The Massachusetts Senate election in January sent the pundits scrambling to predict what is next. Post-election polls revealed a highly volatile and angry electorate—a combination that means anything can happen. Despite the political turmoil in Washington, D.C., the International Warehouse Logistics Association (IWLA) continues our efforts to advocate on behalf of members and warehouse-based third-party logistics (3PL) providers. Following is an overview of four important issues on IWLA’s 2010 Government Affairs Agenda.

Labor Law. With the election in Massachusetts, the AFL-CIO fell even further shy of the 60 Senate votes needed to pass the Employee Free Choice Act (EFCA). However, several senators continue to circulate possible EFCA “compromises” that could attract the requisite 60 votes. The two most controversial compromise proposals involve instant elections and expanding union access to employees during the workday. Other aspects of labor law reform could also slip through the legislative process. Meanwhile, the National Labor Relations Board may use its authority to adopt labor law reforms, such as “quickie” elections to certify a bargaining unit.

Food Safety. Food safety legislation has passed in the House (HR 2749) and is pending in the Senate (S 510). In general, the legislation does a good job of adopting a risk-based approach in a heightened effort to achieve a safe food supply chain, but it is not perfect. IWLA is seeking a change to the section of the Senate bill that covers recall of food products. In S 510, when a food product is determined to be adulterated or misbranded, the Food and Drug Administration (FDA) is authorized to notify the “responsible party” to voluntarily recall or cease distributing the product. If not, the FDA can order a mandatory recall.

IWLA’s only quarrel with this provision is the definition of “responsible party,” which is any food facility where food is manufactured, processed, packed, or held. Under this broad definition, responsibility for initiating a recall could fall on a warehouse-based 3PL who physically receives and ships the product strictly at the direction of the customer. In effect, the 3PL could be required to notify recipients with whom it does not have a legal relationship and to take action that is beyond the scope of its authority, since the warehouse has no ownership interest in the product as would a manufacturer, wholesaler-distributor, or retailer.

Rail. The Senate Committee on Commerce, Science, and Transportation passed legislation (S 1889), which would revamp the Surface Transportation Board (STB) and address various issues affecting railroad carriers and shippers to the full Senate. Current law provides little authority to the STB with respect to demurrage and makes parties that rely on the rail system, such as 3PL warehouses, vulnerable to unsubstantiated demurrage charges. IWLA is asking Congress to consider amending federal law to clarify that demurrage charges would not apply to a 3PL when the 3PL is neither the shipper nor consignee of a shipment for which a demurrage charge is computed and the 3PL is not a party to or beneficiary of any transportation contract between the shipper and consignee.

Ports. Several major U.S. ports, including the Ports of Los Angeles, Long Beach, and Seattle, have launched Clean Truck Programs aimed at reducing diesel emissions of trucks entering the port terminals. IWLA strongly supports the goals of these Clean Truck Programs; however, some special interests are now seeking to re-write longstanding federal trucking rules codified in the Federal Aviation Administration Authorization Act under the guise of the clean trucks initiatives. IWLA and others have urged Congress and the Obama Administration to oppose these efforts as detrimental to interstate commerce.

This campaign by labor is aimed at persuading Congress to grant authority to local governments to regulate the harbor drayage industry to address environmental and port security matters, thereby eliminating the federal preemption of state and local regulation of interstate commerce. While IWLA strongly supports efforts to improve air quality and port security in and around America’s ports, the effort to undermine federal preemption of interstate commerce is highly detrimental to commerce and represents an attempt by labor unions to overturn unfavorable federal court decisions restricting local regulation of truck drayage services. wt



Patrick O’Connor is president of Kent & O’Connor and serves as IWLA’s D.C. representative.