[Federal Register Volume 79, Number 192 (Friday, October 3, 2014)]
[Notices]
[Pages 59891-59893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23511]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2014-0011-N-18]
Proposed Agency Information Collection Activities; Comment
Request
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice and request for comments.
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SUMMARY: 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).
DATES: Comments must be submitted on or before November 3, 2014.
FOR FURTHER INFORMATION CONTACT: 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.)
SUPPLEMENTARY INFORMATION: 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
[[Page 59892]]
officials 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\
\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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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.
[[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.
OMB Control Number: 2130-0604.
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: [email protected].
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.
Authority: 44 U.S.C. 3501-3520.
Issued in Washington, DC on September 29, 2014.
Erin McCartney,
Acting Chief Financial Officer.
[FR Doc. 2014-23511 Filed 10-2-14; 8:45 am]
BILLING CODE 4910-06-P