Highway Reauthorization Legislation on Hold

Highway Reauthorization Legislation on Hold


On the last day before the Congress recessed for a six week break, it passed a fifth short term extension of TEA-21through September 30 for motor carrier safety and transit programs (September 24 for primary apportioned highway formula programs). This marks one full year under a TEA-21 continuing resolution.

The House and Senate Conferees and the White House still have not been able to agree on the overall funding level for transportation programs. In recent weeks, some progress was made to narrow the differences on the total funding level. The latest proposal on the table is from the House side to provide $284 billion in guaranteed funding (firewalled) and $299 billion in Highway Trust Fund Contract Authority. The most recent offer from the Senate is for $289 billion in guaranteed funding and $301 billion in Highway Trust Fund Contract Authority. The guaranteed funding numbers are the most important and a difference of $5 billion remains. The difference does not seem insurmountable, but it should be remembered that the Senate has given considerable ground from its original bill that provided for $301 billion in guaranteed funding and $318 billion in Trust Fund Contract Authority. Some Senate members of the Conference are saying that a bill providing anything less than the numbers in its original bill would not pass the Senate.

In preparation for a meeting of the Conference Committee in September, Chairman, Senator James Inhofe (R-Okla.) has asked the Congressional staff to “run the numbers” on the latest offer from the House to determine the effect on individual states and their apportioned allocation formulas. If the House and Senate do not reach agreement on a funding number at that meeting, any further action on the Reauthorization bill will, in all likelihood, be deferred until the “lame duck session” of Congress after the November 2 elections (such a session will probably be necessary to complete all of the 2005 appropriations bills) or until a new Congress convenes next year. Whether it is the lame duck session in November or next year, the next extension of TEA-21 is likely to be for 12 months to avoid the uncertain month-to-month apportionment of funds to the states that has been the case for Fiscal Year 2004 and an accounting “nightmare” at both the state and federal level. Accounting problems have most certainly delayed highway projects and safety programs.

Because of the stalemate on the overall funding levels, House and Senate staffs have been largely unable to begin serious negotiations on most of the policy and program issues that need resolving between the two bills that include motor carrier safety issues of concern to CVSA. So far, the only significant issues voted on that affect CVSA members relate to intrastate operations of interstate motor carriers, CVISN, and background checks for drivers transporting hazardous materials. The details of each of these provisions are as follows:

• If a motor carrier is deemed unfit to operate in the state of its principal business, it will be deemed unfit to operate in interstate commerce.

• Jurisdiction of the Commercial Vehicle Information Systems and Networks (CVISN) deployment programs will be transferred from FHWA to FMCSA. The funding levels are yet to be determined.

• The Secretary will issue standards governing the background checks of drivers hauling hazardous materials and similar standards will apply to Mexican and Canadian drivers hauling hazardous materials and operating in the United States.


II. 2005 Transportation Appropriations Bill Reported out of House Committee


Even though the Congress has not acted on Reauthorization and TEA-21 remains in effect, the Transportation Appropriations Committees continue to trying to fund motor carrier safety programs close to the increased levels that would be expected under Reauthorization as they did in the FY 2004 Appropriations bill. In fact, they continue to fund new programs such as the CDL, Border, and new entrant state grant programs.

Last week, the full House Appropriations Committee approved the 2005 Transportation/Treasury Appropriations bill.

Details on motor carrier safety funding affecting CVSA members are as follows:

FY2004 Enacted
FY 2005 (Reported by House Appropriations Comm.)
Basic grants
Incentive grants
High Priority grants
New Entrants
Training & Adm.
Accident Causation


Other State Grant Programs
Border (N & S)

*($1 million is available from another FMCSA program)

As you can see, the overall MCSAP funding rose due to a $6 million increase in the New Entrant Program and a $1 million increase in the High Priority Program. While the basic State Grant Program was increased by $4 million to $133,500,000, this was offset by a $4 million reduction in the Incentive Grant Program.

Clearly, the House Committee clearly looks on the new entrant program as one to be implemented by the states and limits federal responsibility to program oversight only. The $31,200,000 recommended by the Committee for new entrants is very much in line with the cost data CVSA received from a state survey done in 2002.

With respect to the CDL program, the Committee recommends that FMCSA should continue working with AAMVA, CVSA, lead MCSAP agencies, and state licensing agencies to improve all aspects of the CDL program. In addition it recommends that FMCSA should consider sponsoring another pilot project involving law enforcement and driver licensing agencies to explore new and innovative ways to make sure drivers who have been convicted of a disqualifying offense do not operate during the period of suspension or revocation.

For a copy of the complete motor carrier safety section of the House Appropriations report, contact CVSA headquarters.


III. Hours-of-Service Exemptions


A. With Respect to Reauthorization

A provision to exempt utility companies from all hours-of-service requirements (old, current, or whatever revised set of rules may result from the recent D.C. Circuit of Appeals decision) is in both the House and Senate versions of the Reauthorization bill. As stated in previous CVSA reports to you, the fact that it is in both bills will make efforts to modify it or overturn it difficult. However, we are advised that it still may be considered a negotiable issue in the Conference proceedings and we continue to work the issue as best we can. The utility lobby continues its intensive effort to gain the total exemption. However, the Reauthorization stalemate further delays the ultimate regulatory relief sought by the utility industry and causes them to shift their efforts toward seeking short term relief in the Appropriations process ( to be discussed later in this report).

There is a provision in the House bill that keeps movie producers under the old rules. This will be a negotiable item in the Conference.

Finally, there are provisions in both bills to expand the definition of agricultural commodity to include livestock and livestock feed haulers in the existing exemption. But the exemption as it applies to this new group would apply all year rather than on a seasonal basis. A provision along these lines is likely to be in the final bill. While this is a further erosion of the agricultural exemption, it is less blatant or egregious than the utility exemption in the sense that agricultural haulers remain under some type of hours of service regulation.

B. With Respect to the Appropriations Process

With the Reauthorization process on hold, the only avenue available to the utility companies and others seeking exemptions is the annual appropriations process. But this is only a temporary fix from year to year.

The 2005 House Appropriations bill did not continue the prohibition of the use of federal funds to enforce the new hours-of-service rules against the movie producers. This is a step in the right direction.

However, the 2005 House Appropriations bill retained language prohibiting the use of federal funds (MCSAP) to enforce the new hours-of-service rules against the utility industry and further clarified the prohibition to mean enforcement of the old rules as well.

CVSA and other safety groups attempted to seek a compromise that would have at least put the utility companies under the old rules they have been subject to for the last 20 years. We were given a fair hearing to present the safety record of the utility industry showing that their share of fatalities and injuries is proportionate to that of the rest of the industry. Committee staff were frank to tell us that the utility companies have intensified their lobbying efforts with all members of the Committee and that the electrical workers union support of the exemption further complicated matters. Ranking Minority Member Congressman Olver (D-Mass.) expressed concern about the exemption during the Subcommittee markup but obviously did not have the support to call for a committee vote against it.

CVSA and other safety groups will continue to work this issue with the Senate Appropriations Subcommittee on Transportation and Treasury. Although the Subcommittee has not yet reported out a bill, it is expected to do so sometime in September.

It should be noted that utility drivers operating in intra-state commerce only must abide by the hours-of-service rules in effect today in the state in which they operate and in effect prior to the Court decision

C. With respect to the recent U.S. Circuit Court of Appeals decision rejecting the new hours-of-service rules

The court decision will not change the efforts of the utility industry to seek its exemptions in the Reauthorization bill. That industry doesn’t want to be subject to any hours-of-service rules—old rules, the existing new rules, or any new rule that may ultimately result from the Court’s decision.

It also would not affect the appropriations ban on the use of federal funds to enforce the new rule as discussed earlier. The House 2005 Appropriations bill specifies that the ban applies to the new or old rules should there be a temporary situation where the old rules are resumed as a result of the Court decision, which is probably a remote possibility from what we know at this point.


IV. Update on the Court Decision Itself


We have no new information to report other than what was in our July 22 News Update. We are waiting to learn what decision FMCSA will make with respect to an appeal. The 45 day period within which they have to make such a decision continues to run (from July 16). When we learn any new information, we will immediately inform you. The hours-of-service rules now in place continue to apply.

Latest Reports:

House Passes Reauthorization Bill; House/Senate Conference the Next Step

The U.S. House of Representatives has recently passed H.R. 3550, a $275 billion highway reauthorization bill that also includes funding for transit, highway safety, and motor carrier safety programs.

As we reported earlier (see — Feb. 19,2004), the Senate passed its $318 billion reauthorization bill, S. 1978, in early February.

A lengthy Conference is expected to resolve the differences between the two bills. Some Congressional staff indicate it may take until June 30 before a final bill is ready. This also means that another extension of TEA-21 will be necessary since the current extension will expire on April 30. One caveat to all of this. The White House has said it will veto any reauthorization bill that calls for more than $256 billion. There are strong indications that the House and Senate Republican Leadership would not want to risk a Presidential veto in an election year. So, there may be strong pressure on the Conferees to lower the House limit of $275 billion closer to the $256 billion level supported by the White House. If that happens, there is a good chance the Congress will not pass a reauthorization bill. It was a painful process in the House to reduce its original funding level of $375 billion to $275 billion and anything lower would almost be out of the question. Whether the White House will change its position is not known at this point.

The overall funding level for motor carrier safety (FMCSA Administrative Expenses and State Programs including MCSAP) is $3,004,000,000 in the Senate bill and $2,871,000,000, a difference of $133,000,000. Under normal circumstances, you might expect the final bill to reflect an amount within these parameters, but, as discussed above, we may not be able to count on this.