PHMSA Sends Fuel Transportation Final Rule to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a final rule from the DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) on “Eliminating Unnecessary Burdens On Fuel Transportation”. The notice of proposed rulemaking (NPRM) for this action was published on October 28^th, 2024.

According to the Spring 2025 Unified Agenda entry for this rulemaking:

“PHMSA is adopting several amendments to the Hazardous Materials Regulations to reduce unnecessary regulatory burdens associated with the safe transportation of hazardous materials, including energy products, in commerce. These amendments will reduce costs on hazardous materials transporters and eliminate unnecessary regulatory burdens on fuel transportation while maintaining or increasing the level of safety provided in the Hazardous Materials Regulations.”

This certainly sounds like the rulemaking is in response to the deregulatory demands of  EO 14154, Unleashing American Energy. An alert reader will have noticed, however, that the NPRM for this rulemaking was published under the Biden Administration under the title of “Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation”. To be fair, the rulemaking was initiated under the 45 Administration as the “Hazardous Materials: Modal Regulatory Reform Initiatives”.

While the 47 Administration has exhibited a tendency to broadly interpret the rulemaking requirements, they would probably avoid trying to add significant new deregulatory actions in the final rule that were not included in the NPRM to avoid lawsuits that could tie up their over worked and understaffed DOJ in difficult to win court cases.

Committee Hearings – Week of 04-23-17

With both the House and Senate back in Washington after their two-week recess, the main focus this week will be on getting a spending bill passed for the remainder of FY 2017. The deadline for that is Saturday, else the dreaded government shutdown will occur (unlikely). With that on the congressional platter the hearing schedule is relatively light this week; there is just one hearing that may be of specific interest to readers of this blog. It will address hazmat transportation issues.

HAZMAT Transportation

On Wednesday the Railroads, Pipelines, and Hazardous Materials Subcommittee of the House Transportation and Infrastructure Committee will be holding a hearing looking at “Building a 21st Century Infrastructure for America: The State of Railroad, Pipeline, and Hazardous Materials Safety Regulations and Opportunities for Reform”. The witness list includes:

• Linda B. Darr, American Short Line and Regional Railroad Association;

• Roger Nober, BNSF Railway

• Paul Rankin, Reusable Industrial Packaging Association;

• Robin Rorick, American Petroleum Institute;

• Donald J. Santa, Jr., Interstate Natural Gas Association of America; and

• John Tolman, Brotherhood of Locomotive Engineers and Trainmen

I expect that we will hear very little about new regulations that the industries need to protect the public and more about what current and proposed rules need to be reviewed, revamped, or removed.

On the Floor

Nothing of specific interest expected to come to the floor of either the House or Senate this week beyond the FY 2017 Continuing Resolution. That bill has not yet been made public; still too much horse trading going on for that. It is interesting that we are seeing news this week about what bill components (or lack thereof) might result in a Trump veto of the spending bill coming out of a Republican controlled Congress.

As always, I will leave the gross reporting on the bill to the national press. I will focus on the specifics of what the bill might mean to the chemical safety, security and transportation communities and the control system cybersecurity community.

FTA Publishes Public Transit System Safety Plan NPRM

Yesterday the DOT’s Federal Transit Administration published their notice of proposed rulemaking (NPRM) for public transit system safety plans in the Federal Register (81 FR 6343-6371).

Like the national transportation safety plan that I mentioned a week ago as starting to wend its way through the regulatory process, I had hoped to see a mention of cybersecurity as a component of the safety plan. I had thought that the regulators would see that, with the increasing reliance on automated control systems in the transportation process, protecting those systems from attack would be an important part of ensuring transportation system safety.

Unfortunately, this NPRM completely ignores the security component of safety of any sort, much less cybersecurity. This is not an uncommon point of view for safety professionals. They strive to prevent accidents. Over the years they have specifically excluded deliberate acts from their consideration as being uncontrollable.

The modern world, with its new modern terrorists, requires a rethinking of that outlook by safety professionals. With the ability to access transportation control systems from nearly anywhere in the world via the internet, a terrorist organization no longer needs to infiltrate personnel and weapons into the country to be able to attack public transit. The ability to attack from a distance without exposing its personnel to arrest or death ensures that a modern terrorist organization is going to use this mode of attack, sooner rather than later. This is especially true when you consider that the same team would be able to simultaneously attack multiple transit systems or a single transit system at multiple locations.

It is true that the Transportation Security Administration is technically responsible for security programs across all transportation modes. The reality, however, is that TSA has always been primarily focused on public air transportation due in large part to Congressional funding priorities. On the surface transportation side they have had a very minimal focus on providing security support to surface transit operations, primarily limited to roaming security teams and canine support.

TSA has been incapable of meeting Congressional mandates for even establishing surface security awareness training programs. They would be totally incapable of establishing requirements for cybersecurity requirements for transit control systems, due both to lack of funding and the lack of control system expertise.

The Department of Transportation is going to have to realize that its focus on transportation safety must also include an emphasis on transportation control system security. Without an active program to protect those control systems from terrorist, hactavist and even criminal attacks, DOT and it modal agencies will not be able to guarantee the safety of the associated transportation systems.

The FTA is soliciting public comments on this rulemaking. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FTA-2015-0021). Comments need to be submitted by March 5^th, 2016.

HR 3236 Passed in House

Early this evening the House took up HR 3236, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015. After just 24 minutes of debate the bill was passed by a strongly bipartisan vote of 385 to 34. This bill would extend the current surface transportation authorization (set to expire Friday night) until October 31^st, 2015.

It looks like the Senate will take up this bill tomorrow.

Carrier Safety Fitness Determination NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received from DOT’s Federal Motor Carrier Safety Administration a draft of their notice of proposed rulemaking changing the safety fitness determination program.

The Unified Agenda describes the rule this way:

“FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to adopt revised methodologies that would result in a safety fitness determination (SFD). The proposed methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on (1) the carrier’s performance in relation to five of the Agency’s Behavioral Analysis and Safety Improvement Categories (BASICs); (2) an investigation; or (3) a combination of on-road safety data and investigation information. The intended effect of this action is to reduce crashes caused by CMV drivers and motor carriers that result in death, injuries, and property damage on U.S. highways by more effectively using FMCSA data and resources to identify unfit motor carriers and remove them from the Nation’s roadways.”

This rulemaking was first published in the Unified Agenda in 2007.

Committee Hearings – Week of 6-1-14

The House is working back in their districts this week but the Senate is in session. Transportation will be the focus of three hearings; one authorization and two spending hearings. The other hearing of potential interest to readers of this blog will be an oversight hearing on port security.

THUD Spending

There will be two hearings this week on the Senate’s version of the FY 2015 transportation spending bill. The Homeland Security subcommittee of the Senate Appropriations Committee will meet Tuesday to mark-up the draft version of the bill which is not yet publically available. The Full Committee will meet Thursday for the final mark-up. I fully expect the bill to contain language addressing the safety of crude oil unit trains in general and the regulation of DOT 111 rail cars specifically.

Surface Transportation Authorization

The Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Subcommittee of the Senate Commerce, Science and Transportation Committee will meet on Tuesday to discuss “Surface Transportation Reauthorization: Examining the Safety and Effectiveness of our Transportation Systems”. Again, I expect that the topic of the safety of the safety of crude oil unit trains and DOT 111 car regulations will come up.

Port Security

The Senate Homeland Security and Governmental Affairs Committee will be meeting on Wednesday to look at “Evaluating Port Security: Progress Made and Challenges Ahead”. The witness list currently includes:

• Ellen McClain, Office of Policy, DHS;

• Rear Admiral  Paul F. Thomas, USCG;

• Kevin K. McAleenan, Customs and Border Protrection, DHS;

• Brian E. Kamoie, FEMA, DHS;

• Stephen Sadler, TSA, DHS; and

• Stephen L. Caldwell, GAO.

Congressional Hearings – Week of 5-4-14

It is going to be a busy week for hearings on both sides of Capitol Hill. There are five House hearings and two Senate hearings currently scheduled that may be of specific interest to readers of this blog, two transportation hearings, two WMD related hearings and three cybersecurity hearings.

Transportation

The Transportation, and Housing and Urban Development, and Related Agencies Subcommittee of the House Appropriations Committee will hold a markup hearing on the THUD spending bill for FY 2015. That spending bill is not normally introduced until after this hearing so we can’t tell for sure what will be in it. I would bet, however, that there will be language related to crude oil trains included in the bill.

The Senate Commerce, Science and Transportation Committee will be holding a hearing on the reauthorization of the Surface Transportation Act. Again, lots of transportation safety issues will be discussed, but a big topic will be crude oil rail shipments.

WMD

The Europe, Eurasia, and Emerging Threats Subcommittee of the House Foreign Affairs Committee will be holding a hearing on Wednesday looking at “Assessing the Biological Weapons Threat: Russia and Beyond”. Well, Russia certainly can be expected to have the technological where-with-all to produce bio-weapons so this is probably a reasonable hearing topic. Witnesses include:

• David R. Franz, USAMRIID; and

• Amy Smithson, James Martin Center for Nonproliferation Studies;

The Cybersecurity, Infrastructure Protection, and Security Technologies Subcommittee of the House Homeland Security Committee will be holding a hearing on Thursday looking at “Electromagnetic Pulse (EMP): Threat to Critical Infrastructure”. This hearing was originally schedule on 2-26-14. Still no witness list.

Cybersecurity

The House Armed Services Committee will conduct a full committee markup of HR 4435, the FY 2015 NDA, on Wednesday. After a round of subcommittee markups last week there still does not appear to anything mentioning cybersecurity or cyber warfare in the bill. That may change at this markup.

The Homeland Security Subcommittee of the Senate Appropriations Committee will be holding a hearing on Wednesday looking at “Investing in Cybersecurity: Understanding Risks and Building Capabilities for the Future”. This will almost certainly focus on Federal IT systems, but control systems may get mentioned. The witness list includes:

• Phyllis Schneck, Cyber, National Protection and Programs Directorate, DHS;

• William Noonan, Homeland Security Investigations, Immigration and Customs Enforcement, DHS;

• Jonathan Katz, Maryland Cybersecurity Center, University of Maryland;

• Dave Mahon, CenturyLink;

• Scott R. Bowers, Indiana Statewide Association of Rural Electric Cooperatives

• Christopher Peters,  Entergy Corporation

There will be a joint hearing on Thursday with two Homeland Security subcommittees looking at “Assessing Persistent and Emerging Cyber Threats to the U.S. Homeland”. Again I suspect an IT-centric focus, but you never can tell.

House Floor

There is nothing currently scheduled for the House floor this week that will be of specific interest to readers of this blog.

Congressional Hearings – Week of 3-23-14

Both the House and Senate will be back in Washington this week. The budget continues to be a big topic for hearings; the table below provides a summary of the budget hearings. No other House hearings of specific interest, but there will be three hearings on the Senate side of the Capital that might be of specific interest to readers of this blog. They include topics of perennial interest; emergency response, cybersecurity and transportation safety.

Agency	House Appropriations	House Oversight	Senate Appropriations	Senate Oversight
DHS	3-11-14	3-13-14	3-11-14	3-13-14
DOT	3-12-14	3-12-14	3-13-14
Defense	3-13-14	3-6-14
CG	3-12-14	3-26-14
FEMA	3-26-14	3-25-14		3-13-14
TSA	3-25-14

Budget Hearing Summary

Emergency Response

The Emergency Management, Intergovernmental Relations and District of Columbia Subcommittee of the Senate Homeland Security and Governmental Affairs Committee will be holding a hearing on Tuesday looking at “Preparing our First Responders for Emerging Threats and Hazards”.

The focus of the hearing will be on transportation related incidents and crude oil trains will be widely discussed. Witnesses include:

• Mike King, FEMA;

• Tim McLean, Casselton, ND Fire Department; and

• Lisa Stabler, Transportation Technology Center, Inc.

Cybersecurity

The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on Wednesday looking at “Strengthening Public-Private Partnerships to Reduce Cyber Risks to Our Nation’s Critical Infrastructure”.

The witness list is pretty wide ranging so there may be some discussion about control systems in this hearing, but probably not much. The witnesses include:

• Phyllis A. Schneck, NPPD-DHS;

• Donna Dodson, NIST;

• Stephen L. Caldwell, GAO;

• Elayne Starkey, Delaware Department of Technology and Information,

• David M. Velazquez, Pepco Holdings, Inc.;

• Doug Johnson, Financial Services Sector Coordinating Council; and

• Steven R. Chabinsky, CrowdStrike, Inc.

Transportation Safety

On Thursday the Senate Environment and Public Works Committee will be holding a hearing looking at “MAP-21 Reauthorization: State and Local Perspectives on Transportation Priorities and Funding”. No witness list is available yet, but the title indicates that they will probably be State and local officials. Transportation safety will be one of the topics discussed.

On the Floor

There will probably be nothing of specific interest to readers of this blog brought up on the floor of either body this week. We are getting deeper into the political cycle so we are seeing more political posturing and looking good for the home audience. Tuesday will see a number of bills on the floor of the House renaming Federal buildings after local heroes; most of the renaming ceremonies will take place before the first Tuesday in November and will feature the local Congressional delegation.

Bills Introduced – 02-25-14

Yesterday both the House and Senate were in the Capitol and a total of 27 bills were introduced, one of which might be of specific interest to readers of this blog:

HR 4076 Latest Title: To address shortages and interruptions in the availability of propane and other home heating fuels in the United States, and for other purposes.Sponsor: Rep Shuster, Bill (D,PA)

This bill would extend the 30-day limit on transportation emergencies to allow the DOT Secretary to continue to suspend certain transportation safety regulations to allow for the transportation of propane into areas of the country hit by the current local shortage and low temperatures. Since this was introduced by the Chair of the House Transportation Committee I assume that this will see quick action.

Senate Begins Consideration of S 1243 – FY 2014 DOT Spending bill

On Thursday the Senate officially began the consideration of S 1243, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2014. No action was taken beyond the Clerk’s reading of the title of the bill in and the first cloture motion being submitted. Actual action will begin next week with the vote on the cloture motion to close debate on proceeding to consider the bill on Tuesday.

No amendments to S 1243 were filed on Thursday or Friday (only a pro forma session Friday so nothing could be filed then in any case. I expect that we will start to see the amendment process crank up on Tuesday.

BTW: The House is not currently scheduled to take up HR 2610, the House version of the bill, according to the Majority Leader’s web site, but that may change as the Rules Committee is scheduled to take up the bill on  Monday evening. More on that in my weekly congressional hearing post.

PHMSA Submits Rail Petition ANPRM to OMB

On Tuesday the Pipeline and Hazardous Material Safety Administration submitted an advance notice of proposed rulemaking (ANPRM) to the Office of Management and Budget (OBM) that would enhance safety and revise and clarify the HMR applicable to the transportation of hazardous materials by rail. This rulemaking is being initiated in response to petitions for rulemaking submitted by the regulated community and NTSB recommendations that are associated with the petitions.

According to the Abstract for this rulemaking in the Unified Agenda this rulemaking would:

• Identify elements of non-conformity that do not require a movement approval from the Federal Railroad Administration (FRA);

• Correct an unsafe condition associated with pressure relief valves (PRV) on rail cars transporting carbon dioxide, refrigerated liquid;

• Revise outdated regulations applicable to the repair and maintenance of DOT Specification 110, DOT Specification 106, and ICC 27 tank car tanks (ton tanks);

• Except ruptured discs from removal if the inspection itself damages, changes, or alters the intended operation of the device; and

• Enhance the standards for DOT Specification 111 tank cars used to transport Packing Group I and II hazardous materials.

Since this ANPRM is in response to industry petitions, the political pressure that might delay OMB consideration of this rulemaking is probably not present, so we may see approval of this ANPRM within a month or so.

In light of the recent crude oil train derailment, fires and explosion, it will be interesting to see exactly what changes are being considered for the standards for DOT Specification 111 tank cars.

PHMSA Safety Advisory – LPG Odorization

Today the Pipeline and Hazardous Material Safety Administration (PHMSA) published a safety advisory in the Federal Register (78 FR 42818-42819) concerning inadequately odorized liquefied petroleum gas (LPG). This action is being taken in response to ‘several incidents’ where inadequately odorized LPG contributed to the severity of the incident. Odorants are added to LPG to act as a warning of the presence of LPG to help avoid fires and explosions when LPG containers leak.

Inadequate Odorization

The advisory notes that there are apparently two causes of inadequate odorization: an inadequate injection of odorants into the LPG and odorant fade caused by the absorption of the odorant onto the walls of new or freshly cleaned LPG tanks.

Where odorants (typically ethyl mercaptan, thiopane, or amyl mercaptan) are manually injected into LPG, PHMSA suspects that human error is the common cause of under-odorization. They recommend that “quality control checks should be conducted to ensure that the requisite amount of odorant is being injected”. Where automated equipment is being used “equipment calibration checks should be periodically performed to ensure consistent injection levels of the required odorant”.

When new or freshly cleaned tanks are being put into LPG service, the advisory recommends “that persons who receive new or recently cleaned tanks be notified of this fact and that persons filling these tanks implement appropriate quality control measures to ensure that potential odorant fade is adequately addressed”.

Rail Car Regulatory Anomaly

While the advisory does not specifically claim that this has contributed to any LPG incidents, it does note that the way the Hazardous Materials Regulations (HMR) deals with odorization in truck and rail shipments does differ.

The advisory explains that the HMR {173.315(b)(1)} requires that LPG shipped by cargo tank or portable tank must be odorized unless doing so “would be harmful in the use or further processing of the LPG” (typically for shipments to industrial customers using LPG in other processes). There are no such requirements for rail shipments (NOTE: I assume that the presumption was that rail car shipments were defacto going to industrial customers and would thus not require odorization).

The advisory notes that:

“Therefore, in this safety alert, PHMSA recommends that all LPG transported in rail tank car tanks or cylinders be odorized in accordance with the requirements of § 173.315(b)(1), of the HMR, unless odorization would be harmful in the use or further processing of the LPG, or if odorization will serve no useful purpose as a warning agent in such use or further processing.”

S 1243 Introduced – FT 2014 DOT Spending

As I mentioned in an earlier post Sen. Murray (D,WA) introduced S 1243, the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2014. This bill does not actually include any specific chemical safety or cybersecurity (beyond Department IT cybersecurity spending) provisions. The Senate Appropriations Committee report does, however, include hazmat transportation safety provisions and limited cybersecurity provisions.

Cybersecurity

The Report accompanying this bill briefly addresses a unique set of control system security concerns. First the report notes that 77% of the Department’s cybersecurity budget (or $105 million) is directed to the budget of the Federal Aviation Administration. The Report then goes on to note that two separate DOT IG reports indicate “the FAA had not adequately implemented security requirements for its Automatic Dependent Surveillance-Broadcast System” (pg 33) or its En Route Automation Modernization System. The report concludes that the Committee “expects the Vice President of [FAA] Program Management to coordinate with the CIO for the FAA and for the Department to ensure the security of FAA’s systems is made a high priority”

PHMSA Spending

The spending bill provides modest increases in funding for PHMSA programs. Both the Pipeline Safety Fund and the HAZMAT show increases over the pre-sequester FY 2013 spending, but the HAZMAT program is slightly less than requested by the President. The President continues to propose a HAZMAT special permit fee in his budget, but “the Committee believes that such a fee should be established through the regulatory process or should be addressed through the authorization process” (pgs 90-1) and does not include that in the bill.

Moving Forward

Because of Constitutional limitations, this bill will probably not be brought up until the House passes their version of the bill at which time the Senate would typically substitute this language for the House wording, pass the bill (probably with a number of amendments) and then go to conference to iron out the differences.

In recent years this bill is usually folded into the Omnibus spending bill because Congress has been unable to pass all 13 of the individual appropriations bills before the end of the fiscal year on September 30^th. I suspect that that will occur this year as well.

NTSB Announces Single-Truck Accident Meeting

Today the National Transportation Safety Board announced in the Federal Register (78 FR 29781) that they would be holding a meeting in Washington, DC on June 4^th to look at the results of a Safety Study on the Characteristics of Single-Unit Truck Accidents Resulting in Injuries and Death.

We have been seeing a large number of news reports about single-truck accidents, many of which involve hazardous materials. A reduction in the number of such accidents would be of immeasurable benefit to shippers, transporters and the general public.

The meeting is open to the public and the NTSB will web cast the meeting (I am so glad to see more and more federal agencies learn the value of webcasting; NPPD PLEASE take note). The link will be available on the www.NTSB.gov website.

Bills Introduced – 3-22-13

There has been lots of action in the House and Senate on the bill introduction front leading up to their Easter Recess. There was only one bill that might be of interest to the chemical safety and hazmat transportation communities.

S 638 Latest Title: A bill to amend the Federal antitrust laws to provide expanded coverage and to eliminate exemptions from such laws that are contrary to the public interest with respect to railroads. Sponsor: Sen Klobuchar, Amy (D,MN)

FMCSA Re-submits Unified Registration Final Rule to OMB

In an amazing display of inter-agency cooperation OMB announced that it had first rejected and a Federal Motor Carrier Safety Administration final rule and then accepted the resubmission, all in a single day. I mentioned the FMCSA Unified Registration rule when it was originally submitted to the OMB for review just a little over a week ago.

OMB rejected the original submission as being improperly submitted. The submission error was apparently insubstantial enough that FMCSA was able to correct the problem and resubmit the rule all in the same day. The OMB rejection announcement did not explain the reason that they decided that the original submission was improperly submitted.

FMCSA Submits Unified Registration Rule to OMB

On Friday the Office of Management and Budget (OMB) announced that the Federal Motor Carrier Safety Administration had submitted for OMB review their final rule for the establishment of the Uniform Registration System. The URS would serve as an on-line clearinghouse and depository of information on, and identification of, motor carriers, brokers, freight forwarders, and others required to register with the Department of Transportation.

This rule has been long in the making with an initial legislative deadline for publication in 1998. The initial advance notice of proposed rulemaking (ANPRM) dates back to 1996 (61 FR 43816). The initial NPRM was published in 2005 (70 FR 28990) with a supplemental NPRM in 2011 (76 FR 66506).

Given the controversial nature of the expansion of FMCSA regulations proposed in this rule, I suspect that it will take even longer than normal for OMB to approve the publication of the final rule in the Federal Register.

FRA Publishes PTC NPRM Extension Notice

The Federal Railroad Administration (FRA) published a notice (78FR 5767-5770) in Monday’s Federal Register (available on line yesterday) that extended the deadline for comments on their notice of proposed rulemaking (NPRM) published in December 2012 that makes changes to the current positive train control (PTC) system requirements. The new deadline for comments is now March 11, 2013.

The notice specifically clarifies some railroad operational questions that it wishes additional comments upon, but any comments on the NPRM will be accepted during the comment extension.

The NPRM would allow railroads to request that certain miles of track be removed from the requirement for the installation or maintenance of a PTC system under relatively low usage rates for carrying toxic inhalation hazard (TIH) chemicals. This could lower railroad costs for handling TIH chemical on those track segments.