In general, comments on the ANPRM were: (1) general statements of support or opposition; (2) personal anecdotes or general statements not specifically related to the proposed changes; (3) comments beyond the scope of the oil spill response planning provisions of the CWA; or (4) identical or nearly identical letter write-in campaigns submitted as part of comment initiatives sponsored by organizations.  For example, many commenters recommend insurance or liability requirements for railroads that are not within the scope of PHMSA's statutory authority.  Although PHMSA does not have statutory authority to impose insurance or liability requirements, the FAST Act mandates the Secretary initiate a study on the levels and structure of insurance for railroad carriers transporting hazmat under § 7310.  That action is underway.  The remaining comments reflect a wide variety of differing views on the proposed regulations.  The substantive comments received on the ANPRM are organized by topic and discussed in the appropriate section, together with the PHMSA's response to those comments.
                     Table 10: Overall Commenter Breakdown
Background
Signatories
Description and examples
Non-Government Organization
                                    65,044
Environmental groups, emergency response organizations, and other non-governmental organizations.
Government
                                     3,299
Local, state, tribal governments or representatives, U.S. Congress members, etc.
Individual
                                     2,079
Public submissions not directly representing a specific organization.
Industry Stakeholder
                                      30
Trade organizations, intermodal carriers, offerors.

B.

Plan Scope/Threshold of Comprehensive Oil Spill Response Plans
		In order to inquire about the potential impact of different thresholds on the regulated community, PHMSA asked the public to comment on the following question: "When considering appropriate thresholds for comprehensive OSRPs, which of the following thresholds would be most appropriate and provide the greatest potential for increased safety?  The following thresholds were provided as examples: (a) 1,000,000 gallons or more of crude oil per train consist; (b) an HHFT of 20 or more carloads of crude oil per train consist; (c) 42,000 gallons of crude oil per train consist; or (d) another threshold.  In addition, PHMSA asked: What thresholds would be most cost-effective?"
	Comments to the ANPRM on the scope of the rule were wide-ranging.  Many commenters commented on this question directly, voicing support of one or more of the proposed thresholds or suggesting a different threshold, while other commenters chose to comment generally.
	The first threshold, (a) 1,000,000 gallons or more of crude oil per train consist was not supported by any commenters as a single metric. Two commenters: the Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA) did incorporate 1,000,000 gallons as Assuming each tank car has a capacity of 30,000 gallons, the transport of 1,000,000 gallons of crude oil would require around 33 tank cars.
	part of another threshold, as discussed further  194, which are applicable to oil pipeline owners and operators and are overseen by PHMSA's Office of Pipeline Safety (OPS).  Discussion of this claim can be found in the "Discussion of Public Comments: Plan Scope/Threshold" section.
	AAR did not include any data to support incorporating the parameter of twelve trains per year into the NPRM's thresholds or to show that the use of the PCOR definition as a threshold would improve safety or be cost-effective.
below.
	In opposition to the first proposed threshold, many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving quantities below this threshold could cause considerable harm to the environment and in particular, rivers or waterways.  On this point, LRT-Done Right has reiterated the significance of PHMSA's derailment data, stating that "...less than one carload of spilled oil or ethanol can present great danger."  Similarly, the Delaware Riverkeeper Network commented that, for example, "a spill of 25,000 gallons of oil in Wyoming...resulted in a three mile trail of contamination."
	Commenters have also suggested that 1,000,000 gallons is not an adequate threshold because preventing oil spills within the context of rail transport differs substantially from the context of fixed oil facilities.  The Delaware Riverkeeper Network has stated, "A threshold of 1,000,000 gallons is...inappropriate because the current 1,000,000 gallon threshold [under EPA regulations] applies to stationary facilities and includes all oil containers, including drums, at the facility.  Trains carrying volatile crude oil are substantially different than such facilities."  Similarly, the Center for Biological Diversity has said, "[42,000 gallons as a threshold for rail] would be more consistent with established law than a 1,000,000 gallon threshold...since trains are not storing oil in a controlled facility, but rather moving it around the country on rail systems that experience fatigue and unforeseen circumstances such as derailments."
	PHMSA's second proposed threshold, (b) an HHFT of 20 or more carloads of crude oil per train consist, was supported at least in part by three commenters.  Namely, the Independent Fuel Terminal Operators Association, the Flathead Lakers, and the Honorable Paul D. Tonko submitted comments in support of a threshold aligned with the definition of an HHFT.  The Flathead Lakers, in particular, have noted that incidents involving quantities carried by HHFTs could be catastrophic.
	In opposition to a threshold based on the HHFT definition, and similar to commenters' opposition to the first threshold of 1,000,000 gallons, some commenters have indicated that incidents need not involve an HHFT in order to cause considerable harm to the environment.  The National Association of SARA Title III Program Officials (NASTTPO) and the Oklahoma Hazardous Materials Emergency Response Commission (OHMERC) have suggested that the threshold for developing a comprehensive oil spill response plan should involve fewer tank cars carrying crude oil because one tank car "is more than enough flammable material to present a risk to first responders and the local community."  Various individual commenters have echoed this sentiment and suggested that a threshold based on the HHFT definition would allow significant quantities of crude oil to be transported by rail carriers that lack comprehensive oil spill response plans.
	Several commenters supported the third proposed threshold: (d) 42,000 gallons of crude oil per train consist.  Commenters have shown that it is at least numerically consistent with current regulations in 49 CFR part 130, even though there is a key distinction in which part 130 upholds a threshold of 42,000 gallons for a single package (i.e., a single tank car) and the ANPRM has proposed 42,000 gallons as a threshold within a single train consist.  As the New York State Department of Transportation has stated, "[A 42,000 gallon per train consist threshold] would maintain consistency with the existing threshold for comprehensive Oil Spill Response Plans (OSRP) while recognizing the hazard posed by the derailment of even a small number of crude oil cars."
	Many commenters have supported the third proposed threshold (i.e., (d) 42,000 gallons of crude oil per train consist) on the basis that it was the lowest quantity threshold that PHMSA proposed.  Given that approximately 30,000 gallons can be carried in a single tank car, 42,000 gallons amounts to the quantity of crude oil that could be contained and transported in two tank cars.  Therefore, among the proposed thresholds, the 42,000 gallons per train consist threshold would plausibly have a high applicability and require the development of a comprehensive plan by the greatest number of railroads.  Thus, commenters supporting this threshold have held that it would plausibly result in the greatest amount of prevention and preparation on the part of affected entities and consequently, the greatest amount of risk reduction, enhancement of public safety, and protection of the environment.
	Similarly, the threshold of 42,000 gallons received some support from commenters that propose lower quantities of crude oil as a threshold (e.g., 1 gallon, 24,000 gallons, 30,000 gallons, etc.), but acknowledged that a threshold of 42,000 gallons for practical purposes would result in approximately the same amount of applicability and affected entities.  Assuming the typical tank car contains 27,000 to 30,000 gallons of crude oil, the main difference between a threshold of 1 gallon and 42,000 gallons would be whether a railroad could legally transport one tank car of crude oil without a comprehensive oil spill response plan.  Accordingly, the Delaware Bay & River Cooperative has commented, "...one rail car of 30,000 gallons of crude can have significant environmental impacts if spilled in a sensitive area along the Delaware River or other body of water. Therefore, 42,000 gallons may be the appropriate threshold level to trigger the comprehensive plans requirement."
	Nevertheless, some commenters have suggested that the threshold should be one tank car or any quantity of crude oil.  The Waterkeeper Alliance has stated, "Whether one car, twenty cars, or one hundred and twenty cars in a train are carrying crude oil, crude-by-rail is inherently dangerous, and PHMSA should require the railroad industry to adequately prepare for any size spill.  In sum, the new PHMSA Response Rule must set the comprehensive oil spill response planning threshold at one railcar."  Thus, commenters in support of a threshold of one tank car or any quantity of crude oil hold that even the transport of small amounts of crude oil entail substantial risk and should necessitate a comprehensive oil spill response plan, rather than a basic plan.
	In the ANPRM, PHMSA encouraged commenters to provide additional thresholds differing from those that PHMSA explicitly proposed.  According to AAR and ASLRRA, the scope of the rule should involve a threshold based on "Petroleum Crude Oil Routes" (PCORs).  AAR and ASLRRA define PCORs as "...a railroad line where there is a minimum of twelve trains a year, which is an average of one train a month, that transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or UN3494) or more that is within 800 feet or closer from the centerline of track to a river or waterway that is used for interstate transportation and commerce for more than 10 miles."  Assuming each tank car has a capacity of 30,000 gallons, the transport of 1,000,000 gallons of crude oil would require around 33 tank cars.
	The AAR and the ASLRRA also proposed geographical criteria as part of their PCOR definition, differing from PHMSA's proposed thresholds, which are based on a quantity transported or number of carloads within a train consist.  As part of its geographical criteria, the AAR suggests that a PCOR must be within 800 feet of a river or waterway used for interstate transportation and commerce for more than 10 miles.  The AAR claims that the 800 feet figure is based on a railroad's experience following a discharge.  The AAR does not give further details on how the 800 feet figure was developed.  The AAR also claims that the 10 miles figure used in its PCOR definition is based on regulations within 49 CFR part 194, which are applicable to oil pipeline owners and operators and are overseen by PHMSA's Office of Pipeline Safety (OPS).  Discussion of this claim can be found in the "Discussion of Public Comments: Plan Scope/Threshold" section.
	In addition, the AAR has limited the scope of its proposed threshold to include only those railroad lines that move at least twelve trains a year, an average of one train per month.  The AAR did not include any data to support incorporating the parameter of twelve trains per year into the NPRM's thresholds or to show that the use of the PCOR definition as a threshold would improve safety or be cost-effective.
	Many other commenters proposed alternative thresholds, such as five carloads or 3,500 gallons per tank car.  In support of a five carload threshold, NASTTPO has stated that "it is common for more than one HHFT tank car to be involved [in a derailment]."  In support of a 3,500 gallons per tank car threshold, commenters, such as safety consultant John Joeckel, have suggested that the current, 3,500-gallon threshold in 49 CFR part 130 for basic oil spill response plans could become the new threshold that triggers the need to develop a comprehensive plan.  These commenters reiterate that the current regulations for comprehensive plans under 49 CFR 130 do not generally apply to railroads given that tank cars used to ship crude oil do not have capacities of 42,000 gallons or greater.  They suggest that PHMSA could remove part 130's reference to a basic plan and repurpose the 3,500 gallon per packaging threshold so that it would trigger the need for a comprehensive plan.
	In addition, some commenters restated the need to revise the thresholds in 49 CFR part 130 and suggested that they align with probable spill volumes or other planning volumes found in other federal regulations (e.g., "average most probable" or "maximum most probable").  In particular, the Response Group has stated that the threshold should relate to probable spill volumes and historical data but did not specifically propose as a threshold a numerical value.
	Similarly, the American Petroleum Institute (API) did not express support for PHMSA's proposed thresholds nor did API specifically propose a new threshold.  However, API emphasized that "DOT should choose a threshold that is reasonable and practical...Onerous planning requirements with an extremely low threshold could exponentially increase the cost and burden on the railroads, while vague planning requirements triggered by a baseless threshold would be equally challenging."  Thus, API has expressed that the cost to railroads in developing and implementing comprehensive plans could be substantial, and PHMSA should consider and analyze the costs of applying different thresholds.
	In addition to API's above comment, PHMSA received additional commenter input on the cost-effectiveness of the proposed thresholds.  Environmental groups and others have expressed that cost concerns should be secondary to concerns about the potential benefits of enhancing public safety and reducing damage to the environment.  For example, the Center for Biological Diversity has stated that the cost-effectiveness of thresholds "...is somewhat immaterial, and cost should not be considered in establishing a threshold for comprehensive OSRPs for oil trains, since this is an issue of public health."  Safety consultant John Joeckel has offered a similar comment, stating, "Are we concerned with the cost to the responsible party to develop and implement the OSRP?  Or, should we be concerned of the cost to the public arising from an ineffective response with the consequences of significant environmental damage or risks to public safety?"
	Many
	 commenters have suggested that the scope of this rule be expanded to include other materials besides oil.  Commenters have asked PHMSA to require comprehensive oil spill response plans for rail cars transporting any type of hazardous materials.  The Village of Barrington, IL and the TRAC Coalition, in particular, have stated, "Given the clear authority that PHMSA has to issue regulations under federal law for a broad range of hazardous goods, TRAC strongly believes the rules being promulgated under this ANPRM should be applied to all hazmat transported on trains."  This commenter has cited the Cherry Valley, IL ethanol train derailment to show that, "While the ANPRM is about oil spill response plans, clearly other hazardous material poses similar threats to human and environmental safety."  Other commenters, such as LRT-Done Right, have stated that carriers of ethanol should also be subject to comprehensive OSRP requirements.
	Conversely, other commenters have suggested that the scope of the rule be limited in order to more specifically address the risks of petroleum crude oil transport.  "Petroleum crude oil" (UN1267) is a specific entry in the Hazardous Materials Table (HMT) under 49 CFR 172.101.  "Petroleum sour crude oil, flammable, toxic" (UN3494) is a similar entry.  On this basis, AAR has asked that the scope of the rule be limited explicitly to these entries in the HMT.  The Dangerous Goods Advisory Council (DGAC) has offered an analogous suggestion, stating, "[DGAC] believe[s] that the OPRP [sic] should be limited to crude oil trains only which are comprised of tank cars originating from one consignee to one consignor."  In other words, by limiting the scope of the rule to "crude oil" or "petroleum crude oil" only, commenters are suggesting that the transport of refined petroleum products, ethanol, or other flammable liquids should not be relevant to the determination of whether a rail carrier must have a comprehensive OSRP.

Discussion of Comments: Plan Scope/Threshold
	PHMSA carefully considered the comments submitted to the ANPRM regarding the scope of the rule in order to apply comprehensive OSRP requirements to address the increased risks posed by the expansion of domestic energy production and subsequent rail transportation.   PHMSA recognizes the importance of establishing a threshold that enhances public safety, protects the environment, is reasonable and practical, and facilitates compliance and enforcement.  PHMSA acknowledges that an effective threshold will take into account a range of factors, and might include distinctions regarding the quantity of petroleum oil transported, the number of carloads within a train consist, the definition of different materials subject to regulation, geographic or location-based criteria, and cost/benefit or practical considerations.
	PHMSA emphasizes that safety and environmental risks are related to the quantity of oil transported by trains, and the configuration of tank cars loaded with petroleum oil.  Thus, PHMSA has proposed in this NPRM to expand applicability for petroleum oil based on the number and configuration of tank cars transporting petroleum oil in a train.  Specifically, this rulemaking proposes that comprehensive oil spill response plans be required of railroads that transport 20 or more tank cars loaded with liquid petroleum oil in a continuous block in a single train or 35 or more of such tank cars dispersed throughout the train. We propose the comprehensive OSRP requirements continue to apply to tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil.   In this NPRM, we discuss our basis for this proposed applicability, as well as how it may differ from commenters' suggestions or proposals.
	The scope of this rule is directly related to the definition of oil because the statutory authority to require OSRPs comes from § 1321 of the CWA, as amended by OPA, which applies solely to oil and hazardous substances.  The CWA applies to both petroleum and non-petroleum oils.  In the 1996 final rule, PHMSA incorporated the definition of "oil" from OPA into the current requirements 49 CFR part 130 and developed definitions for "petroleum oil" and "other non-petroleum oil" in order to differentiate petroleum oils from non-petroleum oils throughout the requirements in part 130.
	This rulemaking has been initiated to respond to the changing conditions from the increase in the volume of petroleum oil transported by rail and consequences of resulting incidents.  PHMSA is not aware of incidents of unit trains carrying other non-petroleum oils which have demonstrated a need to expand the applicability of comprehensive plans for these oils.
 Therefore, instead of proposing that the expanded applicability of the comprehensive plan apply to all oils (as defined in 33 U.S.C. 1321), PHMSA proposes to limit the proposed expanded applicability to petroleum oils, whether refined or unrefined, transported in certain train configurations.  PHMSA proposes to continue to apply the threshold of tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil.
	Further, we propose to revise the definition of "petroleum oil" in this rulemaking as "any oil extracted or derived from geological hydrocarbon deposits, including oils produced by distillation or their refined products." This definition continues to include mixtures of both refined products, such as gasoline and unrefined products, such as petroleum crude oil. We are not proposing any changes to the scope in §130.2(c)(1) which clarifies that the requirements of part 130 do not apply to "Any mixture or solution in which oil is in a concentration by weight of less than 10 percent."   Therefore petroleum oil in part 130 includes mixtures containing at least 10% petroleum oil, such as denatured ethanol fuel E85 (ethanol containing 15% gasoline).  However, mixtures containing less than 10% petroleum oil, such as diluted waste water or E95 (ethanol with 5% gasoline) are not included.  Oils which do not contain petroleum, such as synthetic oils or essential oils continue to be defined as "other non-petroleum oil" in § 130.5.
	PHMSA disagrees with AAR that the applicability of the comprehensive plans should be limited to petroleum crude oil, as described by HMT entries UN 1267 and UN3494.  Limiting	In the ANPRM, PHMSA asked if the 1,000,000 gallons threshold is appropriate for safety and cost-effectiveness.
	Further, as previously discussed, PHMSA disagrees with the PCOR definition because PHMSA believes that using a gallons basis for the threshold could present compliance and enforcement issues, especially relative to the use of a number of tank cars.  Since tank cars vary in the quantity of product that they can transport, PHMSA suggests it is much easier to determine the number of tank cars in a train carrying petroleum crude oil than it is to assess the exact amount of gallons carried by any number of tank cars designed with potentially different capacities.  For example, a train carrying 35 tank cars of petroleum oil would likely be "around the margin" of 1,000,000 gallons of petroleum oil.  In other words, accurately determining if the train as configured has 990,000 gallons of product, versus 1,000,000 gallons, might be difficult for compliance and enforcement purposes; whereas, it is easier to observe that the train as configured has 35 tank cars.  While we proposed two thresholds based on gallon amounts in the ANPRM, we have since crafted our proposed threshold in the NPRM to reflect this updated viewpoint and analysis.
	 AAR's use of 800 feet as a geographic criterion in the PCOR definition because it might present compliance and enforcement issues.  Assessing the need for a comprehensive plan or a potential violation would require a potentially taxing confirmation of the distance of a waterway from the centerline of the track, especially "around the margin" of 800 feet.  In addition, this geographic criterion might result in different outcomes of response preparedness despite nearly identical levels of risk.  For example, in a scenario wherein one waterway is 790 feet from the centerline of the track, and another scenario wherein a different waterway is Thus, the 800 feet geographic criterion appears to be arbitrary given that the commenter has not offered data to suggest that 800 feet would be an appropriate "buffer" zone between a potential derailment site and navigable water and as such, enhance safety and prevent the entry of oil into the waterway.   several factors that could influence the probability of a spill damaging navigable water; that is, other geographical factors exist that might increase this probability substantially.
      PHMSA also disagrees with AAR's contention that in order to trigger the response plan requirement, the waterway in question must be a maximum distance of 800 feet from the centerline of the tracks and the waterway must be "a river or waterway used for interstate transportation and commerce."  Both the distance from and criteria for a waterway as proposed by AAR are inconsistent with the CWA, which provides the statutory authority for this rulemaking.
	In addition, per AAR's PCOR definition, a track or segment of track over which only eleven crude oil-carrying trains travel per year would not require a comprehensive plan; however, if a twelfth train travels over this same segment or track, it would necessitate a comprehensive plan.
	However, PHMSA recognizes that AAR has proactively identified ways to target the affected entities that present higher safety risks while trying to limit the impact of the proposed rule and associated costs on entities that pose significantly less risk.  To that end, PHMSA appreciates the attentiveness to providing regulatory flexibility and holds that it may be acceptable to except certain small entities from the proposed requirements of comprehensive oil spill response plans if they are overly costly or burdensome for these entities.    Moreover, PHMSA seeks comment on ways that might be used to effectively provide regulatory flexibility to bona fide small entities that pose a lesser safety risk and may not be able to comply with the requirements of the proposed rule due to cost concerns, limited benefit, or practical considerations.
	 the applicability of comprehensive plans to solely these entries would result in regulating oils that generally present a similar type of risk in an incongruous manner.  On this point, PHMSA holds that liquid petroleum oils, such as crude oil, diesel fuel, gasoline, or other petroleum distillates, present similar safety risks in commercial transportation.
	There are several factors to consider when determining which hazardous materials should be subject to the new or revised requirements of this proposed rule.  In general, PHMSA assesses the risks of hazardous materials in transportation in accordance with the nine different hazard classes under the HMR; however, the regulations we seek to amend in 49 CFR part 130 are not part of the HMR.  Namely, part 130 is authorized under 33 U.S.C. 1321  -  Oil and hazardous substance liability, not the Federal hazardous materials transportation law of 49 U.S.C. 5101 - 5128.
	 Therefore, instead of proposing that the expanded applicability of the comprehensive plan apply to all oils (as defined in 33 U.S.C. 1321), PHMSA proposes to limit the proposed
	Moreover, the proposed applicability in this NPRM generally aligns with the definition of a "High-Hazard Flammable Train" (HHFT) as published in the final rule, "Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains" ("HM-251").  The proposed applicability differs, however, in the types of materials affected.  By way of HM-251, the definition of an HHFT involved the transport of all Class 3 flammable liquids; whereas the comprehensive OSRP requirements in this rulemaking involve the transport of petroleum oil for consistency with part 130's statutory authority.  Therefore, the proposed expanded applicability applies to those HHFTs which carry petroleum oil.  This creates an integrated approach between the planning requirements in this rulemaking and the other operational controls in the HMR.  To better facilitate this integration, residue or diluted mixtures of petroleum oils that no longer meet the definition of a Class 3 flammable or combustible liquid per 49 CFR 173.120 are not included in expanded applicability.
	In the ANPRM, PHMSA asked if the 1,000,000 gallons threshold is appropriate for safety and cost-effectiveness.  No commenters supported using 1,000,000 gallons as a single metric for applicability.  	Many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving trains with quantities below this threshold could cause substantial harm to the environment.  While commenters provided many examples of thresholds below 1,000,000 gallons, commenters provided insufficient data about the likelihood of a release from these tank car volumes to demonstrate such thresholds are "reasonably expected" to cause substantial harm.
	Thus, in order to better understand this differential of risk and the most likely number of punctures resulting in a derailment, PHMSA looks to the modeling conducted by FRA in support of HM-251.  In particular, HM-251 offered a scientific justification for the HHFT definition and using this threshold of tank cars as an identifier of higher-risk train configurations.  Based on modeling and analysis performed by FRA, 20 tank cars in a continuous block loaded with a flammable liquid and 35 tank cars loaded with a flammable liquid dispersed throughout a train display consistent characteristics as to the number of tank cars likely to be breached in a derailment.  The operating railroads commented on HM-251 and indicated that this threshold would exclude "manifest" trains and focus on higher risk, "unit" trains.  FRA completed an analysis of a hypothetical train set consisting of 100 cars.  The analysis assumes 20 cars derailed.  The highest probable number of cars losing containment in a derailment involving a train with a 20-car block (loaded with flammable liquid) located immediately after the locomotive and buffer cars would be 2.78 cars.  In addition, the most probable number of cars losing containment in a derailment involving a manifest train consisting of 35 cars containing flammable liquids dispersed throughout the train would be 2.59 cars.  Therefore, 20 tank cars in a block and 35 tank cars dispersed throughout a train display consistent characteristics (i.e., 2.78 cars breached vs. 2.59 cars breached).  If the number of flammable liquid cars in a manifest train were increased to 40 or 45, the most likely number of cars losing containment would be 3.12 and 3.46 cars, respectively.  This analysis served as one basis for the selection of the revised HHFT definition for HM-251, and it also helps to shape our discussion of applicability in this proposed rule for oil spill response plans (HM-251B).
	As a result of this modeling, PHMSA holds that a derailment involving a train moving less than 20 tank cars in a continuous block, or less than 35 tank cars throughout the train, would result in relatively fewer punctures than derailments involving more than this number of tank cars.  Specifically, as a result of this modeling, PHMSA suggests that the most likely number of tank car punctures for a train with less than 20 tank cars in a block would be less than 2.78, and in a derailment scenario with less than this number of punctures, the derailment is significantly less likely to cause substantial harm to the environment.  In more general terms, PHMSA would suggest, as a result of these modeling outcomes from FRA, that a derailment involving two or fewer tank car punctures is less likely, and therefore not "reasonably expected" to cause substantial harm to the environment.  Therefore, we believe the applicability proposed in this NPRM appropriately indicates the trains that can reasonably be expected to cause substantial harm to the environment.  Consequently, by way of this rulemaking, PHMSA proposes to require these higher-risk train configurations to operate in conformance with comprehensive oil spill response plans.
      In addition to the data on the most likely number of tank car punctures in a derailment, PHMSA further maintains that lower-risk train configurations should not be the focus of this rulemaking because extending the requirements of this rule to operators of lower-risk configurations could be burdensome, costly, and inefficient.  There are many costs involved in developing and implementing a comprehensive oil spill response plan, such as retainer fees, training and drill costs, and plan development and submission costs.  For more information regarding regulatory flexibility, please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures").  For more information regarding the costs of this rule on the regulated community, please see the draft RIA and the associated discussion in Section VIII, Subsection A ("Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures").
	Commenters have also suggested that 1,000,000 gallons, which is used as a threshold in the development of non-transportation-related facility response plans, is not an adequate threshold because the context of rail transport differs substantially from the context of fixed facilities.  PHMSA agrees.  PHMSA believes that a threshold based on a number of carloads is more effective and practical, and the proposed applicability in this rulemaking is specific to the context of rail transportation.  Moreover, as previously discussed, the proposed applicability identifies higher-risk train configurations which could reasonably be expected to cause substantial harm to the environment in the event of a derailment.
	A few commenters voiced support for the second threshold of the HM-251B ANPRM, which aligned with the HHFT definition proposed in the HM-251 NPRM and published on August 1, 2014 (i.e., 20 tank cars in a train).  Given the proposed applicability in this rulemaking, PHMSA generally agrees with these commenters; however, the nature of the HHFT definition has changed since HM-251B's ANPRM publication.  On May 8, 2015, PHMSA published the final HM-251 and revised the HHFT definition to comprise 20 tank cars loaded with a Class 3 flammable liquid in a continuous block or 35 or more tank cars loaded with a Class 3 flammable liquid dispersed throughout the train.  Thus, by way of HM-251, the HHFT definition came to reference the configuration of tank cars in the train as well as an additional threshold for the number of tank cars in a train.  Furthermore, PHMSA has adapted the HHFT definition of HM-251 to form the basis for the applicability for comprehensive oil spill response plans, but notably restricts this applicability to liquid petroleum oils, rather than all Class 3 flammable liquids.  For these reasons, PHMSA has not proposed to codify the HHFT definition under part 130.
	Moreover, this applicability is important because it is likely that trains with less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such cars dispersed throughout the train, are the result of configuring "manifest" trains.  Manifest trains involve combining multiple shipments of potentially various materials from various shippers to form a single train consist.  These trains differ substantially from "unit" trains, which generally involve a single commodity offered by a single shipper (the consignor) and delivered to a single entity (the consignee).  As discussed in the final rule document for HM-251, the rail industry has noted that manifest trains carrying limited loads of oil along with other commodities pose less of a risk than unit trains with significantly larger loads of oil.  Further, the rail industry commented on the NPRM of HM-251, relaying that in many situations it would be difficult to pre-determine when an HHFT would be used and that shippers of smaller volumes of oil would not know if their shipment would ultimately be configured into an HHFT.
	PHMSA carries these concerns and related analyses from HM-251 into this proposed rule, as we believe it is still pertinent to the discussion of comprehensive oil spill response plans.  In this rulemaking, PHMSA intends to identify higher-risk train configurations that pose a threat of substantial harm to the environment.  Conversely, PHMSA does not intend to affect lower-risk train configurations moving smaller quantities of petroleum oil, which are more likely to be the result of configuring a manifest train.  Lower-risk train configurations are significantly less likely to cause substantial harm to the environment and extending the full breadth of the proposed requirements for a comprehensive plan to entities transporting lower-risk train configurations would likely be too burdensome and costly, for the limited safety benefits provided.  Furthermore, the proposed quantity provides an integrated approach to the comprehensive OSRP requirements and the requirements of HHFTs.
	In opposition to an HHFT-like applicability, many commenters have argued that oil spills involving carloads below this threshold could cause considerable harm to the environment.  On this point, PHMSA acknowledges that oil spills of a lesser amount can cause harm, but holds that trains carrying less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such tank cars dispersed throughout the train, are effectively lower-risk train configurations, and they cannot be reasonably expected to cause substantial harm.  In other words, these trains may be capable of causing harm, but the harm they can cause is significantly less likely to qualify as substantial harm.  As previously discussed, modeling data from FRA indicates that trains with less than 20 tank cars in a block, or less than 35 tank cars dispersed throughout a train, could not be reasonably expected to cause substantial harm because, in derailment scenarios, relatively few tank cars containing petroleum oil would be breached on average.  As previously discussed, this modeling demonstrated that the most likely number of punctures in a derailment scenario involving a train with 20 tank cars in a continuous block would be 2.78.
	Furthermore, given the enhanced tank car standards promulgated in HM-251 and resulting improvements in tank car integrity, PHMSA believes the likelihood of a tank car releasing all of its contents in a derailment has been significantly reduced.  Thus, in relation to the derailment modeling data (discussed above), PHMSA maintains that a train with a 20-car block of petroleum oil would not result in 83,400 gallons spilled (2.78 tank car punctures x 30,000 gallons per tank car = 83,400 gallons discharged from the breached tank cars).  Rather, a derailment scenario involving 20 tank cars of petroleum oil in a continuous block would most likely result in less than 83,400 gallons discharged.  For these reasons, PHMSA cautions against the assumption implicit in some commenters' comments that the derailment of one tank car automatically results in the discharge of 30,000 gallons of product, and the derailment of two tank cars is equivalent to the discharge of 60,000 gallons of product, and so forth.  As the modeling data from FRA indicates, the number of tank cars that breach in a derailment scenario is in all likelihood fewer than the number of tank cars that derail.  Separately, given the tank car design enhancements promulgated by HM-251, the likelihood that breached tank cars would release all of their contents has been reduced.  Accordingly, PHMSA feels that extending the requirement to develop a comprehensive OSRP to entities operating lower-risk train configurations would not be efficient.  It would require significant investments on the part of small entities that are not key factors in the transport of petroleum oil by rail, and these investments would not yield analogous safety benefits.  Please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures") for impacts on small entities and the draft RIA for further discussion of safety benefits and costs to industry.
	Many commenters voiced support for the third threshold proposed in the ANPRM, which was 42,000 gallons.  PHMSA disagrees with these comments because we believe that a threshold based on the number of carloads of petroleum oil in a train would be more practical for compliance and enforcement purposes than a threshold based on gallons.  In general, 42,000 gallons as a threshold could be impractical or burdensome.  Since tank cars tend to carry around 30,000 gallons of product, a threshold of 42,000 gallons would effectively equate to differentiating a train with one carload of petroleum oil and a train with two carloads and thus, requiring a comprehensive plan for the transport of two carloads of petroleum oil.  As previously discussed, PHMSA affirms that higher risk train configurations should be the focus of the proposed rule and that a train transporting two tank cars of petroleum oil simply does not present the same amount of risk as higher-risk train configurations.  While a train with two tank cars of petroleum oil could derail, potentially releasing its contents and harming the environment, it is not nearly as likely to cause substantial harm as higher-risk trains with much larger quantities of petroleum oil.
	In the ANPRM, PHMSA asked the public if "another threshold" were appropriate or cost-effective.  In response to PHMSA's inquiry of "another threshold," many commenters offered thresholds that are less than 42,000 gallons, such as one tank car, 24,000 gallons, 3,500 gallons, or any quantity of petroleum oil.  PHMSA disagrees with these suggestions.  Rail industry practices demonstrate that there is only a slight distinction between the threshold of 42,000 gallons, which was proposed by PHMSA in the ANPRM, and the lesser quantities proposed by some commenters in response to the ANPRM.  In practical terms, the thresholds of any quantity, 3,500 gallons, and 24,000 gallons would result in regulating trains with one tank car of petroleum oil, whereas a 42,000-gallon threshold would result in regulating trains with two tank cars.  PHMSA maintains that this distinction is slight and in either case, requiring comprehensive plans of trains that transport merely one or two tank cars of petroleum oil would most likely be burdensome upon implementation and be costly relative to the limited safety benefit it would offer, especially for small entities.  As previously discussed, PHMSA also holds that a threshold based on a number of carloads is more practical than a threshold based on a gallon amount.
	In a similar vein, PHMSA holds that imposing an applicability of five tank cars, or any other number of tank cars that is less than 20 in a continuous block or 35 when dispersed throughout a train, would most likely be costly or burdensome and yield limited safety benefits due to the impacts on small entities as well as "manifest" train configurations involving petroleum oil.  Please see the draft RIA for further discussion of the costs and benefits of the proposed rule.
	 In response to the comment by AAR and ASLRRA, PHMSA disagrees with using the definition of a Petroleum Crude Oil Route (PCOR) of "...a railroad line where there is a minimum of twelve trains a year, which is an average of one train a month, that transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or UN3494) or more that is within 800 feet or closer from the centerline of track to a river or waterway that is used for interstate transportation and commerce for more than 10 miles"  to determine whether a rail carrier must develop a comprehensive plan.  We do not have information on exactly how many rail carriers or trains would be permitted to transport petroleum oil without a comprehensive plan if the applicability of this rulemaking were to incorporate the AAR and ASLRAA's proposed PCOR definition or the quantity of 1,000,000 gallons, and invite public commenters to provide information to assist in further evaluating the benefits and costs of these alternative applicability thresholds.  Overall, PHMSA believes that the PCOR definition is overly complicated, and creates uncertainty for FRA, communities, and responders about which unit trains of petroleum oil are excluded from the requirement to have a comprehensive plan.  PHMSA seeks to align increased risk with improved oil spill response planning such that higher risk unit train configurations would require comprehensive plans.  PHMSA suggests that AAR and ASLRRA's PCOR definition might permit an unwarranted number of trains which present the potential of substantial harm to the environment to operate without a comprehensive plan. Additional concerns with this definition are described in the following discussion.
 A.
	Further, as previously discussed, PHMSA disagrees with the PCOR definition because PHMSA believes that using a gallons basis for the threshold could present compliance and enforcement issues, especially relative to the use of a number of tank cars.  Since tank cars vary in the quantity of product that they can transport, PHMSA suggests it is much easier to determine the number of tank cars in a train carrying petroleum crude oil than it is to assess the exact amount of gallons carried by any number of tank cars designed with potentially different capacities.  For example, a train carrying 35 tank cars of petroleum oil would likely be "around the margin" of 1,000,000 gallons of petroleum oil.  In other words, accurately determining if the train as configured has 990,000 gallons of product, versus 1,000,000 gallons, might be difficult for compliance and enforcement purposes; whereas, it is easier to observe that the train as configured has 35 tank cars.  While we proposed two thresholds based on gallon amounts in the ANPRM, we have since crafted our proposed threshold in the NPRM to reflect this updated viewpoint and analysis.
	Moreover, PHMSA disagrees with the AAR's use of 800 feet as a geographic criterion in the PCOR definition because it might present compliance and enforcement issues.  Assessing the need for a comprehensive plan or a potential violation would require a potentially taxing confirmation of the distance of a waterway from the centerline of the track, especially "around the margin" of 800 feet.  In addition, this geographic criterion might result in different outcomes of response preparedness despite nearly identical levels of risk.  For example, in a scenario wherein one waterway is 790 feet from the centerline of the track, and another scenario wherein a different waterway is 801 feet from the centerline of the track, the second waterway might be better protected from an oil spill than the first.  Thus, the 800 feet geographic criterion appears to be arbitrary given that the commenter has not offered data to suggest that 800 feet would be an appropriate "buffer" zone between a potential derailment site and navigable water and as such, enhance safety and prevent the entry of oil into the waterway.  Further, the distance between the centerline of the track and navigable water is but one of the several factors that could influence the probability of a spill damaging navigable water; that is, other geographical factors exist that might increase this probability substantially.
      PHMSA also disagrees with AAR's contention that in order to trigger the response plan requirement, the waterway in question must be a maximum distance of 800 feet from the centerline of the tracks and the waterway must be "a river or waterway used for interstate transportation and commerce."  Both the distance from and criteria for a waterway as proposed by AAR are inconsistent with the CWA, which provides the statutory authority for this rulemaking.  For example, rather than a distance of "800 feet" from navigable waters, the CWA requires oil spill response plans for any facility that "because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone."   PHMSA is not aware of evidence demonstrating that all spills originating more than 800 feet away from navigable waters could not be reasonably expected to cause substantial harm to these resources.  PHMSA assumes that all routes are expected to have the potential to impact navigable waters and that performing an analysis for every point along the route is not practical, as there are various factors that could complicate this analysis and hinder the ability to foresee an impact to navigable waters.  For example, identification of navigable waters requires consideration of geographical features, seasonal variation, vegetation, etc.  The possible impact zone surrounding the track could also depend on topography or the viscosity of the petroleum product transported.  Therefore, the entire route should be covered by the Oil Spill Response Plan and after a discharge of oil occurs, the Federal On-Scene Coordinator should make the determination of the threat in the specific conditions.
	In addition, per AAR's PCOR definition, a track or segment of track over which only eleven crude oil-carrying trains travel per year would not require a comprehensive plan; however, if a twelfth train travels over this same segment or track, it would necessitate a comprehensive plan.  Thus, PHMSA suggests that this aspect of the PCOR definition may be impractical for compliance and enforcement efforts.  We anticipate that it would not be possible for a railroad to make an accurate, advance prediction of commodity flows and train consists, because that prediction would rely on external factors beyond the railroad's control.   For example, commodity flows and train consists would be affected by fluctuations in oil or other commodity prices, decisions by customers to pursue different shipping routes, or overall economic factors.
      	However, PHMSA recognizes that AAR has proactively identified ways to target the affected entities that present higher safety risks while trying to limit the impact of the proposed rule and associated costs on entities that pose significantly less risk.  To that end, PHMSA appreciates the attentiveness to providing regulatory flexibility and holds that it may be acceptable to except certain small entities from the proposed requirements of comprehensive oil spill response plans if they are overly costly or burdensome for these entities.  For more information regarding regulatory flexibility, please see Section VIII, Subsection E ("Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures").  Moreover, PHMSA seeks comment on ways that might be used to effectively provide regulatory flexibility to bona fide small entities that pose a lesser safety risk and may not be able to comply with the requirements of the proposed rule due to cost concerns, limited benefit, or practical considerations.

C.	Contents of Comprehensive Oil Spill Response Plans
	Commenters submitted a variety of comments regarding plan contents to the ANPRM.  In the ANPRM, PHMSA asked the public two questions that were specific to the area of plan contents.  To paraphrase, the first question asked whether the current requirements for comprehensive OSRPs were "clear" or if greater specificity should be added to 49 CFR part 130 ("Part 130").  The second question asked if any comprehensive OSRP elements should be "added, removed, or modified."
	Regarding the first question, the majority of commenters stated that they were not clear and needed greater specificity.  For example, the Response Group has said that the current requirements under part 130 are "too generic in nature."  In addition, API has stated, "The current PHMSA spill response plan requirements applicable to the railroads do not provide the clarity needed to develop comprehensive, responsive and consistent spill response plans... PHMSA should consider revising part 130 to provide better specificity to the regulated community and should look to EPA, USCG and BSEE for examples and practices that would work with the operational requirements of the railroads."  Further, DGAC has stated that "it would be advisable to develop training and outreach information" to assist affected entities in the development of comprehensive OSRPs.  Overall, commenters from a variety of backgrounds have asked PHMSA to clarify the current requirements under part 130, reference other agencies' plans (e.g., plans under USCG, BSEE, EPA, or PHMSA's Office of Pipeline Safety), provide further instructions and guidance to affected entities, and ensure that new requirements reflect the context of rail transportation.  Commenters such as California's Office of Spill Prevention Response and Washington State's Department of Ecology also highlighted the requirements aligned necessary to align with obligations in the CWA statute.
	However, some commenters stated that the existing requirements are adequate as currently written.  The New York State Department of Transportation has stated, "The use of comprehensive OSRPs is not a new concept...New York State believes the requirements of OSRPs are clear enough for railroads and shippers to understand what is required of them."  The American Fuel & Petrochemical Manufacturers (AFPM) has stated that the "requirements of OSRPs in 49 CFR 130.31 provide sufficient clarity for the railroads to take steps to plan for and address potential discharges of crude oil.  The focus of PHMSA's efforts should be...ensuring appropriate oversight and enforcement of existing spill planning obligations, including ensuring that railroads have available the equipment and personnel necessary to address discharges."  Similarly, the City of Seattle claims that the current comprehensive OSRP requirements are clear for railroads and shippers, but states that the plan requirements are not clear to the public and "do not properly engage the public."  Regarding the City of Seattle's comment and public engagement, please refer to the summary and discussion of comments under Section V, Subsection E ("Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans").
	PHMSA also asked the public if any plan elements within part 130 should be added, removed, or modified.  Several commenters identified plan elements that could be added, removed, or modified, and suggested different means of addressing: adverse weather conditions; topological and geographic risks near rail routes; environmentally sensitive or significant areas; temporary storage of loaded rail cars; worst-case discharge planning; communication between Qualified Individuals and local, state, and federal officials; training standards; drills; equipment inspection; private and public resource contracting; response time requirements; timeframes for reviewing or updating OSRPs; public awareness; alternative plans; and NTSB safety recommendations, among other issues.
	The Association of American Railroads (AAR) and American Short Line and Regional Railroad Association (ASLRRA), in particular, have made several suggestions regarding potential additions or modifications to part 130.  AAR and ASLRRA have submitted "proposed regulatory language" for OSRPs.  Within this language, they have suggested that rail carriers determine the worst-case discharge amount and provide their methodology within the OSRP.  They have referenced National Oil and Hazardous Substances Pollution Contingency Plan (NCP) and Area Contingency Plans (ACP) and provided a description of the requirements that a rail carrier must follow to be "consistent" with the NCP and each applicable ACP.  In the same proposed language, AAR and ASLRRA have outlined the format of a possible comprehensive OSRP, which would include requirements for response resources, training, plan summaries and other administrative aspects of an OSRP.  AAR and ASLRRA have also asked that an Integrated Contingency Plan (ICP) be acceptable if it "provides equivalent or greater spill protection" than the plan required under part 130.  The joint comments also made suggestions related to recordkeeping, plan retention, periodic plan reviews, and submission/approval.  For more information regarding the approval of plans, please refer to Section V, Subsection D  ("Approval of Comprehensive Oil Spill Response Plans").
	The American Petroleum Institute (API) has suggested that comprehensive OSRP requirements be re-structured to be "consistent and complementary with other legal spill prevention rules."  API holds that comprehensive OSRP requirements could use a different format.  In addition, API asks that DOT consider adopting the "Response Zone" concept that is currently utilized by pipeline operators.  API also asks that DOT consider the public awareness programs under 49 CFR part 195 in which pipeline operators take part.
	The Village of Barrington, Illinois and the TRAC Coalition have asked that comprehensive OSRP requirements enhance an "ongoing partnership" between railroads and local communities and include requirements for more effective communication between railroads and first responders.  The commenter states that railroads must supply railroads with "response information for the particular type of hazmat being transported" and reiterates findings of an NTSB report suggesting a "documented failure of the railroad to provide immediately the emergency response information and...shipping papers, in printed form or electronically, to the incident commander."  The commenter also states that communities need to know "where needed response assets are located."
	Safety consultant John Joeckel has offered several suggestions for modifying the current OSRP requirements.  In general, this commenter has stated that OSRP requirements should be more "prescriptive" and "specific" and follow the example of other agencies' regulations (e.g., 49 CFR part 194 -- Response Plans for On-shore Oil Pipelines; 33 CFR 155 -- Tank Vessel Response Plans, etc.).  For example, Mr. Joeckel has said that comprehensive OSRPs should include: planning standards to be used in determining potential worst-case discharges and "response planning targets" to specify the amount and types of response resources that would arrive at the scene of an incident within specific timeframes.  He also suggests that current OSRP requirements include more specific instructions for communications between the Qualified Individual and local first responders, and that drills and exercises follow the guidelines within the National Preparedness Response and Exercise Program (NPREP).  Mr. Joeckel offers several other areas in need of modifications or additions to part 130, such as training requirements, requirements for assurances of firefighting resources, development of response zone appendices, descriptions of the responsible parties within the response management system, and requirements to address environmentally and economically sensitive areas.
	In a similar vein, the Center for Biological Diversity and partner commenters have asked that PHMSA include requirements for rail carriers to analyze environmentally-sensitive or significant areas, mitigate impacts to habitats and ecological services, and "ensure that response actions do not harm endangered species."  The Center for Biological Diversity has asked that OSRPs address consultations with the Fish and Wildlife Service as well as the National Marine Fisheries Service.
	The Emmett Environmental Law and Policy Clinic of Harvard Law School, in collaboration with other environmental groups such as Sierra Club, have asked for certain modifications to comprehensive OSRP requirements.  This commenter asks that the "range of oils carried by the railroad" be described in OSRPs, as well as the "variations in topographical and climatological conditions."  Similar to the comment from the Center for Biological Diversity, the commenter also stipulates that plans "minimize the use of oil spill dispersants, whose effects in freshwater environments are not well understood."
	Several other commenters have asked that comprehensive OSRP requirements be amended to address specific areas of environmental, cultural, or national significance.  For example, the National Parks Conservation Association has recommended that "site-specific response plans" be required of HHFTs that passes through national park boundaries.  The Flathead Basin Commission has relayed similar concerns regarding site-specific response plans.  In addition, the Waterkeeper Alliance and partner commenters have stated that specific environmental areas and water resources are at risk of experiencing oil spills, such as the Spokane Valley, Columbia River, Puget Sound, Milwaukee River, Lake Ontario watershed, San Francisco Bay, and Hudson River, and suggested that OSRPs afford these areas consideration.
	Washington State's Department of Ecology, Department of Fish and Wildlife, and Department of Natural Resources have proposed adding several plan elements.  For example, they have proposed a "robust drills and exercise program" following the National Preparedness Response Exercise Program (NPREP).  They have proposed standards for "oiled wildlife," response arrival times, and "Group 5 oils," as well as requirements for financial responsibility, sensitive site strategies, and waste storage and management.
	In regard to changing the comprehensive OSRP requirements, New York State's Department of Transportation has stated that an existing requirement in part 130 must address the impacts of discharges upon land and groundwater as well as surface waters.  In addition, New York State asks that OSRPs include more specific requirements to identify the roles and responsibilities of rail carriers and their supporting contractors relative to local communities and county/regional or state agencies.
	Several firefighting and/or emergency response organizations have commented on the need to add, remove, or modify the elements of part 130.  The Pacific States/British Columbia Oil Spill Task Force has said that OSRPs for the rail system should have a regulatory framework that is similar to the United States Coast Guard's.  The National Association of SARA Title III Program Officials (NASTTPO) and the Oklahoma OHMERC have said that comprehensive OSRPs should enable first responders to have "real time information" on the contents of rail cars involved in accidents and require training and drills to be provided by railroads to local first responders.  The City and County of Denver's Local Emergency Planning Committee has also commented in support of NASTTPO's suggestions on modifying comprehensive OSRP requirements.  The National Fire Protection Association (NFPA) has advised that two NFPA standards be incorporated into the comprehensive OSRP requirements in order to ensure that personnel responding to hazardous materials incidents be adequately qualified and trained.
	In addition, the Transportation Trades Department, AFL-CIO (TTD), which represents transportation workers under the International Association of Fire Fighters (IAFF), has offered some suggestions regarding potential modifications or additions to part 130.  TTD has noted that the current requirements "appear to require coordination with only private personnel and not public first responders."  They advocate that the role of public response personnel should also be incorporated into comprehensive OSRP requirements.  Further, they ask that OSRPs be shared with fire fighters and paramedics.  Please see Section V, Subsection E ("Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans") for further discussion regarding the distribution of OSRPs.
	With respect to adding elements to part 130, the Oregon Department of Environmental Quality has shared its state planning standards, including "response time objectives" for the use of containment booms as well as oil recovery operations.  Oregon also recommends that comprehensive OSRPs require the establishment of equipment caches along HHFT rail corridors.
	Similarly, the State of Minnesota shared some of the developments of the state's recent oil transportation safety law.  On behalf of the state, Representative Frank Hornstein and Senator D. Scott Dibble have outlined state requirement that ensure accurate train manifests, establish response timeframes, institute a term of validity of three years for response plans, require that railroads participate in "take home" drills, and encourage the creation of cooperative equipment caches.
	The Honorable Edward B. Murray and the City of Seattle have also outlined OSRP elements that need to be added or modified.  They have stated that comprehensive OSRPs should provide: a clear understanding of the federal response structure; safety procedures at the response site and for obtaining required state and federal permissions for using alternative response strategies; identification of environmentally and economically sensitive areas; descriptions of the responsibilities of the operator and government officials; and a training program that satisfies the National Preparedness for Response Exercise Program (PREP).

Discussion of Comments: Content of Plan
            We agree with the majority of commenters that the current regulations lack specificity and it can be difficult to understand the requirements of the plan.  The lack of specificity is reflected in the recommended elements provided by commenters.  Commenters from diverse backgrounds suggested that additional requirements for comprehensive oil spill response plans should add greater specificity to existing plan elements.  For example, many commenters recommended that drills should satisfy the National Preparedness for Response Exercise Program (PREP).  Many commenters also recommended adding elements that were already encompassed in the current comprehensive plan requirements.  For example, the requirement to identify environmentally sensitive areas is a component of the current requirement to comply with the National Contingency Plan (NCP) and applicable Area Contingency Plan (ACP).  However, the general reference to be consistent with the NCP and ACP in 40 CFR part 300 is unclear, as this is a voluminous citation with many sections that do not apply to rail.  Overall, the input from commenters demonstrated a clear need to improve the comprehensive plan requirements.  Therefore, we are proposing to separate the requirements for basic and comprehensive plans.  The following discussion focuses on the proposed changes to comprehensive plans. As discussed in the previous section, this rulemaking proposes to require comprehensive plans for tank cars containing more than 42,000 gallons of oil in a single package or railroads that transport 20 or more tank cars loaded with liquid petroleum oil in a continuous block in a single train or 35 or more of such tank cars dispersed throughout the train.  Thus, the 12-hour response timeframe applies only to track where covered trains traverse.
            While it is not feasible to include every element recommended by commenters, we looked for common themes and recommendations between different commenters, requirements which would address challenges faced in recent spill incidents, and requirements addressed by first responders during PHMSA's stakeholder outreach efforts.  We have restructured and clarified the requirements of a comprehensive oil spill response plan to be more similar to other federal agencies and to provide greater specificity to assist in the regulated community's compliance with plan elements.  We did not propose to adopt the recommendations from commenters that did not have a clear connection to the statutory requirements or parallel requirements in other federal regulations for oil spill response.  Overall, the proposed changes are most similar to PHMSA's Office of Pipeline Safety (OPS) OSRP requirements under 49 CFR part 194, as they address OSRPs which must account for large geographic areas, instead of fixed facilities.  However, we note there are some differences between responses to pipelines and railroads and we have tailored the proposed requirements appropriately. The proposed changes are intended to clarify the chain of command and communication requirements, and to provide more information about the resources available for response and the conditions the plan addresses, while retaining the same overall plan elements described in the statute.
      We agree with the multiple commenters such as API and Mr. Joeckel who recommended using a requirement similar to response zones in pipeline regulations.  This approach was identified as the best framework to address the unique challenge of creating a plan which spans large geographic distances.  The CWA statute requires that the spill response plans make resources available by "contract or other means."    To ensure response resources are adequately placed, USCG gauges whether response resources can make it to a given location by assuming response resources can travel 35 mile per hour.  It is unlikely and sometimes impossible for the same responders and resources will be available at all points on a particular route.  Therefore, it is important that response zones in the plan both identify the response resources, and ensure the response resources are capable of covering the entire response zone.
      Commenters provided different recommendations for response times. Washington State's Department of Ecology, Department of Fish and Wildlife, and Department of Natural Resources; California Department of Fish & Wildlife, Office of Spill Prevention & Response (OSPR),  and Oregon Department of Environmental Quality provided 6 hours as an example of a possible response time for illustrative purposes.  Both the National Association of SERA Title Three Professionals Organization (NASTTPO) and the Oklahoma Hazardous Materials Emergency Response Commission assumed railroads are capable of mobilizing response resources in 4-6 hours.  On this issue of response time frames, AAR and ASLRRA proposed that "[e]ach railroad shall identify in the plan the response resources which are available to respond within the time specified, after discovery of a worst case discharge, as follows: (1) [w]ithin 6 hours for designated high volume area as defined by the plan and (2) [w]ithin 24 hours for all other river or waterways used for interstate transportation and commerce." No commenters provided data to support proposed response times.
      Commenters also requested that plans more closely align with other federal agencies, such as the OPS requirements.  In § 194.115 "Tier 1" response resources must be available in six hours for "High Volume Areas" and 12 hours for "All Other Areas."  Tier 2 and 3 require resources to be available between 30 and 60 areas depending on the designation.  Part 194 of the 49 CFR does not include a definition for "Tier," when describing the type of resources.  OPS defines "High volume area" in 49 CFR 194.5 as "an area which an oil pipeline having a nominal outside diameter of 20 inches (508 millimeters) or more crosses a major river or other navigable waters, which, because of the velocity of the river flow and vessel traffic on the river, would require a more rapid response in case of a worst case discharge or substantial threat of such a discharge. Appendix B to this [40 CFR part 194] part contains a list of some of the high volume areas in the United States.  To ensure response resources are adequately placed, USCG gauges whether response resources can make it to a given location by assuming response resources can travel 35 mile per hour.
      This rulemaking proposes to provide a single metric of 12 hours to describe the location of response equipment, which is within the 4 to 24 hour range suggested by commenters.  The 12 hour metric aligns with the timeframe for `tier 1' resources for `all other areas' required by OPS in part 194.   We are also proposing to adopt the USCG assumption that that response resources can travel according to a land speed of 35 miles per hour.  Therefore, for response resources traveling by land, the comprehensive OSRP will only be approved if response resources are staged within 420 miles of any point in the response zone, or the railroad demonstrates that a faster speed is achievable (e.g. air support to transport resources).
      We did not propose a tiered approach to the response resources.  The AAR and ASLRRA proposal recommended allowing railroads to define "High Volume Area" within each plan without any criteria for such a definition.  As there is nothing prohibiting railroads from staging resources closer to specific route segments, we disagree that a voluntary designation will increase coverage for sensitive areas.  We also disagree that 24 hours provides adequate coverage as a single metric.  As described above, OPS provides specific criteria used in determining and defining high volume areas that were absent in the AAR and ASLRRA proposal.  However, not all the criteria in the OPS definition of "High Volume Area" translate easily to rail transportation (e.g., pipeline diameter).  As we stated previously, we assume the entire route threatens navigable water, and further identification for every point along the route is impracticable.  Therefore, we assume if even if a shorter response time for spills more likely to impact navigable waters, and a longer response for spills that are less likely to impact navigable waters, railroads may need to locate response resources using the shorter response time requirement for its entire track network where covered trains traverse. This would increase costs with uncertain corresponding benefit.   We note that we solicit comment in both this NPRM and the RIA on whether the rule should define specific track locations where shorter response times might be warranted and provide the defining criteria for these locations.
      PHMSA acknowledges that some areas in proximity to certain navigable waters may benefit more than other areas from staging and deploying resources in closer proximity, due to the potentially higher consequences of spills in these areas. Therefore, PHMSA will consider adopting shorter response time requirements than 12 hours in the final rule based on information provided by commenters and other information which may become available before a final rule is published.  Specifically, PHMSA solicits comments on whether the 12-hour response time is sufficient for all areas subject to the plan, or whether a shorter response time (e.g., 6 hours) is appropriate for certain areas (e.g. High Volume Areas) which pose an increased risk for higher consequences from a spill. We request comments on criteria to define such "High Volume Areas" where shorter response time should be required.  Additionally, we ask whether the definition for "High Volume Area" in 49 CFR 194.5 (excluding pipeline diameter) captures this increased risk, or if there is other criteria which can be used to reasonably and consistently identify such areas for rail.  PHMSA also asks whether requiring response resources to be capable of arriving within 6 hours will lead to improvements in response, and for specific evidence of these improvements.   Further, PHMSA requests public comments on whether the final rule should have a longer response time than 12 hours for spills for all other areas subject to the plan requirements in order to offset costs from requiring shorter response times for High Volume Areas.
      In addition to the time frame in which response resources must arrive, the effectiveness and adequacy of these resources must also be assessed.  To that end, PHMSA has proposed in this rulemaking that affected entities determine a worst-case discharge (WCD) planning volume.  PHMSA maintains that, without this particular planning volume, rail carriers that transport petroleum oil in higher-risk train configurations would most likely be unable to "ensure by contract or other means...the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge," as stipulated in the statute of the CWA.
	For purposes of understanding what constitutes a worst-case discharge in the context of rail transportation of petroleum oil, PHMSA has identified and analyzed the quantity released from tank cars in the major derailments involving petroleum oil that have occurred in recent years in the U.S.  This analysis indicates that the worst-case discharge, in terms of the quantity released from tank cars that punctured or experienced thermal tears, would be approximately 500,000 gallons of petroleum oil.  In particular, PHMSA has identified the quantity released in the Casselton, ND derailment, wherein 474,936 gallons of crude oil was released, as an approximation of a worst-case discharge.  Moreover, the Aliceville, AL derailment involved a comparable quantity released: 455,520 gallons.  These derailments signal approximately the volume of petroleum oil that would constitute a worst-case discharge in the U.S.
	However, PHMSA has not proposed in this rulemaking that the planning volume for a worst-case discharge be 500,000 gallons because we recognize that the tank car design enhancements promulgated in HM-251 would reduce the overall quantity released in a derailment scenario occurring in the future.  In other words, the Casselton, ND derailment involved the release of 474,936 gallons of crude oil, but if a similar derailment were to occur in the future, it would most likely involve a lesser quantity released due to improvements in the puncture resistance and thermal protection of tank cars achieved through HM-251.  For this reason, PHMSA has proposed a lesser planning volume for worst-case discharges, adjusting the largest quantity released within the crude-by-rail derailment history (i.e., 474,936 gallons) by the forecasted average effectiveness rate (0.33) that we expect as a result of HM-251-related safety improvements over the ten-year period from 2017-2026.  This calculation (474,936 x 0.67) yields 318,000 gallons.  Therefore, as our determination of an appropriate WCD planning volume for use in comprehensive OSRPs, PHMSA proposes in this rulemaking that a worst-case discharge be equal to 300,000 gallons.
	Nevertheless, PHMSA recognizes that the number of tank cars loaded with petroleum oil in a train consist can vary widely and that 300,000 gallons as a worst-case discharge planning volume may not be appropriate for very large, higher-risk train configurations involving petroleum oil.  For example, assuming 30,000 gallons is contained in a single tank car; a 50-tank car train carrying crude oil would carry approximately 1,500,000 gallons, whereas a 100-tank car train would carry approximately 3,000,000 gallons.  Thus, PHMSA maintains that a 300,000 gallon planning volume would be appropriate for the 50-tank car train, but it would not be appropriate for the 100-tank car train, which carries substantially more petroleum oil product and as such, presents a much greater risk in the transportation system.  Further, PHMSA acknowledges the existence of even larger trains (e.g., 120-tank car trains), as well as the uncertainty surrounding the number of tank cars loaded with petroleum oil that might be transported by rail in the future.
      For these reasons, PHMSA has supplemented the 300,000 gallon figure to include another parameter that adequately increases the WCD planning volume for train configurations involving a greater number of tank cars and thus presenting greater risk.  The parameter we propose, as a supplementation to the 300,000 gallons WCD planning volume, is the ratio of petroleum oil that could reasonably be expected to release in a derailment to the total quantity of petroleum oil carried within a train consist (i.e., the total petroleum oil lading), most easily expressed as a percentage.  PHMSA maintains that a percentage of the total petroleum oil lading in a train consist can be used to identify and differentiate risk among the different types of train configurations that can reasonably be expected to transport large quantities of petroleum oil within a given response zone.  Again, we have focused our analysis on the recent U.S. crude-by-rail derailment history and the associated data on the quantity released from the derailed tank cars in these derailments.  Specifically, the quantity released in the Casselton, ND indicates that a worst-case discharge would involve 474,936 gallons.  If you express this quantity released as a percentage of the total petroleum oil lading carried by the derailed Casselton, ND train, a worst-case discharge would involve approximately 15% of the total petroleum oil lading. This percentage (15%) results from the following calculation: 474,936 gallons released divided by 3,088,000 gallons, which is approximately the quantity of petroleum oil that the train in the Casselton, ND derailment carried.  Namely, 104 tank cars loaded with petroleum oil were involved in that derailment and we have assumed that the all tank cars contained 29,700 gallons.
      Furthermore, the statutory requirements of CWA state explicitly that a worst-case discharge includes a discharge resulting from fire or explosion.  Per 33 U.S.C. 1321 (j)(5)(D)(iii), a response plan must "identify, and ensure by contract or other means...the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst-case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge." PHMSA understands this statutory language to mean that railroads must consider the total quantity of petroleum oil released from tank cars in a derailment, rather than solely the quantity of petroleum oil that does not burn off as a result of fire or explosion and remains to be recovered.  Therefore, in this rulemaking, PHMSA has crafted the definition of worst-case discharge to be consistent with the statutory language set forth in 33 U.S.C. 1321 (j)(5)(D)(iii).  Moreover, we hold that the worst-case discharge planning volumes used by railroads, and delineated in their comprehensive plans, must take into account the quantity of petroleum oil that is combusted in fiery or explosive derailments.
      In reflection of these analyses, PHMSA proposes that the worst-case discharge for comprehensive plans be defined as follows:
      Worst-case discharge means "the largest foreseeable discharge in adverse weather conditions," as defined at 33 U.S.C. 1321(a)(24). The largest foreseeable discharge includes discharges resulting from fire or explosion.  The worst-case discharge from a train consist is the greater of: (1) 300,000 gallons of liquid petroleum oil; or (2) 15% of the total lading of liquid petroleum oil transported within the largest train consist reasonably expected to transport liquid petroleum oil in a given response zone."
      	As previously discussed, PHMSA used an average effectiveness rate achieved through HM-251 to determine the proposed 300,000 gallon WCD planning volume.  However, for the proposed WCD planning volume based on the percentage of the total petroleum oil lading within a train consist, PHMSA has not incorporated the average effectiveness rate because we believe that this percentage should be more conservative such that very large train configurations (e.g., 135-tank car trains) would have an appropriate WCD planning volume commensurate with their presentation of increased risk within the rail transportation system.  As an illustration of the WCD definition and its application to WCD planning volumes for use in comprehensive OSRPs, consider a 50-tank car train and a 100-tank car train carrying petroleum oil.  For the 50-tank car train, the worst case planning volume would be 300,000 gallons, since 300,000 gallons is greater than 15% of the total petroleum oil lading carried by that train (i.e., 225,000 gallons, assuming each tank car carries 30,000 gallons).  For the 100-tank car train, the worst case planning volume would be 450,000 gallons, since 15% of the petroleum oil carried by that train, or 450,000 gallons, is greater than 300,000 gallons.  PHMSA maintains that distinguishing larger train configurations from relatively smaller ones is appropriate given differences in risk, and we further maintain that this calculation is to be used to determine the "planning volume" for worst-case discharges within a given response zone.  It is not re-calculated for each and every train in operation within a given response zone; rather, it is based on the largest train configuration that can reasonably be expected to transport petroleum oil within a response zone.   At this time, we do not expect that the proposed worst-case discharge definition will result in benefits or costs. Our preliminary analysis assumes railroads will contract with USCG-certified OSROs to comply with the proposed response and mitigations activities requirements in § 130.106, and it suggests that USCG-certified OSRO coverage is sufficient across the country to meet the proposed response time requirement and that the USCG OSRO classification system assures that classified OSROs have sufficient response resources to respond to a worst-case discharge as proposed this rule. We include questions for comment in Section 4 of our RIA about the benefits and costs of our proposed definition of worst-case discharge and alternative definitions.

      We generally agree with AAR and ASLRRA with respect to the overall plan format.  Our proposal for requirements includes an information summary, core plan, response zone appendices, clarification of which elements are necessary for a minimum consistency with the NCP and applicable ACP, and a separate training section. We also proposed to allow use of an Integrated Contingency Plan (ICP) to provide flexibility, in recognition that railroads may additionally be subject to the OSRP requirements of other agencies.  We also added requirements to describe the railroad's response management system which will help clarify the roles of responders and require use of National Incident Management System (NIMS) and Incident Command System (ICS) for common response terminology.  Use of a common terminology is also necessary for the railroad to be able to certify compliance with the NCP and ACP.  The importance of describing the management response system and use of NIMS was highlighted by first responders in the "Crude Oil Rail Emergency Response Lessons Learned Roundtable Report." We further request questions on whether the Qualified Individual (QI) should be trained to the Incident Commander level or whether requiring training in use of plan is sufficient.
      We further note that use of dispersants is generally not authorized by the NCP or ACP for use on inland oil discharges.  We specify that the plans must identify the procedures to obtain any required federal and state authorization for using alternative response strategies such as in-situ burning and/or chemical agents as provided for in the applicable ACP and subpart J of 40 CFR part 300.  We disagree with commenters that requirements for dispersants should be further addressed by DOT.
	For equipment testing and drills, we proposed requirements which harmonize with OPS.  Specifically, we agree with commenters who recommended the National Preparedness for Response Exercise Program (PREP) as the appropriate standard for drills.  On April 11, 2016, USCG announced that the updated 2016 PREP Guidelines have been finalized and are now publicly available.  These updates included broadening Section 5 of the PREP Guidelines to allow for the inclusion of other DOT/PHMSA-regulated facilities, such as rail. USCG, EPA, BSEE, and OPS require operators to carry out response plan exercises, or periodic testing that affirms whether the response plans are implementable.  Response exercises validate the effectiveness of plans, and ensure any deficiencies or shortcomings in their implementation are discovered and fixed via exercise after action reports, instead of during a worst-case discharge.
	We disagree with commenters who recommend adopting requirements which are duplicative of other regulations, such as shipping paper manifest information or the proposed information sharing requirements.  As described in greater detail in Section II, Subsection D ("Related Actions"), on April 17, 2015 PHMSA and FRA issued notices and a safety advisory notice reminding and clarifying shippers and railroads of their existing obligations to provide certain information during transportation and after incidents.
	We agree with commenters that highlighting the need to address adverse weather conditions is important for both response activities and under the statutory requirements.  Therefore, we have added a definition for adverse weather, and clarified that equipment must be suitable for adverse weather conditions and planning must incorporate adverse weather preparedness.
	We agree with commenters that strengthening the communication requirements is important.  Recent incidents and input from first responders in the "Crude Oil Rail Emergency Response Lessons Learned Roundtable Report" highlight the need for better communication procedures.  Our proposed changes once again are similar to the OPS, as well as the AAR and ASLRRA, by specifying the need to provide checklists which clarify the order and type of notification to be provided.
            Overall, our proposed changes build on the existing framework for OSRPs both in the current regulations and the requirements by other federal agencies.  The proposed requirements provide greater specificity than the current requirements, but still allow sufficient flexibility for railroads to tailor the requirements to the unique needs of their organizations and the diverse routes covered by their plans.  Most importantly, the proposed changes clarify the need for better communication, identification of resources, and information.

 D.	Approval of Comprehensive Oil Spill Response Plans
	In the ANPRM, PHMSA asked the public if any costs would be incurred in submitting comprehensive OSRPs to the Federal Railroad Administration (FRA).  In addition, PHMSA asked if other federal agencies with responsibilities under the NCP should review or comment on rail carriers' comprehensive OSRPs.  In sum, these questions inquire about the comprehensive OSRP approval process and consequently, the agency that would have the authority to process rail carriers' submissions of comprehensive OSRPs.
	In general, industry stakeholders requested that there be one approving federal agency for comprehensive OSRPs, citing concerns about costs, security, and the clarity of the approvals process.  In general, environmental groups, government representatives and other commenters supported additional oversight, including oversight or review by federal agencies, states, SERCs, LEPCs, and/or the public.  Commenters also had different suggestions as to which federal agency should ultimately fulfill the responsibilities of approval.
	For example, AFPM has stated, "...only one agency should ultimately review and comment on a completed comprehensive OSRP.  Review by multiple agencies is both duplicative and time-consuming...PHMSA is the appropriate agency to provide review...[and] there are concerns that a multi-agency review may increase the security risk of OSRPs being disseminated to individuals or groups who should not be privy to this information."
	Without expressing support for a particular agency to approve comprehensive OSRPs, API has submitted a similar comment, stating, "[w]hile other agencies, such as USCG and EPA, can offer useful guidance on the process and administration of OSRPs, they should not necessarily comment on the specific aspects that relate to rail operations. Federal multiagency review would...likely be an administrative burden for DOT that could be bureaucratically prohibitive to developing an OSRP process that should be implemented in a reasonable time frame."
	AAR also holds that only one federal agency should ultimately be responsible for the approval process, but suggests that FRA be the agency that undertakes this.  On behalf of its member railroads, AAR states, "[t]he railroads offer that OSRPs should...be submitted only to FRA, as primary regulator for rail safety issues, for review."  AAR further specifies that PHMSA already has rail-specific regulations that stipulate FRA enforcement responsibilities.
	Some commenters have given considerations related to the approval process itself.  DGAC states, "...if prior FRA approval is required before shipments can be made, serious and costly economic impacts could be expected.  Delays in shipments would have a significant negative economic impact on the U.S. economy."  Thus, DGAC also acknowledges the notion of FRA approval, but suggests that the approval process should have a regulatory mechanism to allow for shipments of crude oil while the approval process is pending.
	States and environmental organizations highlighted the importance of approval as a requirement under the statute.  For example, Washington State Department of Ecology (Ecology), the Washington State Department of Fish and Wildlife (WDFW), and the Washington State Department of Natural Resources (DNR) stated "33 USC 1321(j) expressly requires the President to review and approve the oil spill response plans."  The Delaware Riverkeeper Network, however, similarly stated: "approval of these plans [comprehensive OSRPs] should be required before transport of petroleum oil products is permitted."  In addition, this commenter has suggested that plans should be submitted to, reviewed, and approved by FRA.  Safety consultant John Joeckel highlighted NTSB's Safety Recommendations R-14-01 through R-14-03 to the FRA Administrator on January 23, 2014 which stated,
            [a]lthough 49 CFR 130.31 requires comprehensive response plans to be submitted to the FRA, there is no provision for the FRA to review and approve plans, which calls into question why these plans are required to be submitted.  The FRA would be better prepared to identify deficient response plans if it had a program to thoroughly review and approve each plan before carriers are permitted to transport petroleum oil products.  In comparison to other DOT regulations for oil transportation in pipelines, an operator may not handle, store, or transport oil in a pipeline unless it has submitted a response plan for PHMSA approval.  The NTSB strongly believes there must be an equivalent level of preparedness across all modes of transportation to respond to major disasters involving releases of flammable liquid petroleum products.

	California's Office of Spill Prevention Response and Washington State's Department of Ecology also reaffirmed the statute's requirement to approve plans and along with partner commenters within these states, have stated that either PHMSA or FRA could be responsible for plan review and approval.
	Commenters have suggested that the approval process include review by several federal agencies.  For example, safety consultant John Joeckel has said that OSRPs should be submitted to PHMSA for review and approval, with additional review and comments by the USCG, EPA, and appropriate individual States.  The Center for Biological Diversity states, "EPA and USCG should not only review the OSRPs, but PHMSA should require coordination with those agencies through a specific consultation and approval process."
	With an emphasis on NEPA and the Endangered Species Act, Harvard Law School's Emmett Environmental Law and Policy Clinic, along with partner commenters, have suggested that FRA's "review of draft OSRPs should include public participation under NEPA and the ESA... Similarly, under Section 7 of the ESA, an agency must consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service when it authorizes a private action."
	Thus, several commenters have advised that the review and approval of comprehensive OSRPs include multiple federal agencies, such as the USCG, EPA, PHMSA, FRA, the U.S. Fish and Wildlife Service, and/or the National Marine Fisheries Service.
	Some commenters suggested that state-based approval processes be adopted.  For example, the League of California Cities has stated, "...in California, there are regional OSPRs that are coordinated through the state.  Railroads' OSPRs should also be coordinated and consistent with state and regional plans."  Similarly, several members of the concerned public, such as Daniel Wiese, Jared Howe, and Mary Ruth and Phillip Holder, have recommended that the authority for plan approval be granted to states.
	In regard to state-based approval processes, some commenters have proposed that state approval be coordinated through SERCs, TERCs, and/or LEPCs.  For example, King County, WA has recommended that the "OSRP be developed in consultation...with [the] SERC or other appropriate state delegated entity," and the City of Seattle has asked that SERCs and LEPCs "have the opportunity to review and comment on the OSRPs."  Other commenters have noted that SERCs, TERCs, LEPCs and/or other local emergency responders should be provided with the plans, but do not specify whether this type of coordination between rail carriers and these entities would explicitly become part of the plan approval process.  For more information regarding the distribution of plans for purposes of disclosure, preparedness, and implementation, please see the comment summaries and discussion within Section V, Subsection E ("Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans").
	Other commenters from the concerned public and departments within city and state governments highlighted state legislation related to oil spill response plans and request that PHMSA provide assurance that such legislation will not be preempted by this rule. Joint comments from the Washington State DNR, Ecology, and WDFW stated "This clearly preserves state authority to adopt requirements for response plans from railroads. PHMSA's rulemaking should confirm this understanding in its Federalism analysis." Specific commenters have proposed that cities or local governments are considering developing permitting processes to require review and comment on OSRPs at this level.  The City of Seattle has stated that the "City of Seattle is developing a new Right of Way Term Permitting process to be applied to expired railroad franchise agreements...and enables local jurisdictions with Rail  -  Arterial Right of Way impacts to better enforce public safety, environment, and liability issues such as making review and approval of the OSRPs for High Hazard Flammable Trains a mandatory requirement...Unfortunately, until federal legislation is passed requiring all railroad companies to develop and submit OSRPs to municipalities for review, this process will be difficult to enact and enforce."  For further discussion of preemption issues, please see the Section VIII, Subsection C ("Executive Order 13132").
	Some commenters have indicated that the general public should be allowed to review and comment on OSRPs and as a result, be involved in the plan approval process.  Harvard Law School's Emmett Environmental Law and Policy Clinic, along with partner commenters, have recommended that plan approval include a "robust public participation process."  This commenter continues, "[t]o this end, the regulations should require the publication of draft OSRPs followed by a period for public comment upon them."
	Commenters have suggested terms of validity for plan approval.  Safety consultant John Joeckel, in particular, has suggested that the plans be approved for a period of five years.  Commenters have also explained that plans should be re-submitted in the event of any significant changes.

Discussion of Comments: Approval of Plans
	We agree with industry commenters that mandating multiagency approval could cause undue delays, burdens, and security risks.  Furthermore, 33 U.S.C. 1321 (j)(5)(E) requires a plan that meets the minimum  requirements to be approved.  Therefore, we disagree with the premise that mandating multi-agency or public participation would provide enough value in an explicit approval process to justify the increased burden and potential delay.  Furthermore, the resources for mandatory consultation with other agencies and public participation could potentially divert resources from safety activities. However, we encourage the comments of Federal, State, and local agencies and tribal authorities addressing the proposed requirements for the development of OSRPs.
	As FRA is the agency which has delegated authority to approve oil spill response plans for rail tank cars, we are proposing FRA as the sole agency required to approve railroad comprehensive oil spill response plans.  Under 33 U.S.C. 1321 (j)(5)(D)(vi), spill response plans must "be resubmitted for approval of each significant change."  However, we agree with commenters that ensuring plan consistency with the NCP and ACP is important.  We are clarifying that FRA may consult with the EPA or the USCG, if needed.  This may be necessary to facilitate the needs of the Federal On-Scene Coordinator, such as verifying compliance with elements related to consistency with the NCP or ACP.  This also aligns with the requirements for plan approval under PHMSA OPS.
	The current requirements for plan submission are under § 130.31(b)(6), which requires comprehensive plans to be "submitted, and resubmitted in the event of any significant change, to the Federal Railroad Administrator."  Under 33 U.S.C. 1321 (j)(5)(E), guidelines for review and approval by the President are specified when "any response plan submitted under this paragraph for an onshore facility that, because of its location, could reasonably be expected to cause significant and substantial harm to the environment by discharging into or on the navigable waters or adjoining shorelines or the exclusive economic zone."  As discussed previously in the background section of this document, the President's authority to approve plans was delegated to the Secretary of Transportation and then to the Federal Highway Administration and the Federal Railroad Administration (FRA) for motor carriers and railroads, respectively.  USCG, EPA, BSEE, and PHMSA Office of Pipeline Safety (OPS) were delegated the authority to regulate and approve plans for their respective facility types.  However, we agree with commenters that ensuring plan consistency with the NCP and ACP is important.  We are clarifying that FRA may consult with the EPA or the USCG, if needed.  This may be necessary to facilitate the needs of the Federal On-Scene Coordinator, such as verifying compliance with elements related to consistency with the NCP or ACP.  This also aligns with the requirements for plan approval under PHMSA OPS.
	 As requested by commenters, we are further clarifying the submission and approval procedures to align with both the statute and other federal agencies.  AAR and ASLRRA submitted proposed regulatory text with many similarities to PHMSA OPS requirements.  We have proposed to adopt many requirements similar to the OPS submission and approval under sections 194.119 and 194.121.  Among other changes, we are clarifying that electronic copies are the preferred format.  At this time, railroads may mail copies of plans contained on CD-ROMs, USB flash drive, or similar electronic formats.  FRA may make other versions of electronic submission available in the future.  We are requiring railroads to review plans every five years, or after an incident requiring use of the plan occurs.  Plans must also be updated if a significant change occurs.  Significant changes must be approved by FRA.  Significant changes are those that affect the operation of the plan, such as establishment of a new railroad route not covered by the previously approved plan, or changing the name of the emergency response organizations identified in the plan.
	In accordance with both the statute and requests from commenters, we have clarified the process for railroads to respond to alleged deficiencies in the plan identified by FRA and to allow railroads to continue to operate after they have submitted the plan and are awaiting approval decision.  We are further clarifying that railroads may follow the existing procedures under section 209.11 in the FRA regulations to request confidential treatment for documents filed with the agency, provided the information is exempt by law from public disclosure (e.g., exempt from the mandatory disclosure requirements of the Freedom of Information Act (5 U.S.C. 552), required to be held in confidence by 18 U.S.C. 1905).  Under this process, FRA retains the right to make its own determination in this regard.  Therefore, this change clarifies the process to comply with existing laws and confidential treatment will not be extended to other information in the plan which is not currently exempt under other existing laws.  PHMSA provides similar procedures for similar requests for confidential treatment of documents under § 105.30.  Overall, the proposed requirements help create an equivalent level of safety for petroleum oil across all facility types.

E.	Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans
      In the ANPRM, PHMSA asked the public the following question: "Should PHMSA require that the basic and/or the comprehensive OSRPs be provided to State Emergency Response Commissions (SERCs), Tribal Emergency Response Commissions (TERCs), Fusion Centers, or other entities designated by each state, and/or made available to the public?"  Commenters submitted a variety of comments regarding the distribution of OSRPs and relayed ideas about which entities should be provided with or provided access to comprehensive OSRPs.  This distribution might include SERCs, TERCs, Fusion Centers, other state entities, or the general public.
	The majority of commenters support the distribution of OSRPs to SERCs or other emergency response organizations.  Among the commenters in support are: the National Fire Protection Association (NFPA); the Department of Law, City of Chicago; LRT-Done Right; the Center for Biological Diversity; NASTTPO; the Riverfront Park Association; the Delaware Riverkeeper Network; the Flathead Basin Commission; King County, WA; New York State Department of Transportation; OHMERC; The Response Group; the Village of Barrington, IL and the TRAC Coalition; Washington State; the Waterkeeper Alliance; and the Solano County Department of Resource Management.  In general, these commenters hold that SERCs should have the plans and could oversee the transmission of plan information to emergency response organizations within cities, counties, or other localities.  These commenters emphasize that emergency responders would benefit from having the plan so as to prepare more effectively for rail accidents involving crude oil.
	Other commenters have expressed support for the distribution or disclosure of OSRPs to SERCs or other appropriate emergency response organizations, but expressed concerns about security risks and the distribution or disclosure of OSRPs to the general public.  Among these commenters are: AFPM, AAR, and ASLRRA.
	With regard to security concerns, AFPM has said, "[a]lthough communications are vital...SSI [sensitive security information] should be disclosed to only a limited group of people on a "need to know" basis...Broader dissemination raises significant security concerns in light of the possible targeting of rail by terrorist and others."  AAR and ASLRRA have provided a similar comment on this issue, stating, "[i]f required by DOT to share very specific OSRP information with the SERCs, the railroads are concerned that a potential bad actor would be able to obtain the information...Releasing to the public the worst case scenarios and the available response resources and equipment in the OSRPs could provide a bad actor with key information crucial to planning environmental terrorism activities."  Thus, while acknowledging the potential value of distributing OSRPs, industry commenters have expressed security concerns and advised there should be limitations imposed on the distribution of OSRPs and certain types of information (i.e., SSI).
	AAR and ASLRRA have also articulated that the distribution of OSRPs, even to bona fide emergency response organizations such as SERCs, could result in further dissemination to the general public.  Regarding this point, AAR and ASLRRA have referred to the example of Emergency Order Docket No. DOT-OST-2014-0067, which required railroads to make crude oil routing information available to SERCs.  AAR states, "[w]hile the railroads do not believe it was DOT's intention, the EO has often resulted in the information it requires railroads to disclose to SERCs being made publically available."  AFPM has voiced similar concerns.  Thus, according to some industry stakeholders, security concerns would remain even if the distribution of OSRPs were limited to SERCs or other appropriate emergency response organizations.
	Other commenters have stated that OSRPs would or would not be restricted due to security concerns.  The Waterkeeper Alliance has communicated, "[i]n our view, this data should not be restricted...Furthermore, the data should not be deemed a security issue, nor should there be any restrictions placed on intra-government dissemination of the data.  This data is vital to the public welfare...To keep these train movements secret would directly endanger the public."  Hence, some commenters disagree that distributing or disclosing OSRPs would entail security concerns.
	Commenters have also relayed that the entities developing OSRPs may have rights of confidentiality (i.e., OSRPs are "proprietary").  In relating the context of the State of California, the Office of Spill Prevention and Response has stated, "[i]n California, the oil spill contingency plans submitted to OSPR are available for public review by law, but a plan submitter can request that a portion of a plan that is proprietary or is a trade secret can be designated accordingly."
	On the issue of confidential business rights, other commenters have stated that OSRPs should or would not be confidential business information.  Accordingly, Harvard Law School's Emmett Environmental Law and Policy Clinic, along with partner commenters, have said, "[m]andatory disclosure only to federal officials, as is currently the case, is inadequate given that state and local authorities will usually be the first responders to an accident and bear the burden of ensuring preparedness and the consequences of failing to do so.  PHMSA should also mandate public disclosure of OSRPs.  The contents of such plans will not be...confidential business information."
	Thus, many commenters suggested that OSRPs be made available to the public.  For example, the Delaware Riverkeeper Network has commented, "[t]hese plans should also be made available to the public via an easily accessible web platform.  The website should include everything interested parties need or want to know and everything an emergency response team would want to tell them."  Other commenters have supported making OSRPs available to the general public, such as: the Riverfront Park Association; the Center for Biological Diversity; the Waterkeeper Alliance; and Harvard Law School's Emmett Environmental Law and Policy Clinic.
	A few commenters have agreed that plans can be made available to the public, but clarified that this disclosure would include only non-SSI material.  Accordingly, New York State has commented, "[r]elease of the non-security sensitive portions of these plans to the public can also be accommodated using the policies already established for the Area Contingency Plans established by OPA 90."  Therefore, disclosure to the public need not include entire copies of comprehensive OSRPs.
	On this topic, a safety consultant, John Joeckel stated, "I do not see the need to have the Comprehensive OSRPs available to the public as long as the local responding agencies have the necessary information contained in the OSRP, e.g., the response zone/geographic zone appendices containing notification procedures, response resource availability, etc."  Thus, commenters have also identified that the disclosure of comprehensive OSRPs may not be necessary, irrespective of whether the information within OSRPs is deemed to be SSI or confidential.
	Some commenters have asked that the distribution of plans involve processes beyond the provision of OSRPs to appropriate emergency response entities.  For example, the Oklahoma OHMERC has said, "[t]he delivery should be more than mailing a plan to the LEPC, the railroad should present the plan in person so that local emergency response planners and responders have the opportunity to ask questions and discuss roles under the OSRP."  In addition, the Delaware Riverkeeper Network has expressed that "meetings should be used to educate community members about evacuation plans and how to access up-to-date information in the event of an emergency."  Further, The Response Group has asked that railroad companies be required to "follow the precepts that PHSMA expects pipeline companies to follow and align those requirements...[with] API RP 1162."   Thus, multiple commenters have stated that plan distribution should involve more than the provision of OSRPs to specific entities; it could also include meetings with local communities, as well as presentations delivered to local emergency responders.

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

F.	Comprehensive Oil Spill Response Plan Costs
	In the ANPRM, PHMSA asked the public what costs the regulated community would incur in order to: (1) develop comprehensive OSRPs; (2) remove or remediate discharges; and (3) conduct training, drills and equipment testing.  PHMSA also asked about commenters' assumptions and requested that commenters provide detailed estimates.
	With regard to plan development costs, two commenters provided estimates of labor costs; however, PHMSA did not receive any detailed cost estimates.  The majority of commenters chose to emphasize other considerations that they deemed to be relevant in estimating the costs of OSRPs.
	AAR and ASLRRA, in particular, have stated that PHMSA would need to supply more information about plan requirements in order to develop detailed cost estimates.  AAR states, "[w]ithout further guidance from PHMSA...the railroads are unable to provide more specific cost estimates."  However, as a general estimate, AAR and ASLRRA estimate that a "petroleum crude oil spill response plan, without equipment cost included, could cost a railroad anywhere from $100,000  -  $500,000."
	Other commenters provided general cost estimates for plan development.  For example, the Response Group has stated that labor would cost $100 per hour and that a new plan would require approximately 120 hours of work.  This yields $12,000 as the labor cost component of the overall plan development costs per railroad.  John Joeckel, a safety consultant, has offered another estimate, stating that an individual railroad's "core" plan would cost approximately $31,000.  This estimate includes: 250 labor hours, compensated at $115 per hour, and $2,250 in printing and administration costs.  The commenter has also estimated that the "core" plan would need to be supplemented by "geographic response zone appendices," which would require 50 labor hours, compensated at $115 per hour, and $250 in printing and miscellaneous costs.  Thus, the development of the response zone appendices would add at least an additional $6,000 to overall plan development costs, yielding $37,000 in total.  While it is not clear if $6,000 in costs would be incurred for the development of each additional response zone appendix, this commenter has clarified that each railroad will need a different number of response zone appendices, since some railroads have extensive track networks and other rail carriers (e.g., Short Lines and Regional Railroads) do not.
	As previously stated, several commenters did not supply cost estimates but chose to draw attention to other considerations, such as the estimated cost of cleaning up oil spills.  For example, the Delaware Riverkeeper Network has articulated, "[t]he costs incurred to create and implement a comprehensive OSRP...should be considered the cost of doing business, and are minimal when compared to the costs incurred to clean up and attempt to remedy crude rail accidents.  For example, in 2013, over 1.15 million gallons of crude oil were spilled in over 35 accidents, and clean-up costs of one accident alone are estimated to total at least $180 million."  In addition, a concerned member of the public has said, "[f]or consideration of costs (see advance notice items 4, 5, and 6), the agency should include costs to communities and their economies from crude oil spills."
	In addition to AAR and ASLRRA, other commenters have expressed that they were not certain of the costs of developing a comprehensive OSRP.  For example, New York State has asked PHMSA to "ascertain cost estimates."  Similarly, other commenters have communicated that, while they are uncertain of the plan development costs that railroads would face, pipeline oil spill response plans are likely to be analogous in some respects.  To that effect, the City of Seattle has commented, "[w]hile we do not have the information necessary to know what costs the railroads and shippers may incur for developing the comprehensive OSRPs, we know that there are current pipeline response plans through the U.S.  While they do not directly apply to rail activities, portions of these existing plans are applicable and will provide the railroad industry with a head start toward a comprehensive plan."  Thus, multiple commenters have expressed some uncertainty regarding the costs of developing a comprehensive OSRP.
	Some commenters have stated that the cost of developing a comprehensive OSRP would be "nominal" or "not significant" since railroads are already compliant with many of the current OSRP requirements under part 130, including the requirements for a basic OSRP.  For example, the Oregon Department of Environmental Quality has said, "[m]ost railroad companies currently have basic oil spill response plans. Many of these plans already identify additional equipment and personnel available to them by contract or other approved means. These companies have also identified the equivalent of a qualified individual. Rail companies should not incur significant costs in developing comprehensive OSRPs."  Similarly, NASTTPO has stated, "[a]ssuming the rail carriers are already doing a compliant basic OSRP, the incremental cost should be nominal."  Further, the City and County of Denver, Office of Emergency Management and Homeland Security, as well as the OHMERC, have expressed their support of the comments by NASTTPO.  However, these commenters did not supply additional information to clarify the threshold at which costs could be considered "significant" or "nominal."
	In addition to asking the public about plan development costs, PHMSA inquired about the costs incurred to remove discharges.  PHMSA asked about the placement of equipment along the track, the types of equipment needed to remove or contain discharges, and the maximum time needed to contain a worst-case discharge.  Some commenters have suggested maximum response times, as well as limited cost estimates, but overall the comments received lack detail and do not identify the range of costs that would be incurred to remove discharges.  In addition, commenters have specified some types of equipment, such as containment booms, work boats, skimmers, and foam concentrate, but the commenters' listing of equipment does not appear to be exhaustive.
	With regard to discharge removal, AAR and ASLRRA have stated that equipment costs can be substantial.  Without providing detailed cost information, AAR has cited that deploying a single containment boom could cost $15,000.  AAR has not included other information regarding the costs of response resources and equipment.
	Safety consultant John Joeckel has identified a variety of potential costs that might be incurred in removing discharges. On this issue, Mr. Joeckel has stated, "[c]osts will either be directly capitalized by the rail operator for company owned resources to inventory, for membership dues increases for a cooperative to purchase and stockpile resources or for increased "retainer" fees from contractors that will charge the rail operator for their listing as a contracted resource in the OSRP."  In addition, Mr. Joeckel clarifies, "there are substantial resources already available throughout the nation in many areas, including locations in near proximity to rail trackage, so it is not necessarily a given that any new response requirements will automatically result in the need to purchase and stockpile and thus won't necessarily entail new significant costs for the railroad industry."  Further, this commenter has stated that response resources for discharge removal are generally "secondary" to the resources that would be necessary for ensuring public safety immediately following an incident, such as foam, foam application systems, and "toxic emission plume monitoring" equipment.  As a result, this commenter has suggested that planning standards for response resources should allow for the "cascading" of resources, or in other words, a "tiered" response wherein some types of equipment are required at the site of an incident before others.
	NASTTPO has not specified any types of equipment or cost estimates, but has offered relevant assumptions regarding planning and the use of response resources.  The commenter states, "[w]e presume that rail carriers should be able to mobilize contract responders to any point on their system within 4-6 hours dependent on weather. Contractors that provide such services are common and the trucking industry along with insurance carriers routinely pre-contract for these services."  Thus, according to this commenter and partner commenters, contracting for response resources is "routine" and as a result, industry stakeholders should be able to identify response providers and are aware of the costs involved.
	New York State and the Oregon Department of Environmental Quality have emphasized that discharge removal and other response resources must be allocated according to a risk analysis.  New York State, in particular, has suggested that the 27 factors that railroads use for routing analyses (under § 172.820) could serve as a way to identify "the areas of highest vulnerability or...areas that have impediments to access for first responders."  In addition, this commenter has provided estimates for foam concentrate, stating, "[t]he cost for 600 or more gallons of Class B foam concentrate estimated as necessary for fire control and post-fire vapor suppression for an incident involving a single DOT-111 rail car carrying crude oil, pursuant to the flow rates identified in NFPA II, exceeds $23,000 at current New York State Contract pricing. Combined with the costs of the apparatus needed to apply "finished" foam onto a fire or spill, the estimated cost can total $40,000 or more per unit."  Consequently, the potential high cost of response equipment underscores the commenter's emphasis on risk analyses to determine equipment allocation along train routes.
	The City of Seattle has estimated $20,000 as the cost of air monitoring and personal protection equipment (PPE).  The commenter states that these costs are not currently budgeted by Seattle Public Utilities, which, according to the commenter, is one of the city's agencies that would respond to an incident.
	The Delaware River and Bay Oil Spill Advisory Committee has offered estimates of the capital investments needed to prepare for a "debris mission."  The commenter states, "the capital cost to stand up a floating debris collection mission could be in the range of $14 million to $21 million."  According to the commenter, city or state authorities would undertake these capital investments, so it is not clear if these costs would be included in cost estimates for a comprehensive OSRP.
	With respect to the costs of cleaning up oil spills, The League of California Cities has stated, "[m]ost importantly, these plans [OSRPs] should provide for the obligation to pay for recovery, including all required clean-up."  Other commenters have communicated that the costs of discharge removal are "minimal" and are the "cost of doing business."  Thus, these commenters seek to stress that the costs to communities that experience an oil spill can be large and must be considered alongside the costs to implement OSRPs.