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Agreement Sets New Course for Highway Program

June 28, 2012

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It turns out that Congress can compromise after all.

At the last moment, House and Senate negotiators wheeled and dealed their way to a highway agreement in which no one gets everything and everyone gets something.
Congress finally reached a compromise on the highway bill, a two-year agreement instead of the usual six.
Congress finally reached a compromise on the highway bill, a two-year agreement instead of the usual six.


The bill still is not certain. Senators and Congressmen are reviewing the negotiators' agreement and have until Saturday midnight to sign off on it. But there is considerable pressure to get the thing done so members can tell their constituents they have signed off on a jobs bill.

The art of compromise

The agreement is based on give-and-take.

Highway interests, including state transportation departments, get a modicum of stability out of the 27-month bill. They didn't get the traditional six-year bill, so important for long-term planning, but certainly two-plus years is much better than the short-term extension that would have been the result had the negotiators failed.

The agreement dodges the all-important question of how to secure long-term reinvestment in surface transportation - it does not touch the federal fuel tax - but it does continue the highway program at current funding levels. To get there, Congress had to overcome a push by conservative Republicans in the House to cut spending by about a third to levels that could be supported by the Highway Trust Fund alone, and the Senate had to cobble together a one-time package of funding transfers to make up the difference.

Republicans gave up their insistence on approval of the Keystone XL pipeline between Canada and the U.S., and their move to prevent the Environmental Protection Agency from regulating fly ash as hazardous waste. In return, Democrats gave ground on environmental reviews that can delay major highway projects, and agreed to give states more funding flexibility on enhancements such as bike paths and beautification.

The agreement consolidates programs at the Department of Transportation, a change sought by legislators on both sides of the aisle.

Trucking Provisions

Trucking interests had to give and take, as well.

American Trucking Associations got a provision that requires the Federal Motor Carrier Safety Administration to conduct a field study of the 34-hour restart rule, and it got a provision mandating electronic logs. But it did not get the increase in truck weight limits that it wanted, and had to settle for a study instead.

ATA and the Owner-Operator Independent Drivers Association got a provision requiring the National Highway Traffic Safety Administration to study the need for crashworthiness standards in tractors. But OOIDA staunchly opposes the electronic logging mandate.

Mars and Venus

The two leaders of the Environment and Public Works Committee, which did a lot of the heavy lifting on the Senate side, are political opposites.

Senator Barbara Boxer, D-Calif., says that she and James Inhofe, R-Okla., are like Mars and Venus on most issues, but they found a way to compromise on this bill.

"I couldn't be more pleased to announce, along with my partner Senator Inhofe, that we have a bipartisan, bicameral agreement on a transportation bill which saves and creates millions of jobs," Boxer said in a statement.

Inhofe thanked Boxer for her leadership and said, "As with any compromise we didn't get everything we wanted, but I believe we truly have a good bill - one conservatives can be proud to support."

Solid Foundation, or Riddled with Tumors?

ATA president and CEO Bill Graves saluted the negotiators for "passing a safety-conscious highway bill that lays a solid foundation for addressing America's need for an efficient goods movement network."

He particularly noted the electronic log mandate. "Despite misinformation from a vocal minority, the conferees have set our industry on the path to even greater improvements in safety by requiring (DOT) to mandate that truck drivers use electronic devices to record their compliance with the hours of service requirements," he said in a statement.

The "vocal minority" is OOIDA, which issued a statement saying that the provision "doesn't just have a few warts, it's riddled with tumors."

OOIDA Executive Vice President Todd Spencer said there is no proof that electronic logs will improve safety, and promised that the issue "is far from settled."

34-Hour Restart Study

The agreement orders the Federal Motor Carrier Safety Administration to conduct a field study on the 34-hour restart provision of the hours of service regulations.

The study must expand on the research the agency used to tighten the restart last year, limiting its use to once a week and requiring two periods of rest between 1 a.m. and 5 a.m. during the 34 hours.

The study must be consistent with the lab-based methodology in the prior research, and it must cover the drivers and carriers that are affected by the rule.

Electronic Logs

The electronic logging requirement says all interstate trucks and all drivers covered by the hours of service rules must have the logs, and adds that the devices cannot be used to harass drivers.

The bill gives FMCSA one year to finish the rule that it has been working on for several years. The agency is revising earlier proposals to comply with a court order that the rule not be used to harass drivers, and to resolve technical issues.

The agency does not need this provision in order to go ahead with its rule, but it does give specific instructions on the terms of the rule, and strengthens the case for the rule in the likely event that it will be challenged in court.

Size and Weight

The agreement orders DOT to conduct a comprehensive study of truck size and weight limits.

This is a disappointment to trucking and shipping interests that had been pursuing a provision to let states raise the limits in Interstate highways from 80,000 pounds to 97,000 pounds on six-axle vehicles. That provision got into an earlier bill on the House side, but was struck and replaced by the study.

ATA president and CEO Bill Graves said in a statement, "By giving into fear-based misinformation, this bill delays the deployment of some of our industry's safest, most fuel-efficient trucks." He said he expects the study to confirm that "modest increases in truck size and weight limits have a net positive effect on highway safety and maintenance."

The study must cover safety, pavement and bridge costs, and diversion of freight from the railroads and other modes. DOT has two years to finish it.

National Freight Policy

The agreement lays the groundwork for the first national freight policy. It gives DOT a year to establish a 27,000-mile national freight highway network based on freight volumes and flow. Inland and maritime ports must be included.

This network can be increased to 30,000 miles at DOT's discretion, and it must be updated every 10 years. States will have the ability to designate some roads as part of a rural freight corridor.

The provision gives DOT three years to come up with a national freight strategic plan based on the condition of the freight network. Specifically, the plan must look at bottlenecks, forecasts of freight volume, and trade corridors.

In addition, DOT must develop new ways to evaluate freight-related infrastructure projects.

The federal government will pick up a greater share of the tab for projects that meet the new freight standards. It will pay up to 95% of the cost for projects on the Interstate System, and 90% for any project DOT certifies as meeting the standards.

Eligible projects include highway construction to eliminate freight bottlenecks, intelligent transportation systems, environmental improvements, highway-rail grade separation, runaway truck lanes and truck parking facilities.

The provision also says DOT should encourage states to set up freight advisory committees made up of stakeholders from public and private interests, and to produce their own freight plans.

ATA's Graves applauded the initiative but warned that it does not include necessary funding increases.

Jason's Law

The agreement contains a "Jason's Law" provision, which will fund new truck parking facilities and help keep open existing weighing and inspection stations. It gives DOT 18 months to complete a survey to assess each state's truck parking capacity.

This provision commemorates truck driver Jason Rivenburg, who was murdered in March 2009, while parked at an abandoned gas station in South Carolina, a place drivers frequented because they could not find space at established rest areas.

Funds in this provision also can go to construction of electric recharging and natural gas refueling stations.

Truck Safety

The agreement gives FMCSA legal authority for a range of initiatives, many of which already are under way.

* It orders the agency to come up with a written proficiency exam for those seeking operating authority within the next 18 months. The test must cover the applicant's knowledge of the safety rules.

The agency has had a proposed proficiency rule on its agenda for several years. This presumably will get that proposal in gear.

* It orders applicants for authority to disclose any relationship with any other carrier, forwarder or broker within the previous three years. Failure to comply will lead to revocation of the certificate.

* It tells FMCSA to give all new carriers a safety review with a year of opening for business.

* It gives the agency authority to withhold or revoke authority for any carrier or company officer found to have a pattern of safety violations.

* It says that if Canadian authorities find a Canadian carrier unfit to operate, the agency may deny that carrier authority to operate in the U.S., pending clearance by the Canadian authorities.

* It gives the agency a year to finish work on the qualifications medical examiners must have in order to be listed on the pending national registry of examiners.

* It requires carriers to check the violation records of their drivers at least once a year. This would not apply to drivers who work for more than one carrier during a one-week period.

* It gives the agency one year to finish work on it entry-level driver training rule.

* It calls on DOT and the Defense Department to figure out what needs to be done to help U.S. military veterans get driving jobs in the trucking business.

* It gives the agency two years to finish work on the national clearinghouse for drug and alcohol test results. A proposed rule has been in the works since 2009 and is scheduled to be released this coming December.

In another provision, the agreement orders the National Highway Traffic Safety Administration to study the need for crashworthiness standards for heavy-duty trucks.

It also gives carriers a weight break on idle reduction equipment, such as auxiliary power units. Right now a truck may exceed the federal gross weight limit by 400 pounds for a proven idle reduction device. The bill increases that to 550 pounds.

And it puts a hold on a pending rule at the Pipeline and Hazardous Materials Safety Administration that could restrict flammable liquids in "wet lines," the external pipes on tank trailers.

The agreement orders the Government Accountability Office to study the issue, and says PHMSA must hold off for at least two years, or until the study is done.

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