[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