[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Rules and Regulations]
[Page 72181-72194]
[DOCID:fr26no08-18]

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Part III

Department of Transportation

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Pipeline and Hazardous Materials Safety Administration

Federal Railroad Administration

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49 CFR Parts 172, 174 and 209

Hazardous Materials: Enhancing Rail Transportation Safety and Security
for Hazardous Materials Shipments; Railroad Safety Enforcement
Procedures; Enforcement, Appeal and Hearing Procedures for Rail Routing
Decisions; Final Rules

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 174

[Docket No. PHMSA-RSPA-2004-18730] \1\
RIN 2137-AE02

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

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

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in
coordination with the Federal Railroad Administration (FRA) and the
Transportation Security Administration (TSA), is improving safety by
revising the current requirements in the Hazardous Materials
Regulations applicable to the safe and secure transportation of
hazardous materials by rail. We are requiring rail carriers to compile
annual data on certain shipments of explosive, toxic by inhalation, and
radioactive materials; use the data to analyze safety and security
risks along rail routes where those materials are transported; assess
alternative routing options; and make routing decisions based on those
assessments. We are also clarifying rail carriers' responsibility to
address in their security plans issues related to en route storage and
delays in transit. In addition, we are adopting a new requirement for
rail carriers to inspect placarded hazardous materials rail cars for
signs of tampering or the presence of suspicious items, including
improvised explosive devices. We adopted these requirements in an
interim final rule published April 16, 2008. This final rule fulfills
requirements in Section 1551 of the Implementing Recommendations of the
9/11 Commission Act of 2007. Also, in today's edition of the Federal
Register, both FRA and TSA are publishing final rules adopting
requirements and procedures that promote rail transportation security.
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    \1\ This rulemaking was formerly designated as HM-232E; however,
with the transition to a new government-wide regulations portal,
docket number nomenclature has since changed. Some references to the
old docket number are still present in this document.

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DATES: This final rule is effective December 26, 2008.

FOR FURTHER INFORMATION CONTACT: William Schoonover,<PHONE_NUMBER>,
Office of Safety Assurance and Compliance, Federal Railroad
Administration; or Susan Gorsky or Ben Supko,<PHONE_NUMBER>, Office of
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety
Administration.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 21, 2006, the Pipeline and Hazardous Materials Safety
Administration (PHMSA) in coordination with the Federal Railroad
Administration (FRA) and the Transportation Security Administration
(TSA), published a notice of proposed rulemaking (NPRM) under Docket
PHMSA-RSPA-2004-18730 (71 FR 76834) proposing to revise the current
requirements in the HMR applicable to the safe and secure
transportation of hazardous materials by rail. Specifically, we
proposed to require rail carriers to compile annual data on specified
shipments of hazardous materials, use the data to analyze safety and
security risks along rail routes where those materials are transported,
assess alternative routing options, and make routing decisions based on
those assessments. We also proposed clarifications of the current
security plan requirements to address en route storage, delays in
transit, delivery notification, and additional security inspection
requirements for hazardous materials shipments.
    On April 16, 2008, PHMSA, once again coordinating with FRA and TSA,
published an interim final rule (IFR) under Docket PHMSA-RSPA-2004-
18730 (73 FR 20751) that amended the Hazardous Materials Regulations
(HMR; 49 CFR Parts 171-180) to establish requirements that enhance the
safe and secure transportation of hazardous materials by rail. The IFR
requires rail carriers to compile annual data on certain shipments of
explosive, toxic by inhalation, and radioactive materials; use the data
to analyze safety and security risks along rail routes where those
materials are transported; assess alternative routing options; and make
routing decisions based on those assessments. It also clarifies that
each rail carrier must address issues related to en route storage and
delays in transit in its security plan. In addition, the IFR
establishes a new requirement for rail carriers to inspect placarded
hazardous materials rail cars for signs of tampering or suspicious
items, including improvised explosive devices (IEDs).
    We published the rulemaking as an IFR to account for changes
mandated by the Implementing Recommendations of the 9/11 Commission Act
of 2007 (9/11 Commission Act or Act) (Pub. L. 110-53; 121 Stat. 266).
Congress enacted the 9/11 Commission Act, which the President signed
into law on August 3, 2007, as the final rule was being developed for
the Docket PHMSA-RSPA-2004-18730 proceeding. The 9/11 Commission Act,
among other requirements, directed the Secretary of Transportation, in
consultation with the Secretary of Homeland Security, to publish a
final rule by May 3, 2008, based on a NPRM published under this docket
on December 21, 2006. We elected to publish the rule as an IFR rather
than a final rule to provide interested persons with an opportunity to
comment on changes made to the NRPM that directly relate to the
mandates established by the 9/11 Commission Act.
    In accordance with Section 1551(e) of the Act, PHMSA's final rule
must require rail carriers of ``security-sensitive materials'' to
``select the safest and most secure route to be used in transporting''
those materials, based on the rail carrier's analysis of the safety and
security risks on primary and alternate transportation routes over
which the carrier has authority to operate. Specifically, the final
rule must require such rail carriers to perform the following tasks
each calendar year:
    (1) Collect and compile security-sensitive commodity data, by
route, line segment, or series of line segments, as aggregated by the
rail carrier and identify the geographic location of the route and the
total number of shipments by UN identification number;
    (2) Identify practicable alternative routes over which the carrier
has authority to operate as compared to the current route for such
shipments;
    (3) Seek relevant information from state, local, and tribal
officials, as appropriate, regarding security risks to high-consequence
targets along or in proximity to a route used by a rail carrier to
transport security-sensitive materials;
    (4) Consider the use of interchange agreements with other rail
carriers when determining practicable alternative routes and the
potential economic effects of using an alternative route;
    (5) Analyze for both the primary route and each practicable
alternative route the safety and security risks for the route, railroad
facilities, railroad storage facilities, and high-consequence targets
along or in proximity to the route; these analyses must be in writing
and performed for each calendar year;
    (6) Compare the safety and security risks on the primary and
alternative routes, including the risk of a catastrophic release from a
shipment

traveling along these routes, and identify any remediation or
mitigation measures implemented on the primary and alternative
transportation routes; and
    (7) Use the analysis described above to select the practicable
route posing the least overall safety and security risk.
    In addition, the Act mandates that PHMSA require a covered rail
carrier, at least once every three years, to analyze its route
selection determinations, including a comprehensive, system-wide review
of all operational changes, infrastructure modifications, traffic
adjustments, changes in the nature of high-consequence targets located
along or in proximity to the route, or other changes affecting the
safety and security of the movements of security-sensitive materials
that were implemented since the previous analysis was completed.
Finally, the Act mandates that PHMSA require covered rail carriers to
retain in writing all route review and selection decision documentation
and restrict the distribution, disclosure, and availability of this
information to appropriate persons.
    In this final rule, we are responding to comments submitted on the
IFR that relate to our interpretation and application of Sec.  1551 of
the 9/11 Commission Act. To review rulemakings, regulatory evaluations,
environmental assessments, comments, or public meeting and
congressional briefing transcripts for this docket go to http://
www.regulations.gov under docket number PHMSA-RSPA-2004-18730.

II. Summary of Interim Final Rule

    Based on comments received in response to the NPRM and the
provisions of the 9/11 Commission Act, the April 16 IFR adopted the
following revisions to the HMR:
     Rail carriers transporting certain explosives, poisonous
by inhalation (PIH), and radioactive materials must compile information
and data on the commodities transported, including the routes over
which these commodities are transported.
     Rail carriers transporting the specified hazardous
materials must use the data they compile and relevant information from
state, local, and tribal officials, as appropriate, regarding security
risks to high-consequence targets along or in proximity to a route to
analyze the safety and security risks for each route used and
practicable alternative routes to the route used.
     Using these analyses, rail carriers must select the safest
and most secure practicable route for the specified hazardous
materials.
     In developing security plans required under Subpart I of
Part 172 of the HMR, rail carriers must specifically address the
security risks associated with shipments delayed in transit or
temporarily stored in transit.
     Rail carriers transporting the covered hazardous materials
must notify consignees of any significant unplanned delays affecting
the delivery of the hazardous material.
     Rail carriers must work with shippers and consignees to
minimize the time a rail car containing one of the specified hazardous
materials is placed on track awaiting pick-up, delivery, or transfer.
     Rail carriers must conduct security visual inspections at
ground level of rail cars containing hazardous materials to check for
signs of tampering or the introduction of an IED.
    The IFR became effective on June 1, 2008. Beginning January 1,
2009, rail carriers must compile information on the commodities they
transport and the routes they use for the six-month period from July 1,
2008 to December 31, 2008. Rail carriers must complete their data
collection by March 1, 2009. By September 1, 2009, rail carriers must
complete the safety and security analyses of routes currently utilized
and available alternatives, and select the safest, most secure routes
for transporting the specified explosive, PIH, and radioactive
materials. Beginning January 1, 2010, and for subsequent years, rail
carriers must compile information on the commodities they transport and
the routes used for the previous calendar year and complete route
assessments and selections by the end of the calendar year.

III. Comments in Response to the Interim Final Rule

    We received ten sets of comments in response to the IFR. The
majority of the comments were submitted by companies, but we also
received comments from a public interest group; a state government
agency; a county government agency; a university; and an industry
association. Overall, commenters are supportive of the rulemaking and
welcome enhanced routing requirements that promote the safe and secure
transportation of hazardous materials by rail. A major concern for rail
carriers is the requirement for consultation with state, local, and
tribal officials, as appropriate. Carriers suggest that it is
impractical for railroads to consult on a continuous basis with all
local governments along railroad rights-of-way. Several commenters also
suggest that DOT establish a process for evaluating transportation
safety and security risks across the entire rail transportation system,
including facilitating the analysis and selection of routes involving
more than one carrier. Some commenters suggest that the Federal
government should mandate specific routing for high-hazard materials
rather than provide rail carriers the discretion to make routing
decisions.
    The comments in the docket for this rulemaking may be reviewed at
http://www.regulations.gov under docket number PHMSA-RSPA-2004-18730.
For your convenience, a listing of the docket entries is provided
below.

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                   Name/company                                              Docket No.
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Contra Costa County Board of Supervisors..........  PHMSA-RSPA-2004-18730-0203
Friends of the Earth..............................  PHMSA-RSPA-2004-18730-0204
The Dow Chemical Company (Dow)....................  PHMSA-RSPA-2004-18730-0205
California Public Utilities Commission (CalPUC)...  PHMSA-RSPA-2004-18730-0206
The Dow Chemical Company (Dow)....................  PHMSA-RSPA-2004-18730-0207
Theodore S. Glickman..............................  PHMSA-RSPA-2004-18730-0208
Norfolk Southern Railway Company (Norfolk           PHMSA-RSPA-2004-18730-0211
 Southern).
The Association of American Railroads (AAR).......  PHMSA-RSPA-2004-18730-0212
PPG Industries (PPG)..............................  PHMSA-RSPA-2004-18730-0213
BNSF Railway Company (BNSF).......................  PHMSA-RSPA-2004-18730-0215
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IV. Discussion of Comments and Section-by-Section Analysis

    In the following paragraphs, we discuss the comments as they apply
to the 9/11 Commission Act and explain the impact of the comments on
the regulatory text in this final rule.

A. General (Sec.  172.820(a))

    In accordance with the IFR, rail carriers must implement enhanced
safety and security measures for shipments of the following classes and
quantities of hazardous materials:
    (1) More than 2,268 kg (5,000 lbs) in a single carload of a
Division 1.1, 1.2 or 1.3 explosive;
    (2) A bulk quantity of a PIH material, as defined in Sec.  171.8 of
the HMR; or,
    (3) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined in Sec.  173.403 of the HMR.
    Two commenters focus on the need to include additional hazardous
materials. CalPUC suggests that, while the rule will improve the safety
and security of rail shipments of explosive, PIH, and radioactive
materials, it will not adequately protect the public from accidents or
terrorist acts against other types of hazardous materials. CalPUC
recommends that the route selection requirements apply to flammable
gases, flammable liquids, hydrogen peroxide over 60 percent, Class 5
materials (ammonium nitrate), Class 6 materials (poisons), Class 8
materials (corrosives), and certain marine pollutants. Contra Costa
County raises similar concerns regarding the inclusion of liquefied
petroleum gas tank cars.
    As discussed in more detail in the IFR, PHMSA, FRA, and TSA
assessed the safety and security vulnerabilities associated with the
transportation of different types and classes of hazardous materials.
The list of materials to which the proposed enhanced safety and
security requirements apply is based on specific railroad
transportation scenarios. These scenarios depict how hazardous
materials could be deliberately used to cause significant casualties
and property damage or accident scenarios resulting in similar
catastrophic consequences. DOT and TSA determined that the materials
specified in the IFR present the greatest rail transportation safety
and security risks--because of the potential consequences of an
unintentional release of these materials--and are the most attractive
targets for terrorists--because of the potential for these materials to
be used as weapons of opportunity or weapons of mass destruction. While
DOT and TSA agree that materials identified by CalPUC and Contra Costa
County pose certain safety and security risks in rail transportation,
the risks are not as great as those posed by the explosive, PIH, and
radioactive materials specified in the IFR, and we are not persuaded
that they warrant the additional precautions required by the IFR. We
note that the hazardous materials listed by both commenters are
currently subject to the security plan requirements in Subpart I of
Part 172 of the HMR. Thus, shippers and carriers of these materials
must develop and implement security plans based on an assessment of the
transportation security risks posed by the materials. Security plans
must include measures to address personnel security, unauthorized
access, and en route security. DOT, in consultation with TSA, will
continue to evaluate the transportation safety and security risks posed
by all types of hazardous materials and the effectiveness of our
regulations in addressing those risks and will consider revising
specific requirements as necessary.
    The IFR applied the route analysis and selection requirements to
PIH residue shipments in bulk quantities. Several commenters request
that we exclude residue shipments from the list of hazardous materials
subject to the rail routing provisions, noting that rail security rules
proposed by Transportation Security Administration apply only to full
tank car loads of PIH materials. In addition, Dow notes that the term
``bulk quantity'' is not currently defined in the HMR and suggests that
if PHMSA decides to regulate residue quantities, we should define the
term in the final rule.
    As discussed in the IFR, we believe the safety risks posed by the
rail transportation of residue quantities of PIH materials should be
addressed through enhanced safety requirements, including route
assessments. Although target attractiveness from a security standpoint
is diminished for residue shipments, significant safety risks persist.
We continue to believe that these safety risks are reduced by a
requirement for residue quantities of PIH materials remaining in tank
cars to travel on the ``best'' route available--the route that
considers factors such as population density, emergency response
capabilities, environmentally-sensitive and significant areas, and
event venues. Dow is correct that the term ``bulk quantity'' is not
currently defined in the HMR. Our intention in the IFR was to require
residue shipments over 119 gallons to be subject to the route analysis
and selection criteria. In attempting to develop a definition for the
term ``bulk quantity,'' however, we realized that applying such a
definition to shipments of compressed gases, such as chlorine and
anhydrous ammonia, would be very difficult. Moreover, rail carriers do
not have the capability to ascertain the precise amount of residue that
may remain in a rail tank car; thus, attempting to distinguish residue
shipments that would be subject to the routing requirements from
residue shipments that would not would be virtually impossible. For
these reasons, in this final rule, we are clarifying that the data
collection, route analyses, and route selection requirements apply to
shipments of PIH materials, including residue shipments, in a bulk
packaging. We note that there will be few, if any, rail routes over
which only residue quantities of PIH travel. It is likely that the
routes used to transport these residue shipments also carry fully
loaded packages of PIH or one of the other hazardous materials covered
by this rulemaking, and that the routes would therefore be included in
a route analysis.

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

    The IFR requires rail carriers to begin compiling commodity data by
no later than 90 days after the end of the calendar year for the
previous calendar year for the covered hazardous materials, including
an identification of the routes utilized and the total number of
shipments transported. The data are to be used by the rail carriers to
identify the routes over which the specified hazardous materials are
transported and the number of shipments utilizing each route. Rail
carriers are required to analyze the safety and security risks of the
routes identified. This provision of the IFR is consistent with the 9/
11 Commission Act mandate that rail carriers collect and compile
security-sensitive commodity data, by route, line segment, or series of
line segments, as aggregated by the rail carrier, and identify the
geographic location of the route and the total number of shipments by
UN identification number. We did not receive comments addressing this
aspect of the IFR. Therefore, in this final rule, we are adopting the
commodity flow data collection requirements without change.
    AAR requests clarification of the actual date by which the
commodity flow data must be compiled in 2009. In addition, AAR seeks
clarification of IFR preamble language stating, ``For the initial route
analysis, we anticipate rail carriers will review the prior two-year
period when considering the criteria contained in Appendix D.'' (73 FR
20762).

    Section 172.820(b) requires commodity data to be compiled no later
than 90 days after the end of the calendar year; in 2009 the data must
be compiled by March 31. In addition, this section requires the initial
data to cover six months, from July 1, 2008 to January 31, 2008.
PHMSA's preamble language indicating that we anticipate that carriers
will review the data from the prior two years when conducting route
analysis was our opinion based on knowledge of the data that rail
carriers routinely collect. For their initial analysis, rail carriers
are only required to collect data from the six-month period described
in this section, additional data may be included, but is not required
by the IFR or this final rule. As discussed in more detail below, in
this final rule we are providing rail carriers the option to use data
for all of 2008 in conducting their initial route analyses. If a rail
carrier elects to utilize this option, its route analysis and selection
process must be completed by March 31, 2010.

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

    The IFR requires rail carriers to use the data collected in
accordance with Sec.  172.820(b) to analyze the rail routes over which
the specified materials are transported. Carriers must analyze the
specific safety and security risks for routes identified in the
commodity data and the railroad facilities along those routes.
Consistent with the 9/11 Commission Act, they are required to seek
relevant information from state, local, and tribal officials regarding
the security risks to high-consequence targets along or in proximity to
the route(s) utilized. If a rail carrier is unable to acquire relevant
information from state, local, or tribal officials, then it must
document that in its analysis. The route analyses must be in writing
and consider, at a minimum, a number of factors specific to each
individual route. A non-inclusive list of factors is provided in
Appendix D to Subpart I of Part 172.
    Several commenters express concern regarding the IFR requirement to
seek relevant information from state, local, and tribal officials
regarding the security risks to high-consequence targets along or in
proximity to a rail transportation route. Contra Costa County suggests
that state and local governments be given the opportunity to consult
with the railroads and provide all relevant information, rather than be
limited to providing specific data requested by the railroads.
According to Contra Costa County, local governments should have access
to the person who is managing the route analysis so they may request a
consultation with the railroad or provide information that goes beyond
the specific data requested by the railroad. In addition, Contra Costa
County suggests that the final rule specify the types of local agencies
that will be part of the consultation process.
    By contrast, Norfolk Southern indicates that emergency response
capability would be best served by receiving communication from a
single state agency, preferably the state homeland security agency.
Norfolk Southern also expresses concern regarding the overwhelming
amount of state and local correspondence railroads are likely to
receive as a result of this requirement. Norfolk Southern suggests the
creation of individual railroad Web sites that allow state and local
governments to provide data and information that rail carriers should
consider when they conduct route evaluations. Similarly, AAR suggests
that the Department of Homeland Security (DHS) designate high-
consequence targets along railroad lines and serve as the main source
of information on security risks to high-consequence targets. AAR also
suggests that communication between railroads and state and local
governments should, for the most part, be led by a single state agency
that advises the railroads on security matters concerning the state and
its local governments.
    As we noted in the IFR, among the factors to be considered by rail
carriers in conducting the safety and security analysis are population
density along the route; environmentally-sensitive or significant
areas; venues along the route (stations, events, places of
congregation); emergency response capability along the route; measures
and countermeasures already in place to address apparent safety and
security risks; proximity to iconic targets; and areas of high
consequence along the route. State and local governments may well be
able to assist rail carriers in identifying and assessing this type of
information. Moreover, state and local government entities may also be
able to assist rail carriers in addressing any safety or security
vulnerabilities identified along selected routes, in the scheduling of
public events, for example, or enhancing emergency response
capabilities. For these reasons, we agree with commenters that rail
carriers should seek the broadest possible input from state and local
governments as they conduct route analyses. We also agree with Contra
Costa County that designation of a single point of contact for routing
issues at each railroad would help to facilitate communication and
interaction between rail carriers and state and local governments.
    At the same time, we recognize the difficulties that rail carriers
may encounter in seeking information from every community along a given
route and appreciate the need to simplify such interactions to the
greatest extent practicable. We believe that rail carriers should have
the flexibility to establish mechanisms to accomplish the required
consultations that are tailored to each railroad's specific
circumstances, routes, and operating environments. Web-based systems
for providing and assessing state and local concerns, as suggested by
Norfolk Southern, are certainly options that may prove to be very
effective. Alternatively, a railroad may wish to work with state
governments to establish a state government focal point for
consolidating and communicating local government concerns.
    Since 2003, many states and larger cities have created State and
Local fusion centers, and States have created regional fusion centers
to share security and first responder information and intelligence
within their jurisdictions as well as with the Federal government.
Fusion centers vary from State to State, but most contain similar
elements, including members of State law enforcement, public health,
social services, public safety, and public works organizations.
Increasingly, Federal agencies such as the Department of Homeland
Security, Federal Bureau of Investigation, Drug Enforcement
Administration, and Bureau of Alcohol Tobacco, Firearms, and Explosives
have stationed representatives at State-level fusion centers. Most
centers operate as ``all hazard'' centers, addressing all types of
emergencies, and not just those that might be related to homeland
security or terrorism. As of March 2008, there were 58 fusion centers
around the country.
    Railroads have been coordinating with these fusion centers on
railroad police and security issues, and the Federal government has
officially recognized the importance of these centers in addressing
security issues. The 9/11 Commission Act recognized the importance of
fusion centers and established a DHS State, Local, and regional fusion
center initiative to foster partnerships between centers at all levels
of government. Specific language provided at 6 U.S.C. 124(h)
establishes: (1) DHS responsibility to support and coordinate with the
fusion centers; (2) authority and guidelines for assigning DHS
personnel to state fusion centers; (3) uniform guidelines for fusion
centers; and (4) funding of $10 million

per year for each of fiscal years 2008-2012 to carry out the Fusion
Center Initiative. Since 2001, the Federal government has provided some
$380 million to help fund fusion centers that meet guidelines jointly
established by DHS and the Department of Justice.
    In this final rule, in response to comments related to simplifying
and facilitating coordination on routing issues between rail carriers
and state and local governments, PHSMA is modifying the IFR to require
rail carriers to designate a single point of contact (including the
name, title, phone number and e-mail address) on routing issues, and to
provide this information to: (1) The State and regional fusion centers
located in the portion of the country encompassed by their rail
systems; and (2) State, Local, and Tribal officials in jurisdictions
that may be affected by a rail carrier's routing decisions who directly
contact the railroad to discuss these decisions.
    States, Local Governments, and Indian tribes may contact the State
and regional fusion centers to obtain rail carriers' point of contact
information. The Department of Homeland Security's National Operation
Center is available 24 hours a day to facilitate public and private
entities locating and contacting their State or regional fusions
centers; the Center's contact number is<PHONE_NUMBER>. States, Local
Governments, and Indian tribes will have the flexibility to directly
consult with rail carriers on matters affecting the railroads' routing
decisions, or channeling this information to the railroads through the
fusion centers.
    PHMSA and FRA note that we are working with DHS to provide
railroads with information regarding high-consequence targets, as
specified in the 9/11 Commission Act.
    The AAR reiterates its comment that PHMSA should adopt a shipment
threshold to trigger the route analysis requirement. Specifically, AAR
suggests that if there are no more than 15 shipments along a particular
route then the route analysis established by the IFR should not be
required. AAR comments utilizing such a threshold eliminates
unnecessary analysis of routes used only in emergencies and other
unique circumstances.
    As we stated in the IFR, we are declining to adopt such a
threshold. We understand that there may be times when a route is used
that would not normally be used in the everyday course of business, and
we would expect the analysis to demonstrate that the routing was out of
the ordinary. We believe there is utility in doing such an analysis
even on a little-used route. Traffic densities and circumstances may
change, and natural disasters such as floods and hurricanes may occur.
There is an advantage in knowing the characteristics, risks and
necessary mitigating measures for a route that may have to be used,
even in temporary emergency circumstances.

D. Alternative Route Analysis (Sec.  172.820(d))

    Consistent with 9/11 Commission Act requirements, the IFR requires
carriers to analyze and assess the feasibility of all available
alternative routes over which they have authority to operate in
addition to the routes normally and regularly used for hazardous
materials movements. Practicable routes (or routes that are feasible
options, both logically and commercially) must be identified and
analyzed using, at a minimum, the Rail Risk Analysis Factors of
Appendix D to Part 172. Rail carriers must retain a copy (or an
electronic image thereof) of all route review and selection decision
documentation used when selecting the safest and most secure
practicable route available. This documentation should include, but is
not limited to, comparative analyses, charts, graphics, or rail system
maps.
    In accordance with Sec.  1551 of the 9/11 Commission Act,
alternative routes must consider the use of interchange agreements. For
the purposes of route selection, interchange agreements allow railroads
to exchange railcars at specified junction point where rail lines of
two or more different railroads meet. Interchange agreements may
increase the number of available routes for certain shipments. Routes
that utilize interchange agreements may provide a safer, more secure
routing option than would otherwise be available.
    Overall, rail carriers must account for safety and security risks;
comparison of safety and security risks to the primary route, including
the risk of catastrophic release; any remediation or mitigation
measures taken; and potential economic effects. The goal of the routing
analysis requirement is to require that each route used for the
transportation of the specified hazardous materials is the one
presenting the fewest overall safety and security risks. If the use of
an alternative route would significantly increase a carrier's operating
costs, as well as the costs to its customers, the carrier should
consider and document the cost in its route analysis.
    We received several comments on this section of the IFR. One area
of concern for commenters is the role that economic factors play in
selecting ``practicable'' alternative routes. Friends of the Earth
asserts that these requirements will spare railroads from any
inconvenience or even minor expense in having to re-route cargoes onto
available alternative routes and suggests that we have put
``practicability'' on par with safety and security. CalPUC contends
that it is not reasonable to make costs to railroads and shippers the
ultimate determinant for routing decisions and suggests that in doing
so, we have excluded the overall costs and damages to the nation and
its population in general. Contra Costa County asserts that the IFR
provides too much opportunity for the railroads to let economic
concerns drive the process. According to Contra Costa County, the
railroads should be required to analyze all possible routes on safety
factors alone to determine the safest route.
    We do not agree that the consideration of the ``practicability'' of
specific routes will result in routing decisions that are driven solely
by economic considerations. Rail carriers must assess available routes
using the 27 factors listed in Appendix D to Part 172 to determine the
safest, most secure routes. The factors address both safety and
security issues, such as the condition of the track and supporting
infrastructure; the presence or absence of signals; past incidents;
population density along the route; environmentally-sensitive or
significant areas; venues along the route (stations, events, places of
congregation); emergency response capability along the route; measures
and countermeasures already in place to address apparent safety and
security risks; and proximity to iconic targets. However, when carriers
consider the ``practicability'' of a specific route some consideration
must be given to economic factors. We note in this regard that the
Congress recognized this by including in Sec.  1551(d) of the 9/11
Commission Act a requirement for the alternative route analyses to
include the potential economic effects of using an alternative route.
In accordance with the IFR, rail carriers must balance economic factors
with safety and security factors in making route selections. If using a
possible alternative route would significantly increase a carrier's
operating costs, as well as the costs to its customers, the carrier
should consider and document these facts in its route analysis.
    Several commenters address the use of interchange agreements
between rail carriers when determining practicable alternative routes.
Friends of the Earth asserts that the key flaw in the IFR is that it
does not force a railroad to ``interchange'' its most dangerous cargo

over to another railroad to go around a target city. Theodore Glickman
suggests that because we require railroads to consider only routes over
which they have authority to operate, we are missing an opportunity for
identifying routes that reduce time in transit and pose fewer safety
and security risks. PPG states that carriers should be required to work
together to select the safest, most secure routes. Dow and AAR both
suggest that we consider mechanisms, including 49 U.S.C. 333, that
would assist a rail carrier in analyzing the safety and security risks
of an alternative route over which it has no authority to operate. AAR
notes that the Sec.  333 conference discussed in the IFR appears to be
the best way to conduct discussions of rerouting through interchanges.
    The requirement in the IFR for railroads to consider interchange
agreements as they identify and assess alternative routes is consistent
with the 9/11 Commission Act. The Act does not mandate the use of
interchange agreements. However, we agree with Dow and AAR that safety
and security would be further enhanced if rail carriers could together
evaluate the safety and security of routes across the entire rail
transportation system. We also agree that utilizing existing statutory
authority under 49 U.S.C. 333, which provides relief for potential
antitrust concerns, provides a mechanism to facilitate a systems
approach to evaluating and mitigating safety and security risks.
Section 333 authorizes the FRA Administrator, as delegate of the
Secretary of Transportation, to convene conferences at the request of
one or more railroads to address coordination of operations and
facilities of rail carriers in order to achieve a more efficient,
economical, and viable rail system. Persons attending a Sec.  333
conference are immune from antitrust liability for any discussions at
the conference, and can also receive immunity for any resulting
agreements that receive FRA approval. As discussed in the IFR, in 2005,
FRA convened a conference under this authority to discuss ways to
minimize security and safety risks associated with the transportation
of PIH materials. FRA plans to consider ways to expand this conference
to provide a forum for rail carriers to evaluate the safety and
security of the covered hazardous materials across the entire rail
system, and specifically to evaluate risk-reducing arrangements on a
national scale. FRA will also consider including shippers as part of
the conference.
    We continue to believe that the route analyses and selection
requirements in the IFR will reduce safety and security risks
associated with the rail transportation of explosive, PIH, and
radioactive materials. We are not convinced that mandating the use of
interchange agreements as part of this process is the most effective
way to reduce risk across the entire rail transportation system.
Rather, we believe that the next step should be the joint shipper-
carrier consultations described above. Therefore, we are adopting the
alternative route analysis requirements as established by the IFR.

E. Route Selection (Sec.  172.820(e))

    Consistent with requirements in the 9/11 Commission Act, the IFR
requires a carrier to use the analysis, including any remediation
measures implemented on a route, to select the route posing the least
overall safety and security risk. In selecting a route, the carrier
must analyze the safety and security risk for both the primary route
and each practicable alternative route including railroad facilities,
railroad storage facilities, and high-consequence targets along or in
proximity to the route. The analyses must be in writing and performed
for each calendar year. Carriers must compare the safety and security
risks on the primary and alternative routes, including the risk of a
catastrophic release from a shipment traveling along these routes, and
identify any remediation or mitigation measures implemented on the
primary and alternative transportation routes. The route selection
documentation and underlying data will qualify as sensitive security
information (SSI), will be handled in accordance with the SSI
regulations at 49 CFR Parts 15 and 1520, and may be distributed only to
``covered persons'' with a ``need to know.'' State and local government
officials generally are considered to be ``covered persons'' with a
``need to know'' for purposes of sharing data and information
applicable to a railroad's route analysis.
    One commenter, Contra Costa County, suggests that the analysis and
route selection performed by the rail carriers should be made available
to local law enforcement, fire, and public health/hazardous materials
officials. It also suggests that a distribution chain be established so
these agencies can review the route analysis methodology and results of
the railroads.
    Similar comments were addressed during the IFR stage of this
rulemaking proceeding. Specifically, in its comments on the December
2006 NPRM, the City of Cleveland, Ohio, suggested that we revise the
proposal in the NPRM to require rail carriers to share the commodity
data with local governments responsible for the geographic areas
through which hazardous materials are transported. In the preamble to
the IFR, we agreed that state and local governments should have access
to such information, provided access to the information is limited to
those with a ``need to know'' for transportation safety and security
purposes, and further provided that such information may not be
publicly disclosed pursuant to any state, local, or tribal law. (73 FR
20759). Again, as part of a vulnerability assessment, the commodity
data that will be collected by the railroads will qualify as SSI and
will be handled in accordance with those regulations. Because of the
security sensitivity of the data and route selection information, it is
not appropriate for it to be broadly disclosed to government or private
entities. State and local governments may contact FRA to voice concerns
and request an inspection of a route plan, security vulnerability, or,
more generally, a rail carrier.
    Some of the comments raise issues discussed in the IFR, including
the availability of rail routing tools and accounting for persons that
are more susceptible to exposure from the listed hazardous materials.
Contra Costa County asks that rail routing tools be made available to
local parties upon request, along with an explanation of how the tool
functions and suggests that local governments have an opportunity to
appeal the railroad's finding, through a process identified in the
final rule for resolving disputes.
    Tools used by railroads to complete the route analyses and
selection process mandated by this rule will include sensitive
information that should not be broadly disseminated. However, we agree
that sharing information with state or local government officials about
how a rail carrier performed its route analysis and made its route
selections could be beneficial to both the carrier and the affected
government jurisdictions. Such information will qualify as SSI and must
be handled in accordance with SSI regulations, but nothing in this
final rule is intended to prohibit sharing of this information upon
request to ``covered persons'' with a ``need to know.''
    We do not believe it is necessary to provide a separate process for
local governments to appeal railroad route selections to FRA. FRA has a
process in place under which state and local governments may contact
FRA to voice concerns about route selections and request an inspection
of a route plan, security vulnerability, or, more generally, a rail
carrier.

    In its comments, AAR suggests that we clarify the meaning of the
statement ``subpopulations particularly susceptible to such risk and/or
more highly exposed'' as used in the preamble of the IFR in regard to
the population included in the rail carrier's route selection analysis.
(73 FR 20763). When assessing the safety and security risks along a
specific route, carriers must consider possible impacts to the total
population in proximity to that route. In addition, carriers should
consider possible impacts on subpopulations--such as children or the
elderly--if there are locations or facilities such as schools,
hospitals, or assisted living facilities along the route or if such
subpopulations are a disproportionate part of the population as a
whole.
    Some commenters, including BNSF, suggested that PHMSA should
dictate to the carriers the routes to be used for transportation of the
covered hazardous materials. BNSF has also suggested that once FRA has
completed its review of a rail carrier's route selection, the route
selected by the carrier should be classified as an approved route. The
9/11 Commission Act does not direct the Federal Government to mandate
specific rail routes for security-sensitive materials; rather Sec.
1551 of the Act specifically directs the Secretary of Transportation
to, through this final rule, require rail carriers to select the safest
and most secure routes for the movement of these materials. We continue
to believe that rail carriers are in the best position to select the
safest and most secure routes, taking into consideration mitigation
measures that they may wish to implement to address safety and security
vulnerabilities they identify.
    As explained in the IFR, we are not requiring rail carriers to
submit their route analyses and route selections to DOT for approval.
Federal review and approval of these analyses would be resource-
intensive and time-consuming and could result in shipment delays if a
rail carrier had to await approval from DOT prior to transporting
hazardous materials along the routes it identified as posing the fewest
safety and security risks. Moreover, the 9/11 Commission Act does not
provide for an approval process for route selections made by rail
carriers. That being said, we intend to aggressively oversee railroads'
route analyses and route selection determinations and will use all
available tools to enforce compliance with the rule. As the agency with
primary responsibility for railroad safety enforcement, FRA will
incorporate review and inspection of route analyses and selections into
its inspection programs. FRA inspectors may offer suggestions for
modifying or improving the analysis or make changes to a route if the
route selection documentation or underlying analysis is found to be
deficient. If an inspector's recommendations are not implemented, FRA
may compel a rail carrier to make changes and/or assess a civil
penalty. Further, if the carrier's chosen route is found not to be the
safest and most secure practicable route available, FRA may require the
use of an alternative route.
    After consideration of comments received, in this final rule, we
are adopting the requirements applicable to route selection as
established by the IFR.

F. Completion of Route Analysis (Sec.  172.820(f))

    The IFR requires rail carriers to conduct their initial rail
transportation route analysis, alternative route analysis, and route
selection by September 1, 2009, based on routing data for the six month
period from July 1, 2008 to December 31, 2008. In subsequent years, the
rail transportation route analysis, alternative route analysis, and
route selection, including a comprehensive review of all operational
changes, infrastructure modifications, traffic adjustments, or other
changes implemented, must be conducted no later than the end of the
calendar year following the year to which the analyses apply.
    In its comments, AAR suggests that the September 1, 2009, deadline
for completing an initial route analysis and route selection may be
difficult for rail carriers to meet. AAR explains that the first set of
analyses will be resource-intensive and time-consuming and that
subsequent analyses will be less so because they can build off previous
analyses. AAR suggests that its member railroads would be willing to
analyze data for a full year in 2009 (data for all of 2008) in return
for elimination of the special September 1 deadline for route analyses
in 2009.
    We recognize that the IFR established an aggressive timeline for
completion of an initial route analysis and route selection process.
The IFR provides over 16 months (from April 16, 2008 to September 1,
2009) for completion of this process. We believe that the safety and
security risks addressed in the IFR warrant an aggressive approach.
However, we recognize that in some cases the last six months of 2008
data may not accurately reflect the seasonality of the rail movement of
certain PIH materials (such as anhydrous ammonia) on some carriers, and
that an analysis of data for all of 2008 may help facilitate the review
in the subsequent year. In this final rule, therefore, we are providing
the following options for completing the initial route analysis,
alternative route analysis, and route section: (1) A rail carrier may
complete the process by September 1, 2009, as established in the IFR,
using data for the six month period from July 1, 2008 to December 31,
2008; or (2) a rail carrier may complete the process by March 31, 2010,
using data for all of 2008, so long as the rail carrier notifies FRA in
writing by September 1, 2009, that it has chosen this second option.
    Several commenters also addressed our decision to require rail
carriers to conduct an annual comprehensive review of the route
analysis and selection process rather than once every three years.
Section 1551(g) of the 9/11 Commission Act requires rail carriers to
perform a comprehensive review of its route selection determinations at
least once every three years. The analysis is to include a system-wide
review of all operational changes, infrastructure modifications,
traffic adjustments, changes in the nature of high-consequence targets
located along or in proximity to the route, and any other changes
affecting the safety and security of the movement of security-sensitive
materials that were implemented since the previous analysis was
completed.
    Dow requests that we amend the IFR to require the comprehensive
review to be completed once every three years. Dow suggests that PHMSA
lacks support in the current administrative record to impose an unduly
burdensome annual comprehensive review requirement. On the other hand,
CalPUC provided comments in strong support of the requirement to
perform comprehensive reviews on an annual basis.
    As we indicated in the IFR, we believe there is value in conducting
an annual review of the route analysis even in the absence of changes
to the way a carrier operates. Conditions along the selected routes may
change, for example, or there may be changes affecting other factors
utilized in the analyses, such as incidents on the selected route, the
capabilities of local emergency response agencies, or venues located in
proximity to the selected route. Again, performance of the initial data
gathering and analysis will be the most burdensome. We expect that the
subsequent yearly analyses will build on the initial analysis and will
be easier to do. Therefore, we are adopting the annual comprehensive
review

requirement as established by the IFR in this final rule.

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

    The IFR clarifies that rail carriers must address delays in transit
and en route storage in their security plans. Thus, rail carrier
security plans must include: (1) A procedure for consulting with
offerors and consignees to minimize the time a material is stored
incidental to movement; (2) measures to limit access to the materials
during storage and delays in transit; (3) measures to mitigate risk to
population centers during storage incidental to transportation; (4)
measures to be taken in the event of an escalating threat level during
storage incidental to transportation; and (5) a procedure that is
acceptable by both the rail carrier and consignee for notifying the
consignee in the event of transportation delays.
    The IFR included language to the effect that all affected parties
should agree upon measures to be implemented by the rail carriers to
minimize the time that PIH, explosive, and radioactive materials are
stored in transit. In its comments, AAR suggests that this provision of
the IFR unnecessarily restricts rail carriers' flexibility. According
to AAR, customers often lack incentive to reduce storage on railroad
property because of their own lack of storage capacity. AAR notes that
railroads welcome opportunities to discuss with their customers ways of
minimizing the extent to which cars may be delayed on railroad property
due to the inability of their customers to receive cars. Norfolk
Southern agrees with AAR's comments and adds that if the parties cannot
agree, then the railroad carrier must have the final say concerning
storage occurring on the railroad's own property.
    The intent of the requirement in Sec.  172.820(g)(1) is to
establish a procedure that provides an opportunity for offerors and
consignees to work with rail carriers to minimize incidental storage of
shipments. It was not our intention to limit a carrier's flexibility
concerning the storage of rail cars on railroad property. We are aware
that rail carriers have worked closely with TSA to voluntarily
implement measures to reduce the number of hours PIH cars are held in
high-threat urban areas. Therefore, in this final rule, we are removing
the sentence in Sec.  172.820(g)(1) that suggests that all parties
should agree on measures to be implemented to minimize the time that
rail cars are stored in transit.
    AAR also requests clarification of the phrase ``formally consult,''
as it applies to the rail carriers working with offerors and consignees
to minimize storage incidental to transportation. The requirement for a
``formal'' procedure should not be read to imply that rail carriers
must develop an agenda for the meeting or maintain documentation to
keep a record of the consultation. By requiring that the process be
formal, we are simply indicating that rail carriers must make offerors
and consignees fully aware of the process and how it will work. The
procedure should involve offerors and consignees when storage decisions
are made that directly affect their operations. The consultation
requirement may be met as part of the normal course of communication
between the railroad and its customers.

H. Recordkeeping (Sec.  172.820(h))

    Consistent with requirements in the 9/11 Commission Act, in the
IFR, we require each rail carrier to maintain an accessible copy of the
information and analyses associated with the collection of commodity
data and route assessment and selection processes. We further require
the distribution of such information to be limited to ``covered
persons'' with a ``need to know'' in accordance with SSI regulations in
49 CFR Parts 15 and 1520. There were no comments in response to this
paragraph; therefore, we are adopting it as established by the IFR.

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

    In the IFR, we require carriers to revise their analyses or make
changes to a route if the route selection documentation or underlying
analyses is found to be deficient. In addition, if the carrier's chosen
route is found not to be the safest and most secure practicable route
available, the FRA Associate Administrator for Safety, in consultation
with TSA, may require the use of an alternative route until such time
as identified deficiencies are satisfactorily addressed. FRA and TSA
will consult with the Surface Transportation Board regarding whether
the contemplated alternative route(s) would be economically
practicable.
    One commenter specifically addressed the requirements in this
section. AAR asks if field inspectors will have the capability to
perform route analyses. It suggests that the level of detail involved
in the route analysis would make it difficult for inspectors to have
the capability to perform route analyses during an inspection. AAR
recommends that Federal agencies should designate the employees
requiring access to route analyses and provide the railroads with a
list of those employees to facilitate coordination between the
railroads and Federal agencies.
    FRA will continue to coordinate closely with the railroads in its
inspection and enforcement activities, including review of security
plans and route analyses. We note concerning the AAR comments that
FRA's enforcement role is to review the railroads' analyses, not to
perform them. FRA employees will be capable of reviewing a rail
carrier's route analyses and route selections to ensure compliance with
the requirements of this final rule. Further, FRA and its employees
will comply with the existing SSI regulations with regard to the
handling of the route analyses and the underlying commodity data. Only
FRA employees who are ``covered persons'' with a ``need to know'' under
the SSI regulations at 49 CFR Parts 15 and 1520 will access the routing
analyses and data. 9 CFR Part 1 outlines enforcement authority for the
modal administrations within DOT. In the hazardous materials arena,
modal administrations share broad authority over all modes regardless
of agency. In accordance with a DOT-wide memorandum of understanding
that delineates normal areas of activity for each modal administration,
FRA expects to utilize inspectors from various disciplines as well as
other modal partners when evaluating rail carrier compliance with these
regulations.
    In addition, FRA plans to work closely with TSA to develop a
coordinated enforcement strategy to include both FRA and TSA inspection
personnel. We note in this regard that while TSA has broad
responsibility and authority under the Aviation and Transportation
Security Act for security in all modes of transportation, TSA does not
have the authority to enforce safety or security requirements
established in the HMR. If in the course of an inspection of a railroad
carrier or a rail hazardous material shipper, TSA identifies evidence
of non-compliance with a DOT security regulation, TSA will provide the
information to FRA and PHMSA for appropriate action. TSA will not
directly enforce DOT security rules and will not initiate safety
inspections. In accordance with the PHMSA-TSA and FRA-TSA annexes to
the DOT-DHS MOU, all the involved agencies will cooperate to ensure
coordinated, consistent, and effective activities related to rail
security issues.
    Another commenter, PPG, fully supports the intent of this
rulemaking and believes it will aid in the safe and secure
transportation of hazardous materials. However, PPG questions whether a
risk assessment is necessary

before a rail carrier can accept a shipment for a new route The concern
is that the rail carrier will have the right to refuse to accept a
shipment until a risk assessment can be done. According to its
comments, PPG does not believe this is the intent of the rule but wants
some assurance that the rail carriers cannot refuse a shipment based on
this rulemaking.
    We do not intend for the provisions of this rule to impede the
everyday commerce of hazardous materials, or to change the common
carrier obligation of the railroads to handle security-sensitive
materials that shippers tender to them for shipment. In the event that
a railroad accepts a new shipment with a new route, we would expect the
railroad to document this new data in its annual data compilation, and
to note any new routes, risk factors, and mitigation measures in its
analysis. Since new routes are often discussed long before the initial
shipment, if the carrier has knowledge of the expected shipments when
it conducts its initial or subsequent reviews it should include this
information as part of the decision-making process.

J. Federal Preemption (Sec.  172.822)

    We addressed the preemptive effect of the IFR by clarifying that
state and local regulation of rail routes for shipments of hazardous
materials is preempted under both the Federal Hazardous Materials
Transportation Law (Federal Hazmat Law; 49 U.S.C. 5125) and the Federal
Rail Safety Act (49 U.S.C. 20106). All comments that were addressed
supported the proposed language; therefore, we are adopting it as
established by the IFR.

K. Rail Risk Analysis Factors (Appendix D to Part 172)

    The IFR adopts minimum criteria in Appendix D to Part 172 to be
used by rail carriers when performing the safety and security risk
analyses required by Sec.  172.820. We listed 27 factors in this
appendix for carriers to consider in the analyses. The IFR adopted the
27 factors as proposed in the NPRM, with modifications for consistency
with requirements of the 9/11 Commission Act. Specifically, the IFR
added high consequence targets, as defined in Sec.  1551(h)(2), to the
list of factors that must be considered.
    The comments submitted in response to this section reiterate
comments made to the NPRM. BNSF expresses concern that the IFR does not
provide any direction as to how the 27 factors are to be prioritized
and requests that PHMSA provide guidance on the comparative weight or
prioritization that it assigns to each factor. Theodore Glickman
suggests that the 27 factors far exceed the number that should be
included and recommends that emphasis should be placed on the
identification of the most important factors and developing the
database required to evaluate those factors. In its comments, Norfolk
Southern expresses support for the factors and agrees with the agency's
decision not to arbitrarily weight or rank the factors and recognize
that weighting of the individual factors listed in Appendix D may vary
upon the circumstances and/or the region in which the rail carrier
operates.
    As we stated in the IFR, the weighting of the factors is an
extremely important aspect of an overall safety and security risk
assessment methodology. However, we do not believe that prioritizing or
limiting the number of factors will allow rail carriers the flexibility
necessary to account for unique track conditions and localized
concerns. We expect carriers to make conscientious efforts to develop
logical and defendable systems using these factors. Tools to assist
rail carriers to use the factors to assess the safety and security
vulnerabilities of specific routes, including how to weight the factors
in performing the analysis, are available from a variety of sources. In
addition, DOT and DHS are finalizing a route analysis tool under a
grant from the Federal Emergency Management Agency (FEMA). This web-
based, interactive tool will assist rail carries to identify route
characteristics using the 27 factors and to weigh safety and security
impacts, thereby providing a standardized, consistent approach to the
process of selecting safe and secure rail routes for high-risk
hazardous materials. In addition, the tool provides a methodology for
assessment of consequences for a specific commodity released at a
specific point on a rail line; assessing natural hazard risks for a
specific rail asset; and for corridor analysis entailing a review of
all route or asset analysis results for a given rail corridor (i.e.,
geographic area). We expect this analysis tool to be available in 2008.
    We addressed similar comments regarding the rail risk analysis
factors in the IFR. After thoroughly reviewing the comments submitted
in response to the IFR, we are confident that the list of rail risk
analysis factors is sufficient. The flexibility provided is necessary
to allow rail carriers to fully assess the potential routes. Therefore,
this final rule adopts Appendix D to Part 172 as established by the
IFR.

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

    The IFR increases the scope of the currently required rail car
safety inspection to include a security inspection of all rail cars
carrying placarded loads of hazardous materials. The primary focus of
the enhanced inspection is to recognize an IED, which is a device
fabricated in an improvised manner incorporating explosives or
destructive, lethal, noxious, pyrotechnic, or incendiary chemicals in
its design, and generally including a power supply, a switch or timer,
and a detonator or initiator. The IFR requires the rail carriers' pre-
trip inspections of placarded rail cars to include an inspection for
signs of tampering with the rail car, including its seals and closures,
and an inspection for any item that does not belong, is suspicious, or
may be an IED. When an indication of tampering or a foreign object is
found, the rail carrier must take appropriate actions before accepting
the rail car for further movement; the carrier will verify that the
rail car is secure and its contents have not been compromised.
Instructional materials have been developed by TSA that may be used by
rail carriers to train their employees on detection of tampering and
identification of IEDs. The comments submitted in response to the IFR
do not address the pre-trip security inspections. Therefore, we are
adopting Sec.  174.9 as established by the IFR.

VII. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of the Federal Hazmat
Law. Section 5103(b) of Federal Hazmat Law authorizes the Secretary of
Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. In addition, this final rule is published under
authority of the 9/11 Commission Act. Section 1551 of the 9/11
Commission Act directs the Secretary of Transportation, in consultation
with the Secretary of Homeland Security, to publish a final rule by May
3, 2008, based on the NPRM published under this docket on December 21,
2006. In accordance with Sec.  1551(e) of the Act, PHMSA's final rule
must require rail carriers of ``security-sensitive materials'' to
``select the safest and most secure route to be used in transporting''
those materials, based on the rail carrier's analysis of the safety and
security risks on primary and alternate transportation routes over

which the carrier has authority to operate.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is a significant regulatory action under Sec.  3(f)
Executive Order 12866 and, therefore, was reviewed by the Office of
Management and Budget (OMB). The final rule is a significant rule under
the Regulatory Policies and Procedures order issued by the DOT (44 FR
11034). We completed a regulatory evaluation and placed it in the
docket for this rulemaking.
    Generally, costs associated with the provisions of this final rule
include the cost for collecting and retaining data and performing the
mandated route safety and security analysis. We estimate total 20-year
costs to gather the data and conduct the analyses established by this
final rule to be about $20 million (discounted at 7%).
    In addition, rail carriers and shippers may incur costs associated
with rerouting shipments or mitigating safety and security
vulnerabilities identified as a result of their route analyses. Because
the final rule builds on the current route evaluation and routing
practices already in place for most, if not all, railroads that haul
the types of hazardous materials covered, we do not expect rail
carriers to incur significant costs associated with rerouting. The
railroads already conduct route analyses and re-routing--in line with
what this rule would require--in accordance with the AAR comments and
AAR Circular OT-55-I. Moreover, the smaller carriers (regionals and
short lines) are unlikely to have access to many alternative routes,
and where an alternative does exist, it is not likely to be safer and
more secure than the route they are currently using. If there is an
alternative route the carrier determines to be safer and more secure
than the one it is currently using, the carrier could well switch
routes, even in the absence of a regulatory requirement, because it
reduces the overall risk to its operations. Such reduction in risk
offers a significant economic advantage in the long run.
    Identifying and mitigating security vulnerabilities along rail
routes are currently being done by the railroads. We believe that
readily available ``high-tech'' and ``low-tech'' measures are being
quickly implemented. The development, procurement, and wide-spread
installation of the more technology-driven alternatives could take
several years. However, PHMSA's previous security rule requires the
railroads to have a security plan that includes en route security. This
existing regulatory requirement, coupled with industry efforts to
address security vulnerabilities, has caused railroads to enhance their
security posture. As with routing decisions, such reduction in risk
offers a significant economic advantage in the long run. Therefore, we
expect that the cost of mitigation attributed solely to this final rule
will not be significant. We note in this regard that safety and
security measures are intertwined and often complementary; therefore,
separating security costs from safety costs is not feasible.
    We do not expect this final rule to result in a diversion from
railroads to trucks. For the movements subject to this rule,
transportation and distribution patterns, with associated
infrastructure, tend to be well-established. For example, the vast
majority of PIH offerors ship by rail; indeed, many do not have the
infrastructure (loading racks, product transfer facilities) necessary
to utilize trucks for such transportation. Moreover, the current fleet
of cargo tank motor vehicles is insufficient to handle a significant
shift of PIH cargoes from rail to highway--for example, there are only
85 cargo tank motor vehicles used for the transportation of chlorine.
Because it takes about four tank trucks to haul the amount of product
that can be moved in a rail tank car, the industry would have to build
many more trucks to accommodate a shift in transportation from rail to
highway, necessitating a significant expansion in current tank truck
manufacturing capacity. In addition, because it takes four trucks to
transport the same amount of product as a single rail tank car, it
generally is only cost-effective to utilize trucks for relatively
limited distances. A farm cooperative or agricultural products
distributor, for example, typically receives large quantities of
anhydrous ammonia by rail car and offloads the material into storage
tanks for subsequent truck movement to local customers.
    Changing these established transportation patterns would require
substantial investment in new capacity and infrastructure, vastly
exceeding the costs of complying with the final rule. Under these
circumstances, we do not expect any shift in transportation mode as a
result of implementation of this final rule. We note in this regard
that no commenters raised this issue in their discussions of the
potential impacts of the proposals in the NPRM. Overall transportation
costs should not substantially increase because of this final rule.
    Estimating the security benefits of the new requirements is
challenging. Accident causation probabilities can be estimated based on
accident histories in a way that the probability of a criminal or
terrorist act cannot. The threat of an attack is virtually impossible
to assess from a quantitative standpoint. It is undeniable that
hazardous materials in transportation are a possible target of
terrorism or sabotage. The probability that hazardous materials will be
targeted is, at best, a guess. Similarly, the projected outcome of a
terrorist attack cannot be precisely estimated. It is assumed choices
will be made to maximize consequences and damages. Scenarios can be
envisioned in which hazardous materials could be used to inflict
hundreds or even thousands of fatalities. To date, there have been no
known or specific threats against freight railroads, rail cars, or tank
cars, which makes all of these elements even more difficult to
quantify. Security plans lower risk through the identification and
mitigation of vulnerabilities. Therefore, rail carriers and the public
benefit from the development and implementation of security plans.
However, forecasting the benefits likely to result from plan
implementation requires the exercise of judgment and necessarily
includes subjective elements.
    The major benefits expected to result from this final rule relate
to enhanced safety and security of rail shipments of hazardous
materials. The requirements of the final rule are intended to reduce
the safety and security risks associated with the transportation of the
specified hazardous materials. Accidents that result in the release of
hazardous materials can be very costly. Given the level of such costs,
it is not unreasonable to assume that the benefits associated with
assessing safety and security risks and identifying opportunities to
reduce those risks will also be significant.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Orders 13132 (``Federalism'') and
13175 (``Consultation and Coordination With Indian Tribal
Governments''). This final rule would not have any direct effect on the
states, their political subdivisions, or Indian tribes; it would not
impose any compliance costs; and it would not affect the relationships
between the national government and the states, political subdivisions,
or Indian tribes, or the distribution of power and responsibilities
among the various levels of government.
    Section VII.K of the IFR (73 FR 20766) includes a discussion of
PHMSA's conclusion that the decision in the

March 25, 2003, final rule in HM-232 to leave to rail carriers the
specifics of routing rail shipments of hazardous materials preempts all
states, their political subdivisions, and Indian tribes from
prescribing or restricting routes for rail shipments of hazardous
materials, under Federal Hazmat Law (49 U.S.C. 5125) and the Federal
Rail Safety Act (49 U.S.C. 20106). In that section, we also discuss the
comments on the proposed language in the NPRM concerning the preemptive
effect of HM-232 and this final rule and explain the reasons for
adopting revised language in 49 CFR 172.822.

D. Executive Order 13175

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

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

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

F. Paperwork Reduction Act

    This final rule may result in an increase in annual burden and
costs under OMB Control Number 2137-0612. PHMSA currently has an
approved information collection under OMB Control No. 2137-0612,
``Hazardous Materials Security Plans'', expiring June 30, 2011.
    Under the Paperwork Reduction Act of 1995, no person is required to
respond to an information collection unless it has been approved by OMB
and displays a valid OMB control number. 5 CFR 1320.8(d) requires that
PHMSA provide interested members of the public and affected agencies an
opportunity to comment on information and recordkeeping requests.
    This identifies a revised information collection request that PHMSA
submitted to OMB for approval based on the requirements in this rule.
PHMSA has developed burden estimates to reflect changes in this
proposed rule. We estimate that the total information collection and
recordkeeping burden for the current requirements and as specified in
this rule would be as follows:

OMB No. 2137-0612, ``Hazardous Materials Security Plans''

First Year Annual Burden
    Total Annual Number of Respondents: 139.
    Total Annual Responses: 139.
    Total Annual Burden Hours: 51,469.
    Total Annual Burden cost: $3,130,859.27.
Subsequent Year Burden
    Total Annual Number of Respondents: 139.
    Total Annual Responses: 139.
    Total Annual Burden Hours: 13,677.
    Total Annual Burden Cost: $831,971.91.
    Direct your requests for a copy of the information collection to
Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation,
Pipeline & Hazardous Materials Safety Administration (PHMSA), East
Building, Office of Hazardous Materials Standards (PHH-11), 1200 New
Jersey Avenue, SE., Washington, DC 20590; telephone<PHONE_NUMBER>.

G. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal

Regulations. The Regulatory Information Service Center publishes the
Unified Agenda in April and October of each year. The RIN number
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

H. Unfunded Mandates Reform Act

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

I. Environmental Assessment

    The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires that Federal agencies analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
order Federal agencies to conduct an environmental review considering:
(1) The need for the proposed action; (2) alternatives to the proposed
action; (3) probable environmental impacts of the proposed action and
alternatives; and (4) the agencies and persons consulted during the
consideration process. 40 CFR 1508.9(b).
    In accordance with the CEQ regulations, we completed an
environmental assessment for this final rule that considers the
potential environmental impacts of three alternatives--(1) do nothing;
(2) impose enhanced safety and security requirements for a broad list
of hazardous materials transported by rail; or (3) impose enhanced
safety and security requirements for specified rail shipments of highly
hazardous materials. The environmental assessment is available for
review in the public docket for this rulemaking.
    The provisions of this final rule build on current regulatory
requirements to enhance the transportation safety and security of
shipments of hazardous materials transported by rail, thereby reducing
the risks of an accidental or intentional release of hazardous
materials and consequent environmental damage. The net environmental
impact, therefore, will be moderately positive. There are no
significant environmental impacts associated with this final rule.

J. Privacy Act

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

List of Subjects

49 CFR Part 172

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

49 CFR Part 174

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

0
In consideration of the foregoing, the interim final rule published on
April 16, 2008 (73 FR 20752), amending title 49 Chapter I, Subchapter
C, Parts 172 and 174, is confirmed as final with the following changes:

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

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

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

0
2. In Sec.  172.820:
0
A. Revise paragraph (a)(2),
0
B. Redesignate paragraphs (g), (h), and (i) as paragraphs (h), (i), and
(j), respectively,
0
C. Add new paragraph (g), and
0
D. Revise paragraphs (f) and newly designated paragraph (h)(1), to read
as follows:

Sec.  172.820  Additional planning requirements for transportation by
rail.

    (a) * * *
    (2) A quantity of a material poisonous by inhalation in a single
bulk packaging; or
* * * * *
    (f) Completion of route analyses. (1) Rail carriers have the
following options for completing the initial route analysis,
alternative route analysis, and route selection process required under
paragraphs (c), (d), and (e) of this section:
    (i) A rail carrier may complete the initial process by September 1,
2009, using data for the six month period from July 1, 2008 to December
31, 2008; or
    (ii) A rail carrier may complete the initial process by March 31,
2010, using data for all of 2008, provided the rail carrier notifies
the FRA Associate Administrator of Safety in writing by September 1,
2009 that it has chosen this second option.
    (2) Beginning in 2010, the rail transportation route analysis,
alternative route analysis, and route selection process required under
paragraphs (c), (d), and (e) of this section must be completed no later
than the end of the calendar year following the year to which the
analyses apply.
    (3) The initial analysis and route selection determinations
required under paragraphs (c), (d), and (e) of this section must
include a comprehensive review of the entire system. Subsequent
analyses and route selection determinations required under paragraphs
(c), (d), and (e) of this section must include a comprehensive, system-
wide review of all operational changes, infrastructure modifications,
traffic adjustments, changes in the nature of high-consequence targets
located along, or in proximity to, the route, and any other changes
affecting the safety or security of the movements of the materials
specified in paragraph (a) of this section that were implemented during
the calendar year.
    (4) A rail carrier need not perform a rail transportation route
analysis, alternative route analysis, or route selection process for
any hazardous material other than the materials specified in paragraph
(a) of this section.
    (g) Rail carrier point of contact on routing issues. Each rail
carrier must identify a point of contact (including the name, title,
phone number and e-mail address) on routing issues involving the
movement of materials covered by this section in its security plan and
provide this information to:
    (1) State and/or regional Fusion Centers that have been established
to coordinate with state, local and tribal officials on security issues
and which are located within the area encompassed by the rail carrier's
rail system; and
    (2) State, local, and tribal officials in jurisdictions that may be
affected by a rail carrier's routing decisions and who directly contact
the railroad to discuss routing decisions.
    (h) Storage, delays in transit, and notification. * * *
    (1) A procedure under which the rail carrier must consult with
offerors and consignees in order to develop measures for minimizing, to
the extent practicable, the duration of any storage

of the material incidental to movement (see Sec.  171.8 of this
subchapter).
* * * * *

    Issued in Washington, DC, on November 18, 2008, under the
authority delegated in 49 CFR Part 1.
Carl T. Johnson,
Administrator.
[FR Doc. E8-27826 Filed 11-25-08; 8:45 am]

BILLING CODE 4910-60-P