[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Proposed Rules]
[Pages 76834-76850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21518]



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Part IV





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Parts 172 and 174



Hazardous Materials: Enhancing Rail Transportation Safety and Security 
for Hazardous Materials Shipments; Proposed Rule

  Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / 
Proposed Rules  

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 174

[Docket No. RSPA-04-18730 (HM-232E)]
RIN 2137-AE02


Hazardous Materials: Enhancing Rail Transportation Safety and 
Security for Hazardous Materials Shipments

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA), in consultation with the Federal Railroad Administration (FRA) 
and the Transportation Security Administration (TSA), is proposing to 
revise the current requirements in the Hazardous Materials Regulations 
applicable to the safe and secure transportation of hazardous materials 
transported in commerce by rail. Specifically, we are proposing to 
require rail carriers to compile annual data on specified shipments of 
hazardous materials, use the data to analyze safety and security risks 
along rail transportation routes where those materials are transported, 
assess alternative routing options, and make routing decisions based on 
those assessments. We are also proposing clarifications of the current 
security plan requirements to address en route storage, delays in 
transit, delivery notification, and additional security inspection 
requirements for hazardous materials shipments. In today's edition of 
the Federal Register, TSA is publishing an NPRM proposing additional 
security requirements for rail transportation.

DATES: Submit comments by February 20, 2007. To the extent possible, we 
will consider late-filed comments as we develop a final rule.

ADDRESSES: You may submit comments identified by the docket number 
RSPA-04-18730 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001. If sent by mail, comments are to be 
submitted in two copies. Persons wishing to receive confirmation of 
receipt of their comments should include a self-addressed stamped 
postcard.
     Hand Delivery: Docket Management System; Room PL-401 on 
the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: You must include the agency name and docket number 
RSPA-04-18730 for this notice at the beginning of your comment. 
Internet users may access comments received by DOT at http://dms.dot.gov. Note that comments received may be posted without change 
to http://dms.dot.gov including any personal information provided. 
Please see the Privacy Act section of this document.
    While all comments should be sent to DOT's Docket Management System 
(DMS), comments or those portions of comments PHMSA determines to 
include trade secrets, confidential commercial information, or 
sensitive security information (SSI) will not be placed in the public 
docket and will be handled separately. If you believe your comments 
contain trade secrets, confidential commercial information, or SSI, 
those comments or the relevant portions of those comments should be 
appropriately marked so that DOT may make a determination. PHMSA 
procedures in 49 CFR part 105 establish a mechanism by which commenters 
may request confidentiality.
    In accordance with 49 CFR 105.30, you may ask PHMSA to keep 
information confidential using the following procedures: (1) Mark 
``confidential'' on each page of the original document you would like 
to keep confidential; (2) send DMS both the original document and a 
second copy of the original document with the confidential information 
deleted; and (3) explain why the information is confidential (such as a 
trade secret, confidential commercial information, or SSI). In your 
explanation, you should provide enough information to enable PHMSA to 
determine whether the information provided is protected by law and must 
be handled separately.
    In addition, for comments or portions of comments that you believe 
contain SSI as defined in 49 CFR 15.7, you should comply with Federal 
regulations governing restrictions on the disclosure of SSI. See 49 CFR 
1520.9 and 49 CFR 15.9, Restrictions on the disclosure of sensitive 
security information. For example, these sections restrict the sharing 
of SSI to those with a need to know, set out the requirement to mark 
the information as SSI, and address how the information should be 
disposed. Note also when mailing in or using a special delivery service 
to send comments containing SSI, comments should be wrapped in a manner 
to prevent the information from being read. PHMSA and TSA may perform 
concurrent reviews on requests for designations as SSI.
    After reviewing your request for confidentiality and the 
information provided, PHMSA will analyze applicable laws and 
regulations to decide whether to treat the information as confidential. 
PHMSA will notify you of the decision to grant or deny confidentiality. 
If PHMSA denies confidentiality, you will be provided an opportunity to 
respond to the denial before the information is publicly disclosed. 
PHMSA will reconsider its decision to deny confidentiality based on 
your response.
    Regarding comments not marked as confidential, prior to posting 
comments received in response to this notice in the public docket, 
PHMSA will review all comments, whether or not they are identified as 
confidential, to determine if the submission or portions of the 
submission contain information that should not be made available to the 
general public. PHMSA will notify you if the agencies make such a 
determination relative to your comment. If, prior to submitting your 
comment, you have any questions concerning the procedures for 
determining confidentiality or security sensitivity, you may call one 
of the individuals listed below under FOR FURTHER INFORMATION CONTACT 
for more information.

FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, 
Office of Safety Assurance and Compliance, Federal Railroad 
Administration; or Susan Gorsky, (202) 366-8553, Office of Hazardous 
Materials Standards, Pipeline and Hazardous Materials Safety 
Administration.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Federal hazardous materials transportation law (Federal hazmat 
law, 49 U.S.C. 5101 et seq., as amended by Sec.  1711 of the Homeland 
Security Act of 2002, P.L. 107-296 and Title VII of the 2005 Safe, 
Accountable, Flexible and Efficient Transportation Equity Act--A Legacy 
for Users (SAFETEA-LU))

[[Page 76835]]

authorizes the Secretary of the Department of Transportation to 
``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' The Secretary has delegated this authority to PHMSA 
(formerly the Research and Special Programs Administration).
    The Hazardous Materials Regulations (HMR: 49 CFR parts 171-180) 
promulgated by PHMSA under the mandate in section 5103(b) govern safety 
aspects, including security, of the transportation of hazardous 
material the Secretary considers appropriate. Consistent with this 
security authority, in March 2003, PHMSA adopted new transportation 
security requirements for offerors and transporters of certain classes 
and quantities of hazardous materials and new security training 
requirements for hazardous materials employees. The security 
regulations, which are explained in more detail below, require offerors 
and carriers to develop and implement security plans and to train their 
employees to recognize and respond to possible security threats.
    When PHMSA adopted its security regulations, shippers and rail 
carriers were informed these regulations were ``the first step in what 
may be a series of rulemakings to address the security of hazardous 
materials shipments.'' 68 FR 14509, 14511 (March 25, 2003). PHMSA also 
noted ``TSA is developing regulations that are likely to impose 
additional requirements beyond those established in this final rule,'' 
and stated it would ``consult and coordinate with TSA concerning 
security-related hazardous materials transportation regulations * * *'' 
68 FR 14511.
    Under the Aviation and Transportation Security Act (ATSA), Public 
Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority 
from the Secretary of Homeland Security (DHS), the Assistant Secretary 
of DHS for TSA has broad responsibility and authority for ``security in 
all modes of transportation * * *''\1\ ATSA authorizes TSA to take 
immediate action to protect against threats to transportation security.
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    \1\ See 49 U.S.C. 114(d). The TSA Assistant Secretary's current 
authorities under ATSA have been delegated to him by the Secretary 
of Homeland Security. Under Section 403(2) of the Homeland Security 
Act of 2002, Public Law 107-296, 116 Stat. 2315 (2002) (HSA), all 
functions of TSA, including those of the Secretary of Transporation 
and the Undersecretary of Transportation of Security related to TSA, 
transferred to the Secretary of Homeland Security. Pursuant to DHS 
Delegation Number 7060.2., the Secretary delegated to the Assistant 
Secretary (then referred to as the Administrator of TSA), subject to 
the Secretary's guidance and control, the authority vested in the 
Secretary with respect to TSA, including that in Section 403(2) of 
the HSA.
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    TSA's authority over the security of transportation stems from 
several provisions of 49 U.S.C. 114. In executing its responsibilities 
and duties, TSA is specifically empowered to develop policies, 
strategies and plans for dealing with threats to transportation.\2\ As 
part of its security mission, TSA is responsible for assessing 
intelligence and other information in order to identify individuals who 
pose a threat to transportation security and to coordinate 
countermeasures with other Federal agencies to address such threats.\3\ 
TSA also is to enforce security-related regulations and 
requirements,\4\ ensure the adequacy of security measures for the 
transportation of cargo,\5\ oversee the implementation and ensure the 
adequacy of security measures at transportation facilities,\6\ and 
carry out other appropriate duties relating to transportation 
security.\7\ TSA is charged with serving as the primary liaison for 
transportation security to the intelligence and law enforcement 
communities.\8\
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    \2\ 49 U.S.C. 114(f)(3).
    \3\ 49 U.S.C. 114(f)(1)-(5), (h)(l)-(4).
    \4\ 49 U.S.C. 114(f)(7).
    \5\ 49 U.S.C. 114(f)(10).
    \6\ 49 U.S.C. 114(f)(11)
    \7\ 49 U.S.C. 114(f)(15).
    \8\ 49 U.S.C. 114(f)(1) and (5).
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    In sum, TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, security directives, 
security plans, and other requirements. Accordingly, under this 
authority, TSA may identify a security threat to any mode of 
transportation, develop a measure for dealing with that threat, and 
enforce compliance with that measure.
    As is evident from the above discussion, DHS and DOT share 
responsibility for hazardous materials transportation security. The two 
departments consult and coordinate on security-related hazardous 
materials transportation requirements to ensure they are consistent 
with the overall security policy goals and objectives established by 
DHS and the regulated industry is not confronted with inconsistent 
security guidance or requirements promulgated by multiple agencies. To 
that end, on August 7, 2006, PHMSA and TSA signed an annex to the 
September 28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles 
and Responsibilities. The purpose of the annex is to delineate clear 
lines of authority and responsibility and promote communications, 
efficiency, and non-duplication of effort through cooperation and 
collaboration in the area of hazardous materials transportation 
security based on existing legal authorities and core competencies. 
Similarly, on September 28, 2006, FRA and TSA signed an annex to 
address each agency's roles and responsibilities for rail 
transportation security. The FRA-TSA annex recognizes that FRA has 
authority over every area of railroad safety (including security) and 
that FRA enforces PHMSA's hazardous materials regulations. The FRA-TSA 
annex includes procedures for coordinating (1) planning, inspection, 
training, and enforcement activities; (2) criticality and vulnerability 
assessments and security reviews; (3) communicating with affected 
stakeholders; and (4) use of personnel and resources. Copies of the two 
annexes are available for review in the public docket for this 
rulemaking.
    Consistent with the principles outlined in the PHMSA-TSA annex, 
PHMSA and FRA collaborated with TSA to develop this NPRM. In today's 
edition of the Federal Register, TSA is publishing an NPRM proposing 
additional security requirements for rail transportation. The TSA 
rulemaking would enhance security in the rail transportation mode by 
proposing requirements on freight and passenger railroads, rail transit 
systems, and on facilities with rail connections that ship, receive, or 
unload certain hazardous materials. The TSA rulemaking is intended to 
augment the proposals in this NPRM.
    Hazardous materials are essential to the economy of the United 
States and the well being of its people. Hazardous materials fuel motor 
vehicles, purify drinking water, and heat and cool homes and offices. 
Hazardous materials are used for farming and medical applications, and 
in manufacturing, mining, and other industrial processes. Railroads 
carry over 1.7 million shipments of hazardous materials annually, 
including millions of tons of explosive, poisonous, corrosive, 
flammable and radioactive materials.
    The need for hazardous materials to support essential services 
means transportation of highly hazardous materials is unavoidable. 
However, these shipments frequently move through densely populated or 
environmentally sensitive areas where the consequences of an incident 
could be loss of life, serious injury, or significant environmental 
damage.

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    The same characteristics of hazardous materials causing concern in 
the event of an accidental release also make them attractive targets 
for terrorism or sabotage. Hazardous materials in transportation are 
frequently transported in substantial quantities and are potentially 
vulnerable to sabotage or misuse. Such materials are already mobile and 
are frequently transported in proximity to large population centers. 
Further, security of hazardous materials in the transportation 
environment poses unique challenges as compared to security at fixed 
facilities. Finally, hazardous materials in transportation often bear 
clear identifiers to ensure their safe and appropriate handling during 
transportation and to facilitate identification and effective emergency 
response in the event of an accident or release.
    A primary safety and security concern related to the rail 
transportation of hazardous materials is the prevention of a 
catastrophic release or explosion in proximity to densely populated 
areas, including urban areas and events or venues with large numbers of 
people in attendance. Also of major concern is the release or explosion 
of a rail car in proximity to iconic buildings, landmarks, or 
environmentally significant areas. Such a catastrophic event could be 
the result of an accident--such as the January 6, 2005 derailment and 
release of chlorine in Graniteville, South Carolina--or a deliberate 
act of terrorism. The causes of intentional and unintentional releases 
of hazardous material are very different; however, in either case the 
potential consequences of such releases are significant. Indeed, the 
consequences of an intentional release of hazardous material by a 
criminal or terrorist action are likely to be more severe than the 
consequences of an unintentional release because an intentional action 
is designed to inflict the most damage possible.

II. Current Hazardous Materials Transportation Safety and Security 
Requirements

    Subpart I to Part 172 of the HMR requires persons who offer certain 
hazardous materials for transportation or transport certain hazardous 
materials in commerce to develop and implement security plans. Security 
awareness training is also required of all hazardous materials 
employees (hazmat employees), and in-depth security training is 
required of hazmat employees or persons required to develop and 
implement security plans.
    The HMR require persons who offer for transportation or transport 
the following hazardous materials to develop and implement security 
plans:
    (1) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined at 49 CFR Sec.  173.403, in a motor vehicle, rail 
car, or freight container;
    (2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material in a motor vehicle, rail car, or freight 
container;
    (3) More than one L (1.06 qt) per package of a material poisonous 
by inhalation, as defined at 49 CFR Sec.  171.8, that meets the 
criteria for Hazard Zone A, as specified in 49 CFR Sec. Sec.  
173.116(a) or 173.133(a);
    (4) A shipment of a quantity of hazardous materials in a bulk 
packaging having a capacity equal to or greater than 13,248 L (3,500 
gallons) for liquids or gases or more than 13.24 cubic meters (468 
cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
pounds) gross weight or more of one class of hazardous materials for 
which placarding of a vehicle, rail car, or freight container is 
required for that class under the provisions of subpart F of this part;
    (6) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention under 42 CFR Part 73; or
    (7) A quantity of hazardous material that requires placarding under 
the provisions of subpart F of 49 CFR Part 172.
    Thus, in accordance with Subpart I of Part 172 of the HMR, rail 
carriers transporting any of the above materials in commerce must have 
developed and implemented security plans. The security plan must 
include an assessment of possible transportation security risks and 
appropriate measures to address the assessed risks. Specific measures 
implemented as part of the plan may vary commensurate with the level of 
threat at a particular time. At a minimum, the security plan must 
address personnel security, unauthorized access, and en route security. 
To address personnel security, the plan must include measures to 
confirm information provided by job applicants for positions involving 
access to and handling of the hazardous materials covered by the plan. 
To address unauthorized access, the plan must include measures to 
address the risk of unauthorized persons gaining access to materials or 
transport conveyances being prepared for transportation. To address en 
route security, the plan must include measures to address security 
risks during transportation, including the security of shipments stored 
temporarily en route to their destinations.
    As indicated above, the HMR set forth general requirements for a 
security plan's components rather than a prescriptive list of specific 
items that must be included. The HMR set a performance standard 
providing offerors and carriers with the flexibility necessary to 
develop security plans addressing their individual circumstances and 
operational environment. Accordingly, each security plan will differ 
because it will be based on an offeror's or a carrier's individualized 
assessment of the security risks associated with the specific hazardous 
materials it ships or transports and its unique circumstances and 
operational environment.
    Offerors and carriers in all modes were required to have security 
plans in place by September 25, 2003. New shippers and carriers must 
have security plans in place before they begin operations. To assist 
the industry in complying with the security plan requirements, PHMSA 
developed a security plan template to illustrate how risk management 
methodology could be used to identify areas in the transportation 
process where security procedures should be enhanced within the context 
of an overall risk management strategy. The security template is posted 
in the docket and on the PHMSA website at http://hazmat.dot.gov/rmsef.htm. In addition, a number of industry groups and associations 
have developed guidance material to assist their members in developing 
appropriate security plans.
    With respect to delays in transportation, rail carriers are 
currently required to expedite the movement of hazardous materials 
shipments pursuant to Sec.  174.14 of the HMR. Each shipment of 
hazardous materials must be forwarded ``promptly and within 48 hours 
(Saturdays, Sundays, and holidays excluded)'' after acceptance of the 
shipment by the rail carrier. If only biweekly or weekly service is 
performed, the carrier must forward a shipment of hazardous materials 
in the first available train. Additionally, carriers are prohibited 
from holding, subject to forwarding orders, tank cars loaded with 
Division 2.1 (flammable gas), Division 2.3 (poisonous gas) or Class 3 
(flammable liquid) materials. The purpose of Sec.  174.14 is to help 
ensure the prompt delivery of hazardous materials shipments and to 
minimize the time materials spend in transportation, thus minimizing 
the exposure of hazmat shipments to accidents, derailments, unintended 
releases, or tampering.

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    Apart from the requirements in Sec.  174.14 to expedite the 
movement of hazardous materials, the HMR do not include specific 
routing requirements for rail hazmat shipments, e.g., to route 
shipments around or away from particular geographic areas. For example, 
in promulgating its March 2003 security regulations under Docket HM-
232, PHMSA specifically required rail carriers to address en route 
security; however, PHMSA deliberately decided to leave the specifics of 
hazardous materials rail routing decisions, and other en route security 
matters covered by transportation security plans, to the judgment of 
rail carriers. Accordingly, the HM-232 security regulations preempt, 
among other things, any state, local, or tribal laws and regulations 
prescribing or restricting the routing of rail hazardous materials 
shipments. 49 U.S.C. 5125 and 20106. This proposed rule does not change 
this general approach to route-related requirements for rail hazardous 
materials shipments. Because the nation's largest rail carriers operate 
across many states, and the operating conditions in each location can 
vary greatly, this approach gives carriers the ability to follow a 
consistent, nationally-applicable Federal standard while also tailoring 
safety and security measures to the particular circumstances of 
individual locations.
    The rail industry, through the Association of American Railroads 
(AAR), has developed a detailed protocol on recommended railroad 
operating practices for the transportation of hazardous materials. The 
AAR issued the most recent version of this document, known as Circular 
OT-55-I, on August 26, 2005. The Circular details railroad operating 
practices for: (1) Designating trains as ``key trains'' containing (i) 
five tank car loads or more of poison inhalation hazard (PIH) 
materials, (ii) 20 or more car loads or intermodal portable tank loads 
of a combination of PIH, flammable gas, Class 1.1 or 1.2 explosives, 
and environmentally sensitive chemicals, or (iii) one or more car loads 
of spent nuclear fuel or high level radioactive waste; (2) designating 
operating speed and equipment restrictions for key trains; (3) 
designating ``key routes'' for key trains, and setting standards for 
track inspection and wayside defect detectors; (4) yard operating 
practices for handling placarded tank cars; (5) storage, loading, 
unloading and handling of loaded tank cars; (6) assisting communities 
with emergency response training and information; (7) shipper 
notification procedures; and (8) the handling of time-sensitive 
materials. These recommended practices were originally implemented by 
all of the Class 1 rail carriers operating in the United States; the 
most recent version of the circular also includes short-line railroads 
as signatories.
    Circular OT-55-I defines a ``key route'' as:

Any track with a combination of 10,000 car loads or intermodal 
portable tank loads of hazardous materials, or a combination of 
4,000 car loadings of PIH (Hazard zone A, B, C, or D), anhydrous 
ammonia, flammable gas, Class 1.1 or 1.2 explosives, environmentally 
sensitive chemicals, Spent Nuclear Fuel (SNF), and High Level 
Radioactive Waste (HLRW) over a period of one year.

    Any route defined by a railroad as a key route should meet certain 
standards described in OT-55-I. Wayside defective wheel bearing 
detectors should be placed at a maximum of 40 miles apart, or an 
equivalent level of protection may be installed based on improvements 
in technology. Main track on key routes should be inspected by rail 
defect detection and track geometry inspection cars or by any 
equivalent level of inspection at least twice each year. Sidings on key 
routes should be inspected at least once a year; and main track and 
sidings should have periodic track inspections to identify cracks or 
breaks in joint bars. Further, any track used for meeting and passing 
key trains should be FRA Class 2 track or higher. If a meet or pass 
must occur on less than Class 2 track due to an emergency, one of the 
trains should be stopped before the other train passes. The proposals 
in this NPRM in part reflect the recommended practices mentioned above, 
which are already in wide use across the rail industry.

 III. Request for Comments on the Transportation Security of TIH 
Materials

    On August 16, 2004, PHMSA and TSA published a notice and request 
for comments on the need for enhanced security requirements for the 
rail transportation of hazardous materials posing a poison or toxic 
inhalation hazard (TIH materials). See 69 FR 50988. (Note that for 
purposes of the HMR, the terms ``poison'' and ``toxic'' are synonymous, 
as are the terms ``PIH materials'' and ``TIH materials.'') In the 
August notice, PHMSA and TSA sought comments on the feasibility of 
initiating specific security enhancements and the potential costs and 
benefits of doing so. Security measures addressed in the notice 
included improvements to security plans, modification of methods used 
to identify shipments, enhanced requirements for temporary storage, 
strengthened tank car integrity, and implementation of tracking and 
communication systems. To date, we have received over 100 comments. We 
considered the comments concerning the need for improvements to current 
security plan requirements and revisions to regulations applicable to 
in-transit storage in developing this NPRM. These comments are 
discussed in detail in the following sections.
    The comments to the August notice related to hazard communication, 
shipment identification, strengthened tank car integrity, and shipment 
tracking are not addressed in this rulemaking.
    Additionally, on August 9-10, 2005, FRA participated in a meeting 
of the AAR Hazardous Materials Bureau of Explosives (BOE) Committee. At 
this meeting, FRA requested input from the rail industry regarding 
internal methods used to track and store information about TIH, 
explosive, and highway route controlled quantity radioactive materials. 
Comments regarding the definition of a route for the purpose of rail 
route analysis were taken into consideration in the development of this 
NPRM, as reflected by the use of line segment, an industry term. Other 
comments received related to specific measures, which a carrier should 
consider in performing a route analysis. A summary of this meeting can 
be found in the docket for this rulemaking.

A. Security Plan Improvements

    In the August notice, PHMSA and TSA stated the two agencies are 
interested in determining how security plans required under the HMR 
might be improved, particularly as they relate to TIH materials. PHMSA 
and TSA asked commenters to provide information concerning the process 
by which their security plans were developed, including any problems 
encountered during the drafting or implementation phase, recommended 
``best practices,'' and any additional guidance or assistance as 
appropriate.
    Commenters found the guidance provided by DOT and various industry 
associations to be quite useful for developing the security plans under 
the HMR. Commenters generally agree additional guidance material 
specific to the transportation of TIH materials could be helpful in 
enhancing the security of TIH materials; however, commenters generally 
oppose a requirement for the creation of separate security plans 
specific to TIH or other high-hazard materials, noting such materials 
are already covered by the HMR security plan requirements and

[[Page 76838]]

DOT and DHS have not shown the existing security plan requirements are 
inadequate. Most commenters who address this issue note that the 
success of DOT's current security plan requirement is its flexibility 
and encourage DOT and DHS to focus on performance-based criteria that 
are general in nature and provide flexibility to tailor transportation 
security plans and integrate them into overall security management. 
Commenters are nearly unanimous in opposition to a requirement for DOT 
and DHS to review and approve specific security plans, unless done on-
site as part of a compliance or outreach review.
    PHMSA and TSA agree with commenters who suggest compliance with the 
current security plan regulations could be improved with the 
development of additional guidance material or more specific 
requirements applicable to certain types of hazardous materials. As 
discussed in more detail below, in this NPRM, PHMSA is proposing 
clarifications and enhancements to the current security requirements as 
they apply to certain rail operations.

B. Temporary Storage

    In the August notice, PHMSA and TSA discussed issues associated 
with the temporary storage of rail tank cars during transportation, 
including current regulatory requirements applicable to such storage. 
PHMSA and TSA requested comments concerning whether revisions to the 
temporary storage requirements applicable to rail cars transporting TIH 
materials are appropriate, including the impact such revisions could 
have on the costs to transport TIH materials and the impact on 
recipients and users (for example, towns and municipalities).
    Many commenters agree the security of TIH rail shipments stored 
temporarily during transportation should be improved but have mixed 
views on how to achieve this objective. While some commenters support 
time limits on interim storage and prohibitions on the storage of TIH 
rail cars in densely populated areas, others suggest such restrictions 
would be infeasible because of supply chain issues, adverse economic 
impacts, and railroad operational and efficiency issues. One commenter 
notes ``since the federal government does not limit the storage of TIH 
materials at customer facilities, it would be illogical for the federal 
government to limit railroad storage of TIH materials.'' Several 
commenters urge PHMSA and TSA to ``use extra caution'' before 
prohibiting the temporary storage of TIH materials, suggesting a 
location in a densely populated area should not in itself be a reason 
to prohibit temporary storage. Rather than place limits on temporary 
storage, commenters suggest the security measures implemented at 
facilities at which such storage occurs should be based on risk 
assessments. Thus, for example, a facility in a densely populated area 
would be required to implement more stringent security requirements 
than a facility in a rural area. Specific measures suggested include 
perimeter fencing with controlled and limited access, enhanced 
lighting, remote monitoring, and frequent security patrols.
    As discussed in more detail below, PHSMA, FRA, and TSA agree with 
commenters that the security of hazardous materials rail shipments 
stored temporarily during transportation should be improved, and PHMSA 
is proposing revisions in this NPRM. In addition, in its NPRM published 
in today's edition of the Federal Register, TSA is proposing additional 
security measures applicable to the storage of rail shipments of 
certain hazardous materials.

C. Shipment Tracking

    The August notice indicated DOT and DHS are considering whether 
communication or tracking requirements should be required for rail 
shipments of TIH materials, such as satellite tracking of TIH rail cars 
and real-time monitoring of tank car or track conditions. In addition, 
the notice suggested DOT and DHS are considering reporting requirements 
in the event TIH shipments are not delivered within specified time 
periods.
    The HMR currently do not include communication or tracking 
requirements for hazardous materials shipments. Offerors and 
transporters of TIH materials may elect to implement communication or 
tracking measures as part of security plans developed in accordance 
with subpart I of part 172 of the HMR, but such measures are not 
mandatory.
    Commenters who addressed this issue are not convinced that tracking 
of rail shipments of TIH materials has a security benefit, instead 
suggesting the probability of a rail car being moved off the rail 
network is extremely remote and, further, tracking rail cars to 
determine if they are off course has no value from a security 
perspective. Commenters also express concerns about the reliability of 
tracking systems and the possibility that some systems could be 
compromised. Several commenters suggest that since the railroad 
industry already has the capability to track rail cars, the existing 
system should be supplemented, not scrapped, and any mandated tracking 
requirements should provide for flexibility in choosing different 
technologies.
    PHMSA, FRA, and TSA believe that most rail carriers have the 
capability to report on the locations of certain hazardous materials 
rail cars. We believe carriers should be required to report car 
location upon request of the government in certain limited situations, 
particularly during elevated threat conditions. PHMSA, FRA, and TSA are 
continuing to consider whether and to what extent rail carriers should 
be required to gather and report car location information, including 
the type of information to be collected, its format, and the costs of 
mandating such a requirement. In its NPRM, published in today's edition 
of the Federal Register, TSA is proposing to require rail carriers to 
report location and shipping information for certain hazardous 
materials to TSA upon request.

IV. Proposals in this NPRM

    Based on comments received in response to the TIH notice and our 
experience in monitoring industry compliance with the HMR security plan 
requirements, we are proposing the following revisions to the security 
plan provisions:
     We propose to require rail carriers transporting certain 
types of hazardous materials to compile information and data on the 
commodities transported, including the transportation routes over which 
these commodities are transported.
     We propose to require rail carriers transporting certain 
types of hazardous materials to use the data they compile on 
commodities they transport to analyze the safety and security risks for 
the transportation routes used and one possible alternative route to 
the one used. Rail carriers would be required to utilize these analyses 
to transport these materials over the safest and most secure 
commercially practicable routes.
     We propose to require rail carriers to specifically 
address the security risks associated with shipments delayed in transit 
or temporarily stored in transit as part of their security plans.
     We propose to require rail carriers transporting certain 
types of hazardous materials to notify consignees if there is a 
significant unplanned delay affecting the delivery of the hazardous 
material.
     We propose to require rail carriers to work with shippers 
and consignees to minimize the time a rail car containing certain types 
of hazardous materials is

[[Page 76839]]

placed on track awaiting pick-up or delivery or transfer from one 
carrier to another.
     We propose to require rail carriers to notify storage 
facilities and consignees when rail cars containing certain types of 
hazardous materials are delivered to a storage or consignee facility.
     We propose to require rail carriers to conduct security 
visual inspections at ground level of rail cars containing hazardous 
materials to inspect for signs of tampering or the introduction of an 
improvised explosive device (IED).
    These proposed revisions are explained in more detail in the 
following sections.
    DOT's hazardous materials transportation safety program provides 
for a high degree of safety with respect to incidents involving 
unintentional releases of hazardous materials occurring during 
transportation. However, intentional misuse of hazardous materials was 
rarely considered when the regulations were developed. Since 9/11, we 
have come to realize that hazardous materials safety and security are 
inseparable. Many, if not most, of the requirements designed to enhance 
hazardous materials transportation safety, such as strong containers 
and clear hazard communication, enhance the security of hazardous 
materials shipments as well. Congress recognized this synergy and 
legislated its intent that ``hazmat safety [was] to include hazmat 
security'' when it enacted the Homeland Security Act of 2002 
authorizing the Secretary of Transportation to ``prescribe regulations 
for the safe transportation, including security, of hazardous material 
in intrastate, interstate, and foreign commerce.'' Safety and security 
must be considered together, particularly because a given security 
measure could have a potentially negative impact on overall 
transportation safety--routing and hazard communication are two obvious 
examples. Of course, the opposite can also be true--a safety policy or 
regulation could have a potentially negative impact on transportation 
security. PHMSA, FRA, and TSA are collaborating to ensure an 
appropriate balance between safety and security concerns.
    The transport of highly hazardous materials is not limited to rail. 
Currently, significant amounts of highly hazardous materials are also 
transported by highway and vessel. The focus on rail is intended to be 
one phase in a multiphase effort by DOT and DHS to assess and secure 
the transportation of hazardous materials in all transportation modes 
to create an end-to-end secure supply chain. In this regard, we note 
the Federal Motor Carrier Safety Administration has established 
criteria in 49 CFR Part 397 for routing certain highly hazardous 
materials.

A. Applicability to Certain Types of Hazardous Materials

    PHMSA, FRA, and TSA have assessed the safety and security 
vulnerabilities associated with the transportation of different types 
and classes of hazardous materials. The list of materials to which the 
enhanced security requirements proposed in this NPRM would apply is 
based on specific transportation scenarios. These scenarios depict how 
hazardous materials could be deliberately used to cause significant 
casualties and property damage or accident scenarios resulting in 
similar catastrophic consequences. The materials specified in this NPRM 
present the greatest rail transportation safety and security risks--
because of the potential consequences associated with an unintentional 
release of these materials--and the most attractive targets for 
terrorists--because of the potential for these materials to be used as 
weapons of opportunity or weapons of mass destruction.
    In this NPRM, we are proposing enhanced rail security requirements 
for rail transportation, with a particular focus on the following types 
and quantities of hazardous materials:
    (1) More than 2,268 kg (5,000 lbs) in a single carload of a 
Division 1.1, 1.2 or 1.3 explosive;
    (2) A bulk quantity of a TIH material (poisonous by inhalation, as 
defined in 49 CFR 171.8); or
    (3) A highway-route controlled quantity of a Class 7 (radioactive) 
material.
    As indicated above, the materials to be covered by this rulemaking 
represent those posing both a significant rail transportation safety 
and security risk. The following list provides a basic summary of the 
materials and critical vulnerabilities warranting inclusion in the 
proposed rule:
     Division 1.1, 1.2, and 1.3 explosive materials. These 
explosive materials present significant safety and security risks in 
transportation. A Division 1.1 explosive is one presenting a mass 
explosive hazard. A mass explosion is one affecting almost the entire 
load simultaneously. A Division 1.2 explosive has a projection hazard, 
which means if the material were to explode, it would project fragments 
outward at some distance. A Division 1.3 explosive presents a fire 
hazard and either a minor blast hazard or a minor projection hazard or 
both. If compromised in transit by detonation or as a secondary 
explosion to an IED, these explosives could result in substantial 
damage to rail infrastructure and the surrounding area.
     TIH materials. TIH materials are gases or liquids that are 
known or presumed on the basis of tests to be toxic to humans and to 
pose a hazard to health in the event of a release during 
transportation. TIH materials pose special risks during transportation 
because their uncontrolled release can endanger significant numbers of 
people. The January 6, 2005 train derailment in Graniteville, SC with 
subsequent release of chlorine sadly underscored this risk.
     Highway Route Controlled Quantity Radioactive Materials 
(HRCQ). Shipments of HRCQ of radioactive materials are large quantities 
of radioactive materials requiring special controls during 
transportation. Because of the quantity included in a single packaging, 
HRCQ shipments pose significant safety and security risks.
    In addition, we are seeking comment on whether the requirements 
proposed in this NPRM should also apply to flammable gases, flammable 
liquids, or other materials that could be weaponized, as well as 
hazardous materials that could cause serious environmental damage if 
released into rivers or lakes. For example, although most ammonium 
nitrate and ammonium nitrate mixtures are classified as oxidizers 
during transportation based on the normal transportation environment, 
tests have shown these materials have explosive properties under 
certain conditions. Rail cars carrying large quantities of these 
materials may pose significant security risks. Commenters are asked to 
identify which additional materials (if any) should be subject to 
enhanced safety or security requirements and discuss the types of 
requirements appropriate to address the risks posed by an intentional 
or accidental release of the product.

B. Commodity Data

    In this NPRM, PHMSA is proposing to require rail carriers 
transporting any of the materials specified to compile commodity data 
on a calendar year basis. Each rail carrier must identify the line 
segments over which these commodities are transported. As the carrier 
deems appropriate, line segments may be aggregated into logical 
groupings, such as between major interchange points. The rail carrier 
selected line segment(s) will be considered the route, as discussed 
below, used for rail routing analysis. Within each route, the commodity 
data must identify the route location and

[[Page 76840]]

total number of shipments transported over the line segment(s). The 
data collected must identify the specified materials by UN 
identification number. However, given that UN identification numbers 
used to identify the specified materials may also represent materials 
not meeting the criteria for commodity data collection, an allowance is 
being made to allow data collection for all Class 7 and Division 6.1 
materials transported over the route. Complete data on the shipments 
transported and the routes utilized should improve rail carriers' 
ability to develop and implement specific safety and security 
strategies.
    As proposed in this NPRM, rail carriers would be required to 
complete the commodity data collection within 90 days after the end of 
each calendar year. For example, if a rail carrier is compiling data 
for calendar year 2006, it must be available for use and inspection by 
April 1, 2007. To provide carriers with flexibility in compiling and 
assessing the data, we are not proposing a specified format; however 
the data must be available in a format that could be read and 
understood by DOT personnel and that clearly identifies the physical 
locations of the carrier's route(s) and commodities transported over 
each route. Physical location may be identified by beginning and ending 
point, locality name, station name, track milepost, or other method 
devised by the rail carrier which specifies the geographic location. 
Carriers would also be required to retain the data for two years, in 
either hard copy or electronic form, whichever is most efficient for 
the carrier.
    With respect to information confidentiality and security concerns, 
data compiled under the proposed regulations would be considered SSI 
under regulations promulgated by DOT and DHS (49 CFR Parts 15 and 1520, 
respectively). SSI is subject to special handling rules and qualifying 
information is protected from public disclosure under those regulations 
if copies of any data are kept or maintained by DOT. See 69 FR 28066 
(May 18, 2004) and 70 FR 1379 (January 7, 2005). Carriers would be 
required to ensure any information developed to comply with the 
requirements proposed in this NPRM is properly marked and handled in 
accordance with the SSI regulations. Further, information maintained by 
DOT may be shared with DHS. In such cases, SSI protections will 
continue to apply.

C. Route Analyses

    In this NPRM, PHMSA is proposing to require rail carriers to use 
the data compilation described above to include in their security plans 
an analysis of the rail transportation routes over which the specified 
materials are transported. As proposed, carriers will be required to 
analyze the specific safety and security risks for routes identified in 
the commodity data collection. Route analyses will be required to be in 
writing and to consider, at a minimum, a number of factors specific to 
each individual route. A non-inclusive list of those factors is 
included in proposed Appendix D to Subpart I of Part 172. Consistent 
with the SSI restrictions set forth in 49 CFR Parts 15 and 1520, TSA 
and FRA will provide appropriate guidance to rail carriers on how to 
properly weigh and evaluate the factors necessary for performing the 
security part of the risk analysis, and will include threat scenarios 
to aid in this route analysis.
    We invite comments to address how frequently route analyses should 
be updated and revised. This NPRM proposes to require carriers to re-
examine route analyses on an annual basis. We are seeking comments on 
whether annual analyses are necessary and whether the analyses should 
be conducted more frequently or less frequently. For example, the 
regulations could require carriers to revise and update route analyses 
only when necessary to account for changes in the way a carrier 
operates, changes to the routes utilized to transport hazardous 
materials, or in response to specific threat information.
    We anticipate carriers will first analyze the rail transportation 
route over which each specified commodity normally travels in the 
regular course of business. As discussed below, we are also proposing 
to require carriers to then identify and analyze the next most 
practicable alternative route, if available, over which they have 
authority to operate, using the same factors. We expect the alternative 
route analyzed will originate and terminate at the same points as the 
original route.
    We have given careful consideration to the question of how to 
define a ``rail transportation route'' for the purpose of the analysis 
proposed in this NPRM. We propose this very basic definition: a route 
is a series of one or more rail line segments, as selected by the rail 
carrier. Between the beginning and ending points of a rail carrier's 
possession and responsibility for a hazardous materials shipment, it 
would be up to the rail carrier to define the routes to be assessed. 
For example, a route could begin at the geographic point where a rail 
carrier takes physical possession of the hazardous material from the 
offeror or another carrier for transportation. A route could end at the 
geographic point where: (1) The rail carrier relinquishes possession of 
the hazardous material, either by delivering the commodity to its final 
destination or interchanging the shipment to another carrier; or (2) 
the carrier's operating authority ends. Hazardous materials shipments 
will likely have intermediary stops and transitions--for example, a 
shipment may be held in a railroad yard, placed in a different train, 
or stored temporarily during transportation. Our aim is to have rail 
carriers analyze the territory and track over which these certain 
hazardous materials are regularly transported in the carrier's normal 
course of business, while providing flexibility concerning how specific 
routes will be defined and assessed. The final analysis, however, 
should provide a clear picture of the routes a rail carrier uses for 
the specified hazardous materials. Patterns and regular shipments 
should become obvious, as should non-routine hazardous materials 
movements, such as the one-time move of a specific shipment of military 
explosives or high-level nuclear waste. The parameters set out for 
``key routes'' in AAR Circular OT-55-I are an excellent starting point 
for railroads to use in performing route analyses.
    In addition to the routes normally and regularly used by rail 
carriers to transport these designated hazardous materials, we are 
proposing to require carriers to analyze and assess the feasibility of 
available alternative routes over which they have authority to operate. 
For each primary route, one commercially practicable alternative route 
must be identified and analyzed using the Rail Risk Analysis Factors of 
proposed Appendix D to Part 172. We recognize in many cases, the only 
alternative route in a particular area may be on another carrier's 
right-of-way. A rail carrier would not be obligated to analyze an 
alternative route over which it has no authority to operate. We also 
recognize, in some cases, no alternative route will be available; 
therefore, no such analysis would be required. This is particularly 
true in the case of regional or short-line railroads that are often the 
only rail carriers in a given geographic area. Where an alternative 
route over which the carrier has authority to operate does exist, the 
carrier must analyze that route and document its analysis, including 
the safety and security risks presented by the alternative route, any 
remediation or mitigation measures in place or that could be 
implemented, and the economic effects of utilizing the

[[Page 76841]]

alternative route. As used in this proposal, ``commercially 
practicable'' means that the route may be utilized by the railroad 
within the limits of the railroads particular operating constraints 
and, further, that the route is economically viable given the economics 
of the commodity, route, and customer relationship. The question of 
commercial practicability must be reasonably evaluated by each rail 
carrier as a part of its analysis based on the specific circumstances 
of the route and proposed traffic. If using a possible alternative 
route would significantly increase a carrier's operating costs, as well 
as the costs to its customers, the carrier should document these facts 
in its route analysis. We expect that carriers will make these 
decisions in good faith, using the financial management principles 
generally applied to their other business decisions.
    In the rail operating environment, it is possible a carrier may 
transport the specified material over a route where the carrier has 
trackage rights, but does not own or have control over the track and 
associated infrastructure. Many of the factors in Appendix D relate to 
the physical characteristics of the track. In completing the route 
analyses required by this proposed rule, the carrier may identify 
specific measures to address risks outside its ability to accomplish. 
Because it is essential that safety and security measures be 
coordinated among all responsible entities, it is incumbent upon the 
carrier to work with the owner of the track to evaluate the 
vulnerabilities and identify measures to effect mitigation of the 
risks. If measures required by this proposed rule cannot be implemented 
because another entity refuses or fails to cooperate, the carrier must 
notify FRA. As stated in the Enforcement section of this preamble, FRA 
retains the authority to require use of an alternative route until such 
time as identified deficiencies are mitigated or corrected.
    For each primary route, one alternative route must be identified 
and analyzed, if available as discussed above. As with the primary 
route analysis, we expect the end result to be a clear picture of the 
commercially practicable alternative route(s) available to rail 
carriers for the transportation of the specified hazardous materials. 
Alternative routing is used in the normal course of business throughout 
the railroad industry in order to accommodate circumstances such as 
derailments, accidents, damaged track, natural events (mudslides, 
floods), traffic bottlenecks, and heightened security due to major 
national events. The rail carriers' analysis of the alternative route 
should, in the end, clearly indicate the reasonableness, 
appropriateness, and feasibility, including economic feasibility, of 
using the alternative. We expect a complete alternative route analysis 
will indicate such things as any actual use of alternative route; 
safety and security benefits and risks of the alternative route; and 
commercial or economic costs and benefits of the route. Clearly, if an 
alternative route, after analysis, is identified to be the safest and 
most secure commercially practicable route, the carrier would either 
designate it as the primary route or identify and implement mitigating 
measures to improve the safety and security of the analyzed primary 
route. Each carrier will be required to use the commercially 
practicable route with the overall fewest combined safety and security 
risks, based on its analysis.
    We recognize there may not be one single route that affords both 
the fewest safety and security risks. The most important part of this 
process is the route analysis itself and the identification of the 
safety and security risks on each route. The carrier may then make an 
informed decision, balancing all relevant factors and the best 
information available, regarding which route to use. For example, if a 
rail carrier determines one particular route is the safest and most 
practicable, but has a particular security risk, the carrier should 
then implement specific security measures to mitigate the security 
risk. We also recognize some security risks or threats may be long-
term, while others are short-term, such as those arising from holding a 
major national event (e.g., national political party conventions) in 
close proximity to the rail route. Mitigation measures could be put in 
place for the duration of the event; after the event is over, normal 
operations could resume. Again, we expect many of the railroads already 
have experience in addressing safety and security issues such as these, 
and likely have already catalogued possible actions to mitigate such 
risks.
    In the evaluation of alternative routes, carriers may also indicate 
certain conditions under which alternative routes will be used. In the 
case of a short-term safety or security risk, such as a temporary event 
at a venue along the route, or a derailment, carriers may specify an 
alternative route and the measures to be put in place for use of that 
alternative route.
    To assist rail carriers in performing these analyses of rail 
transportation routes and alternative routes, PHMSA is proposing to add 
a new Appendix D to Subpart 172. This appendix will lay out the minimum 
criteria a rail carrier must consider in analyzing each route and 
alternative route. The criteria listed are those we believe are most 
relevant in analyzing the rail routes for the hazardous materials 
discussed in this proposed rule. Of course, not all the criteria will 
be present on each route, and each route will have its own combination 
of factors to be considered. Again, our aim is to enable rail carriers 
to tailor these analyses to the particular risks and factors of their 
operations, and to get a clear picture of the characteristics of each 
route.
    For the initial route analysis, we anticipate rail carriers will 
review the prior two-year period when considering the criteria 
contained in Appendix D. In subsequent years, the scope of the analyses 
should focus on changes from the initial analyses. For example, using 
the criteria in Appendix D, carriers should analyze the impact of 
significant changes in traffic density, new customers offering or 
receiving the specified hazardous materials, and significant 
operational changes. The scope of the analyses in subsequent years is 
expected to be more limited than the analyses conducted in the first 
year. As proposed in this NPRM, each carrier would be required to 
perform a system-wide analysis every five years to include a 
comprehensive review of all changes occurring during the intervening 
period. The system-wide review would include an analysis of all primary 
routes and a reevaluation of the corresponding practicable alternative 
routes.
    We recognize the need for flexibility in performing risk 
assessments, yet we must balance it against the need for some degree of 
uniformity in the assessments. Uniformity is necessary when a 
performance standard is used. We have tried to balance these two 
competing interests by establishing a requirement for the assessment 
criteria to be used, while allowing rail carriers to choose the 
methodology for conducting the analysis. We believe the proposed 
criteria will improve the quality of risk assessments conducted per 
this subpart. We solicit comment on the proposal's balancing of 
flexibility and uniformity in both risk assessment and route selection.
    Regardless of methodology selected, a rail carrier should apply 
certain common principles. These include the following:
     The analysis should employ the best reasonable, obtainable 
information from the natural, physical, and social sciences to assess 
risks to health, safety, and the environment;

[[Page 76842]]

     Characterizations of risks and of changes in the nature or 
magnitude of risks should be both qualitative, and quantitative to the 
extent possible consistent with available data;
     Characterizations of risk should be broad enough to deduce 
a range of activities to reduce risks;
     Statements of assumptions, their rationale, and their 
impact on the risk analysis should be explicit;
     The analysis should consider the full population at risk, 
as well as subpopulations particularly susceptible to such risks and/or 
more highly exposed; and
     The analysis should adopt consistent approaches to 
evaluating the risks posed by hazardous agents or events.
    We believe institutionalizing a practical assessment program is 
important to supporting business activities and provides several 
benefits. First, and perhaps most importantly, assessment programs help 
ensure identification, on a continuing basis, of the movement of 
materials presenting the greatest risk to the public and the business 
community. Second, risk assessments help personnel throughout the 
organization better understand where to best apply limited resources to 
minimize risks. Further, risk assessments provide a mechanism for 
reaching a consensus on which risks are the greatest and what steps are 
appropriate for mitigating them. Finally, a formal risk assessment 
program provides an efficient means for communicating assessment 
findings and recommended actions to business unit managers as well as 
to senior corporate officials. The periodic nature of the assessments 
provides organizations a means of readily understanding reported 
information and comparing results over time.
    The route analysis described above must identify safety and 
security vulnerabilities along the route to be utilized. As proposed in 
this NPRM, each rail carrier's security plan would be required to 
include measures to minimize the safety and security vulnerabilities 
identified through the route analyses. With respect to mitigation 
measures and cost, there are many measures rail carriers can take 
without necessarily adding to the cost of compliance. For example, 
carriers can work to notify local law enforcement and emergency 
responders of the types and approximate amounts of particular 
commodities typically transported through communities. Further, 
location changes can be made as to where rail cars containing highly 
hazardous materials are stored in transit. As with the security plan 
requirements currently required, our goal with this proposal is to 
permit rail carriers the flexibility to identify potential safety and 
security vulnerabilities and measures to address them, including the 
determination of which of its routes provide the overall fewest safety 
and security risks.
    Although not a terrorist incident, the January 6, 2005, railroad 
accident and release of chlorine in Graniteville, SC, added to the 
growing concern about terrorism and prompted the development of the 
Freight Rail Security Program. This program is an innovative public-
private partnership dedicated to assessing policies and technologies 
for enhancing security throughout the freight rail industry. One 
product of this partnership is the development of the Rail Corridor 
Risk Management Tool (RCRMT). The RCRMT will leverage existing 
technologies and accepted risk management practices where feasible, and 
incorporate new technologies and elements as appropriate. A second 
project of the Freight Rail Security Program is the Rail Corridor 
Hazmat Response and Recovery Tool (RCHRRT), which will integrate 
geographical information and risk modeling. The RCHRRT is being 
developed through a grant to the Railroad Research Foundation and will 
include participation from the rail industry. When fully developed, 
these tools will provide a formal methodology to assist the rail 
carriers in complying with the enhanced safety and security planning 
requirements of this proposed rulemaking.

D. Route Selection

    The overarching goal of this NPRM is to ensure each route used for 
the transport of the specified hazardous materials is the one 
presenting the fewest overall safety and security risks. PHMSA is 
proposing a systematic process for rail carriers to: (1) Identify the 
routes currently in use by the rail carrier; (2) perform safety and 
security risk analyses of those primary routes; (3) identify and 
analyze commercially practicable alternative routes; and (4) make 
future route selections based on the results of the completed analyses. 
A rail carrier must evaluate its analyses and any measures put in place 
to mitigate identified vulnerabilities resulting in a selection of 
practicable routes presenting the fewest safety and security risks. The 
final step of this process is for the rail carrier to ensure the 
specified materials are moving on the safest and most secure 
commercially practicable routes. We expect for larger rail carriers, 
who have multiple routes available, the overall result of the route 
selection process will be a suite of routes addressing the overall 
safety and security risks of the materials in this rule. As discussed 
above, development of a suite of routes, where practicable, may provide 
carriers the flexibility to manage changing localized conditions, such 
as short-term changes in threat condition or track outage due to 
incidents or derailment, within their existing route selections.
    PHMSA has proposed a 90-day window to compile commodity data and 
identify currently used routes. In the example given previously, for 
calendar year 2006, the commodity data would be available by April 1, 
2007. Once the data are available, PHMSA recognizes it will take some 
time, especially in the first year of compliance, to complete the 
safety and security analyses of all primary and alternative routes. 
Moreover, the time necessary to complete the analyses will vary from 
carrier to carrier depending on the number of routes to be assessed and 
the nature of the safety and security issues identified for each route. 
We expect each rail carrier will build on the foundation of its 
existing security plan and the parameters already outlined in Circular 
OT-55-I. As the safety and security analyses are completed, the carrier 
must document its review and route selection decisions. We anticipate 
several possible route selection outcomes:
     The existing route presents the lowest overall safety and 
security risk and continues to be the selected route.
     The alternative route presents the lowest overall safety 
and security risks. The alternative will be selected, and 
transportation of the identified materials on the alternative route 
will begin as expeditiously as possible.
     The existing or the alternative route presents the lowest 
overall safety and security risk except under specific identified 
conditions. The lowest overall safety and security risk route will be 
used dependent upon the conditions. The conditions warranting route 
change must be clearly identified in the analyses and routing decision 
documentation.
     Based on the analyses, either the existing or alternative 
practicable route is identified as presenting the lowest overall safety 
and security risks; however, the rail carrier identifies measures to 
mitigate some of the risk and lower the overall risk of the other 
route. The route with the lowest overall safety and security risk 
should be selected and used. In documenting the route selection, the 
carrier should identify remediation measures to be implemented with a 
schedule of their

[[Page 76843]]

implementation and the route change upon completion.
    Clearly, other outcomes are possible. Once a route has been 
documented as presenting the lowest overall safety and security risk, 
the rail carrier must implement use of that route. If a carrier 
completes this process in July of a given analysis year, for example, 
then routing changes must be implemented as soon as possible. In all 
cases, the analyses and any routing changes resulting from the analyses 
must be completed and implemented by January 1 of the following year.

E. Storage, Delays in Transit, and Notification

    A difficult area to address in rail transportation is the safety 
and security of materials en route to their final destinations. 
Hazardous materials shipments may be delayed for any number of reasons: 
derailments, track repairs, cargo backlogs at ports, changes in 
security alert levels due to terror threats, or the presence of large 
events near key rail routes. Any or all of these may be reasons for 
shipments to be put on hold, stored, or delayed in transit. The 
resulting temporary storage in transport may encompass a wide variety 
of places, situations, and timeframes. Rail cars hauling hazardous 
materials may be placed on yard tracks with hundreds of other rail cars 
near densely populated urban areas, or a few cars may be placed on 
sidings in rural, less populated areas. Yards may not be fenced and 
tracks may traverse a number of public streets with at-grade crossings; 
thus, it is logistically very difficult to monitor each and every car 
containing hazardous materials at all times. Each in-transit storage 
scenario has its own set of individual risks and hazards.
    The HMR require offerors and carriers to address the en route 
security of hazardous materials, including hazardous materials stored 
incidental to movement. Thus, rail offerors and carriers are already 
required to address the security of in-transit storage facilities in 
their security plans. To emphasize this requirement, in this NPRM we 
are proposing to require rail carriers of the specified hazardous 
materials to include in security plans measures to limit access to 
materials stored or delayed in transit, measures to mitigate the risk 
to population centers associated with materials stored or delayed in 
transit, and measures to be taken in the event of escalating threat 
levels. Further, we are proposing to require rail carriers to inform a 
facility at which a rail car will be stored incidental to movement when 
the rail car is delivered to the facility so the facility can implement 
appropriate security measures. We are also proposing a similar 
requirement for rail carriers to inform the consignee facility when the 
rail car is delivered. We propose to require such notification as soon 
as practicable but in no case later than six hours after delivery. We 
invite commenters to address this proposed timeframe, particularly how 
such a requirement should be implemented for deliveries that occur 
outside of normal business hours.
    These procedures for notifying the interim storage facility and 
consignee of rail car delivery should ensure a positive transfer of 
responsibility and security for the car between the rail carrier and 
facility when the physical custody of the car changes. Carriers may 
want to consider what measures are currently in place for notification 
and how these provide confirmation of the facility's acceptance of the 
shipment. In addition, we are proposing to require rail carriers to 
work with shippers and consignees to minimize the time a rail car is 
stored incidental to movement to the extent practicable.
    In addition, PHMSA is proposing to require the carrier to notify 
the consignee if there is a significant unplanned delay during 
transportation of one of the hazardous materials specified in this 
proposed rulemaking, within 48 hours of identifying the significant 
delay, and provide a revised delivery schedule. Our goal is to 
strengthen the requirements of the current ``48-hour rule'' contained 
in Sec.  174.14, and to delegate more positive control and 
responsibility to the railroads for tracking and controlling the 
movement of railcars carrying hazardous materials. Such notification 
will also facilitate communication between the carrier in possession of 
the material and the consignee to ensure the hazardous materials 
specified in this NPRM do not inadvertently wait in transit.
    A significant delay would be one that: (1) Compromises the safety 
or security of the hazardous material shipped; or (2) delays the 
shipment beyond its normal expected or planned shipping time. A 
``significant delay'' must be determined on a case-by-case and hazmat-
by-hazmat basis. As a general rule, any delay beyond the normal or 
expected shipping time for the material qualifies as a ``significant 
delay.'' Because most railroads already have in place systems to 
monitor the transportation of certain types of shipments, and 
procedures for notification of consignees, we do not anticipate this 
requirement will involve major operational changes for any of the 
affected carriers.
    The AAR Circular OT-55-I contains operating practices the rail 
industry has already implemented for certain time-sensitive shipments. 
PHMSA's proposed requirement simply builds on those practices. In 
particular, the Circular addresses time-sensitive shipments, and 
specifies railroads are to be responsible for monitoring of shipments 
of such products and communicating with affected parties when the 
shipment may not reach its destination within the specified timeframe. 
Circular OT-55-I recommends delivery of time-sensitive materials should 
take place within 20 or 30 days, depending on the commodity.\9\ Because 
of the variety of materials covered by this proposed rulemaking, PHMSA 
has not designated specific delivery timeframe guidelines for these 
materials.
---------------------------------------------------------------------------

    \9\ The additional commodities listed in Circular OT-55-I and 
requiring a delivery time of 30 days are styrene monomer, stabilized 
and flammable liquid, n.o.s. (recycled styrene).
---------------------------------------------------------------------------

    With respect to notification to consignees in the event of a 
shipment delay, we have specified such notification to be made by a 
method acceptable to both carrier and consignee. We are aware many rail 
carriers have in place electronic systems where consignees may look up 
and track their expected rail shipments. This is an acceptable method 
of notification, as are e-mail, facsimile, or telephone. The important 
aspect of the notification is that both carrier and consignee agree 
upon the method.

F. Pre-Trip Security Inspections

    The HMR currently require rail carriers to inspect each rail car 
containing hazardous materials at ground level. From a safety 
perspective, the inspections are intended to address required markings, 
labels, placards, securement of closures, and leakage. Safety-related 
inspections currently required under the HMR do not specifically 
address the possibility a terrorist could introduce a foreign object on 
the tank car, the most pernicious being an IED. PHMSA proposes in this 
NPRM to increase the scope of the safety inspection to include a 
security inspection of all rail cars carrying placarded loads of 
hazardous materials. The primary focus of the enhanced inspection is to 
recognize an IED, which is a device fabricated in an improvised manner 
incorporating explosives or destructive, lethal, noxious, pyrotechnic, 
or incendiary chemicals in its design, and generally including a

[[Page 76844]]

power supply, a switch or timer, and a detonator or initiator.
    To guard against the possibility an unauthorized individual could 
tamper with rail cars containing hazardous materials to precipitate an 
incident during transportation, such as detonation or release using an 
IED, we are proposing to require the rail carriers' pre-trip 
inspections of placarded rail cars to include an inspection for signs 
of tampering with the rail car, including its seals and closures, and 
any item that does not belong, suspicious items, or IEDs. TSA will 
provide guidance to rail carriers to train employees on identifying 
IEDs and signs of tampering. Where an indication of tampering or a 
foreign object is found, the rail carrier must take appropriate actions 
to ensure the security of the rail car and its contents has not been 
compromised before accepting the rail car for further movement.
    The existing security plan requirements in the HMR specify each 
carrier's plan must include measures to address unauthorized access and 
en route security. While not explicitly stated in the regulatory text, 
it is expected these sections provide guidance to carrier personnel for 
the actions to be taken in the event of suspected incident involving 
unauthorized access or a security breach. The rail industry, in 
coordination with the AAR, has worked closely with Federal, State and 
local officials to improve the security of rail transportation. 
However, each carrier should review its existing security plan to 
ensure the measures are adequate to facilitate notification of railroad 
police, security or management personnel, as appropriate, in the event 
a suspicious item is identified during inspection. As evidenced by the 
coordinated attacks of September 11, 2001, prompt identification of a 
terrorist event may be critical to responding to and potentially 
minimizing the impacts of the event.

G. Enforcement

    As indicated above, DHS and DOT share responsibility for hazardous 
materials transportation security. PHMSA and FRA collaborated with TSA 
in developing this NRPM and will continue to work closely with TSA 
throughout the rulemaking process.
    FRA is the agency within DOT responsible for railroad safety, and 
is the primary enforcer of safety and security requirements in the HMR 
pertaining to rail shippers and carriers. FRA inspectors routinely 
review security plans during site visits and may offer suggestions for 
improving security plans, as appropriate. If an inspector's 
recommendations are not implemented, FRA may compel a rail shipper or 
carrier to make changes to its security plan through its normal 
enforcement process. FRA consults with TSA concerning railroad security 
issues in accordance with the FRA-TSA annex to the DOT-DHS MOU on 
transportation security.
    TSA's authority with respect to transportation security, including 
hazardous materials security, is comprehensive and supported with 
specific powers to assess threats to security; monitor the state of 
awareness and readiness throughout the rail sector; determine the 
adequacy of an owner or operator's security measures; and identify 
security gaps.
    With respect to enforcement of the proposed security requirements 
in this NPRM, FRA plans to work closely with TSA to develop a 
coordinated enforcement strategy to include both FRA and TSA inspection 
personnel. If in the course of an inspection of a railroad carrier, TSA 
identifies evidence of non-compliance with a DOT security regulation, 
TSA would provide the information to FRA and PHMSA for appropriate 
action. In this regard, TSA would not directly enforce DOT security 
rules, and would not initiate safety inspections. Consistent with the 
PHMSA-TSA and FRA-TSA annexes to the DOT-DHS MOU, all the involved 
agencies will cooperate to ensure coordinated, consistent, and 
effective activities related to rail security issues. Thus, DHS and DOT 
will leverage knowledge and expertise and coordinate security 
assessments and inspection and compliance actions by their respective 
inspectors to minimize disruption to railroad carriers being inspected; 
maximize the utilization of inspector resources to avoid duplication of 
effort; ensure consistent information is provided by both parties to 
the rail industry on security matters and safety matters with security 
implications; and ensure consistent enforcement action is taken for 
violations of Federal laws and regulations, and that the appropriate 
enforcement tools are used to address security-related problems.
    Generally, inspection personnel will not collect or retain security 
plans or the route selection documentation required by this proposed 
rule. However, inspection personnel may periodically perform rail 
carrier compliance inspections. In the event inspection personnel 
identify a need to collect a copy of the security plan or route review 
and selection documentation, all applicable laws and regulations, 
including the SSI regulations and Freedom of Information Act 
exemptions, will be reviewed to determine whether the information can 
be withheld from public release.
    We are not proposing to implement a submission and approval process 
for security plans and route analyses. The review and approval of 
hundreds of security plans and analyses would be extremely resource-
intensive and time-consuming. Inspectors will review security plans, 
route analyses, and route choices for compliance with applicable 
regulations. Upon completion of a compliance inspection, if the 
inspection identifies deficiencies in the route analyses, security 
plan, or manner in which the plan is implemented, the deficiencies will 
be addressed using FRA's existing enforcement procedures. Inspectors 
will have the discretion to issue notices of non-compliance, or to 
recommend assessment of civil penalties for probable violations of the 
regulations. Based on evidence indicating a rail carrier has not 
performed a reasoned good-faith analysis, carefully considering all 
available information including the safety and security risk analysis 
factors in the proposed Appendix D to Part 172, to choose the safest, 
most secure practicable route, the FRA Associate Administrator for 
Safety, in consultation with TSA, may require the railroad to use an 
alternate route until such time as the identified deficiencies are 
satisfactorily addressed. However, FRA would only require an alternate 
route if it concludes the carrier's analysis did not satisfy the 
minimum criteria for performing a safety and security risk analysis, as 
established by the proposed Sec.  172.820 and Appendix D to Part 172. 
Moreover, we would expect to mandate route changes only for the most 
exigent circumstances. FRA will develop procedures for rail carriers to 
appeal a decision by the FRA Associate Administrator for Safety to 
require the use of an alternative route, including information a rail 
carrier should include in its appeal, the time frame for filing an 
appeal, and the process to be utilized by FRA in considering the 
appeal, including any consultations with TSA or PHMSA.

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under authority of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.) Section 5103(b) of Federal hazmat law authorizes the Secretary of 
Transportation to prescribe regulations for the safe transportation, 
including security, of hazardous

[[Page 76845]]

materials in intrastate, interstate, and foreign commerce.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is a significant regulatory action under section 
3(f) Executive Order 12866 and, therefore, was reviewed by the Office 
of Management and Budget (OMB). The proposed rule is a significant rule 
under the Regulatory Policies and Procedures order issued by the U.S. 
Department of Transportation (44 FR 11034). We completed a regulatory 
evaluation and placed it in the docket for this rulemaking.
    Generally, costs associated with the provisions of this NPRM 
include costs for collecting and retaining data and performing the 
mandated route safety and security analysis. We estimate total 20-year 
costs to gather the data and conduct the analyses proposed in this NPRM 
to be about $20 million (discounted at 7%).
    In addition, rail carriers and shippers may incur costs associated 
with rerouting shipments or mitigating safety and security 
vulnerabilities identified as result of their route analyses. Because 
the NPRM builds on the current route evaluation and routing practices 
already in place for most, if not all, railroads that haul the types of 
hazardous materials covered in the proposal, we do not expect rail 
carriers to incur significant costs associated with rerouting. The 
railroads already conduct route analyses and re-routing--in line with 
what this rule would require--in accordance with the Association of 
American Railroads (AAR) Circular OT-55-I. Moreover, the smaller 
carriers (regionals and short lines) are unlikely to have access to 
many alternative routes, and where an alternative does exist, it is not 
likely to be safer and more secure than the route they are currently 
using. If there is an alternative route the carrier determines to be 
safer and more secure than the one it is currently using, the carrier 
could well switch routes, even in the absence of a regulatory 
requirement, because it reduces the overall risk to its operations. 
Such reduction in risk offers a significant economic advantage in the 
long run.
    Identifying and mitigating security vulnerabilities along rail 
routes is currently being done by the railroads. We believe that 
readily available ``high-tech'' and ``low-tech'' measures are being 
quickly implemented. The development, procurement and wide-spread 
installation of the more technology-driven alternatives could take 
several years. PHMSA's previous security rule requires the railroads to 
have a security plan that includes en route security. This existing 
regulatory requirement, coupled with the industry's generally risk-
averse nature, is driving the railroads to enhance their security 
posture. As with routing decisions, such reduction in risk offers a 
significant economic advantage in the long run. Therefore, we expect 
that the cost of mitigation attributed solely to this proposal will not 
be significant. We note in this regard that safety and security 
measures are intertwined and often work hand in hand to complement each 
other; therefore, separating security costs from safety costs is not 
feasible. Overall transportation costs should not substantially 
increase because of this rule.
    Estimating the security benefits of the proposed new requirements 
is challenging. Accident causation probabilities based on accident 
histories can be estimated in a way that the probability of a criminal 
or terrorist act cannot. The threat of an attack is virtually 
impossible to assess from a quantitative standpoint. It is undeniable 
hazardous materials in transportation are a possible target of 
terrorism or sabotage. The probability hazardous materials will be 
targeted is, at best, a guess. Similarly, the projected outcome of a 
terrorist attack cannot be precisely estimated. It is assumed choices 
will be made to maximize consequences and damages. Scenarios can be 
envisioned where hazardous materials could be used to inflict hundreds 
or even thousands of fatalities. To date, there have been no known or 
specific threats against freight railroads, rail cars, or tank cars, 
which makes all of these elements even more difficult to quantify. 
However, the fact an event is infrequent or has never occurred does not 
diminish the risk or possibility of such an event occurring.
    Security plans lower risk through the identification and mitigation 
of vulnerabilities. Therefore, rail carriers and the public benefit 
from the development and implementation of security plans. However, 
forecasting the benefits likely to result from plan clarifications 
requires the exercise of judgment and necessarily includes subjective 
elements.
    The major benefits expected to result from the provisions of this 
NPRM relate to enhanced safety and security of rail shipments of 
hazardous materials. We estimated the costs of a major accident or 
terrorist incident by calculating the costs of the January 2005 
Graniteville, South Carolina, accident. This accident killed 9 people 
and injured 554 more. In addition, the accident necessitated the 
evacuation of more than 5,400 people. Total costs associated with the 
Graniteville accident are almost $126 million. The consequences of an 
intentional release by a criminal or terrorist action, particularly in 
an urban area, likely would be more severe than the Graniteville 
accident because an intentional act would be designed to inflict the 
most damage possible. These proposals are intended to reduce the safety 
and security risks associated with the transportation of the specified 
hazardous materials. If the measures proposed in this NPRM prevent just 
one major accident or intentional release over a twenty-year period, 
the resulting benefits would more than justify the potential compliance 
costs. We believe that they could.

C. Executive Order 13132

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Orders 13132 
(``Federalism'') and 13175 (``Consultation and Coordination with Indian 
Tribal Governments''). This proposed rule would not have any direct 
effect on the States, their political subdivisions, or Indian tribes; 
it would not impose any compliance costs; and it would not affect the 
relationships between the national government and the States, political 
subdivisions, or Indian tribes, or the distribution of power and 
responsibilities among the various levels of government.
    In its March 25, 2003 final rule in Docket No. HM-232, PHMSA 
specifically required rail carriers to address the en route security of 
hazardous materials during transportation. We decided that the 
specifics of routing rail shipments of hazardous materials, a component 
of en route security, should be left to the judgment of rail carriers. 
See 68 FR at 14513, 14516. We have concluded that, under Federal 
hazardous material transportation law (49 U.S.C. 5125), the Federal 
Rail Safety Act (49 U.S.C. 20106), and the Commerce Clause of the U.S. 
Constitution, PHMSA's decision to leave the routing of hazardous 
materials shipments to the judgment of rail carriers preempts all 
States, their political subdivisions, and Indian tribes from 
prescribing or restricting routes for rail shipments of hazardous 
materials. See CSX Transportation, Inc. v. Williams, 406 F.3d 667 (D.C. 
Cir. 2005). This proposed rule would require rail carriers to consider 
certain factors in selecting routes for transporting shipments of 
hazardous materials, but it does not change PHMSA's basic approach in 
HM-232 of leaving ultimate hazardous materials routing decisions to the 
rail carriers. Accordingly, this

[[Page 76846]]

proposed rule would have the same preemptive effect upon States, 
political subdivisions, or Indian tribes, and the consultation and 
funding requirements of Executive Orders 13132 and 13175 do not apply. 
In view of the high level of interest in the issue, we are including a 
statement in the proposed text of the regulation to highlight the 
preemptive effect of the provisions of this proposed rule.
    Nonetheless, we will invite interested States, political 
subdivisions, and Indian tribes to submit comments on this proposed 
rule and consult directly with PHMSA, through invitations to 
organizations such as the National Governors Association, Council of 
State Governments, National Conference of State Legislatures, United 
States Conference of Mayors, National Association of Counties, National 
League of Cities, and National Congress of American Indians, and 
directly to those jurisdictions which have already expressed concerns 
about routes of rail shipments of hazardous materials.

D. Executive Order 13175

    We analyzed this proposed rule in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not significantly or uniquely affect tribes and does not 
impose substantial and direct compliance costs on Indian tribal 
governments, the funding and consultation requirements of Executive 
Order 13175 do not apply, and a tribal summary impact statement is not 
required.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities. 
An agency must conduct a regulatory flexibility analysis unless it 
determines and certifies that a rule is not expected to have a 
significant impact on a substantial number of small entities.
    The Small Business Administration (SBA) permits agencies to alter 
the SBA definitions for small businesses upon consultation with SBA and 
in conjunction with public comment. Pursuant to this authority, FRA 
published a final rule (68 FR 24891; May 9, 2003) defining a ``small 
entity'' as a railroad meeting the line haulage revenue requirements of 
a Class III railroad. Currently, the revenue requirements are $20 
million or less in annual operating revenue. This is the definition 
used by PHMSA to determine the potential impact of this NPRM on small 
entities.
    Not all small railroads will be required to comply with the 
provisions of this NPRM. Most of the 510 small railroads transport no 
hazardous materials. PHMSA and FRA estimate there are about 100 small 
railroads--or 20% of all small railroads--that could potentially be 
affected by this NPRM. Cost impacts for small railroads will result 
primarily from the costs for data collection and analysis. PHMSA 
estimates the cost to each small railroad to be $2,776.70 per year over 
20 years, discounted at 7%. Based on small railroads' annual operating 
revenues, these costs are not significant. Small railroads' annual 
operating revenues range from $3 million to $20 million. Thus, the 
costs imposed by the provisions of this NPRM amount to between 0.01% 
and 0.09% of a small railroad's annual operating revenue.
    This NPRM will not have a noticeable impact on the competitive 
position of the affected small railroads or on the small entity segment 
of the railroad industry as a whole. The small entity segment of the 
railroad industry faces little in the way of intramodal competition. 
Small railroads generally serve as ``feeders'' to the larger railroads, 
collecting carloads in smaller numbers and at lower densities than 
would be economical for the larger railroads. They transport those cars 
over relatively short distances and then turn them over to the larger 
systems which transport them relatively long distances to their 
ultimate destination, or for handoff back to a smaller railroad for 
final delivery. Although there are situations in which their relative 
interests may not always coincide, the relationship between the large 
and small entity segments of the railroad industry is more supportive 
and co-dependent than competitive.
    It is also extremely rare for small railroads to compete with each 
other. As mentioned above, small railroads generally serve smaller, 
lower density markets and customers. They exist, and often thrive, 
doing business in markets where there is not enough traffic to attract 
the larger carriers which are designed to handle large volumes over 
distance at a profit. As there is usually not enough traffic to attract 
service by a large carrier, there is also not enough traffic to sustain 
more than one smaller carrier. In combination with the huge barriers to 
entry in the railroad industry (need to own right-of-way, build track, 
purchase fleet, etc.), small railroads rarely find themselves in 
competition with each other. Thus, even to the extent the rule may have 
an economic impact, it should have no impact on the intramodal 
competitive position of small railroads.
    Based on the foregoing discussion and the more detailed analysis in 
the regulatory evaluation for this NPRM, I certify that the provisions 
of this NPRM, if adopted, will not have a significant impact on a 
substantial number of small entities.
    We encourage small entities potentially affected by this rulemaking 
to participate in the public comment process by submitting comments on 
this assessment or this rulemaking. Comments will be addressed in the 
final document.
    We developed this proposed rule in accordance with Executive Order 
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'') 
and DOT's procedures and policies to promote compliance with the 
Regulatory Flexibility Act to ensure potential impacts of draft rules 
on small entities are properly considered.

F. Paperwork Reduction Act

    PHMSA currently has an approved information collection under OMB 
Control No. 2137-0612, ``Hazardous Materials Security Plans'' expiring 
April 30, 2006. We are currently in the process of developing a request 
for renewal of this information collection approval for submission to 
OMB. We estimate an additional increase in burden as a result of this 
proposed rulemaking.
    Section 1320.8(d), Title 5, Code of Federal Regulations requires 
the PHMSA provide interested members of the public and affected 
agencies an opportunity to comment on information collection and 
recordkeeping requests. This notice identifies proposed new 
requirements to the current information collection under OMB Control 
No. 2137-0612. We estimate there will be a small increase in burden 
resulting from the new proposed requirements regarding rail shipments 
of hazardous materials in this rulemaking. PHMSA will submit this 
revised information collection to OMB for approval based on the 
requirements in this proposed rule. We estimate the additional 
information collection burden as proposed under this rulemaking is as 
follows:
    OMB No. 2137-0612, ``Hazardous Materials Security Plans''
    First Year Annual Burden:
    Total Annual Number of Respondents: 139.
    Total Annual Responses: 139.
    Total Annual Burden Hours: 51,469.
    Total Annual Burden Cost: $3,130,859.27.
    Subsequent Year Burden:

[[Page 76847]]

    Total Annual Number of Respondents: 139.
    Total Annual Responses: 139.
    Total Annual Burden Hours: 13,677.
    Total Annual Burden Cost: $831,971.91.
    PHMSA specifically requests comments on the information collection 
and recordkeeping burden associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.
    Address written comments to the Dockets Unit as identified in the 
ADDRESSES section of this rulemaking. We must receive your comments 
prior to the close of the comment period identified in the DATES 
section of this rulemaking. Under the Paperwork Reduction Act of 1995, 
no person is required to respond to an information collection unless it 
displays a valid OMB control number. If these proposed requirements are 
adopted in a final rule with any revisions, PHMSA will resubmit any 
revised information collection and recordkeeping requirements to the 
OMB for re-approval.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$120.7 million or more to either state, local, or tribal governments, 
in the aggregate, or to the private sector, and is the least burdensome 
alternative to achieve the objective of the rule.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major Federal actions and prepare a detailed statement 
on actions significantly affecting the quality of the human 
environment.
    The hazardous materials regulatory system is a risk management 
system that is prevention-oriented and focused on identifying a hazard 
and reducing the probability and quantity of a hazardous materials 
release. Hazardous materials are categorized by hazard analysis and 
experience into hazard classes and packing groups. The regulations 
require each shipper to class a material in accordance with these 
hazard classes and packing groups; the process of classifying a 
hazardous material is itself a form of hazard analysis. Further, the 
regulations require the shipper to communicate the material's hazards 
by identifying the hazard class, packing group, and proper shipping 
name on shipping papers and with labels on packages and placards on 
transport vehicles. Thus, the shipping paper, labels, and placards 
communicate the most significant findings of the shipper's hazard 
analysis. A hazardous material is assigned to one of three packing 
groups based upon its degree of hazard, from a high hazard Packing 
Group I material to a low hazard Packing Group III material. The 
quality, damage resistance, and performance standards for the 
packagings authorized for the hazardous materials in each packing group 
are appropriate for the hazards of the material transported. The 
current security plan requirements in Subpart I of Part 172 of the HMR 
are also based on a prevention-oriented risk management approach 
focused on identifying security risks and vulnerabilities and 
implementing measures to mitigate the identified risks and 
vulnerabilities.
    Hazardous materials are transported by aircraft, vessel, rail, and 
highway. The potential for environmental damage or contamination exists 
when packages of hazardous materials are involved in transportation 
accidents. Railroads carry over 1.7 million shipments of hazardous 
materials annually, including millions of tons of explosive, poisonous, 
corrosive, flammable and radioactive materials. The need for hazardous 
materials to support essential services means transportation of highly 
hazardous materials is unavoidable. However, these shipments frequently 
move through densely populated or environmentally sensitive areas where 
the consequences of an incident could be loss of life, serious injury, 
or significant environmental damage. The ecosystems that could be 
affected by a hazardous materials release during transportation include 
air, water, soil, and ecological resources (for example, wildlife 
habitats). The adverse environmental impacts associated with releases 
of most hazardous materials are short-term impacts that can be greatly 
reduced or eliminated through prompt clean-up of the accident scene. To 
address the safety and environmental risks associated with the 
transportation of hazardous materials by rail, rail tank cars must 
conform to rigorous design, manufacturing, and requalification 
requirements. The result is that tank cars are robust packagings, 
equipped with features such as shelf couplers, head shields, thermal 
insulation, and bottom discontinuity protection that are designed to 
ensure that a tank car involved in an accident will survive the 
accident intact.
    In this NPRM, we are proposing to adopt regulations to enhance the 
safety and security of certain hazardous materials transported by rail. 
Specifically, we are proposing to require rail carriers to make routing 
decisions for specified shipments of hazardous materials based on an 
analysis of both the safety and security risks of alternative routing 
options. Requiring rail carriers to take safety and security issues 
into account when making hazardous materials routing decisions will 
reduce the possibility of an accidental or intentional release into the 
environment and consequent environmental damage. If adopted, we expect 
the requirements proposed in this NPRM to result in the selection by 
rail carriers of safer, more secure routes, the use of which would 
reduce the likelihood of a release of hazardous materials into the 
environment. Therefore, we have preliminarily determined that there are 
no significant environmental impacts associated with the proposals in 
this NPRM and that to the extent there might be any environmental 
impacts, they would be beneficial given the reduced likelihood of a 
hazardous materials release.
    We invite commenters to address the possible beneficial and/or 
adverse environmental impacts of the proposals in this NPRM. We will 
consider comments received in response to this NPRM in our assessment 
of the environmental impacts of a final rule on this issue.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://dms.dot.gov.

[[Page 76848]]

List of Subjects

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Packaging and containers, Reporting and recordkeeping requirements.

49 CFR Part 174

    Hazardous materials transportation, Rail carriers, Reporting and 
recordkeeping requirements.

    In consideration of the foregoing, we propose to amend title 49 
Chapter I, Subchapter C, as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    1. The authority citation for part 172 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

Subpart I--Safety and Security Plans

    2. Revise the title of subpart I of part 172 to read as set forth 
above.
    3. Add new Sec.  172.820, to read as follows:


Sec.  172.820  Additional planning requirements for transportation by 
rail.

    (a) General. Each rail carrier transporting in commerce one or more 
of the following materials must develop and implement the additional 
safety and security planning requirements of this section:
    (1) More than 2,268 kg (5,000 lbs) in a single carload of a 
Division 1.1, 1.2 or 1.3 explosive;
    (2) A bulk quantity of a material poisonous by inhalation, as 
defined in Sec.  171.8 of this subchapter; or
    (3) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec.  173.403 of this subchapter.
    (b) Commodity data. No later than 90 days after the end of each 
calendar year, a rail carrier must compile commodity data, as follows:
    (1) Commodity data must be collected by route, a line segment or 
series of line segments as aggregated by the rail carrier. Within the 
rail carrier selected route, the commodity data must identify the 
geographic location of the route and the total number of shipments by 
UN identification number for the materials specified in paragraph (a) 
of this section.
    (2) A carrier may compile commodity data, by UN number, for all 
Class 7 and Division 6.1 materials transported instead of only the 
highway route controlled quantity or poison inhalation hazard 
materials.
    (c) Rail transportation route analysis. For each calendar year, a 
rail carrier must analyze the safety and security risks for the 
transportation route(s), identified in the commodity data collected as 
required by paragraph (b) of this section. The route analysis must be 
in writing and include the factors contained in Appendix D to this 
part, as applicable. The safety and security risks present must be 
analyzed for the route and railroad facilities along the route.
    (d) Alternative route analysis. For each calendar year, a rail 
carrier must identify the next most commercially practicable route over 
which it has authority to operate, if an alternative exists, as an 
alternative route for each of the transportation routes analyzed in 
accordance with paragraph (c) of this section. The carrier must perform 
a safety and security risk assessment of the alternative route for 
comparison to the route analysis prescribed in paragraph (c) of this 
section. The alternative route analysis must be in writing and include 
the criteria in Appendix D of this part. The written alternative route 
analysis must also consider:
    (1) Safety and security risks presented by use of the alternative 
route;
    (2) Comparison of the safety and security risks of the alternative 
to the primary rail transportation route;
    (3) Any remediation or mitigation measures implemented on the 
primary or alternative route; and
    (4) Potential economic effects of using the alternative route.
    (e) Route Selection. A carrier must use the analysis performed as 
required by paragraphs (c) and (d) of this section to select the route 
to be used in moving the materials covered by paragraph (a) of this 
section. The carrier must consider any remediation measures implemented 
on a route. Using this process, the carrier must at least annually 
review and select the practicable route posing the least overall safety 
and security risk. The rail carrier must retain in writing all route 
review and selection decision documentation and restrict the 
distribution, disclosure, and availability of information contained in 
the route analysis to persons with a need-to-know, as described in 
parts 15 and 1520 of this title. This documentation should include, but 
is not limited to, comparative analyses, charts, graphics or rail 
system maps.
    (f) Completion of route analyses. (1) The rail transportation route 
analysis, alternative route analysis, and route selection process 
required under paragraphs (c), (d), and (e) of this section must be 
completed no later than the end of the calendar year following the year 
to which the analyses apply (e.g., the analyses required for calendar 
year 2008 must be completed by the end of 2009).
    (2) At least once every five years, the analyses and route 
selection determinations required under paragraphs (c), (d), and (e) of 
this section must include a comprehensive, system-wide review of all 
operational changes, infrastructure modifications, traffic adjustments, 
or other changes affecting the safety or security of the movements of 
the materials specified in paragraph (a) of this section that were 
implemented during the five-year period.
    (3) A rail carrier need not perform a rail transportation route 
analysis, alternative route analysis, or route selection process for 
any hazardous material other than the materials specified in paragraph 
(a) of this section.
    (g) Limitations on actions by States, local governments, and Indian 
tribes. Unless PHMSA grants a waiver of preemption under 49 U.S.C. 
5125(e), a State, political subdivision of a State, or Indian tribe may 
not designate, limit, or prohibit the use of any rail line (other than 
a rail line owned by the State, political subdivision, or Indian tribe) 
for the transportation of hazardous material, including but not limited 
to the materials specified in paragraph (a) of this section.
    (h) Storage, delays in transit, and notification. For the materials 
specified in paragraph (a) of this section, each rail carrier must 
ensure the safety and security plan it develops and implements in 
accordance with this subpart includes all of the following:
    (1) A procedure for consulting with offerors and consignees to 
minimize to the extent practicable the period of time during which the 
material is stored incidental to movement (see Sec.  171.8 of this 
subchapter).
    (2) A procedure for informing the operator of the facility at which 
the material will be stored incidental to movement that the rail car 
containing the material has been delivered to the facility. Such 
notification should occur as soon as practicable, but in no case later 
than 6 hours after delivery.
    (3) Measures to limit unauthorized access to the materials during 
storage or delays in transit.
    (4) Measures to mitigate risk to population centers associated with 
in-transit storage.

[[Page 76849]]

    (5) Measures to be taken in the event of an escalating threat level 
for materials stored in transit.
    (6) Procedures for notifying the consignee in the event of a 
significant delay during transportation; such notification must be 
completed within 48 hours after the carrier has identified the delay 
and must include a revised delivery schedule. Notification should be 
made by a method acceptable to both carrier and consignee. A 
significant delay is one that compromises the safety or security of the 
hazardous material or delays the shipment beyond its normal expected or 
planned shipping time.
    (7) A procedure to inform the consignee that the material has been 
delivered to its facility. Such notification should occur as soon as 
practicable, but in no case later than 6 hours after delivery.
    (i) Recordkeeping. (1) Each rail carrier must maintain a copy of 
the information specified in paragraphs (b), (c), (d), (e), and (f) of 
this section or an electronic image of it, that is accessible at or 
through its principal place of business and must make the record 
available, upon request, to an authorized official of the Department of 
Transportation at reasonable times and locations. Records must be 
retained for a minimum of two years.
    (2) Each rail carrier must restrict the distribution, disclosure, 
and availability of information collected or developed in accordance 
with paragraphs (b), (c), (d), (e), and (f) of this section to persons 
with a need-to-know, as described in parts 15 and 1520 of this title.
    (j) Compliance and enforcement. If the carrier's route selection 
documentation and underlying analyses is found to be deficient, the 
carrier may be required to revise the analyses or make changes in route 
selection. If a chosen route is found not to be the safest and most 
secure commercially practicable route available, the FRA Associate 
Administrator for Safety, in consultation with TSA, may require the use 
of an alternative route.
    3. Add new Appendix D to part 172, to read as follows:

Appendix D to Part 172--RAIL RISK ANALYSIS FACTORS

    This appendix sets forth the minimum criteria that must be 
considered by rail carriers when performing the safety and security 
risk analyses required by Sec.  172.820. The risk analysis to be 
performed may be quantitative, qualitative, or a combination of 
both. In addition to clearly identifying the hazardous material(s) 
and route(s) being analyzed, the analysis must provide a thorough 
description of the threats, identified vulnerabilities, and 
mitigation measures implemented to address identified 
vulnerabilities.
    In evaluating the safety and security of hazardous materials 
transport, selection of the route for transportation is critical. 
For the purpose of rail transportation route analysis, as specified 
in Sec.  172.820(c) and (d), a route may include the point where the 
carrier takes possession of the material and all track and railroad 
facilities up to the point where the material is relinquished to 
another entity. Railroad facilities include, but are not limited to, 
classification and switching yards, and sidings or other locations 
where storage in-transit occurs. Each rail carrier will act in good 
faith to communicate with its shippers, consignees, and interlining 
partners to ensure the safety and security of shipments during all 
stages of transportation.
    Because of the varying operating environments and interconnected 
nature of the rail system, each carrier must select and document the 
analysis method/model used and identify the routes to be analyzed.
    Factors to be considered in the performance of this safety and 
security risk analysis include:
    1. Volume of hazardous material transported;
    2. Rail traffic density;
    3. Trip length for route;
    4. Presence and characteristics of railroad facilities;
    5. Track type, class, and maintenance schedule;
    6. Track grade and curvature;
    7. Presence or absence of signals and train control systems 
along the route (``dark'' versus signaled territory);
    8. Presence or absence of wayside hazard detectors;
    9. Number and types of grade crossings;
    10. Single versus double track territory;
    11. Frequency and location of track turnouts;
    12. Proximity to iconic targets;
    13. Environmentally sensitive or significant areas;
    14. Population density along the route;
    15. Venues along the route (stations, events, places of 
congregation);
    16. Emergency response capability along the route;
    17. Areas of high consequence along the route;
    18. Presence of passenger traffic along route (shared track);
    19. Speed of train operations;
    20. Proximity to en-route storage or repair facilities;
    21. Known threats (the Transportation Security Administration 
and Federal Railroad Administration will provide non-public threat 
scenarios for carrier use in the development of the route 
assessment);
    22. Measures in place to address apparent safety and security 
risks;
    23. Availability of alternative routes;
    24. Past incidents;
    25. Overall times in transit;
    26. Training and skill level of crews; and
    27. Impact on rail network traffic and congestion.

PART 174--CARRIAGE BY RAIL

    4. The authority citation for part 174 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

    5. Revise Sec.  174.9 to read as follows:


Sec.  174.9  Safety and security inspection and acceptance.

    (a) At each location where a hazardous material is accepted for 
transportation or placed in a train, the carrier must inspect each rail 
car containing the hazardous material, at ground level, for required 
markings, labels, placards, securement of closures, and leakage. These 
inspections may be performed in conjunction with inspections required 
under parts 215 and 232 of this title.
    (b) For each rail car containing an amount of hazardous material 
requiring placarding in accordance with Sec.  172.504 of this 
subchapter, the carrier must visually inspect the rail car at ground 
level for signs of tampering, including closures and seals, for 
suspicious items or items that do not belong, and for other signs that 
the security of the car may have been compromised, including the 
presence of an improvised explosive device. As used in this section, an 
improvised explosive device is a device fabricated in an improvised 
manner incorporating explosives or destructive, lethal, noxious, 
pyrotechnic, or incendiary chemicals in its design, and generally 
includes a power supply, a switch or timer, and a detonator or 
initiator. The carrier should be particularly attentive to signs that 
security of rail cars transporting materials covered by Sec.  172.820 
of this subchapter, rail carload quantities of ammonium nitrate or 
ammonium nitrate mixtures in solid form, or hazardous materials of 
interest based on current threat information may have been compromised.
    (c) If a carrier determines that a rail car does not conform to the 
safety requirements of this subchapter, the carrier may not forward or 
transport the rail car until the deficiencies are rectified or the car 
is approved for movement in accordance with Sec.  174.50.
    (d) Where an indication of tampering or suspicious item is found, a 
carrier must take appropriate actions to ensure the security of the 
rail car and its contents has not been compromised before accepting the 
rail car for further movement. If the carrier determines the security 
of the rail car has been compromised, the carrier must take action, in 
conformance with its existing security plan (see subpart I of part 172 
of this subchapter) to address the

[[Page 76850]]

security issues before forwarding the rail car for further movement.

    Issued in Washington, DC on December 12, 2006, under the 
authority delegated in 49 CFR Part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. E6-21518 Filed 12-20-06; 8:45 am]
BILLING CODE 4910-60-P