through their jurisdictions to enable them to adequately plan and
prepare from an emergency response perspective. PHMSA reasoned that
expanding the existing route analysis and consultation requirements of
Sec.  172.820 (which already apply to the rail transportation of
certain hazardous materials historically considered to be highly-
hazardous \36\) would preserve the intent of the Emergency Order to
enhance information sharing with emergency responders in areas through
which HHFTs move and that, in combination with the other new safety
requirements in the HHFT Final Rule, obviated the need to continue
notification to the SERCs as required by the Order and as proposed in
the HHFT NPRM.
---------------------------------------------------------------------------

    \36\ TSA regulations under 49 CFR 1580.100 define certain types
and quantities of material as ``rail security sensitive materials
(RSSM). Class 3 flammable liquids, including crude oil and ethanol
are not defined as RSSM.
---------------------------------------------------------------------------

    After PHMSA published the HHFT Final Rule, FRA, PHMSA and the
Department received feedback from stakeholders, expressing concern
about the Department's decision to forgo the proactive notification
requirements of the Emergency Order and in the NPRM. Those stakeholders
include Congressional representatives, State and local government
officials, representatives of emergency response and planning
organizations, and the public. Generally, these stakeholders expressed
the view that given the unique risks posed by the frequent rail
transportation of large volumes of flammable liquids, including Bakken
crude oil, PHMSA should not eliminate the proactive information sharing
provisions of the Order and rely solely on the consultation and
communication requirements in existing Sec.  172.820. Stakeholders,
including emergency responders, expressed concern that the HHFT Final
Rule may limit the availability of emergency response information by
superseding the Order.
    In response to these concerns and after further evaluating the
issue within the Department, in a May 28, 2015, notice (Notice), PHMSA
announced that it would extend the Order indefinitely, while it
considered options for codifying the disclosure requirement on a
permanent basis.\37\ In the Notice, PHMSA recognized the desire of
local communities to know what hazardous materials are moving through
their cities and towns and noted that transparency is a critical piece
of the Department's comprehensive approach to safety. Further, PHMSA
expressed its support for the public disclosure of this information to
the extent allowed by the applicable state, local and tribal laws and
noted that the Order and HHFT Final Rule all emphasize transparency and
information sharing. The Notice explained that longstanding federal law
requires shippers and offerors of hazardous materials to carry the
critical information necessary for emergency responders to respond
appropriately to an incident involving the transportation of any
hazardous material and to have someone available to provide emergency
response information at all times that the hazardous material is in
transportation. See 49 CFR 174.26 and part 172, subpart G. PHMSA issued
a safety advisory reminding the regulated community of these legal
obligations and outlining the myriad of additional emergency response
resources available (e.g., PHMSA's Emergency Response Guidebook and
Hazardous Materials Information Center, the U.S. Department of Homeland
Security's National Operations Center, industry's TRANSCAER[supreg]
program, as well as AAR's Circular OT-55-N that outlines a procedure
whereby local emergency response officials and emergency response
planning organizations may obtain a list of the types and volumes of
hazardous materials that are transported through their communities).
See the detailed discussion of PHMSA's April 17, 2015, Safety Advisory
and Stakeholder Outreach in Section II, Subsection C (``Summary of
Proposed Oil Spill Response Requirements'') above.
---------------------------------------------------------------------------

    \37\ http://www.phmsa.dot.gov/hazmat/phmsa-notice-regarding-emergency-response-notifications-for-shipments-of-petroleum-crude-oil-by-rail.
---------------------------------------------------------------------------

    On December 4, 2015, President Obama signed into law the ``Fixing
America's Surface Transportation Act of 2015 (``FAST Act''). The FAST
Act includes the ``Hazardous Materials Transportation Safety
Improvement Act of 2015'' at Sec. Sec.  7001 through 7311, which
provides direction for the hazardous materials safety program. Section
7302 directs the Secretary to issue regulations that require real-time
sharing of the electronic train consist information for hazardous
materials shipments and require advanced notification of certain HHFTs.
The DOT will address the

requirements in Sec.  7302 related to electronic train consists in a
future rulemaking. The FAST Act directs Class I railroads to provide
advanced notification and information on high-hazard flammable trains
to each State Emergency Response Commission (SERC), consistent with the
notification requirements in the Order. The FAST Act requires that
SERCs receiving this advanced notification must provide the information
to law enforcement and emergency response agencies upon request. The
FAST Act also directs the Secretary to establish security and
confidentiality protections for electronic train consist information
and advanced notification information.
    The FAST Act limits the applicability of the advanced notification
requirements for HHFT to the Class I railroads. In this NPRM, PHMSA is
proposing that the information-sharing requirements apply to all
railroads with HHFT operations. This proposal fulfills the
Congressional mandate and is within PHMSA's regulatory authority.
Through the authority of Federal hazmat transportation law and the
delegation of this authority to PHMSA by the Secretary, PHMSA is
responsible for overseeing a hazmat safety program that protects
against the risks to life, property, and the environment inherent in
the transportation of hazmat in commerce. In proposing that the
information-sharing requirements apply to all railroads with HHFT
operations, PHMSA is addressing the provisions of the FAST Act, as well
as acting in accordance with our delineated authority by addressing the
potential safety risks posed by HHFT operations of all railroads.
Requiring advanced notification from Class I, II, and III railroads is
consistent with DOT's Order addressing information-sharing. While we
acknowledge that the HHFT operations of Class II and Class III
railroads are relatively limited in comparison to those of Class I
railroads, and thus pose fewer safety risks in the rail transportation
system, the HHFT operations of Class II and Class III railroads
nonetheless pose safety risks that justify adherence to the proposed
information-sharing requirements of this NPRM.
    Recent railroad accidents demonstrate that accidents involving
HHFTs are not limited to Class I railroads. In particular, the
accidents in Aliceville, AL, and New Augusta, MS involved two Class III
railroads, the Alabama Gulf Coast Railway and Illinois Central
Railroad. If PHMSA were to limit the requirement to Class I railroads
as described in the FAST Act, these railroads and other Class II or
Class III railroads would not be required to provide advanced
notification and information to SERCs or TERCs. Therefore, in order to
effectively address the safety risks posed by HHFTs by increasing the
level of information sharing between railroads and SERCs, TERCs, and
other affected jurisdictions, PHMSA proposes that the information-
sharing requirements of this NPRM apply to all classes of railroads
that transport HHFTs. The intent of the information sharing provision
of this rule is to ensure that local emergency responders and emergency
planning officials have access to sufficient information regarding the
movement of HHFTs in their jurisdictions to adequately plan and prepare
for emergency events involving HHFTs. This purpose is reaffirmed by the
FAST Act's requirements addressing requirements for both sharing and
protection of information required by the advanced notification. Under
the Emergency Planning and Community Right-to-Know Act (EPCRA) in Title
III of the Superfund Amendments and Reauthorization Act of 1986 (SARA),
the Governor of each state is required to establish a state emergency
response commission (SERC). The SERC is responsible for establishing
emergency planning districts and appointing, supervising, and
coordinating local emergency planning committees (LEPCs). EPCRA section
303 requires LEPCs to develop a comprehensive emergency response plans
for their emergency planning districts. The SERC is also responsible
for reviewing the emergency response plans and make recommendations to
revise the plans as necessary for each community. The emergency
response plan includes facilities that handle extremely hazardous
substances (EHSs) defined under section 302 of EPCRA as well as
transportation routes of EHSs. Many LEPCs include EHSs as well other
chemicals that pose a risk in their emergency response plan. As
previously noted, another agency is sometimes delegated by the state to
be directly involved in emergency response planning and preparedness.
In both instances, state delegated agencies are connected to the local
response and planning framework. The information required to be shared
in this rulemaking is largely consistent with the information required
by the Order.

F. Security and Confidentiality for HHFT Information Sharing
Notification

    In response to the Order's information-sharing provisions,
railroads raised particular concerns that the sharing of routing
information for HHFTs required them to reveal proprietary business
information. The railroads argued that the routing information, if
published or shared widely, could reveal information about customers.
After considering the claim in an October 2014 information collection
notice, FRA concluded that the information would not constitute
business confidential or proprietary under federal law. See the
discussion of AAR and ASLRRA's concerns published at 79 FR 59891 on
October 3, 2014 (FRA's ``Proposed Agency Information Collection
Activities; Notice and Request for Comments'' related to the Order). In
its discussion, the FRA noted that the railroads did not specifically
identify any prospective harm caused by the sharing of this
information. Nonetheless, if a railroad claims that routing information
contains confidential business information, the merits of that claim
would be analyzed under state open records and sunshine laws.
    Section 7302 of the FAST Act 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 to unauthorized persons any
electronic train consist information or advanced notification or
information provided by Class I railroads under this section.'' In
fact, railroads previously raised concerns that the sharing of routing
information for HHFTs required them to reveal proprietary business
information. As discussed above, railroads argued that the Emergency
Order routing information, if published or shared widely, could reveal
information about customers. After considering the claim in an October
2014 information collection notice, FRA concluded that the information
would not be considered business confidential or SSI under federal law.
See the discussion of AAR and ASLRRA's concerns published at 79 FR
59891 on October 3, 2014 (FRA's ``Proposed Agency Information
Collection Activities; Notice and Request for Comments'' related to the
Order). In its discussion, the FRA noted that the railroads did not
specifically identify any prospective harm caused by the sharing of
this information. DOT's previous analysis and conclusion determined
that the information shared by railroads does not qualify for
withholding under federal standards on business confidential or SSI. As
proposed, DOT will require railroads to share aggregated information
about the volumes of crude oil that travel through a jurisdiction on a
weekly basis. This

information does not include customer information or other business
identifying details. Further, it does not provide specifics about the
timing of HHFT trains. Accordingly, PHMSA believes it is limited in its
ability to establish security and confidentiality protections,
particularly in light of the FAST Act's dual mandates for PHMSA to
ensure free-flowing information to SERCs and first responders and
provide protections for further disclosures. However, as noted in FRA's
discussion of this matter in its October 2014 Information Disclosure
Notice, State laws control, and may limit, the disclosure and
dissemination of this information. Accordingly, PHMSA added the
following language to the notification requirements: ``If the
disclosure includes information that railroads believe is security
sensitive or proprietary and exempt from public disclosure, the
railroads should indicate that in the notification.'' This will help
guard against inadvertent public disclosure by ensuring that the
information that railroads believe to be business confidential is
marked appropriately. Before fulfilling a request for information and
releasing the information, States will be on notice of which
information the railroads consider to be inappropriate for public
release. We welcome comments on this discussion and particularly invite
comments on means by which PHMSA can fulfill the FAST Act's direction
to establish security and confidentiality protections, where this
information is not subject to security and confidentiality protections
under Federal standards.

G. Initial Boiling Point Test

    An offeror's responsibility to classify and describe a hazardous
material is a key requirement under the HMR. In accordance with Sec.
173.22 of the HMR, it is the offeror's responsibility to properly
``class and describe a hazardous material in accordance with parts 172
and 173 of the HMR.'' For transportation purposes, classification is
ensuring the proper hazard class, packing group, and shipping name are
assigned to a particular material. For a Class 3 Flammable liquid, the
HMR provide two tests to determine PG. Both the flash point and IBP
must be determined to properly classify and assign an appropriate
packing group for a Class 3 Flammable liquid in accordance with
Sec. Sec.  173.120 and 173.121. The HMR authorize all of the following
IBP tests for classification of flammable liquids:

 ASTM D-86--Distillation of Petroleum Products at Atmospheric
Pressure
 ASTM D-1078--Standard Test Method for Distillation Range of
Volatile, Organic Liquids
 ISO 3405--Petroleum Products--Determination of Distillation
Characteristics at Atmospheric Pressure
 ISO 3924--Petroleum Products--Determination of Boiling Range
Distribution--Gas Chromatography Method
 ISO 4626--Volatile Organic Liquids--Determination of Boiling
Range of Organic Solvents Used as Raw Materials

    Table 8 provides a description of the flash point tests currently
authorized in the HMR for petroleum liquids.

     Table 8--Flash Point Testing Requirements for Petroleum Liquids
                          Currently in the HMR
------------------------------------------------------------------------
                Material                         Flash point test
------------------------------------------------------------------------
Homogeneous, single-phase liquid having  ASTM D-56--Standard Method of
 a viscosity less than 45 S.U.S. at 38    Test for Flash Point by Tag
 [deg]C (100 [deg]F).                     Closed Cup Tester.
                                         ASTM D-3278--Standard Test
                                          Methods for Flash Point by
                                          Small Scale Closed-Cup
                                          Apparatus.
                                         ASTM D-3828--Standard Test
                                          Methods for Flash Point by
                                          Small Scale Closed Tester.
All other liquids......................  ASTM D-93--Standard Test
                                          Methods for Flash Point by
                                          Pensky-Martens Closed Cup
                                          Tester.
                                         ASTM D-3278--Standard Test
                                          Methods for Flash Point of
                                          Liquids by Small Scale Closed-
                                          Cup Apparatus.
For mixtures...........................  Method specified in Sec.
                                          173.120(c)(2).
------------------------------------------------------------------------

    In 2014, the rail and oil industry, along with PHMSA's input,
developed an RP designed to improve rail safety through the proper
classification of crude oil and loading practices. This effort was led
by API and resulted in the development of an ANSI-recognized
recommended practice (see ANSI/API RP 3000, ``Classifying and Loading
of Crude Oil into Rail Tank Cars''). This recommended practice, which,
during its development, went through a public comment period in order
to be designated as an American National Standard, addresses the proper
classification of crude oil for rail transportation and the quantity
measurement for overfill prevention when loading crude oil into rail
tank cars. The API RP 3000 provides guidance on the material
characterization, transport classification, and quantity measurement
for overfill prevention of petroleum crude oil for the loading of rail
tank cars.
    The API RP 3000 provides best practices for both sampling and
testing. The API RP 3000 best practices for flash point testing align
with the flash point test options currently in the HMR. For the initial
boiling point test, the API RP 3000 concluded that for crude oils
containing volatile, low molecular weight components (e.g. methane),
the recommended best practice is to test using ASTM D7900. This test
ensures a minimal loss of light ends because it determines the boiling
range distribution from methane through n-nonane with an IBP defined as
the temperature at which 0.5 weight percent loss is observed when
determining the boiling range distribution defined in ASTM D7169. This
test differs from the boiling point test options currently in the HMR,
which do not remove and recover the light ends. The development of this
recommended practice demonstrates the importance of proper
classification.
    In the May 8, 2015, Final Rule HM-251(80 FR 26644), PHMSA adopted
requirements for a sampling and testing program. The API RP 3000 was
finalized in September 2014, after the HM-251 NPRM was published, and
the public was unable to have the opportunity comment on the API RP
3000's incorporation into the HMR. Therefore, PHMSA did not incorporate
API RP 3000 by reference; however, we noted that it could be used as a
method to comply with certain requirements the testing and sampling
program. The sampling requirements adopted in

Sec.  173.41 of the HMR are consistent with API RP 3000, but provide
greater flexibility. PHMSA stated that:

shippers may still use API RP 3000 as a voluntary way to comply with
the newly adopted sampling requirements. It should be noted that all
of the testing provisions of API RP 3000 do not align with the
requirements in the HMR. As the testing provisions were not proposed
to be modified, shippers must continue to use the testing methods
for classification of flammable liquids outlined in Sec.  173.120
and flammable gases in Sec.  173.115.

    PHMSA further noted that we might consider the adoption of the non-
codified testing provisions of API RP 3000, such as the ASTM D7900
boiling point test in a future rulemaking.
    As specified in the final rule, the ASTM D7900 IBP test and
practice recommended by industry in the API RP 3000 is not currently
aligned with the testing requirements authorized in the HMR, forcing
shippers to continue to use the testing methods authorized in Sec.
173.121(a)(2). This misalignment results in a situation where an
industry best practice for the testing of crude oil (ASTM D7900 for
initial boiling point) that was developed in concert with PHMSA is not
authorized by the HMR. Therefore, for initial boiling point
determination, PHMSA is proposing to incorporate ASTM D7900 by
reference, thus permitting the industry best practice for testing Class
3 PG assignments. We note that the incorporation of ASTM D7900, which
aligns with the API RP 3000 will not replace the currently authorized
testing methods; rather, it serves as a testing alternative if one
chooses to use that method. PHMSA believes this provides flexibility
and promotes enhanced safety in transport through accurate PG
assignment.

III. Recent Spill Events

    PHMSA collected and reviewed information from various sources
pertaining to recent derailments involving discharges of crude oil. In
this rulemaking and the accompanying analysis, PHMSA has focused on the
following derailments: Watertown, WI (November 2015); Culbertson, MT
(July 2015); Heimdal, ND (May 2015); Galena, IL (March 2015); Mt.
Carbon, WV (February 2015); La Salle, CO (May 2014); Lynchburg, VA
(April 2014); Vandergrift, PA (February 2014); New Augusta, MS (January
2014); Casselton, ND (December 2013); Aliceville, AL (November 2013);
and Parkers Prairie, MN (March 2013). In the RIA, PHMSA provides
narratives and discussion of the circumstances and consequences of
these derailments. PHMSA has identified these derailments as involving
trains transporting 20 or more tank cars of petroleum oil in a
continuous block or 35 or more tank cars dispersed throughout the train
in conformance with the proposed applicability of this rule.
Furthermore, these derailments resulted in discharges of petroleum oil
that harmed or posed a threat of harm to the nation's waterways or the
environment.
    By reviewing and analyzing the experience of the response to these
derailments, PHMSA seeks to identify oil spill response challenges that
have occurred in the past and could occur in future derailment
scenarios. PHMSA incorporates this understanding of response challenges
into this NPRM, which proposes to amend the requirements of 49 CFR part
130 to improve comprehensive oil spill response plans by way of new and
revised requirements. PHMSA holds that improved oil spill response
planning will, in turn, improve the actual response to future
derailments involving petroleum oil and lessen potential negative
impacts to the environment and communities.
    In general, there have been a variety of challenges apparent in the
responses to recent derailments involving petroleum oil. In multiple
instances, those responding to oil spills have encountered difficulties
in assessing the extent of oil spills due to smoke or fire. In several
of the derailments discussed in this rulemaking, the relatively remote
location of the town or derailment site limited responders' access to
the derailment site and encumbered the deployment of response equipment
(e.g., heavy machinery) at the site. Response providers have also faced
adverse weather or the potential for adverse weather, which can
complicate response protocols and compound the adverse effects of
spills. Communications between railroads, response providers, and
Federal, State, and local officials are often challenging due to the
broad array of organizational representation at derailment sites and
the lack of formal response communications protocols. Further,
derailments involving energetic ruptures and fires can threaten public
safety, necessitating evacuations that span multiple days and require
significant resources, including personnel and leadership with
experience and training in emergency management.
    Derailments often require a significant, long-term commitment of
personnel and equipment to remediate an oil spill. Moreover,
derailments involving petroleum oil typically require diverse technical
or scientific response services. For example, monitoring a direct
discharge into a waterway requires water sampling services to detect if
harmful levels of compounds found in petroleum oils have contaminated
affected waterways. Depending on the proximity of an oil spill to
rivers, the spill response could also require monitoring of river
levels, since rising river levels could rapidly exacerbate the extent
of an oil spill. The smoke emanating from fires requires air monitoring
services to detect if harmful levels of air pollutants have jeopardized
local air quality and public health.
    Thus, in the draft RIA, PHMSA has identified and summarized several
recent derailments to illustrate the circumstances and consequences of
derailments involving petroleum oil transported in higher-risk train
configurations. We have outlined some of the challenges faced by the
response to each spill event and discussed ways in which comprehensive
oil spill response plans may have improved spill response efforts and/
or alleviated the adverse consequences to the nation's waterways or
environment.

IV. National Transportation Safety Board Safety Recommendations

    As previously discussed, in addition to the efforts of PHMSA and
FRA, the NTSB has taken a very active role in identifying the risks
posed by the transportation of large quantities of flammable liquids by
rail, as well as emergency response activities. Table 9 provides a
summary of the rail-related NTSB Safety Recommendations related to this
rulemaking.

                           Table 9--NTSB Recommendations Addressed in This Rulemaking
----------------------------------------------------------------------------------------------------------------
        NTSB recommendation                    Summary            Addressed in this rule?       Description
----------------------------------------------------------------------------------------------------------------
R-14-02--Issued January 23, 2014...  Recommends that FRA develop  Yes....................  Propose requirements
                                      a program to audit                                    for FRA to approve
                                      response plans for rail                               comprehensive oil
                                      carriers of petroleum                                 spill response plans
                                      products to ensure that                               for rail.
                                      adequate provisions are in
                                      place to respond to and
                                      remove a worst-case
                                      discharge to the maximum
                                      extent practicable and to
                                      mitigate or prevent a
                                      substantial threat of a
                                      worst-case discharge.
R-14-05--Issued January 23, 2014...  Recommends that PHMSA        Yes....................  Propose to revise the
                                      revise the spill response                             spill planning
                                      planning thresholds                                   thresholds to
                                      contained in 49 CFR part                              address 20 cars of
                                      130 to require                                        liquid petroleum oil
                                      comprehensive response                                in a continuous
                                      plans to effectively                                  block or 35 cars of
                                      provide for the carriers'                             liquid petroleum oil
                                      ability to respond to                                 in a consist.
                                      worst-case discharges
                                      resulting from accidents
                                      involving unit trains or
                                      blocks of tank cars
                                      transporting oil and
                                      petroleum products.
R-14-14--Issued August 22, 2014....  Recommends that PHMSA        Yes....................  The proposed
                                      require railroads                                     information sharing
                                      transporting hazardous                                requirements in this
                                      materials through                                     rulemaking and the
                                      communities to provide                                adopted routing
                                      emergency responders and                              requirements in
                                      local and state emergency                             final rule HM-251
                                      planning committees with                              (80 FR 26643, May 8,
                                      current commodity flow                                2015) address this
                                      data and assist with the                              recommendation.
                                      development of emergency
                                      operations and response
                                      plans.
----------------------------------------------------------------------------------------------------------------

V. Summary and Discussion of Public Comments on Oil Spill Response
Plans

A. Overview of Comprehensive Oil Spill Response Plans

    In the August 1, 2014, ANPRM, PHMSA solicited public comment on
questions about potential revisions to its regulations that would
expand the applicability of comprehensive oil spill response plans
(OSRPs) to high-hazard flammable trains (HHFTs) based on amounts of
crude oil in an entire train consist, rather than a single package or
tank car. PHMSA received 259 submissions representing more than 70,000
signatories. Over 67,000 signatories included comments directly
addressing the ANPRM rulemaking that were submitted to a related docket
for the NPRM HM-251, Hazardous Materials: Rail Petitions and
Recommendations to Improve the Safety of Railroad Tank Car
Transportation (RRR). These comments were identified and considered to
the extent practicable. Comments were received from a broad array of
stakeholders, including trade organizations, intermodal carriers,
consultants, environmental groups, emergency response organizations,
other non-government or advocacy organizations, local government
organizations or representatives, tribal governments, state
governments, Members of Congress, and other interested members of the
public. Comments and all corresponding rulemaking materials received
may be viewed on the www.regulations.gov Web site (Docket ID: PHMSA-
2014-0105). Additional comments may be viewed under Docket ID: PHMSA-
2012-0082.
    In general, comments on the ANPRM were: (1) General statements of
support or opposition; (2) personal anecdotes or general statements not
specifically related to the proposed changes; (3) comments beyond the
scope of the oil spill response planning provisions of the CWA; or (4)
identical or nearly identical letter write-in campaigns submitted as
part of comment initiatives sponsored by organizations. For example,
many commenters recommend insurance or liability requirements for
railroads that are not within the scope of PHMSA's statutory authority.
Although PHMSA does not have statutory authority to impose insurance or
liability requirements, the FAST Act mandates the Secretary initiate a
study on the levels and structure of insurance for railroad carriers
transporting hazmat under Sec.  7310. That action is underway. The
remaining comments reflect a wide variety of differing views on the
proposed regulations. The substantive comments received on the ANPRM
are organized by topic and discussed in the appropriate section,
together with the PHMSA's response to those comments.
---------------------------------------------------------------------------

    \38\ It should be noted that individuals and non-government
organization signatories were not categorized consistently due to
limitations from transferring capturing comments initially submitted
to PHMSA-2012-0082.

               Table 10--Overall Commenter Breakdown \38\
------------------------------------------------------------------------
                                                     Description and
           Background              Signatories           examples
------------------------------------------------------------------------
Non-Government Organization....          65,044  Environmental groups,
                                                  emergency response
                                                  organizations, and
                                                  other non-governmental
                                                  organizations.
Government.....................           3,299  Local, state, tribal
                                                  governments or
                                                  representatives, U.S.
                                                  Congress members, etc.
Individual.....................           2,079  Public submissions not
                                                  directly representing
                                                  a specific
                                                  organization.
Industry Stakeholder...........              30  Trade organizations,
                                                  intermodal carriers,
                                                  offerors.
------------------------------------------------------------------------

B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans

    In order to inquire about the potential impact of different
thresholds on the regulated community, PHMSA asked the public to
comment on the following question: ``When considering appropriate
thresholds for comprehensive OSRPs, which of the following thresholds
would be most appropriate and provide the greatest potential for
increased safety? The following thresholds were provided as examples:
(a) 1,000,000 gallons or more of crude oil per train consist; (b) an
HHFT of 20 or more carloads of crude oil per train consist; (c) 42,000
gallons

of crude oil per train consist; or (d) another threshold. In addition,
PHMSA asked: What thresholds would be most cost-effective?''
    Comments to the ANPRM on the scope of the rule were wide-ranging.
Many commenters commented on this question directly, voicing support of
one or more of the proposed thresholds or suggesting a different
threshold, while other commenters chose to comment generally.
    The first threshold, (a) 1,000,000 gallons or more of crude oil per
train consist was not supported by any commenters as a single metric.
Two commenters: The Association of American Railroads (AAR) and the
American Short Line and Regional Railroad Association (ASLRRA) did
incorporate 1,000,000 gallons as part of another threshold, as
discussed further below.
    In opposition to the first proposed threshold, many commenters have
suggested that the 1,000,000 gallons threshold is not effective because
oil spills involving quantities below this threshold could cause
considerable harm to the environment and in particular, rivers or
waterways. On this point, LRT-Done Right has reiterated the
significance of PHMSA's derailment data, stating that ``. . . less than
one carload of spilled oil or ethanol can present great danger.''
Similarly, the Delaware Riverkeeper Network commented that, for
example, ``a spill of 25,000 gallons of oil in Wyoming . . . resulted
in a three mile trail of contamination.''
    Commenters have also suggested that 1,000,000 gallons is not an
adequate threshold because preventing oil spills within the context of
rail transport differs substantially from the context of fixed oil
facilities. The Delaware Riverkeeper Network has stated, ``A threshold
of 1,000,000 gallons is . . . inappropriate because the current
1,000,000 gallon threshold [under EPA regulations] applies to
stationary facilities and includes all oil containers, including drums,
at the facility. Trains carrying volatile crude oil are substantially
different than such facilities.'' Similarly, the Center for Biological
Diversity has said, ``[42,000 gallons as a threshold for rail] would be
more consistent with established law than a 1,000,000 gallon threshold
. . . since trains are not storing oil in a controlled facility, but
rather moving it around the country on rail systems that experience
fatigue and unforeseen circumstances such as derailments.''
    PHMSA's second proposed threshold, (b) an HHFT of 20 or more
carloads of crude oil per train consist, was supported at least in part
by three commenters.\39\ Namely, the Independent Fuel Terminal
Operators Association, the Flathead Lakers, and the Honorable Paul D.
Tonko submitted comments in support of a threshold aligned with the
definition of an HHFT. The Flathead Lakers, in particular, have noted
that incidents involving quantities carried by HHFTs could be
catastrophic.
---------------------------------------------------------------------------

    \39\ It should be noted that the HMR now define an HHFT as ``as
a train comprised of 20 or more loaded tank cars of a Class 3
flammable liquid in a continuous block or 35 or more loaded tank
cars of a Class 3 flammable liquid across the entire train.'' The
(b) threshold was based on the HHFT definition proposed in the
August 1, 2014 NPRM which was ``as a train comprised of 20 or more
tank cars containing a flammable liquid.''
---------------------------------------------------------------------------

    In opposition to a threshold based on the HHFT definition, and
similar to commenters' opposition to the first threshold of 1,000,000
gallons, some commenters have indicated that incidents need not involve
an HHFT in order to cause considerable harm to the environment. The
National Association of SARA Title III Program Officials (NASTTPO) and
the Oklahoma Hazardous Materials Emergency Response Commission (OHMERC)
have suggested that the threshold for developing a comprehensive oil
spill response plan should involve fewer tank cars carrying crude oil
because one tank car ``is more than enough flammable material to
present a risk to first responders and the local community.'' Various
individual commenters have echoed this sentiment and suggested that a
threshold based on the HHFT definition would allow significant
quantities of crude oil to be transported by rail carriers that lack
comprehensive oil spill response plans.
    Several commenters supported the third proposed threshold: (d)
42,000 gallons of crude oil per train consist. Commenters have shown
that it is at least numerically consistent with current regulations in
49 CFR part 130, even though there is a key distinction in which part
130 upholds a threshold of 42,000 gallons for a single package (i.e., a
single tank car) and the ANPRM has proposed 42,000 gallons as a
threshold within a single train consist. As the New York State
Department of Transportation has stated, ``[A 42,000 gallon per train
consist threshold] would maintain consistency with the existing
threshold for comprehensive Oil Spill Response Plans (OSRP) while
recognizing the hazard posed by the derailment of even a small number
of crude oil cars.''
    Many commenters have supported the third proposed threshold (i.e.,
(d) 42,000 gallons of crude oil per train consist) on the basis that it
was the lowest quantity threshold that PHMSA proposed. Given that
approximately 30,000 gallons can be carried in a single tank car,
42,000 gallons amounts to the quantity of crude oil that could be
contained and transported in two tank cars. Therefore, among the
proposed thresholds, the 42,000 gallons per train consist threshold
would plausibly have a high applicability and require the development
of a comprehensive plan by the greatest number of railroads. Thus,
commenters supporting this threshold have held that it would plausibly
result in the greatest amount of prevention and preparation on the part
of affected entities and consequently, the greatest amount of risk
reduction, enhancement of public safety, and protection of the
environment.
    Similarly, the threshold of 42,000 gallons received some support
from commenters that propose lower quantities of crude oil as a
threshold (e.g., 1 gallon, 24,000 gallons, 30,000 gallons, etc.), but
acknowledged that a threshold of 42,000 gallons for practical purposes
would result in approximately the same amount of applicability and
affected entities. Assuming the typical tank car contains 27,000 to
30,000 gallons of crude oil, the main difference between a threshold of
1 gallon and 42,000 gallons would be whether a railroad could legally
transport one tank car of crude oil without a comprehensive oil spill
response plan. Accordingly, the Delaware Bay & River Cooperative has
commented, ``. . . one rail car of 30,000 gallons of crude can have
significant environmental impacts if spilled in a sensitive area along
the Delaware River or other body of water. Therefore, 42,000 gallons
may be the appropriate threshold level to trigger the comprehensive
plans requirement.''
    Nevertheless, some commenters have suggested that the threshold
should be one tank car or any quantity of crude oil. The Waterkeeper
Alliance has stated, ``Whether one car, twenty cars, or one hundred and
twenty cars in a train are carrying crude oil, crude-by-rail is
inherently dangerous, and PHMSA should require the railroad industry to
adequately prepare for any size spill. In sum, the new PHMSA Response
Rule must set the comprehensive oil spill response planning threshold
at one railcar.'' Thus, commenters in support of a threshold of one
tank car or any quantity of crude oil hold that even the transport of
small amounts of crude oil entail substantial risk and should

necessitate a comprehensive oil spill response plan, rather than a
basic plan.
    In the ANPRM, PHMSA encouraged commenters to provide additional
thresholds differing from those that PHMSA explicitly proposed.
According to AAR and ASLRRA, the scope of the rule should involve a
threshold based on ``Petroleum Crude Oil Routes'' (PCORs). AAR and
ASLRRA define PCORs as ``. . . a railroad line where there is a minimum
of twelve trains a year, which is an average of one train a month, that
transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or
UN3494) or more that is within 800 feet or closer from the centerline
of track to a river or waterway that is used for interstate
transportation and commerce for more than 10 miles.'' Assuming each
tank car has a capacity of 30,000 gallons, the transport of 1,000,000
gallons of crude oil would require around 33 tank cars.
    The AAR and the ASLRRA also proposed geographical criteria as part
of their PCOR definition, differing from PHMSA's proposed thresholds,
which are based on a quantity transported or number of carloads within
a train consist. As part of its geographical criteria, the AAR suggests
that a PCOR must be within 800 feet of a river or waterway used for
interstate transportation and commerce for more than 10 miles. The AAR
claims that the 800 feet figure is based on a railroad's experience
following a discharge. The AAR does not give further details on how the
800 feet figure was developed. The AAR also claims that the 10 miles
figure used in its PCOR definition is based on regulations within 49
CFR part 194, which are applicable to oil pipeline owners and operators
and are overseen by PHMSA's Office of Pipeline Safety (OPS). Discussion
of this claim can be found in the ``Discussion of Public Comments: Plan
Scope/Threshold'' section.
    In addition, the AAR has limited the scope of its proposed
threshold to include only those railroad lines that move at least
twelve trains a year, an average of one train per month. The AAR did
not include any data to support incorporating the parameter of twelve
trains per year into the NPRM's thresholds or to show that the use of
the PCOR definition as a threshold would improve safety or be cost-
effective.
    Many other commenters proposed alternative thresholds, such as five
carloads or 3,500 gallons per tank car. In support of a five carload
threshold, NASTTPO has stated that ``it is common for more than one
HHFT tank car to be involved [in a derailment].'' In support of a 3,500
gallons per tank car threshold, commenters, such as safety consultant
John Joeckel, have suggested that the current, 3,500-gallon threshold
in 49 CFR part 130 for basic oil spill response plans could become the
new threshold that triggers the need to develop a comprehensive plan.
These commenters reiterate that the current regulations for
comprehensive plans under 49 CFR 130 do not generally apply to
railroads given that tank cars used to ship crude oil do not have
capacities of 42,000 gallons or greater. They suggest that PHMSA could
remove part 130's reference to a basic plan and repurpose the 3,500
gallon per packaging threshold so that it would trigger the need for a
comprehensive plan.
    In addition, some commenters restated the need to revise the
thresholds in 49 CFR part 130 and suggested that they align with
probable spill volumes or other planning volumes found in other federal
regulations (e.g., ``average most probable'' or ``maximum most
probable''). In particular, the Response Group has stated that the
threshold should relate to probable spill volumes and historical data
but did not specifically propose as a threshold a numerical value.
    Similarly, the American Petroleum Institute (API) did not express
support for PHMSA's proposed thresholds nor did API specifically
propose a new threshold. However, API emphasized that ``DOT should
choose a threshold that is reasonable and practical . . . Onerous
planning requirements with an extremely low threshold could
exponentially increase the cost and burden on the railroads, while
vague planning requirements triggered by a baseless threshold would be
equally challenging.'' Thus, API has expressed that the cost to
railroads in developing and implementing comprehensive plans could be
substantial, and PHMSA should consider and analyze the costs of
applying different thresholds.
    In addition to API's above comment, PHMSA received additional
commenter input on the cost-effectiveness of the proposed thresholds.
Environmental groups and others have expressed that cost concerns
should be secondary to concerns about the potential benefits of
enhancing public safety and reducing damage to the environment. For
example, the Center for Biological Diversity has stated that the cost-
effectiveness of thresholds ``. . . is somewhat immaterial, and cost
should not be considered in establishing a threshold for comprehensive
OSRPs for oil trains, since this is an issue of public health.'' Safety
consultant John Joeckel has offered a similar comment, stating, ``Are
we concerned with the cost to the responsible party to develop and
implement the OSRP? Or, should we be concerned of the cost to the
public arising from an ineffective response with the consequences of
significant environmental damage or risks to public safety?''
    Many commenters have suggested that the scope of this rule be
expanded to include other materials besides oil. Commenters have asked
PHMSA to require comprehensive oil spill response plans for rail cars
transporting any type of hazardous materials. The Village of
Barrington, IL and the TRAC Coalition, in particular, have stated,
``Given the clear authority that PHMSA has to issue regulations under
federal law for a broad range of hazardous goods, TRAC strongly
believes the rules being promulgated under this ANPRM should be applied
to all hazmat transported on trains.'' This commenter has cited the
Cherry Valley, IL ethanol train derailment to show that, ``While the
ANPRM is about oil spill response plans, clearly other hazardous
material poses similar threats to human and environmental safety.''
Other commenters, such as LRT-Done Right, have stated that carriers of
ethanol should also be subject to comprehensive OSRP requirements.
    Conversely, other commenters have suggested that the scope of the
rule be limited in order to more specifically address the risks of
petroleum crude oil transport. ``Petroleum crude oil'' (UN1267) is a
specific entry in the Hazardous Materials Table (HMT) under 49 CFR
172.101. ``Petroleum sour crude oil, flammable, toxic'' (UN3494) is a
similar entry. On this basis, AAR has asked that the scope of the rule
be limited explicitly to these entries in the HMT. The Dangerous Goods
Advisory Council (DGAC) has offered an analogous suggestion, stating,
``[DGAC] believe[s] that the OPRP [sic] should be limited to crude oil
trains only which are comprised of tank cars originating from one
consignee to one consignor.'' In other words, by limiting the scope of
the rule to ``crude oil'' or ``petroleum crude oil'' only, commenters
are suggesting that the transport of refined petroleum products,
ethanol, or other flammable liquids should not be relevant to the
determination of whether a rail carrier must have a comprehensive OSRP.
Discussion of Comments: Plan Scope/Threshold
    PHMSA carefully considered the comments submitted to the ANPRM
regarding the scope of the rule in order to apply comprehensive OSRP
requirements to address the increased

risks posed by the expansion of domestic energy production and
subsequent rail transportation. PHMSA recognizes the importance of
establishing a threshold that enhances public safety, protects the
environment, is reasonable and practical, and facilitates compliance
and enforcement. PHMSA acknowledges that an effective threshold will
take into account a range of factors, and might include distinctions
regarding the quantity of petroleum oil transported, the number of
carloads within a train consist, the definition of different materials
subject to regulation, geographic or location-based criteria, and cost/
benefit or practical considerations.
    PHMSA emphasizes that safety and environmental risks are related to
the quantity of oil transported by trains, and the configuration of
tank cars loaded with petroleum oil. Thus, PHMSA has proposed in this
NPRM to expand applicability for petroleum oil based on the number and
configuration of tank cars transporting petroleum oil in a train.
Specifically, this rulemaking proposes that comprehensive oil spill
response plans be required of railroads that transport 20 or more tank
cars loaded with liquid petroleum oil in a continuous block in a single
train or 35 or more of such tank cars dispersed throughout the train.
We propose the comprehensive OSRP requirements continue to apply to
tank cars exceeding 42,000 gallons carrying petroleum or other non-
petroleum oil. In this NPRM, we discuss our basis for this proposed
applicability, as well as how it may differ from commenters'
suggestions or proposals.
    The scope of this rule is directly related to the definition of oil
because the statutory authority to require OSRPs comes from Sec.  1321
of the CWA, as amended by OPA, which applies solely to oil and
hazardous substances. The CWA applies to both petroleum and non-
petroleum oils. In the 1996 final rule, PHMSA incorporated the
definition of ``oil'' from OPA into the current requirements 49 CFR
part 130 and developed definitions for ``petroleum oil'' and ``other
non-petroleum oil'' in order to differentiate petroleum oils from non-
petroleum oils throughout the requirements in part 130.
    This rulemaking has been initiated to respond to the changing
conditions from the increase in the volume of petroleum oil transported
by rail and consequences of resulting incidents. PHMSA is not aware of
incidents of unit trains carrying other non-petroleum oils which have
demonstrated a need to expand the applicability of comprehensive plans
for these oils. Therefore, instead of proposing that the expanded
applicability of the comprehensive plan apply to all oils (as defined
in 33 U.S.C. 1321), PHMSA proposes to limit the proposed expanded
applicability to petroleum oils, whether refined or unrefined,
transported in certain train configurations. PHMSA proposes to continue
to apply the threshold of tank cars exceeding 42,000 gallons carrying
petroleum or other non-petroleum oil.
    Further, we propose to revise the definition of ``petroleum oil''
in this rulemaking as ``any oil extracted or derived from geological
hydrocarbon deposits, including oils produced by distillation or their
refined products.'' This definition continues to include mixtures of
both refined products, such as gasoline and unrefined products, such as
petroleum crude oil. We are not proposing any changes to the scope in
Sec.  130.2(c)(1) which clarifies that the requirements of part 130 do
not apply to ``Any mixture or solution in which oil is in a
concentration by weight of less than 10 percent.'' Therefore petroleum
oil in part 130 includes mixtures containing at least 10% petroleum
oil, such as denatured ethanol fuel E85 (ethanol containing 15%
gasoline). However, mixtures containing less than 10% petroleum oil,
such as diluted waste water or E95 (ethanol with 5% gasoline) are not
included. Oils which do not contain petroleum, such as synthetic oils
or essential oils continue to be defined as ``other non-petroleum oil''
in Sec.  130.5.
    PHMSA disagrees with AAR that the applicability of the
comprehensive plans should be limited to petroleum crude oil, as
described by HMT entries UN 1267 and UN3494. Limiting the applicability
of comprehensive plans to solely these entries would result in
regulating oils that generally present a similar type of risk in an
incongruous manner. On this point, PHMSA holds that liquid petroleum
oils, such as crude oil, diesel fuel, gasoline, or other petroleum
distillates, present similar safety risks in commercial transportation.
    There are several factors to consider when determining which
hazardous materials should be subject to the new or revised
requirements of this proposed rule. In general, PHMSA assesses the
risks of hazardous materials in transportation in accordance with the
nine different hazard classes under the HMR; however, the regulations
we seek to amend in 49 CFR part 130 are not part of the HMR. Namely,
part 130 is authorized under 33 U.S.C. 1321--Oil and hazardous
substance liability, not the Federal hazardous materials transportation
law of 49 U.S.C. 5101-5128.
    Moreover, the proposed applicability in this NPRM generally aligns
with the definition of a ``High-Hazard Flammable Train'' (HHFT) as
published in the final rule, ``Enhanced Tank Car Standards and
Operational Controls for High-Hazard Flammable Trains'' (``HM-251'').
The proposed applicability differs, however, in the types of materials
affected. By way of HM-251, the definition of an HHFT involved the
transport of all Class 3 flammable liquids; whereas the comprehensive
OSRP requirements in this rulemaking involve the transport of petroleum
oil for consistency with part 130's statutory authority. Therefore, the
proposed expanded applicability applies to those HHFTs which carry
petroleum oil. This creates an integrated approach between the planning
requirements in this rulemaking and the other operational controls in
the HMR. To better facilitate this integration, residue or diluted
mixtures of petroleum oils that no longer meet the definition of a
Class 3 flammable or combustible liquid per 49 CFR 173.120 are not
included in expanded applicability.
    In the ANPRM, PHMSA asked if the 1,000,000 gallons threshold is
appropriate for safety and cost-effectiveness. No commenters supported
using 1,000,000 gallons as a single metric for applicability. Many
commenters have suggested that the 1,000,000 gallons threshold is not
effective because oil spills involving trains with quantities below
this threshold could cause substantial harm to the environment. While
commenters provided many examples of thresholds below 1,000,000
gallons, commenters provided insufficient data about the likelihood of
a release from these tank car volumes to demonstrate such thresholds
are ``reasonably expected'' to cause substantial harm. Thus, in order
to better understand this differential of risk and the most likely
number of punctures resulting in a derailment, PHMSA looks to the
modeling conducted by FRA in support of HM-251.\40\ In particular, HM-
251 offered a scientific justification for the HHFT definition and
using this threshold of tank cars as an identifier of higher-risk train
configurations. Based on modeling and analysis performed by FRA, 20
tank cars in a continuous block loaded with a flammable liquid and 35
tank cars loaded with a flammable liquid dispersed throughout a train
display consistent characteristics as to the number of tank cars likely
to be

breached in a derailment. The operating railroads commented on HM-251
and indicated that this threshold would exclude ``manifest'' trains and
focus on higher risk, ``unit'' trains. FRA completed an analysis of a
hypothetical train set consisting of 100 cars. The analysis assumes 20
cars derailed. The highest probable number of cars losing containment
in a derailment involving a train with a 20-car block (loaded with
flammable liquid) located immediately after the locomotive and buffer
cars would be 2.78 cars. In addition, the most probable number of cars
losing containment in a derailment involving a manifest train
consisting of 35 cars containing flammable liquids dispersed throughout
the train would be 2.59 cars. Therefore, 20 tank cars in a block and 35
tank cars dispersed throughout a train display consistent
characteristics (i.e., 2.78 cars breached vs. 2.59 cars breached). If
the number of flammable liquid cars in a manifest train were increased
to 40 or 45, the most likely number of cars losing containment would be
3.12 and 3.46 cars, respectively. This analysis served as one basis for
the selection of the revised HHFT definition for HM-251, and it also
helps to shape our discussion of applicability in this proposed rule
for oil spill response plans (HM-251B).
---------------------------------------------------------------------------

    \40\ 80 FR 26665; 5/8/2015.
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    As a result of this modeling, PHMSA holds that a derailment
involving a train moving less than 20 tank cars in a continuous block,
or less than 35 tank cars throughout the train, would result in
relatively fewer punctures than derailments involving more than this
number of tank cars. Specifically, as a result of this modeling, PHMSA
suggests that the most likely number of tank car punctures for a train
with less than 20 tank cars in a block would be less than 2.78, and in
a derailment scenario with less than this number of punctures, the
derailment is significantly less likely to cause substantial harm to
the environment. In more general terms, PHMSA would suggest, as a
result of these modeling outcomes from FRA, that a derailment involving
two or fewer tank car punctures is less likely, and therefore not
``reasonably expected'' to cause substantial harm to the environment.
Therefore, we believe the applicability proposed in this NPRM
appropriately indicates the trains that can reasonably be expected to
cause substantial harm to the environment. Consequently, by way of this
rulemaking, PHMSA proposes to require these higher-risk train
configurations to operate in conformance with comprehensive oil spill
response plans.
    In addition to the data on the most likely number of tank car
punctures in a derailment, PHMSA further maintains that lower-risk
train configurations should not be the focus of this rulemaking because
extending the requirements of this rule to operators of lower-risk
configurations could be burdensome, costly, and inefficient. There are
many costs involved in developing and implementing a comprehensive oil
spill response plan, such as retainer fees, training and drill costs,
and plan development and submission costs. For more information
regarding regulatory flexibility, please see Section VIII, Subsection E
(``Regulatory Flexibility Act, Executive Order 13272, and DOT Policies
and Procedures''). For more information regarding the costs of this
rule on the regulated community, please see the draft RIA and the
associated discussion in Section VIII, Subsection A (``Executive Order
12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory
Policies and Procedures'').
    Commenters have also suggested that 1,000,000 gallons, which is
used as a threshold in the development of non-transportation-related
facility response plans, is not an adequate threshold because the
context of rail transport differs substantially from the context of
fixed facilities. PHMSA agrees. PHMSA believes that a threshold based
on a number of carloads is more effective and practical, and the
proposed applicability in this rulemaking is specific to the context of
rail transportation. Moreover, as previously discussed, the proposed
applicability identifies higher-risk train configurations which could
reasonably be expected to cause substantial harm to the environment in
the event of a derailment.
    A few commenters voiced support for the second threshold of the HM-
251B ANPRM, which aligned with the HHFT definition proposed in the HM-
251 NPRM and published on August 1, 2014 (i.e., 20 tank cars in a
train). Given the proposed applicability in this rulemaking, PHMSA
generally agrees with these commenters; however, the nature of the HHFT
definition has changed since HM-251B's ANPRM publication. On May 8,
2015, PHMSA published the final HM-251 and revised the HHFT definition
to comprise 20 tank cars loaded with a Class 3 flammable liquid in a
continuous block or 35 or more tank cars loaded with a Class 3
flammable liquid dispersed throughout the train. Thus, by way of HM-
251, the HHFT definition came to reference the configuration of tank
cars in the train as well as an additional threshold for the number of
tank cars in a train. Furthermore, PHMSA has adapted the HHFT
definition of HM-251 to form the basis for the applicability for
comprehensive oil spill response plans, but notably restricts this
applicability to liquid petroleum oils, rather than all Class 3
flammable liquids. For these reasons, PHMSA has not proposed to codify
the HHFT definition under part 130.
    Moreover, this applicability is important because it is likely that
trains with less than 20 tank cars of petroleum oil in a continuous
block, or less than 35 of such cars dispersed throughout the train, are
the result of configuring ``manifest'' trains. Manifest trains involve
combining multiple shipments of potentially various materials from
various shippers to form a single train consist. These trains differ
substantially from ``unit'' trains, which generally involve a single
commodity offered by a single shipper (the consignor) and delivered to
a single entity (the consignee). As discussed in the final rule
document for HM-251, the rail industry has noted that manifest trains
carrying limited loads of oil along with other commodities pose less of
a risk than unit trains with significantly larger loads of oil.
Further, the rail industry commented on the NPRM of HM-251, relaying
that in many situations it would be difficult to pre-determine when an
HHFT would be used and that shippers of smaller volumes of oil would
not know if their shipment would ultimately be configured into an HHFT.
    PHMSA carries these concerns and related analyses from HM-251 into
this proposed rule, as we believe it is still pertinent to the
discussion of comprehensive oil spill response plans. In this
rulemaking, PHMSA intends to identify higher-risk train configurations
that pose a threat of substantial harm to the environment. Conversely,
PHMSA does not intend to affect lower-risk train configurations moving
smaller quantities of petroleum oil, which are more likely to be the
result of configuring a manifest train. Lower-risk train configurations
are significantly less likely to cause substantial harm to the
environment and extending the full breadth of the proposed requirements
for a comprehensive plan to entities transporting lower-risk train
configurations would likely be too burdensome and costly, for the
limited safety benefits provided. Furthermore, the proposed quantity
provides an integrated approach to the comprehensive OSRP requirements
and the requirements of HHFTs.

    In opposition to an HHFT-like applicability, many commenters have
argued that oil spills involving carloads below this threshold could
cause considerable harm to the environment. On this point, PHMSA
acknowledges that oil spills of a lesser amount can cause harm, but
holds that trains carrying less than 20 tank cars of petroleum oil in a
continuous block, or less than 35 of such tank cars dispersed
throughout the train, are effectively lower-risk train configurations,
and they cannot be reasonably expected to cause substantial harm. In
other words, these trains may be capable of causing harm, but the harm
they can cause is significantly less likely to qualify as substantial
harm. As previously discussed, modeling data from FRA indicates that
trains with less than 20 tank cars in a block, or less than 35 tank
cars dispersed throughout a train, could not be reasonably expected to
cause substantial harm because, in derailment scenarios, relatively few
tank cars containing petroleum oil would be breached on average. As
previously discussed, this modeling demonstrated that the most likely
number of punctures in a derailment scenario involving a train with 20
tank cars in a continuous block would be 2.78.
    Furthermore, given the enhanced tank car standards promulgated in
HM-251 and resulting improvements in tank car integrity, PHMSA believes
the likelihood of a tank car releasing all of its contents in a
derailment has been significantly reduced. Thus, in relation to the
derailment modeling data (discussed above), PHMSA maintains that a
train with a 20-car block of petroleum oil would not result in 83,400
gallons spilled (2.78 tank car punctures x 30,000 gallons per tank car
= 83,400 gallons discharged from the breached tank cars). Rather, a
derailment scenario involving 20 tank cars of petroleum oil in a
continuous block would most likely result in less than 83,400 gallons
discharged. For these reasons, PHMSA cautions against the assumption
implicit in some commenters' comments that the derailment of one tank
car automatically results in the discharge of 30,000 gallons of
product, and the derailment of two tank cars is equivalent to the
discharge of 60,000 gallons of product, and so forth. As the modeling
data from FRA indicates, the number of tank cars that breach in a
derailment scenario is in all likelihood fewer than the number of tank
cars that derail. Separately, given the tank car design enhancements
promulgated by HM-251, the likelihood that breached tank cars would
release all of their contents has been reduced. Accordingly, PHMSA
feels that extending the requirement to develop a comprehensive OSRP to
entities operating lower-risk train configurations would not be
efficient. It would require significant investments on the part of
small entities that are not key factors in the transport of petroleum
oil by rail, and these investments would not yield analogous safety
benefits. Please see Section VIII, Subsection E (``Regulatory
Flexibility Act, Executive Order 13272, and DOT Policies and
Procedures'') for impacts on small entities and the draft RIA for
further discussion of safety benefits and costs to industry.
    Many commenters voiced support for the third threshold proposed in
the ANPRM, which was 42,000 gallons. PHMSA disagrees with these
comments because we believe that a threshold based on the number of
carloads of petroleum oil in a train would be more practical for
compliance and enforcement purposes than a threshold based on gallons.
In general, 42,000 gallons as a threshold could be impractical or
burdensome. Since tank cars tend to carry around 30,000 gallons of
product, a threshold of 42,000 gallons would effectively equate to
differentiating a train with one carload of petroleum oil and a train
with two carloads and thus, requiring a comprehensive plan for the
transport of two carloads of petroleum oil. As previously discussed,
PHMSA affirms that higher risk train configurations should be the focus
of the proposed rule and that a train transporting two tank cars of
petroleum oil simply does not present the same amount of risk as
higher-risk train configurations. While a train with two tank cars of
petroleum oil could derail, potentially releasing its contents and
harming the environment, it is not nearly as likely to cause
substantial harm as higher-risk trains with much larger quantities of
petroleum oil.
    In the ANPRM, PHMSA asked the public if ``another threshold'' were
appropriate or cost-effective. In response to PHMSA's inquiry of
``another threshold,'' many commenters offered thresholds that are less
than 42,000 gallons, such as one tank car, 24,000 gallons, 3,500
gallons, or any quantity of petroleum oil. PHMSA disagrees with these
suggestions. Rail industry practices demonstrate that there is only a
slight distinction between the threshold of 42,000 gallons, which was
proposed by PHMSA in the ANPRM, and the lesser quantities proposed by
some commenters in response to the ANPRM. In practical terms, the
thresholds of any quantity, 3,500 gallons, and 24,000 gallons would
result in regulating trains with one tank car of petroleum oil, whereas
a 42,000-gallon threshold would result in regulating trains with two
tank cars. PHMSA maintains that this distinction is slight and in
either case, requiring comprehensive plans of trains that transport
merely one or two tank cars of petroleum oil would most likely be
burdensome upon implementation and be costly relative to the limited
safety benefit it would offer, especially for small entities. As
previously discussed, PHMSA also holds that a threshold based on a
number of carloads is more practical than a threshold based on a gallon
amount.
    In a similar vein, PHMSA holds that imposing an applicability of
five tank cars, or any other number of tank cars that is less than 20
in a continuous block or 35 when dispersed throughout a train, would
most likely be costly or burdensome and yield limited safety benefits
due to the impacts on small entities as well as ``manifest'' train
configurations involving petroleum oil. Please see the draft RIA for
further discussion of the costs and benefits of the proposed rule.
    In response to the comment by AAR and ASLRRA, PHMSA disagrees with
using the definition of a Petroleum Crude Oil Route (PCOR) of `` . . .
a railroad line where there is a minimum of twelve trains a year, which
is an average of one train a month, that transport 1,000,000 gallons of
petroleum crude oil (UN1267 and/or UN3494) or more that is within 800
feet or closer from the centerline of track to a river or waterway that
is used for interstate transportation and commerce for more than 10
miles'' to determine whether a rail carrier must develop a
comprehensive plan. We do not have information on exactly how many rail
carriers or trains would be permitted to transport petroleum oil
without a comprehensive plan if the applicability of this rulemaking
were to incorporate the AAR and ASLRAA's proposed PCOR definition or
the quantity of 1,000,000 gallons, and invite public commenters to
provide information to assist in further evaluating the benefits and
costs of these alternative applicability thresholds. Overall, PHMSA
believes that the PCOR definition is overly complicated, and creates
uncertainty for FRA, communities, and responders about which unit
trains of petroleum oil are excluded from the requirement to have a
comprehensive plan. PHMSA seeks to align increased risk with improved
oil spill response planning such that higher risk unit train
configurations would require comprehensive plans. PHMSA

suggests that AAR and ASLRRA's PCOR definition might permit an
unwarranted number of trains which present the potential of substantial
harm to the environment to operate without a comprehensive plan.
Additional concerns with this definition are described in the following
discussion.
    Further, as previously discussed, PHMSA disagrees with the PCOR
definition because PHMSA believes that using a gallons basis for the
threshold could present compliance and enforcement issues, especially
relative to the use of a number of tank cars. Since tank cars vary in
the quantity of product that they can transport, PHMSA suggests it is
much easier to determine the number of tank cars in a train carrying
petroleum crude oil than it is to assess the exact amount of gallons
carried by any number of tank cars designed with potentially different
capacities. For example, a train carrying 35 tank cars of petroleum oil
would likely be ``around the margin'' of 1,000,000 gallons of petroleum
oil. In other words, accurately determining if the train as configured
has 990,000 gallons of product, versus 1,000,000 gallons, might be
difficult for compliance and enforcement purposes; whereas, it is
easier to observe that the train as configured has 35 tank cars. While
we proposed two thresholds based on gallon amounts in the ANPRM, we
have since crafted our proposed threshold in the NPRM to reflect this
updated viewpoint and analysis.
    Moreover, PHMSA disagrees with the AAR's use of 800 feet as a
geographic criterion in the PCOR definition because it might present
compliance and enforcement issues. Assessing the need for a
comprehensive plan or a potential violation would require a potentially
taxing confirmation of the distance of a waterway from the centerline
of the track, especially ``around the margin'' of 800 feet. In
addition, this geographic criterion might result in different outcomes
of response preparedness despite nearly identical levels of risk. For
example, in a scenario wherein one waterway is 790 feet from the
centerline of the track, and another scenario wherein a different
waterway is 801 feet from the centerline of the track, the second
waterway might be better protected from an oil spill than the first.
Thus, the 800 feet geographic criterion appears to be arbitrary given
that the commenter has not offered data to suggest that 800 feet would
be an appropriate ``buffer'' zone between a potential derailment site
and navigable water and as such, enhance safety and prevent the entry
of oil into the waterway. Further, the distance between the centerline
of the track and navigable water is but one of the several factors that
could influence the probability of a spill damaging navigable water;
that is, other geographical factors exist that might increase this
probability substantially.
    PHMSA also disagrees with AAR's contention that in order to trigger
the response plan requirement, the waterway in question must be a
maximum distance of 800 feet from the centerline of the tracks and the
waterway must be ``a river or waterway used for interstate
transportation and commerce.'' Both the distance from and criteria for
a waterway as proposed by AAR are inconsistent with the CWA, which
provides the statutory authority for this rulemaking. For example,
rather than a distance of ``800 feet'' from navigable waters, the CWA
requires oil spill response plans for any facility that ``because of
its location, could reasonably be expected to cause substantial harm to
the environment by discharging into or on the navigable waters,
adjoining shorelines, or the exclusive economic zone.'' PHMSA is not
aware of evidence demonstrating that all spills originating more than
800 feet away from navigable waters could not be reasonably expected to
cause substantial harm to these resources. PHMSA assumes that all
routes are expected to have the potential to impact navigable waters
and that performing an analysis for every point along the route is not
practical, as there are various factors that could complicate this
analysis and hinder the ability to foresee an impact to navigable
waters. For example, identification of navigable waters requires
consideration of geographical features, seasonal variation, vegetation,
etc. The possible impact zone surrounding the track could also depend
on topography or the viscosity of the petroleum product transported.
Therefore, the entire route should be covered by the Oil Spill Response
Plan and after a discharge of oil occurs, the Federal On-Scene
Coordinator should make the determination of the threat in the specific
conditions.
    In addition, per AAR's PCOR definition, a track or segment of track
over which only eleven crude oil-carrying trains travel per year would
not require a comprehensive plan; however, if a twelfth train travels
over this same segment or track, it would necessitate a comprehensive
plan. Thus, PHMSA suggests that this aspect of the PCOR definition may
be impractical for compliance and enforcement efforts. We anticipate
that it would not be possible for a railroad to make an accurate,
advance prediction of commodity flows and train consists, because that
prediction would rely on external factors beyond the railroad's
control. For example, commodity flows and train consists would be
affected by fluctuations in oil or other commodity prices, decisions by
customers to pursue different shipping routes, or overall economic
factors.
    However, PHMSA recognizes that AAR has proactively identified ways
to target the affected entities that present higher safety risks while
trying to limit the impact of the proposed rule and associated costs on
entities that pose significantly less risk. To that end, PHMSA
appreciates the attentiveness to providing regulatory flexibility and
holds that it may be acceptable to except certain small entities from
the proposed requirements of comprehensive oil spill response plans if
they are overly costly or burdensome for these entities. For more
information regarding regulatory flexibility, please see Section VIII,
Subsection E (``Regulatory Flexibility Act, Executive Order 13272, and
DOT Policies and Procedures''). Moreover, PHMSA seeks comment on ways
that might be used to effectively provide regulatory flexibility to
bona fide small entities that pose a lesser safety risk and may not be
able to comply with the requirements of the proposed rule due to cost
concerns, limited benefit, or practical considerations.

C. Contents of Comprehensive Oil Spill Response Plans

    Commenters submitted a variety of comments regarding plan contents
to the ANPRM. In the ANPRM, PHMSA asked the public two questions that
were specific to the area of plan contents. To paraphrase, the first
question asked whether the current requirements for comprehensive OSRPs
were ``clear'' or if greater specificity should be added to 49 CFR part
130 (``Part 130''). The second question asked if any comprehensive OSRP
elements should be ``added, removed, or modified.''
    Regarding the first question, the majority of commenters stated
that they were not clear and needed greater specificity. For example,
the Response Group has said that the current requirements under part
130 are ``too generic in nature.'' In addition, API has stated, ``The
current PHMSA spill response plan requirements applicable to the
railroads do not provide the clarity needed to develop comprehensive,
responsive and consistent spill response plans . . . PHMSA should
consider revising part 130 to provide better specificity to the

regulated community and should look to EPA, USCG and BSEE for examples
and practices that would work with the operational requirements of the
railroads.'' Further, DGAC has stated that ``it would be advisable to
develop training and outreach information'' to assist affected entities
in the development of comprehensive OSRPs. Overall, commenters from a
variety of backgrounds have asked PHMSA to clarify the current
requirements under part 130, reference other agencies' plans (e.g.,
plans under USCG, BSEE, EPA, or PHMSA's Office of Pipeline Safety),
provide further instructions and guidance to affected entities, and
ensure that new requirements reflect the context of rail
transportation. Commenters such as California's Office of Spill
Prevention Response and Washington State's Department of Ecology also
highlighted the requirements aligned necessary to align with
obligations in the CWA statute.
    However, some commenters stated that the existing requirements are
adequate as currently written. The New York State Department of
Transportation has stated, ``The use of comprehensive OSRPs is not a
new concept . . . New York State believes the requirements of OSRPs are
clear enough for railroads and shippers to understand what is required
of them.'' The American Fuel & Petrochemical Manufacturers (AFPM) has
stated that the ``requirements of OSRPs in 49 CFR 130.31 provide
sufficient clarity for the railroads to take steps to plan for and
address potential discharges of crude oil. The focus of PHMSA's efforts
should be . . . ensuring appropriate oversight and enforcement of
existing spill planning obligations, including ensuring that railroads
have available the equipment and personnel necessary to address
discharges.'' Similarly, the City of Seattle claims that the current
comprehensive OSRP requirements are clear for railroads and shippers,
but states that the plan requirements are not clear to the public and
``do not properly engage the public.'' Regarding the City of Seattle's
comment and public engagement, please refer to the summary and
discussion of comments under Section V, Subsection E
(``Confidentiality/Security Concerns for Comprehensive Oil Spill
Response Plans'').
    PHMSA also asked the public if any plan elements within part 130
should be added, removed, or modified. Several commenters identified
plan elements that could be added, removed, or modified, and suggested
different means of addressing: Adverse weather conditions; topological
and geographic risks near rail routes; environmentally sensitive or
significant areas; temporary storage of loaded rail cars; worst-case
discharge planning; communication between Qualified Individuals and
local, state, and federal officials; training standards; drills;
equipment inspection; private and public resource contracting; response
time requirements; timeframes for reviewing or updating OSRPs; public
awareness; alternative plans; and NTSB safety recommendations, among
other issues.
    The Association of American Railroads (AAR) and American Short Line
and Regional Railroad Association (ASLRRA), in particular, have made
several suggestions regarding potential additions or modifications to
part 130. AAR and ASLRRA have submitted ``proposed regulatory
language'' for OSRPs. Within this language, they have suggested that
rail carriers determine the worst-case discharge amount and provide
their methodology within the OSRP. They have referenced National Oil
and Hazardous Substances Pollution Contingency Plan (NCP) and Area
Contingency Plans (ACP) and provided a description of the requirements
that a rail carrier must follow to be ``consistent'' with the NCP and
each applicable ACP. In the same proposed language, AAR and ASLRRA have
outlined the format of a possible comprehensive OSRP, which would
include requirements for response resources, training, plan summaries
and other administrative aspects of an OSRP. AAR and ASLRRA have also
asked that an Integrated Contingency Plan (ICP) be acceptable if it
``provides equivalent or greater spill protection'' than the plan
required under part 130. The joint comments also made suggestions
related to recordkeeping, plan retention, periodic plan reviews, and
submission/approval. For more information regarding the approval of
plans, please refer to Section V, Subsection D (``Approval of
Comprehensive Oil Spill Response Plans'').
    The American Petroleum Institute (API) has suggested that
comprehensive OSRP requirements be re-structured to be ``consistent and
complementary with other legal spill prevention rules.'' API holds that
comprehensive OSRP requirements could use a different format. In
addition, API asks that DOT consider adopting the ``Response Zone''
concept that is currently utilized by pipeline operators. API also asks
that DOT consider the public awareness programs under 49 CFR part 195
in which pipeline operators take part.
    The Village of Barrington, Illinois and the TRAC Coalition have
asked that comprehensive OSRP requirements enhance an ``ongoing
partnership'' between railroads and local communities and include
requirements for more effective communication between railroads and
first responders. The commenter states that railroads must supply
railroads with ``response information for the particular type of hazmat
being transported'' and reiterates findings of an NTSB report
suggesting a ``documented failure of the railroad to provide
immediately the emergency response information and . . . shipping
papers, in printed form or electronically, to the incident commander.''
The commenter also states that communities need to know ``where needed
response assets are located.''
    Safety consultant John Joeckel has offered several suggestions for
modifying the current OSRP requirements. In general, this commenter has
stated that OSRP requirements should be more ``prescriptive'' and
``specific'' and follow the example of other agencies' regulations
(e.g., 49 CFR part 194--Response Plans for On-shore Oil Pipelines; 33
CFR 155--Tank Vessel Response Plans, etc.). For example, Mr. Joeckel
has said that comprehensive OSRPs should include: Planning standards to
be used in determining potential worst-case discharges and ``response
planning targets'' to specify the amount and types of response
resources that would arrive at the scene of an incident within specific
timeframes. He also suggests that current OSRP requirements include
more specific instructions for communications between the Qualified
Individual and local first responders, and that drills and exercises
follow the guidelines within the National Preparedness Response and
Exercise Program (NPREP). Mr. Joeckel offers several other areas in
need of modifications or additions to part 130, such as training
requirements, requirements for assurances of firefighting resources,
development of response zone appendices, descriptions of the
responsible parties within the response management system, and
requirements to address environmentally and economically sensitive
areas.
    In a similar vein, the Center for Biological Diversity and partner
commenters have asked that PHMSA include requirements for rail carriers
to analyze environmentally-sensitive or significant areas, mitigate
impacts to habitats and ecological services, and ``ensure that response
actions do not harm endangered species.'' The Center

for Biological Diversity has asked that OSRPs address consultations
with the Fish and Wildlife Service as well as the National Marine
Fisheries Service.
    The Emmett Environmental Law and Policy Clinic of Harvard Law
School, in collaboration with other environmental groups such as Sierra
Club, have asked for certain modifications to comprehensive OSRP
requirements. This commenter asks that the ``range of oils carried by
the railroad'' be described in OSRPs, as well as the ``variations in
topographical and climatological conditions.'' Similar to the comment
from the Center for Biological Diversity, the commenter also stipulates
that plans ``minimize the use of oil spill dispersants, whose effects
in freshwater environments are not well understood.''
    Several other commenters have asked that comprehensive OSRP
requirements be amended to address specific areas of environmental,
cultural, or national significance. For example, the National Parks
Conservation Association has recommended that ``site-specific response
plans'' be required of HHFTs that passes through national park
boundaries. The Flathead Basin Commission has relayed similar concerns
regarding site-specific response plans. In addition, the Waterkeeper
Alliance and partner commenters have stated that specific environmental
areas and water resources are at risk of experiencing oil spills, such
as the Spokane Valley, Columbia River, Puget Sound, Milwaukee River,
Lake Ontario watershed, San Francisco Bay, and Hudson River, and
suggested that OSRPs afford these areas consideration.
    Washington State's Department of Ecology, Department of Fish and
Wildlife, and Department of Natural Resources have proposed adding
several plan elements. For example, they have proposed a ``robust
drills and exercise program'' following the National Preparedness
Response Exercise Program (NPREP). They have proposed standards for
``oiled wildlife,'' response arrival times, and ``Group 5 oils,'' as
well as requirements for financial responsibility, sensitive site
strategies, and waste storage and management.
    In regard to changing the comprehensive OSRP requirements, New York
State's Department of Transportation has stated that an existing
requirement in part 130 must address the impacts of discharges upon
land and groundwater as well as surface waters. In addition, New York
State asks that OSRPs include more specific requirements to identify
the roles and responsibilities of rail carriers and their supporting
contractors relative to local communities and county/regional or state
agencies.
    Several firefighting and/or emergency response organizations have
commented on the need to add, remove, or modify the elements of part
130. The Pacific States/British Columbia Oil Spill Task Force has said
that OSRPs for the rail system should have a regulatory framework that
is similar to the United States Coast Guard's. The National Association
of SARA Title III Program Officials (NASTTPO) and the Oklahoma OHMERC
have said that comprehensive OSRPs should enable first responders to
have ``real time information'' on the contents of rail cars involved in
accidents and require training and drills to be provided by railroads
to local first responders. The City and County of Denver's Local
Emergency Planning Committee has also commented in support of NASTTPO's
suggestions on modifying comprehensive OSRP requirements. The National
Fire Protection Association (NFPA) has advised that two NFPA standards
be incorporated into the comprehensive OSRP requirements in order to
ensure that personnel responding to hazardous materials incidents be
adequately qualified and trained.
    In addition, the Transportation Trades Department, AFL-CIO (TTD),
which represents transportation workers under the International
Association of Fire Fighters (IAFF), has offered some suggestions
regarding potential modifications or additions to part 130. TTD has
noted that the current requirements ``appear to require coordination
with only private personnel and not public first responders.'' They
advocate that the role of public response personnel should also be
incorporated into comprehensive OSRP requirements. Further, they ask
that OSRPs be shared with fire fighters and paramedics. Please see
Section V, Subsection E (``Confidentiality/Security Concerns for
Comprehensive Oil Spill Response Plans'') for further discussion
regarding the distribution of OSRPs.
    With respect to adding elements to part 130, the Oregon Department
of Environmental Quality has shared its state planning standards,
including ``response time objectives'' for the use of containment booms
as well as oil recovery operations. Oregon also recommends that
comprehensive OSRPs require the establishment of equipment caches along
HHFT rail corridors.
    Similarly, the State of Minnesota shared some of the developments
of the state's recent oil transportation safety law. On behalf of the
state, Representative Frank Hornstein and Senator D. Scott Dibble have
outlined state requirement that ensure accurate train manifests,
establish response timeframes, institute a term of validity of three
years for response plans, require that railroads participate in ``take
home'' drills, and encourage the creation of cooperative equipment
caches.
    The Honorable Edward B. Murray and the City of Seattle have also
outlined OSRP elements that need to be added or modified. They have
stated that comprehensive OSRPs should provide: A clear understanding
of the federal response structure; safety procedures at the response
site and for obtaining required state and federal permissions for using
alternative response strategies; identification of environmentally and
economically sensitive areas; descriptions of the responsibilities of
the operator and government officials; and a training program that
satisfies the National Preparedness for Response Exercise Program
(PREP).
Discussion of Comments: Content of Plan
    We agree with the majority of commenters that the current
regulations lack specificity and it can be difficult to understand the
requirements of the plan. The lack of specificity is reflected in the
recommended elements provided by commenters. Commenters from diverse
backgrounds suggested that additional requirements for comprehensive
oil spill response plans should add greater specificity to existing
plan elements. For example, many commenters recommended that drills
should satisfy the National Preparedness for Response Exercise Program
(PREP). Many commenters also recommended adding elements that were
already encompassed in the current comprehensive plan requirements. For
example, the requirement to identify environmentally sensitive areas is
a component of the current requirement to comply with the National
Contingency Plan (NCP) and applicable Area Contingency Plan (ACP).
However, the general reference to be consistent with the NCP and ACP in
40 CFR part 300 is unclear, as this is a voluminous citation with many
sections that do not apply to rail. Overall, the input from commenters
demonstrated a clear need to improve the comprehensive plan
requirements. Therefore, we are proposing to separate the requirements
for basic and comprehensive plans. The following discussion focuses on
the proposed changes to comprehensive plans. As discussed in the
previous section, this rulemaking proposes to require

comprehensive plans for tank cars containing more than 42,000 gallons
of oil in a single package or railroads that transport 20 or more tank
cars loaded with liquid petroleum oil in a continuous block in a single
train or 35 or more of such tank cars dispersed throughout the train.
Thus, the 12-hour response timeframe applies only to track where
covered trains traverse.
    While it is not feasible to include every element recommended by
commenters, we looked for common themes and recommendations between
different commenters, requirements which would address challenges faced
in recent spill incidents, and requirements addressed by first
responders during PHMSA's stakeholder outreach efforts. We have
restructured and clarified the requirements of a comprehensive oil
spill response plan to be more similar to other federal agencies and to
provide greater specificity to assist in the regulated community's
compliance with plan elements. We did not propose to adopt the
recommendations from commenters that did not have a clear connection to
the statutory requirements or parallel requirements in other federal
regulations for oil spill response. Overall, the proposed changes are
most similar to PHMSA's Office of Pipeline Safety (OPS) OSRP
requirements under 49 CFR part 194, as they address OSRPs which must
account for large geographic areas, instead of fixed facilities.
However, we note there are some differences between responses to
pipelines and railroads and we have tailored the proposed requirements
appropriately. The proposed changes are intended to clarify the chain
of command and communication requirements, and to provide more
information about the resources available for response and the
conditions the plan addresses, while retaining the same overall plan
elements described in the statute.
    We agree with the multiple commenters such as API and Mr. Joeckel
who recommended using a requirement similar to response zones in
pipeline regulations. This approach was identified as the best
framework to address the unique challenge of creating a plan which
spans large geographic distances. The CWA statute requires that the
spill response plans make resources available by ``contract or other
means.'' It is unlikely and sometimes impossible for the same
responders and resources will be available at all points on a
particular route. Therefore, it is important that response zones in the
plan both identify the response resources, and ensure the response
resources are capable of covering the entire response zone.
    Commenters provided different recommendations for response times.
Washington State's Department of Ecology, Department of Fish and
Wildlife, and Department of Natural Resources; California Department of
Fish & Wildlife, Office of Spill Prevention & Response (OSPR), and
Oregon Department of Environmental Quality provided 6 hours as an
example of a possible response time for illustrative purposes. Both the
National Association of SERA Title Three Professionals Organization
(NASTTPO) and the Oklahoma Hazardous Materials Emergency Response
Commission assumed railroads are capable of mobilizing response
resources in 4-6 hours. On this issue of response time frames, AAR and
ASLRRA proposed that ``[e]ach railroad shall identify in the plan the
response resources which are available to respond within the time
specified, after discovery of a worst case discharge, as follows: (1)
[W]ithin 6 hours for designated high volume area as defined by the plan
and (2) [w]ithin 24 hours for all other river or waterways used for
interstate transportation and commerce.'' No commenters provided data
to support proposed response times.
    Commenters also requested that plans more closely align with other
federal agencies, such as the OPS requirements. In Sec.  194.115 ``Tier
1'' response resources must be available in six hours for ``High Volume
Areas'' and 12 hours for ``All Other Areas.'' Tier 2 and 3 require
resources to be available between 30 and 60 areas depending on the
designation. Part 194 of the 49 CFR does not include a definition for
``Tier,'' when describing the type of resources. OPS defines ``High
volume area'' in 49 CFR 194.5 as ``an area which an oil pipeline having
a nominal outside diameter of 20 inches (508 millimeters) or more
crosses a major river or other navigable waters, which, because of the
velocity of the river flow and vessel traffic on the river, would
require a more rapid response in case of a worst case discharge or
substantial threat of such a discharge. Appendix B to this [40 CFR part
194] part contains a list of some of the high volume areas in the
United States. To ensure response resources are adequately placed, USCG
gauges whether response resources can make it to a given location by
assuming response resources can travel 35 mile per hour.
    This rulemaking proposes to provide a single metric of 12 hours to
describe the location of response equipment, which is within the 4 to
24 hour range suggested by commenters. The 12 hour metric aligns with
the timeframe for `tier 1' resources for `all other areas' required by
OPS in part 194. We are also proposing to adopt the USCG assumption
that that response resources can travel according to a land speed of 35
miles per hour. Therefore, for response resources traveling by land,
the comprehensive OSRP will only be approved if response resources are
staged within 420 miles of any point in the response zone, or the
railroad demonstrates that a faster speed is achievable (e.g. air
support to transport resources).
    We did not propose a tiered approach to the response resources. The
AAR and ASLRRA proposal recommended allowing railroads to define ``High
Volume Area'' within each plan without any criteria for such a
definition. As there is nothing prohibiting railroads from staging
resources closer to specific route segments, we disagree that a
voluntary designation will increase coverage for sensitive areas. We
also disagree that 24 hours provides adequate coverage as a single
metric. As described above, OPS provides specific criteria used in
determining and defining high volume areas that were absent in the AAR
and ASLRRA proposal. However, not all the criteria in the OPS
definition of ``High Volume Area'' translate easily to rail
transportation (e.g., pipeline diameter). As we stated previously, we
assume the entire route threatens navigable water, and further
identification for every point along the route is impracticable.
Therefore, we assume if even if a shorter response time for spills more
likely to impact navigable waters, and a longer response for spills
that are less likely to impact navigable waters, railroads may need to
locate response resources using the shorter response time requirement
for its entire track network where covered trains traverse. This would
increase costs with uncertain corresponding benefit. We note that we
solicit comment in both this NPRM and the RIA on whether the rule
should define specific track locations where shorter response times
might be warranted and provide the defining criteria for these
locations.
    PHMSA acknowledges that some areas in proximity to certain
navigable waters may benefit more than other areas from staging and
deploying resources in closer proximity, due to the potentially higher
consequences of spills in these areas. Therefore, PHMSA will consider
adopting shorter response time requirements than 12 hours in the final
rule based on information provided by commenters and other

information which may become available before a final rule is
published. Specifically, PHMSA solicits comments on whether the 12-hour
response time is sufficient for all areas subject to the plan, or
whether a shorter response time (e.g., 6 hours) is appropriate for
certain areas (e.g. High Volume Areas) which pose an increased risk for
higher consequences from a spill. We request comments on criteria to
define such ``High Volume Areas'' where shorter response time should be
required. Additionally, we ask whether the definition for ``High Volume
Area'' in 49 CFR 194.5 (excluding pipeline diameter) captures this
increased risk, or if there is other criteria which can be used to
reasonably and consistently identify such areas for rail. PHMSA also
asks whether requiring response resources to be capable of arriving
within 6 hours will lead to improvements in response, and for specific
evidence of these improvements. Further, PHMSA requests public comments
on whether the final rule should have a longer response time than 12
hours for spills for all other areas subject to the plan requirements
in order to offset costs from requiring shorter response times for High
Volume Areas.
    In addition to the time frame in which response resources must
arrive, the effectiveness and adequacy of these resources must also be
assessed. To that end, PHMSA has proposed in this rulemaking that
affected entities determine a worst-case discharge (WCD) planning
volume. PHMSA maintains that, without this particular planning volume,
rail carriers that transport petroleum oil in higher-risk train
configurations would most likely be unable to ``ensure by contract or
other means . . . the availability of, private personnel and equipment
necessary to remove to the maximum extent practicable a worst case
discharge (including a discharge resulting from fire or explosion), and
to mitigate or prevent a substantial threat of such a discharge,'' as
stipulated in the statute of the CWA.
    For purposes of understanding what constitutes a worst-case
discharge in the context of rail transportation of petroleum oil, PHMSA
has identified and analyzed the quantity released from tank cars in the
major derailments involving petroleum oil that have occurred in recent
years in the U.S. This analysis indicates that the worst-case
discharge, in terms of the quantity released from tank cars that
punctured or experienced thermal tears, would be approximately 500,000
gallons of petroleum oil. In particular, PHMSA has identified the
quantity released in the Casselton, ND derailment, wherein 474,936
gallons of crude oil was released, as an approximation of a worst-case
discharge.\41\ Moreover, the Aliceville, AL derailment involved a
comparable quantity released: 455,520 gallons.\42\ These derailments
signal approximately the volume of petroleum oil that would constitute
a worst-case discharge in the U.S.
---------------------------------------------------------------------------

    \41\ See Appendix B, from the Final Regulatory Impact Analysis
from ``HM-251: Enhanced Tank Car Standards and Operational Controls
for High-Hazard Flammable Trains.''
    \42\ Ibid.
---------------------------------------------------------------------------

    However, PHMSA has not proposed in this rulemaking that the
planning volume for a worst-case discharge be 500,000 gallons because
we recognize that the tank car design enhancements promulgated in HM-
251 would reduce the overall quantity released in a derailment scenario
occurring in the future. In other words, the Casselton, ND derailment
involved the release of 474,936 gallons of crude oil, but if a similar
derailment were to occur in the future, it would most likely involve a
lesser quantity released due to improvements in the puncture resistance
and thermal protection of tank cars achieved through HM-251. For this
reason, PHMSA has proposed a lesser planning volume for worst-case
discharges, adjusting the largest quantity released within the crude-
by-rail derailment history (i.e., 474,936 gallons) by the forecasted
average effectiveness rate (0.33) that we expect as a result of HM-251-
related safety improvements over the ten-year period from 2017-2026.
This calculation (474,936 x 0.67) yields 318,000 gallons. Therefore, as
our determination of an appropriate WCD planning volume for use in
comprehensive OSRPs, PHMSA proposes in this rulemaking that a worst-
case discharge be equal to 300,000 gallons.
    Nevertheless, PHMSA recognizes that the number of tank cars loaded
with petroleum oil in a train consist can vary widely and that 300,000
gallons as a worst-case discharge planning volume may not be
appropriate for very large, higher-risk train configurations involving
petroleum oil. For example, assuming 30,000 gallons is contained in a
single tank car; a 50-tank car train carrying crude oil would carry
approximately 1,500,000 gallons, whereas a 100-tank car train would
carry approximately 3,000,000 gallons. Thus, PHMSA maintains that a
300,000 gallon planning volume would be appropriate for the 50-tank car
train, but it would not be appropriate for the 100-tank car train,
which carries substantially more petroleum oil product and as such,
presents a much greater risk in the transportation system. Further,
PHMSA acknowledges the existence of even larger trains (e.g., 120-tank
car trains), as well as the uncertainty surrounding the number of tank
cars loaded with petroleum oil that might be transported by rail in the
future.
    For these reasons, PHMSA has supplemented the 300,000 gallon figure
to include another parameter that adequately increases the WCD planning
volume for train configurations involving a greater number of tank cars
and thus presenting greater risk. The parameter we propose, as a
supplementation to the 300,000 gallons WCD planning volume, is the
ratio of petroleum oil that could reasonably be expected to release in
a derailment to the total quantity of petroleum oil carried within a
train consist (i.e., the total petroleum oil lading), most easily
expressed as a percentage. PHMSA maintains that a percentage of the
total petroleum oil lading in a train consist can be used to identify
and differentiate risk among the different types of train
configurations that can reasonably be expected to transport large
quantities of petroleum oil within a given response zone. Again, we
have focused our analysis on the recent U.S. crude-by-rail derailment
history and the associated data on the quantity released from the
derailed tank cars in these derailments. Specifically, the quantity
released in the Casselton, ND indicates that a worst-case discharge
would involve 474,936 gallons. If you express this quantity released as
a percentage of the total petroleum oil lading carried by the derailed
Casselton, ND train, a worst-case discharge would involve approximately
15% of the total petroleum oil lading. This percentage (15%) results
from the following calculation: 474,936 gallons released divided by
3,088,000 gallons, which is approximately the quantity of petroleum oil
that the train in the Casselton, ND derailment carried. Namely, 104
tank cars loaded with petroleum oil were involved in that derailment
and we have assumed that the all tank cars contained 29,700
gallons.\43\
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    \43\ http://dms.ntsb.gov/pubdms/search/document.cfm?docID=425467&docketID=55926&mkey=88606.
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    Furthermore, the statutory requirements of CWA state explicitly
that a worst-case discharge includes a discharge resulting from fire or
explosion. Per 33 U.S.C. 1321 (j)(5)(D)(iii), a response plan must
``identify, and ensure by contract or

other means . . . the availability of, private personnel and equipment
necessary to remove to the maximum extent practicable a worst-case
discharge (including a discharge resulting from fire or explosion), and
to mitigate or prevent a substantial threat of such a discharge.''
PHMSA understands this statutory language to mean that railroads must
consider the total quantity of petroleum oil released from tank cars in
a derailment, rather than solely the quantity of petroleum oil that
does not burn off as a result of fire or explosion and remains to be
recovered. Therefore, in this rulemaking, PHMSA has crafted the
definition of worst-case discharge to be consistent with the statutory
language set forth in 33 U.S.C. 1321 (j)(5)(D)(iii). Moreover, we hold
that the worst-case discharge planning volumes used by railroads, and
delineated in their comprehensive plans, must take into account the
quantity of petroleum oil that is combusted in fiery or explosive
derailments.
    In reflection of these analyses, PHMSA proposes that the worst-case
discharge for comprehensive plans be defined as follows:
    Worst-case discharge means ``the largest foreseeable discharge in
adverse weather conditions,'' as defined at 33 U.S.C. 1321(a)(24). The
largest foreseeable discharge includes discharges resulting from fire
or explosion. The worst-case discharge from a train consist is the
greater of: (1) 300,000 gallons of liquid petroleum oil; or (2) 15% of
the total lading of liquid petroleum oil transported within the largest
train consist reasonably expected to transport liquid petroleum oil in
a given response zone.''
    As previously discussed, PHMSA used an average effectiveness rate
achieved through HM-251 to determine the proposed 300,000 gallon WCD
planning volume. However, for the proposed WCD planning volume based on
the percentage of the total petroleum oil lading within a train
consist, PHMSA has not incorporated the average effectiveness rate
because we believe that this percentage should be more conservative
such that very large train configurations (e.g., 135-tank car trains)
would have an appropriate WCD planning volume commensurate with their
presentation of increased risk within the rail transportation system.
As an illustration of the WCD definition and its application to WCD
planning volumes for use in comprehensive OSRPs, consider a 50-tank car
train and a 100-tank car train carrying petroleum oil. For the 50-tank
car train, the worst case planning volume would be 300,000 gallons,
since 300,000 gallons is greater than 15% of the total petroleum oil
lading carried by that train (i.e., 225,000 gallons, assuming each tank
car carries 30,000 gallons). For the 100-tank car train, the worst case
planning volume would be 450,000 gallons, since 15% of the petroleum
oil carried by that train, or 450,000 gallons, is greater than 300,000
gallons. PHMSA maintains that distinguishing larger train
configurations from relatively smaller ones is appropriate given
differences in risk, and we further maintain that this calculation is
to be used to determine the ``planning volume'' for worst-case
discharges within a given response zone. It is not re-calculated for
each and every train in operation within a given response zone; rather,
it is based on the largest train configuration that can reasonably be
expected to transport petroleum oil within a response zone. At this
time, we do not expect that the proposed worst-case discharge
definition will result in benefits or costs. Our preliminary analysis
assumes railroads will contract with USCG-certified OSROs to comply
with the proposed response and mitigations activities requirements in
Sec.  130.106, and it suggests that USCG-certified OSRO coverage is
sufficient across the country to meet the proposed response time
requirement and that the USCG OSRO classification system assures that
classified OSROs have sufficient response resources to respond to a
worst-case discharge as proposed this rule.\44\ We include questions
for comment in Section 4 of our RIA about the benefits and costs of our
proposed definition of worst-case discharge and alternative
definitions.
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    \44\ http://www.uscg.mil/hq/nsfweb/nsf/nsfcc/ops/ResponseSupport/RRAB/osro_files/0313Classification%20Guidelines.pdf
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    We generally agree with AAR and ASLRRA with respect to the overall
plan format. Our proposal for requirements includes an information
summary, core plan, response zone appendices, clarification of which
elements are necessary for a minimum consistency with the NCP and
applicable ACP, and a separate training section. We also proposed to
allow use of an Integrated Contingency Plan (ICP) to provide
flexibility, in recognition that railroads may additionally be subject
to the OSRP requirements of other agencies. We also added requirements
to describe the railroad's response management system which will help
clarify the roles of responders and require use of National Incident
Management System (NIMS) and Incident Command System (ICS) for common
response terminology. Use of a common terminology is also necessary for
the railroad to be able to certify compliance with the NCP and ACP. The
importance of describing the management response system and use of NIMS
was highlighted by first responders in the ``Crude Oil Rail Emergency
Response Lessons Learned Roundtable Report.'' We further request
questions on whether the Qualified Individual (QI) should be trained to
the Incident Commander level or whether requiring training in use of
plan is sufficient.
    We further note that use of dispersants is generally not authorized
by the NCP or ACP for use on inland oil discharges. We specify that the
plans must identify the procedures to obtain any required federal and
state authorization for using alternative response strategies such as
in-situ burning and/or chemical agents as provided for in the
applicable ACP and subpart J of 40 CFR part 300. We disagree with
commenters that requirements for dispersants should be further
addressed by DOT.
    For equipment testing and drills, we proposed requirements which
harmonize with OPS. Specifically, we agree with commenters who
recommended the National Preparedness for Response Exercise Program
(PREP) as the appropriate standard for drills. On April 11, 2016, USCG
announced that the updated 2016 PREP Guidelines have been finalized and
are now publicly available. These updates included broadening Section 5
of the PREP Guidelines to allow for the inclusion of other DOT/PHMSA-
regulated facilities, such as rail.\45\ USCG, EPA, BSEE, and OPS
require operators to carry out response plan exercises, or periodic
testing that affirms whether the response plans are implementable.
Response exercises validate the effectiveness of plans, and ensure any
deficiencies or shortcomings in their implementation are discovered and
fixed via exercise after action reports, instead of during a worst-case
discharge.
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    \45\ 81 FR 21362.
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    We disagree with commenters who recommend adopting requirements
which are duplicative of other regulations, such as shipping paper
manifest information or the proposed information sharing requirements.
As described in greater detail in Section II, Subsection D (``Related
Actions''), on April 17, 2015 PHMSA and FRA issued notices and a safety
advisory notice reminding and clarifying shippers and railroads of
their existing obligations to

provide certain information during transportation and after incidents.
    We agree with commenters that highlighting the need to address
adverse weather conditions is important for both response activities
and under the statutory requirements. Therefore, we have added a
definition for adverse weather, and clarified that equipment must be
suitable for adverse weather conditions and planning must incorporate
adverse weather preparedness.
    We agree with commenters that strengthening the communication
requirements is important. Recent incidents and input from first
responders in the ``Crude Oil Rail Emergency Response Lessons Learned
Roundtable Report'' highlight the need for better communication
procedures. Our proposed changes once again are similar to the OPS, as
well as the AAR and ASLRRA, by specifying the need to provide
checklists which clarify the order and type of notification to be
provided.
    Overall, our proposed changes build on the existing framework for
OSRPs both in the current regulations and the requirements by other
federal agencies. The proposed requirements provide greater specificity
than the current requirements, but still allow sufficient flexibility
for railroads to tailor the requirements to the unique needs of their
organizations and the diverse routes covered by their plans. Most
importantly, the proposed changes clarify the need for better
communication, identification of resources, and information.

D. Approval of Comprehensive Oil Spill Response Plans

    In the ANPRM, PHMSA asked the public if any costs would be incurred
in submitting comprehensive OSRPs to the Federal Railroad
Administration (FRA). In addition, PHMSA asked if other federal
agencies with responsibilities under the NCP should review or comment
on rail carriers' comprehensive OSRPs. In sum, these questions inquire
about the comprehensive OSRP approval process and consequently, the
agency that would have the authority to process rail carriers'
submissions of comprehensive OSRPs.
    In general, industry stakeholders requested that there be one
approving federal agency for comprehensive OSRPs, citing concerns about
costs, security, and the clarity of the approvals process. In general,
environmental groups, government representatives and other commenters
supported additional oversight, including oversight or review by
federal agencies, states, SERCs, LEPCs, and/or the public. Commenters
also had different suggestions as to which federal agency should
ultimately fulfill the responsibilities of approval.
    For example, AFPM has stated, ``. . .only one agency should
ultimately review and comment on a completed comprehensive OSRP. Review
by multiple agencies is both duplicative and time-consuming . . . PHMSA
is the appropriate agency to provide review . . . [and] there are
concerns that a multi-agency review may increase the security risk of
OSRPs being disseminated to individuals or groups who should not be
privy to this information.''
    Without expressing support for a particular agency to approve
comprehensive OSRPs, API has submitted a similar comment, stating,
``[w]hile other agencies, such as USCG and EPA, can offer useful
guidance on the process and administration of OSRPs, they should not
necessarily comment on the specific aspects that relate to rail
operations. Federal multiagency review would . . . likely be an
administrative burden for DOT that could be bureaucratically
prohibitive to developing an OSRP process that should be implemented in
a reasonable time frame.''
    AAR also holds that only one federal agency should ultimately be
responsible for the approval process, but suggests that FRA be the
agency that undertakes this. On behalf of its member railroads, AAR
states, ``[t]he railroads offer that OSRPs should . . . be submitted
only to FRA, as primary regulator for rail safety issues, for review.''
AAR further specifies that PHMSA already has rail-specific regulations
that stipulate FRA enforcement responsibilities.
    Some commenters have given considerations related to the approval
process itself. DGAC states, ``. . . if prior FRA approval is required
before shipments can be made, serious and costly economic impacts could
be expected. Delays in shipments would have a significant negative
economic impact on the U.S. economy.'' Thus, DGAC also acknowledges the
notion of FRA approval, but suggests that the approval process should
have a regulatory mechanism to allow for shipments of crude oil while
the approval process is pending.
    States and environmental organizations highlighted the importance
of approval as a requirement under the statute. For example, Washington
State Department of Ecology (Ecology), the Washington State Department
of Fish and Wildlife (WDFW), and the Washington State Department of
Natural Resources (DNR) stated ``33 U.S.C. 1321(j) expressly requires
the President to review and approve the oil spill response plans.'' The
Delaware Riverkeeper Network, however, similarly stated: ``approval of
these plans [comprehensive OSRPs] should be required before transport
of petroleum oil products is permitted.'' In addition, this commenter
has suggested that plans should be submitted to, reviewed, and approved
by FRA. Safety consultant John Joeckel highlighted NTSB's Safety
Recommendations R-14-01 through R-14-03 to the FRA Administrator on
January 23, 2014 which stated,

    [a]lthough 49 CFR 130.31 requires comprehensive response plans
to be submitted to the FRA, there is no provision for the FRA to
review and approve plans, which calls into question why these plans
are required to be submitted. The FRA would be better prepared to
identify deficient response plans if it had a program to thoroughly
review and approve each plan before carriers are permitted to
transport petroleum oil products. In comparison to other DOT
regulations for oil transportation in pipelines, an operator may not
handle, store, or transport oil in a pipeline unless it has
submitted a response plan for PHMSA approval. The NTSB strongly
believes there must be an equivalent level of preparedness across
all modes of transportation to respond to major disasters involving
releases of flammable liquid petroleum products.

    California's Office of Spill Prevention Response and Washington
State's Department of Ecology also reaffirmed the statute's requirement
to approve plans and along with partner commenters within these states,
have stated that either PHMSA or FRA could be responsible for plan
review and approval.
    Commenters have suggested that the approval process include review
by several federal agencies. For example, safety consultant John
Joeckel has said that OSRPs should be submitted to PHMSA for review and
approval, with additional review and comments by the USCG, EPA, and
appropriate individual States. The Center for Biological Diversity
states, ``EPA and USCG should not only review the OSRPs, but PHMSA
should require coordination with those agencies through a specific
consultation and approval process.''
    With an emphasis on NEPA and the Endangered Species Act, Harvard
Law School's Emmett Environmental Law and Policy Clinic, along with
partner commenters, have suggested that FRA's ``review of draft OSRPs
should include public participation under NEPA and the ESA . . .
Similarly, under Section 7 of the ESA, an agency must consult with

the U.S. Fish and Wildlife Service or National Marine Fisheries Service
when it authorizes a private action.''
    Thus, several commenters have advised that the review and approval
of comprehensive OSRPs include multiple federal agencies, such as the