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August
31, 2004
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Headline
News
PTDI Sends Letter of Support for Ontario Trucking Apprenticeship
The
Professional Truck Driver Institute (PTDI) forwarded an August 20 letter
to the Apprenticeship Board of the Ontario Ministry of Training with
an official endorsement of their proposal to designate truck driving
as an apprenticeship trade in Ontario, Canada. Ray Haight, PTDI’s
Chairman stated in the letter, “We at PTDI believe that the concept
of a voluntary unrestricted apprenticeship program is an excellent way
to develop the skills of truck drivers entering the industry.”
PTDI’s interest
in this apprenticeship initiative extends to the development of professional
truck drivers. The Institute cites the fact that recruiting and retaining
quality drivers has become probably the greatest challenge that truckload
carriers currently face – particularly in light of the “new”
hours of service rules, which have tightened capacity in the truckload
segment to extremely high levels.
PTDI, therefore,
believes that the best way to train an individual to become a successful
and safe driver is to start with a solid foundation (i.e. entry-level
training) followed by “hands-on” instruction delivered by
experienced drivers. That said, Chairman Haight stated, “the PTDI
driver-finishing program would be the model used for this program, and
to this point, we would like to have the PTDI standards endorsed by
your Board.” In closing, it was posed that should this apprenticeship
initiative move ahead, that PTDI would be pleased to support the Industry
Council that will be established to advise the Director of the Apprenticeship
Board.
It should also be
noted that the Owner-Operators Business Association of Canada and the
Career Shift Magazine in Ontario formally endorsed this apprenticeship
program earlier this year as well. For information on this issue, please
contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org
or Kim Richardson at (905) 765-3445 or email: krichard@krway.com.
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FMCSA to Manage Motor Carrier Financials
The Department of
Transportation (DOT), Office of the Secretary (OST) issued a Final Rule
in the August 17 Federal Register, which announced the transfer
of the responsibility for the Motor Carrier Financial and Operating
Statistics program from the Bureau of Transportation Statistics (BTS)
to the Federal Motor Carrier Safety Administration (FMCSA). This transfer
will take effect on September 29, 2004, and will impact those motor
carriers that are required to file “Form M”, the mandated
annual and quarterly financial reports.
By way of background,
the now defunct Interstate Commerce Commission (ICC) collected financial
and operating statistics from regulated motor carriers from the 1930s
until the end of 1995, when the agency was abolished and this data collection
responsibility was transferred to the DOT. In November 2002, TCA petitioned
the Secretary of Transportation to issue a general exemption from the
mandatory financial reporting requirements for all motor carriers. Subsequently,
the OST invited the public to comment on the TCA petition. In October
2003, TCA, as well as several truckload and other motor carriers filed
comments in this docket in support of the general exemption. To date,
however, OST has not acted on the TCA petition. The transfer of the
function, however, indicates the issue is not dead and raises the possibility
that the Secretary will take further action on it. It is likely that
such action would be in the form of a rulemaking seeking further comments
on the TCA proposed exemption. If this occurs, TCA intends to file further
comments supporting a complete exemption for our industry from the mandatory
financial reporting requirements.
The transfer of
the function to FMCSA raises new concerns and increases the importance
of eliminating the mandatory reporting requirement. Unlike BTS, the
FMCSA has an enforcement arm. That means that in the future those motor
carriers that have not been filing the mandated annual and quarterly
reports could expect enforcement action from the agency. A carrier’s
compliance with the filing requirement could even become part of a standard
FMCSA compliance audit. The Act provides for fines that could range
as high as $10,000 per report. Since Class I carriers must file four
quarterly and one annual report a year, that means that potentially
the fines for a single carrier could be as high as $50,000 for each
year of non-compliance.
Please contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org
with any thoughts or comments on this issue. A copy of the August 17
Register notice can be found by clicking
here for a PDF and here
for an HTML. In addition, a copy of TCA’s original petition
which was prepared by Ken Siegel of Strasburger & Price can be accessed
by clicking
here.
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Important
Information on Whistleblower Procedures Releases, Must Be Included in
Entry Level Driver Training
The Occupational
Safety and Health Administration (OSHA) issued a Final Rule in the August
24, 2004 Federal Register, establishing procedures for the
handling of whistleblower complaints under the Corporate and Criminal
Fraud Accountability Act of 2002, also known as the Sarbanes-Oxley Act,
one of the 14 laws with whistleblower protections administered by OSHA.
This law was originally enacted on July 30, 2002, to protect employees
in publicly traded companies and their contractors, subcontractors or
agents from retaliation for providing information that an employee believes
is a violation of a Securities and Exchange Commission rule or other
federal law relating to fraud against shareholders.
This rule establishes
procedures for the expeditious handling of discrimination complaints
made by employees or by persons acting on their behalf. Included in
the rule are procedures for submitting complaints under the Sarbanes-Oxley
Act, investigations and issuing findings and preliminary orders. A major
portion of the rule details litigation procedures and how one can object
to the findings and request a hearing. The final portion of the rule
discusses miscellaneous provisions including withdrawals of complaints
and settlements and judicial review and enforcement.
One of the reasons
that the whistleblower protection issue has taken on an added importance
is that on May 21, 2004, the FMCSA issued a Final Rule on the mandatory
training requirements for entry-level drivers who are required to hold
or obtain a CDL. The FMCSA is requiring these drivers to receive training
in the following areas:
1) driver qualifications—medical,
and drug and alcohol testing,
2) driver hours of service limitations;
3) driver wellness; and
4) whistle blower protection.
The effective date
of this rule was July 20, 2004, however, §380.500 provides a “grace
period” for training certain individuals as follows: “each
employer must ensure that each entry-level driver who first began operating
a CMV between July 20, 2003 and October 18, 2004, has received the required
training no later than October 18, 2004.
OSHA announced around
a month ago the launching of their brand-new web page: [www.osha.gov/dep/oia/whistleblower/index.html]
devoted to providing a single source for obtaining detailed information
on the laws with whistleblower protections that are administered by
the agency. The new web page consolidates a variety of whistleblower
information previously available on the website, and supplements that
with access to other resources, including the Office of Administrative
Law Judges, and the Administrative Review Board. In addition, the web
page includes direct links to the 14 laws with whistleblower protections
administered by OSHA.
A copy of the August
24 Register notice can be found by clicking
here for a PDF and here
for an HTML. For further questions or comments on this issue, please
contact TCA’s Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org.
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Revised
Compliance Schedule for Enforcement of Aspects of Bioterrorism Act of
2002
The U.S. Food and
Drug Administration (FDA) and the U.S. Customs and Border Protection
Agency (CBP) announced in the August 16, 2004 Federal Register
the availability of a revised compliance policy guide (CPG) that describes
their strategy for enforcing the requirements of the prior notice interim
final rule (IFR) while maintaining an uninterrupted flow of food imports.
The prior notice provision in the Bioterrorism Act of 2002 gives the
FDA advance information of imported food shipments. This allows that
agency to target inspections more effectively and helps to ensure the
safety of imported food products before they enter domestic commerce.
The FDA and CBP began receiving prior notices on December 12, 2003,
when the Prior Notice IFR became effective and since February 2004,
have been receiving around 160,000 prior notice submissions per week.
According to the
CPG, the FDA and CBP began enforcing fully all provisions of the prior
notice IFR on August 13, 2004, with the exception of the following violations:
- The registration
number submitted for the manufacturing facility is inaccurate or is
invalid;
- The registration
number for the shipper is not provided;
- The Airway Bill
number or Bill of Lading number is not provided or is invalid; and
- The name and
address of the ultimate consignee is inaccurate because it contains
the name and address of the express consignment operator or consolidator
instead of the ultimate consignee.
For these violations,
the two agencies generally will continue to exercise enforcement discretion
until November 1, 2004, unless the violation reflects a history of the
repeated conduct of a similar nature by a person who had been notified
of such violations.
The revised CPG
also states that the two agencies will exercise enforcement discretion
for prior notices that fail to include a required manufacturing facility
registration number, if the food imported or offered for import is for
quality assurance, research or analysis purposes only (i.e. not for
human or animal consumption and not for resale). FDA and CBP initially
published the CPG in late 2003, and revised it in June 2004, to include
additional guidance regarding food imported or offered for import for
non-commercial purposes with a non-commercial shipper. Enforcement discretion
for these shipments continues under the revised CPG.
The two agencies
are also announcing a corresponding three-month delay in their projected
date for issuing the prior notice final rule from March 2005 to June
2005. This will allow both the FDA and CBP to retain the three-month
assessment period to determine whether the prior notice time frames
can be reduced further as they develop the prior notice final rule.
The Prior Notice
can be obtained by clicking
here. In addition, the Revised
Compliance Policy Guide can be viewed here, the Revised
Joint Plan here , and the Prior
Notice contingency Plan here . For further questions or comments,
contact Rich Clemente at (703) 838-8847 or email: rclemente@truckload.org.
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