Thursday, August 3, 2017

S 1655 Introduced – FY 2018 THUD Spending

Last month, Sen. Collins (R,ME) introduced S 1655, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2018. The bill does not include cybersecurity or chemical transportation safety language, but the Senate Appropriations Committee Report on the bill does include some language of potential interest to readers of this blog concerning UAS, autonomous vehicles and oil spill response plans.


The Committee briefly mentioned the electronic registration system that the FAA had established for registration of unmanned aircraft systems (UAS) in December of 2015. The comment explicitly ignores the recent court case which invalidated the portion of that registration that applied to recreational users of UAS. The report states (pgs 32-3):

“The Committee believes that online, interactive education program links on the electronic registration process would provide the education necessary to reduce the risk of unknowing or negligent mistakes by recreational operators of small unmanned aircraft thus promoting aviation safety. Therefore, the Committee directs the FAA to include in its electronic registration system for recreational operators a link for registrants to undergo a suitable and interactive online education and training program.”

The report comment goes on to provide additional direction to the FAA on executing that directive and requirements for reporting back to the Committee on the results. This is definitely in keeping with other legislative efforts (See S 1405 for example) that mandate the use of the current registration system for model aircraft operators. I expect that the FAA will be holding off on the de-registration of recreational UAS operators until it sees if/how Congress legislates on the matter during this session.

Autonomous Vehicles

The Committee reiterates its support for the Automated Vehicle program at the National Highway Traffic Safety Administration (NHTSA) to the tune of $10.1 million. It does express some concern about cybersecurity issues; stating (pg 63):

“The Committee remains concerned with cybersecurity in autonomous vehicles and urges the Department to continue to address this risk in the next update of the Federal Automated Vehicles Policy.”

Oil Spill Response Plans

The Committee takes the DOT’s Pipeline and Hazardous Material Safety Adminstration (PHMSA) to task for failing to issue a final rule on modifying the current Oil Spill Response Plan (OSRP) so that the threshold for the requirement of an OSRP would take into account the amount of oil in every car in a train consist instead of just the amount in any given car. This is an on-going issue between the Committee and PHMSA. This year the report gets real specific, stating (pg 88):

“The Committee directs PHMSA to issue a final rule to expand the applicability of comprehensive oil spill response plans to rail carriers no later than 5 days after enactment of this act.”

The recently published Trump Administration update to the Unified Agenda reports that DOT expects to issue the final rule in December (and those UA expectations are almost always missed). It will be interesting to see how the anti-regulation Trump administration responds.

Moving Forward

It is increasingly looking like there will have to be a continuing resolution before October 1st as Congress is unlikely (VERY UNLIKELY) to pass the spending bills in regular order by that date. That means that we will almost certainly not see a standalone THUD spending bill make it to the President’s desk and certainly not this bill. Spending bills have to ‘originate’ in the House so the best this bill could have done is be passed in the Senate and then substituted for the language of the House bill when it reached the Senate. In a good year (and we have not seen one of those in a good while) the differences in the two bills would have been worked out in a conference committee before being approved by both houses and then sent to the President.


Interestingly, the Appropriations Committee directives found in the Committee Report (which do not have the force of law, just the force of the purse) will essentially continue ‘in force’ when a spending bill covering THUD (and likely everything else) is signed by the President. DOT may ignore those directives and no court will say anything about it. However, at some point the Committee could get so upset at the Department that they specifically withhold funds in a spending bill until such time as the Department complies with the directives. We may be approaching that point with the OSRP directive, that is what the unrealistic ‘5 day’ response time was all about.

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