September 28, 2004

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Headline News

• PTDI Represented at Department of Labor Forum, Stresses Importance of Curriculum
• TCA Responds to Public Citizen, Supports HOS Stay
• Independent Contractors Can Feast on Bigger Meal Deductions
• RSPA Adds HM Definition, Requests Comments
• Schumer Amendment Defeated, TCA Opposed the Legislation
• FMCSA Wants Your Safety Input

PTDI Represented at Department of Labor Forum, Stresses Importance of Curriculum

TCA representatives attended a Department of Labor Transportation Industry Executive Forum in Washington , D.C. on September 14, 2004 . The Forum, which featured Department of Labor Assistant Secretary Emily Stover DeRocco, focused on workforce issues facing the transportation sector and how the programs and services available through the public workforce system could support the transportation industry to address those needs. Forum discussion topics included challenges facing the transportation industry workforce, especially the extensive truck driver shortage. Chris Burruss, Nancy O'Liddy, and Ginny DeRoze represented TCA at the event and stressed the PTDI-developed curriculum as an answer to industry's driver shortage. More focus groups are planned to address transportation workforce issues and PTDI will continue to stress the importance of its training curriculum, and the dollars needed for training.

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TCA Responds to Public Citizen, Supports HOS Stay

On September 21, a joint filing was officially submitted to the U.S. Court of Appeals for the D.C. Circuit by the “intervenors” -- TCA, ATA and the Distribution and LTL Carriers -- in direct response to the September 13 filing by the Public Citizen group (the petitioners) on the hours of service (HOS) court case. The intervenors initial argument stated that the Court has the authority to “stay” the mandate until a new rule is issued. To this point from the joint brief, “As a threshold matter, petitioners are wrong in accusing us of seeking a change in the remedy…. We were fully aware that the Court made a considered judgment, consistent with precedent, to remand and vacate and we are not seeking reconsideration of that remedy. To the contrary, our motion seeks merely to stay the imposition of the remedy in order to prevent irreparable harm to the trucking industry, decreases in safety (if the old HOS rules are revived), and severe disruption and chaos in the economy and law enforcement…. We are asking for a stay of the mandate, not reconsideration of the remedy in this case.”

A day earlier, in response to Public Citizen as well, the Federal Motor Carrier Safety Administration (FMCSA) filed another brief with the Court. An excerpt from this document reads as follows, “Petitioners oppose the motions, urging an immediate return to the old HOS rule, which remains largely unchanged since the 1930s, on the grounds that such a stay would be unprecedented, inconsistent with the Court's rules, and unnecessary…. Petitioners are incorrect on all counts. A stay of the mandate is consistent with this Court's procedures and past practices. Moreover, such a stay is necessary to avoid substantial interference with enforcement of the HOS requirements, and petitioners' argument to the contrary reflects a fundamental misunderstanding of the nature of the harm and a persistent misconstruction of the statutes and regulations governing enforcement of those requirements.” In their September 13 filing, Public Citizen had stated their opposition to any type of a “stay.” While strongly urging against the issuance of a “stay”, they did however state that if the Court was inclined to decide for a “stay”, Public Citizen proposed a defined period of no longer than 90 days.

To summarize, all briefs have now been filed, and a “rapid decision” by the Court is still anticipated. The “new” HOS rules will continue to remain in place for at least the period of time it takes the Court to address all of the respective filings. By way of review, other filers include the National Industrial Transportation League (NITL), the Commercial Vehicle Safety Alliance (CVSA) and the Owner-Operators Independent Driver's Association (OOIDA) – all of who have submitted filings in support of a “stay” of the Court's mandate. In their initial filing, the FMCSA proposed a “stay” of 6 months for the agency to assess how long it would take to develop a new HOS rule and to administrate and enforce such rules.

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Independent Contractors Can Feast on Bigger Meal Deductions

The Dart Advantage Newsletter recently reported that professional drivers subject to Federal Hours of Service regulations can deduct more of their meal costs in 2004. The allowable deduction rose from 65% to 70% of cost, subject to a 2% limit of adjusted gross income. The limit will rise to 75% in 2006 and 80% in 2008. For more information drivers should consult their tax advisor or visit the FMCSA website at http://www.fmcsa.dot.gov/.

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RSPA Adds HM Definition, Requests Comments

The Research and Special Programs Administration (RSPA) issued a Notice of Proposed Rulemaking (NPRM) in the September 24, Federal Register that is proposing to add to the Hazardous Materials Regulations (HMR) a definition for “person who offers or offeror” in order to codify long-standing interpretations on the applicability of those regulations (Docket HM-223-A).

In their proposal, the agency proposes to define “person who offers” or “offeror” to mean any person who performs, or is responsible for performing, any of the pre-transportation functions required under the HMR for transportation of a HM; tenders or makes a HM available to a carrier for transportation in commerce; or both performs, or is responsible for performing, pre-transportation functions and tenders or makes a HM available to a carrier for transportation. Under the proposed definition in the NPRM, a carrier that transfers, interlines, or interchanges HM to another carrier for continued transportation is not an “offeror” when it does not perform any pre-transportation functions. In addition, in the NPRM, §171.2 of the HMR would be amended to make clearer that:

• There may be more than one “offeror” of a shipment of HM;
• Each “offeror” is responsible for complying with the requirements of the HMR with respect to any pre-transportation function that it performs or is required to perform;
• For a shipment involving more than one “offeror,” each “offeror” may rely on information provided by another “offeror” unless the “offeror” knows or, in the exercise or reasonable care, should know that the information is incorrect. In a similar manner, a carrier may rely on information it receives from an “offeror” or a prior carrier, unless the carrier knows or, in the exercise of reasonable care, should know that the information is incorrect.

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Schumer Amendment Defeated, TCA Opposed the Legislation

On September 13, the United States Senate tabled the Schumer amendment to the Department of Homeland Security (DHS) appropriations bill that would have required trucks transporting hazardous materials (HM) to be equipped with global positioning satellite tracking devices (GPS) and mandated route plans to be prepared and filed with the agency prior to transporting HM. The amendment would also have required DHS to expand background checks to all Commercial Driver's License (CDL) holders. The amendment, which was introduced by Senator Charles Schumer, (D-NY) on September 9, was tabled by a vote of 55 to 34. The DHS Appropriations bill will now go to Conference with the House of Representatives.

In response to initial lobbying by the trucking industry, which included TCA and a number of other industry trade associations including ATA, Schumer modified his amendment by removing language requiring the establishment of an identification and tracking system for HM trucks and mandating background checks for all CDL holders. It is also worth noting, that the ATA continues to oppose modified language in the revised amendment, which provided funds for the TSA to “support efforts to identify and track shipments of HM and continue to expand upon the background check system for CDLs with an HM endorsement.”

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FMCSA Wants Your Safety Input

In the August 24 issue of the Truckload Carrier Report, TCA had reported to you that the Federal Motor Carrier Safety Administration (FMCSA) had issued an August 20 Federal Register notice announcing the scheduling of a series of public listening sessions to solicit input on ways the agency can improve the process of monitoring and assessing the safety of the nation's motor carriers and ensure their compliance with federal regulations. The multi-year review project, known as the Comprehensive Safety Analysis 2010 initiative, started on September 21 with Session #1 in San Diego , which will be subsequently followed by a series of five more public listening sessions. The agency will ask the motor carrier industry, insurance and safety advocacy groups, traffic enforcement professionals and the general public for their views on the ideal ways to measure the safety of truck and bus operations and take effective action. The FMCSA is seeking to improve the way it monitors and assesses the safety of the motor carrier industry and ensures compliance by all highway users with Federal rules.

TCA is encouraging your participation in this upcoming series of public listening sessions, and we will be attending session number five in Falls Church , VA on October 19 th as well. All of the listening sessions will be held from 9:00 a.m. until 4:00 p.m. at the following dates and locations:

• Session 1 : September 21, 2004 – Doubletree Hotel, Mission Valley , 7450 Hazard Center Drive , San Diego , CA
• Session 2 : September 28, 2004 – Sheraton Atlanta , 165 Courtland Street at International Boulevard , Atlanta , GA
• Session 3 : October 5, 2004 – Hampton Inn & Suites, Dallas/Mesquite, 1700 Rodeo Drive, Mesquite , TX
• Session 4 : October 12, 2004 – Wyndham Chicago, 633 North St. Clair, Chicago , IL
• Session 5 : October 19, 2004 – Fairview Park Marriott, 3111 Fairview Park Drive , Falls Church , VA
• Session 6 : October 26, 2004 – Sheraton Springfield , One Monarch Place , Springfield , MA

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