Earlier today, the House of Representatives passed a $733 billion Pentagon authorization bill (H.R. 2500) that includes a provision banning the use of federal mass transit dollars for the purchase of rail cars built by companies owned or subsidized by the government of the People’s Republic of China. The provision is directed at CRRC, the world’s largest rail car manufacturer, which has recently begun selling transit rail cars in the United States, winning contracts for Chicago, Boston, and Los Angeles, among others.

The House bill will now go to conference with the Senate, which passed its own version of the bill (S. 1790) a few weeks ago with an almost-identical provision.

The provision is in section 896 of the House bill (beginning on page 595 here) and in section 6015 of the Senate bill beginning on page 1169 here). The principal difference between the two provisions is that the House language only applies to rail cars, not buses, while the Senate language applies to both.

The White House threatened a veto of the bill because, they say, $733 billion is not enough. (GOP opposition to the basic spending levels in the bill is also why the vote on the normally bipartisan defense bill was a party-line 220 to 197 (not a single Republican voted for the bill, while 8 Democrats and the lone Independent in the House joined the GOP in voting “nay”).

But the White House Statement of Administration Policy on H.R. 2500 did endorse the rolling stock provision specifically: “Federal Transit Dollars (Section 896). The Administration supports the efforts of the Committee, as set forth in section 896, to prevent financial assistance, specifically Federal transit dollars, from being used to award a contract or subcontract for the procurement of passenger railcars to priority enterprises owned, controlled, or subsidized by foreign states.”

The defense bill is one of the few remaining non-appropriations bills that still gets enacted each and every year, so even though there is still disagreement over the spending totals (and some amendments adopted by the House that President Trump is not going to like), the odds are still very good for its eventual enactment. Will the rolling stock provision stay in?

House and Senate precedents are very strong in this regard – if the House and Senate each pass an identical provision, then House-Senate conferees are not supposed to have the authority to remove the provision from the final product. And if the House and Senate each pass very very similar provisions, the norm is for some version of it to be included in the final bill. But this norm was violated just last year, on this very issue – the Senate passed a rolling stock ban as an amendment to the annual transportation appropriations bill (section 196, starting on page 499 here), and the House Appropriations Committee approved a differently worded provision on its DOT appropriations bill (section 165, starting on page 68 here). But the appropriations were held over between Congresses and the final omnibus 2019 act (text here) dropped the provision entirely, which goes against the spirit (if not the letter) of the rules and precedents.

The Armed Services Committee, which reported H.R. 2500, has no jurisdiction over mass transit, so their reporting of the rolling stock provision invaded the jurisdiction of the Transportation and Infrastructure Committee. T&I chairman Peter DeFazio (D-OR) had the right to ask the Speaker to refer H.R. 2500 to T&I so that they could amend the provision. But House leaders don’t like “sequential referrals” because they kill time, so behind the scenes, the leadership staff encourages/forces committee chairmen to work out their differences informally, as the lead committee develops the bill.

In this case, since DeFazio supports the rolling stock ban, he sent Armed Services chairman Adam Smith (D-WA) a letter (printed starting on page 544 of the committee report) waiving jurisdiction so long as it did not set a precedent and on the condition that T&I be represented on any House-Senate conference committee to consider that provision, which Smith agreed to. (Judging on the letters from pages 531 to 547 of the report, the defense bill managed to invade the jurisdiction of just about every House committee except for Ways and Means.)

House members filed a whopping 683 amendments to H.R. 2500 with the Rules Committee, but not a single one of those amendments dealt with the rolling stock provision (from what we can tell), and we are certain that none of the 440 amendments made in order by Rules affected the rolling stock provision.

For more information, see the Eno Center’s September 2018 report “The Implications of the Federal Ban on Chinese Railcars” as well as the following ETW articles:

• Key Senators Introduce Bill Banning Transit Agencies From Procuring Rolling Stock from China-Based Manufacturers (March 14, 2019).
• House T&I Members Sound Skeptical of State-Owned Chinese Transportation Firms (May 17, 2019).
• Chinese Rolling Stock Ban Included in Bipartisan Pentagon Authorization Bill (June 20, 2019).