STB to Hold Rail Service Hearing – 4-26/27-22

The Surface Transportation Board (STB) published a hearing notice in today’s Federal Register (87 FR 22009-22010) for “Urgent Issues in Freight Rail Service”. The hearing will address reported “challenges include tight car supply and unfilled car orders, delays in transportation for carload and bulk traffic, increased origin dwell time for released unit trains, missed switches, and ineffective customer assistance”, specifically including agricultural and energy product shipment delays.

The Board is calling for testimony from executive-level officials, including operating and human resources officials of four Class I railroads (BNSF, CSXT, NSR, and UP) to discuss their “rail service problems and their ongoing and planned efforts to improve service, including detailed plans outlining the steps needed to improve service”. Specifically, the STB is asking those railroads to “to address the extent to which crew shortages, particularly in the context of past employment reductions and current hiring difficulties, may have contributed to these service problems, and their plans, if any, to change and improve their hiring and employee retention policies to alleviate the acute crew shortages that appear to be among the central causes of the current service issues.”

The Board is also soliciting voluntary input from other railroads about how similar issues are impacting their operations and how they have dealt with the problem. The Board is also soliciting “rail customers, shipper organizations, labor organizations, and other interested parties to appear at the public hearing to discuss their service concerns and comment on carriers' efforts toward service recovery.”

Written comments may be submitted to the STB via their website (https://www.stb.gov/proceedings-actions/e-filing/; Docket # EP 770). The requirement to directly provide copies to other participants is waived in this docket. It does not appear that filings in this document will require filing fee payments.

Commentary

Certainly, part of this problem is associated with the employment volatility related to the COVID-19 pandemic. As far as I can tell, this will be the first public hearing by a federal regulatory agency that looks at this problem. It will be interesting to see how much the railroads feel that basic pay issues contribute to these problems and how much of it is related to working conditions. In either case, personnel costs are going to rise if there is going to be any real solution to this problem. Or there is going to be some sort of increase in automation.

I will be watching the filings in this docket for comments from chemical companies about how these shipping problems impact their operations. It will be interesting to see if railroads are using this problem to avoid certain hazmat transportation issues, particularly carrying toxic inhalation hazard chemicals.

HR 2223 Introduced – Rail Spill Fund

Last month Rep. DeFazio (D,OR) introduced HR 2223, the Community Protection and Preparedness Act of 2017. The bill would establish a Rail Account within the Oil Spill Liability Trust Fund (OSLTF). The bill is similar to HR 5786 that was introduced in the 114^th Congress, but significant changes were made to increase the chances of this bill being considered.

Changes

Section 3 of the earlier bill that added new requirements for rail track inspections has been removed from this version. In its place, DeFazio added §5 that would require DOT to report to Congress on rail track inspections. That report would include an assessment of current {§5(1)}:

• Railroad track inspections, including the frequency of inspections;

• Training provided to railroad track inspectors and related railroad personnel;

• Railroad compliance with Federal track safety regulations; and

• Federal oversight of railroads with respect to track safety

Another change is the addition of a new §3 that would require the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) to complete their rulemaking on “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains”.

Moving Forward

DeFazio is the Ranking Member of the House Transportation and Infrastructure Committee and thus should be in position to move this bill forward to consideration by that Committee. The earlier bill drew too much opposition from railroads due to the costly track inspection requirements for the Committee to approve the bill. This was almost certainly the reason that the bill was not considered in the last session.

The removal of those track inspection requirements should remove the opposition of the railroads. In fact, there could be a quiet endorsement of this bill by the railroads as it would increase the costs to shippers of flammable liquids thus potentially reducing some of those shipments. This would help reduce railroad liability for accidents involving these hazardous materials. The presence of the Rail Fund in the OSLTF to help fund response training would also reduce calls for additional railroad funding of such training.

The main thing holding up consideration of this bill remains the opposition of the flammable liquid shippers to having to pay for the Rail Fund. That opposition is not as organized as the railroads were in their earlier opposition. That combined with the general Republican opposition to federal regulations may be enough to derail this bill. If the bill is considered by the Committee, the chances of it passing in the House would be much higher than I currently expect it to be.

Commentary

From a hazmat transportation safety perspective, the main problem with the OSLTF remains the limitation of consideration of spill response as a water contamination issue. Continuing to ignore the fire and explosion hazard related to these spills means that this fund will have little or no effect on the planning for, and spending on, responding to the biggest hazard for flammable liquid accidents in or near urban areas.

From a legal point of view, the easiest way to do this would be to either create a new hazardous chemical spill liability fund that would be completely separate from the current OSLTF. That way the new fund could be more appropriately targeted in the scope of emergency response planning and support. From a political point of view that is not going to happen absent a really huge hazmat transportation incident.

This bill tries to take the more politically expedient approach of adding a more generalized hazmat response under authority of 49 USC 5116 for a subset of the OSLTF established as the Rail Fund. The problem with this is that the folks currently administering the OSLTF are experienced and focused on the issues of protecting water from oil spills, not responding to fires and explosions. This involves two completely different sets of planning and response activities.

Having said that, I think that this is probably the most expedient method of dealing with an expensive and complex issue. It is not going to be really effective, but it will be more effective than what we currently have. We have to remember that politics is, at its heart, the art of the possible.

Congressional Hearings – Week of 3-3-13

Both the Senate and House will be in town this week and the hearing schedule starts to get busy as budget and spending hearings move into high-gear. The subcommittees of the House Appropriations Committee will hold 15 separate hearings this week, though none will be of particular interest to the cyber and chemical communities. But there are a number of other hearings that will attract attention.

Cybersecurity

The House Homeland Security Committee will hold a hearing on Wednesday addressing DHS Cybersecurity: Roles and Responsibilities to Protect the Nation's Critical Infrastructure. Chairman McCaul’s (R,TX) statement about the hearing seems to indicate a possible emphasis on control systems, noting:

“Digital networks are now a conduit to our gas lines, power grids and transportation systems, therefore enemies throughout the world using the Internet have the potential to silently deliver a devastating cyber attack to our country.”

Unfortunately the witness list only includes one person with a potential interest in control systems, an electric utility representative. Witnesses include Secretary Napolitano and a panel of private sector witnesses including:

• Mr. Anish Bhimani, Chairman, Financial Services Information Sharing and Analysis Center

• Mr. Gary W. Haynes, Chief Information Officer, Centerpoint Energy

• Mr. Dean Garfield, President and Chief Information Officer, Information Technology Industry Council

• Ms. Michelle Richardson, General Counsel, ACLU

The Senate Homeland Security and Governmental Affairs Committee will conduct a joint hearing with the Commerce, Science and Transportation Committee on Thursday entitled The Cybersecurity Partnership Between the Private Sector and Our Government: Protecting Our National and Economic Security. Chairman Rockefeller’s press release makes it clearer:

“This joint hearing will examine the development and implementation of the Executive Order issued by President Obama and explore the need for comprehensive legislation to strengthen our nation’s cybersecurity.”

No witness list is provided on either Committee web site yet. One would expect Secretary Napolitano to be invited and perhaps the NIST Director. There will be the obligatory panel of private sector witnesses, hopefully at least one with a control system security background.

Rail Transportation

The Railroads, Pipelines and Hazardous Materials Subcommittee of the House Transportation Committee will meet on Tuesday to look at Freight and Passenger Rail in America’s Transportation System. No other details are currently available, but I suspect that there will be more than a little discussion about the pace of implementation of the Positive Train Control program.

DHS 10 Year Anniversary

Well DHS is 10 years old this week and the Senate Homeland Security and Governmental Affairs Committee will take the opportunity to hold a hearing  Wednesday to look at The Department of Homeland Security at 10 Years: A Progress Report on Management. The first panel will be Secretary Napolitano flanked by representatives from the GAO. There will be a panel of ‘lesser’ government witnesses including:

• The Honorable  Elaine C. Duke Former Under Secretary for Management of the U.S. Department of Homeland Security

• Shawn Reese Analyst in Emergency Management and Homeland Security Policy, Congressional Research Service, Library of Congress

There is an outside chance that there will be a passing reference to cybersecurity or the CFATS program. I won’t hold my breath though. These have both been small dollar programs in the overall history of DHS.

FY 2013 Continuing Resolution

It is not currently on the schedule but it seems extremely likely that the House Rules Committee will be holding a hearing to establish the Rule for the consideration of an as of yet un-introduced Department of Defense, Military Construction and Veterans Affairs, and Full-Year Continuing Appropriations Act, 2013. At least the House Majority Leader’s web site says that the House will consider such a bill on Wednesday and Thursday, ‘subject to a rule’. The hearing will probably be late Tuesday.

As I mentioned in an earlier post, this bill takes on added importance with the sequestration in effect. Twenty-four days to go from no publicly available bill to funding the government for the remainder of the fiscal year would be impressive in a semi-cooperative year. I suspect that we might see at least one short term continuing resolution before the numbers on this are resolved.

Rocks from Space

Okay this isn’t technically security related, but it’s my blog and I think this is important, so; on Wednesday the House Science, Space and Technology Committee will hold a hearing on Threats from Space: A Review of U.S. Government Efforts to Track and Mitigate Asteroids and Meteors. This is the first in a series of hearings on the topic; inspired, no doubt, by the recent explosion of a celestial body in the atmosphere over Russia.

It can certainly be argued that we are more likely to suffer catastrophic (on a city scale level) destruction from a space rock than we are to suffer a similar scale of destruction from a terrorist attack. It is going to happen somewhere on this planet in the not too distant future unless some pretty significant technology is put into place.

The three person panel from the government includes people that would certainly be involved in the planning for that technology:

• John P. Holdren, Director, Office of Science and Technology Policy, Executive Office of the President

• Gen. William L. Shelton, Commander, U.S. Air Force Space Command

• Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration

On the House Floor

In addition to the previously mentioned spending bill we are going to see the House address the Senate amendment to HR 307, the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013. This will be considered on Monday under suspension of the rules so a 3/5 vote will be required to accept the Senate version of the bill. I expect that it will be a much larger margin than that. In the unlikely event that it fails on that vote, it will go to a conference committee.