The Maritime Outlook for the 116th Congress

Joan M. Bondareff and Genevieve Cowan*

When we last wrote about the 115th Congress, it had just completed work on the Coast Guard Authorization Act of 2019 and Save Our Seas legislation. These bills were summarized in our Mainbrace (October 2018) article, Congress Passes Major Maritime Safety Legislation but Fails to Fund a New Icebreaker or Pass Authorization for Most Coast Guard Programs. Of notable significance since our last article, the 2019 spending deal finally provided funding for a new polar icebreaker, which is discussed in detail further below.

It seems as though the 115th Congress just ended and, in a way, it is true. The new fiscal year dictates that all FY2019 appropriations bills should have been enacted by October 1, 2018. However, due to a 35-day partial government shutdown and the residual delays from border wall negotiations, the last seven appropriations bills were not signed into law until February 15, 2019.

The 116th Congress began on January 3, 2019, with a change in House leadership. The 2018 midterm elections resulted in Democrats taking over control of the House of Representatives and consequently the leadership of all House committees. The maritime community should take particular note of Congressman Peter DeFazio (D-OR) becoming chairman of the House Transportation and Infrastructure Committee and Congressman Sean Patrick Maloney (D-NY) appointed as the new chairman of the Coast Guard and Maritime Subcommittee. The Ranking Members for that committee and subcommittee are Congressman Sam Graves (R-MO) and Congressman Bob Gibbs (R-OH), respectively.

The Senate remains in Republican hands, but there are significant changes in committee leadership there as well. For example, Senator Roger Wicker (R-MS) is now chairman of the Senate Commerce, Science, and Transportation Committee. Within that committee, a new Security Subcommittee was formed and Senator Dan Sullivan

(R-AK) was appointed chairman. This subcommittee has legislative and oversight responsibility for the U.S. Coast Guard, U.S. Maritime Administration (“MARAD”), the Federal Maritime Commission, and navigation and merchant marine issues, generally.

Highlights of the 2019 Spending Bills

On February 15, President Trump signed a seven-bill appropriations package (H.J. Res. 31) into law, narrowly missing Congress’ self-imposed deadline. Immediately after signing the measure, the president proceeded to declare a national emergency in order to receive additional funding for a wall along the U.S.-Mexico border. The specifics of this funding had been the main sticking point throughout appropriations negotiations, resulting in a 35-day partial government shutdown, missed paychecks for federal workers and Coast Guard personnel, delayed grants, and a backlog of work at many agencies.

The final bill contains the final seven FY2019 appropriations, which fund: Agriculture-FDA, Commerce-Justice-Science, Financial Services, Homeland Security, Interior-Environment, State-Foreign Operations, and Transportation-HUD. The language is largely similar to the spending packages released by House Democrats (H.R. 648) and Senate Republicans (H.R. 268) during the partial government shutdown; the main changes occurred in the Homeland Security section.

The agreement would allocate the following amounts under the covered spending measures:

    • Agriculture-FDA: $23 billion in discretionary funding, which is $32 million more than in FY2018.
    • Commerce-Justice-Science: $71.5 billion in discretionary funding, which is $1.6 billion more than FY2018.
    • Financial Services: $23.4 billion in discretionary funding, which is equal to the FY2018 level.
    • Homeland Security: $49.4 billion in discretionary funding, which is $1.7 billion more than FY2018.
    • Interior-Environment: $35.6 billion in discretionary funding, which is $300 million more than FY2018.
    • State and Foreign Operations: $54.2 billion in discretionary funding, including eight billion dollars in Overseas Contingency Operations (“OCO”) funds that are not subject to spending caps. Overall, that’s $200 million more than in FY2018.
    • Transportation-HUD: $71.1 billion in discretionary funding, which is one billion dollars more than FY2018.

Department of Homeland Security

The measure provides $10.3 billion in discretionary funding—including OCO funds—for the Coast Guard, which is $155.5 million less than in FY2018 and $577.7 million more than requested. The Coast Guard will also receive $1.74 billion in mandatory funding for retirement pay.

The bill provides $1.58 billion in acquisition funding for Coast Guard vessels. That would include $675 million for a new heavy polar icebreaker vessel that could be worth one billion dollars. The Coast Guard will be directed to use $655 million to produce the first Polar Security Cutter and $20 million to prepare for a second vessel. The agreement also would provide $15 million to extend the service life of the current Polar Star icebreaker.

Department of Transportation—MARAD

According to the H.J. Res. 31 Joint Explanatory Statement, which explains how Congress believes funds should be directed, the conferees provided $149.44 million for MARAD’s FY2019 operations and training account—seven million dollars of which was directed for the short sea transportation program also known as America’s Marine Highways. The bill also provides three million dollars for administrative expenses of the Title XI program and directs the Department of Transportation to expedite processing applications that meet all the requirements of the program. To assist small shipyards, $20 million was provided for the small shipyard grant program, which is a boost from last year’s appropriation.

Better Utilizing Investments to Leverage Development (“BUILD”) grants, formerly known as Transportation Investment Generating Economic Recovery (“TIGER”) grants, were given $900 million, which is a decrease of $600 million below this current year’s level. For the first time ever, the conferees directed $292.730 million of that funding to MARAD’s Port Infrastructure Development Program. Two-hundred million dollars is provided for coastal seaports and an additional $92.73 million was included for 15 coastal seaports that handled the greatest number of loaded foreign and domestic 20-foot equivalent units of containerized cargo in 2015. MARAD will provide these grants for infrastructure improvement projects for coastal seaports that are either within the seaport’s boundary or outside its boundary if the project directly relates to port operations, or to an intermodal connection to a port that improves the safety, efficiency, or reliability of the movement of goods into, out of, or around coastal seaports. Eligible projects include, but are not limited to, highway or rail infrastructure that develops or extends intermodal connectivity, intermodal facilities, marine terminal equipment, wharf construction or redevelopment, vessel alternative fueling access and distribution, fuel efficient cargo handling equipment, freight intelligent transportation systems, and digital infrastructure systems.

Department of Defense

The Defense and Labor-HHS-Education Appropriations Minibus (H.R. 6157) would provide $24.2 billion to procure 13 Navy ships. The measure would also provide $1.57 billion for the Navy to modify or enter into a contract for another Ford-class aircraft carrier.

Key Legislative Issues under Review by the 116th Congress

CLIMATE CHANGE: With Democrats in control of the

House, this issue has taken on a new urgency. A new Select Committee on Climate Crisis was established in the House and is led by Representative Kathy Castor (D-FL). The committee will probably not be allowed to issue subpoenas, as a permanent standing House committee can, nor will it be able to draft legislation. However, it can hold hearings, write reports, and bring public attention to political issues. Other committees such as the House Energy and Commerce Committee and the Senate Energy and Natural Resources Committee will have legislative jurisdiction over climate change issues.

Much attention has been paid to the Green New Deal that was introduced as a resolution on the House side by Representative Alexandria Ocasio-Cortez (D-NY) and on the Senate side by Senator Markey (D-MA). It remains to be seen whether the polarizing Green New Deal is solely aspirational or will eventually be enacted. The measure calls for vast reductions in carbon emissions and an economic overhaul that has gained staunch supporters as well as vehement opponents, especially on the Senate side.

INFRASTRUCTURE: Momentum has been building for Congress to pen a broad infrastructure deal in 2019; support comes from both sides of the aisle as well as the White House. Though both sides support infrastructure improvements, how to achieve that goal may differ. Senate Commerce, Science, and Transportation Chairman Roger Wicker (R-MS) is not convinced that Congress will get a standalone infrastructure bill, as compared to a reauthorization, done this year. Meanwhile, House Transportation and Infrastructure Committee Chairman DeFazio (D-OR) wants to move an infrastructure package this year. The chairman is updating his “Penny for Progress” proposal, which would raise the gas tax about a penny to a penny-and-a-half a year to help pay for surface transportation projects. He plans to work with Ways and Means to identify funding options. An infrastructure package, which DeFazio previously said he is expected to submit to Majority Whip Steny Hoyer (D-MD) by the end of May, could include a wide range of infrastructure needs to include drinking water and rural broadband, in addition to more traditional forms that fall under his jurisdiction.

Both the House and Senate have already held committee hearings on the issue of infrastructure, but how each chamber will craft that legislation and which provisions will make it into the final bill remains to be seen.

COAST GUARD AUTHORIZATION: While the staff is considering ideas to add to the next Coast Guard Authorization bill, we do not expect one will be enacted until 2020.

SAVE OUR SEAS ACT: Senator Sullivan (R-AK) and Senator Whitehouse (D-RI) are currently working on an expanded version called Save Our Seas Act 2; details have not yet been released.

FY2020 BUDGET: The Trump administration just sent its FY2020 budget recommendation to Capitol Hill, which will probably be dead on arrival in the House. Hearings are being held and we will know later how the Congress disposes of the president’s request. President Trump’s FY2020 budget calls for a five-percent cut in non-defense discretionary spending and would allow for an increase in defense spending through overseas contingency operations war funds. Funds diverted from the Pentagon would be used to fund the president’s pet project—the wall with Mexico. The president’s budget recommends spending levels for the next fiscal year, but ultimately it is up to Congress to appropriate the funds they deem appropriate.

NEW ENERGY LEGISLATION: Senator Murkowski, who serves as chairman of the Senate Energy and Natural Resources Committee, is working on new energy legislation with a focus on grid security. This legislation could potentially be combined with a climate bill from the House. She has already held hearings on energy innovation in the United States and emphasizes the need to establish a shared, long-term strategy for energy policy and for alignment between industry, the federal government, and our National Laboratories.

NATIONAL EMERGENCY DECLARATION: On February 15, President Trump announced that he was declaring a national emergency and planned to unilaterally shift about seven billion dollars in federal resources to construct physical barriers along the U.S.-Mexico border. The president has the authority to declare an emergency in some cases under the National Emergencies Act. However, that law also gives Congress the ability to end the emergency by passing a joint resolution. If one chamber passes the resolution, the other must also take it up, voting on it within a total of 18 days. Sixteen state attorney generals have filed a lawsuit against the legality of the emergency declaration and 58 former national security advisers have written a lengthy paper opposing the declaration.

While the House and Senate both voted to block President Trump’s declaration of a border emergency with simple majority votes, the president vetoed the measure and there are insufficient votes to override the veto.

Conclusions

With a divided Congress, it’s difficult to predict what will be enacted in 2019; bills that easily pass in one chamber could meet a very different fate in the other. In 2020, all eyes will be on the presidential campaign. Democratic members and moguls have already started joining the race. We do believe, however, that there are some bipartisan issues that could get some traction even in a divided Congress—a watered-down infrastructure bill and possibly an energy bill are among the top contenders. Also, be on the lookout for the Coast Guard Authorization Act and National Defense Authorization Act for 2020—two favorite vehicles that provide opportunities for maritime issues to be addressed.

* Genevieve Cowan serves as a legislative analyst at Blank Rome Government Relations LLC.