Bills Introduced – 10-20-21

Yesterday, with both the House and Senate in session, there were 46 bills introduced. One of those bills will receive additional coverage in this blog:

S 3023 A bill making appropriations for the Department of Defense for the fiscal year ending September 30, 2022, and for other purposes. Sen. Tester, Jon [D-MT] 

In many ways this is a symbolic bill since there will almost certainly not be a standalone DOD spending bill passed this year, we will have some sort of omnibus spending bill dropped in December. The importance of this bill will stand with the Committee Report that will provide key spending and reporting requirements directed by the Senate Appropriations Committee.

HR 6072 Introduced – FY 2019 THUD Spending

Last week Rep. Diaz-Balart (R,FL) introduced HR 6072, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2019. The bill contains no program mentions of specific interest to readers of this blog, but the Committee Report does include mentions of cybersecurity, unmanned aircraft system (UAS), and chemical rail-transportation safety measures.

Cybersecurity

I do not generally comment on Department cybersecurity measures in these spending bills; those are typically IT related programs and I tend to concentrate on control system measures. I am making an exception here because the House Appropriations Committee made a very important cybersecurity observation that deserves wide recognition.

In discussing the Department of Transportation’s cybersecurity initiative, the Committee Report makes the comment that (pgs 28-9):

“DOT operates and oversees significant elements of the critical transportation and information technology infrastructure of the United States. Much of the DOT framework relies upon, and is integrated with, computer networks, computer mediated communications, online databases, and a wide variety of other computer and computer network capabilities. With the increasing interconnectivity and use of Internet-based technologies, new dependencies, relationships, and vulnerabilities are created as are new risks and new threats. Further, DOT’s privileged relationships with state and local governments, and private-sector elements within the transportation community, exposes operational elements of the transportation sector itself to the potential of a cyber compromise.”

This is the first time that I recall a government entity acknowledging that government networks and systems are potential routes of attack against privately owned/operated critical infrastructure. It is both refreshing to hear and breathtaking to consider the scope of that potential threat.

In the discussion of funding for the National Highway Traffic Safety Administration (NHTSA) the Committee report notes (pg 43) that $18 million of the NHTSA vehicle safety research funding is to be targeted “for vehicle electronics and emerging technologies, which includes research of cybersecurity and automated vehicle technologies”.

UAS Concerns

As can be expected the Committee has a number of concerns about the development and regulation of commercial UAS. Generally, the Committee (and much of Congress) is supportive of the increased operations of commercial and recreational drones. There are, however, two separate mentions of directives to develop counter-UAS technologies.

The first revolves around the on-going congressional concern about UAS operations near commercial airports. In the first instance the commends the FAA to (pgs 28-9) “promote research and demonstration activities for counter unmanned aircraft systems (CUAS) to protect airports and the national airspace (NAS)”. The Committee notes that these activities should be ‘nonkinetic’ and focus on the “capabilities to identify, monitor and track the UAS and UAS handset operator”.

The second focuses on another long standing congressional concern about the operation of UAS in and around fire-fighting scenes. The Committee directs the FAA (pg 29) “to develop

systems to detect and mitigate unauthorized UAS that interfere with firefighting efforts in our nation”. The Committee goes on to outline the requirements of such a system; the system should be able to:

• Detect, identify and track both the air vehicle and ground controller;

• Must be controlled by an entity that is independent from and would not be dependent on compliance by the UAS manufacturer or the UAS user/operator;

• Would have the capability to adapt to fluid borders;

• Differentiate between legitimate firefighting UAS and unauthorized UAS; and

• Not interfere with essential first responder communications systems

No specific funding for such system development was mentioned. This is in the preliminary stages and just requires an initial report to Congress within 120 days.

Chemical Rail Transportation Safety

The Committee Report addresses two long standing congressional concerns about topics under the proviso of the Federal Railroad Administration (FRA); safe transportation of energy products and positive train control (PTC).

In its discussions about the FRA’s Safety and Operations budget the report notes that the Committee is specifically allocating $2 million (pg 49) “for FRA’s safe transport of energy products programs, which include crude oil safety inspectors, safety route managers and tank car quality assurance specialists, tank car research, and increased mileage of ATIP [automated track inspection program] on routes that carry energy produces.”

The Committee is also targeting $10 million for the FRA’s PTC support program; noting that the FRA (pg 29) “expects to review up to 15 additional PTC plans from railroad companies in fiscal year 2019”.

Moving Forward

This bill will move the floor of the House in the coming weeks. The votes (see pages 170-5 in the Committee Report for the specific votes) in Committee indicate that there is significant opposition from the Democrats to some specific provisions of the bill, but there is some limited bipartisan support for the bill as a whole. Regardless, the bill will be brought to the floor under a structured rule with a large, but controlled number of floor amendments to be considered. The bill will almost certainly pass in the House.

The Democratic opposition would prevent this bill from being considered in the Senate were it not for the fact that the Senate will take up this bill and immediately amend it with substitute language from S 3023 which had strong bipartisan support in Committee. That version of the bill, after additional floor amendments will pass with bipartisan support. A conference committee will work out the discrepancies between the two bills.

Commentary

Interestingly there is no mention in either HR 6072 or Committee Report on the bill of the congressional concern with the slow pace of rulemaking on revisions to the Comprehensive Oil Spill Response Plan requirements for railroads. Readers will remember that the Senate Appropriations Committee included a ‘$1000,000 per day’ fine on PHMSA for not completing that rulemaking within 45 days of the passage of the THUD spending bill.

While there is not specific support for such a fine in the House bill, I do not suspect that there would be any strong opposition to including that fine in conference.

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.

Bills Introduced – 6-7-18

Yesterday with both the House and Senate in session there were 47 bills introduced. Of those, two may be of specific interest to readers of this blog:

HR 6032 To direct the Secretary of Commerce to conduct a study and submit to Congress a report on the state of the internet-connected devices industry in the United States. Rep. Latta, Robert E. [R-OH-5]

S 3023 An original bill making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2019, and for other purposes. Sen. Collins, Susan M. [R-ME]

I will be watching for the outside possibility that HR 6032 will consider specific requirements for either control system devices or cybersecurity in the reporting criteria.

S 3023 would be the Senate version of the THUD appropriations bill. I typically watch that for chemical transportation issues.