Substantive Differences between Notice of Proposed Rulemaking Submitted to OIRA on February 24, 2016 and Published in the FR on July 29, 2016
                                       
In accordance with Executive Order (EO) 12866 agencies must:

      (E) After the regulatory action has been published in the Federal Register
      or otherwise issued to the public, the agency shall:
      
      (i) Make available to the public the information set forth in subsections
      (a)(3)(B) and (C);
      
      (ii) Identify for the public, in a complete, clear, and simple manner,
      the substantive changes between the draft submitted to OIRA for
      review and the action subsequently announced; and
      
      (iii) Identify for the public those changes in the regulatory action
      that were made at the suggestion or recommendation of OIRA.

As required by EO 12866, PHMSA is making available the original notice of proposed rulemaking (NPRM) entitled "Hazardous Materials:  Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains" submitted to OIRA on February 24, 2016.  This draft identifies discussions which were revised for clarity. In addition, PHMSA has summarized the substantive changes made at the suggestion of OIRA, as follows:

Substantive Changes to the NPRM Provisions

   1. Effective Date - In the original NPRM submitted to OIRA no effective date was proposed. In the NPRM that published in the Federal Register the effective date was proposed as 60 days after publication of a final rule in the Federal Register. A question was added to solicit comments from interested persons regarding the feasibility of the proposed compliance date
   2. High Volume Areas - The NPRM that published in the Federal Register added questions for commenters about whether response zones should delineate "High Volume Areas," and how such areas should be defined. 
   3. Applicability-  The NPRM that published in the Federal Register added a question asking how many rail carriers or trains would be permitted to transport petroleum oil without a comprehensive plan if the applicability of this rulemaking were to incorporate the Association of American Railroads and  American Short Line and Regional Railroad Association  comment  proposing a definition for Petroleum Crude Oil Routes or the quantity of 1,000,000 gallons, and invite public commenters to provide information to assist in further evaluating the benefits and costs of these alternative applicability thresholds.  
   4. Training  -  The NPRM that published in the Federal Register added a question about Incident Command System (ICS) training. 
   5. Regulatory Flexibility Act - The NPRM that published in the Federal Register added questions about how flexibility could be provided to small entities. 
   

Substantive Changes to the Regulatory Impact Analysis (RIA) for the NPRM 

   1. Baseline Analysis  -  Additional discussion and analysis were added to the RIA with regard to the current baseline coverage of Oil Spill Response Organizations (OSROs) and current practices of the rail industry.  PHMSA provided additional narrative on the current operating environment for the rail industry with regard to oil spill planning including location and amount of spill response resources available.  This included mapping the existing OSRO network based on a publicly available U.S. Coast Guard OSRO registry and the current rail network.  PHMSA also clarified the role of the National Contingency Plan (NCP) and Area Contingency Plans (ACPs).  
   2. Additional Questions - The RIA that published created a stand-alone section that consolidated all requests for specific comment.  In addition, questions were added to address topics such the size and location of spill response zones, the potential for tiered response zones (6 hour vs. 12 hour), the number of affected entities, the effectiveness of oil spill response plans (OSRPs), and costs affecting the regulated community. 
   3. Updated Crude by Rail Movements and Incident Data - The RIA that published has updated Energy Information Agency data on rail movements and additional PHMSA Hazardous Material Incident Report data (2015) that was finalized and made available during the review period.  This resulted in minor updates to the forecasting of future incidents.  

