On Friday the OMB’s Office of Information and Regulatory
Affairs (OIRA) announced
that it had approved the DOT’s Pipeline and Hazardous Material Safety Administration
(PHMSA) notice on the status of electronically controlled pneumatic (ECP)
breaks on highly-hazardous flammable trains (EFFT).
Yes, this is the same notice that was
submitted to OIRA on Thursday. Such one-day turnaround of an OIRA approval
is highly unusual and typically reflects an impending legal deadline. As I
noted last Friday this PHMSA action has a congressionally mandated deadline of December
4th to complete this action. PHMSA will miss that deadline since Monday’s Federal Register
has already been published and this notice was not included.
The OIRA notice classifies this as a ‘Pre-Rule’ action. I
would have expected it to be classified a ‘Final Rule’ or at least a ‘Notice of
Proposed Rule’ designation if this were to be an action to vacate the ECP
requirements in 49
CFR 174.310(a)(3)(ii). I suspect that this will be the regulatory impact
analysis notice required in §7311(c)(1)(B)
of the 2015 FAST Act (PL 114-94).
This notice would come with a 30-day public notice requirement before DOT could
proceed with any action.
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