White House renames rail nominees

Written by Frank N. Wilner, Capitol Hill Contributing Editor
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Thelma Drake has been renominated as FTA Administrator.

Five nominations for rail transportation federal leadership posts were announced Jan. 16 by President Trump. All are nominees from the previous session of Congress, and were cleared by respective Senate oversight committees for confirmation on the Senate floor—but none advanced for a floor vote prior to the Senate adjourning.

Under Senate rules, nominations not acted upon during a two-year congressional session must be returned to the White House for resubmission—if the President so chooses—during the succeeding session.

Also, a bill was introduced Jan. 11 in the House to reinstate the 45-G investment tax credit for regional and short line railroads—and make it permanent—after a similar previous effort failed during the just-concluded 115th Congress.

Those again nominated by President Trump on Jan. 16 are:

  • Rick A. Dearborn to the Amtrak Board of Directors for a five-year term, succeeding former BNSF attorney Jeffrey R. Moreland, whose term expired, but who is in holdover status.
  • Joseph Ryan Gruters to the Amtrak Board of Directors for a five-year term, succeeding Albert DiClemente, whose term expired, but who is in holdover status.
  • Leon A. Westmoreland to the Amtrak Board of Directors for a five-year term to fill a vacant seat.
  • Michelle A. Schultz to be a member of the Surface Transportation Board for a five-year term to fill a still-vacant new seat created in 2015.
  • Thelma Drake to be Federal Transit Administrator, succeeding Peter M. Rogoff, who resigned in 2015.

While the nominations will be forwarded to relevant Senate committees of oversight for consideration, all previously were considered by those committees, which recommended confirmation.

Thus, each is primed to have their name moved quickly to the Senate floor, although a decision on a confirmation vote is at the discretion of Senate Majority Leader Mitch McConnell (R-Ky.). An objection by Minority Leader Chuck Schumer (D-N.Y.), or a “hold” by any of the 100 senators, could delay a vote on a specific individual.

There are notable omissions from the Jan. 16 list of nominees, suggesting more will be made shortly. Among them is a Democratic nominee for the STB seat vacated Dec. 31 by Deb Miller, who has been awaiting renomination to a second term for more than a year.

By statute, Miller was required to depart following expiration of her allowable holdover year. White House sources say all the background checks for Miller were completed for that renomination during 2018, and it was thought to be assured.

While nominees Patrick J. Fuchs, a Republican, and Martin J. Oberman, a Democrat, were confirmed by the Senate in December to fill two STB vacancies—Fuchs to one of the two unfilled new seats created in 2015; Oberman to fill the vacated seat of former STB member and chairman Dan Elliott—the nomination of Schultz, a Republican, was not acted upon. The Senate Commerce Committee recommended her confirmation at the same time as recommending Fuchs for confirmation.

The reason given for no action on Schultz was that Sen. Schumer objected to her confirmation pending pairing with a Democrat—presumably Miller. If Miller is not renominated—or chooses to withdraw her name and return to her home in Kansas—it could be months until another Democrat clears background checks and can be nominated for pairing with Schultz.

Of course, McConnell holds the power to move Schultz’s name to the Senate floor for confirmation by the Senate Republican majority without pairing with a Democrat, but that is not expected. If done, the STB would have a 3-1 Republican majority.

Fuchs and Oberman are expected to be sworn in within a week to join currently lone STB member and Chairman Ann Begeman, a Republican. But with the government shutdown, the STB of one—just Begeman—has no duties to fulfill as the entire STB staff is on furlough. Senate confirmed-officials are not affected by government shutdowns.

Also absent from the Jan. 16 list of nominees are three names to join the three-member Railroad Retirement Board, whose chairman position has been vacant since August 2015. All three were recommended for confirmation in 2018 by the Senate Health, Education, Labor and Pensions Committee. They are Ehhard R. Chorle, to fill the neutral chairman’s seat vacated by Michael Schwartz; Jonathan Bragg to fill a labor seat succeeding Walter A. Barrows; and Thomas Jayne to fill a management seat vacated by Steven J. Anthony.

Also on the Jan. 16 nominations list is Thelma Drake to be Federal Transit Administrator. The agency has been led by an acting chairman—Jane Williams—since Rogoff’s 2015 departure. Drake’s nomination previously was advanced to the Senate floor by the Senate Banking, Housing and Urban Affairs Committee.

As for the investment tax credit benefitting more than 600 regional and short line railroads—known as 45-G for its provision in the Internal Revenue Code—Rep. Earl Blumenauer (D-Ore.) on Jan. 11 introduced H.R. 510 to make it permanent, but at a reduced 30%—vs. a previous 50%—in exchange for the permanency. The bill is known as a marker, as it is unlikely to advance on its own, but will serve to attract co-sponsors, putting it on a path to be included in more-comprehensive tax legislation. As with previous 45-G credits, it is capped at $3,500 per mile.

The 45-G tax credit was first enacted by Congress in 2005, and has been periodically renewed. A previous attempt to make the credit permanent attracted 225 House sponsors and more than 50 in the Senate.

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