Senate Completes Final Formal Session of 114th Congress

On Friday, the Senate conducted their final formal session of the 114^th Congress. There will be a number of proforma sessions conducted between today and January 3^rd, but no business will be conducted during those sessions. In Friday’s session the Senate passed a number of bills in addition to the continuing resolution that I briefly reported upon Saturday. Of those bills two may be of specific interest to readers of this blog:

• HR 710, the Essential Transportation Worker Identification Credential Assessment Act; and

• S 546, the RESPONSE Act.

S 546 was sent to the President for signature as the Senate accepted the House amendment to the bill. As predicted the bill was considered under the Senate’s unanimous consent process with no debate or vote.

The future of HR 710 is less clear as the Senate amended HR 710 (also under the unanimous consent process). This was not the amendment that was included in the report from the Senate Commerce, Science and Transportation Committee that I described in May, but new substitute language (pg S7078) introduced on Friday. The general intent and process outlined in the House version of the bill was essentially included in the new language, but numerous details were changed.

The House is scheduled to meet in proforma session today. Unlike the Senate, the House rules do allow for the House to complete actual business in a proforma session, but it does require some serious coordination between the Republican and Democratic leadership. The House originally passed the bill under suspension of the rules by a voice vote, so there was no substantial objection to the bill. That makes this bill one that could potentially be considered in a proforma session, especially since the bill only requires a study and some reports to Congress and spends no new monies.

House Passes S 546, the RESPONSE Act

Yesterday the House passed S 546, the RESPONSE Act, by a voice vote. There was less than five minutes of debate on the bill; mainly praise for the leadership of the House Transportation and Infrastructure Committee’s efforts to refine the provisions of the bill.

The bill now goes back to the Senate for action on the amended language. The Senate will probably accept the House changes and send the bill to the President. This will most likely be accomplished under the Senate’s unanimous consent process. If the Senate does insist on their language, there is little chance that a conference committee could complete action before the 114^th Congress’ final session sometime towards the middle of December.

House Reports S 546, the RESPONSE Act

Earlier in the lame duck session the House Transportation and Infrastructure Committee published their report on S 546, the RESPONSE Act that was passed in the Senate back in May. The Committee made some minor revisions to the bill and that revised version will be considered on the floor of the House today under suspension of the rules. This means that the Republican leadership expects the bill to pass with substantial bipartisan support.

Revisions

The revisions made by the Committee in September did not reverse any of the changes made by the Senate in the original language (the same language seen in HR 1043). It did, however include:

• Adding the PHMSA Chief Safety Officer to, and removing the Federal Motor Carrier Safety Administration Chief Safety Officer from, the RESPONSE Subcommittee;

• Adding ‘Rail Labor’ to the types of non-governmental organizations to be represented on the Subcommittee;

• Removing requirements for twice-annual subsequent meetings of the Subcommittee;

• Removing provisions allowing the Transportation Secretary to extend the life of the Subcommittee; and

• Changing the termination of the Subcommittee to 90-days after submission of their report.

Moving Forward

This bill will almost certainly pass in today’s session in the House. There is a strong likelihood that the amended bill will be reconsidered in the Senate, probably under their unanimous consent provisions and sent to the President.

Commentary

This is another good example of Congress pushing the requirement to develop effective regulation of a complex topic to the relative expertise found in the Executive Branch (with outside technical assistance). Congress will still, of course, have to take the recommendations of the Subcommittee and turn it into actual legislation. This has met with mixed success in the past, but we can always hope that something good will come out of this effort.

The major drawback to this type legislative development is that it will take some amount of time (at least a year) for the Subcommittee to do its work and then even more time (maybe two more years) for Congress to act on that report and then even more time (three to five years) to develop the regulations needed to put that legislation into effect. This is why problems take so long to be ‘effectively’ addressed by the government.

In the meantime, if we have another major crude oil incident where there is a major loss of life or property damage due to a poor response by local agencies, we can expect a knee-jerk over-reaction by Congress that will mandate immediate implementation of poorly understood response activities that will only end up making matters worse. Fortunately, low crude oil prices have reduced the number of crude-oil trains substantially, reducing the chances of a catastrophic accident.

Markup Hearing for S 546, RESPONSE Act, Scheduled

Earlier this week (after my hearing schedule blog post) the House Transportation and Infrastructure Committee scheduled a markup hearing for a number of bills tomorrow. Of potential interest to readers of this blog is the markup of S 546, the Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Act of 2015. This bill, passed in the Senate on May 9^th under the Senate’s unanimous consent process. The bill is virtually identical to HR 1043 that has yet to be acted upon by any of the five subcommittees of the Transportation Committee to which it has been assigned for consideration.

There is one amendment currently published for consideration in tomorrow’s hearing. The amendment contains a number of minor wording and procedural changes that do not substantially affect the purpose of the bill, establishing a subcommittee of the existing National Advisory Council to look at topics related to improving emergency responder training and resource allocation for hazardous materials incidents involving railroads.

This bill will almost certainly be passed on a voice vote in tomorrow’s hearing.

S 546 Amended and Passed in Senate

On Monday the Senate passed S 546, the RESPONSE Act of 2015, under their unanimous consent provisions. Without debate or vote the Senate adopted substitute language introduced by Sen. Heitkamp (D,ND), the original author of the Senate version of this bill (the House version, HR 1043, has not yet been acted upon in the House). The bill amends 6 USC 318 adding a Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Subcommittee to the National Advisory Council.

Revisions

There were large number of relatively inconsequential wording changes made in the substitute language. There were, however, some substantial changes made to the bill. These include:

• Changing to a Co-Chair leadership of the RESPONSE Subcommittee with FEMA and PHMSA sharing that role {new §318(d)(3)};

• Removed provisions providing for the appointment of elected State, local, and tribal government executives to the RESPONSE Subcommittee {original §318(d)(2)(J)(i)(III)}’

• Added provisions providing for the appointment of emergency response training providers to the RESPONSE Subcommittee {new §318(d)(2)(J)(ii)(V)};

• Removed provisions requiring the RESPONSE Subcommittee to provide recommendations for the “need for emergency response plans for rail, similar to existing law related to maritime and stationary facility emergency response plans for hazardous materials” {original §318(d)(2)(D)};

• Removed provisions requiring the RESPONSE Subcommittee to provide recommendations for the “need for a rail hazardous materials incident database” {original §318(d)(2)(E)};

• Removed provisions requiring the RESPONSE Subcommittee to provide recommendations for the “access to relevant, useful, and timely information for the local emergency responder for training purposes and in the event of a rail hazardous materials incident” {original §318(d)(2)(F)};

Moving Forward

The bill has been forwarded to the House for consideration. I suspect that the revised language will allow the bill to move to the floor of the House without too much problem. There it will probably be considered under suspension of the Rules. That means limited debate and no floor amendments.

Commentary

The last three changes described above were almost certainly necessary to allow the Senate to consider the bill under the unanimous consent provisions. The emergency response plan provision is already being dealt with by a PHMSA rulemaking, but the other two provisions would certainly have drawn the ire of the railroads and some hazardous material shippers.

The bill probably would have been able to garner enough votes in the Senate to be passed, but it would have been difficult to get the bill to the floor in with the crowded and election limited calendar.

The last two provisions have also probably been the reason that the Democratic sponsors of the House version of the bill have not been able to have it considered in Committee.

Senate Homeland Security Committee Adopts S 546

As I predicted earlier today, the Senate Homeland Security and Government Affairs Committee took up S 546, the RESPONSE Act of 2015. The Committee ordered the bill to be reported favorably on a voice vote. There were no amendments.

Since my earlier posting the GPO has provided a link to the language for S 546 and I have been able to confirm that it is almost perfectly identical to HR 1043. The only difference that I could find was the addition of the words “as appropriate” in §318(d)(6); hardly an earth shaking change.

It really does look like this bill, barring something really strange, or its House counterpart will likely make to the floor in each house and then to the President. It is almost certainly only a matter of timing.

HR 1043 Introduced – RESPONSE Act

As I mentioned earlier, Rep. Kind (D,WI) introduced HR 1043, the RESPONSE Act of 2015. The bill would add a new subcommittee to FEMA’s National Advisory Council; the Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Subcommittee.

The bill would set a time limit for the existence of the Subcommittee {new §318(d)(9)}. It would be formed within 90 days of passage of the bill and would terminate four years after that enactment. The FEMA Administrator would be authorized to extend the termination date in one year intervals if he determines that additional reports are needed from the Subcommittee.

Membership

While the NAC is made up mainly of people from outside of the Federal government {6 USC 318(c)) this bill would require that this new subcommittee would also include representatives from the following federal agencies {new §318(d)(2)}:

● FEMA

● Office of Emergency Communications of the Department of Homeland Security

● Office of Railroad, Pipeline and Hazardous Materials Investigations of the National Transportation Safety Board

● Federal Railroad Administration

● Transportation Security Administration

● Coast Guard

● Office of Solid Waste and Emergency Response 22 of the Environmental Protection Agency

● Pipeline and Hazardous Materials Safety Administration

● Federal Motor Carrier Safety Administration

Subcommittee Focus

The RESPONSE Subcommittee will be required to look at, and make recommendations about, the following topics related to improving emergency responder training and resource allocation for hazardous materials incidents involving railroads {new §318(d)(6)}:

● Quality and application of training for local emergency first responders related to rail hazardous materials incidents;

● Effectiveness of funding levels related to training local emergency responders for rail hazardous materials incidents;

● Strategy for integration of commodity flow studies, mapping, and access platforms for local emergency responders and how to increase the rate of access to the individual responder in existing or emerging communications technology;

● The need for emergency response plans for rail, similar to existing law related to maritime and stationary facility emergency response plans for hazardous materials;

● The need for a rail hazardous materials incident database;

● Increasing access to relevant, useful, and timely information for the local emergency responder for training purposes and in the event of a rail hazardous materials incident; and

● Determination of the most appropriate agencies and offices for the implementation of the recommendations

Companion Bill S 546

A similar bill has been introduced in the Senate, S 546. I’m assuming that it is a companion bill, but a copy has not yet been published. The Senate Homeland Security and Governmental Affairs Committee is taking up the bill in their business meeting today. This is slightly unusual in that Sen. Heitkamp (D,ND) and her 5 cosponsors are all Democrats, but is would certainly seem to indicate that there is bipartisan support for this legislation, at least in the Senate.

Congressional Hearings – Week of 3-1-15

Both the House and Senate will be in session this week. There are lots of budget hearings scheduled, but nothing of specific interest to readers of this blog. There will be four cybersecurity hearings; the most I’ve seen in a single week. There will also be a hearing on the Chemical Safety Board and a markup of the RESPONSE Act.

Cybersecurity

The following cybersecurity related hearings will be held in the House this week:

● Subcommittee on Oversight and Investigations (Committee on Energy and Commerce, Tuesday, “Understanding the Cyber Threat and Implications for the 21st Century Economy”

● Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies (Committee on Homeland Security), Wednesday, “Industry Perspectives on the President’s Cybersecurity Information Sharing Proposal.”

● Subcommittee on Emerging Threats and Capabilities (Committee on Armed Services, Wednesday, “Cyber Operations: Improving the Military Cyber Security Posture in an Uncertain Threat Environment”

● Subcommitte on Information Technology (Committee on Oversight and Government Reform), Thursday, “Cybersecurity: The Evolving Nature of Cyber Threats Facing the Private Sector”

I don’t expect that there will be any real discussion of control system security at any of these hearings.

Chemical Safety Board

The House Committee on Oversight and Government Reform will be holding a hearing on Wednesday looking at “Rebuilding the Chemical Safety Board: Finding a Solution to the CSB's Governance and Management Challenges”.

There have been a number of complaints in the federal government and industry about the increasing political focus of the CSB’s accident investigation results in recent years. A number of people at OSHA and the EPA have complained about what some call the strident calls for legislative and regulatory action from the CSB. I expect that we will hear the same thing in this hearing.

RESPONSE Act

The Senate Homeland Security and Governmental Affairs committee will be holding a business meeting on Wednesday. One of the items on the agenda is a markup of S 546, a bill that would establish the Railroad Emergency Services Preparedness, Operational Needs, and Safety Evaluation (RESPONSE) Subcommittee under the Federal Emergency Management Agency's National Advisory Council to provide recommendations on emergency responder training and resources relating to hazardous materials incidents involving railroads. The bill was just introduced this week, so the speed of this hearing is an indicator of how much interest there is in the bill.

On the Floor

There is nothing planned for this week in either house that will be of specific interest to readers of this blog. Of course the 500 lb gorilla that hangs over this week in Congress is the FY 2015 spending for DHS. It will be interesting to see if and how the various parties decide to try to work out their differences. What we have seen so far does not bode well for the future of the FY 2016 spending bills that have not yet even started to wend their way through Congress.