Infrastructure Alert - September 4, 2013

by Cozen O'Connor

Congress will return from its recess on Monday, September 9, and will address a plethora of pressing issues before the end of the month. As neither the House nor the Senate has passed a FY2014 appropriations bill for the Departments of Transportation and Urban and Housing Development, a continuing resolution for those appropriations will be debated and passed before the end of the fiscal year, September 30. Before the recess, the House Transportation and Infrastructure Committee announced that it would release its own water resources 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). Due to the pressing debate and vote on military authorization in Syria, and given that the House is only in session for nine days in September, WRRDA is unlikely to pass the House this month.


On August 15, Sens. Patty Murray (D-Wash.) and Maria Cantwell (D-Wash.) announced new legislation titled “The Maritime Goods Movement Act for the 21st Century.” The bill would increase port spending through eliminating existing tax benefits enjoyed by oil and gas companies and replacing the Harbor Maintenance Tax with the new “Maritime Goods Movement User Fee.” The new fee would be fully available to Congress to direct for port operation and maintenance. The bill would also attempt to prevent shippers from ducking the fee through using Canadian and Mexican ports, as well as prevent funds from the Harbor Maintenance Trust Fund from being used for irrelevant projects. While the bill has been announced, it will not be formally introduced until after the recess.

On August 22, the Congressional Budget Office scored S. 1072, the Small Airplane Revitalization Act of 2013, concluding that, if enacted, the bill would not have any effect on direct spending of revenues. The bipartisan bill, introduced by Sen. Amy Klobuchar (D-Minn.) and currently carrying 15 co-sponsors, would require the Federal Aviation Administration to issue a final rule related to the certification and safety requirements of small airplanes by the end of 2015.

Rep. Mike Michaud (D-Maine) has announced that he is running for governor in the 2014 election. Rep. Michaud is a member of the Committee on Transportation and Infrastructure, and sits on the following subcommittees: Economic Development, Public Buildings, and Emergency Management; Railroads Pipelines, and Hazardous Materials; Water Resources and Environment; and Highways and Transit.


The Justice Department’s lawsuit against the proposed American Airlines-US Airways merger has been tentatively scheduled for November 25. The AFL-CIO’s Transportation Trades Department (TTD) wrote the Attorney General to voice its opposition to blocking the merger, stating that the Department of Justice’s “actions run counter to the interests of employees at these two air carriers represented by TTD unions and are inconsistent with the DOJ’s recent treatment of transactions involving airline consolidation.”

The Hurricane Sandy Rebuilding Task Force, a federal task force created by executive order in December 2012, published its report, “Hurricane Sandy Rebuilding Strategy: Stronger Communities, A Resilient Region.” The report includes dozens of policy recommendations, as well as pre- and post-Sandy transportation usage statistics.

Amtrak ridership in July grew 4.8 percent to more than 2.9 million passengers, an all-time record for most passengers in one month.

On August 23, the Federal Motor Carrier Safety Administration (FMCSA) released its final rule on the Unified Registration System, a registration database for motor carriers, brokers, freight forwarders and other required to register with the FMCSA. The rule implements statutory provisions from the ICC Termination Act of 1995 (ICCTA) and the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, 2005 (SAFETEA-LU).

On August 21, the Federal Transit Administration (FTA) made $29.9 million in FY2013 funds available for the Discretionary Passenger Ferry Grant program. The FTA has decided to limit the grants to capital projects.


The National Conference of State Legislatures passed a resolution requesting Congress to create a $20 million program, with no more than $2 million to be allotted to any one state, “to support state-level pilot programs to explore transportation funding alternatives to fuel taxes.”

California: On August 16, Sacramento County Superior Court Judge Michael Kenny ruled that the California High-Speed Rail Authority has failed to comply with various financial and environmental requirements from Proposition 1A that granted initial funding for the project in 2008. The High-Speed Rail Authority was required under Proposition 1A to clear all environmental hurdles prior to construction and secure funding for the entire first segment before construction began. Judge Kenny did not decide to halt the project funding, but instead an additional hearing that has yet to be scheduled will determine the fate of the Legislature’s financial appropriation. The ruling, however, addresses only an older version of the High-Speed Rail Authority’s business plan from 2011 that has since been updated and has reduced the overall cost of the project.

Nevada: Governor Brian Sandoval is urging the Nevada Department of Transportation to complete its study of road-funding options in time for debate by the 2015 Legislature. The study will include the potential impact of a vehicle miles traveled (VMT) tax. With waning revenues from the traditional gasoline tax, the state highway trust fund is expected to garner about 18 percent less revenue per year by 2016, or about $40 million less. A VMT tax would replace the current state gasoline tax with a fee that would be charged for each mile travelled. The debate over the efficacy of a VMT tax, however, will invite concerns over personal privacy and automobile tracking for VMT fee purposes.

Virginia: On August 16, the Department of Rail and Public Transportation and Transit Service Delivery Advisory Committee published its draft report of Performance-Based Operating assistance Allocation Methodology for comment.

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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