USCG, EPA, PHMSA, FRA, the U.S. Fish and Wildlife Service, and/or the
National Marine Fisheries Service.
    Some commenters suggested that state-based approval processes be
adopted. For example, the League of California Cities has stated, ``. .
. in California, there are regional OSPRs that are coordinated through
the state. Railroads' OSPRs should also be coordinated and consistent
with state and regional plans.'' Similarly, several members of the
concerned public, such as Daniel Wiese, Jared Howe, and Mary Ruth and
Phillip Holder, have recommended that the authority for plan approval
be granted to states.
    In regard to state-based approval processes, some commenters have
proposed that state approval be coordinated through SERCs, TERCs, and/
or LEPCs. For example, King County, WA has recommended that the ``OSRP
be developed in consultation . . . with [the] SERC or other appropriate
state delegated entity,'' and the City of Seattle has asked that SERCs
and LEPCs ``have the opportunity to review and comment on the OSRPs.''
Other commenters have noted that SERCs, TERCs, LEPCs and/or other local
emergency responders should be provided with the plans, but do not
specify whether this type of coordination between rail carriers and
these entities would explicitly become part of the plan approval
process. For more information regarding the distribution of plans for
purposes of disclosure, preparedness, and implementation, please see
the comment summaries and discussion within Section V, Subsection E
(``Confidentiality/Security Concerns for Comprehensive Oil Spill
Response Plans'').
    Other commenters from the concerned public and departments within
city and state governments highlighted state legislation related to oil
spill response plans and request that PHMSA provide assurance that such
legislation will not be preempted by this rule. Joint comments from the
Washington State DNR, Ecology, and WDFW stated ``This clearly preserves
state authority to adopt requirements for response plans from
railroads. PHMSA's rulemaking should confirm this understanding in its
Federalism analysis.'' Specific commenters have proposed that cities or
local governments are considering developing permitting processes to
require review and comment on OSRPs at this level. The City of Seattle
has stated that the ``City of Seattle is developing a new Right of Way
Term Permitting process to be applied to expired railroad franchise
agreements . . . and enables local jurisdictions with Rail--Arterial
Right of Way impacts to better enforce public safety, environment, and
liability issues such as making review and approval of the OSRPs for
High Hazard Flammable Trains a mandatory requirement . . .
Unfortunately, until federal legislation is passed requiring all
railroad companies to develop and submit OSRPs to municipalities for
review, this process will be difficult to enact and enforce.'' For
further discussion of preemption issues, please see the Section VIII,
Subsection C (``Executive Order 13132'').
    Some commenters have indicated that the general public should be
allowed to review and comment on OSRPs and as a result, be involved in
the plan approval process. Harvard Law School's Emmett Environmental
Law and Policy Clinic, along with partner commenters, have recommended
that plan approval include a ``robust public participation process.''
This commenter continues, ``[t]o this end, the regulations should
require the publication of draft OSRPs followed by a period for public
comment upon them.''
    Commenters have suggested terms of validity for plan approval.
Safety consultant John Joeckel, in particular, has suggested that the
plans be approved for a period of five years. Commenters have also
explained that plans should be re-submitted in the event of any
significant changes.
Discussion of Comments: Approval of Plans
    We agree with industry commenters that mandating multiagency
approval could cause undue delays, burdens, and security risks.
Furthermore, 33 U.S.C. 1321 (j)(5)(E) requires a plan that meets the
minimum requirements to be approved. Therefore, we disagree with the
premise that mandating multi-agency or public participation would
provide enough value in an explicit approval process to justify the
increased burden and potential delay. Furthermore, the resources for
mandatory consultation with other agencies and public participation
could potentially divert resources from safety activities. However, we
encourage the comments of Federal, State, and local agencies and tribal
authorities addressing the proposed requirements for the development of
OSRPs.
    As FRA is the agency which has delegated authority to approve oil
spill response plans for rail tank cars, we are proposing FRA as the
sole agency required to approve railroad comprehensive oil spill
response plans. Under 33 U.S.C. 1321 (j)(5)(D)(vi), spill response
plans must ``be resubmitted for approval of each significant change.''
However, we agree with commenters that ensuring plan consistency with
the NCP and ACP is important. We are clarifying that FRA may consult
with the EPA or the USCG, if needed. This may be necessary to
facilitate the needs of the Federal On-Scene Coordinator, such as
verifying compliance with elements related to consistency with the NCP
or ACP. This also aligns with the requirements for plan approval under
PHMSA OPS.
    The current requirements for plan submission are under Sec.
130.31(b)(6), which requires comprehensive plans to be ``submitted, and
resubmitted in the event of any significant change, to the Federal
Railroad Administrator.'' Under 33 U.S.C. 1321 (j)(5)(E), guidelines
for review and approval by the President are specified when ``any
response plan submitted under this paragraph for an onshore facility
that, because of its location, could reasonably be expected to cause
significant and substantial harm to the environment by discharging into
or on the navigable waters or adjoining shorelines or the exclusive
economic zone.'' As discussed previously in the background section of
this document, the President's authority to approve plans was delegated
to the Secretary of Transportation and then to the Federal Highway
Administration and the Federal Railroad Administration (FRA) for motor
carriers and railroads, respectively. USCG, EPA, BSEE, and PHMSA Office
of Pipeline Safety (OPS) were delegated the authority to regulate and
approve plans for their respective facility types.
    As requested by commenters, we are further clarifying the
submission and approval procedures to align with both the statute and
other federal agencies. AAR and ASLRRA submitted proposed regulatory
text with many similarities to PHMSA OPS requirements. We have proposed
to adopt many requirements similar to the OPS submission and approval
under sections 194.119 and 194.121. Among other changes, we are
clarifying that electronic copies are the preferred format. At this
time, railroads may mail copies of plans contained on CD-ROMs, USB
flash drive, or similar electronic formats. FRA may make other versions
of electronic submission available in the future. We are requiring
railroads to review plans every five

years, or after an incident requiring use of the plan occurs. Plans
must also be updated if a significant change occurs. Significant
changes must be approved by FRA. Significant changes are those that
affect the operation of the plan, such as establishment of a new
railroad route not covered by the previously approved plan, or changing
the name of the emergency response organizations identified in the
plan.
    In accordance with both the statute and requests from commenters,
we have clarified the process for railroads to respond to alleged
deficiencies in the plan identified by FRA and to allow railroads to
continue to operate after they have submitted the plan and are awaiting
approval decision. We are further clarifying that railroads may follow
the existing procedures under section 209.11 in the FRA regulations to
request confidential treatment for documents filed with the agency,
provided the information is exempt by law from public disclosure (e.g.,
exempt from the mandatory disclosure requirements of the Freedom of
Information Act (5 U.S.C. 552), required to be held in confidence by 18
U.S.C. 1905). Under this process, FRA retains the right to make its own
determination in this regard. Therefore, this change clarifies the
process to comply with existing laws and confidential treatment will
not be extended to other information in the plan which is not currently
exempt under other existing laws. PHMSA provides similar procedures for
similar requests for confidential treatment of documents under Sec.
105.30. Overall, the proposed requirements help create an equivalent
level of safety for petroleum oil across all facility types.

E. Confidentiality/Security Concerns for Comprehensive Oil Spill
Response Plans

    In the ANPRM, PHMSA asked the public the following question:
``Should PHMSA require that the basic and/or the comprehensive OSRPs be
provided to State Emergency Response Commissions (SERCs), Tribal
Emergency Response Commissions (TERCs), Fusion Centers, or other
entities designated by each state, and/or made available to the
public?'' Commenters submitted a variety of comments regarding the
distribution of OSRPs and relayed ideas about which entities should be
provided with or provided access to comprehensive OSRPs. This
distribution might include SERCs, TERCs, Fusion Centers, other state
entities, or the general public.
    The majority of commenters support the distribution of OSRPs to
SERCs or other emergency response organizations. Among the commenters
in support are: The National Fire Protection Association (NFPA); the
Department of Law, City of Chicago; LRT-Done Right; the Center for
Biological Diversity; NASTTPO; the Riverfront Park Association; the
Delaware Riverkeeper Network; the Flathead Basin Commission; King
County, WA; New York State Department of Transportation; OHMERC; The
Response Group; the Village of Barrington, IL and the TRAC Coalition;
Washington State; the Waterkeeper Alliance; and the Solano County
Department of Resource Management. In general, these commenters hold
that SERCs should have the plans and could oversee the transmission of
plan information to emergency response organizations within cities,
counties, or other localities. These commenters emphasize that
emergency responders would benefit from having the plan so as to
prepare more effectively for rail accidents involving crude oil.
    Other commenters have expressed support for the distribution or
disclosure of OSRPs to SERCs or other appropriate emergency response
organizations, but expressed concerns about security risks and the
distribution or disclosure of OSRPs to the general public. Among these
commenters are: AFPM, AAR, and ASLRRA.
    With regard to security concerns, AFPM has said, ``[a]lthough
communications are vital . . . SSI [sensitive security information]
should be disclosed to only a limited group of people on a ``need to
know'' basis . . . Broader dissemination raises significant security
concerns in light of the possible targeting of rail by terrorist and
others.'' AAR and ASLRRA have provided a similar comment on this issue,
stating, ``[i]f required by DOT to share very specific OSRP information
with the SERCs, the railroads are concerned that a potential bad actor
would be able to obtain the information . . . Releasing to the public
the worst case scenarios and the available response resources and
equipment in the OSRPs could provide a bad actor with key information
crucial to planning environmental terrorism activities.'' Thus, while
acknowledging the potential value of distributing OSRPs, industry
commenters have expressed security concerns and advised there should be
limitations imposed on the distribution of OSRPs and certain types of
information (i.e., SSI).
    AAR and ASLRRA have also articulated that the distribution of
OSRPs, even to bona fide emergency response organizations such as
SERCs, could result in further dissemination to the general public.
Regarding this point, AAR and ASLRRA have referred to the example of
Emergency Order Docket No. DOT-OST-2014-0067, which required railroads
to make crude oil routing information available to SERCs. AAR states,
``[w]hile the railroads do not believe it was DOT's intention, the EO
has often resulted in the information it requires railroads to disclose
to SERCs being made publically available.'' AFPM has voiced similar
concerns. Thus, according to some industry stakeholders, security
concerns would remain even if the distribution of OSRPs were limited to
SERCs or other appropriate emergency response organizations.
    Other commenters have stated that OSRPs would or would not be
restricted due to security concerns. The Waterkeeper Alliance has
communicated, ``[i]n our view, this data should not be restricted . . .
Furthermore, the data should not be deemed a security issue, nor should
there be any restrictions placed on intra-government dissemination of
the data. This data is vital to the public welfare . . . To keep these
train movements secret would directly endanger the public.'' Hence,
some commenters disagree that distributing or disclosing OSRPs would
entail security concerns.
    Commenters have also relayed that the entities developing OSRPs may
have rights of confidentiality (i.e., OSRPs are ``proprietary''). In
relating the context of the State of California, the Office of Spill
Prevention and Response has stated, ``[i]n California, the oil spill
contingency plans submitted to OSPR are available for public review by
law, but a plan submitter can request that a portion of a plan that is
proprietary or is a trade secret can be designated accordingly.''
    On the issue of confidential business rights, other commenters have
stated that OSRPs should or would not be confidential business
information. Accordingly, Harvard Law School's Emmett Environmental Law
and Policy Clinic, along with partner commenters, have said,
``[m]andatory disclosure only to federal officials, as is currently the
case, is inadequate given that state and local authorities will usually
be the first responders to an accident and bear the burden of ensuring
preparedness and the consequences of failing to do so. PHMSA should
also mandate public disclosure of OSRPs. The contents of such plans
will not be . . . confidential business information.''
    Thus, many commenters suggested that OSRPs be made available to the
public. For example, the Delaware Riverkeeper Network has commented,

``[t]hese plans should also be made available to the public via an
easily accessible web platform. The Web site should include everything
interested parties need or want to know and everything an emergency
response team would want to tell them.'' Other commenters have
supported making OSRPs available to the general public, such as: The
Riverfront Park Association; the Center for Biological Diversity; the
Waterkeeper Alliance; and Harvard Law School's Emmett Environmental Law
and Policy Clinic.
    A few commenters have agreed that plans can be made available to
the public, but clarified that this disclosure would include only non-
SSI material. Accordingly, New York State has commented, ``[r]elease of
the non-security sensitive portions of these plans to the public can
also be accommodated using the policies already established for the
Area Contingency Plans established by OPA 90.'' Therefore, disclosure
to the public need not include entire copies of comprehensive OSRPs.
    On this topic, a safety consultant, John Joeckel stated, ``I do not
see the need to have the Comprehensive OSRPs available to the public as
long as the local responding agencies have the necessary information
contained in the OSRP, e.g., the response zone/geographic zone
appendices containing notification procedures, response resource
availability, etc.'' Thus, commenters have also identified that the
disclosure of comprehensive OSRPs may not be necessary, irrespective of
whether the information within OSRPs is deemed to be SSI or
confidential.
    Some commenters have asked that the distribution of plans involve
processes beyond the provision of OSRPs to appropriate emergency
response entities. For example, the Oklahoma OHMERC has said, ``[t]he
delivery should be more than mailing a plan to the LEPC, the railroad
should present the plan in person so that local emergency response
planners and responders have the opportunity to ask questions and
discuss roles under the OSRP.'' In addition, the Delaware Riverkeeper
Network has expressed that ``meetings should be used to educate
community members about evacuation plans and how to access up-to-date
information in the event of an emergency.'' Further, The Response Group
has asked that railroad companies be required to ``follow the precepts
that PHSMA expects pipeline companies to follow and align those
requirements . . . [with] API RP 1162.'' \46\ Thus, multiple commenters
have stated that plan distribution should involve more than the
provision of OSRPs to specific entities; it could also include meetings
with local communities, as well as presentations delivered to local
emergency responders.
---------------------------------------------------------------------------

    \46\ Federal pipeline safety regulations (49 CFR 192.616 and 49
CFR 195.440) require pipeline operators to develop and implement
public awareness programs that follow the guidance provided by the
American Petroleum Institute (API) Recommended Practice (RP) 1162,
``Public Awareness Programs for Pipeline Operators'' (incorporated
by reference in federal regulations). More information is available
at: https://primis.phmsa.dot.gov/comm/PublicAwareness/PARPI1162.htm.
---------------------------------------------------------------------------

Discussion of Comments: Confidentiality/Security Information
    Transparency is important to PHMSA as the agency provides resources
to the emergency response community in many forms. As described in the
Section II, Subsection D-5 (``Stakeholder Outreach''), PHMSA and the
railroads have been engaged in multiple activities and partnerships to
take a comprehensive approach to providing training and emergency
response information resources about the hazard of crude oil. We
disagree however that providing the entire OSRP to emergency responders
will lead to better preparedness. Some elements of the OSRP may be
sensitive for security, business, or privacy reasons. Other elements
are specific to railroad operations, and will not inform the actions of
first responders or communities.
    To ensure emergency responders have pertinent information from
plans, we are proposing that information describing the response zones
and contact information for the qualified individual are provided to
SERCs and TERCs as part of the information sharing requirements
proposed in section 174.312. This allows emergency responders to
understand which communities are included in the same response zone and
the appropriate contact for the OSRP information at the railroad.
Adding these requirements takes an integrated approach to the
regulations and ensures the different types of emergency response
information will be presented in a cohesive, usable format. We believe
that the current requirements to notify fusion centers under routing
information, and the proposed information sharing requirements for
SERCs and TERCs described under Section II, Subsection E (``HHFT
Information Sharing Notification'') will work cumulatively to provide
emergency response organizations with the complete information they
need about a route to prepare for flammable liquids transiting their
communities without compromising security. In addition, by clarifying
requirements for the OSRP (including notification procedures and the
roles and responsibilities of individuals within the plan), railroads
will be able to more quickly disseminate the information and conditions
specific to the incident to appropriate local, state, and Federal
agencies.

F. Comprehensive Oil Spill Response Plan Costs

    In the ANPRM, PHMSA asked the public what costs the regulated
community would incur in order to: (1) Develop comprehensive OSRPs; (2)
remove or remediate discharges; and (3) conduct training, drills and
equipment testing. PHMSA also asked about commenters' assumptions and
requested that commenters provide detailed estimates.
    With regard to plan development costs, two commenters provided
estimates of labor costs; however, PHMSA did not receive any detailed
cost estimates. The majority of commenters chose to emphasize other
considerations that they deemed to be relevant in estimating the costs
of OSRPs.
    AAR and ASLRRA, in particular, have stated that PHMSA would need to
supply more information about plan requirements in order to develop
detailed cost estimates. AAR states, ``[w]ithout further guidance from
PHMSA . . . the railroads are unable to provide more specific cost
estimates.'' However, as a general estimate, AAR and ASLRRA estimate
that a ``petroleum crude oil spill response plan, without equipment
cost included, could cost a railroad anywhere from $100,000-$500,000.''
    Other commenters provided general cost estimates for plan
development. For example, the Response Group has stated that labor
would cost $100 per hour and that a new plan would require
approximately 120 hours of work. This yields $12,000 as the labor cost
component of the overall plan development costs per railroad. John
Joeckel, a safety consultant, has offered another estimate, stating
that an individual railroad's ``core'' plan would cost approximately
$31,000. This estimate includes: 250 labor hours, compensated at $115
per hour, and $2,250 in printing and administration costs. The
commenter has also estimated that the ``core'' plan would need to be
supplemented by

``geographic response zone appendices,'' which would require 50 labor
hours, compensated at $115 per hour, and $250 in printing and
miscellaneous costs. Thus, the development of the response zone
appendices would add at least an additional $6,000 to overall plan
development costs, yielding $37,000 in total. While it is not clear if
$6,000 in costs would be incurred for the development of each
additional response zone appendix, this commenter has clarified that
each railroad will need a different number of response zone appendices,
since some railroads have extensive track networks and other rail
carriers (e.g., Short Lines and Regional Railroads) do not.
    As previously stated, several commenters did not supply cost
estimates but chose to draw attention to other considerations, such as
the estimated cost of cleaning up oil spills. For example, the Delaware
Riverkeeper Network has articulated, ``[t]he costs incurred to create
and implement a comprehensive OSRP . . . should be considered the cost
of doing business, and are minimal when compared to the costs incurred
to clean up and attempt to remedy crude rail accidents. For example, in
2013, over 1.15 million gallons of crude oil were spilled in over 35
accidents, and clean-up costs of one accident alone are estimated to
total at least $180 million.'' In addition, a concerned member of the
public has said, ``[f]or consideration of costs (see advance notice
items 4, 5, and 6), the agency should include costs to communities and
their economies from crude oil spills.''
    In addition to AAR and ASLRRA, other commenters have expressed that
they were not certain of the costs of developing a comprehensive OSRP.
For example, New York State has asked PHMSA to ``ascertain cost
estimates.'' Similarly, other commenters have communicated that, while
they are uncertain of the plan development costs that railroads would
face, pipeline oil spill response plans are likely to be analogous in
some respects. To that effect, the City of Seattle has commented,
``[w]hile we do not have the information necessary to know what costs
the railroads and shippers may incur for developing the comprehensive
OSRPs, we know that there are current pipeline response plans through
the U.S. While they do not directly apply to rail activities, portions
of these existing plans are applicable and will provide the railroad
industry with a head start toward a comprehensive plan.'' Thus,
multiple commenters have expressed some uncertainty regarding the costs
of developing a comprehensive OSRP.
    Some commenters have stated that the cost of developing a
comprehensive OSRP would be ``nominal'' or ``not significant'' since
railroads are already compliant with many of the current OSRP
requirements under part 130, including the requirements for a basic
OSRP. For example, the Oregon Department of Environmental Quality has
said, ``[m]ost railroad companies currently have basic oil spill
response plans. Many of these plans already identify additional
equipment and personnel available to them by contract or other approved
means. These companies have also identified the equivalent of a
qualified individual. Rail companies should not incur significant costs
in developing comprehensive OSRPs.'' Similarly, NASTTPO has stated,
``[a]ssuming the rail carriers are already doing a compliant basic
OSRP, the incremental cost should be nominal.'' Further, the City and
County of Denver, Office of Emergency Management and Homeland Security,
as well as the OHMERC, have expressed their support of the comments by
NASTTPO. However, these commenters did not supply additional
information to clarify the threshold at which costs could be considered
``significant'' or ``nominal.''
    In addition to asking the public about plan development costs,
PHMSA inquired about the costs incurred to remove discharges. PHMSA
asked about the placement of equipment along the track, the types of
equipment needed to remove or contain discharges, and the maximum time
needed to contain a worst-case discharge. Some commenters have
suggested maximum response times, as well as limited cost estimates,
but overall the comments received lack detail and do not identify the
range of costs that would be incurred to remove discharges. In
addition, commenters have specified some types of equipment, such as
containment booms, work boats, skimmers, and foam concentrate, but the
commenters' listing of equipment does not appear to be exhaustive.
    With regard to discharge removal, AAR and ASLRRA have stated that
equipment costs can be substantial. Without providing detailed cost
information, AAR has cited that deploying a single containment boom
could cost $15,000. AAR has not included other information regarding
the costs of response resources and equipment.
    Safety consultant John Joeckel has identified a variety of
potential costs that might be incurred in removing discharges. On this
issue, Mr. Joeckel has stated, ``[c]osts will either be directly
capitalized by the rail operator for company owned resources to
inventory, for membership dues increases for a cooperative to purchase
and stockpile resources or for increased ``retainer'' fees from
contractors that will charge the rail operator for their listing as a
contracted resource in the OSRP.'' In addition, Mr. Joeckel clarifies,
``there are substantial resources already available throughout the
nation in many areas, including locations in near proximity to rail
trackage, so it is not necessarily a given that any new response
requirements will automatically result in the need to purchase and
stockpile and thus won't necessarily entail new significant costs for
the railroad industry.'' Further, this commenter has stated that
response resources for discharge removal are generally ``secondary'' to
the resources that would be necessary for ensuring public safety
immediately following an incident, such as foam, foam application
systems, and ``toxic emission plume monitoring'' equipment. As a
result, this commenter has suggested that planning standards for
response resources should allow for the ``cascading'' of resources, or
in other words, a ``tiered'' response wherein some types of equipment
are required at the site of an incident before others.
    NASTTPO has not specified any types of equipment or cost estimates,
but has offered relevant assumptions regarding planning and the use of
response resources. The commenter states, ``[w]e presume that rail
carriers should be able to mobilize contract responders to any point on
their system within 4-6 hours dependent on weather. Contractors that
provide such services are common and the trucking industry along with
insurance carriers routinely pre-contract for these services.'' Thus,
according to this commenter and partner commenters, contracting for
response resources is ``routine'' and as a result, industry
stakeholders should be able to identify response providers and are
aware of the costs involved.
    New York State and the Oregon Department of Environmental Quality
have emphasized that discharge removal and other response resources
must be allocated according to a risk analysis. New York State, in
particular, has suggested that the 27 factors that railroads use for
routing analyses (under Sec.  172.820) could serve as a way to identify
``the areas of highest vulnerability or . . . areas that have
impediments to access for first responders.'' In addition, this
commenter has provided estimates for foam concentrate, stating, ``[t]he
cost for 600 or more gallons of Class B foam concentrate estimated as
necessary for

fire control and post-fire vapor suppression for an incident involving
a single DOT-111 rail car carrying crude oil, pursuant to the flow
rates identified in NFPA II, exceeds $23,000 at current New York State
Contract pricing. Combined with the costs of the apparatus needed to
apply ``finished'' foam onto a fire or spill, the estimated cost can
total $40,000 or more per unit.'' Consequently, the potential high cost
of response equipment underscores the commenter's emphasis on risk
analyses to determine equipment allocation along train routes.
    The City of Seattle has estimated $20,000 as the cost of air
monitoring and personal protection equipment (PPE). The commenter
states that these costs are not currently budgeted by Seattle Public
Utilities, which, according to the commenter, is one of the city's
agencies that would respond to an incident.
    The Delaware River and Bay Oil Spill Advisory Committee has offered
estimates of the capital investments needed to prepare for a ``debris
mission.'' The commenter states, ``the capital cost to stand up a
floating debris collection mission could be in the range of $14 million
to $21 million.'' According to the commenter, city or state authorities
would undertake these capital investments, so it is not clear if these
costs would be included in cost estimates for a comprehensive OSRP.
    With respect to the costs of cleaning up oil spills, The League of
California Cities has stated, ``[m]ost importantly, these plans [OSRPs]
should provide for the obligation to pay for recovery, including all
required clean-up.'' Other commenters have communicated that the costs
of discharge removal are ``minimal'' and are the ``cost of doing
business.'' Thus, these commenters seek to stress that the costs to
communities that experience an oil spill can be large and must be
considered alongside the costs to implement OSRPs.
    In the ANPRM, PHMSA also asked the public to comment on training
costs, such as the costs of conducting drills or testing equipment. In
addition, many commenters discussed which entities would be responsible
for providing training or ensuring that training is adequately funded.
Commenters have also supplied some basic cost estimates for different
components of training.
    AAR and ASLRRA have stated that training costs can be substantial
and estimated that a single training exercise or drill could cost
between $60,000 and $150,000. AAR and ASLRRA have also stated,
``[w]ithout further guidance from PHMSA . . . the railroads are unable
to provide more specific cost estimates.''
    New York State has identified various costs associated with the
training of first responders and emergency personnel. The commenter has
cited ``the costs of providing staffing (backfills) for career fire
departments and . . . consumables required for effective and realistic
training such as training foam. Staffing backfill costs will vary by
jurisdiction but can be significant, and if not addressed, limit
participation of critical response agencies with a corresponding
negative impact upon effectiveness.'' The commenter has not provided
any cost estimates related to backfills or consumables.
    Some commenters have suggested that the cost of training be funded
by railroads. For example, the City of Lockport, IL has said, ``[t]he
new guidelines proposed by Federal Pipeline and Hazard Materials Safety
Administration (PHMSA) must include adequate emergency preparation and
response protocols for local agencies responding to these incidents and
the Railroads profiting from this transportation should provide this at
no cost to local responders.'' The commenter has not estimated the cost
to rail carriers if they were to provide this training.
    The League of California Cities has made a similar comment,
stating, ``[f]ully-funded regular training programs that cover the cost
of training, including backfill employee costs, to ensure that first
responders are trained, and remain trained, on up-to-date procedures to
address the unique risks posed by these shipments.'' In this case, the
commenter has not specified the source of this funding.
    Other commenters have suggested that rail carriers should not be
expected to pay for the costs of training local first responders.
NASTTPO has expressed, ``[w]e have no expectation that the rail
carriers would be paying for the attendance of local first responders
at training events and exercises.'' The commenter has also expressed
that, since the rulemaking should not require railroads to pay for the
training of local first responders, the costs imposed on the regulated
community as a result of training requirements should be ``nominal.''
In agreement, the City and County of Denver's Office of Emergency
Management and Homeland Security has stated that they support all the
comments made by NASTTPO.
    Oklahoma's OHMERC has similarly stated that railroads should not be
expected to pay the costs of training local first responders, but
emphasizes that ``given the fact that volunteer fire fighters have
other job obligations, training would be most effective delivered
locally.''
    The Dangerous Goods Advisory Council has suggested that ensuring
training among emergency responders will be difficult due to practical
and financial concerns. DGAC has stated, ``DGAC supports the training
of emergency responders in how to properly respond to hazardous
materials incidents. However, it may be difficult, time consuming, and
costly to individually train each emergency response organization in
the areas through which a `key' or `unit' train transporting crude oil
travels. It is unlikely that every local emergency response
organization located along the route could afford to develop and
maintain the necessary resources to respond to significant incidents
involving crude oil derailments.'' Given this concern, the commenter
holds that ``regional response teams'' may be an effective alternative.
    Various commenters have suggested that PHMSA adopt training
elements from the National Preparedness, Response and Exercise Program
(PREP) guidelines, which have been developed through multi-agency
participation and coordination, including DOT, USCG, EPA, and DOI.
Safety consultant, John Joeckel, the Office of Spill Prevention &
Response (OSPR), and Washington State have voiced support for NPREP.
According to commenters, NPREP training covers a variety of training
exercises (e.g., table-top, seminar, announced and unannounced
exercises, etc.) which entail different costs.
    Commenters have mentioned other standards for training or equipment
testing requirements. For example, Safety consultant John Joeckel has
referenced a 1994 publication entitled, ``Training Reference for Oil
Spill Response,'' as well as the U.S. Coast Guard's Oil Spill Response
Organization (OSRO) Classification program for the testing of
equipment. Further, the commenter maintains that contractors working
with rail carriers would ``in all likelihood'' already be participating
in the OSRO Classification program, suggesting that the industry's
available response resources could be compliant with existing equipment
testing requirements under USCG. With regard to cost estimates, Mr.
Joeckel is unable to quantify a monetary value for relevant training
exercises.
    OSPR has suggested other training sources, such as the Hazardous
Waste Operations and Emergency Response (HAZWOPER), a set of guidelines
overseen by the Occupational Safety and Health Administration (OSHA)
and regulated in 29 CFR part 1910. OSPR

has also mentioned free, online training on the Incident Command System
(ICS) offered by the Federal Emergency Management Agency (FEMA). With
regard to training cost estimates, OSPR has stated, ``In California,
OSPR has been informed that an OSRO-managed drill could cost about
$2,000 for a small tabletop drill and up to $500,000 or more for a full
scale multi-day exercise; but regulated entities could agree to share
these costs for a particular drill.''
    Given the variety of training sources and opportunities available,
the National Emergency Management Association (NEMA) has suggested that
DOT facilitate the creation of a standardized training curriculum. The
commenter states, ``U.S. DOT should work with railroads, the U.S. Fire
Administration and fire service organizations toward developing a
standardized curriculum for responding to railroad emergencies for the
Bakken Crude. This will ensure that firefighters are equally trained in
the event of an incident involving more than one state.'' Regarding the
funding of training, this commenter has asked that DOT ensure that the
Hazardous Materials Emergency Preparedness (HMEP) Grant Program be used
to fund regional and interagency drills for rail safety response.
Discussion of Comments: Plan Costs
    We appreciate commenters' efforts to provide initial cost
considerations and estimations, despite the challenges they cited in
providing data. We have incorporated commenters' cost estimates to the
extent possible, but note that these estimates lacked detail and data.
We further clarify that the estimated cost of the proposed oil spill
response plan requirements is the cost of plan development, submission,
and maintenance; contract services for OSROs; and training and
exercises.
    To elaborate, the costs of plan development were estimated as a
function of the time and compensation that a senior railroad employee
or contractor needs to develop the plan, as well as the number of
response zone appendices needed in connection with the railroad's core
plan. PHMSA estimated that on average it would cost a Class I railroad
about $15,000 to develop a plan, it would cost a Class II railroad
$8000 to develop a plan, and it would cost a Class III railroad $7000
to develop a plan. Plan submission and maintenance were also estimated
as a function of the time and compensation of the employee that submits
and maintains the plan. PHMSA estimated that on average it would cost a
Class I railroad about $1,500 for plan submission and maintenance, it
would cost a Class II railroad $800 for plan submission and
maintenance, and it would cost a Class III railroad $700 for plan
submission and maintenance. We estimated the cost of OSRO services by
interviewing an OSRO and obtaining a range for potential retainer fees.
Retainer fees may vary based on the Class (I, II, III) of the railroad
as well as the number of response zones that PHMSA-OHMS expects the
railroads to have. PHMSA estimated that on average it would cost a
Class I railroad about $40,000 annually to retain an ORSO for each of
its 8 response zones, it would cost a Class II railroad $6000 annually
to retain an ORSO for each of its 2 response zones, and it would cost a
Class III railroad $2500 annually to retain an ORSO for its single
response zone. The costs of training are estimated as a function of the
number of employees requiring training, the duration of the training in
hours, and the wage rate applied. Separate from training, we have also
estimated costs of exercises, such as those prescribed in PREP
guidelines. Since PREP guidelines are consistent across Federal
agencies, we used costs estimated by the USCG, including travel costs
and additional OSRO fees for drill-related deployment of resources.
    Please see the draft RIA for the quantitative aspect of this
discussion and further explanation of the anticipated cost impacts of
the proposed rule.

G. Voluntary Actions

    In the ANPRM, PHMSA asked the public to comment on the role of
industry's voluntary and current actions regarding oil spill response
planning. In particular, PHMSA asked, ``What, if any, aspects beyond
the basic plan requirements do these plans voluntarily address?''
    In regard to the information contained within basic OSRPs,
commenters offered a variety of ideas, but the majority of commenters
have relayed that the current knowledge base surrounding basic oil
spill response plans is limited. Commenters have stated that this
knowledge of basic plans is limited because many entities, including
states, cities, local community groups, and some emergency response
organizations, do not have access to rail carriers' basic plans. In
addition, some commenters stated that they have encountered issues in
coordinating with rail carriers on this issue. Further, other
commenters have voiced that basic OSRPs do not provide adequate
information to local first responders, even if they are communicated
effectively to those responders.
    The Response Group has stated, ``I have never seen a current
railroad oil spill response plan . . . I have developed a prototype oil
spill response plan suitable for rail based upon experience with Coast
Guard, EPA, PHMSA and OSHA.''
    Safety consultant John Joeckel has stated, ``[a]nswers [to ANPRM
question #7] should be provided by the rail operators . . . since they
are the only entity that currently has access to the Basic OSRPs . . .
and have not been reviewed or approved by State or Federal agencies and
have not been seen by the general public.'' However, Mr. Joeckel
comments further, stating that, despite the public's limited knowledge
of OSRPs, ``I would have to assume that there will be a wide range of
differences between basic OSRPs amongst the rail industry sector
particularly differences between a Class I rail operator versus a Class
II and Class III rail operator.'' Thus, Mr. Joeckel has explained that
only the rail carriers understand what is currently addressed in
existing OSRPs, and he suggests that there is a ``potential wide
variance in response preparedness amongst the industry.''
    Similarly, New York State has commented that, ``[t]o date, the
railroads and associated shippers have not shared their OSRPs with New
York State as they currently are not required to under federal law or
regulations.'' Thus, New York State has underscored that the knowledge
surrounding oil spill response plans and their contents is limited and
reiterated that the requirements under part 130 do currently not
address the distribution of plans or which entities might have access
to them. For more discussion on plan distribution, please see Section
V, Subsection E (``Confidentiality/Security Concerns for Comprehensive
Oil Spill Response Plans'').
    The City of Seattle has made a similar comment. This commenter
states, ``[w]ithout access to review and comment on OSRP the City of
Seattle cannot determine compliance with requirements.'' As previously
noted, the City of Seattle also seeks to make review and approval at
the municipal level a part of the permitting and permit renewal
processes for ``Right of Way Franchise Agreements.''
    Some commenters have stated that current OSRPs are not adequate,
which suggests at least a familiarity with their current form and
contents. For example, NASTTPO has stated, ``[b]asic OSRPs are not
successful as noted . . . They do not provide adequate information to
local first responders even if they are communicated to those
responders.'' OHMERC has also stated, ``OSRPs

should be more detailed and contain better information for
responders.''
    AAR and ASLRRA have held a different opinion than the majority of
commenters due to their unique understanding of OSRPs and industry
background. Regarding current OSRPs, AAR and ASLRRA have stated,
``[r]ailroads have been very proactive in emergency response planning
and outreach . . .'' They cited implementation of the AAR Circular OT-
55, training efforts, and efforts to provide an inventory of emergency
response resources. However, these comments did not include any details
describing whether railroads were providing voluntary compliance with
specific comprehensive oil spill response plan requirements.
    In the ANPRM, PHMSA specifically asked, ``[t]o what extent do
current plans meet the comprehensive OSRP requirements, including
procurement or contracting for resources to be present to respond to
discharges?'' As previously mentioned, the majority of commenters have
stated that their knowledge of current OSRPs is limited due to limited
access and challenges of coordination with railroads. For this reason,
most commenters were unable to answer this question, as it requires an
understanding of the form and contents of current OSRPs. Without this
understanding, it is difficult to assess to what degree current plans
have incorporated response resources contracting as would be required
under the part 130 requirements for comprehensive OSRPs.
    AAR and ASLRRA have addressed this question, stating, ``[p]ursuant
to the industry's commitment to Secretary Foxx, AAR has developed an
inventory of emergency response resources along routes over which Key
Crude Oil Trains operate for responding to the release of large amounts
of petroleum crude oil in the event of an incident. This inventory also
includes locations for the staging of emergency response equipment and,
where appropriate, contacts for the notification of communities.''
Thus, according to this commenter, voluntary actions combined with
compliance to the basic OSRPs currently required already include
planning for response resources. However, these comments did not
include any additional data or details describing whether railroads
were providing voluntary compliance with specific comprehensive oil
spill response plan requirements.
Discussion of Comments: Voluntary Actions
    While we applaud the voluntary efforts railroads have taken to
improve safety, they do not carry the weight of law and the extent to
which these voluntary efforts meet the requirements of current
comprehensive oil spill response plans is difficult to quantify based
on the comments received. The Oil Pollution Act of 1990 requires the
creation of oil spill response plans with specific minimum elements for
``an onshore 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.'' Furthermore, voluntary actions do not carry the weight
of regulations to ensure continued compliance and enforceability.
    We agree with NTSB's safety recommendation that the recent spill
history demonstrates that unit trains and other trains carrying large
quantities of petroleum oil meet this definition of ``substantial harm
to the environment'' and thus require comprehensive plans. Furthermore,
basic plans are not sufficient for higher-risk train configurations as
they do not require the railroad to ensure the availability of response
resources or provide other elements to address the response challenges
we have identified in this rulemaking. Comments addressing plan
contents describe the clear need to require additional elements for
comprehensive plans and to provide additional clarifications to those
elements.

VI. Incorporated by Reference

    Section 171.7 lists all standards incorporated by reference into
the HMR that are not specifically set forth in the regulations. This
NPRM proposes to incorporate by reference the ASTM D7900-13 Standard
Test Method for Determination of Light Hydrocarbons in Stabilized Crude
Oils by Gas Chromatography, 2013, available for interested parties to
purchase in either print or electronic versions through the parent
organization's Web site at the following URL: http://www.astm.org/cgi-bin/resolver.cgi?D7900-13e1. The price charged for these standards to
interested parties helps to cover the cost of developing, maintaining,
hosting, and accessing these standards. This publication (i.e., test
method) ensures a minimal loss of light ends for crude oils, containing
volatile, low molecular weight components (e.g. methane) because it
determines the boiling range distribution from methane through n-
nonane. The specific standards are discussed in greater detail in the
Section II, Subsection G. (``Initial Boiling Point Test'') of this
rulemaking.

VII. Section-by-Section Review

Part 130

    We propose to restructure part 130 to establish the following
subparts:
    Subpart A--Applicability and General Requirements contains current
Sec. Sec.  130.1-21 with minor revisions and clarifications.
    Subpart B--Basic Spill Prevention and Response Plans contains
current Sec. Sec.  130.31-33 with minor revisions to remove
comprehensive plan requirements.
    Subpart C--Comprehensive Oil Spill Response Plans is a new Subpart
with new requirements for comprehensive oil spill response plans.
Section 130.2
    Paragraph (d) is updated to show that the requirements in Sec.
130.31(b) have moved to subpart C. PHMSA does not propose any other
changes to this section.
Section 130.5
    The introductory text is reformatted, including moving the
definition for ``Animal fat'' to the correct alphabetical order.
Definitions for ``Adverse Weather,'' ``Environmentally Sensitive or
Significant Areas,'' ``Maximum Potential Discharge,'' ``Oil Spill
Response Organization,'' ``On-scene Coordinator (OSC),'' ``Response
activities,'' ``Response Plan,'' and ``Response Zone'' are added in
response to commenters. Definitions for ``Petroleum Oil'' and ``Worst-
case discharge'' are revised to better clarify the applicability of the
terms. The term ``Person'' is revised to clarify railroads are included
in the term. The term ``Maximum Potential Discharge'' is currently used
in the requirements for basic plans and is currently ``synonymous with
Worst-Case Discharge.'' We are proposing to separate the definitions to
facilitate the newly proposed definition for ``Worst-Case Discharge''
for comprehensive plans. The mailing address for the Office of
Hazardous Materials Safety is updated in the note for the definition of
``Liquid.''
Section 130.31
    This section is revised editorially to clarify that it applies to
basic oil spill response plans only. References to comprehensive oil
spill response plans are removed.
Section 130.33
    This section is revised to clarify that it only applies to basic
oil spill response plans.

Section 130.101
    Establishes a new section which moves the current applicability for
comprehensive oil spill response plans of 42,000 gallons per packaging
from Sec.  130.31 to Sec.  130.101, and expands the applicability for
comprehensive oil spill response plans to include ``Any railroad which
transports a single train transporting 20 or more loaded tank cars of
liquid petroleum oil in a continuous block or a single train carrying
35 or more loaded tank cars of liquid petroleum oil throughout the
train consist must submit a comprehensive plan meeting the requirements
of this subpart.''
Section 130.102
    Establishes a new section for general requirements for the overall
development of the comprehensive response plan and requires the plan
uses the National Incident Management System (NIMS) and Incident
Command System (ICS).
    This section also establishes general requirements for the plan
format including the development a core plan and the establishment of
geographic response zones and accompanying response zone appendixes.
    This section also allows for use of the Integrated Contingency Plan
(ICP) format to provide greater flexibility.
Section 130.103
    Establishes a new section which requires a railroad to certify in
the comprehensive response plan that it reviewed the NCP and each
applicable ACP and that its response plan is consistent with the NCP
and each applicable ACP through compliance with a list of minimum
requirements.
Section 130.104
    Establishes a new section which requires a comprehensive response
plan to include an information summary.
Section 130.105
    Establishes a new section with requirements for the notification
procedures and contact information that a railroad must include in a
comprehensive oil spill response plan.
Section 130.106
    Establishes a new section for railroads to describe the response
and mitigation activities and the roles and responsibilities of
participants in the comprehensive oil spill response plans.
Section 130.107
    Establishes a new section for railroads to certify employees are
trained in accordance with the requirements of this section.
Section 130.108
    Establishes a new section for requirements for equipment testing
and drill procedures consistent with PREP requirements for
comprehensive oil spill response plans.
Section 130.109
    Establishes a new section with requirements for recordkeeping,
review, and submission of comprehensive oil spill response plans.
Section 130.111
    Establishes a new section with the requirements and procedures to
submit comprehensive oil spill response plans for approval to FRA.
Section 130.112
    Establishes a new section to apply the same plan implementation
requirements for comprehensive oil spill response plans formerly under
in Sec.  130.33.

Part 171

Section 171.7
    Add paragraph 173.121(a)(2)(vi) titled ``Petroleum products
containing known flammable gases'' stating, ``Standard Test Method for
Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas
Chromatography (ASTM D7900). The initial boiling point is the
temperature at which 0.5 weight percent is eluted when determining the
boiling range distribution.''

Part 173

Section 173.121
    Add paragraph 173.121(a)(2)(vi) titled ``Petroleum products
containing known flammable gases'' stating, ``Standard Test Method for
Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas
Chromatography (ASTM D7900). The initial boiling point is the
temperature at which 0.5 weight percent is eluted when determining the
boiling range distribution.''

Part 174

    The authority is updated to include 33 U.S.C. 1321.
Section 174.310
    Section 174.310 provides a list of the additional requirements for
the operation of HHFTs. A new paragraph (a)(6) titled ``Oil spill
response plans'' is added for clarity to provide a reference to the
part 130 requirements for HHFTs composed of trains carrying petroleum
oil.
Section 174.312
    Part 174, subpart G provides detailed requirements for flammable
liquids by rail. The HHFT Final Rule added Sec.  174.310 to this
subpart to establish requirements for HHFTs. In this NPRM, we are
proposing to add a new Sec.  174.312 to subpart G of part 174 to
require rail carriers that operate HHFTs to provide monthly
notifications to each applicable SERC, TERC, or other appropriate state
delegated agencies for further distribution to appropriate local
authorities, upon request. New proposed Sec.  174.312 specifies that
the notifications must include:
     A reasonable estimate of the number of HHFTs that the
railroad expects to operate each week, through each county within the
state or through each tribal jurisdiction;
     the routes over which the HHFTs will operate;
     a description of the hazardous material being transported
and all applicable emergency response information required by subparts
C and G of part 172; at least one point of contact at the railroad
(including name, title, phone number and address) with knowledge of the
railroad's transportation of affected trains (referred to as the ``HHFT
point of contact''); and
     If a route is subject to the comprehensive spill plan
requirements, the notification must include a description of the
response zones (including counties and states) and contact information
for the qualified individual and alternate, as specified under Sec.
130.104(a).
    As proposed, railroads may provide the required notifications
electronically or in hard copy and will be required to update the
notifications monthly. If there are no material changes to the
estimates provided in a month, proposed paragraph (a)(2)(i) would
require the railroad to provide a certification of no change. As
proposed, paragraph (a)(2)(iii) would require that each point of
contact be clearly identified by name or title and role (e.g.,
qualified individual, HHFT point of contact).
    Through the expansion of the applicability of the routing
requirements in Sec.  172.820 in the HHFT Final Rule to in include
HHFTs and this NPRM's new proposed Sec.  174.312, we have established
an information sharing framework that enables the railroads to work
with state officials to ensure that safety and security planning is
occurring. Under existing Sec.  172.820(g) of the HMR, fusion centers
and other state, local, and tribal officials with a need-to-know will
continue to work with the railroads on

routing and risk analysis information conducted pursuant to part 172,
subpart I, for information that is deemed SSI. At the same time,
proposed new Sec.  174.312 will ensure that SERCs, TERCs or other
appropriate state agencies will routinely receive and share non-
sensitive information from rail carriers regarding the movement of
HHFTs in their jurisdictions that can aid local emergency responders
and law enforcement in emergency preparedness and community awareness.
    PHMSA seeks public comment on all aspects of this proposal and in
particular the issues identified below. When commenting, please
reference the specific portion of the proposal, explain the reason for
any recommended change, and include the source, methodology, and key
assumptions of any supporting evidence.
    1. Whether particular public safety improvements could be achieved
by requiring the railroads to provide the notification proposed in
paragraph Sec.  174.312 directly to organizations other than SERCs,
TERCs, or other state delegated agencies?
    2. Whether requiring the information sharing notifications to be
made by railroads directly to the TERCs is the best approach to provide
information to tribal governments or whether providing a notification
to the National Congress of American Indians to disseminate to affected
tribes or another entity is more appropriate?
    3. Whether there are alternative 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.

VIII. Regulatory Review and Notices

A. Executive Order 12866, Executive Order 13563, Executive Order 13610,
and DOT Regulatory Policies and Procedures

    This NPRM is considered a significant regulatory action under
section 3(f) of Executive Order 12866 and was reviewed by the Office of
Management and Budget (OMB). It is also considered a significant
regulatory action under the Regulatory Policies and Procedures order
issued by DOT (44 FR 11034; February 26, 1979). PHMSA has prepared and
placed in the docket a draft Regulatory Impact Assessment addressing
the economic impact of this proposed rule.
    Executive Orders 12866 (``Regulatory Planning and Review'') and
13563 (``Improving Regulation and Regulatory Review'') require agencies
to regulate in the ``most cost-effective manner,'' to make a ``reasoned
determination that the benefits of the intended regulation justify its
costs,'' and to develop regulations that ``impose the least burden on
society.'' Executive Order 13610 (``Identifying and Reducing Regulatory
Burdens''), issued May 10, 2012, urges agencies to conduct
retrospective analyses of existing rules to examine whether they remain
justified and whether they should be modified or streamlined in light
of changed circumstances, including the rise of new technologies. DOT
believes that streamlined and clear regulations are important to ensure
compliance with important safety regulations. As such, the Department
has developed a plan detailing how such reviews are conducted.
    Additionally, Executive Orders 12866, 13563, and 13610 require
agencies to provide a meaningful opportunity for public participation.
Accordingly, PHMSA invites comments on these considerations, including
information to improve the estimates of costs and benefits; alternative
approaches; and relevant scientific, technical, and economic data.
These comments will help PHMSA evaluate whether the proposed
requirements are appropriate. PHMSA also seeks comment on potential
data and information gathering activities that could be useful in
designing an evaluation and/or retrospective review of this rulemaking.
    The proposed rule became necessary due to relatively recent
expansions in U.S. energy production, which has led to significant
challenges in the transportation system. Expansion in oil production in
North America relative to the 2000s has led to increasing volumes of
this product transported to refineries and other transport-related
facilities.
    The U.S. is now a global leader in crude oil production. With the
expectation of continued domestic production, rail transportation
remains a flexible alternative to transportation by pipeline or vessel.
The number of intra-U.S. rail carloads of crude oil approached 370,000
in 2013, reached approximately 450,000 carloads in 2014, and fell to
approximately 390,000 carloads in 2015.\47\ Total crude-by-rail
movements in the United States and between the United States and Canada
were more than 1 million barrels per day (bbl/d) in 2014, up from
55,000 bbl/d in 2010.\48\
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    \47\ http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_NUS-NUS_MBBL&f=M
    \48\ http://www.eia.gov/todayinenergy/detail.cfm?id=20592.
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    As of April 2016, the Bakken region of the Williston basin was
producing over one million barrels of oil per day, which is commonly
transported by rail.\49\ The U.S. Energy Information Administration's
``Annual Survey of Domestic Oil and Gas Reserves'' reports that in
addition to North Dakota's Bakken region, the shale plays in reserves
in North America are extensive.\50\
---------------------------------------------------------------------------

    \49\ Information regarding oil and gas production is available
at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2 .
    \50\ EIA ``U.S. Crude Oil and Natural Gas Proved Reserves,
2013,'' available at: http://www.eia.gov/naturalgas/crudeoilreserves/pdf/uscrudeoil.pdf .
---------------------------------------------------------------------------

    Expansion in oil production in North America has led to increasing
volumes of this product transported to refineries. Traditionally,
pipelines and oceangoing tankers have delivered the vast majority of
crude oil to U.S. refineries, accounting for approximately 93 percent
of total receipts (in barrels) in 2012. Although other modes of
transportation--rail, barge, and truck--have accounted for a relatively
minor portion of crude oil shipments historically, volumes have risen
very rapidly relative to the 2000s. The transportation of large volumes
of crude oil and other petroleum products by rail under the current
regulatory scheme poses a risk to life, property, and the environment.
Figure 1 provides the average monthly U.S. rail movements of crude oil
from 2010 through January 2016.

FIGURE 1:

[GRAPHIC] [TIFF OMITTED] TP29JY16.000

    Figure 2 shows the growth in U.S. crude oil production since 2000,
as well as growth in the number of rail carloads shipped. Figure 2 also
shows forecasted domestic crude oil production from EIA and projections
to 2034 for the rail shipment of crude oil.

FIGURE 2:

[GRAPHIC] [TIFF OMITTED] TP29JY16.001

    Rail accidents have risen along with the increase in crude oil
production and rail shipments of crude oil relative to the 2000s.
Figure 3 below shows this rise.\51\
---------------------------------------------------------------------------

    \51\ Source: STB Waybill Sample and PHMSA Incident Report
Database.

FIGURE 3:

[GRAPHIC] [TIFF OMITTED] TP29JY16.002

    Based on these train accidents, the expectation of continued
domestic crude oil production, and the number of train accidents
involving crude oil, PHMSA maintains that improved oil spill response
planning is essential to protecting the environment against the risks
of derailments involving large quantities of petroleum oil.
    PHMSA has identified several recent derailments to illustrate the
circumstances and consequences of derailments involving petroleum oil
transported in higher-risk train configurations: 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).
    For example, on December 30, 2013, a train carrying crude oil
derailed and ignited near Casselton, North Dakota, prompting
authorities to issue a voluntary evacuation of the city and surrounding
area. On November 7, 2013, a train carrying crude oil to the Gulf Coast
from North Dakota derailed in Aliceville, Alabama, spilling crude oil
in a nearby wetland and igniting into flames.
    These derailments of HHFTs transporting crude oil have resulted in
releases of petroleum oil that harmed or posed a threat of harm to the
nation's waterways. Of note here is Safety Recommendation R-14-5, which
recommended that PHMSA revise the spill response planning thresholds
prescribed in 49 CFR part 130 to require comprehensive OSRPs that
effectively provide for the carriers' ability to respond to worst-case
discharges resulting from accidents involving unit trains or blocks of
tank cars transporting oil and petroleum products.\52\ PHMSA developed
the revisions included in this NPRM in response to NTSB's safety
recommendations, as well as the aforementioned recent derailments.
---------------------------------------------------------------------------

    \52\ National Transportation Safety Board. (2014, January 21).
Safety Recommendation R-14-4 through -6. Retrieved from http://www.ntsb.gov/safety/safety-recs/recletters/R-14-004-006.pdf.
---------------------------------------------------------------------------

    On June 17, 1996, DOT's Research and Special Programs
Administration (RSPA) published a final rule issuing requirements that
sought to meet the intent of the Federal Water Pollution Control Act
(Clean Water Act; 61 FR 30533) and Oil Pollution Act of 1990 (see 33
U.S.C. 1321). This rule adopted requirements for packaging,
communication, spill response planning, and response plan
implementation intended to prevent and contain spills of oil during
transportation. Under these current requirements, railroads are
required to complete a basic OSRP for oil shipments

in a package with a capacity of 3,500 gallons or more, and a
comprehensive OSRP is required for oil shipments in a package
containing more than 42,000 gallons (1,000 barrels).
    Currently, all of the rail community that transports oil, including
crude oil transported as a hazardous material, is subject to the basic
OSRP requirement of 49 CFR 130.31(a) since most, if not all, rail tank
cars being used to transport crude oil have a capacity greater than
3,500 gallons. However, a comprehensive OSRP for shipment of oil is
only required when the quantity of oil is greater than 42,000 gallons
per tank car. Accordingly, the number of railroads required to have a
comprehensive OSRP is much lower, or possibly non-existent, because a
very limited number of rail tank cars in use would be able to transport
a volume of 42,000 gallons in a car.\53\ Thus, the existing regulatory
framework for basic plans in part 130 constitutes the regulatory
baseline and PHMSA anticipates that many railroads are likely to meet
the basic plan requirements under part 130.
---------------------------------------------------------------------------

    \53\ The 2014 AAR's Universal Machine Language Equipment
Register numbers showed five tank cars listed with a capacity equal
to or greater than 42,000 gallons, and none of these cars were being
used to transport oil or petroleum products.
---------------------------------------------------------------------------

    In addition, many railroads may voluntarily exceed the minimum
standards set forth by basic plans. Given that similar oil spill
response planning requirements are already in place for facilities,
pipelines, and vessels, PHMSA anticipates that response resources are
currently available across the U.S. As we anticipate that many
railroads may voluntarily exceed the minimum standard for compliance,
the change to the current planning and response baseline is likely to
be less than the change in the regulatory baseline (i.e., the change
from basic to comprehensive plans).
    PHMSA's preliminary analysis indicates that the planning and
response baseline currently provides for a level of OSRO coverage and
response resource availability that is consistent with the proposed
rule's response timeframe of 12 hours. In the aggregate, PHMSA-OHMS
could not identify any rail routes within the continental U.S. that
lack coverage from the network of USCG-certified OSROs analyzed. By our
estimation, all potential rail routes transporting large quantities of
petroleum oil in the continental U.S. could be serviced by an OSRO in
the event of a petroleum oil train derailment within 12 hours. For
additional discussion of our baseline analyses, please refer to the
``Baseline Analysis'' section in the draft RIA for this proposed rule.
    In summary, the proposed rule would expand the applicability of
comprehensive OSRPs based on thresholds of crude oil that apply to an
entire train consist. Specifically, the proposed rule would expand the
applicability for OSRPs so that no person may transport a single train
transporting 20 or more loaded tank cars of liquid petroleum oil in a
continuous block or a single train carrying 35 or more loaded tank cars
of liquid petroleum oil throughout the train consist unless that person
has implemented a comprehensive OSRP. Furthermore, this NPRM proposes
to require railroads to share additional information with state and
tribal emergency response organizations (i.e. SERCs and TERCs) to
improve community preparedness and to incorporate the voluntary use of
the IBP test (ASTM D7900) to determine classification and packing group
for Class 3 Flammable liquids.\54\
---------------------------------------------------------------------------

    \54\ The ASTM D7900 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 wherein an industry best
practice for testing of crude oil (ASTM D7900 for initial boiling
point) that was developed in concert with PHMSA is not authorized by
the HMR. We note that the incorporation of API RP 3000 and
consequently ASTM D7900 will not replace the currently authorized
testing methods, rather serve 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. This provision would not pose any costs.
---------------------------------------------------------------------------

    In the sections that follow, we outline the costs of OSRPs and
information sharing provisions, as well as the breakeven analysis we
developed in order to proactively generate a benefits outlook for this
rule. The provision to incorporate by reference ASTM D7900 is not
expected to impose costs on the regulated community; thus, we estimate
no quantitative benefits for that particular provision.
Costs
    Each railroad subject to the proposed rule must prepare and submit
a comprehensive OSRP that includes a plan for responding, to the
maximum extent practicable, to a worst-case discharge and to a
substantial threat of such a discharge of oil. The OSRP must also be
submitted to the FRA, where it will be reviewed and approved by FRA
personnel.
    The following entities would be subject to the comprehensive plan
requirements in the proposed rule:
    1. Any railroad transporting any liquid petroleum or non-petroleum
oil in a quantity greater than 42,000 gallons per packaging must submit
a comprehensive plan meeting the requirements of this subpart.
    2. Any railroad transporting any single train carrying 20 or more
tank cars of liquid petroleum oil in a continuous block or 35 or more
of such cars in a single train must submit a comprehensive plan.
    a. In determining number of tank cars, the railroad is not required
to include tank cars carrying mixtures of petroleum oil not meeting the
criteria for Class 3 flammable or combustible hazardous material in 49
CFR 173.120 or containing residue.
    3. A railroad meeting the requirements for a comprehensive plan
need not submit a plan if otherwise excepted in 49 CFR 130.2(c).
    For determining the entities that would be affected by the proposed
threshold, PHMSA used the definition of ``high hazard flammable train''
(HHFT) established in the ``Enhanced Tank Car Standards and Operational
Controls for High-Hazard Flammable Trains--Final Rule'' published on
May 8, 2015.\55\ PHMSA narrowed the affected entities to only include
railroads that transport crude oil and, in consultation with FRA,
revised the estimated number of Class III carriers that would be
subject to the rulemaking. Based on this assessment, PHMSA estimates
there are 73 railroads (7 Class I, 11 Class II, and 55 Class III) that
would be subject to this proposed rulemaking. In addition, PHMSA
evaluated several alternatives related to the threshold quantities that
trigger the need for a comprehensive plan in order to develop a range
for the entities affected by the OSRP provisions proposed in this rule.
The results of that analysis are presented further in the draft RIA,
available in the docket for this rulemaking.
---------------------------------------------------------------------------

    \55\ 80 FR 26643, pp 26643-26750. May 8, 2015.
---------------------------------------------------------------------------

    These estimates were derived for the purpose of estimating the
costs and benefits associated with the proposed rule. PHMSA believes
that the approach used represents a conservative estimate for the
number of affected entities and specifically solicits comment on the
approach and estimated values used in this analysis.
    The universe of affected entities for the information sharing
requirements is different than the number of entities affected under
the comprehensive response plan requirement. The applicability of this
requirement is derived from the information published in the HM-251
Final Rule; specifically, the definition of a high-hazard

flammable train (HHFT) and the information sharing portion of the
routing requirements of that final rule. The universe of affected
entities for this provision includes all HHFTs transporting crude
petroleum oil and ethanol, or 178 railroads (7 Class I, 11 Class II,
and 160 Class III). For purposes of assessing costs for this provision,
however, PHMSA determined there should be no additional costs for Class
I railroads to comply with this proposed revision per the AAR Circular
OT 55-O revision on January 27, 2015, which required AAR members to
provide bona fide emergency response agencies or planning groups with
specific commodity flow information covering all hazardous commodities
transported through the community for a 12-month period in rank order.
We assume this includes the proposed information to be shared with
SERCs and TERCs as required in this proposed rule. In addition, on May
7, 2014, DOT issued an Emergency Restriction/Prohibition Order in
Docket No. DOT-OST-2014-0067 \56\ that required each railroad
transporting 1,000,000 gallons or more of Bakken crude oil in a single
train in commerce within the U.S. to provide certain information in
writing to the SERC for each state in which it operates such a train.
PHMSA determined that 40 Class II and Class III railroads were part of
this order and have already developed the required notification. As
such, those entities are only subject to the proposed on-going updates
and submission requirements included in this rulemaking. Therefore, we
estimate that 131 railroads will be required to develop notifications
as a result of the proposed rule and 171 railroads will be affected by
the proposed monthly updates and recordkeeping requirements.
---------------------------------------------------------------------------

    \56\ http://www.dot.gov/briefing-room/emergency-order.
---------------------------------------------------------------------------

    Table 11 provides a summary of the estimated per carrier cost
associated with the proposed rule requirements for response plans and
information sharing. For purposes of this analysis, PHMSA has
identified several categories of costs related to the development of a
comprehensive response plan. Those costs include: Plan development,
submission, and maintenance; contract fees for designating an OSRO;
training and drills; and plan review and approval costs to the Federal
government. For additional information about the development of these
cost estimates, see the draft RIA.

                         Table 11--Undiscounted Unit Cost per Railroad by Railroad Class
----------------------------------------------------------------------------------------------------------------
                                                                                Unit cost per
                Category                           Frequency                   Railroad               carrier
----------------------------------------------------------------------------------------------------------------
Plan Development........................  Once every 5 years........  Class I...................         $14,777
                                                                      Class II..................           8,128
                                                                      Class III.................           7,019
Plan Maintenance........................  Annual....................  Class I...................           1,478
                                                                      Class II..................             813
                                                                      Class III.................             702
Plan Submission.........................  Once every 5 years........  Class I...................              20
                                                                      Class II..................              20
                                                                      Class III.................              20
OSRO Fee................................  Annual....................  Class I...................          40,000
                                                                      Class II..................           6,000
                                                                      Class II..................           2,500
Training and Drills.....................  Varies....................  Class I...................          65,203
                                                                      Class II..................          41,559
                                                                       Class III................          27,373
Information Sharing.....................  Year 1....................  All Railroads.............           7,589
                                          Annual....................  All Railroads.............           2,319
----------------------------------------------------------------------------------------------------------------

    For purposes of this analysis, PHMSA assumed a 10-year timeframe to
outline, quantify, and monetize the costs and benefits of the proposed
rule and to demonstrate the net effects of the proposal. Table 12
provides a summary of the undiscounted costs by year for this 10-year
period by railroad class, and Table 13 provides a summary of the
undiscounted costs by provision for this 10-year period.

                        Table 12--Summary of Undiscounted 10-Year Costs by Railroad Class
----------------------------------------------------------------------------------------------------------------
                                             Oil spill response plans               Information
                                 ------------------------------------------------     sharing
              Year                                                               ----------------      Total
                                      Class I        Class II        Class III     All railroads
----------------------------------------------------------------------------------------------------------------
1...............................        $850,342        $621,706      $2,068,728      $1,076,029      $4,616,806
2...............................         416,246         272,731       1,165,012         384,558       2,238,547
3...............................         416,749         273,465       1,168,636         387,477       2,246,327
4...............................         417,257         274,208       1,172,303         390,430       2,254,198
5...............................         865,737         635,420       2,111,227         393,418       4,005,803
6...............................         418,293         275,720       1,179,767         396,441       2,270,220
7...............................         418,820         276,489       1,183,565         399,499       2,278,373
8...............................         419,353         277,267       1,187,408         402,594       2,286,622
9...............................         419,892         278,055       1,191,296         405,725       2,294,969
10..............................         886,026         653,493       2,167,234         408,894       4,115,646
                                 -------------------------------------------------------------------------------
    Total.......................       5,528,716       3,838,553      14,595,175       4,645,065      28,607,509
----------------------------------------------------------------------------------------------------------------

                                             Table 13--Summary of 10-Year Costs by Provision (Undiscounted)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                               Plan            Plan            Plan                        Training and     Information
                  Year                      development     maintenance     submission       OSRO fees        drills          sharing          Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................        $578,907         $57,891          $1,421        $483,500      $2,419,058      $1,076,029      $4,616,806
2.......................................               0          58,328               0         483,500       1,312,161         384,558       2,238,547
3.......................................               0          58,771               0         483,500       1,316,579         387,477       2,246,327
4.......................................               0          59,219               0         483,500       1,321,049         390,430       2,254,198
5.......................................         596,719          59,672           1,465         483,500       2,471,029         393,418       4,005,803
6.......................................               0          60,130               0         483,500       1,330,149         396,441       2,270,220
7.......................................               0          60,594               0         483,500       1,334,779         399,499       2,278,373
8.......................................               0          61,064               0         483,500       1,339,464         402,594       2,286,622
9.......................................               0          61,539               0         483,500       1,344,205         405,725       2,294,969
10......................................         620,193          62,019           1,523         483,500       2,539,517         408,894       4,115,646
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................       1,795,818         599,227           4,409       4,835,000      16,727,990       4,645,065      28,607,509
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Table 14 provides a summary of the total and annualized costs by
railroad class discounted at a 3 and 7 percent rate.

                                       Table 14--Summary of Undiscounted and Discounted Total and Annualized Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Undiscounted                  3% Discount rate                7% Discount rate
                    Class of railroad                    -----------------------------------------------------------------------------------------------
                                                              10 Year       Annualized        10 Year       Annualized        10 Year       Annualized
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          OSRPs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Class I.................................................      $5,528,716        $552,872      $4,861,419        $569,907      $4,169,222        $593,603
Class II................................................       3,838,553         383,855       3,374,946         395,647       2,894,820         412,157
Class III...............................................      14,595,175       1,459,518      12,825,770       1,503,572      10,987,301       1,564,344
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Information Sharing
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Railroads...........................................       4,645,065         464,506       4,159,026         487,565       3,650,832         519,796
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................................      28,607,509       2,860,751      25,221,160       2,956,689      21,702,175       3,089,901
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Based on this cost analysis, PHMSA believes that the primary costs
drivers for this proposed rule are the annual fees associated with the
OSRO contracts, the annual training and drill requirements, and the
information sharing provisions.
    PHMSA solicits comment on the approach and estimated costs used in
this analysis, as well as the assumptions and estimates used in these
particular costs categories.
Benefits
    The proposed response plan requirements are designed to reduce the
magnitude and severity of spills, thereby reducing the environmental
damages and potential human health impacts that spills may cause. PHMSA
faced data uncertainties that limited our ability to estimate the
benefits of this proposed rule. Instead, PHMSA performed a breakeven
analysis by identifying the number of gallons of oil that the NPRM
would need to prevent from being spilled in order for its benefits to
at least equal its estimated costs. The analysis estimates that each
prevented gallon of oil spilled yields social benefits of $211.
Additional benefits may also be incurred due to ecological and human
health improvements that may not be captured in the value of the
avoided cost of spilled oil. These issues are discussed in more detail
in the accompanying draft RIA, and the reader is referred to that
document for more detail. PHMSA specifically solicits comment on both
the monetized and non-monetized benefits assessed in this analysis.
    In order to assess the baseline conditions that would be affected
by the proposed rule, PHMSA evaluated data provided in the Hazardous
Material Incident Reports Database.\57\ Specifically, PHMSA evaluated
reported incidents from 2004-2015 involving liquid petroleum
transported by rail. Most of the incidents are relatively minor non-
accident releases on which an OSRP would have no effect. Railroads
would only be required to develop comprehensive OSRPs along routes
where the potential for a worst-case discharge of oil is possible.
These are routes on which HHFTs operate, because an accidental release
involving a derailment, train collision, or other accident involving
trains hauling large quantities of petroleum oil are the only incidents
that have the potential to result in a large quantity release of
material. Above we presented the significant crude oil derailments
graphed against carloads of product shipped by rail for 2000-2015.
---------------------------------------------------------------------------

    \57\ https://hazmatonline.phmsa.dot.gov/IncidentReportsSearch/IncrSearch.aspx.
---------------------------------------------------------------------------

    A comprehensive OSRP would be required to cover those routes/
railroads that haul petroleum oil HHFTs, so the benefits analysis is
limited to those derailments involving petroleum oil HHFTs. The Agency
has identified 12 such derailments between 2012 and 2015. Specifically,
there were 3 events in 2013; 4 in 2014; and 5 in 2015, for a total of
12 incidents.
    2015 volumes are still roughly twice the volumes seen in 2012, and
EIA predicts U.S. crude oil production volumes to remain high for the
next decade and beyond. As a result, we expect volumes going forward to
remain relatively high by historic (pre-2012) standards, although we
examine a modest decline in production and rail

shipment volume in the sensitivity analysis of the draft RIA.
    One simple way to predict the number of future events based on the
HHFT period is as follows: The period of high volume crude shipments
starts in 2012 through 2015, providing a 4-year period. We consider a
10-year analysis period going forward, so the analysis period is 2.5
times longer than the observed period. There were 12 incidents in the
observed period, so the predicted number of events over the analysis
period would be 12 x 2.5 = 30 incidents. We note that 2012 volumes were
much lower than subsequent years, so treating it as a full year results
in a conservative estimate of the number of events. Evidence for this
can be seen in the data, as all 12 events occurred in 2013-2015, with 4
occurring in 2014 and 5 occurring in 2015. 2013 had 3 HHFT derailments,
meeting the 4 year average. 2012 is the only year in the analysis
period with fewer than 3 derailments.
    To monetize the damages associated with these incidents, PHMSA
assumes an equal chance of an incident occurring in any year of the 10
year analysis period. Given 30 events, this assumption means the
expected number of events in any given year is 3. Based on the 12
events for which data reporting is reasonably complete, PHMSA estimated
that, on average, 140,173 gallons of product are released per crude oil
HHFT derailment. In final rule HM-251, the Agency used $200 per gallon
to monetize the damages of an incident that results in a spill.\58\
That figure is based on the cost per gallon from recent pipeline events
and a literature review and data analysis conducted for both crude and
ethanol. Since this rule focuses on petroleum oil only (and not
ethanol), a slightly different value is applied. We use a value of $211
to estimate baseline damages associated with train derailment releases.
(See the draft RIA for this proposed rulemaking, in section 3.1.4, for
further discussion of how this cost per gallon figure was derived.)
---------------------------------------------------------------------------

    \58\ For detail on how this value was derived from PHMSA
pipeline data, the reader is referred to pages 85-90 of the HM-251
RIA located in Docket No. PHMSA-2012-0082 (HM-251).
---------------------------------------------------------------------------

    Table 15 below presents the estimated societal damages associated
with HHFT incidents involving crude oil over the 10-year analysis
period. The monetary value is obtained by multiplying the expected
number of events in a year (3) by the cost per gallon released ($211)
and the average release quantity (140,173). In addition, we adjust this
baseline for the implementation of final rule HM-251, which codified
new tank car standards for HHFTs and is expected to reduce the societal
damages imposed by these incidents by 40 percent once fully
implemented. Since this proposed rule will be finalized before
implementation of final rule HM-251 is complete (i.e. full phase in of
retrofitted tank cars and Electronically Controlled Pneumatic Braking),
we apply the final rule HM-251 effectiveness rates for the years 2017-
2026 to adjust for the impact of that rule on baseline damages.
Societal damage values discounted at 3 and 7 percent are also
presented.

                  Table 15--Summary of Estimated Societal Damages From Crude Oil HHFT Incidents
----------------------------------------------------------------------------------------------------------------
                                                                                HHFT
                    Year                      Events per year  Monetized value   effectiveness       Adjusted
                                                                     \1\           (percent)     monetized value
----------------------------------------------------------------------------------------------------------------
1...........................................                3      $88,729,245               22      $69,030,780
2...........................................                3       88,729,245               28       63,774,491
3...........................................                3       88,729,245               34       58,717,940
4...........................................                3       88,729,245               36       56,486,231
5...........................................                3       88,729,245               38       54,802,306
6...........................................                3       88,729,245               38       55,154,097
7...........................................                3       88,729,245               38       55,196,048
8...........................................                3       88,729,245               38       55,288,413
9...........................................                3       88,729,245               38       55,211,463
10..........................................                3       88,729,245               38       55,211,463
                                                                                ----------------
                                                                                578,873,232
                                                                               ---------------------------------
                                                                                7% discount      440,537,002
                                                                                3% discount      511,335,291
----------------------------------------------------------------------------------------------------------------
\1\ Calculated by multiplying 140,173 (estimate of gallons released per event) times $211 (estimate of societal
  cost per gallon released) times 3 (estimate of events per year).

    Although the Agency cannot estimate the degree to which
comprehensive OSRP requirements would reduce the consequences of these
events, it is clear by comparing the monetized damages with the total
costs of the proposed rule that even a minor reduction in damages would
result in a rule with positive net benefits. For example, estimated
costs as presented in Table 3 above are approximately 4.9 percent of
total societal damages, indicating that if this proposed rule reduced
the consequences of these events by 5 percent, the rule would have
positive net benefits.
    Comprehensive plans require training and exercises, staging of
equipment, analysis of routes and access points along routes as part of
the development of response zone appendices, and pre-establishing of a
chain of command and communication protocols, which would likely result
in much faster and more effective response to derailments involving
large quantities of petroleum oil. As a result, we expect the spilled
product would be contained and recaptured more effectively, a smaller
area would be contaminated, fewer environmental consequences would
result, and less property would be damaged. For example, a better
executed response to an incident that contaminates a river might ensure
quicker deployment of downriver booms, thereby reducing the amount of
shoreline oiling, damage to riparian environments, and impairment of
downstream sources of drinking water. The Agency believes that
training, better coordinated resource deployment, more clearly
delineated communication protocols and command structure, and

pre-event contracting of response resources will substantially reduce
the impacts of these incidents, and as a result the rule is likely to
be cost-justified.

B. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
governs the issuance of Federal regulations that require unfunded
mandates. This NPRM does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$155 million or more, adjusted for inflation, to either State, local,
or tribal governments, in the aggregate, or to the private sector in
any one year, and is the least burdensome alternative that achieves the
objective of the rule. As such, PHMSA has concluded that the NPRM does
not require an Unfunded Mandates Act analysis.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism'') and
the President's memorandum on ``Preemption'' published in the Federal
Register on May 22, 2009 (74 FR 24693). Executive Order 13132 requires
PHMSA to develop an accountable process to ensure ``meaningful and
timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the executive order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal Government provides the funds necessary to
pay the direct compliance costs incurred by state and local governments
or the agency consults with state and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts state law, the agency, where
practicable, seeks to consult with state and local officials in the
process of developing the regulation.
    This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132. PHMSA has
determined that the proposed rule will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This rule
proposes to update the existing 49 CFR part 130 by lowering the
applicability threshold and providing more detailed guidelines for
comprehensive oil spill response planning. It further proposes to
require railroads to share additional information with state and tribal
emergency response organizations, and proposes to incorporate by
reference an initial boiling point test for flammable liquids as an
acceptable testing alternative. The proposed rule does not impose any
new requirements with effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among government entities. In addition,
PHMSA has determined that this proposed rule will not impose
substantial direct compliance costs on State and local governments.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply.
    The Hazardous Materials Transportation Act (HMTA) provides that a
state law or Indian tribe requirement is preempted where compliance
with both the state law or Indian tribe requirement and the federal
requirement is not possible, the state law or Indian tribe requirement
creates an obstacle to accomplishing or executing the federal
requirement, or where a federal requirement has covered the subject and
the state law or Indian requirement is not substantively the same.
Covered subjects under the HMTA include: (1) The designation,
description, and classification of hazardous material; (2) the packing,
repacking, handling, labeling, marking, and placarding of hazardous
material; (3) the preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents; (4) the written
notification, recording, and reporting of the unintentional release in
transportation of hazardous material and other written hazardous
materials transportation incident reporting involving state or local
emergency responders in the initial response to the incident; and (5)
the designing, manufacturing, fabricating, inspecting, marking,
maintaining, reconditioning, repairing, or testing a package,
container, or packaging component that is represented, marked,
certified, or sold as qualified for use in transporting hazardous
material in commerce. Under the Federal Railroad Safety Act, ``[l]aws,
regulations, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall be
nationally uniform to the extent practicable.'' With narrow exceptions
for essentially local safety or security hazards, states may not
``adopt or continue in force a law, regulation, or order related to
railroad safety'' once the ``Secretary of Transportation . . .
prescribes a regulation or issues an order covering the subject matter
of the State requirement.'' 33 U.S.C. 20106(a)(2). This standard
applies to federal regulations governing the transportation of
hazardous materials by railroad, even where PHMSA or another agency
promulgates those regulations.
    Comments to the ANPRM from the concerned public and departments
within city and State governments highlight state legislation related
to oil spill response plans and request that PHMSA discuss the
preemptive effects of the changes to part 130 in this proposed rule.
Part 130 is issued under authority of 33 U.S.C. 1321(o)(1)(C) and
1321(j)(5).
    Regarding the proposed changes to 49 CFR part 130, federal
regulation under 33 U.S.C. 1321 accommodates regulation by states and
political subdivisions concerning oil spill response plans. See 33
U.S.C. 1321(o)(2). However, the preemption language of 33 U.S.C. 1321
preserves only the ability for states to impose oil spill planning
requirements. Elements of state oil spill response plan legislation may
be preempted under the preemption standard established by the FRSA and
the HMTA. Accordingly, the preemption provision of the FRSA and the
HMTA may apply to any state-imposed requirements on railroad safety or
hazardous materials containment. Nonetheless, PHMSA has determined that
this proposed rule will not impose substantial direct compliance costs
on State and local governments.
    PHMSA solicits comment on this Federalism discussion.

D. Executive Order 13175

    Executive Order 13175 (``Consultation and Coordination with Indian
Tribal Governments'') requires agencies to assure meaningful and timely
input from Indian tribal government representatives in the development
of rules that have tribal implications. Thus, in complying with this
Executive Order, agencies must determine whether a proposed rulemaking
has tribal implications, which include any rulemaking that imposes
``substantial direct effects'' on one or more Indian

communities, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power between the Federal
Government and Indian tribes. Further, to the extent practicable and
permitted by law, agencies cannot promulgate two types of rules unless
they meet certain conditions. The two types of rules are: (1) Rules
that have tribal implications that impose substantial direct compliance
costs on Indian tribal governments and that are not required by
statute; and (2) rules that have tribal implications and that preempt
tribal law.
    PHMSA is committed to tribal outreach and engaging tribal
governments in dialogue. Among other outreach efforts, PHMSA
representatives attended the National Joint Tribal Emergency Management
Conference on August 11-14, 2015 and the Northwest Tribal Emergency
Management Conference in May 4-6, 2016. In the spirit of Executive
Order 13175 and consistent with DOT Order 5301.1, PHMSA will be
continuing outreach to tribal officials independent of our assessment
of the direct tribal implications.

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

    Under the Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et
seq.), PHMSA must consider whether a rulemaking would have a
``significant economic impact on a substantial number of small
entities,'' which include small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000.
    To ensure potential impacts of rules on small entities are properly
considered, PHMSA in coordination with the FRA, developed this NPRM in
accordance with Executive Order 13272 (``Proper Consideration of Small
Entities in Agency Rulemaking'') and DOT's procedures and policies to
promote compliance with the RFA.
    The RFA and Executive Order 13272 (67 FR 53461; August 16, 2002)
require agency review of proposed and final rules to assess their
impacts on small entities. An agency must prepare an initial regulatory
flexibility analysis (IRFA) unless it determines and certifies that a
rule, if promulgated, would not have a significant economic impact on a
substantial number of small entities.
    PHMSA is publishing this IRFA to aid the public in commenting on
the potential small business impacts of the requirements in this NPRM.
PHMSA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from the adoption of the proposals in this NPRM. PHMSA will
consider all information and comments received in the public comment
process when making a determination regarding the economic impact on
small entities in the final rule.
    Under the RFA at 5 U.S.C. 603(b), each initial regulatory
flexibility analysis is required to address the following topics:
    (1) The reasons why the agency is considering the action.
    (2) The objectives and legal basis for the proposed rule.
    (3) The kind and number of small entities to which the proposed
rule will apply.
    (4) The projected reporting, recordkeeping and other compliance
requirements of the proposed rule.
    (5) All Federal rules that may duplicate, overlap, or conflict with
the proposed rule.
    The RFA at 5 U.S.C. 603(c) requires that each initial regulatory
flexibility analysis contains a description of any significant
alternatives to the proposal that accomplish the statutory objectives
and minimize the significant economic impact of the proposal on small
entities. In this instance, none of the alternatives accomplish the
statutory objectives and minimize the significant economic impact of
the proposal on small entities.
(1) Reasons Why the Agency Is Considering the Action
    PHMSA, in coordination with the FRA, is issuing this NPRM in order
to improve response readiness and mitigate effects of rail incidents
involving petroleum oil and certain HHFTs. This is necessary due to the
expansion in U.S. energy production, which has led to significant
challenges for the country's transportation system. This NPRM has
requirements in two areas as shown below: Section I, Subsection A
(``Oil Spill Response Plans'') and Subsection B (``Information
Sharing'').\59\ The first requirement proposes to modernize the
Comprehensive Spill Plan requirements (49 CFR part 130). Additionally,
this NPRM proposes to require railroads to share additional information
with state and tribal emergency response organizations (i.e., SERCs and
TERCs) to improve community preparedness. The proposals in this NPRM
work in conjunction with the requirements adopted in the HHFT Final
Rule in order to continue the comprehensive approach toward ensuring
the safe transportation of energy products and mitigating the
consequences of such accidents should they occur. PHMSA is addressing
below the potential impacts on small entities with the proposed rule
requirements for response plans and information sharing.\60\
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    \59\ This rulemaking also proposes incorporation and the
voluntary use of the initial boiling point (IBP) test (ASTM D7900)
to determine classification and packing group for Class 3 Flammable
liquids. We note that the incorporation of API RP 3000 and
consequently ASTM D7900 will not replace the currently authorized
testing methods, rather serve 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. This provision would not pose any impacts on small
entities.
    \60\ We note that the incorporation of API RP 3000, which
contains the ASTM D7900 test will not replace the currently
authorized initial boiling point testing methods, but rather serve
as a testing alternative if one chooses to use that method. PHMSA
believes this provides flexibility and promotes enhanced safety in
transport through accurate packing group assignment. This
requirement will impose no new costs.
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(A) Oil Spill Response Plans
    PHMSA is promulgating this NPRM in response to recent train
accidents involving the derailment of HHFTs. Shipments of large volumes
of liquid petroleum oil pose a significant risk to life, property, and
the environment. PHMSA has identified several recent derailments to
illustrate the circumstances and consequences of derailments involving
petroleum oil transported in higher-risk train configurations: 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).
    For example, on December 30, 2013, a train carrying crude oil
derailed and ignited near Casselton, North Dakota, prompting
authorities to issue a voluntary evacuation of the city and surrounding
area. On November 7, 2013, a train carrying crude oil to the Gulf Coast
from North Dakota derailed in Aliceville, Alabama, spilling crude oil
in a nearby wetland and igniting into flames. These train accidents
involving derailments of HHFTs transporting crude oil resulted in
discharges of petroleum oil that harmed or posed a threat of harm to
the nation's waterways.
    Of note here is the NTSB's Safety Recommendation R-14-5,\61\ which

requested that PHMSA revise the spill response planning thresholds
prescribed in 49 CFR part 130 to require comprehensive OSRPs that
effectively provide for the carriers' ability to respond to worst-case
discharges resulting from accidents involving unit trains or blocks of
tank cars transporting oil and petroleum products. In this
recommendation, the NTSB raised a concern that, ``[b]ecause there is no
mandate for railroads to develop comprehensive plans or ensure the
availability of necessary response resources, carriers have effectively
placed the burden of remediating the environmental consequences of an
accident on local communities along their routes.'' In light of these
accidents and NTSB Recommendation R-14-5, PHMSA is now re-examining
whether it is more appropriate to consider the train in its entirety
when setting the threshold for comprehensive OSRPs. The revisions
included in the NPRM were developed to expand the applicability of the
comprehensive OSRP requirement. PHMSA holds that improved oil spill
response planning will in turn improve the actual response to future
derailments involving petroleum oil and lessen the negative impacts to
the environment and communities.
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    \61\ http://www.ntsb.gov/safety/safety-recs/recletters/R-14-004-006.pdf.
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    On June 17, 1996, RSPA published a final rule issuing requirements
that meet the intent of the Clean Water Act. This rule adopted
requirements for packaging, communication, spill response planning, and
response plan implementation intended to prevent and contain spills of
oil during transportation. Under these current requirements, railroads
are required to complete a basic OSRP for oil shipments in a package
with a capacity of 3,500 gallons or more, and a comprehensive OSRP is
required for oil shipments in a package containing more than 42,000
gallons (1,000 barrels).
    Currently, most, if not all, of the rail community transporting
oil, including crude oil transported as a hazardous material, is
subject to the basic OSRP requirement of 49 CFR 130.31(a) since most,
if not all, rail tank cars being used to transport crude oil have a
capacity greater than 3,500 gallons. However, a comprehensive OSRP for
shipment of oil is only required when the quantity of oil is greater
than 42,000 gallons per tank car. Accordingly, the number of railroads
required to have a comprehensive OSRP is much lower, or possibly non-
existent, because a very limited number of rail tank cars in use would
be able to transport a volume of 42,000 gallons in a car.\62\
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    \62\ The 2014 AAR's Universal Machine Language Equipment
Register numbers showed five tank cars listed with a capacity equal
to or greater than 42,000 gallons, and none of these cars were being
used to transport oil or petroleum products.
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    The proposed rule expands the applicability of comprehensive OSRPs
based on thresholds of crude oil that apply to an entire train consist.
Specifically, the proposed rule would expand the applicability for
OSRPs so that no person may transport a HHFT quantity of liquid
petroleum oil unless that person has implemented a comprehensive OSRP.
    Each railroad subject to the proposed rule must prepare and submit
a comprehensive OSRP that includes a plan for responding, to the
maximum extent practicable, to a worst-case discharge and to a
substantial threat of such a discharge of oil. The OSRP must also be
submitted to the FRA, where it will be reviewed and approved by FRA
personnel.
(B) Information Sharing
    On May 7, 2014, DOT issued Emergency Restriction/Prohibition Order
in Docket No. DOT-OST-2014-0067,\63\ which required each railroad
transporting 1,000,000 gallons or more of Bakken crude oil in a single
train in commerce within the U.S. to provide certain information in
writing to the SERC for each state in which it operates such a train.
In the HM-251 (RIN 2137-AE91) NPRM published last year (79 FR 45015;
Aug. 1, 2014), PHMSA proposed to codify and clarify the requirements of
the Order in the HMR and requested public comment on the various facets
of that proposal. Unlike many other requirements in the August 1, 2014
NPRM, the notification requirements were specific to a single train
that contains one million gallons or more of UN 1267, Petroleum crude
oil, Class 3, sourced from the Bakken shale. In the HHFT Final Rule,
PHMSA did not adopt the separate notification requirements proposed in
the NPRM and instead relied on the expansion of the existing route
analysis and consultation requirements of Sec.  172.820 to include
HHFTs to satisfy information sharing needs.
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    \63\ http://www.dot.gov/briefing-room/emergency-order.
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    Based on all the intense interests and issues revolving around
information sharing, we are proposing in this HM-251B NPRM to add Sec.
174.312 to add a new information sharing provisions to the additional
safety and security planning requirements for transportation by rail.
This proposed addition will create a tiered approach to information
sharing, whereas fusion centers will continue to act as the focal point
for risk analysis information deemed SSI and SERCs and TERCs will
actively be provided with non-sensitive security information that can
aid in emergency preparedness and community awareness. The proposed
requirements provide emergency responders with an integrated approach
to receiving information about HHFTs.
(2) The Objectives and Legal Basis for the Proposed Rule
    PHMSA is addressing below the two requirement areas in this
proposed rule, Oil Spill Response Plans and Information Sharing.
(A) Oil Spill Response Plans
    PHMSA, in coordination with FRA, is issuing this NPRM in order to
improve response readiness and mitigate effects of rail incidents
involving petroleum crude oil transported in HHFTs. The proposed rule
is necessary due to the expansion in U.S. energy production, which has
led to significant challenges for the country's transportation system.
This rule proposes to modernize the OSRP requirements in 49 CFR part
130. This NPRM adjusts the applicability for comprehensive oil spill
response plans and clarifies the comprehensive plan requirements.
Additionally, this rulemaking proposes to restructure and clarify the
requirements of the comprehensive oil spill response plan. The proposed
changes respond to commenter requests for requirements for more
detailed guidance and provide a better parallel to other federal oil
spill response plan regulations promulgated under the OPA 90 authority.
A full summary of the changes to the plan requirements are described in
the NPRM. Each comprehensive plan must include: \64\
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    \64\ The following text is provided as an overview of the rule
and does not replace regulatory text included in the NPRM.
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    I. Core Plan: A core plan includes an information summary, as
proposed in 49 CFR 130.104(a)(2), and any components which do not
change between response zones. Each plan must:
     Describe the railroad's response management system,
including the functional areas of finance, logistics, operations,
planning, and command.
     Demonstrate that the railroad's response management system
uses common terminology (e.g., the National Incident Management System)
and has a manageable span of control, a clearly defined chain of
command, and

sufficiently trained personnel to fill each position.
     Include an information summary as required by Sec.
130.104.
     Certify that the railroad reviewed the National
Contingency Plan (NCP) and each applicable Area Contingency Plan (ACP)
and that its response plan is consistent with the NCP and each
applicable ACP and follows Immediate Notification procedures, as
required by Sec.  130.103.
     Include notification procedures and a list of contacts as
required in Sec.  130.105.
     Include spill detection and mitigation procedures as
required in Sec.  130.106.
     Include response activities and resources as required in
Sec.  130.106.
     Certify that applicable employees were trained per Sec.
130.107.
     Describe procedures to ensure equipment testing and a
description of the drill program per Sec.  130.108.
     Describe plan review and update procedures per Sec.
130.109.
     Submit the plan as required by Sec.  130.111.
    II. Response Zone Appendix: For reach response zone, a railroad
must include a response zone appendix to provide the information
summary, as proposed in 49 CFR 130.107(b), and any additional
components of the plan specific to the response zones. Each response
zone appendix must identify:
     A description of the response zone, including county(s)
and state(s);
     A list of route sections contained in the response zone,
identified by railroad milepost or other designation determined by the
railroad;
     Identification of any environmentally sensitive areas per
route section; and
     Identification of the location where the response
organization will deploy and the location and description of equipment
required by Sec.  130.106(c)(6).
    In addition, the proposed rule would require plan holders to
identify an OSRO, provided through a contract or other approved means,
to respond to a worst-case discharge to the maximum extent practicable
within 12 hours.
(B) Information Sharing
    In HM-251B NPRM, we are proposing to add to Sec.  174.312 to add
new information sharing provisions to the additional safety and
security planning requirements for transportation by rail. The proposed
requirements provide emergency responders with an integrated approach
to receiving information about HHFTs. As proposed, Sec.  174.312 will
require a rail carrier of an HHFT to provide a monthly notification to
the SERC, TERC, or other appropriate state delegated entities in which
it operates. As proposed the notification must meet the following
requirements:
     A reasonable estimate of the number of HHFT that the
railroad expects to operate each week, through each county within the
State or through each tribal jurisdiction;
     The routes over which the HHFTs will operate;
     A description of the hazardous material being transported
and all applicable emergency response information required by subparts
C and G of part 172 of this subchapter;
     An HHFT point of contact: at least one point of contact at
the railroad (including name, title, phone number and address) related
to the railroad's transportation of affected trains;
     If a route is additionally subject to the comprehensive
spill plan requirements, the notification must include a description of
the response zones (including counties and states) and contact