Review - HR 3935 Introduced – FAA Reauthorization

Last week, Rep Graves (R,MO) introduced HR 3935, Securing Growth and Robust Leadership in American Aviation Act. This is the latest FAA reauthorization act. The bill includes two unmanned aircraft system (UAS) provisions of interest here; an expansion of the critical infrastructure designation requirements and a rulemaking requirement for carriage of hazardous materials by UAS.

Moving Forward

The House Transportation and Infrastructure Committee is meeting today to mark-up this bill. This is one of the ‘must pass’ bills that will be taken up by the full House under a rule. Once the Committee publishes their report on the bill, it will be cleared for consideration. It will probably not make it to the floor before the summer recess.

 

For more details about the provisions of this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-3935-introduced - subscription required.

CG Notice Withdraws Frack Water Barge Shipment Policy Letter

Today the Coast Guard published a notice in the Federal Register (81 FR 8976-8978) withdrawing its proposed policy letter concerning the carriage of shale gas extraction waste water (SGEWW) in bulk via barge that was published in October of 2013. The Coast Guard will continue to approve such shipments on a case by case basis.

The Coast Guard regulations for transporting hazardous bulk liquid cargoes by barges are covered under 46 CFR Parts 151 and 153. SGEWW is not one of the listed products in §151.05 so any shipments of that material are required (§151.05-15) to obtain specific permission from the Commandant before it can be shipped by barge. The proposed policy letter would have set forth a standard procedure for requesting that approval.

The only reason given for the withdrawal of the proposed policy letter is that the low number of requests for approval to-date indicate a relative lack of interest on the part of the industry. The notice indicates that the Coast Guard will continue to collect information from the requests it has/will receive and re-evaluate the need for guidance documents or additional regulation at some future date.

Commentary

There is a discussion in the notice about the comments that the CG did receive during the comment period for the original notice. Over 70,000 comments were received with more than 68,000 coming in an organized campaign of form letters. The Coast Guard noted that those form letters expressed opposition to the policy letter but failed to offer “input regarding the substance of transporting SGEWW in bulk as described in the policy. In short the campaign was targeted at opposing fracking (which is outside of the control or regulation of the Coast Guard) rather being concerned with the safe transportation of the SGEWW.

The people behind these types of response campaigns to regulatory issues know full well that failure to address the specific issues involved in the proposed regulations/guidance means that the responses will largely be ignored by the regulatory agency. This is especially true when the issues raised in the form letters are not under the control of the agency soliciting public input. All this means is that the organizing entity is not really trying to influence government policy but is simply trying to raise money to keep their organization funded by appearing to address the concerns of its constituents.

Now there is nothing inherently wrong with organizing a letter writing campaign. In fact, a smaller campaign with only 140 signatories did raise specific issues with the policy letter and suggested that a rulemaking process might be better suited to this situation. The CG disagreed with that final point, but did agree with other points raised in the letter and noted that they would take them into consideration during the on-going case-by-case approval process.

Congressional Hearings – Week of 04-10-15

Both the House and Senate will be back in Washington after a long two week spring break. The committee calendars are on the light side, particularly in the Senate. That may be due to slow posting of committee meetings, however. There are four hearings this week that may be of specific interest to readers of this blog: one hazmat transportation, two cybersecurity and one that will deal with MTSA activities.

DOT Regulations Update

The Subcommittee on Railroads, Pipelines, and Hazardous Materials of the House Transportation and Infrastructure Committee will be holding an oversight hearing on Tuesday on ongoing DOT rail, pipeline and hazmat rulemakings. Two acting administrators (FRA and PHMSA) and the NTSB Chair will be witnesses.

The Committee Staff has put together a nice overview document for the hearing. Topics of interest will include:

∙ Automatic and Remote-Controlled Shut-Off Valves for New Transmission Pipelines;

∙ Maximum Allowable Operating Pressure;

∙ Integrity Management;

∙ Leak Detection;

∙ DOT “High-Hazard Flammable Train” Rule;

∙ Special Permits and Approvals;

∙ Hazardous Materials Safety Permits; and

∙ Tank truck wet lines

This will probably be a pretty contentious hearing. Interesting side note; the Staff report notes that the HHFT rule is due to be published May 12^th. We will have to wait and see how that works out.

Cybersecurity Markups

This week there will be markup of two draft cybersecurity bills; both on Tuesday. The first will be another information sharing bill (National Cybersecurity Protection Advancement Act of 2015). This will be a full committee markup by the House Homeland Security Committee. The second is a breach notification bill (Data Security and Breach Notification Act of 2015). This will also be a full committee markup, this time by the House Energy and Commerce Committee and it will include two other bills so a two day hearing is scheduled.

There are some interesting differences between this bill and the other introduced earlier. It does not specifically include industrial control systems in the definition of ‘information system’, but it does specifically make the DHS ICS-CERT the agency responsible for sharing control system security information. I’ll have more information on all of these bills in a later post.

At present there is nothing in the breach notification bill that applies to control systems since it only deals with breaches where personally identifiable information is involved. I’ll watch the approved amendments to see if anything expands that to include control system information.

Coast Guard Mission

On Wednesday the Subcommittee on Coast Guard and Maritime Transportation of the House Transportation and Infrastructure Committee will be holding an oversight hearing on the mission of the Coast Guard. The only witness scheduled is Deputy Commandant for Operations. The Committee Staff has again produced an overview document.

An interesting point made in this document is that the ‘Ports, Waterways and Coastal Security’ mission of the Coast Guard is the most costly in terms of spending and ‘resource hours’. Given this fact it is interesting to note that of all Homeland Security Missions PWCS has had the history of meeting its operational metrics. In fact of the six sub-missions listed for PWCS only one had not successfully met its operations performance measures in 2013; Security Compliance Rate for High Risk Maritime Facilities (the MTSA program). It will be interesting to hear more about the problems in this program.

Hazardous Materials Information Advisory Committee

As I previously noted Rep Lipinski (D,IL) introduced HR 505, the Developing Standards for Electronic Shipping Papers Act of 2015. This bill would require the Secretary of Transportation to form a Hazardous Materials Information Advisory Committee (HMIAC) to develop interim voluntary standards for hazardous materials electronic shipping papers while DOT is going through the rule development process outlined in MAP 21 (49 USC 5121 Note).

The Congressional findings section of the bill (§2) notes that §33005 of the MAP 21 legislation (PL 112-141) passed in 2012 required DOT to undertake a number of pilots of possible electronic shipping papers and then to develop appropriate rulemakings to institute national standards. According to the bill the pilots are not scheduled to be completed until October of this year meaning that it will be a while (years?) before a national standard is developed.

The HMIAC described in this bill would be tasked with developing an interim voluntary standard. It would be given 120 days to publish this standard. This development would include {§4(c)}:

● Development of a voluntary standard for the use of electronic shipping papers until a rulemaking has been completed;

● Establishment of a standardized curriculum for training first responders and enforcement officials in the use of electronic shipping papers and other alternative means of communicating hazardous materials information;

● Providing recommendations and best practices for the use of electronic shipping papers by first responders in varying circumstances and locations;

● Providing recommendations and best practices to assist persons transporting hazardous materials in commerce in implementing electronic shipping papers; and

● Assessing potential issues during deployment phases, including first responder training, technology procurement issues and budget limitations, and biometrics.

Congressman Lipinski is a fairly senior Democrat on the House Transportation Committee so this bill cannot be completely discounted, but it will be an uphill fight to get this bill considered by the Committee. There is nothing that I see in the bill that would necessarily cause any anguish for the Republican leadership so this bill would stand a good chance of passing in both the House and Senate if it were brought to the floor.

PHMSA Publishes Final Rule on Adoption of SP into HMR

Today DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a final rule in the Federal Register (79 FR 15033-15046) adopting selected Special Permits and Competent Authority listings into the Hazardous Materials Regulations (HMR). This action changes certain exceptions to the rules to being part of the rules.

PHMSA is incorporating all of the Special Permits (SP) listed in the NPRM into the HMR with only one change:

SP 9275 - Shipments of ethyl alcohol in quantities of 8 ounces or less are not required to be marked with the words `contains ethyl alcohol'.

PHMSA also adopted the proposed change to §175.34 that will make the following Special Permits unnecessary: 14903, 14908, 15062, 15075, 15076, 15077, 15078, 15079, 15092, 15094, 15095, and 15143.

The four Competent Authority approvals of packagings proposed in the NPRM are being adopted into the HMR without change.

Finally the proposed revision to §107.705(c) that would allow SP approval holders to continue to use an expired SP while PHMSA continues to review the extension application if the holder applied for an extension at least 60-days prior to the expiration of the SP has been incorporated into the HMR.

The effective date for this rule is April 17^th, 2014.

Coast Guard Publishes Two ICR Notices

Today the Coast Guard published two information collection request (ICR) notices in the Federal Register. The first (78 FR 65351-65352) was a 60-day ICR notice and the second (78 FR 65349-65351) was a 30-day ICR Notice. The notices covered the following ICRs (the first one is the 60-day ICR notice):

• 1625-0025: Carriage of Bulk Solids Requiring Special Handling

• 1625-0074, Direct User Fees for Inspection or Examination of U.S. and Foreign Commercial Vessels; 

• 1625-0084, Audit Reports under the International Safety Management Code and 

• 1625-0093, Facilities Transferring Oil or Hazardous Materials in Bulk

All of these ICRs are renewals. Only the first and last notices may be of specific interest to readers of this blog.

Bulk Solids ICR

This ICR covers the submission of special permits for the safe carriage for unlisted materials. The only change noted in this ICR request is that the “estimated burden has increased from 745 hours to 955 hours a year due to an increase in the estimated annual number of responses for Special Permits”.

The previous ICR approval shows that the number of responses and the number of hours for the burden are the same. This indicates that the Coast Guard estimates that the average time to complete special permit request is one hour.

Bulk Transfer ICR

This ICR covers the filing of a letter of intent to operate a facility that will transfer bulk oil or hazardous materials to or from vessels and the maintenance of an Operators Manual for such a facility. The Coast Guard notes that the “estimated burden has decreased from 84,247 hours to 45,748 hours a year due to a reduction in the estimated annual number of respondents”.

The previous ICR approval shows 2,667 annual responses for an average burden per response of about 31.6 hours, presumably most of this is for the production and maintenance of Operators Manuals not writing letters of intent. Keeping the same ratio of manuals to letters we can assume that the Coast Guard is only expecting about 1448 responses per year.

Public Response

The Coast Guard is soliciting public responses on the accuracy of its assumptions and the need for these ICRS. The responses to the 60-day notice may be filed via the Federal eRulemaking Portal (www.Regulations.gov; Docket # USCG-2013-0861) and must be submitted by December 30^th, 2013. The responses to the 30-day notice need to be sent directly to the Office of Management and Budget (OMB) and may be sent by email (OIRA-submission@omb.eop.gov) by December 2^nd, 2013.

CG Publishes Final Rule for Bulk Packaging

The Coast Guard published a final rule in the Federal Register (78 FR 54775-54788) concerning the transfer of hazardous materials to and from bulk packaging on vessels. This rule amends 46 CFR §98.30 and §93.33 to permit newer portable tanks and some IBCs to be used without special approval.

The changes made by this final rule include:

• Inserting a new §98.30-6 authorizing the use of IBCs for the carriage of certain hazardous materials on board a vessel;

• Clarifying lifting point requirements for IBCs; and

• Allowing the use of manifolds for the transfer of hazardous materials to or from a vessel only when all attached packaging units are equipped with an automatic shutoff valve or other automatic means of closure that will activate during an emergency;

The effective date of this regulation is December 5^th, 2013.

OMB Approves PHMSA Shipping Paper ICR Update

Yesterday the Office of Management and Budget (OMB) approved the revision of the information collection request (ICR) supporting Pipeline and Hazardous Material Safety Administration’s (PHMSA) hazardous material shipping papers requirements. This ICR was submitted in January 2011 as part of PHMSA’s revision (HM-215K) of the Hazardous Materials Regulations (HMR) supporting harmonization of US hazmat regulations with various international regulations.

PHMSA ICR Change Requested

In the Preamble to that regulation revision PHMSA explained that (76 FR 3341):

“This final rule may result in a decrease in the annual burden and costs of OMB Control Number 2137–0034 due to amendments to the exceptions for shipping paper requirements for limited quantities of Class 3, Division 4.1, Division 4.2, Division 4.3, Division 5.1, Division 5.2, Division 6.1, Class 8, and Class 9 materials for those limited quantities that are defined as consumer commodities.”

PHMSA went on to delineate the expected reductions (the numbers in the brackets apply those changes to the previously approved ICR numbers).

• Decrease in Number of Responses 75,000,000 [185,000,000]

• Decrease in Annual Burden Hours 1,875,000 [4,625,834]

• Decrease in Annual Burden Costs $1,875,000.00 [4,635,000]

It is interesting to note that PHMSA figures industry only spends a little over $1.00 per hour filling out HAZMAT shipping papers. While that is certainly an underestimate, they also figure that it takes almost 40 hour to fill out the same paperwork. That doesn’t seem right either.

OMB Change Approved

In the almost 22 months that it took OMB to approve this ICR, they made some changes in the numbers for the burden they expected industry to bear because of this revision of the HMR. No explanation is provided for those changes. First OMB decided that there would be no changes in the number of shipping papers completed. Then they decreased the number of hours the change reduced the burden on industry by two (2) hours to a total of 4,625,846. Finally, OMB decided that industry spends no money in completing shipping papers, reducing the cost burden to $0.

It would be interesting to see a justification by OMB of the 22 months that it took to approve this ICR. Even more interesting would be the justification for the changes that OMB made in that time period.

PHMSA Publishes NPRM to Harmonize HMR

Today the Pipeline and Hazardous Material Safety Administration published a notice of proposed rulemaking (NPMR) in the Federal Register (77 FR 49167-49276) with a proposal to update the Hazardous Materials Regulations (HMR) to bring it more in line with current international rules and regulations. This is part of an ongoing effort at PHMSA to ensure that US industries do not face unnecessary regulatory hurdles in conducting international business.

In this NPRM PHMSA proposes to:

• Incorporate by reference the newest versions of various international hazardous materials standards {77 FR 49168};

• Adopt changes throughout the Part 173 packaging requirements to authorize more flexibility when choosing packages for hazardous materials {77 FR 49169};

• Revise, consolidate, and delete various vessel stowage codes;

• Incorporate a new packaging definition, operational controls, performance-oriented standards, and testing requirements for Flexible Bulk Containers (FBCs);

• Revise the HMT to include entries for chemical under pressure as well as incorporate other safety requirements including but not limited to packaging requirements, segregation requirements, quantity limitations, and filling limits;

• Add specific size requirements for identification number (i.e., “UN”, “NA”, “ID”) markings as prescribed in § 172.301 for non-bulk packages; and

• Amend the § 172.101 Hazardous Materials Table (HMT) to add, revise, or remove certain proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, bulk packaging requirements, passenger and cargo aircraft maximum quantity limits.

PHMSA is soliciting public comments on these proposed changes. Such comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # PHMSA-2012-0027). Such comments need to be submitted by October 15^th, 2012.