OMB Approves PHMSA EPC Decision

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 4^th 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.

PHMSA Sends ECP Breaking Decision to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received from DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) their Notice of the Department of Transportation's Decision on ECP Braking for review.

While this was not published in the 2017 Unified Agenda update, it appears that this has been prepared in response to a congressional mandate in 2015 FAST Act (PL 114-94). In §7311 Congress addressed the PHMSA rule {174.310(a)(3)(ii)} on the use of electronically controlled pneumatic (ECP) breaks on highly-hazardous flammable trains (HHFT); requiring additional testing of the efficacy of ECP breaking systems in preventing damage to railcars used to transport crude oil.

While the National Academy of Sciences final letter report was not able to make a conclusive statement “concerning the emergency performance of ECP breaks relative to other breaking systems” (pg ii), congress mandated {§7311(c)(2)} that by December 4^th of this year DOT would either publish a notice of why the ECP mandate was justified or, if not justified, repeal the requirement.

It will be interesting to see how the anti-regulatory Trump administration comes down on this decision.

Safety Railcar

From time to time I receive interesting emails from readers of this blog. Yesterday it was one from a designer of a new ‘Safety Railcar’ that caught my attention. The email was brief; “Please see my patent pending idea.” Attached was a .PDF copy of the Patent Application Document from the US Patent Office.

The Problem

Now I have mentioned a couple of times on this blog that one of the big problems with railcar derailment fires is getting the right fire-fighting equipment to the scene in a timely manner. For many burning liquids the use of water is probably going to be contraindicated, especially with fluids like crude oil and various fuels. Various fire-fighting foams have been developed and successfully used, but most small community fire companies do not have the equipment to use foam, nor should they be expected to stock the various types of foams that would be necessary to fight fires from the variety of flammable liquids transported by rail.

I have suggested that trains with large numbers of crude oil cars {now formally called Highly Hazardous Flammable Trains (HHFT) by FRA} should carry a train car containing the specific foam necessary to fight crude oil fires. The local fire departments would still have to have the foam equipment, but they would not need to stockpile the foam making material.

The Safety Railcar

Now Robert E. Glen has done me one better. He has designed a railcar that would contain not only the foam making material but the equipment to mix and dispense the foam as well. See the basic diagram of the car below.

Safety Rail Car Design

I am not going to go into any great detail on the design of the car. Robert has done that in patent document with a very detailed description of the components and their employment in a derailment fire. In brief, his design purports to provide for both automated fire-fighting based upon data obtained from sensors on the car and for traditional firefighters unrolling hoses from the car to fight a fire. The document suggests that the Safety Railcar would be deployed every 15 to 20 cars in a unit train, ensuring that in the event of a major derailment, there would be at least one Safety Railcar near the scene of the resulting derailment fire to provide at least initial fire-fighting response.

Commentary

While I have done some untrained volunteer grass-fire fire-fighting and even helped haul 2” fire hoses (well away from the nozzle) on occasion, I am not a fire fighter, nor am I a railway design engineer. Having said all of that, this looks like an interesting concept that might be worth exploring.

Because of the expense of building railcars, I suspect that Robert’s work on this has been limited to paper design work. I really doubt that he has a working model available for testing. What would be helpful, I suspect is for some people with experience in the field taking a look at this proposal and seeing what holes can be poked in it. Robert has posted this information to the NFPA.org site for comments; that may be a more practical place for the technical discussion to take place rather than on this blog (though I would love to see reader comments).

Now on the practical side: if this is a workable idea, it will be a long road to get something like this into production and rolling down the rails. Railroads are not going to be big supporters, it would be like admitting that they have responsibility for preparing for accidents. Shippers are not going to be buying these cars because they will not produce any revenue. It is going to be either the government or insurance companies that demand that a service like this is provided.

Fortunately for the public (and unfortunately for Robert’s idea) there has been a significant reduction in the number and size of the crude-oil-train fires that we saw too frequently a couple of years ago. While HHFT restrictions and safety work by the railroads have contributed to the decline, the root cause is almost certainly the sharp reduction in the number of crude oil and ethanol shipments over the last two years for economic reasons.

There will be more crude-oil train derailments and the chances are still there for another Lac-Megantic type catastrophe. It looks like something like Robert’s Safety Train may be one of the tools that could prevent a derailment from turning into a catastrophe.

House Reports S 546, the RESPONSE Act

Earlier in the lame duck session the House Transportation and Infrastructure Committee published their report on S 546, the RESPONSE Act that was passed in the Senate back in May. The Committee made some minor revisions to the bill and that revised version will be considered on the floor of the House today under suspension of the rules. This means that the Republican leadership expects the bill to pass with substantial bipartisan support.

Revisions

The revisions made by the Committee in September did not reverse any of the changes made by the Senate in the original language (the same language seen in HR 1043). It did, however include:

• Adding the PHMSA Chief Safety Officer to, and removing the Federal Motor Carrier Safety Administration Chief Safety Officer from, the RESPONSE Subcommittee;

• Adding ‘Rail Labor’ to the types of non-governmental organizations to be represented on the Subcommittee;

• Removing requirements for twice-annual subsequent meetings of the Subcommittee;

• Removing provisions allowing the Transportation Secretary to extend the life of the Subcommittee; and

• Changing the termination of the Subcommittee to 90-days after submission of their report.

Moving Forward

This bill will almost certainly pass in today’s session in the House. There is a strong likelihood that the amended bill will be reconsidered in the Senate, probably under their unanimous consent provisions and sent to the President.

Commentary

This is another good example of Congress pushing the requirement to develop effective regulation of a complex topic to the relative expertise found in the Executive Branch (with outside technical assistance). Congress will still, of course, have to take the recommendations of the Subcommittee and turn it into actual legislation. This has met with mixed success in the past, but we can always hope that something good will come out of this effort.

The major drawback to this type legislative development is that it will take some amount of time (at least a year) for the Subcommittee to do its work and then even more time (maybe two more years) for Congress to act on that report and then even more time (three to five years) to develop the regulations needed to put that legislation into effect. This is why problems take so long to be ‘effectively’ addressed by the government.

In the meantime, if we have another major crude oil incident where there is a major loss of life or property damage due to a poor response by local agencies, we can expect a knee-jerk over-reaction by Congress that will mandate immediate implementation of poorly understood response activities that will only end up making matters worse. Fortunately, low crude oil prices have reduced the number of crude-oil trains substantially, reducing the chances of a catastrophic accident.

S 3187 Introduced – Rail Hazmat Safety

Last month Sen. Merkley (D,OR) introduced S 3187, the Mandate Oil Spill Investigations and Emergency Rules (MOSIER) Act of 2016. The naming of the bill makes it clear that it was introduced in response to the crude oil train derailment near Mosier, OR in June of this year. The bill addresses rail hazmat investigations, emergency orders and a crude oil volatility standard.

NTSB and Hazmat Spills

Section 2 of the bill amends the NTSB authorization language in 49 USC 1118. It increases the funding authorization of the bill from the latest value (FY 2008, $92,625,000) to $108 million per year for 2018 thru 2020. Of that amount $2 million would specifically be set aside for “the costs associated with carrying out railroad accident investigations and investigations of significant railroad incident” {new §1118(a)(3)}.

Section 3 of the bill would amend the NTSB’s authorization to conduct transportation accident investigations under 49 USC 1131 to specifically require investigations of railroad accidents that involve “a significant release of hazardous materials into the environment within a close proximity to communities, personal property, or critical landscapes” {revised §1131(a)(1)(c)}.

Emergency Orders

Section 4 of the bill would expand the explicit authority of the Secretary of Transportation to issue emergency orders by adding the words “or reoccurring situation” to the description of when the Secretary may issue an emergency order under 49 USC 20104.

Crude Oil Volatility

Section 5 of the bill would require the Secretary to establish, within 90 days of the passage of the bill, “a national standard for the maximum volatility of crude oil to be permitted to be shipped by rail based on the safest practicable standard” {new §20154, Note: that section number is already taken, it should have been §20168}.

Moving Forward

Neither Merkley nor his co-sponsor, Sen. Wyden (D,OR), are members of the Senate Commerce, Science and Transportation Committee, the committee to which the bill was assigned for consideration. This means that the bill is unlikely to be considered in that Committee, especially considering how late we are in the session.

Even if the bill were to make it out of committee it would not make it to the floor of the Senate for consideration due to the expected opposition to the imposition of a volatility standard.

Commentary

This bill is certainly more of a political ploy to gain points with (and monetary support from) the voters back home in Oregon than a real attempt to have an effect on the safe transportation of crude oil. The naming of the bill makes that perfectly clear.

The NTSB authorization language is another dead giveaway that neither Senator had any intention of this bill being considered in Committee. Federal agency authorization bills are always written by senior members of the committee with oversight authority. Attempting to usurp that power and prestige is a sure way to get a bill buried and forgotten.

PHMSA Publishes HHFT Oil Spill Response Rule

Last week the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) in the Federal Register  (81 FR 50067-50129) concerning oil spill response plans and information sharing for high-hazard flammable trains. The advance notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014.

This rulemaking addresses three general areas:

• Oil Spill Response Plans;

• Information Sharing; and

• Initial Boiling Point Test

Oil Spill Response Plans

The current hazardous materials regulations (49 CFR 130) currently requires two types of oil spill response plans (OSRP). The basic OSRP {§130.31(a)} covers any oil shipment in containers of 3,500 gallons or greater. The comprehensive OSRP {§130.31(b)} covers any oil shipment in containers of 42,000 gallons or greater. Since railcars used for transporting crude oil are generally 30,000 gallons, railroads are currently only required to prepare basic OSRPs.

This NPRM proposes to generally re-write Part 130; moving (and expanding) the comprehensive OSRP requirements to a new Subpart C. The changes to the comprehensive OSRP requirements would include:

• Expanding the applicability for comprehensive oil spill response plans to include “Any railroad which transports a single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist” {new §130.101(b)};

• Establishing a general requirement for the overall development of the comprehensive response plan and requires the plan uses the National Incident Management System (NIMS) and Incident Command System (ICS) {new §130.102(a)};

• Establishing a general requirement for the plan format including the development a core plan and the establishment of geographic response zones and accompanying response zone appendixes {new §130.102(b)};

• Establishing requirements for the notification procedures and contact information that a railroad must include in a comprehensive oil spill response plan {new §130.105};

• Establishing requirements for equipment testing and drill procedures consistent with PREP requirements for comprehensive oil spill response plans {new §130.108}; and

• Establishing requirements and procedures to submit comprehensive oil spill response plans for approval to FRA {new §130.111};

Nothing in this rule changes the basic OSRP requirement that the plan is targeted at oil spill containment and recovery. In fact, a new definition is added in §130.5 for ‘Response Activities’ that specifically limits that definition to the “the containment and removal of oil from navigable waters and adjoining shorelines”.

Information Sharing

While information sharing was not included in the ANPRM for this rulemaking, Congress did recently specifically direct DOT to “require each Class I railroad to provide advanced

notification and information on high-hazard flammable trains to each State emergency response commission, consistent with the notification content requirements in Emergency Order Docket No. DOT–OST–2014–0067 [.PDF Download link added]” {§7302(a)(3) of the FAST Act (PL HR 114-94)}.

This NPRM establishes information sharing requirements that expands the notification requirements of the Emergency Order to include all Highly Hazardous Flammable Trains (HHFT) as defined in §171.8. The NPRM would require monthly reports to State and Tribal Emergency Response Commissions (SERC and TERC) that would include:

• A reasonable estimate of the number of HHFTs that the railroad expects to operate each week, through each county within the state or through each tribal jurisdiction;

• The routes over which the HHFTs will operate;

• A description of the hazardous material being transported and all applicable emergency response information required by subparts C [Shipping Papers] and G [Emergency Response Information] of part 172; at least one point of contact at the railroad (including name, title, phone number and address) with knowledge of the railroad's transportation of affected trains (referred to as the “HHFT point of contact”); and

• If a route is subject to the comprehensive spill plan requirements, the notification must include a description of the response zones (including counties and states) and contact information for the qualified individual and alternate, as specified under § 130.104(a).

SERCs and TERCs would be required to share the supplied information with “appropriate local authorities, upon request” {new §174.312(a)}. Further dissemination of the information may be restricted upon request by the submitting railroad if the railroad determines that the information may be “security sensitive or proprietary and exempt from public disclosure” {new §174.312(a)(2)(iii)}. The language does not make the information Sensitive Security Information under §1520.5 so the SERC and TERC would be able to make their own decisions as to what State or local regulations applied to the protection of the information.

Initial Boiling Point Test

One of the concerns about shipping crude oil from the Bakken region is that the current standard for classifying the crude oil for shipment may not appropriately address the volatility of the crude oil. Suggestions have been made to include a vapor pressure measurement for use in the classification of crude oil and I have discussed the problems with that sort of measurement.

The current testing process outlined in §173.120 and §173.121 almost certainly allow significant amounts of the light-ends (low molecular weight hydrocarbons). Depending on the concentration of these light-ends, these current test methods could significantly under-state the flammability of the material.

Recognizing this problem, PHMSA and the American Petroleum Institute (API) came up with a best practice (ANSI/API RP 3000) for measuring the flammability of crude oil that includes using ASTM D7900 for determining initial boiling point. This test method, however, is not one of the approved methods for classifying flammable liquids in §173.121. This NPRM would add ASTM D7900 as an acceptable alternative for determining initial boiling point to be used in determining packing groups for Class 3 (flammable liquids) hazardous material.

Public Comments

PHMSA is soliciting public comments on this rule making. Written comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2014-0105). Comments should be submitted by 9-27-16.

Commentary

My major concern with the OSRP section of the NPRM is that it fails to address what is the most publicly acknowledged problem with crude oil transportation by unit trains; the potential for catastrophic fires and explosions resulting from a rail accident and the inability of most local first response agencies to properly deal with this type of catastrophic emergency. Unfortunately, the current OSRP rules are based upon the Clean Water Act provisions that are intended to protect waterways (and drinking water sources) from contamination with crude oil. Until Congress specifically addresses the flammability problems associated with a variety of energy chemicals shipped by unit trains, neither PHMSA, FRA, nor the Coast Guard will be able to address these very real probable consequences of oil spills.

PHMSA took a pass on addressing the issue of confidentiality of HHFT train schedule information by allowing the railroads to claim that the information was either sensitive from a security perspective or confidential business information and then allowing each SERC or TERC to evaluate those claims based upon State and local laws. Again, PHMSA has not really been authorized to make a determination that the information falls within the Sensitive Security Information rules; only TSA is authorized to make that determination. Again this is going to take Congressional action to resolve this problem.

The issue of crude oil testing is a more complex problem. The addition of ASTM D7900 to the list of allowable test methods provides crude oil shippers with a more accurate method of classifying crude oil based upon the initial boiling point. PHMSA has long maintained that shippers are responsible for determining which of the allowed test methods is the most appropriate for classifying the material which they ship. The use of this test should result in upgrading some shipments from Packing Groups II and III and that will result in some increase in safety of those shipments.

What is missing, however, is a more complete discussion of the role of volatility in the fires and explosions seen in a relatively small number of crude oil derailments. Measurement of volatility, alone will not increase safety unless some additional safety measures are required for flammable liquids with higher vapor pressures. For crude oil, that could include a requirement to remove light-ends from the material to reduce vapor pressure before it is offered for shipment.

To be an effective safety tool, any vapor pressure testing is going to have to specifically address protection of samples from vapor loss (sealed sampling devices and sample containers) as well as measuring vapor pressure at multiple temperatures if there is any hope of using the test as an effective tool for predicting the safety consequences of the fluid vapor pressure.

The current NPRM provides a good first step at addressing the transportation safety classification of crude oil. Hopefully PHMSA will continue to look at possible additional changes to test methodology to more completely identify the safety issues associated with crude oil transportation.

Spring 2016 Unified Agenda – DOT

As I mentioned yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) published the Spring 2016 Unified Agenda. Today I want to look at the Unified Agenda for the Department of Transportation. I do not follow this portion of the Unified Agenda as closely as I do the DHS portion; mainly because DOT is a much more prolific writer of regulations than is DHS.

The Current Agenda

The table below lists the DOT rulemakings on the current agenda that I find interesting. This is a smaller set of interest than I normally follow here in this blog, but I do have some space and reader interest limitations that I need to take into consideration.

FAA	Proposed Rule Stage	Operations of Small Unmanned Aircraft Over People	2120-AK85
FAA	Final Rule Stage	Operation and Certification of Small Unmanned Aircraft Systems	2120-AJ60
FAA	Final Rule Stage	Registration and Marking Requirements for Small Unmanned Aircraft	2120-AK82
NHTSA	Proposed Rule Stage	Federal Motor Vehicle Safety Standard FMVSS 150 -- Vehicle to Vehicle (V2V) Communication	2127-AL55
PHMSA	Proposed Rule Stage	Hazardous Materials: Review and Update of Rail Carrier Regulations in Part 174 RRR	2137-AF07
PHMSA	Proposed Rule Stage	Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains	2137-AF08
PHMSA	Proposed Rule Stage	Hazardous Materials: Real-Time Emergency Response Information by Rail	2137-AF21
PHMSA	Final Rule Stage	Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars	2137-AF17

The FAA

The Federal Aviation Administration (FAA) has 38 rulemakings listed in this version of the Unified Agenda. Unfortunately, none of those seems to address cybersecurity issues. While the FAA, aircraft manufacturers, and airlines are beginning to look at the potential risk from these issues, it does not appear that we are anywhere near regulatory considerations at this point.

I have selected three unmanned aerial system (UAS) rulemakings to include in my table. The first deals with flying small UAS over people and its abstract includes an interesting sentence; “This rulemaking would provide relief from certain operational restrictions implemented in the Operation and Certification of Small Unmanned Aircraft Systems final rule.” That rule prohibited the flying of small UAS over people.

The second rulemaking deals with the regulation of the operation of commercial small UAS. Since this rulemaking is supposed to look at registration and marking of small UAS, I included the third rulemaking which already addressed those issues in an interim final rule. The FAA still intends to issue a final rule on this topic.

NHTSA

The National Highway Transportation Safety Administration (NHTSA) has 25 rulemakings on the Unified Agenda. Only one of those may be of specific interest to readers of this blog, the vehicle-to-vehicle (V2V) rulemaking. That is because of the cybersecurity provisions that may be included in the rulemaking. I addressed these in my blog post on the ANPRM back in 2014; yes, NHTSA moves as fast as the rest of DOT in their rulemaking process.

PHMSA

The Pipeline and Hazardous Material Safety Administration (PHMSA) also has 25 rulemakings listed on the Unified Agenda. I selected four of those that deal, at least tangentially, with crude oil transportation by rail.

The first is a somewhat cooperative venture between PHMSA and the Federal Railroad Administration (FRA). This rulemaking would address results of an FRA study that identified “several trends in industry practices and operating procedures that present new and different risks to safety”. Addressing those risks and just generally updating the regulations regarding the handling of hazardous materials via rail should make for an interesting rulemaking.

The rail oil spill response plan rulemaking is high on the Congressional wish list and they have been applying pressure on PHMSA to complete this rulemaking. As would be expected, similar pressure is being exerted by a variety of environmental and safety activist organizations. Unfortunately, those two pressure points are pushing towards entirely different outcomes in the regulatory schema so I expect that we will see continued delays on this rulemaking.

The third PHMSA rulemaking was dictated by Congress in §7302 of the Fixing America's Surface Transportation (FAST) Act passed last December. It would require the creation of electronic train consists that include the identification of hazardous materials and emergency response information for those materials. Class 1 railroads are already developing/deploying this technology so PHMSA is behind the regulatory power curve.

The last rulemaking was also specified by the FAST Act in sections 7304, 7305, and 7306. In this case Congress was much more specific about what the rule should entail so PHMSA is going with a direct final rule without the publish and comment process to speed up their response to the Congressional requirement. Congress mandated that the final rule be published by May 16^th, 2016, so PHMSA is already late on this rulemaking; no surprise here.

Long-Term Actions

While the DOT Unified Agenda is lengthy, they keep (with the exception of NHTSA) relatively few items on their long-term actions list. Only two items on their list made it to my list of interst:

OST	Protection of Sensitive Security Information	2105-AD59
FRA	Track Safety Standards; Improving Rail Integrity	2130-AC53

The first is included because both DHS and DOT have responsibility for protecting SSI and both have this on their long-term action list. Of course their continued inaction will mean that the SSI program will be more impacted by the National Archives and Records Administration rulemaking on sensitive but unclassified information that is in OIRA review.

At first glance I was severely disappointed to see this new rulemaking listed on the long-term actions page, but after a closer look I am just as confused as I am disappointed. Anyone that has followed the crude oil train issue in any detail will know that a large number of the crude oil train derailments that we have seen have been due, at least in part, by rail integrity issues. This rulemaking should be a priority for the FRA.

What makes me confused is that looking at the rulemaking page it shows that FRA intends to have a notice of proposed rulemaking (NPRM) ‘scheduled’ for June 2016. While I never believe projected dates in the Unified Agenda, that would indicate a fairly short-term long-term action. Oh well.

OMB Approves Revised FRA Accident Report ICR

On Wednesday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved “with change” the information collection request (ICR) from the DOT’s Federal Railroad Administration for changes to their Accident/Incident Reporting and Recordkeeping ICR. The revision requested by FRA would add 30 hours to the annual reporting burden due to the collection of some additional information on accidents including crude oil railcars.

Response to Public Comments

The FRA only received comments from one person (yours truly) on their 60-day ICR notice (see my blog post). They correctly pointed in the supporting document (para 8; .doc download link) that they submitted to OIRA out that the addition of a more detailed reporting form for crude oil related accidents as I suggested would require a separate rulemaking and would thus be outside of the scope of this ICR. They did note that they would “continue to evaluate whether it needs more data as part of a comprehensive, long-term improvement in its information collection activities for the rail transportation of crude oil and the rail transportation of hazardous materials in general”.

This could be included in the High-Hazard Flammable Train (HHFT) oil spill response NPRM submitted earlier this week to OIRA.

OIRA Limits Approval

OIRA took an unusual step with their approval of this change. The previous version of this ICR was due to expire in May of next year. The revised ICR is now set to expire before that date on February 28^th, 2017. OIRA has also set additional requirements on DOT before they request a normal extension of this ICR before that date. These include a requirement for a DOT report on a “joint PHMSA-FRA plan, coordinated with OST, to create a single system for electronically reporting accident information involving trains, pipelines, and hazardous materials and eliminates duplicative reporting requirements”.

There is a possibility (probably remote) that such a plan could be included in the same NPRM mentioned above.

Amendments to S 2012 – 02-03-16

Yesterday there were 45 amendments proposed for S 2012, the Energy Policy Modernization Act of 2015. Of those, one may be of specific interest to readers of this blog:

SA 3236. Mr. WYDEN (D,OR), pg S595;

Energy Train Data Collection

The Wyden amendment would require the Administrator of the Energy Information Administration to collect and make publicly available on the Internet information about the amounts, origination and destination of energy products transported by rail. Those energy products would include {new §3105}:

• Petroleum crude oil;

• Ethanol;

• Liquefied natural gas; and

• Other energy products selected by the Administrator

The level of data required to be collected and publicly posted by this amendment would not be sufficient to allow specific route determinations or shipment timings.

Moving Forward

While the sponsor and cosponsors of this amendment are all Democrats, the proposal is not inherently partisan and Wyden is a senior member of the Senate Energy and Natural Resources Committee. There is a good chance that this amendment could make it to the floor of the Senate for consideration, probably under unanimous consent procedures.

The Senate will vote this morning on a cloture motion on the substitute language that has been under consideration. While there have not yet been any strongly partisan measures added to this language that would specifically draw enough opposition to stop debate, there is a strong move by Sen. Stabenow (D,MI) to hold up consideration of this bill unless language is added (and she has multiple proposed amendments as possible options) to provide funding to assist the city of Flint, MI in dealing with their self-inflicted lead-contaminated drinking water problem.

FRA Publishes Bakken Notification ICR Renewal 60-day Notice

The DOT’s Federal Railroad Administration (FRA) published a 60-day information collection request renewal (ICR) notice in Monday’s Federal Register (80 FR 63272-63275, available on line Saturday) to extend the current ICR (2130-0604) that requires railroads to notify State Emergency Response Commissions (SERCs) about trains carrying 1 million gallons or more

of Bakken crude oil travel. The currently ICR was approved in July to continue through March 31^st, 2016.

The SERC ICR

According to the latest notice:

“FRA is now requesting to continue these information collection activities until the Pipeline and Hazardous Materials Safety Administration (PHMSA) finalizes the Oil Spill Response Proposed Rule that it is currently working on and that will codify the requirements of the Secretary's Emergency Order.”

In the earlier ICR renewal FRA made a similar request for a three year extension of the emergency ICR that was approved to support the Department’s Emergency Order requiring the SERC notification. In approving the extension, the OMB’s Office of Information and Regulatory Affairs (OIRA) only approved it through March 31^st, 2016; noting that:

“Per the joint PHMSA-FRA HHFT final rule (RIN 2137-AE91), the information collection requirements in the May 7, 2014 emergency order remain in effect until March 31, 2016. OMB is therefore approving this collection until that date. FRA may submit a request to continue this collection after soliciting public comment per the PRA's requirements. PHMSA will address the information collection requirements in the HHFT final rule in a subsequent ICR(s).”

The reason that the public comments for the earlier ICR renewal did not count towards this requirement was that those public comments were requested well before the HHFT final rule was published and it was assumed that the HHFT would address the industry concerns about the information being reported to the SERCs.

Other ICRs

The Federal Register Notice also includes two other FRA ICR renewals. They are:

2130-0614 Ballast Defects and Conditions-Importance of Identification and Repair in Preventing Development of Unsafe Combinations of Track Conditions; and

2130-0529 Disqualification Proceedings

The first is a renewal request for an ICR that was approved last month as an emergency ICR supporting FRA Safety Advisory, 2015-04, Ballast Defects and Conditions. FRA is requesting a standard three year renewal of the ICR.

The second is a long standing (first approved in 1992) ICR supporting FRA actions to issue orders disqualifying railroad employees, including supervisors, managers, and other agents, from performing safety-sensitive service in the rail industry for violations of safety rules, regulations, standards, orders, or laws evidencing unfitness.

Public Comments

The FRA is soliciting public comments on these three ICR renewals. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # 2015-0007-N-26). Comments should be submitted by December 18^th, 2015.

Commentary

The abstract supporting the SERC notification ICR uses almost word for word the information provided in the request for the emergency ICR in May of 2014. It does not reflect any new information since that ICR was approved or since the ICR was renewed in July.

It does not take into account the emergency notification requirements set out in the PHMSA-FRA Highly Hazardous Flammable Train final rule that was published last spring. The preamble to that rule contains a lengthy discussion about the most appropriate way for railroads to notify local emergency response planners about the HHFT routes. The conclusion in that rule was that the existing requirement in 49 CFR 172.820(g) were the most appropriate way to proceed.

The other important consideration from the HHFT rule is the change in information protection status of much of the routing information. The addition of HHFT to the other highly hazardous chemicals requiring specific route selection criteria under §172.820(c). Including HHFT trains in route selection program requires that much of the information included in that route selection process {including the final route; §172.820(e)} must be treated as Sensitive Security Information (SSI; 49 CFR 1520).

Because of the conflicts between railroads, SERCs and much of the emergency response community about the distribution of information provided by the railroads to SERCs under the emergency order, the ICR notice should have provided some mention of the SSI status of the information to be provided to the SERCs and the effect that status would have on the redistribution of that information by the SERCs.

It is true that such issues are not normally addressed in ICR notices. But it was clearly the intent of OIRA when they approved just the short extension of the ICR in July that they expected to see a full public discussion of the important issues that surround this ICR. The FRA did a disservice to the public and the regulated community when it chose to ignore these two important considerations in the preamble to the ICR.

The failure to set forth the FRA’s outlook on these two topics means that they have lost any control over that discussion. The inevitable plethora of responses will inevitably delay the preparation of the 30-day notice. The FRA responses to the comments in 30-day notice will ensure that there will be many comments made to OIRA by the industry and affected communities. Those comments will delay the OIRA consideration of the ICR renewal, probably beyond the publication of the new PHMSA emergency response rule that is supposed to ‘resolve’ the controversy around the route reporting requirements.

And that is the final problem with this ICR. The emergency response and reporting requirements are a function of hazardous material safety not railroad operation. PHMSA will be the agency that establishes the final rule for these requirements, not the FRA. That was the second point made by OIRA when they made their short approval of the ICR renewal. And FRA failed to make any arguments that countered that in this ICR notice. If FRA is working with PHMSA on this ICR then that should have been mentioned in the notice.

The FRA should withdraw this 60-day ICR notice and submit one that appropriately addresses all of the issues that affect approving the extension of this collection beyond March 31^st, 2016. Anything less makes a ludicrous joke of the ICR approval process.

NOTE: A copy of this blog post was submitted as a comment to the Docket on this ICR on 10-25-15 at 11:30 CDT.

FRA Publishes 30-day ICR for Accident Reporting Form

Today the DOT’s Federal Railroad Administration published a 30-day information collection request (ICR) notice in the Federal Register for changes that it is proposing to make to their accident and incident reporting requirements for accidents involving crude oil trains. The 60-day ICR was published in April and I submitted comment to that ICR based upon a blog post made a few days before that were based on a draft version of the ICR that was published along with the FRA’s Emergency Order 30.

I mentioned my comment submission because a large portion of today’s ICR notice is taken up with the FRA’s responses to my comments (though they did get my first name wrong – Patrick not Peter).

The FRA somewhat agreed with my suggestion that an entirely new form would be needed to collect the data needed for a complete analysis of the crude oil train accidents. They noted that that was beyond the scope of the current ICR (which legitimately was for a revision to an existing reporting requirement) and reported that they intend “to continue considering other options for gathering additional information concerning rail cars carrying crude oil (and other hazardous materials) involved in reportable accidents”.

That was the only positive response to my comments. In response to my comment about their handling of residue cars the same as filled railcars, they noted that they were already doing that for all other railcar reporting requirements on the form. And to my complaint about the lack of data collection about railcar types and failure rate analysis they responded that would be considered in future rulemaking activities as well.

The FRA is soliciting public comments upon this ICR submission. Comments should be submitted to the OMB’s Office of Information and Regulatory Affairs (OIRA) by September 11^th, 2015 and may be submitted via email (oira_submissions@omb.eop.gov).

NOTE: While my suggestions and comments were not actually adopted in this instance, at least my comments were heard and considered. I urge anyone with an interest in Federal regulatory affairs to take any opportunity that is provided to respond to the governments. You may not get to see the changes you want to be made, but it is probably the only way that an individual American is going to have a direct chance to influence Government without spending a ton of money.

FRA Announces Final Rule for Securement of Unattended Equipment

Yesterday the DOT’s Federal Railroad Administration announced that it had submitted their final rule for the securement of unattended equipment to the Federal Register for publication. The announcement also included a link to download a copy [.PDF download] of the rule submitted to the FR. This rule will supersede and modify the provisions of FRA Emergency Order #28 issued after the Lac-Megantic Railroad disaster.

I will not be doing a detailed review of this rule today since the copy available is not the ‘official’ copy of the rule. This means that I cannot provide links to specific portions of the rule in my discussion nor will I be able to give specific dates for the bills effective and compliance dates. It is not currently scheduled to be published in tomorrow’s FR, so I expect that it will be published sometime next week.

The notice of proposed rulemaking was published for this rule in September of last year. Nine public comments were submitted in response to the NPMR.

NOTE: This final rule was not submitted to OMB for review, neither was the NPRM.

Crude Oil Trains and Terrorists

In researching my post on Saturday about the OMB’s extension of Bakken train notification ICR I had a chance to read the joint comments [.PDF download] submitted about that ICR extension by the Association of American Railroad (AAR) and the American Short Line and Regional Railroad Association (ASLRRA). The authors had requested that the OMB keep the comments confidential because of the inclusion of two documents marked For Official Use Only (FOUO). For some reason the Office of Information and Regulatory Affairs (OIRA) did not honor that request.

The Documents

The titles of the two documents are listed below (sorry no links are available):

∙ (U//FOUO) Increased Use of Railways to Transport Crude Oil May Lead to Acts of Environmental Extremism, FBI Private Sector Advisory, July 18, 2014; and

∙ (U) Situational Awareness: Potential Threat to Freight Rail, TSA Intelligence Note, March 31^st, 2014

The reason that they were included in the AAR/ASLRRA comments can be summed up by a quote from the FBI Advisory:

“Extremists may use publically available information to identify potential transportation routes or to target new or existing terminals, facilities, businesses, or funding entities associated with the oil industry through actions intended to cause economic losses.”

The AAR/ASLRRA comment on the ICR made the point that based on this information and that found in the TSA intelligence note, that routing information should be considered Sensitive Security Information and thus protected from public release. While the DOT has made highly-hazardous flammable train (HHFT) routing information SSI, the reporting requirements of that provision will not take effect until April 1^st 2016.

Environmental Activists

Most people in the environmental activist community have two reasons to object to the continuing use of unit oil trains. First is their opposition to the use of crude oil products for energy purposes as they contribute to the increasing concentration of CO₂ in the atmosphere; both when it is produced and transported and when it is used as an energy source. Secondly, they are concerned about the effects on the environment of the spills and fires that accompany crude oil train derailments.

Typically the types of actions that they take to express their opposition include letter writing campaigns on regulations like the recent HHFT regulations (something like 90,000+ comments were submitted), media campaigns, and civil disobedience type activities like those seen last week.

As with any large group of activists (and the environmental movement is quite large and well funded) there is a small subset that is no longer satisfied with the progress that is being made by legal action and civil disobedience. It is this fringe element that the FBI was addressing in their advisory. Even those fringe elements are unlikely to try to cause a derailment that could result in an oil spill/fire.

I would not be surprised to hear that these extreme elements might try to cause damage to tracks or trains that would stop or delay the delivery of crude oil. My concern would be that because of a basic misunderstanding of the physics of train operations that they would do some sort of damage with the intent of stopping a train that would actually derail a train because the crew did not have enough time to safely stop the train.

Terrorists

There is a very small subset of the fringe of the environmental activist community that would feel justified in creating a local environmental catastrophe if it would lead to the shutdown of the crude oil trains. Most of these environmental terrorists have taken on relatively small targets with arson attack (car dealerships and expensive vacation developments). A derailment attack on a crude oil train would be a major escalation for these folks.

The TSA Note points at a more likely terrorist attacker, those trained by the Islamic State (IS). The Note shows an improvised explosive device that would seem to be designed for this type of attack; a magnetic sticky bomb. These devices have been captured in India where they were intended to be deployed against rail tank cars. There are no reports of attacks where they have actually been used and I have my doubts about their utility against even DOT 111 tank cars for a number of technical reasons.

Having said that, it is clear that rails are susceptible to any number of derailment type attacks that have been employed in various places around the world. Almost any of these types of attacks could be employed against a crude oil unit train with fairly spectacular results.

Fortunately to date the IS related attacks or planned attacks in this country have been conducted or planned by IS wannabes, not actual trained IS operatives. The type of people that we have seen in these operations have been ill-equipped by training or experience to conduct an effective attack on a crude oil train. Until we see IS or other jihadi extremist group start exporting trained teams to the United States it would seem unlikely that the crude oil trains would be targeted by their US grown compatriots.

OMB Approves Extension of Bakken Train Notification ICR

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the extension of DOT’s information collection request supporting the Secretary’s May 7^th, 2014 Emergency Order concerning notification requirements for trains carrying one million gallons of Bakken crude oil. The Department had asked for a three year extension of the ICR, but OIRA only approved the extension until March 31, 2016.

The ICR extension made some minor changes to the expected annual burden estimates (increased the number of responses by 10 and decreased the hours burden by 5). The reasons for the changed estimate are explained in paragraph 15 of the supporting document [.DOC download] provided to OIRA.

EO and HHFT Reporting Requirements

The reporting requirements in the EO are substantially different than the notification requirements in the new HHFT final rule published earlier this year. The EO requires railroads to notify State Emergency Response Committees (SERCs) of routing information for any train carrying 1 million gallons of crude oil that originated in the Bakken basin.

The HHFT final rule superseded this requirement (as of April 1, 2016) by adding the any HHFT train to the list requiring the additional route planning requirements of 49 CFR 172.820. That regulation requires sort of a backdoor notification to affected Fusion Centers and local officials “who directly contact the railroad to discuss routing decisions” {§172.820(g)}. That reporting requirement is to simply provide a point of contact information for the railroads for HHFT routing information.

The detailed discussion in the HHFT final rule preamble makes it clear that one of the main reasons that DOT did not continue the requirement to report this data to the SERTs was their concern that some states had released the information under local open records requirements to anyone that requested the information. Using the notification process under §172.820 would restrict the release any routing information to persons with a need to know under the Sensitive Security Information provisions of 49 CFR 15 and 49 CFR 1520.

The DOT Secretary continued the current EO reporting requirements until March 31, 2016 because the full reporting requirements under the provisions of the HHFT rule do not start until April 1^st, 2016, after railroads have a chance to complete their initial route analysis for HHFT shipments.

Emergency Response Information

Neither of these documents really provides emergency response information to communities. The EO did require direct contact between the railroad hauling unit trains of Baaken crude oil, but there was little or no mention of actual emergency response information. This is addressed in the ICR submitted to OIRA. DOT reported that “PHMSA is now working on a new Oil Spill Response Proposed Rule that will codify the requirements of the Secretary's EO”.

PHMSA published the advance notice of proposed rulemaking for that rule last summer with no solid indication of when an NPRM will be published. There are two bills in the Senate (S 859 and S 1626) and possibly another (S 1732) that could have an impact on this rulemaking activity. In any case, it is clear that a new regulation will not be in place by the time that the current EO expires.

S 1626 Introduced – Rail Safety

NOTE: I did not report this bill when it was introduced on June 18^th because the introduction title clearly stated that it was a bill to “reauthorize Federal support for passenger rail programs”. I should have gotten suspicious about the “and for other purposes” tagged on at the end of the title. Then, listening to the Senate Commerce, Science and Transportation business meeting on June 25^th, it became clear that the bill also included crude oil train provisions.

Two weeks ago Sen. Wicker (R,MS) introduced S 1626, the Railroad Reform, Enhancement, and Efficiency Act. The vast majority of the bill deals with passenger rail issues which I don’t intend to cover in this blog. There are, however, three sections in Title IV, Rail Safety, that do directly apply to freight railroads. Those sections deal with:

∙ Confidential close call reporting system;

∙ Technology implementation plans; and

∙ Emergency response.

Confidential Close Call Reporting System

Section 402 would require the Secretary of Transportation to establish regulations to “encourage and facilitate the voluntary participation of railroad carriers, railroad carrier contractors, and employees of railroad carriers or railroad carrier contractors… in a confidential close call reporting system” {§402(a)}. Generally speaking this would be patterned after the aviation community’s close call reporting system. There are a lot of details involved that I don’t intend to go into.

Technology Implementation Plans

Section 407 would amend 49 USC 20156(e)(4) by adding a new subparagraph (c).  This would require each carrier required to submit a positive train control (PTC) plan to “analyze and, as appropriate, prioritize technologies and practices to mitigate the risk of overspeed (sic) derailments”. While this would appear to be a specific reaction to the latest Amtrak accident, it would directly affect all of the Class 1 railroads who are also implementing PTC; actually implementing PTC over more track than the passenger rail operations.

Emergency Response

Section 409 would require the Secretary to conduct a study to “determine whether limitations or weaknesses exist in the emergency response information carried by train crews transporting hazardous materials” {§409(a)}. Specifically the study will look at any differences between the current PHMS Emergency Response Guide (ERG) Book and the emergency response information carried by train crews. The inevitable report to congress on this study is supposed to include recommendations for legislative actions.

Committee Mark-Up

As I mentioned earlier this bill was marked up by the Senate CST Committee last week with a number of amendments offered and approved by voice votes with no discussion. Two of those amendments added requirements specifically affecting freight railroads; an amendment by Chairman Thune (R,SD) and an amendment modifying that amendment offered by Sen. Manchin (D,WV).

The Thune amendment (and the subsequent Manchin amendment) added a new Subtitle C, Hazardous Material by Rail, to Title IV. Some of the sections in this subtitle only apply to passenger railroads (I know, it doesn’t make sense) so I will ignore those, but those actually dealing with hazmat shipments by rail include:

∙ Real-time emergency response information;

∙ Thermal blankets;

∙ Comprehensive oil spill response plans;

∙ Hazardous materials by rail liability study;

∙ Study and testing of electronically controlled pneumatic (ECP) brakes; and

∙ Modification reporting.

Real-Time Emergency Response Information

Section 431 would require the Secretary to establish regulations for Class 1 railroads to “generate accurate, real-time and electronic train consists” {§431(a)(1)(A)}. Those railroads would also have to enter into a memorandum of understanding with ‘each applicable fusion center’ to provide secure and confidential access to those train consists. Those fusion centers would be required to provide those train consists to “first responders, emergency response officials and law enforcement personnel” {§431(a)(2)} requesting that information in the event of “an incident, accident, or public health or safety emergency” involving those trains.

The regulations would also be required to establish “security and confidentiality protections to prevent the release of electronic train consist information to unauthorized persons” {§431(a)(4)}.

Voluntary sharing of the same information by railroads with State emergency response commissions or emergency personnel would not be prohibited in the required regulation.

Thermal Blankets

Section 432 would require the Secretary to establish a regulation requiring all DOT 117 and DOT 117R railcars to be equipped with a thermal blanket between the tank shell and the tank jacket. Current tank cars with existing thermal blankets would not have to be modified to meet the thermal blanket standards set forth in this section.

Comprehensive Oil Spill Response Plans

Section 433 would require the Secretary to publish an NPRM requiring railroads “transporting Class 3 flammable liquids to have a comprehensive oil spill response plan” {§433(a)}. This would apparently be separate from the oil spill response plans required under 33 USC 1321(j)(5) as there is no mention of the Oil Pollution Act of 1990 in this section. This section certainly expands the requirements of the OPA since there is no mention of a minimum container size and it is applicable to any Class 3 flammable liquid. And once again, there is no mention of fire fighting in this bill, just spill containment and cleanup.

Presumably the bill requires the quick publication of an NPRM because PHMSA published an advance notice of proposed rulemaking (ANPRM) last year. There is a difference between that ANPRM and this section, the ANPRM applied to HHFT trains only.

Hazardous Materials by Rail Liability Study

Section 434 would require the Secretary to initiate a study looking at “the levels and structure of insurance for a railroad carrier transporting hazardous materials” {§434(a)}. This should be an interesting study because railroads have long maintained that they could not get adequate coverage for transporting the most hazardous substances like toxic inhalation hazard (TIH) chemicals. There is, of course, the mandatory report to congress.

Study and Testing of Electronically Controlled Pneumatic Brakes

Section 435 would require the Government Accounting Office to do a comprehensive review of the data available to the DOT on ECP brakes. Additionally the bill would require the Secretary to enter into an agreement with  the National Cooperative Rail Research Program (NCRRP) to do “complete testing of ECP brake systems during emergency braking application, including more than 1 scenario involving uncoupling of a train with 70 or more DOT 117-specification or DOT 117R-specification tank cars” {§435(b)(1)(A)}.

Funding for the NCRRP testing would come from the rail cooperative research program (49 USC 24910). Since they are supposed to crash at least four trains Thune expects that this may exceed the amount authorized for that program, so any additional funds would have to come out of the “amounts appropriated to the Office of the Secretary” {§435(b)(4)(B)}.

Since ECP brakes are already required under the new HHFT regulations, this section would require the Secretary to modify those requirement (within 60 days of the bill being adopted) to provide a two phased approach to ECP brake system requirements. The first phase would require that all DOT 117 and DOT 117R railcars be constructed to “have an ECP-ready configuration” if they are to be used “in high-hazard flammable unit train service” {§435(c)(1)}.

The second phase would occur after the ECP brake study is completed and the Secretary considers the second phase necessary. The second phase would essentially be the current final ECP brake requirements from the new HHFT regulations.

Thune does not define HHFUT the same as the Secretary defined HHFT in the new regulation. HHFUT would be any train “transporting 70 or more loaded tank cars containing Class 3 flammable liquid” {§435(f)(6)}.

Modification Reporting

The Manchin amendment would add §438 to the Thune amendment. It would require the Secretary to establish a reporting requirement “to monitor industry-wide progress toward modifying tank cars used in high-hazard flammable train service by the applicable deadlines or authorized end dates set in regulation” {§438(a)}. Interestingly, Manchin does use the current HHFT definition in this section.

Moving Forward

Senator Thune clearly intends to get this bill on the floor of the Senate as quickly as possible and there is broad bipartisan support to do so in the Committee. In fact a couple of more controversial amendments were withdrawn to make it easier to get the bill to the floor of the Senate. They will, of course, be offered as amendments on the floor. This will be a bill that a number of people would attempt to amend so it is difficult to predict whether or not it could ultimately be passed. More high profile accidents in either freight or passenger rail service will make it easier to pass.