[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Rules and Regulations]
[Pages 52956-52994]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-13474]



[[Page 52955]]

Vol. 89

Monday,

No. 121

June 24, 2024

Part III





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration





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49 CFR Parts 171, 174, and 180





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

  Federal Register / Vol. 89 , No. 121 / Monday, June 24, 2024 / Rules 
and Regulations  

[[Page 52956]]


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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: Final rule.

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SUMMARY: PHMSA is amending the Hazardous Materials Regulations to 
require railroads that carry hazardous materials 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 amendments in this 
final rule address a safety recommendation of the National 
Transportation Safety Board and statutory mandates in The Fixing 
America's Surface Transportation Act, as amended by the Infrastructure, 
Investment, and Jobs Act, and complement 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: 
    Effective Date: July 24, 2024.
    Voluntary Compliance Date: June 24, 2024.
    Delayed Compliance Date: For Class I Railroads June 24, 2025. For 
Class II and III Railroads June 24, 2026.

FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, 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.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. What is the purpose of the regulatory action?
    B. What are the key provisions?
    C. What changed between the NPRM and the final rule?
    D. What is the economic impact?
II. Electronic Hazard Communication for Rail Transportation 
Emergency Response
    A. What action is being taken?
    B. What is PHMSA's authority for this action?
    C. Does this action apply to me?
III. Background
    A. What is train consist information?
    B. What was required regarding train consist information prior 
to this final rule?
    C. How does this final rule impact existing special permits for 
electronic train consist information?
    D. How does train consist information affect rail transportation 
safety?
    E. How will the requirements for electronic train consist 
information adopted in this final rule affect rail transportation 
safety?
    F. What does PHMSA mean by real-time?
    G. How has PHMSA engaged stakeholders?
IV. Summary and Discussion of Comments
    A. Summary of Comments Received
    B. Applicability of Real-Time Electronic Train Consist 
Information Requirements to Regional and Short Line Railroads
    C. Emergency Notification of Rail Accidents and Incidents 
Involving Hazardous Materials
    D. Defining the Recipients of Train Consist Information
    E. Maintenance of Both Paper and Electronic Train Consists
    F. Availability of Train Consist Information in Real-Time
    G. Timing of Updates to Train Consist Information
    H. Applicability of Requirements to Freight Lines Operating on 
Commuter/Passenger Rail Track
    I. Origin/Destination Information
    J. Emergency Response Point of Contact
    K. Use of the Existing AskRail[supreg] Application To Comply 
With This Rulemaking
    L. Cost, Benefit, and Delayed Compliance Period
    M. Comments Beyond the Scope of This Rulemaking
    N. Additional Notice and Opportunity To Comment
V. Section-by-Section Review of Amendments
    A. Sections 171.8 and 180.503
    B. Section 174.26
    C. Section 174.28
VI. 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. 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 regulatory action?

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
is amending 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) and its existing statutory safety 
authorities. This final rule requires railroads transporting hazardous 
materials to generate train consist information in electronic form, 
maintain that information off-the-train, and update that information in 
real-time. Railroads must provide that information to authorized 
federal, state, and local first responders, emergency response 
officials, and law enforcement personnel \1\ along the train route who 
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 in advance of their arrival 
to an accident or incident.
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    \1\ PHMSA understands ``authorized Federal, State, and local 
first responders, emergency response officials, and law enforcement 
personnel'' may include personnel from any of federal agencies 
(e.g., PHMSA, Federal Railroad Administration, National 
Transportation Safety Board, U.S. Environmental Protection Agency, 
or Federal Emergency Management personnel) involved in the response 
to or investigation of a hazmat incident during rail transportation, 
or organizations that state or local governments authorize to 
perform emergency response activities. PHMSA further understands 
that ``local first responders'' includes tribal and territorial 
first responders.
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    Additionally, immediately following either an accident involving a 
train carrying hazardous materials or an incident involving the release 
or suspected release of hazardous material from a train, the railroad 
operating the train must make an emergency notification telephonically 
and provide train consist information electronically to the primary 
Public Safety Answering Point (PSAP) \2\ responsible for the area where 
the event occurred as well as the track owner (if the track owner is 
different from the railroad operating the train). PHMSA also adopts a 
requirement that railroads must test their emergency notification 
system at least annually. In updating that electronic train consist 
information, railroads must also update the local copy version of the 
same information

[[Page 52957]]

provided to train crews in printed paper copy. Updating both the local 
printed paper copy maintained by the train crew and the electronic 
version of that information maintained off the train ensures the 
information is consistent, accurate, and available when needed most.
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    \2\ A PSAP is an entity responsible for receiving 9-1-1 calls 
and processing those calls according to a specific operational 
policy. Primary PSAPs are responsible for directly receiving 9-1-1 
and other emergency calls and may route them to other PSAPs for 
response.
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    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, Ohio, 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.
    The amendments in this final rule 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),\3\ to require Class I railroads \4\ 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, Mississippi, PHMSA is 
applying the final rule requirements to all railroads that transport 
hazardous materials in light of the risks to public safety and the 
environment from delay in responding to releases from smaller Class II 
and III railroads. In this final rule, PHMSA is adopting alternative 
compliance methods as an option for Class III railroads to reduce the 
regulatory burden on these small businesses while still improving the 
ability of emergency responders to access accurate train consist 
information from these railroads. Additionally, while the proposed rule 
was more narrowly focused on providing information to emergency 
response personnel, thanks to public comments, this final rule adopts 
an approach that provides critical information to a broader group of 
responders while reducing the burden on railroads.
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    \3\ Codified at 49 U.S.C. 20103 note.
    \4\ 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 $1 billion/year (2023); the threshold for 
Class II rail carriers is approximately $46 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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B. What are the key provisions?

    This section outlines the key provisions of the final rule. For 
benefit of the reader, a discussion of the changes made between this 
final rule and the notice of proposed rulemaking (NPRM) \5\ follows in 
section I.C. below.
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    \5\ 88 FR 41541 (Jun. 27, 2023). https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf.
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    Definition of ``Train Consist Information:'' PHMSA is amending 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 train; shipping paper 
information required by Sec. Sec.  172.201 to 172.203; and emergency 
response information required by Sec.  172.602(a). PHMSA also makes a 
conforming revision to Sec.  180.503 to delete a definition of ``train 
consist'' that is not used in that part.
    Notice to Train Crews: PHMSA is amending the requirements in Sec.  
174.26 to provide train consist information (as PHMSA defines that term 
at Sec.  171.8) in local printed paper form to train crews prior to 
movement of hazardous materials by rail. Specifically, PHMSA clarifies 
responsibilities for railroads to provide a local printed paper copy 
version of train consist information to train crews; for train crews to 
update that local copy version of train consist information; and that 
the local copy of the train consist information must be maintained in a 
conspicuous location of an occupied locomotive or in the possession of 
a train crew member if they evacuate the locomotive during an accident 
or incident. 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 contact. Railroads must ensure the local 
printed paper copy and electronic train consist information maintained 
off the train are at all times accurate and consistent.
    Note that Class III railroads complying with the alternative 
compliance method adopted in this final rule are not required to 
maintain and update train consist information in electronic form. 
Instead, they must have a written plan that identifies how the railroad 
will provide accurate train consist information to local emergency 
responders; inform local emergency response organizations and PSAPs 
about their plan (and any material changes made to the plan after the 
original notification); enact the plan during incidents or accidents 
requiring emergency response; and test the plan at least annually.
    Emergency Response Information Sharing Requirements: PHMSA creates 
a new section at Sec.  174.28 that establishes real-time, electronic 
train consist information-sharing requirements for hazardous materials 
transported by rail. Railroads transporting hazardous materials must 
generate and provide train consist information by electronic means to 
authorized federal, state, and local first responders; emergency 
response officials; and law enforcement personnel who 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 federal, state, and local first responders, 
emergency response officials, and law enforcement personnel.
    In the event of either an accident involving a train carrying 
hazardous materials, or incident involving the release or suspected 
release of hazardous material, railroads operating trains carrying 
hazardous material are required to immediately notify the primary PSAP 
responsible for the area where the incident occurred telephonically and 
the track owner (if

[[Page 52958]]

the track owner and the railroad operating the train are different), 
and provide the train consist information to the primary PSAP/track 
owner electronically in a form that the PSAP/track owner is capable of 
readily accessing (i.e., a form the PSAP/track owner can access and use 
based on the specific information technology resources they have 
available) to assist in response and investigation efforts. This 
emergency notification requirement applies to situations that require 
response from local emergency response agencies. For example, PHMSA 
does not expect that a railroad will provide emergency notification and 
train consist information to the primary PSAP responsible for the area 
where the incident occurred due to the release of a minimal amount of 
material from the routine operation of service equipment, provided the 
release does not cause property damage, injury to employees, or any 
danger to public safety or health. PHMSA emphasizes that the emergency 
notification requirement adopted in this final rule does not affect a 
railroad's responsibility to continue to comply with all applicable 
local, state, and federal reporting requirements related to releases of 
hazardous materials, hazardous substances, oil, or any similar 
subjects.
    Class III railroads may comply with the requirements applicable to 
Class I and II railroads, or they may comply with an alternative method 
for providing train consist information to authorized federal, state, 
and local first responders, emergency response officials, and law 
enforcement personnel. This alternative method is discussed in greater 
detail in Sections IV.B and V.C below. To summarize the alternative 
requirements, Class III railroads must develop a written plan that 
identifies how the railroad will provide emergency notification and 
accurate train consist information to local emergency responders; 
notify emergency responders along their route of the contents of the 
plan (and any material changes made to the plan after the original 
notification); \6\ conduct a test at least annually to demonstrate the 
effectiveness of the plan; and enact the plan in the event of a rail 
incident or accident requiring response from local emergency response 
agencies.
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    \6\ In this context, PHMSA notes our expectation that a Class 
III railroad utilizing the alternate compliance method will notify 
local emergency response agencies of any significant changes to the 
procedures outlined in the plan, such as a change to the type of 
technology used to provide accurate train consist information.
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    Finally, railroads must develop a test program and conduct tests of 
their emergency notification and electronic train consist transmission 
system at least annually, to ensure reliability of these systems across 
their network. Class III railroads complying with the alternative 
compliance method must conduct a test, at least annually, demonstrating 
that their written plan is effective for emergency notification and 
transmission of train consist information.

C. What changed between the NPRM and the final rule?

    In response to comments received to the NPRM, PHMSA is making the 
following changes in this final rule. See Section IV for further 
details on the reasoning and impact of these changes.

                               Table--Changes Between the NPRM and the Final Rule
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            NPRM proposal                    Final rule requirement                      Explanation
----------------------------------------------------------------------------------------------------------------
 One-year compliance period    One-year compliance period    This extension in the
 for all railroads.                    for Class I railroads.                compliance period for Class II and
                                       Two-year compliance period    III railroads provides these
                                       for Class II and III railroads.       smaller entities with additional
                                                                             time to make the necessary changes
                                                                             to their operations and systems to
                                                                             comply with the requirements of
                                                                             this final rule.
 Train consist information     Train consist information     This revision of a proposed
 must include information on the       must include the origin and           requirement aligns the final rule
 origin and destination of all         destination of the train.             more closely with the FAST Act
 hazardous materials transported on                                          mandate for data on train origin
 the train.                                                                  and destination, which will provide
                                                                             responders with information on the
                                                                             train's direction of travel.
 Railroads must provide        Railroads must provide        This revision is intended
 prompt emergency notification of an   immediate emergency notification of   to ensure the incident commander
 accident or incident involving        an accident or incident involving     receives critical train consist
 hazardous materials to every state-   hazardous materials to the primary    information without providing
 authorized local first responder      PSAP responsible for the area where   confusing notifications to
 within a 10-mile radius.              the incident occurred                 unaffected jurisdictions.
                                       telephonically and the track owner    This adjusted notification
                                       (if the track owner is different      requirement is intended to ensure
                                       than the railroad operating the       railroads have an operable system
                                       train).                               in place to make the emergency
                                       Railroads must test their     notification, and that operational
                                       emergency notification system at      procedures are practiced regularly.
                                       least annually, and create and
                                       retain records of the results of
                                       the tests (e.g., was the test
                                       notification received and
                                       acknowledged immediately).
 The contact information for   The contact information for   This revision to a proposed
 the railroad's designated emergency   the railroad's designated emergency   requirement acknowledges that
 point of contact must include name,   point of contact must include a       including a specific individual's
 title, e-mail address, and phone      phone number.                         name, title, and email address is
 number.                                                                     not practical for the constant,
                                                                             round-the-clock operational nature
                                                                             of rail transportation of hazardous
                                                                             materials.
 All railroads are subject     There are alternative         PHMSA concludes that
 to the same requirements in Sec.      compliance requirements for Class     different operational
 174.28 for Electronic Train Consist   III railroads.                        considerations for Class III
 Information.                                                                railroads and relative economic
                                                                             burdens for small businesses must
                                                                             be accounted for to facilitate
                                                                             effective implementation, and thus
                                                                             has created an alternative
                                                                             compliance requirement for Class
                                                                             III railroads.
 Train crews may use           Train crews may use           This editorial revision to
 electronic or radio communications    electronic, radio communications,     the proposed requirement clarifies
 to notify the railroad to update      or other means to notify the          further the flexibility railroads
 electronic train consist              railroad to update the electronic     can use to communicate train
 information.                          train consist information.            consist changes to their
                                                                             centralized electronic system.
 The requirements for          The requirements for          This editorial revision to
 electronic real-time train consist    electronic real-time train consist    a proposed requirement clarifies
 information apply to a railroad       information apply to a railroad       that the railroad operating a train
 carrying hazardous material.          operating a train carrying            carrying hazardous materials is
                                       hazardous material.                   subject to the requirements of this
                                                                             rule, rather than the track owner
                                                                             (if the track owner is different
                                                                             that the railroad operating the
                                                                             train).

[[Page 52959]]

 
 Emergency notifications       Emergency notifications       This editorial revision
 must be made promptly.                must be made immediately.             (replacing ``promptly'' with
                                                                             ``immediately'') better conveys
                                                                             PHMSA's intention in the NPRM that
                                                                             railroads notify the primary PSAP/
                                                                             track owner as quickly as possible
                                                                             after learning of the accident or
                                                                             incident. ``Immediately'' is
                                                                             understood to have more urgency
                                                                             than ``promptly.''
 n/a.                          The proposed paragraphs in    The creation of a new
                                       Sec.   174.28(c) (security) and (d)   paragraph (c) in Sec.   174.28 to
                                       (provision of train consist           authorize alternative compliance
                                       information) are redesignated (d)     requirements for Class III
                                       and (e), respectively.                railroads requires redesignation of
                                                                             the proposed (c) and (d) to (d) and
                                                                             (e).
 The NPRM provided no          PHMSA is clarifying that      It was not PHMSA's intent
 clarification on the types of         only accidents and incidents that     to require the notification of
 accidents or incidents involving      require activation of local           local emergency response resources
 release or suspected release of       emergency response resources must     and provision of train consist
 hazardous materials requiring         be immediately reported and           information in circumstances that
 emergency notification.               accompanied with electronic train     do not require emergency response.
                                       consist information.
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D. What is the economic impact?

    PHMSA estimates the final rule impacts six Class I railroads, 14 
Class II railroads, and 638 Class III railroads, and estimates the 
undiscounted total financial impact of the rule over a 10 year analysis 
period to be about $17.7 million in 2022 dollars, for an average annual 
cost of $1.8 million. The discounted total cost of the rule over the 
analysis period is estimated to be $15.8 million in 2022 dollars at a 
two percent discount rate, for an average annual cost of $1.6 million. 
The benefits of this final rule will depend greatly on the 
effectiveness of having timely access to real-time train consist 
information to improve authorized federal, state, and local first 
responders, emergency response officials, and law enforcement 
personnel's 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, Ohio.
    PHMSA anticipates the final rule will improve authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel's ability to promptly identify all the 
hazardous materials cars involved in an accident and to assess the 
threat from a hazardous materials release in a timely manner. PHMSA 
estimated the annual damage cost of hazardous material incidents on 
rail to be $15 million in 2022 dollars. Therefore, the rule would have 
to reduce damage costs by about 12 percent for the monetized benefits 
of the rule to equal costs. The following table summarizes the annual 
costs and benefits of the major provisions of the final rule in 
constant 2022 dollars.

----------------------------------------------------------------------------------------------------------------
                                       Average annual cost
          Requirement           --------------------------------         Benefit                 Breakeven
                                  Undiscounted         2%
----------------------------------------------------------------------------------------------------------------
Amending the definition of             $327,847        $291,089  By aligning the          Cost-effective if this
 train consist information.                                       definition of the FAST   requirement reduces
                                                                  Act with the language    the consequences of
                                                                  in the existing          hazardous material
                                                                  regulation, this         incidents by rail by
                                                                  amendment improves       about 11.8 percent.
                                                                  regulatory clarity.
Amending notice to train crew..       1,169,018       1,036,601  By improving emergency
                                                                  personnel's ability to
                                                                  promptly identify all
                                                                  the hazardous
                                                                  materials involved in
                                                                  an accident and assess
                                                                  the threat from a
                                                                  hazardous materials
                                                                  release, the
                                                                  provisions will reduce
                                                                  injuries and
                                                                  fatalities, material
                                                                  loss and response
                                                                  costs, and delays
                                                                  caused by closures.
New emergency response                  275,018         251,219
 information sharing
 requirement.
                                --------------------------------------------------------------------------------
    Total......................       1,771,883       1,578,908
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    As illustrated by the Norfolk Southern train derailment incident at 
East Palestine, Ohio, such accidents can have substantial impacts that 
are not quantified by the final regulatory impact analysis (RIA) in 
this rulemaking--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.\7\ 
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.\8\ PHMSA acknowledged and considered 
these unquantified factors in adopting the provisions of the 
rulemaking.
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    \7\ 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 
five to eight percent (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.
    \8\ See PHMSA, ``Improving Rail in Rural Communities,'' https://railroads.dot.gov/rural (last accessed May 3, 2023).

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[[Page 52960]]

II. Electronic Hazard Communication for Rail Transportation Emergency 
Response

A. What action is being taken?

    In this final rule, PHMSA adopts a requirement for railroads 
transporting hazardous materials 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 federal, state, and local first responders, emergency 
response officials, and law enforcement personnel at all times upon 
request. Further, PHMSA requires that, in the event of either an 
accident involving a train carrying hazardous materials, or an incident 
involving the release or suspected release of hazardous material, 
railroads operating trains carrying hazardous material must immediately 
telephonically notify the primary PSAP responsible for the area (i.e., 
having jurisdiction) where the incident occurred, and forward that 
train consist information to the primary PSAP and the track owner (if 
the railroad operating the train and the track owner are different) in 
a form that the PSAP and track owner are capable of readily accessing. 
Class III railroads may comply with the requirements adopted for Class 
I and II railroads, or they may comply with the alternative 
requirements adopted in this rule for planning, notifying, and 
providing accurate train consist information to local emergency 
response agencies. PHMSA also makes conforming and clarifying revisions 
to previously existing HMR requirements governing notification (via 
local printed paper copy documentation) of train crews for trains 
carrying hazardous material.
    PHMSA is adopting a delayed compliance period of one year from the 
date of publication of this final rule for Class I railroads 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 train consist information in 
electronic form to authorized federal, state and local first 
responders, emergency response officials, and law enforcement 
personnel. PHMSA is adopting a delayed compliance period of two years 
for Class II and III railroads to allow these smaller railroads 
additional time to implement the systems and procedures necessary to 
comply with this final rule. Detailed discussions of comments received 
to the rulemaking docket are provided in Section IV below, and 
discussion of changes to sections of the HMR based on this rule are 
provided in Section V below.

B. What is PHMSA's authority for this 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 of Transportation (Secretary) to issue 
regulations 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.'' 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:
     Identity, quantity, and location of hazardous materials on 
a train;
     Point of origin and destination of the train;
     Emergency response information or resources required by 
the Secretary; and
     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 action apply to me?

    The action in this final rule applies to all railroads that 
transport hazardous materials 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, in this final rule 
PHMSA adopts requirements--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--for 
Class II railroads to also compile, update, and forward accurate, real-
time train consist information in electronic form. Class III railroads 
may comply with the requirements adopted for Class I and II railroads, 
or they may comply with the alternative requirements adopted in this 
rule for planning, notifying, and providing accurate train consist 
information to local emergency response agencies.
    PHMSA notes that this broader approach to include all railroads 
transporting hazardous materials in the United States 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, Mississippi. 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.\9\
---------------------------------------------------------------------------

    \9\ 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.
---------------------------------------------------------------------------

    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. Class II and III 
railroads (hereinafter referred to as ``regional and short line 
railroads'') also transport hazardous material and account for more 
than one 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,

[[Page 52961]]

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 authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel in areas served by these railroads to also 
have access to accurate and real-time train consist information. In 
this final rule, PHMSA is providing a longer delayed compliance period 
(two years) for Class II and III railroads in recognition that they may 
need additional time to develop the necessary systems and procedures to 
comply with this final rule.
    Finally, PHMSA is providing clarification in this final rule that 
the requirement to provide real-time train consist information applies 
to the railroad operating the train carrying hazardous materials, not 
the track owner--if the track owner and the railroad operating the 
train are different entities. For example, if a freight railroad is 
utilizing a passenger railroad's tracks to move a train carrying 
hazardous materials, the freight railroad is the entity responsible for 
complying with the real-time train consist requirements PHMSA is 
adopting in this final rule.

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. Prior to the 
adoption of this final rule, the HMR defined ``train consist'' in Sec.  
171.8 as ``a written record of the contents and location of each rail 
car \10\ in a train.'' In this final rule, PHMSA is adopting the 
definition of train consist information as proposed in the NPRM: 
``Train consist information means 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.''
---------------------------------------------------------------------------

    \10\ 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.
---------------------------------------------------------------------------

B. What was required regarding train consist information prior to this 
final rule?

    Prior to publication of this final rule, the HMR at Sec.  174.26(a) 
required that railroad train crews must have a local 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.\11\ 
The regulations required the train crew to update the document, and 
allowed for updates by handwriting or by appending or attaching another 
document. Additionally, Sec.  174.26(b) required that the train crew 
must also have a copy of a document showing the information required on 
hazardous materials shipping papers, including applicable emergency 
response information.
---------------------------------------------------------------------------

    \11\ PHMSA notes that the train consist documentation 
requirements discussed throughout this final rule 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.
---------------------------------------------------------------------------

    A common practice for railroads in satisfying the above regulatory 
requirements was 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 by 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. How does this final rule impact existing special permits for 
electronic train consist information?

    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,\12\ including for six Class I railroads: DOT-SP 20954 
(issued to BNSF Railway Company); DOT-SP 21046 (issued to CSX 
Transportation and currently expired); DOT-SP 21053 (issued to Canadian 
National Railway Company); DOT-SP 21323 (issued to Canadian Pacific 
Railway Company and currently expired); 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 
Class III railroad: Richmond Pacific Railroad. The special permits 
provide operational controls and reporting requirements, including the 
following:
---------------------------------------------------------------------------

    \12\ Special permits may be reviewed at www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search. DOT-SPs 20954, 
21059, 21110 and 21266 are active while DOT-SP 21053 is active under 
pending renewal, along with several party-to applications, and DOT-
SPs 21046 and 21323 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, Ohio.
---------------------------------------------------------------------------

     Train consist information must be readily available by 
electronic means to government officials (e.g., emergency response 
personnel);
     Updates of the train consist information must be done 
electronically and in real-time;
     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;
     Upon notification of an incident to response authorities, 
the train consist information must be provided;
     Training must be provided to first responders along 
portions of a route without cellular service on methods of 
communication during an incident; and
     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.
    Electronic train consist information has been provided to emergency 
responders in accordance with the requirements of these special 
permits. 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. However, PHMSA is 
not prepared to adopt the requirements of these special permits into 
the HMR for general use at this time. We believe more operational 
experience is needed in both ordinary service--particularly in remote 
areas where communication services may not be available--and during 
rail emergencies before we can rely on electronic devices for the train 
crew's copy of train consist information for all

[[Page 52962]]

routes in the United States. Therefore, PHMSA will continue to consider 
requests for renewal, party status, and new applications for special 
permits related to electronic devices used to display and transmit the 
train crew's copy of train consist information in accordance with our 
standard procedures. (See 49 CFR part 107, subpart B.)

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

    Train consist information aids federal, state, and local 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. This communication in turn informs the appropriate 
response action (e.g., selecting the correct fire suppression media) 
precisely when every second counts.
    Officials typically rely heavily on this information--along with 
hazard communication on the railcars themselves required pursuant to 
part 172 requirements pertaining to marking (subpart D), labeling 
(subpart E), and placarding (subpart F)--for timely awareness about 
hazardous material on a train in emergency situations. The local copy 
of train consist information maintained by the crew can often be the 
only accurate basis of knowledge on the hazardous material within a 
train because marking, labeling, and 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. There is a premium 
on having a common understanding of the hazardous material on the train 
as coordinated response efforts commence because emergency response may 
involve personnel from different and distant jurisdictions converging 
on a single location at different times.\13\ 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.
---------------------------------------------------------------------------

    \13\ 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.
---------------------------------------------------------------------------

    An example taken from a 2007 NTSB investigation report \14\ 
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 
carrying mixed freight including hazardous material collided head-on in 
Anding, Mississippi. 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 burned 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 approximately $10 million (in 2005 dollars) of 
property damage and environmental clean-up costs.
---------------------------------------------------------------------------

    \14\ NTSB Report at 2-10.
---------------------------------------------------------------------------

    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 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 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. More than two-and-a-half 
hours after the collision, another CN employee who traveled from 
Jackson, Mississippi, (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 14 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.\15\
---------------------------------------------------------------------------

    \15\ 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, Ohio. 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.\16\ Firefighters who

[[Page 52963]]

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 during their initial 
assessment of the incident and while planning initial response actions. 
Notably, too, the East Palestine, Ohio, 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.
---------------------------------------------------------------------------

    \16\ NTSB, Preliminary Report No. RRD23MR005, ``Norfolk Southern 
Railway Train Derailment with Subsequent Hazardous Material Release 
and Fires--East Palestine, Ohio--Feb. 3, 2023 (Feb. 23, 2023), 
https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf.
---------------------------------------------------------------------------

E. How will the requirements for electronic train consist information 
adopted in this final rule affect rail transportation safety?

    Prior to the adoption of this final rule, the HMR imposed 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'') contemplated that a ``train consist'' 
is 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. 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.
    The limited documentation requirements in the HMR prior to the 
adoption of this final rule contributed 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 was 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, 
Mississippi, collision and the East Palestine, Ohio, 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 carrying hazardous material as those 
hazard communication tools may have been obscured (e.g., through 
burning) or been rendered inaccessible. Moreover, emergency response 
personnel cannot necessarily rely on the train crew or the hard copy of 
the train consist information they may have onboard. As in the Anding, 
Mississippi, collision, train crews can become incapacitated and hard 
copies of the train consist information may be destroyed in the 
incident. Even if those resources are available, they may only be 
available in the form of a single document or to 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.\17\ 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--which may add more delay in the critical 
moments immediately following an accident or incident.\18\ 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.
---------------------------------------------------------------------------

    \17\ 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.
    \18\ 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 finds that maintaining electronic train consist information 
away from the train and updating this information in real-time as the 
position and number of railcars containing hazardous materials on a 
train change, addresses many of those shortcomings from reliance solely 
on the local copy of train consist 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 local copy of 
that information maintained by train crews per Sec.  174.26 as hard 
(printed) copy promotes the accuracy of both remote and local 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 
remote electronic record occurs automatically, it can minimize the 
introduction of human error into either hard or electronic versions of 
the train consist information.
    Additionally, as illustrated by the Anding, Mississippi, collision, 
the local copy of train consist information maintained in the 
locomotive may be destroyed or inaccessible, or train crews may become 
injured, rendering them ineffective for the exchange of information to 
emergency response personnel. Reliance on a single hard or electronic 
copy document, or on a limited number of personnel, risks bottlenecking 
or creating conflicting accountings of critical information. In 
contrast, remote compilation and maintenance 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 promotes earlier 
coordination of emergency response efforts; emergency response 
personnel traveling 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. 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. PHMSA also notes that 
stakeholders within the emergency response community have also

[[Page 52964]]

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.\19\ See Section IV below for further information on 
comments received to this rulemaking proceeding, including supportive 
comments from emergency response organizations.
---------------------------------------------------------------------------

    \19\ 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 federal, state, and local first responders, 
emergency response officials, and law enforcement personnel at the time 
a response to or investigation of an accident, incident, or public 
health or safety emergency is occurring. This latter element in turn 
means that the required electronic train consist information should be 
provided and accessible to authorized personnel before an accident or 
incident--and pushed immediately following initiation of an accident or 
incident to emergency response personnel needing that information to 
identify potential hazardous material threats, take appropriate 
measures, and commence investigation activities.
    Although PHMSA understands that the HMR as written prior to the 
publication of this final rule required 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 conductor) must update by hand the 
local printed paper 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 the HMR as written 
prior to the publication of this final rule did 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 immediately 
notify and forward that same information to state-authorized local 
first responders or primary PSAP 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 as written prior to the publication of this final rule required the 
use of local printed paper copies that may not lend themselves to real-
time updating or transfer to a person off the train. The HMR also 
lacked specificity regarding railroads' obligations to forward that 
information to authorized federal, state, and local first responders, 
emergency response officials, and law enforcement personnel in a 
proactive and timely manner; rather, the HMR spoke 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 practical 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 authorized federal, state, and local first 
responders, emergency response officials, and law enforcement personnel 
at all times and to push the information to them via the primary PSAP 
following an accident or incident--will be practicable for Class I, 
Class II, and for many Class III railroads.
    As a general matter, PHMSA submits that the requirements adopted in 
this final rule 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.\20\ Nor are the requirements 
adopted in this final rule on the cutting edge of technology--the sort 
of equipment and procedures 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). PHMSA submits 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 incentivized to employ similar equipment 
and procedures when transporting materials known to be hazardous to 
public safety and the environment.\21\
---------------------------------------------------------------------------

    \20\ In this final rule, PHMSA provides a one-year delayed 
compliance period for Class I railroads, and a two-year delayed 
compliance period for Class II and III railroads. This provides 
ample time for the railroads to make any necessary changes to their 
operations and systems to comply with the requirements of the final 
rule. PHMSA is also adopting an alternative compliance method for 
Class III railroads to reduce compliance burdens on these small 
businesses.
    \21\ 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, Ohio, derailment.
---------------------------------------------------------------------------

    Additionally, railroads will not be implementing the requirements 
of this final rule 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 form; and PHMSA's requirement adopted in this 
final rule that such information be readily accessible in advance of an 
accident or incident, and forwarded to primary PSAPs electronically in 
a form the PSAP is capable of readily accessing immediately following 
an accident or certain incidents, is similar to existing HMR 
requirements to make certain information available to emergency 
response personnel and train crews. As discussed in Section III.C 
above, a number of the Class I railroads (and at least one short line 
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 the update and prompt relay of that

[[Page 52965]]

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 final rule's 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.\22\ This 
platform--which is available for use in both desktop and mobile device 
applications--provides authorized emergency response personnel and 
primary PSAPs 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 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:
---------------------------------------------------------------------------

    \22\ 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).
---------------------------------------------------------------------------

     Voice reports from train crews;
     Digital communications with mobile devices operated by 
train crews; or
     Digital communications with automatic equipment 
identification (AEI) systems (discussed further below).
    Although AskRail[supreg] may currently operate as a ``near real-
time'' system based on associated use of AEI systems (i.e., there may 
be a lag between a change to the train's makeup and the update to 
AskRail[supreg] prior to passing the next AEI reader), PHMSA believes 
that it is well within the capabilities of railroads operating under 
this system to ensure that updates to train consist information are 
made in real-time, before movement of the train. To the extent that the 
AskRail[supreg] system (or any alternative platform or methods used in 
complying with the final rule's 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 extensive access requirements during emergencies, PHMSA expects that 
such systems could be designed or modified and railroads could 
proactively engage the response community to address those concerns. 
Although PHMSA understands that current use of the AskRail[supreg] 
system may currently be largely limited to Class I railroads,\23\ 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.\24\ 
PHMSA itself commissioned a pilot program that in 2020 demonstrated the 
technical feasibility of integrating a leading proprietary commercial 
train consist information platform for Class II and III railroads (the 
Wabtec Train Management System) with the AskRail[supreg] system.\25\
---------------------------------------------------------------------------

    \23\ See ASLRRA, Doc. No. PHMSA-2016-0015-0006, ``Docket No. 
PHMSA-2016-0015 (HM-263): FAST Act Requirements for Real Time Train 
Consist Information by Rail'' 3-4 (Apr. 19, 2017) (ASLRRA Comments).
    \24\ 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.
    \25\ See PHMSA, Notice ID No. 693JK320P000014, ``Statement of 
Work and Sole Source Justification: Transportation Management 
Consist Information'' (Award Date May 14, 2020). PHMSA maintains a 
copy of the project closeout report.
---------------------------------------------------------------------------

    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; 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 2005 Anding, Mississippi, 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.\26\ PHMSA submits that challenges 
associated with identifying proper placement of installed, trackside 
AEI readers could be mitigated somewhat by timely supplementation with 
one or more portable, handheld AEI readers and voice reports by train 
crew personnel of changes to the local train consist information.
---------------------------------------------------------------------------

    \26\ NTSB Report at 6.
---------------------------------------------------------------------------

G. How has PHMSA engaged stakeholders?

    PHMSA and the Federal Railroad Administration (FRA) had previously 
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.\27\ 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

[[Page 52966]]

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 federal, state, and local first 
responders, emergency response officials, and law enforcement personnel 
had not been provided access to the AskRail[supreg] system in advance, 
access to train consist information may be unavailable to them through 
AskRail[supreg].
---------------------------------------------------------------------------

    \27\ 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 a challenge in increasing reliance on installed, 
trackside AEI readers to provide accurate, real-time updates to 
electronic train consist information--namely, 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 issued an Advance Notice of 
Proposed Rulemaking (ANPRM) in 2017 soliciting comments on implementing 
the FAST Act's then-effective mandate to employ ``fusion centers'' as 
clearinghouses for receiving from railroads, and forwarding electronic 
real-time train consist information to emergency response 
personnel.\28\ Although many 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.
---------------------------------------------------------------------------

    \28\ 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.
---------------------------------------------------------------------------

    AAR and ASLRRA \29\ 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 and 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.\30\ 
The International Association of Fire Fighters (IAFC) also submitted 
comments to the ANPRM ``strongly'' arguing for the 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.\31\
---------------------------------------------------------------------------

    \29\ 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.
    \30\ AAR ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act 
Requirements for Real-Time Train Consist Information by Rail'' (Apr. 
19, 2017). https://www.regulations.gov/comment/PHMSA-2016-0015-0007.
    \31\ IAFC ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act 
Requirements for Real-Time Train Consist Information by Rail'' (Apr. 
21, 2017) at 6.
---------------------------------------------------------------------------

    On June 27, 2023, PHMSA published an NPRM \32\ on this topic, and 
solicited comments from the regulated community and other interested 
parties on implementing real-time train consist information. PHMSA 
extended the comment period for an additional 60 days.\33\ PHMSA 
received 32 sets of comments to the NPRM, which are discussed in detail 
in Section IV below. In this final rule, PHMSA is adopting modified 
requirements related to the delayed compliance period for Class II and 
III railroads; information on the origin and destination of the train; 
the emergency notification required after an accident or incident; the 
railroad's designated emergency point of contact; and creating an 
alternate compliance method for Class III railroads based on comments 
submitted to the NPRM. See Section I.C. above for a summary of the 
changes made to the final rule, and Section IV below for a summary and 
discussion of comments.
---------------------------------------------------------------------------

    \32\ 88 FR 41541 (June 27, 2023). https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf.
    \33\ 88 FR 55430 (Aug. 15, 2023). https://www.govinfo.gov/content/pkg/FR-2023-08-15/pdf/2023-17472.pdf.
---------------------------------------------------------------------------

IV. Summary and Discussion of Comments

A. Summary of Comments Received

    PHMSA received 32 sets of public comments to the NPRM.\34\
---------------------------------------------------------------------------

    \34\ This figure accounts for the two sets of comments submitted 
by ASLRRA, one of which was a request to extend the comment period 
by 60 days, which was granted, and two sets of comments submitted by 
NENA/NASNA.

                  Table--Comments Submitted to the NPRM
------------------------------------------------------------------------
             Commenter                        Docket Identifier
------------------------------------------------------------------------
Mitchel Berger....................  PHMSA-2016-0015-0014.
ASLRRA............................  PHMSA-2016-0015-0016.
Petrina Harrison..................  PHMSA-2016-0015-0017.
Sally Blake.......................  PHMSA-2016-0015-0018.

[[Page 52967]]

 
Elizabeth Smith...................  PHMSA-2016-0015-0019.
Pinsky Law Group..................  PHMSA-2016-0015-0021.
Mark Nichols......................  PHMSA-2016-0015-0022.
NTSB..............................  PHMSA-2016-0015-0023.
NENA/NASNA........................  PHMSA-2016-0015-0024.
Washington State Department of      PHMSA-2016-0015-0025.
 Ecology and Washington Utilities
 and Transportation Commission.
Todd Jackson......................  PHMSA-2016-0015-0026.
Anonymous (PHMSA-2016-0015-0027)..  PHMSA-2016-0015-0027.
Public Utilities Commission of      PHMSA-2016-0015-0028.
 Ohio.
New York State Metropolitan         PHMSA-2016-0015-0029.
 Transportation Authority.
Ohio Department of Public Safety--  PHMSA-2016-0015-0030.
 Ohio Emergency Management Agency.
IAFC..............................  PHMSA-2016-0015-0031.
SMART-TD..........................  PHMSA-2016-0015-0032.
Amtrak............................  PHMSA-2016-0015-0033.
Coalition to Stop CPKC............  PHMSA-2016-0015-0034.
Transportation Trades Department..  PHMSA-2016-0015-0035.
The Attorneys General of            PHMSA-2016-0015-0036
 Pennsylvania, New York, Maryland,
 Delaware, Connecticut, Illinois,
 District of Columbia, Wisconsin,
 Maine, Massachusetts, New Jersey,
 Oregon, and Vermont (hereinafter
 ``the Attorneys General'').
AFPM..............................  PHMSA-2016-0015-0037.
Association of Public-Safety        PHMSA-2016-0015-0038.
 Communications Officials.
Illinois Commerce Commission......  PHMSA-2016-0015-0039.
Maine DEP and Maine EMA...........  PHMSA-2016-0015-0040.
Anonymous (PHMSA-2016-0015-0041)..  PHMSA-2016-0015-0041.
Commuter Rail Coalition...........  PHMSA-2016-0015-0042.
Association of American Railroads   PHMSA-2016-0015-0043.
 (AAR).
ASLRRA............................  PHMSA-2016-0015-0044.
National Association of SARA Title  PHMSA-2016-0015-0045.
 III Program Officials.
American Public Transportation      PHMSA-2016-0015-0046.
 Association.
NENA/NASNA........................  PHMSA-2016-0015-0053.
------------------------------------------------------------------------

    Overall, the majority of the comments received supported the 
requirements proposed in the NPRM. In addition to the supportive 
comments, PHMSA received suggestions to improve the proposed 
requirements, as well as objections, primarily lodged by AAR and 
ASLRRA, to the proposed requirements. Summaries of these substantive 
comments, and PHMSA's response to them, is provided below.
    PHMSA also notes that between January 22 and March 6, 2024, it held 
listening sessions with some of the above stakeholders who had 
submitted written comments on the NPRM to provide them an opportunity 
to elaborate on those comments. PHMSA has filed summaries of those 
listening sessions to the rulemaking docket:

 Table--Stakeholder Listening Sessions on Comments Submitted to the NPRM
------------------------------------------------------------------------
                 Commenter                        Docket Identifier
------------------------------------------------------------------------
ASLRRA....................................  PHMSA-2016-0015-0048.
AAR.......................................  PHMSA-2016-0015-0049.
IAFC......................................  PHMSA-2016-0015-0051.
NENA......................................  PHMSA-2016-0015-0050.
NASNA.....................................  PHMSA-2016-0015-0052.
SMART-TD..................................  PHMSA-2016-0015-0054.
AFL-CIO TTD & Affiliated Unions...........  PHMSA-2016-0015-0056.
------------------------------------------------------------------------

    PHMSA notes that the above listening sessions generally 
recapitulated each stakeholder's written comments. That said, the 
discussions below identify any distinguishable comments from those 
sessions.

B. Applicability of Real-Time Electronic Train Consist Information 
Requirements to Regional and Short Line Railroads

    In the NPRM, PHMSA proposed to apply the same real-time electronic 
train consist requirements to all railroads that transport hazardous 
materials in the United States. The NTSB, Attorneys General, and 
International Association of Sheet Metal, Air, Rail and Transportation 
Workers Transportation Division (SMART-TD) expressed support for the 
inclusion of regional and short line--Class II and III--railroads in 
the scope of the rule. These comments noted that the same types of 
hazardous materials are transported by regional and short line 
railroads as the national Class I railroads and present the same 
possibility for significant accidents impacting the public. NTSB 
additionally urged PHMSA to ensure that emergency responders operating 
in areas served by regional and short line railroads have the same 
access to critical train consist information as those that operate in 
areas served by Class I railroads. ASLRRA, a trade organization that 
represents regional and short line railroads, objected to the decision 
to include them in the scope of the rule. In its comment, ASLRRA stated 
that PHMSA lacks statutory authority for this action; has failed to 
account for lower risks presented by these railroads; and performed a 
faulty regulatory flexibility and cost/benefit analysis. Additionally, 
on January 22, 2024, ASLRRA met with the Office of Hazardous Materials 
Safety (OHMS) and presented verbal comments in support of their written 
comment. A meeting summary \35\ is available in the public docket.
---------------------------------------------------------------------------

    \35\ https://www.regulations.gov/document/PHMSA-2016-0015-0048
---------------------------------------------------------------------------

    ASLRRA noted that the FAST Act, as modified by the 2021 Investment 
Infrastructure and Jobs Act, directs PHMSA to implement a real-time 
electronic train consist information requirement for Class I railroads, 
and does not mention regional or short line

[[Page 52968]]

railroads in association with this mandate, unlike other instances in 
the FAST Act that do specifically mention these classes of railroads.
    ASLRRA stated that regional and short line railroad operations are 
safer than those of larger railroads, due to shorter trains, lower 
speeds and less complex operations. ASLRRA cited data for the period 
2015-2022 that indicates their member railroads accounted for 1.23 
percent of the total damages caused by hazardous materials releases in 
the rail mode, while Class I railroads accounted for the remaining 
98.77 percent.\36\ ASLRRA stated the majority of movement on regional 
and short line railroads are at or below 25 mph, which reduces the 
consequences of a derailment due to the lower amount of kinetic energy 
and could decrease the chances of a derailment by allowing shorter 
stopping distance and additional time to detect a visually apparent 
hazard along the tracks. Additionally, ASLRRA notes the 2005 incident 
in Anding, Mississippi, which led NTSB to issue Safety Recommendation 
R-07-04, involved a Class I railroad. ASLRRA also stated that regional 
and short line railroads, which operate in much smaller geographic 
areas than Class I railroads, maintain close ties with local emergency 
response organizations, making the provision of real-time train consist 
information in electronic format redundant and potentially less 
effective than existing arrangements.
---------------------------------------------------------------------------

    \36\ ASLRRA members accounted for $ 1.3 million dollars in 
damages related to hazardous materials releases in the rail mode in 
the United States, compared to $1.06 billion dollars of damages 
caused by Class I railroads.
---------------------------------------------------------------------------

    Further, ASLRRA stated there are substantial financial and 
operational barriers to integrate regional and short line railroads 
into the existing AskRail[supreg] electronic train consist system 
created by Class I railroads, and that PHMSA failed to account for 
these burdens properly. ASLRRA estimated that approximately 100 
regional and short line railroads provide electronic train consist 
information to AskRail through Wabtec's Train Management System 
(TMS).\37\ ASLRRA identified an additional 210 Wabtec TMS users who do 
not integrate their data into AskRail[supreg], and would need to 
retrain staff and modify existing processes to integrate data into 
AskRail[supreg]. ASLRRA identified a final group of approximately 200 
regional and short line railroads who do not use Wabtec TMS and would 
also need to modify existing systems and processes to integrate into 
AskRail[supreg]. ASLRRA grouped these regional and short line railroads 
together and stated that a total of 410 regional and short line 
railroads would be subject to economic burdens associated with 
providing real-time electronic train consist information.
---------------------------------------------------------------------------

    \37\ PHMSA provided the funding for this integration through a 
grant in 2020. See PHMSA, Notice ID No. 693JK320P000014, ``Statement 
of Work and Sole Source Justification: Transportation Management 
Consist Information'' (Award Date May 14, 2020).
---------------------------------------------------------------------------

    ASLRRA claimed PHMSA substantially undervalued the cost burden by 
indicating that only 41 regional and short line railroads would bear 
significant economic burdens in the preliminary regulatory impact 
analysis (PRIA) that supported the NPRM. ASLRRA also stated that the 
estimate of $18,000 to obtain and implement a real-time electronic 
train consist system and $5,500 per year to maintain the system was 
significantly too low; they estimated that a more reasonable estimate 
was at least $100,000 to obtain and implement a system that would meet 
the requirements of the proposed rule.
    Finally, ASLRRA stated PHMSA failed to account for the unique 
challenges faced by small businesses, including failure to propose a 
delayed compliance date for small businesses, and failure to account 
for the overall lower level of technological integration among the 
regional and short line railroads.
PHMSA's Response
    In this final rule, PHMSA is adopting the scope of the requirement 
as proposed--all railroads that carry hazardous materials in the United 
States must comply with the requirements adopted in this rule. However, 
acknowledging the additional organizational and technological 
challenges facing Class II and III railroads, PHMSA is providing a two-
year delayed compliance period for those railroads. This two-year 
period is intended to allow time for these railroads to make the 
necessary changes to their operating systems and staffing to comply 
with the real-time electronic train consist information requirements.
    PHMSA acknowledges that Class III railroads have unique operational 
and resource constraints that make the retention and real-time 
transmission of electronic train consist information more difficult for 
these small businesses compared to larger Class I and II railroads. 
Therefore, PHMSA is adopting an alternative compliance method for Class 
III railroads. This alternative compliance method is discussed in depth 
below.
    PHMSA does not concur with ASLRRA's assessment that it lacks the 
statutory authority to implement real-time train consist requirements 
for all railroads that transport hazardous materials in commerce. 
Applying this rulemaking to regional and short line railroads is 
neither in conflict with PHMSA's statutory authority nor the FAST Act 
as amended. PHMSA also disagrees that it failed to account for 
different risks presented by regional and short line railroads, or that 
PHMSA failed to meet its responsibilities under the Regulatory 
Flexibility Act to reduce unnecessary burdens on small businesses.
    First, although the statutory mandate in the FAST Act--as modified 
by the Investment Infrastructure and Jobs Act--directed PHMSA to apply 
the rulemaking to Class I railroads, PHMSA has a separate general 
authority to regulate the transportation of hazardous materials. The 
Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101 et 
seq.) at 49 U.S.C. 5103 gives the Secretary broad 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. PHMSA is utilizing this general authority to 
include regional and short line railroads in the scope of this 
rulemaking. The NTSB, Attorneys General, and SMART-TD support the 
inclusion of all railroads that transport hazardous materials in the 
United States in this rulemaking.
    Second, although the 2005 incident in Anding, Mississippi, that led 
to NTSB Safety Recommendation R-07-04 involved a Class I railroad, 
Safety Recommendation R-07-04 recommends all railroads immediately 
provide real-time train consist information to emergency responders 
following an accident or incident involving rail transportation of 
hazardous material. Additionally, regional and short line railroads 
have been involved in serious hazardous materials incidents in the 
past. These incidents include the 2012 derailment of a Conrail (Class 
III) freight train in Paulsboro, New Jersey; \38\ the devastating 2013 
derailment of a unit train of crude oil operated by the Montreal, 
Maine, & Atlantic railroad (Class II) in Lac Megantic, Quebec; \39\ and 
the 2023 derailment of a Montana Rail Link (Class II) train near Reed 
Point, Montana, which released molten sulfur and asphalt into the 
Yellowstone River.\40\ Regional and short line railroads move 
substantial amounts of

[[Page 52969]]

hazardous materials--as of late 2023, six Class II railroads and six 
Class III railroads had filed Comprehensive Oil Spill Response Plans 
with PHMSA, indicating they transport or plan to transport a train 
carrying 20 or more loaded tank cars of liquid petroleum oil in a 
continuous block, or train carrying 35 or more loaded tank cars of 
liquid petroleum oil throughout the train consist.\41\ Regional and 
short line railroads transport hazardous materials, and therefore their 
operations create a risk of serious incidents involving the releases of 
hazardous materials.
---------------------------------------------------------------------------

    \38\ See https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1401.pdf.
    \39\ See https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054-r-es.html.
    \40\ See https://www.ntsb.gov/investigations/Pages/HMD23LR002.aspx.
    \41\ See 49 CFR 130.100.
---------------------------------------------------------------------------

    Third, PHMSA finds ASLRRA's argument that movement of hazardous 
materials by regional and short line railroads represents lower risks 
due to lower speed and less complex train operations unpersuasive. For 
example, ASLRRA's comment fails to present information related to the 
class of track used by these railroads when discussing low-speed 
operations. While ASLRRA is correct that lower speeds are associated 
with lower conditional probability of releases during derailments, 
operating on lower class track also is associated with a higher risk of 
derailment.\42\ Lower speed derailments do not eliminate the 
possibility of hazardous materials releases during accidents--tank 
shell breaches, service equipment failures, and other causes of 
hazardous materials releases can, and do, still occur with derailments 
below 25 mph.
---------------------------------------------------------------------------

    \42\ See Barkan and Kawprasert 2010 ``Track with higher Federal 
Railroad Administration classes has lower accident rates. . .'' 
(https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Kawprasert-and-Barkan-2010.pdf) and Barkan et al. 2014. ``The 
analysis shows that signaled track with higher FRA track class and 
higher traffic density is associated with a lower derailment rate.'' 
(https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Liu-et-al-2017-Freight-train-derailment-rates-for-railroad-safety-and-risk-analysis.pdf).
---------------------------------------------------------------------------

    Lower speed operations do not impact the probability of non-
accident releases (NARs) at all. NARs are typically caused by failures 
in tank car service equipment used to load and unload tank cars, such 
as the tank car's manway or valves due to poor maintenance, improper 
usage, or environmental conditions. While many NARs are minor, some 
NARs create emergency situations that would implicate the notification 
requirements adopted in this final rule due to the volume or hazards of 
the materials released.
    Finally, ASLRRA's argument fails to acknowledge that a significant 
percentage of regional and short line train movements do occur at the 
full operating speed for train equipment, up to 70 miles per hour for a 
train containing tank cars, the predominant bulk packaging used for the 
rail transportation of hazardous materials.\43\
---------------------------------------------------------------------------

    \43\ See HM-251 pgs. 26683-26692 for further details on 
considerations related to train operating speed (https://www.govinfo.gov/content/pkg/FR-2015-05-08/pdf/2015-10670.pdf).
---------------------------------------------------------------------------

    Despite less complex operations and slower average speeds, trains 
operated by regional and short line railroads have derailed and 
released hazardous materials with serious consequences and likely will 
again. Therefore, PHMSA does not believe it is justifiable to exclude 
these types of railroads from the scope of this rule.
    Fourth and finally, PHMSA does not agree this rulemaking places an 
undue burden on small businesses, or that PHMSA has failed to properly 
account for this burden. In its comment, ASLRRA stated PHMSA 
substantially under-counted the number of regional and short line 
railroads that would be subject to significant financial burdens. In 
the PRIA that supported the NPRM, PHMSA estimated 500 regional and 
short line railroads are working with Wabtec (250 using TMS, and 250 
not using TMS). In its comment, ASLRRA stated that 100 of their member 
railroads are using Wabtec's TMS and sending data to AskRail[supreg]; 
210 use Wabtec's TMS with no AskRail integration; and 200 railroads are 
either not using Wabtec's TMS or using a competing suite of train 
management system software. Of the 95 regional and short line railroads 
that PHMSA estimated are not working with Wabtec, PHMSA further 
estimated that 41 had fewer than five employees, and would therefore 
face the highest compliance costs, primarily by hiring additional staff 
to comply with the designated emergency point of contact requirement. 
PHMSA's intention in highlighting these 41 short line railroads was not 
to say they were the only regional or short line railroads that would 
bear additional compliance costs, but that this population of railroads 
would bear the highest percentage of compliance costs due to their very 
small size.
    PHMSA concurs that some Class III railroads may be unable to comply 
with the real-time electronic train consist requirements due to their 
very small size, which limits both the number and type of employees 
available for their operations and constrains their ability to acquire 
necessary technology. PHMSA also acknowledges that Class III railroads, 
which have very short rail networks compared to Class I and II 
railroads, are in a strong position to develop close relationships with 
emergency response organizations and primary PSAPs in their area of 
operation. Therefore, in this final rule, PHMSA is adopting an 
alternative compliance method for Class III railroads, allowing them to 
comply with either the requirements applicable to Class I and II 
railroads or this alternative compliance method. Wabtec data shows that 
many Class III railroads already provide information to the 
AskRail[supreg] or could provide data to AskRail[supreg] with only very 
minor modifications to their systems, and PHMSA expects these railroads 
will likely choose to comply with the requirements on this final rule 
in the same ways as Class I and II railroads. Otherwise, Class III 
railroads must follow all key provisions of the alternative compliance 
method, which are listed below:
    1. Create a written plan that identifies the procedures the Class 
III railroad will follow to provide emergency notification and transmit 
accurate train consist information in the event of an incident or 
accident involving hazardous materials that requires a response from 
local emergency response agencies. The procedure must assign at least 
one person not onboard the locomotive with the responsibility to 
provide accurate train consist information to local emergency response 
agencies and/or primary PSAPs in addition to assigning this 
responsibility to the train crew onboard the locomotive, unless there 
are no employees of the Class III railroad capable of fulfilling this 
function.
    2. Provide notification to all local emergency response agencies 
and primary PSAPs along their route about the contents of the written 
plan (and any material changes thereto after initial notification).
    3. Enact the written plan when an incident or accident occurs.
    4. Retain a copy of the written plan and provide a copy to 
authorized representatives of the Department upon request.
    5. Conduct a test at least annually that demonstrates that the plan 
is effective for providing emergency notification and accurate train 
consist information to local emergency response agencies.
    This alternative compliance requirement will provide an improved 
level of safety from the status quo by requiring Class III railroads to 
plan for emergency situations and inform local emergency response 
agencies and primary PSAPs about how they will provide notification of 
the emergency and train consist information to the responding agencies. 
Class III railroads have the flexibility to determine how they will 
provide train consist information. Example methods that

[[Page 52970]]

PHMSA anticipates Class III railroads may use include, but are not 
limited to, telephone call; radio call on a pre-arranged emergency 
communication frequency; email transmission to a pre-arranged email 
address; and physical handover of train consist documents. PHMSA 
emphasizes the importance of training, especially function-specific 
training that complies with Part 172 subpart H, for any employee 
assigned the responsibility to provide train consist information to 
emergency response agencies, whether an engineer, conductor, office 
staff, or other.
    We also require that Class III railroads assign the responsibility 
for providing train consist information to at least one person who is 
not on the locomotive in order to address the possibility that the 
train crew is incapacitated or unavailable after the incident occurs. 
There may be scenarios, in particular for very small Class III 
railroads with fewer than five employees, where there is no employee 
capable of providing train consist information to emergency response 
organizations except for those employees operating the locomotive. In 
this situation, it is acceptable for the plan to only assign the 
responsibility to provide train consist information to emergency 
response organizations to those employees on the locomotive. PHMSA 
understands that Class III railroads operating locomotives without 
employing any office staff capable of transmitting train consist 
information during train operation represent a very small fraction of 
trains that carry hazardous materials daily in the United States.
    Based on the information received from commenters and the creation 
of the Class III alternative compliance method, PHMSA has adjusted the 
cost estimates in the final Regulatory Impact Analysis (RIA) supporting 
this rulemaking in the following ways:
     Updated the number of railroads to six Class I railroads, 
14 Class II railroads, and 638 Class III railroads.
     Removed the cost of assigning an emergency point of 
contact from the cost estimation because Class III railroads are 
allowed to designate personnel in the locomotive as an emergency 
response point of contact if there are no other employees capable of 
performing this function.
     For Class III railroads that are not currently working 
with a vendor and using train management systems (TMS), removed the 
cost of producing and sharing electronic real-time train consist 
information and added the cost of the alternative method of compliance.
    In conclusion, PHMSA will adopt the scope of the rule as proposed--
all railroads that transport hazardous materials in commerce in the 
United States must comply with the requirements adopted here. However, 
in consideration of the challenges facing Class II and III railroads, 
PHMSA will allow a longer compliance period for these railroads, and 
PHMSA will allow an alternative compliance method for Class III 
railroads.

C. Emergency Notification of Rail Accidents and Incidents Involving 
Hazardous Materials

    In the NPRM, PHMSA proposed a requirement for railroads to promptly 
notify and provide real-time train consist information electronically 
to every state-authorized local first responder organization within at 
least a 10-mile radius of an accident or incident involving the 
transportation of hazardous materials by rail. PHMSA received numerous 
comments on this proposed requirement. The Ohio Department of Public 
Safety (Ohio DPS), NTSB, and the Attorneys General support the 
emergency notification requirement. These organizations stated that 
providing real-time train consist information directly to local first 
responder organizations in the immediate aftermath of an emergency 
situation involving rail transportation of hazardous materials is the 
best way to ensure critical information regarding the contents and 
position of railcars makes it to the responders who need it most.
    NTSB and the Attorneys General additionally requested that PHMSA 
define ``promptly'' with a specific time period within which the 
notification must be made. NTSB suggested PHMSA expand the proposed 
notification requirement to include all accidents involving trains 
transporting hazardous materials, even if no hazardous materials 
release was suspected.
    Other commenters, including the Maine Department of Environmental 
Protection & Maine Emergency Management Agency (Maine DEP & EMA), 
Association of Public Safety Communications Officials (APCO), IAFC, the 
National Emergency Number Association/National Association of State 911 
Administrators (NENA/NASNA), the Pinsky Law Group, and American 
Federation of Labor and Congress of Industrial Organizations 
Transportation Trades Department (AFL-CIO TTD), generally supported the 
emergency notification requirement, but requested substantive 
modifications or clarification to improve the effectiveness of the 
notification.
    Maine DEP & EMA and AFL-CIO TTD requested that PHMSA expand the 
minimum notification radius beyond 10 miles to account for rural areas 
where there are no first response organizations within 10 miles of 
railroad tracks, and to ensure the notification is also received 
directly by organizations with mutual-aid agreements with the first 
response organization covering the incident location. Maine DEP & EMA, 
AFL-CIO TTD, and APCO suggested providing the emergency notification to 
the primary PSAP (e.g., 9-1-1 call center) that covers the incident 
location, in addition to direct notification of first response 
organizations, in order to provide redundancy and improve the chances 
that the notification and train consist are received by the responding 
agency in a timely manner. IAFC and the Pinsky Law Group requested that 
the emergency notification be made only to the primary PSAP to avoid 
confusion, and to align with existing procedures for centralized 
command and control of response resources during emergencies. 
Specifically, IAFC and the Pinsky Law Group noted that especially in 
metropolitan areas, a mass notification provided directly to all 
response organizations within 10 miles could create confusion among the 
recipients of the notification and prevent the orderly dispatch of the 
proper response assets to the incident site.
    NENA/NASNA and APCO cautioned PHMSA that while primary PSAPs are 
designed to accept telephone calls regarding emergency situations, 
their capacity to accept email or app-based notifications of 
emergencies, as well as to transmit information to responders, is 
limited and not consistently similar across their network. In 
particular, transmission of information is limited by training and 
technology, and could require substantial investment by primary PSAPs 
to enable the transmission of electronic train consist information in 
graphical format to responders in the field. They stated that while 
primary PSAPs must be notified of emergencies involving the rail 
transportation of hazardous materials, they should not be relied upon 
as the sole way to provide train consist information to responding 
agencies.
    Several organizations that represent commuter and passenger 
railroads--New York State Metropolitan Transportation Authority, 
Commuter Rail Coalition, and the American Public Transportation 
Association--requested that PHMSA include them in the category of 
persons who must be notified if there is a release or suspected release 
of a hazardous material from a freight train operating on their tracks. 
Amtrak additionally requested that PHMSA include them in the category 
of

[[Page 52971]]

persons who must be notified if there is a release or suspected release 
of a hazardous material from a freight train operating on their tracks 
or within a 10-mile radius of their tracks.
    Washington State Department of Ecology and Washington Utilities and 
Transportation Commission (Ecology and UTC) and the Attorneys General 
requested that PHMSA adopt a requirement for railroads to conduct 
periodic tests of their emergency notification system to ensure the 
system will function in an actual emergency.
    AAR opposed the inclusion of the emergency notification requirement 
as proposed. AAR stated that the 10-mile radius is arbitrary, 
inconsistent with current emergency response procedures, and not 
mandated by the FAST Act. AAR stated that the 10-mile radius is 
inconsistent with existing DOT Special Permits for train consists 
maintained on electronic devices, which require railroads to notify the 
emergency response agency having jurisdiction, rather than every first 
response organization in an area. Finally, AAR made an argument similar 
to IAFC and the Pinsky Law Group that the mass notification of all 
first responders in an area was likely to create confusion and prevent 
the incident commander from exercising control over the incident scene.
PHMSA's Response
    PHMSA appreciates the comments received on this issue. Based on the 
comments received, PHMSA has determined the original proposal that 
required providing broad notification directly to all local first 
responders within a 10-mile radius, while likely to be effective in 
ensuring that the train consist information is received firsthand by 
the responding entity, could also create negative consequences during 
the initial stages of emergency response. In particular, the 
requirement to notify all local response organizations within a 10-mile 
radius could disrupt the incident command structure by causing unneeded 
self-deployments by entities receiving train consist information to the 
incident area and create confusion among jurisdictions not directly 
impacted by the event. However, PHMSA concurs with commenters who point 
out the value in a proactive emergency notification requirement, which 
provides another avenue to share train consist information with the 
incident commander and aid responders in preparing for arrival at the 
scene.
    Therefore, in this final rule, PHMSA adopts an emergency 
notification requirement but modifies the required recipients to only 
the:
     Primary PSAP (e.g., 9-1-1 call center) responsible for the 
area where the incident occurred; and
     Track owner (if the track owner is different than the 
railroad operating the train).
    The primary PSAP is best positioned to receive a telephonic 
notification of an accident/incident; receive an electronic copy of the 
train consist information; and then efficiently provide the electronic 
train consist information to the appropriate entities within incident 
command structure according to operating policy.
    PHMSA recognizes that training, technology, and resource 
availability constrain primary PSAPs, particularly in rural areas, and 
some may lack the ability to electronically transmit train consist 
information from the railroad directly to responders' equipment. 
However, PHMSA expects that even in these circumstances, the primary 
PSAP is best positioned to identify the responding entity to the 
railroad and serve as a conduit for passing contact information, 
verbally if necessary, to connect the railroad and the responding 
agency. In addition, PHMSA provides funds to all states through the 
Hazardous Materials Emergency Preparedness (HMEP) grant program that 
can be used to ensure PSAPs can make changes to train personnel and 
prepare for implementation of this rule. In this final rule, PHMSA is 
also clarifying our expectation that the railroad coordinate with the 
primary PSAP to provide the electronic train consist information in a 
format that is readily accessible to the PSAP based on the information 
technology resources they have available.
    PHMSA, in this final rule, is adopting a series of adjustments to 
the proposals in the NPRM--including longer compliance timelines for 
Class II and III railroads; annual testing requirements for railroad 
emergency notification systems (Sec.  174.28(b)(2)); and requirements 
for Class III railroads to provide to local emergency response 
personnel and primary PSAPs (and annually test) written emergency 
notification plans (Sec.  174.28(c))--to facilitate collaboration 
between railroads, emergency response organizations, and primary PSAPs 
in navigating any obstacles to effective implementation of the final 
rule's requirements. PHMSA also provides millions of dollars of grant 
funding annually to states through the HMEP program \44\ that can be 
used to prepare primary PSAPs to receive and disseminate this 
information.
---------------------------------------------------------------------------

    \44\ https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant.
---------------------------------------------------------------------------

    Lastly, PHMSA expects that railroad trade organizations will 
(consistent with their historical practices and commitments to public 
safety and environmental protection) serve as resources to assist their 
members and other stakeholders in complying with the requirements 
introduced by the final rule.
    PHMSA emphasizes that the emergency notification to the primary 
PSAP adopted in this final rule is the minimum requirement. PHMSA 
expects that during emergencies railroads will work closely with the 
primary PSAP to identify the responding entity and incident commander, 
and provide the train consist information to the incident commander as 
quickly as possible given the circumstances of the accident or 
incident.
    Regarding NTSB and the Attorneys' General request that PHMSA define 
``promptly'' with a specific time period, PHMSA concurs that some 
additional specificity related to this requirement would be helpful 
because use of the term ``prompt'' may not create the same sense of 
urgency for all parties subject to the requirement. However, PHMSA's 
position is not to adopt a requirement for a specific time period, 
which may be too prescriptive for all circumstances and not materially 
impact safety while diverting attention to whether the specific time 
requirement is satisfied rather than whether train consist information 
is transferred to the appropriate persons. In this context, our intent 
in the NPRM was that ``promptly'' meant that railroads must issue the 
notification as soon as railroad personnel became aware of an accident, 
or incident involving the release or suspected release of hazardous 
materials.\45\
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    \45\ See, e.g., 88 FR at 41542 and 41550 (emphasizing the 
importance of immediate availability of train consist information 
for the railroad emergency points of contact); 41544-46 (emphasizing 
the importance of immediate availability of consist information in 
the NTSB's analysis of the Anding, Mississippi, accident); and 
41546-47 (emphasizing the importance of the availability of avoiding 
delay in getting train consist information to emergency response 
personnel in the ``critical moments immediately following an 
accident or incident.'').
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    Railroads should not delay the emergency primary PSAP notification 
to contact other entities first (e.g., private hazardous materials 
response contractors). Notification and provision of train consist 
information to other entities, like private response contractors, may 
occur simultaneously with the primary PSAP emergency notification; 
however, the railroad must

[[Page 52972]]

prioritize notification and transmission of train consist information 
to the primary PSAP to protect the lives of local first responders, 
emergency response officials, law enforcement personnel, and other 
persons near the incident site.
    Therefore, in order to communicate the NPRM's intent more clearly 
for the emergency notification requirement in Sec.  174.28(b), in this 
final rule, PHMSA is revising the regulatory text by replacing 
``promptly'' with ``immediately.'' PHMSA finds this clarifying revision 
would better align with current HMR requirements using the word 
``immediately'' in similar contexts (e.g., Sec.  172.600 ``Emergency 
response information conforming to this subpart is immediately 
available for use . . .''). PHMSA believes aligning Sec.  174.28(b) 
with this existing language will better communicate the urgency of the 
emergency notification requirement.
    Regarding the NTSB's comments suggesting that PHMSA require 
notification for accidents involving trains carrying hazardous 
materials even when a hazardous materials release does not occur or is 
not suspected, PHMSA's original intent for the proposed requirement 
aligns with this suggestion. Yet, because the proposed requirement was 
not clear to entities such as the NTSB, PHMSA believes further 
clarification is warranted. The proposed language required emergency 
notification in two circumstances for a train carrying hazardous 
materials:
     Accident (e.g., a collision, derailment or fire); or
     Incident involving the release or suspected release of a 
hazardous material from a rail car (e.g., release of hazardous material 
through an improperly secured tank car manway or malfunctioning valve).
    In this final rule, PHMSA adopts this requirement with an editorial 
revision to clarify that railroads must send the emergency notification 
and train consist information for accidents and incidents that would 
each require a response from local emergency response agencies. A 
railroad must provide the emergency notification for any accident 
involving a train carrying hazardous materials, even if there is no 
release or suspected release of hazardous materials, if the 
circumstances of the accident require response from local emergency 
response agencies. This will ensure that emergency response agencies 
are aware of the hazardous materials on a train involved in an accident 
in their jurisdiction, even if those hazardous materials do not 
initially present an immediate danger.
    For example, the five tank cars containing vinyl chloride involved 
in the East Palestine, Ohio, derailment and fire did not release their 
contents during the accident, yet their presence in the accident area 
eventually resulted in a controlled vent and burn procedure several 
days later. In future rail accidents and incidents, it is likely that 
similar situations will occur--specifically that hazardous materials 
will not be released immediately but their presence will necessitate 
evacuations or other specific emergency response activities to mitigate 
the hazards that they pose even while still contained in their 
packaging. Notifying the emergency response command of the presence of 
hazardous materials in a rail accident, even if those materials are not 
immediately released, or suspected to have been released, is critical 
to ensuring that proper response and mitigation resources are activated 
for the event.
    Regarding the comments submitted by New York State Metropolitan 
Transportation Authority, Commuter Rail Coalition, the American Public 
Transportation Association, and Amtrak, PHMSA concurs that there is 
value in requiring a freight railroad to provide immediate notification 
of an accident or incident to the track owner when a freight railroad 
uses another railroad's tracks. It is PHMSA's understanding that many 
local first responders are trained to contact the track owner when a 
rail accident or incident is reported, so ensuring the track owner is 
informed of the event and also has train consist information at hand 
will increase the likelihood that the information is successfully 
provided to the appropriate responding agencies. Additionally, some 
commuter and passenger railroads, like Amtrak, employ authorized local 
first responders, emergency response officials, and law enforcement 
personnel, who would likely be among the first responders to any 
hazardous materials accident or incident on their tracks.
    Regarding the comments submitted by Ecology and UTC, and the 
Attorneys General, suggesting the creation of a requirement to test the 
emergency notification system, PHMSA concurs. It is a logical extension 
of the proposed emergency notification requirement to have railroads 
conduct tests of their system to ensure it functions effectively in an 
emergency. PHMSA anticipates these system tests will create only a 
minor burden for railroads, and since the number of tests and locations 
for the tests scale with a railroad's network (i.e., a smaller railroad 
with a small track network will require fewer tests to validate system 
reliability across that network), the requirement will not create an 
undue burden for regional and short line railroads. Class III railroads 
implementing the alternative compliance requirements adopted in this 
final rule must also conduct an annual test of their emergency 
notification and communication plan. PHMSA's analysis shows that this 
requirement will create an average annual cost burden of $19,843 for 
all Class I railroads combined, $46,229 for all Class II railroads 
combined, and $149,393 for Class III railroads combined (2022 dollars).
    In consideration of comments received and our analysis, PHMSA 
adopts a requirement for railroads to test their emergency notification 
system or emergency communication plan at least annually; to create and 
retain records of the results of the test; and to review any test 
failures to determine corrective action to prevent reoccurrence. PHMSA 
is not adopting prescriptive, one-size-fits-all requirements regarding 
the number and location of these tests. Each railroad is best 
positioned to determine the number of tests and their locations 
required in order to demonstrate that their emergency notification 
system is reliable and serves the intended purpose to notify primary 
PSAPs and track owners of a hazardous materials-related incident.\46\ 
PHMSA is also requiring that in the event the recipient of the test 
notification does not receive and acknowledge receipt of the 
notification, the railroad involved must conduct a review to determine 
the cause of the test failure, and identify corrective action to avoid 
a similar failure in a real accident or incident scenario.
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    \46\ PHMSA notes that it expects that railroad operators will 
perform such testing in good faith and in a manner that will be 
effective in light of the unique public safety and environmental 
risks they are best positioned to identify along their routes. By 
way of example, annual testing verifying communications with the 
same primary PSAP(s) year-after-year while entirely neglecting 
others along their routes would likely not be an effective approach. 
Similarly, it may be prudent for railroads to prioritize 
verification of effective communications and response as coordinated 
by a sample of resource-constrained primary PSAPs in rural areas 
along their routes.
---------------------------------------------------------------------------

    In conclusion, PHMSA is modifying the emergency notification 
requirement to require the railroad operating the train involved in an 
accident that requires response from local emergency response agencies, 
or an incident involving the release or suspected release of a 
hazardous material that requires response from local emergency response 
agencies, must provide immediate telephonic notification and

[[Page 52973]]

an electronic copy of the train consist information to the primary PSAP 
responsible for the area where the incident occurred and the track 
owner (if the track owner is different than the railroad operating the 
train). PHMSA is also adopting a requirement for railroads to conduct 
tests of their emergency notification system or emergency communication 
plan, and create and retain records of the results of the tests and any 
necessary corrective action.

D. Defining the Recipients of Train Consist Information

    In the NPRM, PHMSA proposed to require that railroads provide 
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. Separately, 
PHMSA proposed to require that railroads provide prompt notification of 
an incident to state-authorized local first responders within a 10-mile 
radius of an accident involving a train carrying hazardous materials or 
an incident involving the release or suspected release of hazardous 
materials.
    Several commenters, including the Ohio Department of Public Safety 
(Ohio DPS), Attorneys General, Maine DEP & EMA, and Illinois Commerce 
Commission (CC) requested greater specificity regarding the intended 
recipient of the real-time train consist information. The Attorneys 
General and Maine DEP & EMA specifically noted that as written, the 
regulatory language does not specify who determines which emergency 
response entities are authorized to receive the train consist 
information, and further stated their position that all relevant first 
responders must have access to and receive electronic train consist 
information, without overburdening local PSAPs.
    The National Association of SARA Title III Program Officials 
(NASTTPO) and a private individual requested that PHMSA expand the 
intended audience of real-time train consist information to any person 
or organization involved in emergency response to a rail incident 
involving hazardous materials, including volunteers and those without 
``.gov'' email addresses. NASTTPO requested that PHMSA either remove 
the word ``authorized'' from Sec.  174.28(a) or clearly describe an 
appropriate authorization process for persons seeking access to real-
time train consist information. NASTTPO suggested several revisions to 
Sec.  174.28, with the intention of prohibiting railroads from 
excluding persons or organizations from access to real-time train 
consist information based on factors like a lack of a ``.gov'' email 
address, or membership in non-traditional response organizations beyond 
the typical fire, law enforcement, and emergency medical services 
agencies.
    AAR requested greater clarity on the intended audience for real-
time train consist information, and that PHMSA narrow the scope to only 
those personnel directly involved with accident/incident response and 
mitigation. Specifically, AAR criticized the NPRM's proposals for 
``seem[ing] to disregard the accepted, streamlined approach to 
emergency response as outlined in the Federal Emergency Management 
Agency's (FEMA) National Incident Management System (NIMS)'' in favor 
of a ``shotgun approach that sprays information out to people that do 
not need the information and requires the provision of information . . 
. at times unnecessary for emergency response.'' \47\ AAR elaborated on 
this criticism by noting that in the NPRM, PHMSA used the phrase 
``emergency response personnel'' to describe the intended audience of 
real-time train consist information in the rule preamble and defined 
that term as ``any personnel from any federal [agency] (e.g., PHMSA, 
FRA, NTSB, U.S. Environmental Protection Agency (EPA), or Federal 
Emergency Management Agency personnel), or organizations that state or 
local governments authorize to perform emergency response activities.'' 
AAR stated that this definition conflicts with the definition of 
``emergency response personnel'' in 15 U.S.C. 2223e,\48\ which defines 
the term as ``personnel responsible for mitigation activities in a 
medical emergency, fire emergency, hazardous material emergency, or 
natural disaster.'' AAR requested that PHMSA adopt this 15 U.S.C. 2223e 
definition as the intended recipient of the real-time train consist 
information, and specifically remove reference to federal agencies 
involved in post-incident investigations, inspections, or management.
---------------------------------------------------------------------------

    \47\ AAR, Doc. No. PHMSA-2016-0015-0043, ``Comments Submitted by 
AAR'' at 3.
    \48\ https://www.govinfo.gov/content/pkg/USCODE-2021-title15/pdf/USCODE-2021-title15-chap49-sec2223e.pdf.
---------------------------------------------------------------------------

PHMSA's Response
    First, as discussed above in Section IV.C, PHMSA is, in response to 
comments received on the NPRM, adjusting its proposed requirement to 
provide emergency notification to every state-authorized local first 
responder within a 10-mile radius of the incident/accident with a 
requirement to notify and provide electronic train consist information 
to the primary PSAP responsible for the area where the accident or 
incident has occurred, and the track owner (if the railroad operating 
the train is not the track owner) in a form they are capable of readily 
accessing. This revision provides further clarity on the intended 
recipient of the emergency notification, as requested by Ohio DPS and 
Illinois CC.
    This adjusted approach better channels notifications of an 
incident/accident and safety-critical train consist information through 
primary PSAPs that are critical elements within NIMS's emergency 
response infrastructure precisely because they are well-positioned to 
identify resources that can effectively respond to an accident/incident 
or which are most likely to be adversely affected by an accident/
incident.
    PHMSA further submits that other measures adopted in this final 
rule--pertaining to compliance timelines, development parameters, 
annual testing requirements for emergency notification systems, and 
written emergency notification plans (each discussed in section IV.C 
above)--will also provide opportunities for continual fine-tuning 
practical implementation (including integration within NIMS 
architecture) of the notification requirements adopted in this final 
rule.
    PHMSA appreciates the comments from the Attorneys General, AAR, and 
NASTPPO, Maine EMA & DEP, and a private individual seeking greater 
clarity on the intended audience for real-time train consist 
information. PHMSA does not concur with AAR's request to revise the 
requirements of Sec.  174.28(a) to exclude federal agencies involved in 
the investigation of an accident, incident, or public health or safety 
emergency involving the rail transportation of hazardous materials from 
the intended audience of real-time train consist information. PHMSA is 
not aware of, and AAR has provided no evidence of, any real-world 
situations where provision of train consist information to federal 
agencies or other emergency response organizations has in fact hindered 
emergency response activities.
    PHMSA stresses that this requirement does not require that 
railroads provide

[[Page 52974]]

any federal employee from any agency with train consist information. 
Certain federal agencies are involved in the response to, and 
investigation of, rail accidents and incidents involving the 
transportation of hazardous materials. Accurate real-time train consist 
information is critical to employees performing these functions. 
Therefore, railroads must provide real-time train consist information 
to those federal personnel who are performing these emergency response 
and investigatory functions. This requirement does not impose burdens 
on railroads that work to the detriment of emergency response. Federal 
agencies are not seeking preferential treatment, or special 
consideration for access to real time train consist information. 
Federal agencies simply seek access to real-time train consist 
information commensurate with their response and investigatory 
mandates. However, PHMSA does acknowledge that since the term 
``emergency response personnel'' is already defined in a federal 
statute, it would be appropriate to consistently use language that 
aligns more closely with the FAST Act mandate, specifically 
``authorized Federal, State, and local first responders, emergency 
response officials, and law enforcement personnel'' when discussing the 
intended audience of the real-time train consist information in this 
rulemaking.
    Regarding the Attorneys General, Maine DEP & EMA, a private 
individual, and NASTPPO's comments, it is PHMSA's opinion that the word 
``authorized'' in the phrase ``authorized Federal, State, and local 
first responders, emergency response officials, and law enforcement 
personnel'' means those persons authorized by an appropriate authority 
(e.g., a town, city, county, state, or federal agency) to take part in 
the response to, or investigation of, an accident or incident involving 
the transportation of hazardous materials by rail. PHMSA is unaware of 
any single entity that performs this authorization process for all 
response organizations nationwide.
    As suggested by Maine DEP & EMA, state-level Emergency Management 
Agencies (EMAs) have a substantial role to play in determining which 
organizations within a state are authorized to respond to and 
investigate accidents and incidents involving the transportation of 
hazardous materials by rail. However, PHMSA does not have sufficient 
information to require that state-level EMAs, and only state-level 
EMAs, perform this function. PHMSA submits that as a federal agency 
with the responsibility and authority to enforce regulations related to 
the transportation of hazardous materials, PHMSA could serve as an 
informal arbiter of disputes related to access to electronic train 
consist information.
    Regarding NASTPPO and a private individual's comments that PHMSA 
should recognize the value of emergency response carried out by 
volunteers and members of organizations not traditionally responsible 
for responding to a rail emergency involving hazardous materials (e.g., 
health care providers), PHMSA acknowledges that in many communities, 
especially in rural areas, emergency response responsibilities fall on 
volunteers and non-traditional responders. PHMSA appreciates NASTTPO's 
suggestions for revisions to the language in Sec.  174.28. PHMSA 
concurs that the variety of jurisdictions, legal authorities, and 
scenarios regarding emergency response would make it impossible to 
define a separate authorization process in this rule or fully discuss 
every possible eventuality in this document or any associated guidance. 
However, revising the text of the proposed rule as requested \49\ is 
too substantial a departure from the text of the FAST Act and the NPRM 
proposal.
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    \49\ NASTTPO's suggested revision to Sec.  174.28: In 
determining which individuals should have access to train consist 
information via a software application, railroads may not limit 
access to only individuals with government email addresses. The 
railroads must allow access to individuals that can document 
membership in a volunteer organization that may be engaged in 
emergency response activities during a hazardous materials incident. 
Such documentation may include a letter from the management of the 
volunteer organization, local emergency manager, fire or police 
chief, or a local emergency preparedness organization, such as the 
local emergency planning committee, state homeland security, 
emergency management or transportation agency, or state emergency 
response commission. In each community the first persons responding 
to an incident may be variable and may well be beyond formal fire, 
law enforcement, and emergency medical services agencies. These 
individuals and each community should self-identify to the railroad 
when obtaining access to software applications providing train 
consist information consistent with the provisions of part (d).
---------------------------------------------------------------------------

    Although PHMSA is not adopting the regulatory language suggested by 
NASTTPO, PHMSA cautions railroads that refusing to allow access to 
electronic train consist information simply because the requestor lacks 
a ``.gov'' email address is too simplistic. Railroads must consider 
additional information and context, including a person's membership in 
volunteer response organizations and documentation verifying their 
authorization to conduct emergency response on behalf of communities 
they support when determining eligibility for access to electronic 
real-time train consist information.

E. Maintenance of Both Paper and Electronic Train Consists

    In the NPRM, PHMSA proposed to require that railroads maintain two 
forms of up-to-date copies of the train consist information. One copy 
was proposed to be a physical, printed (i.e., paper) copy in the 
possession of the locomotive's crew--note that the HMR currently 
requires this--while the other copy was the real-time train consist 
maintained in electronic form off the train.
    Ecology and UTC, AFL-CIO TTD, Attorneys General, IAFC, SMART-TD, 
and NTSB supported the requirement to maintain both an up-to-date 
printed paper copy of the train consist in the locomotive or with the 
train crew and an electronic copy maintained off the train. These 
organizations cited benefits to emergency response by maintaining 
redundant copies of the train consist information so that responders 
would be more likely to be able to access the information during 
emergency scenarios when cellular data connectivity is lost or is not 
available, especially in rural and remote areas.
    AAR opposed this proposed requirement to maintain two copies of the 
train consist information, including a printed paper copy document in 
the locomotive. AAR stated that proposed requirement exceeded the FAST 
Act mandate, was unnecessarily duplicative, and provided no safety 
benefit. AAR stated that real-time electronic train consist information 
maintained off the train is more accurate than relying on train crews 
to manually update stacks of paper train consists, and that if the 
copies of the consist did not match, it would create confusion during 
emergency response.
    Finally, AAR stated that continuing to require printed paper train 
consist documents in locomotives would prevent railroads from realizing 
economic savings and reducing their carbon footprint caused by printing 
``millions of sheets of paper'' and providing the electricity and ink 
required to maintain printers across their network. AAR requested that 
PHMSA eliminate the requirement for railroads to maintain duplicate 
copies of the train consist and allow railroads the ability to choose 
the form of the copy of train consist information in the locomotive, 
including the option of a paper copy, or maintaining a local electronic 
copy.

[[Page 52975]]

PHMSA's Response
    In this final rule, PHMSA is adopting the proposed requirement for 
the train crew to maintain an up-to-date printed paper copy of the 
train consist information in the locomotive. This preserves the 
requirement that existed in the HMR prior to the adoption of this final 
rule. The printed paper copy of train consist information maintained in 
the locomotive or with the train crew has historically served as a 
critical resource for emergency responders during rail emergencies, and 
emergency responders are familiar with this format of information. At 
this time, the requirements for electronic maintenance and transmission 
of train consist information adopted in this final rule will 
complement--but not replace--the local printed paper copy of train 
consist information in the locomotive. PHMSA intends the crew's local 
printed paper copy to serve as a redundant backup to the electronic 
train consist requirements adopted in this final rule. The printed 
paper copy provides information to the crew on the location and hazards 
of the materials they are moving to protect themselves and others.
    As noted above in Section IV.C, PHMSA has issued several special 
permits to railroads that allow these railroads to provide train crews 
with an electronic device that is capable of displaying and 
transmitting train consist information. PHMSA believes there is benefit 
in exercising these ``pilot projects'' to allow more time to evaluate 
their effectiveness in ordinary use and during rail emergencies before 
adopting this option into the HMR. In the meantime, PHMSA will allow 
holders of these special permits to continue operating in accordance 
with the conditions of the permits in order to gain this experience.
    PHMSA may revisit this issue in the future, as we gain more 
experience with the existing special permits and other electronic 
hazard communication projects. As such and for the time being, we are 
retaining the baseline requirement that the train crew's copy of train 
consist information must be a printed paper document, and must be 
updated to reflect any changes in the train's composition due to 
pickups, set outs, or other work.

F. Availability of Train Consist Information in Real-Time

    In the NPRM, PHMSA proposed that each railroad must provide 
electronic train consist information in such a way that it is 
immediately available for use by its intended recipients. In the NPRM 
preamble, PHMSA clarified the intent of this requirement by stating 
that the electronic train consist information must be provided and be 
accessible to recipients prior to the occurrence of an accident or 
incident in order to ensure it is immediately available at the onset of 
response efforts. Several commenters requested clarification or 
modification of this requirement.
    AAR stated that PHMSA improperly implemented the FAST Act mandate 
by conflating the requirement to create and maintain train consist 
information in real-time, which they state is required by the FAST Act, 
with a requirement to provide real-time information to authorized 
recipients at all times, which they state is not required by the FAST 
Act. AAR requested that PHMSA revise Sec.  174.28(a) to state that the 
real-time information must only be supplied during an accident, 
incident, or public health or safety emergency involving rail transport 
of hazmat.
    The Attorneys General requested that PHMSA revise the regulatory 
language in Sec.  174.28(a) to replace the word ``provide'' with the 
phrase ``make available.'' The Attorneys General stated that as 
written, paragraph (a) appears to require railroads to send 
notification of train movements and consist information to every 
authorized recipient at all times, which does not appear to be the 
stated intention of the requirement. Ohio DPS supported the requirement 
that train consist information be accessible at any time by authorized 
emergency response personnel, in order to inform responders of the 
risks at the scene as soon as possible. AFL-CIO TTD requested that 
PHMSA require railroads to proactively notify all PSAPs along the route 
of a train and provide the train consist information to these PSAPs, so 
that the train consist information would be immediately available in 
event of an emergency.
PHMSA's Response
    It is not the intention of Sec.  174.28(a) to require that 
railroads provide proactive notification about a train's movement and 
consist information to every emergency response organization or primary 
PSAP along the route during normal operations. This volume of 
information would be overwhelming; likely could not be managed in a 
safe and secure way by all recipients; and would ultimately defeat the 
purpose of the requirement by flooding authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel with huge volumes of non-critical information 
that could be confused with the critical information when an emergency 
event actually occurred. The only ``notification'' requirement in this 
final rule is found in Sec.  174.28(b), which only applies when there 
is an actual accident involving a train carrying hazardous materials 
requiring response from local emergency response organizations or 
incident involving the release or suspected release of a hazardous 
material requiring response from local emergency response 
organizations.
    The intent of the requirement in Sec.  174.28(a) is that railroads 
\50\ must create and maintain accurate train consist information for 
all trains carrying hazardous materials, and must maintain that 
information in an accessible or transmissible electronic format in such 
a way that it can be used by an authorized person at any point in time 
(i.e., in real time). This ensures that the train consist information 
is available prior to an accident or incident and can therefore be 
accessed immediately when needed. PHMSA stresses the distinction 
between maintaining train consist information in a secure manner for 
availability (i.e., at the ready) versus sending a notification of 
train movements. The former strikes the balance between security and 
accessibility of information while the latter is too insecure and 
unfocused to be useful.
---------------------------------------------------------------------------

    \50\ As noted in Section IV.B and V.C, PHMSA is adopting an 
alternative compliance method for Class III railroads that does not 
require electronic transmission of train consist information. Class 
III railroads may choose to comply with the requirements in Sec.  
174.28(a) and (b) (requiring electronic transmission) or the 
alternative method in Sec.  174.28(c).
---------------------------------------------------------------------------

    In this final rule, PHMSA adopts the language as proposed, which 
aligns with the FAST Act mandate. Specifically, this requires that 
railroads transporting hazardous materials must ``provide'' electronic 
train consist information, to 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. 
PHMSA acknowledges the Attorneys General's concerns regarding potential 
confusion over the meaning and usage of ``provide,'' but believes this 
preamble discussion adequately explains the regulatory intent.
    Regarding the method(s) used to fulfill this requirement, railroads 
have the flexibility to choose how to comply with this performance 
standard. Most will likely use an electronic database system, like the 
AskRail[supreg] system developed and used by all Class I

[[Page 52976]]

railroads and some Class II and III railroads, that allows authorized 
individuals to access real-time train consist information with a query 
based on a railcar reporting mark or other train identifier. However, 
it is not PHMSA's intention to mandate use of the AskRail[supreg] 
system in the HMR. Railroads may choose other methods of providing this 
information than standing up an electronic database system, as long as 
they meet the standard in Sec.  174.28(a).

G. Timing of Updates to Train Consist Information

    In the NPRM, PHMSA proposed to require that train consist 
information be updated prior to continued movement of the train 
whenever a change to the train's makeup occurs (e.g., addition or 
removal of railcars from the train) on both the train crew's printed 
paper copy, and on the electronic copy maintained off the train. The 
Attorneys General supported this requirement because requiring updates 
before the train moves ensures that authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel will have access to accurate information at all 
times.
    AAR opposed this requirement. AAR stated that there are areas of 
the rail system that are not covered by any type of communication 
technology, and therefore the train crew would be unable to update the 
central train consist information database using electronic devices or 
radio communications in these locations.\51\ AAR requested that PHMSA 
revise the requirement and have train crews update the copy of train 
consist information maintained on the central electronic database 
``when practicable.''
---------------------------------------------------------------------------

    \51\ SMART-TD, a rail labor organization, also confirmed to 
PHMSA that there are areas of the rail network with no cellular data 
coverage.
---------------------------------------------------------------------------

    AAR also requested revisions to Sec.  174.26(b) to authorize means 
of notification besides electronic or radio communication; replace the 
word ``notify'' with ``synchronize;'' and make conforming edits to 
align with their request to remove the requirement that train consist 
information be maintained in both printed paper copy format in the 
locomotive and electronically off the train. See Section IV.E. 
``Maintenance of Both Paper and Electronic Train Consists'' for more 
information on the latter request.
PHMSA's Response
    It would defeat the purpose of the real-time train consist rule to 
allow the train to move without updating the train consist information 
maintained off the train, which acts as the primary method for 
providing electronic train consist information to responders. In the 
Anding, Mississippi, accident (see Sections III. D. ``How Does Train 
Consist Information Affect Rail Transportation Safety?'' and III. E. 
``How Does Requiring Electronic Train Consist Information Affect Rail 
Transportation Safety?'' for further information on the Anding, 
Mississippi, incident), a change was made to the southbound CN train's 
make-up, and the train began moving without updating dispatch on the 
change to the train consist, which was a typical occurrence at the 
time.\52\ When the accident occurred, the train consist information 
stored in CN's computer systems reflected the train's original makeup 
when it departed the Memphis yard, and did not reflect changes made to 
the train's makeup in the Greenwood, Mississippi, railyard--the setting 
out (removal) of 21 cars and pickup of 9 cars. After the changes made 
at Greenwood, the train did not pass an AEI reader before the collision 
occurred, and there was no way for the crew to communicate the change 
back to the central system.
---------------------------------------------------------------------------

    \52\ NTSB Report at 7.
---------------------------------------------------------------------------

    It took hours to provide an accurate picture of the contents of 
railcars involved in the derailment to the responders after the 
accident because the crew was killed and the printed paper copy 
maintained by the crew was destroyed in the collision and subsequent 
fire; meanwhile, the electronic consist information maintained in CN's 
database was not up to date. The intention of this final rule is to 
prevent this kind of communication breakdown from occurring again.
    Therefore, PHMSA adopts, as proposed, the requirement that the crew 
must update the off-train electronic consist information prior to 
movement of the train (note that Class III railroads complying with the 
alternative method adopted in this final rule are not subject to this 
requirement because they are not required to maintain train consist 
information in electronic form). If, for example, a railroad uses a 
system that involves AEI readers and changes to the train's makeup 
occurs in areas between AEI readers and without cellular data coverage, 
PHMSA expects that train crews will use methods such as voice radio or 
satellite communication to provide updates to a dispatch center where 
staff can make the necessary updates to the master electronic train 
consist to reflect the changes--the set outs and pickups.
    AAR's suggested revision to allow the train crew to utilize means 
besides electronic or radio communication is acceptable. PHMSA 
encourages railroads to maintain flexibility around the means used to 
update the off-train electronic train consist, where PHMSA's concern is 
only that it is updated and accurate before the train moves again. 
However, PHMSA is not adopting the requested revision to replace 
``notify'' with ``synchronize'' as PHMSA believes the proposed language 
is the clearest way to express our intention that both the local copy 
of the train consist information maintained in the locomotive and the 
remote electronic train consist information maintained off the train 
are updated and accurate at all times before movement of the train.

H. Applicability of Requirements to Freight Lines Operating on 
Commuter/Passenger Rail Track

    PHMSA received several comments from organizations representing 
commuter and passenger railroads who own tracks that are used by 
freight railroads transporting hazardous materials. These 
organizations--New York State Metropolitan Transportation Authority, 
Commuter Rail Coalition, and the American Public Transportation 
Association--requested clarification regarding the applicability of the 
real-time train consist rule to their operations. As described, the 
railroads represented by these organizations do not operate freight 
trains, except for work trains engaged in maintenance of way 
activities.
PHMSA's Response
    PHMSA's concurs with the commenters that the proposed language did 
not clearly distinguish applicability of proposed requirements between 
the railroad operating a train carrying hazardous materials and the 
railroad maintaining ownership of the track, and is therefore 
editorially revising the language in new Sec.  174.28 in this final 
rule. The intention of the proposed requirements in the NPRM was to 
apply the real-time electronic train consist requirements to the 
railroad transporting hazardous materials--i.e., the railroad operating 
the train.
    In the scenario where a freight railroad is operating on tracks 
owned by a commuter or passenger railroad, the freight railroad 
operating the hazardous material train is responsible for complying 
with the real-time train consist requirements adopted in this final 
rule. To clarify this point, in this final rule PHMSA is modifying the 
regulatory language in Sec.  174.28(a) and (b) to clearly indicate that 
the

[[Page 52977]]

requirements in this section apply to the railroad operating a train 
carrying hazardous materials.

I. Origin/Destination Information

    In the NPRM, PHMSA proposed to require that railroads include 
origin and destination information with train consist information, in 
conformance with the FAST Act's mandate. In the NPRM, PHMSA explained 
its understanding of the ``origin and destination information'' 
information requirement to mean the origin and destination of the 
hazardous materials on the train subject to shipping paper information 
requirements.
    PHMSA received several comments regarding this requirement. APCO 
and the Attorneys General supported inclusion of origin and destination 
information with train consist information. The Illinois CC requested 
clarification--specifically whether origin and destination can be 
recorded as a city/county; or whether the information on the origin 
also would include actual shipper information. IAFC supported inclusion 
of origin and destination information because it encodes information on 
the direction of travel of the train, which can be difficult to 
determine in the initial stages of a chaotic accident such as a 
derailment. IAFC explained that identifying direction of travel is 
important for determining railcar identity, and therefore the commodity 
contained within, during a response.
    AAR opposed the inclusion of origin and destination information as 
proposed in the NPRM. AAR stated the proposed requirement to include 
the origin and destination of the hazardous materials carried on the 
train would be impossible to comply with, in particular for multi-modal 
shipments. AAR argued that a similar requirement for origin and 
destination information for hazardous materials is not required to be 
provided for any other mode of transportation, and that railroads would 
not be able to obtain origin and destination information from highway 
or vessel carriers performing the prior or subsequent legs of 
transportation. Additionally, AAR stated that origin and destination 
information is proprietary information for each carrier, and that 
revealing such information would compromise sensitive business 
information about their own operations and customers. Finally, AAR 
stated that origin and destination information is irrelevant for 
emergency response purposes and does not assist responders in the 
initial stages of an incident.
PHMSA's Response
    PHMSA acknowledges AAR's assessment that, as proposed, the 
requirement for origin and destination information for the hazardous 
material contained in each railcar would be too burdensome for 
railroads to compile and may be of limited value in emergency response 
scenarios. PHMSA agrees with IAFC's comment that the origin and 
destination information encodes information about train direction, 
which is an important factor in the initial stages of a response.
    Therefore, in this final rule, PHMSA is adopting a requirement that 
the railroad include the origin point of the train (e.g., the railyard 
where the train was assembled), and the next destination (e.g., the 
next railyard with a scheduled stop in the direction of travel). This 
requirement maintains alignment with the FAST Act's mandate to include 
origin and destination information for the train and is responsive to 
AAR's valid concerns about realities of information available in the 
logistics system about hazardous materials on a train, yet still 
addresses IAFC's comment that origin and destination information about 
a train is helpful by assisting responders with identifying the train's 
direction of travel after an accident.
    PHMSA stresses that this origin/destination data requirement is a 
minimum requirement to assist authorized federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel to identify the position of railcars during the initial 
stages of an emergency response. PHMSA expects that railroads and 
emergency response officials will continue to contact and collaborate 
with hazardous materials producers through the emergency response 
telephone number provided on hazardous materials shipping papers (see 
Sec.  172.604) and through dedicated industry response assistance 
programs (e.g., CHLOREP \53\).
---------------------------------------------------------------------------

    \53\ https://www.chlorineinstitute.org/chlorep.
---------------------------------------------------------------------------

J. Emergency Response Point of Contact

    In the NPRM, PHMSA proposed to require that railroads designate an 
emergency response point of contact and provide that person's contact 
information including name, title, phone number and email address. The 
purpose of this requirement is to ensure that authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel have access to a dedicated railroad contact 
who could provide emergency response support including but not limited 
to having knowledge and response and mitigation information, or access 
to personnel with this expertise, related to the hazardous materials 
included in the train consist information.
    PHMSA received several comments regarding this requirement. The 
Attorneys General supported the proposed requirement because it would 
promote the timely sharing of train consist information during an 
emergency. AAR opposed the inclusion of name, title, phone number, and 
email address for the designated emergency response point of contact. 
AAR stated that the details of the name, title, and email address of 
the emergency response point of contact were subject to constant change 
as personnel changes, while a railroad's dedicated emergency response 
phone number, for example, would likely remain constant. Additionally, 
AAR expressed concern that focus on the name and title of the 
designated emergency response point of contact would take away from the 
quality of the information to be provided. AAR suggested that PHMSA 
align the designated emergency response point of contact requirement 
with the existing emergency response telephone number requirement that 
applies to the shipper of a hazardous material found in Sec.  172.604 
of the HMR.
PHMSA's Response
    PHMSA intended the inclusion of the name, title, phone number, and 
email address for the railroad's designated emergency response point of 
contact to increase a local first responder's ability to contact the 
designated contact person. However, PHMSA acknowledges that AAR's 
comments about the unintended consequences of the inclusion of name, 
title, and email address are valid. Therefore, in this final rule PHMSA 
is removing the requirement that the train consist information include 
an emergency response point of contact include a name, title, and email 
address.
    The purpose of the emergency response point of contact is to 
provide a link between the railroad and response personnel for 
emergency response information-sharing and support in an emergency. 
Railroads must provide a dedicated phone number and may satisfy this 
requirement by designating a third-party organization that has 
immediate access to railroad information (e.g., train consist 
information) and is capable of providing supportive response 
information to authorized federal, state, and local first responders, 
emergency response

[[Page 52978]]

officials, and law enforcement personnel during an emergency. If a 
railroad elects to use a third-party, it is ultimately responsible for 
ensuring that necessary contractual/procedural relationships are 
structured in a way to fulfill the emergency response point of contact 
role.

K. Use of the Existing AskRail[supreg] Application To Comply With This 
Rulemaking

    AAR described the AskRail[supreg] application that is operated by 
the AAR subsidiary, Railinc, and stated their belief that the 
AskRail[supreg] application satisfies the major components of real-time 
train consist information requirements mandated in the FAST Act.
    PHMSA concurs that AskRail[supreg], as currently implemented, 
satisfies some of the requirements adopted in this final rule. The 
AskRail[supreg] application is designed to provide train consist 
information in electronic form to registered federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel. However, PHMSA stresses that it is the responsibility of 
each railroad transporting hazardous materials to meet the real-time 
performance standards implemented in Sec. Sec.  174.26 and 174.28 in 
this final rule. For example, it is PHMSA's understanding that as 
currently implemented, AskRail[supreg] is a ``near real-time'' system 
rather than fully real-time because train consist information is not 
uploaded prior to train movement in all cases, due to spacing between 
AEI readers. To be clear, sole reliance on AEI readers in all 
circumstances would not meet the requirements adopted in this final 
rule to ensure that the centralized electronic train consist 
information is always updated prior to movement of the train.
    PHMSA encourages the use of existing systems and services, like 
Askrail[supreg], where possible to meet the requirements of this final 
rule. The use of existing systems and services reduces retraining needs 
for authorized federal, state, and local first responders, emergency 
response officials, and law enforcement personnel, and reduces burden 
on railroads. However, these existing systems and services may need to 
be modified to meet the standards adopted in this final rule.

L. Cost, Benefit, and Delayed Compliance Period

    AAR stated their belief that the adoption of the FAST Act mandates 
for real-time train consists will not be cost-beneficial. They noted 
that the PRIA break-even analysis stated the rulemaking will be cost-
effective if it reduces the consequences of hazardous material 
incidents by approximately 30 percent. AAR expressed their belief that 
this was not possible. AAR also suggested that PHMSA does not have a 
valid justification for exceeding the requirements that are in the FAST 
Act mandate, such as the emergency notification requirement, because 
ultimately it will not be cost-beneficial. Finally, AAR requests at 
least a two-year delayed compliance period to allow Class I railroads 
to make necessary updates to their electronic systems without 
unnecessary disruption of operations.
PHMSA's Response
    PHMSA does not agree with AAR's characterization of the benefits 
and costs of the rulemaking. First, PHMSA notes that this rulemaking 
responds to both a congressional mandate and an NTSB recommendation; 
PHMSA's evaluation of the costs and benefits of the rulemaking were 
necessarily informed by that direction.
    Second, AAR provides no information to support their claim that the 
requirements proposed in the NPRM could not reduce the consequences of 
hazardous materials incidents by 30 percent, the breakeven point 
identified in the PRIA.\54\ Additionally, due to the changes adopted in 
this final rule (see Section I.C. for additional details), the overall 
cost burden of the rulemaking has been decreased, and PHMSA's analysis 
shows that the breakeven point is now about 12 percent. Serious rail 
incidents involving the release of hazardous materials are high-
consequence, low-probability events whose harms do not lend themselves 
to easy quantification as they can entail more than mere bodily injury 
or property damage (e.g., environmental and mental health-related 
harms).
---------------------------------------------------------------------------

    \54\ PHMSA further notes that the premise of AAR's argument 
here--that the benefits from mitigating accident/incident 
consequence by making train consist information available to 
emergency response personnel cannot justify implementing costs--is 
hard to square with its and its members' decisions to make 
(significant) investments in developing the AskRail[supreg] 
application.
---------------------------------------------------------------------------

    These harms vary as a function of which of the thousands of 
hazardous materials regulated by PHMSA, each of which have their own 
environmental and public safety risk profiles, are involved. Many of 
those harms, moreover, may not arise instantaneously at the moment of 
initiation of an incident/accident initiation. Some may emerge well 
after the incident/accident because of the unique risk profile of the 
hazardous material or because the decisions made by emergency response 
personnel. There may be greater magnitude of harms to public safety and 
the environment (e.g., by exposing more emergency response personnel) 
experienced as a result of the accident/incident.
    PHMSA understands, therefore, that immediate, reliable provision of 
train consist information to authorized federal, state, and local first 
responders, emergency response officials, and law enforcement personnel 
for use in emergency situations will support site/hazard assessment and 
onset of response efforts that can reduce likelihood of hazmat-related 
death and injury, environmental damage, and property damage--including 
those consequences that may develop in the moments following accident/
incident initiation.
    For example, in an accident scenario involving derailed tank cars 
carrying flammable liquids or gases that are exposed to a fire, 
responders without access to train consist information may approach too 
close to the tank cars during response efforts if they are unable to 
visually identify the contents of the tank cars from markings or 
placards. If tank cars were to catastrophically fail or begin venting 
contents through pressure relief devices while responders are within 
the danger area, death or injury could occur from debris and exposure 
to the material release.
    Similarly, if the hazardous materials on a train required certain 
resources and emergency response officials lacked resources, training, 
or personnel to ensure effective response, the train consist 
information content and notification requirements will help ensure that 
emergency response personnel can quickly identify those gaps and seek 
additional resources as appropriate. The incidents in Anding, 
Mississippi, and Paulsboro, New Jersey, serve as examples of the hours 
that can be lost during the critical early stages of a response when 
updated train consist information is not available to authorized 
federal, state, and local first responders, emergency response 
officials, and law enforcement personnel. Timely access to accurate 
train consist information can help to reduce such negative outcomes.
    Finally, PHMSA does not concur with AAR's request for a two-year 
delayed compliance period for Class I railroads. The NPRM proposed a 
one-year delayed compliance period, and AAR has not presented any 
specific information as to why this is not achievable for Class I 
railroads. Class I railroads have the

[[Page 52979]]

resources, wherewithal, and expertise to be able to upgrade their 
systems to comply within a year and any further delay in safety 
improvements is viewed as unnecessary. Therefore, PHMSA is adopting the 
one-year delayed compliance period for Class I railroads as proposed. 
As discussed above in Section IV. B., PHMSA is allowing a two-year 
delayed compliance period for Class II and III railroads.

M. Comments Beyond the Scope of This Rulemaking

    PHMSA received comments suggesting changes to the NPRM that it has 
determined are beyond the scope of this rulemaking. These comments are 
discussed in this section.
1. Require a Standardized Format for All Paper and Electronic Train 
Consists
    Maine DEP & EMA, the Illinois CC, and a private citizen requested 
that PHMSA require the use of a standardized format for train consist 
information for all railroads. These commenters noted that different 
railroads have different formats and layouts for their train consist 
information, which can make it potentially difficult for responders to 
identify the critical hazardous materials information during an 
emergency depending on the format they are looking at. Similarly, the 
IAFC requested that PHMSA identify which electronic application or 
other service the railroads must use to meet the requirements of this 
final rule.
PHMSA's Response
    PHMSA recognizes that different formats and layouts for paper train 
consist information, and different electronic applications create 
difficulties for authorized federal, state, and local first responders, 
emergency response officials, and law enforcement personnel. However, 
it is beyond the scope of this rulemaking to mandate a single format 
for train consist information or require the use of a specific 
electronic application or service.
    PHMSA encourages federal, state, and local first responders, 
emergency response officials, and law enforcement personnel to take 
advantage of training opportunities, especially those offered by 
railroads and through organizations like TRANSCAER[supreg],\55\ to 
familiarize themselves with the train consist information format and 
electronic systems in use by railroads in their response areas. PHMSA 
provides grant funding for emergency response training through its 
ALERT program \56\ to assist local authorized federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel with this type of training.
---------------------------------------------------------------------------

    \55\ https://www.transcaer.com/.
    \56\ https://www.phmsa.dot.gov/grants/hazmat/assistance-local-emergency-response-training-alert.
---------------------------------------------------------------------------

2. Emergency Notification for State Emergency Response Commissions 
(SERCs)
    The Illinois CC requested that PHMSA require railroads notify 
appropriate SERCs when they provide an emergency notification of an 
accident involving a train carrying hazardous materials, or an incident 
involving the release or suspected release of a hazardous material.
    Inclusion of SERCs is beyond the scope of this rulemaking because 
SERCs generally do not have a role in the immediate emergency response 
to an incident. SERCs are responsible for implementing the Emergency 
Planning and Community Right-to-Know Act (Pub. L. 99-499) and are not 
designed to receive this kind of emergency notification, disseminate 
it, or act on it. PHMSA notes that railroads may voluntarily notify 
SERCs of a rail accident or incident involving hazardous materials in 
their state.
3. Require a Standardized Procedure for Maintenance of Local Responder 
Contact Information
    The Attorneys General requested that PHMSA develop a required 
procedure for railroads to gather, maintain, and update the contact 
information for all local first responders within 10 miles of their 
routes to support accurate emergency notification.
    As discussed above, in this final rule PHMSA is adopting a revised 
requirement for the emergency notification. Specifically, PHMSA is 
replacing the requirement to notify all local first responders within 
10 miles of the accident or incident with a requirement for railroads 
to notify the primary PSAP responsible for the area where the accident 
or incident occurred as well as the track owner--if the track owner is 
different than the railroad operating the train. It is beyond the scope 
of this rule to develop a standard procedure regarding the gathering, 
maintenance, and updating of contact information for primary PSAPs. We 
agree that railroads must have accurate contact information and 
geographic coverage information for the primary PSAPs along their 
routes in order to comply with the requirement adopted in this final 
rule, and it is PHMSA's understanding that such information is already 
available to railroads.
    However, PHMSA believes it will be more efficient and effective to 
allow railroads to define their own procedures to comply with this 
requirement, rather than to create a ``one-size-fits-all'' approach in 
the HMR. Additionally, PHMSA is adopting a requirement for all 
railroads to test their emergency notification system or emergency 
communications plan at least annually, which will serve to demonstrate 
that each railroad is maintaining and updating this contact 
information.
4. Contingency Planning and Local Connectivity
    Ecology and UTC, and the Attorneys General requested that PHMSA 
require railroads to create contingency plans for provision of 
electronic train consist information to authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel in areas with no or limited data connectivity.
PHMSA's Response
    PHMSA believes that the system of hazard communication for the rail 
transportation of hazardous materials, including the requirements 
adopted in this final rule, represents a redundant, resilient system 
that will be effective in ensuring authorized federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel have access to information on the position and contents of 
railcars containing hazardous materials, even in areas with no data 
connectivity. However, it is beyond the scope of this rulemaking to 
require that railroads develop contingency plans for scenarios where 
the provision of train consist information to authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel required by Sec.  174.28(a) fails due to 
local connectivity issues.
    In this final rule, PHMSA maintains the existing requirement that 
the train crew must keep an up-to-date local printed paper copy of 
train consist information in their possession. Next, PHMSA adopts a 
requirement for railroads to provide an immediate emergency telephonic 
notification to the primary PSAP responsible for the area where the 
incident or accident occurred and provide a copy of train consist 
information directly to the primary PSAP so they can disseminate 
further, as appropriate. As discussed in Section IV. C. ``Emergency 
Notification of Rail Accidents and Incidents Involving Hazardous 
Materials'' above, the primary PSAP is best positioned to

[[Page 52980]]

understand the incident command structure that will be formed, which 
agencies will respond, and how to overcome any local connectivity 
issues.
    Finally, the existing system of hazard communication on rail cars 
carrying hazardous materials, including placards (Part 172, subpart F) 
and markings (Sec.  172.330, including UN ID number and proper shipping 
name or common name) on the rail cars used to transport hazardous 
materials, remains unchanged in this rulemaking. While environmental 
conditions, such as darkness, smoke, and firefighting foam or the 
destruction of hazard communication during an accident can make visual 
identification of the contents of a rail car difficult, these marks and 
placards continue to play an important role in hazard identification.
5. Commodity Flow Reporting
    The Public Utility Commission of Ohio and the Maine DEP & Maine EMA 
requested that PHMSA require railroads to provide aggregated 
information on the identity and quantity of hazardous materials 
transported by rail to state and county emergency planners. The NTSB 
also noted that Safety Recommendation R-14-14,\57\ issued to the U.S. 
Department of Transportation, remains open, and the requirements 
adopted in this final rule could potentially address this safety 
recommendation.
---------------------------------------------------------------------------

    \57\ Safety Recommendation R-14-014 TO THE UNITED STATES 
DEPARTMENT OF TRANSPORTATION: Require railroads transporting 
hazardous materials through communities to provide emergency 
responders and local and state emergency planning committees with 
current commodity flow data and assist with the development of 
emergency operations and response plans.
---------------------------------------------------------------------------

PHMSA's Response
    PHMSA appreciates these comments and concurs that aggregated 
commodity flow information is important for emergency planners. 
However, this request is beyond the scope of this rulemaking. This 
rulemaking is intended to improve communication between railroads and 
federal, state, and local first responders, emergency response 
officials, and law enforcement personnel related to the hazardous 
materials involved in a rail incident or accident. The requirement 
proposed in the comments would require reporting of aggregated 
hazardous materials transportation data unrelated to a particular 
incident or accident, which is a substantially different requirement, 
and would require additional notice and opportunity for comment. PHMSA 
may consider this topic in a future rule. Emergency planners can 
request commodity flow information from TRANSCAER[supreg] and PHMSA has 
grant funding available to defray the cost of commodity flow 
studies.\58\
---------------------------------------------------------------------------

    \58\ See https://www.transcaer.com/resources/commodity-flow-studies and https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant.
---------------------------------------------------------------------------

6. Training and Promotion of Availability of Real-Time Train Consist
    AFL-CIO TTD requested that PHMSA require Class I railroads to 
notify every fire department within their service area about the 
availability of electronic real-time train consist information and how 
to access it. Additionally, they encouraged PHMSA to require that Class 
I railroads provide training to first responders to ensure they are 
able to accurately read and interpret train consist information in 
either in-person training sessions or via online modules. The Attorneys 
General included a similar comment--they requested that PHMSA require 
railroads to coordinate with the appropriate state agencies to account 
for state-specific needs for real-time train consist information.
PHMSA's Response
    PHMSA is committed to increasing awareness of the availability of 
real-time electronic train consist information and the availability of 
training in the use of this information to protect human lives and the 
environment. However, imposing an additional requirement on the 
railroads to promote the availability of the information and provide 
training is beyond the scope of this rulemaking.
    PHMSA plans to increase our outreach and engagement with the 
emergency response community to publicize the availability of real-time 
train consist information, as well as the resources that PHMSA has made 
available to receive training. Additionally, the annual test 
requirement adopted in this final rule is intended to both increase 
local responder awareness of the availability of real-time electronic 
train consist information and ensure that railroads can reliably 
provide the information during emergencies. PHMSA also expects that 
railroads will use the rule's compliance period to engage with 
emergency response organizations along their routes to prepare for 
implementation. Note that Class III railroads that choose to comply 
with the alternative compliance method adopted in this final rule must 
inform all emergency response organizations along their route about the 
contents of their written plan that identifies how the railroad will 
provide accurate train consist information in emergency situations.
7. Role-Based Repository
    The Attorneys General requested that PHMSA develop, or require 
others to develop, a ``role-based repository'' of real-time train 
consist information. Summarily, the Attorneys General describe a 
centralized database containing all real-time train consist information 
for hazardous materials moving across the nationwide rail system. 
Access to the repository would be governed by a user's role--e.g., a 
railroad would be granted access to the database to fulfill their 
responsibilities to create, update, and transmit train consist 
information, while an emergency response organization would be granted 
a different level of access so they could view train consist 
information during an emergency scenario. The Attorneys General suggest 
that PHMSA could host this database and provide role-based access to it 
to ensure that all authorized federal, state, and local first 
responders, emergency response officials, and law enforcement personnel 
who need access to real-time train consist information are able to 
access it.
PHMSA's Response
    The creation of a centralized repository for train consist 
information is beyond the scope of this rulemaking. PHMSA lacks the 
staff, resources, and legal authority to create, manage, and secure 
such an extensive and critical database.
8. Additional Train Consist Information
    APCO submitted a comment that requested that PHMSA expand the type 
of information included with the emergency notification of an accident 
involving hazardous materials or an incident involving the release or 
suspected release of a hazardous material. Specifically, APCO requested 
that PHMSA require railroads to report:
     Size and location of the release of hazardous materials;
     Relevant placard number(s);
     Information about individuals impacted by the incident, if 
applicable; and
     Contact information for railroad personnel on scene in the 
event the designated emergency response point of contact is not present 
at the incident.

[[Page 52981]]

PHMSA's Response
    PHMSA is concerned that requiring railroads to provide information 
on the size and location of the release of hazardous materials with the 
emergency notification will slow down the notification to the primary 
PSAP, because railroads would likely not have access to that 
information immediately. One of the major purposes of providing train 
consist information to federal, state, and local first responders, 
emergency response officials, and law enforcement personnel is to allow 
them to assess the incident or accident scene safely and effectively. 
The information requested by APCO would need to be gathered through an 
accident assessment, likely conducted by local emergency responders 
themselves, and it would be counter-productive and potentially 
dangerous to require an accident assessment be conducted before the 
railroad could provide the required train consist information to the 
primary PSAP.
    PHMSA emphasizes that these regulatory requirements are minimums, 
and PHMSA expects that a railroad would take steps to share any and all 
available information on the size and location of the hazardous 
materials release with the incident command, through the primary PSAP 
or directly, as soon as possible to help responders assess the threats 
of hazardous material. The four-digit number displayed on a placard, 
also known as a UN ID number, is already included in train consist 
information as a required data point (this information is part of the 
required Sec. Sec.  172.201 to 172.203 shipping paper information). 
Again, PHMSA expects that if a railroad is aware of which specific 
railcars within the train have been involved in the accident or 
incident, and therefore the UN ID numbers of the hazardous materials 
contained in those railcars, they will share that information with the 
primary PSAP and incident command immediately.
    However, PHMSA understands that in the initial chaotic stages of a 
train accident, it is more important for the railroad to share the 
entire train consist immediately and allow responders arriving on the 
scene to use the unique reporting marks on the cars and their position 
in the accident site to determine the contents of the cars involved in 
the accident or incident. Similarly, information on the individuals 
impacted would likely not be available to a railroad immediately. PHMSA 
believes the railroad should remain focused on sharing the train 
consist information as quickly as possible in a directed manner, and 
not delay its provision to gather more information on the scene.
    Finally, it may be confusing to provide additional contact 
information about railroad personnel to local responders. The train 
consist information includes a railroad designated emergency point of 
contact, and that contact information should be counted upon to create 
a reliable, simple single line of communication between the incident 
command and the railroad during the initial stages of an emergency. 
Therefore, PHMSA will not require that railroads provide this 
additional information. PHMSA emphasizes that the regulatory standards 
adopted in this final rule are minimum requirements, and PHMSA 
encourages railroads to provide any additional relevant information 
regarding an accident or incident to authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel as soon as possible.
9. Prohibition of Non-Disclosure Agreements
    Ecology and UTC requested that PHMSA prohibit the use of non-
disclosure agreements as a condition of using an electronic system that 
provides train consist information to federal, state, and local first 
responders, emergency response officials, and law enforcement 
personnel. Ecology and UTC state that if a non-disclosure agreement is 
required to access electronic train consist information, as it is for 
AskRail[supreg] for example, some response personnel working for state, 
local, and tribal response organizations that require their employees 
to comply with public disclosure laws will not be able to use these 
means of information sharing. AFPM submitted a comment requesting that 
PHMSA expressly prohibit the dissemination of emergency response 
information to protect against unauthorized access by international or 
domestic terrorists seeking to disrupt train operations and endanger 
civilian lives.
    PHMSA's Response
    PHMSA will not prohibit railroads from taking measures to prevent 
the re-transmission of real-time train consist information to 
unauthorized persons. In the NPRM in Sec.  174.28(c), PHMSA proposed to 
require that railroads must implement security and confidentiality 
protections in generating, updating, providing, and forwarding train 
consist information in electronic form to ensure they provide access 
only to authorized persons. PHMSA is adopting those requirements in the 
final rule.\59\ PHMSA considers a provision that real-time train 
consist information may not be disseminated publicly without permission 
to be a reasonable requirement for railroads to include in an 
application to comply with PHMSA's information security requirements. 
PHMSA does not currently believe that this type of requirement 
unnecessarily restricts legitimate usage of real-time train consist 
information during rail accidents and incidents. Therefore, in this 
final rule, PHMSA will not prohibit the inclusion of provisions that 
require recipients of real-time train consist information to protect 
the information they receive.
---------------------------------------------------------------------------

    \59\ Please note that the security requirements have moved to 
paragraph (d) to accommodate a new paragraph for the Class III 
railroad alternate compliance method.
---------------------------------------------------------------------------

N. Additional Notice and Opportunity to Comment

    NENA/NASNA, in supplemental comments filed on March 18, 2024, 
requested that PHMSA re-open the comment period of the rulemaking to 
allow additional time for stakeholders in the PSAP community to review 
the proposed rule and submit comments. NENA/NASNA states that, in their 
opinion, the NPRM comment period did not allow adequate notice for 
local PSAP stakeholders to participate in the rulemaking process.
PHMSA's Response
    PHMSA does not concur that this rulemaking action did not afford 
local PSAP or other interested stakeholders in the emergency 
communication and response communities sufficient opportunity to submit 
their views on the role of PSAPs in the provision of real-time train 
consist information to emergency response personnel. PHMSA notes that 
since publication of the ANPRM in January 2017, the mechanics for 
channeling real-time train consist information from the railroads to 
emergency responders has been a principal area of focus of the 
rulemaking. Indeed, the ANPRM posed a series of questions on how fusion 
centers would, in-practice, interface with diverse emergency response 
assets--of which PSAPs are a prominent example. The ANPRM also posed 
questions regarding current practices among railroads for notifying the 
emergency responders of accident and incidents similarly naturally 
touches on the role of PSAPs in those efforts.
    NENA and NASNA submitted joint comments on the NPRM emphasizing the 
centrality of PSAPs in emergency response, and calling on PHMSA to

[[Page 52982]]

adjust its proposals because of limited internet access for PSAPs; the 
revisions to the notification requirements in this final rule are 
informed by those comments. Further, PHMSA held additional listening 
sessions with both NENA and NASNA to afford opportunity to clarify 
further the comments already presented by the organizations.
    It is not in the interest of public safety to further delay the 
implementation of the crucial safety improvements implemented in this 
final rule by re-opening the comment period. Therefore, we elect not to 
accommodate this request. However, PHMSA notes to NENA/NASNA that there 
are delayed compliance timeframes of one year and two years, 
respectively, depending on railroad class, which will allow time for 
PSAPs to participate in implementation. Moreover, PHMSA's expectation 
is that railroads (especially Class I) take the initiative to 
collaborate with PSAPs in providing assurances train consist 
information that is provided to PSAPs in accordance with this 
rulemaking is then proven to be accessible to emergency responders.

V. Section-by-Section Review of Amendments

Parts 171 and 180

A. Sections 171.8 and 180.503

    Section 171.8 defines key terms used in the HMR. Prior to the 
adoption of this final rule, a train consist was defined in this 
section as a ``written record of the contents and location of each rail 
car in a train'' \60\--which PHMSA and industry have historically 
understood to refer to the printed paper copy documentation maintained 
and updated by train crews pursuant to Sec.  174.26(a). Prior to 
adoption of this final rule train crews were also obliged by Sec.  
174.26(b) to maintain a paper 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.
---------------------------------------------------------------------------

    \60\ 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 
(consistent with NTSB safety recommendation R-07-004) directs PHMSA to 
require Class I railroads to (in real-time) generate, maintain, update, 
and share certain real-time train consist information in electronic 
form with emergency response personnel. That list of information 
specified in the FAST Act is by-and-large consistent with the suite of 
safety-critical information in the definitions of ``train consist'' at 
Sec.  171.8 in use before the adoption of this final rule (which in 
turn is aligned with the information contained in the notice provided 
to train crews at Sec.  174.26) and the ``emergency response 
information'' specified at Sec.  172.602. In the NPRM, PHMSA proposed 
to replace the term ``train consist'' with the term ``train consist 
information'' at Sec.  171.8 to more fully capture the intended meaning 
in light of the FAST Act, and specifically 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.
    The comments PHMSA received about the creation of the definition of 
``train consist information'' were generally positive and supportive. 
Therefore, in this final rule, PHMSA adopts the definition of ``train 
consist information'' in Sec.  171.8, as proposed. Additionally, PHMSA 
removes the definition of ``train consist'' from Sec.  180.503, as 
proposed. However, please note that PHMSA adopts changes to certain 
information included as ``train consist information'' in Sec.  174.26. 
These changes are discussed in depth below in Section V.B.

Part 174

B. Section 174.26

    Prior to the adoption of this final rule, Sec.  174.26 required 
railroads to provide each train crew with 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 required 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) required 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 proposed 
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 match the electronic versions of the 
train consist information maintained off the train at all times. Those 
proposed revisions to Sec.  174.26 were 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 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.
    In this final rule, PHMSA adopts Sec.  174.26 with the following 
revisions to the proposed requirements:
    1. In paragraph (a), a revision removing the requirement to include 
the name, title, and email address of the designated emergency response 
point of contact.
    This revision acknowledges that railroads transport hazardous 
materials 24/7, 365 days a year, and it is not a reasonable requirement 
to include the name, title, and email address of a specific individual 
as the designated emergency response point of contact. Name, title, and 
email address information may change frequently and necessitate 
administrative updates to information that may introduce

[[Page 52983]]

inefficiencies or confusion if not properly communicated to all 
parties, while a dedicated phone number for emergency response will 
likely remain static. See Section IV.J. for additional discussion on 
this revision.
    2. In paragraph (a)(1), revise the requirement for origin and 
destination information to ``point of origin and destination of the 
train.''
    This revision is discussed in greater detail in Section IV.I. 
above. Although PHMSA believes we have discretion to implement as 
proposed, based on commenter feedback we are adopting a stricter 
reading and bringing the requirements of the final rule into closer 
alignment with the FAST Act mandate. As noted in feedback by 
commenters, this origin/destination data will still provide authorized 
federal, state, and local first responders, emergency response 
officials, and law enforcement personnel with important information 
about the train's direction of travel that can be used in assessing the 
threat of that hazardous material carried aboard the train.
    3. In paragraph (b), make a minor revision to allow train crews to 
use other means besides electronic or radio communications to make 
updates to the electronic train consist information.
    This revision is intended to provide railroads additional 
flexibility as to how train consist information is updated in the 
railroad's centralized electronic database. To be clear, PHMSA is 
generally not concerned about how the update is made, only that the 
update is made and is accurate before the train moves.
    4. In paragraph (b), make a conforming edit to clarify that Class 
III railroads complying with the alternative compliance method adopted 
in this final rule are not required to update electronic train consist 
information.
    As discussed in Section IV.B and V. C, in this final rule PHMSA is 
adopting an alternative compliance method for Class III railroads that 
does not require that train consist information be maintained or 
transmitted electronically. Therefore, we are making a conforming edit 
to this paragraph to clarify that Class III railroads that choose to 
use the alternative compliance method adopted in this final rule are 
not required to update electronic train consist information in real 
time, because they are not required to maintain electronic train 
consist information.
    Therefore, the requirements of Sec.  174.26 adopted in this final 
rule are as follows: (1) replace existing references in Sec.  174.26 to 
the paper ``document'' memorializing train car position in this 
provision with references to ``train consist information'' as defined 
in Sec.  171.8; (2) specify the information to be included as part of 
the ``train consist information;'' (3) specify that a local printed 
paper 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 the local printed paper copy of train consist 
information 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 update or notify 
the railroad to update the electronic form of train consist information 
(if used--see Class III alternative compliance method requirements) 
maintained off the train to ensure consistency with the local printed 
paper copy of the train consist information prior to moving the train.

C. Section 174.28

    Prior to the adoption of this final rule, the HMR did 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 instructs 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 practical 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 to 
supplement the aforementioned requirements by creating an explicit 
obligation for railroads to ``provide'' accurate, real-time train 
consist information in electronic form to authorized federal, state, 
and local 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 IV.F. 
above, PHMSA understands that the 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) immediately 
after an accident or incident, ensuring that railroads take action to 
provide emergency notification and train consist information.
    PHMSA consequently proposed 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 proposed that this new 
provision's requirements would apply to all railroads, and not just 
those that were the subject of the FAST Act mandate. However, in this 
final rule, PHMSA is adopting an alternative compliance method that 
does not require train consists to be maintained or transmitted in 
electronic form for Class III railroads, due to their small size and 
closer integration with local emergency response resources. Consistent 
with PHMSA's understanding of congressional intent, paragraph (a) of 
this section requires railroads to ensure that authorized federal, 
state, and local 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. As discussed above in Sections III.F.-G., PHMSA 
understands that the 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.
    In the final rule, PHMSA is adopting paragraph (a) as proposed, 
with a minor revision to clarify that the party responsible for 
compliance is the railroad operating a train carrying hazardous 
materials, rather than the track owner--if the track owner is different 
than the railroad operating the train.
    For paragraph (b) within the new Sec.  174.28, PHMSA proposed to 
establish an obligation for all railroads to supplement the above 
advance information sharing requirement with

[[Page 52984]]

an explicit obligation for railroads to ``push'' electronic train 
consist information to state-authorized local first responders within a 
10-mile radius of an accident or certain incidents promptly following 
the accident or incident. In this final rule, PHMSA is revising the 
proposed requirement. PHMSA is replacing the proposed requirement to 
provide emergency notification to all state-authorized local first 
responders within a 10-mile radius of an accident or incident with a 
requirement to provide telephonic emergency notification and an 
electronic copy of train consist information to the primary PSAP 
responsible for the area where the accident or incident occurred and, 
separately, to the track owner (if the track owner is different than 
the railroad operating the train). This notification would be largely 
similar to the special permit conditions discussed in Section III.C. 
above. The decision to change the recipient of the emergency 
notification from all local first responders within a 10-mile radius to 
the primary PSAP responsible for the accident or incident location and 
the track owner is discussed in greater detail in Section IV.C above.
    At its core, this requirement is performance-based--in scrutinizing 
compliance with this requirement, PHMSA will focus on: (1) before an 
accident or incident, ensuring that railroads have adopted protocols 
and resources providing a high degree of confidence that the emergency 
notifications will succeed in immediately placing train consist 
information in the hands of a primary PSAP or track owner; and (2) 
after an accident or incident occurs, that those notifications did in 
fact reach the intended audience in a timely manner.\61\
---------------------------------------------------------------------------

    \61\ 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.
---------------------------------------------------------------------------

    Similarly, PHMSA will be less concerned with the particular tools 
used to provide electronic train consist information to the primary 
PSAP or track owner after the initial telephone notification of the 
incident or accident (e.g., instant message to mobile devices, email, 
fax notification functionalities within the AskRail[supreg] system) 
than whether railroads have ensured that: (1) their personnel have, in 
advance of rail transportation of hazardous material, a comprehensive, 
verified list with pertinent contact information for primary PSAPs and 
other track owners (if applicable) along a route; and (2) appropriate 
protocols and training for railroad personnel to ensure that such 
emergency notifications can occur immediately following an accident or 
incident. To verify that each railroad has a system in place to meet 
this performance-based approach, PHMSA is adopting a new requirement in 
paragraph (b)(2) for railroads to conduct annual tests of their 
emergency notification system. These tests must be sufficient in number 
and location to ensure reliability across the railroad's network.
    PHMSA also is adopting a recordkeeping requirement in association 
with the test requirement to require railroads to create a record of 
each test to include: (1) the date of the test; (2) the method used to 
provide the notification; (3) the name and location of the primary PSAP 
or track owner to whom the notification was sent; (4) whether or not 
the test notification was received and acknowledged; and (5) for system 
tests that are not received and acknowledged, an analysis of the 
factors contributing to the failure and corrective actions taken by the 
railroad to prevent such a failure from recurring. Test records must be 
retained for at least five years.
    Finally, PHMSA is replacing the word ``promptly'' with 
``immediately'' in this paragraph in order to more clearly communicate 
our intent that the railroad operating the train provide the emergency 
notification and train consist information as quickly as possible.
    In this final rule, PHMSA is adopting an alternative compliance 
method for Class III railroads that does not require the transmission 
of electronic train consists to authorized federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel. Class III railroads may either comply with the electronic 
real-time train consist and emergency notification requirements adopted 
in paragraphs (a) and (b), or they may comply with the alternative 
method adopted in Sec.  174.28(c).
    The alternative method requires a Class III railroad to develop a 
written plan that describes how the railroad will notify local 
emergency response organizations about an incident or accident 
involving hazardous materials that requires an emergency response. This 
plan must also describe how the Class III railroad will provide 
accurate, updated train consist information to local emergency 
responders, and must assign the responsibility for providing this 
information to at least one person not on board a locomotive, unless 
there are no such employees of the Class III railroad capable of 
performing this function. PHMSA expects that only the smallest of Class 
III railroads would be unable to assign an office employee with this 
responsibility; provide this employee with any necessary training; and 
ensure at least one such employee is available to communicate with 
emergency responders in the event of an emergency situation during all 
train movements. Class III railroads must inform all local emergency 
response agencies along their route about the contents of the plan. In 
the event of an accident involving a train carrying hazardous materials 
requiring response from local emergency response agencies, or an 
incident involving the release or suspected release of a hazardous 
material from a rail car in the train requiring response from local 
emergency response agencies, the Class III railroad must immediately 
notify the primary PSAP responsible for the area where the incident or 
accident occurred telephonically, and enact their plan to provide 
accurate, updated train consist information to appropriate emergency 
response agencies. Class III railroads must retain a copy of this plan 
and provide it to authorized representatives of the Department upon 
request. Finally, Class III railroads must conduct a test at least 
annually to demonstrate the effectiveness of their written plan. The 
Class III railroad must retain a record of each test event, and, in the 
event of a failed test, conduct an analysis of contributing factors and 
revise the plan accordingly to avoid such a failure in a real emergency 
situation.
    PHMSA also proposed a new paragraph (c) implementing the FAST Act 
mandate that the exchange of real-time electronic train consist 
information must be performed in a secure and confidential manner so as 
to protect proprietary and security-sensitive information,\62\ and that 
regional and short line railroads be permitted to enter into memoranda 
of understanding with Class I railroads whose track they use to 
facilitate such transfers of train consist information to emergency 
response personnel \63\ and directed toward

[[Page 52985]]

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 \64\ 
directing most railroads to undertake a series of measures to reduce 
the risk of cybersecurity threats to their operations.
---------------------------------------------------------------------------

    \62\ PHMSA acknowledges that the precise statutory language 
employed in Section 7302(a)(5) of the 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.
    \63\ 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.
    \64\ 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 railroads will be able to build on those 
existing resources to ensure that their execution of the requirements 
adopted in this final rule are compliant with the security requirements 
adopted in this final rule. Further, PHMSA notes that nothing in this 
rulemaking 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. Therefore, PHMSA is adopting the 
requirements of paragraph (c) as proposed; however, PHMSA is 
redesignating this paragraph as (d) to accommodate the alternative 
compliance method adopted for Class III railroads.
    Lastly, in the NPRM, PHMSA included proposed language at paragraph 
(d) that would prohibit 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 elaborated 
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 both the obligation for railroads to provide accurate, 
real-time train consist information in electronic form in paragraph (a) 
and the accident/incident notification performance standard at 
paragraph (b). PHMSA is adopting the requirements of paragraph (d) as 
proposed; however, PHMSA is redesignating this paragraph as (e) to 
accommodate the alternative compliance method adopted for Class III 
railroads.

VI. 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''),\65\ as 
amended by Executive Order 14094 (``Modernizing Regulatory 
Review''),\66\ 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.
---------------------------------------------------------------------------

    \65\ 58 FR 51735 (Oct. 4, 1993).
    \66\ 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 adopted in this final rule. 
PHMSA has developed a more detailed economic analysis in the final RIA, 
a copy of which has been placed in the docket.
    PHMSA has determined that the final rule impacts six Class I 
railroads, 14 Class II railroads, and 638 Class III railroads, and 
estimates the undiscounted total financial impact of the rule over a 
10-year analysis period to be about $17.7 million in 2022 dollars, for 
an average annual cost of $1.8 million. The discounted total cost of 
the rule over the analysis period is estimated to be $15.8 million in 
2022 dollars at a two percent discount rate, for an average annual cost 
of $1.6 million. Further, PHMSA notes that the benefits of the action 
are difficult to quantify as it is reliant on the degree to which 
having real-time access to train consist information improves 
authorized federal, state, and local first responders, emergency 
response officials, and law enforcement personnel's ability to respond 
to rail incidents.
    Based on lessons learned from major hazardous material incidents on 
rail, PHMSA anticipates the action would improve authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel's ability to promptly identify all rail cars 
containing hazardous materials, as well as the specific hazardous 
material contained therein, that are involved in an accident or 
investigation, and to assess the threat from a hazardous materials 
release in a timely manner. This would likely reduce injuries and 
fatalities, material loss and response costs, and delays caused by 
closures to major transportation routes. PHMSA estimated the annual 
damage cost of hazardous material incidents on rail that could be 
impacted by this action to be about 15 million in 2022 dollars. 
Therefore, the final rule would have to reduce damage costs by about 12 
percent for the monetized benefits of the final rule to equal costs. 
The following table summarizes the quantified annual costs and 
qualified benefits of the major provisions of this rulemaking.

[[Page 52986]]



----------------------------------------------------------------------------------------------------------------
                                          Average annual cost
            Requirement            --------------------------------        Benefit               Breakeven
                                     Undiscounted         2%
----------------------------------------------------------------------------------------------------------------
Amending the definition of train          $327,847        $291,089  By aligning the        Cost-effective if
 consist information.                                                definition of the      this requirement
                                                                     FAST Act with the      reduces the
                                                                     language in the        consequences of
                                                                     existing regulation,   hazardous material
                                                                     this amendment         incidents by rail by
                                                                     improves regulatory    about 11.8 percent
                                                                     clarity
Amending notice to train crew.....       1,169,018       1,036,601  By improving
                                                                     emergency
                                                                     personnel's ability
                                                                     to promptly identify
                                                                     all the hazardous
                                                                     materials involved
                                                                     in an accident and
                                                                     assess the threat
                                                                     from a hazardous
                                                                     materials release,
                                                                     the provisions will
                                                                     reduce injuries and
                                                                     fatalities, material
                                                                     loss and response
                                                                     costs, and delays
                                                                     caused by closures
New emergency response information         275,018         251,219
 sharing requirement.
                                   --------------------------------
    Total.........................       1,771,883       1,578,908
----------------------------------------------------------------------------------------------------------------

    As illustrated by the Norfolk Southern train derailment at East 
Palestine, Ohio, 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.\67\ 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.\68\ 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 rulemaking.
---------------------------------------------------------------------------

    \67\ 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 
five to eight percent (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.
    \68\ 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'') \69\ 
and the presidential memorandum (``Preemption'').\70\ 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.''
---------------------------------------------------------------------------

    \69\ 64 FR 43255 (Aug. 10, 1999).
    \70\ 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 tribal 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 tribal 
requirements on the following covered subjects:
    1. Designation, description, and classification of hazardous 
materials;
    2. Packing, repacking, handling, labeling, marking, and placarding 
of hazardous materials;
    3. Preparation, execution, and use of shipping documents related to 
hazardous materials and requirements related to the number, contents, 
and placement of those documents;
    4. Written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials; and
    5. 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 final 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 final rule is necessary to achieve the 
objectives of the FAST Act and the hazardous materials transportation 
law under which the final rule is promulgated. The final rule will not 
have substantial direct effects on states, the relationship between the 
national government and states, or the distribution of power and 
responsibilities among the various levels of government. Therefore, 
PHMSA has concluded that the consultation and funding requirements of 
Executive Order 13132 do not apply.

D. Executive Order 13175

    PHMSA analyzed this rulemaking in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments'') \71\ and DOT Order 
5301.1A (``Department of Transportation Tribal Consultation Policy and 
Procedures''). Executive Order 13175 and DOT Order 5301.1A 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

[[Page 52987]]

the relationship and distribution of power between the Federal 
Government and Native American tribes.
---------------------------------------------------------------------------

    \71\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

    PHMSA assessed the impact of this action and has 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 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 authorized federal, state, and local 
first responders, emergency response officials, and law enforcement 
personnel. Therefore, PHMSA finds this action will neither 
significantly nor uniquely affect tribal communities, nor impose 
substantial compliance costs on Native American tribal governments or 
mandate tribal action. Because this rulemaking will not adversely 
affect the safe transportation of hazardous materials, it will not 
cause disproportionately high adverse risks for tribal communities. For 
these reasons, the funding and consultation requirements of Executive 
Order 13175 and DOT Order 5301.1A do not apply.

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.\72\
---------------------------------------------------------------------------

    \72\ DOT, ``Rulemaking Requirements Related to Small Entities,'' 
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).
---------------------------------------------------------------------------

    This final 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 
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 carrying hazardous material. 
The action applies to railroads, some of which are small entities, such 
as regional and short line railroads. As discussed at length in the 
final RIA--posted in the rulemaking docket--the actions adopted in this 
final rule do not have a significant economic impact on a substantial 
number of small entities.
    PHMSA determined that all 638 Class III railroads (100 percent) and 
13 Class II railroads (93 percent) can be considered small entities. 
None of the Class I railroads can be considered small entities.

----------------------------------------------------------------------------------------------------------------
                                                         >1,500 employees            1,500 or fewer employees
            Railroad                 Affected    ---------------------------------------------------------------
                                     entities          Count          Percent          Count          Percent
----------------------------------------------------------------------------------------------------------------
Class I.........................               6               6             100               0               0
Class II........................              14               1               7              13              93
Class III.......................             638               0               0             638             100
                                 -------------------------------------------------------------------------------
    Total.......................             658               7  ..............             651  ..............
----------------------------------------------------------------------------------------------------------------

    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 2022 
dollars by using a deflation index of 1.17, resulting in an average 
annual revenue of $92.43 million and $5.5 million for Class II and 
Class III, respectively. Based on estimates, for Class II and III 
railroads, the per railroad undiscounted average annual cost of the 
final rule is $17,017 and $521, respectively.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Amending the definition  Amending notice to train   New emergency response
                                                                   of train consist                crew               information sharing
                                                                      information       --------------------------        requirement
                                                   Number of  --------------------------                          --------------------------  Final rule
                 Railroad class                    railroads                  Average                   Average                   Average      average
                                                                 Average    annual cost    Average    annual cost    Average    annual cost  annual cost
                                                               annual cost      per      annual cost      per      annual cost      per
                                                                              railroad                  railroad                  railroad
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class III.......................................          638      $32,714          $51     $155,659         $244     $134,322         $226         $521
Class II........................................           14       12,895          921      156,581       11,184       68,762        4,912       17,017
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 52988]]

    PHMSA estimates the average annual cost of the rule is less than 
0.1 percent of the average annual revenue of Class II and Class III 
railroads. In consideration of the unique needs of Class III railroads, 
in this final rule, PHMSA adopts an alternative compliance method for 
Class III railroads that does not require the deployment of an 
electronic train consist system. The alternative compliance method will 
provide an increase in the level of safety from the status quo, without 
unduly burdening these small businesses. Additionally, PHMSA is 
adopting a two-year delayed compliance period for Class II and III 
railroads to allow them sufficient time to make any operational, 
cultural, or technological changes to comply with the requirements of 
this final rule.
    Based on this analysis, PHMSA certifies that this 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 action will 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 final rule in accordance with the 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 final rule, PHMSA is adding six 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 final rule will result 
in an overall increase in burden attributed to the requirement for 
additional emergency response information on hazardous materials by 
rail. The amendments adopted in this final rule will require railroads 
to make certain train consist information available electronically. 
Much of this required information is already required of, and generally 
applied to, shippers who must then provide the information to carriers 
(e.g., railroads). 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 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 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 adopted in this final rule, PHMSA 
estimates that 658 railroads (Class I, II, and III) will produce 
hazardous material train consist information approximately 131,042 
times annually. PHMSA estimates the additional burden for this 
information collection will take five minutes per response, resulting 
in approximately 10,876 additional burden hours for the railroads 
(Class I, II, and III) (131,042 responses x five minutes). 
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 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 658 railroads (Class I, II, and 
III) will need to notify local authorities of hazardous materials 
incidents 491 times annually. PHMSA understands that not all Class II 
and III railroads transport hazardous materials, yet is estimating 
these costs using a conservative assumption that all railroads may at 
some point transport hazardous material. PHMSA estimates the additional 
burden added in this final rule will take 15 minutes resulting in 
122.75 burden hours (491 hazardous materials incidents x 15 minutes per 
notification). There are no additional burden costs associated with 
this information collection.
Creation of Records of Emergency Notification System Tests
    In this final rule, PHMSA is adopting a requirement for railroads 
to test their ability to provide train consist information to primary 
PSAPs and emergency responders. In the first year, PHMSA estimates it 
will take Class I and II railroads 40 hours each to create a test plan, 
and it will take Class III railroads one hour to create a test plan. 
PHMSA estimates it will take Class I, II, and III railroads one hour 
each succeeding year to review and update the plan as necessary to 
account for changes in operations or geographic scope. The estimated 
information collection burden hours in the first year is 1,438 burden 
hours ((20 Class I and II railroads x 40 hours) + (638 Class III 
railroads x one hour)). This information collection will decrease in 
subsequent years to 658 burden hours overall.
Retention of Records of Emergency Notification System Tests
    PHMSA estimates that 20 Class I and II railroads will each conduct 
six tests of their emergency notification system (see Sec.  174.28(b)) 
annually, and the 638 Class III railroads will conduct one test each. 
PHMSA estimates that it will take five minutes to retain and file the 
test record for each test event. The estimated information collection 
burden hours for this requirement is 62.9 hours ((20 Class I, Class II, 
railroads x six tests x five minutes) + (638 Class III railroads x one 
test x five minutes)).
Creation of Records of Class III Railroad Alternative Compliance Method
    In this final rule, PHMSA is adopting an alternative compliance 
method for Class III railroads to account for the challenges in 
creating and providing electronic train consist information. As part of 
this requirement, Class III railroads must create a plan that describes 
how the railroad will provide accurate train consist information to 
primary PSAPs and local emergency response organizations. PHMSA 
estimates that this requirement will apply to 388 Class III railroads. 
PHMSA estimates it will take a Class III railroad four hours to develop 
this plan the first year, and one hour annually to review and update 
the plan to account for operational or network changes. The estimated 
burden hours in the first year is 1,552 hours (388 x 4 hours). The 
estimated burden will decrease in subsequent years to 388 hours.

[[Page 52989]]

Retention of Records of Class III Railroad Alternative Compliance 
Method
    PHMSA estimates it will take a Class III railroad five minutes to 
retain a record of the plan, as required Sec.  174.28(c). The estimated 
information collection burden is 32.2 hours (388 Class III railroads x 
five minutes).
    A summary of the total increases for information collections under 
this OMB control number are as follows:
    Annual Increase in Number of Respondents: 3,408.
    Annual Increase in Number of Responses: 133,725.
    Annual Increase in Burden Hours: 14,084.
    Annual Increase in Burden Costs: $500,000.
    PHMSA has submitted the revised information collection and 
recordkeeping requirements to OMB for approval.
    Requests for a copy of this information collection should be 
directed to Steven Andrews or Nina Vore, Office of Hazardous Materials 
Standards, Pipeline and Hazardous Materials Safety Administration, 1200 
New Jersey Avenue SE, Washington, DC 20590-0001, 202-366-8553.

G. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et 
seq.) 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 final RIA, 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 final RIA is available for review in the rulemaking 
docket.

H. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321 et seq.),\73\ 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 an action for which a categorical 
exclusion is not applicable and is either unlikely to have significant 
effects, or when the significance of the action is unknown. In 
accordance with these requirements, an EA must briefly discuss: the 
need for the action; the alternatives considered; the environmental 
impacts of the action and alternatives; and a listing of the agencies 
and persons consulted (40 CFR 1508.9(b)). If, after reviewing public 
comments in response to the draft EA (DEA), an agency determines that a 
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).
---------------------------------------------------------------------------

    \73\ Also at 40 CFR parts 1501 to 1508.
---------------------------------------------------------------------------

1. Purpose and 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. In light of the stated 
need, the purpose of the rule is to address the safety and 
environmental impacts of hazardous materials rail transportation 
incidents by requiring railroads to provide real-time electronic train 
consist information to federal, state, and local first responders, 
emergency response officials, and law enforcement personnel.
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.
Adopted Action: All Railroads Alternative
    Under this alternative, railroads that transport hazardous 
materials are required to create accurate train consist information 
about the hazardous material and its location on a train in both a 
local printed paper 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 are also required to provide immediate telephonic 
emergency notification and electronic train consist information to the 
primary PSAP (e.g., 9-1-1 call center) that covers the location where 
the accident or incident occurred immediately following the accident or 
incident. Class III railroads (small, short-line railroads) are 
authorized to meet an alternate compliance method that allows them to 
continue using paper-based train consists, provided that they create an 
emergency communication plan; inform local emergency response agencies 
about the contents of the plan; test the plan at least annually; and 
enact the plan in emergencies involving hazardous materials. This 
alternative aims to enhance transportation safety by transitioning away 
from exclusive reliance on train crews and hard copy documents to 
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 
Surface Transportation Board, 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 an immediate telephonic 
emergency notification and electronic train consist information to the 
primary PSAP that covers the location where the accident or incident 
occurred immediately following the accident or

[[Page 52990]]

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. Affected Environment
    The action in the final rule applies to all railroads that 
transport hazardous materials in commerce. As such, PHMSA estimates the 
final rule will impact six Class I railroads, 14 Class II railroads, 
and 638 Class III railroads and the surrounding environments. Of the 
140,000 total route-miles of track in the U.S., 104,000 miles are in 
rural and tribal areas.
    Because the final rule would apply to all railroads that carry 
hazardous materials, it is important to consider the existing 
environment related to freight transportation of hazardous materials. 
Between 2010 and 2021, hazardous materials released in railroad 
accidents resulted in a total of 326 injuries and no fatalities. Over 
this period there were 202 rail accidents that caused a release of 
hazardous material, and 5,178 instances of a release of hazardous 
material not associated with a rail accident (e.g., a failed valve 
allowing product to leak from a tank car). While accidents involving 
hazardous materials by rail are rare, they can have serious 
consequences. Recent examples of incidents involving trains carrying 
hazardous materials include the Norfolk Southern trail derailment 
incident in East Palestine, Ohio, in 2023; the derailment of a Conrail 
train in Paulsboro, New Jersey in 2012; and the Canadian National 
Railway Company (CN) train collision in Anding, Mississippi, in 2005. 
In all three cases, emergency personnel who responded to the incident 
did not gain access to information about the train consist until well 
after they arrived on scene, which hampered emergency response efforts 
and increased risks to the emergency responders and the local 
community.
4. Environmental Impacts of Final Action and Alternatives
No Action Alternative
    The PHMSA HMR and the FRA rail safety 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 federal, state, 
and local first responders, emergency response officials, and law 
enforcement personnel 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 authorized federal, 
state, and local first responders, emergency response officials, and 
law enforcement personnel 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 and therefore, the additional safety, environmental, and public 
health benefits of the adopted action would not be realized with the no 
action alternative.
Adopted Action: All Railroads Alternative (Final Rule)
    This 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. Railroads would be 
required to use electronic communication to supplement their hard copy 
documentation and communications requirements. 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 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 action builds on the current HMR requirements 
for hazardous material information sharing with the goal of improved 
rail transportation safety by enhancing authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel's 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. Compared to the no action 
alternative, implementing the safety measures described in the final 
rule may also reduce the adverse economic effects in local communities 
where incidents occur. Current research shows train derailments can 
reduce property values, which can slow down economic activity in the 
area.\74\ The final rule aims to ensure emergency response personnel 
have timely, accurate, and actionable information regarding the 
hazardous material they may encounter at 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.
---------------------------------------------------------------------------

    \74\ 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 
five to eight percent (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.
---------------------------------------------------------------------------

    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.
    The final rule does not include any activities, such as ground 
disturbing activities, building or landscape alterations, construction 
or installation of any new aboveground components, or the introduction 
of visual, auditory, or atmospheric elements, that have the potential 
to adversely affect, either temporarily or permanently, historic 
resources and/or cultural resources, ecological resources, wetlands and 
waterways, or farmland.
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

[[Page 52991]]

electronic train consist information to emergency response personnel, 
and also providing an immediate telephonic emergency notification and 
electronic train consist information to the primary PSAP that covers 
the location where the accident or incident occurred immediately 
following 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 percent 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 action would still provide safety and 
environmental benefits by enhancing authorized federal, state, and 
local first responders, emergency response officials, and law 
enforcement personnel's ability to assess without delay the potential 
for a hazardous material release and take appropriate response 
measures. Similar to the action applicable 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. Similar to the final rule, this 
alternative would not include any activities, such as ground disturbing 
activities, building or landscape alterations, construction or 
installation of any new aboveground components, or the introduction of 
visual, auditory, or atmospheric elements, that have the potential to 
adversely affect, either temporarily or permanently, historic resources 
and/or cultural resources, ecological resources, wetlands and 
waterways, or farmland.
5. Environmental Justice
    Executive Order 12898 (``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations''),\75\ 
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.
---------------------------------------------------------------------------

    \75\ 59 FR 7629 (Feb. 11, 1994).
---------------------------------------------------------------------------

    Executive Order 14096--``Revitalizing Our Nation's Commitment to 
Environmental Justice for All''--was enacted on April 21, 2023. 
Executive Order 14096 on environmental justice does not rescind 
Executive Order 12898--``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' which has 
been in effect since February 11, 1994, and is currently implemented 
through DOT Order 5610.2C. This implementation will continue until 
further guidance is provided regarding the implementation of the new 
Executive Order 14096 on environmental justice.
    Through the NEPA process, PHMSA has evaluated this final rule under 
DOT Order 5610.2C and Executive Order 12898, and has determined it will 
not cause disproportionately high and adverse human health and 
environmental effects on minority and low-income populations. The final 
rule will not result in any adverse environmental or health impact on 
minority populations and low-income populations. Rather, PHMSA 
anticipates the final action to have a positive impact on the safe 
transportation of hazardous materials by rail by requiring all trains 
carrying hazardous materials to have real-time information available to 
authorized federal, state, and local first responders, emergency 
response officials, and law enforcement personnel 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 final 
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 
EA above, the final action will likely reduce environmental risks posed 
by hazardous material rail incidents.
6. List of Preparers and Reviewers
Carolyn Nelson, P.E., PHMSA
Lydia Wang, PHMSA
7. Agencies and Persons Consulted
    PHMSA published this final rule 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 IAFC, 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.
    On June 27, 2023, PHMSA published an NPRM \76\ on this topic, and 
solicited comments from the regulated community and other interested 
parties on the implementation of real-time train consist information. 
PHMSA extended the comment period for an additional 60 days.\77\ PHMSA 
received 32 sets of comments to the NPRM, which are discussed in detail 
in Section IV above. In this final rule, PHMSA adopts modified 
requirements related to the delayed compliance period, information on 
the origin and destination of the train, the emergency notification 
required after an accident or incident, and the railroad's designated 
emergency point of contact based on comments submitted to the NPRM. 
Please see Section III.G and IV above for more details on the public 
input PHMSA received.
---------------------------------------------------------------------------

    \76\ Ibid 4.
    \77\ 88 FR 55430 (Aug. 15, 2023). https://www.govinfo.gov/content/pkg/FR-2023-08-15/pdf/2023-17472.pdf.
---------------------------------------------------------------------------

8. Finding of No Significant Impact
    As discussed in the EA 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 finds that the 
adopted action (All Railroads Alternative) will have no significant 
impact on the environment. This is based on the analysis presented in 
the ANPRM, NPRM, the final rule, supporting documents, and this EA.

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.

[[Page 52992]]

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 
Register,\78\ or on DOT's website at http://www.dot.gov/privacy.
---------------------------------------------------------------------------

    \78\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------

J. Executive Order 13609 and International Trade Analysis

    Executive Order 13609 (``Promoting International Regulatory 
Cooperation'') \79\ 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.
---------------------------------------------------------------------------

    \79\ 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 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 adopt voluntary consensus standards, and 
therefore the NTTAA does not apply.

L. Cybersecurity and Executive Order 14082

    Executive Order 14082 (``Improving the Nation's Cybersecurity'') 
\80\ 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, In October 2022 the TSA 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.\81\
---------------------------------------------------------------------------

    \80\ 86 FR 26633 (May 17, 2021).
    \81\ TSA, Security Directive No. 1580/82-2022-01, ``Rail 
Cybersecurity Mitigation Actions and Testing'' (Oct. 24, 2022).
---------------------------------------------------------------------------

    PHMSA has considered the effects of the final rule and has 
determined that its regulatory amendments would not materially affect 
the cybersecurity risk profile for rail transportation of hazardous 
materials. PHMSA acknowledges that the requirements within this final 
rule 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 it has 
adopted in this final rule (consistent with a mandate in Section 
7302(a)(5) of the FAST Act) explicit language at Sec.  174.28(d) 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 are affected by this final rule's 
requirements 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 
final rule's information-sharing requirements.

M. Severability

    The purpose of this final 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 final 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 final rule's unique provisions, 
the remaining provisions should stand and continue in effect.

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 amends 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 4 (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 
in its place a definition for ``train consist information'' to read as 
follows:

[[Page 52993]]

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 paper) form that includes: a railroad-
designated emergency response point of contact (including contact phone 
number) 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 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. 
Additionally, any update to the train consist information must be made 
and reflected in the electronic train consist information required 
pursuant to Sec.  174.28 of this subpart prior to continued movement of 
the train. The train crew may use electronic, radio communications, or 
other means to notify the railroad to update the electronic train 
consist information. Class III railroads complying with the alternative 
compliance requirements described in Sec.  174.28(c) of this subpart 
are not subject to the requirement to update 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 the 
train crew and use of electronic devices by the train crew in 
association with updates to train consist information requirements of 
this section and Sec.  174.28 of this subchapter must comply with 49 
CFR part 220, subpart C.

0
5. Add Sec.  174.28 to subpart B to read as follows:


Sec.  174.28  Electronic Train Consist Information.

    (a) Retention and notification requirements. Each railroad 
operating a train carrying hazardous materials must at all times 
maintain in electronic form, off the train, accurate train consist 
information as required in Sec.  174.26 of this subpart. Each railroad 
must make such electronic train consist information immediately 
accessible at all times to its designated emergency response 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, etc.), 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. (1) General requirements. When a train 
carrying hazardous materials is involved in either an accident 
requiring response from local emergency response agencies, or in an 
incident involving the release or suspected release of a hazardous 
material from a rail car in the train requiring response from local 
emergency response agencies, the railroad must immediately notify the 
primary Public Safety Answering Point (PSAP)--e.g., 9-1-1 call center--
telephonically that is responsible for the area where the accident or 
incident occurred and must separately notify the track owner (should 
the railroad transporting the hazardous materials not be the track 
owner) and forward train consist information in electronic form to the 
PSAP and track owner in a form they are capable of readily accessing 
(e.g., email, fax, software application, etc.).
    (2) Notification system test. At least annually, each railroad that 
operates trains carrying hazardous materials must test the notification 
system used to comply with the requirements of this paragraph. 
Railroads must:
    (i) Develop a testing protocol addressing frequency and locations 
to ensure reliability across all areas where the railroad operates 
trains carrying hazardous materials.
    (ii) Create a record of each system test that identifies at least 
the following information:
    (A) The date of the test;
    (B) The method used to provide the notification;
    (C) The name and location of the primary PSAP (e.g., 9-1-1 call 
center) and/or track owner to whom the notification was sent;
    (D) Whether or not the test notification was received and 
acknowledged; and
    (E) For system tests that are not immediately received and 
acknowledged, an analysis of the contributing factors to the failure 
and corrective actions taken by the railroad to prevent such a failure 
from recurring.
    (iii) Retain test records for at least five years.
    (c) Class III railroad alternative compliance requirements. In 
place of the requirements of paragraphs (a) and (b) of this section, a 
Class III railroad, as determined by the Surface Transportation Board 
under Sec.  1201.1-1 of this title, transporting hazardous materials 
may comply with the alternative procedures in this paragraph to provide 
accurate train consist information to 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. The 
Class III railroad must:
    (1) Develop a written plan that identifies the procedures for 
emergency notification and how the railroad will provide accurate train 
consist information in the event of an accident involving a train 
carrying hazardous materials requiring response from local emergency 
response agencies, or an incident involving the release or suspected 
release of a hazardous material from a rail car in the train requiring 
response from local emergency response agencies. This may be 
accomplished via the primary PSAP (e.g., 9-1-1 call center) responsible 
for the area where the accident or incident occurred. The written plan 
must assign

[[Page 52994]]

at least one person not on board the locomotive with the responsibility 
to provide accurate train consist information in addition to the train 
crew onboard the locomotive, unless there are no employees of the Class 
III railroad capable of fulfilling this function.
    (2) Notify emergency response organizations and primary PSAPs along 
their route about the contents of the written plan and any material 
changes to the plan made after the initial notification.
    (3) Enact the written plan when an accident involving a train 
carrying hazardous materials requiring response from local emergency 
response agencies, or an incident involving the release or suspected 
release of a hazardous material from a rail car in the train requiring 
response from local emergency response agencies occurs. The Class III 
railroad must provide immediate emergency notification telephonically 
to the primary PSAP (e.g., 9-1-1 call center) responsible for the area 
where the accident or incident occurred, and provide accurate train 
consist information to appropriate entities based on their written 
plan.
    (4) Retain a copy of this written plan at the Class III railroad's 
primary place of business and provide a copy to authorized 
representatives of the Department upon request.
    (5) Conduct a test, at least annually, of the procedures for 
emergency notification and transmission of accurate train consist 
information. Each Class III railroad must create a record of the test 
that includes at least the following information:
    (i) The date of the test;
    (ii) A brief description of the method of emergency notification 
and transmission of train consist information;
    (iii) The name and location of the recipient of the emergency 
notification and train consist information;
    (iv) Whether or not the test was successful in providing emergency 
notification and train consist information to the intended recipient;
    (v) For unsuccessful tests, an analysis of the contributing factors 
to the failure and corrective actions taken by the railroad to prevent 
such a failure from recurring.
    (6) Retain test records required in paragraph (c)(5) of this 
section for at least five years.
    (d) Security measures. Each railroad must implement security and 
confidentiality protections in generating, updating, providing, and 
forwarding train consist information in electronic or other 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 generating, updating, 
providing, and forwarding that information.
    (e) Provision of train consist information. No railroad may 
withhold, or cause to be withheld, the train consist information 
described in paragraphs (a), (b), or (c) 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 (d), 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, the definition ``train consist'' is removed.

    Issued in Washington, DC, on June 14, 2024, under authority 
delegated in 49 CFR 1.97.
Tristan H. Brown,
Deputy Administrator, Pipeline and Hazardous Materials Safety 
Administration.
[FR Doc. 2024-13474 Filed 6-21-24; 8:45 am]
BILLING CODE 4910-60-P