[Federal Register: April 16, 2008 (Volume 73, Number 74)]
[Rules and Regulations]
[Page 20751-20773]
[DOCID:fr16ap08-10]

-----------------------------------------------------------------------

Part II

Department of Transportation

-----------------------------------------------------------------------

Pipeline and Hazardous Materials Safety Administration

-----------------------------------------------------------------------

Federal Railroad Administration

-----------------------------------------------------------------------

49 CFR Parts 172, 174, and 209

Hazardous Materials: Enhancing Rail Transportation Safety and Security
for Hazardous Materials Shipments; Railroad Safety Enforcement
Procedures; Interim Final Rule and Proposed Rule

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 174

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

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

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

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in
coordination with the Federal Railroad Administration and the
Transportation Security Administration, is revising the current
requirements in the Hazardous Materials Regulations applicable to the
safe and secure transportation of hazardous materials transported in
commerce by rail. This interim final rule fulfills requirements in
Section 1551 of the Implementing Recommendations of the 9/11 Commission
Act of 2007.
---------------------------------------------------------------------------

    \1\ This rulemaking was formerly designated as HM-232E; however,
with the transition to a new government-wide regulations portal,
docket number nomenclature has since changed. Some references to the
old docket number are still present in this document.
---------------------------------------------------------------------------

    In this interim final rule, we are requiring rail carriers to
compile annual data on certain shipments of explosive, toxic by
inhalation, and radioactive materials, use the data to analyze safety
and security risks along rail routes where those materials are
transported, assess alternative routing options, and make routing
decisions based on those assessments. We are also clarifying rail
carriers' responsibility to address in their security plans issues
related to en route storage and delays in transit. In addition, we are
adopting a new requirement for rail carriers to inspect placarded
hazardous materials rail cars for signs of tampering or suspicious
items, including improvised explosive devices.

DATES: This interim final rule is effective June 1, 2008.
    Voluntary Compliance Date: Voluntary compliance is authorized as of
May 16, 2008.
    Comments: Comments must be received by May 16, 2008.

ADDRESSES: You may submit comments identified by the docket number
PHMSA-RSPA-2004-18730 by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the online instructions for submitting
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
    Instructions: All submissions must include the agency name and
docket number for this rule. Note that all comments received will be
posted without change, including any personal information provided.
Please see the Privacy Act section of the preamble.

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

SUPPLEMENTARY INFORMATION:

I. Background

    Hazardous materials are essential to the economy of the United
States and the well being of its people. Hazardous materials fuel motor
vehicles, purify drinking water, and heat and cool homes and offices.
They are used for farming and medical applications, and in
manufacturing, mining, and other industrial processes. Railroads
annually carry over 1.7 million shipments of hazardous materials
including explosive, poisonous, corrosive, flammable and radioactive
materials. As common carriers, railroads are obligated to accept
hazardous cargo that is tendered in compliance with legal requirements,
whether or not they would choose to do so for business reasons. This
common carrier obligation ensures that offerors are given the
opportunity to ship hazardous materials, including the most dangerous
hazardous materials, in the safest, most secure manner possible.
    The need for hazardous materials to support essential services
means transportation of hazardous materials is unavoidable. However,
these shipments frequently move through densely-populated or
environmentally-sensitive areas where the consequences of an incident
could be loss of life, serious injury, property damage, and/or
significant environmental damage.
    The same characteristics of hazardous materials that cause concern
in the event of an accidental release also make them attractive targets
for terrorism or sabotage. Hazardous materials in transportation are
frequently transported in substantial quantities and are potentially
vulnerable to sabotage or misuse. Such materials are already mobile and
are frequently transported in proximity to large population centers.
Further, security of hazardous materials in the transportation
environment poses unique challenges as compared to security at fixed
facilities. Finally, hazardous materials in transportation often bear
clear identifiers to ensure their safe and appropriate handling during
transportation and to facilitate identification and effective emergency
response in the event of an accident or release; these identifiers may
also identify hazardous materials shipments as targets of opportunity
for terrorists or other criminals.
    A primary safety and security concern related to the rail
transportation of hazardous materials is the prevention of catastrophic
release or explosion in proximity to densely populated areas, including
urban areas and events or venues with large numbers of people in
attendance. Also of major concern is the release or explosion of rail
cars in close proximity to iconic buildings, landmarks, or
environmentally significant areas. Such a catastrophic event could be
the result of an accident--such as the January 6, 2005 derailment and
release of chlorine in Graniteville, South Carolina, which resulted in
9 fatalities and 554 injuries--or a deliberate act of terrorism. The
causes of intentional and unintentional releases of hazardous material
are very different; however, in either case, the potential consequences
of both releases are significant. Indeed, the consequences of an
intentional release of hazardous material by a criminal or terrorist
action are likely to be more severe than the consequences of an
unintentional release because an intentional action is designed to
inflict the most damage possible.
    DHS is the lead agency for transportation security and has shared
responsibility with DOT for hazardous materials transportation
security. DOT consults and coordinates on security-related hazardous
materials transportation requirements to ensure they are consistent
with DHS's overall security policy goals. Both departments

work to ensure that the regulated industry is not confronted with
inconsistent security guidance or requirements promulgated by the
government.
    The Federal Hazardous Materials Transportation Law (Federal Hazmat
Law, 49 U.S.C. 5101 et seq.), authorizes the Secretary of the
Department of Transportation to ``prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.'' The Secretary has
delegated this authority to the Pipeline and Hazardous Materials Safety
Administration (PHMSA). The Hazardous Materials Regulations (HMR; 49
CFR parts 171-180), promulgated by PHMSA under the mandate in section
5103(b), govern safety aspects, including security, of the
transportation of hazardous material. In accordance with its security
authority, in March 2003, PHMSA adopted new transportation security
requirements for offerors and transporters of certain classes and
quantities of hazardous materials and new security training
requirements for hazardous materials employees. 68 FR 14509 (March 25,
2003). These security regulations, which are explained in more detail
below, require offerors and carriers to develop and implement security
plans and to train their employees to recognize and respond to possible
security threats.
    When PHMSA adopted its security regulations, we stated that these
regulations were ``the first step in what may be a series of
rulemakings to address the security of hazardous materials shipments.''
68 FR 14511. PHMSA also noted that the Transportation Security
Administration (TSA) ``is developing regulations that are likely to
impose additional requirements beyond those established in this final
rule,'' and stated it would ``consult and coordinate with TSA
concerning security-related hazardous materials transportation
regulations * * *'' Id.
    Under Section 101(a) of the Aviation and Transportation Security
Act (ATSA) (codified at 49 U.S.C. 114) and 49 CFR 1502.1, TSA has broad
responsibility and authority for ``security in all modes of
transportation * * *'' ATSA authorizes TSA to take immediate action to
protect transportation security (49 U.S.C. 114(d)(2)), and to:

--Develop policies, strategies and plans for dealing with threats to
transportation (Sec.  114(f)(3));
--Assess intelligence and other information in order to identify
individuals who pose a threat to transportation security (Sec.
114(f)(1));
--Coordinate countermeasures with other Federal agencies to address
such threats (Sec.  114(f)(4));
--Enforce security-related regulations and requirements (Sec.
114(f)(7));
--Ensure the adequacy of security measures for the transportation of
cargo (Sec.  114(f)(10));
--Oversee the implementation and ensure the adequacy of security
measures at transportation facilities (Sec.  114(f)(11));
--Carry out other appropriate duties relating to transportation
security (Sec.  114(f)(15)); and
--Serve as the primary liaison for transportation security to the
intelligence and law enforcement communities (Sec.  114(f)(5)).

    In sum, TSA's authority with respect to transportation security is
comprehensive and supported with specific powers related to the
development and enforcement of regulations, security directives,
security plans, and other requirements. Accordingly, under this
authority, TSA may identify a security threat to any mode of
transportation, develop a measure for dealing with that threat, and
enforce compliance with that measure.
    On August 7, 2006, PHMSA and TSA signed an annex to the September
28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and
Responsibilities. The purpose of the annex is to delineate clear lines
of authority and responsibility and promote communications, efficiency,
and non-duplication of effort through cooperation and collaboration in
the area of hazardous materials transportation security based on
existing legal authorities and core competencies. Similarly, on
September 28, 2006, the Federal Railroad Administration (FRA) and TSA
signed an annex to address each agency's roles and responsibilities for
rail transportation security. The FRA-TSA annex provides that ``DHS
holds lead authority, primary responsibility and dedicated resources
for security activities in all modes of transportation including
rail.'' Concerning safety, the FRA-TSA annex recognizes that FRA has
authority over every area of railroad safety (including security) and
that FRA enforces PHMSA's hazardous materials regulations. The FRA-TSA
annex includes procedures for coordinating: (1) Planning, inspection,
training, and enforcement activities; (2) criticality and vulnerability
assessments and security reviews; (3) communicating with affected
stakeholders; and (4) use of personnel and resources. Copies of the two
annexes are available for review in the public docket for this
rulemaking. In accordance with the principles outlined in the PHMSA-TSA
and FRA-TSA annexes, PHMSA and FRA collaborated with TSA to develop
this interim final rule.

II. Current Hazardous Materials Transportation Safety and Security
Requirements

 A. The Hazardous Materials Regulations

    In accordance with Sec.  172.704(a) of the HMR, all hazardous
materials employees (hazmat employees) are required to fulfill the
security awareness training, and employees responsible for developing
and implementing security plans must also complete in-depth security
training. Subpart I of Part 172 of the HMR requires persons who offer
certain hazardous materials for transportation or transport certain
hazardous materials in commerce to develop and implement security
plans. A person is required to develop and implement a security plan if
he or she transports any of the following materials in commerce:
    (1) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined at 49 CFR 173.403, in a motor vehicle, rail car,
or freight container;
    (2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material in a motor vehicle, rail car, or freight
container;
    (3) More than one L (1.06 qt) per package of a material poisonous
by inhalation, as defined at 49 CFR 171.8, that meets the criteria for
Hazard Zone A, as specified in 49 CFR 173.116(a) or 173.133(a);
    (4) A shipment of a quantity of hazardous materials in a bulk
packaging having a capacity equal to, or greater than, 13,248 L (3,500
gallons) for liquids or gases or more than 13.24 cubic meters (468
cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000
pounds) gross weight, or more, of one class of hazardous materials for
which placarding of a vehicle, rail car, or freight container is
required for that class under the provisions of subpart F of 49 CFR
part 172;
    (6) A select agent or toxin regulated by the Centers for Disease
Control and Prevention under 42 CFR part 73; or
    (7) A quantity of hazardous material that requires placarding under
the provisions of subpart F of 49 CFR part 172.
    Subpart I of part 172 sets forth general requirements for a
security plan's components rather than a prescriptive

list of specific items that must be included. The security plan must
include an assessment of possible transportation security risks and
appropriate measures to address the assessed risks. Specific measures
implemented as part of the plan may vary according to the nature and
level of threat at a particular time. At a minimum, the security plan
must address personnel security, unauthorized access, and en route
security. To address personnel security, the plan must include measures
to confirm background information provided by job applicants for
positions involving access to and handling of the hazardous materials
covered by the plan. To address unauthorized access, the plan must
include measures designed to limit or mitigate the risk of unauthorized
persons gaining access to materials or transport conveyances being
prepared for transportation. To address en route security, the plan
must include measures to mitigate security risks during transportation,
including the security of shipments stored temporarily en route to
their destinations.
    Under these standards, security plans can and should differ from
one offeror or carrier to another. In each case, the plan should be
based on the offeror's or carrier's individualized assessment of the
security risks associated with the specific hazardous materials it
ships or transports and its unique circumstances and operational
environment.
    The HMR also contain limited provisions intended to minimize delays
in transportation. Pursuant to Sec.  174.14 of the HMR, rail carriers
are required to expedite the movement of hazardous materials shipments.
Each shipment of hazardous materials must be forwarded ``promptly and
within 48 hours (Saturdays, Sundays, and holidays excluded)'' after
acceptance of the shipment by the rail carrier. If only biweekly or
weekly service is performed, the carrier must forward a shipment of
hazardous materials in the first available train. Additionally,
carriers are prohibited from holding, subject to forwarding orders,
tank cars loaded with Division 2.1 (flammable gas), Division 2.3
(poisonous gas) or Class 3 (flammable liquid) materials. The purpose of
Sec.  174.14 is to help ensure the prompt delivery of hazardous
materials shipments and to minimize the time such materials spend in
transportation, thus minimizing the exposure of hazmat shipments to
accidents, derailments, unintended releases, or tampering.

B. AAR Circular OT-55-I

    The rail industry, through the Association of American Railroads
(AAR), has developed a detailed protocol on recommended railroad
operating practices for the transportation of hazardous materials.
These recommended practices were originally implemented by all of the
Class 1 rail carriers operating in the United States; short-line
railroads are also signatories to the most recent version of this
document, known as Circular OT-55-I, issued by AAR on July 17, 2006.
The Circular details railroad operating practices for: (1) Designating
trains containing (i) five tank car loads or more of poison inhalation
hazard (PIH) materials, (ii) 20 or more car loads or intermodal
portable tank loads of a combination of PIH, flammable gas, Class 1.1
or 1.2 explosives, and environmentally-sensitive chemicals, or (iii)
one or more car loads of spent nuclear fuel or high level radioactive
waste as ``key trains;'' (2) designating operating speed and equipment
restrictions for key trains; (3) designating ``key routes'' for key
trains, and setting standards for track inspection and wayside defect
detectors; (4) yard operating practices for handling placarded tank
cars; (5) storage, loading, unloading and handling of tank cars; (6)
assisting communities with emergency response training and information;
(7) shipper notification procedures; and (8) the handling of time-
sensitive materials.

    Circular OT-55-I defines a ``key route'' as:

    Any track with a combination of 10,000 car loads or intermodal
portable tank loads of hazardous materials, or a combination of
4,000 car loadings of PIH (Hazard zone A, B, C, or D), anhydrous
ammonia, flammable gas, Class 1.1 or 1.2 explosives,
environmentally-sensitive chemicals, Spent Nuclear Fuel (SNF), and
High Level Radioactive Waste (HLRW) over a period of one year.

    Any route defined by a railroad as a key route should meet certain
standards described in OT-55-I. Wayside defective wheel bearing
detectors should be placed at a maximum of 40 miles apart, or an
equivalent level of protection may be installed based on improvements
in technology. Main track on key routes should be inspected by rail
defect detection and track geometry inspection cars or by any
equivalent level of inspection at least twice each year. Sidings on key
routes should be inspected at least once a year, and main track and
sidings should have periodic track inspections to identify cracks or
breaks in joint bars. Further, any track used for meeting and passing
key trains should be FRA Class 2 track or higher. If a meet or pass
must occur on less than Class 2 track due to an emergency, one of the
trains should be stopped before the other train passes. This interim
final rule in part reflects the recommended practices mentioned above,
which are already in wide use across the rail industry.

III. Notices of Proposed Rulemaking

    On December 21, 2006, PHMSA, in coordination with FRA and TSA,
published a notice of proposed rulemaking (NPRM) under Docket HM-232E
(71 FR 76834) proposing to revise the current requirements in the HMR
applicable to the safe and secure transportation of hazardous materials
by rail. Specifically, we proposed to require rail carriers to compile
annual data on specified shipments of hazardous materials, use the data
to analyze safety and security risks along rail routes where those
materials are transported, assess alternative routing options, and make
routing decisions based on those assessments. We also proposed
clarifications of the current security plan requirements to address en
route storage, delays in transit, delivery notification, and additional
security inspection requirements for hazardous materials shipments.
    Also on December 21, 2006, TSA published an NPRM proposing security
regulations that would cover a broader spectrum of rail transportation,
including passenger service. (71 FR 76852; see also TSA's Initial
Regulatory Flexibility Analysis, 72 FR 7376 [Feb. 15, 2007].) The TSA
proposal is intended to reduce security risks associated with certain
hazardous materials shipments in designated High Threat Urban Areas
(HTUAs) and to raise the overall security baseline for freight railroad
shipments. (TSA has identified 46 geographic areas as HTUAs warranting
special consideration based on population and risk assessment data. See
71 FR at 76861.) The TSA proposal applies to freight railroad carriers;
intercity, commuter, and short-haul passenger trains; rail mass transit
systems; and rail operations at certain fixed facilities that ship or
receive PIH, explosive, or radioactive materials.
    The hazardous materials provisions of the TSA proposal complement
and build on the proposals in the PHMSA NPRM. Specifically, TSA
proposed to require railroads to designate rail security coordinators
to serve as primary contacts for receipt of intelligence information
and to require reporting of significant security concerns, potential
threats, and incidents. In addition, upon request

from TSA, rail carriers and certain facility operators would be
required to report car locations and shipping information for shipments
of PIH, explosive, and radioactive materials within one hour of the
request. TSA also proposed enhanced chain-of-custody requirements for
rail shipments of PIH, explosive, and radioactive materials in HTUAs to
ensure that no car is left unattended as it is transferred from shipper
to carrier, between carriers, or from carrier to consignee.
    To obtain additional public input on our NPRM, PHMSA hosted
meetings on February 1, 2007, in Washington, DC, and February 9, 2007,
in Dallas, Texas. TSA also held a public meeting on its NPRM on
February 2, 2007, in Arlington, Virginia. Thirty-five persons attended
the Washington, DC public meeting, and 15 persons attended the Dallas
meeting. Records of the public meetings, including attendance lists,
transcripts, and a list of questions commenters were asked to address,
are available for review in the public docket for this rulemaking.

IV. Implementing Recommendations of the 9/11 Commission Act of 2007

    Several weeks after the close of the comment period in this
proceeding, Congress enacted the Implementing Recommendations of the 9/
11 Commission Act of 2007 (Pub. L. 110-53; 121 Stat. 266), which the
President signed into law on August 3, 2007. Among other requirements,
the Act directs the Secretary of Transportation, in consultation with
the Secretary of Homeland Security, to publish a final rule based on
PHMSA's December 21, 2006 NPRM by May 3, 2008. In accordance with
Section 1551(e) of the Act, PHMSA's final rule must require rail
carriers of ``security-sensitive materials'' to ``select the safest and
most secure route to be used in transporting'' those materials, based
on the rail carrier's analysis of the safety and security risks on
primary and alternate transportation routes over which the carrier has
authority to operate. Specifically, the HM-232E final rule must require
such rail carriers to perform the following tasks each calendar year:
    (1) Collect and compile security-sensitive commodity data, by
route, line segment, or series of line segments, as aggregated by the
rail carrier and identify the geographic location of the route and the
total number of shipments by UN identification number;
    (2) Identify practicable alternative routes over which the carrier
has authority to operate as compared to the current route for such
shipments;
    (3) Seek relevant information from state, local, and tribal
officials, as appropriate, regarding security risks to high-consequence
targets along or in proximity to a route used by a rail carrier to
transport security-sensitive materials;
    (4) Consider the use of interchange agreements with other rail
carriers when determining practicable alternative routes and the
potential economic effects of using an alternative route;
    (5) Analyze for both the primary route and each practicable
alternative route the safety and security risks for the route, railroad
facilities, railroad storage facilities, and high-consequence targets
along or in proximity to the route; these analyses must be in writing
and performed for each calendar year;
    (6) Compare the safety and security risks on the primary and
alternative routes, including the risk of a catastrophic release from a
shipment traveling along these routes, and identify any remediation or
mitigation measures implemented on the primary and alternative
transportation routes; and
    (7) Using the analysis described above, select the practicable
route posing the least overall safety and security risk.
    The rule must also require that a covered rail carrier, at least
once every three years, analyze its route selection determinations,
including a comprehensive, system-wide review of all operational
changes, infrastructure modifications, traffic adjustments, changes in
the nature of high-consequence targets located along or in proximity to
the route, or other changes affecting the safety and security of the
movements of security-sensitive materials that were implemented since
the previous analysis was completed. Finally, the rule is to require
that covered rail carriers retain in writing all route review and
selection decision documentation and restrict the distribution,
disclosure, and availability of this information to appropriate
persons.
    The 9/11 Commission Act defines ``security-sensitive material'' to
mean the material or classes of materials that the Secretary of
Homeland Security, in consultation with the Secretary of
Transportation, determines through a rulemaking proceeding with
opportunity for public comment pose a significant risk to national
security while being transported in commerce.
    As we explain further in later sections of this rule, PHMSA
believes the interim final rule we are publishing today fulfills the
requirements in Sec.  1551 of the 9/11 Commission Act, in addition to
addressing the comments received in response to the NPRM. We believe
that the changes and additions to the NPRM made in this IFR are well
within the scope of the NPRM. We are publishing an interim final rule
rather than a final rule to provide interested persons with an
opportunity to provide specific comments on whether the IFR fully
implements the requirements of the Act.

V. Comments on the NPRM

    We received more than 50 sets of comments from individuals; members
of Congress; Federal, state, and local governmental entities;
companies; industry associations; public interest groups; labor
organizations; and a homeowners' association. Generally, large rail
carriers and their associations express support for the proposals in
the NPRM and, in particular, the flexibility for rail carriers to
designate routes based on an analysis of safety and security
vulnerabilities and measures implemented to address those
vulnerabilities. Small carriers and single line haulers express some
concern about the applicability of the routing provisions to their
operations--in many cases, smaller rail carriers operate on a single
line and routing options are limited.
    Commenters representing state and local governments and
environmental groups generally oppose the proposals in the NPRM. Some
of these commenters suggest that the Federal government should mandate
specific routing for high-hazard materials rather than provide rail
carriers the discretion to make routing decisions. Others, particularly
state and local government commenters, want to be able to implement
routing restrictions within their jurisdictions and, thus, urge us to
modify or eliminate the preemptive effect of a final rule on non-
Federal jurisdictions.
    Nearly all the commenters suggest that we maintain consistency with
TSA's proposed rail requirements in regard to package size, covered
hazardous materials, and enforcement of the proposed requirements.
    The comments and public meeting transcripts in the docket for this
rulemaking may be reviewed at http://www.regulations.gov under docket
number PHMSA-RSPA-2004-18730. For your convenience, a listing of the
docket entries is provided below.

------------------------------------------------------------------------
                              Name/company
-------------------------------------------------------------------------
Melanie Weintraub and Family.
Kevin D. Kime.
Institute of Makers of Explosives (IME).
Tom Nitza.

Anonymous.
U.S. Department of Energy, Naval Nuclear Propulsion Program (NNPP).
Congressman Dennis J. Kucinich.
Transcript--Washington, DC Public Meeting.
BASF Corporation.
District of Columbia.
Institute of Makers of Explosives (IME).
American Chemistry Council (ACC).
The Chlorine Institute, Inc.
The Fertilizer Institute, Inc. (TFI).
Metropolitan Transportation Authority.
The Dow Chemical Company (Dow).
Chairman and 3 members of the Committee on Homeland Security, U.S. House
 of Representatives.
The National Industrial Transportation League (NITL).
American Short Line and Regional Railroad Association.
Greenpeace.
Back Creek-II Homeowners Association, Inc.
Argonne National Laboratory Report.
Surface Transportation Board (STB).
Friends of the Earth.
Friends of the Earth.
Friends of the Earth.
Mayo Clinic.
Association of American Railroads (AAR).
City of Cleveland, Ohio.
BNSF Railway Company.
Transportation Trades Department, AFL-CIO.
Independent Lubricant Manufacturers Association.
City of Baltimore, Maryland.
Norfolk Southern Corporation.
Eureka County, Nevada, Office of Public Works.
National Association of Chemical Distributors.
Brotherhood of Locomotive Engineers and Trainmen.
DuPont.
Friends of the Earth.
State of New Jersey, Office of Homeland Security & Preparedness.
Transcript--Dallas Public Meeting.
Union Pacific Railroad Company.
The Dow Chemical Company, Olin Corporation, Norfolk Southern
 Corporation, Union Pacific Railroad Company, and Occidental Chemical
 Corporation.
Akzo Nobel Chemicals, Inc.
City of St. Louis, MO.
Nuclear Energy Institute.
National Association of SARA Title III Program Officials.
Colorado Emergency Planning Commission.
Jefferson County Local Emergency Planning Committee.
City of Las Vegas, Nevada.
Springfield Terminal Railway Company.
American Petroleum Institute.
CSX Transportation, Inc.
State of Connecticut, Attorney General.
------------------------------------------------------------------------

VI. Summary of the Interim Final Rule

    Based on comments received in response to the NPRM and the
provisions of the 9/11 Commission Act, in this interim final rule, we
are adopting the following revisions to the HMR:
     Rail carriers transporting certain explosives, PIH
material, and radioactive materials must compile information and data
on the commodities transported, including the routes over which these
commodities are transported.
     Rail carriers transporting the specified hazardous
materials must use the data they compile and relevant information from
state, local, and tribal officials, as appropriate, regarding security
risks to high-consequence targets along or in proximity to a route to
analyze the safety and security risks for each route used and
practicable alternative routes to the route used.
     Using these analyses, rail carriers must select the safest
and most secure practicable route for the specified hazardous
materials.
     In developing their security plans, rail carriers must
specifically address the security risks associated with shipments
delayed in transit or temporarily stored in transit.
     Rail carriers transporting the covered hazardous materials
must notify consignees of any significant unplanned delays affecting
the delivery of the hazardous material.
     Rail carriers must work with shippers and consignees to
minimize the time a rail car containing one of the specified hazardous
materials is placed on track awaiting pick-up, delivery, or transfer.
     Rail carriers must conduct security visual inspections at
ground level of rail cars containing hazardous materials to check for
signs of tampering or the introduction of an improvised explosive
device (IED).
    This interim final rule is effective June 1, 2008. Beginning
January 1, 2009, rail carriers must compile information on the
commodities they transport and the routes they use for the 6-month
period from July 1, 2008 to December 31, 2008. Rail carriers must
complete their data collection by March 1, 2009. By September 1, 2009,
rail carriers must complete the safety and security analyses of routes
currently utilized and available alternatives and select the safest,
most secure routes for transporting the specified explosive, PIH, and
radioactive materials. Beginning January 1, 2010, and for subsequent
years, rail carriers must compile information on the commodities they
transport and the routes used for the previous calendar year and
complete route assessments and selections by the end of the calendar
year.
    In adopting these requirements, we reject the more prescriptive
approaches urged by some commenters. We continue to believe that rail
carriers are in the best position to identify and assess risks across
their systems and that en route safety and security measures will be
most effective in reducing system risks when tailored to the carrier's
specific circumstances and operations. This approach for determining
the safest and most secure rail routes is consistent with the
requirements in Sec.  1551 of the 9/11 Commission Act. Rail carriers
use alternative routing in the normal course of business to accommodate
a variety of circumstances, such as derailments, accidents, damaged
track, natural events, traffic bottlenecks, and heightened security
necessitated by major events. In performing the route analysis required
by the interim final rule, we expect a rail carrier to make an informed
decision, balancing all relevant factors and the best information
available.
    Although individualized risk assessment necessarily is more
challenging to perform and oversee, we believe this approach offers the
greatest overall benefit. We expect the end result of the analyses to
be a clear picture of the practicable alternative route(s) available to
rail carriers for the transportation of the specified hazardous
materials. As we transition to the new requirements, PHMSA and FRA are
committed to working with the railroads to provide the tools and
training necessary to conduct the required analyses and make
appropriate route selections.
    By the same token, we intend to aggressively oversee railroads'
route analyses and route selection determinations and will use all
available tools to enforce compliance with the rule. As the agency with
primary responsibility for railroad safety enforcement, FRA will
incorporate review and inspection of route analyses and selections into
its inspection programs. FRA inspectors may offer suggestions for
modifying or improving the analysis or make changes to a route if the
route selection documentation or underlying analysis is found to be
deficient. If an inspector's recommendations are not implemented, FRA
may compel a rail carrier to make changes and/or assess a civil
penalty. Further, if the carrier's chosen route is found not to be the
safest and most secure practicable route available, FRA may require the
use of an alternative route.
    As we implement the interim final rule, PHMSA and FRA are committed
to working with railroads, and with communities and first responders,
to strengthen their capabilities and reduce

the risks associated with hazardous materials transportation. As
discussed below, we are developing a route assessment tool that rail
carriers may use in weighing and considering the route analysis
criteria.
    PHMSA also is stepping up its efforts to build emergency response
capabilities through national programs and community-based planning and
training. We are sponsoring several initiatives intended to enhance
community preparedness, including a project with the International
Association of Fire Chiefs to provide real-time access to emergency
response information and to share lessons learned from past incidents
and exercises. With Congress' approval, we are expanding the Hazardous
Materials Emergency Preparedness (HMEP) program, which provides funds
for developing, improving, and implementing emergency response plans
and for training public sector employees to respond to accidents and
incidents involving hazardous materials. We believe these planning and
training efforts are most effective when they are tailored to the
particular risks facing a community.
    We agree that local and regional governments require information on
the types, quantities, and locations of hazardous materials transported
through their jurisdictions to plan for effective and appropriate
emergency response to incidents. We developed a detailed handbook
(Guidance for Conducting Hazardous Materials Flow Surveys, January
1995) for local governments to use in conducting commodity flow studies
of hazardous materials transported by highway, and we are encouraging
states to use HMEP grant funds to study flow patterns of hazardous
materials within and between states and to determine the need within a
state for regional hazardous materials emergency response teams. We are
updating our 1995 handbook through a cooperative research project aimed
at producing a comprehensive, user-friendly resource that will help
local planners develop commodity-flow data for all modes of
transportation and to use the data to inform decision-making concerning
risk assessment, emergency response preparedness, and resource
allocation and to support analyses across jurisdictional boundaries. In
addition, we are developing a guide for assessing emergency response
needs and capabilities for hazardous materials releases to provide a
tool for state and local governments to use to identify and address
unmet emergency response planning and resource needs.
    The specific provisions of the interim final rule, including a
discussion of comments received on the NPRM and the provisions of the
9/11 Commission Act, are detailed in the following sections of this
rule.

VII. Discussion of Comments and Section-by-Section Review

A. General (Sec.  172.820(a))

    In the NPRM, we proposed to require rail carriers to implement
enhanced safety and security measures for shipments of the following
classes and quantities of hazardous materials:
    (1) More than 2,268 kg (5,000 lbs) in a single carload of a
Division 1.1, 1.2 or 1.3 explosive;
    (2) A bulk quantity of a material poisonous by inhalation, as
defined in Sec.  171.8 of the HMR; or
    (3) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined in Sec.  173.403 of the HMR.
    The 9/11 Commission Act directs the Secretary of Transportation to
ensure that this final rule requires railroad carriers to compile
commodity data on the security-sensitive materials they transport.
Section 1501 of the Act defines ``security-sensitive material'' to mean
a material or group or class of materials, in a particular quantity and
form that the Secretary of Homeland Security, in consultation with the
Secretary of Transportation, determines through rulemaking with
opportunity for public comment, poses a significant risk to national
security while being transported in commerce. In making such a
determination, the Secretary of Homeland Security is directed to
consider: (1) Class 7 radioactive materials; (2) Division 1.1, 1.2, and
1.3 explosives; (3) materials poisonous or toxic by inhalation,
including Division 2.3 gases and Division 6.1 materials; and (4) a
select agent or toxin regulated by the Centers for Disease Control and
Prevention (CDC) under 42 CFR part 73.
    PHMSA, FRA, and TSA assessed the safety and security
vulnerabilities associated with the transportation of different types
and classes of hazardous materials. The list of materials to which the
proposed enhanced safety and security requirements would apply is based
on specific railroad transportation scenarios. These scenarios depict
how hazardous materials could be deliberately used to cause significant
casualties and property damage or accident scenarios resulting in
similar catastrophic consequences. DOT and DHS determined that the
materials specified in the NPRM present the greatest rail
transportation safety and security risks--because of the potential
consequences of an unintentional release of these materials--and the
most attractive targets for terrorists--because of the potential for
these materials to be used as weapons of opportunity or weapons of mass
destruction.
    Following is a basic summary of the materials and critical
vulnerabilities warranting enhanced safety and security measures:
     Division 1.1, 1.2, and 1.3 explosive materials. A Division
1.1 explosive is one presenting a mass explosive hazard. A mass
explosion is one affecting almost the entire load simultaneously. A
Division 1.2 explosive has a projection hazard, which means if the
material were to explode, it would project fragments outward at some
distance. A Division 1.3 explosive presents a fire hazard and either a
minor blast hazard or a minor projection hazard or both. If compromised
in transit by detonation or as a secondary explosion to an IED, these
explosives could result in substantial damage to people, public and
private property, and rail infrastructure. Roughly 2,500 carloads of
these explosives are transported by rail each year.
     PIH materials. PIH materials are gases or liquids that are
known, or presumed on the basis of tests, to be toxic to humans and to
pose a hazard to health in the event of a release during
transportation. PIH materials pose special risks during transportation
because their uncontrolled release can endanger significant numbers of
people. The January 6, 2005 train derailment in Graniteville, South
Carolina with subsequent release of chlorine sadly underscored this
risk. About 100,000 carloads of TIH chemicals are shipped by rail each
year. Note that for purposes of the HMR, the terms ``poison'' and
``toxic'' are synonymous, as are the terms ``poison inhalation hazard''
or ``PIH materials'' and ``toxic inhalation hazard'' or ``TIH
materials.''
     Highway Route Controlled Quantity Radioactive Materials
(HRCQ). Shipments of HRCQ of radioactive materials are large quantities
of radioactive materials requiring special controls during
transportation. Because of the quantity included in a single packaging,
HRCQ shipments pose significant safety and security risks. Very few
HRCQ shipments are transported by rail. Spent nuclear fuel and high-
level waste are shipped in containers certified under the Atomic Energy
Act to meet stringent safety requirements designed to prevent release
of radioactive materials even in the event of a severe accident.

    The NPRM did not propose to include select agents or toxins
regulated by the CDC under 42 CFR part 73 because railroads transport
few, if any, shipments of theses types of materials. Generally,
shipments of infectious substances, including select agents and toxins,
must be transported quickly from origin to destination to prevent
degradation of samples that can occur over time and to ensure swift
diagnosis and treatment of infectious diseases. For these reasons,
highway (for short distances) and air (for longer distances) are the
preferred modes of transport for these materials.
    Most commenters agree that the above listed materials pose the most
significant rail transportation safety and security risks. The
Institute of Makers of Explosives (IME), Dow Chemical Company (Dow),
Chlorine Institute, Inc., and Mr. Tom Nitza express some concern that
the PHMSA and TSA rail security NPRMs are not consistent in terms of
their application to shipments of PIH materials. The PHMSA NPRM applies
to bulk quantities of PIH materials. A ``bulk quantity'' as used in the
HMR means a quantity that exceeds 450 L (119 gallons) for liquids, a
net mass greater than 400 kg (882 pounds) for solids, or a water
capacity greater than 454 kg (1,000 pounds) as a receptacle for gas (49
CFR 171.8). Thus, the provisions of the PHMSA NPRM would apply to PIH
shipments transported in tank cars, including residue amounts exceeding
119 gallons, and portable tanks and other bulk containers. The TSA NPRM
applies to tank cars containing PIH materials, excluding residues.
Commenters suggest that the two rules should be applied consistently
and recommend that we adopt the TSA tank-car threshold and exclude
residue shipments.
    While we recognize that TSA used a risk-based approach in
determining the PIH quantities to which its rail security NPRM would
apply, we disagree from a safety perspective that bulk packages other
than tank cars and residue shipments should be excepted from the route
analysis and route selection requirements adopted in this interim final
rule. Although target attractiveness from a security standpoint is
diminished, significant safety risks persist. A typical tank car of
chlorine, for example, will contain about 16,000 gallons when full and
may contain a residue amount of 160-320 gallons (1-2 percent of the
original amount in the tank). Upon release from its container or
packaging, each cubic foot of liquid chlorine will rapidly expand to
approximately 450 cubic feet of chlorine gas. Using this rough estimate
for the expansion of chlorine, a residue amount of 160-320 gallons
would result in approximately 9,600 to 19,200 cubic feet of chlorine
gas. Based on guidance in the DOT Emergency Response Guidebook, the
residue amount remaining in a chlorine tank car, if spilled, would
suggest an initial isolation distance ranging from 800 ft in all
directions and a protective distance of at least 1.5 mi for persons
downwind at night. From a safety standpoint, it makes sense to require
bulk quantities of PIH residue remaining in tank cars to travel on the
``best'' route available--the route that considers factors such as
population density, emergency response capabilities, environmentally-
sensitive and significant areas, and event venues.
    Adoption of the proposed TSA threshold for PIH shipments would also
exclude rail shipments of most bulk packagings containing PIH materials
from the route analysis and selection requirements in this interim
final rule. Portable tanks, for example, typically contain up to 3,000
gallons, and some are designed to contain up to 6,000 gallons. While
the isolation and evacuation distances for portable tanks would be the
same as those for residue quantities in a tank car, the amount of gas
produced would greatly increase. The amount of a PIH material contained
in a fully loaded portable tank could, if released entirely, expand to
produce roughly 180,000 to 361,000 cubic feet of gas, creating a safety
risk to individuals within the area of the release. When considering
risks posed by bulk containers such as portable tanks, different safety
and security related aspects must be considered. Portable tanks are
designed to be filled and emptied after removal from a transport
conveyance; therefore, they have thinner walls and heads and are
generally less robust, which makes them more prone to puncture or
rupture than a tank car.
    We believe the safety risks posed by the rail transportation of
bulk quantities of PIH materials should be addressed through enhanced
safety requirements, including route assessments. Therefore, in this
interim final rule, we are requiring enhanced safety measures for bulk
quantities of a material poisonous by inhalation, as proposed in the
NPRM.
    Written comments submitted by IME and AAR and statements by
participants in the public meetings highlight the confusion as to
whether we intended anhydrous ammonia to be included as a PIH material
for which enhanced safety and security measures are required. The
answer is yes. To ensure that this confusion does not persist, in this
interim final rule, we are specifically adding anhydrous ammonia as an
example, in Sec.  172.802(a), of a material that falls under the
requirements to develop and implement additional safety and security
planning requirements, as established by this interim final rule.
Commenters are correct that, under the HMR, anhydrous ammonia is
classed as a Division 2.2 compressed gas for domestic transportation.
However, anhydrous ammonia meets the definition of a material that is
poisonous by inhalation under Sec.  171.8 of the HMR. That definition
includes any material identified as an inhalation hazard by a special
provision in column 7 of the Sec.  172.101 Hazardous Materials Table
(HMT). The entry for anhydrous ammonia in the HMT includes Special
Provision 13, which requires the words ``Inhalation Hazard'' to be
entered on shipping papers and marked on packages.
    Once again, we note that for purposes of the HMR, the terms
``poison'' and ``toxic'' are synonymous, as are the terms ``poison
inhalation hazard'' or ``PIH materials'' and ``toxic inhalation
hazard'' or ``TIH materials.''
    In the NPRM, we sought comments as to whether the proposed
requirements should also apply to flammable gases, flammable liquids,
or other materials that could be weaponized, as well as hazardous
materials that could cause serious environmental damage if released
into rivers or lakes. Commenters who addressed this issue state that
rail shipments of Division 1.1, 1.2, and 1.3 explosives; PIH materials;
and highway-route controlled quantities of radioactive materials pose
significant rail safety and security risks warranting the enhanced
security measures proposed in the NPRM and adopted in this interim
final rule. Commenters generally do not support enhanced security
measures for a broader list of materials than was proposed in the NPRM.
    The City of Las Vegas, Nevada, supports expanding the list of
materials for which enhanced security measures are required to include
flammable liquids; flammable gases; certain oxidizers; certain organic
peroxides; and 5,000 pounds or greater of pyrophoric materials. While
DOT and DHS agree that these materials pose certain safety and security
risks in rail transportation, the risks are not as great as those posed
by the explosive, PIH, and radioactive materials specified in the NPRM,
and we are not persuaded that they warrant the additional precautions
required by the interim final rule. We note that the hazardous
materials listed by the City of Las Vegas are currently subject to the

security plan requirements in Subpart I of Part 172 of the HMR. Thus,
shippers and carriers of these materials must develop and implement
security plans based on an assessment of the transportation security
risks posed by the materials. Security plans must include measures to
address personnel security, unauthorized access, and en route security.
DOT, in consultation with DHS, will continue to evaluate the
transportation safety and security risks posed by all types of
hazardous materials and the effectiveness of our regulations in
addressing those risks and will consider revising specific requirements
as necessary.
    For purposes of Section 1551 of the 9/11 Commission Act, DHS, in
consultation with DOT, is developing a list of ``security-sensitive
materials'' for rail transportation. DHS plans to publish its
determination concerning ``rail security-sensitive materials'' in a
forthcoming rulemaking. Upon publication of this determination, DOT
will consider whether to revise the list of materials to which the
safety and security requirements adopted in this IFR apply. We note in
this regard that in future rulemaking actions DHS may also make
determinations as to the materials that should be considered security-
sensitive for other modes of transportation or for non-transportation
operations and facilities.

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

    The NPRM proposed to require rail carriers to compile commodity
data on an annual basis for the covered hazardous materials, including
an identification of the routes utilized and the total number of
shipments transported. The data are to be used by the rail carriers to
identify the routes over which the specified hazardous materials are
transported and the number of shipments utilizing each route. As
proposed, rail carriers would be required to analyze the safety and
security risks of the routes identified.
    The City of Cleveland, Ohio, suggests that we revise the proposal
in the NPRM to require rail carriers to share the commodity data with
local governments responsible for the geographic areas through which
hazardous materials are transported. We agree that state and local
governments should have access to such information, provided access to
the information is limited to those with a ``need-to-know'' for
transportation safety and security purposes, and further provided that
such information may not be publicly disclosed pursuant to any state,
local, or tribal law. Because of the security sensitivity of the
commodity data, it is not appropriate for it to be broadly disclosed to
government or private entities. We note that AAR Circular OT-55-I
provides for disclosure of certain commodity flow data, upon request,
to local emergency response agencies and planning groups. At a minimum,
such information is to include rank-order identification of the top 25
hazardous commodities transported through the community.
    Section 1551(h) of the 9/11 Commission Act requires rail carriers
to seek relevant information from state, local, and tribal officials,
as appropriate, regarding security risks to high-consequence targets
along or in proximity to a route used to transport security sensitive
materials. A ``high consequence target'' is defined in the Act to mean
a property, natural resource, location, area, or other target
designated by the Secretary of Homeland Security that is a viable
target of national significance for which an attack by railroad could
result in catastrophic loss of life, significant damage to national
security or defense capabilities, or national economic harm. We are
adopting this requirement in this interim final rule. More broadly,
however, rail carriers should work with state and local governments
when conducting the route safety and security analysis required by this
interim final rule and in making routing decisions based on that
analysis. To this end, rail carriers must share information as
necessary and appropriate to enable state and local governments to
provide meaningful input into the process. We note in this regard that
among the factors to be considered by rail carriers in conducting the
safety and security analysis are population density along the route;
environmentally-sensitive or significant areas; venues along the route
(stations, events, places of congregation); emergency response
capability along the route; measures and countermeasures already in
place to address apparent safety and security risks; proximity to
iconic targets; and areas of high consequence along the route. State
and local governments may well be able to assist rail carriers in
identifying and assessing this type of information. Moreover, state and
local government entities may also be able to assist rail carriers in
addressing any safety or security vulnerabilities identified along
selected routes, in the scheduling of public events, for example, or
enhancing emergency response capabilities. If a rail carrier is unable
to acquire relevant information from state, local, or tribal officials,
then it must document that in its analysis.
    We note as well that states and local governments may contact FRA
to voice concerns and request an inspection of a route plan, security
vulnerability, or, more generally, a rail carrier.
    To provide carriers with flexibility in compiling and assessing the
data, we are not adopting a specified format; however, the data must be
available in a format that can be read and understood by DOT personnel
and that clearly identifies the physical locations of the carrier's
route(s) and commodities transported over each route. Physical location
may be identified by beginning and ending point, locality name, station
name, track milepost, or other method devised by the rail carrier which
specifies the geographic location. Carriers must retain the data for
two years, in either hard copy or electronic form.

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

    In the NPRM, PHMSA proposed to require rail carriers to use the
data compilation described above to analyze the rail routes over which
the specified materials are transported. As proposed, carriers would be
required to analyze the specific safety and security risks for routes
identified in the commodity data collection and the railroad facilities
along those routes. The route analyses would be required to be in
writing and to consider, at a minimum, a number of factors specific to
each individual route. A non-inclusive list of those factors was
included in proposed Appendix D to Subpart I of Part 172.
    Several comments were submitted in response to the proposed
requirement. In its comments, Dow suggests that ``railroad
facilities,'' as used in this section, should be defined as facilities
at which storage incidental to movement occurs along the route,
including, but not limited to, classification and switching yards, and
non-private sidings. Dow suggests that we clarify that railroad
facilities do not include an offeror's facility, private track, private
siding, or the hazardous materials' final destination. We agree with
Dow that the term ``railroad facility'' should be clearly defined in
the HMR. Therefore, in this interim final rule, we are adopting Dow's
suggested definition in Sec.  172.820(c). For purposes of this section,
``railroad facility'' means railroad property including, but not
limited to, storage facilities, classification and switching yards, and
non-private sidings. The term does not include an offeror's facility,
private track, private siding, or consignee's facility.
    AAR suggests an exception from the analysis requirements if there
have been no significant changes since the

previous analysis and less than five calendar years have passed since
the previous analysis was performed. We will address this issue in more
detail later in this rule. We would note that any significant changes
to the route over which the covered hazardous materials are transported
that occurs before the calendar year actually lapses trigger a revised
route analysis.
    AAR also suggests an exception from the route analysis requirements
for rail carriers that transport fewer than 500 carloads of the covered
hazardous materials. We do not agree. The safety and security risks
posed by shipments of Division 1.1, 1.2, and 1.3 explosives, highway
route controlled quantities of radioactive materials, and bulk
quantities of PIH materials are significant even if a rail carrier only
transports a single carload. The 2005 accident in Graniteville, South
Carolina, resulted in the puncture of a single tank car of chlorine,
but the consequences of that accident were devastating. While it is
true that the calculation of safety and security risks for the rail
transportation system as a whole increases as the total number of
shipments increases, it is also true there is a risk associated with
each carload transported. An exception from the route analysis
requirements adopted in this interim final rule for rail carriers that
transport the specified hazardous materials in amounts below a given
threshold is not warranted given the safety and security risks posed by
these materials.
    The National Industrial Transportation League asserts that
requiring a small railroad to analyze the safety and security risks of
its only available route serves no purpose since such railroads have no
alternative routes to assess. The commenter notes that small Class II
and III railroads generally operate on a single track, usually a feeder
track to main rail lines, and have no available alternate routes. We do
not agree. Even in the absence of alternative routes, we believe an
assessment of the safety and security risks along the route utilized is
critical to enhancing rail transportation safety and security. A
comparison of the route utilized with an alternate route is not
required in this circumstance; however, rail carriers must address
safety and security vulnerabilities identified by the route analysis.
    Section 1551(c) of the 9/11 Commission Act requires rail carriers'
safety and security analyses of the routes used to transport security
sensitive materials to include the route, railroad facilities, railroad
storage facilities, and high-consequence targets along or in proximity
to the route. This is consistent with the analysis requirements
proposed in the NPRM and adopted in this interim final rule. We have
modified the applicable sections of the interim final rule to clarify
that rail carriers' safety and security analyses must cover the listed
items.
    As discussed in the NPRM, we gave careful consideration to the
question of how to define a ``rail transportation route'' for the
purpose of the analysis proposed in the NPRM. We proposed this very
basic definition: a route is a series of one or more rail line
segments, as selected by the rail carrier. Between the beginning and
ending points of a rail carrier's possession and responsibility for a
hazardous materials shipment, it would be up to the rail carrier to
define the routes to be assessed. For example, a route could begin at
the geographic point where a rail carrier takes physical possession of
the hazardous material from the offeror or another carrier for
transportation. A route could end at the geographic point where: (1)
The rail carrier relinquishes possession of the hazardous material,
either by delivering the commodity to its final destination or
interchanging the shipment to another carrier; or (2) the carrier's
operating authority ends. Hazardous materials shipments will likely
have intermediary stops and transitions for example, a shipment may be
held in a railroad yard, placed in a different train, or stored
temporarily during transportation. Our aim is to have rail carriers
analyze the territory and track over which these certain hazardous
materials are regularly transported in the carrier's normal course of
business, while providing flexibility concerning how specific routes
will be defined and assessed. The final analysis, however, should
provide a clear picture of the routes a rail carrier uses for the
specified hazardous materials. Patterns and regular shipments should
become obvious, as should non-routine hazardous materials movements,
such as the one-time move of a specific shipment of military explosives
or high-level nuclear waste.

D. Alternative Route Analysis and Route Selection (Sec.  172.820(d) &
(e))

    In addition to the routes normally and regularly used for hazardous
materials movements, we proposed to require carriers to analyze and
assess the feasibility of available alternative routes over which they
have authority to operate. As proposed in the NPRM, for each primary
route, one commercially practicable alternative route must be
identified and analyzed using, at a minimum, the Rail Risk Analysis
Factors of proposed Appendix D to Part 172. It is the rail carrier's
responsibility to retain a copy (or an electronic image thereof) of all
route review and selection decision documentation used when selecting
the practical route posing the least overall safety and security risk.
This documentation should include, but is not limited to, comparative
analyses, charts, graphics, or rail system maps. The NPRM noted that a
primary safety and security concern for the rulemaking was the
prevention of a catastrophic release or explosion in proximity to
densely populated areas, including urban areas and events or venues
with large numbers of people in attendance. The goal of the routing
analysis requirement is to ensure that each route used for the
transportation of the specified hazardous materials is the one
presenting the fewest overall safety and security risks.
    Consistent with Sec.  1551(d) of the 9/11 Commission Act, this
interim final rule requires rail carriers to identify practicable
alternative routes over which the carrier has authority to operate and
perform a safety and security analysis of the alternative routes for
comparison to the currently used route, including the risk of a
catastrophic release from a shipment traveling each route. In this
interim final rule, we are adopting a requirement for rail carriers to
identify and analyze all practicable alternative routes, rather than a
``commercially practicable'' route as proposed in the NPRM. We note in
this regard, however, that the identification of an alternative
practicable route must necessarily include a determination of its
commercial practicability. Congress recognized this by including in
Sec.  1551(d) a requirement for the alternative route analyses to
include the potential economic effects of using an alternative route.
Accordingly, we expect rail carriers to address whether a route is
economically viable in light of, but not limited to, market conditions,
legal and regulatory requirements, and the economics of the commodity,
route, offeror, and consignee. A practicable alternative route is one
that may be utilized by the railroad within the limits of the
railroad's particular operating constraints and, further, is
economically viable given the economics of the commodity, route, and
customer relationship. The question of commercial practicability must
be reasonably evaluated by each rail carrier as a part of its analysis
based on the specific circumstances of the route and proposed traffic.
If using a possible alternative route would significantly

increase a carrier's operating costs, as well as the costs to its
customers, the carrier should consider and document these facts in its
route analysis. We expect that carriers will make these decisions in
good faith, using the financial management principles generally applied
to other business decisions affecting safety and security.
    As we acknowledged in the NPRM, in many cases, the only alternative
route in a particular area may be on another carrier's system. A rail
carrier would not be obligated to analyze an alternative route over
which it has no authority to operate. Likewise, in some cases, no
alternative route will be available; in those instances, no alternative
route analysis would be required. This is particularly true in the case
of regional or short-line railroads that are often the only rail
carriers in a given geographic area. However, as discussed below,
carriers must consider the use of interchange agreements when
identifying practicable alternative routes.
    When an alternative route is available, the carrier must analyze
that route and document its analysis, including the safety and security
risks presented by the alternative route, any remediation or mitigation
measures in place or available, and the economic effects of using the
alternative route.
    Under arrangements known as ``trackage rights,'' it is not uncommon
for a carrier to conduct train operations over a rail line that is
owned, dispatched, and maintained by another carrier. Such arrangements
typically grant the trackage rights tenant little or no control over
the track and associated infrastructure, including many of the factors
set forth in Appendix D. In completing the route analysis required by
this interim final rule, a carrier may identify specific risk
mitigation measures that are outside its ability to accomplish. Because
it is essential that safety and security measures be coordinated among
all responsible entities, it is incumbent upon the tenant carrier to
work with the owner of the track to evaluate the vulnerabilities and
identify measures to mitigate the risks. If measures required by this
interim final rule cannot be implemented because another entity refuses
or fails to cooperate, the carrier must notify FRA. As stated in the
Compliance and Enforcement section of this interim final rule, FRA
retains the authority to require use of an alternative route until such
time as identified deficiencies are mitigated or corrected. In today's
edition of the Federal Register, FRA is issuing an NPRM setting forth
the enforcement procedures it will use in requiring the use of an
alternative route.
    On behalf of Friends of the Earth, Fred Millar submitted four sets
of comments and spoke at the DC public meeting. In his verbal and
written comments, Mr. Millar states that many citizens, local
governments, and rail workers are seeking a protective re-routing of
the most dangerous hazardous materials cargoes (e.g., TIH or poison gas
cargoes) around HTUAs. Mr. Millar suggests that re-routing of through
shipments around HTUAs would yield a significant, immediately
achievable, and permanent risk reduction.
    Greenpeace suggests that we promulgate new regulations that
prohibit the storage and routing of TIH rail cargo through densely
populated and other sensitive areas wherever technically feasible.
Greenpeace states: ``If the federal government is concerned about
differing local statutes, they should support national routing
legislation.'' Friends of the Earth similarly acknowledges that
``nobody thinks it's a good idea to have 46 high-threat target areas
with their own local regulations. What we need is a sensible national
protective rerouting regulation * * *''
    In their comments, both Mr. Millar and Greenpeace express support
for the use of interchange agreements by rail carriers to swap cargo
between different rail carriers and avoid HTUAs. In addition, Sec.
1551(d) of the 9/11 Commission Act requires rail carriers, when
determining practicable alternative routes, to consider the use of
interchange agreements with other carriers. We encourage rail carriers
to take all feasible actions to mitigate the safety and security risks
for hazardous materials shipments; therefore, in this interim final
rule, we are adopting the requirement in Sec.  1551(d) for rail
carriers to consider interchange agreements when identifying
practicable alternative routes.
    In a separate effort to address these concerns, in late 2005, FRA
granted a request by the AAR and the American Chemistry Council (ACC)
to convene a conference under the authority of 49 U.S.C. 333, which
affords limited antitrust protection to rail carriers. Section 333
authorizes the FRA Administrator, as delegate of the Secretary of
Transportation, to convene conferences at the request of one or more
railroads to address coordination of operations and facilities of rail
carriers in order to achieve a more efficient, economical, and viable
rail system. Persons attending a section 333 conference are immune from
antitrust liability for any discussions at the conference, and can also
receive immunity for any resulting agreements that receive FRA
approval. The purpose of the ``Section 333 Conference'' is to discuss
ways to minimize security and safety risks flowing from the
transportation by rail of TIH materials. FRA, PHMSA, and
representatives from the Department of Justice (DOJ), the Federal Trade
Commission (FTC), TSA, and the Surface Transportation Board (STB) are
participating in these discussions. The initial efforts of the
conference are focused on the rail transportation of chlorine and
anhydrous ammonia, because those chemicals represent over 80 percent of
all TIH rail shipments. FRA has met with the rail carriers to discuss
modeling and routing options, and has held separate meetings with rail
shippers of chlorine and anhydrous ammonia. Further meetings with the
rail carriers are anticipated. Projects agreed to through the
conference may need the approval of the STB in order to be implemented.
    In light of these efforts, and in the interests of system safety,
we will not ban movement of the specified hazardous materials through
densely populated or other sensitive areas. Rerouting of hazardous
materials shipments over longer, more circuitous alternative routes,
most of which traverse urban areas at some point, could actually
increase safety and security risks. Rerouting to avoid certain areas
could add hundreds of miles and several days to a hazardous materials
shipment. Those additional miles and days could be on rail
infrastructure less suitable to handling hazardous materials. Such
rerouting could also result in additional switching and handling of
rail cars and more time in rail yards. Longer distances and transit
times, increased car handling, and more time in rail yards contribute
to an increase in the safety risks to railroad workers and the public
inherent in rail transportation in general and the transportation of
hazardous materials. As well, military installations, power plants, and
other potentially attractive terrorist targets are purposely located on
or near rail lines rather than in major metropolitan areas. Such
facilities could be placed at greater risk if the Federal government
were to require rerouting of highly hazardous materials to avoid
densely populated areas. Finally, we would suggest that transportation
security is enhanced if terrorists cannot determine whether or when
hazardous materials may be rerouted. Such flexibility, provided its use
is not made

public, decreases the likelihood that a target will be where a
terrorist may expect it to be.
    Moreover, the 9/11 Commission Act does not direct the Federal
government to mandate specific rail routes for security-sensitive
materials; rather, Sec.  1551 of the Act specifically directs the
Secretary of Transportation to ensure that the final rule requires rail
carriers to select the safest and most secure route to be used to
transport security-sensitive materials based on a safety and security
assessment of the current routes utilized and practicable alternative
routes.
    We continue to believe that en route safety and security measures
will be most effective when tailored to a railroad's specific
circumstances and operations. Rail carriers are in the best position to
assess security risks along the full length of the routes available to
them and to target enhanced safety and security measures to identified
vulnerabilities. Appendix D to the rule lists the wide variety of
factors that a carrier must consider in choosing the safest and most
secure route. The interim final rule requires carriers to analyze the
primary route and a practicable alternative route using the Rail Risk
Analysis Factors in Appendix D and select the route posing the least
overall safety and security risk. As discussed below, carriers are also
required to address delays in transit and en route storage security
measures in their security plans.
    As with the primary route analysis, we expect the end result of the
alternative route analysis to be a clear picture of the practicable
alternative route(s) available to rail carriers for the transportation
of the specified hazardous materials. Alternative routing is used in
the normal course of business throughout the railroad industry in order
to accommodate circumstances such as derailments, accidents, damaged
track, natural events (mudslides, floods), traffic bottlenecks, and
heightened security due to major national events. The rail carriers'
analysis of the alternative routes should, in the end, clearly indicate
the reasonableness, appropriateness, and feasibility, including
economic feasibility, of using the alternative routes. We expect a
complete alternative route analysis will reflect such considerations as
any actual use of the alternative route; safety and security benefits
and risks of the alternative route; and commercial or economic costs
and benefits of the route. Clearly, if an alternative route, after
analysis, is determined to be the safest and most secure practicable
route, the carrier would either designate it as the primary route or
identify and implement mitigating measures to improve the safety and
security of the analyzed primary route. Each carrier will be required
to use the practicable route posing the least overall safety and
security risk, based on its analysis.
    We recognize there may not be one single route that affords both
the fewest safety and security risks. The most important part of this
process is the route analysis itself and the identification of the
safety and security risks on each route. The carrier may then make an
informed decision, balancing all relevant factors and the best
information available, regarding which route to use. For example, if a
rail carrier determines one particular route is the safest and most
practicable, but has a particular security risk, the carrier should
then implement specific security measures so that the route will pose
the least overall safety and security risk. We also recognize some
security risks or threats may be long-term, while others are short-
term, such as those arising from holding a major national event (e.g.,
national political party conventions) in close proximity to the rail
route. Mitigation measures could be put in place for the duration of
the event; after the event is over, normal operations could resume.
Again, we expect many of the railroads already have experience in
addressing safety and security issues such as these and have already
catalogued possible actions to mitigate such risks.
    In the evaluation of alternative routes, rail carriers may also
indicate certain conditions under which alternative routes will be
used. In the case of a short-term safety or security risk, such as a
temporary event at a venue along the route, or a derailment, carriers
may specify an alternative route and the measures to be put in place
for use of that alternative route.
    Dow suggests that, consistent with the proposed rule's performance
standard, a rail carrier should not be required to implement
remediation and mitigation measures to address vulnerabilities
identified during the performance of the safety and security risk
analysis if: (1) An alternative route analysis reveals a practicable
route posing the least overall safety and security risk; and (2) the
carrier selects that route in accordance with Sec.  172.820(e). We
agree with the commenter, but note that the requirement to implement
remediation and mitigation measures proposed in the NPRM and adopted in
this interim final rule applies in situations where a rail carrier
selects a route that does not pose the least overall safety and
security risks, based on the alternative routing analysis. In such a
situation, the carrier must address the safety and security risks along
the selected route through implementation of remediation and mitigation
measures. Current security plan requirements apply in assessing risks
and implementing measures to mitigate risks on existing routes. Nothing
in this interim final rule requires remediation and mitigation measures
to address vulnerabilities on a route that the carrier has not
selected.
    To assist rail carriers in performing these analyses of rail
transportation routes and alternative routes, PHMSA is adopting a new
Appendix D to Subpart 172. This appendix lays out the minimum criteria
a rail carrier must consider in analyzing each route and alternative
route. The criteria listed are those we believe are most relevant in
analyzing the rail routes for the hazardous materials covered by this
interim final rule. Of course, not all the criteria will be present on
each route, and each route will have its own combination of factors to
be considered. Again, our aim is to enable rail carriers to tailor
these analyses to the particular risks and factors of their operations,
and to get a clear picture of the characteristics of each route.
    For the initial route analysis, we anticipate rail carriers will
review the prior two-year period when considering the criteria
contained in Appendix D. In subsequent years, the scope of the analyses
should focus on changes from the initial analyses. For example, using
the criteria in Appendix D, carriers should analyze the impact of
changes in areas of high consequence along the route, traffic density,
new customers offering or receiving the specified hazardous materials,
and significant operational changes, to name a few of the
considerations listed in Appendix D.
    We recognize the need for flexibility in performing risk
assessments; yet we must balance it against the need for some degree of
uniformity in the assessments. We have tried to balance these interests
by prescribing uniform assessment criteria, while allowing each rail
carrier to choose the assessment methodology it will follow. Regardless
of the risk assessment methodology selected, a rail carrier should
apply certain common principles. These include the following:
     The analysis should employ the best reasonable, obtainable
information from the natural, physical, and social sciences to assess
risks to health, safety, and the environment;
     Characterizations of risks and of changes in the nature or
magnitude of risks should be both qualitative and, to

the extent possible given available data, quantitative;
     Characterizations of risk should be broad enough to deduce
a range of activities to reduce risks;
     Statements of assumptions, their rationale, and their
impact on the risk analysis should be explicit;
     The analysis should consider the full population at risk,
as well as subpopulations particularly susceptible to such risks and/or
more highly exposed; and
     The analysis should adopt consistent approaches to
evaluating the risks posed by hazardous agents or events.
    We believe institutionalizing a practical assessment program is
important to supporting business activities and provides several
benefits. First, and perhaps most importantly, assessment programs help
ensure identification, on a continuing basis, of the movement of
materials presenting the greatest risk to the public and the business
community. Second, risk assessments help personnel throughout the
organization better understand where to best apply limited resources to
minimize risks. Further, risk assessments provide a mechanism for
reaching a consensus on which risks are the greatest and what steps are
appropriate for mitigating them. Finally, a formal risk assessment
program provides an efficient means for communicating assessment
findings and recommended actions to business unit managers as well as
to senior corporate officials. The periodic nature of the assessments
provides organizations a means of readily understanding reported
information and comparing results over time.
    The route analysis described above must identify safety and
security vulnerabilities along the route to be utilized. Each rail
carrier's security plan must include measures to minimize the safety
and security vulnerabilities identified through the route analyses.
With respect to mitigation measures and cost, there are many measures
rail carriers can take without necessarily adding to the cost of
compliance. For example, carriers can work to notify local law
enforcement and emergency responders of the types and approximate
amounts of particular commodities typically transported through
communities. Further, location changes can be made as to where rail
cars containing highly hazardous materials are stored in transit. As
with the current security plan requirements, our goal is to permit rail
carriers the flexibility to identify potential safety and security
vulnerabilities and measures to address them, including the
determination of which of a carrier's routes present the overall fewest
safety and security risks.
    We anticipate several possible route selection outcomes:
     The existing route presents the lowest overall safety and
security risk and continues to be the selected route.
     The alternative route presents the lowest overall safety
and security risks. The alternative will be selected, and
transportation of the identified materials on the alternative route
will begin as expeditiously as possible.
     The existing or the alternative route presents the lowest
overall safety and security risk except under specific identified
conditions. The lowest overall safety and security risk route will be
used dependent upon the conditions. The conditions warranting route
change must be clearly identified in the analyses and routing decision
documentation.
     Based on the analyses, either the existing or alternative
practicable route is identified as presenting the lowest overall safety
and security risks; however, the rail carrier identifies measures to
mitigate some of the risk and lower the overall risk of the other
route. The route with the lowest overall safety and security risk
should be selected and used. In documenting the route selection, the
carrier should identify remediation measures to be implemented with a
schedule of their implementation and the route change upon completion.
    Clearly, other outcomes are possible. The analyses must be
completed and any routing changes resulting from the analyses must be
implemented no later than January 1 of the following year.

E. Completion of Route Analyses (Sec.  172.820(f))

    In the NPRM, we proposed to require rail carriers to conduct the
rail transportation route analysis, alternative route analysis, and
route selection by the end of the year to which it applies. In
addition, we proposed to require the carrier to complete a
comprehensive review of all operational changes, infrastructure
modifications, traffic adjustments, or other changes implemented over a
period not to exceed five calendar years.
    Most comments addressing this aspect of the NPRM request that we
eliminate confusion and shorten the five-year time period for the
system wide review. One commenter, AAR, suggests that we make the one
year review encompass the entire system or better clarify what is meant
by the separate reviews. AAR further suggests that carriers should be
required to revise and update route analyses only when necessary to
account for changes in the way a carrier operates, changes to the
routes utilized, or in response to specific threats. In addition, AAR
suggests an exception from the analysis requirements if there have been
no significant changes since the previous analysis and fewer than five
calendar years have passed since the previous analysis was performed.
    The Brotherhood of Locomotive Engineers and Trainmen suggests that
the frequencies set forth in the proposed rule are appropriate, except
that the comprehensive review should be performed every three (3)
years.
    The 9/11 Commission Act prescribes both the nature and frequency of
the analysis. Under Sec.  1551(g) of the Act, we must require rail
carriers to perform a comprehensive review at least once every three
years. The analysis is to include a system-wide review of all
operational changes, infrastructure modifications, traffic adjustments,
changes in the nature of high-consequence targets located along or in
proximity to the route, and any other changes affecting the safety and
security of the movement of security-sensitive materials that were
implemented since the previous analysis was completed.
    We accept the comments that our proposed schedule for one- and
five-year reviews is unnecessarily confusing and complicated and that
the proposed five-year time frame for system-wide reviews is too long.
Therefore, in this interim final rule, we are requiring rail carriers
to conduct all the required analyses every year--that is, each year, a
rail carrier must assess the safety and security vulnerabilities along
the routes it uses to transport the specified hazardous materials and
must also assess the safety and security vulnerabilities of practicable
alternative routes for each route currently utilized. This analysis
must include a comprehensive review of all operational changes,
infrastructure modifications, traffic adjustments, changes in the
nature of high-consequence targets located along or in proximity to the
route, or other changes affecting the safety and security of the
movement of the materials covered by this interim final rule. This
process will ensure that modifications and changes to the entire system
are taken into account in the route analyses during the same calendar
year that they occur. In addition, a rail carrier should consider
changes that may reasonably be anticipated to occur in the upcoming
year, such as changes to the volumes or types of hazardous materials
transported or changes affecting rail infrastructure (e.g.,

planned maintenance that could result in temporary closures of bridges
or track segments).
    We do not agree with AAR that a carrier should be required to
review and revise its route analysis only when necessary to account for
changes in the way a carrier operates, changes to the routes utilized,
or in response to specific threats. We believe there is value in
conducting an annual review of the route analysis even in the absence
of changes to the way a carrier operates. Conditions along the selected
routes may have changed, for example, or there may be changes affecting
other factors utilized in the analyses, such as incidents on the
selected route, the capabilities of local emergency response agencies,
or venues located in proximity to the selected route.

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

    In the NPRM, we proposed to require rail carriers to specifically
address delays in transit and en route storage in security plans. Thus,
we proposed to require rail carrier security plans to include: (1) A
procedure for consulting with offerors and consignees to minimize the
time a material is stored incidental to movement; (2) a procedure for
informing the operator of the facility at which the material will be
stored incidental to movement that the material has been delivered; (3)
measures to limit access to the materials during storage and delays in
transit; (4) measures to mitigate risk to population centers during
storage incidental to transportation; (5) measures to be taken in the
event of an escalating threat level during storage incidental to
transportation; (6) a procedure for notifying the consignee in the
event of transportation delays; and (7) a procedure to inform the
consignee that the material has been delivered.
    Concerning consultations to minimize delays in transit, ACC
requests that we require rail carriers to formally consult with
offerors and consignees, to minimize to the extent practicable, the
period of time during which the material is stored incidental to
movement. ACC suggests that the consultations should provide offerors,
consignees, and rail carriers equal weight in developing practicable
solutions, which consider, but are not limited to, railroad and
shipper/consignee production capacity, land availability, restrictive
local ordinances, and other relevant factors. ACC further suggests that
these consultations should be conducted on an individual basis, where
regional distinctions in security requirements and the aforementioned
constraints may be given full consideration and that proposed solutions
should be implemented with mutual consent of all parties. Finally, ACC
recommends that, in those instances when mutual consent is not
achieved, proposed solutions should be implemented through binding
mediation conducted by the Surface Transportation Board's (STB's)
Office of Compliance and Consumer Assistance.
    We agree with the suggestion made by ACC that any decision made to
minimize the time that a material is stored incidental to movement
should include mutual consent from all parties and that those parties
should be given equal weight. Therefore, in this interim final rule, we
are modifying the proposal by incorporating ACC's suggestion that
decisions be implemented with the mutual consent of all parties. We are
not including the provision to require consultation with STB in the
absence of an agreement among the parties. Such a provision would be
overly burdensome; moreover, rail carriers, offerors, and consignees
should be capable of coming to an agreement without the necessity for
mediation. In the absence of such an agreement, a rail carrier may
implement whatever measures it finds necessary to minimize the time
that a material is stored incidental to movement.
    In the NPRM, we proposed to require a rail carrier to notify the
consignee if there is a significant unplanned delay during
transportation of one of the specified hazardous materials, within 48
hours of identifying the significant delay, and provide a revised
delivery schedule. Our goal is to strengthen the requirements of the
current ``48-hour rule'' contained in Sec.  174.14, and to delegate
more positive control and responsibility to the railroads for tracking
and controlling the movement of railcars carrying hazardous materials.
Such notification will also facilitate communication between the
carrier in possession of the material and the consignee to ensure the
hazardous materials do not inadvertently wait in transit.
    In the NPRM, we specified such notification must be made by a
method acceptable to both carrier and consignee. One commenter, AAR,
states that consignees should not have veto power over the method
selected for notification of delays and is concerned because different
customers will likely request different notification systems,
potentially increasing transportation costs. On the other hand, The
Chlorine Institute indicates that it strongly supports the notification
provisions that require carriers to work with receivers and shippers on
an appropriate notification method.
    We do not believe that the notification issue is as complicated as
AAR suggests. We are aware that many rail carriers have in place
electronic systems through which consignees may look up and track their
expected rail shipments. This is an acceptable method of notification,
as are e-mail, facsimile, or telephone. None of these methods would
result in significant cost impacts for rail carriers. Because most
railroads already have in place systems to monitor the transportation
of certain types of shipments, and procedures for notification of
consignees, we do not anticipate this requirement will involve major
operational changes for any of the affected carriers. The reason the
carrier and consignee must agree on a notification method is to ensure
that the information about a shipment delay reaches the consignee in a
timely fashion. Absent such an agreement, the carrier cannot be certain
that the notification will reach the appropriate official for the
consignee.
    A significant delay is one that: (1) Compromises the safety or
security of the hazardous material shipped; or (2) delays the shipment
beyond its normal expected or planned shipping time. A ``significant
delay'' must be determined on a case-by-case and hazmat-by-hazmat
basis. As a general rule, any delay beyond the normal or expected
shipping time for the material qualifies as a ``significant delay.''
    The AAR Circular OT-55-I outlines operating practices the rail
industry has already implemented for certain time-sensitive shipments.
The notification requirement adopted in this interim final rule simply
builds on those practices. In particular, the Circular addresses time-
sensitive shipments and specifies railroads are to be responsible for
monitoring of shipments of such products and communicating with
affected parties when the shipment may not reach its destination within
the specified timeframe. Circular OT-55-I recommends delivery of time-
sensitive materials should take place within 20 or 30 days, depending
on the commodity.\2\ Because of the variety of materials covered by
this interim final rule, PHMSA has not designated specific delivery
timeframe guidelines for these materials.
---------------------------------------------------------------------------

    \2\ The additional commodities listed in Circular OT-55-I and
requiring a delivery time of 30 days are styrene monomer, stabilized
and flammable liquid, n.o.s. (recycled styrene).
---------------------------------------------------------------------------

    In the NPRM, we proposed to require carriers to notify storage
facilities and consignees upon delivery of a rail car

containing one of the specified hazardous materials. IME, Akzo Nobel
Chemicals, and ACC suggest we delete the delivery notification
requirements and, instead, align the HMR with the positive chain-of-
custody requirements proposed by TSA in its rail security NPRM. We
agree. The TSA requirements establish positive control of rail cars
containing the specified hazardous materials by requiring direct hand-
off of each car to a responsible individual, at points of: (1) Carrier
interchange in an HTUA or outside an HTUA for cars that may enter an
HTUA; (2) origin; and (3) delivery to a facility in a HTUA. There is,
therefore, no need for the notification requirements we proposed in the
NPRM. Accordingly, we are not adopting them in this interim final rule.

G. Recordkeeping (Sec.  172.820(h))

    In the NPRM, we proposed to require each rail carrier to maintain
an accessible copy of the information and analyses associated with the
collection of commodity data and route assessment and selection
processes. We further proposed to require the distribution of such
information to be limited to covered persons with a need-to-know, in
accordance with Sensitive Security Information (SSI) regulations in 49
CFR Parts 15 and 1520. The recordkeeping requirements are consistent
with the 9/11 Commission Act.
    No comments were submitted in response to this paragraph;
therefore, we are adopting it as proposed.

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

    FRA is the agency within DOT responsible for railroad safety and is
the primary enforcer of safety and security requirements in the HMR
pertaining to rail shippers and carriers. FRA inspectors routinely
review security plans during site visits and may offer suggestions for
improving security plans, as appropriate. If an inspector's
recommendations are not implemented, FRA may compel a rail shipper or
carrier to make changes to its security plan through its normal
enforcement process. FRA consults with TSA concerning railroad security
issues in accordance with the FRA-TSA annex to the DOT-DHS MOU on
transportation security.
    In the NPRM, we proposed to require carriers to revise their
analyses or make changes to a route if the route selection
documentation or underlying analyses are found to be deficient. In
addition, we proposed that, are the carrier's chosen route is found not
to be the safest and most secure practicable route available, the FRA
Associate Administrator for Safety, in consultation with TSA, could
require the use of an alternative route until such time as identified
deficiencies are satisfactorily addressed.
    AAR questions whether PHMSA has the statutory authority to grant
FRA the power to require the use of an alternative route. FRA's
authority to require the use of an alternative route stems from Sec.
5121(a) of the Federal hazardous materials transportation law. The
Secretary of Transportation is authorized to issue an order, after
notice and an opportunity for a hearing, requiring compliance with the
Federal Hazmat Law or a regulation, order, special permit, or approval
issued under Federal Hazmat Law. The authority provided in 49 U.S.C.
5121(a) has been delegated to FRA, ``with particular emphasis on the
transportation or shipment of hazardous materials by railroad'' (49 CFR
1.49(s)) as well as to FAA, FMCSA, PHMSA, and USCG (with ``particular
emphasis'' on the respective authority of these agencies).
    Dow and IME suggest that, consistent with fundamental concepts of
due process, PHMSA should provide an immediate procedure to appeal an
FRA determination to require the use of an alternative route. STB
suggests that the regulation indicate that prior to making a
determination to require the use of an alternative route, FRA and TSA
will obtain the comments of STB regarding whether the contemplated
alternative route(s) would be economically practicable. In addition,
Dow requests that PHMSA clarify the role that TSA or other agencies
will play in performing inspections under this rule, including
addressing whether TSA will use third-party contractors to perform
inspections.
    In the preamble to the NPRM, we indicated that FRA would develop
procedures for rail carriers to appeal a decision by the FRA Associate
Administrator for Safety to require the use of an alternative route,
including information a rail carrier should include in its appeal, the
time frame for filing an appeal, and the process to be utilized by FRA
in considering the appeal, including any consultations with TSA or
PHMSA. FRA is developing such procedures and is publishing a notice of
proposed rulemaking concurrently with this interim final rule. We note
in this regard that FRA will only require an alternate route if it
concludes the carrier's analysis did not satisfy the minimum criteria
for performing a safety and security risk analysis, as established by
the proposed Sec.  172.820 and Appendix D to Part 172. Moreover, FRA
expects to mandate route changes only in exigent circumstances or where
a carrier has acted in clear defiance of the requirements.
    We agree with STB's suggestion that FRA and TSA should consult with
STB prior to making a determination to compel the use of an alternative
route. In this interim final rule, we are adding language to this
effect in the appropriate paragraph. STB's participation in this
process will ensure that the FRA-TSA determinations concerning
alternative routes fully consider the economic impacts and commercial
practicability of the routes under consideration.
    As we explained in the preamble to the NPRM, with respect to
enforcement of the security requirements in this interim final rule,
FRA plans to work closely with TSA to develop a coordinated enforcement
strategy to include both FRA and TSA inspection personnel. We note in
this regard that TSA does not have the authority to enforce safety or
security requirements established in the HMR. If in the course of an
inspection of a railroad carrier or a rail hazardous material shipper,
TSA identifies evidence of non-compliance with a DOT security
regulation, TSA will provide the information to FRA and PHMSA for
appropriate action. TSA will not directly enforce DOT security rules
and will not initiate safety inspections. In accordance with the PHMSA-
TSA and FRA-TSA annexes to the DOT-DHS MOU, all the involved agencies
will cooperate to ensure coordinated, consistent, and effective
activities related to rail security issues. To address Dow's concern,
in this interim final rule we have included a clear statement that FRA,
in cooperation with PHMSA, will enforce the requirements contained in
this interim final rule.
    We are not implementing a submission and approval process for
security plans and route analyses. The review and approval of hundreds
of security plans and analyses would be extremely resource-intensive
and time-consuming. Moreover, the 9/11 Commission Act does not provide
for an approval process for route selections made by rail carriers.
During FRA's normal inspection process, inspectors will review security
plans, route analyses, and route choices for compliance with applicable
regulations to ensure that the chosen route is the safest and most
secure practicable route as supported by the analysis done by the
carrier. If the inspection identifies deficiencies in the route
analyses, security plan, or manner in which the plan is implemented,
the deficiencies will be addressed using FRA's existing

enforcement procedures. Inspectors will have the discretion to issue
notices of non-compliance or to recommend assessment of civil penalties
for probable violations of the regulations. As indicated above, FRA may
require a rail carrier to use an alternative route if the carrier's
chosen route is found not to be the safest and most secure practicable
route available.

I. Appendix D to Part 172--Rail Risk Analysis Factors

    In the NPRM, we proposed minimum criteria in Appendix D to Part 172
to be used by rail carriers when performing the safety and security
risk analyses required by Sec.  172.820. We listed 27 factors in this
appendix for carriers to consider in the analyses.
    Generally, commenters support the rail risk analysis factors
provided in Appendix D. For example, the Brotherhood of Locomotive
Engineers and Trainmen, states that it wholeheartedly supports the risk
analyses and that the appropriate metrics essential to a detailed risk
analysis are provided in this appendix. Dow, AAR, and IME also provided
comments. Most notably, IME indicated that it supports the factors, but
suggest we enhance their usefulness by providing a ranking of the
criteria listed in Appendix D or an indication of the order of
precedence in which the factors should be considered. IME notes, for
example, that a route with the best emergency response capability is
likely to be a route that is more densely populated and asks how these
factors should be weighted in such situations.
    We agree that how these factors are weighted and used is an
extremely important aspect of an overall safety and security risk
assessment methodology. However, we do not believe that a one-size-
fits-all approach to weighting the factors provides sufficient
flexibility for rail carriers to address unique local conditions or
concerns. We expect carriers to make conscientious efforts to develop
logical and defendable systems using these factors. Tools to assist
rail carriers to use the factors to assess the safety and security
vulnerabilities of specific routes, including how to weight the factors
in performing the analysis, are being developed with funding by a grant
from the Department of Homeland Security. Initial products from this
program were developed in 2007 and are currently being evaluated and
refined. We expect the analysis tools to be available in 2008.
    In this interim final rule, we are adopting the list of factors as
proposed in the NPRM, with modifications for consistency with
requirements of the 9/11 Commission Act. Specifically, we are adding
high consequence targets, as defined in Sec.  1551(h)(2) to the list of
factors that must be considered.

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

    PHMSA proposed in the NPRM to increase the scope of the current
safety inspection to include a security inspection of all rail cars
carrying placarded loads of hazardous materials. The primary focus of
the enhanced inspection is to recognize an IED, which is a device
fabricated in an improvised manner incorporating explosives or
destructive, lethal, noxious, pyrotechnic, or incendiary chemicals in
its design, and generally including a power supply, a switch or timer,
and a detonator or initiator.
    To guard against the possibility that an unauthorized individual
could tamper with rail cars containing hazardous materials to
precipitate an incident during transportation, such as detonation or
release using an IED, we proposed to require the rail carriers' pre-
trip inspections of placarded rail cars to include an inspection for
signs of tampering with the rail car, including its seals and closures,
and an inspection for any item that does not belong, is suspicious, or
may be an IED. When an indication of tampering or a foreign object is
found, the rail carrier must take appropriate actions, before accepting
the rail car for further movement, to ensure the security of the rail
car and its contents have not been compromised.
    The commenters overwhelmingly support the proposed inspection
requirement. One commenter, BNSF Railway Company, asks PHMSA to provide
specific details on how the inspection should be performed. It asks if
walking the train or inspecting it from a slow moving vehicle would
suffice for the inspection requirements. Another commenter, Dow, asks
if PHMSA or TSA will provide the additional training necessary for rail
carriers to comply with the proposed changes. The Chlorine Institute
states that the additional training required in conjunction with
regular training should not be overly burdensome.
    Based on commenters' support for enhanced security inspections, we
are adopting the provision as proposed in the NPRM. We offer the
following clarifications in response to the commenters' questions.
    The security inspection of each placarded rail car should be
performed in conjunction with the safety inspection currently required
under Sec.  174.9. The inspection is to be conducted at ground level
and at a close enough distance so that any problems can be readily
identified. A complete inspection will encompass the entire rail car at
ground level, including the area beneath the rail car; thus, a proper
inspection will cover more of a rail car than can be seen from a slow
moving vehicle. An inspector must be able to identify signs of
tampering, including closures and seals, suspicious items or items that
do not belong, and other signs that the security of the car may have
been compromised, including the presence of an IED. Where an indication
of tampering or a foreign object is found, the rail carrier must take
appropriate actions to ensure the security of the rail car and its
contents have not been compromised before accepting the rail car for
further movement.
    We understand from the comments submitted by AAR that training to
enable rail carrier personnel to comply with the security inspection
requirements is already provided in most carriers' current inspection
programs. In addition, as we stated in the preamble to the NPRM, TSA is
developing instructional materials to assist rail carriers in training
employees on identifying IEDs and signs of tampering. This training
material should be completed and available by the middle of 2008.

K. Preemptive Effect of This Interim Final Rule (Sec.  172.822)

    Because of the high level of interest in this issue, we proposed to
address the preemptive effect of the final rule in the regulatory text.
We explained our judgment that state and local regulation of rail
routes for shipments of hazardous materials is preempted, by operation
of the Federal hazardous materials transportation law (49 U.S.C. 5125)
and the Federal Rail Safety Act (49 U.S.C. 20106), based on the
agency's decision in Docket No. HM-232 to leave the routing of
hazardous materials shipments to the judgment of rail carriers. We also
stated our view that the route analysis and selection proposals in the
NPRM, if adopted, ``would have the same preemptive effect upon states,
political subdivisions, or Indian tribes,'' because those proposals
would ``not change PHMSA's basic approach in HM-232 of leaving ultimate
hazardous materials routing decisions to the rail carriers.'' 71 FR at
76845 & 76846.
    We specifically invited comments from interested states, political
subdivisions, and Indian tribes. Immediately after publication of the
NPRM, we sent individual letters to the mayors of twelve cities where
local officials had expressed concerns about routes of rail shipments
of hazardous

materials and to the following organizations: The National Governors
Association, Council of State Governments, National Conference of State
Legislatures, United States Conference of Mayors, National Association
of Counties, National League of Cities, and National Congress of
American Indians. In these letters, we summarized the proposals in the
NPRM and provided a copy of the NPRM, encouraged participation in the
rulemaking and the public meeting on February 1, 2007, and offered to
meet separately to discuss the rulemaking in detail. None of the
organizations or cities accepted our offer to meet separately to
discuss the NPRM, nor did they participate in the public meeting.
    In response to the NPRM and these additional letters, we received
numerous comments on whether or not states and political subdivisions
are preempted from imposing additional designations or restrictions on
routes for rail shipments of hazardous materials, beyond the route
analysis and selection process proposed in the NPRM. In general,
comments from industry included statements that there is a need for
``national uniformity on the rail routing of TIH, explosive, and
radioactive materials'' (ACC); that ``[b]y preempting state laws that
restrict the movement of hazardous materials, PHMSA will ensure
hazardous materials continue to travel on the safest and most secure
mode of transportation for these items'' (TFI, NITL); and that
``Federal rulemaking and enforcement of hazardous materials regulations
allows for a unified plan to effectively implement best practices
throughout the nation'' and ``minimizes confusion for regulated
entities by utilizing uniform criteria for all facilities'' (Chlorine
Institute).
    However, some of the comments from shippers and carriers criticized
the specific language proposed in the NPRM. IME questioned ``why the
statement was limited to these proposals and does not encompass all of
the agency's security rules, or even all of the agency's security plan
rules.'' In a set of jointly-filed comments, Dow, Olin, Norfolk
Southern, Union Pacific, and Occidental ask PHMSA to ``expand the
preemption considerations described in proposed Sec.  172.820(g),''
because ``routing is only one aspect of state and local regulation that
has the potential to conflict with federal regulations.'' These
companies also stated that ``49 U.S.C. 20106 only authorizes state
regulation in limited circumstances and excludes all references to
`political subdivisions of a State' (i.e. local government safety or
security regulation).'' (Emphasis in original) In its separate
comments, Dow stated that ``PHMSA should make it abundantly clear that
the federal hazardous material transportation law, 49 U.S.C. 5101 et
seq., substantially subsumes all state, local, and Indian tribe laws on
the subject matter of the use of rail lines for the transportation of
hazardous materials.''
    AAR asserted that the NPRM ``fail[s] to provide the public with
proper notice as to the scope of preemption. The fundamental preemption
provision for railroad safety and security requirements is 49 U.S.C.
section 20106,'' which ``applies to regulatory action taken by any
agency within DHS or DOT, including FRA, PHMSA, and TSA.'' AAR also
stated that the NPRM falls short in addressing preemption because the
preemption provision it proposes only addresses one aspect of the NPRM,
routing requirements; exceeds its statutory authority by providing that
PHMSA can waive preemption of state or local routing requirements; and
ignores the complete preemption of local regulation of railroad safety
and security.
    Similarly, the City of Cleveland, Ohio stated that the regulatory
text proposed in the NPRM should also refer to 49 U.S.C. section 20106,
and also contended that Sec.  20106 allows ``state governments
(interpreted by case law to also include local governments)'' to adopt
an additional requirement on rail transportation which: ``(1) Is
necessary to eliminate or reduce an essentially local safety or
security hazard; is not incompatible with a law, regulation, or order
of the United States Government; and (3) does not unreasonably burden
interstate commerce.'' The City of Cleveland, Ohio also asserted that,
as one of the high threat urban areas (HTUA) designated by TSA, ``it
should be provided with special consideration with respect to its needs
to adopt enhanced regulations and the possible need to enact specific
routing restrictions for rail.''
    PHMSA agrees with those comments that suggest that the regulatory
language on preemption should refer to both 49 U.S.C. section 5125 and
20106, because both of those provisions must be considered in any
determination whether a non-Federal requirement on rail transportation
of hazardous materials is preempted. See CSX Transportation, Inc. v.
Easterwood, 507 U.S. 658, 663 n. 4 (1993); CSX Transportation, Inc. v.
Public Utilities Comm'n, 901 F.2d 497, 501 (6th Cir. 1990), cert.
denied, 498 U.S. 1066 (1991) (``any regulation'' adopted by the
Secretary of Transportation respecting railroad safety matters,
regardless of the law under which the regulation is adopted, may have
preemptive effect under Sec.  20106). Moreover, as stated in the NPRM,
PHMSA has concluded (and the United States has taken the position in
the pending lawsuit over the District of Columbia [District] ordinance)
that both Sec. Sec.  5125 and 20106 preempt any non-Federal designation
or restriction of routes for rail shipments of hazardous materials.
    PHMSA also agrees with those commenters who suggested that we
clarify that the preemption provisions of 49 U.S.C. sections 5125 and
20106 apply to all of the HMR, not just to Sec.  172.820. Therefore, in
place of proposed Sec.  172.820(g), we are adding a new Sec.  172.822
dealing with the preemptive effect of the HMR, including subpart I.
Section 172.822 refers to the statutory standards for preemption in 49
U.S.C. sections 5125 and 20106, which we believe would apply to any
state, local, or Indian tribe requirement affecting the transportation
of hazardous materials, including the designation or restriction of
routes for rail shipments of hazardous materials.
    The District referred to the pending lawsuit by CSX Transportation,
Inc. which challenges the District's ordinance against rail shipments
of certain types and quantities of hazardous materials within 2.2 miles
of the U.S. Capitol building. The District stated that ``the
fundamental role of government is to protect its citizens. That role
should be left to the District here, and not given to private industry,
unless and until the federal government develops the capacity to make
such determinations.'' The City of Baltimore, Maryland, emphasized that
the decision of the Court of Appeals in the CSX litigation ``did not
represent a final ruling on the merits of the issue,'' but simply
overturned the District Court's denial of a preliminary injunction.
    The Chairman and three other members of the Homeland Security
Committee of the U.S. House of Representatives stated there is a need
for ``clear and mandatory direction from the federal government,'' and
a ``finding of preemption is a gift to the industry and strips away
local and state governments' ability to protect its citizens.''
    As we have indicated elsewhere in this rule, rerouting of hazardous
materials to avoid densely populated or sensitive areas may well
increase safety and security risks. Moreover, routing restrictions or
prohibitions enacted by states or local governments transfer safety and
security risks to other areas but do little to achieve enhanced safety
and security for the rail transportation

system as a whole. We note that virtually every urban and suburban
jurisdiction in the United States has a population density that is a
matter of concern in planning for and regulating hazardous materials
transportation; if all of the jurisdictions located on or near rail
routes were to enact routing restrictions applicable to the rail
transportation of hazardous materials, such transportation would come
to a virtual standstill. The provisions adopted in this interim final
rule will reduce the overall risks posed by the movement of explosive,
PIH, and radioactive materials by rail, without imposing an undue
burden on transportation.
    In Sec.  1528 of the 9/11 Commission Act, Congress restructured the
preemption provision in 49 U.S.C. 20106 by placing the then-existing
language in a new paragraph (a), and in a new paragraph (b) clarifying
what state law causes of action for personal injury, death, or property
damage are not preempted. The Joint Conference Report on Sec.  1528
makes clear that the restructuring of 49 U.S.C. 20106 was not intended
to make any substantive change to the meaning of new paragraph (a).
Rather, as specified in Sec.  1551(h), the specific authority of
states, localities, and Indian tribes is limited to providing
information on the security risks to high-consequence targets along or
in proximity to a route used by a rail carrier to transport security-
sensitive materials. Nonetheless, as discussed above, this does not
prevent rail carriers from working with state, local, and tribal
governments, including sharing information as necessary and
appropriate, to enable these non-Federal government bodies to provide
meaningful input into the rail carrier's process of conducting the
route safety and security analysis, and making routing decisions based
on that analysis, as required by this interim final rule. We encourage
such cooperation between rail carriers and state, local, and tribal
officials.
    In this regard, Eureka County, Nevada, expressed concern that the
proposed requirements for rail carriers to select the routes based on
an analysis of safety and security risks would preempt the announced
program of the Department of Energy (DOE) to work with stakeholders,
including state regional groups, in selecting routes for shipments of
spent nuclear fuel to Yucca Mountain. We do not believe that this
interim final rule will adversely affect the DOE program for selecting
spent nuclear fuel routes. Indeed, the DOE effort to include
stakeholders in its route selection deliberations is precisely the
model we mandate that rail carriers follow as they implement the
provisions adopted in this interim final rule--that is, to work with
state and local governments in conducting route safety and security
analyses and in making routing decisions based on the analyses. Nothing
in this interim final rule should be construed or applied in a manner
inconsistent with DOE fulfilling its obligations under Sec.  180(c) of
the Nuclear Waste Policy Act to provide technical assistance and funds
to states and tribes for training public safety officials on procedures
for safe routine transportation and emergency response with regard to
spend nuclear fuel or high level waste shipments to a repository.
    The National Association of SARA Title III Program Officials, the
Colorado Emergency Planning Commission, and the Jefferson County,
Colorado, Local Emergency Planning Committee stated that ``preemption
must come with a benefit'' and that ``PHMSA should require carriers to
consider increased risk to a community as part of their routing
decisions.'' We note in this regard that the routing safety and
security analyses adopted in this interim final rule require rail
carriers to consider the safety and security risks of the routes they
use, considering factors such as population density along the route,
venues along the route (stations, events, places of congregation),
emergency response capability along the route, and areas of high
consequence along the route.

VIII. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This interim final rule is published under authority of Federal
Hazardous Materials Transportation Law (Federal Hazmat Law; 49 U.S.C.
5101 et seq.) Section 5103(b) of Federal Hazmat Law authorizes the
Secretary of Transportation to prescribe regulations for the safe
transportation, including security, of hazardous materials in
intrastate, interstate, and foreign commerce. In addition, this interim
final rule is published under authority of the Implementing the
Recommendations of the 9/11 Commission Act of 2007. Section 1551 of the
9/11 Commission Act directs the Secretary of Transportation, in
consultation with the Secretary of Homeland Security, to publish a
final rule by May 3, 2008, based on the NPRM published under this
docket on December 21, 2006. In accordance with Section 1551(e) of the
Act, PHMSA's final rule must require rail carriers of ``security-
sensitive materials'' to ``select the safest and most secure route to
be used in transporting'' those materials, based on the rail carrier's
analysis of the safety and security risks on primary and alternate
transportation routes over which the carrier has authority to operate.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures