Exemption dilemma: Concern over special interest clouding ISTEA

April 1, 1998
Congress is now in the process of reauthorizing the Intermodal Surface Transportation Efficiency Act (ISTEA), after failing to do so in its last session. Everyone with a stake in the passage of this important legislation is looking for ways to have the issues that are important to them addressed in the bill.There are many excellent initiatives in both Senate and House versions of the bill. However,

Congress is now in the process of reauthorizing the Intermodal Surface Transportation Efficiency Act (ISTEA), after failing to do so in its last session. Everyone with a stake in the passage of this important legislation is looking for ways to have the issues that are important to them addressed in the bill.

There are many excellent initiatives in both Senate and House versions of the bill. However, I am concerned about the attempts of some special interest groups to get exemptions. In the last ISTEA bill, several groups were successful in convincing Congress of the need for special consideration when it comes to complying with certain Federal Motor Carrier Safety Regulations (FMCSR). As a result, Congress directed the Federal Highway Administration (FHWA) to initiate a rulemaking that would exempt certain motor carrier operations from the FMCSR if they met certain conditions.

The good news is that FHWA has issued a final rule implementing the congressional mandate. The bad news is that very few -- and none of the major players seeking the exemption in the first place -- have taken advantage of it. Carriers eligible to take advantage of the exemption have complained that the requirements they would have to meet are more burdensome than the regulations themselves.

This is an example of what can happen when Congress attempts to micromanage the job of a regulatory agency. The intention to improve the process was genuine. And the final rule FHWA was forced to issue was legitimate. What was missing was a meaningful attempt by the special interests and FHWA to sit down and work out the problem without involving Congress.

We could be headed down that road again. The utility industry is seeking to have itself exempted from certain portions of the FMCSR, including hours of service, medical qualifications for drivers, and commercial driver's license requirements. Other groups, such as beer and beverage wholesalers and wholesale bakers, are seeking similar exemptions. All cite similar difficulties in complying with the regulations. In each case, some of their arguments do merit consideration by FHWA.

What does seem unnecessary, however, is for Congress to try and figure out who is right and who is wrong, and then to tell FHWA how to "fix" the problem. With rare exceptions, members of Congress and their professional staffs d on't have enough knowledge about the different types of motor carrier operations and the regulatory safety structure governing them to tell an agency how to write its regs. Besides, it's not their job. That responsibility lies with the agency having jurisdiction over the issue.

Let's look at the utility sector as an example. Concerns about how drivers of their large trucks, which are equipped to make emergency repairs to power lines and restore power after natural disasters or accidents, can comply with the hours-of-service regulations are legitimate. Utilities cite numerous examples of providing emergency services and then not being able to use drivers for their regular duties because they've run out of hours under DOT regulations.

This problem can be alleviated if the government declares an emergency and allows drivers to operate outside of the hours-of-service regs. But the process can be slow and cumbersome. In the meantime, some overzealous law enforcement agencies cite the drivers. Worse yet would be a scenario in which a driver is involved in a traffic accident and the plaintiff attorney cites the utility driver's noncompliance as a factor in the crash.

The FHWA and affected parties need to sit down and discuss the issues. Problems such as this one could be solved through administrative orders. Others may actually need to be addressed in the regulatory process.

I think we're all better off in the long run if problems like these are addressed outside of the rulemaking process. And we surely don't need Congress telling DOT how to fix its regulations.

Note: Contributing editor Stephen Campbell is the former vp-safety for ATA, with more than 20 years of trucking-related safety experience.

About the Author

Stephen F. Campbell

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