Legislative/Regulatory

Washington Waves: January 29, 2018

Washington, D.C.—The Trump administration appeared to take in stride the U.S. Supreme Court’s unanimous opinion that legal challenges to the controversial Waters of the United States (WOTUS) rule belonged in district, not circuit, courts.

That ruling was viewed as a loss for the administration.

“The Trump administration saw this decision coming and put a plan in place to level the playing field and ensure certainty for states and regulated community,” said Liz Bowman, a spokesperson for the U.S. Environmental Protection Agency, which has led an effort against the Obama-era WOTUS rule with an official proposal possible by April.

“The Trump administration’s stay of the 2015 WOTUS rule will very likely be complete before any change in court jurisdiction can be finalized or the Obama administration’s overreaching definition of WOTUS can be implemented.”

Still, questions remain on what exactly comes next and how soon, now that the nation’s highest court has ruled against the 6th U.S. Court of Appeals, which had put a hold on WOTUS.

“Whether that stay continues is unclear,” the National Waterways Conference said in its comment on the Supreme Court ruling.

“In addition, the Trump administration has sought to repeal WOTUS and replace it with another rule, and challenges to that rule would be heard in district court. For now, it is likely there will be a flurry of activity in both the 6th Circuit and various district courts around the country where litigation is on hold.”

A stay put in place by a district court in North Dakota covers 13 states: North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico.

Infrastructure Package

With absolutely no need to generate even more interest in his long-promised infrastructure package, President Donald Trump tried anyway.

“We’re also working to rebuild our crumbling infrastructure by stimulating a $1 trillion investment,” Trump told a group of mayors gathered at the White House.

“And that will actually, probably, end up being about $1.7 trillion.”

That sounded like it was meant as an applause line, and the mayors quickly obliged.

On the timing of the package’s release, Trump told the city leaders to expect it “right after the State of the Union,” which he is scheduled to deliver to Congress, and the nation, on January 30.

Trump also hit another favorite infrastructure theme that involves reducing “the approval and permitting process so that it takes no longer than two years, instead of, on average, 10 to 12 to 17 years to build a simple road.”

Another applause line that led to laughter came about when the president warned a streamlined process also means a quicker rejection for projects that do not make the cut.

Left unsaid? Exactly where that trillion dollars will come from to pay for such an aggressive program, which is expected to last at least a decade.

The U.S. Chamber of Commerce is promoting a 25-cent increase of the federal fuel tax over five years, which it points out has not been raised since 1993 and has not kept up with inflation.

Key Republican senators such as Sen. John Barrasso of Wyoming, chairman of the Senate Environment and Public Works Committee, have given that idea a big thumbs down.

Another suggestion from the Chamber that involves expanding financing options through public-private partnerships and incentives for local and state governments to come up with additional sources of revenue seemed more likely to put it and Republicans closer to the same page, especially in an election year.

Government Shutdown

The recent government shutdown had a bit of a good news twist. It lasted only three days.

On the bad news front, it ended with the passage of yet another stopgap measure—the fourth since last fall—that left unresolved certain funding issues that may prevent state governments from sticking with plans on such programs such as infrastructure.

One example of that comes from the state of Arkansas, whose transportation department revealed it was removing 12 road projects totaling $26 million from an upcoming letting.

ArDOT placed the blame squarely on the lower level of authorized funding inked to the series of continuing resolutions in the place of a 12-month budget.

At least the current stopgap measure runs only to February 8, a shorter timeframe than the one originally proposed in Congress.

Drug-Testing Expansion

The U.S. Coast Guard issued a Marine Safety Advisory (MSA) about a recent rule adding the most common prescription drugs of abuse— hydrocodone, hydromorphone, oxymorphone and oxycodone—to the U.S. Department of Transportation’s drug-testing requirements.

Directed to mariners in safety-sensitive positions, their employers and sponsors, the MSA listed OxyContin, Percodan, Percocet, Vicodin, Lortab, Norco, Dilaudid and Exalgo as the common names of prescribed medicines that are now covered.

“Mariners should ensure their prescribing physician knows what type of regulated, safety-sensitive work the mariner performs and discuss whether prescribed medications could impact transportation-related safety-sensitive work,” the MSA stated.

If a positive drug test is received, the MSA added, a mariner will be interviewed by a Medical Review Officer and have the opportunity to provide a prescription.

“If a legitimate medical explanation is established, the MRO will report the result to the marine employer as a negative,” the MSA explained.

“If not, the MRO will report the result as positive.”

In a separate notice, the Coast Guard also set the minimum random drug testing rate at 25 percent for covered crewmembers.

“Marine employers must submit their 2017 Management Information System (MIS) reports no later than March 15, 2018,” the notice stated.

Fair Port Practices

After its hearing record was to close on January 26, the Federal Maritime Commission was scheduled to meet in closed session to discuss its next steps on detention, demurrage and per diem practices of marine terminal operators and container ship lines.

A petition on those matters was filed in late 2016 by the Coalition for Fair Port Practices and led to a two-day hearing by the FMC.

“This hearing was informative and helped bring broader substance and clarity to the positions of the petitioners and those who oppose their filing,” Michael Khouri, FMC’s acting chairman, said.

“This is a very complex issue that presents difficult choices. The question to be resolved is if the commission, with a judicious hand, can help make things better, though we recognize we will never be able to solve all the issues associated with the timely handoff of the container from carriers to shippers.”

According to the FMC, 26 individuals testified on seven different panels during the hearing.

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