Copyright 2003, Traffic World, Inc.
The Bush administration''s intended Surface Transportation Board nominees may give rail shippers the most sympathetic ear they''ve had at the STB in years.
Francis P. Mulvey helped draft a rail-competition bill that would have brought relief to captive shippers and placed new service reporting requirements on railroads; William D. Buttrey worked as a lobbyist for transportation giant FedEx Corp., itself a rail shipper.
But while some observers say the two would bring solid transportation backgrounds to the board, others say they would be the latest in a 50-year line of STB and Interstate Commerce Commission members without hands-on experience dealing with rail-shipper issues.
Earlier this month the White House announced its intention to nominate Mulvey, a Democrat from Maryland, and Buttrey, a Republican from Tennessee, to the STB. They will fill the seats left vacant by the resignations of Democrat Linda Morgan and Republican Wayne Burkes and join STB Chairman Roger Nober.
Mulvey currently serves as Democratic staff director for the Railroad Subcommittee of the House Committee on Transportation and Infrastructure. Previously he served as deputy assistant inspector general for rail, transit and special programs for the Department of Transportation. Buttrey, who is an independent consultant, previously served as a government affairs representative for FedEx Corp. Prior to that Buttrey was counsel for the Senate Aviation Subcommittee.
Those records represent more transportation experience in the federal government and private industry than most recent STB commissioners could boast. But a prominent shipper attorney said a lack of "hands-on" freight experience will mean an overreliance on Nober''s lead on regulatory issues, particularly when it comes to rail competition.
"I think Roger Nober certainly is to be commended for opening up the board by encouraging shippers to speak up and bring their problems," said Washington, D.C., attorney Fritz Kahn. "But I don''t think either (Mulvey or Buttrey) brings enough surface transportation experience to the agency, so my guess is they''ll probably tend to follow his leadership. Roger seems to have grasped the issues, and even though he''s been there a relatively short period of time, it''s a lot longer than either of these two by the time they actually join."
But sources on Capitol Hill who know Mulvey disagree.
"I''m not sure what kind of experience attorneys in town think somebody needs to have to be qualified to go to the (STB), but if either one was a shipper''s attorney, you can guarantee the railroads would have blocked him," said one Hill staffer who spoke on condition of anonymity. "If he worked for a railroad, that wouldn''t have passed the laugh test."
As staff director for the House rail subcommittee, Mulvey has worked on rail economic and regulatory issues for four years, the staffer said. "He knows Amtrak, he knows aviation as well. His work is fairly broad and I think it''s been deep in the area he''s going to be concentrating on. Whenever I need the answer to a railroad question that needs historical context, I can call Frank and he''ll know."
The staffer also pointed out that Nober''s background is highways. "Frank probably understands issues better than Roger, not the other way around. I think Frank is going to challenge Roger on a number of things. I think he''s going to be a good foil for Roger. I don''t think it''s going to be a rubber-stamp situation."
That challenge could stem from the fact that as a staff director to James L. Oberstar, D-Minn., Mulvey helped worked on the Oberstar-sponsored Surface Transportation Reform Act of 2003. The bill not only calls for the reauthorization of the STB, it seeks to encourage rail-to-rail competition in certain terminal areas, simplify the rate relief process for small captive grain shippers and, as with the airlines, require railroads to submit on-time performance reports to the Department of Transportation.
"Not that he''ll necessarily take Oberstar''s views, but (Oberstar) has a lot more of a pro-shipper background than probably anyone sent to the STB," said the source. "He has a long-standing interest in trying to address some of the perceived disparities between the shippers and the railroads." The staffer claimed railroads had concerns about Mulvey going to the STB because of that. The Association of American Railroads would not comment on either of the White House''s intended nominees.
Buttrey brings private-sector experience to the STB - federal statute requires at least one commissioner to have such experience but as a lobbyist for FedEx at the state level, his knowledge of railroads is expected to be limited. That is, one source quipped, except for "his knowledge that on their best days, the railroads can''t meet the level of FedEx on its worst day."
Mike Grisso, legislative director for the Alliance for Rail Competition, which represents captive shippers, is not as harsh. "FedEx is a big shipper, not as big into rails as UPS but they probably have their share of rough sailing. So I''m cautiously optimistic. Some shippers ask me why the White House would send anyone but a marionette of the railroads to the STB. But I don''t believe that. If they were to duplicate Roger Nober''s policy of being open and listening to what we have to say, that would be a great start. And having a full board is a good thing."
How soon the board actually will be filled is another question. At press time the White House had not formally nominated the two candidates. Feelings were mixed as to the advantages of a recess appointment by Bush, which would avoid a formal Senate confirmation and would get them to the STB before the end of the year.
But with no deadlines looming for major rate cases, the likelihood of a recess appointment is not strong. In addition, because the term for recess appointments expires at the end of the next full session, Buttrey and Mulvey would be up for renomination at the end of next year.
Because both Morgan and Burkes left before their terms expired, Mulvey will be nominated for the remainder of Morgan''s five-year term that expires Dec. 31, 2008; Buttrey for the remainder of Burkes'' term that expires Dec. 31, 2007.