Eno Transportation Weekly

June 14, 2018

Now that the House and Senate Appropriations Committees have approved their versions of the fiscal 2019 Transportation-Housing appropriations bill (the House bill is here and the Senate bill is here), we can start comparing the House and Senate bills and trying to figure out what a final compromise legislative product might look like.

Appropriations bills being primarily about dollars, most of the House-Senate conference discussions revolve around dollar amounts (see the line-by-line totals for the House and Senate bills here). But since the power to appropriate money also includes the power not to appropriate money – or to appropriate money for some purposes, but not for others – the House and Senate also have to negotiate over a large array of restrictions on those funding levels. And, since rules first adopted in the 1830s prohibiting outright legislative language on appropriations bills aren’t enforced much anymore, the appropriators sometimes include a few of those and have to negotiate those as well.

Changes in policy in an appropriations bill can take two forms. They can be lines of text in the unnumbered paragraph of the bill that provides the appropriation itself, or they can be numbered general provisions.

In terms of the numbered general provisions of the House and Senate bills, the upcoming FY 2019 negotiations process will not be as complicated as in recent years, partly because new Senate Appropriations chairman Richard Shelby (R-AL) has ordered his subcommittee chairman to avoid legislative or other controversial policy provisions as much as possible, leaving the House as the sole originator of most of the provisions in disagreement.

The table at the end of this article lists every numbered general provision in the enacted FY 2018 DOT appropriations act and the FY 2019 House and Senate bills. Most of those are now “boilerplate” provisions that have been included in the law for many years, or are one-time provisions that were included in the 2018 act but are no longer needed. The others, where the House and Senate bills are in disagreement, are discussed below.

• Kentucky truck weights. The House bill (sec. 126) permanently amends the hodgepodge of truck weight exemptions in 23 U.S.C. §127 to add the William H. Natcher Parkway in Kentucky. Natcher himself was a longtime Congressman from Kentucky and former chairman of the House Appropriations Committee, and Kentucky is the home state of Senate Majority Leader Mitch McConnell (R-KY). This one probably gets done, but the House will have to give up something minor.
• Electric/gas truck cab weight limit waiver. The House bill (sec. 127) permanently amends 23 U.S.C. §127 again to give a truck weight limit waiver to electrically-powered trucks for up to 2,000 pounds of cab weight to account for the extra weight of the batteries, and to conform the subsection (which currently gives natural gas-powered trucks a weight limit) accordingly. The new waiver is being sought by Tesla, which is looking to expand into the electric truck market while not having to reduce the cargo capacity of said trucks to account for the extra weight of the batteries.
• Mexican trucks. Old hands will remember that in February 2001, the NAFTA arbitration panel ruled that Mexican-domiciled motor carrier companies were entitled to access to the U.S. under NAFTA and in contradiction of pre-NAFTA U.S. laws and procedures. Later that year, Congress enacted conditions for such Mexican truck access in section 350 of the FY 2002 DOT Appropriations Act and for every fiscal year since then, Congress has enacted a provision requiring continued obedience to that FY02 proviso (as amended by section 6901 of this 2007 law). The Senate bill for 2019, in section 130, continues this provision for a 17th consecutive year, but the House bill does not. It is not certain what real-world impact that dropping the provision after all these years will have (particularly since the President is trying to make wholesale changes to NAFTA), which may be why there hasn’t been any particular outrage from stakeholders since the House bill unexpectedly dropped the provision.
• Temporary ELD waiver for livestock haulers. The House bill (sec. 131) continues a provision from last year’s law that suspends implementation or enforcement of FMCSA’s May 2015 electronic logging device rule against trucks transporting livestock. The Senate bill does not extend the provision. The fact that the Senate agreed to this provision last year means that it is probably not a deal-breaker this year, though like everything else, some trades need to be involved.
• Lease/interchange rule. The House bill (in section 132) suspends implementation or enforcement of FMCSA’s May 2015 lease/interchange rule until at least September 30, 2019. (The current compliance date, which has been extended more than once, is now January 1, 2019.) This is the first time that this proviso has been in an appropriations bill, but that is because the underlying rule is new.
• F4A. The House bill (sec. 133) once again contains a provision reversing the Ninth Circuit Court of Appeals decision that has allowed California to enforce laws regulating meal and rest breaks for intrastate (not interstate) trucking in those states. (The House bill’s language goes farther than necessary to simply overturn the California meal/rest break law and orders complete federal preemption of state law relating to drivers whose hours of service are regulated by FMCSA.) The provision, called “F4A” because the federal preemption provision that the Ninth Circuit overturned was first enacted by the Federal Aviation Administration Authorization Act of 1994, was included in the last several House-passed Transportation-HUD appropriations bills but has never made it into final law. (Reportedly, it has been among the last House-Senate disputes in the last few omnibus appropriations negotiations, and each time, the Senate won.)
• Oregon sugar beet truck length waiver. The House bill (in section 134) amends 49 U.S.C. §31112 to add a truck length waiver for sugar beet trucks on certain roads in Oregon, which the provision’s sponsors say is necessary to allow sugar beet haulers to carry beets from their source in Idaho (where such trucks are legal) to the processing facilities in Oregon.
• National Roadside Survey. The House bill (in section 142) continues a provision in the FY 2018 law suspending any NHTSA funding for participation in the National Roadside Survey, but the Senate bill does not. The original provision was enacted as a floor amendment during House debate in reaction to some perceived excesses in the original survey. But GAO issued a report three months ago to the Appropriations Committees concluding that NHTSA has changed the survey’s procedures to account for many of the original objections.
• GPS trackers in passenger cars. The House bill (in section 143) prevents any FY 2019 funding from being used to mandate GPS tracking in passenger cars without appropriate privacy safeguards. This repeats language included in the FY18 law and previously adopted by the House in a floor amendment, and was probably withheld by the Senate just to have something to trade with the House in conference.
• California high-speed rail. Once again, the House bill includes two general provisions (sections 151 and 152) blocking federal support for the California high-speed rail project. Section 151 prohibits the Surface Transportation Board from approving any more segments of the project until they approve the whole project, and section 152 prohibits any funding provided by the bill (highway and transit formula funding, TIGER/BUILD funding, INFRA funding, FRA grant funding, etc.) from going towards the project. These provisions have been included in the House legislation for several years at the request of the House Majority Leader, Kevin McCarthy (R-CA) but have never survived negotiations with the Senate. It is difficult to envision how the situation this year (where the Senate is, on a bipartisan basis, opposed to new GPs) is move conducive to eventual enactment of these provisions, but in the Trump Era, anything is possible.
• Houston, TX transit. The House bill (in section 163) continues a provision in the 2018 bill put in by Texas members of the Appropriations Committees and preventing funding for Harris County, Texas rapid transit unless certain political conditions are met. The Senate bill dropped the provision this year, but usually recedes in conference.
• Statutory new start federal share limit. The House bill (in section 164) prohibits USDOT from using FY 2019 funding for entering into a full funding grant agreement (FFGA) for any mass transit new start with a federal Capital Investment Grant cost share of over 50 percent. This language was enacted in 2018 at a 51 percent cost share ceiling, and similar provisions have been carried in past years (sometimes as bill language, sometimes as report language). Some version of a CIG cost share ceiling probably gets enacted into law this year as well.
• Chinese rail car purchases. Perhaps the biggest unexpected surprise of this cycle was the House bill’s section 165, which prevents any Federal Transit Administration funding in 2019 from being used to purchase any infrastructure equipment from companies owned or subsidized by the government of the People’s Republic of China. This provision was clearly meant to include mass transit rail cars made by the government-owned CRRC company and may also apply to electric buses made by the BYD company, which is apparently not government-owned but which may receive some Chinese government subsidies that may trigger the proviso as well. The Senate bill does not contain any similar language (though see below for other China-related provisions). This provision may be negotiated alongside other anti-CRRC language in the Senate’s overseas investment bill (see language starting in the middle of page 156, here).
• USDOT political appointee limit. Starting in the mid-1980s, the USDOT Appropriations Act has contained a limitation on the total number of political appointees at the Department. After the Appropriations subcommittee jurisdiction was reshuffled to put DOT in the same bill as other agencies (currently HUD). DOT still carries the limitation on political appointees eve though other departments funded by the bill do not. And most other annual appropriations bills do not put such ceilings on political appointees, either. When Transportation Secretary Chao first found out about the current limit (110 political appointees) during the Trump transition, after serving as Secretary of Labor (where there was no such cap), she asked Congress to remove the ceiling. The FY 2018 House-passed bill removed the ceiling, but the Senate did not, and the Senate won in conference. This year, the House has no limit but the Senate bill (in section 183) continues the 110-appointee limit. Whether or not the provision is lifted looks to be decided by how popular USDOT is when the appropriators decide this issue later this year.
• DOT and HUD vehicle purchases. The Senate bill (in section 416) prohibits DOT and HUD from using any FY 2019 funding for buying automobiles unless those cars are compliance with the Obama Administration’s May 2011 requirement that all new vehicles starting in 2015 be all new light duty vehicles leased or purchased by agencies must be alternative fueled vehicles, such as hybrid or electric, compressed natural gas, or biofuel. The House bill has no such provision.
• Contractor incentive bonuses. The Senate bill (in section 419) prevents DOT and HUD from using any FY 2019 funding for “award or incentive fees for contractors whose performance has been judged to be below satisfactory, behind schedule, over budget, or has failed to meet the basic requirements of a contract” unless the department has decided to give them a mulligan. The House bill has no such provision.
• Huawei/ZTE. The Senate bill (in section 420) contains a provision not echoed in the House bill restricting purchases from Chinese telco companies Huawei and ZTE. This is not echoed in the House bill, but is likely to be settled by the Trump Administration in its perambulations on this issue before the final 2019 appropriations language is finalized.