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.

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.

HR 22 Amended and Passed in the House

Today the House completed three days of consideration of HR 22. Instead of the originally intended 29 amendments, the House considered 117; passing 73, rejecting 35 and had 9 withdrawn from consideration after debate. The bill passed by a largely bipartisan vote of 363 to 64 (58 Republicans voted nay). After passage of the bill the House insisted on their amendments to HR 22 and requested a conference with the Senate.

Of the nine amendments that I originally identified as being of potential interest to readers of this blog, three were not considered (Lipinski, Esty, and Jackson-Lee), one (Lynch) was rejected on a near party-line recorded vote and the remaining five were adopted by voice vote.

Neither the House nor Senate will be in Washington next week (Veterans Day Recess), so it would normally be almost two weeks before the first conference committee meeting. The current surface transportation authorization runs out on November 20^th so we may see conference committee meetings (out of the public eye) next week to work out the differences.

STA Amendments to the House Floor

This afternoon the House Rules Committee met to determine which of the amendments proposed for HR 22 would be allowed to be offered on the floor of the House tomorrow. As I added to yesterday’s post there were a total of 29 amendments added to the rule for the consideration of HR 22.

Of the seven amendments that I described in yesterday’s post as being of specific interest to readers of this blog, only seven were include on the list of 29 amendments that may be offered on the floor. They are:

21. Jackson Lee (TX): Provides a report on the Internet of Things (IoT) and its potential to improve transportation services to the elderly and persons with disabilities as well as assist local, state and federal transportation planners in achieving better inefficiencies and cost effectiveness, while protecting privacy and security of persons who use IoT technology.

28. Barletta (PA), Lipinski (IL): Requires all legacy tank cars retrofit for continued Class 3 Flammable Liquid service to include enhanced top fittings protections for pressure relief valves.

29. Lynch (MA): Provides for an additional, independent safety review of an approved pipeline route or segment of route, should a state or tribal government deem it necessary.

I expect that all three of these amendments will pass.

HR 3651 Introduced – PTC Extension

Earlier this month Rep. Shuster (R,PA) introduced HR 3651, the Positive Train Control Enforcement and Implementation Act of 2015. This bill would extend the current PTC implementation deadline from December 31st 2015 until 2018. This is one of the two bills that I briefly mentioned in my Friday post on the pending  STB action on PTC issues.

The bill makes a number of revisions to 49 USC 20157. Changes include:

• Establishing a date to submit revised plans to implement PTC {revised §20157(a)(1)};

• Revising the date by which the PTC plan is to be completely implemented {revised §20157(a)(1)};

• Providing authority to the Secretary of Transportation to extend the revised deadline {revised §20157(a)(2)};

• Add requirements for interoperability and risk-based implementation prioritization {new §20157(a)(3)(A)};

• Require annual PTC implementation progress reports from railroads {new §20157(c)}; and

• Allow for phased implementation of PTC technology within the new schedule {new §20157(h)(2)}.

Moving Forward

This is a somewhat contentious issue and I expect that we will be seeing two interesting markup hearings later this month. There are, however, 134 cosponsors of this bill from both parties and Schuster is the Chair of the House Transportation and Infrastructure Committee, so this bill will move forward expeditiously in the House. I expect that it will reach the floor of the House before the end of the month.

The Senate has already addressed this issue in HR 22, the larger surface transportation authorization bill which is still pending action in the House, so it would seem that this bill should be able to be considered and adopted in the Senate rather quickly.

It is very likely that this bill will reach the President’s desk before the STB can take action on the petition that I described last Friday.

Commentary

The railroads have been complaining for years now about the regulatory roadblocks that have impeded their efforts to implement PTC. That combined with their frequent reporting on the technical issues that they have had with designing separate systems that could operate with each other should have made it clear to any observer that the railroads would not complete the implementation of PTC by December 31^st, 2015. But Congress has pretty much ignored the problem.

The Federal Railroad Administration and the railroads had to resort to issuing threats to get the attention of Congress. The FRA very publicly told Congress that unless they didn’t do something that the FRA would have to start levying some pretty steep daily fines on the railroads starting on January 1^st. The railroads responded that they would be forced to shut down operations before January 1^st to both avoid the FRA fines and greatly escalating their potential liability costs from any rail accident due to high probability of having punitive damages assessed.

HR 22 would probably be a better legislative vessel for solving this problem because it would also provide longer term authorization for surface transportation programs in general, but that is still tied up in a lot of congressional squabbling about funding issues. I expect that Shuster will move this bill forward rather than wait on HR 22. While there are some objections in the safety community about ‘letting the railroads slide’ on PTC implementation, those objections will almost certainly be easier to overcome than the perennial spending squabbles that are holding up HR 22.

Senate Passes HR 3236

This afternoon the Senate passed HR 3236, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, by a very bipartisan vote of 91 to 4. All four no votes came from Republicans. The bill extending the current surface transportation authorization until October 31^st now heads to the President for signature. TheHill.com is reporting that the President is expected to sign the bill.

Earlier in the afternoon the Senate passed HR 22 (which was the Hire More Heroes Act of 2015) which has become the bill that will provide long term authorization of surface transportation programs. That vote, 65 to 34, was still fairly bipartisan, but in a way that is becoming more common in the 114^th Congress; Republican conservatives made up almost half of the no votes.

Because this bill has been formulated as a series of amendments (including the basic amendment that completely replaces the original bill language) to the original bill, it is difficult to tell what the actual provisions of the bill look like. We should be able to see the version as passed by the Senate tomorrow or Saturday.