Infrastructure Alert - October 16, 2013

by Cozen O'Connor

The government shutdown has now entered its third week, and the debt limit has become a central part of negotiations. Many infrastructure programs have grinded to a halt, as inspections, environmental review and rule-making personnel have largely been furloughed. While the emerging deal to fund the government and raise the debt ceiling is consuming congressional focus, the Water Resources Reform and Development Act of 2013 has been put on the back burner in the House.

The Economist and The Heritage Foundation published its recommendations for how the United States should address the transportation funding shortfall.


During last Friday’s Senate Committee on Commerce, Science, and Transportation hearing on “The Impacts of the Government Shutdown on Our Economic Security,” National Transportation Safety Board Chairwoman DeborahHersman explained that the NTSB has been particularly affected by the shutdown, causing lapses in investigations. She testified that while the NTSB is ready for a major transportation accident, the amount of furloughed employees has left the agency with no other choice but to not pursue investigations that they would have otherwise looked into. Her written testimony can be viewed here, and an archived webcast of the hearing can be accessed here.

On October 11, House Transportation and Infrastructure Committee Ranking Member Nick Rahall (D-W.Va.) wrote Speaker Boehner a letter describing the government shutdown’s costs to the national infrastructure and transportation safety. His letter notes that about 1,700 FAA safety inspectors were furloughed, the National Highway Traffic Safety Administration suspended all vehicle safety activities, and that the U.S. Army Corps of Engineers is not conducting regular inspections or safety reviews of dams, levees and navigation lock structures. His full letter can be viewed here.

The House Transportation Committee’s special panel on the national freight infrastructure held its final hearing on October 10. Despite considerable bipartisan agreement on numerous transportation and infrastructure proposals this term, the panel was not in agreement on how best to fund the Highway Trust Fund. Witnesses and representatives alike suggested numerous methods of compensating for the dwindling federal gasoline tax revenue, including most commonly raising the tax or imposing a vehicle miles traveled (VMT) tax. While all the panelists and witnesses agreed that the funding shortfall is a problem that requires an immediate, long-term solution, there was considerable disagreement on how best to increase revenue. The panel will now finalize its report to the full the committee.

As the House continues to pass piece-meal appropriations bills, the White House has largely opposed the efforts with few exceptions. On October 9, the House passed H.J. Res. 90, a bill to fund the FAA and end its furloughs, by a vote of 252-172. No House Republican representative opposed the measure, and 23 House Democrats voted in the affirmative. The White House released a statement that President Obama would veto the measure, and the Senate is not expected to vote on it. The Congressional Budget Office scored the bill at $10.1 billion in outlays and $11.9 billion in budget authority for the fiscal year.

Rep. Lee Terry, the Chairman of the House Energy and Commerce Subcommittee on Commerce, Manufacturing and Trade, introduced H.J. Res. 87, the “National Highway Traffic Safety Administration Continuing Appropriations Resolution, 2014,” a bill to fund the NHTSA.

The Water Resources Reform and Development Act of 2013, H.R. 3080, will likely be delayed from being assigned floor time at least until the debt ceiling and government shutdown issues are resolved. The House Transportation and Infrastructure Committee had passed the bill in September, but the bill was already delayed floor time over pressing Syria concerns and it will continue to be indefinitely delayed. The bill passed with bipartisan support in committee.

On October 4, the Senate passed H.R. 3095 by unanimous consent. The bill would bar the Federal Motor Carrier Safety Administration from issuing rules pertaining to professional drivers and sleep apnea without going through the formal rulemaking process, and had passed the House on September 26 by a vote of 405-0. The bill is currently awaiting the President’s signature.


On October 7, the Federal Aviation Administration announced that it would un-furlough 800 safety personnel, of which about 600 are safety inspectors. About 2,800 safety inspectors are still furloughed as well as those who register new aircraft. Among the furloughed at the Department of Transportation are a considerable amount of rule makers, delaying the rule making process. Workers who conduct Environmental Protection Agency environmental impact statements have also been furloughed, delaying indefinitely any project that requires an environmental impact statement from moving forward. The Federal Highway Administration published a list of 129 projects across 35 states that were amidst the environmental impact statement, all of which have now become delayed.

Amtrak recorded its highest ridership record this fiscal year, serving 31.6 million passengers. Ticket revenue also hit an all-time high of $2.1 billion, an increase of about $500 million from five years ago. Despite several disruptions, including Hurricane Sandy, the Northeast Corridor recorded its second highest ridership to date.


California: On October 11, the California High-Speed Rail Authority argued before a Sacramento Superior Court judge that the agency can begin using federal funds to start construction of the first 29 miles of the Central Valley track. The agency argued that doing so would not trigger a 2008 provision that would restrict funds until all funding sources be identified before the start of construction, as they are arguing that provision applies to only state funds and not the $3.24 billion in federal grant money that has been awarded.

Massachusetts: Yesterday, the Massachusetts Turnpike began collecting tolls at six Western interchanges for the first in time in over a decade. The reinstatement of tolling was a part of the recently passed transportation package and is expected to generate about $12 million in additional yearly revenue.

Washington: The Washington State Department of Transportation (WSDOT) released its independent review of the largest state transportation projects. The review recommends a different organizational structure of WSDOT, better assessment of risk, and reforming the contract rewarding methods, among other things. The report is available here.

Virginia: Gubernatorial candidate Terry McAuliffe received the endorsement of the Virginia Transportation Construction Alliance.

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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