U.S. Legislative Updates

The U.S. Court of Appeals for the Seventh Circuit has vacated the Federal Motor Carrier Safety Administration's (FMCSA) final rule approving use of electronic on board recorders (EOBRs) on trucks operated by certain motor carriers. EOBRs are devices intended to track the movement and duty status of drivers operating commercial motor vehicles. The federal appeals court found that the final rule was "arbitrary and capricious" because FMCSA failed to include provisions ensuring that motor carriers do not use these electronic tracking devices to harass drivers. The rule was challenged by the Owner Operator Independent Drivers Association, Inc.


The National Transportation Safety Board (NTSB) has recommended that the Federal Motor Carrier Safety Administration (FMCSA) and state regulators prohibit the use of both handheld and hands-free cellular telephones by all commercial drivers’ license holders while driving in commercial operations, except in emergencies.  Citing distraction from the use of a mobile phone by the driver of an 18-wheel semi truck as the probable cause of a crash that killed 11 people, the NTSB recommended banning the use of mobile phones by commercial drivers except in emergencies.

"Distracted driving is becoming increasingly prevalent, exacerbating the danger we encounter daily on our roadways," said NTSB Chairman Deborah A.P. Hersman. "It can be especially lethal when the distracted driver is at the wheel of a vehicle that weighs 40 tons and travels at highway speeds."

On March 26, 2010, at about 5:14 a.m. CDT, near Munfordville, Kentucky, a truck-tractor semitrailer combination unit driven by a 45-year-old male departed the left lane of southbound Interstate 65, crossed a sixty-foot-wide median, struck and overrode a cable barrier system, entered the northbound travel lanes, and struck a fifteen-passenger van, driven by a 41-year-old male and occupied by eleven passengers (eight adults, two small children, and an infant). The truck driver and ten of the twelve occupants of the van were killed.

Investigators determined that the driver used his mobile phone for calls and text messages a total of sixty-nine times while driving in the 24-hour period prior to the accident. The driver made four calls in the minutes leading up to the crash, making the last call at 5:14 a.m. CDT, coinciding with the time that the truck departed the highway.


The National Transportation Safety Board (NTSB) has recommended that the National Highway Traffic Safety Administration (NHTSA) develop stability control performance standards for all commercial motor vehicles and buses, and then require their installation. NHTSA has been evaluating the effectiveness of electronic stability controls for commercial vehicles and buses and is anticipated to release a proposed rule later this year.

The NTSB recommendations are the result of an investigation of a 2009 rollover crash of tractor-trailer carrying 9,000 gallons of liquefied petroleum gas. NTSB investigators determined that the probable cause of the crash was the driver’s excessive, rapid, and evasive steering maneuver.


After postponing the release date of new ground ozone standards multiple times this summer, the Environmental Protection Agency (EPA) has withdrawn its draft Ozone National Ambient Air Quality Standards at the request of President Barack Obama.

In 2008, the ground ozone standard was set at seventy-five parts per billion (ppb); in early 2010, the EPA proposed a range between sixty and seventy parts-per-billion. The draft rule was part of the effort to finalize a threshold within that range. In a letter dated Sept. 2 written to EPA Administrator Lisa Jackson, Cass Sunstein, Administrator of the Office of Information and Regulatory Affairs, states the president has asked the proposed rule be returned for reconsideration, as "he has made it clear that he does not support finalizing the rule at this time."


Legislation has been introduced in the House and Senate to extend the biodiesel tax credit through December 31, 2014.  Currently, the biodiesel credit is set to expire on December 31, 2011.  The Biodiesel Tax Incentive Reform and Extension Act of 2011 (S. 1277 and H.R. 2230) is sponsored in the Senate by Senators Maria Cantwell (D-WA.) and Charles Grassley (R-IA) and in the House by Representatives Aaron Schock (R-IL) and Collin Peterson (D-MN).


The Internal Revenue Service (IRS) has issued guidance designed to clarify the tax treatment of employer-provided cell phones.  The guidance relates to a provision in the Small Business Jobs Act of 2010, enacted last fall, that removed cell phones from the definition of listed property, a category under tax law that normally requires additional recordkeeping by taxpayers.

The Notice issued provides guidance on the treatment of employer- provided cell phones as an excludible fringe benefit. The Notice provides that when an employer provides an employee with a cell phone primarily for non-compensatory business reasons, the business and personal use of the cell phone is generally nontaxable to the employee. The IRS will not require recordkeeping of business use in order to receive this tax-free treatment.

Simultaneously with the Notice, the IRS announced in a memo to its examiners a similar administrative approach that applies with respect to arrangements common to small businesses that provide cash allowances and reimbursements for work-related use of personally-owned cell phones.

Details are in the memo and in Notice 2011-72.