Proposed Agency Information Collection Activities; Comment Request
A Notice by the Federal Railroad Administration on 10/03/2014
Comments must be submitted on or before November 3, 2014.
Docket No. FRA-2014-0011-N-18
FRA-2014-0011
Read the 5 public comments on this document
Federal Railroad Administration (FRA), Department of Transportation (DOT).
In compliance with the Paperwork Reduction Act of 1995, this notice announces that the Information Collection Request (ICR) abstracted below requesting regular review is being forwarded to the Office of Management and Budget (OMB) for review and comment. The ICR describes the nature of the information collection and its expected burden. The Federal Register notice with a 60-day comment period soliciting comments on the following collection of information was published on June 30, 2014 (79 FR 36860).
Mr. Robert Brogan, Office of Planning and Evaluation Division, RRS-21, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 25, Washington, DC 20590 (Telephone: (202) 493-6292), or Ms. Kimberly Toone, Office of Information Technology, RAD-20, Federal Railroad Administration, 1200 New Jersey Ave. SE., Mail Stop 35, Washington, DC 20590 (Telephone: (202) 493-6132). (These telephone numbers are not toll-free.)
The Paperwork Reduction Act of 1995 (PRA), Public Law 104-13, sec. 2, 109 Stat. 163 (1995) (codified as revised at 44 U.S.C. 3501-3520), and its implementing regulations, 5 CFR part 1320, require Federal agencies to issue two notices seeking public comment on information collection activities before OMB may approve paperwork packages. 44 U.S.C. 3506, 3507; 5 CFR 1320.5, 1320.8(d)(1), 1320.12. On June 30, 2014, FRA published a 60-day notice in the Federal Register soliciting comments on the ICR for which the agency is seeking OMB approval. See 79 FR 36860. The ICR relates to the Emergency Order (EO) issued on May 7, 2014, by the Secretary of Transportation (Docket No. DOT-OST-2014-0067). The EO requires affected railroad carriers to provide certain information to the State Emergency Response Commissions (SERCs) for each State in which they operate individual trains carrying 1 million gallons or more of petroleum crude oil sourced from the Bakken shale formation in the Williston Basin (Bakken crude oil). FRA received one comment in response to its 60-day notice.
On August 29, 2014, FRA received a joint comment from the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA) (Commenters). The Commenters raised three main points. First, the Commenters assert that the crude oil routing information the EO requires railroads to provide to SERCs is sensitive information from a security perspective and should only be available to persons with a need-to-know the information (e.g., emergency responders and emergency response planners). Second, the Commenters assert that the same information is commercially-sensitive information that should remain confidential and not be publically available. Finally, the Commenters assert that the EO is not serving a useful purpose as the information required by the EO to be provided to the SERCs is already provided to emergency responders through AAR Circular OT-55-N. See AAR, "Circular OT-55-N: Recommended Railroad Operating Practices For Transportation of Hazardous Materials," (Aug. 5, 2013) (OT-55). The Commenters specifically suggest that the EO "be withdrawn because it has resulted in information confidential from security, safety, and business perspectives being made public and because the objective of the emergency order, informing government Start Printed Page 59892officials of the transportation of Bakken crude oil through their jurisdictions, was already being met, and would continue to be met, if the EO is withdrawn." AAR and ASLRRA continued:
The EO requires that railroads make crude oil routing information available to [SERCs]. Specifically, the EO requires that a railroad provide to the SERC in each state in which it operates trains transporting 1,000,000 gallons or more of Bakken crude oil information on the number of such trains traveling per week through each county and the routes over which the trains operate.
While AAR and ASLRRA do not believe it was DOT's intention, the EO resulted in the information required to be disclosed by the EO to be made publicly available. Such a result is hardly a necessary consequence of informing government officials of the transportation of Bakken crude oil through their jurisdictions. Railroads were already informing government officials of the hazardous materials transported through their communities pursuant to AAR's circular governing operating practices for the transportation of hazardous materials, OT-55.[1]
In their comment, AAR and ASLRRA further remarked:
Unfortunately, in so far as confidentiality is concerned, the result of the EO has proven inconsistent with DOT's intent. Since SERCs in many states have contended they have no choice but to make the routing information public because of the laws governing SERCs, the SERCs have refused to keep crude oil routing information confidential.
The EO is not needed to provide emergency responders with notice that crude oil shipments are being transported through their communities because railroads have been providing that information for many years. OT-55 provides that railroads will give emergency response agencies and planning groups information on the hazardous materials transported through their communities. Class I railroads and short lines have notified communities as provided by OT-55.
For emergency response planning purposes, there is no need to disclose the actual route taken by a crude oil train. Notifying an emergency responder of the hazardous materials transported through the community, including crude oil, is sufficient.
Railroading is a highly competitive business. A railroad's traffic is susceptible to competing railroads and competing modes. As is the case with any company engaged in a competitive business, railroads keep their customers confidential to the extent possible. Forced disclosure of routing information provides a means for competitors to ascertain a railroad's customers and constitutes the disclosure of confidential commercial information.
Although DOT and FRA in particular, recognize the Commenters concerns relating to the potential confidentiality of the information required to be provided under the EO, DOT notes that the information does not fall into any of the fifteen categories of Sensitive Security Information (SSI) defined by either DOT or Transportation Security Administration (TSA) regulations. See 49 CFR parts 15 and 1520. Further, at this time, DOT finds no basis to conclude that the public disclosure of the information is detrimental to transportation safety. DOT has consulted with the Department of Homeland Security and TSA in making this decision. Accordingly, the Secretary of Transportation has not designated the information as SSI.
The Commenters are correct in that DOT's intent in issuing the EO was not to cause the widespread public disclosure of the information, but rather to ensure that emergency responders have an understanding of the volume and frequency with which Bakken crude oil is transported through their communities so that they can prepare their response plans and resources accordingly. DOT notes that the Commenters do not document any actual harm that has occurred by the public release of the information required to be provided to the States under the EO. That being said, DOT understands that railroads may have an appropriate claim that the information required to be provided to the SERCs constitutes confidential business information, but the merit of such claims may differ by State depending on each State's open records and sunshine laws. For these reasons, FRA concludes that the information required to be provided to the SERCs under the EO is neither security-sensitive nor commercially-sensitive information that is protected by Federal law.
With regard to the Commenters' assertion that the EO is not serving a useful purpose as the information required by the EO to be provided to the States is already available to emergency responders through OT-55, FRA notes that there are important distinctions between the information required to be provided by railroads under the EO and the nature and content of the information provided pursuant to OT-55. First, the railroad's sharing of information contemplated by OT-55 is only voluntary. Second, the railroad's voluntary sharing of information under OT-55 is only upon written request of emergency response or emergency planning groups. Third, the information voluntarily shared pursuant to OT-55 is "commodity flow information" covering "the top 25 hazardous commodities transported through the community in rank order." Large quantities of Bakken crude oil in single trains may or may not be part of this top-25 commodity ranking in any given community. In contrast, by mandating in the EO that railroads provide the identified information on the transportation of large quantities of Bakken crude oil to States, the EO helps ensure that local emergency responders have access to that information. Further, the information that the EO mandates railroads to provide to States is very specific, limited to one commodity (Bakken crude oil), more detailed than the information voluntarily shared pursuant to OT-55, and specifically designed to ensure that local emergency responders are provided sufficient information to confirm that they have an understanding of the volume, route, and frequency with which Bakken crude oil is transported through their jurisdictions so that they can prepare emergency response plans and resources accordingly. For these reasons, FRA strongly disagrees with the Commenters' assertion that the EO is not serving a useful purpose.
Finally, DOT notes that a pending Pipeline and Hazardous Materials Safety Administration Notice of Proposed Rulemaking (NPRM) proposes to codify into Federal regulations the terms of the EO. See 79 FR 45016 (Aug. 1, 2014). The public comment period on this NPRM is scheduled to close on September 30, 2014. It would be premature to change the terms of the EO now and prohibit the disclosure of the specified information to SERCs before those terms undergo full public scrutiny and comment through the rulemaking process.
Before OMB decides whether to approve these proposed collections of information, it must provide 30 days for public comment. 44 U.S.C. 3507(b); 5 CFR 1320.12(d). Federal law requires OMB to approve or disapprove paperwork packages between 30 and 60 days after the 30-day notice is published. 44 U.S.C. 3507(b)-(c); 5 CFR 1320.12(d); see also 60 FR 44978, 44983, Aug. 29, 1995. OMB believes that the 30-day notice informs the regulated community to file relevant comments and affords the agency adequate time to digest public comments before it renders a decision. 60 FR 44983, Aug. 29, 1995. Therefore, respondents should submit their respective comments to OMB within 30 days of publication to best ensure having their full effect. 5 CFR 1320.12(c); see also 60 FR 44983, Aug. 29, 1995.Start Printed Page 59893
The summary below describes the nature of the ICR and the expected burden. The revised request is being submitted for clearance by OMB as required by the PRA.
Title: Secretary of Transportation Emergency Order Docket No. OST-2014-0067.
Abstract: On May 7, 2014, the Secretary of Transportation issued Emergency Order Docket No. DOT-OST-2014-0067 (EO), requiring affected railroad carriers to provide certain information to the State Emergency Response Commissions (SERCs) for each State in which their trains carrying 1 million gallons or more of Bakken crude oil travel. This EO is available through the Department's public docket system at www.regulations.gov, under Docket No. DOT-OST-2014-0067. The EO took effect immediately upon issuance, although affected railroads were permitted 30 days to provide the required information to the SERCs. The EO is the DOT's direct and proactive response to a recent series of train accidents involving the transportation of petroleum crude oil, a hazardous material the transportation of which is regulated by the DOT. The most recent accident occurred on April 30, 2014, when a train transporting petroleum crude oil derailed in Lynchburg, Virginia and released approximately 30,000 gallons of its contents into the James River. Further, the EO explains that, with the rising demand for rail transportation of petroleum crude oil throughout the United States, the risk of rail incidents has increased commensurate with the increase in the volume of the material shipped and that there have been several significant derailments in both the U.S. and Canada over the last several months causing deaths and property and environmental damage that involved petroleum crude oil. DOT emergency orders are rare and the EO itself describes the most recent accidents and circumstances leading the agency to issue the EO. The collection of information included under this EO is aimed at ensuring that railroads that transport in a single train a large quantity of petroleum crude oil (1 million gallons or more), particularly crude oil from the Bakken shale formation in the Williston Basin, provide certain information to the relevant SERCs in each State in which the railroad operates such trains. Ensuring that railroads provide this information to SERCs is critical to ensuring that local and State emergency responders are aware of the large quantities of crude oil that are being transported through their jurisdictions and are prepared to respond to accidents involving such trains should they occur.
Affected Public: Businesses (Railroads).
Form(s): N/A.
Annual Estimated Burden: 3,778 hours.
Addressee: Send comments regarding this information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 Seventeenth Street NW., Washington, DC 20503, Attention: FRA Desk Officer. Comments may also be sent via email to OMB at the following address: oira_submissions@omb.eop.gov.
Comments are invited on the following: Whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimates of the burden of the proposed information collections; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collections of information on respondents, including the use of automated collection techniques or other forms of information technology.
A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this notice in the Federal Register.
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Authority: 44 U.S.C. 3501-3520.
End Authority Start Signature
Issued in Washington, DC on September 29, 2014.
Erin McCartney,
Acting Chief Financial Officer.
1. OT-55 provides that AAR members will provide emergency response agencies or emergency response planning groups with "commodity flow information covering at a minimum the top 25 hazardous commodities transported through the community in rank order."
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[FR Doc. 2014-23511 Filed 10-2-14; 8:45 am]