May 15, 2012 Interim Update

PREPARED BY CATHY CONNOR - MANAGER OF GOVERNMENT AFFAIRS

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Just a few minutes ago, US DOT Secretary Ray LaHood released a copy of a letter he has sent to Senator Barbara Boxer, chair of the surface transportation authorization conference, outlining the Department's positions on various issues under review by the conference.  Here is a link to the letter.  The letter reiterates the potential veto threat regarding the Keystone XL pipeline project.  It also raises opposition to many of the House's project delivery and environmental streamlining provisions.  The letter also addresses safety issues, program consolidation, ITS programs, Buy America, Transit New Starts, TIFIA, Private Activity Bonds and so on.  

The House and Senate conferees on the surface transportation authorization bill met last week for an initial formal session.  Other than naming Senator Barbara Boxer (D-CA) as chair of the conference and Rep. John Mica (R-FL) as the vice-chair, the remainder of the meeting was a series of short opening statements by most of the 47 House (33) and Senate (14) conferees.  Since then, the conference deliberations have moved behind closed doors.  While we know that the staff is working to sort out the various issues, there have been very few leaks about details or progress.  The immediate task is to prepare a "side by side" comparing each Senate and House provision.  This is usually a tedious, but relatively easy task, except that this time the House bill is essentially a "shell" bill that simply extends existing law for another 90 days.  Still to be determined is how many, if any, of the original provisions included in HR 7, the House five-year bill which was never passed, will be included in the final bill despite being outside the official "scope" of the conference.  

Other potential sticking issues include reaching agreement on how to fund even the modest, $106B Senate bill because of concerns about the "pay fors" which use ten years worth of offsets to pay for only a two year program and which rely on a variety of non-transportation related revenue sources such as pension stabilization, levies on Medicare providers, taxing roll-your-own-tobacco, etc.  

Another issue being watch closely is the role of the numerous Republican freshmen who were selected to serve as conferees.  May have never previously served as elected officials, none have ever served on a US Congress conference committee and many, while generally supportive of transportation programs, have strong opinions about the appropriate role of the federal government and deficit spending.  

Chairman Boxer has committed to weekly press conferences to apprise stakeholders on progress.  This week she pointed to the staff work underway to parse out key issues into sub-areas.  She also indicated that she would be meeting privately with Chairman Mica tomorrow (Thursday May 17.)  Other meetings that have occurred include one between Chairman Fred Upton (R-MI) of House Energy and Commerce, a strong Keystone proponent, and the Republican Senators on the conference committee.  Also, it is being reported that the House Republicans have designated certain T&I members as leads on various aspects of the bill, but that all Democratic conferees will participate in all aspects of the bill. 

The next potential formal meeting of the conference committee will not take place until the week of June 4 because after this week, either the House or Senate will be in recess for the following two weeks.  However, the staffs will be working diligently to resolve as many non-controversial issues as possible. 

The goal is still to complete the conference and produce a final bill that both the House and Senate can approve by June 30 or shortly after.  It is possible that the transportation issues may be worked out, but other unrelated issues such as the controversial Keystone XL Pipeline and coal ash could be sticking points to a final deal.  

 

April 26, 2012 Interim Update

The long awaited conference to finalize a multi-year surface transportation authorization bill is ready to begin.  This week both the House and Senate approved motions to proceed to conference and named their conferees.  Traditionally congressional conference committees negotiate the differences between the House and Senate-passed versions of a bill and approve a final bill which is then returned to the House and Senate for an up or down vote with no amendments permitted.  The conference on the surface transportation authorization bill will be very unusual because while there is a Senate-passed bill, S. 1813, the House abandoned its multi-year reauthorization bill, HR 7, because of the inability to get enough votes and instead passed only a three-month extension of current law, HR 4348.  Theoretically, conferees can only address issues that are "in scope", meaning issues that are included in one or both of the bills.  It is not quite clear to anyone how the conference committee will develop a final bill. 

Further complicating the conference is the addition to the House bill of a provision approving the highly controversial Keystone pipeline project.  The Administration has already announced that it will recommend a veto of the transportation bill if it includes the Keystone provision.  

The House and Senate will both be out on recess next week so the first formal meeting of the conferees will not take place until May 8 at 3:00pm.  However, in the meantime, the staff will be hard at work sorting out the issues and resolving the non-controversial ones.  All the major industry stakeholders groups are engaging in aggressive grassroots efforts to contact conferees while they are home in their districts over recess and urge them to pass a multi-year authorization bill.  

The current short-term extension of the surface transportation program expires on June 30, 2012.  

Listed below are the members named to the House and Senate conference committee.   

Senate - 8 Democrats and 6 Republicans - Senator Boxer will serve as the chair of the entire conference.  Conferees are primarily the Chair and ranking minority member of the committees and subcommittees of jurisdiction.   

Democrats: EPW - Boxer (CA), EPW/Finance - Baucus (MT), Commerce - Rockefeller (WV), Banking - Johnson (SD), Banking/Finance - Menendez (NJ), Majority Whip - Durbin (IL), Banking/Finance/Democratic Policy Committee Chair - Schumer (NY), Commerce/Finance - Nelson (FL) 

Republicans: EPW - Inhofe (OK), EPW - Vitter (LA), Finance - Hatch (UT), Banking - Shelby (AL), Commerce - Hutchison (TX), Energy/Appropriations/author of Keystone Pipeline amendment - Hoeven (ND) 

House - Unlike in the Senate, where all the conferees have a say over the entire bill, the House conferees can only negotiate and approve the sections of the bill they have jurisdiction over - the reason for the large number of conferees.  Note the large number of freshman Republicans named.  Historically, conferees are usually the most senior members.  No members of the House Republican leadership were named.  

Committee on Transportation and Infrastructure (12 R, 9 D - 21 total):

Mica (R-FL) - Chairman

Young (R-AK)

Duncan (R-TN)

Shuster (R-PA)

Capito (R-WV)

Crawford (R-TX) Freshman

Beutler (R-WA) Freshman

Bushon (R-IN) Freshman

Hanna (R-NY) Freshman

Southerland (R-FL) Freshman

Lankford (R-OK) Freshman

Ribble (R-WI) Freshman 

Rahall (D-WV)

DeFazio (D-OR)

Costello (D-IL) Retiring

Norton (D-DC)

Nadler (D-NY)

C. Brown (D-FL)

Cummings (D-MD)

Boswell (D-MO)

T. Bishop (D-NY) 

Committee on Energy and Commerce (2 R, 1 D)

Upton (R-MI) - Chairman

Whitfield (R-KY)

Waxman (D-CA) 

Committee on Natural Resources (2 R, 1 D)

Hastings (R-WA) - Chairman

R. Bishop (R-UT)

Markey (D-MA) 

Committee on Science, Space and Technology (2 R, 1 D)

Hall (R-TX) - Chairman

Cravaack (R-MN) Freshman

E.B. Johnson (D-TX) 

Committee on Ways and Means (2 R, 1 D)

Camp (R-MI) - Chairman

Tiberi (R-OH)

Blumenauer (D-OR)

April 19 Interim Update

In addition to all of the activity on the surface transportation reauthorization bills, Congress has begun to act on the FY'13 federal agency appropriations bills.  Today, the full Senate Appropriations Committee voted to approve the FY'13 THUD (DOT) annual funding bill.  The bill was marked up in subcommittee on Tuesday.  Typically, the House passes its version of the appropriations bill first, but it appears the House will not act on the DOT bill until late May or early June. 

The Senate DOT appropriations bill includes: 

FHWA - $39.1B for the highway obligation limitation, the same as FY'12

FTA - $10.4B for the total transit program including $2.04B for the New Starts/Small Starts program, a $89M increase over FY'12, and $8.36B for the formula grant program, the same as FY'12. 

FAA - $3.35B for the Airport Improvement Program (AIP), the same as FY'12

Amtrak - $1.45B, the same as FY'12, although less than the $1.55B the Administration requested and the $2.17B Amtrak requested

High Speed Rail - $100M, there was no money appropriated for HSR in FY'12

TIGER V - $500M, the same as FY'12, with $120M of that amount reserved for projects in rural communities

HUD - $50M for the Sustainable Communities Initiative, there was no money appropriated for this program in FY'12  

There are no project earmarks in the bill.  

While congressional leaders have indicated they expect both the House and Senate to pass most, if not all, the annual appropriations bills out of the respective bodies, it is unclear if the bills can be reconciled in conference before the end of the fiscal year on September 30 or before Congress adjourns in early October for the elections.  It is likely that many federal agencies will have to be funded under a Continuing Resolution (CR) until Congress meets after the elections in a Lame Duck session.  

April 18, 2012 Interim Update

One April 18, the full House debated and passed HR 4348, a bill to extend current highway and transit programs through September 30 that will be used as a "shell" bill to go to conference with the Senate's $109B two-year surface transportation reauthorization bill, MAP-21.  The bill also includes approval of the Keystone pipeline and the RESTORE Act related to restoration of the Gulf Coast.  The bill passed 293-127. 

During the floor debate, the House approved an amendment to include some of the environmental streamlining provisions from HR 7, the original House five-year reauthorization bill, so that the House will not have to go to conference with the Senate without some policy provisions to negotiate.  Earlier in the week, it seemed likely that significantly more HR 7 policy provisions would be added to the new "shell" bill, such as program consolidation and performance measures, but that did not occur.  

During the floor debate, House T&I Committee Chairman John Mica agreed to send a letter to Speaker Boehner asking him to immediately name House conferees and expedite the start of a conference with the Senate to develop a final bill.  The Democratic leaders of the T&I Committee agreed to sign the letter.  Conference could start as early as next week. 

Yesterday, OMB issued a Statement of Administration Policy (SAP) on the new House bill.  Here is a link.  The Administration strongly opposes HR 4348 and is threatening to veto the bill over the Keystone pipeline provision because it "circumvents a longstanding and proven process for determining whether cross-border pipelines are in the national interest by mandating the permitting of the Keystone XL pipeline before a new route has been submitted and assessed."

 

April 13, 2012 Interim Update

Congress returns from its two-week Spring recess on Monday.  Up until yesterday, there were few, if any, new developments on the surface transportation reauthorization effort other than the grassroots activities by stakeholder groups urging quick passage of a multi-year bill before the latest short-term extension runs out on June 30.  However, yesterday news began to leak out about a potential new House plan. 

It appears that House leadership has instructed the House T&I Committee to draft another short-term extension bill that would extend from July 1 through the end of the fiscal year on September 30.  The bill would also include approval to construct the highly controversial Keystone XL pipeline project, a top Republican priority.  Assuming the House can get the 218 votes it needs to pass the bill, it would be used as a vehicle to go to conference with MAP-21, the Senate-passed reauthorization bill, S. 1813.  This is despite the fact that this potential House bill would not include any of the policy or funding provisions previously included in HR 7, the House five-year reauthorization bill.  This highly unusual move to pass a "shell" bill would put the House at a serious disadvantage when negotiating with the Senate on the provisions of a final bill.  

We expect Speaker Boehner to make an official announcement about the process and timing for debating a potential shell bill early next week when Congress returns to session.  In the meantime, it is still somewhat speculative.  The understanding seems to be that while a new bill may extend the current program through September 30, the goal would be to pass a bill and conference with the Senate before the end of June.  

The good news is that this effort may be a way (potentially the only way) for a multi-year reauthorization bill to pass this year before the November elections.  However, it is unclear if the House has enough votes to pass such a bill given continuing Democratic opposition to the Keystone pipeline project and tea party opposition to the funding offsets in the Senate bill.  Also unknown is whether the President would sign a bill that includes approval of the pipeline given his previous objections to the project.  

It would also mean that a five-year bill is no longer a realistic option and it is unclear how the many carefully crafted House policy provisions would fare in what would likely be a quick and highly non-traditional conference on the bill. 

FY'13 DOT Appropriations - In spite of all the focus on the authorization process, Congress is starting to move on the FY'13 federal agency appropriation bills.  The Senate Appropriations Subcommittee is tentatively scheduled to mark-up the FY'13 DOT annual funding bill on April 17.  The House Appropriations Committee will mark-up several bills next week, including the Energy & Water bill which funds the Corps of Engineers, but is not expected to act on the DOT bill until late May or June. 

March 30 Interim Update

This morning President Obama signed into law a 90-day extension of the surface transportation programs. This extension will be the 9^th since SAFETEA-LU expired on September 30, 2009.

On March 29, the US House voted to pass a 90-day extension of the surface transportation programs by a vote of 266 to 158.  Unlike previous attempts earlier in the week to pass a short-term bill which required a 2/3vote, this bill was brought up under regular order and only required 218 votes - a simple majority.  Thirty-five Democrats joined all but 10 Republicans in voting for the bill despite previous threats by Democratic leaders that no Democrats would support the bill.  The bill is "clean" meaning it does not include any policy or funding changes from current law.  It will extend the highway and transit programs through June 30, 2012 while the House continues to try to pass its version of a multi-year bill.  

Shortly after House passage, the Senate approved the 90-day extension under Unanimous Consent, a process that does not permit any debate or amendments, but does require unanimous support.  

When the House and Senate return to session on April 16, they will continue to try to pass a longer term bill.  The Senate has already passed MAP-21 (S. 1813), a two-year bill.  The House continues to struggle to find the necessary funding offsets and the votes to pass its five-year bill, HR 7.  The House can either pass HR 7, or amend and pass the Senate bill instead (now introduced in the House as HR 14), or pass a resolution allowing them to skip a floor vote and go directly to conference with the Senate - a highly unusual move.  The first option may not be doable and the second two options are not very appealing to House Republican leaders who do not want to appear to be capitulating to the Senate.  

Additional implications of another short-term extension include:

• as of June 30, the Senate two-year MAP-21 bill becomes really only a 15-month bill (extending through the remainder of FY'12 and FY'13) - not much longer than some past extension bills. 
• June 30 is likely the last date prior to the November elections that Congress can realistically complete a multi-year bill.  After that point, the various summer recesses begin followed by an early adjournment to campaign for the November elections.
• the longer the extensions last without any addition of new revenue into the Highway Trust Fund, the larger the deficit in the Trust Fund keeps getting. 

 

March 19, 2012 Update

Both the House and Senate are in session this week; however, despite the huge victory in the Senate last week with passage of a surface transportation authorization bill, it appears the House will not bring a reauthorization bill to the floor until the week of April 16, at the earliest. This is very disappointing and disconcerting news, particularly since the current short-term extension expires in less than two weeks on March 31, 2012.  

Surface Transportation Authorization

On March 14, the US Senate passed S. 1813, a two-year, $109B authorization bill, by a very large, bi-partisan vote of 74 to 22.  All members of the Democratic caucus supported the Senate bill except for Senator Lautenberg (NJ) who was absent to attend the funeral of Rep. Donald Payne.  The 22 Republicans who voted for passage are: Lamar Alexander (TN), Roy Blunt (MO), John Boozman (AR), Scott Brown (MA), Saxby Chambliss (GA), Thad Cochran (MS), Susan Collins (ME), Chuck Grassley (IA), Dean Heller (NV), John Hoeven (ND), Kay Bailey Hutchison (TX), Jim Inhofe (OK), Johnny Isakson (GA), Jerry Moran (KS), Lisa Murkowski (AK), Pat Roberts (KS), Jeff Sessions (AL), Richard Shelby (AL), Olympia Snowe (ME), John Thune (SD), David Vitter(LA) and Roger Wicker (MS).

Here is a link to the Senate vote tally to see the complete roll call.  Details about the provisions in the final bill, including the approved floor amendments, will be distributed shortly. 

According to comments made by House T&I Committee Chairman John Mica late last week, the House will not consider the Senate version of the bill; rather it will continue to work to revise its five-year bill, HR 7, to gain the necessary 218 votes for passage.  However, the House will not bring a revamped bill to the floor until mid-April after the House and Senate return from their two-week Easter recess.  House leaders say they need the extra time to identify additional sources of funding and because floor time during the last two weeks in March will be devoted to debating the FY'13 Budget Resolution (see more below).  There is considerable concern that this delay will seriously slow momentum on the bill. 

As a result, the highway and transit programs will need to be extended beyond the March 31 expiration of the current extension.  It is likely that the House will propose a new short-term extension through the end of May.  Any proposed extension must originate in the House. 

On March 15, Senate EPW Committee Chairman Barbara Boxer and Senate Banking Committee Chairman Tim Johnson wrote a joint letter to House Speaker John Boehner and Majority Leader Eric Cantor asking them to immediately take up and pass the Senate's version of the bill.  Here is a link to the letter and to a chart they included showing a state by state breakdown of the jobs supported by the Senate MAP-21 bill.  There is no official word yet from the Senate on a plan to pass another extension, but they are likely to oppose such an effort now that they have passed their version of the bill. 

Further complicating the situation is action this week in the House on the FY'13 Budget Resolution, a non-binding blueprint for the annual appropriations process.  Last year's FY'12 House Budget Resolution, the so-called "Ryan Budget", cut highway and transit funding by close to 30%.  The initial version of the House surface transportation authorization bill incorporated those extreme funding cuts until it became clear that there were not enough votes to pass such a bill and the House funding levels were revised up to current levels, pleasing transportation stakeholders, but angering many fiscal conservatives, particularly many House freshman tea party members. 

It is expected that this year's House Budget Resolution will again cut transportation programs to a level that can be supported solely by the dwindling revenues in the Highway Trust Fund, possibly even lower than last year.  However, the Resolution will likely include a "reserve fund" that will permit funding levels to increase if additional funding and offsets are identified, such as the energy exploration and drilling provisions that Speaker Boehner is championing.  Such a "reserve fund" was not included in last year's House Budget Resolution.  The Senate is not expected to adopt a Budget Resolution this year, so any House-passed measure will apply only in the House.  

Other News

In the March 12 Federal Register, FTA published the FY'12 Alternatives Analysis Discretionary Grant application solicitation notice, which announces the availability of $25M in FY'12 Alternatives Analysis (AA) Grant funds (Section 5339).  Applications are due by April 19, 2012, with award announcements anticipated in August 2012.  Here is a link to the NOFA. 

In the March 15 Federal Register, FHWA and FTA published a joint Notice of Proposed Rulemaking (NPRM) that details proposed changes to the current FTA/FHWA regulations on NEPA.  The most significant change would be to expand the list of projects that can meet NEPA requirements with a categorical exclusion (CE).  The list of projects qualifying for CEs, if adopted in the final rule, would include busway and streetcar projects within existing transportation rights-of-way.  In addition, certain qualified projects would be permitted to submit less intensive NEPA evaluations and to consider environmental impacts earlier in the planning process.  FTA claims in the NPRM that processing time on affected projects will be reduced by 85%.  Comments must be submitted by May 14.  Here is a link to the NPRM. 

As previously reported, comments on the FTA New Starts/Small Starts NPRM and associated policy guidance are due to FTA by March 26.  The proposed changes to the New Starts and Small Starts criteria are substantial and will affect all New Starts/Small Starts projects that have not been approved into Preliminary Engineering or Project Development on the effective date of the rule.  FTA's goal is to finalize the rule this year. 

US DOT has released its latest Conditions and Performance Report (C&P), a biennial report prepared by the Department on the status of the nation's transportation infrastructure.  Here is a link to the 2010 Report along with an Executive Summary.  As usual, the report shows a large gap between current spending and projected levels of investment needed.  This latest report projects that $101B, plus increases for inflation, would be needed annually over the next 20 years from all levels of government - local, state and federal - just to keep the highway system in its current state.  In addition, between $20.8B and $24.5B will be needed annually to attain a state of good repair for the nation's transit systems.  The information in the report is based on 2008 data. 

 

March 8, 2012 Interim Update

On March 7, Senate leaders reached a deal on amendments to the two-year surface transportation reauthorization bill, S. 1813, putting the bill on course for passage next Tuesday, March 13.

On Thursday, March 8, the Senate started to vote on a series of 30 amendments to S. 1813 - some germane and some non-germane.  The germane amendments will require 50 votes to pass, the non-germane ones will require 60 votes.  See below for the list of the amendments to be brought up.  Seven amendments were dealt with on Thursday. The Senate will not be in session on Friday, March 9, so the debate will carry over to Tuesday, March 13 when they are back in session.  The Senate debate and voting can be viewed live on TV on C-Span 2. 

The deal includes votes on several controversial non-germane amendments, including a proposal to block EPA regulations on mercury emissions from industrial boilers (Rejected), dueling GOP and Democratic amendments on the controversial Keystone XL pipeline (both Rejected), an amendment on eliminating duplicative government programs (Rejected), and a proposal to crack down on offshore tax havens.

On the transportation side, amendments up for a vote deal with privatized highways, state-by-state funding formulas, Buy America, off-system bridges, tolling and gas tax flexibility. 

In yet another confusing development, on March 8 House Speaker Boehner repeated remarks he made the previous day following the House Republican Conference meeting that he intends to bring the "Senate Bill" , or something close to it, to the House floor when the House returns from their recess on March 19 concluding that there is not enough support for a five-year bill in the House.  However, following immediate negative feedback to those remarks, the Speaker's Twitter feed posted a tweet at 1:06 p.m.: "Reports of 'giving up' on House hwy bill = false. There is a better way. Hope we can seize it." 

March 1 Interim Update

The swift progress made during the month of February on the House and Senate surface transportation authorization bills has come to a grinding halt in the House and slowed down considerably in the Senate just 30 days before the current SAFETEA-LU extension expires on March 31. 

In the House, the Republican leadership pulled the five-year, $260B bill, HR 7, on the eve of the recent recess when it became apparent that there were not enough votes to pass the bill as written.  The leadership was expected to develop a revised bill over the recess which was rumored to scale the bill back to two years and restore gas tax revenues to the Mass Transit Account.  However, four days after their return to session, no plan has been put forward and no floor time has been scheduled for this week or next week.  The following week of March 12 the House will be on recess again. 

A number of issues complicate the House's effort to revise HR 7 to make it more palatable to both the right and the left including, the looming March 31 deadline doesn't leave them much time to negotiate a new deal, the fact that a potential two-year bill (FY'12 and FY'13)would really only be an 18-month bill since FY'12 is essentially half over, the continued pressure from fiscal conservatives to cut the funding levels (possibly down to $37B per year for the highway program), Speaker Boehner's continued insistence on tacking on energy issues including controversial provisions to expand offshore and ANWR drilling and to construct the Keystone Pipeline, the lack of sufficient revenues to pay for even a two-year bill at current levels once the gas tax revenues are restored to the Mass Transit Account, and the lack of earmarks to lock-in votes.  It has been suggested the House may try again to attach reform of federal pensions as a way to find additional revenue, but that has its own problems. 

The blame game for the demise of the multi-year House bill has already begun with many fingers being pointed at House T&I Committee Chairman John Mica, although he points out that he drafted the bill leadership requested.  

In the Senate, S.1813, the two-year $106B authorization bill, is making slow progress, but at a pace that makes it questionable that they can pass a bill before March 31.  Senate leadership has been sorting through over 100 proposed amendments which include a number of very contentious non-germane amendments including the one debated and defeated on the Senate floor today on contraception.  

Earlier this afternoon, Senate Majority Leader Harry Reid offered a new substitute amendment that encompasses the entire bill including the highway, transit, safety, rail, freight, and financing titles as well as 37 proposed amendments which the bi-partisan leadership has agreed to.  This is an effort to try to avoid more non-germane amendments and speed up consideration of the bill.  Funding the Senate bill is still in flux as the Finance Committee continues to propose various potential revenue sources to determine which ones are the least objectionable.  

There are several scenarios for a way forward, but none of them are very appealing and most do not include a long-term, multiyear bill.  Some options include:

• The House introduces a new, shorter term bill (likely two-years/18-months) including most or all of the original HR 7 policy provisions and possibly some funding cuts and goes to conference with the Senate bill once it has passed.
• The House drops the effort to redraft its own bill and simply takes up and passes the Senate's two-year (18-month) bill, S. 1813, once the bill has cleared the Senate, although technically bills which include tax provisions must originate in the House.
• The House opts to simply pass another short-term extension of SAFETEA-LU with few if any policy provisions and possibly some program cuts.  "Short-term" could mean six months, through calendar year 2012 or even as long as through FY'13.  However, at some point late this fall or early next year, the Trust Fund will run out of money unless additional revenues are identified or additional funds are transferred from the General Fund - something House Republican leaders have vowed not to do again.  

 

February 17, 2012 Interim Update

Congress leaves town this evening for a one-week recess with both the House and Senate surface transportation reauthorization bills on hold.  

The House and Senate and Republican and Democrat leadership will try to regroup over the recess and find a way to revive the bills.  When they return to session the week of February 27 there will only be a little over a month until the March 31 expiration of the current short-term extension.  If both bodies have made significant progress by that date, e.g. have passed their respective bills and are in the process of reconciling the differences, then another short-term extension is likely.  If not, it is likely a multi-year bill is dead for 2012 and Congress would then pass an extension through the end of the year or into early 2013 if the balance in the Trust Fund could support such an extension.  

In the House, the Republican leadership has opted to split the bill, HR 7, into several pieces in order to increase the odds of passage.  Yesterday, the House debated and passed the controversial oil drilling and exploration bill that is expected to provide some of the revenue to fund HR 7.  The T&I and Ways & Means Committee bills will not be debated on the floor until after the recess.  The House Rules Committee has yet to meet to determine which of the hundreds of proposed amendments will be permitted to be offered, including the Nadler-Blumenauer-LaTourette amendment to restore gas tax revenue to the Mass Transit Account.  

In addition to the delay in floor action, another major setback to the House bill is the loss of $15B of the $40B in savings from proposed federal pension reform that was supposed to offset the General Fund transfer to the new Alternative Transportation (Mass Transit) Account.  That money is instead now going to pay for the extension of unemployment benefits and the Medicare "Dr. Fix" which, along with the payroll tax cut, was passed this morning by both the House and Senate.  This leaves a big hole in the House's funding plan.  

This morning in the Senate, a cloture vote to cut off debate and move to consideration of an amendment offered by Senator Majority Leader Harry Reid to add the Commerce (not including the rail provisions), Banking and Finance titles to the EPW title of S. 1813 on the Senate floor failed on a party-line vote of 54 to 42 - 60 votes were required.  Following the vote, Senator Reid has redrafted the amendment to strip out a number of controversial provisions including Senator Lautenberg's FREIGHT Act which would create an Office of Freight Planning and Development at US DOT and a freight discretionary grant program.  The revised amendment includes the National Rail System Preservation, Expansion and Development Act, a rail title which was never reported out of committee.  The revised amendment will be offered when the Senate returns after the recess.  To further complicate matters in the Senate, the funding "pay fors" in the Senate Finance title continue to fluctuate as concerns are raised about many of the funding sources.  

Although Congress will be on recess next week, it will be a busy week for stakeholder groups who will ramp up their various lobbying efforts while members are back in their home districts/states, for congressional staff who must sort out and negotiate the large number of proposed amendments and for the congressional leadership who will need to develop a way forward for House and Senate passage. 

 

February 15 - Interim Update

After two weeks of significant progress, things are rapidly unraveling in both the House and Senate related to the surface transportation authorization bills.  House Speaker John Boehner has announced that the House will not finish HR 7, the surface transportation authorization bill, this week as they had hoped and debate on the transportation and revenue titles will not occur until after next week's recess.  The House started floor debate on the oil and gas drilling title of the bill this morning and may move on to the federal pension title, but will definitely not debate the T&I and Ways & Means titles until the week of February 27.  The Rules Committee has now postponed indefinitely the meeting they had scheduled for this afternoon to address the proposed amendments to the T&I and Ways & Means Committee titles, such as the Nadler-Blumenauer-LaTourette amendment to restore gas tax revenues to the Mass Transit Account of the Highway Trust Fund.  

There may now also be a problem with using the federal pension reform offset to pay for the $40B General Fund transfer to fund the transit program.  It appears some or all of the pension savings is needed to offset the extension of the unemployment benefits and the Medicare "doctor fix".   

The House Republican leadership has decided to split their huge and controversial bill into three pieces and have separate floor votes on each piece - the transportation and revenue title HR 7, the oil and gas drilling title, and the federal pension reform title (the offset to the General Fund transfer used to fund the new Alternative Transportation Account).  Assuming the three bills each pass, they would then be put back together after the fact into one massive bill.  This very unusual action is being taken because House Republican leaders now fear they do not have the votes to pass the full package given potentially unanimous Democratic opposition and opposition from moderate, suburban Republicans as well as Republican fiscal hawks.  

In addition, over 260 amendments have been filed with the Rules Committee -- so many that the Rules Committee was not able to address them all when they met late yesterday afternoon.  Here is a link to a list of the amendments that have been submitted to the Rules Committee for consideration.   

Yesterday, the Administration issued its Statement of Administration Policy (SAP) on HR 7.  It states in part, "Because this bill jeopardizes safety, weakens environmental and labor protections, and fails to make the investments needed to strengthen the nation's roads, bridges, rail and transit systems, the president's senior advisers would recommend that he veto this legislation".  

In the Senate, gridlock continues over the large number of non-germane amendments Senators want to offer to S. 1813.  Majority Leader Harry Reid has been forced to schedule another cloture vote for Friday to try to get the Senate debate back on track. 

EPW Chair Barbara Boxer has raised serious concerns about the extraneous amendments, including ones related to contraception, aid to Egypt, federal pay freeze, line-item veto, etc.  Even Senator Vitter (R-LA), one of the Senate EPW "Big Four" has filed some unrelated amendments.  Boxer has asked stakeholder groups to contact Senate Majority Leader McConnell and urge him to make a deal with the Republican Senators to get the bill moving. 

 The House and Senate floor debate will be broadcast on TV on C-Span 1 and 2.  The debates are also accessible on-line at www.c-span.org .  

Other News:

Yesterday President Obama signed the four-year FAA Authorization bill into law. 

 FTA has released the FY'13 Annual Report on New Starts and Small Starts.  The report can be downloaded here and individual project profiles can be found here.  Going forward, FTA plans to update the online project profiles throughout the year when projects move from one phase to the next.  A list of the projects that have either advanced in or dropped out of the pipeline can be found on pp.23-24 of the report. 

FTA is recommending a total of $2.2 billion for FY'13, with $1.93 billion for existing and proposed Full Funding Grant Agreements (FFGAs), $127.57 million for proposed Project Construction Grant Agreements (PCGAs), and $120 million for other projects in the pipeline. FTA is also proposing to set aside $56 million in FY'13 for management and oversight.  All funding amounts are subject to congressional approval during the annual appropriations process.  The report also contains the same proposed policy changes related to streamlining the New Starts and Small Starts programs that FTA mentioned in last year's report.

 

February 13, 2012 Update

This Update is primarily focused on the release of the Administration's FY'13 budget request.

Here is a link to the annual US DOT Budget in Brief.  Here is a link to Secretary LaHood's statement on the Budget.  The full set of government-wide budget documents released by OMB can be found here. 

The $74B US DOT budget request is based on the assumption that Congress will pass a six-year $476B surface transportation authorization bill (down from a similar $555B proposal last year), however neither the House nor the Senate are currently considering such a bill.  The Administration proposes to pay for the program using one-half of the six-year savings from ramping down the wars in Iraq and Afghanistan, a plan first mentioned by President Obama in his State of the Union address that has not garnered much interest in Congress.

It seems unlikely this budget request will be embraced by Congress.

Highlights of the budget recommendations include:

FAA - The budget includes $3.35B for the Airport Improvement Program (AIP), the same amount recently authorized by Congress, although below the $3.5B funded in FY'11.  However, the DOT budget also indicates that if Congress were to approve an increase in the Passenger Facility Charge (PFC), the recommended amount for the AIP program would drop to $2.4B.  However, the recently passed four-year FAA authorization bill does not include a PFC increase. 

FHWA - The budget request includes a highway obligation limitation of $41.83B, an increase of $2.7B over the current FY'12 funding level, but only slightly above the previous FY'11 level.  he budget requests $500M for the TIFIA loan program. 

FTA - The budget requests a total of $10.84B for transit programs, an increase of $233M over FY'12.  The budget proposes the same programmatic restructuring as last year which Congress has generally rejected in the pending House and Senate reauthorization bills.  This makes it difficult to compare current funding with the Administration FY'13 recommendations.

See page 30 of the DOT Budget in Brief for a list of the New Start/Small Start projects that US DOT is recommending to fund.  The list includes $1.17B for 12 projects which currently have FFGAs, $696M for five projects with Pending FFGAs, $70M for one project newly recommended for an FFGA, $120M for three "Other" capital investment projects and $127M for eight Small Start projects.  Including greater funding for Oversight, the total recommended for the Capital Investment Program is $2.23B. 

FTA is expected to release its FY'13 Capital Investment Program/New Starts Report Tuesday or Wednesday. 

FRA - The FRA budget request is also difficult to compare with the current programs because US DOT merges the high-speed intercity passenger rail program with Amtrak and divides the total funding into Network Development and System Preservation programs.  The FY'13 budget request includes $1B for high-speed intercity passenger rail and $1.5B for Amtrak.  In addition, the Administration is requesting $4B in supplemental funding in current FY'12 funds for high-speed rail which Congress is not likely to approve.  High-speed rail continues to be a top priority for the President and Secretary LaHood; however, in FY'11 and FY'12 Congress did not appropriate any funds for this program. 

TIGER - The FY'13 budget includes a $500M request funding for a TIGER-like discretionary grant program.  In addition, US DOT is requesting $4B for a similar TIGER program as a supplemental FY'12 appropriation which Congress is unlikely to support.

RITA - The budget recommends moving the existing Research & Innovative Technology Administration (RITA) to a new Office of the Assistant Secretary for Research & Technology, bringing it under the direct oversight of the Secretary.  

February 10, 2012 Interim Update

Next week will be an incredibly busy and momentous week for transportation issues.  On Monday the Administration will release its FY'13 budget request and starting Tuesday both the House and Senate will debate their surface transportation bills on the floor - a highly unusual occurrence.  

The House and Senate floor debate will be broadcast on TV on C-Span 1 and 2.  The debates are also accessible on-line at www.c-span.org . 

Senate Surface Transportation Bill, S. 1813 

On Thursday, the Senate voted to invoke cloture on its version of the bill, S. 1813, by a very strong and bi-partisan vote of 85 to 11.  They then voted in support of the Motion to Proceed, thereby overcoming two critical procedural hurdles.  Senate Majority Leader Harry Reid first brought up the EPW highway title for debate.  He then offered an amendment to add the Banking Committee transit title.  The Finance title is expected to be added next at some point after they reconvene next Tuesday.  There continues to be various problems with the Commerce Committee pieces of the bill related to several freight provisions and the draft rail title.  Of concern to leadership is the possibility that some Senators may offer extraneous amendments such as healthcare coverage of contraception, banning aid to Egypt or line-item veto.  Such amendments are often put forth on unrelated bills in order to stimulate floor debate but are seldom included in final legislation.  The risk is that they can consume all the time available and cause the underlying bill to be withdrawn. 

Yesterday, the Administration released its Statement of Administration Policy (SAP) on the bill in which they supported passage of S. 1813.  The SAP said the Administration would continue to work with Congress to increase longer-term funding, provide funding for high-speed rail, establish a National Infrastructure Bank (currently not included in the House or Senate bills) and provide an immediate investment of $50B to jumpstart the creation of jobs (similar to its FY'12 budget request which was DOA on the Hill).  Here is a link to the SAP.  

House Surface Transportation Bill, HR 7 

In the House, proposed floor amendments are due to the Rules Committee on Monday and then on Tuesday at 5:00pm the House Rules Committee will approve a Rule for floor debate.  There seems to be a willingness to grant an "Open Rule" that would allow all or most pre-filed amendments to be offered, however, House leadership is determined to finish the bill by COB next Friday, before their week-long recess, which may require them to limit the number of amendments.  There were over 100 amendments offered during the T&I Committee markup.  Here is a link to the Rules Committee site where submitted amendments are posted.  

Yesterday, the House Rules Committee issued a new, substitute version of the House bill which rolls all the various titles into one massive bill, HR 7.  The new bill includes the titles previously approved by the T&I Committee, Ways & Means, Natural Resources (oil and gas drilling/exploration), Energy & Commerce (Keystone XL pipeline) and Oversight & Government Reform ($45B offset from federal pension reform to pay for the General Fund transfer to the proposed Alternative Transportation Account).  Here is a link to a section-by-section analysis of HR 7 released by the Rules Committee. 

Despite a potential "Open Rule", revenue titles are typically not permitted to be amended.  However, three senior House members plan to offer a bi-partisan amendment that would strike the Ways & Means Committee language eliminating the Mass Transit Account and the 2.86 cents of gas taxes that is currently dedicated to public transit investment.  The amendment will be offered by Reps Jerry Nadler (D-NY), Earl Blumenauer (D-OR) and Steve LaTourette (R-OH).  

On Wednesday, the House identified its proposed offset to pay for the $40B transfer from the General Fund to the proposed Alternative Transportation Account.  It is a change in federal pensions which would require federal employees, including members of Congress and congressional staff, to pay an additional 1.5% contribution into their federal pension plans.   

One major concern is that this would be a one-time offset that would pay for public transit, CMAQ, ferry boat, R&D and territorial highway programs for five years, but then leave them without a dedicated source of federal funding after FY'16.  It would also delink transit from the gas tax user fee upsetting a 30-year precedent.  

It is possible that no Democrats will vote for the House bill.  On the Republican side, they could lose some votes from moderate, suburban members who don't like the Alternative Transportation Account proposal and from fiscal conservative members who don't like the offsets or the spending levels.  218 votes are needed to pass the bill.  

The Administration has yet to release its SAP on the House bill and there is some speculation that the Administration may recommend a veto of the bill over any number of issues including the transfer of gas tax revenues from the Mass Transit Account to the Highway Account, the federal pension offset, the Keystone XL pipeline language and the expanded oil and gas drilling/exploration. 

 

February 8, 2012 Interim Update

In the good news department, Monday night the Senate approved the final FAA authorization bill, HR 658, by a vote of 72 to 20.  The House approved the bill earlier in the week.  The bill now goes to the President and he is expected to sign it shortly.  The bill is a four-year bill - FY'12 through FY'16.  Unfortunately, it does not increase the Passenger Facility Charge (PFC) and only authorizes the Airport Improvement Program (AIP) at a flat $3.35B a year which is lower than the FY'11 level of $3.5B and significantly lower than some early proposals to increase it to as much as $5B per year.  

In the Senate yesterday, the Finance Committee marked up and approved the revenue title of the surface transportation authorization bill by a vote of 17 to 6 to 1.  Four Republicans joined all the Democrats to pass the bill which is estimated to total $10.49B in additional revenues into the Highway Trust Fund.  The bill is comprised of a variety of miscellaneous offsets to fund the two-year surface transportation program including $4.5B from existing tariffs on certain imported cars, a $3B transfer of surplus Leaking Underground Storage Tank (LUST) Trust Fund revenues, a $685M transfer of a portion of the gas tax going to the LUST Fund, $1.58B from changing the tax treatment of "black liquor" and a $697M transfer of an existing "gas guzzler" tax to the Highway Trust Fund - a total of $5.6B to the Highway Account, $2.8B to the Mass Transit Account and $2.1B to a new 'Solvency Account" that would support the other accounts when needed.  

Finance Chairman Max Baucus (D-MT) agreed to include language to restore transit's parity with the parking tax break for the remainder of 2012, AMT tax relief on private activity bonds and a new transportation bond program.  The Committee voted to approve an amendment to lift the volume cap on private activity bonds for water and wastewater infrastructure projects.  An amendment to index the gas tax to inflation was offered and then withdrawn.  

Senate Majority Leader Harry Reid plans to bring the full bill to the Senate floor starting tomorrow, February 9.  After the cloture vote at 2:00pm, the next critical vote will be on the motion to proceed which needs 60 votes to pass.  On a call to stakeholders today, EPW Chair Barbara Boxer expressed concern about the Senate Commerce Committee pieces of the bill.  The Committee released its rail title over the weekend leaving no time to markup the bill in committee so it will likely be brought straight to the floor.  The freight railroads and US DOT have serious concerns about various provisions.   In addition, an earlier markup of highway safety provisions included a new freight grant program which a number of Committee Republicans opposed and which could cause problems on the floor.  

In the House, the Energy and Commerce Committee approved a bill yesterday that would shift permitting authority for the controversial Keystone XL pipeline from the State Department to the Federal Energy Regulatory Commission (FERC) and specify that no presidential permits would be required for the construction, operation and maintenance of the pipeline.  The House Republican leadership plans to attach this provision to the surface transportation authorization bill, HR 7, on the House floor - yet another lightening rod issue to contend with.  

House leadership plans to bring HR 7 to the Rules Committee on Monday and to the floor beginning next Tuesday, February 14 with the goal of completing it by February 17 when they will recess for a week.  

It is very likely that no Democrats will vote for HR 7 on the House floor.  That means the Republican leadership will have to depend solely on fellow Republicans to come up with the 218 votes needed to pass the bill.  However, a number of Republicans aligned with the tea party oppose the bill because of concerns about the offsets and the size federal funding.  The conservative Club for Growth recently announced its opposition to HR 7 and said they would "score" members on this vote.