Friday, May 20, 2016

Spring 2016 Unified Agenda – DOT

As I mentioned yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) published the Spring 2016 Unified Agenda. Today I want to look at the Unified Agenda for the Department of Transportation. I do not follow this portion of the Unified Agenda as closely as I do the DHS portion; mainly because DOT is a much more prolific writer of regulations than is DHS.

The Current Agenda


The table below lists the DOT rulemakings on the current agenda that I find interesting. This is a smaller set of interest than I normally follow here in this blog, but I do have some space and reader interest limitations that I need to take into consideration.

FAA
Proposed Rule Stage
Operations of Small Unmanned Aircraft Over People
FAA
Final Rule Stage
Operation and Certification of Small Unmanned Aircraft Systems
FAA
Final Rule Stage
Registration and Marking Requirements for Small Unmanned Aircraft
NHTSA
Proposed Rule Stage
Federal Motor Vehicle Safety Standard FMVSS 150 -- Vehicle to Vehicle (V2V) Communication
PHMSA
Proposed Rule Stage
Hazardous Materials: Review and Update of Rail Carrier Regulations in Part 174 RRR
PHMSA
Proposed Rule Stage
Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains
PHMSA
Proposed Rule Stage
Hazardous Materials: Real-Time Emergency Response Information by Rail
PHMSA
Final Rule Stage
Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars

The FAA


The Federal Aviation Administration (FAA) has 38 rulemakings listed in this version of the Unified Agenda. Unfortunately, none of those seems to address cybersecurity issues. While the FAA, aircraft manufacturers, and airlines are beginning to look at the potential risk from these issues, it does not appear that we are anywhere near regulatory considerations at this point.

I have selected three unmanned aerial system (UAS) rulemakings to include in my table. The first deals with flying small UAS over people and its abstract includes an interesting sentence; “This rulemaking would provide relief from certain operational restrictions implemented in the Operation and Certification of Small Unmanned Aircraft Systems final rule.” That rule prohibited the flying of small UAS over people.

The second rulemaking deals with the regulation of the operation of commercial small UAS. Since this rulemaking is supposed to look at registration and marking of small UAS, I included the third rulemaking which already addressed those issues in an interim final rule. The FAA still intends to issue a final rule on this topic.

NHTSA


The National Highway Transportation Safety Administration (NHTSA) has 25 rulemakings on the Unified Agenda. Only one of those may be of specific interest to readers of this blog, the vehicle-to-vehicle (V2V) rulemaking. That is because of the cybersecurity provisions that may be included in the rulemaking. I addressed these in my blog post on the ANPRM back in 2014; yes, NHTSA moves as fast as the rest of DOT in their rulemaking process.

PHMSA


The Pipeline and Hazardous Material Safety Administration (PHMSA) also has 25 rulemakings listed on the Unified Agenda. I selected four of those that deal, at least tangentially, with crude oil transportation by rail.

The first is a somewhat cooperative venture between PHMSA and the Federal Railroad Administration (FRA). This rulemaking would address results of an FRA study that identified “several trends in industry practices and operating procedures that present new and different risks to safety”. Addressing those risks and just generally updating the regulations regarding the handling of hazardous materials via rail should make for an interesting rulemaking.

The rail oil spill response plan rulemaking is high on the Congressional wish list and they have been applying pressure on PHMSA to complete this rulemaking. As would be expected, similar pressure is being exerted by a variety of environmental and safety activist organizations. Unfortunately, those two pressure points are pushing towards entirely different outcomes in the regulatory schema so I expect that we will see continued delays on this rulemaking.

The third PHMSA rulemaking was dictated by Congress in §7302 of the Fixing America's Surface Transportation (FAST) Act passed last December. It would require the creation of electronic train consists that include the identification of hazardous materials and emergency response information for those materials. Class 1 railroads are already developing/deploying this technology so PHMSA is behind the regulatory power curve.

The last rulemaking was also specified by the FAST Act in sections 7304, 7305, and 7306. In this case Congress was much more specific about what the rule should entail so PHMSA is going with a direct final rule without the publish and comment process to speed up their response to the Congressional requirement. Congress mandated that the final rule be published by May 16th, 2016, so PHMSA is already late on this rulemaking; no surprise here.

Long-Term Actions


While the DOT Unified Agenda is lengthy, they keep (with the exception of NHTSA) relatively few items on their long-term actions list. Only two items on their list made it to my list of interst:

OST
Protection of Sensitive Security Information
FRA
Track Safety Standards; Improving Rail Integrity

The first is included because both DHS and DOT have responsibility for protecting SSI and both have this on their long-term action list. Of course their continued inaction will mean that the SSI program will be more impacted by the National Archives and Records Administration rulemaking on sensitive but unclassified information that is in OIRA review.

At first glance I was severely disappointed to see this new rulemaking listed on the long-term actions page, but after a closer look I am just as confused as I am disappointed. Anyone that has followed the crude oil train issue in any detail will know that a large number of the crude oil train derailments that we have seen have been due, at least in part, by rail integrity issues. This rulemaking should be a priority for the FRA.


What makes me confused is that looking at the rulemaking page it shows that FRA intends to have a notice of proposed rulemaking (NPRM) ‘scheduled’ for June 2016. While I never believe projected dates in the Unified Agenda, that would indicate a fairly short-term long-term action. Oh well.

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