August 3, 2018

The U.S. Senate this week passed a package of four appropriations bills for fiscal year 2019, including the annual Transportation-HUD bill. The package, which passed by a roll call vote of 92 to 6, provides $154 billion in discretionary funding, $130 billion in mandatory funding and $60 billion in obligation limitations on transportation contract authority.

(The remainder of this article first addresses the next steps in the FY19 appropriations process, and then addresses the specifics of what happened to the Transportation-HUD bill in the Senate, so if you want the last part first, scroll down.)

Next steps. The House-passed version of the bill (H.R. 6147) only contained two of the annual twelve general appropriations bills – Interior/Environment, and Financial Services/General Government. The Senate amendment to H.R. 6147 strikes all the House-passed text and replaces it with the Senate version of four bills – the two in the House package, plus Transportation-HUD and Agriculture.

The House of Representatives has not yet considered either the Transportation-HUD bill or the Agriculture bill on the floor. When the House returns from the August recess on September 4, one of the first items of business will be how to handle the Senate amendment to H.R. 6147. House Republican leaders will have two main options:

1. Consider the Agriculture bill and the Transportation-HUD bill on the floor, muster 218 votes to pass each one (which is by no means guaranteed), and then concur in the Senate amendment to H.R. 6147 with an amendment that includes the House-passed text of all four bills, insist on the House amendment, and request a House-Senate conference committee; or
2. Simply move to disagree to the Senate amendment to H.R. 6147 and request a House-Senate conference without the House ever considering the Agriculture or Transportation-HUD bills on their own on the floor for amendment.

No decision has yet been made by the leadership, at least not publicly. But the staffs of those four Appropriations subcommittees are expected to spend the next four weeks “pre-conferencing” their bills and settling all House-Senate differences that don’t have to be “kicked upstairs” to face-to-face meetings between chairmen, so as to make an eventual, formal House-Senate conference go more quickly.

If the House Speaker and Majority Leader do decide to move the THUD and Ag bills through the floor, there is the chance that amendments would be adopted that would undo some of the pre-conference agreements already struck at the staff level. And the time it would take to move those bills on the floor would make it difficult to get a conference agreement on the four-bill minibus package signed by the President before the start of the fiscal year on October 1. On the other hand, going straight to conference would deny rank-and-file House members the opportunity to be heard on amendments to the Ag and THUD bills. (Whether this is a bug or a feature of the process depends on where you sit.)

(Ed. Note: I am not a betting man – clearly not, because if I were, the mystifying inability of the Tennessee Volunteers to cover a point spread when it really matters would have bankrupted me several times over – but if I were, I would bet that the House just goes straight to conference with the Senate in early September and the Ag and THUD bills never go to the floor on their own.)

But before the final conference (or even major pre-conference) decisions can be made, House Appropriations Chairman Rodney Frelinghuysen (R-NJ) and Senate Appropriations Chairman Richard Shelby (R-AL) have to sit down and decide how much defense and non-defense funding to allocate to each final bill. Because once a bill or package of bills passes Congress and goes to the President’s desk, those spending totals are more or less set in stone.

The appropriators had hoped to have the first three-bill minibus package on President Trump’s desk by now, but a last-minute hiccup on getting the final spending totals forced a delay on that to September as well. Where non-defense funding is concerned, the big differences are between the Labor-HHS-Education bill (in the planned third minibus package) and the Homeland Security bill (one of the three “orphan” bills that isn’t going anywhere until after the November elections).

Transportation-HUD bill. As has become the standard in the Senate, bill managers prevented any amendments of real significance from coming to the floor for a vote until after the Senate had voted, by a vote of 94 to 4 on the afternoon of July 31, to invoke cloture and limit debate on the Shelby substitute amendment (#3399) to the House-passed appropriations bill (the Shelby substitute had the text of the four Senate appropriations bills and was offered as a substitute to the two House-passed bills). Two meaningless transportation-related amendments passed the Senate during the pre-cloture period (Durbin#3422 and Udall #3414 – see below).

Once cloture had been invoked by a wide margin on the substitute, Senate rules made it clear that no non-germane amendments would be allowed, and the wide margin of the cloture vote also made it clear that the underlying bill was going to pass with at least 60 votes and probably a lot more. That no doubt influenced the behind-the-scenes debate over how to finish out the amendment process.

An early draft of an amendment agreement called for the Cornyn (R-TX) amendment (#3670), requiring a one-year ban on the use of federal transit formula funds to purchase rail cars and buses from manufacturers owned or subsidized by the Chinese government, to be voted on individually as part of a package of a half-dozen amendments that were too partisan to go in a bipartisan “manager’s package” of amendments. But by the time the amendment agreement was ready to go before the Senate, it had become clear that the Cornyn amendment was going to get well over 60 votes, so it was rolled into the much larger package of 40-odd amendments in the manager’s package and agreed to unanimously.

In the end, there were fourteen amendments to the transportation portion of the Transportation-HUD bill adopted by the Senate. The big news was the Cornyn ban on Chinese railcar and bus procurement (explained in full in this article), but there was also a $52 million cut in the Federal Highway Administration budget (two Delaware TIGER grants from FY 2012-2013 are scheduled to expire before Delaware can spend the money, but a Coons (D-DE) amendment gives them an extension, which requires an outlay pay-for, which wound up being a $52 million reduction in the FHWA obligation limitation that will probably be fixed in conference), a few amendments on trucking issues to sync up with provisions in the House bill, and a Moran (R-KS) amendment to prevent Amtrak from shutting down the Southwest Chief. And Transportation-HUD Subcommittee ranking minority member Jack Reed (D-RI) succeeded in getting language included prohibiting the Federal Transit Administration from using any FY 2019 money for the “implementation and furtherance of new policies” outlined in its June 29, 2018 “Dear Colleague” letter (though the Dear Colleague letter itself states that is not new policy, and since the program to which the letter pertains is discretionary, it is unclear if the Reed amendment will actually force the Secretary to use her discretion and approve projects).

A full log of every transportation-related amendment filed to the minibus, including those not considered by the Senate, can be found here.

AMENDMENTS TO THE TRANSPORTATION PORTIONS OF H.R. 6147 AGREED TO IN THE SENATE

• Blumenthal #3677 (to Shelby #3399) – sets aside $500 thousand of the combined Amtrak Northeast Corridor and Amtrak National Network appropriations to pay for fare discounts of at least 15 percent to veterans (as defined in 38 U.S.C. §101) – agreed to by voice vote on July 31, 2018.
• Coons #3666 as modified (to Shelby #3399) – Amends the NII/TIGER/BUILD paragraph to provide that the deadline for expenditure (outlay) of FY 2012 TIGER grants for passenger rail projects shall be September 30, 2019 and the deadline for expenditure (outlay) of FY 2013 TIGER grants for port infrastructure projects shall be September 30, 2020, with an offsetting reduction of $52 million in the FY 2019 federal-aid highways obligation limitation– agreed to by voice vote on July 31, 2018.
• Cornyn #3670 as modified– prevents any FY 2019 FTA formula funding or bus and bus facility grants from being used to purchase rolling stock from a manufacturer that is owned or subsidized by the government of the People’s Republic of China (related to section 165 of the House companion bill)– agreed to by voice vote on July 31, 2018.
• Durbin #3422 (to Shelby #3399) – requires the Amtrak Inspector General, within 240 days of enactment of this Act, to update its March 28, 2008 report entitled “Results of Amtrak’s Poor On-Time Performance” – agreed to on July 24, 2018 by a roll call vote of 99-0.
• Fischer #3492 (to Shelby #3399) – requires FMCSA, to the maximum extent possible, to ensure the safe and timely completion of the sleeper berth pilot program– agreed to by voice vote on July 31, 2018.
• Fischer #3669 (to Shelby #3399) – Prohibits any funds in the bill from being used to enforce FMCSA’s electronic logging device rule during FY 2019 on vehicles hauling livestock or insects. (Appears identical to sec. 125 of the House companion bill.)– agreed to by voice vote on July 31, 2018.
• Heller #3428 (to Shelby #3399) – adds a section directing DOT to report to Congress on efforts by DOT “to engage with local communities, metropolitan planning organizations, and regional transportation commissions on advancing data and intelligent transportation systems technologies and other smart cities solutions”– agreed to by voice vote on July 31, 2018.
• Inhofe #3480 (to Shelby #3399) – requires DOT to consult with the Corps of Engineers to “identify any existing authorities and any additional authorities that may be needed to leverage funds from Department of Transportation programs for purposes of inland waterway project costs”– agreed to by voice vote on July 31, 2018.
• Johnson #3436 – requires the FAA to report to Congress on the implementation of NextGen at commercial service airports in the U.S., including the relative completeness of NextGen installation at each individual airport– agreed to by voice vote on July 31, 2018.
• McConnell #3645 (to Shelby #3399) – provides a temporary (FY 2019 only) truck weight waiver for certain roads in Kentucky (related to section 126 of the House companion bill).– agreed to by voice vote on July 31, 2018.
• Moran #3665 (to Shelby #3399) – sets aside $50 million of the Amtrak National Network appropriation for “capital expenses related to safety improvements, maintenance, and the non-Federal match for discretionary Federal grant programs to enable continued passenger rail operations on long-distance routes (as defined in section 24102 of title 49, United States Code) on which Amtrak is the sole tenant of the host railroad and positive train control systems are not required by law” and also prohibits Amtrak in FY 2019 from discontinuing any service with certain conditions that make it sound like they are referring to the Southwest Chief– agreed to by voice vote on July 31, 2018.
• Reed #3608 (to Shelby #3399) – prevents any funding in the bill from being used for the “implementation and furtherance of new policies” outlined in the Federal Transit Administration’s June 29, 2018 “Dear Colleague” letter on the Capital Investment Grants program– agreed to by voice vote on July 31, 2018.
• Udall #3414 (to Shelby #3399) – expresses the (non-binding) sense of the Congress that long-distance passenger rail networks should be sustained to ensure connectivity throughout the National Network – agreed to by a roll call vote of 95-4 on July 25, 2018.
• Warner #3679 (to Shelby #3399) – sets aside up to $6 million of FAA Operations funding for matching funds to commercial entities looking to validate technology for safe UAS integration into the NAS and requires the FAA, within 60 days of enactment, to identify essential integration technologies that could be demonstrated or validated at test sites– agreed to by voice vote on July 31, 2018.

Reminder: Every budget document, bill, amendment, hearing, and debate related to the federal transportation and infrastructure budget for fiscal year 2019 is linked on our FY19 reference page at enotrans.org/fy19 – bookmark it!