Federal Agencies Funded Through March 4, 2011; SAFETEA-LU Also Extended to March 4, 2011; Funding for Remainder of FY 2011 Remains Uncertain

In the final hours of the 111th Congress in late December, Congress passed a Continuing Resolution (CR) that funded all federal agencies, including the Department of Transportation and FMCSA, through March 4, 2011 at 2010 funding levels. Earlier efforts to pass a regular appropriations bill funding the government for the remainder of the 2011 FY did not succeed.

While the short-term CR avoided an immediate shutdown of the government, the fact that it is just a temporary measure, along with the fact that SAFETEA-LU was only extended to March 4 as well*, creates a level of funding uncertainty for states as they try to administer an annual program such as MCSAP and other state safety programs.  This is the 6th extension of SAFETEA-LU resulting thus far in 6 incremental funding allocations for the states with at least one more incremental allocation due by March 4.  By March 4, well into the 2011 FY, the states will have received only 42.5% of funds approved at 2010 levels.

This CR did not renew the Maine/Vermont truck weight pilot program. It is not known at this time whether this issue will be considered as a part of legislation that will supersede the current March 4 CR.

Recent House Rules Change Creates Further Uncertainty for FY 2011 Funding

As one of the first orders of business, the newly assembled House of Representatives has adopted a new rule that in effect repeals the so-called Highway Trust Fund “firewall” that was adopted by the House in 1998.  The “firewall” prohibits Congress from funding highway, transit, and highway safety programs at levels below those written into law by any Transportation authorization bill.

Supporters of the new rule say it is intended to prevent the government from being forced to spend more on surface transportation programs than the Highway Trust Fund collects.  This has actually happened in the last few years.  On the other hand state transportation departments point out that they can no longer be assured that they will receive authorized federal funding levels when yearly appropriations bills are enacted. The number of CR’s passed in the last few years has already created uncertainty even under the “firewall” protection.

The rule change could further impact funding levels for FY 2011 for FMCSA and MCSAP programs along with other state safety grant programs that are funded out of the Highway Trust Fund. The new House Leadership has said that their goal is to fund all government agencies and departments at 2008 funding levels.  It is important to keep in mind that the series of CR’s thus far in this Fiscal Year have been providing funding at 2010 levels that are the highest authorized levels under SAFETEA-LU.

Should the new Congress follow through on their 2008 spending level goal, it could mean that funding available for safety programs from March 4 to September 30 of this year would be less than the 2010 rate of funding states are now receiving in order that by September 30, the total amount of funds received by the states for FY 2011 would be consistent with 2008 funding levels, not the current 2010 levels. For example, the current level for MCSAP which is the highest authorized limit under SAFETEA-LU is $209 million.  The 2008 authorized limit is $202 million.  FMCSA operational programs would suffer at least a cut of $6 million. While relatively small cuts, they come at a time when both states and FMCSA need additional resources to implement such programs as CSA. In its FY 2011 budget request to Congress, FMCSA had requested an additional $20 million to help with the implementation of CSA.  It should be stressed that the new Congress has not yet drafted specific legislation that would supersede the current CR.  Also, it is not known if highway safety programs would be exempt from the funding cuts necessitated by going back to the 2008 program levels.

Prospects for a Long-term Transportation Reauthorization Bill

As reported in earlier Legislative Updates, incoming House Transportation and Infrastructure Chairman, John Mica, has given every indication he intends to write a new Reauthorization bill in his Committee early this spring with a goal of reporting such a bill to the House floor by summer.  Chairman Mica’s record of service on the Committee he now chairs leaves no doubt about his strong commitment to the nation’s surface transportation infrastructure and highway and motor carrier safety. Also, he argued against the House rules change noted above.

With an increase in the federal fuel tax apparently off the table, Mr. Mica’s bill would probably not be able to fund programs much above SAFETEA-LU levels.  However, since he says he would emphasize core highway and safety programs and not various other “enhancement” programs, the list of which has grown immensely in recent Reauthorization bills, some additional funding might be freed up.  In addition, special earmarks and projects would be sharply reduced.  Also, he mentions leveraging federal dollars with public/private partnerships.

Even though a gas tax increase is still of off the table, it should be pointed out that President Obama’s Commission for debt reduction did recommend an increase in the gas tax starting in 2013 in order to prevent any further general fund bailouts of the Highway Trust Fund.  This recommendation is but one small part of a package that would bring about more general tax reform and spending reductions.  Congress may, or may not, seriously consider the many recommendations in the Commission’s report, but there is always a possibility.

Also, no one can predict how a new Transportation bill, however modest, will be viewed by the 20 new Members of Mr. Mica’s Committee as well as the new House Leadership.

By any measure, a Transportation bill is still a major piece of legislation—a “big bill”—and most of the 90 plus newly elected Members of Congress pledged in their campaigns last fall to scale down existing government programs and not to enact any new “big” bills.  However, as they learn that a Transportation bill will be largely paid for out of the Highway Trust Fund, and that it will promote economic growth as well as public safety, it could turn out that if the new Members were to support any new legislation, a Transportation bill might be the one.

It is also necessary to look at the Senate side in this discussion.  The Senate Leadership and Committee Chairmen will not change in the new Congress.  Environment and Public Works Chairman, Senator Boxer (D-CA) has committed to reporting a new bill out of her Committee.  Commerce Committee Chairman, Senator Rockefeller (D-WV) and Surface Transportation Subcommittee Chairman, Senator Lautenberg (D-NJ), have committed to writing a new highway and motor carrier safety title of a Reauthorization bill.

All things considered, there is at least a chance for a new bill in 2011.  We won’t really know until probably next month.

Stand Alone Safety Bill

In the event a Reauthorization bill does not pass both the House and Senate by next summer, the conventional thinking is that such a bill would not be taken up again until 2013, since 2012 is a Presidential election year, an unlikely time for passage of a major transportation bill.  Should that be the case, there is a possibility that Congress would take up a stand-alone safety bill covering motor carrier and highway safety.  This would be a rare occurrence, although the Motor Carrier Safety Improvement Act of 1999 is one such example.  That bill created FMCSA and almost doubled MCSAP funding.

Appropriations Route

Short of either a full scale Reauthorization bill, or a separate safety bill, there may be efforts to press the House and Senate Appropriations Committees to consider some of the more pressing safety issues that are ordinarily under the jurisdiction of the authorizing Committees.  A recent example has been the Maine/Vermont truck weight pilot program.  Also, in recent years, all issues pertaining to NAFTA have been dealt with in Appropriations bills.

Major Safety Issues

Whether a full Reauthorization bill, a separate safety bill, or an appropriations bill, some of the key safety issues for consideration are as follows:

Size and Weight

Even though the Maine/Vermont pilot truck weight pilot was not renewed in the series of CR’s passed by Congress in lieu of a full appropriations bill, the pilot has been a catalyst for hopefully a more comprehensive review of this country’s overall size and weight policy.  It provides CVSA with an opportunity to press for a comprehensive pilot program that will yield much needed safety data which is fundamental to any size and weight analysis and any change in current size and weight national standards.

In addition, CVSA will press for a resolution of the size and weight enforcement funding issue. State enforcement agencies need funds to carry out their size and weight enforcement responsibilities.  Size and weight enforcement that is not tied to an inspection is not an eligible MCSAP expense, nor is labor an eligible expense under the Federal–Aid Program.

Bus Safety

In the closing days of the last Congress, a bus safety bill had been “hotlined” for a vote on the Senate floor.  Procedural issues in the Senate prevented a vote, but the pressure to pass a bus safety bill remains strong.

Electronic-On-Board-Recorders

Senators Pryor (D-AK) and Alexander (R-TN) introduced a bill in the last Congress mandating the use of EOBR’s.  CVSA has organized an ad-hoc Committee to review the bill and is also participating in a task force of manufacturers and trucking industry representatives to also review the bill and provide feedback to Senators Pryor and Alexander. The use of EOBR’s has taken on added importance in light of FMCSA’s new hours-of-service proposal.

Safety Technology Bill

The “Truck Safety Technology Tax Incentive Act” which CVSA has been actively supporting has a good chance of being considered if a Reauthorization takes shape.  The trucking industry supports the bill.

Exemptions from Federal Motor Carrier Safety Regulations

A top priority of CVSA has been to sunset existing industry safety exemptions and to establish regulatory procedures for granting them as prescribed in Section 31315, Title 49, U.S. Code.  Topping the list are the various hours-of-service exemptions provided to the agricultural and utility industries.  CVSA’s discussion of this issue with the Senate Commerce Committee staff has already resulted in a Committee request to GAO to review this issue and catalogue all of the exemptions both in statute and in regulations that have been enacted since the 1950’s.  Such a review should show the magnitude of the problem and the need to find ways to resolve it.

*Our apology for reporting in the December 21st Legislative Update that SAFETEA-LU had been extended to September 30, 2011 in the March 4 CR.  The actual language of the CR was not on-line at the time of the Update and we relied on the best sources available. It wasn’t until the week after Christmas that we learned of the new revised extension date.