Saturday, July 11, 2015

OMB Approves Extension of Bakken Train Notification ICR

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the extension of DOT’s information collection request supporting the Secretary’s May 7th, 2014 Emergency Order concerning notification requirements for trains carrying one million gallons of Bakken crude oil. The Department had asked for a three year extension of the ICR, but OIRA only approved the extension until March 31, 2016.

The ICR extension made some minor changes to the expected annual burden estimates (increased the number of responses by 10 and decreased the hours burden by 5). The reasons for the changed estimate are explained in paragraph 15 of the supporting document [.DOC download] provided to OIRA.

EO and HHFT Reporting Requirements

The reporting requirements in the EO are substantially different than the notification requirements in the new HHFT final rule published earlier this year. The EO requires railroads to notify State Emergency Response Committees (SERCs) of routing information for any train carrying 1 million gallons of crude oil that originated in the Bakken basin.

The HHFT final rule superseded this requirement (as of April 1, 2016) by adding the any HHFT train to the list requiring the additional route planning requirements of 49 CFR 172.820. That regulation requires sort of a backdoor notification to affected Fusion Centers and local officials “who directly contact the railroad to discuss routing decisions” {§172.820(g)}. That reporting requirement is to simply provide a point of contact information for the railroads for HHFT routing information.

The detailed discussion in the HHFT final rule preamble makes it clear that one of the main reasons that DOT did not continue the requirement to report this data to the SERTs was their concern that some states had released the information under local open records requirements to anyone that requested the information. Using the notification process under §172.820 would restrict the release any routing information to persons with a need to know under the Sensitive Security Information provisions of 49 CFR 15 and 49 CFR 1520.

The DOT Secretary continued the current EO reporting requirements until March 31, 2016 because the full reporting requirements under the provisions of the HHFT rule do not start until April 1st, 2016, after railroads have a chance to complete their initial route analysis for HHFT shipments.

Emergency Response Information

Neither of these documents really provides emergency response information to communities. The EO did require direct contact between the railroad hauling unit trains of Baaken crude oil, but there was little or no mention of actual emergency response information. This is addressed in the ICR submitted to OIRA. DOT reported that “PHMSA is now working on a new Oil Spill Response Proposed Rule that will codify the requirements of the Secretary's EO”.

PHMSA published the advance notice of proposed rulemaking for that rule last summer with no solid indication of when an NPRM will be published. There are two bills in the Senate (S 859 and S 1626) and possibly another (S 1732) that could have an impact on this rulemaking activity. In any case, it is clear that a new regulation will not be in place by the time that the current EO expires.

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