FRA Publishes Bakken Notification ICR Renewal 60-day Notice

The DOT’s Federal Railroad Administration (FRA) published a 60-day information collection request renewal (ICR) notice in Monday’s Federal Register (80 FR 63272-63275, available on line Saturday) to extend the current ICR (2130-0604) that requires railroads to notify State Emergency Response Commissions (SERCs) about trains carrying 1 million gallons or more

of Bakken crude oil travel. The currently ICR was approved in July to continue through March 31^st, 2016.

The SERC ICR

According to the latest notice:

“FRA is now requesting to continue these information collection activities until the Pipeline and Hazardous Materials Safety Administration (PHMSA) finalizes the Oil Spill Response Proposed Rule that it is currently working on and that will codify the requirements of the Secretary's Emergency Order.”

In the earlier ICR renewal FRA made a similar request for a three year extension of the emergency ICR that was approved to support the Department’s Emergency Order requiring the SERC notification. In approving the extension, the OMB’s Office of Information and Regulatory Affairs (OIRA) only approved it through March 31^st, 2016; noting that:

“Per the joint PHMSA-FRA HHFT final rule (RIN 2137-AE91), the information collection requirements in the May 7, 2014 emergency order remain in effect until March 31, 2016. OMB is therefore approving this collection until that date. FRA may submit a request to continue this collection after soliciting public comment per the PRA's requirements. PHMSA will address the information collection requirements in the HHFT final rule in a subsequent ICR(s).”

The reason that the public comments for the earlier ICR renewal did not count towards this requirement was that those public comments were requested well before the HHFT final rule was published and it was assumed that the HHFT would address the industry concerns about the information being reported to the SERCs.

Other ICRs

The Federal Register Notice also includes two other FRA ICR renewals. They are:

2130-0614 Ballast Defects and Conditions-Importance of Identification and Repair in Preventing Development of Unsafe Combinations of Track Conditions; and

2130-0529 Disqualification Proceedings

The first is a renewal request for an ICR that was approved last month as an emergency ICR supporting FRA Safety Advisory, 2015-04, Ballast Defects and Conditions. FRA is requesting a standard three year renewal of the ICR.

The second is a long standing (first approved in 1992) ICR supporting FRA actions to issue orders disqualifying railroad employees, including supervisors, managers, and other agents, from performing safety-sensitive service in the rail industry for violations of safety rules, regulations, standards, orders, or laws evidencing unfitness.

Public Comments

The FRA is soliciting public comments on these three ICR renewals. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # 2015-0007-N-26). Comments should be submitted by December 18^th, 2015.

Commentary

The abstract supporting the SERC notification ICR uses almost word for word the information provided in the request for the emergency ICR in May of 2014. It does not reflect any new information since that ICR was approved or since the ICR was renewed in July.

It does not take into account the emergency notification requirements set out in the PHMSA-FRA Highly Hazardous Flammable Train final rule that was published last spring. The preamble to that rule contains a lengthy discussion about the most appropriate way for railroads to notify local emergency response planners about the HHFT routes. The conclusion in that rule was that the existing requirement in 49 CFR 172.820(g) were the most appropriate way to proceed.

The other important consideration from the HHFT rule is the change in information protection status of much of the routing information. The addition of HHFT to the other highly hazardous chemicals requiring specific route selection criteria under §172.820(c). Including HHFT trains in route selection program requires that much of the information included in that route selection process {including the final route; §172.820(e)} must be treated as Sensitive Security Information (SSI; 49 CFR 1520).

Because of the conflicts between railroads, SERCs and much of the emergency response community about the distribution of information provided by the railroads to SERCs under the emergency order, the ICR notice should have provided some mention of the SSI status of the information to be provided to the SERCs and the effect that status would have on the redistribution of that information by the SERCs.

It is true that such issues are not normally addressed in ICR notices. But it was clearly the intent of OIRA when they approved just the short extension of the ICR in July that they expected to see a full public discussion of the important issues that surround this ICR. The FRA did a disservice to the public and the regulated community when it chose to ignore these two important considerations in the preamble to the ICR.

The failure to set forth the FRA’s outlook on these two topics means that they have lost any control over that discussion. The inevitable plethora of responses will inevitably delay the preparation of the 30-day notice. The FRA responses to the comments in 30-day notice will ensure that there will be many comments made to OIRA by the industry and affected communities. Those comments will delay the OIRA consideration of the ICR renewal, probably beyond the publication of the new PHMSA emergency response rule that is supposed to ‘resolve’ the controversy around the route reporting requirements.

And that is the final problem with this ICR. The emergency response and reporting requirements are a function of hazardous material safety not railroad operation. PHMSA will be the agency that establishes the final rule for these requirements, not the FRA. That was the second point made by OIRA when they made their short approval of the ICR renewal. And FRA failed to make any arguments that countered that in this ICR notice. If FRA is working with PHMSA on this ICR then that should have been mentioned in the notice.

The FRA should withdraw this 60-day ICR notice and submit one that appropriately addresses all of the issues that affect approving the extension of this collection beyond March 31^st, 2016. Anything less makes a ludicrous joke of the ICR approval process.

NOTE: A copy of this blog post was submitted as a comment to the Docket on this ICR on 10-25-15 at 11:30 CDT.