May 1, 2015 – Safety & Compliance

Congressional Democrats Threaten to Eliminate PHMSA

As reported by a leading political newsletter, Politico, several top Congressional Democrats have suggested closing the Pipeline and Hazardous Materials Safety Administration and dividing its responsibility for regulation of hazardous materials transportation among the modal administrations (FMCSA, FAA, FRA) at the Department of Transportation. The legislators made the comments at a public hearing last week that focused on delayed efforts by PHMSA to produce a rail safety rule for crude oil trains. According to Politico, at the hearing Rep. Michael Capuano told acting PHMSA Administrator Timothy Butters: “We have to reauthorize PHMSA reasonably soon. Should we? Or should we come up with something new?” “There’s something wrong. Whose butt do we have to kick? Whose budget do we have to cut? Whose budget do we have to enhance to make this work?” Rep. Peter DeFazio, ranking Democrat of the Transportation and Infrastructure Committee, who has been a frequent critic of PHMSA, noted that the agency was created “with the idea that we need to have a laser-like focus and more efficiency,” but questioned whether PHMSA has lived up to that expectation. “I wonder if it would be better if we had some people who just looked at pipelines — that’s a unique mode — if we had safety people at FRA that were dealing with tank cars and understood railroads better, if we had the aviation people dealing with stuff that the industry itself says it doesn’t want to carry on airplanes,” DeFazio said. “And we are not seeing the kind of performance we need here out of this theoretically integrated, efficient agency that will be arm’s length from all of those that it regulates.”

Although many in Congress remain frustrated with the delays in PHMSA’s regulation of rail tank car safety, it is unlikely that the Republican leadership will divide up responsibility for hazardous materials regulation among the modal administrations at DOT.

Rep. Barletta Introduces CSA Reform Bill

Rep. Lou Barletta (R-PA) has introduced H.R. 1371, the Safer Trucks and Buses Act of 2015, to reform the CSA program of the Federal Motor Carrier Safety Administration. The bill would prevent the FMCSA from making carrier SMS data available to the public (currently scores from 5 of the 7 CSA BASICs are available for public inspection on the CSA website) until the agency completes a report to Congress. In addition, such data could not be admitted into evidence or otherwise used in any lawsuit or other civil action for damages resulting from an incident involving a motor carrier. “Covered motor carrier data” is defined to mean data generated with respect to a motor carrier under CSA, including any ranking, rating, score, or other measurement. The bill also requires the FMCSA to submit a study, conducted by the National Academy of Public Administration, to Congress within one year on recommendations to improve CSA, including how the program:

  1. Utilizes only safety data determined to be predictive of motor carrier crashes
  2. Appropriately addresses concerns relating to the age of utilized safety data, including violations
  3. Does not unfairly harm small motor carriers as a result of limited safety data availability
  4. Appropriately addresses differences between motor carriers transporting passengers and motor carriers transporting freight
  5. Allows individual motor carriers to be effectively compared; and,
  6. Utilizes accurate safety data, including–
    1. by appropriately addressing variations between State- and self-reported data
    2. by accounting for geographic differences with respect to enforcement; and,
    3. by not utilizing crash data from crashes with respect to which a motor carrier was free from fault.

One problem with the bill is that it defines the term “motor carrier” as used in 49 U.S.C. §13102 to mean “a person providing motor vehicle transportation for compensation.” This would exclude private motor carriers that do not have for-hire authority. GAWDA General Counsel Rick Schweitzer has contacted Rep. Barletta’s staff in an effort to correct this discrepancy.