Groundhog Day

Most of us probably remember Bill Murray as weatherman Phil Connors in the 1993 movie “Groundhog Day.” In the movie, Phil finds himself continually waking up in Punxsutawney, PA, trapped in the same rewind of Groundhog Day he experienced the day before, and the day before that.
Today, the trucking industry is trapped in its own version of Groundhog Day. In our case, it’s yet another round of rulemaking over Hours of Service (HOS) regulations that govern how long a truck driver can be on duty.
As background, HOS regulations were basically unchanged for 60 years until 2003 when new rules were issued by the Federal Motor Carrier Safety Administration (FMCSA). Almost immediately, an opposition coalition emerged comprised of The Truck Safety Coalition, Advocates for Highway and Auto Safety, Public Citizen and the International Brotherhood of Teamsters. This coalition was determined to fight the new rules, suing not once but three times.
In 2004, the court vacated the HOS rule on the grounds that the government did not adequately consider the effects of longer driving hours on individual truck driver health and traffic safety. In 2007, the same rule was reissued by the FMCSA, was again challenged in court and again vacated.
In this latest instance, the rule was overturned because the agency did not let the public examine and comment on the new crash risk analysis used to support reissuing the same exact rule. And then just a few weeks ago, DOT agreed to have FMCSA do another round of HOS rulemaking. As a result, the opposition coalition asked the court to “press the pause button,” and hold the coalition’s most recent lawsuit in abeyance (the court agreed). Under the agreement, FMCSA must begin a new rulemaking process and submit a notice of proposed rulemaking to the Office of Management and Budget within nine months and publish a final rule within 21 months.
Much like Groundhog Day, this continuous litigation and rulemaking merry-go-round virtually guarantees another challenge. If the opposition coalition does not agree with the new rule, they will simply resume their current court challenge. If the trucking industry feels harmed, it will likely go to the courts with a challenge of its own. Either way, get ready for round four.
What is obscured by this debate (as is often the case) are the facts. Under existing HOS rules (which have now been in effect for five years), the rate of fatalities resulting from large truck crashes is at a record low level, even as vehicle miles traveled has increased. It’s an inconvenient truth for the opposition coalition. One can expect they would argue that the results would be even better under rules they prefer. But that’s just speculation at this point.
One point of total agreement is that there is no more important job for FMCSA (and for the trucking industry) than safety. The means of achieving that vision varies and requires informed debate, not just emotionally charged rhetoric. In the view of the HOS petitioners, there is no cost too high. At the same time, many in the industry feel the current rules are working and achieving desired safety results. So despite the best efforts of FMCSA and DOT to balance differing views, it seems we have not seen the last HOS Groundhog Day.

Timing is Everything

Two months?  Six Months?  Eighteen months?  Who knows?  As policymakers in Washington spar over the length of the next extension of the current surface transportation bill, it strikes me that this focus on the length of time also leads one to consider timing more generally.  As in, how does the T&I bill fit within the legislative cycle and perhaps more importantly, the political one. 

Nearly every serious observer of transportation issues believes that additional federal funding is necessary to restore our highways to world class status.  There is a sense of urgency led by Chairman Oberstar and Ranking Member Mica to get a bill out sooner rather than later.   According to many supporters, the infrastructure projects made possible by the bill are the very stimulus needed to put people back to work during the current economic crisis.  This is a credible argument and the projects involved are tangible, long-term investments in one of the most important underpinnings of our economy – the transportation system.   

Many transportation stakeholders and policy makers are supportive of the House T&I Committee’s $500 billion price tag for the next bill.   There is just one small detail – there is no clear way to pay for it!    This is not unusual in Washington and, though there is no clear favorite, there is no shortage of funding proposals.  Everything from VMT user fees, to taxes on each barrel of oil, to old fashioned (but elusive) fuel tax increases is being evaluated.   Even less clear than the means to raise the revenue is, the will of the Congress to impose the chosen revenue raising mecahanism on the motoring public, and when the timing is correct to do so.

That brings us to timing.  Apparently the Administration has decided that it is likely a tax increase will be necessary to pay for the next surface transportation bill.  It makes sense then that they desire an eighteen month extension, delaying any votes on highway/fuel tax increases until after the 2010 elections.  In fairness to the Administration, they do have quite an aggressive legislative agenda (including climate change and health care) that they want to complete before moving on to transportation.  That brings us to another timing issue.  If Congress passes climate change legislation that significantly raises fuel prices before the T&I bill is passed, there will be absolutely no appetite to raise taxes to pay for the significant increases in transportation spending that is so desperately needed.   Chairman Oberstar is correct to keep the pressure on and insist on the shortest possible extension.  Only in that way will there be multiple windows of opportunity to focus the debate and insert surface transportation reauthorization into the legislative agenda.  You see, timing (and politics) really is everything!