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A Golden Opportunity Missed

On June 9, President Clinton signed the $217 billion Transportation Equity Act (TEA), boosting federal funding to the nation's highways by 46% over the next six years. It is the largest public works program in the nation's history, and could bring a windfall of business for tank truck carriers.

President Clinton said during the signing that "this bill would build a 21st century transportation infrastructure." American Trucking Associations President Walter McCormick heaped additional praise on the bill, saying that "overall, this legislation is very, very good for trucking."

Clearly, Congress put together a superb highway funding package, but came up short in several areas. For one, Congress failed to formally take the Highway Trust Fund off the federal budget. However, the bill does say that new revenue flowing into the fund from road taxes will be spent on transportation.

A more serious failure was the decision to drop reauthorization of the Hazardous Materials Transportation Act (HMTA) from the legislative package. Hazardous materials haulers could pay a high price for this omission.

Reauthorization of the 22-year-old HMTA was included in the Senate version of the highway funding bill. It was missing from the final product that came out of the conference committee.

At one point, the HMTA reauthorization seemed likely to sail through with little difficulty. The hazardous materials transport community and DOT were united in favoring the Senate bill, which fixed a typographical error that occurred when the HMTA was reauthorized in 1990.

The error diluted the Department of Transportation's (DOT's) authority while expanding that of the Occupational Safety and Health Administration (OSHA). This mistake allows OSHA to write health and safety regulations for truck drivers involved in hazardous materials transportation. Previously, transportation-related rulemaking rested solely with DOT.

The benefit of placing transport-related rulemaking authority with DOT is that the department has the power to preempt state regulations that would impede the smooth flow of commerce. OSHA has no preemption clause.

Each state can write its own OSHA-related rules. For instance, hazardous materials carriers might have to comply with a multitude of respirator rules. Each state could require a different type of cartridge or a different style of respirator.

With this sort of threat hanging over the industry, it's clear that the law needed a correction. Unfortunately, it didn't happen because support evaporated. First, DOT reversed its backing for the correction.

Next, members of the House of Representatives, including a whole lot of Republicans, caved in to organized labor. They were spooked by a threat that they would be vulnerable to charges in the fall elections that they had compromised driver safety.

Nothing could be further from the truth because driver safety is fully covered by the DOT regulations. This was a power play by organized labor members, and they were successful in selling their lie.

Organized labor wants the Department of Labor (DOL) and its agencies, such as OSHA, to have greater transport-related rulemaking authority. Basically, organized labor owns the DOL. If organized labor prevails in the HMTA reauthorization, tank truck fleets could face increasingly restrictive and costly driver regulations, such as in-cab ergonomic rules and prohibitions on drivers climbing on tank trailers.

The typographical error must be corrected. For one thing, OSHA doesn't need any additional rulemaking power, nor does organized labor. In addition, the tank truck industry needs the regulatory uniformity that is provided through DOT.

The hazardous materials transportation industry is going to have to push for the correction in HMTA. It is doubtful that Congress will take action on its own. Reauthorization is stillpossible this year, but it will take work.

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