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.

PHMSA Publishes Train Consist ANPRM

Earlier this week the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published an advance notice of proposed regulation (ANPRM) in the Federal Register (82 FR 6451-6456) concerning electronic train consists for Class 1 railroads that transport hazardous materials. This rulemaking supports a congressional mandate from the Fixing America's Surface Transportation (FAST) Act of 2015 (§7302, PL 114-94).

Section 7302 required the DOT Secretary to issue these regulations within one year of the passage of HR 22 which occurred on December 4^th, 2015. This would authorize DOT to go directly to a final rule. Instead DOT is publishing this ANPRM to gather data to support the Regulatory Impact Analysis (RIA) of this rulemaking.

PHMSA is asking four categories of questions to provide the requisite information. The categories are:

• Affected entities questions, 3 questions;

• Baseline questions, 11 questions;

• Implementation questions, 8 questions;

• Costs questions, 8 questions; and

• Benefits questions, 3 questions.

 PHMSA is requesting public comment on this ANPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2016-0015). Comments should be submitted by April 19^th, 2017.

Political Note: While President Trump has issued a directive to all Federal agencies to suspend rulemaking activities pending approval of his appointees, that should not be expected to stop this rulemaking. The FAST Act was passed by a Republican-controlled Congress that mandated that this rulemaking should proceed. The Trump administration is unlikely to stop this rulemaking and is legally obligated to proceed with this action.

PHMSA Sends FAST Act Rail Final Rule to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a final rule for review from DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA). The direct final rule (no prior publish and comment activity) implements Congressional mandates from the Fixing America’s Surface Transportation (FAST) Act of 2015 (HR 22 – PL 114-94).

According to the Spring 2016 Unified Agenda, the provisions in this rule include:

• A new phase-out schedule for DOT-111 specification tank cars, including DOT-111 tank cars constructed to the Casualty Prevention Circular (CPC) 1232 (CPC-1232) industry standard, used to transport unrefined petroleum products e.g., petroleum crude oil, ethanol, and other Class 3 flammable liquids, irrespective of train composition {§7304};

• That each tank car built to meet the DOT-117 specification, and each non-jacketed tank car retrofit to meet the DOT-117R specification, be equipped with an insulating blanket with at least -inch-thick material that has been approved by the Secretary pursuant to 49 CFR 179.18(c) {§7305}; and

• Minimum top fittings protection requirements for tank cars retrofit to meet the DOT-117R specification {§7306}.

OIRA has a large number of final rules under consideration so there is no telling when this bill will be approved for publication in the Federal Register.

PHMSA Withdraws Wetlines Rulemaking

Today the DOT’s Pipeline and Hazardous Material Safety Administration published a notice in the Federal Register (80 FR 81501-81503) withdrawing its rulemaking action with regards to tank truck wetlines. The notice of proposed rulemaking initiating this rulemaking was published in the Federal Register (76 FR 4847-4854). The rulemaking is being withdrawn at the direction of Congress {§7206 of the FAST Act (PL 114-94 which has not yet been printed)}.

The proposed rule would have prohibited the transportation of flammable liquids “in unprotected product piping (generally referred to as the ‘wetlines’) on the cargo tank of existing and newly manufactured DOT specification cargo tank motor vehicles”. The transportation of any material

that is a Division 6.1 (poisonous liquid) material, oxidizer liquid, liquid organic peroxide or corrosive liquid in wetlines is already prohibited by 49 CFR 173.33(e).

The notice does include most of the standard analysis that PHMSA would have done in support of a final rule on this rulemaking. It includes a review of the comments received on the NPRM as well as a revised cost-benefit analysis of the proposed rulemaking. Independently of the Congressional mandate PHMSA concluded that the proposed rule “prohibiting the transportation of flammable liquids in wetlines is unlikely to be cost beneficial”.

PHMSA does note that it “will continue to examine this issue, particularly by monitoring flammable liquid wetlines incidents, in consideration of any future actions”.

Because this was a Congressionally mandated action and PHMSA has no discretion in the matter, public comments were not solicited.

HR 22 Conference Report Agreed to in House

This afternoon the House agreed to HR 22 (the FAST Act) Conference Report by an overwhelmingly bipartisan vote of 359 to 65. All of the dissenting votes came from Republicans. A similar vote is expected in the Senate before the December 4^th deadline.

HR 22 Conference Report Rule

This afternoon the House Rules Committee met to craft the rule for the House consideration of the Conference Report on HR 22, the Fixing America’s Surface Transportation (FAST) Act. The rule provides for one hour of debate and a single vote on the bill. Consideration of the bill will probably take place tomorrow. An official summary of the bill is available.

Provisions of Interest

The Conference Report provides new language for HR 22 that combines portions of both the House and Senate passed versions of the bill. The 1317 page bill contains a large number of provisions but only 15 would be of specific interest to readers of this blog:

Sec. 1407. Vehicle-to-infrastructure equipment [Grant program].

Sec. 7201. National emergency and disaster response [Waiving compliance].

Sec. 7206. Wetlines [Withdraw proposed rule].

Sec. 7301. Community safety grants [Training grant program].

Sec. 7302. Real-time emergency response information.

Sec. 7303. Emergency response [GAO study].

Sec. 7304. Phase-out of all tank cars used to transport Class 3 flammable liquids [Revised phase-out schedule].

Sec. 7305. Thermal blankets [For DOT 117 and DOT 117R].

Sec. 7306. Minimum requirements for top fittings protection for class DOT–

117R tank cars.

Sec. 7307. Rulemaking on oil spill response plans [Congressional reporting requirement].

Sec. 7308. Modification reporting [DOT 117R conversion reporting to Congress].

Sec. 7309. Report on crude oil characteristics research study [Report to Congress].

Sec. 7310. Hazardous materials by rail liability study [Report to Congress].

Sec. 7311. Study and testing of electronically controlled pneumatic brakes [GAO study].

Sec. 61003. Critical electric infrastructure security.

Most of these provisions are relatively short and easy to understand. Two of them, however, are more complex; §7302 and §61003. Fortunately, I have addressed both of these is some detail as in earlier blog posts.

The §7302 requirements were originally included as §7012 in HR 3763; it would require that regulations implementing the SERC oil-train notification requirements would specifically outline what information would be protected from public disclosure as Sensitive Security Information.

The §61003 requirements were originally included in HR 2271 and then modified as §1104 of HR 8 (and still remain in that bill). This would officially establish Critical Energy Infrastructure Information (CEII) as an official Controlled Unclassified Information which would receive special treatment under the new CUI regulations being promulgated by the National Archives and Records Administration.

Moving Forward

This Conference Report will almost certainly be approved by both the House and Senate by substantial bipartisan majorities and the President has indicated that he intends to sign the bill.