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Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: December 21, 2006 (Volume 71, Number 245)]
[Proposed Rules]
[Page 76833-76850]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-18]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 172 and 174
[Docket No. RSPA-04-18730 (HM-232E)]
RIN 2137-AE02
Hazardous Materials: Enhancing Rail Transportation Safety and
Security for Hazardous Materials Shipments
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA), in consultation with the Federal Railroad Administration (FRA)
and the Transportation Security Administration (TSA), is proposing to
revise the current requirements in the Hazardous Materials Regulations
applicable to the safe and secure transportation of hazardous materials
transported in commerce by rail. Specifically, we are proposing to
require rail carriers to compile annual data on specified shipments of
hazardous materials, use the data to analyze safety and security risks
along rail transportation routes where those materials are transported,
assess alternative routing options, and make routing decisions based on
those assessments. We are also proposing clarifications of the current
security plan requirements to address en route storage, delays in
transit, delivery notification, and additional security inspection
requirements for hazardous materials shipments. In today's edition of
the Federal Register, TSA is publishing an NPRM proposing additional
security requirements for rail transportation.
DATES: Submit comments by February 20, 2007. To the extent possible, we
will consider late-filed comments as we develop a final rule.
ADDRESSES: You may submit comments identified by the docket number
RSPA-04-18730 by any of the following methods:
? Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
? Web site: http://dms.dot.gov. Follow the instructions for
submitting comments on the DOT electronic docket site.
? Fax: 1-202-493-2251.
? Mail: Docket Management System; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001. If sent by mail, comments are to be
submitted in two copies. Persons wishing to receive confirmation of
receipt of their comments should include a self-addressed stamped postcard.
? Hand Delivery: Docket Management System; Room PL-401 on
the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: You must include the agency name and docket number
RSPA-04-18730 for this notice at the beginning of your comment.
Internet users may access comments received by DOT at http://dms.dot.gov.
Note that comments received may be posted without change
to http://dms.dot.gov including any personal information provided.
Please see the Privacy Act section of this document.
While all comments should be sent to DOT's Docket Management System
(DMS), comments or those portions of comments PHMSA determines to
include trade secrets, confidential commercial information, or
sensitive security information (SSI) will not be placed in the public
docket and will be handled separately. If you believe your comments
contain trade secrets, confidential commercial information, or SSI,
those comments or the relevant portions of those comments should be
appropriately marked so that DOT may make a determination. PHMSA
procedures in 49 CFR part 105 establish a mechanism by which commenters
may request confidentiality.
In accordance with 49 CFR 105.30, you may ask PHMSA to keep
information confidential using the following procedures: (1) Mark
``confidential'' on each page of the original document you would like
to keep confidential; (2) send DMS both the original document and a
second copy of the original document with the confidential information
deleted; and (3) explain why the information is confidential (such as a
trade secret, confidential commercial information, or SSI). In your
explanation, you should provide enough information to enable PHMSA to
determine whether the information provided is protected by law and must
be handled separately.
In addition, for comments or portions of comments that you believe
contain SSI as defined in 49 CFR 15.7, you should comply with Federal
regulations governing restrictions on the disclosure of SSI. See 49 CFR
1520.9 and 49 CFR 15.9, Restrictions on the disclosure of sensitive
security information. For example, these sections restrict the sharing
of SSI to those with a need to know, set out the requirement to mark
the information as SSI, and address how the information should be
disposed. Note also when mailing in or using a special delivery service
to send comments containing SSI, comments should be wrapped in a manner
to prevent the information from being read. PHMSA and TSA may perform
concurrent reviews on requests for designations as SSI.
After reviewing your request for confidentiality and the
information provided, PHMSA will analyze applicable laws and
regulations to decide whether to treat the information as confidential.
PHMSA will notify you of the decision to grant or deny confidentiality.
If PHMSA denies confidentiality, you will be provided an opportunity to
respond to the denial before the information is publicly disclosed.
PHMSA will reconsider its decision to deny confidentiality based on
your response.
Regarding comments not marked as confidential, prior to posting
comments received in response to this notice in the public docket,
PHMSA will review all comments, whether or not they are identified as
confidential, to determine if the submission or portions of the
submission contain information that should not be made available to the
general public. PHMSA will notify you if the agencies make such a
determination relative to your comment. If, prior to submitting your
comment, you have any questions concerning the procedures for
determining confidentiality or security sensitivity, you may call one
of the individuals listed below under FOR FURTHER INFORMATION CONTACT
for more information.
FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229,
Office of Safety Assurance and Compliance, Federal Railroad
Administration; or Susan Gorsky, (202) 366-8553, Office of Hazardous
Materials Standards, Pipeline and Hazardous Materials Safety
Administration.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal hazardous materials transportation law (Federal hazmat
law, 49 U.S.C. 5101 et seq., as amended by Sec. 1711 of the Homeland
Security Act of 2002, P.L. 107-296 and Title VII of the 2005 Safe,
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy
for Users (SAFETEA-LU))
[[Page 76835]]
authorizes the Secretary of the Department of Transportation to
``prescribe regulations for the safe transportation, including
security, of hazardous material in intrastate, interstate, and foreign
commerce.'' The Secretary has delegated this authority to PHMSA
(formerly the Research and Special Programs Administration).
The Hazardous Materials Regulations (HMR: 49 CFR parts 171-180)
promulgated by PHMSA under the mandate in section 5103(b) govern safety
aspects, including security, of the transportation of hazardous
material the Secretary considers appropriate. Consistent with this
security authority, in March 2003, PHMSA adopted new transportation
security requirements for offerors and transporters of certain classes
and quantities of hazardous materials and new security training
requirements for hazardous materials employees. The security
regulations, which are explained in more detail below, require offerors
and carriers to develop and implement security plans and to train their
employees to recognize and respond to possible security threats.
When PHMSA adopted its security regulations, shippers and rail
carriers were informed these regulations were ``the first step in what
may be a series of rulemakings to address the security of hazardous
materials shipments.'' 68 FR 14509, 14511 (March 25, 2003). PHMSA also
noted ``TSA is developing regulations that are likely to impose
additional requirements beyond those established in this final rule,''
and stated it would ``consult and coordinate with TSA concerning
security-related hazardous materials transportation regulations * * *''
68 FR 14511.
Under the Aviation and Transportation Security Act (ATSA), Public
Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority
from the Secretary of Homeland Security (DHS), the Assistant Secretary
of DHS for TSA has broad responsibility and authority for ``security in
all modes of transportation * * *''\1\ ATSA authorizes TSA to take
immediate action to protect against threats to transportation security.
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\1\ See 49 U.S.C. 114(d). The TSA Assistant Secretary's current
authorities under ATSA have been delegated to him by the Secretary
of Homeland Security. Under Section 403(2) of the Homeland Security
Act of 2002, Public Law 107-296, 116 Stat. 2315 (2002) (HSA), all
functions of TSA, including those of the Secretary of Transporation
and the Undersecretary of Transportation of Security related to TSA,
transferred to the Secretary of Homeland Security. Pursuant to DHS
Delegation Number 7060.2., the Secretary delegated to the Assistant
Secretary (then referred to as the Administrator of TSA), subject to
the Secretary's guidance and control, the authority vested in the
Secretary with respect to TSA, including that in Section 403(2) of
the HSA.
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TSA's authority over the security of transportation stems from
several provisions of 49 U.S.C. 114. In executing its responsibilities
and duties, TSA is specifically empowered to develop policies,
strategies and plans for dealing with threats to transportation.\2\ As
part of its security mission, TSA is responsible for assessing
intelligence and other information in order to identify individuals who
pose a threat to transportation security and to coordinate
countermeasures with other Federal agencies to address such threats.\3\
TSA also is to enforce security-related regulations and
requirements,\4\ ensure the adequacy of security measures for the
transportation of cargo,\5\ oversee the implementation and ensure the
adequacy of security measures at transportation facilities,\6\ and
carry out other appropriate duties relating to transportation
security.\7\ TSA is charged with serving as the primary liaison for
transportation security to the intelligence and law enforcement
communities.\8\
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\2\ 49 U.S.C. 114(f)(3).
\3\ 49 U.S.C. 114(f)(1)-(5), (h)(l)-(4).
\4\ 49 U.S.C. 114(f)(7).
\5\ 49 U.S.C. 114(f)(10).
\6\ 49 U.S.C. 114(f)(11)
\7\ 49 U.S.C. 114(f)(15).
\8\ 49 U.S.C. 114(f)(1) and (5).
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In sum, TSA's authority with respect to transportation security is
comprehensive and supported with specific powers related to the
development and enforcement of regulations, security directives,
security plans, and other requirements. Accordingly, under this
authority, TSA may identify a security threat to any mode of
transportation, develop a measure for dealing with that threat, and
enforce compliance with that measure.
As is evident from the above discussion, DHS and DOT share
responsibility for hazardous materials transportation security. The two
departments consult and coordinate on security-related hazardous
materials transportation requirements to ensure they are consistent
with the overall security policy goals and objectives established by
DHS and the regulated industry is not confronted with inconsistent
security guidance or requirements promulgated by multiple agencies. To
that end, on August 7, 2006, PHMSA and TSA signed an annex to the
September 28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles
and Responsibilities. The purpose of the annex is to delineate clear
lines of authority and responsibility and promote communications,
efficiency, and non-duplication of effort through cooperation and
collaboration in the area of hazardous materials transportation
security based on existing legal authorities and core competencies.
Similarly, on September 28, 2006, FRA and TSA signed an annex to
address each agency's roles and responsibilities for rail
transportation security. The FRA-TSA annex recognizes that FRA has
authority over every area of railroad safety (including security) and
that FRA enforces PHMSA's hazardous materials regulations. The FRA-TSA
annex includes procedures for coordinating (1) planning, inspection,
training, and enforcement activities; (2) criticality and vulnerability
assessments and security reviews; (3) communicating with affected
stakeholders; and (4) use of personnel and resources. Copies of the two
annexes are available for review in the public docket for this rulemaking.
Consistent with the principles outlined in the PHMSA-TSA annex,
PHMSA and FRA collaborated with TSA to develop this NPRM. In today's
edition of the Federal Register, TSA is publishing an NPRM proposing
additional security requirements for rail transportation. The TSA
rulemaking would enhance security in the rail transportation mode by
proposing requirements on freight and passenger railroads, rail transit
systems, and on facilities with rail connections that ship, receive, or
unload certain hazardous materials. The TSA rulemaking is intended to
augment the proposals in this NPRM.
Hazardous materials are essential to the economy of the United
States and the well being of its people. Hazardous materials fuel motor
vehicles, purify drinking water, and heat and cool homes and offices.
Hazardous materials are used for farming and medical applications, and
in manufacturing, mining, and other industrial processes. Railroads
carry over 1.7 million shipments of hazardous materials annually,
including millions of tons of explosive, poisonous, corrosive,
flammable and radioactive materials.
The need for hazardous materials to support essential services
means transportation of highly hazardous materials is unavoidable.
However, these shipments frequently move through densely populated or
environmentally sensitive areas where the consequences of an incident
could be loss of life, serious injury, or significant environmental
damage.
[[Page 76836]]
The same characteristics of hazardous materials causing concern in
the event of an accidental release also make them attractive targets
for terrorism or sabotage. Hazardous materials in transportation are
frequently transported in substantial quantities and are potentially
vulnerable to sabotage or misuse. Such materials are already mobile and
are frequently transported in proximity to large population centers.
Further, security of hazardous materials in the transportation
environment poses unique challenges as compared to security at fixed
facilities. Finally, hazardous materials in transportation often bear
clear identifiers to ensure their safe and appropriate handling during
transportation and to facilitate identification and effective emergency
response in the event of an accident or release.
A primary safety and security concern related to the rail
transportation of hazardous materials is the prevention of a
catastrophic release or explosion in proximity to densely populated
areas, including urban areas and events or venues with large numbers of
people in attendance. Also of major concern is the release or explosion
of a rail car in proximity to iconic buildings, landmarks, or
environmentally significant areas. Such a catastrophic event could be
the result of an accident--such as the January 6, 2005 derailment and
release of chlorine in Graniteville, South Carolina--or a deliberate
act of terrorism. The causes of intentional and unintentional releases
of hazardous material are very different; however, in either case the
potential consequences of such releases are significant. Indeed, the
consequences of an intentional release of hazardous material by a
criminal or terrorist action are likely to be more severe than the
consequences of an unintentional release because an intentional action
is designed to inflict the most damage possible.
II. Current Hazardous Materials Transportation Safety and Security
Requirements
Subpart I to Part 172 of the HMR requires persons who offer certain
hazardous materials for transportation or transport certain hazardous
materials in commerce to develop and implement security plans. Security
awareness training is also required of all hazardous materials
employees (hazmat employees), and in-depth security training is
required of hazmat employees or persons required to develop and
implement security plans.
The HMR require persons who offer for transportation or transport
the following hazardous materials to develop and implement security plans:
(1) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined at 49 CFR Sec. 173.403, in a motor vehicle, rail
car, or freight container;
(2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material in a motor vehicle, rail car, or freight container;
(3) More than one L (1.06 qt) per package of a material poisonous
by inhalation, as defined at 49 CFR Sec. 171.8, that meets the
criteria for Hazard Zone A, as specified in 49 CFR Sec. Sec.
173.116(a) or 173.133(a);
(4) A shipment of a quantity of hazardous materials in a bulk
packaging having a capacity equal to or greater than 13,248 L (3,500
gallons) for liquids or gases or more than 13.24 cubic meters (468
cubic feet) for solids;
(5) A shipment in other than a bulk packaging of 2,268 kg (5,000
pounds) gross weight or more of one class of hazardous materials for
which placarding of a vehicle, rail car, or freight container is
required for that class under the provisions of subpart F of this part;
(6) A select agent or toxin regulated by the Centers for Disease
Control and Prevention under 42 CFR Part 73; or
(7) A quantity of hazardous material that requires placarding under
the provisions of subpart F of 49 CFR Part 172.
Thus, in accordance with Subpart I of Part 172 of the HMR, rail
carriers transporting any of the above materials in commerce must have
developed and implemented security plans. The security plan must
include an assessment of possible transportation security risks and
appropriate measures to address the assessed risks. Specific measures
implemented as part of the plan may vary commensurate with the level of
threat at a particular time. At a minimum, the security plan must
address personnel security, unauthorized access, and en route security.
To address personnel security, the plan must include measures to
confirm information provided by job applicants for positions involving
access to and handling of the hazardous materials covered by the plan.
To address unauthorized access, the plan must include measures to
address the risk of unauthorized persons gaining access to materials or
transport conveyances being prepared for transportation. To address en
route security, the plan must include measures to address security
risks during transportation, including the security of shipments stored
temporarily en route to their destinations.
As indicated above, the HMR set forth general requirements for a
security plan's components rather than a prescriptive list of specific
items that must be included. The HMR set a performance standard
providing offerors and carriers with the flexibility necessary to
develop security plans addressing their individual circumstances and
operational environment. Accordingly, each security plan will differ
because it will be based on an offeror's or a carrier's individualized
assessment of the security risks associated with the specific hazardous
materials it ships or transports and its unique circumstances and
operational environment.
Offerors and carriers in all modes were required to have security
plans in place by September 25, 2003. New shippers and carriers must
have security plans in place before they begin operations. To assist
the industry in complying with the security plan requirements, PHMSA
developed a security plan template to illustrate how risk management
methodology could be used to identify areas in the transportation
process where security procedures should be enhanced within the context
of an overall risk management strategy. The security template is posted
in the docket and on the PHMSA website at
http://hazmat.dot.gov/riskmgmt/rmsef/rmsef.htm. In addition, a number
of industry groups and associations have developed guidance material to
assist their members in developing appropriate security plans.
With respect to delays in transportation, rail carriers are
currently required to expedite the movement of hazardous materials
shipments pursuant to Sec. 174.14 of the HMR. Each shipment of
hazardous materials must be forwarded ``promptly and within 48 hours
(Saturdays, Sundays, and holidays excluded)'' after acceptance of the
shipment by the rail carrier. If only biweekly or weekly service is
performed, the carrier must forward a shipment of hazardous materials
in the first available train. Additionally, carriers are prohibited
from holding, subject to forwarding orders, tank cars loaded with
Division 2.1 (flammable gas), Division 2.3 (poisonous gas) or Class 3
(flammable liquid) materials. The purpose of Sec. 174.14 is to help
ensure the prompt delivery of hazardous materials shipments and to
minimize the time materials spend in transportation, thus minimizing
the exposure of hazmat shipments to accidents, derailments, unintended
releases, or tampering.
[[Page 76837]]
Apart from the requirements in Sec. 174.14 to expedite the
movement of hazardous materials, the HMR do not include specific
routing requirements for rail hazmat shipments, e.g., to route
shipments around or away from particular geographic areas. For example,
in promulgating its March 2003 security regulations under Docket HM-
232, PHMSA specifically required rail carriers to address en route
security; however, PHMSA deliberately decided to leave the specifics of
hazardous materials rail routing decisions, and other en route security
matters covered by transportation security plans, to the judgment of
rail carriers. Accordingly, the HM-232 security regulations preempt,
among other things, any state, local, or tribal laws and regulations
prescribing or restricting the routing of rail hazardous materials
shipments. 49 U.S.C. 5125 and 20106. This proposed rule does not change
this general approach to route-related requirements for rail hazardous
materials shipments. Because the nation's largest rail carriers operate
across many states, and the operating conditions in each location can
vary greatly, this approach gives carriers the ability to follow a
consistent, nationally-applicable Federal standard while also tailoring
safety and security measures to the particular circumstances of
individual locations.
The rail industry, through the Association of American Railroads
(AAR), has developed a detailed protocol on recommended railroad
operating practices for the transportation of hazardous materials. The
AAR issued the most recent version of this document, known as Circular
OT-55-I, on August 26, 2005. The Circular details railroad operating
practices for: (1) Designating trains as ``key trains'' containing (i)
five tank car loads or more of poison inhalation hazard (PIH)
materials, (ii) 20 or more car loads or intermodal portable tank loads
of a combination of PIH, flammable gas, Class 1.1 or 1.2 explosives,
and environmentally sensitive chemicals, or (iii) one or more car loads
of spent nuclear fuel or high level radioactive waste; (2) designating
operating speed and equipment restrictions for key trains; (3)
designating ``key routes'' for key trains, and setting standards for
track inspection and wayside defect detectors; (4) yard operating
practices for handling placarded tank cars; (5) storage, loading,
unloading and handling of loaded tank cars; (6) assisting communities
with emergency response training and information; (7) shipper
notification procedures; and (8) the handling of time-sensitive
materials. These recommended practices were originally implemented by
all of the Class 1 rail carriers operating in the United States; the
most recent version of the circular also includes short-line railroads
as signatories.
Circular OT-55-I defines a ``key route'' as:
Any track with a combination of 10,000 car loads or intermodal
portable tank loads of hazardous materials, or a combination of
4,000 car loadings of PIH (Hazard zone A, B, C, or D), anhydrous
ammonia, flammable gas, Class 1.1 or 1.2 explosives, environmentally
sensitive chemicals, Spent Nuclear Fuel (SNF), and High Level
Radioactive Waste (HLRW) over a period of one year.
Any route defined by a railroad as a key route should meet certain
standards described in OT-55-I. Wayside defective wheel bearing
detectors should be placed at a maximum of 40 miles apart, or an
equivalent level of protection may be installed based on improvements
in technology. Main track on key routes should be inspected by rail
defect detection and track geometry inspection cars or by any
equivalent level of inspection at least twice each year. Sidings on key
routes should be inspected at least once a year; and main track and
sidings should have periodic track inspections to identify cracks or
breaks in joint bars. Further, any track used for meeting and passing
key trains should be FRA Class 2 track or higher. If a meet or pass
must occur on less than Class 2 track due to an emergency, one of the
trains should be stopped before the other train passes. The proposals
in this NPRM in part reflect the recommended practices mentioned above,
which are already in wide use across the rail industry.
III. Request for Comments on the Transportation Security of TIH Materials
On August 16, 2004, PHMSA and TSA published a notice and request
for comments on the need for enhanced security requirements for the
rail transportation of hazardous materials posing a poison or toxic
inhalation hazard (TIH materials). See 69 FR 50988. (Note that for
purposes of the HMR, the terms ``poison'' and ``toxic'' are synonymous,
as are the terms ``PIH materials'' and ``TIH materials.'') In the
August notice, PHMSA and TSA sought comments on the feasibility of
initiating specific security enhancements and the potential costs and
benefits of doing so. Security measures addressed in the notice
included improvements to security plans, modification of methods used
to identify shipments, enhanced requirements for temporary storage,
strengthened tank car integrity, and implementation of tracking and
communication systems. To date, we have received over 100 comments. We
considered the comments concerning the need for improvements to current
security plan requirements and revisions to regulations applicable to
in-transit storage in developing this NPRM. These comments are
discussed in detail in the following sections.
The comments to the August notice related to hazard communication,
shipment identification, strengthened tank car integrity, and shipment
tracking are not addressed in this rulemaking.
Additionally, on August 9-10, 2005, FRA participated in a meeting
of the AAR Hazardous Materials Bureau of Explosives (BOE) Committee. At
this meeting, FRA requested input from the rail industry regarding
internal methods used to track and store information about TIH,
explosive, and highway route controlled quantity radioactive materials.
Comments regarding the definition of a route for the purpose of rail
route analysis were taken into consideration in the development of this
NPRM, as reflected by the use of line segment, an industry term. Other
comments received related to specific measures, which a carrier should
consider in performing a route analysis. A summary of this meeting can
be found in the docket for this rulemaking.
A. Security Plan Improvements
In the August notice, PHMSA and TSA stated the two agencies are
interested in determining how security plans required under the HMR
might be improved, particularly as they relate to TIH materials. PHMSA
and TSA asked commenters to provide information concerning the process
by which their security plans were developed, including any problems
encountered during the drafting or implementation phase, recommended
``best practices,'' and any additional guidance or assistance as
appropriate.
Commenters found the guidance provided by DOT and various industry
associations to be quite useful for developing the security plans under
the HMR. Commenters generally agree additional guidance material
specific to the transportation of TIH materials could be helpful in
enhancing the security of TIH materials; however, commenters generally
oppose a requirement for the creation of separate security plans
specific to TIH or other high-hazard materials, noting such materials
are already covered by the HMR security plan requirements and
[[Page 76838]]
DOT and DHS have not shown the existing security plan requirements are
inadequate. Most commenters who address this issue note that the
success of DOT's current security plan requirement is its flexibility
and encourage DOT and DHS to focus on performance-based criteria that
are general in nature and provide flexibility to tailor transportation
security plans and integrate them into overall security management.
Commenters are nearly unanimous in opposition to a requirement for DOT
and DHS to review and approve specific security plans, unless done on-
site as part of a compliance or outreach review.
PHMSA and TSA agree with commenters who suggest compliance with the
current security plan regulations could be improved with the
development of additional guidance material or more specific
requirements applicable to certain types of hazardous materials. As
discussed in more detail below, in this NPRM, PHMSA is proposing
clarifications and enhancements to the current security requirements as
they apply to certain rail operations.
B. Temporary Storage
In the August notice, PHMSA and TSA discussed issues associated
with the temporary storage of rail tank cars during transportation,
including current regulatory requirements applicable to such storage.
PHMSA and TSA requested comments concerning whether revisions to the
temporary storage requirements applicable to rail cars transporting TIH
materials are appropriate, including the impact such revisions could
have on the costs to transport TIH materials and the impact on
recipients and users (for example, towns and municipalities).
Many commenters agree the security of TIH rail shipments stored
temporarily during transportation should be improved but have mixed
views on how to achieve this objective. While some commenters support
time limits on interim storage and prohibitions on the storage of TIH
rail cars in densely populated areas, others suggest such restrictions
would be infeasible because of supply chain issues, adverse economic
impacts, and railroad operational and efficiency issues. One commenter
notes ``since the federal government does not limit the storage of TIH
materials at customer facilities, it would be illogical for the federal
government to limit railroad storage of TIH materials.'' Several
commenters urge PHMSA and TSA to ``use extra caution'' before
prohibiting the temporary storage of TIH materials, suggesting a
location in a densely populated area should not in itself be a reason
to prohibit temporary storage. Rather than place limits on temporary
storage, commenters suggest the security measures implemented at
facilities at which such storage occurs should be based on risk
assessments. Thus, for example, a facility in a densely populated area
would be required to implement more stringent security requirements
than a facility in a rural area. Specific measures suggested include
perimeter fencing with controlled and limited access, enhanced
lighting, remote monitoring, and frequent security patrols.
As discussed in more detail below, PHSMA, FRA, and TSA agree with
commenters that the security of hazardous materials rail shipments
stored temporarily during transportation should be improved, and PHMSA
is proposing revisions in this NPRM. In addition, in its NPRM published
in today's edition of the Federal Register, TSA is proposing additional
security measures applicable to the storage of rail shipments of
certain hazardous materials.
C. Shipment Tracking
The August notice indicated DOT and DHS are considering whether
communication or tracking requirements should be required for rail
shipments of TIH materials, such as satellite tracking of TIH rail cars
and real-time monitoring of tank car or track conditions. In addition,
the notice suggested DOT and DHS are considering reporting requirements
in the event TIH shipments are not delivered within specified time periods.
The HMR currently do not include communication or tracking
requirements for hazardous materials shipments. Offerors and
transporters of TIH materials may elect to implement communication or
tracking measures as part of security plans developed in accordance
with subpart I of part 172 of the HMR, but such measures are not mandatory.
Commenters who addressed this issue are not convinced that tracking
of rail shipments of TIH materials has a security benefit, instead
suggesting the probability of a rail car being moved off the rail
network is extremely remote and, further, tracking rail cars to
determine if they are off course has no value from a security
perspective. Commenters also express concerns about the reliability of
tracking systems and the possibility that some systems could be
compromised. Several commenters suggest that since the railroad
industry already has the capability to track rail cars, the existing
system should be supplemented, not scrapped, and any mandated tracking
requirements should provide for flexibility in choosing different
technologies.
PHMSA, FRA, and TSA believe that most rail carriers have the
capability to report on the locations of certain hazardous materials
rail cars. We believe carriers should be required to report car
location upon request of the government in certain limited situations,
particularly during elevated threat conditions. PHMSA, FRA, and TSA are
continuing to consider whether and to what extent rail carriers should
be required to gather and report car location information, including
the type of information to be collected, its format, and the costs of
mandating such a requirement. In its NPRM, published in today's edition
of the Federal Register, TSA is proposing to require rail carriers to
report location and shipping information for certain hazardous
materials to TSA upon request.
IV. Proposals in this NPRM
Based on comments received in response to the TIH notice and our
experience in monitoring industry compliance with the HMR security plan
requirements, we are proposing the following revisions to the security
plan provisions:
? We propose to require rail carriers transporting certain
types of hazardous materials to compile information and data on the
commodities transported, including the transportation routes over which
these commodities are transported.
? We propose to require rail carriers transporting certain
types of hazardous materials to use the data they compile on
commodities they transport to analyze the safety and security risks for
the transportation routes used and one possible alternative route to
the one used. Rail carriers would be required to utilize these analyses
to transport these materials over the safest and most secure
commercially practicable routes.
? We propose to require rail carriers to specifically
address the security risks associated with shipments delayed in transit
or temporarily stored in transit as part of their security plans.
? We propose to require rail carriers transporting certain
types of hazardous materials to notify consignees if there is a
significant unplanned delay affecting the delivery of the hazardous
material.
? We propose to require rail carriers to work with shippers
and consignees to minimize the time a rail car containing certain types
of hazardous materials is
[[Page 76839]]
placed on track awaiting pick-up or delivery or transfer from one
carrier to another.
? We propose to require rail carriers to notify storage
facilities and consignees when rail cars containing certain types of
hazardous materials are delivered to a storage or consignee facility.
? We propose to require rail carriers to conduct security
visual inspections at ground level of rail cars containing hazardous
materials to inspect for signs of tampering or the introduction of an
improvised explosive device (IED).
These proposed revisions are explained in more detail in the
following sections.
DOT's hazardous materials transportation safety program provides
for a high degree of safety with respect to incidents involving
unintentional releases of hazardous materials occurring during
transportation. However, intentional misuse of hazardous materials was
rarely considered when the regulations were developed. Since 9/11, we
have come to realize that hazardous materials safety and security are
inseparable. Many, if not most, of the requirements designed to enhance
hazardous materials transportation safety, such as strong containers
and clear hazard communication, enhance the security of hazardous
materials shipments as well. Congress recognized this synergy and
legislated its intent that ``hazmat safety [was] to include hazmat
security'' when it enacted the Homeland Security Act of 2002
authorizing the Secretary of Transportation to ``prescribe regulations
for the safe transportation, including security, of hazardous material
in intrastate, interstate, and foreign commerce.'' Safety and security
must be considered together, particularly because a given security
measure could have a potentially negative impact on overall
transportation safety--routing and hazard communication are two obvious
examples. Of course, the opposite can also be true--a safety policy or
regulation could have a potentially negative impact on transportation
security. PHMSA, FRA, and TSA are collaborating to ensure an
appropriate balance between safety and security concerns.
The transport of highly hazardous materials is not limited to rail.
Currently, significant amounts of highly hazardous materials are also
transported by highway and vessel. The focus on rail is intended to be
one phase in a multiphase effort by DOT and DHS to assess and secure
the transportation of hazardous materials in all transportation modes
to create an end-to-end secure supply chain. In this regard, we note
the Federal Motor Carrier Safety Administration has established
criteria in 49 CFR Part 397 for routing certain highly hazardous materials.
A. Applicability to Certain Types of Hazardous Materials
PHMSA, FRA, and TSA have assessed the safety and security
vulnerabilities associated with the transportation of different types
and classes of hazardous materials. The list of materials to which the
enhanced security requirements proposed in this NPRM would apply is
based on specific transportation scenarios. These scenarios depict how
hazardous materials could be deliberately used to cause significant
casualties and property damage or accident scenarios resulting in
similar catastrophic consequences. The materials specified in this NPRM
present the greatest rail transportation safety and security risks--
because of the potential consequences associated with an unintentional
release of these materials--and the most attractive targets for
terrorists--because of the potential for these materials to be used as
weapons of opportunity or weapons of mass destruction.
In this NPRM, we are proposing enhanced rail security requirements
for rail transportation, with a particular focus on the following types
and quantities of hazardous materials:
(1) More than 2,268 kg (5,000 lbs) in a single carload of a
Division 1.1, 1.2 or 1.3 explosive;
(2) A bulk quantity of a TIH material (poisonous by inhalation, as
defined in 49 CFR 171.8); or
(3) A highway-route controlled quantity of a Class 7 (radioactive)
material.
As indicated above, the materials to be covered by this rulemaking
represent those posing both a significant rail transportation safety
and security risk. The following list provides a basic summary of the
materials and critical vulnerabilities warranting inclusion in the
proposed rule:
? Division 1.1, 1.2, and 1.3 explosive materials. These
explosive materials present significant safety and security risks in
transportation. A Division 1.1 explosive is one presenting a mass
explosive hazard. A mass explosion is one affecting almost the entire
load simultaneously. A Division 1.2 explosive has a projection hazard,
which means if the material were to explode, it would project fragments
outward at some distance. A Division 1.3 explosive presents a fire
hazard and either a minor blast hazard or a minor projection hazard or
both. If compromised in transit by detonation or as a secondary
explosion to an IED, these explosives could result in substantial
damage to rail infrastructure and the surrounding area.
? TIH materials. TIH materials are gases or liquids that are
known or presumed on the basis of tests to be toxic to humans and to
pose a hazard to health in the event of a release during
transportation. TIH materials pose special risks during transportation
because their uncontrolled release can endanger significant numbers of
people. The January 6, 2005 train derailment in Graniteville, SC with
subsequent release of chlorine sadly underscored this risk.
? Highway Route Controlled Quantity Radioactive Materials
(HRCQ). Shipments of HRCQ of radioactive materials are large quantities
of radioactive materials requiring special controls during
transportation. Because of the quantity included in a single packaging,
HRCQ shipments pose significant safety and security risks.
In addition, we are seeking comment on whether the requirements
proposed in this NPRM should also apply to flammable gases, flammable
liquids, or other materials that could be weaponized, as well as
hazardous materials that could cause serious environmental damage if
released into rivers or lakes. For example, although most ammonium
nitrate and ammonium nitrate mixtures are classified as oxidizers
during transportation based on the normal transportation environment,
tests have shown these materials have explosive properties under
certain conditions. Rail cars carrying large quantities of these
materials may pose significant security risks. Commenters are asked to
identify which additional materials (if any) should be subject to
enhanced safety or security requirements and discuss the types of
requirements appropriate to address the risks posed by an intentional
or accidental release of the product.
B. Commodity Data
In this NPRM, PHMSA is proposing to require rail carriers
transporting any of the materials specified to compile commodity data
on a calendar year basis. Each rail carrier must identify the line
segments over which these commodities are transported. As the carrier
deems appropriate, line segments may be aggregated into logical
groupings, such as between major interchange points. The rail carrier
selected line segment(s) will be considered the route, as discussed
below, used for rail routing analysis. Within each route, the commodity
data must identify the route location and
[[Page 76840]]
total number of shipments transported over the line segment(s). The
data collected must identify the specified materials by UN
identification number. However, given that UN identification numbers
used to identify the specified materials may also represent materials
not meeting the criteria for commodity data collection, an allowance is
being made to allow data collection for all Class 7 and Division 6.1
materials transported over the route. Complete data on the shipments
transported and the routes utilized should improve rail carriers'
ability to develop and implement specific safety and security strategies.
As proposed in this NPRM, rail carriers would be required to
complete the commodity data collection within 90 days after the end of
each calendar year. For example, if a rail carrier is compiling data
for calendar year 2006, it must be available for use and inspection by
April 1, 2007. To provide carriers with flexibility in compiling and
assessing the data, we are not proposing a specified format; however
the data must be available in a format that could be read and
understood by DOT personnel and that clearly identifies the physical
locations of the carrier's route(s) and commodities transported over
each route. Physical location may be identified by beginning and ending
point, locality name, station name, track milepost, or other method
devised by the rail carrier which specifies the geographic location.
Carriers would also be required to retain the data for two years, in
either hard copy or electronic form, whichever is most efficient for
the carrier.
With respect to information confidentiality and security concerns,
data compiled under the proposed regulations would be considered SSI
under regulations promulgated by DOT and DHS (49 CFR Parts 15 and 1520,
respectively). SSI is subject to special handling rules and qualifying
information is protected from public disclosure under those regulations
if copies of any data are kept or maintained by DOT. See 69 FR 28066
(May 18, 2004) and 70 FR 1379 (January 7, 2005). Carriers would be
required to ensure any information developed to comply with the
requirements proposed in this NPRM is properly marked and handled in
accordance with the SSI regulations. Further, information maintained by
DOT may be shared with DHS. In such cases, SSI protections will
continue to apply.
C. Route Analyses
In this NPRM, PHMSA is proposing to require rail carriers to use
the data compilation described above to include in their security plans
an analysis of the rail transportation routes over which the specified
materials are transported. As proposed, carriers will be required to
analyze the specific safety and security risks for routes identified in
the commodity data collection. Route analyses will be required to be in
writing and to consider, at a minimum, a number of factors specific to
each individual route. A non-inclusive list of those factors is
included in proposed Appendix D to Subpart I of Part 172. Consistent
with the SSI restrictions set forth in 49 CFR Parts 15 and 1520, TSA
and FRA will provide appropriate guidance to rail carriers on how to
properly weigh and evaluate the factors necessary for performing the
security part of the risk analysis, and will include threat scenarios
to aid in this route analysis.
We invite comments to address how frequently route analyses should
be updated and revised. This NPRM proposes to require carriers to re-
examine route analyses on an annual basis. We are seeking comments on
whether annual analyses are necessary and whether the analyses should
be conducted more frequently or less frequently. For example, the
regulations could require carriers to revise and update route analyses
only when necessary to account for changes in the way a carrier
operates, changes to the routes utilized to transport hazardous
materials, or in response to specific threat information.
We anticipate carriers will first analyze the rail transportation
route over which each specified commodity normally travels in the
regular course of business. As discussed below, we are also proposing
to require carriers to then identify and analyze the next most
practicable alternative route, if available, over which they have
authority to operate, using the same factors. We expect the alternative
route analyzed will originate and terminate at the same points as the
original route.
We have given careful consideration to the question of how to
define a ``rail transportation route'' for the purpose of the analysis
proposed in this NPRM. We propose this very basic definition: a route
is a series of one or more rail line segments, as selected by the rail
carrier. Between the beginning and ending points of a rail carrier's
possession and responsibility for a hazardous materials shipment, it
would be up to the rail carrier to define the routes to be assessed.
For example, a route could begin at the geographic point where a rail
carrier takes physical possession of the hazardous material from the
offeror or another carrier for transportation. A route could end at the
geographic point where: (1) The rail carrier relinquishes possession of
the hazardous material, either by delivering the commodity to its final
destination or interchanging the shipment to another carrier; or (2)
the carrier's operating authority ends. Hazardous materials shipments
will likely have intermediary stops and transitions--for example, a
shipment may be held in a railroad yard, placed in a different train,
or stored temporarily during transportation. Our aim is to have rail
carriers analyze the territory and track over which these certain
hazardous materials are regularly transported in the carrier's normal
course of business, while providing flexibility concerning how specific
routes will be defined and assessed. The final analysis, however,
should provide a clear picture of the routes a rail carrier uses for
the specified hazardous materials. Patterns and regular shipments
should become obvious, as should non-routine hazardous materials
movements, such as the one-time move of a specific shipment of military
explosives or high-level nuclear waste. The parameters set out for
``key routes'' in AAR Circular OT-55-I are an excellent starting point
for railroads to use in performing route analyses.
In addition to the routes normally and regularly used by rail
carriers to transport these designated hazardous materials, we are
proposing to require carriers to analyze and assess the feasibility of
available alternative routes over which they have authority to operate.
For each primary route, one commercially practicable alternative route
must be identified and analyzed using the Rail Risk Analysis Factors of
proposed Appendix D to Part 172. We recognize in many cases, the only
alternative route in a particular area may be on another carrier's
right-of-way. A rail carrier would not be obligated to analyze an
alternative route over which it has no authority to operate. We also
recognize, in some cases, no alternative route will be available;
therefore, no such analysis would be required. This is particularly
true in the case of regional or short-line railroads that are often the
only rail carriers in a given geographic area. Where an alternative
route over which the carrier has authority to operate does exist, the
carrier must analyze that route and document its analysis, including
the safety and security risks presented by the alternative route, any
remediation or mitigation measures in place or that could be
implemented, and the economic effects of utilizing the
[[Page 76841]]
alternative route. As used in this proposal, ``commercially
practicable'' means that the route may be utilized by the railroad
within the limits of the railroads particular operating constraints
and, further, that the route is economically viable given the economics
of the commodity, route, and customer relationship. The question of
commercial practicability must be reasonably evaluated by each rail
carrier as a part of its analysis based on the specific circumstances
of the route and proposed traffic. If using a possible alternative
route would significantly increase a carrier's operating costs, as well
as the costs to its customers, the carrier should document these facts
in its route analysis. We expect that carriers will make these
decisions in good faith, using the financial management principles
generally applied to their other business decisions.
In the rail operating environment, it is possible a carrier may
transport the specified material over a route where the carrier has
trackage rights, but does not own or have control over the track and
associated infrastructure. Many of the factors in Appendix D relate to
the physical characteristics of the track. In completing the route
analyses required by this proposed rule, the carrier may identify
specific measures to address risks outside its ability to accomplish.
Because it is essential that safety and security measures be
coordinated among all responsible entities, it is incumbent upon the
carrier to work with the owner of the track to evaluate the
vulnerabilities and identify measures to effect mitigation of the
risks. If measures required by this proposed rule cannot be implemented
because another entity refuses or fails to cooperate, the carrier must
notify FRA. As stated in the Enforcement section of this preamble, FRA
retains the authority to require use of an alternative route until such
time as identified deficiencies are mitigated or corrected.
For each primary route, one alternative route must be identified
and analyzed, if available as discussed above. As with the primary
route analysis, we expect the end result to be a clear picture of the
commercially practicable alternative route(s) available to rail
carriers for the transportation of the specified hazardous materials.
Alternative routing is used in the normal course of business throughout
the railroad industry in order to accommodate circumstances such as
derailments, accidents, damaged track, natural events (mudslides,
floods), traffic bottlenecks, and heightened security due to major
national events. The rail carriers' analysis of the alternative route
should, in the end, clearly indicate the reasonableness,
appropriateness, and feasibility, including economic feasibility, of
using the alternative. We expect a complete alternative route analysis
will indicate such things as any actual use of alternative route;
safety and security benefits and risks of the alternative route; and
commercial or economic costs and benefits of the route. Clearly, if an
alternative route, after analysis, is identified to be the safest and
most secure commercially practicable route, the carrier would either
designate it as the primary route or identify and implement mitigating
measures to improve the safety and security of the analyzed primary
route. Each carrier will be required to use the commercially
practicable route with the overall fewest combined safety and security
risks, based on its analysis.
We recognize there may not be one single route that affords both
the fewest safety and security risks. The most important part of this
process is the route analysis itself and the identification of the
safety and security risks on each route. The carrier may then make an
informed decision, balancing all relevant factors and the best
information available, regarding which route to use. For example, if a
rail carrier determines one particular route is the safest and most
practicable, but has a particular security risk, the carrier should
then implement specific security measures to mitigate the security
risk. We also recognize some security risks or threats may be long-
term, while others are short-term, such as those arising from holding a
major national event (e.g., national political party conventions) in
close proximity to the rail route. Mitigation measures could be put in
place for the duration of the event; after the event is over, normal
operations could resume. Again, we expect many of the railroads already
have experience in addressing safety and security issues such as these,
and likely have already catalogued possible actions to mitigate such risks.
In the evaluation of alternative routes, carriers may also indicate
certain conditions under which alternative routes will be used. In the
case of a short-term safety or security risk, such as a temporary event
at a venue along the route, or a derailment, carriers may specify an
alternative route and the measures to be put in place for use of that
alternative route.
To assist rail carriers in performing these analyses of rail
transportation routes and alternative routes, PHMSA is proposing to add
a new Appendix D to Subpart 172. This appendix will lay out the minimum
criteria a rail carrier must consider in analyzing each route and
alternative route. The criteria listed are those we believe are most
relevant in analyzing the rail routes for the hazardous materials
discussed in this proposed rule. Of course, not all the criteria will
be present on each route, and each route will have its own combination
of factors to be considered. Again, our aim is to enable rail carriers
to tailor these analyses to the particular risks and factors of their
operations, and to get a clear picture of the characteristics of each
route.
For the initial route analysis, we anticipate rail carriers will
review the prior two-year period when considering the criteria
contained in Appendix D. In subsequent years, the scope of the analyses
should focus on changes from the initial analyses. For example, using
the criteria in Appendix D, carriers should analyze the impact of
significant changes in traffic density, new customers offering or
receiving the specified hazardous materials, and significant
operational changes. The scope of the analyses in subsequent years is
expected to be more limited than the analyses conducted in the first
year. As proposed in this NPRM, each carrier would be required to
perform a system-wide analysis every five years to include a
comprehensive review of all changes occurring during the intervening
period. The system-wide review would include an analysis of all primary
routes and a reevaluation of the corresponding practicable alternative
routes.
We recognize the need for flexibility in performing risk
assessments, yet we must balance it against the need for some degree of
uniformity in the assessments. Uniformity is necessary when a
performance standard is used. We have tried to balance these two
competing interests by establishing a requirement for the assessment
criteria to be used, while allowing rail carriers to choose the
methodology for conducting the analysis. We believe the proposed
criteria will improve the quality of risk assessments conducted per
this subpart. We solicit comment on the proposal's balancing of
flexibility and uniformity in both risk assessment and route selection.
Regardless of methodology selected, a rail carrier should apply
certain common principles. These include the following:
? The analysis should employ the best reasonable, obtainable
information from the natural, physical, and social sciences to assess
risks to health, safety, and the environment;
[[Page 76842]]
? Characterizations of risks and of changes in the nature or
magnitude of risks should be both qualitative, and quantitative to the
extent possible consistent with available data;
? Characterizations of risk should be broad enough to deduce
a range of activities to reduce risks;
? Statements of assumptions, their rationale, and their
impact on the risk analysis should be explicit;
? The analysis should consider the full population at risk,
as well as subpopulations particularly susceptible to such risks and/or
more highly exposed; and
? The analysis should adopt consistent approaches to
evaluating the risks posed by hazardous agents or events.
We believe institutionalizing a practical assessment program is
important to supporting business activities and provides several
benefits. First, and perhaps most importantly, assessment programs help
ensure identification, on a continuing basis, of the movement of
materials presenting the greatest risk to the public and the business
community. Second, risk assessments help personnel throughout the
organization better understand where to best apply limited resources to
minimize risks. Further, risk assessments provide a mechanism for
reaching a consensus on which risks are the greatest and what steps are
appropriate for mitigating them. Finally, a formal risk assessment
program provides an efficient means for communicating assessment
findings and recommended actions to business unit managers as well as
to senior corporate officials. The periodic nature of the assessments
provides organizations a means of readily understanding reported
information and comparing results over time.
The route analysis described above must identify safety and
security vulnerabilities along the route to be utilized. As proposed in
this NPRM, each rail carrier's security plan would be required to
include measures to minimize the safety and security vulnerabilities
identified through the route analyses. With respect to mitigation
measures and cost, there are many measures rail carriers can take
without necessarily adding to the cost of compliance. For example,
carriers can work to notify local law enforcement and emergency
responders of the types and approximate amounts of particular
commodities typically transported through communities. Further,
location changes can be made as to where rail cars containing highly
hazardous materials are stored in transit. As with the security plan
requirements currently required, our goal with this proposal is to
permit rail carriers the flexibility to identify potential safety and
security vulnerabilities and measures to address them, including the
determination of which of its routes provide the overall fewest safety
and security risks.
Although not a terrorist incident, the January 6, 2005, railroad
accident and release of chlorine in Graniteville, SC, added to the
growing concern about terrorism and prompted the development of the
Freight Rail Security Program. This program is an innovative public-
private partnership dedicated to assessing policies and technologies
for enhancing security throughout the freight rail industry. One
product of this partnership is the development of the Rail Corridor
Risk Management Tool (RCRMT). The RCRMT will leverage existing
technologies and accepted risk management practices where feasible, and
incorporate new technologies and elements as appropriate. A second
project of the Freight Rail Security Program is the Rail Corridor
Hazmat Response and Recovery Tool (RCHRRT), which will integrate
geographical information and risk modeling. The RCHRRT is being
developed through a grant to the Railroad Research Foundation and will
include participation from the rail industry. When fully developed,
these tools will provide a formal methodology to assist the rail
carriers in complying with the enhanced safety and security planning
requirements of this proposed rulemaking.
D. Route Selection
The overarching goal of this NPRM is to ensure each route used for
the transport of the specified hazardous materials is the one
presenting the fewest overall safety and security risks. PHMSA is
proposing a systematic process for rail carriers to: (1) Identify the
routes currently in use by the rail carrier; (2) perform safety and
security risk analyses of those primary routes; (3) identify and
analyze commercially practicable alternative routes; and (4) make
future route selections based on the results of the completed analyses.
A rail carrier must evaluate its analyses and any measures put in place
to mitigate identified vulnerabilities resulting in a selection of
practicable routes presenting the fewest safety and security risks. The
final step of this process is for the rail carrier to ensure the
specified materials are moving on the safest and most secure
commercially practicable routes. We expect for larger rail carriers,
who have multiple routes available, the overall result of the route
selection process will be a suite of routes addressing the overall
safety and security risks of the materials in this rule. As discussed
above, development of a suite of routes, where practicable, may provide
carriers the flexibility to manage changing localized conditions, such
as short-term changes in threat condition or track outage due to
incidents or derailment, within their existing route selections.
PHMSA has proposed a 90-day window to compile commodity data and
identify currently used routes. In the example given previously, for
calendar year 2006, the commodity data would be available by April 1,
2007. Once the data are available, PHMSA recognizes it will take some
time, especially in the first year of compliance, to complete the
safety and security analyses of all primary and alternative routes.
Moreover, the time necessary to complete the analyses will vary from
carrier to carrier depending on the number of routes to be assessed and
the nature of the safety and security issues identified for each route.
We expect each rail carrier will build on the foundation of its
existing security plan and the parameters already outlined in Circular
OT-55-I. As the safety and security analyses are completed, the carrier
must document its review and route selection decisions. We anticipate
several possible route selection outcomes:
? The existing route presents the lowest overall safety and
security risk and continues to be the selected route.
? The alternative route presents the lowest overall safety
and security risks. The alternative will be selected, and
transportation of the identified materials on the alternative route
will begin as expeditiously as possible.
? The existing or the alternative route presents the lowest
overall safety and security risk except under specific identified
conditions. The lowest overall safety and security risk route will be
used dependent upon the conditions. The conditions warranting route
change must be clearly identified in the analyses and routing decision
documentation.
? Based on the analyses, either the existing or alternative
practicable route is identified as presenting the lowest overall safety
and security risks; however, the rail carrier identifies measures to
mitigate some of the risk and lower the overall risk of the other
route. The route with the lowest overall safety and security risk
should be selected and used. In documenting the route selection, the
carrier should identify remediation measures to be implemented with a
schedule of their
[[Page 76843]]
implementation and the route change upon completion.
Clearly, other outcomes are possible. Once a route has been
documented as presenting the lowest overall safety and security risk,
the rail carrier must implement use of that route. If a carrier
completes this process in July of a given analysis year, for example,
then routing changes must be implemented as soon as possible. In all
cases, the analyses and any routing changes resulting from the analyses
must be completed and implemented by January 1 of the following year.
E. Storage, Delays in Transit, and Notification
A difficult area to address in rail transportation is the safety
and security of materials en route to their final destinations.
Hazardous materials shipments may be delayed for any number of reasons:
derailments, track repairs, cargo backlogs at ports, changes in
security alert levels due to terror threats, or the presence of large
events near key rail routes. Any or all of these may be reasons for
shipments to be put on hold, stored, or delayed in transit. The
resulting temporary storage in transport may encompass a wide variety
of places, situations, and timeframes. Rail cars hauling hazardous
materials may be placed on yard tracks with hundreds of other rail cars
near densely populated urban areas, or a few cars may be placed on
sidings in rural, less populated areas. Yards may not be fenced and
tracks may traverse a number of public streets with at-grade crossings;
thus, it is logistically very difficult to monitor each and every car
containing hazardous materials at all times. Each in-transit storage
scenario has its own set of individual risks and hazards.
The HMR require offerors and carriers to address the en route
security of hazardous materials, including hazardous materials stored
incidental to movement. Thus, rail offerors and carriers are already
required to address the security of in-transit storage facilities in
their security plans. To emphasize this requirement, in this NPRM we
are proposing to require rail carriers of the specified hazardous
materials to include in security plans measures to limit access to
materials stored or delayed in transit, measures to mitigate the risk
to population centers associated with materials stored or delayed in
transit, and measures to be taken in the event of escalating threat
levels. Further, we are proposing to require rail carriers to inform a
facility at which a rail car will be stored incidental to movement when
the rail car is delivered to the facility so the facility can implement
appropriate security measures. We are also proposing a similar
requirement for rail carriers to inform the consignee facility when the
rail car is delivered. We propose to require such notification as soon
as practicable but in no case later than six hours after delivery. We
invite commenters to address this proposed timeframe, particularly how
such a requirement should be implemented for deliveries that occur
outside of normal business hours.
These procedures for notifying the interim storage facility and
consignee of rail car delivery should ensure a positive transfer of
responsibility and security for the car between the rail carrier and
facility when the physical custody of the car changes. Carriers may
want to consider what measures are currently in place for notification
and how these provide confirmation of the facility's acceptance of the
shipment. In addition, we are proposing to require rail carriers to
work with shippers and consignees to minimize the time a rail car is
stored incidental to movement to the extent practicable.
In addition, PHMSA is proposing to require the carrier to notify
the consignee if there is a significant unplanned delay during
transportation of one of the hazardous materials specified in this
proposed rulemaking, within 48 hours of identifying the significant
delay, and provide a revised delivery schedule. Our goal is to
strengthen the requirements of the current ``48-hour rule'' contained
in Sec. 174.14, and to delegate more positive control and
responsibility to the railroads for tracking and controlling the
movement of railcars carrying hazardous materials. Such notification
will also facilitate communication between the carrier in possession of
the material and the consignee to ensure the hazardous materials
specified in this NPRM do not inadvertently wait in transit.
A significant delay would be one that: (1) Compromises the safety
or security of the hazardous material shipped; or (2) delays the
shipment beyond its normal expected or planned shipping time. A
``significant delay'' must be determined on a case-by-case and hazmat-
by-hazmat basis. As a general rule, any delay beyond the normal or
expected shipping time for the material qualifies as a ``significant
delay.'' Because most railroads already have in place systems to
monitor the transportation of certain types of shipments, and
procedures for notification of consignees, we do not anticipate this
requirement will involve major operational changes for any of the
affected carriers.
The AAR Circular OT-55-I contains operating practices the rail
industry has already implemented for certain time-sensitive shipments.
PHMSA's proposed requirement simply builds on those practices. In
particular, the Circular addresses time-sensitive shipments, and
specifies railroads are to be responsible for monitoring of shipments
of such products and communicating with affected parties when the
shipment may not reach its destination within the specified timeframe.
Circular OT-55-I recommends delivery of time-sensitive materials should
take place within 20 or 30 days, depending on the commodity.\9\ Because
of the variety of materials covered by this proposed rulemaking, PHMSA
has not designated specific delivery timeframe guidelines for these
materials.
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\9\ The additional commodities listed in Circular OT-55-I and
requiring a delivery time of 30 days are styrene monomer, stabilized
and flammable liquid, n.o.s. (recycled styrene).
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With respect to notification to consignees in the event of a
shipment delay, we have specified such notification to be made by a
method acceptable to both carrier and consignee. We are aware many rail
carriers have in place electronic systems where consignees may look up
and track their expected rail shipments. This is an acceptable method
of notification, as are e-mail, facsimile, or telephone. The important
aspect of the notification is that both carrier and consignee agree
upon the method.
F. Pre-Trip Security Inspections
The HMR currently require rail carriers to inspect each rail car
containing hazardous materials at ground level. From a safety
perspective, the inspections are intended to address required markings,
labels, placards, securement of closures, and leakage. Safety-related
inspections currently required under the HMR do not specifically
address the possibility a terrorist could introduce a foreign object on
the tank car, the most pernicious being an IED. PHMSA proposes in this
NPRM to increase the scope of the safety inspection to include a
security inspection of all rail cars carrying placarded loads of
hazardous materials. The primary focus of the enhanced inspection is to
recognize an IED, which is a device fabricated in an improvised manner
incorporating explosives or destructive, lethal, noxious, pyrotechnic,
or incendiary chemicals in its design, and generally including a
[[Page 76844]]
power supply, a switch or timer, and a detonator or initiator.
To guard against the possibility an unauthorized individual could
tamper with rail cars containing hazardous materials to precipitate an
incident during transportation, such as detonation or release using an
IED, we are proposing to require the rail carriers' pre-trip
inspections of placarded rail cars to include an inspection for signs
of tampering with the rail car, including its seals and closures, and
any item that does not belong, suspicious items, or IEDs. TSA will
provide guidance to rail carriers to train employees on identifying
IEDs and signs of tampering. Where an indication of tampering or a
foreign object is found, the rail carrier must take appropriate actions
to ensure the security of the rail car and its contents has not been
compromised before accepting the rail car for further movement.
The existing security plan requirements in the HMR specify each
carrier's plan must include measures to address unauthorized access and
en route security. While not explicitly stated in the regulatory text,
it is expected these sections provide guidance to carrier personnel for
the actions to be taken in the event of suspected incident involving
unauthorized access or a security breach. The rail industry, in
coordination with the AAR, has worked closely with Federal, State and
local officials to improve the security of rail transportation.
However, each carrier should review its existing security plan to
ensure the measures are adequate to facilitate notification of railroad
police, security or management personnel, as appropriate, in the event
a suspicious item is identified during inspection. As evidenced by the
coordinated attacks of September 11, 2001, prompt identification of a
terrorist event may be critical to responding to and potentially
minimizing the impacts of the event.
G. Enforcement
As indicated above, DHS and DOT share responsibility for hazardous
materials transportation security. PHMSA and FRA collaborated with TSA
in developing this NRPM and will continue to work closely with TSA
throughout the rulemaking process.
FRA is the agency within DOT responsible for railroad safety, and
is the primary enforcer of safety and security requirements in the HMR
pertaining to rail shippers and carriers. FRA inspectors routinely
review security plans during site visits and may offer suggestions for
improving security plans, as appropriate. If an inspector's
recommendations are not implemented, FRA may compel a rail shipper or
carrier to make changes to its security plan through its normal
enforcement process. FRA consults with TSA concerning railroad security
issues in accordance with the FRA-TSA annex to the DOT-DHS MOU on
transportation security.
TSA's authority with respect to transportation security, including
hazardous materials security, is comprehensive and supported with
specific powers to assess threats to security; monitor the state of
awareness and readiness throughout the rail sector; determine the
adequacy of an owner or operator's security measures; and identify
security gaps.
With respect to enforcement of the proposed security requirements
in this NPRM, FRA plans to work closely with TSA to develop a
coordinated enforcement strategy to include both FRA and TSA inspection
personnel. If in the course of an inspection of a railroad carrier, TSA
identifies evidence of non-compliance with a DOT security regulation,
TSA would provide the information to FRA and PHMSA for appropriate
action. In this regard, TSA would not directly enforce DOT security
rules, and would not initiate safety inspections. Consistent with the
PHMSA-TSA and FRA-TSA annexes to the DOT-DHS MOU, all the involved
agencies will cooperate to ensure coordinated, consistent, and
effective activities related to rail security issues. Thus, DHS and DOT
will leverage knowledge and expertise and coordinate security
assessments and inspection and compliance actions by their respective
inspectors to minimize disruption to railroad carriers being inspected;
maximize the utilization of inspector resources to avoid duplication of
effort; ensure consistent information is provided by both parties to
the rail industry on security matters and safety matters with security
implications; and ensure consistent enforcement action is taken for
violations of Federal laws and regulations, and that the appropriate
enforcement tools are used to address security-related problems.
Generally, inspection personnel will not collect or retain security
plans or the route selection documentation required by this proposed
rule. However, inspection personnel may periodically perform rail
carrier compliance inspections. In the event inspection personnel
identify a need to collect a copy of the security plan or route review
and selection documentation, all applicable laws and regulations,
including the SSI regulations and Freedom of Information Act
exemptions, will be reviewed to determine whether the information can
be withheld from public release.
We are not proposing to implement a submission and approval process
for security plans and route analyses. The review and approval of
hundreds of security plans and analyses would be extremely resource-
intensive and time-consuming. Inspectors will review security plans,
route analyses, and route choices for compliance with applicable
regulations. Upon completion of a compliance inspection, if the
inspection identifies deficiencies in the route analyses, security
plan, or manner in which the plan is implemented, the deficiencies will
be addressed using FRA's existing enforcement procedures. Inspectors
will have the discretion to issue notices of non-compliance, or to
recommend assessment of civil penalties for probable violations of the
regulations. Based on evidence indicating a rail carrier has not
performed a reasoned good-faith analysis, carefully considering all
available information including the safety and security risk analysis
factors in the proposed Appendix D to Part 172, to choose the safest,
most secure practicable route, the FRA Associate Administrator for
Safety, in consultation with TSA, may require the railroad to use an
alternate route until such time as the identified deficiencies are
satisfactorily addressed. However, FRA would only require an alternate
route if it concludes the carrier's analysis did not satisfy the
minimum criteria for performing a safety and security risk analysis, as
established by the proposed Sec. 172.820 and Appendix D to Part 172.
Moreover, we would expect to mandate route changes only for the most
exigent circumstances. FRA will develop procedures for rail carriers to
appeal a decision by the FRA Associate Administrator for Safety to
require the use of an alternative route, including information a rail
carrier should include in its appeal, the time frame for filing an
appeal, and the process to be utilized by FRA in considering the
appeal, including any consultations with TSA or PHMSA.
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This NPRM is published under authority of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.) Section 5103(b) of Federal hazmat law authorizes the Secretary of
Transportation to prescribe regulations for the safe transportation,
including security, of hazardous
[[Page 76845]]
materials in intrastate, interstate, and foreign commerce.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is a significant regulatory action under section
3(f) Executive Order 12866 and, therefore, was reviewed by the Office
of Management and Budget (OMB). The proposed rule is a significant rule
under the Regulatory Policies and Procedures order issued by the U.S.
Department of Transportation (44 FR 11034). We completed a regulatory
evaluation and placed it in the docket for this rulemaking.
Generally, costs associated with the provisions of this NPRM
include costs for collecting and retaining data and performing the
mandated route safety and security analysis. We estimate total 20-year
costs to gather the data and conduct the analyses proposed in this NPRM
to be about $20 million (discounted at 7%).
In addition, rail carriers and shippers may incur costs associated
with rerouting shipments or mitigating safety and security
vulnerabilities identified as result of their route analyses. Because
the NPRM builds on the current route evaluation and routing practices
already in place for most, if not all, railroads that haul the types of
hazardous materials covered in the proposal, we do not expect rail
carriers to incur significant costs associated with rerouting. The
railroads already conduct route analyses and re-routing--in line with
what this rule would require--in accordance with the Association of
American Railroads (AAR) Circular OT-55-I. Moreover, the smaller
carriers (regionals and short lines) are unlikely to have access to
many alternative routes, and where an alternative does exist, it is not
likely to be safer and more secure than the route they are currently
using. If there is an alternative route the carrier determines to be
safer and more secure than the one it is currently using, the carrier
could well switch routes, even in the absence of a regulatory
requirement, because it reduces the overall risk to its operations.
Such reduction in risk offers a significant economic advantage in the
long run.
Identifying and mitigating security vulnerabilities along rail
routes is currently being done by the railroads. We believe that
readily available ``high-tech'' and ``low-tech'' measures are being
quickly implemented. The development, procurement and wide-spread
installation of the more technology-driven alternatives could take
several years. PHMSA's previous security rule requires the railroads to
have a security plan that includes en route security. This existing
regulatory requirement, coupled with the industry's generally risk-
averse nature, is driving the railroads to enhance their security
posture. As with routing decisions, such reduction in risk offers a
significant economic advantage in the long run. Therefore, we expect
that the cost of mitigation attributed solely to this proposal will not
be significant. We note in this regard that safety and security
measures are intertwined and often work hand in hand to complement each
other; therefore, separating security costs from safety costs is not
feasible. Overall transportation costs should not substantially
increase because of this rule.
Estimating the security benefits of the proposed new requirements
is challenging. Accident causation probabilities based on accident
histories can be estimated in a way that the probability of a criminal
or terrorist act cannot. The threat of an attack is virtually
impossible to assess from a quantitative standpoint. It is undeniable
hazardous materials in transportation are a possible target of
terrorism or sabotage. The probability hazardous materials will be
targeted is, at best, a guess. Similarly, the projected outcome of a
terrorist attack cannot be precisely estimated. It is assumed choices
will be made to maximize consequences and damages. Scenarios can be
envisioned where hazardous materials could be used to inflict hundreds
or even thousands of fatalities. To date, there have been no known or
specific threats against freight railroads, rail cars, or tank cars,
which makes all of these elements even more difficult to quantify.
However, the fact an event is infrequent or has never occurred does not
diminish the risk or possibility of such an event occurring.
Security plans lower risk through the identification and mitigation
of vulnerabilities. Therefore, rail carriers and the public benefit
from the development and implementation of security plans. However,
forecasting the benefits likely to result from plan clarifications
requires the exercise of judgment and necessarily includes subjective
elements.
The major benefits expected to result from the provisions of this
NPRM relate to enhanced safety and security of rail shipments of
hazardous materials. We estimated the costs of a major accident or
terrorist incident by calculating the costs of the January 2005
Graniteville, South Carolina, accident. This accident killed 9 people
and injured 554 more. In addition, the accident necessitated the
evacuation of more than 5,400 people. Total costs associated with the
Graniteville accident are almost $126 million. The consequences of an
intentional release by a criminal or terrorist action, particularly in
an urban area, likely would be more severe than the Graniteville
accident because an intentional act would be designed to inflict the
most damage possible. These proposals are intended to reduce the safety
and security risks associated with the transportation of the specified
hazardous materials. If the measures proposed in this NPRM prevent just
one major accident or intentional release over a twenty-year period,
the resulting benefits would more than justify the potential compliance
costs. We believe that they could.
C. Executive Order 13132
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Orders 13132
(``Federalism'') and 13175 (``Consultation and Coordination with Indian
Tribal Governments''). This proposed rule would not have any direct
effect on the States, their political subdivisions, or Indian tribes;
it would not impose any compliance costs; and it would not affect the
relationships between the national government and the States, political
subdivisions, or Indian tribes, or the distribution of power and
responsibilities among the various levels of government.
In its March 25, 2003 final rule in Docket No. HM-232, PHMSA
specifically required rail carriers to address the en route security of
hazardous materials during transportation. We decided that the
specifics of routing rail shipments of hazardous materials, a component
of en route security, should be left to the judgment of rail carriers.
See 68 FR at 14513, 14516. We have concluded that, under Federal
hazardous material transportation law (49 U.S.C. 5125), the Federal
Rail Safety Act (49 U.S.C. 20106), and the Commerce Clause of the U.S.
Constitution, PHMSA's decision to leave the routing of hazardous
materials shipments to the judgment of rail carriers preempts all
States, their political subdivisions, and Indian tribes from
prescribing or restricting routes for rail shipments of hazardous
materials. See CSX Transportation, Inc. v. Williams, 406 F.3d 667 (D.C.
Cir. 2005). This proposed rule would require rail carriers to consider
certain factors in selecting routes for transporting shipments of
hazardous materials, but it does not change PHMSA's basic approach in
HM-232 of leaving ultimate hazardous materials routing decisions to the
rail carriers. Accordingly, this
[[Page 76846]]
proposed rule would have the same preemptive effect upon States,
political subdivisions, or Indian tribes, and the consultation and
funding requirements of Executive Orders 13132 and 13175 do not apply.
In view of the high level of interest in the issue, we are including a
statement in the proposed text of the regulation to highlight the
preemptive effect of the provisions of this proposed rule.
Nonetheless, we will invite interested States, political
subdivisions, and Indian tribes to submit comments on this proposed
rule and consult directly with PHMSA, through invitations to
organizations such as the National Governors Association, Council of
State Governments, National Conference of State Legislatures, United
States Conference of Mayors, National Association of Counties, National
League of Cities, and National Congress of American Indians, and
directly to those jurisdictions which have already expressed concerns
about routes of rail shipments of hazardous materials.
D. Executive Order 13175
We analyzed this proposed rule in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this proposed
rule does not significantly or uniquely affect tribes and does not
impose substantial and direct compliance costs on Indian tribal
governments, the funding and consultation requirements of Executive
Order 13175 do not apply, and a tribal summary impact statement is not
required.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities.
An agency must conduct a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant impact on a substantial number of small entities.
The Small Business Administration (SBA) permits agencies to alter
the SBA definitions for small businesses upon consultation with SBA and
in conjunction with public comment. Pursuant to this authority, FRA
published a final rule (68 FR 24891; May 9, 2003) defining a ``small
entity'' as a railroad meeting the line haulage revenue requirements of
a Class III railroad. Currently, the revenue requirements are $20
million or less in annual operating revenue. This is the definition
used by PHMSA to determine the potential impact of this NPRM on small
entities.
Not all small railroads will be required to comply with the
provisions of this NPRM. Most of the 510 small railroads transport no
hazardous materials. PHMSA and FRA estimate there are about 100 small
railroads--or 20% of all small railroads--that could potentially be
affected by this NPRM. Cost impacts for small railroads will result
primarily from the costs for data collection and analysis. PHMSA
estimates the cost to each small railroad to be $2,776.70 per year over
20 years, discounted at 7%. Based on small railroads' annual operating
revenues, these costs are not significant. Small railroads' annual
operating revenues range from $3 million to $20 million. Thus, the
costs imposed by the provisions of this NPRM amount to between 0.01%
and 0.09% of a small railroad's annual operating revenue.
This NPRM will not have a noticeable impact on the competitive
position of the affected small railroads or on the small entity segment
of the railroad industry as a whole. The small entity segment of the
railroad industry faces little in the way of intramodal competition.
Small railroads generally serve as ``feeders'' to the larger railroads,
collecting carloads in smaller numbers and at lower densities than
would be economical for the larger railroads. They transport those cars
over relatively short distances and then turn them over to the larger
systems which transport them relatively long distances to their
ultimate destination, or for handoff back to a smaller railroad for
final delivery. Although there are situations in which their relative
interests may not always coincide, the relationship between the large
and small entity segments of the railroad industry is more supportive
and co-dependent than competitive.
It is also extremely rare for small railroads to compete with each
other. As mentioned above, small railroads generally serve smaller,
lower density markets and customers. They exist, and often thrive,
doing business in markets where there is not enough traffic to attract
the larger carriers which are designed to handle large volumes over
distance at a profit. As there is usually not enough traffic to attract
service by a large carrier, there is also not enough traffic to sustain
more than one smaller carrier. In combination with the huge barriers to
entry in the railroad industry (need to own right-of-way, build track,
purchase fleet, etc.), small railroads rarely find themselves in
competition with each other. Thus, even to the extent the rule may have
an economic impact, it should have no impact on the intramodal
competitive position of small railroads.
Based on the foregoing discussion and the more detailed analysis in
the regulatory evaluation for this NPRM, I certify that the provisions
of this NPRM, if adopted, will not have a significant impact on a
substantial number of small entities.
We encourage small entities potentially affected by this rulemaking
to participate in the public comment process by submitting comments on
this assessment or this rulemaking. Comments will be addressed in the
final document.
We developed this proposed rule in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act to ensure potential impacts of draft rules
on small entities are properly considered.
F. Paperwork Reduction Act
PHMSA currently has an approved information collection under OMB
Control No. 2137-0612, ``Hazardous Materials Security Plans'' expiring
April 30, 2006. We are currently in the process of developing a request
for renewal of this information collection approval for submission to
OMB. We estimate an additional increase in burden as a result of this
proposed rulemaking.
Section 1320.8(d), Title 5, Code of Federal Regulations requires
the PHMSA provide interested members of the public and affected
agencies an opportunity to comment on information collection and
recordkeeping requests. This notice identifies proposed new
requirements to the current information collection under OMB Control
No. 2137-0612. We estimate there will be a small increase in burden
resulting from the new proposed requirements regarding rail shipments
of hazardous materials in this rulemaking. PHMSA will submit this
revised information collection to OMB for approval based on the
requirements in this proposed rule. We estimate the additional information
collection burden as proposed under this rulemaking is as follows:
OMB No. 2137-0612, ``Hazardous Materials Security Plans''
First Year Annual Burden:
Total Annual Number of Respondents: 139.
Total Annual Responses: 139.
Total Annual Burden Hours: 51,469.
Total Annual Burden Cost: $3,130,859.27.
Subsequent Year Burden:
[[Page 76847]]
Total Annual Number of Respondents: 139.
Total Annual Responses: 139.
Total Annual Burden Hours: 13,677.
Total Annual Burden Cost: $831,971.91.
PHMSA specifically requests comments on the information collection
and recordkeeping burden associated with developing, implementing, and
maintaining these requirements for approval under this proposed rule.
Address written comments to the Dockets Unit as identified in the
ADDRESSES section of this rulemaking. We must receive your comments
prior to the close of the comment period identified in the DATES
section of this rulemaking. Under the Paperwork Reduction Act of 1995,
no person is required to respond to an information collection unless it
displays a valid OMB control number. If these proposed requirements are
adopted in a final rule with any revisions, PHMSA will resubmit any
revised information collection and recordkeeping requirements to the
OMB for re-approval.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
H. Unfunded Mandates Reform Act
This proposed rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$120.7 million or more to either state, local, or tribal governments,
in the aggregate, or to the private sector, and is the least burdensome
alternative to achieve the objective of the rule.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321-4347), requires Federal agencies to consider the
consequences of major Federal actions and prepare a detailed statement
on actions significantly affecting the quality of the human environment.
The hazardous materials regulatory system is a risk management
system that is prevention-oriented and focused on identifying a hazard
and reducing the probability and quantity of a hazardous materials
release. Hazardous materials are categorized by hazard analysis and
experience into hazard classes and packing groups. The regulations
require each shipper to class a material in accordance with these
hazard classes and packing groups; the process of classifying a
hazardous material is itself a form of hazard analysis. Further, the
regulations require the shipper to communicate the material's hazards
by identifying the hazard class, packing group, and proper shipping
name on shipping papers and with labels on packages and placards on
transport vehicles. Thus, the shipping paper, labels, and placards
communicate the most significant findings of the shipper's hazard
analysis. A hazardous material is assigned to one of three packing
groups based upon its degree of hazard, from a high hazard Packing
Group I material to a low hazard Packing Group III material. The
quality, damage resistance, and performance standards for the
packagings authorized for the hazardous materials in each packing group
are appropriate for the hazards of the material transported. The
current security plan requirements in Subpart I of Part 172 of the HMR
are also based on a prevention-oriented risk management approach
focused on identifying security risks and vulnerabilities and
implementing measures to mitigate the identified risks and vulnerabilities.
Hazardous materials are transported by aircraft, vessel, rail, and
highway. The potential for environmental damage or contamination exists
when packages of hazardous materials are involved in transportation
accidents. Railroads carry over 1.7 million shipments of hazardous
materials annually, including millions of tons of explosive, poisonous,
corrosive, flammable and radioactive materials. The need for hazardous
materials to support essential services means transportation of highly
hazardous materials is unavoidable. However, these shipments frequently
move through densely populated or environmentally sensitive areas where
the consequences of an incident could be loss of life, serious injury,
or significant environmental damage. The ecosystems that could be
affected by a hazardous materials release during transportation include
air, water, soil, and ecological resources (for example, wildlife
habitats). The adverse environmental impacts associated with releases
of most hazardous materials are short-term impacts that can be greatly
reduced or eliminated through prompt clean-up of the accident scene. To
address the safety and environmental risks associated with the
transportation of hazardous materials by rail, rail tank cars must
conform to rigorous design, manufacturing, and requalification
requirements. The result is that tank cars are robust packagings,
equipped with features such as shelf couplers, head shields, thermal
insulation, and bottom discontinuity protection that are designed to
ensure that a tank car involved in an accident will survive the
accident intact.
In this NPRM, we are proposing to adopt regulations to enhance the
safety and security of certain hazardous materials transported by rail.
Specifically, we are proposing to require rail carriers to make routing
decisions for specified shipments of hazardous materials based on an
analysis of both the safety and security risks of alternative routing
options. Requiring rail carriers to take safety and security issues
into account when making hazardous materials routing decisions will
reduce the possibility of an accidental or intentional release into the
environment and consequent environmental damage. If adopted, we expect
the requirements proposed in this NPRM to result in the selection by
rail carriers of safer, more secure routes, the use of which would
reduce the likelihood of a release of hazardous materials into the
environment. Therefore, we have preliminarily determined that there are
no significant environmental impacts associated with the proposals in
this NPRM and that to the extent there might be any environmental
impacts, they would be beneficial given the reduced likelihood of a
hazardous materials release.
We invite commenters to address the possible beneficial and/or
adverse environmental impacts of the proposals in this NPRM. We will
consider comments received in response to this NPRM in our assessment
of the environmental impacts of a final rule on this issue.
J. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or you
may visit http://dms.dot.gov.
[[Page 76848]]
List of Subjects
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labeling,
Packaging and containers, Reporting and recordkeeping requirements.
49 CFR Part 174
Hazardous materials transportation, Rail carriers, Reporting and
recordkeeping requirements.
In consideration of the foregoing, we propose to amend title 49
Chapter I, Subchapter C, as follows:
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
1. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.
Subpart I--Safety and Security Plans
2. Revise the title of subpart I of part 172 to read as set forth above.
3. Add new Sec. 172.820, to read as follows:
Sec. 172.820 Additional planning requirements for transportation by rail.
(a) General. Each rail carrier transporting in commerce one or more
of the following materials must develop and implement the additional
safety and security planning requirements of this section:
(1) More than 2,268 kg (5,000 lbs) in a single carload of a
Division 1.1, 1.2 or 1.3 explosive;
(2) A bulk quantity of a material poisonous by inhalation, as
defined in Sec. 171.8 of this subchapter; or
(3) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined in Sec. 173.403 of this subchapter.
(b) Commodity data. No later than 90 days after the end of each
calendar year, a rail carrier must compile commodity data, as follows:
(1) Commodity data must be collected by route, a line segment or
series of line segments as aggregated by the rail carrier. Within the
rail carrier selected route, the commodity data must identify the
geographic location of the route and the total number of shipments by
UN identification number for the materials specified in paragraph (a)
of this section.
(2) A carrier may compile commodity data, by UN number, for all
Class 7 and Division 6.1 materials transported instead of only the
highway route controlled quantity or poison inhalation hazard materials.
(c) Rail transportation route analysis. For each calendar year, a
rail carrier must analyze the safety and security risks for the
transportation route(s), identified in the commodity data collected as
required by paragraph (b) of this section. The route analysis must be
in writing and include the factors contained in Appendix D to this
part, as applicable. The safety and security risks present must be
analyzed for the route and railroad facilities along the route.
(d) Alternative route analysis. For each calendar year, a rail
carrier must identify the next most commercially practicable route over
which it has authority to operate, if an alternative exists, as an
alternative route for each of the transportation routes analyzed in
accordance with paragraph (c) of this section. The carrier must perform
a safety and security risk assessment of the alternative route for
comparison to the route analysis prescribed in paragraph (c) of this
section. The alternative route analysis must be in writing and include
the criteria in Appendix D of this part. The written alternative route
analysis must also consider:
(1) Safety and security risks presented by use of the alternative
route;
(2) Comparison of the safety and security risks of the alternative
to the primary rail transportation route;
(3) Any remediation or mitigation measures implemented on the
primary or alternative route; and
(4) Potential economic effects of using the alternative route.
(e) Route Selection. A carrier must use the analysis performed as
required by paragraphs (c) and (d) of this section to select the route
to be used in moving the materials covered by paragraph (a) of this
section. The carrier must consider any remediation measures implemented
on a route. Using this process, the carrier must at least annually
review and select the practicable route posing the least overall safety
and security risk. The rail carrier must retain in writing all route
review and selection decision documentation and restrict the
distribution, disclosure, and availability of information contained in
the route analysis to persons with a need-to-know, as described in
parts 15 and 1520 of this title. This documentation should include, but
is not limited to, comparative analyses, charts, graphics or rail
system maps.
(f) Completion of route analyses. (1) The rail transportation route
analysis, alternative route analysis, and route selection process
required under paragraphs (c), (d), and (e) of this section must be
completed no later than the end of the calendar year following the year
to which the analyses apply (e.g., the analyses required for calendar
year 2008 must be completed by the end of 2009).
(2) At least once every five years, the analyses and route
selection determinations required under paragraphs (c), (d), and (e) of
this section must include a comprehensive, system-wide review of all
operational changes, infrastructure modifications, traffic adjustments,
or other changes affecting the safety or security of the movements of
the materials specified in paragraph (a) of this section that were
implemented during the five-year period.
(3) A rail carrier need not perform a rail transportation route
analysis, alternative route analysis, or route selection process for
any hazardous material other than the materials specified in paragraph
(a) of this section.
(g) Limitations on actions by States, local governments, and Indian
tribes. Unless PHMSA grants a waiver of preemption under 49 U.S.C.
5125(e), a State, political subdivision of a State, or Indian tribe may
not designate, limit, or prohibit the use of any rail line (other than
a rail line owned by the State, political subdivision, or Indian tribe)
for the transportation of hazardous material, including but not limited
to the materials specified in paragraph (a) of this section.
(h) Storage, delays in transit, and notification. For the materials
specified in paragraph (a) of this section, each rail carrier must
ensure the safety and security plan it develops and implements in
accordance with this subpart includes all of the following:
(1) A procedure for consulting with offerors and consignees to
minimize to the extent practicable the period of time during which the
material is stored incidental to movement (see Sec. 171.8 of this
subchapter).
(2) A procedure for informing the operator of the facility at which
the material will be stored incidental to movement that the rail car
containing the material has been delivered to the facility. Such
notification should occur as soon as practicable, but in no case later
than 6 hours after delivery.
(3) Measures to limit unauthorized access to the materials during
storage or delays in transit.
(4) Measures to mitigate risk to population centers associated with
in-transit storage.
[[Page 76849]]
(5) Measures to be taken in the event of an escalating threat level
for materials stored in transit.
(6) Procedures for notifying the consignee in the event of a
significant delay during transportation; such notification must be
completed within 48 hours after the carrier has identified the delay
and must include a revised delivery schedule. Notification should be
made by a method acceptable to both carrier and consignee. A
significant delay is one that compromises the safety or security of the
hazardous material or delays the shipment beyond its normal expected or
planned shipping time.
(7) A procedure to inform the consignee that the material has been
delivered to its facility. Such notification should occur as soon as
practicable, but in no case later than 6 hours after delivery.
(i) Recordkeeping. (1) Each rail carrier must maintain a copy of
the information specified in paragraphs (b), (c), (d), (e), and (f) of
this section or an electronic image of it, that is accessible at or
through its principal place of business and must make the record
available, upon request, to an authorized official of the Department of
Transportation at reasonable times and locations. Records must be
retained for a minimum of two years.
(2) Each rail carrier must restrict the distribution, disclosure,
and availability of information collected or developed in accordance
with paragraphs (b), (c), (d), (e), and (f) of this section to persons
with a need-to-know, as described in parts 15 and 1520 of this title.
(j) Compliance and enforcement. If the carrier's route selection
documentation and underlying analyses is found to be deficient, the
carrier may be required to revise the analyses or make changes in route
selection. If a chosen route is found not to be the safest and most
secure commercially practicable route available, the FRA Associate
Administrator for Safety, in consultation with TSA, may require the use
of an alternative route.
3. Add new Appendix D to part 172, to read as follows:
Appendix D to Part 172--RAIL RISK ANALYSIS FACTORS
This appendix sets forth the minimum criteria that must be
considered by rail carriers when performing the safety and security
risk analyses required by Sec. 172.820. The risk analysis to be
performed may be quantitative, qualitative, or a combination of
both. In addition to clearly identifying the hazardous material(s)
and route(s) being analyzed, the analysis must provide a thorough
description of the threats, identified vulnerabilities, and
mitigation measures implemented to address identified vulnerabilities.
In evaluating the safety and security of hazardous materials
transport, selection of the route for transportation is critical.
For the purpose of rail transportation route analysis, as specified
in Sec. 172.820(c) and (d), a route may include the point where the
carrier takes possession of the material and all track and railroad
facilities up to the point where the material is relinquished to
another entity. Railroad facilities include, but are not limited to,
classification and switching yards, and sidings or other locations
where storage in-transit occurs. Each rail carrier will act in good
faith to communicate with its shippers, consignees, and interlining
partners to ensure the safety and security of shipments during all
stages of transportation.
Because of the varying operating environments and interconnected
nature of the rail system, each carrier must select and document the
analysis method/model used and identify the routes to be analyzed.
Factors to be considered in the performance of this safety and
security risk analysis include:
1. Volume of hazardous material transported;
2. Rail traffic density;
3. Trip length for route;
4. Presence and characteristics of railroad facilities;
5. Track type, class, and maintenance schedule;
6. Track grade and curvature;
7. Presence or absence of signals and train control systems
along the route (``dark'' versus signaled territory);
8. Presence or absence of wayside hazard detectors;
9. Number and types of grade crossings;
10. Single versus double track territory;
11. Frequency and location of track turnouts;
12. Proximity to iconic targets;
13. Environmentally sensitive or significant areas;
14. Population density along the route;
15. Venues along the route (stations, events, places of congregation);
16. Emergency response capability along the route;
17. Areas of high consequence along the route;
18. Presence of passenger traffic along route (shared track);
19. Speed of train operations;
20. Proximity to en-route storage or repair facilities;
21. Known threats (the Transportation Security Administration
and Federal Railroad Administration will provide non-public threat
scenarios for carrier use in the development of the route assessment);
22. Measures in place to address apparent safety and security risks;
23. Availability of alternative routes;
24. Past incidents;
25. Overall times in transit;
26. Training and skill level of crews; and
27. Impact on rail network traffic and congestion.
PART 174--CARRIAGE BY RAIL
4. The authority citation for part 174 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.
5. Revise Sec. 174.9 to read as follows:
Sec. 174.9 Safety and security inspection and acceptance.
(a) At each location where a hazardous material is accepted for
transportation or placed in a train, the carrier must inspect each rail
car containing the hazardous material, at ground level, for required
markings, labels, placards, securement of closures, and leakage. These
inspections may be performed in conjunction with inspections required
under parts 215 and 232 of this title.
(b) For each rail car containing an amount of hazardous material
requiring placarding in accordance with Sec. 172.504 of this
subchapter, the carrier must visually inspect the rail car at ground
level for signs of tampering, including closures and seals, for
suspicious items or items that do not belong, and for other signs that
the security of the car may have been compromised, including the
presence of an improvised explosive device. As used in this section, an
improvised explosive device is a device fabricated in an improvised
manner incorporating explosives or destructive, lethal, noxious,
pyrotechnic, or incendiary chemicals in its design, and generally
includes a power supply, a switch or timer, and a detonator or
initiator. The carrier should be particularly attentive to signs that
security of rail cars transporting materials covered by Sec. 172.820
of this subchapter, rail carload quantities of ammonium nitrate or
ammonium nitrate mixtures in solid form, or hazardous materials of
interest based on current threat information may have been compromised.
(c) If a carrier determines that a rail car does not conform to the
safety requirements of this subchapter, the carrier may not forward or
transport the rail car until the deficiencies are rectified or the car
is approved for movement in accordance with Sec. 174.50.
(d) Where an indication of tampering or suspicious item is found, a
carrier must take appropriate actions to ensure the security of the
rail car and its contents has not been compromised before accepting the
rail car for further movement. If the carrier determines the security
of the rail car has been compromised, the carrier must take action, in
conformance with its existing security plan (see subpart I of part 172
of this subchapter) to address the
[[Page 76850]]
security issues before forwarding the rail car for further movement.
Issued in Washington, DC on December 12, 2006, under the
authority delegated in 49 CFR Part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E6-21518 Filed 12-20-06; 8:45 am]
BILLING CODE 4910-60-P