Friday, March 11, 2016


Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved the DOT’s Pipeline and Hazardous Material Safety Administration’s (PHMSA) information collection request (ICR) supporting it High-Hazard Flammable Trains regulations that were adopted last year. The 60-day ICR notice was published in May of last year.

I had noted in my blog post on the initial notice that the ICR only reported route reporting and analysis requirements for the HHFT ICR were for Class II and Class III railroads. That is confirmed in the ICR approved yesterday. The supporting document [.DOC download] provided to the OMB by PHMSA states that: “This analysis will be conducted by both Class II and Class III railroads.” (pg 7). It does not seem reasonable that the Class I railroads (which will haul the bulk of HHFT trains) would be exempt from this requirement, so I decided to look at it in detail.

The supporting document (pg 2) states that the routing and analysis requirement comes from 49 CFR 174.310(b)(1). That is actually a misprint since (b) is reserved; it should read §174.310(a)(1) and that sub-paragraph reads:

“Routing. The additional planning requirements for transportation by rail in accordance with part 172, subpart I of this subchapter;”

That actually refers back to §172.820 which originally dealt with rail shipments of certain explosives, toxic inhalation hazard chemicals, and route-controlled radioactive materials. The HHFT rule added high-hazard flammable trains {§172.820(a)(4)} to the materials requiring the route analysis. The original route analysis information collection was added to the Hazardous Materials Security Plans (HMSP) ICR (2137-0612) in 2008. The supporting document [.DOC download] for that ICR clearly lists (pg 10) Class I, Class II and Class III railroads as reporting entities.

That supporting document estimated the subsequent year burden (initial year burden is higher due to setting up the internal data collection system) for the route analysis to be: Class I 960-hrs, Class II 2048-hrs, and Class III 1600-hrs. Over the years renewals and modifications to the security plan ICR have resulted in some changes to the burden estimate. The table below shows the most current data [.DOC download] for the HMSP ICR and the HHFT ICR that was just approved.

HMSP (2014)
Class 1 (hrs)
Not reported
Class II (hrs)
Class III (hrs)

A few of things come to mind from doing a detailed look at the ICR data provided to OMB on these two ICRs. First the current ICR should never have included data on the route analysis in the collection requirement. That was a change that was made to §172.820 and the HHFT data should have been included in an update to the HMSP ICR. Either that or HMSP ICR should have had that route analysis portion removed and all route analysis data should be reported under the new HHFT ICR.

Second, the numbers that are reported on the HHFT ICR seem to indicate that the Class III railroads will be carrying a disproportionate share of the highly-hazardous flammable trains. Unless there is some reason that the smallest railroads will be carrying more of the crude-oil unit trains (that make up the bulk of the HHFT) than we see them carrying the other hazardous materials listed in §172.820, these relative numbers do not seem reasonable.

Finally, there is no reason given why Class I railroads have not been included in the route analysis portion of the new ICR. They are clearly covered in the regulations as there are not different requirements based upon the size of the railroad.

In short, there is an awful lot about this ICR that just does not make a lot of sense. If you want my guess, I suspect that the HHFT ICR data is really for Class I and Class II railroads and that either PHMSA did not expect Class III railroads to be carrying HHFT or the data just got left off by mistake somehow.

Now, here is an interesting question to consider. Under the Paperwork Reduction Act of 1995, no person is required to respond to an information collection unless it has been approved by OMB and displays a valid OMB control number. Since Class I railroads have not been included in this HHFT ICR, do they have to provide the information required under §172.820(c)? My guess is technically no, but I suspect that they will do it anyway.

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