Infrastructure Alert

by Cozen O'Connor

Congress returned from its April recess today and will continue deliberation on a surface transportation reauthorization. An announcement on the Water Resources Development Act reauthorization, which has been in conference for five months, could come as early as this week.

The Department of Transportation now estimates that the Highway Trust Fund will have reached depletion by August 29. The Moving Ahead for Progress in the 21st Century Act (MAP-21), the current surface transportation authorization, by contrast, will expire at the end of September. Transportation Secretary Anthony Foxx announced on April 22 that the Administration will present its own surface transportation reauthorization proposal to Congress soon. How the bill will be funded, the chief obstacle to a surface transportation reauthorization, persists, with legislators and public opinion polls indicating a distaste for raising the federal gasoline tax although inflation and motorist behavior have led to diminishing tax revenue.

The Heritage Foundation has released a report advocating for the decentralization of surface transportation spending from the federal government to state and local governments.

On Friday, April 25, a federal judge approved the merger between American Airlines and U.S. Airways.


On April 10, Senate Environment and Public Works Chairman Barbara Boxer, Committee Ranking Member David Vitter (R-La.), Transportation and Infrastructure Subcommittee Chairman Tom Carper (D-Del.), and Subcommittee Ranking Member John Barrasso (R-Wyo.) announced that they had reached an agreement in principle on a surface transportation reauthorization bill. Their agreement includes that the bill be long-term, likely six-years, with its spending adjusted for inflation, maintaining the formulas for existing core programs, and requiring better information sharing regarding federal grants. Such a bill would cost about $100 billion, but the agreement does not include how the bill would be financed.

H.R. 4156, the Transparent Airfares Act of 2014, passed by a voice vote in the House Transportation and Infrastructure Committee on April 9. The bill, introduced by Chairman Bill Shuster (R-Pa.), would allow airlines to advertise airfare without government-imposed taxes and fees. A 2012 Department of Transportation rule requires that airlines advertise only the full ticket cost, including all imposed taxes and fees. The Congressional Budget Office scored the bill on April 18, and found that it would have no significant effect on the federal budget.

Rep. John Delaney (D-Md.) and Rep. Mike Fitzpatrick (R-Pa.) have written a “Dear Colleague” letter touting their bill, H.R. 2084, the Partnership to Build America Act, as a potential mechanism to strengthen the Highway Trust Fund. The bill would create a $50 billion infrastructure bank called the “American Infrastructure Fund” to provide $750 billion in financing for transportation, energy, communications, water and education infrastructure projects.

On April 8, Sen. Mary Landrieu (D-La.) gave a speech defending the Jones Act and its impact on Louisiana, stating that the “Department of Homeland Security routinely – and in my view abusively – approved waivers to this Jones Act.”

Rep. Tom Petri (R-Wis.), who first assumed congressional office in 1979 and has served ever since, has announced his retirement. Rep. Petri, the Chairman of the House Transportation and Infrastructure Subcommittee on Highways and Transit, will retire at the end of this term.

Tomorrow, April 29, the House Transportation and Infrastructure Subcommittee on Water Resources and Environment will hold a hearing titled, “A Review of Recent United States Army Corps of Engineers Chief’s Reports and Post Authorization Change Reports.” Major General John Peabody, the Deputy Commanding General of Civil and Emergency Operations of the U.S. Army Corps of Engineers, will testify.

On April 30, the House Transportation and Infrastructure Subcommittee on Aviation will hold a hearing titled “Air Service to Small and Rural Communities.” Witnesses include Susan Kurland, Assistant Secretary for Aviation and International Affairs of the Department of Transportation; Dr. Gerald L. Dillingham, Director of Civil Aviation Issues of the Government Accountability Office; Captain Lee Moak, President of the Air Line Pilots Association; Bryan K. Bedford, President and CEO of Republic Airways Holdings; Dan E. Mann, Executive Director of the Columbia Metropolitan Airport; and Brian L. Sprenger, Airport Director of the Bozeman Yellowstone International Airport.

On April 30, the Senate Commerce, Science and Transportation Committee will hold a hearing titled “Transportation Security Administration Oversight: Confronting America’s Transportation Security Challenges.” Transportation Security Administration (TSA) Administrator John Pistole will testify.


The Department of Transportation is proposing the elimination of Essential Air Service subsidies to 13 airports: Athens, Ga., Bradford, Pa., El Centro, Calif., Fort Dodge, Iowa, Franklin/Oil City, Pa., Greenville, Miss., Hagerstown, Md., Jackson, Tenn., Lancaster, Pa., Kingman, Ariz., Macon, Ga., Merced, Calif., and Muscle Shoals, Ala. Under new eligibly criteria in the FAA Modernization and Reform Act of 2012, the FAA concluded that these 13 airports no longer qualified for the subsidies. The tentative order also noted that this elimination “is not a one-time exercise,” and that as more data becomes available, more airports will likely be determined to be ineligible.

On April 14, the Federal Aviation Administration announced the completion of the Automatic Dependent Surveillance-Broadcast (ADS-B) radio network installation nationwide. This infrastructure upgrade is a part of the Next Generation Air Transportation System (NextGen) initiative and will help air traffic controllers track aircraft with greater accuracy and give pilots more information through the use of GPS. One hundred of the 230 air traffic facilities in the United States are now using ADS-B to separate traffic, and all 230 are expected to by 2019.

On April 9, the Federal Railroad Administration announced its intention to issue a proposed rule requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most mainline freight and passenger rail operations.

Transportation Secretary Anthony Foxx has appointed 10 new members to the Marine Transportation System National Advisory Council.


California: The Final Environmental Impact Report/Environmental Impact Statement for the Fresno to Bakersfield section of the California High-Speed Rail project has been released. The California High-Speed Rail Authority will hold a two-day board meeting on May 6 and 7 to consider whether to certify the report under the California Environmental Quality Act process. On April 11, the State Public Works Board approved the High-Speed Rail Authority’s acquisition of four parcels of land in Fresno through eminent domain, if necessary. The Authority has seized 14 properties thus far.

Maryland: The Baltimore chapter of the International Longshoremen’s Association could be seized by the national organization due to financial practices that could expose the local chapter to Department of Labor investigations or liability. The tension or possible takeover between the local chapter and the national chapter has the potential to effect contract negotiations and port operations. The chapter was last under trusteeship in 2005 and 2006.

Oklahoma: Facing a stark increase in earthquakes, perhaps linked to hydraulic fracturing in the state, the Oklahoma Department of Transportation has been consulting with officials in California to ensure that infrastructure, particularly bridges, can handle the increase in seismic activity. The Oklahoma Geological Survey has concluded that there is not enough evidence to link the increased earthquakes with fracking, while the U.S. Geological Survey contends that the sudden increase in earthquakes is abnormal. Regardless, the increase in earthquakes is bringing increased scrutiny to the structural integrity of the 6,800 bridges in Oklahoma, particularly the 468 classified as structurally deficient.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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