On November 1, 2017, Congressman John Larson (D-CT) introduced the America Wins Act. The legislation would invest $1 trillion in U.S. infrastructure over 10 years, eliminate the Highway Trust Fund shortfall, and provide additional funding for multimodal projects by including $50 billion for the Transportation Investment Generating Economic Recovery grant program. The bill is paid for by a tax on carbon pollution, beginning at $49 per ton and increasing 2 percent annually above inflation. A “Carbon Equivalency Fee” would also be imposed on imports, with exports exempt, to ensure that foreign competitors and domestic firms are on an equal playing field when paying for the bill. All collected revenues will be placed in a new Build America Trust Fund and used solely for carrying out the purposes of the bill. H.R. 4209 has 19 cosponsors, all Democrats, and has been referred to the House Committees on Ways and Means; Transportation and Infrastructure; Energy and Commerce; Agriculture; Education and the Workforce; Natural Resources; and Science, Space, and Technology.
The Missed Opportunities in Transportation Act of 2017, introduced on November 9, 2017, finds that the U.S. needs a strong multimodal transportation system to allow for the efficient movement of both people and goods. However, it notes that investment has declined and calls for the collection of information about potential investment projects across the nation to ensure Congress can best judge the levels of funding needed for the system. Sponsored by Congressman John Lewis (D-GA), H.R. 4355 would require the Secretary of Transportation to submit an annual report on 10 applications from each competitive or discretionary grant program that showed great potential to improve the U.S. transportation system but were not awarded funding. Congressman Lewis introduced the bill as part of a package of ‘missed opportunity’ bills in response to the House’s tax bill, which did not include any funding mechanism for investing in U.S. infrastructure. H.R. 4355 has no cosponsors and was referred to the House Committee on Transportation and Infrastructure.
In June 2017, USA Today published an investigative series on the working conditions of port truckers and their status as independent contractors, specifically those at the Ports of Los Angeles and Long Beach. In response to the series, Congresswoman Grace Napolitano (D-CA) introduced the Port Drivers’ Bill of Rights Act of 2017 on October 26, 2017. The legislation calls for the Department of Labor and Department of Transportation to establish a Truck Leasing Task Force to review “lease-to-own” agreements between drayage drivers and third party logistics companies for their commercial vehicles. The task force would create a report on driver pay, working conditions, and leasing agreements compliance with state and local laws. H.R. 4144 has eight cosponsors, all democrats, and has been referred to the House Committee on Transportation and Infrastructure.
In tandem with Congresswoman Napolitano’s bill, Congressman Jerrold Nadler (D-NY) introduced the Clean Ports Act of 2017. The bill would authorize cities to enact legislation to curb environmental pollution surrounding ports from commercial vehicles, among other things. H.R. 4147 also has eight democratic cosponsors and has been referred to the House Committee on Transportation and Infrastructure.
Of note, Transport Topics published a response by Joni Casey to USA Today’s June 2017 piece. Ms. Casey used her article to “set the record straight” on the port trucking community. She noted that the owner-operator operation model is an efficient and effective business model for both carriers and contractors, providing flexibility to drivers. Ultimately, Ms. Casey noted that the USA Today report was misleading and based on a few bad actors.
On October 5, 2017, Congressman John Faso (R-NY) introduced the Infrastructure Bank for America Act of 2017. The legislation is intended to fix America’s crumbling infrastructure by establishing the Infrastructure Bank for America. The bank would provide loans to state and local governments, as well as private entities, for the construction and maintenance of infrastructure projects that produce revenues. Oversight of the bank would be provided by the Department of Treasury. H.R. 3977 has no cosponsors, and has been referred to the House Committees on Transportation and Infrastructure, Financial Services, and Ways and Means.
As the end of Fiscal Year 2017 approached, the House had eight remaining appropriations bills to pass while the Senate was even further behind in the process. Recognizing that the passage of eight individual appropriations laws prior to the September 30 end of fiscal year deadline was unlikely, the House packaged those bills together at the end of August in an effort to speed the process. In late August, the appropriations package, commonly referred to as a minibus, was opened for amendments and several were offered to the Transportation, Housing and Urban Development portion of the package. Of significance, Congressman Babin (R-TX) introduced two amendments related to the delay of the Electronic Logging Device mandate but they were both rejected during the September 7 vote. Congressman Rick Perry’s (R-PA) amendment preventing the National Highway Traffic Safety Administration and the Federal Motor Carrier Safety Administration from finalizing their notice of proposed rulemaking on speed limiters during Fiscal Year 2018 was agreed upon by a voice vote, also on September 7. Nevertheless, with the Senate still lagging behind in the process, Congress opted to move forward with a continuing resolution to keep the government funded as the two Chambers work out the full FY18 appropriations package.
Introduced as an amendment to nongermane legislation in order to speed the process along, the CR, titled the Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017, extends FY17 spending levels until December 8, 2017. The legislation also makes available around $15.25 billion through the Federal Emergency Management Agency and the Small Business Administration for disaster relief for hurricane victims. Also included in the legislative package is a suspension of the debt ceiling, which the U.S. Treasury expected to be reached by late September. This avoided an unprecedented default on the national debt that would have caused financial crisis and economic downturn. The CR gives Congress a little over two months to decide on the final FY18 federal spending levels. The House passed their minibus, along with Rep. Perry’s amendment, on September 14 and it was placed on the Senate Legislative Calendar under General Orders on September 27.
On September 13, 2017, Congressman Adam Smith (D-WA) reintroduced the Freight Infrastructure Reinvestment Act. While originally introduced in the 113th Congress, this version of the legislation is intended to build upon 2015’s Fixing America’s Surface Transportation Act by establishing a National Freight Mobility Infrastructure Fund. Populated by the creation of a 1 percent tax assessed on the shipment of freight cargo, the National Freight Mobility Infrastructure Fund would be used to invest in freight infrastructure improvements. The funds collected through the 1 percent tax would be deposited into the newly-formed National Freight Mobility Infrastructure Fund and then invested in projects that support the efficiency, capacity, and safety of the U.S. freight system through a merit-based discretionary grant program. The bill has two cosponsors, Reps. Keith Ellison (D-MN) and Albio Sires (D-NJ), and has been referred to the House Committee on Transportation and Infrastructure as well as Ways and Means.
In an effort to hasten the Fiscal Year 2018 appropriations process, the House Rules Committee announced this month they would be using the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2018 as the legislative vehicle for a FY18 minibus. H.R. 3354 has been amended to include the remaining eight appropriations bills, including the House’s Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2018, that have not passed the House.
The THUD portion of the bill remains the same as the one originally reported from committee in July. It allocates $17.8 billion in discretionary funding for the U.S. Department of Transportation, $646 million less than Fiscal Year 2017 enacted levels, and includes language that would pre-empt state laws on meal and rest breaks for truckers. It also requires the Federal Motor Carrier Safety Administration to fully implement any Compliance, Safety, Accountability program reforms, as recommended by the National Academies of Sciences in their June 2017 report, before proceeding with a Safety Fitness Determination rulemaking. The bill did not include funding for the Transportation Investments Generating Economic Recovery grant program.
After introducing the minibus, the House Rules Committee opened it up for amendments, due August 25, 2017. Included in the hundreds of amendments submitted were a few that would impact the intermodal industry. THUD Amendment #35 was introduced by Rep. Babin (R-TX) and would prohibit USDOT from implementing or enforcing the electronic logging device rulemaking during FY18. The ELD rulemaking was finalized in December 2015 and requires all commercial truck drivers to adopt ELDs by December 18, 2017 but has faced fierce opposition from the Owner Operator Independent Drivers Association and other stakeholders.
THUD Amendment #60 was introduced by Rep. Perry (R-PA); it would prevent FMCSA and the National Highway Traffic Safety Administration from finalizing the speed limiter rulemaking during FY18. As a reminder, the speed limiter rulemaking was introduced in September 2016 and proposed that newly manufactured heavy-duty trucks with a gross vehicle weight of more than 26,000 pounds be equipped with a speed limiting device. After its publication, the speed limiter rulemaking was criticized by stakeholders for lacking specificity about the speed to which trucks will be limited, among other things, and it is already speculated that the rulemaking process will most likely not continue under the Trump Administration.
There were also multiple amendments to the bill that attempt to add funding for the TIGER grant program. THUD Amendment #7 was introduced by Rep. Waters (D-CA) and would provide $7.5 billion for TIGER through September 30, 2022 provided the funds are designated as an “emergency requirement.” Given this requirement, should President Trump sign this bill into law he would still need to separately designate the $7.5 billion as an emergency or else the funds could not be spent. THUD Amendment #8, also introduced by Rep. Waters, would provide $550 million for the TIGER grant program, $50 million above FY17 enacted levels. THUD Amendment #13, introduced by Rep. DeLauro (D-CT) would provide $500 million for TIGER, equal to FY17 enacted levels. Both THUD Amendment #8 and #13 are unlikely to be allowed to be offered on the House floor because they lack a budget offset and the Rules Chairman is requiring all amendments be budget-neutral. Finally, THUD Amendment #66 was introduced by Rep. Blum (R-IA) and would provide $200 million for TIGER grants, $300 million less than FY17 enacted levels. This amendment is budget-neutral by reducing funding for Housing and Urban Development Public and Indian Housing by $200 million.
Meanwhile, the Senate has still yet to pass half of their appropriations bill out of committee. On August 23, House Speaker Paul Ryan (R-WI) speculated it is likely Congress will have to pass a continuing resolution to keep the government funded for a short period of time while they work out the full FY18 appropriations package.
On July 18, 2017, Congressman Babin (R-TX) introduced the ELD Extension Act of 2017. The bill would delay the implementation of the electronic logging device rule two years, pushing back the deadline from December 2017 to December 2019. The ELD rule was mandated by the Moving Ahead for Progress in the 21st Century Act in 2011 and finalized by the Federal Motor Carrier Safety Administration in December 2015.
In a press release regarding the bill, Congressman Babin said the delay would offer relief to small trucking companies that would experience an unnecessary burden or expense should they attempt to meet the 2017 deadline. The Owner Operator Independent Drivers Association (OOIDA) applauded the bill, saying it would give FMCSA time to address a number of concerns the Association identified, including device certification, enforcement guidelines, and cost. OOIDA previously sued FMCSA to stop the implementation of the rulemaking, saying it “violates fourth amendment rights against unreasonable searches and seizures.” The lawsuit was appealed multiple times but on June 12, 2017 the Supreme Court declined to hear the challenge, leaving in place the lower court’s ruling in the FMCSA’s favor.
H.R. 3282 has 38 Republican cosponsors and was referred to the House Committee on Transportation andInfrastructure.
On July 21, 2017, Congressman Diaz-Balart (R-FL) introduced the House’s Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2018. The House bill allocates $17.8 billion in discretionary funding for the U.S. Department of Transportation, $646 billion less than fiscal year 2017 enacted levels but $1.5 billion more than the Administration’s budget request for fiscal year 2018. As they have done in the past, the House’s THUD bill did not provide funding for the Transportation Investments Generating Economic Recovery grant program.
H.R. 3353 includes language that would pre-empt state laws on meal and rest breaks for truckers, mandating that, should a state law differ from the Federal law, the trucker abide only by the Federal law. The bill would also require the Federal Motor Carrier Safety Administration to fully implement any Compliance, Safety, Accountability system reforms, as recommended in the National Academies of Sciences report released on June 27, 2017, before proceeding with a Safety Fitness Determination rulemaking.
The House’s THUD bill was reported favorably out of Committee on July 17, 2017 with two notable directives. The first directive would require USDOT to analyze if a full or targeted delay in the implementation of the electronic logging device final rule would be appropriate. It would also require that USDOT determine what options it has within its authority to postpone the rule “until all ELD implementation challenges can be resolved.” FMCSA would be required to report on its findings to Congress within 60 days of the bill’s passage. The second directive asks FMCSA to review existing ELD technology platforms to ensure they are compliant with all necessary standards and specifications and are user friendly. The Owner Operator Independent Drivers Association praised the inclusion of the two directives while the American Trucking Associations and the Trucking Alliance expressed disappointment in the provision.
The Senate, meanwhile, introduced their FY18 THUD bill on July 27, 2017. Sponsored by Senator Collins (R-ME), the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2018 includes $19.47 billion in discretionary appropriations for USDOT for FY18. The bill includes $550 million for the TIGER grant program but did not include any of the riders written into the House’s bill. The Senate’s bill was unanimously approved by the full Senate Appropriations Committee on July 27, 2017
Both the House and the Senate bills could now be taken up for a full vote by their respective Chambers. However, the House left for their summer recess on July 31 while the Senate left for theirs later that week. When they return, Congress will have less than a month before the start of the new fiscal year. The past several years, the THUD appropriations bill has ultimately been wrapped into an end of the fiscal year omnibus appropriations package and there is a possibility this will occur again this year.
On June 22, 2017, Congressman Lowenthal (D-CA) reintroduced the National Multimodal and Sustainable Freight Infrastructure Act of 2017. Originally introduced in the 114th Congress, the bill would create a one percent waybill fee on the cost of transporting goods, paid by the entity paying for the transportation service. Congressman Lowenthal’s office estimates the fee would raise around $8 billion a year which would then be deposited into a newly created Freight Transportation Infrastructure Trust Fund. Revenues would be divided evenly between two programs created by the bill: a formula program that provides funds to each state and a competitive grant program available to local, regional and state governments. H.R. 3001 has bipartisan support, with 11 cosponsors, including Representatives Mark Meadows (R-NC) and Dana Rohrabacher (R-CA), and was referred to the House Committees on Transportation and Infrastructure, and Ways and Means.
Senator Fischer (R-NE) reintroduced the Transportation and Logistics Hiring Reform Act of 2017 on June 13, 2017. Originally introduced last Congress, S. 1345 would establish national hiring standards for shippers contracting or hiring trucking companies. It would require shippers as well as third parties to check a carrier’s safety rating, registration and insurance coverage before hiring the motor carrier. The national hiring standard would clarify and standardize industry best practices for hiring motor carriers, ensuring shippers, freight brokers, and third-party logistics providers are not making hiring decisions based on faulty and imprecise data. It aims to protect shippers, truck freight brokers, and logistics providers from negligent hiring lawsuits. S.1345 has two cosponsors, Senators Crapo (R-ID) and Blunt (R-MO), and was referred to the Senate Committee on Commerce, Science, and Transportation.
On June 29, 2017, Congressman Reichert (R-WA) and Senator Murray (D-WA) introduced the Harbor Maintenance Trust Fund Reform Act of 2017 in the House and Senate. Originally introduced in the Senate by Senators Murray and Cantwell (D-WA) during the 114th Congress, this bill would ensure full spending of money collected through the Harbor Maintenance Tax and deposited into the Harbor Maintenance Trust Fund each fiscal year. The bill would also establish a set-aside for donor ports and address cargo diversion by providing shipper and importer rebates in order to encourage them to move cargo through U.S. ports. H.R. 3152 has bipartisan support with nine cosponsors and was referred to the House Committees on Transportation and Infrastructure, and Ways and Means. S.1488 is cosponsored by Senator Cantwell and was referred to the Senate Committee on Environment and Public Works.
On May 25, 2017, Senator Baldwin (D-WI) reintroduced the Rail Shipper Fairness Act. The bill was originally introduced in the 114th Congress and seeks to address rail shipping delays by implementing competitive switching. Such a policy would allow for shippers located in a terminal devoid of transportation alternatives to switch from one rail service provider to another at the nearest interchange. Senator Baldwin and various stakeholders have argued that competitive switching would increase competition for the rail companies and therefore decrease costs for the shippers. However, the rail industry has historically been opposed to such a change, saying competitive switching would increase congestion because of additional interchange movements and increased complexity. Furthermore, rail stakeholders have argued that requiring competitive switching would “force railroads to switch traffic to competitors without any suggestion that the incumbent railroad failed to offer competitive services.”
Beyond implementing competitive switching, the bill would also work to build upon the Surface Transportation Board Reauthorization Act of 2015 by reforming rate case regulations. Senator Baldwin previously called for the implementation of competitive switching in a bipartisan letter to the STB, dated November 2, 2016. She has since written to President Trump about ensuring that STB appointees understand the challenges shippers face. The bill has one cosponsor, Senator Franken (D-MN), and was referred to the Senate Committee on Commerce, Science and Transportation.
On May 15, 2017, Senator Fischer (R-NE) introduced the Federal Maritime Commission Authorization Act of 2017. When originally introduced, the bill included $1,000,000 in both fiscal years 2018 and 2019 for the International Ocean Shipping Supply Chain Information Portal Demonstration Project. The project would have allowed the Federal Maritime Commission to enter into a cooperative agreement with private, academic, or other non-federal partners to demonstrate the feasibility of a national seaport information portal of international ocean shipping supply chain information. However, the text for the creation of such a demonstration project was removed from the bill to allow for more time to clarify the intent of the program and to alleviate labor related concerns. S. 1119 has since been added as an amendment to the Coast Guard Authorization Act of 2017, which was introduced on May 16, 2017. This version of the bill would fund the FMC at $28,490,000 for both fiscal years 2018 and 2019, an increase from the $24,700,000 appropriated for fiscal years 2016 and 2017. S. 1129 was introduced by Senator Sullivan (R-AK) and has two cosponsors: Senators Thune (R-SD) and Nelson (D-FL). It was reported favorably out of the Senate Committee on Commerce, Science, and Transportation on May 18, 2017.
A bill to fund the FMC for fiscal years 2018 and 2019 was also introduced in the House this month. On May 23, 2017, Representative Hunter (R-CA) introduced the Federal Maritime Commission Authorization Act of 2017. H.R. 2593 would authorize funding for the FMC at $28,012,310 for fiscal year 2018 and $28,544,543 for fiscal year 2019. It would also reform various Commission authorities. Specifically, the bill would require a maritime carrier to choose between being involved in discussion agreements and engaging in alliances but would give the FMC the power to make exceptions on dual memberships. It would also require FMC approval for alliances hoping to jointly contract with marine terminals, truckers, and other third-party service providers, excluding tugboat operators. A response to recent industry concerns over alliances having too much power and decreasing competition in the industry, the bill would also require the FMC to consider whether a discussion agreement or vessel-sharing agreement would “substantially lessen competition in the purchasing of port services.” This increases the scrutiny such agreements must go through prior to being approved as currently the FMC must only determine if an agreement is likely to cause an unreasonable decrease in service or increase in costs. H.R. 2593 has three cosponsors: Representatives Garamendi (D-CA), Shuster (R-PA) and DeFazio (D-OR). On May 24, 2017, the bill was approved by the House Committee on Transportation and Infrastructure.
The Consolidated Appropriations Act of 2017, otherwise known as the fiscal year 2017 Omnibus, was signed into law on May 5, 2017. The language of the bill was added onto non-germane legislation in order to speed along its passage. FY17 officially began October 1, 2016 but Congress had been unable to pass a full year’s appropriation bill to fund the government. Instead, Congress had to pass three continuing resolutions, the most recent of which was passed on April 28, 2017 and extended federal funding through May 5, 2017. The FY17 Omnibus funds the Transportation Investment Generating Economic Recovery grant program at $500 million, the same amount that was appropriated in fiscal year 2016, but decreases the maximum grant size from $100 million to $25 million. It also decreases the maximum share that can be awarded in a single state from 20 percent to 10 percent. The law also calls for a 3 percent spending increase from the Harbor Maintenance Trust Fund. H.R. 244 passed the House on May 3 by a vote of 309 to 118 and passed the Senate on May 4 by a vote of 79 to 18. It was signed by the President on May 5, 2017 and became Public Law No: 115-31.
President Trump released his budget proposal for fiscal year 2018 on May 23, 2017, titled “A New Foundation for American Greatness.” The request calls for $16.2 billion in discretionary spending for the U.S. Department of Transportation, a 12.7 percent decrease from fiscal year 2017 levels. It also proposes eliminating the Transportation Investment Generating Economic Recovery discretionary grant program. Across the entire Federal Government, the document proposes to reduce discretionary spending by $57.3 billion, including $26.7 billion in program eliminations and $30.6 billion in reductions.
Despite these proposed cuts, the budget proposal does include $200 billion over ten years for a national infrastructure initiative. Introduced at the same time as the budget, the Administration outlined their plans for such a program in its Infrastructure Initiative Fact Sheet. The proposed initiative would leverage the $200 billion in direct federal funding to result in a total of $1 trillion in infrastructure investments. The fact sheet lists four key principles for the President’s infrastructure plan: 1) Make Targeted Federal Investments; 2) Encourage Self-Help; 3) Align Infrastructure Investment with Entities Best Suited to Provide Sustained and Efficient Investment, and; 4) Leverage the Private Sector. It also seeks to address the “burdensome permitting process,” calling on the Federal government to streamline and rationalize permitting requirements.
On April 5, Representatives Kelly (R-PA) and DeFazio (D-OR) introduced the Investing in America: Unlocking the Harbor Maintenance Trust Fund Act. The Harbor Maintenance Trust Fund is funded through a tax levied on the value of imported cargo and provides funds, appropriated annually by Congress, to the Army Corps of Engineers for harbor maintenance and dredging projects. Currently, Congress does not fully spend revenue collected by the HMTF each year, instead using the balance to offset other Federal expenditures. H.R. 1908 would take the HMTF “off budget” and would ensure the funds are used to maintain U.S. commercial harbors, instead of remaining idle in the U.S. Treasury. It also calls for the annual full expenditure of the HMTF while preserving Congress’ authority to appropriate the existing balance of around $9 billion. According to Representatives Kelly and DeFazio, the bill could provide more than $18 billion in funding over the next ten years for harbor maintenance projects and would enable the U.S. Army Corps to complete all commercial harbor dredging needs. The bipartisan bill has been referred to the House Committees on Transportation and Infrastructure, Ways and Means, and the Budget.
While fiscal year 2017 officially began October 1, 2016, Congress has not yet passed a full year’s appropriations bill to fund the federal government. After failing to come to an agreement about a full fiscal year 2017 appropriations bill, Congress moved in April to pass its third continuing resolution. The first continuing resolution was passed in September 2016 and funded the federal government through December 9, 2016. The second was passed in December 2016 and funded the federal government though April 28, 2017. Both Chambers of Congress passed the “Making further continuing appropriations for fiscal year 2017, and for other purposes” Joint Resolution on April 28, 2017. The bill was subsequently signed into law by President Trump and provides funding for the federal government through May 5, 2017, giving Congress another week to wrap up appropriations talks. The lack of a full year of funding has prevented the U.S. Department of Transportation from receiving its full obligation limitation for Highway Trust Fund Contract Authority. Therefore, USDOT has been unable to award the FY17 Nationally Significant Freight and Highway Projects grants, referred to as the FASTLANE grants under the Obama Administration. On April 30, Congressional leadership announced they had reached a deal for a full FY17 appropriations bill and expected its passage prior to the May 5 deadline.
March was a busy month for the introduction of bills focusing on funding U.S. infrastructure investments. On March 9, Congressman Blumenauer (D-OR) introduced the Raise and Index to Sustainably and Efficiently Invest in Transportation, or RAISE IT, Act. If passed, H.R. 1458 would increase the federal gas tax by 15 cents over a three year period and index it to inflation. It also calls for the replacement of the gas tax within ten years by a more sustainable funding source. The bill has 23 cosponsors, all Democrats, and has been referred to the House Committee on Ways and Means.
Also aimed at raising the gas tax, Congressman DeFazio (D-OR) introduced the Investing in America: A Penny for Progress Act on March 22. H.R. 1664 would add around a penny to the federal gas tax each year but caps any raise at 1.5 cents annually. The exact increase is indexed to the National Highway Construction Cost Index and the Corporate Average Fuel economy standard. Representative DeFazio’s bill authorizes the Treasury to issue 30-year bonds annually, until 2030, leveraged against the revenue from the tax. Money from these bond sales will be deposited in the highway trust fund and would provide an estimated $500 billion in funding for infrastructure projects. The bill has 17 cosponsors, with the only Republican cosponsor being Congressman Barletta (R-PA), and has been referred to the House Committee on Transportation and Infrastructure.
Congressman Delaney (D-MD) reintroduced two bills this month, the Partnership to Build America Act and the Infrastructure 2.0 Act, that seek to fund infrastructure projects. The Partnership to Build America Act of 2017, H.R. 1669, would create an American Infrastructure Fund to provide financing to state and local governments for new infrastructure. The AIF would be funded though one-time $50 billion bond sales to U.S. corporations seeking to repatriate a portion of their international earnings, providing up to $750 billion in loans. In line with the Trump Administration’s public-private partnership push, the bill requires that at least 35 percent of AIF supported projects have at least 10 percent private financing. H.R. 1669 has 23 cosponsors, with Representative Davis (R-IL) as the lead cosponsor, and was referred to the House Committee on Ways and Means.
The Infrastructure 2.0 Act would also create an AIF but the funds would come from a requirement that existing overseas profits made by U.S. multi-national corporations be subject to a one-time mandatory 8.75 percent tax. These profits would then be used to fund the AIF, to meet the funding gap for the HTF, and to create a pilot program establishing regional infrastructure accelerators. If passed, H.R. 1670 would also create a commission meant to address the permanent solvency of the HTF. The bill has 20 cosponsors, with Congressman Yoho (R-FL) as the lead cosponsor, and has been referred to House Rules.
The Prevent Labor Union Slowdowns, or PLUS, Act was reintroduced this month by Senator Risch (R-ID). Originally introduced in the 114th Congress, the bill would define a labor slowdown by marine workers as an unfair labor practice. A labor slowdown, as opposed to a strike, requires that an employer still payout full benefits and salaries and cannot fire an employee. Beyond defining such a slowdown as an unfair labor practice, S. 702 also gives injured parties the ability to file civil actions to seek repayment in damages resulting from slowdowns. The bill has two cosponsors, Senator Crapo (R-ID) and Senator Perdue (R-GA), and has been referred to the Senate Committee on Health, Education, Labor, and Pensions.
On February 1, 2017 Senator Deb Fischer (R-NE) introduced the Build USA Infrastructure Act. If passed, S. 271 would divert $21.4 billion annually in Customs and Border Patrol collected revenues on freight and passengers to address the Highway Trust Fund shortfall for five years after the FAST Act expires in 2020. The bill is also intended to give states more flexibility when navigating federal requirements for projects by allowing them to remit some of their federal highway dollars and in return receive control over federal approval for certain parts of regulatory process for highway projects, including design, environmental permitting and construction aspects. Any returned funds would be deposited into the HTF as well. The bill has no cosponsors and was referred to the Senate Committee on Homeland Security and Governmental Affairs.
In November 2016, then President-elect Trump nominated former Labor Secretary Elaine Chao to serve as the next Secretary of Transportation. In addition to serving as the head of the Labor Department, Chao was Deputy Administrator of the Maritime Administration. She also served as Deputy Secretary of Transportation under Secretary Sam Skinner.
Chao was recommended by members of the Senate Commerce Committee by voice vote on January 25. She was confirmed by the full Senate on Tuesday, January 31, by a vote of 93 to 6. Dissenting votes included Senate Majority Leader Chuck Schumer (D-NY) and Senators Elizabeth Warren (D-MA), Cory Booker (D-NJ), Jeff Merkley (D-OR), Kristen Gillibrand (D-NY) and Bernie Sanders (I-VT). Chao was sworn in the afternoon of January 31 and assumed USDOT responsibilities from Acting Secretary Michael Huerta.
The Trump Administration has created an infrastructure task force, housed in the White House, to help develop policy surrounding a major infrastructure investment package. President Trump emphasized his intent to invest in American infrastructure during the 2016 Presidential campaign and reemphasized investment as a priority during his January 20 inaugural address. Senior Advisor the President Jared Kushner, Chief Strategist and Senior Counselor Steve Bannon, Senior Policy Advisor Stephen Miller and Chief Economic Advisor Gary Cohn were initial appointees to the task force, according to the Washington Post.
Beyond identifying the types of infrastructure eligible for investment, the task force will be charged with coordinating stakeholder feedback and identifying potential areas where private investment could improve the state of American infrastructure.
In the closing days of the 114th Congress, legislators passed the Water Infrastructure Improvements for the Nation Act, previously titled the Water Resources Development Act of 2016. WIIN changes the maximum dredging depth from 45 to 50 feet for projects eligible for a 75 percent federal contribution, protects ports from decreases in dredging funds generated by the harbor maintenance tax by increasing the harbor maintenance funding target by three percent each year, even if HMT revenues decline, and authorizes new Army Corps of Engineers water projects for improvements. Unlike an earlier version of the legislation, WIIN does not deviate from traditional Harbor Maintenance Trust Fund workings by taking the HMTF off budget, which would have essentially firewalled the account and ensured its funds only be used for various harbor projects.
WIIN passed the House on December 8 by a vote of 360-61, passed the Senate on December 10 by a vote of 78-21, and was signed by President Obama on December 16, becoming Public Law 114-322.
A continuing resolution signed into law on December 10 provides the federal government with funding commensurate to current levels through until April 28, 2017. The legislation also contains a long-awaited fix for the house of service “glitch” caused by the fiscal year 2016 omnibus.
Language in the FY16 omnibus was meant to prevent the Federal Motor Carrier Safety Administration from using any funds to enforce the controversial two off-duty periods from 1 a.m. to 5 a.m. and the 168-hour restart, unless an ongoing review of the program found statistically significant improvements in all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules of driver operating under the more restrictive HOS rules. However, in February 2016, the U.S. Department of Transportation alerted Congress to their interpretation that the FY16 omnibus voided all federal regulations governing a driver’s restart, should FMCSA’s study fail to find the statistically significant improvements.
The December 10 CR clarifies that only the enforcement of the two consecutive off-duty periods from 1 a.m. to 5 a.m. and the 168-hour restart hinge on the results of the FMCSA study. Drivers are on instruction to continue operating under hours-of-service regulations requiring an 11 hour daily driving limit with a 70 hour limit in a seven day period, with a 34 hour restart provision, and have a 14-hour maximum driving window, until results of the FMCSA study are published. Current regulations also mandate a 30-minute break during, or at the end of, an eight hour driving window before a driver can continue to operate.
While there was speculation that the CR would include language halting the enforcement of the Safety Fitness Determination rulemaking, no such provision was included. FMCSA first suggested reforms to the Safety Fitness Determination on January 21, 2016, with a notice of proposed rulemaking revising the agency’s current methodology for determining whether a motor carrier is fit to operate. FMCSA’s NPRM generated controversy over its utilization of data from the Compliance, Safety and Accountability/Safety Measurement System. FMCSA’s CSA program was subject to reform under the FAST Act, and many argue that a safety fitness determination should not be predicated on a program currently subject to overhaul. In March 2016, a group of 22 lawmakers sent a letter to Chairman Diaz-Balart (R-FL) and Ranking Member Price (D-NC) of the House Appropriations Subcommittee on Transportation, Housing and Urban Development, and Relate Agencies, urging them to restrict FMCSA from using the funds to finalize the Safety Fitness Determination rulemaking “until all reforms related to the Compliance, Safety and Accountability/Safety Measurement Scores programs mandated by the FAST Act are completed.”
Introduced as an amendment to a bill that had previously passed the House to speed the passage process along, H.R. 2028 passed the House by a vote of 326-96 on December 8, passed the Senate by a vote of 63-36 on December 9, and was signed into law by the President on December 10, narrowly avoiding a government shutdown. It became Public Law 114-254.
The Essential Transportation Identification Credential Assessment Act was signed into law by President Obama on December 16, 2016 and became Public Law 114-278. The law directs the Transportation Security Administration to “conduct an assessment of the effectiveness of the Transportation Worker Identification Credential Program at enhancing security and reducing security risks for maritime facilities and vessels.” TSA is specifically tasked with reviewing the credentialing process, the TWIC application renewal process, and the overall security of the program. Should the agency’s assessment find a deficiency in the effectiveness of the program, the law requires that the Department of Homeland Security submit a corrective action plan to Congress, to be reviewed and reported on by the DHS Inspector General, that includes an implementation plan with benchmarks and that will be considered in any future DHS rulemakings in regards to the TWIC Program. Originally H.R. 710, the bill was introduced by Rep. Sheila Jackson Lee (D-TX) on February 4, 2015. It passed the Senate by unanimous consent on December 10 and passed the House unanimously on December 13.
On December 18, 2017, the Federal Motor Carrier Safety Administration’s electronic logging device mandate will go into effect, nearly two years after the rule was finalized. Mandated by 2012’s Moving Ahead for Progress in the 21st Century Act, the ELD rule requires that all commercial motor vehicle drivers have an ELD that synchronizes with a vehicle’s engine to record driving time as well as other record of duty status data. In response to questions and requests for more information on the mandate and its implementation, FMCSA announced on November 20, 2017 that additional ELD enforcement guidance will be published prior to the December 18 implementation date. The notice stated the additional guidance will primarily cover enforcement related to the agriculture industry.
While FMCSA works to provide additional guidance on ELD implementation, multiple stakeholders have continued their attempts to halt or delay the rule from going into effect. Congressman Brian Babin (R-TX) has been a vocal advocate of postponing the effective date of this rule. Earlier this year, he introduced the ELD Extension Act of 2017, which would delay the mandate until 2019. The bill has 67 cosponsors but has not moved out of the House Committee on Transportation and Infrastructure. This month, the Congressman sent a letter to President Trump urging him to sign an executive order to delay the mandate until it can be proven that implementation of the ELD rule will not result in harm, economic or otherwise, to those subject to it or at least until April 1, 2018.
Another vocal critic of the rule, the Owner Operator Independent Drivers Association, submitted a petition to FMCSA on November 21, 2017 to exempt motor carriers classified as small businesses from the ELD mandate. The petition requests that small business truckers with proven safety records be allowed a 5-year exemption from the mandate. In addition to this petition, OOIDA previously challenged the ruling in court, eventually asking the U.S. Supreme Court to reject the ELD rule. The Supreme Court declined to hear OOIDA’s challenge in June 2017.
Indiana Attorney General Curtis Hill also attempted to delay the ELD mandate by sending a letter on November 29, 2017 asking FMCSA to delay the ELD mandate. He argues that immediately requiring compliance would unduly burden CMV drivers and operators. Attorney General Hill also wrote that FMCSA has not established guidance on certifying ELDs, leaving drivers without the prerequisite knowledge necessary to determine which device to purchase. In response, FMCSA’s Director of External Affairs said that “FMCSA is operating under a statutorily designated deadline for ELD implementation.” Furthermore, other industry stakeholders noted that FMCSA has worked with the industry to ensure they know what devices to use.
In accordance with the Surface Transportation Board Reauthorization Act of 2015, STB finalized a rule this month to improve and expedite rail rate reasonableness cases. Originally proposed in June 2016, the rule focuses on hastening the process of stand-alone cost cases in particular. To do so, it establishes a pre-filing period during which the complainant notifies the defendant of their intention to challenge a rate and in which mandatory mediation will occur. It also creates guidelines for the discovery process to streamline it in all rate cases, limits the length of final briefs and staggers the submission of public and confidential versions of filings to expedite evidentiary submissions. Additionally, it establishes guidelines for the timeline and appointment of a Board Liaison to the parties involved in the case. The rule goes into effect on December 30, 2017.
The Federal Maritime Commission published a notice of proposed rulemaking on November 30, 2017 to amend existing rules governing non-vessel-operating common carriers service arrangements and negotiated rate arrangements. The NPRM comes as a response to a petition submitted by the National Customs Brokers and Forwarders Association of America in April 2015, which requested the FMC ease restrictions on service arrangements. This process has been ongoing. In 2004, FMC authorized NSAs to give NVOCCs a “functional equivalent” of shipper-carrier service contracts. However, stakeholders argued that the requirement for them to be filed with the Commission complicated the process. NRAs were authorized in 2011 and, unlike NSAs, did not include a mandate that they be published. However, NRAs are still subject to limitations, like requirements they not include payment terms, rate methodology and more.
According to the FMC, the proposed rule would help address these concerns by easing “regulatory burdens and making the agency’s rules more consistent with how the ocean shipping business is now practiced.” It would eliminate the requirement for NSAs to be filed with the commission, permit NVOCCs and shippers to amend NRAs, and would allow the moment cargo is booked, rather than a signature on the contract, to be considered an acceptance of an NRA. Industry stakeholders, like the World Shipping Council and the NCBFAA, have expressed support of the NPRM. Comments on the changes are due by January 29, 2018.
In October 2016, the U.S. Department of Transportation, the National Highway Traffic Safety Administration, and the Environmental Protection Agency published the Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium-and Heavy-Duty Engines and Vehicles — Phase 2 final rule. The final rule was intended to reduce greenhouse gas emissions as well as fuel consumption and applied to combination tractors as well as their trailers, beginning with model year 2018. Of note, container chassis are included under the umbrella of trailers in the final rule.
This final rule marked the first time EPA regulated trailers, a move that was rebuked by industry stakeholders. The Truck Trailer Manufacturers Association criticized the inclusion of trailers in this rule, saying the EPA lacks the authority to regulate trailers. TTMA argued that EPA can only regulate engines and motor vehicles, defined as “self-propelled vehicles[s] designed for transporting persons or property on a street or highway.” Because of this, TTMA quickly filed suit against the EPA after the publication of the final rule. In mid-August 2017, the EPA announced that it plans to revisit the trailer-specific portion of the final GHG phase 2 rule, saying they “intend to initiate a rulemaking process that incorporates the latest technical data and is wholly consistent with [their] authority under the Clean Air Act.”
In response to EPA’s announcement and in advance of the looming 2018 start date, TTMA asked the U.S. Court of Appeals for the District of Columbia Circuit to stay the trailer portion of the rule until their lawsuit is heard by the court or the EPA changes the rule. On October 27, 2017, the Court granted TTMA their stay, preventing the trailer provision from being enforced “pending judicial review.”
Among many important developments, the Fixing America’s Surface Transportation Act, signed into law by President Obama in December 2015, directed the U.S. Department of Transportation to establish a National Multimodal Freight Network. This NMFN is intended to assist states in strategically directing resources towards improving system performance, prioritizing Federal investment, informing freight transportation planning, and assessing and supporting Federal investments to achieve national multimodal freight policy goals. On June 6, 2016, USDOT published an Interim NMFN and asked for stakeholder comments, due September 6, 2016. Joni Casey, on behalf of IANA, used this opportunity to commend both USDOT and Congress for the publication of the Interim NMFN and for the freight-focused policy and funding in the FAST Act. IANA’s comments also asked USDOT to ensure that all intermodal connectors, which allow for the actual ingress and egress between intermodal facilities and the National Highway System, are included in the final NMFN.
On October 25, 2017 USDOT announced that it is reopening the comment period on the Interim NMFM in response to input from several state departments of transportation that the original period did not provide enough time for the submission of relevant comments. — State DOTs have a higher burden of certifying their comments than other stakeholders. — Comments submitted during the first open comment period will still be housed under the docket. New comments are due by February 22, 2018.
During the first three months of his Administration, President Trump signed three Executive Orders directing federal agencies to review their regulations and guidance documents. Combined, the EOs instructed agencies to: repeal two existing regulations for each new one introduced; establish a Regulatory Reform Task Force to evaluate existing regulations and make recommendations for future actions with them; and review guidance and regulations for their potential burden on the development and use of domestically produced energy resources. In response to these EOs, the U.S. Department of Transportation published a notification of regulatory review on October 2, 2017. USDOT indicated they will review their existing regulations and other agency actions to evaluate their burdens and to determine if they are properly designed to address existing problems. Comments were due by November 1, 2017 but, in response to industry requests, that deadline has since been extended to December 1, 2017.
Also in response to the EOs, USDOT created a RRTF in late May 2017, naming Deputy Secretary Jeffrey Rosen the Regulatory Reform Officer. Secretary Chao directed the RRTF to “consider ways to accomplish USDOT’s primary safety objectives in less burdensome ways and to further review ‘midnight rules’ that were issued at the end of the last Administration.” On October 24, 2017 the House Oversight Subcommittees on Health Care, Benefits and Administrative Rules and Government Operations held a hearing to check in on the regulatory reform processes. USDOT’s acting General Counsel, James Owens, provided an update on the regulatory reform process taking place within the Department. Mr. Owens said the Department is focused on three objectives: reducing unnecessary regulatory burdens without compromising public safety; streamlining the permitting process; and enabling innovation by removing unnecessary barriers to transformative technology. He reported that in fiscal year 2017. 12 percent of USDOT rulemaking actions were deregulatory. In fiscal year 2018, USDOT aims to increase that number to about half of all USDOT rulemakings.
On September 12, 2017, the Trump Administration released their new federal policy for automated driving systems. The document was published by the U.S. Department of Transportation and National Highway Traffic Safety Administration and titled “Automated Driving Systems: A Vision for Safety 2.0.” While it keeps many of the same themes as the Obama Administration’s September 2016 policy, A Vision for Safety 2.0 is intended as a replacement of that guidance. A Vision for Safety 2.0 applies to all motor vehicles, including commercial motor vehicles, and focuses on SAE International levels of automation three through five, ADSs that require little to no human intervention. Not only does the guidance help to lay the path for the development and deployment of ADSs, it also aims to clarify the role of federal and state governments in autonomous vehicle deployment. It recommends that the federal government establish safety standards while states maintain control over enforcing traffic laws, conducting safety inspections, and regulating vehicle registration and insurance.
NHTSA and USDOT describe this guidance as “entirely voluntary, with no compliance requirements.” Instead, the document is meant to support the development of best practices and create an environment for industry innovation. Secretary of Transportation Elaine Chao said the guidance is constantly evolving, leaving room for changes as the technology advances. Meanwhile, the Federal Motor Carrier Safety Administration is expected to provide more specific requirements for the testing and development of automated trucks.
In February 2016, the Federal Maritime Commission tasked Commissioner Rebecca Dye to establish a Supply Chain Innovation Team Initiative in response to congestion and bottlenecks at ports and other key points in the U.S. supply chain. The Initiative was tasked with improving “the reliability, resilience, and competitiveness of America’s global supply chain.” The first phase of the Initiative, the import teams, launched in May 2016 and concluded later that same year. During the first phase, the import teams found a need for a national seaport information portal to help improve supply chain visibility and overall performance. In July 2017, phase two of the Initiative, the export teams, launched. It focused advancing the national seaport information portal by working to identify the information stakeholders need to improve the overall performance of the U.S. supply chain. During an FMC Sunshine Act Meeting on September 20, 2017, Commissioner Dye said the export teams are working to define exactly what information stakeholders need for success and when they need it. She notified the Commission that the export teams are working to create recommendations and that phase two of the Initiative should conclude this fall.
The FMC has also dealt with controversy surrounding their decisions to grant certain alliance agreements, with various stakeholders and Members of Congress worrying that some agreements have resulted in an anticompetitive market. During the September Sunshine Act Meeting, Commission staff briefed the Commissioners on their updated process of reviewing carrier and maritime terminal operator agreements in order to assure both the Commissioners and the public that potential agreements are properly vetted. The new procedure focuses on transparency and collaboration, both within the Commission and with the public, and is now a simultaneous review process instead of sequential. This helps to ensure that the process meets the mandated 45-day deadline and is as thorough as possible. The Commissioners expressed support for this process and praised it for helping to assure the public that any approved agreements or alliances are not anticompetitive.
In December 2016, the Coalition for Fair Port Practices petitioned the FMC, requesting the Commission initiate a rulemaking relating to demurrage, detention, and per diem charges. The World Shipping Council expressed opposition to the petition, saying the potential rulemaking does not have a legal argument behind it and would increase congestion. During the closed session of the September meeting, the Commission discussed all comments received, including the World Shipping Council’s, in response to the Coalition for Fair Port Practices’ petition for a rulemaking. In total, the FMC received over 100 comments on the petition and, as such, the Commissioners voted to hold public hearings on the petition to further discuss its details. A hearing date has yet to be officially announced.
In August, President Trump signed an Executive Order intended to remove existing roadblocks from the environmental review process for all infrastructure projects. In response, on September 14, the Council on Environmental Quality published a list of initial actions it will take to improve the federal environmental review process for infrastructure projects.
To properly fulfill the EO’s requirements, the CEQ will collaborate with the Office of Management and Budget as well as the Federal Permitting Improvement Steering Council to implement a “One Federal Decision” policy. The President’s EO describes “One Federal Decision” as one “lead Federal agency [working] with other relevant Federal agencies to complete the environmental reviews and permitting decisions needed for major infrastructure projects.” Each participating agency will then sign a Record of Decision and, should they be granted, all permits will be issued within 90 days of that decision. This policy is intended to shorten the environmental review process to two years. Among other actions, the CEQ also indicated that it will work with other relevant agencies to identify projects that could be considered high-priority infrastructure projects.
Also hoping to address the environmental permitting process, the U.S. Department of Transportation published a Supplemental Notice of Proposed Rulemaking on September 29, 2017. Marketed by the Administration as streamlining, the SNPRM would “harmonize” the environmental process for multimodal projects by ensuring the Federal Railroad Administration, the Federal Highway Administration and the Federal Transit Administration all follow the same procedures. According to a statement by Secretary Chao, this proposal would “ensure that multimodal projects have to follow only one process, rather than multiple agency processes.” Comments on the SNPRM are due November 28, 2017.
The Federal Motor Carrier Safety Administration issued regulatory guidance this month clarifying that states can choose to accept out-of-state commercial learner’s permit applications and to administer the commercial driver’s license knowledge test to an individual who does not live within the state. In October 2016, FMCSA published a final rule simplifying the process of obtaining a CLP or CDL for military personnel. The rulemaking originally allowed states to accept applications and administer the written and skills test for a CLP or CDL to military personnel stationed in that state. The states were instructed to then transmit the results to the State of domicile of the military personnel, which would in turn issue the CLP or CDL on the basis on the results. This new guidance extends that ability to all applicants, whether or not they are members of the military. FMCSA notes that the guidance does not allow a state in which the applicant does not live to issue them a CLP or CDL – that must be completed by the applicant’s state of domicile.
The U.S. Department of Transportation published its list of ten proposed projects, totaling $78.88 million, to receive funding through the small project set aside under the Nationally Significant Freight and Highway Projects Program, also known as the FASTLANE program. Created by the Fixing America’s Surface Transportation Act in 2015, the NSFHPP is intended to make investments in large freight and highway projects of national or regional significance. In each round, 10 percent of total funds are reserved for small projects, defined as those with anticipated costs less than $100 million or 30 percent of the state’s highway apportionment.
In October 2016, the Obama Administration released a notice of funding opportunity for Fiscal Year 2017 FASTLANE grants but did not make awards before leaving office in January 2017. The Trump Administration evaluated submissions from the Obama Administration’s FY17 NOFO for the small project set-aside only. In July 2017, the Trump Administration issued its own NOFO for the remaining FY17 funding, as well as the program’s FY18 funding. The Trump Administration also renamed the program: Infrastructure for Rebuilding America. Applications for the INFRA FY17/18 program are due to USDOT by November 2, 2017.
Included in the Trump Administration’s ten proposed awards under the FY17 small project set-aside are projects that will construct grade separations, repair and upgrade bridges, replace and update port infrastructure, and more.
Under the program’s terms, USDOT is required to provide a minimum of 60 days’ notice to the House Transportation and Infrastructure Committee, the Senate Environment and Public Works Committee, and the Senate Commerce, Science and Transportation Committee prior to awarding a grant. During this 60-day period, Congress may pass a joint resolution of disapproval if a project is found objectionable. Transportation Secretary Chao notified Congress of the proposed awards on August 2, 2017.
On August 15, President Trump issued Executive Order 13807, titled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects.” Currently, the permitting process can take many years to complete, costing projects both time and money. When President Trump released his priorities for an infrastructure initiative earlier this year, included was a goal to “spur growth and investment… [by] dramatically reducing permitting time” for infrastructure projects. This month’s EO is intended to remove current roadblocks in the environmental permitting system in order to create a more efficient process for infrastructure projects.
The EO requires the permitting review process follow the “one federal decision” model, which would result in federal agencies working together to complete the process and would assign one agency as the lead. The EO also sets a two-year goal for completion and repeals an Obama-era EO mandating that all federal projects built in flood plains take into account rising sea levels.
After this EO’s release, some lawyers argued that there “will likely be limits to how much relief this EO can provide,” as agencies may be limited in how quickly they can complete the review processes because of what is written in law.
The Commercial Vehicle Safety Alliance announced the enforcement community will begin enforcing the electronic logging device mandate when it goes into effect December 18, 2017, but in order to minimize shipping disruption, commercial motor vehicle drivers will not be placed out of service for violations until April 1, 2018. The Federal Motor Carrier Safety Administration finalized the ELD rulemaking in December 2015, mandating that commercial truck drivers install ELDs by December 18, 2017. In its August 25 announcement, CVSA pushed back against opponents of the mandate who argue the rule’s implementation should be delayed, stating the enforcement community will begin documenting violations in December and, at the jurisdiction's discretion, will issue citations to non-compliant CMV drivers.
While the American Trucking Associations has been supportive of the mandate, other stakeholders, including the Owner-Operator Independent Drivers Association, have opposed the rule. OOIDA recently lost a court case in which the association argued the rule is unconstitutional on grounds that it violates the Fourth Amendment’s protections against unreasonable search and seizure. On August 29, OOIDA petitioned the FMCSA to delay the rule’s implementation, arguing that 26 states have not incorporated ELD regulations into their own state laws and cannot enforce the rule until they do so. FMCSA has not yet responded to the petition.
In Congress, Representative Babin (R-TX) has attempted delaying the rulemaking’s implementation by introducing the ELD Extension Act of 2017 in July, calling for a two-year implementation delay. He also introduced an amendment to one of the House’s Fiscal Year 2018 appropriations packages that would prohibit USDOT from implementing or enforcing the ELD rulemaking during FY18; this amendment, and the appropriations package, will be reviewed when Congress reconvenes in September.
Mandate supporters are skeptical attempts to delay or prevent the rule’s implementation will be effective, arguing that ELDs are critical to safety, would make it difficult to falsify hours of service, and are “inevitable” in the digital age.
On January 23, 2015 the Federal Motor Carrier Safety Administration published the results of a study that found the difficulty and cost of including crash fault in a carrier’s Compliance, Safety, Accountability score outweigh the benefits. Many stakeholders criticized the CSA program as a result of the study and chastised it for including all crashes, regardless of preventability, in a carrier’s score. In response, FMCSA proposed a demonstration program in July 2016 that was meant to determine the preventability of certain less complex crashes. On July 27, 2017, the FMCSA announced that it is officially launching the Crash Preventability Demonstration Program.
Under the Program, a commercial motor vehicle carrier can submit a Request for Data Review and any evidence, including all law enforcement and insurance reports, from a crash to FMCSA in an effort to prove the crash was not preventable by the driver. Eligible crashes must have occurred on or after June 1, 2017. When reviewing the information, FMCSA can either determine that a crash was “preventable,” “not preventable,” or “undecided.” The federal register notice defines a crash to be not preventable if the CMV was hit by a motorist driving under the influence, driver the wrong direction, struck white legally stopped or parked, struck by falling debris or an animal in the roadway, or struck by cargo or equipment falling off another vehicle.
If a crash is determined to be not preventable, the carriers’ Crash Indicator Behavior Analysis and Safety Improvement Category will include a note reflecting the determination and law enforcement will be able to see the score with or without the crash included. In a “preventable” determination, the carrier’s BASIC will include a notation highlighting the decision. An “undecided” determination will result should the documentation submitted not allow for a conclusive decision. In this instance, a notation in a carrier’s BASIC will read “FMCSA reviewed this crash and could not make a preventability determination based on the evidence provided.”
FMCSA will use information gathered from the Program to evaluate and improve their ability to identify high-risk motor carriers. FMCSA began excepting RDRs on August 1, 2017.
The U.S. Department of Transportation published a notice of funding opportunity for the Nationally Significant Freight and Highway Projects program on July 5, 2017. While the Obama Administration referred to the program as the Fostering Advancements in Shipping and Transportation for the Long-term Achievement of National Efficiencies grant program, the Trump Administration has now rebranded it, naming it the Infrastructure for Rebuilding America grant program.
Created by the Fixing America’s Surface Transportation Act in 2015, the NSFHPP is intended to make investments in large freight and highway projects of national or regional significance. It was authorized in the FAST Act with $4.5 billion in contract authority from the Highway Trust Fund over five years. The first round of the then-FASTLANE grants made $800 million available for projects. The Obama Administration awarded those grants in July 2016. Then, in October 2016, the Obama Administration released a second NOFO, making $850 million in funds available for grants. However, the Obama Administration did not make awards before leaving office in January 2017. Instead, with the exception of around $80 million for small projects which will be awarded under the October 2016 merit criteria, the Trump Administration wrote its own criteria for the same pot of money. Therefore, the July 5, 2017 NOFO makes approximately $1.5 billion in funding available, combining the leftover money from the October 2016 NOFO and the money appropriated by the FAST Act for fiscal year 2018.
While eligible applicants and projects remain the same, the Trump Administration created their own merit criteria, focusing on: 1) national and regional economic vitality; 2) innovation in three categories including environmental review and permitting, project delivery, and safety; 3) leveraging federal funding; and 4) performance and accountability. Applications for the INFRA grants are due by 8pm Eastern on November 2, 2017.
The Federal Maritime Commission launched the second phase of its Supply Chain Innovation Teams Initiative on July 11, 2017. The Supply Chain Innovation Teams were originally announced by Commissioner Rebecca Dye in February 2016 to “engage leaders from commercial sectors of the U.S. international supply chain in discussions to identify commercial solutions to U.S. supply chain operation challenges.” The first phase of the Initiative launched on May 3, 2016 and focused on the import supply chain. Upon the first phases’ conclusion, the FMC released an interim status summary wherein they noted the Teams determined that there is a need for a national seaport information portal.
The second phase of the initiative, the export phase, will work to identify the “actionable information needed by supply chain actors for improved supply chain system visibility, reliability and resilience.” The teams will also work to advance the import teams’ call for a national seaport information portal. As the first round did, this round will feature three teams of industry leaders, representing ports, warehouses, exporters, ocean carriers and others. Commissioner Rebecca Dye expects the second phase to be completed by fall 2017.
The Federal Motor Carrier Safety Administration proposed a Flexible Sleeper Berth Pilot Program this month. Per FMCSA safety regulations, a driver who uses a sleeper berth must spend at least 10 hours off duty. Currently, drivers can split these hours into two periods, with one being at least eight hours long. Drivers have complained this requirement reduces their flexibility and forces them to be on the road at inconvenient times, such as during rush hour. The Flexible Sleeper Berth Pilot Program would recruit 200 or more drivers to study alternative sleeper birth split times, with the shortest period being no less than three hours. This means drivers could split the 10 hours into periods of seven and three hours, six and four hours, or five and five hours. The pilot program would seek to determine whether split sleeper berth time affects driver fatigue and performance. Comments on the program are due by August 7, 2017.
In addition to comments on the pilot program, the FMCSA is seeking comment on an information collection request to collect data for the study. Comments on the ICR are due by August 28, 2017.
The National Academies of Sciences released the final study on the Federal Motor Carrier Safety Administration’s Compliance, Safety, and Accountability Program on June 27, 2017. The study is titled “Improving Motor Carrier Safety Measurement.”
Mandated by the Fixing America’s Surface Transportation Act to study the CSA program and the Safety Measurement System scores, the study aimed to examine the accuracy of Behavior Analysis and Safety Improvement Categories scores and determine if an alternative method to SMS would more accurately identify high risk carriers.
The study found that the SMS is “conceptually sound,” but identified data quality issues and recommended improved implementation. It recommends that FMCSA develop an item response theory model over the next two years to possibly replace the SMS, should it perform well. An IRT model evaluates the relationship between an individual’s performance on a test and the difficulty of the overall question or task. Currently, IRT models are successfully used to assess schools and hospitals and to target poor performers for intervention.
NAS’s study also recommended the FMCSA improve its data collection through collaboration with states and other agencies. The improved data collections, like in the areas of vehicle miles traveled and crashes, would help to account for weather and other varied conditions commercial motor vehicle drivers face. It also recommended FMCSA collect more data on carrier characteristics, including driver turnover, type of cargo, compensation, and more. The report urged increased transparency in the scoring system and recommended FMCSA make it easier for carriers to replicate and understand their scores. The study also recommends that absolute scoring metrics be included in SMS instead of relying solely on relative ranking to identify carriers for intervention.
The report notes that six of the seven current BASICs are positively associated with future crash frequency. The seventh BASIC, Driver Fitness, has been criticized, with many stakeholders arguing it has a negative correlation with future crash frequency, causing many to call for its removal. However, while the report states that the evidence against the Driver Fitness BASIC is “worrying,” NAS does not recommend its removal, calling such a move “premature.” The report suggests that an IRT model will more naturally identify which BASICs should continue to be used and which should be removed. A FAST Act mandate originally hid the BASIC scores from view until the Inspector General certified the recommendations and opportunities for improvement identified in the NAS report are implemented. The NAS was unable to say whether or not the scores should be made public, instead recommending FMCSA undertake a study to better understand consequences of public knowledge of the information.
The FAST Act gives FMCSA 120 days to review the NAS’ findings and issue a response. On June 29, 2017 FMCSA announced that they accept the recommendations from the study and will use the 120 day period to work to develop an action plan to implement changes.
On February 24, 2017, President Trump issued Executive Order 13771, requiring each agency to appoint a Regulatory Reform Officer to head each agency's Regulatory Reform Task Force. Each RRTF is responsible for identifying rules and practices that are burdensome, unnecessary, or outdated. Under the President’s directive, Secretary Chao appointed Jeffrey Rosen in May to lead the Department of Transportation’s RRTF. This month, the RRTF announced it is seeking comments on USDOT’s existing non-statutory policy, guidance documents and regulations to identify unnecessary burdens to transportation infrastructure projects. Comments should include: specific references to a policy statement, guidance document, or regulation; an explanation of the burden associated with it; and a description of a less burdensome alternative. Comments are due to USDOT by July 24, 2017.
The Federal Maritime Commission is also acting on the President’s executive order. In March, FMC Managing Director Karen V. Gregory was selected to serve as the Commission’s Regulatory Reform Officer. On June 1, 2017, FMC announced it is seeking comments on any regulations that are outdated, unnecessary, or ineffective. The FMC specifically identified multiple programs and regulations that it requested comment on, including service contract regulations, licensing, financial responsibility requirements and general duties for Ocean Transportation Intermediaries, and NVOCC service arrangements, among others. Comments on how a particular FMC regulation is burdensome including suggestions as to how it can be improved were due by July 5, 2017.
The Surface Transportation Board established its RRTF in late April and issued a status report on May 25, 2017. In this status report, the RRTF identified multiple proposals for discussion including a proposal to revise STB’s environmental rules and to replace outdated procedural and filing rules, among others. On June 20, 2017, the Board announced that the RRTF will host a public listening session on July 25, 2017 to hear stakeholders’ views on streamlining the agency’s regulations. Conversation will not be limited to those initiatives the RRTF identified in their status report but instead will allow public comment on all STB initiatives. In addition, written comments may be submitted by July 25, 2017.
The Federal Highway Administration released the final Freight Intermodal Connector Study on May 23, 2017. The study was conducted to provide a comprehensive understanding of the condition and performance of freight intermodal connectors on the National Highway System. It aimed to determine how freight intermodal connectors are currently being used by the industry, how their use is changing and what data and resources are currently available to address the performance of freight connectors. The report noted that freight intermodal connectors make up less than one perfect of total NHS mileage but are critical for the timely and reliable movement of freight.
The study criticized the designation of connectors, saying it has not kept pace with the changing environment. Specifically, FHWA reported that truck-truck terminals are a new, heavily used type of connector that has yet to be officially designated.
The study found that 37 percent of connectors with available pavement data are in poor condition and estimated that around $2.2 billion would need to be invested to bring all pavement conditions up to good quality condition. It also found freight intermodal connectors are congested, resulting in around 4,237 hours of truck delay daily. A $3.2 billion investment would be needed to increase capacity on the connectors and eliminate truck delays.
Finally, the study noted that very few state and local funding sources are targeted towards investment in freight intermodal connectors. While the FAST Act included federal money for their improvement, FHWA found that more money is needed and that intermodal connectors are often not included in freight planning documents.
The report concluded by calling for: the evaluation of criteria used in freight intermodal connector designation; the creation of a program for managing information related to freight intermodal connector designation; the development of guidance for incorporating freight intermodal connectors into both freight and general planning documents; and recommendations for improving the performance of tracking freight intermodal connectors, among other suggestions.
On May 17, 2017, the Port Authority of New York and New Jersey and the Ocean Carrier Equipment Management Association filed a discussion agreement with the Federal Maritime Commission. If approved, the agreement would authorize PANYNJ and OCEMA to discuss PANYNJ’s per-container charge, called the Cargo Facility Charge. This is not the first time the two parties have filed for a discussion agreement with the FMC. In June 2016, PANYNJ and OCEMA filed to discuss both the Cargo Facility Charge and equipment optimization, including a proposed chassis pool. The parties withdrew the June 2016 request after being asked to provide more information to FMC and subsequently refiled in November 2016. Ultimately, the FMC denied the agreement for being overly broad. In a statement about the rejection, former FMC Chairman Mario Cordero emphasized that the Commission was not opposed to a discussion agreement between the two groups. Instead, the Commission urged the parties to create a “narrowly tailored agreement that delivers specific efficiencies.” This month’s filing attempts to follow that recommendation by leaving out discussions about equipment optimization, including the proposed chassis pool. The FMC has 45 days from the day of publication in the federal register to review the agreement or request more information from the two groups, which would extend the review period an additional 45 days.
The Owner Operator Independent Drivers Association filed a petition with the U.S. Supreme Court opposing the Federal Motor Carrier Safety Administration’s electronic logging device mandate. This is the latest in OOIDA’s efforts to block the rule; they originally sued shortly after the rule’s introduction in February 2011. FMCSA issued its ELD final rule on December 16, 2015. The final rule requires that all commercial motor vehicle drivers have an ELD that synchronizes with a vehicle’s engine to record driving time as well as other records of duty status data. In March 2016, OODIA sued FMCSA to prevent the implementation of the ELD ruling, arguing that the monitoring devices do not advance safety but do violate the Fourth Amendment rights of a driver against unreasonable searches and seizures. In October 2016, the U.S. Court of Appeals for the Seventh Circuit denied OOIDA’s petition. In this month’s appeal to the Supreme Court of the United States, OOIDA argues that the Seventh Circuit was wrong and maintains that the ELD rule violates Fourth Amendment protections, calling the devices the “equivalent of warrantless surveillance of truckers.” The trade press and industry stakeholders are speculating that the ELD mandate will survive this latest appeal because it was Congressionally mandated, through the Moving Ahead for Progress in the 21st Century Act, and will most likely have benefits to truck safety over the long term.
On April 7, the Federal Maritime Commission voted to approve the East Coast Port Gateway Terminal Agreement, effective April 10. The Agreement is between the Georgia Ports Authority and the Virginia Port Authority and was originally fined on February 24, 2017. It allows the two port authorities to engage in discussions about marketing and commercial opportunities as well as operating systems and equipment, cargo handling practices, and optimizing service for ocean carriers. According to participants, the East Coast Port Gateway Terminal Agreement is a response to a changing shipping environment with an increase in both shipping alliances and in the use of mega-ships, altering cargo volumes at ports. These types of discussion agreements, as well as the shipping alliances, have raised industry concern over market competition. However, in the East Coast Port Gateway Terminal Agreement’s case, the FMC emphasized it does not allow the two authorities to jointly negotiate, set, and approve terminal rates or charges. Both port authority heads also made it clear they will not discuss pricing and also argued the two do not compete for the same cargo or customers and therefore the Agreement will not have an effect on competition. Instead, FMC Acting Chairman Khouri said the Agreement will provide a way “to improve service and operations which will ultimately benefit the American shipper and consumer.”
The Federal Motor Carrier Safety Administration held a public listening session on Highly Automated Commercial Vehicles on April 24. The session solicited information on the design, development, testing, and deployment of highly automated commercial vehicles. In September 2016, the U.S. Department of Transportation and the National Highway Transportation Safety Administration released the “Federal Automated Vehicles Policy: Accelerating the Next Revolution in Roadway Safety.” While the policy indicated that it applied to all vehicles that use public roadways and intend to incorporate highly automated vehicle technology, including light-, medium-, and heavy-duty vehicles, it focused mainly on passenger cars. Therefore, the FMCSA has begun working on guidelines for automated commercial vehicles, which are currently in the beginning stages.
Stakeholders at the April 24 session had many questions for the FMCSA about how automated vehicles would affect various aspects of the industry, including driver hours of service, what happens in the case of an equipment emergency, or who is accountable if there is a crash. Attendees also wondered if automated commercial vehicles would require a different type of commercial driver license, how the driver shortage could be affected, and if the technology could be hacked. Acting FMCSA administrator, Daphne Jefferson, told the attendees that the FMCSA did not have answers to all the questions but that they’re working to develop them. She indicated that the ultimate focus of the listening session was to ensure that regulations provide appropriate safety standards while not impeding progress.
Another indicator of the unknowns surrounding the development of a Federal policy for automated commercial motor vehicles, on April 25 Senators Collins (R-ME) and Reed (D-RI) sent the Government Accountability Office a letter asking them to examine the impact self-driving trucks will have on current truck drivers as well as the speed at which the technology may be adopted. The chairman and ranking member of the Transportation, Housing and Urban Development subcommittee also asked the GAO to address any changes in the skills and training of those operating an automated vehicle and if federal training and employment programs are preparing to assist professional drivers whose jobs may be eliminated because of the technology.
On March 23, the Federal Motor Carrier Safety Administration withdrew their Carrier Safety Fitness Determination Notice of Proposed Rulemaking. Originally published in January 2016, the NPRM sought to replace the current three-tier motor carrier safety rating system of “satisfactory,” “conditional,” and “unsatisfactory” with a single determination of “unfit.” A carrier would be determined to be “unfit” by three possible ways: 1) it fails two or more Behavior Analysis and Safety Improvement Categories based exclusively on on-road safety data; 2) it fails two or more BASICs by violating the Revised Critical and Acute Regulations identified through investigation; or 3) it fails two or more BASICs through a combination of on-road safety data and investigation results. After the publication of the NPRM, industry stakeholders came out against it because of its reliance on BASIC data, and therefore the Compliance, Safety, Accountability and Safety Measurement System.
The CSA program has four major elements, measurement, safety evaluation, intervention and information technology, that use data grouped by the SMS and based on the seven BASICs: 1) Unsafe Driving; 2) Fatigued Driving; 3) Driver Fitness; 4) Controlled Substances/Alcohol; 5) Vehicle Maintenance; 6) Cargo Related; and 7) Crash Indicator. Various papers by both industry stakeholder and the federal government have found the SMS methodology to be unreliable and that BASICs are not violated enough to be strongly associated with crash risk. There have also been criticisms regarding lack of sufficient data for peer comparison. The Fixing America’s Surface Transportation Act, passed in December 2015, worked to reform the SMS by hiding BASIC scores from public view until the National Academies conducts a review of CSA in its entirety and FMCSA implements any necessary changes.
Industry stakeholders as well as Members of Congress wrote repeatedly to the Administration asking for the delay of the Safety Fitness Determination NPRM until the FAST Act required review and reforms were completed. Both industry and Congressional pressure continued to mount causing the FMCSA to withdraw the rulemaking until additional analysis is conducted on CSA/SMS and any corrective actions are completed.
The antidumping and countervailing duty investigations into truck and bus tires from China concluded this month. In late February, the International Trade Commission determine by a vote of 3-2 that U.S. industry is “not materially injured or threated with material injury” by imports of truck and bus tires from China. Therefore, on March 17, the ITC published a federal register notice announcing it made negative final determinations in both the antidumping and countervailing duty investigations.
Antidumping and countervailing duty investigations are conducted simultaneously by the ITC and the Department of Commerce. DOC determines if dumping or subsidizing exists while the ITC determines if it causes material injury or threat of industry to domestic industry. The investigation into truck and bus tires from China began in February 2016, initiated by the ITC, followed quickly by the DOC later that month. In March 2016, the ITC made affirmative determinations in the preliminary phase of the investigations while DOC made affirmative determinations in their preliminary phases later that year. In January 2017, DOC announced that they made a final affirmative determination in both the antidumping and countervailing investigations.
While an affirmative determination was made in every previous round, the ITC’s final negative determinations supersede them and as a result the DOC will not issue antidumping and countervailing duty orders on imports of truck and bus tires from China.
On March 9, the Federal Motor Carrier Safety Administration notified Congress of the results of their Commercial Motor Vehicle Driver Restart Study. FMCSA was tasked with determining if the once-a-week 34-hour restart with two consecutive 1 – 5 a.m. “off duty” periods, effective July 1, 2013, provided greater net safety benefits than the rule in effect on June 30, 2013. Soon after the implementation of these two restart provisions in 2013, the industry began challenging its safety benefits, leading Congress to require a field study of the provisions in the Moving Ahead for Progress in the 21st Century Act. That original study supported the restart but Congressmen Shuster (R-PA0 and Petri (R-WI) challenged the results, citing concerns with the agency’s methodology. In 2014, the Government Accountability Office released their analysis of the study, which found it did not meet certain research standards.
Concern continued to mount over the two provisions causing Congress to include language in the fiscal year 2015 appropriations law that defunded enforcement and directed the FMCSA to conduct further study. While the two provisions were suspended, the industry was instructed to operate under the HOS requirements effective on June 30, 2013, meaning a driver’s week could be restarted more than once during a seven day period and drivers were no longer required to take two consecutive 1 – 5 a.m. “off duty” periods. The FY15 appropriations law also required that the Office of the Inspector General review FMCSA’s study to avoid any accuracy or research issues that occurred during the first study. Subsequently, the fiscal year 2016 appropriations law stipulated that the two restart provisions could not be reinstated unless the FMCSA’s study found significant improvements in all outcomes related to safety, operator fatigue, driver health and longevity, and work schedules.
In January 2017, the FMCSA sent its final report on the restart study to OIG for review. In early March 2017, OIG reported to Secretary Chao that they concurred with FMCSA’s conclusion and that their study properly completed all Congressional requirements. With OIG’s approval secured, the FMCSA notified Congress on March 9 that their study did not find net safety benefits resulting from the two suspended provisions. As a result, the two “off-duty” periods of 1 – 5 a.m. and the once-a-week 34-hour restart provisions will not be reinstated.
The Surface Transportation Board tentatively adopted 1.020, or 2.0 percent per year, as the average change in railroad productivity for the 2011-2015 averaging period. This is a 0.6 percent increase from the previous reporting period, 2010-2014. STB calculates this figure every year to determine the change in industry productivity by comparing the average cost of producing a unit of railroad output. However, in a change from past years, the 2011-2015 figure was calculated using actual location data derived from electronic signals. In the past, a mathematical model was used to predict the most likely route. This change made the distances reported more precise but also skewed the final productivity adjustment number, as the precise distances were found to be generally shorter than the calculated mileages assigned in previous years. This led the STB to develop a linking factor to account for the general change in distances and to come up with this year’s number. Because of the changes in calculations, STB hosted a technical conference on February 28 for interested parties to learn more about the process and weigh in. Comments on the figure, particularly on the data or any computation errors in the calculations, are due March 16, 2017. After the Board reviews any comments received, it will either determine the tentative productivity adjustment is final or will take the necessary actions to modify it.
This month, the Surface Transportation Board adopted its roster of arbitrators who will help resolve rail rate and practice complaints subject to the Board’s jurisdiction. The Surface Transportation Board Reauthorization Act of 2015, signed into law by President Obama on December 18, 2015, required STB to establish an arbitration process to resolve rail rate and practice complaints. The Act also required the creation and maintenance of a roster of arbitrators from which the STB can pull to help resolve the disputes.
On October 6, 2016 the Board published their final rule for revisions to the arbitration procedures. The rule added rate disputes to the list of matters eligible for voluntary arbitration, modified the process for initiating arbitration procedures and laid out guidelines for establishing the roster as well as qualification standards for becoming an arbitrator. It required that arbitrations have rail transportation, economic regulation, professional or business experience in the private sector to be added to the roster. In December 2016, STB announced that it was seeking applications for persons interested in being included on the list and on February 23, 2017 adopted its first roster. The roster is subject to edits at any time and will updated every year.
President Trump issued an executive order on January 30, 2017 requiring that federal agencies repeal two existing regulations for each new one enacted. This month Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America, AFL-CIO sued the President as well as other key officials in the Administration to block the EO on the grounds that it both exceeds Trump’s Constitutional authority and would have a negative impact on safety. Among other examples, the parties site the speed limiter rulemaking as evidence, arguing the rule would have net safety benefits to society but would be postponed until two other regulations are repealed, delaying those benefits. It is unclear how effective this particular example will be because, according to the trade press, the speed limiter rulemaking could potentially be dead in the water.
Originally published on September 7, 2016 in response to a petition by the American Trucking Association, the speed limiter proposed rule would mandate that all newly-manufactured trucks weighing over 26,000 lbs be equipped with speed limiting devices. The proposed rule did not include an exact speed to which the vehicles would be limited but requested discussion on the benefits of setting the maximum at 60-, 65- and 68-miles per hour. An extension on the comment period was granted after industry stakeholders, including the original petitioner ATA, requested it over concerns about the lack of specificity on the maximum speed limits. Stakeholders also spoke out against the rule because it did not address the speed differential between trucks and cars that would occur as a result of the limiting devices. The pushback from the industry and a memorandum by President Trump ordering a freeze on all regulatory processes have led many to believe the administration will not choose to continue with the rulemaking.
The Carrier Safety Fitness Determination notice of proposed rulemaking again made headlines in the month of February. A group of industry stakeholders, including the American Trucking Association and the Owner Operator Independent Drivers Association, wrote to Secretary Chao to voice their concern about the NPRM, arguing the rulemaking relies on flawed Compliance, Safety and Accountability program data and should be rescinded until the FMCSA fully revamps the CSA program, as required by the Fixing America’s Surface Transportation Act.
Published on January 21, 2016 the NPRM would replace the three-tier motor carrier safety rating system of “satisfactory,” “conditional” and “unsatisfactory” with a single determination of “unfit.” The Federal Motor Carrier Safety Administration argued that this method would allow the agency to assess the safety fitness of approximately 75,000 companies a month — up from 15,000 motor carrier investigations conducted annually using the current system. Carriers would be identified as “unfit” should they: 1) fail two or more Behavior Analysis and Safety Improvement Categories based exclusively on on-road safety (Method 1); 2) fail two or more BASICs by violating the Revised Critical and Acute Regulations identified through investigation (Method 2); or 3) fail two or more BASICs through a combination of on-road safety data and investigation results (Method 3).
This month’s letter to Secretary Chao is not the first criticism of the NPRM for its reliance on CSA data, stakeholders have sent a similar letters in the past to other Department of Transportation leadership. Last year, lawmakers attempted to include a provision in multiple bills that would restrict FMCSA from using any funds to finalize the safety fitness determination rulemaking until after the FAST Act reforms were completed. Ultimately, lawmakers failed to pass it into law.
On February 24, the Georgia Ports Authority and the Virginia Port Authority filed a discussion agreement with the Federal Maritime Commission to engage in discussion about marketing and commercial opportunities. The agreement, titled the East Coast Gateway Terminal Agreement, would allow the parties to jointly create agreements with carriers, terminal operators and shippers; to acquire operating systems and cargo handling equipment together; and to attract joint services, alliances and network agreements through the use of joint marketing materials. According to a joint statement, the ports authorities hope the agreement will help them work together to become more efficient and effective in handling the changing industry, including mega-ships and new alliances.
On January 18, the Bureau of Transportation Statistics released the first Congressionally-mandated Port Performance Freight Statistics Program Annual Report, titled Port Performance Freight Statistics Program: Annual Report to Congress 2016. As required by the Fixing America’s Surface Transportation Act, the Annual Report contains statistics on capacity and throughput at the top 25 ports by tonnage, twenty-foot equivalent unit and dry bulk tonnage. BTS includes profiles of top ports in each category and incorporates publically available data, such as channel depth, total length of berths, numbers and types of cranes and availability of on-dock rail to assess capacity and throughput.
The Annual Report was developed in concert with the Port Performance Freight Statistics Working Group, which submitted their own recommendations on port performance metrics to BTS in December. While BTS was under no obligation to use the Working Group’s recommendations, and warned participants in November 2016 that it would be extremely difficult to incorporate them into the first Annual Report, it’s possible that some of the issues raised by the Working Group will be addressed in future Annual Reports.
On January 23, the Department of Commerce announced it made an affirmative final determination in both the antidumping duty and countervailing duty investigations of imports of truck and bus tires from China. DOC originally initiated these investigations almost a year ago, on February 25, 2016.
In July 2015, DOC made an affirmative preliminary determination in the CVD investigations and, after delaying its AD determination in June, made an affirmative preliminary determination in that investigation in September. The final affirmative determinations resulted in DOC establishing a dumping margin of 22.57 percent for almost all producers/exporters in China. This is down from the 30.36 percent that was estimated in the preliminary decision. As exceptions to the 22.57 rate, Prinx Chengshan Tire Co and non-selected respondents are eligible for a separate rate of 9.00 percent. This month, DOC also established final subsidy rates of 52.04 percent for all producers/exporters in China, other than mandatory respondents Double Coin Holdings (38.61 percent) and Guizhou Tyre Co. Ltd — 65.46 percent. This is an increase from the 17.06-23.38 percent range estimated by DOC during preliminary CVD investigations.
Antidumping and countervailing duty investigations are conducted simultaneously by both DOC and the International Trade Commission. While DOC determines whether the dumping or subsidizing exists, as well as the margin of the dumping or subsidizing, ITC determines whether there exists a material industry or threat of material injury to the domestic market. ITC made affirmative preliminary determinations in both investigations last year and is scheduled to makes its final determinations on March 6, 2017.
ITC›s determinations are the final step in the ongoing investigation into truck and bus tires from China. Should the ITC make affirmative final determinations, DOC will issue AD and CVD orders no later than March 13. If the ITC makes negative determinations, the investigations will be terminated.
On January 20, President Trump issued a memorandum ordering a freeze on the regulatory process, including a postponement of regulations that have been finalized and published in the federal register, but are not yet in effect. In response, the Federal Motor Carrier Safety Administration announced the Entry-Level Driver final rulemaking’s effective date is pushed back from February 6, 2017 to March 21, 2017. The final rule requires that applicants seeking a commercial driver’s license demonstrate proficiency in knowledge and behind-the-wheel training on a driving range and on a public road. FMCSA’s final rule left out the minimum hours-behind-the-wheel training requirement that was originally included in the agency’s notice of proposed rulemaking.
President Trump’s regulatory freeze is also likely to impact the pending speed limiter rule. FMCSA, along with the National Highway Traffic Safety Administration, released a NPRM regarding speed limiters on August 26, 2016. The NPRM proposed to equip newly manufactured heavy-duty trucks with a gross vehicle weight rating of more than 26,000 pounds with a speed limiting device, but did not include an exact speed to which the vehicles will be limited. In November of last year, FMCSA and NHTSA announced that they were extending the public comment period for the NPRM after controversy erupted over the lack of a specific speed. The Trump Administration, which already has a record of skepticism towards new regulations, may decline to proceed on the speed limiter rulemaking, given the industry opposition toward FMCSA and NHTSA’s proposed regulation.
The Federal Maritime Commission released an interim status report on its Supply Chain Innovation Teams on December 6, 2016. The Supply Chain Innovation Teams were announced by Commissioner Rebecca Dye in February 2016, and envisioned as mechanisms to “engage leaders from commercial sectors of the U.S. international supply chain in discussions to identify commercial solutions to U.S. supply chain operational challenges.”- The Teams were directed to focus on the largest U.S. ports: Los Angeles, Long Beach, and New York/New Jersey. The Initiative officially launched on May 3, 2016 with three Teams composed of approximately 12 members, each representing various sectors of the supply chain. During their May meeting, the Teams decided to focus on improving supply chain visibility and to develop a plan to implement that improvement.
The interim status summary provided by the FMC reports that the members of the Teams have “produced detailed lists of the high-priority information needs of key supply chain actors — mainly dealing with port/marine terminal operations, such as container availability, chassis availability, and more efficient drayage trucking operations.” According to the report, the Teams determined that access to this information through a national portal is essential to achieving enhanced visibility of supply chain efficiency, as the availability of the information would allow supply chain actors to act in harmony with each other.
Phase Two of the Supply Chain Innovation Teams initiative is expected to begin early this year with the organization of three export Teams. The FMC will continue the efforts of the original Teams by pursuing options for the development of a national portal for key supply chain information, as well as potentially develop a maritime international supply chain internship program at the FMC.
The Federal Motor Carrier Safety Administration released its final entry-level driver training standards this month. The rule requires that all applicants seeking a commercial driver’s license demonstrate proficiency in knowledge training and behind-the-wheel training on a driving range and on a public road, with training obtained from a FMCSA-approved instructional program. Notably, the rule leaves out the 30 hour minimum of behind-the-wheel training requirement originally included in the March 7, 2016 notice of proposed rulemaking. The final rule is effective February 6, 2017, with a compliance date of February 7, 2020.
After publication, the American Trucking Association expressed its approval of the final rule. However, on December 21, the Advocates for Highway and Auto Safety, the Owner-Operator Independent Drivers Association, the Truck Safety Coalition and Citizens for Reliable and Safe Highways groups petitioned the FMCSA to reconsider the rule, requesting that 30 hours of behind-the-wheel training for new drivers be included. Petitioners say that the Rule “is not in the public interest because it does not advance safety beyond current practice.” Petitioners included a request for a stay of the effective date of the Rule until the FMCSA Administrator can render a decision on this petition.
On December 7, 2016 the Coalition for Fair Port Practices submitted a petition to the Federal Maritime Commission requesting a rulemaking preventing maritime terminals and container lines from charging demurrage and detention fees when port conditions prevent timely pick up of cargo or return of equipment. Specifically, the petition requests that FMC “clarify what constitutes ‘just and reasonable rules and practices’ with respect to the assessment of demurrage, detention, and per diem charges by ocean common carries and marine terminal operators when ports are congested or otherwise inaccessible.” FMC provided notice in the federal register of this petition on December 28, 2016 and gave interested parties until February 28, 2017 to submit comments.