Sunday, April 19, 2015

HR 1789 Introduced – DOT 111 Railcars

Last week Rep. Payne (D,NJ) introduced HR 1789, the Tank Car Safety and Security Act of 2015. The bill would require the publication of new regulations concerning the use of DOT-111 tank cars in flammable service.

Tank Car Design

New regulations on the DOT 111 railcars would be required to be published by the Secretary of Transportation within 1 year of adoption of this bill. Those regulations would need to:

∙ Revise the DOT 111 tank car design for new railcars that includes “outer steel jacket around the tank car and thermal protection, full-height head shields and high-flow capacity pressure relief valves” {§2(a)(1)}; and
∙ Require DOT 111 tank cars constructed before October 2011 to be upgraded, including “installation of high-flow-capacity relief valves and design modifications to prevent bottom outlets from opening in the case of an accident” {§2(a)(2)}.

The DOT Secretary would also be required, within 1 year of the adoption of this bill, to report to Congress on an ‘aggressive’ phase out plan for the older, un-modified DOT 111 tank cars used in flammable service.

Crude Oil Security

In a requirement that does not have anything to do specifically with DOT 111 railcars, the bill would require the Administrator of the TSA to publish new railroad security regulations that would deal with the in-transit storage of crude oil railcars. It would prohibit crude oil containing railcars from being “unattended during any period of time that such tank car is being transferred between railroad carriers or between a railroad carrier and a shipper” {§2(a)(3)}. There is no distinction made in the bill between cars containing crude oil and crude oil residue.

The only regulations that currently address preventing railcars from being unattended are the regulation of security sensitive hazardous materials at 49 CFR 1580.107. This bill does not suggest that the other requirements of those regulations, including the use of ‘rail secure areas’ and the documented inspections and transfer of railcars, would apply to crude oil railcars.

I am not sure where this concern with the security of crude oil railcars is coming from. I have heard nothing in the discussions of this issue that would indicate that there is any significant concern with security issues. I will admit that I have some minor concerns that these trains may become the target of the wacko fringe side of the environmentalist cause, but not enough to think that security regulations would be required.

Besides, providing security for a 100 car crude oil train, or even just a block of twenty such rail cars, is an entirely different proposition than the securing of a couple of chlorine railcars. The requirement for them not to be left unattended does not provide much of a security increase; a single person is not going to be able to adequately observe all of those railcars, much less react to a suspected incident in any reasonable fashion.

Moving Forward

This is the least aggressive bill introduced to date concerning the safety of crude oil transport and it is the most limited in scope. This may mean that given a serious push to have congress legislate on the issue during this term, this bill might receive the qualified support of railroads and crude oil shippers.

On the other hand, this bill will be hampered by the fact that it will have to be considered by two committees (the Transportation and Infrastructure Committee and the Homeland Security Committee) before it comes to the floor of the House. Normally I would expect the problem to be in the Homeland Security Committee as they are not directly affected by the crude oil train situation, but Rep. Payne is a member of the Transportation Subcommittee there and may have enough pull to get at least subcommittee consideration of this bill.

Over all, I don’t think that this bill will move forward unless there is a crude oil train accident that really captures the attention of the public by either killing people or destroying something politically significant.

Saturday, April 18, 2015

DOT Takes Additional Actions on Crude Oil Trains – FRA EO 30

This is part of a detailed look at several actions that the Department of Transportation (DOT) took on Friday to reduce the hazards associated with the transport of crude oil and other flammable liquids by train. Earlier posts in this discussion include:

This post will look at the Federal Railroad Administration’s (FRA) emergency order concerning the maximum speed in selected urban areas for certain trains transporting large quantities of Class 3 flammable liquids.

Affected Trains

EO 30 will specifically apply to trains containing a continuous block of 20 tank cars or a total of 35 tank cars carrying Class 3 flammable liquids. At least one of the tank cars must be DOT 111 (including those built to the CPC 1232 standards).

This definition of affected trains was apparently designed to address criticism of the 20 tank car standard included in HHFT NPRM could apply to trains carrying single cars of flammable liquids from 20 different shippers, hardly the intent. The hazard for flammable liquids in rail car derailments is that the failure of containment from a single car could result in a pool fire that would cause the catastrophic failure of adjacent cars, compounding the disaster.

One could certainly make an argument for a smaller block of cars. Even a block of two cars raises the potential hazard for secondary involvement. But given the fact that very few derailments involve even the majority of cars in an affected train some number of train cars above two in a block would provide adequate protection against secondary involvement. It would be nice, however, for PHMSA to outline in detail how the number 20 was arrived at.

High-Threat Urban Areas

This Emergency Order would only affect the speed limit for trains transiting high-threat urban areas (HTUA) as defined in 49 CFR 1580.3. That definition from the rail transportation security regulations describes an HTUA as “an area comprising one or more cities and surrounding areas including a 10-mile buffer zone, as listed in appendix A [link added] to this part.” Maps of each of the current 46 HTUAs are currently available on the Transportation Security Administration web site.

A quick look at the Los Angeles, CA HTUA for instance shows that there are large urban populations and highly concentrated suburban populations outside of the designated HTUA. Given that there are only 46 designated HTUAs in the United States, it is easy to see that there are significant number of large urban areas that are not covered by this EO.

Speed Limit

The EO sets a maximum speed limit of 40 mph for affected trains in HTUAs. This is the same speed limit for HTUAs that was included as one of the three options for specific reduced speed limits in the HHFT NPRM. The other two options provided in the NPRM also set a 40 mph speed limit, but provided a different standard for the application of that limit. The first was to apply the limit to all HHFT trains carrying DOT 111 rail cars in flammable liquid service and the other was to define the area for the speed limit so as to include all areas with a census population greater than 100,000.

Effective Date

The effective date for this emergency order was listed as immediately (presumably yesterday’s date; 4-17-15) and the compliance date for the speed limits is April 24th, 2015. I expect that we will see this EO published in the Federal Register next week, but that should not affect the effective date nor the compliance date.

HHFT Final Rule Insight

I would assume that the differences between this Emergency Order and the earlier HHFT NPRM reflect responses to comments to that NPRM. That should mean that the definition of HHFT in the final rule will probably be the same as outlined in this Order. Similarly, I would expect that the speed limits area definition here will be reflected in the final HHFT rule.

Friday, April 17, 2015

S 902 Introduced – CI Trespassing

Last month Sen. Schumer (D,NY) introduced S 902, a bill that would make it a federal offense to trespass on critical infrastructure. This bill is identical to S 2934 that was introduced near the end of the last session without any action. In press release last November Schumer made it clear that it was targeting people who trespassed on New York bridges as publicity stunts or climbed the World Trade Center.

The bill would amend 18 USC Chapter 65, Malicious Mischief, by adding §1370. It uses a fairly conventional definition of ‘critical infrastructure’ and specifically adds ‘landmarks, structures and other objects’ declared to be a national monument {§1370(a)(2)}.

The bill would then make it a federal offense to “knowingly go on any critical infrastructure used in or affecting interstate commerce, with intent to commit a criminal offense” {§1370(b)}. Violation of this new section would be punishable by fines (limit not specifically set) and/or imprisonment for not more than five years.

Senator Schumer is a mover and shaker in the Senate and may have the pull to try to get this considered. I would not expect much opposition form many Republicans, who tend to be law and order types. Most of the opposition would be from Democrats concerned about stifling free speech.


The simple act of trespass has a long history in the United States as being a component of free speech and political expression. A group of like-minded activists would move from a public space into a fringe area of a private space, or interfere with movement in a public space to attract the attention of the news media. Speeches would be made and the police would move in to break up the demonstration by arresting the participants for trespass. Since this is normally a misdemeanor, the protestors would be back on the street shortly and would return to their day jobs.

Allowing this type of simple political expression to be turned into a federal offense would severely inhibit this form of protest.

Having said that, there are certainly other forms of trespass on critical infrastructure facilities that are not mere political statements, but precursors for taking more violent action against those facilities. Most terrorist attacks are preceded by some form of physical surveillance. When that surveillance takes the form of trespass on the facility it would certainly be nice to have some federal statute to prosecute that form of trespass under instead of a typical misdemeanor trespass charge.

But then again, I don’t know how you would word the statute so as to allow non-violent political statements to be excluded and still deal with those suspected of planning some sort of violent attack. Unfortunately, this bill does not even attempt to make the distinction since it is specifically targeting protestors that would hang a Palestinian flag from the Brooklyn Bridge not violent terrorists.

HR 1646 Introduced – Drone Security Research

Last month Rep. Watson Coleman (D,NJ) introduced HR 1646, the Homeland Security Drone Assessment and Analysis Act. The bill would require DHS to conduct an assessment of the risk of drone attacks and how to mitigate those attacks. In her press release about the bill and in comments on the floor of the House, Ms Watson Coleman has stated that the bill arose out of concerns that she heard in testimony before the  Management and Oversight Subcommittee of the House Homeland Security Committee.

This is a short bill with very simple requirements. First the DHS Secretary is required to conduct research into “how commercially available small and medium sized unmanned aerial systems could be used to perpetuate an attack” {§2(a)}. There is no funding for the study, no guidance on how it is to be conducted and there is no definition of the key terms ‘small’ and ‘medium sized unmanned aerial systems’.

Once the study is completed the Secretary is required to coordinate with DOD, DOT and DOE to “develop Federal policies, guidance, and protocols to prevent such an attack or mitigate the effects of such an attack” {§2(a)}. Additionally, the Secretary is required to disseminate the information to “State, local, and tribal law enforcement officials regarding how such officials may bolster preparedness for and responses to attacks perpetrated by commercially available small and medium sized unmanned aerial systems” {§2(b)}. There is no mention of sharing the information with critical infrastructure owners who might be considered to be the targets of most of the homeland security related attacks.

And finally, of course, is the standard requirement to report on the security assessment to Congress.

Since this bill does not require anyone to really do anything besides conduct a study, and no funds are included in the bill this bill would almost certainly face no organized opposition if it made it to the floor. Since Rep. Watson Coleman is the ranking member of the Homeland Security subcommittee looking at the bill, there is a very good chance that this bill could get considered in committee and successfully move to the floor of the House. 

DOT Takes Additional Actions on Crude Oil Trains

Today the Department of Transportation published six new documents outlining new actions that PHMSA an FRA were taking to reduce the risks associated with the transportation of crude oil and other flammable liquids in unit trains or blocks of cars. The new documents are:

A DOT blog post by Secretary Foxx outlines the new requirements and actions being published today. These actions are being taken while the highly-hazardous flammable train (HHFT) rulemaking is still under review at the Office of Management and Budget. Congressional sources have said that the rulemaking is expected to be published on May 12th, 2015.

PHMSA also has a new web page providing a history of actions that the Department has taken to date to increase the safe transportation of energy products.

There is also a note that FEMA is also addressing the emergency response information issue in a separate blog post.

I’ll have further information after I have had a chance to conduct a review of the documents.

HR 1738 Introduced – Public Alert System Modernization

As I mentioned in an earlier post Rep. Bilirakis (R,FL) introduced HR 1738, the Integrated Public Alert and Warning System Modernization Act of 2015. The bill is virtually identical to HR 3283 from last session; which cleared the House Homeland Security Committee but was never considered on the floor. It is also very similar to HR 1472 which was approved by the House Transportation and Infrastructure Committee earlier this week.

The Two Bills

Both HR 1738 and HR 1472 attempt to do pretty much the same thing; modernize the national public alert system. Both would establish an inter-agency Advisory Committee to figure out the best way to accomplish this objective. They would also add upgrading State and local alert systems to the allowable uses of Homeland Security Grants without increasing the funding for that program.

There are two major differences in these bills. First, HR 1738 would go about implementing this program by amending the Homeland Security Act of 2002; a more formalized approach than HR 1472. Second, HR 1738 would authorize spending $13.4 million per year on the program where HR 1472 would only authorize $12.8 million.

On a minor note; HR 1738 does include a cybersecurity provision not seen in HR 1472. It would require that one of the design parameters for the modernized system is that is should be “to the greatest extent practicable, hardened against cyber attacks” {§526(c)(4)}.

Committee Politics

There is one other important difference between these two bills. HR 1738 has been assigned to two committees (Homeland Security and Transportation and Infrastructure) for consideration before it can get to the floor of the House. HR 1472 only has to (and already has) clear the Transportation and Infrastructure Committee. The reason is that since HR 1738 amends the Homeland Security Act of 2002, the Homeland Security Committee has jurisdiction. Public alert systems fall under the purview of the Transportation and Infrastructure Committee. Apparently though, the House leadership failed to realize (or ignored) the fact that HR 1472 also amend the Homeland Security Act in changing the grant use wording.

For HR 1738 to make it to the floor it would have to be considered by the Transportation and Infrastructure which fast tracked consideration of HR 1472 the competing bill. Either that or the Chair of the Transportation and Infrastructure Committee would have to waive his right to consider the bill. Again, that is unlikely to happen given the approval of HR 1472.

Unless, of course, there is some horse trading going on between the two Chairmen on consideration of some other bill that is important to the Transportation and Infrastructure. This may be why Rep Barletta (R,PA and Chair of the Economic Development, Public Buildings and Emergency Management Subcommittee) introduced HR 1472 in the first place.

Bills Introduced – 04-16-15

There were 111 bills introduced yesterday in the House and Senate; an unusual number of bills for the end of the week when they are coming back to work Monday. Of those, only one might be of potential interest to readers of this blog:

S 1006 A bill to incentivize early adoption of positive train control, and for other purposes. Sen. Feinstein, Dianne [D-CA]

With the current deadline for implementing PTC being the end of this year, there is hardly time to get the technology adopted ‘early’. This may be related (or even include) an extension of the PTC deadline that has proposed in S 650. It will be interesting to see how this is worded.
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