Proposed Rule: Hazardous Materials Transportation: Rail Transportation Safety and Security Enhancement

Thursday,
December 21, 2006
Part IV
Department of
Transportation
Pipeline and Hazardous Materials Safety
Administration
49 CFR Parts 172 and 174

Hazardous Materials: Enhancing Rail
Transportation Safety and Security for
Hazardous Materials Shipments; Proposed
Rule
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76834 Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / Proposed Rules
DEPARTMENT OF TRANSPORTATION • Mail: Docket Management System; 15.9, Restrictions on the disclosure of
U.S. Department of Transportation, 400 sensitive security information. For
Pipeline and Hazardous Materials Seventh Street, SW., Nassif Building, example, these sections restrict the
Safety Administration Room PL–401, Washington, DC 20590– sharing of SSI to those with a need to
0001. If sent by mail, comments are to know, set out the requirement to mark
49 CFR Parts 172 and 174 be submitted in two copies. Persons the information as SSI, and address how
wishing to receive confirmation of the information should be disposed.
[Docket No. RSPA–04–18730 (HM–232E)] receipt of their comments should Note also when mailing in or using a
include a self-addressed stamped special delivery service to send
RIN 2137–AE02
postcard. comments containing SSI, comments
Hazardous Materials: Enhancing Rail • Hand Delivery: Docket Management should be wrapped in a manner to
System; Room PL–401 on the plaza level prevent the information from being
Transportation Safety and Security for
of the Nassif Building, 400 Seventh read. PHMSA and TSA may perform
Hazardous Materials Shipments
Street, SW., Washington, DC, between 9 concurrent reviews on requests for
AGENCY: Pipeline and Hazardous a.m. and 5 p.m., Monday through designations as SSI.
Materials Safety Administration Friday, except Federal holidays. After reviewing your request for
(PHMSA), Department of Transportation Instructions: You must include the confidentiality and the information
(DOT). agency name and docket number RSPA– provided, PHMSA will analyze
ACTION: Notice of proposed rulemaking
04–18730 for this notice at the applicable laws and regulations to
(NPRM). beginning of your comment. Internet decide whether to treat the information
users may access comments received by as confidential. PHMSA will notify you
SUMMARY: The Pipeline and Hazardous DOT at http://dms.dot.gov. Note that of the decision to grant or deny
Materials Safety Administration comments received may be posted confidentiality. If PHMSA denies
(PHMSA), in consultation with the without change to http://dms.dot.gov confidentiality, you will be provided an
Federal Railroad Administration (FRA) including any personal information opportunity to respond to the denial
and the Transportation Security provided. Please see the Privacy Act before the information is publicly
Administration (TSA), is proposing to section of this document. disclosed. PHMSA will reconsider its
revise the current requirements in the While all comments should be sent to decision to deny confidentiality based
Hazardous Materials Regulations DOT’s Docket Management System on your response.
applicable to the safe and secure (DMS), comments or those portions of Regarding comments not marked as
transportation of hazardous materials comments PHMSA determines to confidential, prior to posting comments
transported in commerce by rail. include trade secrets, confidential received in response to this notice in the
Specifically, we are proposing to require commercial information, or sensitive public docket, PHMSA will review all
rail carriers to compile annual data on security information (SSI) will not be comments, whether or not they are
specified shipments of hazardous placed in the public docket and will be identified as confidential, to determine
materials, use the data to analyze safety handled separately. If you believe your if the submission or portions of the
and security risks along rail comments contain trade secrets, submission contain information that
transportation routes where those confidential commercial information, or
should not be made available to the
materials are transported, assess SSI, those comments or the relevant
general public. PHMSA will notify you
alternative routing options, and make portions of those comments should be
if the agencies make such a
routing decisions based on those appropriately marked so that DOT may
determination relative to your comment.
assessments. We are also proposing make a determination. PHMSA
If, prior to submitting your comment,
clarifications of the current security procedures in 49 CFR part 105 establish
you have any questions concerning the
plan requirements to address en route a mechanism by which commenters
procedures for determining
storage, delays in transit, delivery may request confidentiality.
In accordance with 49 CFR 105.30, confidentiality or security sensitivity,
notification, and additional security you may call one of the individuals
you may ask PHMSA to keep
inspection requirements for hazardous listed below under FOR FURTHER
information confidential using the
materials shipments. In today’s edition INFORMATION CONTACT for more
following procedures: (1) Mark
of the Federal Register, TSA is information.
‘‘confidential’’ on each page of the
publishing an NPRM proposing FOR FURTHER INFORMATION CONTACT:
original document you would like to
additional security requirements for rail William Schoonover, (202) 493–6229,
keep confidential; (2) send DMS both
transportation. Office of Safety Assurance and
the original document and a second
DATES: Submit comments by February copy of the original document with the Compliance, Federal Railroad
20, 2007. To the extent possible, we will confidential information deleted; and Administration; or Susan Gorsky, (202)
consider late-filed comments as we (3) explain why the information is 366–8553, Office of Hazardous Materials
develop a final rule. confidential (such as a trade secret, Standards, Pipeline and Hazardous
ADDRESSES: You may submit comments confidential commercial information, or Materials Safety Administration.
identified by the docket number RSPA– SSI). In your explanation, you should SUPPLEMENTARY INFORMATION:
04–18730 by any of the following provide enough information to enable
methods: PHMSA to determine whether the I. Background
• Federal eRulemaking Portal: http://
information provided is protected by The Federal hazardous materials

www.regulations.gov. Follow the law and must be handled separately. transportation law (Federal hazmat law,
instructions for submitting comments. In addition, for comments or portions 49 U.S.C. 5101 et seq., as amended by
• Web site: http://dms.dot.gov. of comments that you believe contain § 1711 of the Homeland Security Act of
Follow the instructions for submitting SSI as defined in 49 CFR 15.7, you 2002, P.L. 107–296 and Title VII of the
comments on the DOT electronic docket should comply with Federal regulations 2005 Safe, Accountable, Flexible and
site. governing restrictions on the disclosure Efficient Transportation Equity Act—A
• Fax: 1–202–493–2251. of SSI. See 49 CFR 1520.9 and 49 CFR Legacy for Users (SAFETEA–LU))
Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / Proposed Rules 76835
authorizes the Secretary of the immediate action to protect against purpose of the annex is to delineate
Department of Transportation to threats to transportation security. clear lines of authority and
‘‘prescribe regulations for the safe TSA’s authority over the security of responsibility and promote
transportation, including security, of transportation stems from several communications, efficiency, and non-
hazardous material in intrastate, provisions of 49 U.S.C. 114. In duplication of effort through
interstate, and foreign commerce.’’ The executing its responsibilities and duties, cooperation and collaboration in the
Secretary has delegated this authority to TSA is specifically empowered to area of hazardous materials
PHMSA (formerly the Research and develop policies, strategies and plans transportation security based on existing
Special Programs Administration). for dealing with threats to legal authorities and core competencies.
The Hazardous Materials Regulations transportation.2 As part of its security Similarly, on September 28, 2006, FRA
(HMR: 49 CFR parts 171–180) mission, TSA is responsible for and TSA signed an annex to address
promulgated by PHMSA under the assessing intelligence and other each agency’s roles and responsibilities
mandate in section 5103(b) govern information in order to identify for rail transportation security. The
safety aspects, including security, of the individuals who pose a threat to FRA–TSA annex recognizes that FRA
transportation of hazardous material the transportation security and to has authority over every area of railroad
Secretary considers appropriate. coordinate countermeasures with other safety (including security) and that FRA
Consistent with this security authority, Federal agencies to address such enforces PHMSA’s hazardous materials
in March 2003, PHMSA adopted new threats.3 TSA also is to enforce security- regulations. The FRA–TSA annex
transportation security requirements for related regulations and requirements,4 includes procedures for coordinating (1)
offerors and transporters of certain ensure the adequacy of security planning, inspection, training, and
classes and quantities of hazardous measures for the transportation of enforcement activities; (2) criticality and
materials and new security training cargo,5 oversee the implementation and vulnerability assessments and security
requirements for hazardous materials ensure the adequacy of security reviews; (3) communicating with
employees. The security regulations, measures at transportation facilities,6 affected stakeholders; and (4) use of
which are explained in more detail and carry out other appropriate duties personnel and resources. Copies of the
below, require offerors and carriers to relating to transportation security.7 TSA two annexes are available for review in
develop and implement security plans is charged with serving as the primary the public docket for this rulemaking.
and to train their employees to liaison for transportation security to the Consistent with the principles
recognize and respond to possible intelligence and law enforcement outlined in the PHMSA–TSA annex,
security threats. communities.8 PHMSA and FRA collaborated with
When PHMSA adopted its security In sum, TSA’s authority with respect TSA to develop this NPRM. In today’s
regulations, shippers and rail carriers to transportation security is edition of the Federal Register, TSA is
were informed these regulations were comprehensive and supported with publishing an NPRM proposing
‘‘the first step in what may be a series specific powers related to the additional security requirements for rail
of rulemakings to address the security of development and enforcement of
hazardous materials shipments.’’ 68 FR transportation. The TSA rulemaking
regulations, security directives, security would enhance security in the rail
14509, 14511 (March 25, 2003). PHMSA plans, and other requirements.
also noted ‘‘TSA is developing transportation mode by proposing
Accordingly, under this authority, TSA requirements on freight and passenger
regulations that are likely to impose may identify a security threat to any
additional requirements beyond those railroads, rail transit systems, and on
mode of transportation, develop a facilities with rail connections that ship,
established in this final rule,’’ and measure for dealing with that threat,
stated it would ‘‘consult and coordinate receive, or unload certain hazardous
and enforce compliance with that materials. The TSA rulemaking is
with TSA concerning security-related
measure. intended to augment the proposals in
hazardous materials transportation As is evident from the above
regulations * * *’’ 68 FR 14511. this NPRM.
discussion, DHS and DOT share Hazardous materials are essential to
Under the Aviation and
responsibility for hazardous materials the economy of the United States and
Transportation Security Act (ATSA),
transportation security. The two the well being of its people. Hazardous
Public Law 107–71, 115 Stat. 597
departments consult and coordinate on materials fuel motor vehicles, purify
(November 19, 2001), and delegated
security-related hazardous materials drinking water, and heat and cool
authority from the Secretary of
Homeland Security (DHS), the Assistant transportation requirements to ensure homes and offices. Hazardous materials
Secretary of DHS for TSA has broad they are consistent with the overall are used for farming and medical
responsibility and authority for security policy goals and objectives applications, and in manufacturing,
‘‘security in all modes of transportation established by DHS and the regulated mining, and other industrial processes.
* * *’’1 ATSA authorizes TSA to take industry is not confronted with Railroads carry over 1.7 million
inconsistent security guidance or shipments of hazardous materials
1 See 49 U.S.C. 114(d). The TSA Assistant requirements promulgated by multiple annually, including millions of tons of
Secretary’s current authorities under ATSA have agencies. To that end, on August 7, explosive, poisonous, corrosive,
been delegated to him by the Secretary of Homeland 2006, PHMSA and TSA signed an annex flammable and radioactive materials.
Security. Under Section 403(2) of the Homeland to the September 28, 2004 DOT–DHS
Security Act of 2002, Public Law 107–296, 116 Stat. The need for hazardous materials to
2315 (2002) (HSA), all functions of TSA, including Memorandum of Understanding (MOU) support essential services means
those of the Secretary of Transporation and the on Roles and Responsibilities. The
transportation of highly hazardous

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

The hazardous materials regulatory releases of most hazardous materials are business, labor union, etc.). You may
system is a risk management system that short-term impacts that can be greatly review DOT’s complete Privacy Act
is prevention-oriented and focused on reduced or eliminated through prompt Statement in the Federal Register
identifying a hazard and reducing the clean-up of the accident scene. To published on April 11, 2000 (65 FR
probability and quantity of a hazardous address the safety and environmental 19477) or you may visit http://
materials release. Hazardous materials risks associated with the transportation dms.dot.gov.
are categorized by hazard analysis and of hazardous materials by rail, rail tank
List of Subjects instead of only the highway route paragraphs (c), (d), and (e) of this
controlled quantity or poison inhalation section must be completed no later than
49 CFR Part 172
hazard materials. the end of the calendar year following
Hazardous materials transportation, (c) Rail transportation route analysis. the year to which the analyses apply
Hazardous waste, Labeling, Packaging For each calendar year, a rail carrier (e.g., the analyses required for calendar
and containers, Reporting and must analyze the safety and security year 2008 must be completed by the end
recordkeeping requirements. risks for the transportation route(s), of 2009).
identified in the commodity data (2) At least once every five years, the
49 CFR Part 174
collected as required by paragraph (b) of analyses and route selection
Hazardous materials transportation, this section. The route analysis must be determinations required under
Rail carriers, Reporting and in writing and include the factors paragraphs (c), (d), and (e) of this
recordkeeping requirements. contained in Appendix D to this part, as section must include a comprehensive,
In consideration of the foregoing, we applicable. The safety and security risks system-wide review of all operational
propose to amend title 49 Chapter I, present must be analyzed for the route changes, infrastructure modifications,
Subchapter C, as follows: and railroad facilities along the route. traffic adjustments, or other changes
(d) Alternative route analysis. For affecting the safety or security of the
PART 172—HAZARDOUS MATERIALS each calendar year, a rail carrier must movements of the materials specified in
TABLE, SPECIAL PROVISIONS, identify the next most commercially
paragraph (a) of this section that were
HAZARDOUS MATERIALS practicable route over which it has
implemented during the five-year
COMMUNICATIONS, EMERGENCY authority to operate, if an alternative
period.
RESPONSE INFORMATION, AND exists, as an alternative route for each of
TRAINING REQUIREMENTS the transportation routes analyzed in (3) A rail carrier need not perform a
accordance with paragraph (c) of this rail transportation route analysis,
1. The authority citation for part 172 section. The carrier must perform a alternative route analysis, or route
continues to read as follows: safety and security risk assessment of selection process for any hazardous
Authority: 49 U.S.C. 5101–5128, 44701; 49 the alternative route for comparison to material other than the materials
CFR 1.53. the route analysis prescribed in specified in paragraph (a) of this
paragraph (c) of this section. The section.
Subpart I—Safety and Security Plans alternative route analysis must be in (g) Limitations on actions by States,
2. Revise the title of subpart I of part writing and include the criteria in local governments, and Indian tribes.
172 to read as set forth above. Appendix D of this part. The written Unless PHMSA grants a waiver of
3. Add new § 172.820, to read as alternative route analysis must also preemption under 49 U.S.C. 5125(e), a
follows: consider: State, political subdivision of a State, or
(1) Safety and security risks presented Indian tribe may not designate, limit, or
§ 172.820 Additional planning by use of the alternative route; prohibit the use of any rail line (other
requirements for transportation by rail. (2) Comparison of the safety and than a rail line owned by the State,
(a) General. Each rail carrier security risks of the alternative to the political subdivision, or Indian tribe) for
transporting in commerce one or more primary rail transportation route; the transportation of hazardous
of the following materials must develop (3) Any remediation or mitigation material, including but not limited to
and implement the additional safety and measures implemented on the primary the materials specified in paragraph (a)
security planning requirements of this or alternative route; and of this section.
section: (4) Potential economic effects of using (h) Storage, delays in transit, and
(1) More than 2,268 kg (5,000 lbs) in the alternative route. notification. For the materials specified
a single carload of a Division 1.1, 1.2 or (e) Route Selection. A carrier must use in paragraph (a) of this section, each rail
1.3 explosive; the analysis performed as required by carrier must ensure the safety and
(2) A bulk quantity of a material paragraphs (c) and (d) of this section to security plan it develops and
poisonous by inhalation, as defined in select the route to be used in moving the implements in accordance with this
§ 171.8 of this subchapter; or materials covered by paragraph (a) of subpart includes all of the following:
(3) A highway route-controlled this section. The carrier must consider
(1) A procedure for consulting with
quantity of a Class 7 (radioactive) any remediation measures implemented
offerors and consignees to minimize to
material, as defined in § 173.403 of this on a route. Using this process, the
the extent practicable the period of time
subchapter. carrier must at least annually review
during which the material is stored
(b) Commodity data. No later than 90 and select the practicable route posing
incidental to movement (see § 171.8 of
days after the end of each calendar year, the least overall safety and security risk.
this subchapter).
a rail carrier must compile commodity The rail carrier must retain in writing all
data, as follows: route review and selection decision (2) A procedure for informing the
(1) Commodity data must be collected documentation and restrict the operator of the facility at which the
by route, a line segment or series of line distribution, disclosure, and availability material will be stored incidental to
segments as aggregated by the rail of information contained in the route movement that the rail car containing
carrier. Within the rail carrier selected analysis to persons with a need-to- the material has been delivered to the
route, the commodity data must identify know, as described in parts 15 and 1520 facility. Such notification should occur
as soon as practicable, but in no case
the geographic location of the route and of this title. This documentation should
the total number of shipments by UN include, but is not limited to, later than 6 hours after delivery.
identification number for the materials comparative analyses, charts, graphics (3) Measures to limit unauthorized
specified in paragraph (a) of this or rail system maps. access to the materials during storage or
section. (f) Completion of route analyses. (1) delays in transit.
(2) A carrier may compile commodity The rail transportation route analysis, (4) Measures to mitigate risk to
data, by UN number, for all Class 7 and alternative route analysis, and route population centers associated with in-
Division 6.1 materials transported selection process required under transit storage.
(5) Measures to be taken in the event implemented to address identified PART 174—CARRIAGE BY RAIL
of an escalating threat level for materials vulnerabilities.
stored in transit. In evaluating the safety and security of 4. The authority citation for part 174
(6) Procedures for notifying the hazardous materials transport, selection of continues to read as follows:
consignee in the event of a significant the route for transportation is critical. For the Authority: 49 U.S.C. 5101–5128; 49 CFR
purpose of rail transportation route analysis, 1.53.
delay during transportation; such
as specified in § 172.820(c) and (d), a route
notification must be completed within may include the point where the carrier takes 5. Revise § 174.9 to read as follows:
48 hours after the carrier has identified possession of the material and all track and
the delay and must include a revised § 174.9 Safety and security inspection and
railroad facilities up to the point where the acceptance.
delivery schedule. Notification should material is relinquished to another entity.
be made by a method acceptable to both (a) At each location where a
Railroad facilities include, but are not limited
carrier and consignee. A significant hazardous material is accepted for
to, classification and switching yards, and
delay is one that compromises the safety transportation or placed in a train, the
sidings or other locations where storage in-
or security of the hazardous material or transit occurs. Each rail carrier will act in
carrier must inspect each rail car
delays the shipment beyond its normal good faith to communicate with its shippers, containing the hazardous material, at
expected or planned shipping time. consignees, and interlining partners to ensure ground level, for required markings,
the safety and security of shipments during labels, placards, securement of closures,
(7) A procedure to inform the
all stages of transportation. and leakage. These inspections may be
consignee that the material has been
Because of the varying operating performed in conjunction with
delivered to its facility. Such
environments and interconnected nature of inspections required under parts 215
notification should occur as soon as
the rail system, each carrier must select and and 232 of this title.
practicable, but in no case later than 6 (b) For each rail car containing an
document the analysis method/model used
hours after delivery. and identify the routes to be analyzed. amount of hazardous material requiring
(i) Recordkeeping. (1) Each rail carrier Factors to be considered in the placarding in accordance with § 172.504
must maintain a copy of the information performance of this safety and security risk of this subchapter, the carrier must
specified in paragraphs (b), (c), (d), (e), analysis include: visually inspect the rail car at ground
and (f) of this section or an electronic 1. Volume of hazardous material level for signs of tampering, including
image of it, that is accessible at or transported; closures and seals, for suspicious items
through its principal place of business 2. Rail traffic density; or items that do not belong, and for
and must make the record available, 3. Trip length for route; other signs that the security of the car
upon request, to an authorized official 4. Presence and characteristics of railroad may have been compromised, including
of the Department of Transportation at facilities;
the presence of an improvised explosive
reasonable times and locations. Records 5. Track type, class, and maintenance
device. As used in this section, an
must be retained for a minimum of two schedule;
6. Track grade and curvature;
improvised explosive device is a device
years. fabricated in an improvised manner
7. Presence or absence of signals and train
(2) Each rail carrier must restrict the incorporating explosives or destructive,
control systems along the route (‘‘dark’’
distribution, disclosure, and availability versus signaled territory); lethal, noxious, pyrotechnic, or
of information collected or developed in 8. Presence or absence of wayside hazard incendiary chemicals in its design, and
accordance with paragraphs (b), (c), (d), detectors; generally includes a power supply, a
(e), and (f) of this section to persons 9. Number and types of grade crossings; switch or timer, and a detonator or
with a need-to-know, as described in 10. Single versus double track territory; initiator. The carrier should be
parts 15 and 1520 of this title. 11. Frequency and location of track particularly attentive to signs that
(j) Compliance and enforcement. If turnouts; security of rail cars transporting
the carrier’s route selection 12. Proximity to iconic targets; materials covered by § 172.820 of this
documentation and underlying analyses 13. Environmentally sensitive or subchapter, rail carload quantities of
is found to be deficient, the carrier may significant areas;
ammonium nitrate or ammonium nitrate
be required to revise the analyses or 14. Population density along the route;
mixtures in solid form, or hazardous
15. Venues along the route (stations,
make changes in route selection. If a materials of interest based on current
events, places of congregation);
chosen route is found not to be the 16. Emergency response capability along threat information may have been
safest and most secure commercially the route; compromised.
practicable route available, the FRA 17. Areas of high consequence along the (c) If a carrier determines that a rail
Associate Administrator for Safety, in route; car does not conform to the safety
consultation with TSA, may require the 18. Presence of passenger traffic along requirements of this subchapter, the
use of an alternative route. route (shared track); carrier may not forward or transport the
3. Add new Appendix D to part 172, 19. Speed of train operations; rail car until the deficiencies are
to read as follows: 20. Proximity to en-route storage or repair rectified or the car is approved for
facilities; movement in accordance with § 174.50.
Appendix D to Part 172—RAIL RISK 21. Known threats (the Transportation (d) Where an indication of tampering
ANALYSIS FACTORS Security Administration and Federal or suspicious item is found, a carrier
This appendix sets forth the minimum Railroad Administration will provide non- must take appropriate actions to ensure
criteria that must be considered by rail public threat scenarios for carrier use in the the security of the rail car and its
carriers when performing the safety and development of the route assessment);
contents has not been compromised

security risk analyses required by § 172.820. 22. Measures in place to address apparent
safety and security risks;
before accepting the rail car for further
The risk analysis to be performed may be movement. If the carrier determines the
quantitative, qualitative, or a combination of 23. Availability of alternative routes;
both. In addition to clearly identifying the 24. Past incidents; security of the rail car has been
hazardous material(s) and route(s) being 25. Overall times in transit; compromised, the carrier must take
analyzed, the analysis must provide a 26. Training and skill level of crews; and action, in conformance with its existing
thorough description of the threats, identified 27. Impact on rail network traffic and security plan (see subpart I of part 172
vulnerabilities, and mitigation measures congestion. of this subchapter) to address the
security issues before forwarding the Issued in Washington, DC on December 12,

rail car for further movement. 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

Proposed Rule: Hazardous Materials Transportation: Rail Transportation Safety and Security Enhancement

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Proposed Rule: Hazardous Materials Transportation: Rail Transportation Safety and Security Enhancement

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Thursday,

December 21, 2006

49 CFR Parts 172 and 174

information provided is protected by The Federal hazardous materials

transportation of highly hazardous

human environment. environmental impacts associated with

contents has not been compromised

security issues before forwarding the Issued in Washington, DC on December 12,

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