House Continues Consideration of HR 4664 – FY 2024 FinServices Spending

Yesterday, the House continued consideration of HR 4664, the Financial Services and General Government Appropriations Act, 2024. The last four amendments listed in Part B of H Rept 118-269 were considered and three were adopted. The House recessed for the Veterans Day weekend without taking a vote on the amended bill.

TheHill.com is reporting that the House leadership was not sure that it had enough votes to pass the bill because of some Republican concerns over abortion provisions and FBI funding. Earlier this week similar non-actions were seen with HR 4820, the FY 2024 THUD spending bill. The inability of the House leadership to see controversial spending bills passed is going to complicate efforts to keep the government funded passed the current spending deadline of November 17^th, 2023, next Friday. 

House Continued Consideration of HR 4820 – FY 2024 THUD Spending – 11-7-23

Yesterday, the House continued consideration of HR 4820, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2024. Thirty-three amendments were considered and 21 of those were adopted. None of the amendments were of specific interest here. Of the five amendments initially considered on Monday, but held over for votes yesterday, only one passed.

The expected final vote on the bill was not held. The Hill.com is reporting that the vote was postponed because a number of Republican members from New York objected to the reduction in spending for Amtrak included in the bill. There were apparently concerns that there might not be enough votes to pass the bill because of that opposition. The House is not scheduled to resume consideration of the bill today.

House Begins Consideration of HR 4820 – FY 2024 THUD Spending

Yesterday, the House began consideration of HR 4820, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2024. Eleven amendments were considered and four were adopted. One of the adopted amendments was an en bloc amendment that included 24 non-controversial amendments. Five of the amendments considered yesterday are awaiting voice votes. Consideration of the bill resumes today.

NOTE: None of the amendments authorized for consideration by the House Rules Committee in Appendix B to H Rept 118-261 are of specific interest here.

HR 4366 Passed in Senate – Consolidated Appropriations Act

Yesterday, the Senate completed action on HR 4366, the Consolidated Appropriations Act. After adopting the substitute language for the House bill, the Senate voted 82 to 15 to pass the amended legislation. The final bill includes the Senate version of original Military Construction spending bill (S 2127), and also the Senate’s ARD spending (S 2131) and THUD spending ( 2437) bills. Earlier in the day, the Senate rejected four additional amendments (none of specific interest here) by recorded votes.

The bill now goes back to the House for approval of the changes made by the Senate. There is no chance that that will occur, the House will insist on their version of the bill, and it will be referred to a conference committee to work out a version of the bill that could pass in both chambers. In a good year, this behind-closed-doors work takes weeks of political give and take, and a compromise is reached that no one totally likes and, it is presented to the two bodies. After much speechifying and objection, the final bill is passed and the President signs the legislation.

Depending on who gets appointed to the Conference Committee (In the House, Republicans by the Speaker, Democrats by the Minority Leader) this conference could end up being very acrimonious. There is a very real possibility that intransigent Republican negotiators could insist on their spending levels and policy riders and kill any possibility of a compromise. If a compromise bill is crafted, it will be rejected by a significant number of Republicans in the House and the bill will require at least an equal number Democrats to vote for the bill if it is to pass. The last time a spending bill required bipartisan support to pass (back at the end of September, remember that?) the Speaker lost his job, and the House was plunged into Speaker Chaos 2.0.

Oh, and remember November 17^th is the date currently set by which all twelve spending bills (not just these three) have to be signed by the President to keep the government open. This bill (forget the other nine) is unlikely to be out of conference by that date, much less signed by the President. So, we will almost certainly see a continuing resolution fight before that date.

Review - HR 4820 Introduced – FY 2024 THUD Spending

Back in July, Rep Cole (R,OK) introduced HR 4820, the Transportation, Housing and Urban Development, and Related Agencies [THUD] Appropriations Act, 2024. The House Appropriations Committee published their Report on the Bill. While there are only limited mentions of the topics of cybersecurity, counter-UAS operations and chemical safety in the bill, there are more extensive discussions of those topics in the Report.

Before the House evicted the Speaker, the House Rules Committee called for proposed amendments for HR 4820 to be submitted by October 5^th, 2023. A meeting date had not yet been set before administrative chaos ensued.

Moving Forward

With the November 17^th deadline fast approaching, the House needs to move on these spending bills sooner than later. Of course, they need to resolve the Speaker issue before they can resume any legislative work. Unless that resolution includes some sort of power sharing arrangement between moderates in the two parties, the underlying problem that I discussed earlier this summer will remain in effect.

 

For more details about the provisions of the bill and the discussions in the Committee Report, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4820-introduced - subscription required.

Review - S 2437 Introduced – FY 2024 THUD Spending

Back in July, Sen Schatz (D,HI) introduced S 2437, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2024. The Senate Appropriations Committee also published their Report on the bill. There is just one cybersecurity mention in the bill, but there are a number of discussions of cyber issues in the Report, along with additional mentions of chemical safety issues and UAS issues.

Moving Forward

As I mentioned Friday, the Senate has started the consideration process for HR 4366, the Military Construction and VA spending bill. The substitute language that will form the basis for that consideration includes the language from S 2437 as Division C. The amended spending bill is likely to pass with bipartisan support in the Senate. Then it will go to conference to work out the differences between the Senate and House language. See my post, “Coming FY 2024 Spending Bill Logjams”, for my thoughts on the consideration process this year for spending bills.

 

For more details about the provisions of the bill and the discussions in the Committee Report, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-2437-introduced - subscription required.

Review - HR 8294 Reported in House – FY 2023 THUD Spending

Last week, Rep Price (D,NC) introduced HR 8294, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2023. The House Appropriations Committee also published their Report on the Bill. It currently looks like the bill will be rolled into a six spending-bill minibus next week. The House Rules Committee is soliciting amendments for this bill as part of the preparation of the rule for considering that minibus.

There is only one cybersecurity mention in the actual bill, the outlay for DOT internal cybersecurity spending for the year (pgs 11-2). The Report includes discussions about:

• Transportation cybersecurity programs,

• Chemical transportation safety, and

• UAS regulation.

Moving Forward

As I noted earlier today, the House Rules Committee is working on rolling six separate spending bills into a single ‘minibus’ spending bill. This is an effort to get the least controversial spending bills through the legislative process before the end of the fiscal year, leaving only a portion of the government to continue to operate under a continuing resolution (more probably a series of continuing resolutions). The Democrats tried this last year and were not able to make it work, we will just have to see how it goes.

 

For more details on the discussions in the report and links to background information, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-8294-reported-in-house - subscription required.

Review - HR 4550 Introduced – FY 2022 THUD Spending

Last week, Rep Price (D,NC) introduced the committee marked-up version of HR 4550, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2022. The Committee Report on the bill is also available. The bill includes one pipeline provision of note and one industrial control system provision. Additional information and guidance is provided in the Report on automated vehicles, aviation safety, rail cybersecurity, and LNG by rail.

This bill is being rolled into the first FY 2022 minibus, HR 4502 as Division G. The House Rules Committee will be meeting tomorrow to formulate the Rule on that minibus, which will be considered on the floor of the House this coming week. There have been 78 amendments suggested for Division G, none of which are of particular interest here. The combined bill (because of the lack of the Hyde Amendment – abortion funding restrictions) will probably pass on a party-line vote. There is a chance that a Hyde Amendment provision will be added in a floor vote, that would probably increase the chances of this bill passing.

For more details about the bill and report, including discussions about the automated vehicles, aviation safety, rail cybersecurity, and LNG by rail, see my article on CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-4550-introduced - subscription required

HR 7616 Reported in House – FY 2021 THUD Spending

Last week the House Appropriations Committee completed crafting and reporting on HR 7616, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2021. The bill does not contain any specific cybersecurity or chemical transportation-safety requirements, but both areas are addressed in the Committee Report.

Cybersecurity

On page 74 the Report addresses Committee cybersecurity concerns about Amtrak train control systems and a 2019 Amtrak OIG report on those security issues. The Committee “directs Amtrak to comply with the OIG recommendations to improve the cyber security and resiliency of Amtrak’s train control systems” and to prepare a report for Congress on their actions.

On page 83 the Committee directs the Washington Metropolitan Area Transit Authority (WMATA) to work with DOT and CISA “to ensure that the agency is complying with best practices for the procurement of Industrial Control Systems.” Additionally WMATA is directed to” to include analysis of Internet of Things (IoT) and unknown and unauthorized devices in its cybersecurity plan.”

Chemical Transportation Safety

The report covers a number of issues related to liquified natural gas (LNG) transportation and handling. On pages 93 thru 94 there is an entire section related to LNG by rail transportation. The Committee requires a number of reports from the PHMSA about safety issues related to LNG by rail. The section closes out with the statement:

“Further, the Committee notes that the INVEST in America Act [HR 2; passed by the House and not likely to be taken up by the Senate] requires the Department to rescind any special permit or approval for the transportation of LNG by rail tank cars and places a stay on any regulation authorizing the transportation of LNG by rail tank cars until the Department completes a thorough evaluation of the safety, security, and environmental risks of transporting LNG by rail.”

On page 96 the Report addresses safety issues at LNG facilities (also regulated by PHMSA). It notes that the Committee “supports PHMSA’s efforts to hire 5 inspectors and engineers to help address the potential risks associated with LNG facilities.” It also expresses concerns about delays in the rulemaking efforts to update 49 CFR 193.

In two different areas the Report addresses the safe transportation of ‘energy products’. On pages 94 thru 95 addresses safety issues related to the transportation of crude oil by rail and includes a requirement for a congressional briefing “on the findings and recommendations of the Crude Oil Characterization Research Study [link added].” DOE and DOT have already sent their required report, the Report to Congress on the Crude Oil Characterization Study, to Congress.

The second area where the Report addresses ‘energy products is in pages 96 thru 97 where ‘energy products training’ is covered. It closes the short discussion by noting:

“As PHMSA’s responsibilities for the safe movement of LNG expands, the Committee directs PHMSA to enhance its training curriculum for local emergency responders to account for LNG facilities and the transportation of LNG in rail tank cars.”

Moving Forward

HR 7616 will be included in the second spending minibus, HR 7617. The House Rules Committee will meet on Tuesday to formulate the rule for consideration of this much longer and more controversial spending bill.

Bills Introduced – 7-16-20

Yesterday with both the House and Senate meeting in pro forma session there were 60 bills introduced. Of those three may receive additional coverage in this blog:

HR 7616 Making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2021, and for other purposes. Rep. Price, David E. [D-NC-4]

HR 7617 Making appropriations for the Department of Defense for the fiscal year ending September 30, 2021, and for other purposes. Rep. Visclosky, Peter J. [D-IN-1]

HR 7667 Making appropriations for the Departments of Commerce and Justice, Science, and Related Agencies for the fiscal year ending September 30, 2021, and for other purposes. Rep. Serrano, Jose E. [D-NY-15]

Bills Introduced – 09-19-19

Yesterday with both the House and Senate in session, there were 65 bills introduced. Four of these are likely to see further attention in this blog:

HR 4402 To require the Secretary of Homeland Security to conduct an inland waters threat analysis, and for other purposes. Rep. Lesko, Debbie [R-AZ-8]

S 2250 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, 2020, and for other purposes. Sen. Collins, Susan M. [R-ME] 

S 2522 An original bill making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies for the fiscal year ending September 30, 2020, and for other purposes. Sen. Hoeven, John [R-ND]

S 2524 An original bill making appropriations for financial services and general government for the fiscal year ending September 30, 2020, and for other purposes. Sen. Kennedy, John [R-LA] 

HR 4402’s threat assessment would certainly be of interest to MTSA covered facilities located along those inland waterways.

Rules Committee Approves Rule for Consideration of HR 3055 – 2nd FY2020 Minibus

Yesterday the House Rules Committee approved the rule for the consideration of HR 3055, the 2^nd FY2020 minibus. The rule provides for the initial debate and offering of 290 amendments. The House is scheduled to start consideration of the bill today after completion of its work on HR 2740, the 1^st FY2020 minibus.

Amendments

Of the four amendments that I mentioned in my earlier post, only two were included in the list of amendments allowed to be offered on the floor during the consideration of this bill. Those were:

233 DeFazio (D,OR) Prohibits authorizing the transportation of liquefied natural gas by rail tank car and prohibits the Secretary of Transportation from using funds to authorize transportation of liquefied natural gas by rail tank car by issuance of a special permit or approval.

264 Maloney (D,NY) Decreases and then increases funding for Transportation Planning, Research, and Development by $1 million for the purposes of encouraging the Department of Transportation to research implementing connected vehicle and autonomous vehicle technologies at Highway-Rail Grade Crossings.

Comment: Both amendments will probably be adopted. The DeFazio amendment vote will most likely be a party-line vote; the Maloney amendment may receive some Republican support.

Other Provisions

There is a provision in this rule that addresses the remaining consideration of HR 2740. Section 7(b) of H. Res. 445 provides that during the further consideration of HR 2740 [starting this morning] “the question of the adoption of further sundry amendments reported from the Committee of the Whole shall be put to the House en gros and without division of the question.” At this point, I am not sure exactly what amendments that includes. It would probably not include amendments that were debated yesterday, but scheduled for votes today, but that is not certain.

Comment: I suspect that this is the Democrats retaliating for the Republicans forcing votes on each amendment proposed for HR 2740. More importantly, it is a warning that the same measure may be applied to this bill’s consideration if the Republicans continue the tactic to slow down consideration of HR 3055. The Democrats apparently intend to complete consideration of the bill this week.

The rule also provides for the administrative measures necessary for the long 4^th of July weekend that would start when Congress adjourns on Friday; Friday could be a long day.

Rules Committee to Meet on HR 3055 – The Second FY 2020 Minibus

Tomorrow the House Rules Committee will meet to formulate the rule for the consideration of HR 3055, the Second FY 2020 Minibus. The new version of HR 3055 will include language from HR 3055 (CSJ), HR 3164 (ARD), HR 3052 (IER), HR 2745 (MCVA), and HR 3163 (THUD). The meeting Tuesday and a second meeting on Wednesday will set the list of amendments that will be allowed to be considered on the floor. The HR 3055 web page currently lists 553 separate (and often duplicative) amendments that have been proposed.

The following amendments have caught my interest:

• Division A (CSJ), #108, Rep. Langevin (D,RI), Increases funding for CyberCorps: Scholarship for Service, the nation’s premiere cybersecurity workforce recruitment and curriculum development initiative by $7.35 million; the money coming from the NSF account for reimbursing DHS for security guard services.

• Division B (ARD), #55, Rep. Langevin, Increases funding for the FDA's Transform Medical Device Safety, Cybersecurity, Review, and Innovation initiative by $5 million in order to increase the FDA's capacity to protect consumers from cyber threats both pre- and post-market; the money coming from the account of the Office of the Chief Information Security Officer, US Department of Agriculture.

• Division E (THUD), #9, Rep. DeFazio (D,OR), Prohibits authorizing the transportation of liquefied natural gas by rail tank car and prohibits the Secretary of Transportation from using funds to authorize transportation of liquefied natural gas by rail tank car by issuance of a special permit or approval.

• Division E (THUD), #107, Rep. Maloney (D,NY), Decreases and then increases funding for Transportation Planning, Research, and Development by $1 million for the purposes of encouraging the Department of Transportation to research implementing connected vehicle and autonomous vehicle technologies at Highway-Rail Grade Crossings.

HR 3163 Reported in House – FY 2020 THUD Spending

Earlier this week Rep. Price (D,NC) introduced HR 3163, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2020. The House Appropriations Committee also published their Report on the bill. There are lots of interesting provisions in the bill as well as some important discussions in the Report.

Control System Security

Section 195 (pgs 103-4) of the bill would prohibit DOT from issuing grants “to entities that do not comply with practices for control system procurement recommended by the U.S. Department of Homeland Security’s National Cybersecurity and Communications Integration Center” {§195(a)} This overly broad language does include an escape clause whereby the Secretary can waive the requirement when it “would be inconsistent with the public interest” {§195(b)(1)}.

The Report address the cybersecurity of a specific type of control system; Positive Train Control (PTC). On page 54 the Committee urges the Federal Railroad Administration (FRA) “to establish enhanced cyber security methods, standards, and best practices for PTC systems and future versions of this technology”.

Automated Transportation Systems

Section 106 of the bill would establish, within the Office of the Secretary, a Highly Automated Systems Safety Center of Excellence. The HASSCE would {§106(b)}:

• Serve as a single place within the Department of Transportation for expertise in automation and human behavior, computer science, machine learning, sensors, and other technologies involving automated systems;

• Support all Operating Administrations of the Department of Transportation; and

• Have a workforce composed of Department of Transportation employees, including direct hires or detailees from Operating [Modal] Administrations.

Employees of HASSCE would “audit, inspect, and certify highly automated systems to ensure their safety” {§106(c)}.

There is additional discussion of the role of HASSCE in the Report (pg 11). The role of the National Highway Transportation Safety Administration in the regulation of automated vehicles is addressed in pages 41 thru 42 of the Report.

Liquified Natural Gas by Rail

On page 53 of the Report the Committee ‘provides’ $2.5 million for “FRA to research and mitigate risks associated with the transportation of crude oil, ethanol, liquefied natural gas (LNG)”. That paragraph goes on to direct FRA and the Pipeline and Hazardous Material Safety Administration (PHMSA) “to continue to support cooperative research on the safe use of LNG in these applications [locomotive fuel and bulk rail transport] which could inform the development of new regulations”.

Page 75 provides a more detailed discussion of LNG by rail rulemaking being pursued by PHMSA. It directs PHMSA to fund a study by National Academies of Sciences, Engineering, and Medicine on the transportation of LNG by rail. The study would address multiple transportation scenarios and look at:

• Release events;

• Hazards when a spill is coupled with an ignition source;

• Leak detection;

• Impacted geographic areas;

• Route terrain challenges; and

• Emergency and first responder training and notification

The Report provides additional discussion of that last item, training, on pg 78. There the Committee “directs PHMSA to enhance its training curriculum for local emergency responders to account for LNG facilities and the transportation of LNG in rail tank cars.”

Commentary

It is odd that the Bill and the Committee Report both specifically address cybersecurity issues with transportation control systems, but then fail to address cybersecurity issues in their discussions of the HASSCE. While early discussions in DOT about highly automated driving systems did at least mention cybersecurity issues, there has been a glaring lack of such language in recent DOT rulemaking processes. Congress must insist that DOT include cybersecurity oversight in its regulation of automated driving systems. And it would have seemed to me that the language in §106 would have been an ideal place to do so.

With that in mind, I would like to suggest the following two changes to provisions within §106:

Revise §106(b)(1) to read:

(1) serve as a single place within the Department of Transportation for expertise in automation and human behavior, computer science, machine learning, sensors, cybersecurity, and other technologies involving automated systems;

Revise §106(c) to read:

(c) Employees of the Highly Automated Systems Safety Center of Excellence shall audit, inspect, and certify highly automated systems to ensure their safety and cybersecurity.

With regards to the control system supply chain security requirements of §195, the only recommended practices document that I can find on the CISA web site is the 2009 “Department of Homeland Security: Cyber Security Procurement Language for Control Systems”.

I am not sure how DOT would go about ensuring that those guidelines are being followed by organizations requesting various Transportation Department grants. Or, even more broadly, how they would determine what organizations would have control systems that would be covered by those recommendations.

Bills Introduced – 06-07-19

Yesterday with both the House and Senate meeting in proforma sessions (it was a short week for both) there were 16 bills introduced. Three of those will probably receive additional coverage in this blog:

HR 3156 To promote the use of smart technologies and systems in communities, and for other purposes. Rep. Clarke, Yvette D. [D-NY-9] 

HR 3163 Making appropriations for the Departments of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2020, and for other purposes. Rep. Price, David E. [D-NC-4]

HR 3164 Making appropriations for Agriculture, Rural Development, Food and Drug Administration, and Related Agencies programs for the fiscal year ending September 30, 2020, and for other purposes. Rep. Bishop, Sanford D., Jr. [D-GA-2]

We are seeing an unusual number of ‘smart technology’ bills in this session. This is typically an indication that a topic has garnered enough political attention that we can expect to see some action in the not too distant future. As is usual I will be watching HR 3156 for cybersecurity issues.

Senate Takes Up HR 6147 – Another Mini-Bus

Last week the Senate started consideration of HR 6147, the Interior, Environment, Financial Services, and General Government Appropriations Act, 2019. The Senate is considering substitute language (SA 3399) that adds language from S 2976 (FY 2019 ARF) and S 3028 (FY 2019 THUD spending). During the week there were a large number of amendments offered (see here, here, here and here), but only two of those may be of specific interest to readers of this blog. Once concerns unmanned aviation systems (UAS) and one addresses positive train control (PTC) implementation grants. Neither of the two amendments have been considered on the floor of the Senate to date.

UAS Amendment

SA 3516 (pg S5308) was proposed by Sen. Gardner (D,CO). It would amend 18 USC by adding a new section making it illegal to operate unauthorized unmanned aircraft over wildfires. This amendment is very similar to S 3132 which I have only briefly addressed.

PTC Grants

SA 3527 (pg S 5310) was proposed by Sen. Blumenthal (D,CT). The amendment would make available $150 million of existing grant monies specifically available for “for the implementation of positive train control” projects with priority being provided to projects relating to commuter rail operations.

Moving Forward

A cloture vote on the substitute language is scheduled for this week. Once action on the substitute language takes place, a cloture vote will be held on HR 6147. There is the possibility that additional amendments (possibly including the two listed above) may be considered under unanimous consent motions during the remaining debate.

The revised language being considered by the Senate means that this bill will have to go back to the House for consideration. This will almost certainly result in the House insisting on their language (particularly since the Senate language is drastically different than the House language in the Agriculture section of the bill (seen in HR 5961) and will result in a conference committee. There is an outside chance that the call for a conference committee could come during a pro forma session in August. Absent that, it will be September before the conference could meet; pushing the deadline for a final vote by September 30th.

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.

Bills Introduced – 06-12-18

Yesterday with both the House and Senate in session there were 31 bills introduced. Of those, one may be of specific interest to readers of this blog:

HR 6072 Making appropriations for the Department of Transportation, and Housing and Urban Development, and related agencies for the fiscal year ending September 30, 2019, and for other purposes. Rep. Diaz-Balart, Mario [R-FL-25]

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 2844 Introduced – THUD Spending

This week Sen. Collins (R,ME) introduced S 2844, the Transportation, Housing and Urban Development, and Related Agencies (THUD) Appropriations Act, 2017. Since the Senate Appropriations Committee has already completed it markup of this bill the Committee Report is also available.

As is usual the bill contains no specific mention of chemical transportation safety or cybersecurity issues (beyond internal cybersecurity requirements) other than funding. The Committee report, however, does provide guidance to DOT and its constituent agencies on such topics. Topics of potential interest to readers of this blog include:

• Unmanned Aircraft Systems (UAS);

• Autonomous Vehicles;

• Safe Transport of Energy Products (STEP);

• Comprehensive Oil Spill Response Plans

Unmanned Aircraft Systems

While there are a number of mentions of UAS programs in the report, one specific topic that has been covered in this blog was included; UAS registration (pg 30). The Committee commends the FAA for the development of the on-line registration process for UAS. It then goes on to direct the FAA to “to include in its electronic registration system a link for registrants to undergo a suitable and interactive online education and training program.” A report to Congress is included in the requirement.

Autonomous Vehicles

The Committee mentions autonomous vehicle programs in two different areas of the report; FHWA (pg 45) and NHTSA (pgs 55-6). In the FHWA section of the report the Committee requests a report on the economic effects of autonomous vehicles; specifically focusing on “on motor carriers, ports, transit, and related industries”.

The NHTSA portion of the report notes that the Committee is recommending “$6,600,000 for vehicle electronics and emerging technologies”. A brief note adds that the “Committee directs the agency to also reduce cybersecurity risks associated the vehicle’s electronic and communications systems” with those funds.

Safe Transport of Energy Products

The report notes (pg 60) that FRA funding includes monies intended to “support FRA’s efforts to improve the safe transport of energy products”. Those funds would support “FRA’s efforts to improve the safe transport of energy products. The STEP initiative supports crude oil safety inspectors, crude oil route safety managers, and tank car quality assurance specialists, tank car research, as well as supports increased mileage of a dedicated Automated Track Inspection Program vehicle on routes with energy products traffic”.

Comprehensive Oil Spill Response Plans

While the Committee recognizes that PHMSA did publish an advance notice of proposed rulemaking (ANPRM) on comprehensive oil spill response plans for railroads, the Committee is extremely disappointed in the lack of action since then. In this report the Committee “directs PHMSA to initiate a rulemaking to expand the applicability of comprehensive oil spill response plans to rail carriers no later than June 30, 2016, and to issue a final rule no later than December 18, 2016”.

Moving Forward

With the Senate taking up HR 2028 last week (the vehicle for the FY 2017 military construction spending bill), it is obvious that the Senate is not going to wait for the House to start the spending bill process. Where this particular bill fits in the schedule is open to some question, but it is obviously relatively high on the priority of the Senate Appropriations Committee.

The House will most likely take up their own bill and then the two bills would go to Conference before a final version is passed and sent to the President. It is still too early to dismiss final action on this bill before the election. If the Senate takes action on the bill in the next couple of weeks we might actually see this bill pass before the summer recess. I’m not holding my breath, but it is possible.

Commentary

The UAS training program suggestion seems like a no brainer on its face; ensuring that small UAS operators have at least a minimum of safety and regulatory training before they operate their UAS is a motherhood and apple pie proposal. Unfortunately, this is one of those appearance suggestions that is likely to have adverse consequences. While registration is legally required, the way that it has been implemented is actually a voluntary registration program, particularly for non-commercial UAS.

Since there is no effective way of policing the registration requirement, the FAA is relying on voluntary compliance with the registration requirement. And that voluntary compliance is apparently failing miserably. The FAA estimated that there were 1.6 million UAS sold in the United States in 2015, yet the registrations reported by the FAA total less than 10% of that number.

Anything that makes the registration process more difficult or expensive will reduce the number of registrations. The current ‘training’ requirement in the registration process is nothing more than an ‘I have read and understand’ check box that is probably as effective as the similar check boxes found during the ‘registration’ process for many web sites and software programs. To add requirements for anything more complicated than that will ultimately reduce the number of UAS owners that will undergo the registration process.

The autonomous vehicle cybersecurity provisions are just another case of satisfying appearances. While encouraging NHTSA to address cybersecurity issues the Committee only authorizes $6.6 million for all spending on autonomous vehicle technology. The fact that the Committee also cautioned NHTSA not to kill the innovative program with regulation helps to ensure that NHTSA will be doing little in vehicle cybersecurity regulation.

It is nice to see that the Committee supports the STEP program, but without a line-item in either the bill or the report for the program, it is evident that this is more of a pro forma support rather than taking any real action to support safe transportation of flammable fuel liquids.