IANA tracks important legislative and regulatory issues that affect the intermodal freight transportation industry. The status of these issues will be added as needed.
Senate Passes Bill to Repurpose Unspent COVID-19 Relief for Infrastructure Projects
The State, Local, Tribal, and Territorial Fiscal Recover, Infrastructure, and Disaster Relief Flexibility Act passed the Senate by unanimous consent on October 19. The legislation, introduced by Sen. Cornyn (R-TX), provides additional eligibility for state, tribal, and local governments to spend remaining COVID-19 relief funds – estimated at nearly $123 billion – on certain expanded categories of infrastructure projects.
Under the proposal, unspent relief funds could be used for projects eligible under the freight formula program as well as the INFRA and TIGER/BUILD/RAISE grant programs. Previously, funding for eligible projects under the American Rescue Plan Act was limited to broadband, sewer, and water infrastructure projects as well as state and local COVID response expenses. The bill would allow states and localities to spend up to $10 million or 30 percent of their total ARPA allocation, whichever is greater, on these newly eligible projects. Furthermore, the bill creates a process for local officials to decline funds if their jurisdiction did not suffer budget shortfalls during the pandemic. The legislation will now advance to the House for consideration.
THUD Appropriations Bill Introduced in Senate
On October 18, the Senate Appropriations Committee released the draft text of their fiscal year 2022 Transportation, Housing and Urban Development, and Related Agencies appropriations bill. Sen. Schatz (D-HI) formally introduced the bill on October 21, and it was subsequently referred to the Senate Committee on Appropriations. The federal government is currently operating under a short-term continuing resolution, set to expire on December 3, 2021. Congress must pass a full-year appropriations package or additional continuing resolution by this deadline to avert a government shutdown.
The legislation appropriates $90.5 billion in total budgetary resources to USDOT, of which $29.1 billion is net discretionary authority, a $3.8 billion increase from last year. Additionally, $1.09 billion is included for TIGER/BUILD/RAISE grants, $90 million more than in FY21, as well as $522.86 million for CRISI grants, $375 million above FY21. Additionally, the bill includes: $240 million for Port Infrastructure Development Program grants, up from $230 million in FY21; $1.345 billion for the bridge replacement and rehabilitation formula program; and $125 million for a competitive highway bridge program.
Furthermore, the appropriations legislation contains $300 million for a new grant program titled “Building Resilient Infrastructure Through Innovative Solutions,” eligible resiliency improvements include highway and bridge projects, port infrastructure projects, and freight rail projects. The legislation also provides over $953 million in earmarks, of which $500 million would go toward designated highway projects and $121 million toward earmarked CRISI grant projects.
The appropriations bill was drafted to align with the funding amounts in the current FY21 FAST Act extension. If the Infrastructure Investment and Jobs Act is signed into law before the December appropriations deadline, the Senate THUD bill would require amendments to provide funding consistent with the bipartisan infrastructure legislation.
President Biden Signs Law Extending Surface Transportation Funding
Congress passed the Further Surface Transportation Extension Act of 2021 on October 29, and President Biden signed the legislation into law two days later. The House approved the bill in a bipartisan 358-59 vote and it passed the Senate by unanimous consent. The legislation extends Highway Trust Fund authorizations at FY21 levels through December 3, 2021. Congress now has approximately one month to enact a long-term surface transportation reauthorization, such as the Infrastructure Investment and Jobs Act, or another stopgap measure. A lapse in Highway Trust Fund authorization would halt non-essential U.S. Department of Transportation operations, including staff furloughs and (temporarily) delays to the agency’s infrastructure grant programs as well as formula funding distributions to states.
The previous Highway Trust Fund extension signed into law on October 2 was set to expire on October 31. While congressional leadership hoped to hold a final House vote on the Infrastructure Investment and Jobs Act, the vote was ultimately postponed again after progressive Democrats signaled they would not support the measure until the full legislative text is published or a vote is held on the Build Back Better reconciliation bill.
This most recent extension’s December 3 deadline coincides with the expiration of the appropriations continuing resolution and the estimated deadline by which Congress must address the debt ceiling.
White House Council on Environmental Quality Proposes Reversal of Trump-Era Permitting Rules
On October 6, the White House Council on Environmental Quality issued a notice of proposed rulemaking to reverse several Trump Administration regulations on the implementation of the National Environmental Policy Act. In 2020, the Trump White House issued a final rule aimed at expediting the infrastructure permitting process that limited the timeline and scope of NEPA reviews. CEQ’s proposal would restore the NEPA rules to the regulations that had previously been in effect since 1978. The Biden Administration asserts these changes will support timely project delivery as the permitting decisions under the previous, more stringent NEPA review requirements are less likely to be delayed by legal challenges.
The proposed rule would make several significant changes to the NEPA regulations. First, the changes would allow federal agencies to tailor NEPA procedures beyond CEQ’s regulations to meet the specific needs of their agencies, the public, and stakeholders. The revisions would also give federal agencies greater flexibility to evaluate the “purpose and need” of a proposed action, focusing on the public interest rather than the project applicant’s goals. In contrast, the 2020 NEPA regulations limited agencies’ ability to work with communities to develop and consider alternative designs or approaches that could minimize environmental or public health costs. Moreover, CEQ’s proposed rule restores the requirement that federal agencies evaluate the “direct and indirect effects” and “cumulative impacts” of a proposed decision, which include consideration of long-term and geographically remote effects and impacts. The 2020 rules eliminated references to the direct, indirect, and cumulative impacts.
The changes proposed by CEQ are the first phase of a two-pronged approach by the White House to reevaluate the 2020 NEPA regulations. The Biden Administration also announced that CEQ is currently working on the second set of revisions to NEPA regulations intended to increase public involvement in the environmental review process and address climate change and environmental justice issues.
Comments on CEQ’s proposed rulemaking are due November 22, 2021.
FMC VOCC Audit Team, NSAC Seek to Address Detention and Demurrage
On October 15, the Federal Maritime Commission’s Vessel-Operating Common Carrier Audit team sent a letter to 25 container lines and the World Shipping Council urging ocean carriers to adopt three common best practices related to detention and demurrage.
The first of the team’s recommendations urges ocean carriers to display detention and demurrage charges clearly and prominently on their webpage or customer portal. FMC also suggests that carriers develop and document clear internal processes on all matters related to detention and demurrage. Finally, ocean carriers should clearly delineate dispute resolution procedures, contacts, and required documentation on their website and invoices. According to the audit team, these best practices are intended to promote clarity and certainty about how and when fees are assessed and the procedures for challenging disputed charges.
FMC’s National Shippers Advisory Committee also addressed detention and demurrage charges at its inaugural meeting, held on October 27. During the meeting, FMC Chairman Maffei stated he hopes the NSAC will address strategies to increase cargo fluidity through technology and data sharing; whether FMC’s current actions related to detention and demurrage charges have been helpful; service contracts; how FMC can address gaps in knowledge for shippers; and how actions of other federal agencies might be harmful or beneficial.
Committee members voiced support for increased visibility and data sharing across links in the supply chain to improve intermodal alignment between ports, terminals, rail, and carriers. They stressed that interconnectivity between systems creates predictability and allows shippers to proactively plan and balance demand more efficiently. Additionally, NSAC members identified chassis shortages, gate fluidity, and truck driver shortages as major issues causing disruptions in the supply chain.
Finally, members agreed that the NSAC must seek long-term solutions, acknowledging that the current supply chain problems predate the COVID-19 pandemic. The Committee aims to address the root causes of these problems and implement sustained strategies that allow the supply chain to adjust over time.