Infrastructure Alert - August 6, 2013

by Cozen O'Connor

On Friday, both the House and Senate began their summer recess and will not return until Monday, September 9. After returning from the recess, Congress will have several pressing infrastructure issues to consider. Both the House and the Senate have stalled their respective FY2014 appropriations bills for the Departments of Transportation and Urban and Housing Development (THUD). Neither or both bills may pass, but with $10 billion separating the two, FY2014 appropriations may fall to a continuing resolution. Additionally, the House Transportation and Infrastructure Committee will release its water resources bill once Congress returns from recess. The House will consider its own bill, the Water Resources Reform and Development Act (WRRDA), in lieu of amending the Senate-passed, $12 billion S. 601, the Water Resources Development Act of 2013 (WRDA).

On July 25, President Obama delivered a speech at the Port of Jacksonville touting his “We Can’t Wait” initiative that has allowed for streamlining federal ports projects. Much like his previous speech at the Port of Miami, however, he did not include any funding specifics for his $50 billion infrastructure plan.


The House water resources bill, WRRDA, to be released after the recess, will likely be the subject of a markup in September, and as Congress is only in session nine days in September, will probably not be voted on until October. The bill is similar to its Senate counterpart in that it has been prepared in a bipartisan fashion and is expected to pass the Committee with relative ease.

Both the Senate and House THUD appropriations bills have encountered major issues. On July 31, Speaker of the House John Boehner (R-Ohio) pulled the House THUD appropriations bill from the floor only a few hours before amendments were to be voted on. Although Speaker Boehner insists that he had enough votes to pass the measure and instead pulled the bill over the deluge of amendments, this development signals a likely negative outcome for the bill. The House may not reconsider the THUD appropriations bill, and funding for the Department of Transportation and the Department of Housing and Urban Development may be headed for a continuing resolution. While Democratic opposition was united in castigating the bill for its lack of funding, the opposition that existed among Republican members varied between those who thought the bill cut too much funding and those who thought it cut too little.

Following the collapse of the House bill consideration prior to the recess, the Senate bill failed on a procedural vote. Every Senator in the Democratic caucus voted for cloture, and every Republican Senator but Sen. Susan Collins (R-Maine), who co-authored the bill, voted against cloture. Although Sens. Jerry Moran (R-Kan.), John Hoeven (R-N.D.), Mark Kirk (R-Ill.), Lisa Murkowksi (R-Alaska), and Thad Cochran (R-Miss.) passed the bill in a committee vote in July as well, only Sen. Collins voted to end debate on it. Significant Republican opposition to the bill stems from the fact that the bill disregards the spending caps in the Budget Control Act.

Prior to the failure of the procedural vote, the Senate considered several amendments. On July 25, the Senate tabled a motion by Sen. Pat Toomey (R-Pa.) to align the spending in the bill with the Budget Control Act spending caps, reducing the total from $54.0 billion to $45.5 billion, on a vote of 56-42. Several amendments passed by unanimous consent: an amendment from Sen. John McCain (R-Ariz.) to prohibit the Department of Transportation from obligating or expending funds on cybersecurity without detailing to Congress how such funds would be used, an amendment from Sen. Mark Udall (D-Colo.) to require the Federal Railroad Administration to evaluate regulations that govern the use of locomotive horns at highway-rail grade crossings, and an amendment by Sen. Coburn requiring agencies to post reports online that they submit to congressional committees unless such reports compromise national security or contain proprietary information. The only amendment that involved lengthy debate was an amendment from Sen. Rand Paul (R-Ky.) that would have redirected $1.5 billion in foreign aid to Egypt to funding for deficient U.S. bridges. His amendment was defeated by a vote of 86-13.

Before the end of the summer session, the House unanimously passed the Helping Heroes Fly Act, H.R.1344, with the unanimous Senate-passed modifications from the day before. The bill will expedite the airport security screening process for wounded and severally disabled veterans and service members. The bill now awaits the President’s signature.

The Senate re-confirmed Thomas Carper to a five-year term to the Amtrak Board of Directors.

Sen. John Thune (R-S.D.), Ranking Member of the Senate Committee on Commerce, Science, and Transportation, has introduced S. 1462, a bill to extend the positive train control system implementation deadline by five years and would allow the Federal Railroad Administration to grant additional delays of two years. Sens. Roy Blunt (R-Mo.), Claire McCaskill (D-Mo.), and Mark Pryor (D-Ark.) are cosponsoring the bill.

On August 1, Sen. Kirsten Gillibrand (D-N.Y.) and Rep. Jerry Nadler (D-N.Y.) introduced H.R. 2958/S. 1435, the Clean Ports Act of 2013. The bill would update federal law to ensure that ports can implement pollution-reducing programs such as clean truck programs in light of a recent challenge in federal court.

Rep. Rick Larsen (D-Wash.) has introduced H.R. 2944, the Transportation Investment Generating Economic Recovery for Cities Under-funded Because of Size (TIGER CUBS) Act of 2013. The bill would reauthorize the TIGER grant program and allocate 20 percent of TIGER funding for smaller cities with populations between 10,000 and 50,000.

Rep. Nick Rahall (D-W.V.), Ranking Member of the House Transportation and Infrastructure Committee, now has a challenger in his re-election race. State Sen. Evan Jenkins has switched from the Democratic party to the Republican party to challenge Rep. Rahall in the general election instead of the primary. As noted in the last Infrastructure Alert, Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) has two primary challengers.

Del. Eleanor Holmes Norton (D-D.C.) has been elected the Ranking Member of the Transportation and Infrastructure Subcommittee on Highways and Transit, replacing Rep. Peter DeFazio (D-Ore.).

In an op-ed published July 30, Rep. Duncan Hunter (R-Calif.), the Chairman of the Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation, defended the Jones Act as a “faithful defender of U.S. maritime capability” and “essential to America’s security and economic future.”


National Transportation Safety Board Chairwoman Deborah Hersman has been re-nominated to another two-year term. She and fellow board member Christopher Hart were re-nominated to the board through 2018 and 2017 respectively.

Sylvia Garcia will be nominated for Department of Transportation Chief Financial Officer and Assistant Secretary for Budget and Programs. She is currently the Acting Assistant Secretary for Budget and Programs and has served as Acting Chief Financial Officer since December 2012.

As required by the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), the Inspector General of the Department of Transportation released its Annual Report on Amtrak’s Budget and 5-Year Financial Plan. The Inspector General’s report found that Amtrak’s plan “lacks some required information, most notably regarding the company’s continued financial stability and several other performance metrics intended to ensure the railroad is improving its operating efficiency” and “ omits several important PRIIA-required metrics — such as debt service costs and equipment reliability statistics — that would demonstrate the extent of the railroad’s operating efficiency improvements.”

The Government Accountability office has released several notable reports of late: a report titled “National Transportation Safety Board: Management and Operational Improvements Found, but Strategy Needed to Utilize Cost Accounting System,” a report titled “Federal Vehicle Fleets: Adopting Leading Practices Could Improve Management,” and a report titled “Intermodal Transportation: A Variety of Factors Influence Airport-Intercity Passenger Rail Connectivity.”


California: Governor Jerry Brown has intervened to prevent the Bay Area Rapid Transit (BART) workers’ strike for at least one week because the strike would “disrupt public transportation services and will endanger the public's health, safety, and welfare.” Gov. Brown has created a three-member board to investigate the delayed strike over the course of the following seven days. In early July, the first BART strike lasted four days and cost the city approximately $73 million in lost productivity. The newly appointed board will provide Gov. Brown with a report on the contract negotiations, and Gov. Brown could impose a 60-day “cooling-off” period on BART and its unions that would further delay the strike. The last time a cooling-off period was invoked was to prevent a BART strike in 2001. The union is seeking higher raises than BART is offering and objects to a BART proposal for workers to pay into their pensions and fund some of their health costs, likening the proposed changes to a de facto pay cut.

Maryland: Governor Martin O’Malley announced yesterday that the estimated $2.15 billion Purple Line will be constructed and operated through a public-private partnership with a single firm. The Purple Line will be a 16-mile light rail line with 21 stations from Bethesda to New Carrolton, and while it would run independently from the WMATA Metro system, it would connect with the Metro’s Red, Orange and Green lines.

New York: Governor Andrew Cuomo has expanded to include public access to over 100 transportation datasets, maps and charts from the Metropolitan Transportation Authority, Port Authority of New York and New Jersey, NYS Department of Motor Vehicles, NYS Department of Transportation, NYS Thruway Authority, Capital District Transit Authority, and the NYS Bridge Authority. The initiative functions to increase government transparency and allow researchers and activists government data to aid in their efforts to foster innovation and efficiency.

Texas: Governor Rick Perry has now called a third special legislative session as Texas lawmakers try to pass a transportation bill. While the House and Senate have both agreed that about half of the oil and gas severance taxes should be directed to the state highway fund instead of the Rainy Day Fund, there has been disagreement as to whether or not a floor should be set to prevent the account from falling below a set balance. The bill would approve a referendum for a constitutional amendment that is estimated to fund about $840 million annually for transportation funding.

Virginia: The Department of Rail and Public Transportation has released its draft 2013 Virginia Statewide Rail Plan.

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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