Conference report on h. R. 3, Safe, accountable, flexible, efficient transportation equity act: a legacy for users

   SEC. 4107. HIGH PRIORITY ACTIVITIES AND NEW ENTRANTS AUDITS

   House Bill

   No comparable provision in House bill.

   Senate Bill

   Sec. 7107.

   As under current law, up to $15,000,000 for each FY 2006 through 2009 of MCSAP grant funds could be set aside for high priority activities that improve commercial motor vehicle safety and are national in scope. The section would require that at least 80 percent of funds set aside for high priority projects be awarded to State and local agencies. Although DOT has broad discretion to determine the details of the program, the Secretary would be required, at a minimum, to focus on reductions in the number and rate of fatal accidents involving CMVs. The Secretary is also required to designate up to $29,000,000 for audits of new entrant motor carriers and can withhold these funds from a State or local government that is unable to use government employees to conduct these audits. Should they be unable to do so, the Secretary would be authorized, but not be required, to expend the funds directly to carry out new entrant audits in those jurisdictions. The Secretary may also designate

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$2,000,000 in FY 2006 and up to $6,000,000 for FY 2007 through 2009 for the modernization of the commercial driver's license information system. This section also would clarify that funds provided for border enforcement grants are to go to States that share a border with another country. Grant recipients could not use Federal funds to replace State funds. As a condition of receiving a border enforcement grant, States would be required to maintain their own expenditures at a level at least equal to the average level of expenditure by the State for the two years before October 1, 2005.

   Conference Substitute

   The Conference adopts the Senate approach.

   SEC. 4108. DATA QUALITY IMPROVEMENT

   House Bill

   Sec. 4115.

   This section adds language to the current information systems requirements to ensure that the data FMCSA receives from the States is complete, timely, and accurate.

   Senate Bill

   No comparable provision in Senate bill.

   Conference Substitute

   This section aims to ensure the safety data FMCSA receives from States is complete, timely, and accurate. This section was initiated because the Conferees' concern regarding the quality of the safety data in the motor carrier safety status measurement system (SafeStat) and the unresolved material weaknesses in the SafeStat data, as confirmed in a 2004 report of the Department's Inspector General. In addition, the Conferees are concerned that data quality issues affecting the MCMIS database may constrain its usefulness for certain purposes beyond general internal review and screening. The Conferees urge the Secretary to revisit this issue to determine if there are more accurate factors that could be utilized when determining whether to issue safety permits.

   SEC. 4109. PERFORMANCE AND REGISTRATION

   INFORMATION SYSTEM MANAGEMENT

   House Bill

   Sec. 4114.

   Subsection (a) updates the current statute to more closely follow how the performance and registration information systems management (PRISM) program is currently administered. Subsection (b) establishes a new separate grant program for PRISM. These grants do not require a State match.

   Senate Bill

   Sec. 7120.

   The Performance and Registration Information System Management Program (PRISM) is a voluntary program in which States can participate to identify motor carriers and hold them responsible for the safety of their operations. The program includes two major processes: a commercial vehicle registration process, through which States ensure that no vehicle is plated without identifying the carrier responsible for the vehicle's safety during the registration year, and a motor carrier safety improvement process, designed to improve the safety performance of motor carriers with demonstrated poor safety performance. As of March 2004, 27 States participated in the PRISM program, also the States of Alaska and New York have also provided the FMCSA with a Letter of Intent to implement the PRISM program. PRISM is an effective enforcement tool that enables the States to deny, suspend, or revoke a motor carrier's commercial motor vehicle registrations when FMCSA determines that the carrier has become unfit to operate CMVs safely. By itself, an out-of-service (OOS) order from FMCSA sometimes has little effect. However, when the State simultaneously confiscates the motor carrier's CMV license plates, the carrier's ability to continue operating without detection is greatly reduced. Grants to implement PRISM are authorized by section 103 of the bill. This section would establish in statute certain requirements for participation in the program. In order to participate, States would have to comply with uniform standards set by the Secretary and have the legal authority to impose CMV registration sanctions on the basis of a Federal safety fitness determination. Another condition for participation in the program would be that States cancel the motor vehicle registration, and seize the plates, of an employer who knowingly allows an employee to operate a CMV in violation of an OOS order.

   Conference Substitute

   The conference adopts both the House and Senate approach. The conference combined and clarified both the House and Senate language in the Conditions for Participation section.

   SEC. 4110. BORDER ENFORCEMENT GRANTS

   House Bill

   Sec. 4103.

   Subsection (a) deletes contract authority funding for information systems by striking the section 31107 of title 49, U.S.C., where it currently is located. Funding for information systems is now included in the administrative expenses. Subsection (a) also creates a new grant program for border enforcement activities under the same section.

   This grant program is for State enforcement activities at the Canadian and Mexican borders. No Federal activity would be conducted using this money. States would be authorized to use the grants for virtually anything related to Commercial Motor Vehicles (CMV) safety enforcement and compliance with State and Federal CMV requirements involving foreign motor carriers, including the purchase of land and buildings. Grant recipients could not use Federal funds to replace State funds and they would be required to maintain the average level of border-related expenditures during fiscal years 2003-2004. It is intended, and quite possible, that this money will not be distributed to every State that shares a border with another Country, but will only be distributed to States with an identified need. These grants do not require a State match.

   Senate Bill

   Sec. 7107(b).

   This section also would clarify that funds provided for border enforcement grants are to go to States that share a border with another country. Grant recipients could not use Federal funds to replace State funds. As a condition of receiving a border enforcement grant, States would be required to maintain their own expenditures at a level at least equal to the average level of expenditure by the State for the two years before October 1, 2005.

   Conference Substitute

   The conference adopts the House approach, and the Senate approach regarding Noncompliance with CDL Requirements.

   SEC. 4111. MOTOR CARRIER RESEARCH AND TECHNOLOGY PROGRAM

   House Bill

   Sec. 4112.

   This section authorizes a comprehensive FMCSA research and technology program under section 31108 of title 49, U.S.C. The Federal share of the cost of activities carried out under a cooperative research and development agreement could not exceed 50 percent, except if there is substantial public interest or benefit, the Secretary could approve a greater Federal share.

   Senate Bill

   Sec. 7118.

   This section would establish a motor carrier research and technology program. The goal is to support, through contracts, cooperative agreements, and grants, research designed to produce innovative advances in motor carrier, driver, and passenger safety. Equally critical, however, would be the transfer of promising results, whether technical or operational, to potential users and rapid deployment of the fruits of research and development. The Federal share of the cost of activities carried out under a cooperative research and development agreement will not exceed 50 percent, except when there is substantial public interest or benefit, as determined by the Secretary. Research, development, or use of a technology under a cooperative research and development agreement, including the terms under which the technology may be licensed and the resulting royalties may be distributed, would be subject to the Stevenson-Wydler Technology Innovation Act of 1980.

   Conference Substitute

   The conference adopts the House approach with clarification of language in the Research, Development, and Technology Transfer Activities section.

   SEC. 4112. NEBRASKA CUSTOM HARVESTERS LENGTH EXEMPTION

   House Bill

   Sec. 4138.

   This section allows the State of Nebraska to permit the length of commercial motor vehicles used exclusively for hauling custom harvesters to 81 feet, 6 inches.

   Senate Bill

   No comparable provision in Senate bill.

   Conference

   The conference adopts the House approach.

   SEC. 4113. PATTERN OF SAFETY VIOLATIONS BY MOTOR CARRIER MANAGEMENT

   House Bill

   Sec. 4111.

   Some motor carrier managers and brokers order, encourage, or tolerate widespread regulatory violations and, when caught, declare bankruptcy, rename the company and reshuffle the managers' titles, sell its assets to a pre-existing shell corporation owned and managed by the same people, or otherwise attempt to evade the payment of civil penalties, obscure the identity of the company and thus its violation record, and perpetuate a casual indifference to regulatory compliance and public safety. Although the total number of such managers and brokers are small, their actions create risks disproportionate to their numbers.

   This section addresses these problems. It amends 49 U.S.C. 31135 to authorize the Secretary to suspend, amend, or revoke the registration of a for-hire motor carrier if any of its officers has engaged in a pattern or practice of avoiding compliance, or concealing non-compliance, with Federal standards. The Secretary could also deny an application to register as a for-hire motor carrier if any of the proposed officers of the company has engaged in a pattern of non-compliance. In this context, ``officer'' means owner, chief executive officer, chief operating officer, chief financial officer, safety director, vehicle maintenance supervisor, driver supervisor, and any person exercising controlling influence over operations of a motor carrier.

   This provision does not apply to all officers whose companies are found to be in violation

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of the Federal safety rules. Rather, it is intended to authorize the Secretary to force out of the industry those few who have shown unusual and repeated disregard for compliance.

   Senate Bill

   Sec. 7117.

   Some motor carrier managers order, encourage, or tolerate widespread regulatory violations and, when caught, declare bankruptcy, rename the motor carrier, and reshuffle the managers' titles, sell its assets to a pre-existing shell corporation owned and managed by the same people, or otherwise attempt to evade the payment of civil penalties, obscure the identity of the motor carrier and thus its safety record. Although the total number of such managers is small, their actions create a risk disproportionate to their numbers. The section would address these problems by authorizing the Secretary to suspend, amend, or revoke the registration of a for hire motor carrier if any of its officers has engaged in a pattern or practice of avoiding compliance, or concealing non-compliance, with Federal motor carrier safety standards. In this context, ``officer'' means owner, director, chief executive officer, chief operating officer, chief financial officer, safety director, vehicle maintenance supervisor, and driver supervisor of a motor carrier. This provision would not apply to all motor carrier officers whose companies are found to be in violation of the Federal safety rules. Rather, it is intended to authorize the Secretary to force out of the industry those few motor carrier officers who have shown unusual and repeated disregard for safety compliance. It is expected that the Secretary would use this authority only in the most serious cases.

   Conference Substitute

   The conference adopts the House provisions without the Regulations and Cross Reference paragraphs.

   SEC. 4114. INTRASTATE OPERATIONS OF INTERSTATE MOTOR CARRIERS

   House Bill

   Sec. 4110.

   In order to simplify and rationalize the analysis of accident data and provide a complete picture of the safety of motor carrier operations, subsection (a) requires the Secretary, in the course of determining the safety fitness of commercial motor vehicle (i.e., interstate) owners and operators, to consider the accident and inspection record of such owners and operators both on interstate and intrastate trips. In addition, owners and operators of commercial motor vehicles who are determined to be unfit and prohibited from operating in interstate commerce, are also prohibited by subsection (b) from operating commercial motor vehicles in intrastate commerce until they are able to demonstrate their fitness. Subsection (c) directs the Secretary to place all interstate operations of a motor carrier out of service if a State has placed out of service the intrastate operations of a carrier that has its principal place of business in that State.

   This subsection also provides the Secretary the authority to make grants to the States to conduct new entrant safety audits. This funding requires no State match; however, if the Secretary determines that a State is unable to use government employees to conduct these activities, the Secretary may utilize the funding to conduct new entrant audits with Federal resources.

   Sec. 4133.

   This provision permits DOT to determine whether a motor carrier or operator is fit to operate a commercial motor vehicle by considering their safety record while operating in interstate, intrastate, and Canadian and Mexican commerce.

   Senate Bill

   Sec. 7114.

   As defined in 49 U.S.C. 31132(1), a vehicle is not a CMV unless it operates in interstate commerce. One of the implications of the definition is that the Secretary's authority to determine the safety fitness of CMV owners and operators encompasses the accident and safety inspection record of such companies or individuals on interstate trips, but not on intrastate trips. Most interstate motor carriers also have substantial intrastate operations. For safety purposes, it is artificial and counterproductive to create two classes of accidents and safety inspection data (one subject to Federal jurisdiction, the other not) when both classes typically involve the same vehicles, drivers, dispatchers, mechanics, and safety management controls, and may be involved in the same kind of accidents or violations. In examining a motor carrier's accident and inspection data, it is often difficult, and sometimes impossible, to determine whether the vehicle involved was making an interstate or intrastate trip. This has produced significant variation and potential for inaccuracy in the accident rates and Motor Carrier Safety Status Measurement System scores calculated for motor carriers, and thus in DOT's ability to hold all carriers to the same standard. In order to simplify and rationalize the analysis of accident data and provide a more complete picture of the safety of motor carrier operations, subsection (a) would require the Secretary, in the course of determining the safety fitness of CMV owners and operators, to consider the accident and inspection record of such owners and operators both on interstate and intrastate trips. In addition, owners and operators of CMVs who are determined to be unfit and prohibited from operating in interstate commerce, also would be prohibited from operating CMVs in intrastate commerce until they are able to demonstrate their fitness. There is no good reason to allow an unfit interstate carrier to narrow its operations to a single State, and thus visit its safety deficiencies upon the residents of that State alone. Finally, the Secretary would be directed to place all interstate operations of a motor carrier out of service if a State has placed out of service the intrastate operations of a carrier that has its principal place of business in that State. A Federal safety determination that an interstate motor carrier is unfit would thus halt both its interstate and intrastate operations, while a State safety determination that an intrastate carrier is unfit will halt both its intrastate and any interstate operations.

   Conference Substitute

   The conference adopts the Senate General section and the House Prohibited Transportation and Determination of Unfitness by a State section.

   SEC. 4115. TRANSFER PROVISION

   House Bill

   No comparable provision in House bill.

   Senate Bill

   Sec. 7108.

   This section codified certain motor carrier regulation provisions in Title 49, United States Code.

   Conference Substitute

   The Conference adopts the Senate position with modification. The Conference agreed to transfer this provision to a section of the Motor Carrier Safety Improvement Act of 1999.

   SEC. 4116. MEDICAL PROGRAM

   House Bill

   Sec. 4107.

   This section requires FMCSA to establish a Medical Review Board to serve as a source of up-to-date medical advice for FMCSA on matters related to driver qualification rules, guidelines for medical examiners, and standards for medical exemptions under 49 U.S.C. 31315(b). This section also includes a provision to establish a five-member Medical Review Board to make recommendations on medical standards for commercial drivers, medical examiner education, and medical research.

   Senate Bill

   Sec. 7110.

   Section 110 would create a five-member Medical Review Board to provide FMCSA medical advice and recommendations on driver qualification medical standards and guidelines, medical examiner education, and medical research. The Secretary, with the advice of the Medical Review Board, would be required to develop medical standards for CMV drivers, requirements for periodic physical examinations, requirements for current valid medical certificates, courses for medical examiners, requirements for electronic transmittal of applicant and numerical identifier for any completed medical examination report, and to periodically review a representative sample of the medical examinations reports. Every CMV driver would be required to have a current valid medical certificate. A national registry of medical examiners would be established and only physicians listed on the registry could perform CMV driver physical exams and issue medical certificates.

   Conference Substitute

   The Conference adopts the Senate provisions with modifications. The Conference adopts the Senate provision establishing the Medical Review Board and the Chief Medical Officer with technical modifications. The Conference adopts the Senate provision on medical standards and requirements, but modifies the provision to require, at a minimum, self-certification by medical examiners to ensure they have completed required training in the physical and medical examination standards set by the Secretary of Transportation. The Conference does not adopt the Senate provision requiring the Secretary to issue medical certificates until such authority has been delegated to qualified medical examiners. The Conference adopts the Senate provisions creating the National Registry of Medical Examiners with a modification allowing the Secretary to make participation in the Registry voluntary if such a change will enhance the safety of operators of commercial motor vehicles. The Conference adopts the definition of ``medical examiner''.

   SEC. 4117. SAFETY PERFORMANCE HISTORY SCREENING

   House Bill

   Sec. 4127.

   In order to improve motor carrier safety, this provision requires the Secretary to provide companies conducting pre-employment screening services for motor carrier employers, electronic access to commercial motor vehicle accident reports involving a driver-applicant that are collected and maintained by FMCSA in its Motor Carrier Management Information System (MCMIS). The accidents reported to FMCSA must meet the accident definition found in 49 CFR 390.5.

   This provision also requires the Secretary to provide electronic access to roadside safety inspection reports involving a driver-applicant that resulted in a serious driver-related safety violation. This electronic access

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may be accomplished only after the prospective employer obtains written consent of the driver applicant. This safety compliance and performance information is unique to MCMIS and, therefore, is not found on any other national database. Prohibiting the release of this driver safety information unless expressly authorized or required by law protects driver privacy. The Secretary may require a fee from companies conducting pre-employment screening services to cover necessary administrative costs to implement this screening service.

   Senate Bill

   Sec. 7124.

   This section requires the Secretary of Transportation to provide electronic access of commercial motor vehicle accident report information and all driver safety violations contained in the Motor Carrier Management Information System to companies conducting pre-employment screening services for the motor carrier industry. The information released to these companies will require the written consent of the driver applicant, be in accordance with all Federal laws, and will ensure the information is only made available to an authorized company or individual. The use of this pre-screening process is not mandatory and may be used only during the pre-employment assessment of a driver-applicant.

   Conference Substitute

   The conference adopts the House approach.

   SEC. 4118. ROADABILITY

   House Bill

   Sec. 4128.

   This section directs the Secretary to initiate a rule-making to ensure that equipment used to transport intermodal chassis are safe. The rulemaking must be completed no later than 1 year after enactment of this bill and must address a way to identify the equipment owner, a civil penalty structure, a petition process, and an inspection system.

   Senate Bill

   Sec. 7127.

   This Senate provision would require the Secretary, not later than 1 year after enactment, to issue regulations establishing a program to ensure that intermodal equipment used to transport intermodal containers is safe and systematically maintained. The provision places the maintenance responsibility on the companies that provide the equipment and control the daily disposition of it. The provision would require the Secretary to promulgate certain regulations as a subpart of the regulations of the Federal Motor Carrier Safety Administration, including identifying intermodal equipment providers responsible for the inspection and maintenance of intermodal equipment and a requirement to match intermodal equipment to the equipment provider through a unique identifying number. A rulemaking proceeding for regulations under this section shall be established within 120 days after enactment of the Act. Under this section, any intermodal equipment determined under this section that fails to comply with applicable safety regulations may be placed out of service and the Secretary, or an employee of the DOT designated by the Secretary may inspect intermodal equipment and copy related maintenance and repair records. The provision preempts any law, regulation, order or other requirement of a State, political subdivision of the State, or tribal organization and defines several terms.