S 3023 Introduced – FY 2019 THUD Spending

Last week Sen. Collins (R,ME) introduced S 3023, the Transportation, Housing and Urban Development, and Related Agencies  (THUD) Appropriations Act, 2019. The bill includes an unusual congressional ‘fine’ on the Department of Transportation for failure to implement a regulation pertaining to oil spill response planning.

Comprehensive Oil Spill Response Plans

In August 2016 the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) published a notice of proposed rulemaking (NPRM) that would have (among other things) expanded the requirements for the preparation of a Comprehensive Oil Spill Response Plan to trains consisting of “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 49 CFR §130.101(b)}. The Senate Appropriations Committee has been pushing for PHMSA to complete that rulemaking process from practically since the advance notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014.

In S 3023 the Committee became a bit more forceful in its legislative push. In the portion of the bill providing for funding of PHMSA it notes (pgs 69-70):

“For necessary operational expenses of the Pipeline and Hazardous Materials Safety Administration, $23,710,000: Provided, That the Secretary of Transportation shall issue a final rule to expand the applicability of comprehensive oil spill response plans within 45 days of enactment of this Act: Provided further, That the amounts appropriated under this heading shall be reduced by $100,000 per day for each day that such rule has not been issued following the expiration of the period set forth in the previous proviso.”

The Committee Report on the bill further explicates the purpose of the fine on pages 82-3; concluding:

“The Committee notes with severe disappointment that, to date, despite additional resources being provided by the Committee, PHMSA has repeatedly failed to comply with explicit directions from this Committee. The Committee directs PHMSA to issue a final rule to require comprehensive oil spill response plans for rail carriers within 45 days of enactment of this act, and includes a fine for any delays.”

The Unified Agenda entry for this rulemaking projects the issuance of a final rule by September of this year, ostensibly within the 45 day limit set forth in this bill. Of course, the Fall 2017 version of the Agenda said that the final rule would be published by July and the Spring 2017 version said December 2017.

Other Comments

There are no other specific entries in the bill that would draw the specific interest of readers of this blog, but there are a few other comments in the Report that may be of interest.

• $3 million of the funds for University Transportation Centers is earmarked for “rural autonomous vehicle and connected vehicle research to be conducted by existing UTCs” (pg 15);

• The Committee expressed concern with the rate of the phase out of ‘unsafe’ tank cars transporting flammable liquids and directed that PHMSA “work with industry stakeholders to ensure progress and to promote acceleration of the tank car phaseout process” (pg 83; and

• The Committee expressed concern about the slow pace of another rail safety regulation from PHMSA, the requirement for Class 1 railroads to make available “electronic format train consist information” (pg 83).

Moving Forward

As with all spending bills, the Senate will use the language of this bill as substitute language for the House passed bill (not yet introduced). Interestingly, the language in this bill was adopted by a unanimous vote of the Appropriations Committee.

S 1655 Introduced – FY 2018 THUD Spending

Last month, Sen. Collins (R,ME) introduced S 1655, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2018. The bill does not include cybersecurity or chemical transportation safety language, but the Senate Appropriations Committee Report on the bill does include some language of potential interest to readers of this blog concerning UAS, autonomous vehicles and oil spill response plans.

UAS

The Committee briefly mentioned the electronic registration system that the FAA had established for registration of unmanned aircraft systems (UAS) in December of 2015. The comment explicitly ignores the recent court case which invalidated the portion of that registration that applied to recreational users of UAS. The report states (pgs 32-3):

“The Committee believes that online, interactive education program links on the electronic registration process would provide the education necessary to reduce the risk of unknowing or negligent mistakes by recreational operators of small unmanned aircraft thus promoting aviation safety. Therefore, the Committee directs the FAA to include in its electronic registration system for recreational operators a link for registrants to undergo a suitable and interactive online education and training program.”

The report comment goes on to provide additional direction to the FAA on executing that directive and requirements for reporting back to the Committee on the results. This is definitely in keeping with other legislative efforts (See S 1405 for example) that mandate the use of the current registration system for model aircraft operators. I expect that the FAA will be holding off on the de-registration of recreational UAS operators until it sees if/how Congress legislates on the matter during this session.

Autonomous Vehicles

The Committee reiterates its support for the Automated Vehicle program at the National Highway Traffic Safety Administration (NHTSA) to the tune of $10.1 million. It does express some concern about cybersecurity issues; stating (pg 63):

“The Committee remains concerned with cybersecurity in autonomous vehicles and urges the Department to continue to address this risk in the next update of the Federal Automated Vehicles Policy.”

Oil Spill Response Plans

The Committee takes the DOT’s Pipeline and Hazardous Material Safety Adminstration (PHMSA) to task for failing to issue a final rule on modifying the current Oil Spill Response Plan (OSRP) so that the threshold for the requirement of an OSRP would take into account the amount of oil in every car in a train consist instead of just the amount in any given car. This is an on-going issue between the Committee and PHMSA. This year the report gets real specific, stating (pg 88):

“The Committee directs PHMSA to issue a final rule to expand the applicability of comprehensive oil spill response plans to rail carriers no later than 5 days after enactment of this act.”

The recently published Trump Administration update to the Unified Agenda reports that DOT expects to issue the final rule in December (and those UA expectations are almost always missed). It will be interesting to see how the anti-regulation Trump administration responds.

Moving Forward

It is increasingly looking like there will have to be a continuing resolution before October 1^st as Congress is unlikely (VERY UNLIKELY) to pass the spending bills in regular order by that date. That means that we will almost certainly not see a standalone THUD spending bill make it to the President’s desk and certainly not this bill. Spending bills have to ‘originate’ in the House so the best this bill could have done is be passed in the Senate and then substituted for the language of the House bill when it reached the Senate. In a good year (and we have not seen one of those in a good while) the differences in the two bills would have been worked out in a conference committee before being approved by both houses and then sent to the President.

Commentary

Interestingly, the Appropriations Committee directives found in the Committee Report (which do not have the force of law, just the force of the purse) will essentially continue ‘in force’ when a spending bill covering THUD (and likely everything else) is signed by the President. DOT may ignore those directives and no court will say anything about it. However, at some point the Committee could get so upset at the Department that they specifically withhold funds in a spending bill until such time as the Department complies with the directives. We may be approaching that point with the OSRP directive, that is what the unrealistic ‘5 day’ response time was all about.

OMB Approves PHMSA HHFT Oil Spill Response Plan NPRM

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’s (PHMSA) notice of proposed rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”. The advanced notice of proposed rulemaking (ANPRM) for this rulemaking was published in August of 2014. The NPRM was sent to OIRA  back in February.

It is interesting to note that there was a significant change in the title of this rulemaking after the ANPRM was published. Originally titled: “Oil Spill Response Plans for High-Hazard Flammable Trains”, the new title (which added the words ‘and Information Sharing’) was first used in the Fall 2015 Unified Agenda. It was not until the Spring 2016 agenda was published that we were able to see how that might affect the scope of the rulemaking. The abstract for the rulemaking now states:

“This rulemaking, developed in consultation with the Federal Railroad Administration, would revise PHMSA's regulations to expand the applicability of comprehensive oil spill response plans (OSRPs) based on thresholds of liquid petroleum oil that apply to an entire train. We are also proposing to revise the format and clarify requirements of a comprehensive OSRP and to require railroads to share information [emphasis added] about high-hazard flammable train operations with state and tribal emergency response organizations (i.e., State Emergency Response Commissions and Tribal Emergency Response Commissions) to improve community preparedness. Lastly, PHMSA is proposing an update to boiling point testing [emphasis added] procedures to provide regulatory flexibility and promotes enhanced safety in transport through accurate packing group assignment.”

The information sharing provisions should be fairly straight forward, but it will be interesting to see how PHMSA deals with the terrorism fears on subsequent information sharing by State agencies. What will be very interesting to see is how PHMSA plans to deal with the crude oil volatility issue being addressed by the changes to boiling point testing (see my post about their earlier Safety Advisory on the topic). The wording in Unified Agenda does not seem to indicate that PHMSA will be using the controversial vapor pressure testing that many environmental and safety advocates have been calling for. I have addressed some of the problems with vapor pressure testing in an earlier blog post.