Senate Commerce Committee Reports Safety Title; Senate Floor Debate on Reauthorization Gets Underway
On April 14, the Senate Commerce Committee reported the Safety Title of the Reauthorization bill that will be merged with the Highway Title during consideration of the Highway bill that began on April 26 on the Senate floor. However, debate will not be completed and the bill passed until at least the 2nd week of May. (The Senate is in recess this week.) It is hoped the bill will pass the Senate by Friday, May 13.
However, an unknown variable is the so-called “nuclear option” for ending filibusters of Presidential Judicial nominees. This issue has the potential to bring the Senate to a grinding halt. But, assuming the bill does pass by Friday the 13th, this would leave only two weeks for a House-Senate Conference to resolve differences. It is unlikely that the Conference could be completed in this two-week period. Thus, another extension of TEA-21 beyond May 31 (the current extension deadline) may be necessary.
When the Safety Title is considered on the floor, there will be a floor manager’s amendment that could make changes to this Title as it was reported out of the Commerce Committee. As of this writing, details on the floor manager’s amendment are not available.
The following is an analysis of the key motor carrier enforcement provisions of the Commerce Committee bill. Comparisons are made to last year’s Senate bill and the current House Reauthorization bill, HR 3, which passed the House in early March. With respect to the funding levels in the bill, it is possible an amendment will be offered during the floor debate that may increase the overall funding of the bill for highways, transit, and safety programs by somewhere between $11 billion and $13 billion. If the amendment passes, there will be a slight “bump up” in motor carrier safety program funding levels.
1. Administrative Expenses of FMCSA
(Section 103 in Senate bill; Section 4101 in HR 3)
This is the federal share for all FMCSA administrative operations as opposed to the funding authorized for MCSAP and other state grant programs. The current Senate bill funds this account at the same level as last year’s bill:
The HR 3 funding levels are:
High Risk Carrier Compliance Reviews
(Section 104 in Senate bill; no comparable provision in HR 3)
High risk carrier compliance reviews are among the prescribed uses for FMCSA Administrative funding. At a minimum, FMCSA is directed to conduct compliance reviews on a carrier when its rating puts it on the A or B list for 2 consecutive years.
Overdue Reports, Studies, and Rulemakings
(Section 105 in Senate bill; no comparable provision in HR 3)
This section requires FMCSA to complete overdue reports, studies, projects and rulemakings. On the list is a requirement that FMCSA report on a project to consolidate Out-of-Service regulations enforced by FMCSA. Also, FMCSA is directed to amend the Interim Final Rule addressing New Motor Carrier Entrant Requirements specifying that a safety audit be immediately converted to a compliance review and appropriate enforcement actions be taken if the safety audit discloses acute safety violations by the new entrant.
2. MCSAP and Other State Motor Carrier Safety Grant Programs
The combination of the increases in MCSAP funding from TEA-21 levels, plus the creation and authorization for funding of new state grant programs outside of the MCSAP program more than doubles the total amount of truck and bus safety funding available to the states from the total funding levels in TEA-21.
A. Motor Carrier Safety Assistance Program (MCSAP) Funding Levels
(Section 107 in Senate bill; Section 4102 in HR 3)
The current Senate bill authorizes the following levels:
These are the same levels as in last year’s Senate bill.
The House levels in HR 3 are:
This remains an 80/20 program.
B. Takedowns from the Basic MCSAP Grant Program
High Priority Grants
The current Senate bill increases the High Priority program by about 30% by providing up to $15 million per year. Last year’s Senate bill provided for a takedown of up to 5% of the total MCSAP funding, which amounted to about $10 million per year. The new bill retains last year’s requirement that at least 80% of High Priority be awarded to state and local government agencies as opposed to private entities. This helps put a lid on earmarking in the annual appropriations process.
HR 3 provides for a high priority takedown of up to 10%, or about $18 or $19 million annually. While HR 3 does not have the 80% requirement, it does provide that High Priority funding may be used for activities designed to improve all state information and data systems to improve the uploading of data to FMCSA information systems for the purpose of identifying high risk carriers. The Senate bill retains the traditional high priority description of projects that are national in scope, increase public awareness and education, or demonstrate new technologies, all of which will lead to the reduction of accidents and fatalities.
Safety Performance Incentive Grants
The Safety Performance Incentive grant program takedown is eliminated in the new Senate bill, increasing the amount available for the basic state core grant program. This grant program was in last year’s Senate bill. HR 3 also eliminates the program. The rationale for doing away with this takedown is to increase the basic grant funding available to the states ensuring that more resources go to the core function of the MCSAP program. To some extent the House language in the High Priority takedown provision emphasizing data improvement as an eligible activity under the HP grant program compensates for the removal of the Safety Performance Incentive takedown that in recent years has been awarded to states for data improvement. In addition, one of the new requirements in HR 3 for the state annual commercial vehicle safety plan specifies the establishment of a program ensuring that all information and data be accurate, timely and complete. Finally, it should be noted that the HR 3 establishes a new Safety Data Improvement grant program for the states that would be funded at $3 million annually.
New Entrant Audits
The new Senate bill authorizes up to $29 million annually under the MCSAP program and does not require a match as did last year’s bill. HR 3 provides $15 million annually and also does not require a match.
Training and Administration
This 1.25% takedown is already in TEA-21 and is not changed by this year’s Senate and House bills. It will amount to an average annual takedown of $2.5 million.
Analysis of MCSAP Annual Funding Levels with the Takedowns
Current Senate bill for the year 2006:
$193,620,000 Total MCSAP
-29,000,000 New Entrants
– 2,500,000 Training & Administration
$147,120,000 Core State Grant Programs
(For comparative purposes, in this Fiscal Year 2005, the core state grant program funding level is $133,350,000).
The core state grant programs (after takedowns) will increase to:
HR 3 for the year 2006:
$188,000,000 Total MCSAP
-18,000,000 High Priority
-15,000,000 New Entrants
– 2,200,000 Training & Administration
$152,000,000 Core State Grant Programs
The core state grant programs (after takedowns) will increase to:
Other MCSAP Requirements
Use of MCSAP Grants to Enforce Other Laws:
The new Senate bill contains the same provision as last year’s bill, which are:
a) enforcement of size and weight laws at locations other than fixed weight facilities such as steep grades or at ports where intermodal shipping containers enter and leave the U.S.
b) detection of drugs in commercial vehicles or on person
c) documented traffic enforcement against trucks not tied to an inspection and against cars operating in the car/truck zone
HR 3 contains provisions identical to sections a) and b) above. But with respect to section c) on traffic enforcement, HR 3 provides for traffic enforcement against trucks not tied to an inspection and against cars operating in the car/truck zone but with the following limitations. The number of regular roadside inspections conducted in the State must be maintained at a level at least equal to the average number conducted in the State for the previous 3 years and the State may not use more than 5% of the annual MCSAP funding for this purpose.
Annual State Commercial Vehicle Safety Plan
The current Senate bill repeats three new requirements from last year’s bill:
a) buses will be inspected at stations, terminals, border crossings and maintenance facilities except for obvious safety hazards
b) states will include information on best practices for sharing the road with trucks and cars in their training manuals for all automobile drivers’ examinations
c) states will enforce operating authority (registration requirements) against any truck without registration or beyond the scope of its registration by suspending the operation of that vehicle.
HR 3 adds five new requirements, two of which are the same as in the Senate bill with respect to automobile driver training manuals and operating authority enforcement. The three other new requirements in the House bill are:
a) states are required to implement performance-based activities including deployment of technology
b) states are required to conduct highly visible traffic enforcement programs in locations or corridors that have been identified as having a high incidence of car and truck crashes
c) states are required to establish a program ensuring that all information and data reporting is accurate, timely, and complete.
C. Other State Motor Carrier Safety Grant Programs
(Section 107 in Senate bill; Section 4103 in HR 3)
Border Enforcement (Northern & Southern Borders):
The current Senate bill provides for the same funding level as last year’s bill:
This grant program would fund enforcement personnel, not infrastructure facilities and is an 80/20 program.
HR 3 provides the following funding levels:
HR 3 funds this program @ 100%.
CDL Program Improvement Grants:
(Section 153 in Senate bill; Section 4014 in HR 3)
The current Senate bill provides for the same funding level as last year’s bill and continues it as an 80/20 bill:
The bill further allows up to 10% of this allocated grant program to go to the states for High-Priority activities that are of benefit to all jurisdiction. It also allows another 10% to go to the states to be used for emerging issues relating to CDL improvements.
As last year, the bill also establishes a CDL task force to study impediments and foreseeable challenges to the CDL program. The working group’s membership would consist of motor vehicle administrators, commercial motor vehicle enforcement administrators, members of the Judicial Conference and representatives of trucking labor and safety groups.
HR 3 funds the CDL program as an 80/20 program at the following levels:
A provision in HR 3 only would require that the State’s application for the grant must include an “assessment” of its commercial driver’s license programs.
The House bill also provides that up to 10% of the annual allocation may be used for High Priority grants to states to fund CDL program of benefit to all jurisdictions and that address national safety concerns. This type of grant may be funded at 100%.
Performance and Registration Information System Management (PRISM) Grants:
(Section 120 in Senate bill; Section 4114 in HR 3)
The current Senate bill designates it as an 80/20 program and maintains last year’s funding levels:
HR 3 funds the same program at the following levels:
Commercial Vehicle Information System Grants (CVISN):
(Section 121 in Senate bill; Section 4109 in HR 3)
The CVISN provision in the current Senate bill is identical to the one in last year’s bill and identical to the CVISN provision in HR 3. These provisions move the CVISN program out of FHWA to FMCSA and fund it at $25 million in each of the years 2006, 2007, 2008 and 2009. Core deployment grants per state may not exceed $2,500,000 and expanded deployment grants per state may not exceed $1,000,000.
Commercial Driver License Information System (CDLIS) Modernization:
(Section 154 in Senate bill; Section 4125 in HR 3)
The current Senate bill contains a new provision that was not in last year’s bill to modernize CDLIS. It allocates funding for this program from the fees collected by the Secretary of Transportation, or by an organization that represents the interests of the States, in excess of the costs of operating the system. Amounts credited to the Information System Modernization Account shall be available exclusively for the purpose of modernizing the information system.
The authorized allocation amount per year is:
HR 3’s provision on this program is quite different. It funds the program under new contract authority from the Highway Trust Fund rather than from CDLIS user fees at the following levels:
HR 3 further allows up to 50% of the annual allocation to carry out a pilot program in three states to evaluate a system for sharing driver’s license information on all commercial and non-commercial driver’s licenses issued in each participating state. HR 3 specifies this as an 80/20 program.
Safety Data Improvement Grants
(not in Senate bill; Section 4124 in HR 3)
The current Senate bill, as last year, does not contain a provision for such a program. HR 3, however, establishes a program for the states that is dedicated to improving the quality and timeliness of data. It is an 80/20 program funded at the following levels:
3. Other Significant Policy and Program Motor Carrier Safety Issues
A. Intrastate Operations of Interstate Motor Carriers
(Section 114 of Senate bill; Section 4110 in HR 3)
The current Senate bill, as in year’s bill, provides that a federal safety determination that an interstate motor carrier is unfit will halt both its interstate and intrastate operations, and further specifies that a state safety determination that an intrastate carrier is unfit will halt both its intrastate and any interstate operations.
HR 3 provides the same.
B. FMCSA Authority to Stop Trucks
(Section 115 of Senate bill; not in HR 3)
The current Senate bill, as last year, would allow authorized employees of the Federal Motor Carrier Safety Administration to direct a driver of a commercial motor vehicle to stop for inspection of the vehicle, driver, cargo and required records at, or in the vicinity of, an inspection site. FMCSA’s stated intention in requesting this amendment was to obtain this authority relative to border situations.
This provision is not in the House bill.
C. Outreach and Education
(Section 122 in Senate bill; Section 4120 in HR 3)
The current Senate bill assigns joint responsibility for truck safety efforts, including the “share-the-road” initiative, to both FMCSA and NHTSA, and awards 75% of the funding to NHTSA. It also requires the Government Accounting Office (GAO) to evaluate and determine whether the Outreach and Education program has actually reduced the number of crashes, deaths, and severity of injuries and report its findings to Congress by June 30, 2006.
This GAO study requirement was not in last year’s Senate bill and while the proportionate allocation of funding to FMCSA and NHTSA is the same, the total amount of funding is increased in the new bill. Last year $250,000 was authorized for FMCSA and $750,000 for NHTSA. The amounts were increased this year to $1 million for FMCSA and $3 million for NHTSA.
HR 3 provides for same level of funding and specifies the program in somewhat more detail than the Senate. It emphasizes a strong enforcement component to accompany the outreach and education efforts similar to the “Click It or Ticket” and drunk driving awareness campaigns.
(Section 126 in Senate bill; not in HR 3)
The Senate provision specifically says : ” The Commercial Vehicle Safety Alliance may not restrict the sale of any inspection decal to the Federal Motor Carrier Safety Administration unless the Administration fails to meet its responsibilities under its memorandum of understanding with the Alliance (other than a failure due to the Administration’s compliance with Federal law).
FMCSA’s original intent, through submission of a draft amendment to the Congress in February of this year, was 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 current requirement, as spelled out in Section 350 of the 2002 DOT Appropriations bill, specifying the CVSA decal.
As reported in CVSA’s Legislative Update of April 8, 2005, our objective was to defeat FMCSA’s amendment and keep the decal program as it has been for the last 22 years, a CVSA program. At the urging of the Senate Commerce Committee, CVSA met with FMCSA in an attempt to resolve issues surrounding the sale of decals, which presumably prompted FMCSA to submit their amendment. Such a meeting occurred and a report on the meeting was provided to the Commerce Committee. The Commerce Committee then drafted the language in Section 126 that remained in the bill as it was reported of the Committee. CVSA supports the language in Section 126.
E. Intermodal Chassis Roadability (Inspection, Repair, and Maintenance of Intermodal Equipment)
(Section 127 in Senate bill; Section 4128 in HR 3)
The current Senate bill provides a new Section on Intermodal Chassis Roadability that was not in last year’s bill. There is a comparable provision in HR 3.
These provisions direct the Secretary to initiate a rulemaking ( 120 days after passage in the Senate bill; and 1 year after passage in the House bill) to ensure that equipment used to transport intermodal chassis is safe. The rulemaking must address a way to identify the equipment owner, a civil penalty structure, a petition process and an inspection system.
Neither bill provides authorized funding to carry out the program.
It is unlikely that FMCSA will be sending their personnel into the ports, so the burden will fall on the states to implement the program. What is needed is the establishment of a port grant program for the states similar to the border state grant programs.
Apart from the lack of funding provisions, the House provision is preferable since it leaves the specifics of the program to be determined through the rulemaking process. The Senate bill legislates too many of the program details that are best determined through the rulemaking process.
F. Unified Carrier Registration (UCR) Plan
(Sections 131 to 137 in current Senate bill; Section 4117 in HR 3)
The current Senate bill, as in last year’s bill, repeals the Single State Registration System (SSRS) and would establish a single federal on-line registration system merging all federal and state motor carrier registration and information systems.
This UCR plan is based on a plan developed by major industry and state associations, the American Trucking Associations, the National Private Truck Council, and the National Conference of State Transportation Specialists.
It provides replacement revenue for all current participating SSRS states (38) and provides an allocation for non-participating states. States may use this replacement revenue for the required state match for MCSAP and other state safety grant programs.
To raise revenue for the replacement funding, the UCR plan replaces a per-vehicle-fee with a per carrier fee and includes all motor carriers under the fee structure rather than just for-hire vehicles, which is the only industry group covered in the current SSRS program.
HR 3 would provide for the establishment of a new UCR program but without the fee and replacement funding part of the plan provided for in the Senate bill.
G. Hours-of-Service Exemptions
(Section 128 in Senate bill; Sections 4131 (utility), 4134 (agricultural), and 4135 (movie producers) in HR 3)
The current Senate bill provides almost the same exemptions as the Burns amendment in last year’s Senate bill. It adds non-processed food, feed, fiber and livestock ( that is defined according to the Emergency Livestock Feed Assistance Act of 1988 including insects). It also takes away the authority of the Secretary to regulate agricultural exempt commodities.
The differences from last year’s bill are that it qualifies food, by adding “non-processed” which eliminates the possibility of adding processed, packaged or refined foods to the exemption. Also “products thereof” is eliminated. The additional number of exempt agricultural carriers would be more in the 30,000 range rather than the 42,000 that would have been included in the Burns amendment of last year.
In HR 3, the exemption is the same except that food commodities is not qualified by using “non-processed” meaning that it is a broader exemption.
In the current Senate bill, the old hours of service are made applicable to this industry. This exemption was not in last year’s Senate bill. HR 3 provides the same exemption.
Utility Service Vehicles
The current Senate bill, as last year, provides that federal hours-of-service regulations are not applicable to drivers of utility vehicles and, further, that the States are prohibited from enacting or enforcing any law or regulations that are similar to such regulations. Authority of the Secretary to regulate this industry is also taken away.
HR 3 is identical on this issue.
State of Nebraska Truck Safety Length Exemption from Truck Lengths
(not in Senate bill; Section 4138 in HR 3)
HR 3 exempts Nebraska 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 be used only 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.
Driveaway Saddlemount Vehicles (Automobile Transporters)
(not in Senate bill; Section 4116 in HR 3)
In HR 3 it provides for a new national standard on the Interstate Highway System for saddlemount vehicles that is a vehicle length combination of not less than or more than 97 feet on a driveaway saddlemount with full mount vehicle transporter combinations.
(Section 1814 in Senate bill; Section 1306 in HR 3)
Provisions in both bills establish a pilot program to increase the availability of and information about long-term parking for drivers of commercial motor vehicles on the Interstate and National Highway System. The Secretary shall allocate funds made available under this subsection to States, metropolitan planning organizations, and local governments, giving preference to applicants who demonstrate the most severe shortage of commercial vehicle parking capacity on the corridor to be addressed. The Senate bill authorizes $10 million annually for the program and HR 3 authorizes $5 million.