Federal Register, Volume 88 Issue 122 (Tuesday, June 27, 2023)

[Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)]
[Proposed Rules]
[Pages 41541-41560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13467]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 174, and 180

[Docket No. PHMSA-2016-0015 (HM-263)]
RIN 2137-AF21

Hazardous Materials: FAST Act Requirements for Real-Time Train
Consist Information

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes amendments to its Hazardous Materials
Regulations to require all railroads to generate in electronic form,
maintain, and provide to first responders, emergency response
officials, and law enforcement personnel, certain information regarding
hazardous materials in rail transportation to enhance emergency
response and investigative efforts. The proposal responds to a safety
recommendation of the National Transportation Safety Board and
statutory mandates in The Fixing America's Surface Transportation Act,
as amended, and complements existing regulatory requirements pertaining
to the generation, maintenance, and provision of similar information in
hard copy form, as well as other hazard communication requirements.

DATES: Comments must be received by August 28, 2023. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.

ADDRESSES: You may submit comments by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
Fax: 1-202-493-2251.
Mail: Docket Management System; U.S. Department of
Transportation, Docket Operations, M-30, Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m. EST, Monday
through Friday, except Federal holidays.
Instructions: Include the agency name and docket number PHMSA-2016-
0015 (HM-263) or RIN 2137-AF21 for this rulemaking at the beginning of
your comment. Note that all comments received will be posted without
change to https://www.regulations.gov, including any personal
information provided. If sent by mail, comments must be submitted in
duplicate. Persons wishing to receive confirmation of receipt of their
comments must include a self-addressed stamped postcard.
Docket: For access to the dockets to read background documents or
comments received, go to https://www.regulations.gov or DOT Docket
Operations Office (see ADDRESSES).
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments responsive to this NPRM contain
commercial or financial information that is customarily treated as
private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent
to Dirk Der Kinderen, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that PHMSA
receives which is not specifically designated as CBI will be placed in
the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, 202-366-8553,
Standards and Rulemaking Division, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.

[[Page 41542]]

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
A. What is the purpose of the proposed regulatory action?
B. What are the key provisions?
C. What is the economic impact?
II. Electronic Hazard Communication for Rail Transportation
Emergency Response
A. What action is being proposed?
B. What is PHMSA's authority for this proposed action?
C. Does this proposed action apply to me?
III. Background
A. What is train consist information?
B. What is currently required regarding train consist
information?
C. Is there an alternative to the current train consist
information requirements?
D. How does train consist information affect rail transportation
safety?
E. How will requiring electronic train consist information
affect rail transportation safety?
F. What does PHMSA mean by real-time?
G. How has PHMSA engaged stakeholders?
IV. Section-by-Section Review of Proposed Amendments
A. Sections 171.8 and 180.503
B. Section 174.26
C. Section 174.28
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Orders 12866 and 14094, and DOT Regulatory Policies
and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International Trade Analysis
K. National Technology Transfer and Advancement Act
L. Cybersecurity and Executive Order 14082
M. Severability

I. Executive Summary

A. What is the purpose of the proposed regulatory action?

The Pipeline and Hazardous Materials Safety Administration (PHMSA)
proposes to amend the Hazardous Materials Regulations (HMR; 49 Code of
Federal Regulations (CFR) parts 171 to 180) in response to
congressional mandates and a safety recommendation of the National
Transportation Safety Board (NTSB) by requiring all railroads
transporting hazardous materials to generate in electronic form train
consist information, maintain that information off-the-train, update
that information in real-time, and provide that information to
authorized ``emergency response personnel'' \1\ in advance of their
arrival to an accident or incident. As such, railroads operating a
train carrying hazardous materials will be required to push that
information to state-authorized local first responders needing that
information promptly following either an accident involving that train,
or an incident involving the release or suspected release of hazardous
material from that train. Railroads must also ensure that, in updating
that electronic train consist information, they also update hard
(printed) copy versions of the same information provided to train crews
such that both hard (printed) copy and electronic versions of that
information are consistent, accurate, and available when needed most.
PHMSA expects this enhanced, proactive approach will ensure that
emergency response personnel have timely, accurate, actionable
information regarding the hazardous materials being transported and the
hazards they may encounter when they are en route to or reach the scene
of a rail accident or incident, thereby reducing the risks to
surrounding communities and the environment while expediting site
remediation, restoration of rail service, and community engagement
efforts as investigation activity proceeds. While PHMSA understands the
availability of electronic real-time train consist information may not
have changed the outcome of the recent Norfolk Southern train
derailment in East Palestine, OH, that accident and similar events that
have occurred in recent years highlight the importance of providing
emergency response personnel with timely, complete, and accurate
information regarding hazardous materials within a train--as any
additional time for responders to prepare for what they will encounter
may reduce risks and result in significant public safety, commercial,
and environmental benefits.
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\1\ PHMSA understands ``emergency response personnel'' may
include any personnel from any of Federal (e.g., PHMSA, Federal
Railroad Administration, National Transportation Safety Board, U.S.
Environmental Protection Agency, or Federal Emergency Management
personnel), or organizations that state or local governments
authorize to perform emergency response activities.
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The amendments proposed herein respond to a mandate in section 7302
of The Fixing America's Surface Transportation Act (FAST Act, Pub. L.
114-94), as amended by the Investment Infrastructure and Jobs Act (Pub.
L. 117-58),\2\ to require Class I railroads transporting hazardous
materials to generate accurate, real-time, electronic train consist
information that must be provided ``to State and local first
responders, emergency response officials, and law enforcement personnel
that are involved in the response to or investigation of an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials.'' However, consistent with the
broader language within an NTSB safety recommendation following the
2005 collision of two freight trains near Anding, MS, PHMSA proposes
extending the NPRM's proposed requirements to all railroads in light of
the risks to public safety and the environment from delay in responding
to releases from even smaller, Class II and III railroads on which
hazardous materials are transported.
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\2\ Codified at 49 U.S.C. 20103 note.
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B. What are the key provisions?

1. Definition of ``Train Consist Information'': PHMSA proposes to
amend the definition of ``train consist'' at Sec. 171.8 to be
recharacterized as ``train consist information,'' meaning a hard
(printed) copy or electronic record of the position and contents of
hazardous materials rail cars of a train where the record includes
information required by Sec. 174.26. Specifically, the information
includes the contact information for a railroad-designated emergency
point of contact; the point of origin and destination of the hazardous
materials on the train subject to shipping paper information
requirements; shipping paper information required by Sec. Sec. 172.201
to 172.203; and emergency response information required by Sec.
172.602(a). PHMSA also proposes a conforming revision to Sec. 180.503
to delete a definition of ``train consist'' that is not used in that
part.
2. Notice to Train Crews: PHMSA proposes to amend the provision to
enhance existing requirements at Sec. 174.26 to provide train consist
information (as PHMSA proposes to define that term at Sec. 171.8) in
hard (printed) copy to train crews prior to movement of hazardous
materials by rail. Specifically, PHMSA proposes to clarify
responsibilities for railroads to provide a hard (printed) copy version
of train consist information to train crews, for train crews to update
that hard (printed) copy version of train consist information, and that
the hard (printed) copy of the train consist information must be
maintained in a conspicuous location of an occupied locomotive.
Railroads must also ensure that train consist information is generated
and updated in electronic form, maintained offsite of the train itself,
and immediately accessible by the railroad's designated emergency
response point of

[[Page 41543]]

contact. Railroads must ensure the hard (printed) copy and electronic
forms of the train consist information are at all times accurate and
consistent.
3. Emergency Response Information Sharing Requirements: PHMSA
proposes a new section at Sec. 174.28 that will establish real-time,
electronic train consist information-sharing requirements for hazardous
materials transported by rail. All railroads will need to generate and
provide train consist information by electronic means to authorized
emergency response personnel that could be involved in the response
to--or investigation of--an accident, incident, or public health or
safety emergency involving the rail transportation of hazardous
material. Information generated and shared in accordance with this
section must be accurate, provided in a secure and confidential manner
consistent with the intent of the FAST Act, and accessible at any time
by authorized emergency response personnel. In the event of either an
accident, or incident involving the release or suspected release of
hazardous material, railroads operating trains carrying hazardous
material will be required to promptly forward that train consist
information in electronic form to state-authorized local first
responders within a 10-mile radius of the incident or accident to
assist in response and investigation efforts.

C. What is the economic impact?

PHMSA estimates that the proposed rule would impact seven Class I
railroads, 11 Class II railroads, and 585 Class III railroads and
estimates the undiscounted total financial impact of the rulemaking
over a 10-year analysis period to be about $46.3 million in 2021
dollars, for an average annual cost of $4.6 million. The discounted
total cost of the rulemaking over the analysis period is estimated to
be $32.8 million in 2021 dollars at a 7 percent discount rate. The
benefits of this proposed rule will depend greatly on the effectiveness
of having timely access to real-time train consist information to
improve emergency responders' ability to respond to rail accidents and
incidents, which may be a high-consequence/low-probability event such
as the Norfolk Southern train derailment at East Palestine, OH. PHMSA
anticipates the proposed rule will improve emergency responders'
ability to promptly identify all the hazardous materials cars involved
in an accident and to timely assess the threat from a hazardous
materials release. PHMSA estimated the annual damage cost of hazardous
material incidents on rail to be $15.6 million in 2021 dollars.
Therefore, the proposed rule would have to reduce damage costs by about
30 percent for the monetized benefits of the proposed rule to equal
costs. The following table summarizes the annual costs and benefits of
the major provisions of the proposed rule in constant 2021 dollars.

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Average annual cost
Proposed requirement ------------------------------------------------ Benefit Breakeven
Undiscounted 3% 7%
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Amending the definition of train .............. .............. .............. By aligning the definition of NA.
consist information. the FAST Act with the language
in the existing regulation,
this amendment improves
regulatory clarity.
Amending notice to train crew.......... $1,051,753 $897,167 $738,708 By improving emergency Cost-effective if this
responders' ability to requirement reduces the
promptly identify all the consequences of hazardous
hazardous materials involved material incidents by rail by
in an accident and assess the about 27 percent.
threat from a hazardous
materials release, the
proposed provisions will
reduce injuries and
fatalities, material loss and
response costs, and delays
caused by closures.
New information sharing requirement.... 3,169,069 1,025,493 494,850
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Total.............................. 4,220,822 1,922,660 1,233,557
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As illustrated by the Norfolk Southern train derailment incident at
East Palestine, OH, such accidents can have substantial impacts that
are not captured by this preliminary regulatory impact analysis
(PRIA)--including the long-term environmental concerns and health risks
(both physiological and psychological) for local residents. Research
also shows that such accidents can reduce property values which--in
turn--can slow down economic activity in the area.\3\ Additionally, of
the 140,000 total route-miles of track in the U.S., 104,000 miles are
in rural and tribal areas, suggesting that train-related hazardous
material incidents mainly happen in areas populated by disadvantaged
communities.\4\ PHMSA acknowledges and considers these unquantified
factors in selecting the provisions of the proposed rulemaking.
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\3\ For example, a study that examines the impact of 33
derailments involving hazardous material on property values in New
York State between 2004 and 2013 found that, on average, a
derailment depreciates housing values within a one-mile radius by
5%-8% (Chuan Tang et al. (2020). Rail accidents and property values
in the era of unconventional energy production. Journal of Urban
Economics, 120, https://doi.org/10.1016/j.jue.2020.103295
\4\ See PHMSA, ``Improving Rail in Rural Communities,'' https://railroads.dot.gov/rural (last accessed May 3, 2023).
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II. Electronic Hazard Communication for Rail Transportation Emergency
Response

A. What action is being proposed?

PHMSA proposes to require all railroads to generate, maintain
externally to the train itself, and update in real-time, accurate train
consist information in electronic form, and to make this information
available to authorized first responders, emergency response officials,
and law enforcement personnel at all times upon request.

[[Page 41544]]

Further, PHMSA proposes that, in the event of either an accident, or an
incident involving the release or suspected release of hazardous
material, railroads operating trains carrying hazardous material must
promptly forward that train consist information to state-authorized
local first responders within a 10-mile radius of the incident or
accident. PHMSA also proposes conforming and clarifying revisions to
existing HMR requirements governing notification (via hard copy,
specially printed, documentation) of train crews for trains carrying
hazardous material.
PHMSA proposes a compliance period of one year from the date of
publication of a final rule in this rulemaking to allow railroads
sufficient time to implement (via conducting training, procurement and
installation of pertinent equipment and software, and development of
procedures and security protocols) measures for generating, organizing,
and providing to Federal, state and local first responders, emergency
response officials, and law enforcement personnel train consist
information in electronic form. Detailed discussions of changes to
sections of the HMR based on this proposed action are provided in
Section IV. below.

B. What is PHMSA's authority for this proposed action?

PHMSA's statutory authority for this action is twofold. Section of
7302 of the FAST Act, as amended by the Investment Infrastructure and
Jobs Act, directs the Secretary to issue regulations to require Class I
railroads \5\ transporting hazardous materials to generate accurate,
real-time, electronic train consist information that must be provided
``to State and local first responders, emergency response officials,
and law enforcement personnel that are involved in the response to or
investigation of an accident, incident, or public health or safety
emergency involving the rail transportation of hazardous materials.''
Specifically, section 7302(a)(1) directs the Secretary to require that
Class I railroads include the following data in connection with such
electronic, real-time train consist information:
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\5\ The Surface Transportation Board categorizes rail carriers
into Class I, Class II, and Class III based on carrier's annual
revenues. The threshold for Class I is a carrier earning revenue
greater than approximately $900 million/year (2022); the threshold
for Class II rail carriers is approximately $40 million/year; and
the threshold for Class III rail carriers is any value less than the
threshold for Class II railroads.
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(1) The identity, quantity, and location of hazardous materials on
a train;
(2) The point of origin and destination of the train;
(3) Any emergency response information or resources required by the
Secretary; and
(4) An emergency response point of contact designated by the Class
I railroad.
Section 7302(a)(4) directs the Secretary to prohibit any Class I
railroad, employee, or agent from withholding, or causing to be
withheld, that information from authorized entities. Section 7302(a)(5)
directs the Secretary to establish security and confidentiality
protections, including protections from the public release of
proprietary information or security-sensitive information, to prevent
the release of real-time train consist information to unauthorized
persons. Finally, section 7302(a)(6) directs the Secretary to allow
each Class I railroad to enter into a memorandum of understanding with
any Class II railroad or Class III railroad that operates trains over
the Class I railroad's line to incorporate the Class II railroad's or
Class III railroad's train consist information.
In addition to the FAST Act mandate, the Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101 et seq.) at 49
U.S.C. 5103 gives the Secretary general authority to issue regulations
for the safe transportation of hazardous material in commerce.
The Secretary delegates the above statutory authorities to PHMSA at
49 CFR 1.97.

C. Does this proposed action apply to me?

PHMSA's proposed action applies to all railroads in commerce.
Although the FAST Act contains an explicit requirement only for Class I
railroads transporting hazardous materials to generate and provide
accurate, real-time, electronic train consist information, PHMSA
proposes--pursuant to its delegated general authority under the HMTA to
make regulations for the safe transportation of hazardous materials
including those materials transported by rail--to require Class II and
Class III railroads (hereafter referred to as ``regional and short line
railroads'') to also compile, update, and forward (as proposed herein)
accurate, real-time train consist information in electronic form. PHMSA
notes that this broader approach is consistent with the inclusive
language within NTSB safety recommendation R-07-04 issued following the
2005 collision of two freight trains containing hazardous materials
near Anding, MS; safety recommendation R-07-04 called on PHMSA to
require that all railroads immediately provide real-time train consist
information to emergency responders following an accident or incident
involving rail transportation of hazardous material.\6\ NTSB's safety
recommendation is consistent with the common-sense proposition that
rail transportation of hazardous material is not limited to Class I
railroads, and thus the prospect of an accident or emergency is also
not limited to those railroads. Regional and short line railroads also
transport hazardous material and account for over a third of freight
rail in the United States, covering about 50,000 miles of the 140,000-
mile U.S. freight rail network. Further, regional and short line
railroads are typically the first and last mile of service and often
serve as the only connection of rural, small town, and tribal areas of
the United States to the nationwide network of railroads--similarly,
emergency response personnel within those areas are likely to be the
only personnel close enough to the incident or accident to respond
quickly. Thus, it is vital for emergency responders and law enforcement
in areas served by these railroads to also have access to accurate and
real-time train consist information.
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\6\ NTSB, NTSB/RAR-07/01, ``Collision of Two CN Freight Trains
near Anding, Mississippi on July 10, 2005'' at 48 (Mar. 2007) (NTSB
Report), https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf.
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III. Background

A. What is train consist information?

The train consist generally refers to the contents of a train
including the position of locomotives and cars, as well as both non-
hazardous and hazardous freight within those cars. The HMR currently
defines at Sec. 171.8 the ``train consist'' as a written record of the
contents and location of each rail car \7\ in a train.
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\7\ A rail car means a car designed to carry freight or non-
passenger personnel by rail, and includes a box car, flat car,
gondola car, hopper car, tank car, and occupied caboose.
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B. What is currently required regarding train consist information?

The HMR at Sec. 174.26(a) requires that railroad train crews must
have a paper document that reflects the current position in the train
of each rail car containing a hazardous material and must update it to
indicate changes in the placement of a hazardous material rail car
within the train.\8\ The train crew

[[Page 41545]]

may update the document by handwriting on it or by appending or
attaching another document to it. The train crew must also have a copy
of a document showing the information required on shipping papers,
including applicable emergency response information. See Sec.
174.26(b).
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\8\ PHMSA notes that the train consist documentation
requirements discussed throughout this NPRM complement other hazard
communication requirements within part 172 pertaining to marking
(subpart D), labelling (subpart E), and placarding (subpart F) of
hazardous material packages and transport containers and vehicles.
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A common practice for railroads in satisfying the above regulatory
requirements is capturing all required information in a single hard
copy (generally printed) document (sometimes referred to as the ``train
consist'' or ``train list'') that is provided to train crews. Some
railroads, primarily those designated as Class I, compile information
in an electronic database (which could be maintained by the railroad
itself, or a third party vendor utilizing the ``cloud'') and provide
hard copies of some of the database information to the train crew.
Those electronic databases may include more information than just the
contents and location of a hazardous material rail car in the train:
they may incorporate information linking the hazardous material at each
location in the train with shipping papers (commonly referred to as
bills of lading, required by part 172, subpart C) and emergency
response information (required by part 172, subpart G).

C. Is there an alternative to the current train consist information
requirements?

Starting in 2019, several railroads applied for and were granted
special permits to allow train consist information documentation to be
maintained and communicated using only electronic means in connection
with specific service routes. To date, seven special permits (SPs) have
been issued,\9\ including for six Class I railroads: DOT-SP 20954
(issued to BNSF Railway Company); DOT-SP 21046 (issued to CSX
Transportation and recently expired); DOT-SPs 21053 and 21323 (issued
to Canadian National Railway Company); DOT-SP 21059 (issued to Union
Pacific Railroad Company); and DOT-SP 21110 (issued to Norfolk Southern
Railroad). A single special permit (DOT-SP 21266) has been issued to a
short line railroad: Richmond Pacific Railroad. The special permits
provide operational controls and reporting requirements including the
following items of interest:
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\9\ Special permits may be reviewed at www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search. DOT-SPs 20954,
21059, 21110, 21266, and 21323 are active while DOT-SP 21053 is
active under pending renewal, along with several party-to
applications, and DOT-SP 21046 expired by its terms. PHMSA also
notes that although Norfolk Southern is a grantee of a special
permit, the routes that they included in their application did not
include the route along East Palestine, OH. PHMSA will consider in
any final rule in this proceeding whether amendment or revocation of
those previously-issued special permits would be (based on the
content of that final rule) warranted. That said, the PHMSA seeks
comment on how the special permits may be impacted by the proposed
regulatory amendments in this NPRM.
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(1) Train consist information must be readily available by
electronic means to government officials (e.g., emergency response
personnel);
(2) Updates of the train consist information must be done
electronically and in real-time;
(3) More than one method of electronic information-sharing must be
available to first responders should the primary method (i.e., cellular
network devices) not work, as well as a redundant communication option
should electronic service be unavailable;
(4) Upon notification of an incident to response authorities, the
train consist information must be provided;
(5) Training must be provided to first responders along portions of
a route without cellular service on methods of communication during an
incident; and
(6) Incidents where information was shared electronically with
first responders must be documented and a consolidated report must be
provided to PHMSA discussing successes and any corrective actions.
PHMSA is not aware of any negative impacts associated with
railroads operating under these special permits authorizing electronic
train consist information, and based on incident experience, has had
positive outcomes from the practice. For example, BNSF Railway Company
has reported four occasions where electronic train consist information
was shared with first responders to assist in prompt emergency
response.

D. How does train consist information affect rail transportation
safety?

Train consist information aids Federal and state first responders,
emergency response officials, and law enforcement personnel in ensuring
coordinated action to assess an accident, incident, or public health or
safety emergency involving hazardous materials in rail transportation,
which in turn informs the appropriate response action (e.g., fire
suppression media) precisely when every second counts. Those officials
typically rely heavily on this information--along with hazard
communication required pursuant to part 172 requirements pertaining to
marking (subpart D), labelling (subpart E), and placarding (subpart
F)--for timely awareness about hazardous material on a train in
emergency situations. Indeed, because placarding may be damaged or
inaccessible (due to fire, hazardous material release or orientation of
the rail car), train crews may be injured or unavailable, or wireless
telecommunications service may be limited, the hard copy form of train
consist information can often be the only accurate basis of knowledge
on the hazardous material within a train. Further, because emergency
response may involve personnel from different and distant jurisdictions
converging on a single location at different times,\10\ there is a
premium on having a common understanding of the hazardous material on
the train as coordinated response efforts commence. Timely, accurate
train consist information also ensures investigation efforts by Federal
and state personnel can promptly identify systemic safety issues
meriting broader dissemination and address community concerns regarding
the availability and reliability of information following an accident
or incident.
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\10\ PHMSA notes that if an incident or accident occurs in a
rural, small town, or Tribal areas, local emergency response
personnel--may be the only personnel who can respond promptly to the
incident or accident.
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An example taken from a 2007 NTSB investigation report \11\
underscores the importance of the availability of timely, accurate
train consist information documentation. In the early morning hours of
July 10, 2005, two Canadian National Railway Company (CN) trains
transporting mixed freight including hazardous material collided head-
on in Anding, MS. The collision resulted in the derailment of six
locomotives and 17 cars. About 15,000 gallons of diesel fuel were
released from the locomotives and resulted in a fire that ended up
burning for roughly 15 hours. There also was a limited release of
hazardous materials from venting tank cars; however, that did not
contribute to the severity of the accident. Two crewmembers from each
train were killed in the accident and the train consist information
aboard the locomotives was destroyed. Nearly 100 residents from the
surrounding community were evacuated from the area as a precaution. The
accident ultimately resulted in ca. $10 million (in 2005 dollars) of
property damage and environmental clean-up costs.
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\11\ NTSB Report at 2-10.
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When emergency responders arrived on the accident scene within a
half-hour of the collision, it was dark; the fire was intense, and
heavy black smoke prevented visual identification of all the hazardous
material tank cars in the

[[Page 41546]]

wreckage. The first CN official arrived at the scene an hour after the
collision and told emergency responders that he did not have any train
consist information documentation or knowledge about the hazardous
materials on either train. The absence of train crews to pass along
train consist information and the inability to access the information
on the locomotive--i.e., the lack of immediately available train
consist information--severely restricted the ability of emergency
responders to make a quick assessment of the potential for a hazardous
materials release and thus to respond appropriately.
The CN official obtained accurate train consist information on the
northbound train via cell phone from the CN dispatcher and provided it
to emergency responders, but cell phone service was disrupted before
any information about the southbound train could be obtained. Without a
document for the southbound train, unsuccessful attempts were made by
response personnel on-scene to identify potential hazardous material
threats based on placarding and tank car stenciling--i.e., visible
hazard signage and markings on the rail cars. Over two-and-a-half hours
after the collision, another CN employee that had traveled from
Jackson, MS (roughly 45 minutes away from the accident) delivered
copies of the train consist information for both trains--but the
information he delivered for the southbound train did not accurately
reflect the actual makeup of the southbound train at the time of the
accident. It was nearly another hour (almost four hours since the
collision) before CN officials and emergency responders were able to
develop an accurate listing of the derailed cars from the southbound
train involved in the fire by visually surveying the scene. Only after
being able to determine which hazardous materials were being conveyed
on the train was it safe for emergency responders to begin moving cars
and applying aqueous film forming foam to suppress the fires at the
site. It would be roughly fourteen hours after the collision before the
fire was declared suppressed.
In reviewing the collision and emergency response efforts, the NTSB
concluded that the lack of timely information on the contents of each
train--between the loss of train crew personnel, the damaging of
stenciling and hazard placarding, and CN's failure to provide timely
and accurate train consist information for both trains (particularly
the southbound train)--significantly hampered emergency response
efforts. The NTSB consequently issued safety recommendation R-07-04
calling on PHMSA to require that all railroads immediately provide
real-time train consist information to emergency responders following
an accident or incident involving rail transportation of hazardous
material.\12\
---------------------------------------------------------------------------

\12\ See NTSB Report at 48 (``With the assistance of the Federal
Railroad Administration, require that railroads immediately provide
to emergency responders accurate, real-time information regarding
the identity and location of all hazardous materials on a train.'').
---------------------------------------------------------------------------

The importance of timely, accurate train consist information is
also underscored by the recent Norfolk Southern train derailment in
East Palestine, OH. Although NTSB's investigation of that derailment is
ongoing, the NTSB noted during a press conference announcing their
preliminary findings on February 23, 2023, that many of the hazardous
materials placards displayed on the tank cars melted in the ensuing
fire following the derailment.\13\ Firefighters who responded to the
incident from more than 30 minutes away also noted that they didn't
gain access to information about the train consist until well after
they arrived on scene. PHMSA notes that in such scenarios, emergency
response personnel may have to rely on the train consist information
provided by the train crew and the train operator as they were
conducting their initial assessment of the incident and planning
response actions. Notably, too, the East Palestine, OH accident
exemplifies how investigation efforts by regulatory officials into
potential systemic issues revealed by an incident (or to assuage
community anxieties regarding the response effort) can often occur
simultaneously with incident response efforts at the site.
---------------------------------------------------------------------------

\13\ NTSB, Preliminary Report No. RRD23MR005, ``Norfolk Southern
Railway Train Derailment with Subsequent Hazardous Material Release
and Fires--East Palestine, OH--Feb. 3, 2023 (Feb. 23, 2023), https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf.
---------------------------------------------------------------------------

E. How will requiring electronic train consist information affect rail
transportation safety?

The HMR currently imposes some documentation requirements
pertaining to hazardous material within a train. Specifically, each of
Sec. Sec. 171.8 (``written record'') and 174.26 (``copy of a
document'') contemplate that a ``train consist'' consists only of a
printed, hard copy relating only high-level information (the ``contents
and location of each rail car in a train'') pertaining to any hazardous
materials being transported. And although provisions elsewhere in the
HMR governing emergency response (specifically, part 172, subpart G)
contemplate that train crews will need to have, or have ``immediate''
access to, more fulsome information (regarding hazardous material
technical name, emergency response information, emergency response
telephone numbers, etc.), Sec. 172.602(b) similarly contemplates that
information will be in hard copy (``printed'') form rather than
electronic form.
These limited documentation requirements can contribute to delays
in emergency response actions and potentially inaccurate information
being provided to emergency response personnel at precisely the same
moment when accurate, timely information is critical to response
efforts. The success of any response effort turns on the accuracy of
information regarding the precise hazards confronting emergency
response personnel and the surrounding community. But as illustrated by
both the Anding, MS collision and the East Palestine, OH derailment,
emergency response personnel may not be able to rely on hazard
communication placarding or stenciling to know with confidence whether,
and in which car, a train is transporting hazardous material as those
hazard communication tools may have been obscured (e.g., through
burning) or been rendered inaccessible. Nor, moreover, can the
emergency response personnel necessarily rely on the train crew or the
hard copy of the train consist information they may have onboard; as in
the Anding, MS collision, train crews can become incapacitated and hard
copies of the train consist information may perish in the incident.
Further, even if those resources are available, they may only be
available in the form of a single document or a limited number of
persons on the train crew, thereby creating the potential for
conflicting information or bottlenecking of critical information within
(potentially multi-disciplinary and multi-jurisdictional) response
efforts.\14\ Additionally, the fact that emergency response personnel
converging on the site from multiple jurisdictions may not have access
to that information until they arrive forfeits opportunities to begin
reviewing pertinent immediate actions and coordinating response efforts
while en route to the site--adding more delay in the critical moments
immediately following an

[[Page 41547]]

accident or incident.\15\ Lastly, because investigation efforts often
proceed nearly simultaneously with emergency response, delays in
obtaining accurate train consist information can hamper investigation
efforts to identify systemic issues or even an imminent hazardous
materials transportation safety hazard that could result in similar
incidents elsewhere or to address community concerns regarding the
adequacy of response efforts.
---------------------------------------------------------------------------

\14\ PHMSA submits that some of the same limitations from
reliance solely on hard-copy, locally-maintained train consist
information could also arise in connection with reliance on
electronic copies (e.g., on an e-tablet) maintained by train crews.
\15\ This risk can be particularly acute if the accident or
incident occurs in a remote rural, small town, or Tribal area, as
local first responders may be the only personnel who can quickly
respond to the accident or incident.
---------------------------------------------------------------------------

PHMSA expects that maintaining electronic train consist information
away from the train, and which is updated in real-time as a train's
hazardous contents change, address many of those shortcomings from
reliance solely on hard copies of that information. Remote (e.g., in
the ``cloud'') compilation and maintenance of an electronic copy of
train consist information that is synced in real-time with the hard
(printed) copy of that information maintained by train crews per Sec.
174.26 promotes the accuracy of both electronic and hard (printed) copy
versions of that information, each of which can be checked against the
other. And to the extent that the compilation and updating of that
electronic record occurs automatically it can minimize the introduction
of human error into either the hard or electronic versions of the train
consist information. Additionally, as illustrated by the Anding, MS
collision, hard copy documents may be destroyed or inaccessible, or
train crews may become injured, rendering them ineffective for the
exchange of information to emergency response personnel; similarly,
reliance on a single hard copy document or a limited number of
personnel risks bottlenecking or conflicting accountings of critical
information. In contrast, compilation and maintenance remotely of an
electronic version of train consist information will provide necessary
redundancy for a railroad's ability to exchange critical information
with emergency response personnel, promising distribution of critical
information that is more uniform, fulsome, well-distributed, and timely
than reliance on hard copies and train crew personnel alone.
Additionally, remotely-maintained, electronic train consist information
promises earlier coordination of emergency response efforts; emergency
response personnel commuting to an incident site from various
jurisdictions may be able to access electronic train consist
information (as well as pertinent training and immediate actions) en
route, saving precious time in identifying immediate actions and
coordinating response efforts. Lastly, electronic train consist
information can also facilitate investigation efforts in parallel with
emergency response efforts, thereby allowing more timely identification
and remediation of systemic issues across the industry, as well as
helping to assure affected communities of the adequacy of response
efforts.
PHMSA notes that the experience with the special permits
authorizing limited use of electronic approaches to maintaining train
consist information discussed in Section III.C above provides
additional evidence of the potential safety-enhancing benefits of
requiring use of such tools more broadly as proposed in this NPRM.
PHMSA also notes that stakeholders within the emergency response
community have also submitted comments in this rulemaking proceeding
calling on PHMSA to codify a requirement for electronic, real-time
train consist information to supplement existing hard copy
documentation requirements.\16\
---------------------------------------------------------------------------

\16\ See, e.g., Intl. Assn. of Fire Chiefs, Doc. No. PHMSA-2016-
0015-0009, ``Comments on PHMSA's Advanced Notice of Proposed
Rulemaking [under RIN 2137-AF21]'' at 3 & 6 (Apr. 19, 2017) (IAFC
Comments). The IAFC comments urged a defense-in-depth approach
utilizing both electronic and hard copy train consist information
because exclusive reliance on electronic train consist information
maintained remotely may be impractical in rural, small-town, or
Tribal areas where internet connectivity is limited or unreliable.
---------------------------------------------------------------------------

F. What does PHMSA mean by real-time?

A plain language meaning of real-time is simultaneous (or nearly
simultaneous) with the time which something takes place. PHMSA
interprets the references in the FAST Act instruction and NTSB safety
recommendation R-07-04 to ``real-time'' train consist information to
have a dual meaning: (1) that the update of train consist information
during transportation should occur at the time changes to the hazardous
material on the train are being made, thereby ensuring the accuracy of
information; and (2) that the required train consist information is
provided to authorized first responders at the time a response to or
investigation of an accident, incident, or public health or safety
emergency is occuring. This latter element in turn means that the
required electronic train consist information should be provided to and
is accessible to authorized personnel prior to an accident or
incident--and pushed promptly following initiation of an accident or
incident to emergency response personnel needing that information to
identify potential hazardous material threats and take appropriate
measures and commence investigation activities.
Although PHMSA understands that current HMR requirements require
operators to update hard (printed) copy train consist information as
there are changes to that information, in practice that hard copy-
exclusive approach can introduce the potential for human error; often a
member of the train crew (in most circumstances, the engineer) must
update by hand the printed, hard copy of the train consist information
in the crew's possession to provide an accurate listing of the position
of hazardous material cars. Additionally, PHMSA understands that
current HMR regulations do not contain specific requirements for
railroads to either (1) make accurate, electronic, real-time train
consist information available to authorized emergency response
personnel at all times so they have it in advance of an accident or
incident, or (2) take affirmative steps to promptly forward that same
information to state-authorized local first responders following either
an accident involving a train carrying hazardous material, or an
incident involving a train carrying hazardous material where a release
of that hazardous material has occurred or is suspected. As discussed
in Section III.B. above, the HMR currently requires the use of hard
copies that may not lend themselves to real-time updating or transfer
to a person off the train. Existing HMR requirements also lack
specificity regarding railroads' obligations to proactively and timely
forwarding of that information to first responders, emergency response
officials, or law enforcement personnel; rather, the HMR speaks in
terms of making that information ``accessible'' to train crews (Sec.
172.602(c)); merely ``available'' to first responders, emergency
response officials, or law enforcement personnel (Sec. 172.600(c)); in
the possession of train crews (Sec. 174.26(a)); and submitted to the
National Response Center ``as soon as practicable but no later than 12
hours after the occurrence of any incident . . .'' (Sec. 171.15).
PHMSA expects that implementation of equipment and procedures to
enable real-time updating of electronic train consist information--as
well as more explicit requirements for railroads to make that
information available to emergency response personnel at all

[[Page 41548]]

times or pushed to them following an accident or incident--will be
practicable for Class I, regional and short line railroads. As a
general matter, PHMSA submits that those requirements proposed in this
NPRM should not come as a surprise to any railroad transporting
hazardous material as the Section 7302 FAST Act mandate (focused by its
terms on Class I railroads) dates from 2015 and NTSB safety
recommendation R-07-04 (which contains no such limitation to Class I
railroads) dates from 2007.\17\ Nor for that matter, are the
requirements proposed herein on the cutting edge of technology--the
sort of equipment and procedures likely needed for implementation are
likely to be incremental adaptations of supply chain management
software, equipment, and procedures employed in ordinary course by a
variety of retail providers and logistics companies for tracking goods
within national and global supply chains (of which the railroads
themselves are a critical component). Indeed, PHMSA submits that the
fact that commercial entities can implement cost-effective, real-time
status tracking procedures and equipment for non-hazardous goods,
suggests that reasonably prudent railroad operators would be incented
to employ similar equipment and procedures when transporting materials
known to be hazardous to public safety and the environment.\18\
---------------------------------------------------------------------------

\17\ Any requirements would, of course, not be binding on
railroads until even later in the future--namely, after any final
rule in this proceeding is published and subsequently becomes
effective.
\18\ PHMSA also submits that such incentives would have been
underscored by the significant environmental consequences, increased
regulatory oversight, legal liability, and loss of community
goodwill as a result of the East Palestine, OH derailment.
---------------------------------------------------------------------------

Nor, for that matter, would railroads' implementation of the
requirements proposed in this NPRM be against a blank canvas. As
discussed above, much of the train consist information that PHMSA
contemplates would be generated, maintained, and provided in electronic
form is largely already maintained by the railroads pursuant to
existing HMR requirements in printed, hard copy form; and PHMSA's
proposed requirement that such information be readily accessible in
advance of an accident or incident, and forwarded to state-authorized
local first responders electronically promptly following an accident or
certain incidents, is similar to existing HMR requirements to make
certain information available to emergency response personnel and train
crews. Additionally, as discussed in Section III.C above, a number of
the Class I railroads (and at least one regional railroad) have already
demonstrated the feasibility of compiling electronic real-time train
consist information pursuant to special permits along specific routes;
those special permits contain requirements for updating and prompt
relay of that electronic train consist information to emergency
response personnel in the event of an accident or incident.
PHMSA also submits that railroads may be able to leverage existing
software platforms to satisfy this NPRM's proposed electronic train
consist information maintenance, updating, and forwarding requirements.
One such platform suggested by stakeholders in this rulemaking
proceeding is the AskRail[supreg] system developed by the American
Association of Railroads (AAR), the International Association of Fire
Chiefs, the Operation Respond Institute, and others.\19\ This
platform--which is available for use in both desktop and mobile device
applications--provides authorized emergency response personnel with
accurate, continuous access in electronic format to most of the train
consist information contemplated by PHMSA's proposed revisions,
including the following: the proper shipping name and United Nations ID
number of the hazardous material; packing group and placarding
requirements and links to pertinent Emergency Response Guidebook (ERG)
and safety data sheets; quantity and location of the material on the
train; car type, DOT specification, and location within the consist
(i.e., the train); and the emergency response point of contact for the
railroad. Changes in train consist information are uploaded to the
AskRail[supreg] system from central processing centers operated by the
railroads or vendors based on data delivered via any of the following:
(1) voice reports from train crews, (2) digital communications with
mobile devices operated by train crews, or (3) digital communications
with automatic equipment identification (AEI) systems (discused further
below). To the extent that the AskRail[supreg] system (or any
alternative platform used in complying with the NPRM's proposed
requirements) may lack certain information (e.g., origin-destination
information), functionalities (in particular, the ability for railroads
to forward information to pertinent emergency response personnel in the
event of an emergency) or liberal access requirements, PHMSA expects
that such systems could be designed or modified and railroads could
proactively engage the response community to address those concerns.
Similarly, although PHMSA understands that current use of
AskRail[supreg] system may be largely limited to Class I railroads,\20\
it is unaware of any fundamental bar to modification of that system (or
for that matter, the design or modification of alternative systems) to
accommodate increased use by regional and short line railroads.\21\
PHMSA itself commissioned a pilot program that in 2020 demonstrated the
technical feasibility of integration of a leading proprietary
commercial train consist information platform for Class II and III
railroads (the Wabtec Train Management System) with the AskRail[supreg]
system.\22\
---------------------------------------------------------------------------

\19\ See IAFC Comments at 3, 6; AAR, Doc. No. PHMSA-2016-0015-
0007, ``Comments Submitted by AAR re FAST Act Requirements for Real-
Time Train Consist Information by Rail'' at 1, 3, 7 (Apr. 19, 2017)
(AAR Comments) (recommending use of AskRail[supreg] with respect to
Class I railroads only).
\20\ See ASLRRA, Doc. No. PHMSA-2016-0015-0006, ``Docket No.
PYHMSA-2016-0015 (HM-263): FAST Act Requirements for Real Time Train
Consist Information by Rail'' 3-4 (Apr. 19, 2017) (ASLRRA Comments).
\21\ See AAR Comments at 3 (``Currently, AskRail[supreg] has the
ability to show single car information for all Class II and III
railroads. If they choose to do so, Class II and III railroads can
upload their train consist information so that it is available
through the app. . . .''). The AAR echoed ASLRRA comments that
extending AskRail[supreg] to Class II and III railroads would
necessarily involve compliance costs.
\22\ See PHMSA, Notice ID No. 693JK320P000014, ``Statement of
Work and Sole Source Justification: Transportation Management
Consist Information'' (Award Date May 14, 2020). PHMSA is in the
process of completing the concluding documentation for that project
and will post those materials to the rulemaking docket as soon as
practicable.
---------------------------------------------------------------------------

Some railroads may also opt to reduce the risk of human error by
employing automatic means of updating the electronic train consist
information. Some railroads already employ such AEI systems consisting
of identification tags mounted on each train car (locomotives, end-of-
train units, rail cars, and intermodal containers) and installed,
trackside AEI readers (i.e., antennas) or portable, handheld AEI
readers that record and relay switching of cars to the railroad's
computer system. Installed, trackside AEI readers are placed at key
locations such as the entrances and exits of rail yards and identify
cars on a train by the tags on the cars as they pass and automatically
relay information back to the railroad's computer system to update the
electronic train consist information. Appropriate placement of
installed, trackside AEI readers is imperative for ensuring accurate
train consist information is relayed to the railroad computer systems;
for example, in the

[[Page 41549]]

2005 Anding, MS collision, a contributing factor in the confusion
regarding the contents of the southbound train was that the last change
in the train consist occurred between installed, trackside AEI
readers.\23\ PHMSA submits, though, that challenges associated with
identifying proper placement of installed, trackside AEI readers could
be mitigated somewhat by timely supplementation with one or more of
portable, handheld AEI readers and voice reports by train crew
personnel of changes to the hard (printed) copy train consist
information.
---------------------------------------------------------------------------

\23\ NTSB Report at 7.
---------------------------------------------------------------------------

G. How has PHMSA engaged stakeholders?

PHMSA and the Federal Railroad Administration (FRA) sought input
from stakeholders on the topic of electronic train consist information
as part of the Rail Safety Advisory Committee (RSAC) Hazardous
Materials Issues Working Group. The RSAC is a Federal advisory
committee established by FRA and is governed by the process and
transparency requirements of the Federal Advisory Committee Act (Pub.
L. 92-463). The RSAC develops recommendations for certain new
regulatory standards, through a collaborative process, with all
segments of the rail community working together to find solutions to
safety issues. The RSAC in turn has assembled a Hazardous Materials
Issues Working Group to develop recommendations for changes and updates
to the regulations for rail transportation of hazardous material.
In 2016, the Hazardous Materials Issues Working Group (hereafter
referred to as ``Working Group'') met several times to discuss updates
to the HMR's rail transportation safety requirements.\24\ On two
occasions, the Working Group discussed the issue of accurate and real-
time electronic train consist information and whether existing
technology could achieve the accurate and real-time exchange of train
consist information. Several stakeholders contended that the
AskRail[supreg] system could provide the information required by the
FAST Act. However, representatives from industry asserted that some
information required by the FAST Act (specifically, origin and
destination information) may not be relevant in an emergency response
situation and did not see a need to include these data in
AskRail[supreg] entries; similarly, industry representatives also
asserted that there was limited safety value in emergency response
personnel having real-time electronic train consist information unless
there had actually been an accident or incident. Some stakeholders also
expressed concern that the limited access rights currently authorized
in the AskRail[supreg] system could limit its effectiveness, as the
current version of the AskRail[supreg] system requires rigorous
security vetting for would-be users. In the event of an accident or
incident at a location where authorized local first responders, first
responders, emergency response officials, and law enforcement had not
been authorized access to the AskRail[supreg] system in advance, access
to train consist information may be unavailable to them through
AskRail[supreg].
---------------------------------------------------------------------------

\24\ Meeting minutes from HMIWG meetings are available in the
public docket for this rulemaking.
---------------------------------------------------------------------------

Additionally, the Working Group discussed the prevalence of
installed, trackside AEI readers and whether those AEI readers can
provide accurate, real-time updates to train consist information. That
discussion highlighted that a challenge in increasing reliance on
installed, trackside AEI readers to provide accurate, real-time updates
to electronic train consist information is that their placement across
the nation's railroad system is not uniform; all participants noted
that more frequent and uniform placement of AEI readers throughout the
nation's railroad system would be required before that equipment could
be relied on to provide accurate, real-time updates to electronic train
consist information. Although the Working Group discussed a variety of
potential approaches to address this concern--including supplementation
by train crew voice reports and a standardized requirement for
placement of installed, trackside AEI readers within three miles of
each train yard (i.e., the location where rail car switching operations
are likely to be completed)--no consensus was reached on any one
solution or suite of solutions. Further, at least one stakeholder--
American Short Line and Regional Railroad Association (ASLRRA), the
industry trade group representing regional and short line railroads--
strongly opposed any suggestion of a regulatory requirement for
installed, trackside AEI readers in implementing FAST Act requirements.
Following those meetings, PHMSA in 2017 issued an Advance Notice of
Proposed Rulemaking (ANPRM) soliciting comment on a number of questions
on implementation of the FAST Act's then-effective mandate to employ
``fusion centers'' as clearinghouses for receiving from railroads, and
forwarding to emergency response personnel, electronic real-time train
consist information.\25\ Although many of the questions posed by PHMSA
and written comments received from stakeholders were focused on
implementation mechanics specific to fusion centers, a number of
entities submitted comments speaking to other implementation dimensions
of the FAST Act mandate. Specifically, AAR and ASLRRA \26\ repeated
contentions made in the Working Group discussions regarding the limited
value of origin-destination information, or 24/7 availability of
electronic real-time train consist information for emergency response
efforts. Their respective comments also highlighted potential
implementation challenges (pertaining to cost, gaps in internet
connectivity) associated with use of portable, handheld AEI readers, as
well as the existing gaps in coverage for installed, trackside AEI
readers. However, the AAR comments ultimately concluded that electronic
train consist information could be a valuable option for improving
emergency response efforts, and the AskRail[supreg] system could be
extended beyond Class I railroads--even as they argued against
mandating electronic real-time train consist information as a
substitute or supplement for hard copy documentation and bemoaned the
potential costs of ensuring regional and short line railroad
participation in the AskRail[supreg] system. IAFC also submitted
comments ``strongly'' arguing for forwarding of electronic train
consist information in the event of an accident or incident, noting
that the AskRail[supreg] system could--when supplemented by existing
hard copy documentation requirements--serve that purpose.\27\
---------------------------------------------------------------------------

\25\ PHMSA, ``Advance Notice of Proposed Rulemaking--Hazardous
Materials: FAST Act Requirements for Real-Time Train Consist
Information by Rail,'' 82 FR 6451 (Jan. 19, 2017). The fusion center
framework was subsequently abandoned in amendments to the FAST Act
by the Investment Infrastructure and Jobs Act.
\26\ ASLRRA, ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act
Requirements for Real-Time Train Consist Information by Rail'' (Apr.
19, 2017). The ASLRRA comments explicitly endorsed the AAR Comments.
\27\ IAFC Comments at 6.
---------------------------------------------------------------------------

IV. Section-by-Section Review of Proposed Amendments

Parts 171 and 180

A. Sections 171.8 and 180.503

Section 171.8 defines key terms used in the HMR. A train consist is
defined in this section as a ``written record of the contents and
location of each rail car in a train'' \28\--which PHMSA and

[[Page 41550]]

industry have historically understood to refer to the hard (printed)
copy documentation maintained and updated by train crews pursuant to
Sec. 174.26(a). Train crews are also obliged by Sec. 174.26(b) to
maintain a hard copy of certain ``emergency response information''
specified in part 172, subpart G, as well as other shipping paper
information specified in part 172, subpart C.
---------------------------------------------------------------------------

\28\ Mirror language appears in the definition of the same term
at Sec. 180.503.
---------------------------------------------------------------------------

As discussed in Section II.B above, section 7302 of the FAST Act
directs (consistent with NTSB safety recommendation R-07-04), that
PHMSA require railroads to (in real-time) generate, maintain, update,
and share with emergency response personnel, certain real-time train
consist information in electronic form. That list of information
specified in the FAST Act is by-and-large consistent with the suite of
safety-critical information in each of the current definitions of
``train consist'' at Sec. 171.8 (which in turn is aligned with the
information contained with the notice provided to train crews at Sec.
174.26) and the ``emergency response information'' specified at Sec.
172.602 (which information must also be immediately available to train
crews pursuant to Sec. 174.26(b)). PHMSA, therefore, proposes to
replace the term ``train consist'' with the term ``train consist
information'' at Sec. 171.8, to mean a record of information (as
required by Sec. 174.26) of the position and content(s) of hazardous
materials rail cars of a train. Specifically, the information includes
contact information for a railroad-designated emergency point of
contact; the point of origin and destination of hazardous materials
that is subject to shipping paper requirements on the train; shipping
paper information required by Sec. Sec. 172.201 to 172.203; and
emergency response information required by Sec. 172.602(a).\29\ The
information must be maintained in both hard (printed) copy and
electronic forms. PHMSA also proposes deletion of the mirror definition
of ``train consist'' at Sec. 180.503, as that section is the only
place in which that term appears within part 180.
---------------------------------------------------------------------------

\29\ PHMSA notes that its proposed definition of ``train consist
information'' would not encompass hazardous material excepted from
shipping paper requirements pursuant to Sec. 172.200 because of the
low risk such transportation generally poses to public safety and
the environment.
---------------------------------------------------------------------------

PHMSA notes that this proposed approach ensures that implementation
of the FAST Act's requirements regarding the content and form of real-
time train consist information will be performed in a manner that
builds on--rather than disrupts--railroad compliance strategies with
existing HMR requirements. With respect to the proposed new term
``train consist information'' the proposed required information largely
consists of the information that railroads are already obliged by the
HMR to provide in hard (printed) copy to their train crews and to make
available to emergency response personnel in connection with hazardous
materials that are subject to shipping paper requirements. Although the
FAST Act contemplates the compilation, updating, and transfer to
emergency personnel of an additional species of information--the origin
and destination of hazardous material on the train, and the contact
information for a railroad-designated emergency point of contact--PHMSA
understands that information is accessible to the railroads. Origin and
destination information is an important commercial term of service, in
addition to being a critical piece of information to emergency response
personnel should gaps (e.g., from inaccuracies, loss, or
inaccessibility) in other train consist information require quick
reverse-engineering by emergency response personnel of the hazardous
material carried by a train involved in an accident or incident.
Similarly, the railroad itself would designate its emergency point of
contact. And although PHMSA understands that one potential compliance
tool (namely, the AskRail[supreg] system) may not currently contain
information on the origin and destination of hazardous material on a
train, it expects that (based on the widespread use of sophisticated,
real-time tracking of goods generally discussed at Section III.F.
above) that modification of that system (or design or modification of
an alternative platform) to integrate that functionality is
practicable. However, the positive experience associated with use of
electronic train consist information pursuant to special permit
(discussed at Section III.C. above) is also evidence of the proven
safety value of electronic, real-time train consist information.
With respect to a railroad's identification of a designated
emergency point of contact, PHMSA is less concerned with the specific
title of that individual than it is in ensuring that (1) the contact
information provided is complete--to include the name, title, phone
number and email address, (2) that individual is accessible at all
times (24/7) the train is in transportation in the event of an accident
or incident involving rail transportation of hazardous material (and
then following an incident or accident until emergency response efforts
have completed), and (3) that individual has immediate access to the
electronic version of the train consist information for the train
involved and the contact information for state-authorized local first
responders required under proposed Sec. 174.28. PHMSA notes that its
above expectations regarding availability of, and capacity/knowledge of
the railroad's designated emergency response contact are largely
consistent with existing HMR emergency response telephone number
requirements at Sec. 172.604. PHMSA does not expect that person must
necessarily be an employee of the railroad--provided a third party
designee is available as contemplated above, and has immediate access
to the information specified above.\30\ PHMSA notes that this proposed
requirement (which implements a mandate in Fast Act Section
7302(a)(1)(A)(iv)) provides additional defense-in-depth should
emergency response personnel encounter delays in accessing electronic,
real-time train consist information (pursuant to proposed Sec.
174.28(a)) themselves, or railroad personnel fail to ``push''
electronic, real-time train consist information to state-authorized
local first responders in a 10-mile radius of the accident or incident
(pursuant to proposed Sec. 174.28(b)).
---------------------------------------------------------------------------

\30\ PHMSA further notes that the person designated as the
railroad's emergency response point of contact may also be
responsible for ``pushing'' electronic train consist information to
emergency personnel pursuant promptly during an incident or accident
proposed Sec. 174.28.
---------------------------------------------------------------------------

PHMSA notes that its proposed approach of defining ``train consist
information'' to accommodate both hard (printed) copy and electronic
forms is essential to providing defense in depth ensuring safety-
critical information is generated, updated, and available to emergency
response personnel during an accident or incident. As discussed in
Sections III.E.-F. above, electronic train consist information updated
in real-time offers significant safety benefits compared to exclusive
reliance on other sources of information--train crew statements, hard
copy documentation, placarding and other HMR-mandated hazard
communication tools--that can perish, be inaccessible, or prove
unreliable in the critical moments immediately after an accident or
incident. But, as commenters on the ANPRM noted (see Section III.G
above), reliance on electronic train consist information alone would
entail its own safety risks. For that reason, PHMSA understands that
the regulatory definition of real-time ``train consist information''
should envision that information will be maintained in both

[[Page 41551]]

hard (printed) copy and electronic forms. PHMSA acknowledges that this
approach could entail some version control risks (from conflicts
between the electronic and hard copy forms of train consist
information) whose reduction by way of synchronization of hard copy and
electronic forms could increase administrative and compliance burdens
on railroads. However, PHMSA expects that those risks (which in any
event could be controlled by the railroads) would be justified when
compared against the anticipated safety benefits obtained from (1)
improved accuracy from being able to verify train consist information
in hard copy form against electronic records (and vice-versa), and (2)
enhanced confidence that emergency response personnel will have access
to accurate, safety-critical train consist information in some form,
regardless of the circumstances of the accident or incident.

Part 174

B. Section 174.26

Section 174.26 currently requires railroads to provide each train
crew a printed, hard copy document (i.e., a record of information)
reflecting the current position in the train of each rail car
containing a hazardous material. This provision also requires the train
crew to update the document to indicate changes in the placement of a
hazardous material rail car within the train. Additionally, Sec.
174.26(b) requires that the train crew must have a hard copy of a
document showing the information required by part 172 (e.g., shipping
paper information), and emergency response information specified in
Sec. 172.604. The HMR's emergency response information standards at
part 172, subpart G also contain requirements that (1) pursuant to
Sec. 172.600(c), railroads and other carriers make that hard copy
information immediately available for use at all times hazardous
material is present--by, for example, making it immediately available
to a representative of a Federal, state, or local government agency
responding to an incident involving a hazardous material or conducting
an investigation that involves a hazardous material; and (2) pursuant
to Sec. 172.602(c)(1), railroads must maintain hard copy emergency
response information that is immediately accessible to train crews in
the event of an accident or incident involving hazardous materials.
Consistent with the FAST Act section 7302 mandate, PHMSA now
proposes to supplement those existing requirements by amending Sec.
174.26 in several ways to ensure that train consist information held in
hard (printed) copy by train crews for all railroads is itself updated
in real-time for accuracy based on changes in the hazardous material
within the train consist, and that train crews ensure that their
locally-maintained hard copies are at all times synced in real-time
with electronic versions of the train consist information maintained
off the train. Those proposed revisions to Sec. 174.26 are as follows:
(1) replace existing references in Sec. 174.26 to the hard copy
``document'' memorializing train car position in this provision with
references to the hard copy versions of the ``train consist
information'' proposed at Sec. 171.8; (2) specify the information to
be included as part of the ``train consist information;'' (3) specify
that a hard (printed) copy version of train consist information must be
provided to train crews before initial train movement and maintained in
a conspicuous location of an occupied locomotive during transportation,
i.e., when the train crew is aboard the locomotive; (4) specify that
train crews must update that local, hard (printed) copy version to
reflect changes in the train consist information at intermediate stops
before the train re-commences movement from those stops; and (5)
specify that the train crews must also, as soon as practicable, update
or notify the railroad to update the electronic form of train consist
information maintained off the train to synchronize with the local hard
(printed) copy of the train consist information employing (as
appropriate) electronic devices compliant with the requirements of 49
CFR part 220. Train crews may use electronic or radio communications to
notify the railroad to update the electronic train consist
information.\31\ This will ensure the accuracy of the train consist
information.
---------------------------------------------------------------------------

\31\ PHMSA also notes that railroads may comply with this
provision by installation of trackside AEI readers that update
electronic train consist information automatically without train
crew action. However, should a railroad opt for such a system train
crews would still be responsible for updating the local, hard copy
version of the train consist information.
---------------------------------------------------------------------------

PHMSA expects that its proposed regulatory amendments to Sec.
174.26 are critical for supporting use of electronic, real-time train
consist information as required by the FAST Act. As discussed at
greater length in Section III.D. above, the locally maintained and
updated, hard copy documents in the possession of train crews have
been--for better or worse--the primary information relied on by
emergency response personnel in identifying the hazards from historical
rail accidents and incidents and executing immediate response actions.
For this reason, PHMSA proposes that hard (printed) copy version of
electronic train consist information is kept in an occupied locomotive
such that train crews can immediately access that information and
provide it to emergency response personnel. But electronic train
consist information is not itself a cure-all; gapped or intermittent
internet or phone connectivity in rural, small-town, and tribal areas
can limit each of (1) the ability of AEIs to capture material changes
in the train consist information, (2) the ability of train crews to
report changes in the same by voice, or (3) access to electronic train
consist information by emergency response personnel.\32\ For these
reasons, stakeholders in the emergency response community such as IAFC
have called on retention of the train crew's hard copy requirement to
backstop the accuracy of electronic train consist information.
Similarly, the implementation costs and deployment delays associated
with integration of more widespread use of AEIs to automatically update
train consist information could be better managed by railroads if the
HMR would continue to contemplate that train crews themselves could
``call in'' changes to train consist information as they occur and are
memorialized on the hard copy version of train consist information.
PHMSA also notes that its proposed multi-layered approach to ensuring
train consist information is at all times accurate and consistent
across hard copy and electronic media will ensure that train crews have
situational awareness of changes in the train consist information that
may be lost were all updates made automatically to off-train electronic
train consist information.
---------------------------------------------------------------------------

\32\ PHMSA submits that similar concerns caution against
reliance on mobile devices (e.g., tablets) with locally-saved
versions of electronic train consist information as a substitute for
hard (printed) copy versions maintained by train crews pursuant to
the proposals in this NPRM. However, PHMSA solicits comment on
whether permitting such substitution in a final rule in this
proceeding would have both meaningful safety and compliance cost
advantages compared to hard copy versions.
---------------------------------------------------------------------------

PHMSA notes that its proposed revisions to Sec. 174.26 would be
applicable to all railroads--not just the Class I railroads explicitly
addressed by the section 7302 Fast Act mandate. This approach is
consistent with the current, broad scope of Sec. 174.26, and as
explained in Section II.C. above, this approach is also consistent with
NTSB safety recommendation R-07-04, which was not limited to Class I
railroads. PHMSA's proposed multi-layered

[[Page 41552]]

approach also reflects the common-sense proposition that hazardous
material entails the same hazards to public safety and the environment
whether transported on Class I railroads or regional and short line
railroads.

C. Section 174.28

Current HMR requirements do not impose a crystal-clear requirement
for railroads to ensure that safety-critical train consist information
is available to emergency response personnel at all times, much less
placed in the hands of emergency response personnel during an accident
or incident involving rail transportation of hazardous material.
Rather, the HMR speaks in terms of making such information
``accessible'' to train crews (Sec. 172.602(c)), ``available'' to
first responders, emergency response officials, or law enforcement
personnel (Sec. 172.600(c)), in the possession of train crews (Sec.
174.26(a)), and submitted to the National Response Center ``as soon as
practicable but no later than 12 hours after the occurrence of any
incident . . .'' (Sec. 171.15).
Section 7302 of the FAST Act requires PHMSA to issue regulations
filling that gap by creating an explicit obligation for railroads to
``provide'' accurate, real-time train consist information in electronic
form to first responders, emergency response officials, and law
enforcement personnel involved in a rail accident or incident involving
transportation of hazardous materials. As discussed in Section III.F.
above, PHMSA understands that congressional mandate to ``provide''
real-time train consist information requires that railroads take
concrete action both (1) by making that electronic train consist
information available to emergency response personnel at all times,
including before an accident or incident occurs; and (2) promptly after
an accident or incident, ensuring that railroads take action to
``push'' that same electronic train consist information to state-
authorized local first responders.
PHMSA consequently proposes a new Sec. 174.28 implementing that
FAST Act mandate. For the same reasons described in the above
discussion of the proposed Sec. 174.26, PHMSA proposes that this new
provision's requirements would apply to all railroads, and not just
those that were the subject of the FAST Act mandate. Consistent with
PHMSA's understanding of congressional intent, paragraph (a) of this
new provision would require all railroads to ensure that authorized
first responders, emergency response officials, and law enforcement
personnel along routes in which they transport hazardous material have
access to up-to-date, electronic real-time train consist information at
any time--including before an accident or incident occurs. PHMSA notes
that this element of its new information-sharing requirements can help
to address concerns regarding the effectiveness of any requirement for
only post-accident/incident notification arising from (1) internet or
phone connectivity gaps/intermittency, or (2) delayed or incomplete
distribution of real-time electronic train consist by railroad
personnel who may be juggling many tasks following reports of an
accident or incident involving rail transportation of hazardous
material. And, as discussed above in Sections III.F.-G., PHMSA
understands that industry may already have tools (including the
AskRail[supreg] system) that could be employed for this purpose without
material modification--or could develop new platforms for this purpose.
Paragraph (b) within the new Sec. 174.28 would establish an
obligation for all railroads to supplement the above advance
information sharing requirement with an explicit obligation for
railroads to ``push'' electronic train consist information to state-
authorized local first responders in a 10-mile radius of an accident or
certain incidents promptly following notification to the railroad of
the accident or incident. This proposed requirement would ensure that
electronic, real-time train consist information would be forwarded in a
timely manner to first responders that are either (1) in a community/
jurisdiction that itself would be directly affected by release of
hazardous materials during an accident or incident, or (2) in a
neighboring community/jurisdiction that is closest, and therefore best-
positioned to support response efforts in communities directly
affected. PHMSA understands that this proposed requirement would be
largely similar to the special permit conditions discussed in Section
III.C. above. And at its core, this proposed requirement is
performance-based: in scrutinizing compliance with this requirement,
PHMSA will therefore focus on (1) before an accident or incident,
ensuring that railroads have adopted protocols and resources providing
a high degree of confidence that the ``push'' notifications will
succeed in promptly placing train consist information in the hands of
state-authorized local first responders needing it; and (2) after an
accident or incident occurs, that those notifications did in fact reach
those personnel in a timely manner.\33\ Similarly, PHMSA will be less
concerned with the particular tools (e.g., instant message to mobile
devices, email, fax notification functionalities within the
AskRail[supreg] system) employed by railroads than on whether railroads
have ensured that (1) their personnel have, in advance of rail
transportation of hazardous material, a comprehensive, verified list of
persons and pertinent contact information for authorized local first
response personnel along a route, and (2) appropriate protocols and
training for railroad personnel to ensure that such notifications can
occur promptly following an accident or incident. As a backstop for
that performance-based approach, PHMSA has within paragraph (b)
included a straightforward, ``one-size-fits-all'' minimum 10-mile
default radius that it believes strikes an appropriate balance between
each of the safety benefits anticipated from a conservative advance
notification requirement for the variety of hazardous materials moved
across the nation's railroads,\34\ and the need for an easily-executed
baseline notification for railroad personnel amidst the confusion
following an accident or incident.\35\
---------------------------------------------------------------------------

\33\ PHMSA expects that railroads will not approach their
``push'' notification requirement as a check-the-box exercise
whereby their regulatory obligation is discharged when they send an
email or leave a voicemail with emergency response personnel.
Rather, PHMSA expects that they will continue to attempt to contact
emergency response personnel by a variety of means until they
receive positive (non-automated) receipt of the notification by
those personnel.
\34\ PHMSA notes that the 10-mile notification radius in Sec.
174.28(b) is a default, minimum value--as circumstances (e.g., the
physical characteristics of the hazardous material, the quantity and
form of any release, the physical environment surrounding the
accident or incident) of the potential hazards warrant, it expects
that railroads will expand the notification radius accordingly.
\35\ By way of example, PHMSA understands that the
AskRail[supreg] system already has a functionality that identifies
fire department jurisdictions along a rail route that would
facilitate communication with these entities.
---------------------------------------------------------------------------

PHMSA also proposes a new paragraph (c) implementing the FAST Act
mandate direction that the exchange of real-time electronic train
consist information provided for by PHMSA's proposals must be performed
in a secure and confidential manner so as to protect proprietary and
security-sensitive information,\36\ and that regional and short line
railroads be permitted to enter into memoranda of understanding with
Class I railroads whose track they use to

[[Page 41553]]

facilitate such transfers of train consist information to emergency
response personnel \37\ and directed toward information-sharing and
identification of best practices. Those industry initiatives are
backstopped by recent guidance issued by the Transportation Security
Administration (TSA) in October 2022 \38\ directing (most) railroads to
undertake a series of measures to reduce the risk of cybersecurity
threats to their operations. PHMSA expects that railroads will be able
to build on those existing resources to ensure that their execution of
the requirements proposed in this NPRM are compliant with the new Sec.
174.28(c). Further, PHMSA notes that nothing proposed in this NPRM
would restrict railroads from collaborating on a platform (e.g., the
AskRail[supreg] system) for electronic sharing of accurate and real-
time train consist information with authorized emergency response
personnel, whether pursuant to a memorandum of understanding or other
form of agreement.
---------------------------------------------------------------------------

\36\ PHMSA acknowledges that the precise statutory language
employed in section 7302(a)(5) FAST Act (``security-sensitive
information'') differs slightly from the language (``Sensitive
Security Information'') employed in the Transportation Security
Administration directive referenced below and in regulation at 49
CFR parts 15 and 1520.
\37\ Among the members of the Railroad Information Security
Committee are the chief information security officers of several
Class I railroads, Amtrak, Railinc. The Committee is supported by
each of AAR and ASLRRA.
\38\ TSA, Sec. Dir. No. 1580/82-2022-01, ``Rail Cybersecurity
Mitigation Actions and Testing'' (Oct. 2022), sd-1580-82-2022-01.pdf
(tsa.gov).
---------------------------------------------------------------------------

PHMSA expects that given all the electronic options available, all
railroads--even the smallest short line railroads--will be able to
comply with the performance-based requirements of proposed Sec.
174.28(a) through (c). By way of a hypothetical example, a short line
that is only five miles in length and transports one or two hazardous
materials rail car each month would not have to provide updates to the
train consist information due to routine switching operations. Further,
PHMSA envisions that railroad would be able to communicate with the
local police and fire department(s) servicing its limited route to make
arrangements for communication of the train consist information for the
rail car using instant messaging, email, or even fax notification
before movement of a train carrying hazardous material as well as
following either an accident involving that train, or incident
involving release (or suspected release) of hazardous material from
that train. PHMSA believes that the railroad could satisfy each of
Sec. 174.28(a) through (c) by such arrangements to make its train
consist information accessible at all times to emergency response
personnel, and to ensure that state-authorized local first responders
are ``pushed'' that information in the event of an accident or
incident. Although PHMSA notes that the limited scope of the hazardous
material transportation operations of this hypothetical short line
railroad results in correspondingly lower compliance obligations under
proposed Sec. 174.28(a) through (c), not all railroads are similarly
situated; larger Class I railroads, with more track and more extensive
hazardous materials transportation operations, may need to adopt
correspondingly more fulsome compliance protocols in satisfying the
performance-based requirements at Sec. 174.28(a) through (c).\39\
---------------------------------------------------------------------------

\39\ PHMSA invites comment, for potential inclusion within a
final rule in this proceeding, on the appropriateness of
modification (by way of limitations or exceptions) of the scope of
application of its proposed Sec. 174.28 requirements. Commenters
requesting such exceptions should consider providing detailed
information speaking to material considerations--including the
potential economic/cost benefits, the potential safety impact of
such limitations or exceptions predicated in historical shipment and
incident data, and implementation mechanics--for PHMSA's evaluation
of any such proposed limitations or exceptions.
---------------------------------------------------------------------------

Lastly, PHMSA has also included proposed language at paragraph
(d)--that in the event that railroads employ technology (e.g., the
AskRail[supreg] system) in complying with the information sharing
requirements within Sec. 174.28(b)--prohibiting railroads and their
personnel (or their designees) from withholding or causing to withhold
electronic train consist information from emergency response personnel
responding to an incident or accident. PHMSA's proposed regulatory
language elaborates that railroads employing technology for such
notifications must ensure that any such emergency response personnel
have access to that software and the train consist information therein
throughout the accident or incident--from the initial notification
pursuant to Sec. 174.28(b) until the conclusion of response and
investigation efforts. PHMSA submits that this proposed language is
another essential measure for backstopping the accident/incident
notification performance standard at paragraph (b).

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

Statutory authority for this rulemaking is provided by the Federal
hazardous materials transportation law (HMTA; 49 U.S.C. 5101 et seq.).
As discussed at greater length in Section II.B. above, section 5103(b)
of the HMTA authorizes the Secretary of Transportation to ``prescribe
regulations for the safe transportation, including security, of
hazardous materials in intrastate, interstate, and foreign commerce.''
The Secretary has delegated this authority under the HMTA to the PHMSA
Administrator at 49 CFR 1.97(b).

B. Executive Orders 12866 and 14094, and DOT Regulatory Policies and
Procedures

Executive Order 12866 (``Regulatory Planning and Review''),\40\ as
amended by Executive Order 14094 (``Modernizing Regulatory
Review''),\41\ requires that agencies ``should assess all costs and
benefits of available regulatory alternatives, including the
alternative of not regulating.'' Agencies should consider quantifiable
measures and qualitative measures of costs and benefits that are
difficult to quantify. Further, Executive Order 12866 requires that
``agencies should select those [regulatory] approaches that maximize
net benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts; and
equity), unless a statute requires another regulatory approach.''
Similarly, DOT Order 2100.6A (``Rulemaking and Guidance Procedures'')
requires that regulations issued by PHMSA and other DOT Operating
Administrations should consider an assessment of the potential
benefits, costs, and other important impacts of the proposed action and
should quantify (to the extent practicable) the benefits, costs, and
any significant distributional impacts, including any environmental
impacts.
---------------------------------------------------------------------------

\40\ 58 FR 51735 (Oct. 4, 1993).
\41\ 88 FR 21879 (April 11, 2023).
---------------------------------------------------------------------------

Executive Order 12866 and DOT Order 2100.6A require that PHMSA
submit ``significant regulatory actions'' to the Office of Management
and Budget (OMB) for review. This rulemaking is not considered a
significant regulatory action under section 3(f) of Executive Order
12866 (as amended) and, therefore, was not formally reviewed by OMB.
This rulemaking is also not considered a significant rule under DOT
Order 2100.6A.
The following is a brief summary and table of costs, savings, and
net benefits of some of the amendments proposed in this notice. PHMSA
has developed a more detailed economic analysis in the PRIA, a copy of
which has been placed in the docket. PHMSA seeks public comment on its
proposed revisions to the HMR and the preliminary cost and benefit
analyses in the PRIA.
PHMSA has preliminarily determined that the proposed action would
impact seven Class I railroads, 11 Class II railroads, and 585 Class
III railroads.

[[Page 41554]]

PHMSA estimates the undiscounted total cost of the rulemaking over the
10-year analysis period to be about $46.3 million in 2021 dollars, for
an average annual cost of $4.6 million. The discounted total cost of
the rulemaking is estimated to be about $32.8 million at a 7 percent
discount rate. Further, PHMSA notes that the benefits of the proposed
action are difficult to quantify as it is reliant on the degree to
which having real-time access to train consist information improves
emergency responders' ability to respond to rail incidents. Based on
lessons learned from major hazardous material incidents on rail, PHMSA
anticipates the proposed action would improve emergency responders'
ability to promptly identify all the hazardous materials cars and
hazardous material contained therein that are involved in an accident
or investigation and to timely assess the threat from a hazardous
materials release. This would likely reduce injuries and fatalities,
material loss and response costs, and delays caused by closures. PHMSA
estimated the annual damage cost of hazardous material incidents on
rail that could be impacted by the proposed action to be about $15.6
million in 2021 dollars. Therefore, the proposed rule would have to
reduce damage costs by about 30 percent for the monetized benefits of
the proposed rule to equal costs. The following table summarizes the
quantified annual costs and qualified benefits of the major provisions
of this rulemaking.

----------------------------------------------------------------------------------------------------------------
Average annual cost
Proposed requirement ------------------------------------------------ Benefit Breakeven
Undiscounted 3% 7%
----------------------------------------------------------------------------------------------------------------
Amending the definition of $3,406,052 $2,905,432 $2,392,269 By improving Cost-effective
train consist information. emergency if the
responders' proposed
ability to requirements
promptly reduce the
identify all consequences
the hazardous of hazardous
materials material
involved in an incidents by
accident and rail by about
assess the 30 percent.
threat from a
hazardous
materials
release, the
proposed
provisions will
reduce injuries
and fatalities,
material loss
and response
costs, and
delays caused
by closures.
Amending notice to train crew 1,051,753 897,167 738,708
New information sharing 169,447 162,157 153,722
requirement.
----------------------------------------------------------------------------------
Total.................... 4,627,252 3,964,756 3,284,699
----------------------------------------------------------------------------------------------------------------

As illustrated by the Norfolk Southern train derailment at East
Palestine, OH, such incidents can have substantial consequences that
are not captured by this regulatory impact analysis, including the
long-term environmental concerns and health risks (both physiological
and psychological) for residents. Research also shows that such
incidents can have significant impacts on property values, which, in
turn, can slow down economic activity in the area.\42\ Additionally, of
the 140,000 total route-miles of track in the United States, 104,000
miles are in rural and tribal areas, suggesting that train related
hazardous material incidents mainly happen in areas populated by
disadvantaged communities.\43\ Time is of the essence during the
initial stages of emergency response to a hazardous materials incident.
Reducing the lag in provision of critical hazardous material
identification and response information during rail hazardous materials
incidents will provide environmental and safety benefits, although
these benefits are difficult to quantify. PHMSA acknowledges and
considers these unquantified benefits in selecting the provisions of
the proposed rulemaking.
---------------------------------------------------------------------------

\42\ For example, a study that examines the impact of 33
derailments involving hazardous material on property values in New
York State between 2004 and 2013 found that, on average, a
derailment depreciates housing values within a one-mile radius by
5%-8% (Chuan Tang et al. (2020). Rail accidents and property values
in the era of unconventional energy production. Journal of Urban
Economics, 120, https://doi.org/10.1016/j.jue.2020.103295.
\43\ Improving Rail in Rural Communities [verbar] FRA (dot.gov).
---------------------------------------------------------------------------

C. Executive Order 13132

PHMSA analyzed this rulemaking in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism'') \44\
and the presidential memorandum (``Preemption'').\45\ Executive Order
13132 requires agencies to assure meaningful and timely input by state
and local officials in the development of regulatory policies that may
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
---------------------------------------------------------------------------

\44\ 64 FR 43255 (Aug. 10, 1999).
\45\ 74 FR 24693 (May 22, 2009).
---------------------------------------------------------------------------

The Federal hazardous materials transportation law contains an
express preemption provision at 49 U.S.C. 5125(a) in the event
compliance with a state, local, or Indian tribe requirement is not
possible or presents an obstacle to compliance. Additionally, the
Federal hazardous materials transportation law contains an express
preemption provision at 49 U.S.C.5125(b) that preempts state, local,
and Indian tribal requirements on the following covered subjects:
(1) The designation, description, and classification of hazardous
materials;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(3) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; and
(5) The design, manufacture, fabrication, inspection, marking,
maintenance, recondition, repair, or testing of a packaging or
container represented, marked, certified, or sold as qualified for use
in transporting hazardous materials in commerce.
This proposed rule addresses covered subject items (3) and (4)
above and is expected to preempt state, local, and Indian tribe
requirements not meeting the ``substantively the same'' standard. In
this instance, the preemptive effect of the proposed rule is necessary
to achieve the objectives of the FAST Act and the hazardous materials
transportation law under which the proposed rule is promulgated. The
proposed rule is not expected to have substantial direct effects on
states, the

[[Page 41555]]

relationship between the national government and states, or the
distribution of power and responsibilities among the various levels of
government. Therefore, PHMSA has preliminarily concluded that the
consultation and funding requirements of Executive Order 13132 do not
apply.

D. Executive Order 13175

PHMSA analyzed this propose rulemaking in accordance with the
principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'') \46\
and DOT Order 5301.1 (``Department of Transportation Policies,
Programs, and Procedures Affecting American Indians, Alaska Natives,
and Tribes''). Executive Order 13175 and DOT Order 5301.1 require DOT
agencies to assure meaningful and timely input from Indian tribal
government representatives in the development of rules that
significantly or uniquely affect tribal communities by imposing
``substantial direct compliance costs'' or ``substantial direct
effects'' on such communities or the relationship and distribution of
power between the Federal Government and Native American tribes.
---------------------------------------------------------------------------

\46\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

PHMSA assessed the impact of this proposed action and has
preliminarily determined that it will not significantly or uniquely
affect tribal communities or Native American tribal governments. The
changes to the rail transportation requirements in the HMR as part of
this proposed action have national scope, and also are limited to
establishing baseline requirements for the compilation, updating, and
electronic exchange of hazardous materials information between
railroads and first responders, emergency response officials and law
enforcement personnel; PHMSA, therefore, does not expect this action to
significantly or uniquely affect tribal communities, nor impose
substantial compliance costs on Native American tribal governments or
mandate tribal action. This rulemaking would not adversely affect the
safe transportation of hazardous materials therefore, it would not
cause disproportionately high adverse risks for tribal communities. For
these reasons, the funding and consultation requirements of Executive
Order 13175 and DOT Order 5301.1 to apply. However, PHMSA solicits
comment from Native American tribal governments and communities on
potential impacts of the proposed rulemaking.

E. Regulatory Flexibility Act and Executive Order 13272

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
agencies to review regulations to assess their impact on small
entities, unless the agency head certifies that a rulemaking will not
have a significant economic impact on a substantial number of small
entities including small businesses, not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations under 50,000.
The Regulatory Flexibility Act directs agencies to establish exceptions
and differing compliance standards for small businesses, where possible
to do so and still meet the objectives of applicable regulatory
statutes. Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') requires agencies to establish
procedures and policies to promote compliance with the Regulatory
Flexibility Act and to ``thoroughly review draft rules to assess and
take appropriate account of the potential impact'' of the rules on
small businesses, governmental jurisdictions, and small organizations.
The DOT posts its implementing guidance on a dedicated web page.\47\
---------------------------------------------------------------------------

\47\ DOT, ``Rulemaking Requirements Related to Small Entities,''
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).
---------------------------------------------------------------------------

This proposed rule has been developed in accordance with Executive
Order 13272 and with DOT's procedures and policies to promote
compliance with the Regulatory Flexibility Act to ensure that potential
impacts of draft rules on small entities are properly considered. This
proposed action promotes the exchange of information about hazardous
material on a train between railroads and emergency response personal
and law enforcement for the benefit of response to or investigation of
accidents or emergencies involving a train transporting hazardous
material. The proposed action applies to railroads, some of which are
small entities, such as regional and short line railroads. As discussed
at length in the PRIA--posted in the rulemaking docket--the proposed
action will not, if adopted as proposed, have a significant economic
impact on a substantial number of small entities.
PHMSA determined that all 585 Class III railroads (100%) and 10
Class II railroads (91%) can be considered small entities. None of the
Class I railroads can be considered small entities.

----------------------------------------------------------------------------------------------------------------
>1500 employees 1,500 or fewer employees
Railroad Affected ---------------------------------------------------------------
entities Count Percent Count Percent
----------------------------------------------------------------------------------------------------------------
Class I......................... 7 7 100 0 0
Class II........................ 11 1 9 10 91
Class III....................... 585 0 0 585 100
-------------------------------------------------------------------------------
Total....................... 603 8 .............. 595 ..............
----------------------------------------------------------------------------------------------------------------

According to ASLRRA's report, in 2017, the average annual revenues
of a Class II and Class III railroads were approximately $79 million
and $4.75 million, respectively. PHMSA converted these into 2021
dollars by using a deflation index of 1.1202, resulting in an average
annual revenue of $88.5 million and $5.32 million for Class II and
Class III, respectively.\31\ Based on estimates, for Class II and III
railroads, the per railroad undiscounted average annual cost of the
proposed rule is $5,473 (2021$).

--------------------------------------------------------------------------------------------------------------------------------------------------------
Amending the definition of train Amending notice to train crew New information sharing Proposed rule
consist information ---------------------------------- requirement ----------------
Class II & III railroads ---------------------------------- ----------------------------------
Annual cost per Annual cost Annual cost per Annual cost per Annual cost per
Annual cost railroad railroad Annual cost railroad railroad
--------------------------------------------------------------------------------------------------------------------------------------------------------
596.............................. $3,104,452 $5,209 $98,042 $164 $109,903 $185 $5,558
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 41556]]

PHMSA estimates the average annual cost of the proposed rule is
less than 0.1% of the average annual revenue of Class II and Class III
railroads. However, for the 41 Class III railroads with five or fewer
employees, PHMSA acknowledges that the cost of the rulemaking could be
substantially higher than the estimated per railroad average cost of
$5,558. Based on estimates in the PRIA, for these railroads, the year
one cost of the proposed action is estimated to be about $18,000 per
railroad. Accordingly, PHMSA estimated that the annual revenue of a
railroad has to be about $1.8 million or less for this proposed action
to have an economic impact of greater than 1%. However, this estimated
annual revenue threshold is significantly below the average annual
revenue of Class III railroads ($5.32 million). PHMSA seeks comment on
whether the average cost figures presented in this analysis represent
an accurate accounting of the distribution of costs across Class III
railroads.
Based on this analysis, PHMSA has preliminarily determined that the
proposed action will not have a significant economic impact on a
substantial number of small entities.

F. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et
seq.), no person is required to respond to an information collection
unless it has been approved by the Office of Management and Budget
(OMB) and displays a valid OMB control number. Section 1320.8(d) of 5
CFR requires PHMSA to provide interested members of the public and
affected agencies an opportunity to comment on information and
recordkeeping requests. This proposed action may result in an increase
in annual burden and costs for information collection due to additional
railroad information requirements for hazardous materials transported
by rail.
PHMSA has analyzed this NPRM in accordance with PRA which requires
Federal agencies to minimize paperwork burden imposed on the American
public by ensuring maximum utility and quality of Federal information,
ensuring the use of information technology to improve government
performance and improving the Federal Government's accountability for
managing information collection activities. Under the PRA, no person is
required to respond to any information collection unless it has been
approved by OMB and displays a valid OMB control number.
In this NPRM, PHMSA is proposing to add two new information
collections to OMB Control No. 2137-0559, ``Rail Carrier and Tank Car
Tanks Requirements, Rail Tank Car Tanks--Transportation of Hazardous
Materials by Rail.'' PHMSA estimates that this NPRM will result in an
overall increase in burden attributed to the proposed requirement for
additional emergency response information on hazardous materials by
rail. The revisions proposed in this NPRM will require railroads to
make certain train consist information available electronically--see
the ``Section IV. Section-by-section Review of Proposed Amendments
discussion of Section 174.28.'' Much of this required information is
already required of and generally applied to shippers who must then
provide the information to carriers (e.g., rail). Shippers are also
generally required to supply emergency response information with the
hazardous material shipping paper information. For purposes of
facilitating emergency response measures, the additional information
collection proposed to be applied to railroads by this rule is expanded
hazardous material train consist information that includes the origin
and destination of hazardous materials on a train and the specific
identification of hazardous material location in rail cars.
Additionally, PHMSA is requiring railroads to provide advance notice to
state-authorized local responders when an accident or incident
involving hazardous material occurs.
Hazardous Materials Train Consist Information
As a result of the changes proposed in this NPRM, PHMSA estimates
that 603 railroads (Class I, II, and III) will produce hazardous
material train consist information 76,227 times annually. PHMSA
estimates the additional burden for this information collection will
take 4.8 minutes per response resulting in 6,098 additional burden
hours for the railroads (Class I, II, and III) (76,227 responses x 4.8
minutes). It is estimated that a railroad employee making $51.73 per
hour will perform this function resulting in an increased salary cost
of $297,813 (6,098 burden hours x $51.35 per hour). Additionally, PHMSA
estimates railroads will need to make an initial investment in building
a system for electronic sharing of train consist information. PHMSA
conservatively assumes that the initial cost of building out a system
will result in $500,000 in burden cost associated with this information
collection.
Notification of Hazardous Materials Accidents or Incidents
Additionally, PHMSA estimates that 603 railroads (Class I, II, and
III) will need to notify local authorities of hazardous materials
incidents 518.5 times annually. PHMSA understands that not all Class II
and III railroads transport hazardous materials yet is estimating using
a conservative assumption that all railroads may at some point
transport hazardous material. PHMSA estimates the additional burden
proposed in this NPRM will take 15 minutes resulting in 129 burden
hours (518.5 hazardous materials incidents x 15 minutes per
notification). It is estimated that a railroad employee making $50.66
per hour will perform this function resulting in an increased salary
cost of $6,567 (129 burden hours x $50.66 per hour). There are no
additional burden costs associated with this information collection.
A summary of the total increases for information collections
proposed under this OMB control number are as follows:
Annual Increase in Number of Respondents: 603.
Annual Increase in Number of Responses: 76,846.
Annual Increase in Burden Hours: 6,228.
Annual Increase in Salary Cost: $319,689.
Annual Increase in Burden Costs: $500,000.
PHMSA requests comment on the information collection and
recordkeeping burdens associated with developing, implementing, and
maintaining the proposed requirements in this NPRM. Address written
comments to the DOT Docket Operations Office identified in the
ADDRESSES section of this rulemaking. PHMSA must receive comments
regarding information collection burdens prior to the close of the
comment period identified in the DATES section of this rulemaking.
Requests for a copy of this information collection should be directed
to Steven Andrews, Standards and Rulemaking Division (PHH-10), Pipeline
and Hazardous Materials Safety Administration, 1200 New Jersey Avenue
SE, Washington, DC, 20590-0001. If these proposed requirements are
adopted in a final rule, PHMSA will submit the revised information
collection and recordkeeping requirements to OMB for approval.

G. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et
seq.)

[[Page 41557]]

requires agencies to assess the effects of Federal regulatory actions
on state, local, and tribal governments, and the private sector. For
any proposed or final rule that includes a Federal mandate that may
result in the expenditure by state, local, and tribal governments, or
by the private sector of $100 million or more in 1996 dollars in any
given year, the agency must prepare, amongst other things, a written
statement that qualitatively and quantitatively assesses the costs and
benefits of the Federal mandate.
As explained in the PRIA, this rulemaking is not expected to impose
unfunded mandates under the UMRA. Nor is it expected to result in costs
of $100 million or more in 1996 dollars to either state, local, or
tribal governments, or to the private sector, in any one year. A copy
of the PRIA is available for review in the rulemaking docket.

H. Draft Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA), as amended
(42 U.S.C. 4321 et seq.),\48\ requires Federal agencies to consider the
environmental impacts of their actions in the decision-making process.
NEPA requires Federal agencies to assess the environmental effects of
proposed Federal actions prior to making decisions and involve the
public in the decision-making process. Agencies must prepare an
environmental assessment (EA) for a proposed action for which a
categorical exclusion is not applicable and is either unlikely to have
significant effects or when significance of the action is unknown. In
accordance with these requirements, an EA must briefly discuss: (1) the
need for the action; (2) the alternatives considered; (3) the
environmental impacts of the proposed action and alternatives; and (4)
a listing of the agencies and persons consulted. If, after reviewing
public comments in response to the draft EA (DEA), an agency determines
that a proposed rule will not have a significant impact on the human or
natural environment, it can conclude the NEPA analysis with a finding
of no significant impact (FONSI).
---------------------------------------------------------------------------

\48\ Also at 40 CFR parts 1501 through 1508.
---------------------------------------------------------------------------

1. Need for the Action
The FAST Act at section 7302 instructs the Secretary to issue
regulations that require a Class I railroad transporting hazardous
material to create accurate, real-time, and electronic train consist
information that must be provided ``to State and local first
responders, emergency response officials, and law enforcement personnel
that are involved in the response to or investigation of an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials.'' Further, the NTSB has issued
safety recommendation R-07-04 recommending PHMSA and FRA collaborate to
require all railroads to immediately provide to emergency response
personnel accurate, real-time information regarding the identity and
location of all hazardous materials on a train.
2. Alternatives Considered
No Action Alternative:
The no action alternative would not make any changes to the current
regulatory requirements that railroads must provide train crews with
hard copy train consist information about hazardous material and its
location on the train. There would be no additional requirements for
railroads to generate, maintain, and provide in electronic form,
information regarding hazardous material to first responders, emergency
response officials, and law enforcement personnel or to forward this
information to emergency response personnel in accident or incident
situations.
Proposed Action: All Railroads Alternative:
Under this alternative, all railroads that transport hazardous
materials would be required to create accurate train consist
information about the hazardous material and its location on a train in
both a hard (printed) copy maintained by train crews and an electronic
copy maintained by the railroad off-of-the-train and providing it in
real-time through electronic communications to emergency response
personnel. Railroads would also be required to provide a ``push''
notice of the train consist information to emergency response personnel
in (at least) a 10-mile radius of an accident or incident promptly
following notification to the railroad of the accident or incident.
This alternative aims to enhance transportation safety by transitioning
away from exclusive reliance on train crews and hard copy documents for
the exchange of information about hazardous material and their location
on a train.
Class I Railroads Alternative:
Under this alternative, only Class I railroads, as defined by the
STB, that transport hazardous materials would be subject to generating
accurate train consist information about the hazardous material and its
location on a train (in both electronic and hard copy forms) and
providing it in real-time through electronic communication, to
emergency response personnel. Also, only Class I railroads would be
required to provide a ``push'' notice of the train consist information
to emergency response personnel in a 10-mile radius of an accident or
incident promptly following notification to the railroad of the
accident or incident. This alternative aims to enhance transportation
safety by transitioning away from exclusive reliance on train crews and
hard copy documents for the exchange of information about hazardous
materials and their locations on a train by adhering more closely to
the FAST Act mandate to implement measures for Class I railroads.
3. Environmental Impacts of Proposed Action and Alternatives
No Action Alternative:
The PHMSA HMR and the FRA rail regulations work in tandem to keep
hazardous material in packages and rail cars on the tracks during
transportation. In the unlikely event of an incident or accident, train
crews carry and maintain documentation, in addition to hazard
communication displayed on packages and rail cars, that emergency
responders and law enforcement can use to assess the potential for, or
threat from, a hazardous materials release and thus, appropriately
respond. The intent of the FAST Act mandate and NTSB safety
recommendation to provide real-time electronic means of train consist
information exchange is to provide greater assurances that emergency
responders and law enforcement have the right information about the
hazardous material on a train without delay. The presumption being that
supplementing the existing hard copy train consist information
requirements by providing the information electronically, for instance,
provides better assurance that such information is accurate and in
real-time, especially in the aftermath of a derailment, and that real-
time information will aid in response decision-making, leading to safer
outcomes for the public and the environment. The no action alternative
would not require any updates to the existing requirements or
regulation of hazardous materials transportation and incident response
time.
Proposed Action: All Railroads Alternative:
This proposed action would supplement existing requirements for
hard copies of train consist information maintained by train crews by
requiring railroads to also create and provide accurate and real-time
train consist information to emergency response personnel. All
railroads would be required to use electronic

[[Page 41558]]

communication to supplement their hard copy documentation and
communications requirements. By implementing the proposed action to all
railroads, the entirety of the nation's rail network would be covered.
Efficiencies will be introduced by requiring accurate and real-time
information exchange with the goal of improved safety and enhanced
response to investigations of an accident or emergency involving
hazardous material transported by rail. The intent of the proposed
action is to foster and promote the general welfare of the human and
natural environment by providing enhanced emergency response and
investigative efforts for safer transport of hazardous materials. The
proposed action builds on the current HMR requirements for hazardous
material information sharing with the goal of improved rail
transportation safety by enhancing emergency responder and law
enforcement ability to assess, without delay, the potential for or
extent of a hazardous material release and take appropriate response
measures. These enhanced safety measures and requirements are geared
toward addressing environmental effects including avoidance of human
exposure and water contamination. Regulations that require the
increased use of electronic systems for transmission of train consist
information not only promote enhanced emergency response and
investigative efforts for accidents or incidents but also respond to
the FAST Act mandate and NTSB safety recommendation R-07-04.
Class I Railroads Only Alternative:
This alternative would require only Class I railroads to supplement
existing hard copy train consist information documentation requirements
by creating and providing accurate, real-time train, electronic train
consist information to emergency response personnel and also providing
a ``push'' notice of the train consist information to emergency
response personnel in a 10-mile radius of an accident or incident
promptly following notification to the railroad of the accident or
incident. Although, the entirety of the nation's rail network would not
be covered, applying this alternative would still affect about 68% of
the nation's rail network and most of the hazardous materials freight
traffic. Class I railroads operate on about 90,000 miles of the
140,000-mile U.S. freight rail network. This modified version of the
proposal would still provide safety and environmental benefits by
enhancing emergency responder and law enforcement ability to assess
without delay the potential for a hazardous material release and take
appropriate response measures. Similar to the proposed action to all
railroads, this approach also builds on the HMR provisions for
hazardous material information sharing, just to a narrower extent,
applicable to only Class I railroads. The enhanced safety measures and
requirements are geared toward addressing environmental effects
including avoidance of human exposure and water contamination.
4. Environmental Justice
Executive Order 12898 (``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations''),\49\
directs Federal agencies to take appropriate and necessary steps to
identify and address disproportionately high and adverse effects of
Federal actions on the health or environment of minority and low-income
populations to the greatest extent practicable and permitted by law.
DOT Order 5610.2C (``U.S. Department of Transportation Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations'') establishes departmental procedures for effectuating
Executive Order 12898 promoting the principles of environmental justice
through full consideration of environmental justice principles
throughout planning and decision-making processes in the development of
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------

\49\ 59 FR 7629 (Feb. 11, 1994).
---------------------------------------------------------------------------

Through the NEPA process, PHMSA has evaluated this NPRM under DOT
Order 5610.2C and Executive Order 12898 and has preliminarily
determined it will not cause disproportionately high and adverse human
health and environmental effects on minority and low-income
populations. The proposed rule will not result in any adverse
environmental or health impact on minority populations and low-income
populations. Rather, PHMSA anticipates the proposed action to have a
positive impact on the safe transportation of hazardous materials by
rail by requiring all trains transporting hazardous materials to have
real-time information available to emergency responders in the event of
an accident or incident--particularly rail lines in urban or rural
areas posing higher risks due to their proximity to minority and low-
income communities in the vicinity of those rail lines. To the extent
that the nation's rail network passes through geographic locations of
minority populations, low-income populations, or other underserved and
other disadvantaged communities, and in the unfortunate circumstance of
a rail accident or emergency involving hazardous materials, the
proposed action will have a positive impact by aiding emergency
response personnel and law enforcement in more quickly assessing
potential threats from the hazardous materials and taking appropriate
measures to protect public health and the environment. Lastly, as
explained in this DEA above, the proposed action will likely reduce
environmental risks posed by hazardous material rail incidents.
5. Agencies and Persons Consulted
PHMSA published this notice in consultation with FRA. In addition,
PHMSA and FRA worked with stakeholders through several RSAC Hazardous
Material Issues Working Group meetings. The U.S. Department of Homeland
Security, NTSB, and a variety of rail industry stakeholders, such as
the AAR and the IIAFC participated in these meetings. Ultimately, some
participants in the Working Group concluded that electronic train
consist information could be a valuable option for improving emergency
response efforts, and the AskRail[supreg] system could be extended
beyond Class I railroads. PHMSA also issued an ANPRM soliciting
stakeholder input on the contents of this rulemaking. Please see
Section III. G above for more details.
6. Draft Finding of No Significant Impact
As discussed in the DEA above and given that the purpose of the
rule is to address safety and environmental impacts of potential future
hazardous materials rail transportation incidents, PHMSA proposes to
find that this proposed action will have no significant impact on the
environment. This is based on the analysis presented in the ANPRM,
NPRM, supporting documents, and this DEA. PHMSA welcomes public
comments about the safety and environmental risks or benefits that
could result from this proposed rule as well as possible alternatives
and their environmental impacts.

I. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform any amendments to the HMR considered in this
rulemaking. DOT posts these comments, without edit, including any
personal information the commenter provides, to www.regulations.gov, as
described in the system of records notice (DOT/ALL-14 FDMS). DOT's
complete Privacy Act Statement is available in the Federal

[[Page 41559]]

Register,\50\ or on DOT's website at http://www.dot.gov/privacy.
---------------------------------------------------------------------------

\50\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------

J. Executive Order 13609 and International Trade Analysis

Executive Order 13609 (``Promoting International Regulatory
Cooperation'') \51\ requires that agencies consider whether the impacts
associated with significant variations between domestic and
international regulatory approaches are unnecessary or may impair the
ability of American business to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory cooperation
can identify approaches that are at least as protective as those that
are or would be adopted in the absence of such cooperation.
International regulatory cooperation can also reduce, eliminate, or
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------

\51\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------

Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
amended by the Uruguay Round Agreements Act (Pub. L. 103-465) (as
amended, the Trade Agreements Act), prohibits agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Pursuant to the Trade Agreements Act, the establishment of
standards is not considered an unnecessary obstacle to the foreign
commerce of the United States, so long as the standards have a
legitimate domestic objective, such as providing for safety, and do not
operate to exclude imports that meet this objective. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards.
PHMSA participates in the establishment of international standards
to protect the safety of the American public, and it has assessed the
effects of the proposed action to ensure that it does not cause
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is
consistent with Executive Order 13609 and PHMSA's obligations under the
Trade Agreements Act.

K. National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act (NTTAA) of
1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary
consensus standards in their regulatory activities unless doing so
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards--e.g.,
specification of materials, test methods, or performance requirements--
that are developed or adopted by voluntary consensus standard bodies.
This rulemaking does not propose use of voluntary consensus standards,
and therefore the NTTAA does not apply.

L. Cybersecurity and Executive Order 14082

Executive Order 14082 (``Improving the Nation's Cybersecurity'')
\52\ expressed the Administration policy that ``the prevention,
detection, assessment, and remediation of cyber incidents is a top
priority and essential to national and economic security.'' Executive
Order 14082 directed the Federal Government to improve its efforts to
identify, deter, and respond to ``persistent and increasingly
sophisticated malicious cyber campaigns.'' Consistent with Executive
Order 14082, TSA in October 2022 issued a Security Directive to reduce
the risk that cybersecurity threats pose to critical railroad
operations and facilities through implementation of layered
cybersecurity measures that provide defense in depth.\53\
---------------------------------------------------------------------------

\52\ 86 FR 26633 (May 17, 2021).
\53\ TSA, Security Directive No. 1580/82-2022-01, ``Rail
Cybersecurity Mitigation Actions and Testing'' (Oct. 24, 2022).
---------------------------------------------------------------------------

PHMSA has considered the effects of the NPRM and has preliminarily
determined that its proposed regulatory amendments would not materially
affect the cybersecurity risk profile for rail transportation of
hazardous materials. PHMSA acknowledges that the proposed requirements
within this NPRM pertaining to the sharing of electronic train consist
information (some of which may be proprietary or security-sensitive
information) could have some effect on the cybersecurity risk profile
of rail transportation of hazardous material. However, PHMSA notes that
it has proposed in this NPRM (consistent with a mandate in section
7302(a)(5) of the FAST Act) explicit language at Sec. 174.28(c) that
would require such information sharing be performed in a manner that is
protective of security and confidentiality interests. PHMSA also notes,
that, as explained in the discussion of Sec. 174.28 within Sections
III.F-G. above, railroads that would be affected by this NPRM's
proposals may be participants in existing industry cybersecurity risk-
mitigation initiatives, or subject to recent TSA guidance for
mitigation of cybersecurity risks associated with rail transportation
of hazardous material. PHMSA understands these considerations address
any potential alteration in cybersecurity risks profiles due to this
NPRM's proposed information-sharing requirements.
PHMSA seeks comment on any other potential cybersecurity impacts of
the proposed amendments beyond the considerations discussed here.

M. Severability

The purpose of this proposed rule is to operate holistically in
addressing different issues related to safety and environmental hazards
associated with the rail transportation of hazardous materials.
However, PHMSA recognizes that certain provisions focus on unique
topics. Therefore, PHMSA preliminarily finds that the various
provisions of this proposed rule are severable and able to function
independently if severed from each other; thus, in the event a court
were to invalidate one or more of this proposed rule's unique
provisions, the remaining provisions should stand and continue in
effect. PHMSA seeks comment on which portions of this rulemaking should
or should not be severable.

List of Subjects

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,
Imports, Reporting and recordkeeping requirements.

49 CFR Part 174

Emergency preparedness, Hazardous materials transportation,
Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 180

Hazardous materials transportation, Motor carriers, Motor vehicle
safety, Packaging and containers, Reporting and recordkeeping
requirements.

In consideration of the foregoing, PHMSA proposes to amend 49 CFR
chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.

0
2. In Sec. 171.8, remove the definition for ``Train consist'' and add
the definition for ``Train consist information'' in alphabetical order
to read as follows:

[[Page 41560]]

Sec. 171.8 Definitions.

* * * * *
Train consist information means a hard (printed) copy or electronic
record of the position and contents of each hazardous material rail car
where the record includes the information required by Sec. 174.26 of
this subchapter.
* * * * *

PART 174--CARRIAGE BY RAIL

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

Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and
1.97.

0
4. Revise Sec. 174.26 to read as follows:

Sec. 174.26 Notice to train crews.

(a) Prior to movement of a train, a railroad must provide the train
crew with train consist information as defined in Sec. 171.8 of this
subchapter in hard copy (printed) form that has: a railroad-designated
emergency point of contact (name, title, phone number and email
address) in a conspicuous location; and the position in the train and
contents of each hazardous material rail car by reporting mark and
number, to include the:
(1) Point of origin and destination of hazardous materials subject
to shipping paper requirements on the train;
(2) Shipping paper information required by Sec. Sec. 172.201 to
172.203 of this subchapter; and
(3) Emergency response information required by Sec. 172.602(a) of
this subchapter.
(b) The train crew must update the train consist information to
reflect any changes in the train consist information occurring at
intermediate stops prior to continued movement of the train. Any update
to the train consist information must also be reflected in the
electronic train consist information required pursuant to Sec. 174.28
prior to continued movement of the train. Train crews may use
electronic or radio communications to notify the railroad to update the
electronic train consist information.
(c) The train consist information must always be immediately
available for use by the train crew while the train is in
transportation. When the train crew is aboard the train locomotive, the
train consist information shall be stowed in a conspicuous location of
the occupied locomotive.
(d) Railroad operating rules for use of electronic devices by train
crews and use of electronic devices by train crews in association with
updates to train consist information requirements of this section and
Sec. 174.28 must comply with 49 CFR part 220, subpart C.
0
5. Add Sec. 174.28 to read as follows:

Sec. 174.28 Electronic Train Consist Information.

(a) Retention and notification requirements. Each railroad carrying
hazardous materials must at all times maintain in electronic form, off
the train, accurate train consist information as required in Sec.
174.26. Each railroad must make such electronic train consist
information immediately accessible at all times to its designated
emergency point of contact such that they are able to communicate train
consist information to Federal, state, and local first responders,
emergency response officials, and law enforcement personnel seeking
assistance. Each railroad must also provide, using electronic
communication (e.g., a software application or electronic data
interchange), that electronic train consist information to authorized
Federal, state, and local first responders, emergency response
officials, and law enforcement personnel along the train route that
could be or are involved in the response to, or investigation of, an
accident, incident, or public health or safety emergency involving the
rail transportation of hazardous materials such that the information is
immediately available for use at the time it is needed.
(b) Emergency notification. When a train carrying hazardous
material is involved in either an accident, or in an incident involving
the release or suspected release of a hazardous material from a rail
car in the train, the railroad must promptly notify State-authorized
local first responders within at least a 10-mile radius of the accident
or incident by forwarding train consist information in electronic form
to those personnel. Notification may be accomplished through Public
Safety Answering Points (i.e., 911 call centers).
(c) Security measures. Each railroad must implement security and
confidentiality protections in generating, updating, providing, and
forwarding train consist information in electronic form pursuant to
this section to ensure they provide access only to authorized persons.
Nothing in this paragraph shall limit a railroad from entering into
agreements with other railroads or persons to develop and implement a
secure process for the generation, updating, providing, and forwarding
of that information.
(d) Provision of train consist information. No railroad may
withhold, or cause to be withheld, the train consist information
described in paragraphs (a) and (b) of this section from Federal,
state, or local first responders, emergency response officials, and law
enforcement personnel in the event of an incident, accident, or public
health or safety emergency involving the rail transportation of
hazardous materials. If a railroad uses a software application to meet
the requirements of this section, it must provide all first responders,
emergency response officials, and law enforcement personnel responding
to, or investigating, an accident, incident, or public health or safety
emergency involving the rail transportation of hazardous materials
access, in accordance with the security and confidentiality protections
required in paragraph (c) of this section, to the train consist
information contained within that application without delay for the
duration of the response or investigation.

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

0
6. The authority citation for part 180 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

0
7. In Sec. 180.503, remove the definition ``Train consist''.

Issued in Washington, DC on June 21, 2023 under authority
delegated in 49 CFR part 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2023-13467 Filed 6-26-23; 8:45 am]
BILLING CODE 4910-60-P