Just a few days before members of Congress left Capitol Hill for their election period hiatus, they passed a $26.5 billion bill that extends highway and transit programs until May, 2005. Within this eleventh-hour piece of legislation was an amendment that reverses an Appeals Court ruling that threw out the “new” hours-of-service rules that took effect last January.
The amendment mandates that the new HOS regulations stay in effect until September 30, 2005, or until the Federal Motor Carrier Safety Administration comes up with a new rule that passes court muster. The court had ruled on July 16 that FMCSA did not take into account driver health issues, as required by Congress, when it created the new rules, which increased maximum driving time from 10 to 11 hours.
Many trucking industry stakeholders had urged Congress to step in to maintain the status quo, since reverting to the old rules would have caused a great deal of disruption among fleets, which had spent time and money accommodating the new rules. Others disagreed, especially groups such as Public Citizen, which was a party to filings that had asked the court to vacate the new HOS rules. They argued that truckers who were fatigued under the old rules would be even more tired with the extra hour of driving allowed in the new rules.
With the new rules in jeopardy, lobbyists for the trucking industry, led by the American Trucking Assns., were able to place the amendment into the stopgap funding bill. The effort was bipartisan, led by Rep. Don Young (R-AK) and Rep. Jim Oberstar (D-MN). Opponents of Congressional intervention, which included Advocates for Highway and Auto Safety, Citizens for Reliable and Safe Highways (CRASH), Parents Against Tired Truckers (PATT) and Public Citizen, had implored Congress not to act on legal grounds. In a letter to Senate Transportation Subcommittee leaders they wrote: “The Court's role is to determine whether agencies have complied with the law, and Congress should not intervene or override the rule of law. Usurpation of the judicial process in this case will undermine the constitutional separation of powers.”
The argument fell on deaf ears, but the situation is still far from settled. With a year's reprieve, the industry again will face the issue a year from now or sooner if FMCSA comes out with rules that satisfy the court. “We are working on a new rule now,” an FMCSA spokesman said. “We will have it by September 30, [2005].”
In addition, Congress still has to pass a six-year highway authorization bill, which could contain provisions dealing specifically with HOS, along with other hot issues. Before Congress passed the stopgap measure, amendments were considered to the longer ill-fated reauthorization that allowed tolls on Interstate highways, substantially increased fines for HOS violations and even held managers responsible for some out-of-service violations. State by state apportionment of fuel taxes also needs to be resolved.
Whether Congress attacks these issues during the lame duck session following this month's elections is unknown. Whether they resolve them by May, when the temporary funding expires, is also uncertain considering that they have not been able to produce a six-year reauthorization one year after it expired — and two years after deliberations began — choosing instead to fund it with temporary legislation.
Cynical observers suggest that temporary legislation allows Congress additional opportunities to fund pet projects. Others just see it as incompetence or an unwillingness to do the hard work. Sen. Orrin G. Hatch (R-UT) chided his colleagues, saying: “The temporary extensions we have been using do not adequately address the transportation needs of our citizens. Temporary extensions frustrate the planning of these large projects, significantly delay the delivery, and make it impossible for states to raise the money necessary to fund their portions of the projects… Let's not wait for this problem to get even more out of hand.”
