[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Rules and Regulations]
[Pages 20752-20773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8185]



[[Page 20751]]

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Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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Federal Railroad Administration



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49 CFR Parts 172, 174, and 209



Hazardous Materials: Enhancing Rail Transportation Safety and Security 
for Hazardous Materials Shipments; Railroad Safety Enforcement 
Procedures; Interim Final Rule and Proposed Rule

  Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / 
Rules and Regulations  

[[Page 20752]]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 174

[Docket No. PHMSA-RSPA-2004-18730] \1\
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: Interim final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in 
coordination with the Federal Railroad Administration and the 
Transportation Security Administration, is revising the current 
requirements in the Hazardous Materials Regulations applicable to the 
safe and secure transportation of hazardous materials transported in 
commerce by rail. This interim final rule fulfills requirements in 
Section 1551 of the Implementing Recommendations of the 9/11 Commission 
Act of 2007.
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    \1\ This rulemaking was formerly designated as HM-232E; however, 
with the transition to a new government-wide regulations portal, 
docket number nomenclature has since changed. Some references to the 
old docket number are still present in this document.
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    In this interim final rule, we are requiring rail carriers to 
compile annual data on certain shipments of explosive, toxic by 
inhalation, and radioactive materials, use the data to analyze safety 
and security risks along rail routes where those materials are 
transported, assess alternative routing options, and make routing 
decisions based on those assessments. We are also clarifying rail 
carriers' responsibility to address in their security plans issues 
related to en route storage and delays in transit. In addition, we are 
adopting a new requirement for rail carriers to inspect placarded 
hazardous materials rail cars for signs of tampering or suspicious 
items, including improvised explosive devices.

DATES: This interim final rule is effective June 1, 2008.
    Voluntary Compliance Date: Voluntary compliance is authorized as of 
May 16, 2008.
    Comments: Comments must be received by May 16, 2008.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-RSPA-2004-18730 by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rule. Note that all comments received will be 
posted without change, including any personal information provided. 
Please see the Privacy Act section of the preamble.

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

SUPPLEMENTARY INFORMATION: 

I. Background

    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. 
They are used for farming and medical applications, and in 
manufacturing, mining, and other industrial processes. Railroads 
annually carry over 1.7 million shipments of hazardous materials 
including explosive, poisonous, corrosive, flammable and radioactive 
materials. As common carriers, railroads are obligated to accept 
hazardous cargo that is tendered in compliance with legal requirements, 
whether or not they would choose to do so for business reasons. This 
common carrier obligation ensures that offerors are given the 
opportunity to ship hazardous materials, including the most dangerous 
hazardous materials, in the safest, most secure manner possible.
    The need for hazardous materials to support essential services 
means transportation of 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, property damage, and/or 
significant environmental damage.
    The same characteristics of hazardous materials that cause 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; these identifiers may 
also identify hazardous materials shipments as targets of opportunity 
for terrorists or other criminals.
    A primary safety and security concern related to the rail 
transportation of hazardous materials is the prevention of 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 rail 
cars in close 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, which resulted in 
9 fatalities and 554 injuries--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 both 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.
    DHS is the lead agency for transportation security and has shared 
responsibility with DOT for hazardous materials transportation 
security. DOT consults and coordinates on security-related hazardous 
materials transportation requirements to ensure they are consistent 
with DHS's overall security policy goals. Both departments

[[Page 20753]]

work to ensure that the regulated industry is not confronted with 
inconsistent security guidance or requirements promulgated by the 
government.
    The Federal Hazardous Materials Transportation Law (Federal Hazmat 
Law, 49 U.S.C. 5101 et seq.), 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 the Pipeline and Hazardous Materials Safety 
Administration (PHMSA). 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. In accordance with its 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. 68 FR 14509 (March 25, 
2003). These 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, we stated that these 
regulations were ``the first step in what may be a series of 
rulemakings to address the security of hazardous materials shipments.'' 
68 FR 14511. PHMSA also noted that the Transportation Security 
Administration (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 * * *'' Id.
    Under Section 101(a) of the Aviation and Transportation Security 
Act (ATSA) (codified at 49 U.S.C. 114) and 49 CFR 1502.1, TSA has broad 
responsibility and authority for ``security in all modes of 
transportation * * *'' ATSA authorizes TSA to take immediate action to 
protect transportation security (49 U.S.C. 114(d)(2)), and to:

--Develop policies, strategies and plans for dealing with threats to 
transportation (Sec.  114(f)(3));
--Assess intelligence and other information in order to identify 
individuals who pose a threat to transportation security (Sec.  
114(f)(1));
--Coordinate countermeasures with other Federal agencies to address 
such threats (Sec.  114(f)(4));
--Enforce security-related regulations and requirements (Sec.  
114(f)(7));
--Ensure the adequacy of security measures for the transportation of 
cargo (Sec.  114(f)(10));
--Oversee the implementation and ensure the adequacy of security 
measures at transportation facilities (Sec.  114(f)(11));
--Carry out other appropriate duties relating to transportation 
security (Sec.  114(f)(15)); and
--Serve as the primary liaison for transportation security to the 
intelligence and law enforcement communities (Sec.  114(f)(5)).

    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.
    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, the Federal Railroad Administration (FRA) and TSA 
signed an annex to address each agency's roles and responsibilities for 
rail transportation security. The FRA-TSA annex provides that ``DHS 
holds lead authority, primary responsibility and dedicated resources 
for security activities in all modes of transportation including 
rail.'' Concerning safety, 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. In accordance with the principles outlined in the PHMSA-TSA 
and FRA-TSA annexes, PHMSA and FRA collaborated with TSA to develop 
this interim final rule.

II. Current Hazardous Materials Transportation Safety and Security 
Requirements

 A. The Hazardous Materials Regulations

    In accordance with Sec.  172.704(a) of the HMR, all hazardous 
materials employees (hazmat employees) are required to fulfill the 
security awareness training, and employees responsible for developing 
and implementing security plans must also complete in-depth security 
training. Subpart I of 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. A person is required to develop and implement a security plan if 
he or she transports any of the following materials in commerce:
    (1) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined at 49 CFR 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 171.8, that meets the criteria for 
Hazard Zone A, as specified in 49 CFR 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 49 CFR 
part 172;
    (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.
    Subpart I of part 172 sets forth general requirements for a 
security plan's components rather than a prescriptive

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list of specific items that must be included. 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 according to the nature and 
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 background 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 designed to limit or mitigate 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 mitigate security risks during transportation, 
including the security of shipments stored temporarily en route to 
their destinations.
    Under these standards, security plans can and should differ from 
one offeror or carrier to another. In each case, the plan should be 
based on the offeror's or 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.
    The HMR also contain limited provisions intended to minimize delays 
in transportation. Pursuant to Sec.  174.14 of the HMR, rail carriers 
are required to expedite the movement of hazardous materials shipments. 
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 such materials spend in 
transportation, thus minimizing the exposure of hazmat shipments to 
accidents, derailments, unintended releases, or tampering.

B. AAR Circular OT-55-I

    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. 
These recommended practices were originally implemented by all of the 
Class 1 rail carriers operating in the United States; short-line 
railroads are also signatories to the most recent version of this 
document, known as Circular OT-55-I, issued by AAR on July 17, 2006. 
The Circular details railroad operating practices for: (1) Designating 
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 as ``key trains;'' (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 tank cars; (6) 
assisting communities with emergency response training and information; 
(7) shipper notification procedures; and (8) the handling of time-
sensitive materials.

    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. This interim 
final rule in part reflects the recommended practices mentioned above, 
which are already in wide use across the rail industry.

III. Notices of Proposed Rulemaking

    On December 21, 2006, PHMSA, in coordination with FRA and TSA, 
published a notice of proposed rulemaking (NPRM) under Docket HM-232E 
(71 FR 76834) proposing to revise the current requirements in the HMR 
applicable to the safe and secure transportation of hazardous materials 
by rail. Specifically, we proposed 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 routes where those 
materials are transported, assess alternative routing options, and make 
routing decisions based on those assessments. We also proposed 
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.
    Also on December 21, 2006, TSA published an NPRM proposing security 
regulations that would cover a broader spectrum of rail transportation, 
including passenger service. (71 FR 76852; see also TSA's Initial 
Regulatory Flexibility Analysis, 72 FR 7376 [Feb. 15, 2007].) The TSA 
proposal is intended to reduce security risks associated with certain 
hazardous materials shipments in designated High Threat Urban Areas 
(HTUAs) and to raise the overall security baseline for freight railroad 
shipments. (TSA has identified 46 geographic areas as HTUAs warranting 
special consideration based on population and risk assessment data. See 
71 FR at 76861.) The TSA proposal applies to freight railroad carriers; 
intercity, commuter, and short-haul passenger trains; rail mass transit 
systems; and rail operations at certain fixed facilities that ship or 
receive PIH, explosive, or radioactive materials.
    The hazardous materials provisions of the TSA proposal complement 
and build on the proposals in the PHMSA NPRM. Specifically, TSA 
proposed to require railroads to designate rail security coordinators 
to serve as primary contacts for receipt of intelligence information 
and to require reporting of significant security concerns, potential 
threats, and incidents. In addition, upon request

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from TSA, rail carriers and certain facility operators would be 
required to report car locations and shipping information for shipments 
of PIH, explosive, and radioactive materials within one hour of the 
request. TSA also proposed enhanced chain-of-custody requirements for 
rail shipments of PIH, explosive, and radioactive materials in HTUAs to 
ensure that no car is left unattended as it is transferred from shipper 
to carrier, between carriers, or from carrier to consignee.
    To obtain additional public input on our NPRM, PHMSA hosted 
meetings on February 1, 2007, in Washington, DC, and February 9, 2007, 
in Dallas, Texas. TSA also held a public meeting on its NPRM on 
February 2, 2007, in Arlington, Virginia. Thirty-five persons attended 
the Washington, DC public meeting, and 15 persons attended the Dallas 
meeting. Records of the public meetings, including attendance lists, 
transcripts, and a list of questions commenters were asked to address, 
are available for review in the public docket for this rulemaking.

IV. Implementing Recommendations of the 9/11 Commission Act of 2007

    Several weeks after the close of the comment period in this 
proceeding, Congress enacted the Implementing Recommendations of the 9/
11 Commission Act of 2007 (Pub. L. 110-53; 121 Stat. 266), which the 
President signed into law on August 3, 2007. Among other requirements, 
the Act directs the Secretary of Transportation, in consultation with 
the Secretary of Homeland Security, to publish a final rule based on 
PHMSA's December 21, 2006 NPRM by May 3, 2008. In accordance with 
Section 1551(e) of the Act, PHMSA's final rule must require rail 
carriers of ``security-sensitive materials'' to ``select the safest and 
most secure route to be used in transporting'' those materials, based 
on the rail carrier's analysis of the safety and security risks on 
primary and alternate transportation routes over which the carrier has 
authority to operate. Specifically, the HM-232E final rule must require 
such rail carriers to perform the following tasks each calendar year:
    (1) Collect and compile security-sensitive commodity data, by 
route, line segment, or series of line segments, as aggregated by the 
rail carrier and identify the geographic location of the route and the 
total number of shipments by UN identification number;
    (2) Identify practicable alternative routes over which the carrier 
has authority to operate as compared to the current route for such 
shipments;
    (3) Seek relevant information from state, local, and tribal 
officials, as appropriate, regarding security risks to high-consequence 
targets along or in proximity to a route used by a rail carrier to 
transport security-sensitive materials;
    (4) Consider the use of interchange agreements with other rail 
carriers when determining practicable alternative routes and the 
potential economic effects of using an alternative route;
    (5) Analyze for both the primary route and each practicable 
alternative route the safety and security risks for the route, railroad 
facilities, railroad storage facilities, and high-consequence targets 
along or in proximity to the route; these analyses must be in writing 
and performed for each calendar year;
    (6) Compare the safety and security risks on the primary and 
alternative routes, including the risk of a catastrophic release from a 
shipment traveling along these routes, and identify any remediation or 
mitigation measures implemented on the primary and alternative 
transportation routes; and
    (7) Using the analysis described above, select the practicable 
route posing the least overall safety and security risk.
    The rule must also require that a covered rail carrier, at least 
once every three years, analyze its route selection determinations, 
including a comprehensive, system-wide review of all operational 
changes, infrastructure modifications, traffic adjustments, changes in 
the nature of high-consequence targets located along or in proximity to 
the route, or other changes affecting the safety and security of the 
movements of security-sensitive materials that were implemented since 
the previous analysis was completed. Finally, the rule is to require 
that covered rail carriers retain in writing all route review and 
selection decision documentation and restrict the distribution, 
disclosure, and availability of this information to appropriate 
persons.
    The 9/11 Commission Act defines ``security-sensitive material'' to 
mean the material or classes of materials that the Secretary of 
Homeland Security, in consultation with the Secretary of 
Transportation, determines through a rulemaking proceeding with 
opportunity for public comment pose a significant risk to national 
security while being transported in commerce.
    As we explain further in later sections of this rule, PHMSA 
believes the interim final rule we are publishing today fulfills the 
requirements in Sec.  1551 of the 9/11 Commission Act, in addition to 
addressing the comments received in response to the NPRM. We believe 
that the changes and additions to the NPRM made in this IFR are well 
within the scope of the NPRM. We are publishing an interim final rule 
rather than a final rule to provide interested persons with an 
opportunity to provide specific comments on whether the IFR fully 
implements the requirements of the Act.

V. Comments on the NPRM

    We received more than 50 sets of comments from individuals; members 
of Congress; Federal, state, and local governmental entities; 
companies; industry associations; public interest groups; labor 
organizations; and a homeowners' association. Generally, large rail 
carriers and their associations express support for the proposals in 
the NPRM and, in particular, the flexibility for rail carriers to 
designate routes based on an analysis of safety and security 
vulnerabilities and measures implemented to address those 
vulnerabilities. Small carriers and single line haulers express some 
concern about the applicability of the routing provisions to their 
operations--in many cases, smaller rail carriers operate on a single 
line and routing options are limited.
    Commenters representing state and local governments and 
environmental groups generally oppose the proposals in the NPRM. Some 
of these commenters suggest that the Federal government should mandate 
specific routing for high-hazard materials rather than provide rail 
carriers the discretion to make routing decisions. Others, particularly 
state and local government commenters, want to be able to implement 
routing restrictions within their jurisdictions and, thus, urge us to 
modify or eliminate the preemptive effect of a final rule on non-
Federal jurisdictions.
    Nearly all the commenters suggest that we maintain consistency with 
TSA's proposed rail requirements in regard to package size, covered 
hazardous materials, and enforcement of the proposed requirements.
    The comments and public meeting transcripts in the docket for this 
rulemaking may be reviewed at http://www.regulations.gov under docket 
number PHMSA-RSPA-2004-18730. For your convenience, a listing of the 
docket entries is provided below.

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                              Name/company
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Melanie Weintraub and Family.
Kevin D. Kime.
Institute of Makers of Explosives (IME).
Tom Nitza.

[[Page 20756]]

 
Anonymous.
U.S. Department of Energy, Naval Nuclear Propulsion Program (NNPP).
Congressman Dennis J. Kucinich.
Transcript--Washington, DC Public Meeting.
BASF Corporation.
District of Columbia.
Institute of Makers of Explosives (IME).
American Chemistry Council (ACC).
The Chlorine Institute, Inc.
The Fertilizer Institute, Inc. (TFI).
Metropolitan Transportation Authority.
The Dow Chemical Company (Dow).
Chairman and 3 members of the Committee on Homeland Security, U.S. House
 of Representatives.
The National Industrial Transportation League (NITL).
American Short Line and Regional Railroad Association.
Greenpeace.
Back Creek-II Homeowners Association, Inc.
Argonne National Laboratory Report.
Surface Transportation Board (STB).
Friends of the Earth.
Friends of the Earth.
Friends of the Earth.
Mayo Clinic.
Association of American Railroads (AAR).
City of Cleveland, Ohio.
BNSF Railway Company.
Transportation Trades Department, AFL-CIO.
Independent Lubricant Manufacturers Association.
City of Baltimore, Maryland.
Norfolk Southern Corporation.
Eureka County, Nevada, Office of Public Works.
National Association of Chemical Distributors.
Brotherhood of Locomotive Engineers and Trainmen.
DuPont.
Friends of the Earth.
State of New Jersey, Office of Homeland Security & Preparedness.
Transcript--Dallas Public Meeting.
Union Pacific Railroad Company.
The Dow Chemical Company, Olin Corporation, Norfolk Southern
 Corporation, Union Pacific Railroad Company, and Occidental Chemical
 Corporation.
Akzo Nobel Chemicals, Inc.
City of St. Louis, MO.
Nuclear Energy Institute.
National Association of SARA Title III Program Officials.
Colorado Emergency Planning Commission.
Jefferson County Local Emergency Planning Committee.
City of Las Vegas, Nevada.
Springfield Terminal Railway Company.
American Petroleum Institute.
CSX Transportation, Inc.
State of Connecticut, Attorney General.
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VI. Summary of the Interim Final Rule

    Based on comments received in response to the NPRM and the 
provisions of the 9/11 Commission Act, in this interim final rule, we 
are adopting the following revisions to the HMR:
     Rail carriers transporting certain explosives, PIH 
material, and radioactive materials must compile information and data 
on the commodities transported, including the routes over which these 
commodities are transported.
     Rail carriers transporting the specified hazardous 
materials must use the data they compile and relevant information from 
state, local, and tribal officials, as appropriate, regarding security 
risks to high-consequence targets along or in proximity to a route to 
analyze the safety and security risks for each route used and 
practicable alternative routes to the route used.
     Using these analyses, rail carriers must select the safest 
and most secure practicable route for the specified hazardous 
materials.
     In developing their security plans, rail carriers must 
specifically address the security risks associated with shipments 
delayed in transit or temporarily stored in transit.
     Rail carriers transporting the covered hazardous materials 
must notify consignees of any significant unplanned delays affecting 
the delivery of the hazardous material.
     Rail carriers must work with shippers and consignees to 
minimize the time a rail car containing one of the specified hazardous 
materials is placed on track awaiting pick-up, delivery, or transfer.
     Rail carriers must conduct security visual inspections at 
ground level of rail cars containing hazardous materials to check for 
signs of tampering or the introduction of an improvised explosive 
device (IED).
    This interim final rule is effective June 1, 2008. Beginning 
January 1, 2009, rail carriers must compile information on the 
commodities they transport and the routes they use for the 6-month 
period from July 1, 2008 to December 31, 2008. Rail carriers must 
complete their data collection by March 1, 2009. By September 1, 2009, 
rail carriers must complete the safety and security analyses of routes 
currently utilized and available alternatives and select the safest, 
most secure routes for transporting the specified explosive, PIH, and 
radioactive materials. Beginning January 1, 2010, and for subsequent 
years, rail carriers must compile information on the commodities they 
transport and the routes used for the previous calendar year and 
complete route assessments and selections by the end of the calendar 
year.
    In adopting these requirements, we reject the more prescriptive 
approaches urged by some commenters. We continue to believe that rail 
carriers are in the best position to identify and assess risks across 
their systems and that en route safety and security measures will be 
most effective in reducing system risks when tailored to the carrier's 
specific circumstances and operations. This approach for determining 
the safest and most secure rail routes is consistent with the 
requirements in Sec.  1551 of the 9/11 Commission Act. Rail carriers 
use alternative routing in the normal course of business to accommodate 
a variety of circumstances, such as derailments, accidents, damaged 
track, natural events, traffic bottlenecks, and heightened security 
necessitated by major events. In performing the route analysis required 
by the interim final rule, we expect a rail carrier to make an informed 
decision, balancing all relevant factors and the best information 
available.
    Although individualized risk assessment necessarily is more 
challenging to perform and oversee, we believe this approach offers the 
greatest overall benefit. We expect the end result of the analyses to 
be a clear picture of the practicable alternative route(s) available to 
rail carriers for the transportation of the specified hazardous 
materials. As we transition to the new requirements, PHMSA and FRA are 
committed to working with the railroads to provide the tools and 
training necessary to conduct the required analyses and make 
appropriate route selections.
    By the same token, we intend to aggressively oversee railroads' 
route analyses and route selection determinations and will use all 
available tools to enforce compliance with the rule. As the agency with 
primary responsibility for railroad safety enforcement, FRA will 
incorporate review and inspection of route analyses and selections into 
its inspection programs. FRA inspectors may offer suggestions for 
modifying or improving the analysis or make changes to a route if the 
route selection documentation or underlying analysis is found to be 
deficient. If an inspector's recommendations are not implemented, FRA 
may compel a rail carrier to make changes and/or assess a civil 
penalty. Further, if the carrier's chosen route is found not to be the 
safest and most secure practicable route available, FRA may require the 
use of an alternative route.
    As we implement the interim final rule, PHMSA and FRA are committed 
to working with railroads, and with communities and first responders, 
to strengthen their capabilities and reduce

[[Page 20757]]

the risks associated with hazardous materials transportation. As 
discussed below, we are developing a route assessment tool that rail 
carriers may use in weighing and considering the route analysis 
criteria.
    PHMSA also is stepping up its efforts to build emergency response 
capabilities through national programs and community-based planning and 
training. We are sponsoring several initiatives intended to enhance 
community preparedness, including a project with the International 
Association of Fire Chiefs to provide real-time access to emergency 
response information and to share lessons learned from past incidents 
and exercises. With Congress' approval, we are expanding the Hazardous 
Materials Emergency Preparedness (HMEP) program, which provides funds 
for developing, improving, and implementing emergency response plans 
and for training public sector employees to respond to accidents and 
incidents involving hazardous materials. We believe these planning and 
training efforts are most effective when they are tailored to the 
particular risks facing a community.
    We agree that local and regional governments require information on 
the types, quantities, and locations of hazardous materials transported 
through their jurisdictions to plan for effective and appropriate 
emergency response to incidents. We developed a detailed handbook 
(Guidance for Conducting Hazardous Materials Flow Surveys, January 
1995) for local governments to use in conducting commodity flow studies 
of hazardous materials transported by highway, and we are encouraging 
states to use HMEP grant funds to study flow patterns of hazardous 
materials within and between states and to determine the need within a 
state for regional hazardous materials emergency response teams. We are 
updating our 1995 handbook through a cooperative research project aimed 
at producing a comprehensive, user-friendly resource that will help 
local planners develop commodity-flow data for all modes of 
transportation and to use the data to inform decision-making concerning 
risk assessment, emergency response preparedness, and resource 
allocation and to support analyses across jurisdictional boundaries. In 
addition, we are developing a guide for assessing emergency response 
needs and capabilities for hazardous materials releases to provide a 
tool for state and local governments to use to identify and address 
unmet emergency response planning and resource needs.
    The specific provisions of the interim final rule, including a 
discussion of comments received on the NPRM and the provisions of the 
9/11 Commission Act, are detailed in the following sections of this 
rule.

VII. Discussion of Comments and Section-by-Section Review

A. General (Sec.  172.820(a))

    In the NPRM, we proposed to require rail carriers to implement 
enhanced safety and security measures for shipments of the following 
classes 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 material poisonous by inhalation, as 
defined in Sec.  171.8 of the HMR; or
    (3) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec.  173.403 of the HMR.
    The 9/11 Commission Act directs the Secretary of Transportation to 
ensure that this final rule requires railroad carriers to compile 
commodity data on the security-sensitive materials they transport. 
Section 1501 of the Act defines ``security-sensitive material'' to mean 
a material or group or class of materials, in a particular quantity and 
form that the Secretary of Homeland Security, in consultation with the 
Secretary of Transportation, determines through rulemaking with 
opportunity for public comment, poses a significant risk to national 
security while being transported in commerce. In making such a 
determination, the Secretary of Homeland Security is directed to 
consider: (1) Class 7 radioactive materials; (2) Division 1.1, 1.2, and 
1.3 explosives; (3) materials poisonous or toxic by inhalation, 
including Division 2.3 gases and Division 6.1 materials; and (4) a 
select agent or toxin regulated by the Centers for Disease Control and 
Prevention (CDC) under 42 CFR part 73.
    PHMSA, FRA, and TSA 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 
proposed enhanced safety and security requirements would apply is based 
on specific railroad 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. DOT and DHS determined that the 
materials specified in the NPRM present the greatest rail 
transportation safety and security risks--because of the potential 
consequences of 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.
    Following is a basic summary of the materials and critical 
vulnerabilities warranting enhanced safety and security measures:
     Division 1.1, 1.2, and 1.3 explosive materials. 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 people, public and 
private property, and rail infrastructure. Roughly 2,500 carloads of 
these explosives are transported by rail each year.
     PIH materials. PIH 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. PIH materials pose special risks during transportation 
because their uncontrolled release can endanger significant numbers of 
people. The January 6, 2005 train derailment in Graniteville, South 
Carolina with subsequent release of chlorine sadly underscored this 
risk. About 100,000 carloads of TIH chemicals are shipped by rail each 
year. Note that for purposes of the HMR, the terms ``poison'' and 
``toxic'' are synonymous, as are the terms ``poison inhalation hazard'' 
or ``PIH materials'' and ``toxic inhalation hazard'' or ``TIH 
materials.''
     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. Very few 
HRCQ shipments are transported by rail. Spent nuclear fuel and high-
level waste are shipped in containers certified under the Atomic Energy 
Act to meet stringent safety requirements designed to prevent release 
of radioactive materials even in the event of a severe accident.

[[Page 20758]]

    The NPRM did not propose to include select agents or toxins 
regulated by the CDC under 42 CFR part 73 because railroads transport 
few, if any, shipments of theses types of materials. Generally, 
shipments of infectious substances, including select agents and toxins, 
must be transported quickly from origin to destination to prevent 
degradation of samples that can occur over time and to ensure swift 
diagnosis and treatment of infectious diseases. For these reasons, 
highway (for short distances) and air (for longer distances) are the 
preferred modes of transport for these materials.
    Most commenters agree that the above listed materials pose the most 
significant rail transportation safety and security risks. The 
Institute of Makers of Explosives (IME), Dow Chemical Company (Dow), 
Chlorine Institute, Inc., and Mr. Tom Nitza express some concern that 
the PHMSA and TSA rail security NPRMs are not consistent in terms of 
their application to shipments of PIH materials. The PHMSA NPRM applies 
to bulk quantities of PIH materials. A ``bulk quantity'' as used in the 
HMR means a quantity that exceeds 450 L (119 gallons) for liquids, a 
net mass greater than 400 kg (882 pounds) for solids, or a water 
capacity greater than 454 kg (1,000 pounds) as a receptacle for gas (49 
CFR 171.8). Thus, the provisions of the PHMSA NPRM would apply to PIH 
shipments transported in tank cars, including residue amounts exceeding 
119 gallons, and portable tanks and other bulk containers. The TSA NPRM 
applies to tank cars containing PIH materials, excluding residues. 
Commenters suggest that the two rules should be applied consistently 
and recommend that we adopt the TSA tank-car threshold and exclude 
residue shipments.
    While we recognize that TSA used a risk-based approach in 
determining the PIH quantities to which its rail security NPRM would 
apply, we disagree from a safety perspective that bulk packages other 
than tank cars and residue shipments should be excepted from the route 
analysis and route selection requirements adopted in this interim final 
rule. Although target attractiveness from a security standpoint is 
diminished, significant safety risks persist. A typical tank car of 
chlorine, for example, will contain about 16,000 gallons when full and 
may contain a residue amount of 160-320 gallons (1-2 percent of the 
original amount in the tank). Upon release from its container or 
packaging, each cubic foot of liquid chlorine will rapidly expand to 
approximately 450 cubic feet of chlorine gas. Using this rough estimate 
for the expansion of chlorine, a residue amount of 160-320 gallons 
would result in approximately 9,600 to 19,200 cubic feet of chlorine 
gas. Based on guidance in the DOT Emergency Response Guidebook, the 
residue amount remaining in a chlorine tank car, if spilled, would 
suggest an initial isolation distance ranging from 800 ft in all 
directions and a protective distance of at least 1.5 mi for persons 
downwind at night. From a safety standpoint, it makes sense to require 
bulk quantities of PIH residue remaining in tank cars to travel on the 
``best'' route available--the route that considers factors such as 
population density, emergency response capabilities, environmentally-
sensitive and significant areas, and event venues.
    Adoption of the proposed TSA threshold for PIH shipments would also 
exclude rail shipments of most bulk packagings containing PIH materials 
from the route analysis and selection requirements in this interim 
final rule. Portable tanks, for example, typically contain up to 3,000 
gallons, and some are designed to contain up to 6,000 gallons. While 
the isolation and evacuation distances for portable tanks would be the 
same as those for residue quantities in a tank car, the amount of gas 
produced would greatly increase. The amount of a PIH material contained 
in a fully loaded portable tank could, if released entirely, expand to 
produce roughly 180,000 to 361,000 cubic feet of gas, creating a safety 
risk to individuals within the area of the release. When considering 
risks posed by bulk containers such as portable tanks, different safety 
and security related aspects must be considered. Portable tanks are 
designed to be filled and emptied after removal from a transport 
conveyance; therefore, they have thinner walls and heads and are 
generally less robust, which makes them more prone to puncture or 
rupture than a tank car.
    We believe the safety risks posed by the rail transportation of 
bulk quantities of PIH materials should be addressed through enhanced 
safety requirements, including route assessments. Therefore, in this 
interim final rule, we are requiring enhanced safety measures for bulk 
quantities of a material poisonous by inhalation, as proposed in the 
NPRM.
    Written comments submitted by IME and AAR and statements by 
participants in the public meetings highlight the confusion as to 
whether we intended anhydrous ammonia to be included as a PIH material 
for which enhanced safety and security measures are required. The 
answer is yes. To ensure that this confusion does not persist, in this 
interim final rule, we are specifically adding anhydrous ammonia as an 
example, in Sec.  172.802(a), of a material that falls under the 
requirements to develop and implement additional safety and security 
planning requirements, as established by this interim final rule. 
Commenters are correct that, under the HMR, anhydrous ammonia is 
classed as a Division 2.2 compressed gas for domestic transportation. 
However, anhydrous ammonia meets the definition of a material that is 
poisonous by inhalation under Sec.  171.8 of the HMR. That definition 
includes any material identified as an inhalation hazard by a special 
provision in column 7 of the Sec.  172.101 Hazardous Materials Table 
(HMT). The entry for anhydrous ammonia in the HMT includes Special 
Provision 13, which requires the words ``Inhalation Hazard'' to be 
entered on shipping papers and marked on packages.
    Once again, we note that for purposes of the HMR, the terms 
``poison'' and ``toxic'' are synonymous, as are the terms ``poison 
inhalation hazard'' or ``PIH materials'' and ``toxic inhalation 
hazard'' or ``TIH materials.''
    In the NPRM, we sought comments as to whether the proposed 
requirements 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. Commenters who addressed this issue state that 
rail shipments of Division 1.1, 1.2, and 1.3 explosives; PIH materials; 
and highway-route controlled quantities of radioactive materials pose 
significant rail safety and security risks warranting the enhanced 
security measures proposed in the NPRM and adopted in this interim 
final rule. Commenters generally do not support enhanced security 
measures for a broader list of materials than was proposed in the NPRM.
    The City of Las Vegas, Nevada, supports expanding the list of 
materials for which enhanced security measures are required to include 
flammable liquids; flammable gases; certain oxidizers; certain organic 
peroxides; and 5,000 pounds or greater of pyrophoric materials. While 
DOT and DHS agree that these materials pose certain safety and security 
risks in rail transportation, the risks are not as great as those posed 
by the explosive, PIH, and radioactive materials specified in the NPRM, 
and we are not persuaded that they warrant the additional precautions 
required by the interim final rule. We note that the hazardous 
materials listed by the City of Las Vegas are currently subject to the

[[Page 20759]]

security plan requirements in Subpart I of Part 172 of the HMR. Thus, 
shippers and carriers of these materials must develop and implement 
security plans based on an assessment of the transportation security 
risks posed by the materials. Security plans must include measures to 
address personnel security, unauthorized access, and en route security. 
DOT, in consultation with DHS, will continue to evaluate the 
transportation safety and security risks posed by all types of 
hazardous materials and the effectiveness of our regulations in 
addressing those risks and will consider revising specific requirements 
as necessary.
    For purposes of Section 1551 of the 9/11 Commission Act, DHS, in 
consultation with DOT, is developing a list of ``security-sensitive 
materials'' for rail transportation. DHS plans to publish its 
determination concerning ``rail security-sensitive materials'' in a 
forthcoming rulemaking. Upon publication of this determination, DOT 
will consider whether to revise the list of materials to which the 
safety and security requirements adopted in this IFR apply. We note in 
this regard that in future rulemaking actions DHS may also make 
determinations as to the materials that should be considered security-
sensitive for other modes of transportation or for non-transportation 
operations and facilities.

B. Commodity Data (Sec.  172.820(b))

    The NPRM proposed to require rail carriers to compile commodity 
data on an annual basis for the covered hazardous materials, including 
an identification of the routes utilized and the total number of 
shipments transported. The data are to be used by the rail carriers to 
identify the routes over which the specified hazardous materials are 
transported and the number of shipments utilizing each route. As 
proposed, rail carriers would be required to analyze the safety and 
security risks of the routes identified.
    The City of Cleveland, Ohio, suggests that we revise the proposal 
in the NPRM to require rail carriers to share the commodity data with 
local governments responsible for the geographic areas through which 
hazardous materials are transported. We agree that state and local 
governments should have access to such information, provided access to 
the information is limited to those with a ``need-to-know'' for 
transportation safety and security purposes, and further provided that 
such information may not be publicly disclosed pursuant to any state, 
local, or tribal law. Because of the security sensitivity of the 
commodity data, it is not appropriate for it to be broadly disclosed to 
government or private entities. We note that AAR Circular OT-55-I 
provides for disclosure of certain commodity flow data, upon request, 
to local emergency response agencies and planning groups. At a minimum, 
such information is to include rank-order identification of the top 25 
hazardous commodities transported through the community.
    Section 1551(h) of the 9/11 Commission Act requires rail carriers 
to seek relevant information from state, local, and tribal officials, 
as appropriate, regarding security risks to high-consequence targets 
along or in proximity to a route used to transport security sensitive 
materials. A ``high consequence target'' is defined in the Act to mean 
a property, natural resource, location, area, or other target 
designated by the Secretary of Homeland Security that is a viable 
target of national significance for which an attack by railroad could 
result in catastrophic loss of life, significant damage to national 
security or defense capabilities, or national economic harm. We are 
adopting this requirement in this interim final rule. More broadly, 
however, rail carriers should work with state and local governments 
when conducting the route safety and security analysis required by this 
interim final rule and in making routing decisions based on that 
analysis. To this end, rail carriers must share information as 
necessary and appropriate to enable state and local governments to 
provide meaningful input into the process. We note in this regard that 
among the factors to be considered by rail carriers in conducting the 
safety and security analysis are population density along the route; 
environmentally-sensitive or significant areas; venues along the route 
(stations, events, places of congregation); emergency response 
capability along the route; measures and countermeasures already in 
place to address apparent safety and security risks; proximity to 
iconic targets; and areas of high consequence along the route. State 
and local governments may well be able to assist rail carriers in 
identifying and assessing this type of information. Moreover, state and 
local government entities may also be able to assist rail carriers in 
addressing any safety or security vulnerabilities identified along 
selected routes, in the scheduling of public events, for example, or 
enhancing emergency response capabilities. If a rail carrier is unable 
to acquire relevant information from state, local, or tribal officials, 
then it must document that in its analysis.
    We note as well that states and local governments may contact FRA 
to voice concerns and request an inspection of a route plan, security 
vulnerability, or, more generally, a rail carrier.
    To provide carriers with flexibility in compiling and assessing the 
data, we are not adopting a specified format; however, the data must be 
available in a format that can 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 must retain the data for 
two years, in either hard copy or electronic form.

C. Rail Transportation Route Analysis (Sec.  172.820(c))

    In the NPRM, PHMSA proposed to require rail carriers to use the 
data compilation described above to analyze the rail routes over which 
the specified materials are transported. As proposed, carriers would be 
required to analyze the specific safety and security risks for routes 
identified in the commodity data collection and the railroad facilities 
along those routes. The route analyses would 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 was 
included in proposed Appendix D to Subpart I of Part 172.
    Several comments were submitted in response to the proposed 
requirement. In its comments, Dow suggests that ``railroad 
facilities,'' as used in this section, should be defined as facilities 
at which storage incidental to movement occurs along the route, 
including, but not limited to, classification and switching yards, and 
non-private sidings. Dow suggests that we clarify that railroad 
facilities do not include an offeror's facility, private track, private 
siding, or the hazardous materials' final destination. We agree with 
Dow that the term ``railroad facility'' should be clearly defined in 
the HMR. Therefore, in this interim final rule, we are adopting Dow's 
suggested definition in Sec.  172.820(c). For purposes of this section, 
``railroad facility'' means railroad property including, but not 
limited to, storage facilities, classification and switching yards, and 
non-private sidings. The term does not include an offeror's facility, 
private track, private siding, or consignee's facility.
    AAR suggests an exception from the analysis requirements if there 
have been no significant changes since the

[[Page 20760]]

previous analysis and less than five calendar years have passed since 
the previous analysis was performed. We will address this issue in more 
detail later in this rule. We would note that any significant changes 
to the route over which the covered hazardous materials are transported 
that occurs before the calendar year actually lapses trigger a revised 
route analysis.
    AAR also suggests an exception from the route analysis requirements 
for rail carriers that transport fewer than 500 carloads of the covered 
hazardous materials. We do not agree. The safety and security risks 
posed by shipments of Division 1.1, 1.2, and 1.3 explosives, highway 
route controlled quantities of radioactive materials, and bulk 
quantities of PIH materials are significant even if a rail carrier only 
transports a single carload. The 2005 accident in Graniteville, South 
Carolina, resulted in the puncture of a single tank car of chlorine, 
but the consequences of that accident were devastating. While it is 
true that the calculation of safety and security risks for the rail 
transportation system as a whole increases as the total number of 
shipments increases, it is also true there is a risk associated with 
each carload transported. An exception from the route analysis 
requirements adopted in this interim final rule for rail carriers that 
transport the specified hazardous materials in amounts below a given 
threshold is not warranted given the safety and security risks posed by 
these materials.
    The National Industrial Transportation League asserts that 
requiring a small railroad to analyze the safety and security risks of 
its only available route serves no purpose since such railroads have no 
alternative routes to assess. The commenter notes that small Class II 
and III railroads generally operate on a single track, usually a feeder 
track to main rail lines, and have no available alternate routes. We do 
not agree. Even in the absence of alternative routes, we believe an 
assessment of the safety and security risks along the route utilized is 
critical to enhancing rail transportation safety and security. A 
comparison of the route utilized with an alternate route is not 
required in this circumstance; however, rail carriers must address 
safety and security vulnerabilities identified by the route analysis.
    Section 1551(c) of the 9/11 Commission Act requires rail carriers' 
safety and security analyses of the routes used to transport security 
sensitive materials to include the route, railroad facilities, railroad 
storage facilities, and high-consequence targets along or in proximity 
to the route. This is consistent with the analysis requirements 
proposed in the NPRM and adopted in this interim final rule. We have 
modified the applicable sections of the interim final rule to clarify 
that rail carriers' safety and security analyses must cover the listed 
items.
    As discussed in the NPRM, we gave careful consideration to the 
question of how to define a ``rail transportation route'' for the 
purpose of the analysis proposed in the NPRM. We proposed 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.

D. Alternative Route Analysis and Route Selection (Sec.  172.820(d) & 
(e))

    In addition to the routes normally and regularly used for hazardous 
materials movements, we proposed to require carriers to analyze and 
assess the feasibility of available alternative routes over which they 
have authority to operate. As proposed in the NPRM, for each primary 
route, one commercially practicable alternative route must be 
identified and analyzed using, at a minimum, the Rail Risk Analysis 
Factors of proposed Appendix D to Part 172. It is the rail carrier's 
responsibility to retain a copy (or an electronic image thereof) of all 
route review and selection decision documentation used when selecting 
the practical route posing the least overall safety and security risk. 
This documentation should include, but is not limited to, comparative 
analyses, charts, graphics, or rail system maps. The NPRM noted that a 
primary safety and security concern for the rulemaking was 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. The goal of the routing 
analysis requirement is to ensure that each route used for the 
transportation of the specified hazardous materials is the one 
presenting the fewest overall safety and security risks.
    Consistent with Sec.  1551(d) of the 9/11 Commission Act, this 
interim final rule requires rail carriers to identify practicable 
alternative routes over which the carrier has authority to operate and 
perform a safety and security analysis of the alternative routes for 
comparison to the currently used route, including the risk of a 
catastrophic release from a shipment traveling each route. In this 
interim final rule, we are adopting a requirement for rail carriers to 
identify and analyze all practicable alternative routes, rather than a 
``commercially practicable'' route as proposed in the NPRM. We note in 
this regard, however, that the identification of an alternative 
practicable route must necessarily include a determination of its 
commercial practicability. Congress recognized this by including in 
Sec.  1551(d) a requirement for the alternative route analyses to 
include the potential economic effects of using an alternative route. 
Accordingly, we expect rail carriers to address whether a route is 
economically viable in light of, but not limited to, market conditions, 
legal and regulatory requirements, and the economics of the commodity, 
route, offeror, and consignee. A practicable alternative route is one 
that may be utilized by the railroad within the limits of the 
railroad's particular operating constraints and, further, 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

[[Page 20761]]

increase a carrier's operating costs, as well as the costs to its 
customers, the carrier should consider and 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 other business decisions affecting safety and security.
    As we acknowledged in the NPRM, in many cases, the only alternative 
route in a particular area may be on another carrier's system. A rail 
carrier would not be obligated to analyze an alternative route over 
which it has no authority to operate. Likewise, in some cases, no 
alternative route will be available; in those instances, no alternative 
route 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. However, as discussed below, 
carriers must consider the use of interchange agreements when 
identifying practicable alternative routes.
    When an alternative route is available, 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 available, and the economic effects of using the 
alternative route.
    Under arrangements known as ``trackage rights,'' it is not uncommon 
for a carrier to conduct train operations over a rail line that is 
owned, dispatched, and maintained by another carrier. Such arrangements 
typically grant the trackage rights tenant little or no control over 
the track and associated infrastructure, including many of the factors 
set forth in Appendix D. In completing the route analysis required by 
this interim final rule, a carrier may identify specific risk 
mitigation measures that are 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 tenant carrier to 
work with the owner of the track to evaluate the vulnerabilities and 
identify measures to mitigate the risks. If measures required by this 
interim final rule cannot be implemented because another entity refuses 
or fails to cooperate, the carrier must notify FRA. As stated in the 
Compliance and Enforcement section of this interim final rule, FRA 
retains the authority to require use of an alternative route until such 
time as identified deficiencies are mitigated or corrected. In today's 
edition of the Federal Register, FRA is issuing an NPRM setting forth 
the enforcement procedures it will use in requiring the use of an 
alternative route.
    On behalf of Friends of the Earth, Fred Millar submitted four sets 
of comments and spoke at the DC public meeting. In his verbal and 
written comments, Mr. Millar states that many citizens, local 
governments, and rail workers are seeking a protective re-routing of 
the most dangerous hazardous materials cargoes (e.g., TIH or poison gas 
cargoes) around HTUAs. Mr. Millar suggests that re-routing of through 
shipments around HTUAs would yield a significant, immediately 
achievable, and permanent risk reduction.
    Greenpeace suggests that we promulgate new regulations that 
prohibit the storage and routing of TIH rail cargo through densely 
populated and other sensitive areas wherever technically feasible. 
Greenpeace states: ``If the federal government is concerned about 
differing local statutes, they should support national routing 
legislation.'' Friends of the Earth similarly acknowledges that 
``nobody thinks it's a good idea to have 46 high-threat target areas 
with their own local regulations. What we need is a sensible national 
protective rerouting regulation * * *''
    In their comments, both Mr. Millar and Greenpeace express support 
for the use of interchange agreements by rail carriers to swap cargo 
between different rail carriers and avoid HTUAs. In addition, Sec.  
1551(d) of the 9/11 Commission Act requires rail carriers, when 
determining practicable alternative routes, to consider the use of 
interchange agreements with other carriers. We encourage rail carriers 
to take all feasible actions to mitigate the safety and security risks 
for hazardous materials shipments; therefore, in this interim final 
rule, we are adopting the requirement in Sec.  1551(d) for rail 
carriers to consider interchange agreements when identifying 
practicable alternative routes.
    In a separate effort to address these concerns, in late 2005, FRA 
granted a request by the AAR and the American Chemistry Council (ACC) 
to convene a conference under the authority of 49 U.S.C. 333, which 
affords limited antitrust protection to rail carriers. Section 333 
authorizes the FRA Administrator, as delegate of the Secretary of 
Transportation, to convene conferences at the request of one or more 
railroads to address coordination of operations and facilities of rail 
carriers in order to achieve a more efficient, economical, and viable 
rail system. Persons attending a section 333 conference are immune from 
antitrust liability for any discussions at the conference, and can also 
receive immunity for any resulting agreements that receive FRA 
approval. The purpose of the ``Section 333 Conference'' is to discuss 
ways to minimize security and safety risks flowing from the 
transportation by rail of TIH materials. FRA, PHMSA, and 
representatives from the Department of Justice (DOJ), the Federal Trade 
Commission (FTC), TSA, and the Surface Transportation Board (STB) are 
participating in these discussions. The initial efforts of the 
conference are focused on the rail transportation of chlorine and 
anhydrous ammonia, because those chemicals represent over 80 percent of 
all TIH rail shipments. FRA has met with the rail carriers to discuss 
modeling and routing options, and has held separate meetings with rail 
shippers of chlorine and anhydrous ammonia. Further meetings with the 
rail carriers are anticipated. Projects agreed to through the 
conference may need the approval of the STB in order to be implemented.
    In light of these efforts, and in the interests of system safety, 
we will not ban movement of the specified hazardous materials through 
densely populated or other sensitive areas. Rerouting of hazardous 
materials shipments over longer, more circuitous alternative routes, 
most of which traverse urban areas at some point, could actually 
increase safety and security risks. Rerouting to avoid certain areas 
could add hundreds of miles and several days to a hazardous materials 
shipment. Those additional miles and days could be on rail 
infrastructure less suitable to handling hazardous materials. Such 
rerouting could also result in additional switching and handling of 
rail cars and more time in rail yards. Longer distances and transit 
times, increased car handling, and more time in rail yards contribute 
to an increase in the safety risks to railroad workers and the public 
inherent in rail transportation in general and the transportation of 
hazardous materials. As well, military installations, power plants, and 
other potentially attractive terrorist targets are purposely located on 
or near rail lines rather than in major metropolitan areas. Such 
facilities could be placed at greater risk if the Federal government 
were to require rerouting of highly hazardous materials to avoid 
densely populated areas. Finally, we would suggest that transportation 
security is enhanced if terrorists cannot determine whether or when 
hazardous materials may be rerouted. Such flexibility, provided its use 
is not made

[[Page 20762]]

public, decreases the likelihood that a target will be where a 
terrorist may expect it to be.
    Moreover, the 9/11 Commission Act does not direct the Federal 
government to mandate specific rail routes for security-sensitive 
materials; rather, Sec.  1551 of the Act specifically directs the 
Secretary of Transportation to ensure that the final rule requires rail 
carriers to select the safest and most secure route to be used to 
transport security-sensitive materials based on a safety and security 
assessment of the current routes utilized and practicable alternative 
routes.
    We continue to believe that en route safety and security measures 
will be most effective when tailored to a railroad's specific 
circumstances and operations. Rail carriers are in the best position to 
assess security risks along the full length of the routes available to 
them and to target enhanced safety and security measures to identified 
vulnerabilities. Appendix D to the rule lists the wide variety of 
factors that a carrier must consider in choosing the safest and most 
secure route. The interim final rule requires carriers to analyze the 
primary route and a practicable alternative route using the Rail Risk 
Analysis Factors in Appendix D and select the route posing the least 
overall safety and security risk. As discussed below, carriers are also 
required to address delays in transit and en route storage security 
measures in their security plans.
    As with the primary route analysis, we expect the end result of the 
alternative route analysis to be a clear picture of the 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 routes should, in the end, clearly indicate 
the reasonableness, appropriateness, and feasibility, including 
economic feasibility, of using the alternative routes. We expect a 
complete alternative route analysis will reflect such considerations as 
any actual use of the 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 determined to be the safest and most secure 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 practicable route posing the least overall safety and 
security risk, 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 so that the route will pose 
the least overall safety and 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 have already 
catalogued possible actions to mitigate such risks.
    In the evaluation of alternative routes, rail 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.
    Dow suggests that, consistent with the proposed rule's performance 
standard, a rail carrier should not be required to implement 
remediation and mitigation measures to address vulnerabilities 
identified during the performance of the safety and security risk 
analysis if: (1) An alternative route analysis reveals a practicable 
route posing the least overall safety and security risk; and (2) the 
carrier selects that route in accordance with Sec.  172.820(e). We 
agree with the commenter, but note that the requirement to implement 
remediation and mitigation measures proposed in the NPRM and adopted in 
this interim final rule applies in situations where a rail carrier 
selects a route that does not pose the least overall safety and 
security risks, based on the alternative routing analysis. In such a 
situation, the carrier must address the safety and security risks along 
the selected route through implementation of remediation and mitigation 
measures. Current security plan requirements apply in assessing risks 
and implementing measures to mitigate risks on existing routes. Nothing 
in this interim final rule requires remediation and mitigation measures 
to address vulnerabilities on a route that the carrier has not 
selected.
    To assist rail carriers in performing these analyses of rail 
transportation routes and alternative routes, PHMSA is adopting a new 
Appendix D to Subpart 172. This appendix lays 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 covered by this 
interim final 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 
changes in areas of high consequence along the route, traffic density, 
new customers offering or receiving the specified hazardous materials, 
and significant operational changes, to name a few of the 
considerations listed in Appendix D.
    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. We have tried to balance these interests 
by prescribing uniform assessment criteria, while allowing each rail 
carrier to choose the assessment methodology it will follow. Regardless 
of the risk assessment 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;
     Characterizations of risks and of changes in the nature or 
magnitude of risks should be both qualitative and, to

[[Page 20763]]

the extent possible given available data, quantitative;
     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. Each rail 
carrier's security plan must 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 current security plan requirements, our goal 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 a carrier's routes present the overall fewest 
safety and security risks.
    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 implementation and the route change upon completion.
    Clearly, other outcomes are possible. The analyses must be 
completed and any routing changes resulting from the analyses must be 
implemented no later than January 1 of the following year.

E. Completion of Route Analyses (Sec.  172.820(f))

    In the NPRM, we proposed to require rail carriers to conduct the 
rail transportation route analysis, alternative route analysis, and 
route selection by the end of the year to which it applies. In 
addition, we proposed to require the carrier to complete a 
comprehensive review of all operational changes, infrastructure 
modifications, traffic adjustments, or other changes implemented over a 
period not to exceed five calendar years.
    Most comments addressing this aspect of the NPRM request that we 
eliminate confusion and shorten the five-year time period for the 
system wide review. One commenter, AAR, suggests that we make the one 
year review encompass the entire system or better clarify what is meant 
by the separate reviews. AAR further suggests that carriers should be 
required to revise and update route analyses only when necessary to 
account for changes in the way a carrier operates, changes to the 
routes utilized, or in response to specific threats. In addition, AAR 
suggests an exception from the analysis requirements if there have been 
no significant changes since the previous analysis and fewer than five 
calendar years have passed since the previous analysis was performed.
    The Brotherhood of Locomotive Engineers and Trainmen suggests that 
the frequencies set forth in the proposed rule are appropriate, except 
that the comprehensive review should be performed every three (3) 
years.
    The 9/11 Commission Act prescribes both the nature and frequency of 
the analysis. Under Sec.  1551(g) of the Act, we must require rail 
carriers to perform a comprehensive review at least once every three 
years. The analysis is to include a system-wide review of all 
operational changes, infrastructure modifications, traffic adjustments, 
changes in the nature of high-consequence targets located along or in 
proximity to the route, and any other changes affecting the safety and 
security of the movement of security-sensitive materials that were 
implemented since the previous analysis was completed.
    We accept the comments that our proposed schedule for one- and 
five-year reviews is unnecessarily confusing and complicated and that 
the proposed five-year time frame for system-wide reviews is too long. 
Therefore, in this interim final rule, we are requiring rail carriers 
to conduct all the required analyses every year--that is, each year, a 
rail carrier must assess the safety and security vulnerabilities along 
the routes it uses to transport the specified hazardous materials and 
must also assess the safety and security vulnerabilities of practicable 
alternative routes for each route currently utilized. This analysis 
must include a comprehensive review of all operational changes, 
infrastructure modifications, traffic adjustments, changes in the 
nature of high-consequence targets located along or in proximity to the 
route, or other changes affecting the safety and security of the 
movement of the materials covered by this interim final rule. This 
process will ensure that modifications and changes to the entire system 
are taken into account in the route analyses during the same calendar 
year that they occur. In addition, a rail carrier should consider 
changes that may reasonably be anticipated to occur in the upcoming 
year, such as changes to the volumes or types of hazardous materials 
transported or changes affecting rail infrastructure (e.g.,

[[Page 20764]]

planned maintenance that could result in temporary closures of bridges 
or track segments).
    We do not agree with AAR that a carrier should be required to 
review and revise its route analysis only when necessary to account for 
changes in the way a carrier operates, changes to the routes utilized, 
or in response to specific threats. We believe there is value in 
conducting an annual review of the route analysis even in the absence 
of changes to the way a carrier operates. Conditions along the selected 
routes may have changed, for example, or there may be changes affecting 
other factors utilized in the analyses, such as incidents on the 
selected route, the capabilities of local emergency response agencies, 
or venues located in proximity to the selected route.

F. Storage, Delays in Transit, and Notification (Sec.  172.820(g))

    In the NPRM, we proposed to require rail carriers to specifically 
address delays in transit and en route storage in security plans. Thus, 
we proposed to require rail carrier security plans to include: (1) A 
procedure for consulting with offerors and consignees to minimize the 
time a material is stored incidental to movement; (2) a procedure for 
informing the operator of the facility at which the material will be 
stored incidental to movement that the material has been delivered; (3) 
measures to limit access to the materials during storage and delays in 
transit; (4) measures to mitigate risk to population centers during 
storage incidental to transportation; (5) measures to be taken in the 
event of an escalating threat level during storage incidental to 
transportation; (6) a procedure for notifying the consignee in the 
event of transportation delays; and (7) a procedure to inform the 
consignee that the material has been delivered.
    Concerning consultations to minimize delays in transit, ACC 
requests that we require rail carriers to formally consult with 
offerors and consignees, to minimize to the extent practicable, the 
period of time during which the material is stored incidental to 
movement. ACC suggests that the consultations should provide offerors, 
consignees, and rail carriers equal weight in developing practicable 
solutions, which consider, but are not limited to, railroad and 
shipper/consignee production capacity, land availability, restrictive 
local ordinances, and other relevant factors. ACC further suggests that 
these consultations should be conducted on an individual basis, where 
regional distinctions in security requirements and the aforementioned 
constraints may be given full consideration and that proposed solutions 
should be implemented with mutual consent of all parties. Finally, ACC 
recommends that, in those instances when mutual consent is not 
achieved, proposed solutions should be implemented through binding 
mediation conducted by the Surface Transportation Board's (STB's) 
Office of Compliance and Consumer Assistance.
    We agree with the suggestion made by ACC that any decision made to 
minimize the time that a material is stored incidental to movement 
should include mutual consent from all parties and that those parties 
should be given equal weight. Therefore, in this interim final rule, we 
are modifying the proposal by incorporating ACC's suggestion that 
decisions be implemented with the mutual consent of all parties. We are 
not including the provision to require consultation with STB in the 
absence of an agreement among the parties. Such a provision would be 
overly burdensome; moreover, rail carriers, offerors, and consignees 
should be capable of coming to an agreement without the necessity for 
mediation. In the absence of such an agreement, a rail carrier may 
implement whatever measures it finds necessary to minimize the time 
that a material is stored incidental to movement.
    In the NPRM, we proposed to require a rail carrier to notify the 
consignee if there is a significant unplanned delay during 
transportation of one of the specified hazardous materials, 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 do not inadvertently wait in transit.
    In the NPRM, we specified such notification must be made by a 
method acceptable to both carrier and consignee. One commenter, AAR, 
states that consignees should not have veto power over the method 
selected for notification of delays and is concerned because different 
customers will likely request different notification systems, 
potentially increasing transportation costs. On the other hand, The 
Chlorine Institute indicates that it strongly supports the notification 
provisions that require carriers to work with receivers and shippers on 
an appropriate notification method.
    We do not believe that the notification issue is as complicated as 
AAR suggests. We are aware that many rail carriers have in place 
electronic systems through which consignees may look up and track their 
expected rail shipments. This is an acceptable method of notification, 
as are e-mail, facsimile, or telephone. None of these methods would 
result in significant cost impacts for rail carriers. 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 reason the 
carrier and consignee must agree on a notification method is to ensure 
that the information about a shipment delay reaches the consignee in a 
timely fashion. Absent such an agreement, the carrier cannot be certain 
that the notification will reach the appropriate official for the 
consignee.
    A significant delay is 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.''
    The AAR Circular OT-55-I outlines operating practices the rail 
industry has already implemented for certain time-sensitive shipments. 
The notification requirement adopted in this interim final rule 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.\2\ Because of the variety of materials covered by 
this interim final rule, PHMSA has not designated specific delivery 
timeframe guidelines for these materials.
---------------------------------------------------------------------------

    \2\ 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).
---------------------------------------------------------------------------

    In the NPRM, we proposed to require carriers to notify storage 
facilities and consignees upon delivery of a rail car

[[Page 20765]]

containing one of the specified hazardous materials. IME, Akzo Nobel 
Chemicals, and ACC suggest we delete the delivery notification 
requirements and, instead, align the HMR with the positive chain-of-
custody requirements proposed by TSA in its rail security NPRM. We 
agree. The TSA requirements establish positive control of rail cars 
containing the specified hazardous materials by requiring direct hand-
off of each car to a responsible individual, at points of: (1) Carrier 
interchange in an HTUA or outside an HTUA for cars that may enter an 
HTUA; (2) origin; and (3) delivery to a facility in a HTUA. There is, 
therefore, no need for the notification requirements we proposed in the 
NPRM. Accordingly, we are not adopting them in this interim final rule.

G. Recordkeeping (Sec.  172.820(h))

    In the NPRM, we proposed to require each rail carrier to maintain 
an accessible copy of the information and analyses associated with the 
collection of commodity data and route assessment and selection 
processes. We further proposed to require the distribution of such 
information to be limited to covered persons with a need-to-know, in 
accordance with Sensitive Security Information (SSI) regulations in 49 
CFR Parts 15 and 1520. The recordkeeping requirements are consistent 
with the 9/11 Commission Act.
    No comments were submitted in response to this paragraph; 
therefore, we are adopting it as proposed.

H. Compliance and Enforcement (Sec.  172.820(i))

    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.
    In the NPRM, we proposed to require carriers to revise their 
analyses or make changes to a route if the route selection 
documentation or underlying analyses are found to be deficient. In 
addition, we proposed that, are the carrier's chosen route is found not 
to be the safest and most secure practicable route available, the FRA 
Associate Administrator for Safety, in consultation with TSA, could 
require the use of an alternative route until such time as identified 
deficiencies are satisfactorily addressed.
    AAR questions whether PHMSA has the statutory authority to grant 
FRA the power to require the use of an alternative route. FRA's 
authority to require the use of an alternative route stems from Sec.  
5121(a) of the Federal hazardous materials transportation law. The 
Secretary of Transportation is authorized to issue an order, after 
notice and an opportunity for a hearing, requiring compliance with the 
Federal Hazmat Law or a regulation, order, special permit, or approval 
issued under Federal Hazmat Law. The authority provided in 49 U.S.C. 
5121(a) has been delegated to FRA, ``with particular emphasis on the 
transportation or shipment of hazardous materials by railroad'' (49 CFR 
1.49(s)) as well as to FAA, FMCSA, PHMSA, and USCG (with ``particular 
emphasis'' on the respective authority of these agencies).
    Dow and IME suggest that, consistent with fundamental concepts of 
due process, PHMSA should provide an immediate procedure to appeal an 
FRA determination to require the use of an alternative route. STB 
suggests that the regulation indicate that prior to making a 
determination to require the use of an alternative route, FRA and TSA 
will obtain the comments of STB regarding whether the contemplated 
alternative route(s) would be economically practicable. In addition, 
Dow requests that PHMSA clarify the role that TSA or other agencies 
will play in performing inspections under this rule, including 
addressing whether TSA will use third-party contractors to perform 
inspections.
    In the preamble to the NPRM, we indicated that FRA would 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. FRA is developing such procedures and is publishing a notice of 
proposed rulemaking concurrently with this interim final rule. We note 
in this regard that FRA will 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, FRA 
expects to mandate route changes only in exigent circumstances or where 
a carrier has acted in clear defiance of the requirements.
    We agree with STB's suggestion that FRA and TSA should consult with 
STB prior to making a determination to compel the use of an alternative 
route. In this interim final rule, we are adding language to this 
effect in the appropriate paragraph. STB's participation in this 
process will ensure that the FRA-TSA determinations concerning 
alternative routes fully consider the economic impacts and commercial 
practicability of the routes under consideration.
    As we explained in the preamble to the NPRM, with respect to 
enforcement of the security requirements in this interim final rule, 
FRA plans to work closely with TSA to develop a coordinated enforcement 
strategy to include both FRA and TSA inspection personnel. We note in 
this regard that TSA does not have the authority to enforce safety or 
security requirements established in the HMR. If in the course of an 
inspection of a railroad carrier or a rail hazardous material shipper, 
TSA identifies evidence of non-compliance with a DOT security 
regulation, TSA will provide the information to FRA and PHMSA for 
appropriate action. TSA will not directly enforce DOT security rules 
and will not initiate safety inspections. In accordance 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. To address Dow's concern, 
in this interim final rule we have included a clear statement that FRA, 
in cooperation with PHMSA, will enforce the requirements contained in 
this interim final rule.
    We are not implementing 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. Moreover, the 9/11 Commission Act does not provide 
for an approval process for route selections made by rail carriers. 
During FRA's normal inspection process, inspectors will review security 
plans, route analyses, and route choices for compliance with applicable 
regulations to ensure that the chosen route is the safest and most 
secure practicable route as supported by the analysis done by the 
carrier. 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

[[Page 20766]]

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. As indicated above, FRA may 
require a rail carrier to use an alternative route if the carrier's 
chosen route is found not to be the safest and most secure practicable 
route available.

I. Appendix D to Part 172--Rail Risk Analysis Factors

    In the NPRM, we proposed minimum criteria in Appendix D to Part 172 
to be used by rail carriers when performing the safety and security 
risk analyses required by Sec.  172.820. We listed 27 factors in this 
appendix for carriers to consider in the analyses.
    Generally, commenters support the rail risk analysis factors 
provided in Appendix D. For example, the Brotherhood of Locomotive 
Engineers and Trainmen, states that it wholeheartedly supports the risk 
analyses and that the appropriate metrics essential to a detailed risk 
analysis are provided in this appendix. Dow, AAR, and IME also provided 
comments. Most notably, IME indicated that it supports the factors, but 
suggest we enhance their usefulness by providing a ranking of the 
criteria listed in Appendix D or an indication of the order of 
precedence in which the factors should be considered. IME notes, for 
example, that a route with the best emergency response capability is 
likely to be a route that is more densely populated and asks how these 
factors should be weighted in such situations.
    We agree that how these factors are weighted and used is an 
extremely important aspect of an overall safety and security risk 
assessment methodology. However, we do not believe that a one-size-
fits-all approach to weighting the factors provides sufficient 
flexibility for rail carriers to address unique local conditions or 
concerns. We expect carriers to make conscientious efforts to develop 
logical and defendable systems using these factors. Tools to assist 
rail carriers to use the factors to assess the safety and security 
vulnerabilities of specific routes, including how to weight the factors 
in performing the analysis, are being developed with funding by a grant 
from the Department of Homeland Security. Initial products from this 
program were developed in 2007 and are currently being evaluated and 
refined. We expect the analysis tools to be available in 2008.
    In this interim final rule, we are adopting the list of factors as 
proposed in the NPRM, with modifications for consistency with 
requirements of the 9/11 Commission Act. Specifically, we are adding 
high consequence targets, as defined in Sec.  1551(h)(2) to the list of 
factors that must be considered.

J. Pre-Trip Security Inspections (Sec.  174.9)

    PHMSA proposed in the NPRM to increase the scope of the current 
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 power supply, a switch or timer, 
and a detonator or initiator.
    To guard against the possibility that 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 proposed 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 an inspection for any item that does not belong, is suspicious, or 
may be an IED. When an indication of tampering or a foreign object is 
found, the rail carrier must take appropriate actions, before accepting 
the rail car for further movement, to ensure the security of the rail 
car and its contents have not been compromised.
    The commenters overwhelmingly support the proposed inspection 
requirement. One commenter, BNSF Railway Company, asks PHMSA to provide 
specific details on how the inspection should be performed. It asks if 
walking the train or inspecting it from a slow moving vehicle would 
suffice for the inspection requirements. Another commenter, Dow, asks 
if PHMSA or TSA will provide the additional training necessary for rail 
carriers to comply with the proposed changes. The Chlorine Institute 
states that the additional training required in conjunction with 
regular training should not be overly burdensome.
    Based on commenters' support for enhanced security inspections, we 
are adopting the provision as proposed in the NPRM. We offer the 
following clarifications in response to the commenters' questions.
    The security inspection of each placarded rail car should be 
performed in conjunction with the safety inspection currently required 
under Sec.  174.9. The inspection is to be conducted at ground level 
and at a close enough distance so that any problems can be readily 
identified. A complete inspection will encompass the entire rail car at 
ground level, including the area beneath the rail car; thus, a proper 
inspection will cover more of a rail car than can be seen from a slow 
moving vehicle. An inspector must be able to identify signs of 
tampering, including closures and seals, suspicious items or items that 
do not belong, and other signs that the security of the car may have 
been compromised, including the presence of an IED. 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 have not been compromised before accepting the rail car for 
further movement.
    We understand from the comments submitted by AAR that training to 
enable rail carrier personnel to comply with the security inspection 
requirements is already provided in most carriers' current inspection 
programs. In addition, as we stated in the preamble to the NPRM, TSA is 
developing instructional materials to assist rail carriers in training 
employees on identifying IEDs and signs of tampering. This training 
material should be completed and available by the middle of 2008.

K. Preemptive Effect of This Interim Final Rule (Sec.  172.822)

    Because of the high level of interest in this issue, we proposed to 
address the preemptive effect of the final rule in the regulatory text. 
We explained our judgment that state and local regulation of rail 
routes for shipments of hazardous materials is preempted, by operation 
of the Federal hazardous materials transportation law (49 U.S.C. 5125) 
and the Federal Rail Safety Act (49 U.S.C. 20106), based on the 
agency's decision in Docket No. HM-232 to leave the routing of 
hazardous materials shipments to the judgment of rail carriers. We also 
stated our view that the route analysis and selection proposals in the 
NPRM, if adopted, ``would have the same preemptive effect upon states, 
political subdivisions, or Indian tribes,'' because those proposals 
would ``not change PHMSA's basic approach in HM-232 of leaving ultimate 
hazardous materials routing decisions to the rail carriers.'' 71 FR at 
76845 & 76846.
    We specifically invited comments from interested states, political 
subdivisions, and Indian tribes. Immediately after publication of the 
NPRM, we sent individual letters to the mayors of twelve cities where 
local officials had expressed concerns about routes of rail shipments 
of hazardous

[[Page 20767]]

materials and to the following organizations: 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. In these letters, we summarized the proposals in the 
NPRM and provided a copy of the NPRM, encouraged participation in the 
rulemaking and the public meeting on February 1, 2007, and offered to 
meet separately to discuss the rulemaking in detail. None of the 
organizations or cities accepted our offer to meet separately to 
discuss the NPRM, nor did they participate in the public meeting.
    In response to the NPRM and these additional letters, we received 
numerous comments on whether or not states and political subdivisions 
are preempted from imposing additional designations or restrictions on 
routes for rail shipments of hazardous materials, beyond the route 
analysis and selection process proposed in the NPRM. In general, 
comments from industry included statements that there is a need for 
``national uniformity on the rail routing of TIH, explosive, and 
radioactive materials'' (ACC); that ``[b]y preempting state laws that 
restrict the movement of hazardous materials, PHMSA will ensure 
hazardous materials continue to travel on the safest and most secure 
mode of transportation for these items'' (TFI, NITL); and that 
``Federal rulemaking and enforcement of hazardous materials regulations 
allows for a unified plan to effectively implement best practices 
throughout the nation'' and ``minimizes confusion for regulated 
entities by utilizing uniform criteria for all facilities'' (Chlorine 
Institute).
    However, some of the comments from shippers and carriers criticized 
the specific language proposed in the NPRM. IME questioned ``why the 
statement was limited to these proposals and does not encompass all of 
the agency's security rules, or even all of the agency's security plan 
rules.'' In a set of jointly-filed comments, Dow, Olin, Norfolk 
Southern, Union Pacific, and Occidental ask PHMSA to ``expand the 
preemption considerations described in proposed Sec.  172.820(g),'' 
because ``routing is only one aspect of state and local regulation that 
has the potential to conflict with federal regulations.'' These 
companies also stated that ``49 U.S.C. 20106 only authorizes state 
regulation in limited circumstances and excludes all references to 
`political subdivisions of a State' (i.e. local government safety or 
security regulation).'' (Emphasis in original) In its separate 
comments, Dow stated that ``PHMSA should make it abundantly clear that 
the federal hazardous material transportation law, 49 U.S.C. 5101 et 
seq., substantially subsumes all state, local, and Indian tribe laws on 
the subject matter of the use of rail lines for the transportation of 
hazardous materials.''
    AAR asserted that the NPRM ``fail[s] to provide the public with 
proper notice as to the scope of preemption. The fundamental preemption 
provision for railroad safety and security requirements is 49 U.S.C. 
section 20106,'' which ``applies to regulatory action taken by any 
agency within DHS or DOT, including FRA, PHMSA, and TSA.'' AAR also 
stated that the NPRM falls short in addressing preemption because the 
preemption provision it proposes only addresses one aspect of the NPRM, 
routing requirements; exceeds its statutory authority by providing that 
PHMSA can waive preemption of state or local routing requirements; and 
ignores the complete preemption of local regulation of railroad safety 
and security.
    Similarly, the City of Cleveland, Ohio stated that the regulatory 
text proposed in the NPRM should also refer to 49 U.S.C. section 20106, 
and also contended that Sec.  20106 allows ``state governments 
(interpreted by case law to also include local governments)'' to adopt 
an additional requirement on rail transportation which: ``(1) Is 
necessary to eliminate or reduce an essentially local safety or 
security hazard; is not incompatible with a law, regulation, or order 
of the United States Government; and (3) does not unreasonably burden 
interstate commerce.'' The City of Cleveland, Ohio also asserted that, 
as one of the high threat urban areas (HTUA) designated by TSA, ``it 
should be provided with special consideration with respect to its needs 
to adopt enhanced regulations and the possible need to enact specific 
routing restrictions for rail.''
    PHMSA agrees with those comments that suggest that the regulatory 
language on preemption should refer to both 49 U.S.C. section 5125 and 
20106, because both of those provisions must be considered in any 
determination whether a non-Federal requirement on rail transportation 
of hazardous materials is preempted. See CSX Transportation, Inc. v. 
Easterwood, 507 U.S. 658, 663 n. 4 (1993); CSX Transportation, Inc. v. 
Public Utilities Comm'n, 901 F.2d 497, 501 (6th Cir. 1990), cert. 
denied, 498 U.S. 1066 (1991) (``any regulation'' adopted by the 
Secretary of Transportation respecting railroad safety matters, 
regardless of the law under which the regulation is adopted, may have 
preemptive effect under Sec.  20106). Moreover, as stated in the NPRM, 
PHMSA has concluded (and the United States has taken the position in 
the pending lawsuit over the District of Columbia [District] ordinance) 
that both Sec. Sec.  5125 and 20106 preempt any non-Federal designation 
or restriction of routes for rail shipments of hazardous materials.
    PHMSA also agrees with those commenters who suggested that we 
clarify that the preemption provisions of 49 U.S.C. sections 5125 and 
20106 apply to all of the HMR, not just to Sec.  172.820. Therefore, in 
place of proposed Sec.  172.820(g), we are adding a new Sec.  172.822 
dealing with the preemptive effect of the HMR, including subpart I. 
Section 172.822 refers to the statutory standards for preemption in 49 
U.S.C. sections 5125 and 20106, which we believe would apply to any 
state, local, or Indian tribe requirement affecting the transportation 
of hazardous materials, including the designation or restriction of 
routes for rail shipments of hazardous materials.
    The District referred to the pending lawsuit by CSX Transportation, 
Inc. which challenges the District's ordinance against rail shipments 
of certain types and quantities of hazardous materials within 2.2 miles 
of the U.S. Capitol building. The District stated that ``the 
fundamental role of government is to protect its citizens. That role 
should be left to the District here, and not given to private industry, 
unless and until the federal government develops the capacity to make 
such determinations.'' The City of Baltimore, Maryland, emphasized that 
the decision of the Court of Appeals in the CSX litigation ``did not 
represent a final ruling on the merits of the issue,'' but simply 
overturned the District Court's denial of a preliminary injunction.
    The Chairman and three other members of the Homeland Security 
Committee of the U.S. House of Representatives stated there is a need 
for ``clear and mandatory direction from the federal government,'' and 
a ``finding of preemption is a gift to the industry and strips away 
local and state governments' ability to protect its citizens.''
    As we have indicated elsewhere in this rule, rerouting of hazardous 
materials to avoid densely populated or sensitive areas may well 
increase safety and security risks. Moreover, routing restrictions or 
prohibitions enacted by states or local governments transfer safety and 
security risks to other areas but do little to achieve enhanced safety 
and security for the rail transportation

[[Page 20768]]

system as a whole. We note that virtually every urban and suburban 
jurisdiction in the United States has a population density that is a 
matter of concern in planning for and regulating hazardous materials 
transportation; if all of the jurisdictions located on or near rail 
routes were to enact routing restrictions applicable to the rail 
transportation of hazardous materials, such transportation would come 
to a virtual standstill. The provisions adopted in this interim final 
rule will reduce the overall risks posed by the movement of explosive, 
PIH, and radioactive materials by rail, without imposing an undue 
burden on transportation.
    In Sec.  1528 of the 9/11 Commission Act, Congress restructured the 
preemption provision in 49 U.S.C. 20106 by placing the then-existing 
language in a new paragraph (a), and in a new paragraph (b) clarifying 
what state law causes of action for personal injury, death, or property 
damage are not preempted. The Joint Conference Report on Sec.  1528 
makes clear that the restructuring of 49 U.S.C. 20106 was not intended 
to make any substantive change to the meaning of new paragraph (a). 
Rather, as specified in Sec.  1551(h), the specific authority of 
states, localities, and Indian tribes is limited to providing 
information on the security risks to high-consequence targets along or 
in proximity to a route used by a rail carrier to transport security-
sensitive materials. Nonetheless, as discussed above, this does not 
prevent rail carriers from working with state, local, and tribal 
governments, including sharing information as necessary and 
appropriate, to enable these non-Federal government bodies to provide 
meaningful input into the rail carrier's process of conducting the 
route safety and security analysis, and making routing decisions based 
on that analysis, as required by this interim final rule. We encourage 
such cooperation between rail carriers and state, local, and tribal 
officials.
    In this regard, Eureka County, Nevada, expressed concern that the 
proposed requirements for rail carriers to select the routes based on 
an analysis of safety and security risks would preempt the announced 
program of the Department of Energy (DOE) to work with stakeholders, 
including state regional groups, in selecting routes for shipments of 
spent nuclear fuel to Yucca Mountain. We do not believe that this 
interim final rule will adversely affect the DOE program for selecting 
spent nuclear fuel routes. Indeed, the DOE effort to include 
stakeholders in its route selection deliberations is precisely the 
model we mandate that rail carriers follow as they implement the 
provisions adopted in this interim final rule--that is, to work with 
state and local governments in conducting route safety and security 
analyses and in making routing decisions based on the analyses. Nothing 
in this interim final rule should be construed or applied in a manner 
inconsistent with DOE fulfilling its obligations under Sec.  180(c) of 
the Nuclear Waste Policy Act to provide technical assistance and funds 
to states and tribes for training public safety officials on procedures 
for safe routine transportation and emergency response with regard to 
spend nuclear fuel or high level waste shipments to a repository.
    The National Association of SARA Title III Program Officials, the 
Colorado Emergency Planning Commission, and the Jefferson County, 
Colorado, Local Emergency Planning Committee stated that ``preemption 
must come with a benefit'' and that ``PHMSA should require carriers to 
consider increased risk to a community as part of their routing 
decisions.'' We note in this regard that the routing safety and 
security analyses adopted in this interim final rule require rail 
carriers to consider the safety and security risks of the routes they 
use, considering factors such as population density along the route, 
venues along the route (stations, events, places of congregation), 
emergency response capability along the route, and areas of high 
consequence along the route.

VIII. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This interim final rule 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 materials in 
intrastate, interstate, and foreign commerce. In addition, this interim 
final rule is published under authority of the Implementing the 
Recommendations of the 9/11 Commission Act of 2007. Section 1551 of the 
9/11 Commission Act directs the Secretary of Transportation, in 
consultation with the Secretary of Homeland Security, to publish a 
final rule by May 3, 2008, based on the NPRM published under this 
docket on December 21, 2006. In accordance with Section 1551(e) of the 
Act, PHMSA's final rule must require rail carriers of ``security-
sensitive materials'' to ``select the safest and most secure route to 
be used in transporting'' those materials, based on the rail carrier's 
analysis of the safety and security risks on primary and alternate 
transportation routes over which the carrier has authority to operate.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This interim final 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 interim final 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 interim 
final rule 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 interim final rule 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 a result of their route analyses. Because 
the interim final rule 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, 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 AAR comments and 
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

[[Page 20769]]

being quickly implemented. The development, procurement, and wide-
spread installation of the more technology-driven alternatives could 
take several years, however, PHMSA's previous security rule requires 
the railroads to have a security plan that includes en route security. 
This existing regulatory requirement, coupled with industry efforts to 
address security vulnerabilities, has caused 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 interim 
final rule will not be significant. We note in this regard that safety 
and security measures are intertwined and often complementary; 
therefore, separating security costs from safety costs is not feasible.
    We do not expect this interim final rule to result in a diversion 
from railroads to trucks. For the movements subject to this rule, 
transportation and distribution patterns, with associated 
infrastructure, tend to be well-established. For example, the vast 
majority of PIH offerors ship by rail; indeed, many do not have the 
infrastructure (loading racks, product transfer facilities) necessary 
to utilize trucks for such transportation. Moreover, the current fleet 
of cargo tank motor vehicles is insufficient to handle a significant 
shift of PIH cargoes from rail to highway--for example, there are only 
85 cargo tank motor vehicles used for the transportation of chlorine. 
Because it takes about four tank trucks to haul the amount of product 
that can be moved in a rail tank car, the industry would have to build 
many more trucks to accommodate a shift in transportation from rail to 
highway, necessitating a significant expansion in current tank truck 
manufacturing capacity. In addition, because it takes four trucks to 
transport the same amount of product as a single rail tank car, it 
generally is only cost-effective to utilize trucks for relatively 
limited distances. A farm cooperative or agricultural products 
distributor, for example, typically receives large quantities of 
anhydrous ammonia by rail car and offloads the material into storage 
tanks for subsequent truck movement to local customers.
    Changing these established transportation patterns would require 
substantial investment in new capacity and infrastructure, vastly 
exceeding the costs of complying with the interim final rule. Under 
these circumstances, we do not expect any shift in transportation mode 
as a result of implementation of this interim final rule. We note in 
this regard that no commenters raised this issue in their discussions 
of the potential impacts of the proposals in the NPRM. Overall 
transportation costs should not substantially increase because of this 
interim final rule.
    Estimating the security benefits of the new requirements is 
challenging. Accident causation probabilities can be estimated based on 
accident histories 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 that 
hazardous materials in transportation are a possible target of 
terrorism or sabotage. The probability that 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 in which 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. 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 
implementation requires the exercise of judgment and necessarily 
includes subjective elements.
    The major benefits expected to result from this interim final rule 
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 nine 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. The requirements of the interim final rule are intended to 
reduce the safety and security risks associated with the transportation 
of the specified hazardous materials. If the measures proposed in this 
interim final rule 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 interim final 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 interim final 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.
    Section VI.K above contains a discussion of PHMSA's conclusion that 
the decision in the March 25, 2003 final rule in HM-232 to leave to 
rail carriers the specifics of routing rail shipments of hazardous 
materials preempts all states, their political subdivisions, and Indian 
tribes from prescribing or restricting routes for rail shipments of 
hazardous materials, under Federal hazardous material transportation 
law (49 U.S.C. 5125) and the Federal Rail Safety Act (49 U.S.C. 20106). 
In that section, we also discuss the comments on the proposed language 
in the NPRM concerning the preemptive effect of HM-232 and this interim 
final rule and explain the reasons for adopting revised language in 49 
CFR 172.822.

D. Executive Order 13175

    We analyzed this interim final rule in accordance with the 
principles and criteria prescribed in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this interim final 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; thus, a tribal 
summary impact statement is not required.

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

    To ensure potential impacts of rules on small entities are properly 
considered, we developed this interim final rule in accordance with 
Executive Order 13272 (``Proper Consideration of

[[Page 20770]]

Small Entities in Agency Rulemaking'') and DOT's procedures and 
policies to promote compliance with the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.).
    The Regulatory Flexibility Act 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 interim final 
rule on small entities.
    Not all small railroads will be required to comply with the 
provisions of this interim final rule. 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 interim final rule. 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 interim final 
rule amount to between 0.01% and 0.09% of a small railroad's annual 
operating revenue.
    This interim final rule 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 their relative interests 
do 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 rare for small railroads to compete with each other. As 
mentioned above, small railroads generally serve smaller, lower density 
markets and customers. They tend to operate in markets where there is 
not enough traffic to attract or sustain rail competition, large or 
small. Given the significant capital investment required (to acquire 
right-of-way, build track, purchase fleet, etc.), new entry in the 
railroad industry is especially rare. Thus, even to the extent the 
interim final rule may have an economic impact, it should have no 
impact on the intramodal competitive position of small railroads.
    We did not receive any comments in opposition to our conclusion 
that this rulemaking will not have a significant impact on a 
substantial number of small entities. Based on the lack of opposing 
comments, the foregoing discussion, and more detailed analysis in the 
regulatory evaluation for this interim final rule, I certify that the 
provisions of this interim final rule, if adopted, will not have a 
significant impact on a substantial number of small entities.

F. Paperwork Reduction Act

    This interim final rule may result in an increase in annual burden 
and costs under Office of Management and Budget (OMB) Control Number 
2137-0612. PHMSA currently has an approved information collection under 
OMB Control No. 2137-0612, ``Hazardous Materials Security Plans'' 
expiring May 31, 2009.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. 5 CFR 1320.8(d) requires that 
PHMSA provide interested members of the public and affected agencies an 
opportunity to comment on information and recordkeeping requests.
    This notice identifies a revised information collection request 
that PHMSA submitted to OMB for approval based on the requirements in 
this rule. PHMSA has developed burden estimates to reflect changes in 
this proposed rule. We estimate that the total information collection 
and recordkeeping burden for the current requirements and as specified 
in this rule would be 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:
    Total Annual Number of Respondents: 139.
    Total Annual Responses: 139.
    Total Annual Burden Hours: 13,677.
    Total Annual Burden Cost: $831,971.91.
    Direct your requests for a copy of the information collection to 
Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation, 
Pipeline & Hazardous Materials Safety Administration (PHMSA), East 
Building, Office of Hazardous Materials Standards (PHH-11), 1200 New 
Jersey Avenue Southeast Washington DC, 20590, Telephone (202) 366-8553.

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 interim final 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, 42 U.S.C. 4321-4375, 
requires that federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order federal agencies to conduct an environmental review considering: 
(1) The need for the proposed action; (2) alternatives to the proposed 
action; (3) probable environmental impacts of the proposed action and 
alternatives; and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b).

[[Page 20771]]

    In accordance with the CEQ regulations, we completed an 
environmental assessment for this interim final rule that considers the 
potential environmental impacts of three alternatives. The 
environmental assessment is available for review in the public docket 
for this rulemaking.
    The provisions of this interim final rule build on current 
regulatory requirements to enhance the transportation safety and 
security of shipments of hazardous materials transported by rail, 
thereby reducing the risks of an accidental or intentional release of 
hazardous materials and consequent environmental damage. The net 
environmental impact, therefore, will be moderately positive. There are 
no significant environmental impacts associated with this interim final 
rule.

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://www.regulations.gov.

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.

0
In consideration of the foregoing, we are amending title 49 Chapter I, 
Subchapter C, as follows:

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

0
1. The authority citation for part 172 continues to read as follows:

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


0
2. Revise the title of subpart I of part 172 to read as follows:

Subpart I--Safety and Security Plans

0
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 is subject to 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 (including anhydrous 
ammonia); 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. Not later than 90 days after the end of each 
calendar year, a rail carrier must compile commodity data for the 
previous calendar year for the materials listed in paragraph (a) of 
this section, except that for calendar year 2008, data may be compiled 
for the 6-month period beginning July 1, 2008. The following 
stipulations apply to data collected:
    (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 materials transported (instead of only highway route controlled 
quantities of Class 7 materials) and for all Division 6.1 materials 
transported (instead of only Division 6.1 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.
    (1) The safety and security risks present must be analyzed for the 
route and railroad facilities along the route. For purposes of this 
section, railroad facilities are railroad property including, but not 
limited to, classification and switching yards, storage facilities, and 
non-private sidings. This term does not include an offeror's facility, 
private track, private siding, or consignee's facility.
    (2) In performing the analysis required by this paragraph, the rail 
carrier must seek relevant information from state, local, and tribal 
officials, as appropriate, regarding security risks to high-consequence 
targets along or in proximity to the route(s) utilized. If a rail 
carrier is unable to acquire relevant information from state, local, or 
tribal officials, then it must document that in its analysis. For 
purposes of this section, a high-consequence target means a property, 
natural resource, location, area, or other target designated by the 
Secretary of Homeland Security that is a viable terrorist target of 
national significance, the attack of which by railroad could result in 
catastrophic loss of life, significant damage to national security or 
defense capabilities, or national economic harm.
    (d) Alternative route analysis. (1) For each calendar year, a rail 
carrier must identify practicable alternative routes 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 routes 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. When determining practicable alternative 
routes, the rail carrier must consider the use of interchange 
agreements with other rail carriers. The written alternative route 
analysis must also consider:
    (i) Safety and security risks presented by use of the alternative 
route(s);
    (ii) Comparison of the safety and security risks of the 
alternative(s) to the primary rail transportation route, including the 
risk of a catastrophic release from a shipment traveling along each 
route;
    (iii) Any remediation or mitigation measures implemented on the 
primary or alternative route(s); and
    (iv) Potential economic effects of using the alternative route(s), 
including but not limited to the economics of the commodity, route, and 
customer relationship.
    (2) In performing the analysis required by this paragraph, the rail 
carrier should seek relevant information from state, local, and tribal 
officials, as appropriate, regarding security risks to high-consequence 
targets along or in proximity to the alternative routes. If a rail 
carrier determines that it is not

[[Page 20772]]

appropriate to seek such relevant information, then it must explain its 
reasoning for that determination in its analysis.
    (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 covered 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 initial rail 
transportation route analysis, alternative route analysis, and route 
selection process required under paragraphs (c), (d), and (e) of this 
section must be completed by September 1, 2009. In subsequent years, 
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. The initial 
analysis and route selection determinations required under paragraphs 
(c), (d), and (e) of this section must include a comprehensive review 
of the entire system. Subsequent 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, 
changes in the nature of high-consequence targets located along, or in 
proximity to, the route, and any 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 calendar year.
    (2) 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) Storage, delays in transit, and notification. With respect to 
the materials specified in paragraph (a) of this section, each rail 
carrier must ensure the safety and security plan it develops and 
implements under this subpart includes all of the following:
    (1) A procedure under which the rail carrier must formally consult 
with offerors and consignees in order to develop measures for 
minimizing, to the extent practicable, the duration of any storage of 
the material incidental to movement (see Sec.  171.8 of this 
subchapter). Such measures should be implemented with mutual consent of 
all parties.
    (2) Measures to prevent unauthorized access to the materials during 
storage or delays in transit.
    (3) Measures to mitigate risk to population centers associated with 
in-transit storage.
    (4) Measures to be taken in the event of an escalating threat level 
for materials stored in transit.
    (5) 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. 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. Notification should be made by a method acceptable to both the 
rail carrier and consignee.
    (h) 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 thereof) that is accessible at, or 
through, its principal place of business and must make the record 
available upon request, at a reasonable time and location, to an 
authorized official of the Department of Transportation or the 
Department of Homeland Security. 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 (c), (d), (e), and (f) of this section to covered 
persons with a need-to-know, as described in parts 15 and 1520 of this 
title.
    (i) Compliance and enforcement. If the carrier's route selection 
documentation and underlying analyses are found to be deficient, the 
carrier may be required to revise the analyses or make changes in route 
selection. If DOT finds that a chosen route is not the safest and most 
secure practicable route available, the FRA Associate Administrator for 
Safety, in consultation with TSA, may require the use of an alternative 
route. Prior to making such a determination, FRA and TSA will consult 
with the Surface Transportation Board (STB) regarding whether the 
contemplated alternative route(s) would be economically practicable.

0
4. Add new Sec.  172.822 to read as follows:


Sec.  172.822  Limitation on actions by states, local governments, and 
Indian tribes.

    A law, order, or other directive of a state, political subdivision 
of a state, or an Indian tribe that designates, limits, or prohibits 
the use of a rail line (other than a rail line owned by a state, 
political subdivision of a state, or an Indian tribe) for the 
transportation of hazardous materials, including, but not limited to, 
the materials specified in Sec.  172.820(a), is preempted. 49 U.S.C. 
5125, 20106.

0
5. Add new Appendix D to part 172, to read as follows:

Appendix D to Part 172--Rail Risk Analysis Factors

    A. 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.
    B. 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 are railroad property including, 
but not limited to, classification and switching yards, storage 
facilities, and non-private sidings; however, they do not include an 
offeror's facility, private track, private siding, or consignee's 
facility. Each rail carrier must use best efforts to communicate 
with its shippers, consignees, and interlining partners to ensure 
the safety and security of shipments during all stages of 
transportation.
    C. 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.
    D. The safety and security risk analysis must consider current 
data and information as well as changes that may reasonably be 
anticipated to occur during the analysis year. Factors to be 
considered in the performance of this safety and security risk 
analysis include:
    1. Volume of hazardous material transported;

[[Page 20773]]

    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, including high 
consequence targets as defined in Sec.  172.820(c);
    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, including any non-public threat scenarios 
provided by the Department of Homeland Security or the Department of 
Transportation for carrier use in the development of the route 
assessment;
    22. Measures in place to address apparent safety and security 
risks;
    23. Availability of practicable 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

0
6. The authority citation for part 174 continues to read as follows:

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

0
7. 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 may have been compromised on 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.
    (c) If a rail car does not conform to the safety and security 
requirements of this subchapter, the carrier may not forward or 
transport the rail car until the deficiencies are corrected 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 action to ensure the security of the rail 
car and its contents have not been compromised before accepting the 
rail car for further movement. If the carrier determines that 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 security issues before 
forwarding the rail car for further movement.

    Issued in Washington, DC on April 11, 2008, under the authority 
delegated in 49 CFR part 1.
Carl T. Johnson,
Administrator.
[FR Doc. E8-8185 Filed 4-15-08; 8:45 am]
BILLING CODE 4910-60-P