[Federal Register Volume 84, Number 40 (Thursday, February 28, 2019)]
[Rules and Regulations]
[Pages 6910-6952]
[FR Doc No: 2019-02491]

Vol. 84

Thursday,

No. 40

February 28, 2019

Part III

 Department of Transportation

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 Pipeline and Hazardous Materials Safety Administration

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49 CFR Parts 107, 130, 171, et al.

 Hazardous Materials: Oil Spill Response Plans and Information Sharing
for High-Hazard Flammable Trains (FAST Act); Final Rule

Federal Register / Vol. 84 , No. 40 / Thursday, February 28, 2019 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107, 130, 171, 173, and 174

[Docket No. PHMSA-2014-0105 (HM-251B)]
RIN 2137-AF08

Hazardous Materials: Oil Spill Response Plans and Information
Sharing for High-Hazard Flammable Trains (FAST Act)

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

ACTION: Final rule.

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SUMMARY: PHMSA, in consultation with the Federal Railroad
Administration and pursuant to the Fixing America's Surface
Transportation Act (FAST Act) of 2015, issues this final rule to revise
and clarify requirements for comprehensive oil spill response plans
(COSRPs) and to expand their applicability based on petroleum oil
thresholds that apply to an entire train consist. Specifically, this
final rule: Expands the applicability for COSRPs; modernizes the
requirements for COSRPs; requires railroads to share information about
high-hazard flammable train (HHFT) operations with State and tribal
emergency response commissions to improve community preparedness; and
incorporates by reference a voluntary standard. The amendments in this
final rule will provide regulatory flexibility and improve response
readiness to mitigate effects of rail accidents and incidents involving
petroleum oil and HHFTs.

DATES:
    Effective date: This final rule is effective as of April 1, 2019.
    Voluntary compliance date: PHMSA is authorizing voluntary
compliance beginning February 28, 2019.
    Delayed compliance date: Unless otherwise specified, compliance
with the amendments adopted in this final rule is required beginning
August 27, 2019.
    Incorporation by reference: The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of April 1, 2019.

ADDRESSES: Information about this rulemaking (Docket Number PHMSA-2014-
0105) is available at the Federal eRulemaking Portal: http://www.regulations.gov, or at DOT's Docket Operation Office: Room W12-140
on the ground floor of the West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Alexander Wolcott,<PHONE_NUMBER>,
Standards and Rulemaking Division, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001; or Mark Maday, (202) 493-
0479, Office of Safety Assurance and Compliance, Federal Railroad
Administration, U.S. Department of Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms

AAR Association of American Railroads
ACP Area Contingency Plan
AFPM American Fuel & Petrochemical Manufacturers
ANPRM Advance Notice of Proposed Rulemaking
ANSI American National Standards Institute
API American Petroleum Institute
ASLRRA American Short Line and Regional Railroad Association
ASTM ASTM International
BSEE Bureau of Safety and Environmental Enforcement
CFR Code of Federal Regulations
COSRP Comprehensive Oil Spill Response Plan
Crude Oil Petroleum crude oil
CWA Clean Water Act (see Federal Water Pollution Control Act)
DHS U.S. Department of Homeland Security
DOE U.S. Department of Energy
DOI U.S. Department of the Interior
DOT U.S. Department of Transportation
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning and Community Right-to-Know Act
ESA Environmentally Sensitive/Significant Area
FAST Act Fixing America's Surface Transportation Act of 2015
FEMA Federal Emergency Management Agency
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
FRA Federal Railroad Administration
FRP Facility Response Plan
FRSA Federal Railroad Safety Act
FWPCA Federal Water Pollution Control Act (see Clean Water Act)
GIUE Government Initiated Unannounced Exercises
GRP Geographic Response Plan
HHFT High-Hazard Flammable Train
HMR Hazardous Materials Regulations (see 49 CFR parts 171-180)
HMT Hazardous Materials Table (see 49 CFR 172.101)
HMTA Hazardous Materials Transportation Act
IAFC International Association of Fire Chiefs
IBP Initial Boiling Point
ICS Incident Command System
ICP Integrated Contingency Plan
IMT Incident Management Team
LEPC Local Emergency Planning Committee
MPMS API Manual of Petroleum Measurement Standards
NASTTPO National Association of SARA Title III Program Officials
NCP National Contingency Plan
NFPA National Fire Protection Association
NIMS National Incident Management System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC Federal On-Scene Coordinator
OSRO Oil Spill Removal Organization
OSRP Oil Spill Response Plan
PG Packing Group
PHMSA Pipeline and Hazardous Materials Safety Administration
PREP National Preparedness for Response Exercise Program
RCP Regional Contingency Plan
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RP Recommended Practice
RSPA Research and Special Programs Administration
SACP Sub-Area Contingency Plans
SERC State Emergency Response Commission
SSI Sensitive Security Information
TERC Tribal Emergency Response Commission
TRANSCAER Transportation Community Awareness and Emergency Response
TSA Transportation Security Administration
TTCI Transportation Technology Center Inc.
U.S.C. United States Code
USCG United States Coast Guard
USFA United States Fire Administration

Table of Contents

I. Executive Summary
    A. Comprehensive Oil Spill Response Plans
    B. HHFT Information Sharing Notification for Emergency Response
Planning
    C. Initial Boiling Point Test
II. Background
    A. Oil Spill Response Plans
    B. HHFT Information Sharing Notification for Emergency Response
Planning
    C. Initial Boiling Point Test
III. Recent Spill Events
IV. National Transportation Safety Board Safety Recommendations
V. Summary and Discussion of Public Comment
    A. Overview of NPRM Comments
    B. Summary of Oil Spill Response Plans Comments
    C. Summary of HHFT Information Sharing Notification Comments
(Sec.  174.312)
    D. Summary of Initial Boiling Point Test Comments (Sec.
173.121)
VI. Incorporated by Reference

VII. Section-by-Section Review
VIII. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
    C. Executive Order 13771
    D. Executive Order 13132
    E. Executive Order 13175
    F. Regulatory Flexibility Act, Executive Order 13272, and DOT
Policies and Procedures
    G. Paperwork Reduction Act
    H. Executive Order 13211
    I. Unfunded Mandates Reform Act
    J. Executive Order 13609 and International Trade Analysis
    K. Environmental Assessment
    L. Regulation Identifier Number (RIN)
    M. Privacy Act
    List of Subjects

I. Executive Summary

    The Pipeline and Hazardous Materials Safety Administration (PHMSA),
in consultation with the Federal Railroad Administration (FRA), issues
this final rule to improve oil spill response readiness and mitigate
effects of rail accidents and incidents involving petroleum oil and
high-hazard flammable trains (HHFTs). See 49 CFR 171.8 for definition.
This final rule is necessary due to expansion in U.S. energy production
having led to significant challenges for the country's transportation
system. PHMSA is finalizing this rule in accordance with sections 7302
and 7307 of the FAST Act, Public Law 114-94, and the Consolidated
Appropriations Act of 2018, division L, title I, Public Law 115-141.
    On July 29, 2016, PHMSA, in consultation with FRA, published a
Notice of Proposed Rulemaking (NPRM) under the same title as this final
rule (81 FR 50068). The NPRM proposed regulations in three areas:
Comprehensive oil spill response plans (COSRPs), HHFT information
sharing, and incorporation of an initial boiling point test for
determination of light hydrocarbons in stabilized petroleum crude oils.
Overall, this final rule adopts the requirements proposed in the NPRM
with minor changes for plain language or clarification in consideration
of the comments received to the NRPM. The estimated costs and benefits
for this final rule are described in Table 1 below:

       Table 1--10 Year and Annualized Costs (in Millions) and Benefits by Stand-Alone Regulatory Proposal
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                                                               Benefits  (7%)
                     Provision                      -----------------------------------        Costs  (7%)
                                                        Qualitative       Breakeven
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Oil Spill Response Planning and Response...........            Cost-effective   10-Year: $21.4.
                                                      Improved          if this         Annualized: $3.1.
                                                      Communication/    requirement
                                                      Defined Command   reduces the
                                                      Structure may     consequences
                                                      improve           of oil spills
                                                      response.         by 6.7%.
                                                      Pre-
                                                      identified
                                                      Access to
                                                      Equipment and
                                                      Staging of
                                                      Appropriate
                                                      Equipment for
                                                      Response Zones.
                                                      Trained
                                                      Responders..
Information Sharing................................            Cost-effective   10-Year: $3.7.
                                                      Improved          if this         Annualized: $0.53.
                                                      Communication.    requirement
                                                                reduces the
                                                      Enhanced          consequences
                                                      Preparedness..    of oil spills
                                                                        by 1.2%.
IBR of ASTM D7900..................................            N/A............  No Cost Estimated.
                                                      Regulatory
                                                      Flexibility.

                                                      Enhanced
                                                      Accuracy in
                                                      Packing Group
                                                      Assignments..
                                                                                -------------------------
    Total..........................................  ................  Cost-effective   10-Year: $25.2.
                                                                        if this         Annualized: $3.6.
                                                                        requirement
                                                                        reduces the
                                                                        consequences
                                                                        of oil spills
                                                                        by 7.8%.
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A. Comprehensive Oil Spill Response Plans

    This final rule adopts the requirements for COSRPs as proposed in
the NPRM. The COSRP requirements are promulgated under the authority of
the Oil Pollution Act of 1990 (OPA 90), Public Law 101-380, which
amended the Federal Water Pollution Control Act (FWPCA), also known as
the Clean Water Act (CWA), at 33 U.S.C. 1321. Table 2 below summarizes
the applicable statutory requirements for COSRPs, the requirements
adopted in this final rule, and the differences between the
requirements adopted in this final rule and the proposals of the NPRM:

                             Table 2--COSRPs
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                               HM-251B final rule       HM-251B NPRM
 OSRP statutory requirements   COSRP requirements        differences
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 33 U.S.C. 1321(j)(5)(A)(i)      49 CFR part 130       49 CFR part 130

The President shall issue     Restructures part     Minimal
 regulations which require     130 to create         clarification and
 an owner or operator of a     subpart C for         plain language
 tank vessel or facility       COSRPs.               wording changes
 described in paragraph       Responds to            between NPRM and
 (j)(5)(C) to prepare and      commenter requests    final rule
 submit to the President a     to better align       throughout all
 plan for responding, to the   COSRPs with minimum   sections in
 maximum extent practicable,   requirements for      response to
 to a worst-case discharge,    other federally       comments.
 and to a substantial threat   mandated (Oil Spill  NPRM proposed that
 of such a discharge, of oil   Response Plans)       FRA would be
 or a hazardous substance.     OSRPs, especially     responsible for
                               those for pipelines   approving COSRPs,
                               in 49 CFR part 194.   and final rule
                               Requires PHMSA to     consolidates DOT's
                               approve COSRPs.       OSRP approval under
                                                     PHMSA.

                                 Sec.   130.105        Sec.   130.104
                                                      renumbered as Sec.
                                                            130.105

                              Provides general      Minimal. Clarifies
                               requirements for      COSRPs with only
                               recordkeeping, plan   one response zone
                               format, and           do not need to
                               information about     include separate
                               response structure.   ``core plan''
                              Permits use of         section.
                               Integrated           Adds greater
                               Contingency Plan      flexibility by
                               (ICP) and State       permitting use of
                               plans providing       State plans that
                               equivalent level of   provide equivalent
                               coverage.             protection.

 33 U.S.C. 1321(j)(5)(C)(iv)     Sec.   130.100        Sec.   130.101
                                                      renumbered as Sec.
                                                            130.100

An onshore facility [e.g.     Expands current       Minimal. Clarifies
 rolling stock] \1\ that,      applicability         COSRP are only
 because of its location,      (42,000 gallons of    required for routes
 could reasonably be           oil in a single       used to transport
 expected to cause             package) to also      applicable
 substantial harm to the       include route         quantities of oil.
 environment by discharging    segments which are
 into or on the navigable      used for:
 waters, adjoining             At least 20
 shorelines, or the            cars of liquid
 exclusive economic zone.      petroleum oil in a
                               continuous block or
                               35 cars of liquid
                               petroleum oil in a
                               train consist.
                               For
                               example, tank cars
                               containing crude
                               oil, fuel oil,
                               petroleum
                               distillates,
                               diesel, or gasoline
                               must be included
                               when counting cars
                               in the consist.
                               Mixtures that do
                               meet the criteria
                               for Class 3
                               flammable or
                               combustible
                               material in Sec.
                               173.120, or
                               containing residue
                               as defined in Sec.
                                171.8 of
                               subchapter C, are
                               not required to be
                               included when
                               determining the
                               number of tank cars
                               transporting liquid
                               petroleum oil.
                               Examples of
                               petroleum oils
                               which may not meet
                               the definition of a
                               Class 3 flammable
                               or combustible
                               liquid include
                               diluted waste water
                               and certain mineral
                               oils.

 33 U.S.C. 1321(j)(5)(D)(i)   Sec.  Sec.   130.105     Sec.   130.103
                                   and 130.110        renumbered as Sec.
                                                            130.110

Be consistent with the        Requires              Minimal. Clarifies
 requirements of the           certification that    railroads are
 National Contingency Plan     the plan is           identifying
 (NCP) and Area Contingency    consistent with a     Environmentally
 Plans (ACP).                  list of specific      Sensitive Areas
                               NCP/ACP               (ESAs) from
                               requirements for      existing Area or
                               ``minimum             Regional
                               compliance'' to       Contingency Plans.
                               clarify the
                               elements of NCP/ACP
                               applicable to rail
                               shipments.
 33 U.S.C. 1321(j)(5)(D)(ii)  Sec.  Sec.   130.120     Sec.  Sec.
                                   and 130.125          130.104 and
                                                        130.105
                                                        renumbered as
                                                        Sec.  Sec.
                                                        130.120 and
                                                        130.125,
                                                        respectively

Identify the qualified        Requires              Minimal. Clarifies
 individual having full        identification of     that communication
 authority to implement        Qualified             between Qualified
 removal actions, and          Individual for each   Individuals and
 require immediate             response zone in      appropriate Federal
 communications between that   quickly accessible    officials and
 individual and the            information           persons providing
 appropriate Federal           summary. Requires     response personnel
 official and the persons      immediate             and equipment, must
 providing personnel and       communication         be immediate.
 equipment pursuant to         between Qualified
 clause.                       Individual and
                               appropriate Federal
                               official and the
                               persons providing
                               personnel and
                               equipment.
                              Requires plan
                               include a checklist
                               of necessary
                               notifications,
                               contact
                               information, and
                               necessary
                               information to
                               clarify procedures..

33 U.S.C. 1321(j)(5)(D)(iii)  Sec.  Sec.   130.105     Sec.  Sec.
                                   and 130.130          130.102 and
                                                        130.106
                                                        renumbered as
                                                        Sec.  Sec.
                                                        130.105 and
                                                        130.130,
                                                        respectively

Identify, and ensure by       Includes the          Minimal. Clarifies
 contract or other means       establishment of      railroads determine
 approved by the President     response zones, to    the boundaries of
 the availability of,          ensure availability   each response zone,
 private personnel and         of personnel and      provided resources
 equipment necessary to        equipment in          are identified with
 remove to the maximum         different             appropriate
 extent practicable a worst-   geographic route      planning framework.
 case discharge (including a   segments. Requires    Clarifies use of
 discharge resulting from      planning framework    U.S. Coast Guard
 fire or explosion), and to    for response zones    (USCG) guidelines
 mitigate or prevent a         including ensuring    for determining and
 substantial threat of such    resources are         evaluating required
 a discharge.                  staged within 12      response resources
                               hours at any part     during the response
                               of the applicable     in accordance with
                               route                 appendix C of 33
                              Includes               CFR part 154.
                               requirements to
                               identify
                               organization,
                               personnel,
                               equipment, and
                               deployment location
                               thereof capable of
                               removal and
                               mitigation for a
                               worst-case
                               discharge (WCD).
                               Allows use of Oil
                               Spill Removal
                               Organization (OSRO)
                               which has been
                               classified by the
                               United States Coast
                               Guard under 33 CFR
                               154.1035 or
                               155.1035 to be used
                               in lieu of listing
                               personnel and
                               equipment.

 33 U.S.C. 1321(j)(5)(D)(iv)     Sec.   130.135...     Sec.   130.107
                                                        renumbered as
                                                        Sec.   130.135

Describe the training.......  Requires              Minimal. Clarifies
                               certification and     Incident Command
                               documentation         System (ICS)
                               employees have been   incident commander
                               trained in carrying   level training is
                               out their             recommended best
                               responsibilities      practice.
                               under the plan.

 33 U.S.C. 1321(j)(5)(D)(iv)     Sec.   130.140...     Sec.   130.108
                                                        renumbered as
                                                        Sec.   130.140

Describe . . . equipment      Requires description  Minimal. Edits
 testing.                      and certification     section number and
                               equipment testing     title.
                               meets the
                               manufacturer's
                               minimum
                               requirements.

 33 U.S.C. 1321(j)(5)(D)(iv)     Sec.   130.140...     Sec.   130.108
                                                        renumbered as
                                                        Sec.   130.140

Describe . . . periodic       Requires exercises    Minimal. Updates
 unannounced drills.           to be equivalent to   USCG website
                               the PREP Guidelines.  address and
                                                     replaces term
                                                     ``drill'' with
                                                     ``exercise.''

 33 U.S.C. 1321(j)(5)(D)(iv)     Sec.   130.130...     Sec.   130.106
                                                        renumbered as
                                                        Sec.   130.130

Describe . . . response       COSRPs describe:      Minimal. Adds a
 actions of persons on the     Activities    reference to
 vessel or at the facility.    and                   appendix C of 33
                               responsibilities of   CFR part 154 to
                               railroad personnel    clarify the
                               prior to arrival of   equivalent planning
                               Qualified             standards to use of
                               Individual;.          OSROs classified
                               Qualified     under 33 CFR
                               Individual's          154.1035 and
                               responsibilities      155.1035.
                               and actions; and.
                               Procedures
                               coordinating
                               railroad/Qualified
                               Individual actions
                               with On-Scene
                               Coordinator (OSC)..

 33 U.S.C. 1321(j)(5)(D)(v)      Sec.   130.150        Sec.   130.109
                                                      renumbered as Sec.
                                                            130.150

Be updated periodically.....  Clarifies plans       Minimal. In response
                               should be reviewed    to commenters, this
                               every 5 years, when   final rule
                               significant           clarifies that
                               information           railroads may
                               changes, or after a   operate for two
                               discharge requiring   years upon
                               plan activation       submission of
                               ocurs.                response plan to
                                                     PHMSA and
                                                     certification of
                                                     appropriate
                                                     resources, for
                                                     better consistency
                                                     with the CWA.

   33 U.S.C. 1321(j)(5)(E)       Sec.   130.150...     Sec.   130.111
                                                      renumbered as Sec.
                                                            130.150

(1) With respect to any       Requires approval of  Minimal. NPRM
 response plan submitted       plans by PHMSA        proposed FRA
 under this paragraph for an   provided minimum      approve railroad
 onshore facility that,        requirements for      COSRPs. Final rule
 because of its location,      the plan are met.     consolidates DOT's
 could reasonably be                                 approval of OSRPs
 expected to cause                                   under PHMSA. As
 significant and substantial                         with other PHMSA
 harm to the environment by                          programs and
 discharging into or on the                          procedures, PHMSA
 navigable waters or                                 will continue to
 adjoining shorelines or the                         work with FRA for
 exclusive economic zone,                            guidance on rail
 and with respect to each                            specific
 response plan submitted                             information and
 under this paragraph for a                          procedures,
 tank vessel, nontank                                including shared
 vessel, or offshore                                 review and
 facility, the President                             enforcement.
 shall--                                             Clarifies method to
                                                     submit plans in
                                                     electronic format.
    (i) promptly review such
     response plan;
    (ii) require amendments
     to any plan that does
     not meet the
     requirements of this
     paragraph;
    (iii) approve any plan
     that meets the
     requirements of this
     paragraph;
(2) A tank vessel, nontank       Sec.   130.100     Sec.   130.101 moved
 vessel, offshore facility,   Prohibits                 to Sec.  Sec.
 or onshore facility           transportation of     130.100 and 130.150
 required to prepare a         oil subject to       Minimal. Edits the
 response plan under this      COSRPs unless         section numbering
 subsection may not handle,    requirements for      and title for plain
 store, or transport oil       submission, review,   language.
 unless--                      and approval in
                               Sec.   130.150 are
                               met and the
                               railroad is
                               operating in
                               compliance with the
                               plan.
    (i) in the case of a
     tank vessel, nontank
     vessel, offshore
     facility, or onshore
     facility for which a
     response plan is
     reviewed by the
     President under
     paragraph (1), the plan
     has been approved by
     the President; and
    (ii) the vessel or
     facility is operating
     in compliance with the
     plan

(3) Notwithstanding              Sec.   130.100     Sec.   130.111 moved
 paragraph (1), the           Allows railroads to     to Sec.   130.100
 President may authorize a     temporarily          Minimal. PHMSA
 tank vessel, nontank          continue operating    receives plans.
 vessel, offshore facility,    for up to 2 years     Clarifies temporary
 or onshore facility to        while waiting for     continuation are
 operate without a response    plan approval,        limited to 2 years
 plan approved under this      provided the plan     per statutory
 paragraph, until not later    has been submitted    language.
 than 2 years after the date   to PHMSA and the
 of the submission to the      railroad submits a
 President of a plan for the   signed
 tank vessel, nontank          certification
 vessel, or facility, if the   statement of
 owner or operator certifies   appropriate
 that the owner or operator    resources..
 has ensured by contract or
 other means approved by the
 President the availability
 of private personnel and
 equipment necessary to
 respond, to the maximum
 extent practicable, to a
 worst-case discharge or a
 substantial threat of such
 a discharge.
------------------------------------------------------------------------

B. HHFT Information Sharing Notification for Emergency Response
Planning
---------------------------------------------------------------------------

    \1\ ``Onshore facility'' means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind located
in, on, or under, any land within the United States other than
submerged land. 33 U.S.C. 1321(a)(10).
---------------------------------------------------------------------------

    This final rule adopts the requirements for HHFT information
sharing as proposed in the NPRM, with clarification for plain language
and modifications in response to commenters. The information sharing
notification requirements are promulgated under the authority of
Federal hazardous materials transportation law (49 U.S.C. 5101-5128).
Table 3 below summarizes the advanced notification information sharing
requirements mandated by the Fixing America's Surface Transportation
(FAST) Act of 2015 and adopted in this final rule.

                    Table 3--Information Sharing Notification for Emergency Response Planning
----------------------------------------------------------------------------------------------------------------
                                               FAST Act (advanced notification)  Final rule HM-251B (information
                    Topic                        Section 7302(a)(3), (4), (6)        sharing) 49 CFR 174.312
----------------------------------------------------------------------------------------------------------------
Who is subject?                                Class I railroads transporting    All railroads transporting HHFT
                                                HHFT (20 cars in a block, 35 in   (20 cars in a block, 35 in
                                                consist carrying ANY Class 3      consist carrying ANY Class 3
                                                flammable liquid).                flammable liquid).
Who must the railroads notify?                 Railroads must notify State       Railroads must notify SERCs,
                                                Emergency Response Commissions    Tribal Emergency Response
                                                (SERCs), who must provide the     Commissions (TERCs), or other
                                                notification information (and     appropriate State designated
                                                updates) to any political         entities who share information
                                                subdivision of a State or         with appropriate local
                                                public agency responsible for     authorities, upon their
                                                emergency response or law         request.
                                                enforcement, upon request of
                                                the political subdivision or
                                                public agency.
What security measures are required?           Required security and             If the disclosure includes
                                                confidentiality protections       information that railroads
                                                include protections from the      believe is security sensitive
                                                public release of proprietary     or proprietary and exempt from
                                                information or security-          public disclosure, the
                                                sensitive information, to         railroads should indicate that
                                                prevent the release to            in the notification.
                                                unauthorized persons.
What to include in the notification?           A reasonable estimate of the      A reasonable estimate of the
                                                number of implicated trains       number of HHFTs that are
                                                that are expected to travel,      expected to travel, per week,
                                                per week, through each county     through each county within the
                                                within the applicable state.      state.
                                               Identification of the routes      The routes over which the
                                                over which such liquid will be    affected trains will be
                                                transported.                      transported.
                                               Identification and a description  A description of the materials
                                                of the Class 3 flammable liquid   shipped and applicable
                                                being transported on such         emergency response information
                                                trains and applicable emergency   required by subparts C and G
                                                response information, as          of part 172 of this
                                                required by regulation.           subchapter.
                                               A point of contact at the Class   At least one point of contact
                                                I railroad responsible for        at the railroad (including
                                                serving as the point of contact   name or email address, title,
                                                for State emergency response      phone number, and address) for
                                                centers and local emergency       the SERC, TERC, and relevant
                                                responders related to the Class   emergency responders related
                                                I railroad's transportation of    to the railroad's
                                                such liquid.                      transportation of affected
                                                                                trains.
When/how often?                                Update the notifications prior    Updates the notification for
                                                to making any material changes    changes in volume greater than
                                                to any volumes or frequencies     25 percent.
                                                of HHFTs traveling through a
                                                county. `Material changes' in
                                                Emergency Order means changes
                                                greater than 25%.
How are records maintained?                    Requires notification             Notification may be provided
                                                ``consistent with the             electronically or in writing.
                                                notification content              Railroads provide the
                                                requirements in Emergency Order   notification to DOT upon
                                                Docket No. DOT-OST-2014-0067''.   request.

What COSRP Information must be included?       N/A.............................  For petroleum oil trains
                                                                                subject to the COSRP in part
                                                                                130, includes the contact
                                                                                information for Qualified
                                                                                Individual and the response
                                                                                zone description from the
                                                                                COSRP.
----------------------------------------------------------------------------------------------------------------

C. Initial Boiling Point Test

    The NPRM proposed to incorporate by reference ASTM International's
(ASTM) D7900, ``Standard Test Method for Determination of Light
Hydrocarbons in Stabilized Crude Oils by Gas Chromatography'' related
to initial boiling point for crude oils containing light hydrocarbons
as an acceptable testing alternative to the boiling point tests
specified in the current regulations. This ASTM standard is referenced
by the industry best practice, American National Standards Institute
(ANSI)/American Petroleum Institute (API) Recommended Practices 3000,
``Classifying and Loading of Crude Oil into Rail Tank Cars,'' First
Edition, September 2014.
    This final rule incorporates the test method by reference as
proposed under the authority of Federal hazardous materials
transportation law (49 U.S.C. 5101-5128). This final rule clarifies
that initial boiling point, when determining the boiling distribution
using ASTM D7900, is the temperature at which 0.5 weight percent is
eluted. Inclusion of this additional boiling test option provides
regulatory flexibility and promotes enhanced safety in transport
through accurate Packing Group (PG) assignment.

II. Background

    Expansion in U.S. energy production has led to significant
challenges for the country's transportation system. Traditionally,
pipelines and oceangoing tankers have delivered most crude oil to U.S.
refineries, accounting for approximately 93 percent of total receipts
(in barrels) in 2012.\2\ Although other modes of transportation--rail,
barge, and truck--have accounted for a relatively minor portion of
crude oil shipments historically, volumes have risen rapidly in the
2010s relative to previous decades.\3\ The rail transportation of large
volumes of crude oil and other petroleum products presents unique
safety risks. Rail accidents have tracked changes in production and
rail shipments of crude oil-- rising when rail shipments increase in
volume and falling when crude oil volumes fall according to FRA and
PHMSA incident report data. Please see the RIA for further discussion
and a graph of oil-by-rail shipments and derailments. This final rule
will improve response readiness and mitigate effects of rail accidents
and incidents by instituting information sharing requirements for HHFTs
and COSRP requirements for petroleum oil trains.
---------------------------------------------------------------------------

    \2\ Bureau of Transportation Statistics, ``Crude Oil and
Petroleum Products Transported in the United States by Mode.'' U.S.
Department of Transportation. Last modified 01/2018. https://www.bts.gov/content/crude-oil-and-petroleum-products-transported-united-states-mode.
    \3\ U.S Energy Information Administration. ``Petroleum and Other
Liquids.'' Independent Statistics and Analysis. Last modified 08/
2018. https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_ZAMN-ZAMN_MBBL&f=M.
---------------------------------------------------------------------------

    DOT reached out to stakeholders in industry, emergency response,
and State and tribal governments through various forums and events to
better understand and increase community awareness and preparedness for
response to bulk transportation incidents involving energy products. In
May 2014, PHMSA published the ``Crude Oil Rail Emergency Response
Lessons Learned Roundtable Report,'' which outlined key factors that
were identified by a panel of fire chiefs and emergency response
management officials as having a direct impact on success in managing
the outcomes of a crude oil transportation incident.\4\ More
information about DOT's actions related to community awareness of and
preparedness for response to bulk transportation incidents involving
energy products is available on PHMSA's ``Safe Transportation of Energy
Products'' website.\5\
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    \4\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training.
    \5\ https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview.
---------------------------------------------------------------------------

A. Oil Spill Response Plans

    The Oil Pollution Act of 1990 (OPA 90) amended the Federal Water
Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA),
at 33 U.S.C. 1321 by adding oil spill response planning requirements
for ``facilities'' that handle oil. Railroads or ``rolling stock'' are
included in the definition of ``onshore facility.'' \6\ The CWA
requires owners and operators of onshore facilities to prepare and
submit Oil Spill Response Plans (ORSPs) for facilities that ``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.'' The CWA directs the President to issue
regulations requiring owners and operators of onshore oil facilities to
develop, submit, update and in some cases obtain approval of OSRPs
meeting certain minimum requirements in 33 U.S.C. 1321(j)(5).
---------------------------------------------------------------------------

    \6\ ``Onshore facility'' means any facility (including, but not
limited to, motor vehicles and rolling stock) of any kind located
in, on, or under, any land within the United States other than
submerged land.'' 33 U.S.C. 1321(a)(10). ``Rolling stock'' refers to
rail cars.
---------------------------------------------------------------------------

    On October 22, 1991, the President delegated authority to the
Secretary of Transportation to regulate certain transportation-related
facilities (i.e., motor carriers and railroads) under sections
1321(j)(1)(C) and 1321(j)(5) of the CWA. See E.O. 12777, 56 FR 54757,
sections 2(b)(2) and 2(d)(2). The Secretary later delegated this
authority to PHMSA's predecessor agency, the Research and Special
Programs Administration (RSPA). PHMSA's delegated authority under
sections 1321(j)(1)(C) and 1321(j)(5) for certain transportation-
related facilities (i.e., motor vehicles and rolling stock) is solely
the authority to promulgate regulations. When required, COSRPs are
submitted to the Federal Highway Administration or the FRA, for motor
carriers and railroads, respectively.
    On June 17, 1996, RSPA published a final rule carrying out its
delegated authority under the CWA for motor carriers and railroads.\7\
The 1996 final rule established ``comprehensive plans'' under the
authority of 33 U.S.C. 1321(j)(5) for anyone transporting oil in a
quantity greater than 1,000 barrels or 42,000 gallons per package. The
1996 final rule also adopted requirements in part 130 for the
preparation of ``basic plans'' for containers with a capacity of

3,500 gallons or more carrying petroleum oil. Basic plans were adopted
as a ``containment rule pursuant to Sec.  1321(j)(1)(C)'' of the CWA
and therefore do not meet the minimum requirements for OSRPs in section
1321(j)(5).\8\
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    \7\ 61 FR 30533 (June 17, 1996).
    \8\ 61 FR 30537 (June 17, 1996).
---------------------------------------------------------------------------

    A rail tank car designed to carry liquid materials, including
petroleum oil, has an approximate capacity of 30,000 gallons. Because
the typical rail tank car has a capacity around 30,000 gallons, no rail
carriers are currently transporting tank cars of petroleum oil subject
to the 42,000-gallon packaging threshold for COSRPs adopted by the 1996
final rule. On July 6, 2013, an unattended, runaway unit train carrying
crude oil from the Bakken region of North Dakota derailed in the town
of Lac-M[eacute]gantic, Quebec. The incident resulted in loss of life
and destruction of property and the environment. The cause was found to
be human error that led to the unattended train gathering speed before
derailing near the center of Lac-M[eacute]gantic. While an OSRP may not
have prevented this incident, the Lac-M[eacute]gantic incident prompted
examination into the safety of crude oil transportation by rail. The
National Transportation Safety Board (NTSB) recommended requiring
COSRPs for unit trains of petroleum in Safety Recommendation R-14-005.
Congress also directed DOT to develop and report on a plan to finalize
updated requirements for OSRPs in section 7307 of the FAST Act.
Additionally, in the Consolidated Appropriations Act of 2018, signed
into law on March 23, 2018, Congress directed the Secretary to ``issue
a final rule to expand the applicability of comprehensive oil spill
response plans.''
    On July 29, 2016, PHMSA, in consultation with FRA, published an
NPRM titled ``Oil Spill Response Plans and Information Sharing for
High-Hazard Flammable Trains.'' The NPRM proposed to modernize COSRP
requirements under 49 CFR part 130 in response to NTSB recommendations
(including Safety Recommendation R-14-005), the FAST Act, and comments
from the public to an August 1, 2014, Advance Notice of Proposed
Rulemaking (ANPRM) (79 FR 45079). PHMSA also proposed the requirements
to address needs identified by first responders in the ``Crude Oil Rail
Emergency Response Lessons Learned Roundtable Report'' and challenges
identified through analysis of recent spill events.\9\
---------------------------------------------------------------------------

    \9\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training.
---------------------------------------------------------------------------

    Specifically, the NPRM proposed to expand COSRPs to routes over
which railroads operate a single train containing 20 or more tank cars
loaded with liquid petroleum oil in a continuous block or a single
train containing 35 or more tanks cars loaded with liquid petroleum oil
throughout the train consist.
    The NPRM also proposed to update the COSRP requirements in response
to comments requesting greater specificity to plan contents through a
closer alignment to other Federal OSRP regulations promulgated under
the CWA. The proposed requirements in the NPRM are similar to PHMSA's
Office of Pipeline Safety's (OPS) requirements for pipeline oil spill
response plans in 49 CFR part 194. Developing OSRPs for both pipeline
and rail require planning for routes spanning large geographic areas.
The NPRM proposed railroads divide their routes into ``response zones''
that connect notification procedures and available response resources
to the specific geographic area for the covered route segments.
Response zones include geographic information, such as a planning
framework, which ensures response resources are staged within 12 hours
of any point along the route. The NPRM requested comments on providing
regulatory flexibility for small businesses, requiring faster response
times in certain ``High Volume Areas,'' and recommending that the
Qualified Individual should be trained to the Incident Commander level
using the Incident Command System (ICS).

B. HHFT Information Sharing Notification for Emergency Response
Planning

    Federal hazardous materials transportation law (49 U.S.C. 5101-
5128) authorizes the Secretary to ``prescribe regulations for the safe
transportation, including security, of hazardous material in
intrastate, interstate, and foreign commerce.'' The Secretary delegates
this authority to PHMSA under 49 CFR 1.97(b). PHMSA is responsible for
overseeing a hazardous materials safety program that minimizes the
risks to life and property inherent in the transportation of hazardous
materials in commerce. The Hazardous Materials Regulations (HMR; 49 CFR
parts 171-180) include operational requirements applicable to
transportation of hazardous materials by highway, rail, aircraft, and
vessel. The Secretary also has authority over all areas of railroad
transportation safety (Federal railroad safety laws, principally 49
U.S.C. chapters 201-213); this authority is delegated to FRA under 49
CFR 1.89. FRA promulgates and enforces a comprehensive regulatory
program (49 CFR parts 200-244) and inspects and audits railroads, tank
car facilities, and hazardous material offerors for compliance with
both FRA's regulations and the HMR. Because of the shared role in the
safe and secure transportation of hazardous materials by rail, PHMSA
and FRA work closely when considering regulatory changes. The agencies
take a system-wide, comprehensive approach consistent with the risks
posed by the bulk transport of hazardous materials by rail.
    On May 7, 2014, the Secretary, under the authority of 49 U.S.C.
5121(d), issued an Emergency Restriction/Prohibition Order in Docket
No. DOT-OST-2014-0067 (Order).\10\ The Order requires each railroad
transporting 1 million gallons or more of Bakken crude oil in a single
train in commerce within the United States to provide certain
information in writing to the State Emergency Response Commission
(SERC) for each state in which it operates such a train. Tribal
Emergency Response Commissions (TERCs) are permitted to coordinate with
the appropriate SERC(s) for access to data supplied under this
Emergency Restriction/Prohibition Order.\11\ The Order also requires a
railroad to provide SERCs information about the type of oil, volume,
route, and emergency response procedures, as well as appropriate
railroad contact information. It also requires railroads to provide
SERCs updated notifications prior to any ``material change'' in the
volume of affected trains and provide copies of notifications made to
each SERC to FRA upon request. DOT subsequently issued a document
compiling frequently asked questions (FAQs) to clarify several aspects
of the Order.\12\
---------------------------------------------------------------------------

    \10\ https://www.regulations.gov/document?D=DOT-OST-2014-0067-0001.
    \11\ https://www.regulations.gov/document?D=DOT-OST-2014-0067-0003.
    \12\ See document number 0003 in Docket No. DOT-OST-2014-0067.
---------------------------------------------------------------------------

    On October 3, 2014, FRA published ``Proposed Agency Information
Collection Activities; Notice and Request for Comments'' (79 FR 59891)
to provide additional analysis of the requirements of the Order. FRA
consulted with DOT, the U.S. Department of Homeland Security (DHS), and
the Transportation Security Administration (TSA), and determined the
information required by the Order was not commercially sensitive or
Sensitive Security Information (SSI) as defined by DOT, DHS, or TSA
regulations. Id. at 59892. FRA further noted that DOT found no basis to

conclude that the public disclosure of the information is detrimental
to transportation safety.
    In the May 8, 2015, final rule ``Hazardous Materials: Enhanced Tank
Car Standards and Operational Controls for High-Hazard Flammable
Trains'' (HM-251 final rule), PHMSA decided against adopting an earlier
proposal to codify the specific requirements of the Order for railroads
transporting 1 million gallons or more of crude oil originating in the
Bakken region, and instead adopted similar requirements more easily
integrated into the HMR that achieved the desired result.
    On May 28, 2015, PHMSA announced plans to extend the Order
indefinitely and to consider options for codifying the disclosure
requirement on a permanent basis after further evaluating the issue
within DOT.\13\ PHMSA recognized the desire for local communities to
receive proactive notification of hazardous materials moving through
their cities and towns. PHMSA noted that transparency is critical to
DOT's comprehensive approach to safety and expressed support for the
public disclosure of this information to the extent allowed by
applicable State, local, and tribal laws.
---------------------------------------------------------------------------

    \13\ https://www.phmsa.dot.gov/news/phmsa-notice-regarding-emergency-response-notifications-shipments-petroleum-crude-oil-rail.
---------------------------------------------------------------------------

    On December 4, 2015, the FAST Act was signed into law. The FAST Act
includes the ``Hazardous Materials Transportation Safety Improvement
Act of 2015'' at sections 7001 through 7311, which provides direction
for the hazardous materials safety program. Section 7302 directs the
Secretary to issue regulations to require (1) real-time sharing of the
electronic train consist information for hazardous materials shipments;
and (2) advanced notification of HHFTs. DOT has initiated a separate
rulemaking to address the requirements of section 7302(a)(1) related to
real-time electronic train consists. Docket No. PHMSA-2016-0015 (HM-
263).\14\
---------------------------------------------------------------------------

    \14\ https://www.regulations.gov/docket?D=PHMSA-2016-0015.
---------------------------------------------------------------------------

    Section 7302(a)(3) of the FAST Act directs DOT to promulgate
regulations requiring advanced notification consistent with
notification content requirements of the Order. The FAST Act expands
the Order to require Class I railroads to provide advanced notification
and information on HHFTs to each SERC. The FAST Act requires SERCs
receiving this advanced notification to provide the information to law
enforcement and emergency response agencies upon request. The FAST Act,
in section 7302(a)(6), also directs the Secretary to establish security
and confidentiality protections for electronic train consist
information and advanced notification information.
    In response to the FAST Act and DOT's commitment to codifying the
Order, PHMSA proposed information sharing notification requirements in
the ``Hazardous Materials: Oil Spill Response Plans and Information
Sharing for High-Hazard Flammable Trains (HM-251B)'' NPRM published
July 29, 2016. The NPRM proposed that all railroads transporting HHFTs
notify SERCs, Tribal Emergency Response Commissions (TERCs), or other
State-delegated agencies with information consistent with the Order.
The NPRM proposed that the notification include key information from
COSRPs, when applicable.
    The intent of these requirements is to ensure that local emergency
responders and emergency response planning officials have access to
sufficient information regarding the movement of HHFTs in their
jurisdictions to adequately plan and prepare for emergency events
involving HHFTs. This purpose is reaffirmed by the FAST Act's
requirements for sharing and protection of information required by the
advanced notification. Under the Emergency Planning and Community
Right-to-Know Act (EPCRA) in title III of the Superfund Amendments and
Reauthorization Act of 1986 (SARA), the Governor of each state is
required to establish a SERC. The SERC is responsible for establishing
emergency planning districts and appointing, supervising, and
coordinating Local Emergency Planning Committees (LEPCs). For federally
recognized tribal governments, the Chief Executive Officer of the Tribe
appoints a Tribal Emergency Response Commission (TERC), as designated
by the Environmental Protection Agency (EPA) in a final rule published
July 26, 1990 (55 FR 30632). TERCs have the same responsibilities as
SERCs. On July 26, 1990, EPA published a final rule designating Indian
Tribes and their chief executive officers as the implementing
authorities for EPCRA on all Indian lands.
    The NPRM proposed to protect information by allowing railroads to
indicate information they ``believe is security sensitive or
proprietary and exempt from public disclosure.'' Previous analysis by
DOT, FRA, and DHS concluded that the aggregated information required to
be shared by railroads does not qualify for withholding under Federal
standards for business confidential information or SSI; however, as
noted in FRA's previous discussion of this matter in its October 2014
Information Disclosure Notice, State laws control, and may limit, the
disclosure and dissemination of this information.\15\ Therefore, the
NPRM acknowledged that states may differ in their methods and proposed
an approach intended to provide flexibility for SERCs, TERCs, and other
State-delegated agencies to disseminate information in accordance with
state laws and procedures. As proposed, before fulfilling a request for
information and releasing the information, the States and Tribes will
be on notice of which information the railroads consider to be
inappropriate for public release.
---------------------------------------------------------------------------

    \15\ 79 FR 59892 (June 30, 2014).
---------------------------------------------------------------------------

C. Initial Boiling Point Test

    The offeror's responsibility to classify and describe a hazardous
material is a key requirement under the HMR. Improper classification
and failure to identify applicable material properties can have
significant negative impacts on transportation safety. Proper
classification is necessary to ensure proper packaging, operational
controls, and hazard communication requirements are met, all of which
are important to mitigate the negative effects of a train derailment or
other hazardous materials incident. It is an offeror's responsibility
to accurately classify and describe a hazardous material. For
transportation purposes, classification is ensuring the proper hazard
class, packing group, and shipping name are assigned to a material. To
determine whether a hazardous material should be classified as Class 3
Flammable liquid, as well as determine the appropriate packing group,
the HMR require testing for the material's flash point and initial
boiling point (IBP) under Sec. Sec.  173.120 and 173.121.
    The American National Standards Institute (ANSI) recognized
recommended practice includes guidance on the material
characterization, transport classification, and quantity measurement
for overfill prevention of petroleum crude oil for the loading of rail
tank cars (see API RP 3000, ``Classifying and Loading of Crude Oil into
Rail Tank Cars''). For crude oils containing volatile, low molecular
weight components (e.g., light ends), the industry recommended best
practice for IBP is to test using ASTM D7900. The initial boiling
point, when determining the boiling distribution using ASTM D7900, is
the temperature at which 0.5

weight percent is eluted. The ASTM D7900 differs from the boiling point
tests currently in the HMR in that it is the only test that ensures a
minimal loss of light ends; however, the ASTM D7900 is not currently
included in the list of testing methods authorized in the HMR in Sec.
173.121(a)(2).
    In this final rule, PHMSA is adopting the NPRM's proposal to
incorporate by reference the ASTM D7900 test method identified within
API RP 3000, thus permitting use of this IBP industry best practice.
The incorporation of the ASTM D7900, which aligns with the API RP 3000,
will not replace the currently authorized initial boiling point testing
methods. Rather, it will serve as a testing alternative if one chooses
to use that method. PHMSA believes this provides flexibility and
promotes enhanced safety in transport through accurate packing group
assignment.

III. Recent Spill Events

    PHMSA collected and reviewed information from various sources
pertaining to recent derailments involving discharges of petroleum oil.
In this rulemaking and the accompanying analysis, PHMSA has focused on
the following derailments: Mosier, OR (June 2016); Watertown, WI
(November 2015); Culbertson, MT (July 2015); Heimdal, ND (May 2015);
Galena, IL (March 2015); Mt. Carbon, WV (February 2015); La Salle, CO
(May 2014); Lynchburg, VA (April 2014); Vandergrift, PA (February
2014); New Augusta, MS (January 2014); Casselton, ND (December 2013);
Aliceville, AL (November 2013); and Parkers Prairie, MN (March 2013).
In the Regulatory Impact Analysis (RIA), PHMSA provides narratives and
discussion of the circumstances and consequences of these derailments.
Please refer to the rulemaking docket (Docket No. PHMSA-2014-0105) for
the preliminary and final RIA and all supporting documents.
    PHMSA's review of these derailments identified challenges during
oil spill response that occurred in the past and could potentially
occur in future derailment scenarios. PHMSA incorporates this
understanding of response challenges into this rulemaking, which amends
the requirements of 49 CFR part 130, to improve COSRPs by way of new
and revised requirements. Improved oil spill response planning will, in
turn, improve the actual response to future derailments involving
petroleum oil and lessen potential negative effects on communities.

IV. National Transportation Safety Board Safety Recommendations

    This rulemaking partially addresses several recommendations from
the NTSB, as summarized in Table 4:

                      Table 4--NTSB Recommendations Partially Addressed in This Rulemaking
----------------------------------------------------------------------------------------------------------------
                NTSB recommendation                       Recommendation summary        Rulemaking description
----------------------------------------------------------------------------------------------------------------
R-14-002: Issued January 23, 2014..................  Recommends that FRA develop a    Requires PHMSA to approve
                                                      program to audit response        COSRPs for rail.
                                                      plans for rail carriers of
                                                      petroleum products to ensure
                                                      that adequate provisions are
                                                      in place to respond to and
                                                      remove a worst-case discharge
                                                      to the maximum extent
                                                      practicable and to mitigate or
                                                      prevent a substantial threat
                                                      of a worst-case discharge.
R-14-005: Issued January 23, 2014..................  Recommends that PHMSA revise     Revises the spill planning
                                                      the spill response planning      thresholds to address 20
                                                      thresholds contained in 49 CFR   cars of liquid petroleum
                                                      part 130 to require              oil in a continuous block
                                                      comprehensive response plans     or 35 cars of liquid
                                                      to effectively provide for the   petroleum oil in a
                                                      carriers' ability to respond     consist.
                                                      to worst-case discharges
                                                      resulting from accidents
                                                      involving unit trains or
                                                      blocks of tank cars
                                                      transporting oil and petroleum
                                                      products.
R-14-014: Issued August 22, 2014...................  Recommends that PHMSA require    Adopts information sharing
                                                      railroads transporting           requirements for HHFTs.
                                                      hazardous materials through
                                                      communities to provide
                                                      emergency responders and local
                                                      and state emergency planning
                                                      committees with current
                                                      commodity flow data and assist
                                                      with the development of
                                                      emergency operations and
                                                      response plans.
R-14-006: Issued January 23, 2014..................  Recommends that PHMSA require    Adds ASTM D7900 test
                                                      shippers to sufficiently test    method as option to
                                                      and document the physical and    determine boiling point
                                                      chemical characteristics of      of certain crude oil.
                                                      hazardous materials to ensure
                                                      the proper classification,
                                                      packaging, and record-keeping
                                                      of products offered in
                                                      transportation.
----------------------------------------------------------------------------------------------------------------

V. Summary and Discussion of Public Comment

A. Overview of NPRM Comments

    In the NPRM, PHMSA solicited public comment on potential revisions
to regulations that would: Expand the applicability of COSRPs to HHFTs
based on the amount of petroleum oil in an entire train consist, rather
than a single package or tank car; require rail carriers to share
information regarding HHFTs with State authorities; and incorporate by
reference of the ASTM D7900 test method. The NPRM summarized and
discussed comments received in response to questions regarding
potential revisions to the COSRP requirements asked by the earlier
ANPRM. PHMSA received approximately 130 comments in response to the
NPRM. See Table 5 describing commenter backgrounds:

                      Table 5--Commenter Background
------------------------------------------------------------------------
                                                     Description and
      Commenter background            Count        examples of category
------------------------------------------------------------------------
Non-Government Organizations...              35  Environmental groups
                                                  (30), emergency
                                                  response organizations
                                                  (4), and other non-
                                                  governmental
                                                  organizations (1).
Governments....................              19  Local (8), State (9),
                                                  Federal (2).
Private Individuals............              67  Members of the public.
Carrier Industry Stakeholders..               6  Railroads (1) and
                                                  related trade
                                                  associations (5).
Shipper Industry Stakeholders..               4  Shippers (2) and
                                                  petroleum-related
                                                  trade associations
                                                  (2).
------------------------------------------------------------------------

    Most commenters addressed proposed COSRP requirements. COSRP-
related comments comprised four general categories: (1) Reiterating
comments provided to the ANPRM; (2) providing statements of general
support for expanding COSRP requirements; (3) expressing general
concern or requests to require faster response times for response
zones; or (4) recommending additional requirements not proposed by the
NPRM. Many commenters noted the negative impact that a petroleum oil
spill or HHFT derailment would have on their individual communities and
personal property, with most such comments coming from residents of the
Hudson River Valley region. A few commenters provided detailed comments
about specific proposals in the NPRM for COSRPs. Comments related to
COSRPs are further discussed in ``Section V.B. Summary of Oil Spill
Response Plan Comments'' of this final rule.
    PHMSA received approximately 20 comments on the proposed HHFT
information sharing notification requirements. These comments fall into
several categories, including: (1) Applicability; (2) notification
recipients; (3) frequency of notification; and (4) information security
and confidentiality concerns. Comments related to HHFT information
sharing are further discussed in ``Section V.C. Summary of HHFT
Information Sharing Notification Comments'' of this final rule.
    PHMSA received five comments addressing the proposed incorporation
by reference of the ASTM D7900 test method. Comments related to
incorporation by reference are further addressed in ``Section V.D.
Summary of Initial Boiling Point Comments'' of this final rule.
    Additionally, PHMSA received several miscellaneous comments that
voiced general concern about the public health, safety, and/or
environmental risks of petroleum trains and/or fossil fuels. These
comments either did not provide recommendations for regulatory action
or exceeded the scope of PHMSA's authority.

B. Summary of Oil Spill Response Plans Comments

Summary and Response to Basic Spill Response Plan (Sec.  130.31)
Comments
    The current threshold for a basic OSRP is 3,500 gallons of
petroleum oil. Several commenters suggested that basic plans for
packages exceeding this threshold should be eliminated and replaced
with comprehensive oil spill response plans, which would effectively
require a COSRP for all tank-car shipments of petroleum oil. Commenters
suggested basic OSRPs be replaced because they do not meet the minimum
requirements of the CWA in 33 U.S.C. 1321(j)(5)(D). The State of
California Department of Fish and Wildlife, for example, disagreed that
basic OSRPs could be issued under a containment rule pursuant to
section 1321(j)(1)(C).
    The NPRM did not propose changes to the requirements for basic
OSRPs; therefore, this rule does not make such changes. As stated in
the NPRM and the initiating 1996 final rule, the requirements for a
basic OSRP were issued as a ``containment rule pursuant to Sec.
1321(j)(1)(C)'' of the CWA, and therefore were not intended to fulfill
the requirements of 33 U.S.C. 1321(j)(5)(D). The requirements of 33
U.S.C. 1321(j)(5)(D) for OSRPs are promulgated in the requirements for
COSRPs.
Summary of Comments Regarding Applicability of COSRP (Sec.  130.100)
    The NPRM proposed to expand the applicability for COSRPs so that
any railroad that transports a single train carrying 20 or more loaded
tank cars of liquid petroleum oil in a continuous block or a single
train carrying 35 or more loaded tank cars of liquid petroleum oil
throughout the train consist must also have a current, written COSRP.
The NPRM provided an exception for tank cars carrying residue as
defined in Sec.  171.8 of subchapter C or diluted mixtures that do not
meet the definition of a Class 3 flammable or combustible liquid. The
NPRM maintained both the current exception in part 130 for mixtures
that contain less than 10 percent oil by volume and the current
threshold of 42,000 gallons per package for both petroleum oil and non-
petroleum oil.
    PHMSA received approximately 20 comments to the NPRM pertaining to
the applicability of COSRPs. Most of these comments fell into two major
categories: The volume of oil being transported and the type of
materials that trigger COSRPs. Additionally, there were a few comments
pertaining to applicability in response to a question in the NPRM that
asked whether additional relief should be given to small entities, such
as Class II or III railroads.
    While some commenters supported the proposed volume applicability
threshold, many commenters provided alternative suggestions. Most
comments reiterated suggestions regarding applicability provided in
comments responding to the ANPRM. Generally, individuals and
environmental organizations recommended using lower thresholds of
petroleum oil to trigger COSRPs due to environmental concerns, safety
concerns, or interpretations that the CWA requires oil spill response
plans for all rolling stock carrying oil. Several commenters requested
lower applicability thresholds without specifying an alternative
number.\16\ Lower-volume thresholds proposed by commenters ranged from
any amount of oil to 20 rail cars of oil. Commenters suggested
replacing basic plans with COSRPs for packages exceeding 3,500 gallons.
Commenters who suggested a threshold of one tank car--approximately
29,000 gallons--believed that any rail line carrying an oil tank car
should be subject to COSRPs. Commenters that suggested a two-tank car
threshold did so to maintain consistency with the current requirement
of 42,000 gallons in one tank car, but suggested changing the language
to require COSRPs when a train is carrying 42,000 gallons of oil in any
form, not just one tank car. It was also suggested that the 42,000-
gallon threshold be removed outright. The Minnesota Pollution Control
Agency stated that the threshold is not meaningful and seems
``arbitrary and outdated especially when you consider two 30,000-gallon
tank cars pose the same or more risk and are not regulated.''
---------------------------------------------------------------------------

    \16\ See PHMSA-2014-0105-0250, PHMSA-2014-0105-0251, PHMSA-2014-
0105-0252, PHMSA-2014-0105-0253, PHMSA-2014-0105-0256, PHMSA-2014-
0105-0290.
---------------------------------------------------------------------------

    In addition to quantitative applicability comments, PHMSA received
several qualitative applicability comments about the type of oil that
should require a COSRP. Most of these comments were from environmental
groups or private citizens and reiterated comments provided in response
to the ANPRM, without providing additional data. Suggestions for
expanded applicability of COSRPs included all hazardous substances, all
Class 3 flammable liquids or other hazardous materials, all kinds of
oil, or all kinds of liquid petroleum oils (irrespective of hazard
class). Mandating COSRPs for all hazardous substances was suggested by
state agencies and environmental groups, who cited the CWA statute
requirements for hazardous substances, in addition to oil spills per 33
U.S.C. 1321(j)(5). These commenters supported using the Federal On-
Scene Coordinator (OSC) to identify concerns evaluating a plan's
compliance with the statutory and regulatory requirements and expressed
concern about the potential harm from hazardous substances. In
addition, commenters cited some state

plans, such as Minnesota's, in which COSRPs are required for all
hazardous substances. Multiple commenters suggested adding all Class 3
flammable liquids to the materials requiring a COSRP, with
justifications mostly based on environmental or safety concerns.
Commenters also cited ethanol as an example of a Class 3 flammable
material that poses a risk by rail.
    NTSB opposed the exception from the COSRP requirements for unit
trains carrying ``mixtures or solutions of petroleum oil not meeting
the criteria for Class 3 flammable or combustible material.'' NTSB
found use of the term ``mixtures or solutions'' confusing, as petroleum
products are inherently a mixture. NTSB also stated:

    [S]pilled, petroleum products are significant environmental
pollutants, whether or not they are Class 3 flammable or combustible
liquids. In fact, less-flammable petroleum materials that are denser
than water may sink to form emulsions, adhere to sediments, and
produce tar balls that are often more difficult to remove from
waterways than less viscous Class 3 flammable oils.

The Association of American Railroads (AAR) provided comments related
to the identification of petroleum oil subject to the plan. AAR
requested that PHMSA specify which UN or NA identification numbers are
associated with the definition of petroleum oil. AAR suggested
requiring railroads to determine which UN or NA numbers associated with
Class 3 materials further meet the definition of petroleum oil and
create an additional burden on railroads.
    AAR provided comments about the applicability of route segments in
the plans and requested clarification that the COSRP requirements do
not apply to route segments where applicable quantities of oil are not
transported. AAR also suggested ``that plans should be required for
only portions of HHFT routes situated within a half-mile (0.5 miles) of
a navigable waterway'' so that railroads do not need to perform their
own environmental reviews throughout the entire rail network, which
would be overly burdensome. In addition, AAR stated that the use of a
half-mile standard for planning purposes is consistent with existing
standardized planning distances found in 40 CFR part 112, appendix C,
section 5.
    The International Association of Fire Chiefs (IAFC) suggested
revising the applicability proposed in Sec.  130.101 (``Any railroad
which transports a single train transporting . . .''), so as to replace
``transports'' with ``operates'' for ``better flow.''
    In the NPRM, PHMSA asked whether regulatory relief may be
appropriate for certain small businesses (i.e., Class II and III short
lines). Most commenters supported regulations based on the risk,
quantity, and type of oil, regardless of business size. The State of
California Department of Fish and Wildlife expressed concern that the
threshold of 20 tank cars in a unit or 35 tank cars across the consist
would exempt too many short lines from COSRPs. The American Short Line
and Regional Railroad Association (ASLRRA) submitted comments stating
that many Class II and III short lines only operate the first or last
mile of an applicable route and that requiring them to create plans
would be an undue burden. ASLRRA also described scenarios in which the
short line acts as a tenant on track owned by a Class I railroad,
suggesting that Class III railroads should be offered some level of
relief if voluntarily entering into agreement to use a plan created by
the Class I for the route section used by both railroads. ASLRRA
further clarified:

    [This is not to] suggest the host railroad's oil spill response
plan should address the tenant's operations as a matter of
regulatory fiat. Rather, ASLRRA is asking PHMSA to acknowledge that
it is permissible for a tenant railroad to contract with a host
railroad for the latter to supply the oil spill response capability
required by PHMSA.

Response to Comments Regarding Applicability of COSRP (Sec.  130.100)
    PHMSA initiated this rulemaking in response to changing conditions
stemming from the increase in the volume of petroleum oil transported
by rail and the consequent incidents and accidents; however, pursuant
to the CWA requirement for rolling stock that ``could reasonably be
expected to cause substantial harm,'' PHMSA seeks to minimize burdens
by expanding requirements for COSRPs only where there is a demonstrated
need. PHMSA does not have evidence of rail incidents involving unit
trains carrying other non-petroleum oils (as defined in 49 CFR 130.5)
that have demonstrated a need to expand the applicability of
comprehensive plans to other non-petroleum oils. Commenters did not
provide additional data on rail transportation of non-petroleum oil or
hazardous substances identifying new conditions, nor did they identify
rail incidents indicating new risks posed by other non-petroleum oils
or hazardous substances. Therefore, we are continuing with a threshold
of 42,000 gallons for tank cars carrying petroleum or other non-
petroleum oil. However, we may consider revising the requirements for
other non-petroleum oils or hazardous substances in a future
rulemaking.
    We disagree that the applicability should be expanded to include
additional hazardous materials, such as all Class 3 flammable or
combustible liquids. Commenters did not provide adequate data
indicating that the type of planning and level of resources required by
this rulemaking would be appropriate for cleaning up spills for
materials other than oils. Furthermore, this rulemaking was promulgated
to respond directly to the risks and unique response requirements
related to the large volumes of petroleum oil being transported in unit
trains.
    PHMSA disagrees that COSRPs would be appropriate for a lower volume
of petroleum oil or a lesser number of tank cars. As discussed in the
NPRM and HM-251 final rule, modeling data from FRA indicates that for
trains with fewer than 20 tank cars in a block, or fewer than 35 tank
cars dispersed throughout a train, relatively few tank cars containing
petroleum oil would be breached on average in the event of an
incident.\17\ The threshold of 20 cars in a block as used in the HM-251
rulemaking comes from AAR's Circular OT-55, which provides
``Recommended Railroad Operating Practices for Transportation of
Hazardous Materials'' and defines ``key trains.'' Then, FRA performed
an analysis to determine the average number of cars that would derail
with 20 tank cars in a block. Once that number was determined, FRA did
further analysis to determine at what number of tank cars dispersed
throughout the consist would the number of tanks cars derailed be
equivalent. The result was 35 tank cars throughout the consist.
Therefore, in a derailment scenario, these lower-risk train
configurations (i.e., fewer than 20 tank cars in a block or 35 tank
cars throughout the train) are not ``reasonably expected'' to breach in
a manner that could ``cause substantial harm to the environment by
discharging into or on the navigable waters, adjoining shorelines, or
the exclusive economic zone.'' Furthermore, given the enhanced tank car
standards promulgated in the HM-251 final rule and resulting
improvements in tank-car integrity, PHMSA believes the likelihood of a
tank car releasing its total contents in a derailment has been
significantly reduced.\18\ PHMSA 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
would be burdensome, costly, and inefficient.
---------------------------------------------------------------------------

    \17\ 80 FR 26665 (May 8, 2015).
    \18\ 80 FR 26665 (May 8, 2015).
---------------------------------------------------------------------------

    PHMSA did not propose changes to the communication requirements in
49 CFR 130.11, which apply to both basic and comprehensive plans. Basic
plans already require that shipments of tank cars carrying petroleum
oil be described on shipping papers or similar documents as containing
oil, unless they are identified as ``aviation fuel, diesel fuel, fuel
oil, gasoline, jet fuel, kerosene, motor fuel, or petroleum.'' While
basic plans will be replaced with COSRPs for certain train
configurations, the responsibility for offerors to identify oil will
not change. Additionally, the U.S. Coast Guard (USCG) maintains a
``List of Petroleum and Non-Petroleum Oils'' as a guide to determining
whether a particular substance is an oil under their regulations.\19\
Therefore, PHMSA further disagrees that additional guidance is
necessary to identify petroleum oil, and is adopting the definition of
petroleum oil as proposed.
---------------------------------------------------------------------------

    \19\ United States Coast Guard, Hazardous Materials Division,
available at: http://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Design-Engineering-Standards/eng5/
---------------------------------------------------------------------------

    The definition of petroleum oil in Sec.  130.5 includes both
refined and unrefined petroleum products. Oils which do not contain
petroleum, such as synthetic oils or essential oils, continue to be
defined as ``non-petroleum oil'' in Sec.  130.5. We are maintaining
PHMSA's longstanding provision that any ``mixture or solution in which
oil is in a concentration by weight of less than 10 percent'' is
excluded from the requirements in part 130. Therefore, petroleum oil in
part 130 includes mixtures containing at least 10 percent petroleum
oil, such as denatured ethanol fuel E85 (ethanol containing 15 percent
gasoline); however, mixtures containing less than 10 percent petroleum
oil, such as diluted waste water or E95 (ethanol with 5 percent
gasoline) continue to be excluded.
    We also disagree with NTSB that the exception for unit trains not
carrying petroleum oil meeting the definition of a Class 3 flammable
liquid or combustible liquid should be removed. Providing this
exception aligns this rulemaking's applicability to unit trains with
the subset of HHFTs carrying petroleum oil covered in other PHMSA
rulemakings. Furthermore, the railroad can leverage information from
the routing analysis required by 49 CFR 172.820 when developing plans.
    We agree with AAR that the intent of COSRPs is to cover routes
where applicable quantities of oil are transported. Railroads are not
required to include routes or route segments in response zones when
applicable quantities of oil are not transported on these routes or
route segments. We assume that routes transporting applicable
quantities of oil are a subset of the routes that railroads must
already identify under the requirements for routing analysis in the HM-
251 final rule. Therefore, we are editing the applicability language in
Sec.  130.100 to state, ``any route or route segments used to
transport. . .a single train carrying. . . .'' This clarification
further addresses IAFC's recommendation to avoid using the term
``transports a single train transporting'' in the requirements proposed
in Sec.  130.101, adopted in Sec.  130.100.
    The CWA requires OSRPs 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 routes located more than 0.5 miles from
navigable waters provide a sufficient buffer to ensure substantial harm
could not occur in the event of a spill. The EPA's FRP requirements in
section 5.0 of attachment C-III (``Calculation of the Planning
Distance'') to appendix C of 40 CFR part 112 provide detailed planning
calculations for facilities to determine the threat to fish and
wildlife and sensitive environments or downstream public water intake
as a result of a discharge of oil to navigable waters. For example,
under section 5.6 of the above-referenced attachment, facilities
located further than 0.5 miles from navigable waters must also consider
the distance to nearby storm drains and factors that may be conducive
to overland transport of oil to these storm drains. Additionally,
section 5.7 of the above-referenced attachment requires an owner or
operator to consider the ``proximity to fish and wildlife and sensitive
environments, not bordering a navigable water'' in whether a facility
poses substantial harm. PHMSA was unable to perform detailed analysis
for features such as storm drains, or topographic features, along every
point on an HHFT route, so PHMSA assumes that all rail routes used for
applicable quantities of oil are expected to have the potential to
impact navigable waters. Therefore, the entire route carrying
applicable oils should be covered by the planning requirements for
COSRPs.
    PHMSA disagrees that Class II or III railroads transporting
petroleum oil should be excluded from COSRP requirements. As evidenced
by the derailment in Aliceville, Alabama, which involved a 90-car crude
oil unit train, Class II and Class III railroads are transporting
quantities of petroleum oil that pose the same risk as Class I
railroads. Nothing in the regulations precludes Class I railroads from
assisting short lines in developing a plan or precludes one railroad
from utilizing resources provided by another railroad through contract
or other means; however, both railroads would be subject to submitting
a plan covering their responsibilities to ensure those responsibilities
are clearly delineated.
Summary of Comments Regarding General Requirements for COSRP Format
(Sec.  130.105)
    In the NPRM, PHMSA proposed a COSRP format requiring a core plan
with general information applicable to the entire plan and response
zones with information specific to the route segment. The NPRM proposed
that the plan must use and be consistent with the core principles of
the National Incident Management System (NIMS), including use of the
Incident Command System (ICS) throughout the plan. The NPRM also
proposed use of the Integrated Contingency Plan (ICP) as an alternate
format.\20\
---------------------------------------------------------------------------

    \20\ In June 1996, the National Response Team (NRT) published
the Integrated Contingency Plan (ICP, or One Plan) Guidance with
support from five agencies: The Environmental Protection Agency
(EPA); the Coast Guard; the Occupational Safety and Health
Administration (OSHA); the Office of Pipeline Safety of the
Department of Transportation (DOT); and the Minerals Management
Service (MMS) of the Department of the Interior. The ICP provides a
mechanism for consolidating multiple facility response plans into
one plan that can be used during an emergency. See 61 FR 28642
---------------------------------------------------------------------------

    NTSB commented in support of the general plan requirements in
proposed Sec.  130.102, stating they would ``serve to ensure a
carrier's ability to respond to worst-case oil and petroleum discharges
called for by Safety Recommendation R-14-005.''
    We received comments from State government agencies and railroad
stakeholders on the use of alternative plan formats. The Washington
State Department of Ecology and AAR both supported the permissive use
of ICPs as providing greater flexibility to meet planning standards
when subject to requirements by other agencies. Both AAR and other
State government commenters highlighted differences between
requirements for State plans

and the proposed Federal plan requirements.
    Several commenters supported the requirement that plans integrate
NIMS and ICS, while also requesting further clarification of their
roles. API commented in support of ensuring that ``the terminology used
and practices required are consistent with established response
organizations and structures to include the National Response
Framework, the National Contingency Plan, the National Preparedness and
Response Exercise Program (NPREP), and National Incident Management
System (NIMS).'' Additionally, industry commenters highlighted the
importance of NIMS and ICS, and recommended additional clarity. AAR
stated, ``PHMSA should clarify that railroads, at their discretion, may
use EPA's or DHS's criteria to be consistent with the NCP'' in relation
to the requirements to use NIMS/ICS terminology. API highlighted the
importance of railroad personnel following NIMS and ICS using ``common
terminology, training and management of change for staff,'' further
suggesting that PHMSA and FRA ``should be prepared to provide guidance
and oversight to the regulated community as they establish processes
that support personnel and organizational changes.''
    IAFC recommended clarifying that NIMS and ICS are utilized
throughout the plan by adding the underlined words to the proposed
requirements: ``The plan must use and be consistent with the core
principle of the National Incident Management System (NIMS) including
the utilization of the ICS.''
Comments in Response to General Requirements for COSRP Format (Sec.
130.105)
    PHMSA agrees with providing flexibility for railroads submitting
multiple plans under differing Federal and State regulations. The ICP
was developed to provide a single format for response plans in
recognition that entities may be required to develop and submit plans
for multiple Federal agencies to cover different facility types and
activities. The ICP provides railroads with flexibility.
    We are also adding an alternative for railroads to submit plans
that meet State requirements, provided the State plan also meets the
minimum requirements of the Federal standard. In addition to the State
plan, the railroad must include the information summary (including the
contact information for the Qualified Individual) and ensure through
contract or other approved means the availability of private personnel
and equipment necessary to respond to a worst-case discharge (WCD) or a
substantial threat of such a discharge. The use of State plans is
voluntary and, therefore, does not impose any additional burdens. PHMSA
is adding this alternative to ensure that railroads do not engage in
unnecessary duplication and to provide regulatory flexibility in
response to comments that discuss the potential burden from states with
differing requirements and plan formats. PHMSA encourages railroads to
make use of this alternative when possible to minimize compliance
costs. This alternative will provide equivalent or greater protections
to the Federal response plan. Furthermore, the allowance of ICP and
state plans is consistent with the OPS requirements for pipelines. In
addition, it is PHMSA's intention that railroads will be able to use
the same data and other information gathered for other response plans
(i.e., Federal, state, international) to inform the OSRPs required
under this rulemaking action, provided they meet PHMSA's OSRP
requirements.
    PHMSA agrees that consistency with NIMS and ICS is important.
Requiring use of NIMS and ICS maintains consistency with EPA or DHS and
ensures better consistency with the current response framework. We are
adopting the requirements as proposed in the NPRM, with clarifications
suggested by IAFC to highlight the role of the NIMS and ICS throughout
the plan, and with minor edits for plain language.
Summary of Comments Regarding Worst-Case Discharge for COSRP
(Sec. Sec.  130.105 and 130.5)
    Under the statute, worst-case discharge (WCD) means ``the largest
foreseeable discharge in adverse weather conditions,'' as defined at 33
U.S.C. 1321(a)(24). PHMSA proposed to define a WCD from a train consist
as the greater of: (1) 300,000 gallons of liquid petroleum oil; or (2)
15 percent 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.
    Environmental groups stated the WCD calculation was too low and
should instead include the entire petroleum content of all tank cars on
the train and additional factors affecting the incidence or severity of
a derailment (e.g., bridge collapse, tide activity, etc.). The
coalition comments from Riverkeeper, Center for Biological Diversity,
et al. stated that the analysis for WCD was insufficient. They provided
several arguments against specific analysis points in the agency's
determination of WCD, citing an incomplete incident history,
disagreeing with adjustments made to account for the protections from
the enhanced tank car standard in the HM-251 final rule, and asserting
that CWA only provides deviation from setting a WCD at a package's full
contents when ``secondary containment'' is provided.
    The coalition comments from Riverkeeper, Center for Biological
Diversity, et al. also stated the WCD should be redefined to include
the full contents of all tank cars carrying petroleum oil in a train.
They stated the full contents is a ``reasonable assumption'' and
provided examples of Area Contingency Plans (ACP) that plan for a WCD
using the full contents of all tank cars. The coalition comments from
Riverkeeper, Center for Biological Diversity, et al. also stated that
the final rule must ``appropriately account for a range of damages and
resources required to rehabilitate communities and the environment
after a worst-case disaster.''
    Some private individuals supported removing the ``300,000 gallon''
option for the WCD and requiring it to be 15 percent for all trains
carrying petroleum oil. These commenters stated 300,000 gallons was too
low of a calculation. However, they did not address train
configurations for which 300,000 gallons is a greater volume than 15
percent.
Response to Comments Regarding Worst-Case Discharge for COSRP
(Sec. Sec.  130.105 and 130.5)
    This final rule adopts the proposed requirements for WCD. Under the
statute, 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.\21\ PHMSA and FRA have not observed any unit train
derailments that have resulted in the release of the entirety of the
train's contents. Furthermore, the likelihood of a unit train losing
the entire contents of all tank cars is extremely low. Therefore,
defining a WCD as the total contents of all tank cars overstates the
``largest foreseeable discharge.''
---------------------------------------------------------------------------

    \21\ 33 U.S.C. 1321(j)(5)(D)(iii).
---------------------------------------------------------------------------

    PHMSA disagrees that the analysis for the WCD is inadequate; it is
based on the U.S. incident record relevant to the applicability of this
rule. PHMSA identified and analyzed the quantities released from tank
cars in the major derailments involving petroleum oil that have
occurred in recent years in the

United States to estimate the approximate volume of petroleum oil that
would constitute a WCD in the United States. PHMSA continues to
maintain that including rail incidents that have occurred outside of
the United States is not appropriate for COSRP analysis. PHMSA's
analysis indicates that the WCD, in terms of the quantity released from
tank cars that punctured or experienced thermal tears, would be
approximately 500,000 gallons of petroleum oil.
    Recognizing that the comprehensive safety enhancements, including
tank car design enhancements promulgated in the HM-251 final rule,
would reduce the overall quantity released in a derailment scenario
occurring in the future, PHMSA did not propose 500,000 gallons as a
planning volume for a WCD. The HM-251 final rule adopted lower speed
limits for HHFTs during the phase-in period for the new tank car design
to reduce risk. PHMSA believes the safety improvements for HHFTs
adopted in the HM-251 final rule provide a reasonable basis for
adopting a lower planning volume for WCDs. Adjusting the largest
quantity released within the crude-by-rail derailment history (i.e.,
474,936 gallons) by the expected mitigation of damages (0.33) from the
HM-251 rule, we expect related safety improvements over the 10-year
period from 2017-2026.\22\ This calculation (474,936 x 0.67) yields
318,000 gallons. Specifically, the quantity released in the Casselton,
ND indicates that a WCD would involve 474,936 gallons. Expressed as a
percentage of the total petroleum oil lading carried by the derailed
Casselton, ND train, a WCD would involve approximately 15 percent of
the total (474,936 gallons released divided by the 3,088,000 gallons
carried by the train; rounded down from 15.38 percent). Specifically,
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. Notably, there have been only two derailment incidents in the
U.S. safety record that had greater than 15 percent of material
released: Casselton, ND and Aliceville, AL. The crude oil tank car
fleet has seen major improvements since the HM-251 final rule, and if
those derailments would have occurred given the current fleet
composition, we would expect the releases for both incidents to fall
beneath the WCD threshold. In addition, the WCD is sufficiently high so
that no incident has exceeded it to the degree that it seems unlikely
that preparation for the WCD amount would have resulted in an
inadequate response to the incident that occurred.
---------------------------------------------------------------------------

    \22\ Please see the benefits section, Section 3, in the RIA.
---------------------------------------------------------------------------

    As previously discussed, PHMSA accounted for the expected
mitigation of damages achieved through the HM-251 final rule 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 did not incorporate
the expected mitigation of damages of the HM-251 rulemaking because we
believe that this percentage does not account for uncertainty in large
train configurations. Large train configurations (e.g., 135-tank car
trains) have an appropriate WCD planning volume, commensurate with
their presentation of increased risk.
    As an illustration of the WCD definition and its application to WCD
planning volumes for use in COSRPs, consider a 50-tank car train and a
100-tank car train carrying petroleum oil. For the 50-tank car train,
the WCD planning volume would be 300,000 gallons, since 300,000 gallons
is greater than 15 percent 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 WCD planning volume
would be 450,000 gallons, since 15 percent of the petroleum oil carried
by that train--or 450,000 gallons--is greater than 300,000 gallons.
Furthermore, PHMSA acknowledges both 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.
    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 WCDs within a given response
zone. It is not re-calculated for each 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. Furthermore, nothing in the rulemaking
prohibits a railroad from using a higher planning volume in their plan.
    Given that the discussion above applies to the WCD for the expanded
applicability to unit trains of petroleum oil, we are clarifying that
the calculation for 300,000 gallons or 15 percent of the lading across
the train consist applies to unit trains. As stated in the NPRM, PHMSA
did not propose to change the applicability requirements for tank cars
exceeding 42,000 gallons. When separating the definition of ``maximum
most probable discharge'' and ``worst-case discharge,'' the planning
volume for tank cars exceeding 42,000 gallons was inadvertently
omitted. Therefore, we are amending the definition of ``worst-case
discharge'' to reinstate that the planning volume for tank cars
exceeding 42,000 gallons ``equals the capacity of the cargo
container.''
Summary of Comments Regarding the Response Zone for COSRP (Sec. Sec.
130.105 and 130.5)
    In the NPRM, PHMSA proposed to define the term response zone as
``one or more route segments identified by the railroad utilizing the
response resources which are available to respond within 12 hours after
the discovery of a WCD or to mitigate the substantial threat of such a
discharge for a comprehensive plan meeting requirements of subpart C.''
PHMSA additionally asked whether the 12-hour response time was
sufficient for all areas subject to the plan, or whether a shorter
response time (e.g., 6 hours) would be appropriate for certain areas
(e.g., High Volume Areas) which pose an increased risk for higher
consequences from a spill. PHMSA further invited comments on the
criteria and support-levels for ``high volume areas.'' Commenters to
the NPRM provided recommendations for determination of the response
zone and response times.
    Commenters recommended several different revisions to the
definition of response zone. Environmental groups and State agencies
recommended re-defining response zones as pre-defined ``geographic
response areas.'' This suggestion promotes resource sharing and more
closely aligns with the EPA response structure. For example, the
Minnesota Pollution Control Agency gave the example of non-profits
``WAKOTA CAER and Red Wing CAER,'' which have voluntarily formed a
response cooperative. The Minnesota Pollution Control Agency further
suggested utilizing response zones with pre-defined areas because,
``all railroads/industries operating within that geographical area
could be encouraged or required to establish caches of equipment,
contractors and other response resources jointly. Those resources would
then be available to any industry with similar preparedness/response
requirements.''
    Other commenters supported resource sharing without linking the
requirement to specific geographic response zone definition. ASLRRA
requested that short

lines (Class II or III) operating as a tenant to a Class I railroad be
permitted to enter into a voluntary agreement to use the plan and
resources belonging to the Class I railroad for the area of track
(e.g., response zone) which falls under the tenant/host relationship.
NTSB encourages, ``small entities to enter into an agreement similar to
the one managed by the Marine Preservation Association, a not-for-
profit membership corporation that helps its members address problems
caused by spills of oil and petroleum in transportation and allows its
members to enter into a OSRO [oil spill removal organization] service
agreements.''
    AAR commented, ``PHMSA should allow each railroad (Class 1, 2 or 3)
to define the number and location of `Response Zones' that meet the
specific railroad's existing incident management team (``IMT'')
location, organizational structure, and contractor network. Railroads
should not be required to use a prescriptive set of planning standards
that specify `Response Zones.' '' AAR provided sample regulatory text:

    Railroad plan holders will develop ``Response Zones'' with
response resources located within 12 hours of each point along the
HHFT route where ``Response Activities'' would occur. Additionally,
Response Zone locations, boundaries and numbers will be based on the
existing location and organizational structure of each railroad's
incident management team (IMT) including Qualified Individuals
(QIs), response resources, and railroad-contracted Oil Spill Removal
Organization (OSROs) available to arrive onsite to mitigate a WCD or
substantial threat of one.

    Overall, most commenters felt that 12 hours was too long and
recommended a shorter response timeframe ranging from immediately to 6
hours for all areas. Commenters expressed concerns about public safety
and environmental damage that could be caused by spills, fires, or
explosions during the first 12 hours and provided detailed descriptions
of harm that could occur during that timeframe. Commenters claimed
faster response times provide better protection, but they provided no
quantitative data to support the effectiveness of faster response
resources.
    Commenters provided examples of State requirements and proposed
legislation specifying response times for various activities related to
responding to rail incidents. The State of Minnesota requires railroads
to: (1) Within one hour, provide qualified personnel on-scene to assess
the discharge; (2) within the first 8 hours, be capable of deploying
resources to contain and recover 10 percent of the volume of the worst-
case scenario and to protect sensitive areas and potable water intakes;
and (3) within the first 60 hours, deploy full response resources for
containing and recovering the worst-case scenario. The coalition
comments from the Riverkeeper, Center of Biological Diversity, et al.
provided the response times in the Emergency Response Guidebook and the
requirements adopted in the HM-251 final rule for thermal protection
capable of withstanding a pool fire for 100 minutes.
    Commenters provided support for including different areas with a
faster response timeframe. NTSB suggested that no areas should have a
longer response time than 12 hours, given the capability for the 12-
hour response time was already demonstrated. NTSB also suggested
adopting a 6-hour response time for ``High Volume Areas'' (consistent
with the definition in Sec.  194.5 of the pipeline regulations,
excepting the pipeline diameter). NTSB further recommended that PHMSA
adopt a High Volume Area definition ``that recognizes credible single
HHFT exposure risks based on the proximity of the track to the river
and natural drainage paths,'' citing the pipeline spill in Marshall
Michigan \23\ and the Lac-M[eacute]gantic, Quebec derailment as having
caused more than one billion dollars in damage and supporting a need
for faster response times.
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    \23\ https://www.ntsb.gov/investigations/AccidentReports/Pages/PAR1201.aspx.
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    Commenters defined a wide range of features, such as population,
schools, economic activity, cultural and ecological significance,
geologic factors, speed of tides, and location of nuclear reactors or
other higher risk activities, as necessitating a faster response time.
Commenters most frequently described drinking water intakes,
environmentally-sensitive areas, and specific local waterways, such as
the Hudson River, as necessitating faster response times and more
detailed identification or mapping in a plan. Commenters also included
suggestions such as scaling response times based on the amount of time
oil would take to reach water or the volume of applicable trains in an
area as criteria for faster response times. The State of Idaho
Department of Environmental Quality included concerns that inclement
weather and fast moving water streams would delay response and lead to
larger area of impact. Commenters also focused on risk factors, and
suggested weighting factors from the railroad routing analysis required
by Sec.  172.820 of the HMR. Commenters also provided the ``High
Consequence Areas (HCA)'' from the part 195 of the OPS pipeline
regulations as an example of risk-based criteria. These areas include
population density in the definition and are related requirements for
an operator's pipeline integrity management program. It should be noted
this is a separate program from the OPS requirements for OSRPs in 49
CFR part 194.
    AAR requested clarification that response times are a ``planning
standard, not a compliance standard. For example, if a response vehicle
has a flat tire on the way to a response, the company should not be
cited as being out of compliance.'' AAR also requested that PHMSA
``clarify that the 12-hour response timeframe applies only to track
where HHFT trains traverse, and not to the entire rail network.'' AAR
provided examples of specific changes to the regulatory text to clarify
this responsibility.
Response to Comments Regarding Response Zone for COSRP (Sec. Sec.
130.105 and 130.5)
    We are adopting the proposed requirements for response zones with
clarification to the regulatory text in response to commenters. We
disagree with limiting response zones to pre-defined areas, whether
geographic response areas or similar criteria. Providing pre-defined
response areas exceeds the scope of this rulemaking, as commenters did
not have the opportunity to comment on such boundaries. Furthermore,
the requirements for consistency with the NCP, ACP, along with the
notification requirements, ensure that railroads have the necessary
consistency with local and regional response structures.
    We agree with AAR that the intent of the requirement for response
zones is to allow railroads the flexibility to develop response zones
and stage resources, provided that the planning standards for resources
are met. The draft RIA provided an estimate of the number of response
zones for each railroad for the purpose of estimating costs. We did not
intend for the assumptions and estimation in the draft RIA to prescribe
a specific number of response zones. Furthermore, we did not intend for
railroads to provide information and resources about route segments
where applicable quantities of oil are not transported. Therefore, we
are clarifying both the definition of response zone and the general
requirements to communicate that railroads may determine the boundaries
of response zones, provided that the plan demonstrates that resources
within the response zone meet the planning criteria. We are also
clarifying that plans

with only one response zone do not need to duplicate information
between the core plan and response zone.
    In general, we agree that railroads and industries should be
encouraged to share response resources; however, we disagree that
adding pre-defined response zone boundaries for response zones is
necessary to enable resource sharing. Nothing in this rulemaking
prohibits the formation of cooperatives or other such resource sharing
agreements, provided that each railroad required to have a plan
demonstrates the availability of appropriate resources by contract or
other means. Additionally, railroads communicate the response zone
location to emergency response planning officials through the
information sharing notification requirements adopted in Sec.  174.312,
providing adequate information to enable resource sharing.
    The purpose of the response time requirement is to ensure railroads
are demonstrating that they can identify, and ensure by contract or
other means approved by the President, 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.\24\ USCG has developed planning guidance
and standard calculations for response times in the 2016 ``Guidelines
for the U.S. Coast Guard Oil Spill Removal Organization Classification
Program.'' \25\ Adopting a 12 hour response time and the USCG's
assumption that response resources can travel according to a land speed
of 35 miles per hour ensures that the resources listed in the plan are
available for a response and that response personnel will know when the
resources can reasonably be expected to be available on-site. However,
we disagree with AAR's recommendation that it is necessary to include
additional regulatory language stating 12 hours is not a performance
guarantee.
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    \24\ 33 U.S.C. 1321(j)(5)(D)(iii).
    \25\ https://homeport.uscg.mil/Lists/Content/Attachments/1286/Guidelines%20for%20the%20USCG%20OSRO%20Classification%20Program.pdf.
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    In this final rule, we are adopting the requirement for a single
response time of 12 hours in all areas. This response time is
consistent with the requirement for ``all other areas'' used by the OPS
for pipelines. In the NPRM, PHMSA requested public comment on whether
the 12-hour response time would be sufficient for all areas subject to
the plan, or whether a shorter response time (e.g., 6-hours) would be
appropriate for certain areas (e.g. High Volume Areas) that pose an
increased risk for higher consequences from a spill; on criteria to
define such ``High Volume Areas'' where a shorter response time should
be required, as well as 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 that can be used to reasonably and
consistently identify such areas for rail; on whether requiring
response resources to be capable of arriving within 6 hours would lead
to improvements in response, and for specific evidence of these
improvements; and 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. Commenters did not provide
adequate support to demonstrate that requiring the staging of resources
for response times faster than 12 hours would bring about measurably
improved protection or benefits, and that there were clear definitions
for adequately defining high volume areas. Without sufficient data,
PHMSA is unable to support a clear definition of a high volume area.
Therefore, in the interest of safety and economic efficiency, PHMSA
assumes the entire route threatens navigable water and that further
identification for every point along the route would be impracticable.
Rather, the use of 12 hours as a planning framework provides
flexibility for OSROs to maintain larger inventory to be included
within the response area. There is nothing prohibiting railroads from
staging resources closer to specific route segments, and disagree that
a voluntary designation will increase coverage for sensitive areas. We
also note that providing response resources to remove, maintain, and
mitigate WCD does not replace other emergency response procedures and
resources for responding to a release of hazardous materials by rail.
Summary of Comments Regarding COSRP Consistency With NCP and ACP
(Sec. Sec.  130.110 and 130.115)
    NTSB commented generally in support of compliance with the National
Contingency Plan and Area Contingency Plan provisions proposed in Sec.
130.103, stating they would ``serve to ensure a carrier's ability to
respond to worst-case oil and petroleum discharges called for by Safety
Recommendation R-14-005.''
    Coalition comments from Riverkeeper, Center for Biological
Diversity, et al. questioned whether the proposed ``minimum
consistency'' with the NCP and ACPs meets the requirements of OPA 90.
Conversely, AAR stated that PHMSA ``must clarify which elements are
necessary for minimum consistency with the National Contingency Plan.''
    IAFC supported the requirements for minimum consistency with NCP,
but recommended additional clarification to ensure that the railroads
understand that both Federal and state entities have an active role in
the unified command, citing the NCP requirements in 40 CFR 300.105(d).
The NCP requirements in 40 CFR 300.105(d) provide the ``organizational
concepts of the national response system'' and describe a framework
which, ``brings together the functions of the Federal Government, the
state government, and the responsible party to achieve an effective and
efficient response.'' IAFC suggested the proposed language for the
requirement in Sec.  130.103(a)(1)(i), namely to ``[d]emonstrate a
railroad's clear understanding of the function of the federal response
structure'' be amended to include the ``applicable state and federal
response structure.''
    Overall, commenters supported consistency with the ACP, but had
several suggestions related to the inclusion of Environmentally
Sensitive Areas (ESAs). Environmental groups and private citizens
supported special identification and protections for ESAs. They also
described many specific geographic areas, or suggested criteria for
determining which environmentally sensitive areas require additional
protection. They often cited cultural, economic, and ecological
significance in their descriptions. The coalition comments of Scenic
Hudson and Riverkeeper highlighted the importance of including
additional strategies to protect and deflect oil from ESAs. They
further recommended including a requirement to update and revise the
plan contents.