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By Katie Cross, Senior Associate,
Blakey & Agnew
Democratic leaders of the House and the Senate met with President Trump on April 30 to discuss an infrastructure package. According to reports from that meeting, the President and Democratic leaders agreed to work towards a $2 trillion infrastructure package, higher than any previously proposed level, and deemed the meeting to be a "good start." However, the two sides did not discuss how to pay for such a bill, instead pushing that conversation to a later date.
While Congress works on an infrastructure bill, across town the U.S. Department of Transportation (USDOT) and the Administration have been implementing congressional and presidential mandates and working on various regulatory reform initiatives. Following the direction of the Fixing America's Surface Transportation (FAST) Act, USDOT published a notice of funding opportunity (NOFO) for the Nationally Significant Freight and Highway Project program, referred to as INFRA, in December 2018. Applications were due March 6, 2019. The fiscal year 2019 (FY19) appropriations omnibus required the NOFO for the BUILD discretionary grant program be published no later than 60 days after the passage of the omnibus and so, USDOT published the NOFO on April 16, 2019 with applications due July 15, 2019.
Beyond solicitating grant applications, USDOT has also been working on new rulemakings and revamping old ones. In August 2018, the Federal Motor Carrier Safety Administration (FMCSA) published an advanced notice of proposed rulemaking (ANPRM) seeking comments on ways to improve existing Hours of Service (HOS) regulations. Specifically, FMCSA sought comments on four areas of HOS regulations: 1) short-haul commercial motor vehicle (CMV) operator hour exemptions; 2) time extensions when operating a CMV in adverse driving conditions; 3) the elimination of the 30-minute rest break requirement; and 4) splitting time spent in a sleeper berth. Additionally, the ANPRM sought public comment on two industry petitions related to HOS. In April 2019, FMCSA announced they sent the HOS notice of proposed rulemaking (NPRM) to the Office of Management and Budget (OMB) for approval. USDOT projects the NPRM will be published in the Federal Register on June 7, 2019 but that date is subject to change.
Outside of USDOT, the Federal Maritime Commission (FMC) has been investigating
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detention, demurrage and per diem practices for over a year. In 2016, the Coalition for Fair Port Practices petitioned the FMC to clarify the meaning of "just and reasonable rules and practices" in relation to demurrage and detention charges. FMC held hearings in January 2018 following public interest (both for and against) in the petition. Citing a lack of field evidence presented during the hearings, FMC launched an investigation into the practices to "more fully develop a tested factual record." An interim report was published in September 2018 and a final report was published in December 2018. The final report recommended FMC establish a Shipper Advisory Board to provide the Commission with information on emerging maritime issues. In addition, it called for Innovation Teams to be convened, with a mission to refine demurrage and detention approaches by: 1) creating transparent and standard definitions for the practices; 2) designing simple demurrage and detention billing practices and dispute resolution processes; 3) drafting guidance regarding relevant evidence in detention and demurrage disputes; and 4) establishing consistent notice of container availability. In March 2019, FMC announced the last phase of the investigation was beginning and that the Innovation Teams had been stood up, with meetings to be held no later than mid-April 2019. Any recommendations stemming from these meetings as well as additional findings from the final stage of the investigation are due by September 3, 2019.
Other topics currently being addressed at USDOT include an ANPRM and a NPRM regarding Unmanned Aircraft Systems. Additionally, conversation continues around how to regulate automated vehicles, including CMVs. Other grant programs, such as the Port Infrastructure Development Program, were funded through the FY19 omnibus, meaning a NOFO seeking applications will likely be coming soon.
Blakey & Agnew, LLC is a public affairs and
communications consulting firm based in
Washington, DC.
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