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Ports Performance

The push for port performance metrics came after a showdown between U.S. West Coast employers and unionized port labor exacerbated congestion and nearly crippled coastal container handling. The port performance metric language was widely seen as having the best potential of becoming law that sought to avoid a repeat of the crisis.  The scrap recycling industry was especially hard hit by this slowdown as scrap commodities were stranded at the ports as scrap prices plummeted. 

Although the highway bill includes a port performance provision with specific benchmarks and timelines, the data-collecting initiative must be worked out through a working group established by the director of the Bureau of Transportation Statistics to determine what will be carried out and what will be measured.

According to the legislation, no later than January 15 of each year, the director must submit an annual report to Congress that includes figures on capacity and throughput at the nation’s top ports, a list that includes the top 25 U.S. ports by total tonnage, by 20-foot-equivalent units, and by dry bulk tonnage.  However, the provision does not identify is how frequently the data will be collected before each annual report or what metrics and standards should be used in that process.

In addition, the provision requires that no later than 60 days after passage, the director is also responsible for commissioning a working group. That group is expected to submit suggestions to Congress on how port performance will be measured and standardized within a year of the bill’s final passage. 

The director’s working group must include members of the Federal Maritime Commission, Army Corps of Engineers, Customs and Border Protection, the Coast Guard, among other federal agencies.  The working group also must include one member representing the maritime shipping industry, one representing the port authority community and one representing terminal operators. Language to the bill added in the final stages also requires the inclusion of two members of organized port labor representing the International Longshoremen’s Association and the International Longshore and Warehouse Union.

Increased Truck Weights

ISRI and more than 150 other trade associations and companies are advancing federal legislation, the Safe and Efficient Transportation Act (SETA) Act, which would extend the current federal gross vehicle weight limit on interstate highways from 80,000 pounds to 97,000 pounds in conjunction with adding a sixth axle to the rear of 53-foot trailers. When this bill went into negotiations, the weight limit was reduced to 91,000 pounds.  This reduction made the change less effective and it lost key support in Congress.  Ultimately, the provision did not find its way into the final transportation bill.  This has been an important issue for ReMA since the scrap recycling industry is reliant on trucking to get its products to market. In many cases, trucks carrying scrap materials are only partially filled in order to comply with federal and state weight limits.

Surface Transportation Board

The Surface Transportation Board was reauthorized through fiscal 2020 and make the board an independent agency and overhaul its operations and oversees aspects of the freight rail system, handling issues such as disputes between railroads and shippers on rates and services. The reauthorization would authorize a total of $175 million for the Surface Transportation Board from fiscal 2016 through 2020, including $33 million for fiscal 2016. The board, which is currently under the Transportation Department, received a net $30.1 million for fiscal 2015 when taking into account offsetting collections. The provision would also speed up the process for considering rate challenges, allow the board to initiate investigations on its own, and create an arbitration process for disputes over rail rates and practices and improve review processes, increase the efficiency of dispute resolution, and improve transparency and accountability.

STB Board Membership

The new independent board would be made up of five members instead of three. No more than three of the five members could be from the same political party.  At least three members would have to have experience in transportation, transportation regulation, or economic regulation, and at least two members would have to be from the private sector. The measure would stipulate that a majority of board members could hold a nonpublic meeting if no vote or official agency action is taken, the general counsel is there, and only members and staff are in attendance. The board would have to publish information about the meeting within two days, including a summary of the matters discussed and those present. It could decide to withhold some information from the public.

Rate Case Procedures

The reauthorization and reform measure would establish specific timelines for rate challenges that the board assesses using a “stand-alone cost” method, typically used for large and complex cases. The board could extend the timeline if requested by a party to the case or in the interest of due process but would continue to be required to maintain at least one simplified and expedited method for assessing cases when the stand-alone cost method is too costly given the value of the case. Finally, the board would have to initiate a proceeding within 180 days of the bill’s enactment to assess expedited litigation procedures and determine if they could apply to rate cases.

Initiating Investigations

The measure also would expand the board’s investigative authority by allowing it to initiate an investigation on its own. Under current law, it can only initiate an investigation based on a complaint.  This provision is the core of ISRI’s rail policy passed in 2005.  If the board finds a violation through a proceeding it initiated on its own, any remedies could only be applied prospectively.  And, the board would have to provide written notice to the parties under investigation within 30 days. It also could investigate only issues of national or regional significance, and would have to dismiss an investigation that isn’t concluded within a year. Most importantly for ReMA members is the measure would allow for judicial review of a violation discovered in an investigation the board initiated on its own. The board must issue rules within a year of the bill’s enactment on initiating these sort of investigations.

Arbitration

The board would be directed to promulgate rules, within a year of the bill’s enactment, to establish a voluntary and binding arbitration process to resolve complaints on rail rates and practices. The arbitration process wouldn’t apply however to disputes over licenses, authorizations or exemptions; rules that apply to the industry more generally; labor protective conditions; or disputes that are solely between two or more rail carriers.  For rate disputes, the process would be available only if the rail carrier has market dominance. Initiation of an arbitration process would preclude the board from separately reviewing a complaint or dispute on the same issue.  Arbitrators would have to be selected with 14 days of the board’s decision to initiate arbitration, and the measure would set a timeline for the process to be completed. The parties would select an arbitrator or panel of arbitrators from a roster maintained by the STB.  Decisions could award damages of as much as $2 million for practice disputes and $25 million for rate disputes.  Arbitrators would also have to consider the board’s methodologies for setting reasonable rates and decisions would have to be consistent with sound principles of rail regulation economics.  And, parties could appeal an arbitration decision to the STB under certain circumstances.

Metrics and Reports

The board would be directed to post a quarterly report on its website of the rail rate review cases pending or completed during the previous quarter. The STB would be directed to submit a report to Congress on its rate case methodologies, as well as quarterly reports on its progress in addressing issues raised in unfinished regulatory proceedings.  The board also would have to create a database of complaints it receives and publish quarterly information on its website. It could identify a complainant only if the complainant has provided written consent to do so.  The Government Accountability Office would be directed to conduct a study on rail transportation contract proposals containing multiple origins and destinations.

Inspector General

The inspector general of the Transportation Department would have the authority to review only the financial management, property management and business operations of the board.