FRA Publishes Crude EO 30 Day ICR Notice

Today the DOT’s Federal Railroad Administration (FRA) published a 30-day information collection request (ICR) notice in the Federal Register (79 FR 59891-59893) to extend the current emergency ICR that supports the crude oil train routing reporting requirements of the most recent FRA emergency order regarding crude oil trains.

The bulk of this notice is a response to the single public comment that was submitted directly to the FRA as a result of the 60-day notice on this ICR renewal. That comment was jointly submitted by the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA). The FRA is apparently going to ignore the three public comments submitted via the Federal eRulemaking Portal. Admittedly those comments are more about crude train hazards than about the actual ICR and thus probably don’t require specific comments.

The railroad comment reportedly objected to the SERC reporting requirements of the emergency order on three grounds:

• The routing information is sensitive information on a security basis and thus should be protected from subsequent disclosure;

• The routing information is sensitive information on a commercial competitive information basis and thus should be protected from subsequent disclosure; and

• The reporting requirement is duplicative of voluntary industry standard disclosure and thus un-necessary.

FRA dismisses the security sensitive claim by noting that the information does not fall under any of the fifteen enumerated categories of sensitive security information (SSI) set forth in 49 CFR §15.5 or §1520.5. It is interesting, going back and closely reading those categories of information that there is only one specific reference to rail transportation security and it would not appear to apply in this instance;

“(8) Security Measures. Specific details of aviation, maritime, or rail transportation security measures, both operational and technical, whether applied directly by the Federal government or another person”

There is another DOT regulation that makes railroad hazmat route information SSI. Section 172.820(i)(2) [.PDF Download] specifically applies SSI rules to such routing information for selected hazardous material shipments; toxic inhalation hazard railcars, for instance. Crude oil railcars are not currently included in this category. Interestingly the PHMSA High Hazard Flammable Trains NPMR would modify §172.802(a) to include trains carrying 20 car loads of flammable liquids. This would place the routes for crude oil trains of 100 cars clearly under the SSI requirements.

The sixteenth category (Secretarial discretion for either DOT or DHS) in both of the SSI rules is dealt with by noting that “DOT finds no basis to conclude that the public disclosure of the information is detrimental to transportation safety”. Given the fact that DOT has a rulemaking in progress that that specifies that these train routes require SSI protection, the decision by the Secretary not to designate this material as SSI requires some serious reconsideration either in this ICR or in the proposed changes in the NPMR.

The FRA response on the business confidentiality issue is also interesting. Their claim is that since the disclosures are made to State agencies not the Federal government, then State disclosure laws apply and it is out of the hands of DOT. This is the reason that most rules requiring sensitive information disclosure to State and local government agencies specifically spell out that the disclosures are exempt from State and local government disclosure laws.

Finally, the FRA notes that voluntary disclosures are all well and good, but they are voluntary and may fall short of the requirements of the emergency order without penalty. Placing the requirements in the emergency order provides DOT with a way to enforce the requirement.

FRA is soliciting public comments on this 30-day ICR notice. Comments should be sent directly to the OMB’s Office of Information and Regulatory Affairs. They may be sent by email (oira_submissions@omb.eop.gov). Comments should arrive by November 3^rd, 2014.