BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION A PETITION FOR RECONSIDERATION OF THE FINAL RULE ON PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION: BRAKES; ADJUSTMENT LIMITS SUBMITTED BY THE OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION Docket No. FMCSA 2010-0257 James Johnston President Owner-Operator Independent Drivers Association September 4, 2012
BEFORE THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION UNITED STATES DEPARTMENT OF TRANSPORTATION I. INTRODUCTION OOIDA submits this petition to request FMCSA s reconsideration of certain provisions included in the Parts and Accessories Necessary for Safe Operation: Brakes; Adjustment Limits rule (the Rule). The specific areas of concern are (i) the lack of a clear definition of what constitutes a qualified service technician and (ii) the introduction of cause as a condition to be removed from out-of-service standing. OOIDA is supportive of the intentions behind the Rule which is to standardize procedures for measuring brake stroke compliance between federal regulations and roadside enforcement. However, the intent of the Rule is not fully realized because changes to existing language for inspection reports related to the manual adjustment of automatic brake adjusters will actually result in measurement imprecision and could potentially lead to inconsistent application by enforcement personnel as well as motor carriers and drivers. This is not only counter-productive to the Rule s intent and creates a disproportionate economic hardship on small-businesses, but also antithetical to FMCSA s primary charge of improving motor carrier safety. II. PROCEDURAL STATEMENT A. OOIDA s right to petition the FMCSA The OOIDA petitions the Secretary of Transportation under 49 C.F.R. 5.11 to amend the new rule contained in 49 C.F.R. 393.53 that will take effect on September 5, 2012. The pertinent part of the new regulation states: The following language will now be used on inspection reports: This vehicle has brake adjustment violations. Section 393.53 of 49 CFR requires that this vehicle be equipped with a self-adjusting brake system. A qualified service technician needs to determine why the defective brake has excessive stroke and make the appropriate repair. Simply re-adjusting a self-adjusting brake adjuster, or replacing it, does not guarantee that the problem is corrected. The problem may exist in the foundation brake system.
B. Removing/reconsidering the above referenced section from the final rule OOIDA proposes that the modification to Section 393.53 concerning the language change on inspection reports be removed until there is a clear, concise and standardized definition of what constitutes a qualified service technician. We believe this can be accomplished easily as there would be no need to re-title the Rule as the remainder simply provides for consistent and standardized procedures for measuring brake stroke compliance and offers consistency between federal regulations and out-of-service criteria. C. Economic impact OOIDA believes that this new Rule as written will have a significant and disproportionate economic impact on its members and on many other small-business motor carriers. The trucking industry is a highly competitive industry with tight margins, and delivering on time to receivers is a paramount concern. Because brake violations are the most common out-of-service violations at roadside, being delayed while waiting for a qualified service technician to arrive at roadside to diagnose and repair or adjust brakes would prove to be extremely cost prohibitive to the operation of small carriers. D. Safety impact This new Rule creates a type of detention time, which has been shown to not only reduce the income of drivers/carriers, but put time pressure on drivers/carrier to maximize their driving time in order to make delivery obligations. In addition, heavy duty commercial trucks sitting at roadside for extended periods of time is dangerous to the motoring public. III. INTEREST OF THE OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION The Owner-Operator Independent Drivers Association, Inc. ( OOIDA or Association ) is a not-for-profit corporation incorporated in 1973 under the laws of the state of Missouri, with its principal place of business in Grain Valley, Missouri. OOIDA is the largest international trade association representing the interest of independent owner-operators and professional drivers on all issues that affect small business truckers. The more than 150,000 members of OOIDA are small-business men and women located in all 50 states and Canada who collectively own and operate more than 220,000 individual heavy-trucks. Owner-operators represent nearly half of the total number of Class 7 and 8 trucks operated in the United States. A large segment of OOIDA s members have their own authority to operate in interstate commerce.
The mailing address of the Association is: Owner-Operator Independent Drivers Association P.O. Box 1000 1 NW OOIDA Drive Grain Valley, Missouri 64029 www.ooida.com The Association actively promotes the views of small-business truckers and professional drivers through its interaction with state and federal government agencies, legislatures, the courts, other trade associations, and private business to advance an equitable and safe environment for commercial drivers. OOIDA is active in all aspects of highway safety and transportation policy, and represents the positions of small truckers in numerous committees and various forums on the local, state, national, and international levels. IV. EVIDENCE IN SUPPORT OF THIS PETITION A. Need for clear and consistent understanding OOIDA supports the recommendations and statements of the Commercial Vehicle Safety Alliance that: First, consistency is important in roadside enforcement ***. The 20 percent rule gives inspectors and commercial vehicle operators clear and consistent expectations relative to proper brake adjustment and out-of-service conditions. Second, fairness and compliance with the regulations are critical for successful enforcement***. B. Removing/reconsidering the above referenced section will not interfere with the Rule s intent as many drivers are simply capable of identifying the necessary repairs and are otherwise qualified inspectors under other relevant definitions: Many members of OOIDA and other drivers who have been driving for a number of years qualify under 49 C.F.R. Section 396.25(d) as brake inspectors. Inspection, repair, and maintenance 396.25 - Qualifications of brake inspectors. (a) Motor carriers and intermodal equipment providers must ensure that all inspections, maintenance, repairs or service to the brakes of its commercial motor vehicles, are performed in compliance with the requirements of this section. (b) For purposes of this section, brake inspector means any employee of a motor carrier or intermodal equipment provider who is responsible for ensuring that all brake inspections, maintenance, service, or repairs to any commercial motor vehicle, subject to the motor carrier's or intermodal equipment provider's control, meet the applicable Federal standards.
(c) No motor carrier or intermodal equipment provider may require or permit any employee who does not meet the minimum brake inspector qualifications of paragraph (d) of this section to be responsible for the inspection, maintenance, service or repairs of any brakes on its commercial motor vehicles. (d) The motor carrier or intermodal equipment provider must ensure that each brake inspector is qualified as follows: (1) Understands the brake service or inspection task to be accomplished and can perform that task; and (2) Is knowledgeable of and has mastered the methods, procedures, tools and equipment used when performing an assigned brake service or inspection task; and (3) Is capable of performing the assigned brake service or inspection by reason of experience, training, or both as follows: (i) Has successfully completed an apprenticeship program sponsored by a State, a Canadian Province, a Federal agency or a labor union, or a training program approved by a State, Provincial or Federal agency, or has a certificate from a State or Canadian Province that qualifies the person to perform the assigned brake service or inspection task (including passage of Commercial Driver's License air brake tests in the case of a brake inspection); or (ii) Has brake-related training or experience or a combination thereof totaling at least one year. Such training or experience may consist of: (A) Participation in a training program sponsored by a brake or vehicle manufacturer or similar commercial training program designed to train students in brake maintenance or inspection similar to the assigned brake service or inspection tasks; or (B) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task in a motor carrier or intermodal equipment provider maintenance program; or (C) Experience performing brake maintenance or inspection similar to the assigned brake service or inspection task at a commercial garage, fleet leasing company, or similar facility. (e) No motor carrier or intermodal equipment provider may employ any person as a brake inspector unless the evidence of the inspector's qualifications, required under this section, is maintained by the motor carrier or intermodal equipment provider at its principal place of business, or at the location at which the brake inspector is employed. The evidence must be maintained for the period during which the brake inspector is employed in that capacity and for one year thereafter. However, motor carriers and intermodal equipment providers do not have to maintain evidence of qualifications to inspect air brake systems for such inspections performed by persons who have passed the air brake knowledge and skills test for a Commercial Driver's License. This provision has always allowed drivers qualified as brake inspectors to adjust the commercial vehicle brakes to the proper adjustment and continue on to their destination. In fact, self-adjusting brakes have adjustments on them and most drivers carry 9/16 inch wrenches just for such occasions. While it may be true that there will be few changes in the number of violations from the new rule, the requirement to have an undefined qualified service technician approve of any adjustment or replacement of brake components will lead to long delays before the driver can resume driving. OOIDA finds it incomprehensible that a driver who is qualified as a brake inspector under Section 396.25 will not be allowed to adjust the slack adjuster to meet regulatory compliance until a qualified service technician is available.
Without a definition of what makes a person eligible to be a qualified service technician, this final rule will create confusion, uncertainty and inconsistency for enforcement personnel as well as motor carriers and drivers. Answers to the following questions will help provide the needed clarity: Is a brake inspector the same as a qualified service technician? Is there a standard curriculum that a qualified service technician must complete? Must individuals carry credentials showing they are qualified? Are all service technicians qualified as brake technicians? Are all qualified service technicians qualified on all brake systems? Is FMCSA going to keep a list of qualified service technicians? OOIDA strongly feels that until terms are defined and qualifications established that this area within the rule should be reconsidered or removed. Members of OOIDA, on average, have more than 20 years of trucking experience. OOIDA finds it unconscionable that FMCSA would not allow these qualified, professional drivers to put the brake adjuster into a compliance state and complete their route. This paragraph in the new rule introduces a whole new regulatory mandate requiring that a cause be determined before a vehicle can be placed back in service. This is a significant and unprecedented change in how outof-service vehicles are handled. In no other out-of-service violation is there a diagnostic evaluation required before a vehicle can be placed back in service. For examples, if the driver has a violation under 393.209(d) for a loose mounting bolt on the steering gear box, he is allowed to tighten the bolt and correct the problem without calling a qualified service technician to determine what caused the bolt to become loose. If a driver is placed out-of-service for not having a tail light, the driver is allowed to replace the bulb bringing the vehicle into compliance and allowing it to be placed back in service. There is no requirement that a complete electrical diagnosis be performed to be sure that the bulb actually was the cause before allowing the vehicle to be placed back in service. C. Economic Impact OOIDA disagrees with FMCSA s contention that, The economic impact of this rule will be minimal; and certifies that the proposed action would not have a significant economic impact on a substantial number of small entities. The trucking industry in the United States is highly competitive and economic margins for carriers are very tight. This is especially true for small-business trucking companies competing in spot markets with large carriers. Where large carriers often have terminals and service technicians available nationally or within their primary regions of business, small-business carriers are often one or two truck operations where drivers carry their own tools and are
responsible for their own equipment. Brake adjusters can be out of adjustment for many reasons such as normal wear, rough roads or deterioration from weather. In fact, in some circumstances if the driver has not had recent hard braking incidents automatic adjusters may need some manual adjustment. The old adage of trucking If the wheels ain t turnin, I ain t earnin is based on the reality that delivering on-time to receivers in a safe and efficient manner is imperative to maintaining their business. A delay at roadside, especially in remote locations, while waiting for a qualified service technician to arrive can cost the operator his reputation for timeliness and efficiency. The Texas Transportation Institute recently found that truckers grossly underestimate the cost of delays and set a cost of over $200 per day for a delay in transit. In remote locations the arrival of a qualified service technician may take hours or even days effectively disrupting the tight economic margin the carrier depends on. If indeed the technician must determine the cause of the adjuster being out of adjustment then the process will indeed cost more as the entire system will have to be examined. This delay could easily put the small business trucker out of business as he has made commitments to shippers, brokers and receivers and any delay costs money for the downtime, diagnostics, repair or replacement parts as well as possibly missing another load. What happens if the qualified service technician cannot determine the cause of the problem? Will the technician be allowed to adjust the slack adjuster? I can assure the agency that there are remote areas serviced by OOIDA members where there are no qualified service technicians for hundreds of miles. Brakes out of adjustment need to be fixed, and any owner operator will have the brakes fixed rather than have an out-of-service situation occur again. This new requirement referenced above will create a detention time analogous to the detention times experienced by drivers at loading/unloading docks. According to a recent GAO report January 2011, Commercial Motor Carriers; More Could Be Done to Determine Impact of Excessive Loading and Unloading Wait Times on Hours of Service Violations: Detention time can also result in lost revenue for drivers as well as carrier companies 65% reported that detention time had caused them to lose money Detention time has a greater potential to result in lost revenue for independent owner operators than drivers employed by carrier companies In 1993 the OOIDA Foundation produced a video on brake adjustment as a precursor to the self-adjusting brake adjuster rule. This video teaches drivers the simple and easy way to adjust the slack adjusters -- both manual adjusting slack adjusters and self-adjusting brake adjusters.
D. Safety Impact FMCSA will, by this rule as written, create an unsafe environment for drivers and carriers. Many inspections are done at roadside and a truck sitting out-of-service at roadside is a safety hazard to the public as well as commercial vehicles. In the GAO report referenced above, 80% of drivers reported that detention time reduced their available driving time. The GAO report also stated, Detention time can in some cases lead drivers to operate their vehicles beyond the hours of service requirements and improperly log duty time in order to make scheduled deliveries on time. Even though FMCSA recognizes the danger of fatigue factors associated with the time pressures placed on drivers and carriers, it has proposed a rule that will increase stress and time constraints further. V. CONCLUSION OOIDA supports the FMCSA in recognizing the importance of having consistent and standardized procedures in place for measuring the brake stroke compliance to match the federal regulations with the out-of-service criteria of CVSA. Unfortunately, FMCSA has introduced new language and terms within the Rule concerning the ability of the driver to adjust their selfadjusting brake adjusters. This change will result in increased expenses of potentially millions of dollars for small-businesses. Furthermore by introducing a new term, qualified service technician with no definition or criteria offering clarification, the FMCSA has created an imprecise section within the Rule that lacks clarity and will encourage inconsistent application by enforcement personnel as well as motor carriers and drivers. OOIDA also believes that this section of the Rule on the manual adjustment of self adjusting slack adjusters unduly targets the small-business operator with a burdensome and potentially costly expense. In addition, the requirement for determining the cause of a vehicle violation before being able to put the vehicle back in service is an unprecedented and burdensome requirement that needs further review and comment. There are strong safety considerations that need to be considered in creating a type of detention time for drivers and carriers. This new Rule as written can put undue and uncalled for pressure on drivers and carriers to press the limits of driving time in order to meet their delivery/pick-up obligations. By reconsidering one section within the Rule and eliminating that section until further studies are done, the agency will have a Rule that offers consistency and fairness to enforcement and the trucking industry.
Respectfully submitted, James Johnston President Owner-Operator Independent Drivers Association