OMB Approves PHMSA Emergency Order Procedures Final Rule

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved a final rule from the DOT’s Pipeline and Hazardous Material Safety Administration (PHMSA) for “Pipeline Safety: Enhanced Emergency Order Procedures”. The approval was provided ‘Consistent with Change’ indicating that OMB required some sort of normally minor revisions to the document.

The abstract from the 2019 Unified Agenda entry for this rulemaking explains:

“PHMSA issued an interim final rule (IFR) that established regulations implementing the emergency order authority conferred on the Secretary of Transportation by the Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act of 2016 or Act). These regulations are mandated by the PIPES Act of 2016 and establish procedures for the issuance of emergency orders (restrictions, prohibitions) to address unsafe conditions or practices posing an imminent hazard. The purpose of these requirements is to improve PHMSA's existing enforcement authority to allow us to respond immediately and effectively to conditions or practices that pose serious threats to life, property, or the environment. The next planned action is to finalize the interim final rule.”

This final rule would formalize the requirements established in the interim final rule (IFR) published in October 2014. According to 49 USC 60117(o)(7)(A), this final rule should have been published by March 20^th, 2017 (270 days from June 22^nd, 2016).

There is no way of knowing when this rule will eventually be published in the Federal Register.

FRA Notifies Railroads that SERC Notifications Will Continue

The DOT’s Federal Railroad Administration (FRA) announced today that it was sending a letter to railroads that they were going to continue to require railroads to make notifications to “State Emergency Response Commissions (SERCs) and Tribal Emergency Response Commissions (TERCs) of the expected movement of Bakken crude oil trains through individual states and tribal regions”. That requirement comes from an Emergency Order issued in May 2014 affecting all trains carrying more than million gallons of crude oil from the Bakken oil fields.

Conflict with OMB

The HHFT final rule issued by Pipeline and Hazardous Material Safety Administration (PHMSA) in May actually contained provisions that cancelled the reporting requirements from the Emergency Order effective March 31^st, 2016; the day before the railroads were to have completed their route selection requirements under the revised 49 CFR 172.820.

The FRA had notified the OMB’s Office of Information and Regulatory Affairs (OIRA) of their intent to continue this reporting requirement until a new regulation on Oil Spill Response Planning could codify the requirements when they sought routine approval of the information collection request (ICR) supporting this reporting requirement. OIRA only approved the ICR thru March 31^st of next year 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 [Paperwork Reduction Act; specifically 44 USC 3506(c)] requirements.”

This does not mean, that the extension of the ICR will not be approved, but it does mean that the railroads will have another political opportunity to derail the effort.

Rail Routing Information is SSI

Because of the changes that the HHFT final rule made to §172.820 the routing information of highly-hazardous flammable trains (HHFT) is protected as Sensitive Security Information (SSI) under 49 CFR 15 and 49 CFR 1520. And the crude oil trains covered in the Emergency Order are certainly covered under the HHFT definition.

One of the reasons that railroads had objected to sharing the information required in the Emergency Order was that it was specifically not protected under SSI procedures. This left the public dissemination of that information up to the discretion of the local agency and the State rules that governed information sharing. And, as the railroads feared, much of that information was released to the public; making it accessible to people that might attempt to disrupt the flow of those trains.

The wording of §172.820(h)(2) makes it clear that the protected information is limited to the routing information not the volume or type of oil carried or the frequency with which the trains would traverse the selected routes. A close reading of the regulation would seem to indicate that the routing information does not actually become SSI until the first time that the railroads complete their route analysis under §172.820(c). That won’t officially be done until April 1^st, 2016.

The FRA could have adopted the position in today’s letter to the railroads that for the purpose of moving forward with the continued notification and updates to SERTS that the routing portion of the information provided could be classified as SSI under authority of §172.820(c), thus pre-empting State and local sunshine act or freedom of information act laws for that information. Thus, SERTS would be required to only share that information with personnel with a need to know which would certainly include local emergency response and emergency planning agencies. The FRA obviously chose not to do so, adhering to the tightest interpretation of the rule.

This will have to be an issue that FRA addresses when they go back and re-submit the ICR for and extension of the reporting requirement past March 31^st, since after that date the routing information is clearly protected from public disclosure under the banner SSI.

DOT Takes Additional Actions on Crude Oil Trains

Today the Department of Transportation published six new documents outlining new actions that PHMSA an FRA were taking to reduce the risks associated with the transportation of crude oil and other flammable liquids in unit trains or blocks of cars. The new documents are:

∙ PHMSA Notice – Emergency Response Information Requirements

∙ PHMSA Safety Advisory – Railroad Flammable Liquid ER Information Requirements

∙ FRA Emergency Order – Maximum Speed Limit for HHFT in HTUA

∙ FRA Safety Advisory – Wheel Inspection Requirements for HHFT

∙ FRA ICR Notice Change – Incident Report

∙ FRA Letter to AAR

A DOT blog post by Secretary Foxx outlines the new requirements and actions being published today. These actions are being taken while the highly-hazardous flammable train (HHFT) rulemaking is still under review at the Office of Management and Budget. Congressional sources have said that the rulemaking is expected to be published on May 12^th, 2015.

PHMSA also has a new web page providing a history of actions that the Department has taken to date to increase the safe transportation of energy products.

There is also a note that FEMA is also addressing the emergency response information issue in a separate blog post.

I’ll have further information after I have had a chance to conduct a review of the documents.

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.

More Information on New DOT Emergency Order

A number of readers have asked me yesterday if I have a link to the DOT’s new emergency order that I described on Wednesday. Readers have become accustomed to finding extensive linking in my posts. Wednesday I did not have a link, today I do; that is thanks to a post yesterday by Secretary Fox on the DOT’s FastLane blog. A copy of the Emergency Order can be found here.

As we have come to expect from a legal document like the Emergency Order there is a certain amount of verbosity involved. Here much of the excess verbiage explains the problem of crude oil unit trains in general and specifically those carrying crude from the Williston Basin (Bakken crude oil). It goes on to explicate the authority of the Secretary to issue the order and remind the world of what other actions DOT has taken to get this problem under control. All of that is legally important stuff, but that is not the information that everyone is really looking for.

Target of Order

This order is targeted at any and all rail carriers that “that transport in a single train in commerce within the United States, 1,000,000 gallons or more of UN 1267, Petroleum crude oil, Class 3, sourced from the Bakken shale formation in the Williston Basin (Bakken crude oil)” {pg 1}. Those rail carriers failing to make the required notifications will be prohibited from operating such crude oil unit trains until such time as they make the required notifications. Failure to comply with these restrictions makes the carrier potentially “subject to civil penalties of up to $175,000 for each violation or for each day it is found to be in violation” (49 U.S.C. 5123){pg 16}.

SERC Notification

The notification requirements will be made by the covered rail carriers to every State Emergency Response Commission (SERC) representing states through which the Bakken Crude unit trains are transported. The SERCs are already tasked with coordinating the emergency response planning requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA); an EPA rule. They, in turn, will coordinate information sharing and planning functions to prepare to respond to the potentially catastrophic results of a crude oil unit train derailment.

Notification Requirements

The Emergency Order requires the following written information to be supplied to each affected SERC {pg 2} within 30-days of the effective date of this order (5-7-14):

• A reasonable estimate of the number of Bakken crude trains that are expected to travel, per week, through each county within the state;

• Identify and describe the petroleum crude oil expected to be transported in accordance with 49 CFR part 172, subpart C (HMR; Shipping Papers);

• Provide all applicable emergency response information required by 49 CFR part 172, subpart G (HMR; Emergency Response Information);

• Identify the routes over which the material will be transported; and

• Identify at least one point of contact at the railroad (including name, title, phone number and address) responsible for serving as the point of contact for SERCs and relevant emergency responders related to the railroad’s transportation of Bakken crude oil. 

The information indicated above will be updated “prior to making any material changes [emphasis added]in the estimated volumes or frequencies of trains traveling through a county” {pg 2}. The order defines a ‘material change’ to be “any increase or decrease of twenty-five percent or more in the number of implicated trains per week” {pg 13}.

Copies of the written notifications provided by the covered railroads will be maintained for potential inspection by the Federal Railroad Administration (FRA). The notice indicates that FRA “will audit railroad compliance with this Order by reviewing the notices that railroads provide to SERCs to ensure the accuracy of those notices, and also to ensure that state and local emergency responders are able to communicate with the railroad contact identified in the written notification” {pgs 13-14}.

Identify and Describe

According to 49 CFR 172.202 the description for the covered crude oil would be “Petroleum crude oil, UN 1267, 3, Packing Group I, II, or III”. The flash point and initial boiling point of the crude oil would be used to determine which ‘packing group’ would apply to the material.

Emergency Response Information

According to 49 CFR 172.602 ‘emergency response information’ includes:

• Immediate hazards to health;

• Risks of fire or explosion;

• Immediate precautions to be taken in the event of an accident or incident;

• Immediate methods for handling fires;

• Initial methods for handling spills or leaks in the absence of fire; and

• Preliminary first aid measures.

No Mention of Security Information

There is nothing in this Emergency Order that give any indication that DOT considers any of the information that rail carriers are being required to share with SERCs to be in any way sensitive information from a security point of view. The Sensitive Security Information (SSI) provisions of 49 CFR 1520 would not apply because crude oil is not considered to be a material requiring additional safety and security planning under 49 CFR 172.820 or a rail security sensitive material under 49 CFR 1580.100.

Duration of Order

This order will continue in force until specifically rescinded by the Secretary. That would be expected to take place when {pg 16}:

• The Secretary determines that an imminent hazard no longer exits; or

• A change in applicable statute or Federal regulation occurs that supersedes the requirements of the Order.

Another DOT Emergency Order on Crude Trains

On Tuesday, the Office of the Secretary of the Department of Transportation issued an emergency order placing additional restrictions on the shipment of crude oil. The order requires

• The proper testing (“conducted with sufficient frequency and quality”) and classification of petroleum products prior to them being offered into transportation; and

• The classification of all bulk crude oil shipments (UN 1267, Petroleum crude oil, 3)  as either Packing Group I or II.

Proper Classification

The first requirement deals with the proper classification of hazardous materials. In numerous places in the Code of Federal Regulations there is a requirement that hazardous materials offered for transportation be ‘properly classified’ {see for instance 49 CFR 171.2(e)}. While §173.121 outlines the procedures for testing material to determine to which packing group it belongs, there is no specific requirement in the HMR for each load of material to be physically tested.

The first requirement in this Emergency Order requires that shippers:

“Shall, prior to offering into transportation, ensure that the petroleum products (i.e., petroleum crude oil) is properly tested and classed under current regulations, in accordance with the requirements of 49 CFR parts 172 and 173.”

What is not specifically spelled out here is whether each load of petroleum crude oil in a tank truck or rail car will have to be tested, or if DOT will allow each batch of crude oil from a storage tank, or from a well head to be tested.

No Packing Group III

The current entry for Petroleum Crude Oil in the hazardous materials table (§172.101) allows for crude oil to be classified as either PG I, II, or III depending on its physical characteristics outlined in §173.121. In removing the option for classifying crude oil as PG III effectively removes the option of using AAR Class 203W and 211W tank car for the transportation of crude oil; those are tank cars designed for ‘low hazard liquid’ hazardous materials {§284.241}. The use of those cars for PG III materials with a flash point above 100° F is authorized by special provision B1 {172.102(c)(3)}.

Public Notice

I am sure that the railroads were directly notified of this emergency order, but it has not yet been published in the Federal Register, nor is it available on either the Federal Railroad Administration (FRA) or the Pipeline and Hazardous Material Safety Administration (PHMSA) web sites. Even finding it on the DOT web site takes specific searching; it is not prominently listed. It was brought to my attention by a brief article at ProgressiveRailroading.com. This is hardly proper public notice.