August 6, 2003

CHICAGO (Aug. 6)–In an extra effort to assure that House Bill 313 will protect the safety of railroad crews traveling in vans licensed outside the state, lawyers for Gov. Rod Blagojevich have inserted additional language to make sure the bill does not conflict with federal law.

H.B 313 passed the Illinois House of Representatives Feb. 21 by a vote of 106-0 and went on to pass the State Senate in a 60-0 vote May 9.

The bill was passed as a “cleanup” amendment to the 2001 Contract Carrier Safety Act, which brought commercially operated railroad crew vans under state safety regulation but did not cover vans licensed in states outside Illinois. H.B. 313 was drafted to close that loophole and make sure all Illinois crews were shuttled in inspected vans.

The attempt to regulate out-of-state vans raised a problem, however. The bill was awaiting Gov. Blagojevich’s signature when an alert member of his legal staff noted that H.B. 313 might conflict with the Interstate Commerce Clause of the U.S. Constitution. The “Commerce Clause,” as it is called by lawyers, reserves to the federal government the sole authority to pass laws regulating commercial transportation that crosses state lines.

“The Governor understood the problem immediately and instructed his legal staff to address it,” said UTU Illinois Legislative Director Joseph C. Szabo.

Szabo said the Governor’s team first tackled the problem through legal research..

“They agreed that a potential for a problem existed,” Szabo said. “They verified that the federal Motor Carrier Safety Administration regulations specifically exempt 15-passenger vans, such as those used to transport railroad crews, from federal safety inspections requirements. Because the federal government has the sole authority to regulate interstate commerce, federal law preempts any incompatible state law or regulation that could be construed as a burden on interstate commerce. And an Illinois law reaching into another state would pre-empt the federal government.

“But they also found that the federal government has not been using its powers where 15-passenger crew vans are concerned,” Szabo said. “Federal regulations do not require any type of safety inspections of these vehicles. It currently has no regulations covering this type of vehicle. Historically, when there’s a vacuum in federal law, states are free to fill it.”

Szabo said the Governor’s lawyers then attempted to fill the gap by drafting an “amendatory veto” consisting of 63 additional words needed to bring the legislation into compliance with existing federal regulation.

“The extra words eliminate the problem with the original language,” Szabo said. “The new language drafted by the Governor’s lawyers acknowledges that vehicles registered in another state are exempt from Illinois law–but only if the neighboring state is inspecting those vehicles itself using standards that are equal to or more stringent than those of Illinois. If neither the neighboring state nor the federal government is inspecting those vans, Illinois should be able to fill the vacuum with its own law.”

The third step taken by the Governor’s legal team was to draft a letter to Steve Mattioli, State Director of the Federal Motor Carrier Safety Administration–showing that such legislation is urgently needed and would not unnecessarily burden interstate commerce.

“Contract carriers transporting people in Illinois are aware of this loophole and utilize it to register their vehicles out of state,” Governor’s Counsel Sheri Klintworth wrote to Mattioli July 24. “Since January 2002, IDOT has received over 100 complaints from employees who have been transported in unsafe vehicles that were registered outside the State of Illinois and which IDOT has therefore been powerless to regulate.”

Szabo said it was UTU member action that put the issue on the Governor’s radar screen.

“Most of those complaints came from UTU members who documented unsafe contract-carrier vehicles or drivers and forwarded their observations to the Illinois Legislative Board for action,” Szabo said. “That’s why the Governor’s office is working so energetically on this problem: Our members chose to get involved by documenting how contract carriers are exploiting this legal loophole to put unsafe vehicles and drivers on the street. The alarm sounded by concerned UTU members is what brought the Governor into the fray.”

Ultimately, Szabo said, there is a need for the federal government to become more involved.

“The most effective way to resolve this problem would be to legislate safety criteria for these vehicles on a federal leve,.” he said.

Klintworth agreed.

“The problem is, the other states really should be legislating in this area,” she told “Hot Topics.” “Federal law doesn’t go far enough either.”

Klintworth noted, however, that if the Governor signs a bill into law that is incompatible with federal regulations, the courts would construe such an act as state pre-emption of a right reserved to the federal government. If Illinois tries to pre-empt federal law, she said, the state could lose up to $6.5 million per year that the federal government currently provides for the Motor Carrier Safety Assistance Program.

“That program helps the State Police do on- and off-road inspections and pays the salaries of IDOT’s compliance officers,” Klintworth said. “We wouldn’t want to pass a sign a bill into law that would conflict with federal law and jeopardize that funding.”

The only answer, she said, was to add new language making to H.B. 313 to assure the federal government that the law will be implemented in such a way as to be compatible with federal law while continuing to preserve the safety benefits of the bill to the greatest extent possible. The new language is structured to show the FMCSA that H.B. 313 is non-pre-emptive and that a need for legislation existed

The Governor filed his amendatory veto message on Friday. The changes provide that Illinois will recognize the safety inspections of other states, where the standards set forth in those states are no less stringent than in Illinois. Moreover, the Governor added language noting that the law would be enforced to the extent possible without jeopardizing federal funding.

Klintworth said the Governor’s office is still awaiting a response from Mattioli. Szabo said the response from Governor Blagojevich has been very encouraging.

“I doubt whether any of his predecessors would have taken such an activist approach to this kind of legal loophole,” Szabo said. “But Rod Blagojevich and the UTU have enjoyed a positive relationship dating back to his first campaign for Congress, and the UTU was the first organization to endorse him when he announced his run for governor two years ago. He clearly understands workplace-safety issues, and he clearly has gone the extra mile for those UTU members who stepped forward and documented the risks they were being subjected to by unsafe shuttle vans registered outside the state. We deeply appreciate his efforts on our members’ behalf.”