next hours-of-service (HOS) draft rules are complete. But Clapp, the former chairman of Roadway Services Inc., resigned from FMCSA without mentioning the status of the rule.

Although not apparent at the time of his announcement, Clapp’s exit may have been timed fairly well with the agency’s completion of a new draft rule.

On Jan. 3, FMCSA sent a new HOS draft to the Office of Management and Budget for its review. The OMB is the White House office mostly responsible for drafting the president’s budget. OMB also reviews new rules to ensure their compliance with proper standards, including the accurate assessment of their potential impact on private businesses.

The Bush administration’s OMB review could have a significant impact on the new rule. When a new HOS rule was proposed two years ago, many in the public, including representatives of OOIDA, said FMCSA had severely underestimated the potential cost to small businesses.

That rule was reviewed under the Clinton OMB. The Bush OMB is said to pay much more attention to the burden of new regulations on the public, and it could send the rule back to FMCSA if it does not contain a credible cost analysis. This means FMCSA may be forced to be more sensitive to the effect of the rule on owner-operators.

OMB takes about 58 days to review a new rule. That means the revised HOS rule could be published as early as March. It is assumed by many that it will be more friendly toward the trucking industry. It is also likely the public will have an opportunity to comment on it again before a final rule is published.

Sandberg takes on HOS, round two
Annette M. Sandberg is taking over as head of FMCSA on the eve of the next round of HOS activity. Is she ready to take on this job? By contrast, the Clinton administration could not attract anyone to be FMCSA administrator probably because the previous HOS proposal caused a firestorm.

While President Bush was able to attract Joe Clapp, a trucking insider, Clapp reportedly was frustrated at not having an easy time translating his business expertise to bureaucratic accomplishments. Sandberg’s experience, on the other hand, bodes well for such challenges.

Sandberg was appointed chief of the Washington State Patrol at age 33 and held the position six years. During her tenure, she presided over the state patrol’s response to the violent anti-globalization protests in Seattle during the World Trade Organization meetings in 1999.

Sandberg was deputy administrator of the National Highway Traffic Safety Administration, where she oversaw automobile safety and fuel efficiency standards. During this time, she helped NHTSA straighten out its priorities after the Ford/Firestone recall debacle.

Having gained government managerial experience during difficult times, Sandberg appears qualified to oversee the HOS rewrite. We’ll see if that assessment is true as early as March, when the latest HOS version may be released to the public.

FMCSA moves on intermodal equipment maintenance 
FMCSA said it’s exploring the feasibility of conducting a negotiated rule making to resolve the issue of who has responsibility for the maintenance of intermodal container chassis and trailers. The agency has asked for public comments on this announcement.

Normally, when a federal agency wants to make a new rule, it does so by publishing a draft rule and asking the public to submit written comments on its proposal. A negotiated rule making, however, brings the major interested parties together to hash out compromises on the proposed rule before it is published for public comment. For now, however, the agency is asking for the public’s comments on whether a negotiated rule making should be used to resolve this issue.

In a letter to FMCSA, OOIDA President Jim Johnston supported a negotiated rule making. Describing the “income lost, penalties incurred and time wasted by owner-operators forced to deal with poorly maintained equipment,” Johnston described the need to resolve this issue and asked that OOIDA be invited to participate should a negotiated rule making be initiated. There is no certain timetable for FMCSA’s decision on the matter.

OOIDA on event data recorders
In other regulatory news, NHTSA has asked for public comments on the use of event data recorders in all motor vehicles. The agency has gathered extensive information and held seminars on this technology, exploring the ways it could be used to investigate accidents and learn what improvements could be made to vehicles. However, more is misunderstood about EDRs than what is known about them.

First, the public has little idea that data is already being collected about their driving habits. The NHTSA statement says nearly 80 percent of new vehicles sold in the United States record some kind of data about the vehicle’s operation. The rules for how that data could be used have not been written. Questions that have not yet been settled include: Who owns the data, the vehicle owner or the car manufacturer? Who has the right to access the data? When and for what purpose can the data be accessed?

While NHTSA is interested in exploring how EDRs can help investigate accidents and vehicle defects, would law enforcement have access to this data when there’s no accident?

NHTSA reports technology exists that would allow EDR data to be read by wireless technology. This means EDR data could be collected by a passing law enforcement vehicle or within a central monitoring location. EDRs could also provide Global Positioning Satellite data. OOIDA’s comments ask whether this could mean that law enforcement could read EDR data and issue tickets for speeding and other violations based on the data.

There are many legal, technical and privacy issues that have not been resolved, but there’s time to tell NHTSA what you think of EDRs. The deadline for submitting comments has been extended to Feb. 28. The NHTSA public notice inviting the public to comment on EDRs and the comments others have submitted on EDR can be found by going to the Department of Transportation Web site, dms.dot.gov, and searching on the docket number 13546. That Web site also has instructions for submitting your own comments.

March/April
Digital Edition