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.