Reauthorization Process Begins Again with House Passage of a New Bill

On Thursday, March 10, the House passed HR 3, a bill that authorizes $284 billion ($4.5 billion more than last year) in funding for highway, transit, and highway safety programs through 2009. This is the first significant step in the newly elected 109th Congress to pass a reauthorization bill this year. The House and the Senate could not come to agreement on overall reauthorization funding levels in the last Congress and thus deferred the legislation to the new Congress.

The process has yet to get under way in the Senate. The Senate Environment and Public Works Committee that has jurisdiction over the highway programs may report a bill out of Committee later this week. But the Senate Commerce Committee has jurisdiction over highway and motor carrier safety programs and is not expected to take up their part of the bill until sometime in April. Final passage in the Senate may not come until late April. That would leave one month for the House/Senate Conference to complete its work and send the bill to the White House before the current extension of TEA-21 expires on May 31. Historically, conference proceedings on a bill of this magnitude take longer than one month. Therefore, another short-term extension bill is not out of the question.

2. Funding Levels of MCSAP and Other State Motor Carrier Safety Grant Programs

A. MCSAP

There are no major policy changes in the new bill affecting MCSAP and other state grant programs. However, because the overall funding level in HR 3 is $4.5 billion higher than in last year’s bill, the MCSAP funding levels from 2006 through 2009 have been increased as follows:

For comparative purposes, the highest level of funding for MCSAP in TEA-21 was $170,000,000.

The following is an analysis of the $188,000,000 in HR 3 with the takedowns:

Core state grant amounts (after the takedowns) increase to:

Although, the incentive grant program has been eliminated in HR 3, new requirements are specified for the state annual commercial vehicle safety plans with emphasis on performance based planning and data improvement.

We learned of 11th hour efforts to earmark significant amounts from the high priority program for special programs. We responded to House Transportation Committee staff by pointing out that in its 24-year history, the MCSAP program had been remarkably free of specific earmarks and should remain so. With respect to the MCSAP program in general, and the High Priority Program in particular, all jurisdictions should have the opportunity to incorporate new and innovative safety programs in their state enforcement plans. Earmarking would limit the funding available to all states to do this.

Regarding traffic enforcement, the bill continues to provide that MCSAP funds can be used only for traffic enforcement not tied to an inspection as long as regular inspections are maintained at the average of the previous two years and that no more than 5% of the state grant be used for this purpose in any given year. In the bill, traffic enforcement means enforcement not only against commercial vehicles but, and this is a new feature, enforcement against passenger car drivers in the car/truck zone. We learned of a last minute effort by some to lift the cap and allow the program to be more open-ended. We responded to Committee staff by pointing out that since this provision is a new concept, especially the idea of enforcement against passenger car drivers, it must be carefully controlled and evaluated so results can be measured. We also suggested that FMCSA offer assistance to the state in such evaluation. The short hand for all of this is documented enforcement. Last year’s Senate bill did not contain the 5% cap, so this will be an important issue to reaffirm in the Conference.

B. Other New State Grant Programs:

Some of these programs, such as the CDL state grant programs and the border enforcement program, have actually been funded by the Appropriations Committees for the past two fiscal years. However, it is necessary to reaffirm these programs through the reauthorization route (as does HR 3) to ensure funding in future years.

CVISN, while not a new program, has been moved from FHWA to FMCSA, and will be funded as a state grant program, protecting it against the earmarking process and ensuring that all states receive their fair share. The authorized amounts below are comparable to those in TEA-21. This funding did not reach many states.

The two new state grant programs are the Safety Data Improvement Program and the CDL Information Systems Modernization program. The Safety Data Improvement Program is intended to help states improve the quality and timeliness of data. The CDL Information Systems Modernization program is to be used to modernize the commercial driver’s license information (CDLIS). This section also would establish a pilot project in three States to evaluate a program for sharing information about all drivers’ licenses, both commercial and non-commercial, between States. It is a companion provision to the CDL grant program which would also deal with the information sharing issue.

The funding levels for these state grant programs have been increased slightly over last year’s bill as indicated below, as was MCSAP, because the overall funding level of HR 3 is $4.5 billion higher.

Specific state grant program funding levels are as follows:

CDL Program Improvement Grants:

Border Enforcement Grants: (same as last year’s bill)

Performance/Registration Systems (PRISM:)

CVISN:

Safety Data Improvement Grants:(same as last year’s bill)

CDL Information Systems Modernization:

C. State and Federal Share of Total Authorized Funding for Motor Carrier Safety

Total:

FMCSA:

States:

The total for the states reflects both the MCSAP program and the state grant programs. It appears the Congress, in addition to recognizing the special needs of FMCSA as a still relatively new modal administration, also recognizes the growing needs of the states.

3. Other Significant Program and Policy Issues That Are the Same as in Last Year’s Bill

Data Quality Improvement: This is a companion section to the safety data improvement grant program mentioned above. It adds language to the current information systems requirements to ensure that the data FMCSA receives from the States is timely, accurate, and complete.

Completion of Uniform Carrier Registration: This section repeals SSRS and requires FMCSA to complete a rulemaking for an on-line registration system to replace the old registration system originally administered by the Interstate Commerce Commission. It does not provide for SSRS replacement funding for the states as the Senate bill did last year and is expected to this year. It will be very important to reaffirm the Senate provision at the time of Conference. ATA remains on public record as strongly favoring the Senate provision.

Outreach and Education: The bill provides $1 million to FMCSA and $3 million to NHTSA annually for these programs.

Commercial Motor Vehicle Safety Advisory Committee: The bill would establish such a committee. However, it was not in the Senate bill last year and is unlikely to be this year, so this is another important Conference issue to be reaffirmed.

Intermodal Chassis Roadability Rulemaking: The bill directs the Secretary to initiate a rulemaking to ensure the safety of equipment used to transport intermodal chassis. The rulemaking must be completed no later than one year after enactment of this bill and must address a way to identify the equipment owner, a civil penalty structure, a petition process, and an inspection system.

Truck Parking: A section establishes a pilot program in cooperation with appropriate state, regional, and local governments to address the shortage of long-term parking for commercial motor vehicles.

Hours-of-Service Exemption for Utility Service Vehicle Drivers: This is the same total exemption that was in last year’s bill. It also would take this issue completely out of the regulatory process. In other words, the Secretary (FMCSA) could not revisit the issue with future rulemakings. There is still an opportunity to seek a compromise in the Senate bill yet to be introduced. However, it will be more difficult because Senator McCain is no longer the Chairman of the Senate Commerce Committee and he was on record last year as being unalterably opposed to any hours-of-service exemptions. As last year, the only compromise position with any chance of success is one that would put the utilities back under the old rules under which they have been covered for the past 22 years.

The utility industry message to the Congress, which is a total misrepresentation of the issue, is that unless they receive the total exemption they will not be able to ensure the lights will be turned back on in an emergency. As of late, they have been using tsunamis and earthquakes as examples of emergencies where their drivers will be cited for exceeding the hours-of-service regulations. We know, of course, that the real issue for them is an economic one. They do not want their drivers subject to either the 14 hour on-duty time limit in the new rules or even the 15 hour limit under the old rules during non-emergency circumstances which is about 90% of their work effort during the year. We have learned of a few utility companies, at least, that upon the recommendation of their safety compliance officers would at least prefer the old rules to no rules at all governing their drivers. They understand the safety issues at stake and the potential liability to their company without any rules and will maintain a policy of abiding by the old rules. However, until this number grows and their company officers feel in a position to buck their industry association’s lobbying effort, there probably is not a realistic chance of turning this issue around. Also, contrary to what you might otherwise expect, the union representing the majority of utility workers supports the total exemption.

Hours-of-Service Exemption for Movie Producers: This provision places them under the old rules and has the support of the Teamsters Union.

4. Amendments in the New Bill Passed by the House

Carrier Safety Fitness: This amendment extends a requirement for U.S. carriers to Mexican and Canadian carriers that is a safety fitness determination must take into consideration the carrier’s past safety record and include both accident and safety inspections records.

HM Background Checks: This amendment extends this current requirement for U.S. drivers to Mexican and Canadian drivers before transporting hazardous materials into the U.S.

Passenger Vans: This provision requires that Federal Motor Carrier Safety regulations to apply to interstate operations of passenger vans holding between 9 and 15 passengers apply to all interstate operations of such vans regardless of the distance traveled. This amendment was offered by Congressman Udall of Colorado on the basis that such vans are used in his District to transport school children long distances.

Expansion of the Hours-of-Service Exemption for Drivers Hauling Agricultural Commodities: This amendment, offered by Congressman Moran of Kansas and whose lobbying effort was spearheaded by the Agricultural and Food Transporters Conference of the American Trucking Associations, passed the House by a vote of 257-167. This amendment was not anticipated. It was not discussed in the House Transportation and Infrastructure Committee during the markup or at anytime last year during the reauthorization process. Unfortunately, the House Rules Committee, which is independent from all other Committees in the House, sets the time limits for debate on any measure that goes to the floor for consideration and decides which amendments will be considered less than 24 hours before floor debate begins and approved this one. This process, which is not new, allows special interests to circumvent the normal process of vetting that occurs in the primary committee of jurisdiction. In this case, it is the House Transportation and Infrastructure Committee.

Agricultural commodities under the existing exemption include products grown on and harvested from the land and farm supplies directly related to the growing or harvesting of agricultural commodities. This amendment would redefine agricultural commodity to include live animals and live fish, animal feed and products of animal origin, meat, fish, seafood, tobacco products and logs and other woods in the rough. In addition, the amendment contains the clause “or any product thereof,” which could mean categories such as bakery products, prepared foodstuffs, wood products, paper or paperboard articles, and printed products.

FMCSA estimates the above provision would exempt at least an additional 42,000 motor carriers from hours-of-service rules whose crash rate is 20% higher than current agriculture exemption carriers.

The amendment makes this exemption permanent meaning the Secretary (FMCSA) is precluded from revisiting this issue regardless of any new data or analysis. This exemption cannot be modified or revoked except by another Act of Congress.

Based on accident statistics, this amendment can be considered even worse than the total exemption for utility company drivers. It will be difficult to turn around in the Senate because it is similar to a provision in last year’s Senate-passed reauthorization bill that was offered by Senator Conrad Burns of Montana. Shortly we will be providing more analysis of this amendment and its potential to compromise highway safety and calling upon as many CVSA enforcement agency members as possible to let their Congressional representatives know they oppose this amendment.

State of Nebraska Truck Length Exemption from Truck Length Freeze: This amendment, offered by Congressman Osborne of Nebraska, exempts the state from the 1991 ISTEA truck length freeze, subject to a change in the state statute, to allow the operation of commercial vehicle combinations not exceeding 81 feet, 6 inches, for custom harvesters operating in the state. These commercial vehicle combinations can only be used for the purpose of harvesting wheat, soybeans and milo on a contract basis during the harvest months for such crops as determined by the state.

5. Amendments to HR 3 That Were Offered and Withdrawn Before a Vote or Were Defeated
Upon a Vote.

Boozman Amendment to Increase “Off the Clock Time” for Drivers: Congressman John Boozman (R-Ark.) offered an amendment (and then withdrew it) that would increase from 14 to 16 hours the number of hours drivers could work by giving them additional “off the clock time.” In comments on the House floor, Boozman said discussions with FMCSA on this issue were ongoing and hoped the matter could be resolved as work on the new hours-of-service rulemaking continues in the agency pursuant to the recent Court decision. A number of labor groups, along with Advocates for Auto and Highway Safety, opposed the amendment as did CVSA. This amendment was anticipated well before House consideration of HR 3 which allowed time for more organized opposition.

Agricultural Amendment Offered by Congressman Kuhl (R-N.Y.): This provision would have expanded the agricultural exemption of 100 air mile radius to 150 miles. After discussion and debate on the House floor, he withdrew the amendment. This occurred before the Moran amendment was offered that was discussed above.

Hours-of-Service Exemption Amendment for Commercial Vehicle Drives Working in Field Operations for Natural Gas and the Oil Industry Offered by Congressman Conaway (R-Texas): This amendment would have placed this category of drivers who could be loosely classified as utility workers under the old hours-of-service rules. It was defeated by a vote of 226 to 198. Part of the rationale for the amendment was a concern that this category of drivers would not be covered under the utility exemption. Yet, the amendment did not propose a total hours-of-service exemption, but proposed coverage under the old hours-of-service rules. This is the first time any exemption for utility drivers was subject to a floor vote in either Chamber in the last two years: it did not pass. The major utility exemption that has been in the House bill from “day one” was in the original bill as it was introduced. It was in the bill because the leadership on the majority side of the House Transportation and Infrastructure Committee wanted it there. It has never been subjected to a vote in either the full House or Senate by itself. It is possible, though by no means certain, that if it were, it would not pass in its present form without at least some compromise keeping utility workers under the old rules.

6. Amendments Sent to Congress by DOT That Were not Considered by the House

The House-passed bill did not contain amendments requested by DOT (FMCSA), the first of which related to Hours of Service that would codify the current set of rules in the law, but would provide FMCSA the opportunity to revisit them through regulatory proceedings at a later date if necessary. The second proposal put forth by DOT that was not included in the House bill was a section to authorize DOT to require Mexican motor carriers operating beyond the border commercial zones to display an inspection decal issued or approved by DOT rather than the current provision requiring a CVSA decal.