HomeMy WebLinkAboutMINUTES - 05132008 - C.29 czf
TO: Board of Supervisors
Contra
FROM: Transportation, Water and Infrastructure Committee �►
�-- �-
(Supervisor Gayle B. Uilkema, Chair) j"�,`-.,:=�x' �µ3= Costa
DATE: April 21, 2008 County
�tut.>'T
SUBJECT: Proposed federal regulation on rerouting freight trains carrying hazardous materials
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
AUTHORIZE the Chair of the Board to sign the letter in Exhibit A providing comments on the
proposed federal regulation on rerouting trains with hazardous materials, as recommended by
the Transportation, Water and Infrastructure Committee with support from the Hazardous
Materials Commission.
FISCAL IMPACT
NONE. The proposed rerouting analysis would be performed by the freight railroad companies,
with federal oversight.
BACKGROUND/REASONS FOR RECOMMENDATIONS
The United States Department of Transportation (U.S. DOT) on April 16 released a proposed
regulation requiring all freight railroads that carry specific hazardous materials to analyze their
routes, and alternate routes, to determine the safest route for the transport of these materials.
The Interim Final Rule is available for public review and comment by May 16.
CONTINUED ON ATTACHMENT: X YES
RECOMMENDATION OF COUNTY ADMINISTRATOR X RECOM END ION OF BOARD COMMITTEE
APPROVE OTHER /
SIGNATURE (S): S erviso a Ie B. Uilkema isor Mary N. Pie ho
ACTION OF BOARD ON hA0jj 1.3. C05 APPR RECOMMENDED �O HER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
`V UNANIMOUS (ABSENT _) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE
ABSENT: ABSTAIN: BOARD OF . SUPERVISORS ON THE DATE
SHOWN.
Contact: John Greitzer/ (925/335-1201)
cc: Community Development Department (CDD) ATTESTED 13 i 2C0
J. Bueren, PWD JOHN ULLEN, CLERK OF
H. Henderson, ECCFPD. THE BOARD OF SUPERVISORS
M. Kent, HSD AND COUNTY ADMINISTRATOR
K. Richter, CCCFPD
W. Rupf, Sheriff 41A L , DEPUTY
R. Sawyer, HSD
G:\Transportation\Committees\TWIC\2008\Board Orders\may13 rail rerouting.doc
RAIL REROUTING OF HAZARDOUSMATER'j
April 21, 2008
Page 2
BACKGROUND/REASONS FOR RECOMMENDATIONS (Continued)
The Interim Final Rule issued on April 16 is designed "to ensure that railroads use routes with
the fewest overall safety and security risks to transport security-sensitive hazardous materials,"
according to the Federal Railroad Administration, which is a division of the U.S. DOT. The
regulation carries out some provisions of a congressional act passed in 2007, called the
"Implementing Recommendations of the 9/11 Commission Act of 2007."
The rule requires freight railroads to collect information from state and local officials regarding
safety and security risks along the routes that haul designated hazardous materials, known as
poison inhalation hazards. This includes, among other chemicals, chlorine and anhydrous
ammonia, which are toxic and hazardous to health upon release, according to U.S. DOT. After
collecting the data, the railroad then must analyze the route and all "available practicable"
alternative routes to determine the safest route for transport of hazardous materials.
"Practicable" means economically viable for the railroad.
The rule specifies 27 particular"Risk Analysis Factors"that must be considered in the analysis. Of
particular note among these factors are rail traffic density, which is high, particularly in western
Contra Costa County; environmentally sensitive or significant areas, such as the shoreline along
the Union Pacific Route in West and Central County and the Delta in East County; presence of
Passenger traffic along the route, which could apply to the 44 daily passenger trains along the
Union Pacific route from Richmond to Martinez and four daily passenger trains along the
Burlington Northern route in East County; and venues along the route (stations, events, places of
congregation), which are numerous along the rail lines throughout the County.
In developing the rule, the federal government rejected suggestions that the safest route should
be determined by the U.S. DOT rather than the railroads. U.S. DOT believes the freight railroads
themselves are best suited to determining which alternative route is the safest. U.S. DOT also
contends that federal regulation, including the new Interim Final Rule, preempts any state or
local regulation on rerouting of hazardous materials.
Railroads are to begin complying with the new rule on July 1, 2008, commencing with data
collection and preparing to perform the analysis of routes, The railroads must complete their risk
assessment and route selection by September 1, 2009. Thereafter,the railroads must perform a
new analysis ever year. The rule authorizes the Federal Railroad Administration to require a
railroad to change its route if the agency determines the railroad did not adequately analyze its
route alternatives.
In the Interim Final Rule, the U.S. DOT specifically states it "will not ban movement of the
specified hazardous materials through densely populated or other sensitive areas." This
specifically addresses the attempts by Washington D.C. to ban hazardous material shipments,—
by rail or truck — from coming within 2.2 miles of the Capitol Building. The Washington D.C.
ordinance had been tied up in court on a legal challenge from CSX Transportation Inc., a major
freight railroad in the eastern United States.
The Transportation, Water and Infrastructure Committee reviewed the Interim Final Rule at its
April 21 meeting and provided numerous comments which the Committee said would strengthen
the proposed regulation. The Committee also directed staff to meet with other affected parties
and gain their input on the matter if time permitted. Comments are due to the federal
government by May 16.
RAIL REROUTING OF HAZARDOUS MATERIALS
April 21, 2008
Page 3
BACKGROUND/REASONS FOR RECOMMENDATIONS (Continued)
Staff of the Community Development Department and Health Services Department discussed
this item with the County's Hazardous Materials Commission on April 24. The Hazardous
Materials Commission agreed with the sentiments,expressed by the Transportation,Water and
Infrastructure Committee and suggested some, wording to make some of the proposed
comments stronger. The Hazardous Materials Commission also offered some additional
comments that are consistent with those proposed by the Transportation, Water and
Infrastructure Committee.
Exhibit A is a draft letter for the Chair's signature, providing comments on the regulation. The
comments reflect the direction of the Transportation, Water and Infrastructure Committee and
the input of the Hazardous Materials Commission. Unlike most Board letters,the letter in Exhibit
A is not addressed to a specific person because the federal regulatory comment process does
not provide the name of a specific individual to whom comments should be sent. The letter will
be faxed to the fax number provided in the Federal Register notice in which the Interim Final
Rule was published.
Exhibit B provides a four-page summary of the regulation, including the 27 risk factors.
Exhibit C provides the complete regulation and background material as published in the Federal
Re ister on April 16. The rule is "interim" and the U.S. DOT is taking comments on it through
May 16.
In addition to the proposed rule on rerouting hazardous materials, the Transportation, Water and
Infrastructure Committee also reviewed another proposed regulation requiring the freight
railroads to build stronger tank cars, able to withstand greater damage. That rule is intended to
help prevent leaks or spills of hazardous materials in the event of-an accidental derailment. The
Committee's comments on this regulation will be presented to the Board at the May 20 Board
meeting.
The Board of Supervisors Contra
John Cullen
County Administration Building
Costa Clerk(it the B(mid
651 Pine Street;Room 106 mid
P4anincr.(:'.alilunia 94553
County Cnunq Admini;U'atur
(925)31i_1000
John Gioia. 1:'Disinca
Gayle B.llilkenta.2""District � �a
Nbrx N.Piepho.;'a District .
Susan A.Bonilla.4":District s�
Fedenal.D:Glover.5"'District ✓
May 13, 2008
Pipeline and Hazardous Materials Safety Administration:;
U.S. Department of Transpor=tation
Fax (202) 493-2251
Re: Docket Number PHMSA—RSPA-1004-48730
Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous ;Materials
Shipments
Agency: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of
Transportation (DOT)
Action: interim final rule.
To Wlibin `It May Concern:
' The Contra Costa County Board of Supervisors on May I39 2008 reviewed the Interim Final Rule referenced
above, as posted in the Federal Register, Volume 73, No. 74, Wednesday, April 16, 2008 / Rules and
Regulations, Page 20752 etc.
The Board of.Supervisors has long-standing concerns about the proximity of fi-eight trains with hazardous
materials to our residential neighborhoods, parks and schools. We welcome the new rule requiring the rerouting
analysis but we believe the rule could and should be strengthened ill several areas.
Our Hazardous Materials Commission also reviewed the Interim Final Rule, on April 24, 2008, and provided
their- input to the Board of Supervisors. The Commission shares our concern about the potential dangers of
hazardous materials. being transported and stored so close to our communities. We offer the following
comments, reflecting our views and those of our Hazardous Materials Commission, to help the U.S. Department
of Transportation craft the most effective Final Rule possible.
.1. The Interim Final Rule leaves too much leeway for the railroads to reject alternative routes due to economic
factors. The last sentence.on Federal Register Page 20760 states: "If using a possible alternative route would
significantly increase a carrier's operating costs. as well as the costs to its customers, the carrier should consider
and document these facts in its route analysis. We expect that carriers will make these decisions in good faith,
using the financial management principles generally applied to other business decisions affecting safety and
security." It is difficult, if not impossible.. to quantify the weight that should be given to economic concerns over
public safety. or what constitutes a "significant ' increase to a railroad's costs; but we suggest the rule provides
too much opportunity for the railroads to let economic concerns drive the process.
1
2. The Final Rule should clarify that state: and local goveniriients can Dave consultation with the railroads during
the data-collection process. As written. the interim Final Rule sates the railroads "must seek relevant
information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence
targets along or in proximity to the route(s) utilized." This suggests a one-way process in which the railroads
will request specific data, .and we provide it. We suggest state and local governments should have the
opportunity toconsult with the railroads and provide any and all information we believe is relevant, rather than
be limited just to providing specific data requested by the railroads. Such consultations were intended to be part
of.tl e'process;!aCcordi:ng to staff of the Federal Railroad Administration, but the wording used in the Interim
Final Rule doesn't seem to reflect this. The Final Rule also should specify the types of local agencies that will
be part of the consultation process.-
The
rocess:The Final Rule should require each railroad to provide state and local governments .with the contact
information for the railroad official who is overseeing the route analysis. It is critical that the process be as
transparent to local officials as possible. Local,governments must have access to the person who is managing
the route analysis so we can request a consultation with the railroad or provide information that goes beyond
just -tile specific data requested by the railroad. One of the greatest frustrations experienced .by local
governments in dealing with railroads, is determining which person to contact at the railroad, particularly when
the railroad headquarters are located in distant states.
4. The Final Rule should ensure that the analysis and its finding's will be distributed to local emergency
response and liazniat officials. As written, the Interim Final Rule appears to restrict access to the information
just to certain designated federal officials and persons who are identified in federal statute for access to sensitive
secure infornation. We suggest the analysis and route selection should be made available also to local law
enforcement, fire, and public health/hazardous materials .officials. In the case of Contra Costa County, this
would.include the Sheriff s Department:, several fire protection districts, arid.tiie..ilealth Services Department.
along with the police and fire departments of the cities along the route. If these agencies already are included in
the rule, this should be clarified. If this is not the case, we suggest a distribution chain be established so these
agencies can access the route analysis and selection, and help ensure the railroads are adhering to the process.
5. Storage of rail cars for hazardous materials should occur only in private or public rail yards with security
fences and away from residential areas. Based on our review, it doesn't appear the Interim final rule deals with
how and where cars containing.hazardous materials should be stored. The Contra Costa County Board of
Supervisors is concerned about this issue due to.numerous occasions on which railroad tank cars carrying the
"hazardous materials" symbol have been stored on sidings in or near residential areas. schools. Head Start
children's facilities, and. other sensitive areas. This should not occur. Such storage of rail cars, whether short-
tcrin or long-tenil, should only occur in protected, secure areas.
6. The definition of Hazardous materials should include hydrocarbon products such as Liquid Petroleum Gas.
These types of chemicals are regularly transported by rail to and through Contra Costa County, and they should
be covered by'the Final Rule due to the potential hazards they present. We have had.numerous instances of LPG
tank cars parked close to homes, schools, parks and businesses. These cliernicals must be included in the Final
Rule in.order to maximize public safety.
7. Tile economic factors should be applied in a staged manner in identifying recommended routes, and only
after an evaluation is completed based solely on non-economic factors. As noted earlier, the Interim Final Rule
leaves too much leeway for railroads to avoid considering alternatives by citing economic factors. The railroads
should be required to analyze all possible routes on .safety factors alone, to determine the safest route, next
safest route, and so on. Only then should the railroads be permitted to.apply economic considerations. if the
process does not produce an objective analysis of the safest routes, it will be of little real effectiveness.
8. The route analysis model developed by the Railroad Research Foundation or other models used by the
railroad operators to identify recommended routes should be available to state and local agencies to review. We
are informed that the analysis model was developed through a grant provided by the U.S. Department of
Transportation. This would seem to put the model in the public domain. We hope the model will be made
available to interested local parties upon request, along with an explanatt'
f•_
9. The Final Rule should include lude an ap
xiealro ss i
n case local cm
Y,
officials disauee with a railroad's conclusion. It is possible local
finding about which route is safest. Weshould have o portilita
_
appeal process and a dispute resolution p:rocess laid out in the Final Rule'- � :
r
10. The Final. Rule should strengthen en the requirements that railroads :.....:....... ...... -71
tracks are good enough condition fortransport cf hazardous
- _
sometimes due to poor track condition. Hazardous materials make th:;.•.;:
railroad is to switch routes as a result of the analysis, they must ensure;
Z
condition. If the Final Rule contains no provision for t}iis, we request than:
Thank you for the opportunity to comment on the Interim final rule.
Sincerely, .�. �_-.._..::sz�._....,..__�.._...�.u_u.__.�__.._....._.,..__....__..v�.»_.,.___...�
�l
Fefltra
al D. Glover, Chair
Co Costa County
Board of Supervisors
FDG\iG
G:`•r'r,asportation`,COI„1Tlittecs`•.TWIC`:2009'\.Board Orders\march I I non_cmerg exhibit kdoc
c: The Hon. Dianne Feinstein-U.S. Senate-
Tile
enateThe Hon. Barbara Boxer.U.S. Senate
The Hon. Ellen Tauscher, 10'1'CA District
The Hon. George Miller.7't'CA District
The Hon. Jerry McNerney. l I"'CA District
Members; Board of'Supervisors
J. Bueren. Public Works Director
S.Goetz, Community Development Department
14. Henderson.Chief. East Contra Costa Fire Protection District
K. Richter.Chief,Central Contra Costa Fire Protection District
W. Rupf. Sheriff
R. Sawyer.Health Services Department Hazardous Materials Program
EXHIBIT B
OF TRANS, .... .
a� 0, M 0 V 1 N 0 i N E ....:::. .... .: ..:....:::... ...
-- — Federal Railroad Admin istra.lion
AMERICAN
s`/�e ECONOMY
Background
47ES OF
U.S.Department of Transportation Interim Final Rule:
Enhancing Rail Transportation Safety and Security
for Hazardous Materials Shipments
Background
The goal of this Interim Final Rule(IFR) is to ensure that railroads use routes with the fewest overall
safety and security risks to transport security-sensitive hazardous materials.
A primary safety and security concern in the rail transportation of hazardous materials is the
prevention of a catastrophic release in proximity to populated areas,events or venues.with large
numbers of people in attendance,populated buildings, landmarks or environmentally significant areas.
Such a catastrophic event could be the result of an accident or a deliberate act.
The IFR applies to rail carriers who transport:
• Bulk shipments of Poison Inhalation Hazard (PIH)materials, such as chlorine and anhydrous
ammonia,which are known or presumed on the basis of tests to be toxic to humans and pose a
hazard to health in the event of a release during transportation;
• More than 5,000 pounds in a single carload of Division 1.1, 1.2,or 1.3 explosive materials
which pose a hazard of mass explosion, fragment projection, or a fire hazard with or without a
minor blast or fragment projection hazard; and
• Certain high-level radioactive material shipments.
Althou-h this rulemaking is designated as `interim', such designation still requires railroads to be-in
implementation of the various safety and security provisions and FRA will begin compliance
oversight and enforcement on July 1, 2008.
In addition,this IFR fully complies with the 9/11 Commission Act of 2007 (signed into law by
President Bush on August 3,2007). As the public comment period had already closed for the
proposed rule(February 20, 2007),the `interim' status for the final rule is being used to provide
interested persons an opportunity to comment on the rule,and to provide FRA the opportunity to
create a final rule based on actions the Department of Homeland Security(DHS)may take to define
"security-sensitive material"and"high consequence target."
Summary of interim Final Rule
The iFR requires railroads to compile data for use in make routing decisions
Beginning July 1,2008 rail carriers must begin to compile data on specified shipments of hazardous
materials and routes currently used. Railroads must use the six months of data they collect between
July and December for their initial risk assessments. Thereafter railroads would collect this data
annually. Railroads would use the data to analyze safety and security risks along routes where those
1
materials are transported, assess alternative routing options,and make routing decisions based on
those assessments.
The IFR requires a railroad perform a methodical safety/security risk analysis
In collecting the relevant data, each carrier will seek to obtain information from state and local
officials regarding security risks to high-consequence locations along or in proximity to those routes.
All data will be used to conduct a safety/security risk analysis of the preferred routc(s)currently used,
and the potential hazards and risks affecting the alternate routes.
The safety/security risk analysis must consider at minimum the 27 Rail Risk Analysis Factors listed in
Appendix D to Part 172 that may affect the possibility of a catastrophic release along a specific route,
including factors such as the volume of the commodity transported; the total distance traversed;track
attributes;population density;the environmental characteristics of the area surrounding the route; and
any prior history of incidents or risk mitigation measures for the route, among others(see below for
full list).
The IFR requires railroads to analyze and assess alternate routes
In addition to the routes normally and regularly used for hazardous materials movements,the IFR
requires rail carriers to analyze and assess the safety and security of all available alternative routes
over which they have authority to operate. Railroads would also have to consider the use of
interchange agreements with other railroads when determining;practicable alternative routes and the
potential economic effect of using an alternative route.
The IFR requires railroads to select the route with the least overall safety/security risk
Using the results of the route analyses and risk mitigation measures that will be implemented,a rail
carrier is required to select the routes posing the least overall safety and security risk.
The IFR requires railroads to address en route storage and delays in transit
Railroad security plans must include: (1) a procedure for consulting with offerors and consignees to
minimize the time a material is stored incidental to movement; (2)measures to limit access to the
materials during storage and delays in transit; (3)measures to mitigate risk to population centers
during storage incidental to transportation; (4)measures to be taken in the event of an escalating threat
level during storage incidental to transportation; and(5)a procedure for notifying the consignee in the
event of transportation delays.
Routing models to assist compliance
The Department of Homeland Security provided funding to the Railroad Research Foundation,a not-
for-profit foundation under the Association of American Railroads, to develop a routing model that a
railroad can use in complying with the rule. Railroads are fret;to choose other routing models in
preparing their analyses.
The IFR augments rail hazmat car security
To guard against the possibility that an unauthorized individual could tamper with rail cars containing
hazardous materials to precipitate an incident during transportation, such as detonation or release
using an improvised explosive device (IED),the IFR requires the rail carriers' pre-trip inspections of
placarded rail cars to include an inspection for signs of tampering with the rail car, including its seals
and closures,and an inspection for any item that does not belong, is suspicious, or may be an IED.
The IFR requires railroads to complete initial risk and route assessment by
September 1, 2009
This IFR becomes effective on June 1,2008. Railroads must begin compiling data and information
concerning the commodities they transport and the routes utilized beginning July 1,2008 and will
have nine months from January 1, 2009 until September 1, 2009 to perform their initial risk and route
assessments. During that time period, railroads must: gather the necessary information; consult with
state, local and tribal officials regarding security risks to high-consequence targets; consider use of
interchange agreements with other railroads for possible alternate routing; finalize the routing model it
will use for its analysis; compare safety and security risks and identify any mitigation measures
needed on both primary and alternate routes; and make a final routing selection.
The IFR gives FRA authority to require railroads to use an alternate route
If in the course of a regular and routine review of a railroad's hazmat security plan,the FRA
determines that the rail carrier's analysis did not satisfy the minimum criteria for performing a safety
and security risk analysis,and that an alternative route poses the least safety and security risks based
on the information available,the agency has authority to require the use of an alternate route until
such time as the identified deficiencies in the routing analysis are corrected by the railroad. FRA will
consult with the Transportation Security Administration and the Surface Transportation Board before
ordering the use of an alternate route.
In a Notice of Proposed Rulemaking published concurrently with this IFR, the FRA is proposing
procedures for rail carriers to appeal such a decision by the FRA to require the use of an
alternative route.
COSTS AND BENEFITS
Overall transportation costs should not increase substantially because of this rule. The reduction in
potential risk afforded by the rule offers a significant economic advantage over the long run. The
expected costs of mitigation actions attributed solely to this IFR will not be significant. FRA
estimates total 20-year costs of compliance to be about$20 million., including the cost of collecting
and retaining data and performing the mandated route safety and security analysis.
In addition, carriers may incur costs associated with rerouting shipments or mitigating safety and
security vulnerabilities identified as result of their route analyses. If incurred,these costs will likely
be passed on in some part to shippers. Smaller carriers,including regional and short line railroads, are
unlikely to have access to alternative routes, and where an alternative docs exist, it is not likely to be
safer and more secure than the route they are currently using.
Estimating the benefits of the new requirements is challenging. The fact that a catastrophic hazmat
release is infrequent or has never occurred does not diminish the risk or possibility of such an event
occurring. The major benefits expected relate to enhanced safety and security of rail shipments of
hazardous materials.
3
Rail Risk Analysis Factors
This sets forth the minimum criteria that must be considered by rail carriers when performing the
safety and security risk analyses. Factors to be considered in the performance of this safety and
security risk analysis include:
1. Volume of hazardous material transported;
2. Rail traffic density;
3. Trip length for route;
4. Presence and characteristics of railroad facilities;
5. Track type,class,and maintenance schedule;
6. Track grade and curvature;
7. Presence or absence of signals and train control systems along the route("dark"versus signaled
territory);
8. Presence or absence of wayside hazard detectors;
9. Number and types of grade crossings;
10. Single versus double track territory;
11. Frequency and location of track turnouts;
12. Proximity to iconic targets;
.13. Environmentally-sensitive or significant areas;
14. Population density along the route;
15. Venues along the route(stations, events,places of congregation);
16. Emergency response capability along the route;
17. Areas of high consequence along the route,including high consequence targets as defined in
172.820(c);
18. Presence of passenger traffic along route (shared track);
19. Speed of train operations;
20. Proximity to en-route storage or repair facilities;
21. Known threats, including any non-public threat scenarios provided by the Department of
Homeland Security or the Department of Transportation for carrier use in the development of the
route assessment;
22. Measures in place to address apparent safety and security risks;
23. Availability of practicable alternative routes;
24. Past incidents;
25. Overall times in transit;
26. Training and skill level of crews; and
27. Impact on rail network traffic and congestion.
For additional information, please contact
FRA Public Affairs (202) 493-6024
www.fra.dot.gov
4
EXHIBIT C
��SA�1p RECpWednesday,
IITT E[A
` 5NlA O
MANEi April 16, 2008
ti a
1985
Part II
Department of
Transportation
Pipeline and Hazardous Materials Safety
Administration
Federal Railroad Administration
49 CFR Parts 172, 174, and 209
Hazardous Materials: Enhancing Rail
Transportation Safety and Security for
Hazardous Materials Shipments; Railroad
Safety Enforcement Procedures; Interim
Final Rule and Proposed Rule
20752 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
DEPARTMENT OF TRANSPORTATION PHMSA-RSPA-2004-18730 by anv of populated or environmentally-sensitive
the following methods: areas where the consequences of an
Pipeline and Hazardous Materials • Federal eRulemaking Portal:Go to incident could be loss of life,serious
Safety Administration http://tvrytr.regulotions.l;ov.Follow the injury, property damage,and/or
online instructions for submitting significant environmental damage.
49 CFR Parts 172 and 174 comments. The same characteristics of hazardous
[Docket No.PHMSA–RSPA-2004-18730]1 • Fah:1–'202-493-2251. materials that cacrsc;c:oncer•n in the
• Mail:Docket Operations,U.S. event of an accidental release also make
RIN 2137-AE02 Department of Transportation,West them attractive targets for terrorism or
Building,Ground Floor,Room W12- sabotage.Hazardous materials in
Hazardous Materials: Enhancing Rail 140,Routing Symbol M-30,1200 New transportation are frequently
Transportation Safety and Security for Jersey Avenue,SE.,Washington,DC transported in substantial quantities and
Hazardous Materials Shipments 20590. are potentially vulnerable to sabotage or
• Hand Delivery:To Docket misuse.Such materials are already
AGENCY:Pipeline and Hazardous Operations;Room W12-140 on the mobile and are frequently transported in
Materials Safety Administration ground floor of the West Building,1200 proximity to large population centers.
(PHMSA),Department of Transportation New Jersey Avenue,SE.,Washington, Further,security of hazardous materials
(DOT). DC',30590,between 9 a.m.and 5 p.m., in the transportation environment poses
ACTION: interim final rule. Monday through Friday,except Federal unique:challenges as compared to
holidays. security at fixed facilities. Finally,
SUMMARY:The.Pipelino and Hazardous ]nstructions:All submissions must hazardous materials in transportation
Materials Safety Administration,in include the agency name and docket often bear clear identifiers to ensure
coordination with the Federal Railroad number for this rule. Note that all their safe and appropriate handling
Administration and the Transportation comments received will he posted during transportation and to facilitate
Security Administration,is revising the without change, including any personal identification and effective emergency
current requirements in the Hazardous information provided.Please see the response in the event of an accident or
Materials Regulations applicable to the release;these identifiers may also
Privacy Act section of the preamble.
safe and secure transportation of identify hazardous materials shipments
OR FURTHER INFORMATION CONTACT:
hazardous materials transported in Fas targets of opportunity for terrorists or
commerce h rail.This interim final William Schoonover, ('202)493--6229, ° pp
5 other criminals.
rule fulfills requirements in Section Office of Safety Assurance and A primary safety and security concern
1551 of the;Implementing Compliance,Federal Railroad related to the rail transportation of
Recommendations of the 9/11 Administration;or Susan Gorsky or Ben hazardous materials is the tion o ion of
Commission Act of 2007. Supko, (202)366-8553,Office of catastrophic release or explosion ti
Hazardous Materials Standards,
in
In this interim final rule,we are proximity to densely populated areas,
requiring rail carriers to compile annual Pipeline and Hazardous Materials Safety including urban areas and events or
data on certain shipments of explosive, Administration. venues with large numbers of people in
toxic by inhalation,and radioactive SUPPLEMENTARY INFORMATION: attendance.Also of major concern is the
materials, use the data to analyzr,safety I.Background release or explosion of rail czars in close
and security risks along rail routes proximit.v to iconic buildirrgs,
where those materials are transported. Hazardous materials are essential to landmarks,or environmentally
assess alternative routing options,and the economy of the United States and significant areas.Such a catastrophic
make routing decisions based on those the well being of its people. Hazardous event could be the result of an
assessments.We are also clarifving rail materials fuel motor vehicles,purify accident—such as the January 6,2005
carriers'responsibility to address in drinking water,and heat and cool derailment and release of chlorine in
their security plans issues related to on homes and offices.Thev are used for Graniteville,South Carolina,which
route storage and delays in transit. in farming and medical applications,and resulted in 9 fatalities and 554
addition,we are adopting a new in manufacturing,mining,and other injuries—or a deliberate act of terrorism.
requirement for rail carriers to inspect industrial processes.Railroads annually The causes of intentional and
placarded hazardous materials rail cars carry over 1.7 million shipments of unintentional releases of hazardous
for signs of tampering or suspicious hazardous materials including material are very different; however,in
items,including improvised explosive explosive,poisonous,corrosive, either case,the potential consequences
devices. flammable and radioactive materials.As of both releases are significant. Indeed,
common carriers,railroads are obligated the consequences of an intentional
DATES:This interim final rule is to accept hazardous cargo that is release of hazardous material by a
effective June 1,2008. tendered in corn liance with legal
Voluntary Compliance Date: �� criminal or terrorist action are likely to
P requirements,whether or not they he more severe than the consequences of
Voluntary compliance is authorized as would choose to do so for business an unintentional release because an
of May 16,2008. reasons.This common carrier obligation intentional action is designed to inflict
Comments:Comments must he ensures that offerors are given the the roost damage possible.
received by May 16, 2008. opportunity to ship hazardous DHS is the lead agency for
ADDRESSES: You may submit comments materials, including the most dangerous transportation security and has shared
identified by the docket number hazardous materials,in the safest,most responsibility with DOT for hazardous
secure manner possible. materials transportation security.DOT
This rulemaking was loriuerly designated as The need for hazardous materials to consults and coordinates on security-
HM-232E;however,with the transition to a new support essential services moans related hazardous materials
gomenclatureh e shice. hall portal,docket number transportation of hazardous materials is transportation requirements to ensure
nomenclature has since changed.Some reterenoes
to the old docket number are still present in this unavoidable. However,these shipments they are consistent with DHS's overall
document. frequently move through densely- security policy goals.Both departments
Federal Register/Vol. 73, No. 74/Wednesday; April 16, 2008/Rules and Regulations 20753
work to ensure that the regulated --Coordinate countermeasures with two annexes are available for review in
industry is not confronted with other Federal agencies to address such the public:docket for this rulemaking. In
inconsistent security guidance or threats(§114(f)(4)); accordance with the principles outlined
requirements promulgated by the- : --Enforce security-related regulations in the PHMSA–TSA arid FRA–TSA
government. and requirements(§114(f)(7)); annexes,PHMSA and FRA collaborated
The Federal Hazardous Materials --Ensure the adequacy of security with TSA to develop this interim final
Transportation Law(Federal Hazmat measures for the transportation of rule.
Laws,49 U.S.C. 5101 et seq.),authorizes cargo (§114(f)(10)):
the Secretary of the Department of ,
--Oversee the implementation and Il.Current Hazardous Materials
Transportation to"prescribe regulations ensure the adequacy of security Transportation Safety and Security
for the safe;transportation,including measures at transportation facilities for
security,of hazardous material in (§1140(11)); A. The Hazardous Materials Regulations
intrastate,interstate,and foreign __Carry out other appropriate duties
commerce."The Secretary has delegated In accordance with §172.704(a)of the
y g relating to transportation security HMR,all hazardous materials
this authority to the Pipeline and (§114(f)(15));and employees(hazmat employees)are
Hazardous Materials Safetv --Serve as the primary liaison for req uired to fulfill the security awareness
Administration (PHMSA).The tr<rnsperrtation security to the
Hazardous Materials Regulations(HMR; intelligence arid laws enforcement training,and employees responsible for
49 CFR parts 171-180),promulgated by communities(§114(f)(5)). developing and implementing security
PHMSA under the mandate in section plans must also complete in-depth
5103(b),govern safety aspects,including In sum,TSA's authority with respect. security training.Subpart I of Part 172
to transportation security is of the HMR requires persons who offer
security,of the transportation of com rehensive and supported with P
hazardous material. In accordance with p PP certain hazardous materials for
its security authority,in March 2003, specific powers related to the transportation or transport certain
PHMSA adopted new,transportation development and enforcement of hazardous materials in commerce to
security requirements for offerors and regulations,security directives,security develop and implement security plans.
plans,and other requirements. A person is required to develop-and
transporters of certain classes and P q P
quantities of hazardous materials and Accordingly, under this authority,TSA implement a security plan if he or she
new security training requirements for
may identify a security threat to any transports any of the following materials
hazardous materials employees.68 FR mode:of transportation,-develop a in commerce:
raeasure for dealing with that threat, 1 A highway route controlled
14509(March is :are e These security and enforce compliance with that quantity c f•a Class 7 radioactive
regulations.which are explained in P q Y (radioactive)
more detail below,require offorors and rneasure. material,as defined at 49 CFR 173.403,
carriers to develop and implement On August 7,2006,PHMSA and TSA in a motor vehicle,rail czar,or freight
security plans and to train their signed an annex to the September 28, container;
emplovbes to recognize and respond to 2004 DOT–DHS Memorandum of (2)More than 35 kg (55 pounds)of a
possible security threats. Understanding(MOU)on Roles and Division 1.1,1.2,or 1.3 (explosive)
When PHMSA adopted its security Responsibilities.The purpose of the material in a motor vehicle,rail czar,or
regulations,we stated that these annex is to delineate clear lines of freight container;
regulations were"the first step in what authority and responsibility and (3)More than one L(1.06 qt)per
may be a series of rulemakings to promote communications,efficiency, package of a material poisonous by
address the security of hazardous and non-duplication of effort through inhalation,as defined at 49 CFR 171.8,
materials shipments."68 FR 14511. cooperation and collaboration in the that meets the criteria for Hazard Zone
PHMSA also noted that the area of hazardous materials A,as specified in 49 CFR 173.116(a)or
Transportation Security Administration transportation security based on existing 173.133(a);
(TSA)"is developing regulations that legal authorities and core compotencies. (4)A shipment of a quantity of
aro likely to impose additional Similarly.on September 28,2006,the hazardous materials in a bulk packaging
requirements beyond those established Federal Railroad Administration (FRA) having a capacity equal to.or greater
in this final rule,"and stated it would andTSA signed an annex to address than,13,248 L(3,500 gallons)for liquids
..consult and coordinate with TSA each agency's roles and responsibilities or gases or more than 13.24 cubic meters
concerning security-related hazardous for rail transportation security.The (468 cubic feet)for solids;
materials transportation regulations FRA–TSA annex provides that"DHS (5)A shipment in other than a bulk
* *"Id. holds lead authority,primary packaging of 2,268 kg(5,000 pounds)
Under Section 101(a)of the Aviation responsibility and dedicated resources gross weight,or more,of one class of
and Transportation Security Act(ATSA) for security activities in all modes of hazardous materials for which
(codified at 49 U.S.C. 114)and 49 CFR transportation including rail." placarding of a vehicle,rail car,or
1502.1.TSA has broad responsibility Concerning safety,the FRA–TSA annex freight container is required for that
and authority for"security in all modes recognizes that FRA has authority over class under the provisions of subpart-F
of transportation * * *"ATSA every area of railroad safety(including of 49 CFR part 172;
authorizes TSA to take immediate security)arid that FRA enforces (6)A select agent or toxin regulated
action to protect transportation security PHMSA's hazardous materials by the:Centers for Disease Control and
(49 U.S.C. 114(4)(2)),and to: regulations.The FRA–TSA annex Prevention tinder 42 CFR part 73;or
—Develop policies,strategies and plans includes procedures for coordinating: (7)A quantity of hazardous material
for dealing with threats to (1)Planning,inspection,training,arid that requires placarding under the
transportation (§114(1)(3)); enforcement activities;(2)criticality and provisions of subpart F of 49 CFR part
—Assess intelligence and other vulnerability assessments and security 172.
information in order to identify reviews;(3)communicating with Subpart I of part 172 sets forth general
individuals who pose a threat to affected stakeholders;and(4)use of requirements for a security plan's
transporla Lion security(§114(f)(1)); personnel and roscrtrrces.Copies of the components rather than a proscriptive
20754 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
list of specific items that must be B. AAR Circular OT-55-1 if it meet or pass must occur on less than
included.The security plan must The rail industry,through the Class 2 track due to an emergency,one
include an assessment of possible Associ�ition of American Railroads of the trains should be stopped before
transportation security risks and (AAR),has developed a detailed the other train passes.This interim final
appropriate measures to address the protocol on recommended railroad rule in part reflects the recommended
assessed risks. Specific measures operating practices for the practices mentioned above,which are
implemented as part of the plan may transportation of hazardous materials. already in wide use across the rail
vary according to the nature and level These recommended practices were industry.
of threat at a particular time.At a originally implemented by all of the III.Notices of Proposed Rulemaking
minimum,the security plan must Class 1 rail carriers operating in the
address personnel security, United States;short-line railroads are On December 21,'2006,PHMSA,in
unauthorized access,and on route also signatories to the most recent coordination tic FRA and TSA,
security.To address personnel security, version of this document,known as Published a notice of proposed
rulemaking(NPRM)under Docket HM—
the plan must include measures to Circular OT-55—I,issued by AAR on 232E (71 FR 76834)proposing to revise
confirm background information July 17,3006.The Circular details the current requirements in the HMR
provided by job applicants for positions railroad operating practices for: (1) applicable to the safe and secure
involving access to and handling of the Designating trains containing(i)five transportation of hazardous materials by
hazardous materials covered by the tank car loads or more of poison rail. Specifically,we proposed to
plan.To address unauthorized access, inhalation hazard (PIH)materials, (ii) 20 require rail carriers to compile annual
the plan must include measures or more czar loads or intermodal portable data on specified shipments of
designed to limit or mitigate the risk of tank loads of a combination of PIH, hazardous materials,use the data to
unauthorized persons gaining access to flammable gas,Class 1.1 or 1.2 analyze safety and security risks along
materials or transport conveyances explosives,and environmentally- rail routes where those materials are
being prepared for transportation.To sensitive chemicals,or(iii) one or more transported,assess alternative routing
address on route security,the plan must car loads of spent nuclear fuel or high options,and make routing decisions
include measures to rnitigat.e security level radioactive waste as"key trains;" based on those assessments.We also
risks during transportation, including (2)designating operating speed and proposed clarifications of the current
the security of shipments stored equipment restrictions for key grains; (3) security plan requirements to address en
temporarily en route to their designating"key routes"for key trains, route storage,delays in transit,delivery
destinations. and setting standards for track notification,and additional security
Under these standards,security plans inspection and wayside defect detectors; inspection requirements for hazardous
can amid should differ from one offeror (4)yard operating practices for handling materials shipments.
or carrier to another. in reach case,the Placarded tank cars: (5)storage, loading, Also on December 21,2006,TSA
plan should be based on the offeror's or unloading and handling of tank czars; (6) published an NPRM proposing security
carrier's individualized assessment of assisting communities with emergency regulations that would cover a broader
the security risks associated with the response training and information; (i) spectrum of rail transportation,
specific hazardous materials it ships or shipper notification procedures;and(8) including passenger service. (71 FR
transports and its unique circumstances the handling of time-sensitive materials. 76852;see also TSA's Initial Regulatory
and operational environment. Circular OT-55-1 defines a"key Flexibility Analysis, 72 FR 7376 117eb.
route"as: 15, '?007J.)The TSA proposal is
The HMR also contain limited intended to reduce security risks
provisions intended to minimize delays Anv track with a combination of:10.000 car associated with certain hazardous
in transportation.Pursuant to§174.1.4 loads or intermodal portable lank loads of materialin designated High
h
aired to
of the HMR,rail carriers are re hi+zardous maLerials,or a combination of s shipments esi*L c
q 4.000 car loadings ofP111(Hazard zone A.B, Threat Urban Areas(HTUAs)and to
expedite the movement of hazardous G.or ll),anhydrous ammonia,flammable gas. raise the overall security baseline for
materials shipments.Each shipment of Class 1.1 or 1.2 explosives.environmentally-freight railroad shipments. (TSA has
hazardous materials must be forwarded sensitive chemicals,Spent Nuclearueidentified geographic areas as
"promptly and within 48 hours (SNP),and High Level Radioactive Waste HTUAs warranting special
(Saturdays,Sundays,and holidays (HLRW)over a period of one year.
consideration based on population and
excluded)"after acceptance of the Any route defined by a railroad as a risk assessment data. See 71 FR at
shipment by the rail carrier.If only kev route should meet certain standards 76861.)The TSA proposal applies to
biweekly or weekly service is described in OT-55-1.Wayside freight railroad carriers;intercity,
performed,the carrier must forward a defective whoel bearing detectors commuter,and short-haul passenger
shipment of hazardous materials in the should be placed at a maximum of 40 trains;rail mass transit systems;and rail
first available train.Additionally, miles apart,or an equivalent level of operations at certain fixed facilities that
carriers are prohibited from holding, protection may be installed based on ship or receive PIH,explosive,or
subject to forwarding orders,tank cars improvements in technology.Main track radioactive materials.
loaded with Division 2.1 (flammable on key routes should be inspected by The hazardous materials provisions of
gas),Division 2.3 (poisonous gas)or rail defect detection and track geometry the TSA proposal complement and
Class 3 (flammable liquid) materials. inspection cars or by any equivalent build on the proposals in the PHMSA
The purpose of§174.14 is to help level of inspection at least twice each NPRM. Specifically,TSA proposed to
ensure the prompt delivery of hazardous year.Sidings on key routes should be require railroads to designate rail
materials shipments and to minimize inspected at least once a year,and main security coordinators to serve as
the time such materials spend in track and sidings should have periodic primary contacts for receipt of
transportation,thus minimizing the track inspections to identify cracks or intelligence information and to require
exposure of hazmat shipments to breaks in joint bars.Further,any track reporting of significant security
accidents,derailments,unintended used for meeting and passing key trains concerns, potential threats,arra
releases,or tampering. should he FRA Class 2 track or higher. incidents.In addition,upon request
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20755
from TSA,rail carriers and certain (3)Seek relevant information from addressing the comments received in
facility operators would be required to state,local,and tribal officials,as response to the NPRM.We believe that
report car locations and shipping appropriate,regarding security risks to the changes and additions to the NPRM .
information for shipments of PIH, high-consequence targets-along or in made in this IFR are well within the
explosive,and radioactive materials proximity to a route used by'a rail scope of the NPRM.We are.publishing
within one hour of the request..TSA also carrier to transport security-sensitive an interim final rule rather than a final
proposed enhanced chain-of-custody materials; rule to provide interested persons with
requirements for rail shipments of PiH, (4)Consider the use of interchange an opportunity to provide specific
explosive,and radioactive materials in agreements with other rail carriers when comments on whether the IFR fully
HTUAs to ensure that no czar is left determining practicable alternative implements the requirements of the Act.
unattended as it is transferred from routes and the potential economic
shipper to carrier,between carriers,or effects of using an alternative route; V.Comments on the NPRM
from carrier to consignee. (5)Analyze for both the primary route We received more than 50 sets of
To obtain additional public input.on and each practicable alternative route comments from individuals:members of
our NPRM,PHMSA hosted meetings on the safety and security risks for the Congress;Federal,state,and local
February 1;2007,in Washington,DC, route,railroad facilities,railroad storage governmental entities;companies;
and February 9,2007,in Dallas,Texas. facilities,and high-consequence targets industry associations;public interest
TSA also held a public meeting on its along or in proximity to the route;these groups:labor organizations;and a
NPRM on February 2,2007, in analyses must be in writing and homeowners'association.Generally,
Arlington,Virginia.Thirty-five persons performed for each calendar year; large rail carriers and their associations
attended the Washington,DC public (6)Compare the safety and security express support for the proposals in the
meeting,and 15 persons attended the risks on the.primary and alternative; NPRM and,in particular,the flexibility
Dallas meeting.Records of the public routes,including the risk of a for rail carriers to designate routes based
meetings, including attendance lists, catastrophic release from a shipment on an analysis of safety and security
transcripts,and a list of questions traveling along these routes,and vulnerabilities and measures
commenters were asked to address,are identify any remediation or mitigation implemented to address those
available for review in the:public docket measures implemented on the primary vulnerabilities. Small carriers and single;
for this rulemaking, and alternative transportation routes; line haulers express some concern about
IV.Implementing Recommendations of and
Using the analysis described the applicability of the routing
the 9/11 Commission Act of 2007 above,select the practicable route cases,provisions le their operations—in many
Several weeks after the close of the posing the least overall safety and cases,smaller rail carriers operate on a
comment period in this proceeding, security risk. single line and routing options are
Congress enacted the implementing The rule must also require that a . limited.
Recommendations of the 9/11 covered sail carrier,at least once ever Commenters representing state and
local governments and environmental
Commission Act of 2007 (Pub.L. 110– three years,analyze its route selection
53; 1'21. Stat. 266),which the President determinations,including a groups generally oppose the proposals
signed into law on August 3,2007. comprehensive,system-wide.,review of fn the NPRM. Some of these
Among other requirements,the Act all operational changes, infrastructure commenters suggest that the Federal
directs the Secretary of Transportation, modifications,traffic adjustments, government should mandate specific
in consultation with the Secretary of . changes in the nature of high- routing for high-hazard materials rather
Homeland Security,to publish a final consequence targets located along or in than provide rail carriers the discretion
rule based on PHMSA's December 21, proximity to the route,or other changes to make routing decisions. Others,
2006 NPRM by May 3,2008.In affecting the safety and security of the Particularly state and local government
commenters,want to be able to
accordance with Section 1551(e)of the movements of security-sensitive implement routing restrictions within
Act,PHMSA's.final rule must require materials that were implemented since their jurisdictions and,thus,urge us to
rail carriers of"security-sensitive the previous analysis was completed. modify or eliminate the preemptive
materials"to.`.`selec:t the safest and most Finally,the rule is to require that effect of a final rule on non-Federal
secure route to be used in transporting" covered rail carriers retain in writing all jurisdictions.
those materials,based on the rail route review and selection decision Nearly all the commenters suggest
carrier's analysis of the safety and documentation and restrict the that we maintain consistency with
security risks on primary and alternate distribution,disclosure,and availability TSA's proposed rail requirements in
transportation routes over which the of this information to appropriate regard to package size,covered
carrier has authority to operate. . persons. hazardous materials,and enforcement of
Specifically,the HM-232E final rule The 9/11 Commission Act defines
must require such rail carriers to "security-sensitive material"to mean the proposed requirements.
perform the following tasks each the material or classes of materials that The comments and public meeting
transcripts in the docket for this
calendar vear: the Secretary of Homeland Security,in
(1)Colfect and compile security- consultation with the Secretary of rtelemaking may be reviewed at http://
sensitive commodity data,by route;line Transportation,determines through a rtntry''•regulntions.00vunder docket
segment,or series of line segments,as rulemaking proceeding with number PHMSA–RSPA-2004-1f3730.
aggregated by the rail carrier and opportunity for public comment pose a For your convenience,a listing of the
identify the geographic location of the significant risk to national security docket entries is provided below.
route and the total number of shipments while being transported in commerce. Name/company
by UN identification number; As we explain further in later sections
(2)Identify practicable alternative of this rule,PHMSA believes the interim Melanie Weintraub and Family.
routes over which the carrier has final rule eve are publishing today Kevin D. Kime.
authority to operate as compared to the fulfills the requirements in §1551 of the Institute of Makers of Explosives(IME).
current route for such shipments; 9/11 Commission Act,in addition to Tom Nitza.
20756 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
Name/company • Rail carriers transporting certain continue to believe that rail carriers are
explosives,'PIH material,and in the best position to identify and
Anonymous. radioactive materials must compile. assess risks across their systems and.
U.S. Department of Energy, Naval Nuclear information and data on the that en route safety and security
Propulsion Program(NNPP). commodities transported,including the measures will be most effective in
Congressman Dennis J. Kucinich. routes over which these commodities reducing system risks when tailored to
Transcript—Washington, DC Public Meeting. are transported. the carrier's specific circumstances and
BASF Corporation. . Rail carriers transporting the operations.This approach for
District of Columbia. � P �
Institute of Makers of Explosives(IME). specified hazardous materials must use determining the;safest and most secure
American Chemistry Council (ACC). the;data they compile and relevant rail routes is consistent with the
The Chlorine Institute, Inc. information from state,local.and tribal requirements in§1551 of the 9/11
The Fertilizer Institute, Inc. (TFI). officials,as appropriate,regarding Commission Act.Rail carriers use
Metropolitan Transportation Authority. security risks to high-consequence alternative:routing in the normal course
The Dow Chemical Company(Dow). targets along or in proximity to a route of business to accommodate a variety of
Chairman and 3 members of the Committee to analyze the safety and security risks circumstances,such as derailments,
re Homeland Security, U.S. House of Rep for each route used and practicable accidents,damaged track,natural
resentat ionaves. alternative routes to the route used. events,traffic bottlenecks,and
The National Industrial Transportation
League(NITL). • Using these analyses,rail carriers heightened security necessitated by
American Short Line and Regional Railroad must select the safest and most secure major events.In performing the route
Association. practicable route for the;specified analysis required by the interim final
Greenpeace. hazardous materials. rule,we expect a rail carrier to make an
Back Creek-II Homeowners.Association, Inc. . In developing their security plans, informed decision,balancing all
Argonne National Laboratory Report. rail carriers must specifically address relevant factors and the best information
Surface Transportation Board(STB). the security risks associated with available.
Friends of the Earth. shipments delayed in transit or Although individualized risk
Friends of the Earth. temporarily stored in transit. assessment necessarily is more
Friends of the Earth. P Y�sY
Mayo Clinic. Rail carriers transporting the challenging to perform and oversee,we
Association of American Railroads(AAR). covered hazardous materials must notify believe this approach offers the greatest
City of Cleveland, Ohio. consignees of any significant unplanned overall benefit.We expect the end result
BNSF Railway Company. delays affecting the delivery of the of the analyses to be a clear picture of
Transportation Trades Department, AFL– hazardous material. . the practicable alternative route(s)
CIO. . Rail carriers must work with available to rail carriers for the
Independent Lubricant Manufacturers Asso- shippers and consignees to minimize
tPP g transportation of the specified
ciaion.
City tBaltimore, Maryland. the time a rail car containing one of the hazardous materials.As we transition to
Norfolk Southern Corporation. specified hazardous materials is placed the new requirements,PHMSA and FRA
Eureka County, Nevada, Office of Public oil track awaiting pick-up,delivery,or are committed to working with the
Works. transfer. railroads to provide the tools and
National Association of Chemical Distributors. • Rail carriers must conduct security training necessary to conduct the
Brotherhood of Locomotive Engineers and visual inspections at ground level of rail required analyses and make appropriate
Trainmen. cars containing hazardous materials to route selections.
DuPont. check for signs of tampering or the By the same token,we intend to
Friends of the Earth. introduction of an improvised explosive aggressively oversee railroads'route
State of New Jersey, Office of Homeland Se- device(1131)).
curity& Preparedness. analyses and route selection
Transcript—Dallas Public Meeting. This interim final rule is effective determinations and will use all
Union Pacific Railroad Company. June 1,2008.Beginning January 1, 2009, available tools to enforce compliance
The Dow Chemical Company, Olin Corpora- rail carriers must compile information with the rule.As the agency with
tion, Norfolk Southern Corporation, Union on the commodities they transport and primary responsibility for railroad safety
Pacific Railroad Company, and Occidental the routes they use for the 6-month enforcement,FRA will incorporate
Chemical Corporation. period from July 1,2008 to December review and inspection of route analyses
Akzo Nobel Chemicals, Inc. 31,2008,Rail carriers must complete and selections into its inspection
City of St. Louis, MO. their data collection by March 1,2009. programs.FRA inspectors may offer
Nuclear Energy Institute. By September•1,2009,rail carriers must suggestions for modifying or improving
National Association of SARA Title III Pro complete the safety and security the analysis or make changes to a route
gram Officials.
Colorado Emergency Planning Commission. analyses of routes currently utilized and if the route selection documentation or
Jefferson County Local Emergency Planning available alternatives and select the underlying analysis is found to be
. Committee. safest,most secure routes for deficient. If an inspector's
City of Las Vegas, Nevada. transporting the specified explosive, . recommendations are not implemented,
Springfield Terminal Railway Company. PTH,and radioactive materials. FRA may compel a-rail carrier to make
American Petroleum Institute. Beginning January 1,'2010.and for changes and/or assess a civil penalty.
CSX Transportation, Inc. subsequent years,rail carriers must Further,if the carrier's chosen route is
State of Connecticut, Attorney General. compile information on the found not to be the safest and,most
VI.Summary of the Interim Final Rule commodities they transport and the secure practicable route available,FRA
routes used for the previous calendar may require the use of an alternative
Based on comments received in year and complete route assessments route.
response to the NPRM and the and selections by the end of tlae As we implement the interim final
provisions of the 9/11 Commission Act, calendar year. rule,PHMSA and FRA are committed to
in this interim final rule,we are. in adopting these requirements,we working with railroads,and with
adopting the following revisions to the reject the;more prescriptive approaches communities and first responders,to
HMR: urged by some commenters.We strengthen their capabilities and reduce
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20757
the;risks associated with hazardous The specific provisions of the interim security risks—because of the potential
materials transportation.As discussed final rule,including a discussion of consequences of an unintentional
below,we are developing a route comments received on the NPRM and release of these materials—and the most
assessment tool that rail carriers may the provisions of the 9/11 Commission attractive targets for terrorists—because
use in weighing and considering the Act,are detailed in the following of the potential for these materials to be
route analysis criteria. sections of this rule. used as weapons of opportunity or
PI-IMSA also is stepping up its efforts weapons of mass destruction.
VII.Discussion of Comments and
to build emergency response - Section-by-Section Review Following is a basic:summary of the
capabilities through national programs materials and critical vulnerabilities
and community-based planning and A. General(§.I72.820(a)) warranting enhanced safety and security
training. We are sponsoring several in the NPRM,we proposed to require measures:
initiatives intended to enhance rail carriers to implement enhanced • Division 1.1.. 1.2,and 1.3 explosive
community preparedness, including a safety and security measures for materials.A Division 1.1 explosive is
project with the international shipments of the following classes and one presenting a mass explosive hazard.
Association of Fire Chiefs to provide quantities of hazardous materials: A mass explosion is one affecting almost
real-time access to emergency response (1)More than 2,368 kg(5,(l(l0 lbs) in the entire load simultaneously.A
information and to share lessons learned a single carload of a Division 1.1, 1.2 or Division 1.2 explosive has a projection
from past incidents and exercises.With 1.3 explosive; hazard,which means if the material
Congress'approval,we are expanding (2)A bulk quantity of a material were to explode, it would project
the Hazardous Materials Emergency poisonous by inhalation,as defined in fragments outward at some distance.A
Preparedness(HMEP)program,which §171.8 of the HMR; or Division 1.3 explosive presents a fire
provides funds for developing, (3)A highway route-controlled hazard and either a minor blast hazard
improving,and implementing quantity of a Class 7(radioactive) or a minor projection hazard or both. if
emergency response plans and for. nnaterial,as defined in §173.403 of the compromised in transit by detonation or
training public:sector employees to HMR, as a secondary explosion to an IED,
respond to accidents and incidents The 9/11 Commission Act directs the these explosives Gould result in
involving hazardous materials. We Secretary of Transportation to ensure substantial damage to people,public,
believe these planning and training that this final rule requires railroad and private property,and rail
efforts are most effective when they are carriers to compile comrnodity data on infrastructure.Roughly 2,500 carloads
tailored to the particular risks facing a the security-sensitive materials they of those explosives are transported by
community. transport.Section 1501 of the Act
rail each year.
We agree that local and regional defines"security-sensitive material"to • PlHinaterials.PTH materials are.
governments require information on the mean a material or group or class of gases or liquids that are known,or
types,quantities,and locations of materials,in a particular quantity and presumed on the basis of tests,to be
hazardous materials transported through form that the Secretary of Homeland toxic to humans and to pose a hazard to
their jurisdictions to plan for effective Security,in consultation with the health in the event of a release during
and appropriate emergency response to Socretary of Transportation,determines transportation.PTH materials pose
incidents.We developed a detailed through rulemaking with opportunity special risks during transportation
handbook(Guidance for Conducting for public comment,poses a significant because their uncontrolled release can
Hazardous Materials Flow Surveys, risk to national security while being endanger significant numbers of people.
January 1995)for local governments to transported in commerce. In making The January 6,2005 train derailment in
use in conducting commodity flow such a determination,the Secretary of Graniteville,South Carolina with
studies of hazardous materials Homeland Security is directed to subsequent release of chlorine sadly
transported by highway,and we are consider: (1)Class 7 radioactive underscored this risk.About 100,00(1
encouraging states to use HMEP grant materials;(2)Division 1.1, 1.2,and 1.3 carloads of TIH chemicals are shipped
funds to study flow patterns of explosives;(3)materials poisonous or by rail each year.Note that for purposes
hazardous materials within and between toxic by inhalation,including Division of the HMR,the terms"poison"and
states and to determine the need within 2.3 gases and Division 6.1 materials;and "toxic"are synonymous,as are the
a state:for regional hazardous materials (4)a select agent or toxin regulated by terms"poison inhalation hazard"or
emergency response teams. We are the Centers for Disease Control and "PIH materials"and"toxic inhalation
updating our 1995 handbook through a Prevention (CDC)under 42 CFR part 73. hazard"or"TIH materials."
cooperative.research project aimed at PHMSA,FRA,and TSA assessed the • Hightivay Route Controlled Quantity
producing a comprehensive,user- safety and security vulnerabilities Radioactive Materials(HRCQ).
friendly resource that will help local associated with the transportation of Shipments of I1RCQ of radioactive
planners develop corn rnodity-flow data different types and classes.of hazardous materials are large quantities of
for all modes of transportation and to rnaterials.The list of materials to which radioactive materials requiring spocial
use the data to inform decision-making the proposed enhanced safety and controls during transportation.Because
concerning risk assessment,emergency security requirements would apply,is of the quantity included in a single
response preparedness,and resource based on specific railroad transportation packaging,HRCQ shipments pose
allocation and to support analyses . scenarios.These scenarios depict flow significant safety and security risks.
across jurisdictional boundaries.In hazardous materials could be Very few HRCQ shipments are
addition,we aro developing a guide for deliberately used to cause significant transported by rail.Spent nuclear fuel
assessing emergency response needs casualties and property damage or and high-level waste are shipped in
and capabilities for hazardous materials accident scenarios resulting in similar containers certified under the Atomic
releases to provide a tool for state and catastrophic consequences.DOT and Energy Act to meet stringent safety
local governments to use to identify and DHS determined that the materials requirements designed to prevent
address unmet emergency response specified in the:NPRM present the release of radioactive materials even in
planning and resource needs. greatest rail transportation safety and the event of a severe accident.
20758 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
The NPRM did not propose to include expansion of chlorine,a residue amount adding anhydrous ammonia as an
select agents or toxins regulated by the of 160-320 gallons would result in example,in §172.802(a),of a material
CDC under 42 CFR part 73 because approximately 9,600 to 19,200 cubic feet that falls tinder the requirements to
railroads transport few,if any, of chlorine gas.Based on guidance in develop and implement additional
shipments of theses types of materials. the DOT Emergency Response safety and security planning
Generally,shipments of infectious Guidebook,the residue amount requirements,as established by this
substances, including select agents and remaining in a chlorine tank car,if interim final rule:.Commenters are
toxins,must be transported quickly spilled,would suggest.an initial correct that.,under the HMR,anhydrous
from origin to destination to prevent isolation distance ranging from 800 ft in ammonia is classed as a Division 2.2
degradation of samples that.can occur all directions and a protective distance compressed gas for domestic
over time and to ensure swift diagnosis of at least 1.5 mi for persons downwind transportation.However,anhydrous
and treatment of infectious diseases.For at night.From a safety standpoint,it ammonia meets the definition of a
these reasons,highway (for short makes sense to require bulk quantities material that is poisonous by inhalation
distances)and air(for longer distances) of PIH residue remaining in tank cars to under§171.8 of the HMR.That
are the preferred modes of transport for travel on the"hest"route available—the definition includes any material
these materials. route that considers factors such as identified as an inhalation hazard by a
Most commenters agree that the above population density,emergency response special provision in column 7 of the
listed materials pose the most capabilities,environmentally-sensitive §172.101 Hazardous Materials Table
significant rail transportation safety and and significant areas,and event venues. (HMT).The entry for anhydrous
security risks.The Institute of Makers of Adoption of the proposed TSA ammonia in the HMT in(audes Special
Explosives(IME),Dow Chemical threshold for PIH shipments would also Provision 13,which requires the words
Company(Dow),Chlorine Institute, Inc., exclude rail shipments of most bulk "Inhalation Hazard"to be.entered on
and Mr.Tom Nitza express some packagings containing PIH materials shipping papers and marked on
concern that the PHMSA and TSA rail from the route analysis and selection packages.
security NPRMs are not consistent in requirements in this interim final rule. Once again,we note that for purposes
terms of their application to shipments Portable tanks,for example,typically of the HMR,the terms"poison"and
of PTH materials.The PHMSA NPRM contain up to 3,000 gallons,and some "toxic"are synonymous,as are the
applies to bulk quantities of PIH are designed to contain up to 6,000 terms"poison inhalation hazard"or
materials.A"bulk quantity"as used in gallons. While the isolation and "PIH materials"and"toxic inhalation
the HMR means a quantity that exceeds evacuation distances for portable tanks hazard"or"TIH materials."
450 L(119 gallons)for liquids,a net would be the same as those for residue In the NPRM,we sought comments as
mass greater than 400 kg(882 pounds) quantities in a tank car.the amount of to whether the proposed requirements
for solids,or a water capacity greater gas produced would greatly increase. should also apply to flammable gases,
than 454 kg(1,000 pounds)as a The amount of a PIH material contained flammable liquids,or other materials
receptacle for gas (49 CFR 171.8).Thtrs, in a fully loaded portable tank could,if that.could he weaponized,as well as
the provisions of the PHMSA NPRM released entirely,expand to produce hazardous materials that could cause
would apply to PIH shipments roughly 180,000 to 361,000 cubic feet of serious environmental damage if
transported in tank cars, including gas,creating a safety risk to individuals released into rivers or lakes.
residue amounts exceeding 119 gallons, within the area of the release.l-Vhc:n Commenters who addressed this issue
and portable tanks and other bulk considering risks posed by bulk state that rail shipments of Division 1.1,
containers.The TSA NPRM applies to containers such as portable tanks, 1.2,and 1.3 explosives;PIH materials;
tank cars containing PIH materials, different safety and security related and highway-route controlled quantities
excluding residues.Commenters suggest aspects must be considered.Portable of radioactive materials pose significant
that the two rules should be applied tanks are designed to be filled and rail safety and security risks warranting
consistently and recommend that we emptied after removal from a transport the enhanced security measures
adopt the TSA tank-car threshold and conveyance;therefore,they have proposed in the NPRM and adopted in
exclude residue shipments. thinner walls and heads and are this interim final rule.Commenters
While we recognize that TSA used a generally less robust,which makes them generally do not support enhanced
risk-based approach in determining the more prone to puncture or rupture than security measures for a broader list of
PIH quantities to which its rail security a tank czar. materials than was proposed in the
NPRM would apply,we disagree from a We believe the,safety risks posed by NPRM.
safety perspective that bulk packages the rail transportation of bulk quantities The City of Las Vegas,Nevada.
other than tank czars and residue of PIH materials should be addressed supports expanding the list of materials
shipments should be excepted from the through enhanced safety requirements, for which enhanced security measures
rotrte analysis and route selection . including rout(.,assessments.Therefore, are required to include flammable
requirements adopted in this interim in this interim final rule,we are liquids;flammable gases;certain
final rule.Although target attractiveness requiring enhanced safety measures for oxidizers;certain organic peroxides;and
from a security standpoint is bulk quantities of a material poisonous 5.000 pounds or greater of pyrophoric .
diminished,significant safety risks by inhalation,as proposed in the NPRM. materials.While DOT and DHS agree
persist.A typical tank car of chlorine, Written comments submitted by TME that these materials pose certain safety
for example,will contain about 16,000 and AAR and statements by participants and security risks in rail transportation,
gallons when full and may contain a in the public meetings highlight the the risks are not as great as those posed
residue amount of 160-320 gallons(1– confusion as to whether we intended by the explosive.PTH,and radioactive
2 percent of the original amount in the anhydrous ammonia to be included as a materials specified in the NPRM,and
tank).Upon release from its container or PiH material for which enhanced safety we are not persuaded that they warrant
packaging.each cubic foot of liquid and security measures are required.The the additional precautions required by
chlorine will rapidly expand to answer is yes.To ensure that this the interim final rule.We note that the
approximately 450 cubic feet of chlorine confusion does not persist, in this hazardous materials listed by the City of
gas. Using this rough estimate for the interim final rule,we:are specifically Las Vegas are currently subject to the
Federal Register/Vol. 73, No. 74/Wednesday; April 16, 2008/Rules and Regulations 20759
security plan requirements in Subpart I it to be broadly disclosed to government concerns and request an inspection of a
of Part 172 of the HMR.Thus,shippers or private entities.We note that.AAR route plan,security vulnerability,or,
arid r..arriers of these materials must Circular OT-55-1 provides for more generally,a rail carrier.
develop and implement security plans disclosure of certain commodity flow To provide carriers with flexibility in
based on an assessment of the data, upon request,to local emergency compiling arid assessing the data,we are
transportation security risks posed by response agencies and planning groups. not adopting a specified format;
the materials. Security plans must At a minimum,such information is to however,the data must be available in
include measures to address personnel include rank-order identification of the a format that can be read and
Se'cur'ity,unauthorized access,and en top 25 hazardous commodities understood by DOT personnel and that
route security.DOT,in consultation transported through the community. clearly identifies the physical locations
with DHS,will continue to evaluate thr, Section 1551(h)of the 9/11 of the carrier's route(s)and commodities
transportation safety and security risks Commission Act requires rail carriers to transported over each route. Physical
posed by all types of hazardous seek relevant information from state, location may be identified by beginning
materials and the effectiveness of our local,and tribal officials,as appropriate, and ending point,locality name,station
regulations in addressing those risks regarding security risks to high- name,track milepost,or other method
and will consider revising specific: consequence targets along or in devised by the rail carrier which
requirements as necessary. Froximity to a route used to transport specifies the geographic:location.
For purposes of Section 1551 of the security sensitive materials.A"high Carriers must retain the data for two
9/11 Commission Act,DHS,in consequence target" is defined in the years,in either hard copy or electronic
consultation with DOT, is developing a Act to mean a property,natural farm.
list of"security-sensitive materials" for resource,location,area,or other target.
rail transportation.DHS plans to designated by the Secretary of. C. Transportation Route Annh sis
Rail Rail 20(r,).)
publish its determination concerning Homeland Security that is a viable target
"rail Security-sensitive materials"in a of national significance for which an In the NPRM,PHMSA proposed to
forthcoming rulemaking.Upon attack by railroad could result in require rail carriers to use the data
publication of this determination,DOT catastrophic loss of life,significant compilation described above to analyze
will consider whether to revise the list c.amage to national security or defense the rail routes over which the specified
of materials to which the safety and capabilities,or national economic harm. materials are transported.As proposed,
security requirements adopted in this We are adopting this requirement in this carriers would be required to analyze
IFR apply. We note in this regard that interim final rule.More broadly, the specific safety and security risks for
in future rulemaking actions DHS may however,rail carriers should work with routes identified in the commodity data
also make determinations as to the state and local governments when collection and the railroad facilities
materials that should be considered conducting the:route safety and security along those routes.The route analyses
security-sensitive,for other modes of analysis required by this interim final would be required to be in writing and
transportation or for non-transportation rule and in making routing decisions to consider,at a minimum,a number of
operations and facilities. teased on that analysis.To this end,rail factors specific to each individual route.
B. Gommodity Data(§172.820(6)) carriers must share information as A non-inclusive list of those factors was
necessary and appropriate to enable included in proposed Appendix D to
The NPRM proposed to require rail state and local governmonts to provide Subpart 1 of Part 172•
carriers to compile commodity data on meaningful input into the process. We Several comments were submitted in
an annual basis for the covered note in this regard that among the response to the proposed requirement.
hazardous materials,including an factors to be considered by rail carriers In its comments,Dow suggests that
identification of the routes utilized and in conducting the safety and security "railroad facilities,"as used in this
the total number of shipments analysis are population density along section,should be defined as facilities at
transported.The data are to be used by the route;environmentally-sensitive;or which storage incidental to movement
the rail carriers to identify the routes significant areas;venues along the route occurs along the route,including,but
over which the specified hazardous (stations,events,places of not limited to,classification and
materials are transported and the congrogation):emergency response switching yards,and non-private
number of shipments utilizing each capability along the route;measures arid sidings.Dow suggests that we clarify
route.As proposed,rail carriers would countermeasures already in place to that railroad facilities do not include an
he required to analyze the safety and address apparent safety and security offeror's facility,private track,private
security risks of the routes identified. risks;proximity to iconic;targets;and siding,or the hazardous materials'final
The City of Cleveland,Ohio,suggests areas of high consequence along the destination.We agree with Dow that the
that we revise the proposal in the NPRM route.State and local governments may term "railroad facility"should be
to require rail carriers to share the well be able to assist rail carriers in clearly defined in the HMR.Therefore,
commodity data with local governments identifying and assessing this type of in this interim final rule,we are
responsible for the,geographic areas information.Moreover,state and local adopting Dow's suggested definition in
through which hazardous materials are government entities may also be able to §172.820(c).For purposes of this
transported.We agree that state and assist rail carriers in addressing any section,"railroad facilit.v"means
local governments should have access to safety or security vulnerabilities railroad property including,but not.
such information,provided access to the identified along selected routes, in the limited to,storage facilities,
information is limited to those with a scheduling of public events,for classification and switching vards,and
"need-to-know"for transportation Example;or enhancing'emergoncy non-private sidings.The term does riot
safety and security purposes,and response capabilities. If a rail carrier is include an of'feror's facility, private
further provided that such information unable to acquire relevant information track,private siding,or consignee's
may not be publicly disclosed pursuant from state,local,or tribal officials,then facility.
to any state,local,or tribal law.Because it must document that in its analysis. AAR suggests an exception from the
of t.fre security sensitivity of the We note as well that states and local analysis requirements if there have been
commodity data,it is not appropriate for governments may contact FRA to voice no significant changes since the
20760 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
previous analysis and less than five is consistent with the analysis Factors of proposed Appendix D to Part
calendar years have passed since the requirements proposed in the NPRM 172.It is the rail carrier's responsibility
previous analysis was performed.We and adopted in this interim final rule. to retain a copy(or an electronic image
will address this issue in more detail We have modified the applicable thereof)of all route review and selection
later in this rule.We would note that sections of the interim final rule to decision documentation used when
any significant changes to the route over clarify that rail carriers'safety and selecting the practical route posing the
which the covered hazardous materials security analyses must cover the listed least overall.safety and security risk.
are transported that occurs before the items. This documentation should include,but
calendar year actually lapses trigger a As discussed in the NPRM,we gave isnot limited to,comparative analyses,
revised route analysis. careful consideration to the question of charts,graphics,or rail system maps.
AAR also suggests an excoption from how to define a"rail transportation The NPRM noted that a primary safety
the route analysis requirements for rail route"for the purpose of the analysis and security concern for the rulemaking
carriers that transport fewer than 500 proposed in the NPRM.We proposed was the prevention of a catastrophic
carloads of the covered hazardous this very basic definition:a rouge is a release or explosion in proximity to
materials.We do not agree.The safety series of one or more rail line segments, densely populated areas,including.
and security risks posed by shipments as selected by the rail carrier.Between urban areas and events or ven«es with
of Division 1.1, 1.2,and 1.3 explosives, the beginning and ending points of a rail large numbers of people in attendance.
highway route controlled quantities of carrier's possession and responsibility The goal of the routing analysis
radioactive materials,arid bulk for a hazardous materials shipment,it requirement is to ensure that each route
quantities of PIH materials are would be rip to the rail carrier to define used for the transportation of the
significant even if a rail carrier ori1v the routes to be assessed.For example, specified hazardous materials is the one
transports a single carload.The 2005 a route could begin at the geographic presenting the fewest overall safety and
accident in Graniteville,South Carolina, point where a rail carrier takes physical security risks.
resulted in the puncture of a single tank possession of the hazardous material Consistent with.§1551(d)of the 9/11
car of chlorine,but the consequences of from the offeror or another carrier for Commission Act,this interim final mile
that accident were devastating.While it transportation.A route could end at the requires rail carriers to identify .
is true that the calculation of safety and geographic point where;(1)The rail practicable alternative routes over
security risks for the rail transportation carrier relinquishes possession of the which practi the carrier has authority
system as a whole increases as the total hazardous material,either by delivering
to
number of shipments increases,it is also the commodity to its final destination or operate and perform a safety and
true there is a risk associated with each interchanging the shipment to another security analysis of the alternative
carload transported.An exception from carrier:or(2)the carrier's operating routes for comparison to the currently
the route analysis requirements adopted authority ends. Hazardous materials used route,including the risk of a
in this interim final rule for rail carriers shipments will likely have intermediary catastrophic;release from a shipment
that transport the specified hazardous stops and transitions for example,a traveling each route.In this interim final
materials in amounts below a given shipment may he held in a railroad rale,we are adopting a requirement for
threshold is riot warranted given the yard,placed in a different train,or rail carriers to identify and analyze all
safety and security risks posed by these stored temporarily during practicable alternative routes,rather
materials. trans portrt.ion.Our aim is to have rail than a "commercially practicable"route.
The National Industrial carriers analyze the territory and track as proposed in the NPRM. We note in
Transportation League asserts that over which these certain hazardous this regard,however,that the
requiring a small railroad to analyze the materials are regularly transported in identification of an alternative
safety and security risks of its only the carrier's normal course of business, practicable route must necessarily
available route servis no purpose since while providing flexibility concerning include a determination of its
such railroads have no alternative routes how specific routes will be defined and commercial practicability. Congress
to assess.The conurie:nter notes that assessed.The final analvsis,however, recognized this by including in
small Class iI and IiI railroads generally should provide a clear picture of tire. §1551(d)a requirement for the
operate on a single track,usually a routes a rail carrier uses for the alternative route anahrses to include the
feeder track to main rail lines,and have specified hazardous materials.Patterns potential economic effects of using an
no available alternate routes. We do not and regular shipments should become alternative route.Accordingly,we
agree.Even in the absence of alternative obvious,as should non-routine expect rail carriers to address whether a
routes,we believe an assessment of the hazardous materials movements,such route is economically viable in light of,
safety and security risks along the;route as the one-time move of a specific but not limited to,market conditions,
utilized is critical to enhancing rail shipment of military explosives or high- legal and regulatory requirements,and
transportation safety and security.A level nuclear waste. the economics of the commodity,route,
comparison of the route utilized with an offeror,and consignee.A practicable
alternate route is not required in this D.Alternative Route Anahrsis and Route alternative route is one that may be
circumstance:however,rail carriers Selection(§172.820(d)&(eJ) utilized by the railroad within the limits
must address safety and security In addition to the routes normally and of the railroad's particular operating
vulnerabilities identified by the route regularly used for hazardous materials constraints and,further,is economically
analysis. movements,we proposed to require viable given the economics of the
Section 1551(c)of the 9/11 carriers to analyze and assess the coinmodity,route,and customer.
Commission Act requires rail carriers' feasibility of available alternative routes relationship.The question of
safety and security analyses of the over which they have authority to commercial practicability must be
routes used to transport security operate.As proposed in the [NPRM,for reasonably evaluated by each rail carrier
sensitive materials to include the route, each primary route,one.commercially as a part of its analysis based on the
railroad facilities,railroad storage practicable alternative route must be specific circumstances of the route and
facilities,and high-consequence targets identified and analyzed using.at.a proposed traffic.if using a possible
along or in proximity to the route.This minimum,the Rail Risk Analysis alternative route would significantly
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20761
increase a carrier's operating costs,as enforcement procedures it will use in liability for any discussions at the
well as the costs to its customers,the requiring the use of an alternative route. conference,and can also receive
carrier should consider and document On bAalf of Friends of the Barth, immunity for any resulting agreements
there;facts in its route analysis.We Fred Millar submitted four sets of that receive FRA approval.The purpose
expect that carriers will make these comments and spoke at the DC public: of the"Section 333 Conference" is to
decisions in good faith,using the meeting.in his verbal and written discuss ways to minimize:security and
financial management principles comments,Mr.Millar states that many safety risks flowing from the
generally applied to other business citizens,local governments,and rail transportation by rail of TIH materials.
decisions affecting safety and security. workers are seeking a protective re FRA,PHMSA,and representatives from
As we acknowledged in the NPRM,in routing of the most dangerous I the Department of Justice(DOJ),the
many cases,the only alternative route in hazardous materials cargoes(e.q.,TIH or Federal Trade Commission(FTC),TSA,
a particular area may be on another poison gas cargoes)around HTUAs.Mr. and the Surface Transportation Board
carrier's system.A rail carrier would not Millar suggests that re-routing lof (STB)are participating in these
be obligated to analyze an alternative through shipments around HTUAS discussions.The initial efforts of the
route over which it has no authority to Would yield a significant, immediately conference are focused on the rail
operate.Likewise,in some cases,no achievable,and permanent risk transportation of chlorine and
duction.
alternative route will be available; in reanhydrous ammonia,because:those
those instances,no alternative route Greenpeace suggests that we chemicals represent over 80 percent of
promulgate new regulations that
analysis would be required.This is , all TIH rail shipments. FRA has met
particularly true in the ease of regional prohibit the storage and reciting of TIH with the rail carriers to discuss
rail cargo through densely populated
or short-line railroads that are often the modeling and routing options,and has
only rail carriers in a given geographic and other sensitive areas wherever held separate meetings with rail
area. However,as discussed below, technically feasible.Greenpeace states: shippers of chlorine and anhydrous
carriers must consider the;use of "If the federal government is concerned ammonia.Further meetings with the rail
about differing local statutes,they
interchange agreements when carriers are anticipated. Projects agreed
should support national routing
identifying practicable alternative to through the conference may need the
legislation."Friends of the;Earth' approval of the STB in order to be
When an alternative route is available, similarly acknowledges that"nobody implemented.
thinks it's a good idea to have 46 high-
the carrier must analyze that route and threat target areas with their own local In light of these efforts,and in the
document its analysis, including the regulations.What we need is a sensible interests of system safety,we will not
safety and security risks presented by c,ational protective rerouting regulation ban movement of the specified
the alternative route,any remediation or * * *„ hazardous materials through densely
mitigation measures in place or In their comments,both Mr.Millar populated or other sensitive areas.
available,and the economic effects of and Greenpeace;express support for the Rerouting of hazardous materials
using the alternative route. use of interchange;agreements by rail shipments over longer,more circuitous
Under arrangements known as carriers to swap cargo between different alternative routes,most of which
"trackage rights," it is not uncommon rail carriers and avoid HTUAsI I❑ traverse urban areas at some point,
for a carrier to conduct train operations addition.§1551(d)of the 9/11 could actually increase safety and
over a rail line that is owned, Commission Act requires rail carriers, security risks.Rerouting to avoid certain
dispatched,and maintained by another when determining practicable) areas could add hundreds of miles and
carrier.Such arrangements typically alternative routes,to consider the use of several days to a hazardous materials
grant the trackage rights tenant little or interchange agreements with other shipment.Those additional miles and
no control over the track and associated carriers. We encourage rail carriers to days could be on rail infrastructure less
infrastructure,including many of the take all feasible actions to mitigate the suitable to handling hazardous
factors set forth in Appendix D. In safety and security risks for hazardous materials.Such rerouting could also
completing the route analysis required materials shipments;therefore,in this result in additional switching and
by this interim final rule,a carrier may interim final rule,we are adopting the handling of rail czars and more time in
identify specific risk mitigation requirement in§1551(d)for rail carriers rail yards.Longer distances and transit
measures that are outside its ability to to consider interchange•agreements times,increased car handling,and more,
accomplish.Because it is essentiaf that when identifying practicable alternative time in rail vards contribute to an
safety and security measures be routes. increase in the safety risks to railroad
coordinated among all responsible In a separate effort to address these workers and the public inherent in rail
entities,it is incumbent upon the tenant concerns,in late 2005,FRA granted a transportation in general and the
carrier to work with the owner of the; request by the AAR and the American transportation of hazardous materials.
track to evaluate the vulnerabilities and Chemistry Council(ACC)to convene a As well,military installations,power
identify measures to mitigate the risks. conference under the authority of 49 plants,and other potentially attractive
If measures required by this interim U.S.C. 333,which affords limited terrorist targets are purposely located on
final rule cannot be implemented antitrust protection to rail carriers. or near rail lines rather than in major
because another entity refuses or fails to Section 333 authorizes the FRA metropolitan areas. Such facilities could
cooperate,the carrier must notify FRA. Administrator,as delegate of the be placed at greater risk if the Federal
As stated in the Compliance and Secretary of Transportation,to convene government were to require rerouting of
Enforcement section of this interim final conferences at the request of one or highly hazardous materials to avoid
rule.FRA retains the authority to more railroads to address coordination densely populated areas.Finally,we
require use of an alternative route until of operations and facilities of rail would suggest that transportation
such time as identified deficiencies are carriers in order to achieve a more security is enhanced if terrorists cannot
mitigated or corrected.In today's efficient,economical,and viable rail determine whether or when hazardous
edition of the Federal Register,FRA is system.Persons attending a section 333 materials may be rerouted.Such
issuing an NPRM setting forth the conference are immune from antitrust flexibility,provided its use is not made
20762 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
public,decreases the likelihood that a would either designate it as the primary risks,based on the alternative:routing
target will be where a terrorist may route or identify and implement analysis. In such a situation,the carrier
expect it to be. mitigating measures to improve the must address the safety and security
Moreover,the 9/11 Commission Act safety and security of the analyzed risks along the selectea route through
does not direct the Federal government primary route.Each carrier will be implementation of remediation and
to mandate specific rail routes for required to use the practicable route mitigation measures.Current security
security-sensitive;materials;rather, posing the least overall safety and plan requirements apply in assessing
§1551 of the Act specifically directs the security risk,based on its anal}sis. risks and implementing measures to
Secretary of Transportation to ensure We recognize there may not be one mitigate risks on existing routes.
that the final rule requires rail carriers single route that affords both the fewest Nothing in this interim final rule
to select the safest and most secure safety and security risks.The most requires remediation and mitigation
route to be used to transport security- important part of this process is the measures to address vulnerabilities on a
sensitive materials based on a safety and route analysis itself and the route that the carrier has not selected.
security assessment of the current routes identification of the safety and security To assist rail carriers in performing
utilized and practicable alternative risks on each route.The carrier may these analvses of rail transportation
routes. then make an informed decision, routes and alternative routes,PHMSA is
We continue to believe that on route balancing all relevant factors and the adopting a new Appendix D to Subpart
safety and security measures will be best information available,regarding 172.This appendix lays out the
most effective when tailored to a which route to use.For example,if a rail minimum criteria a rail carrier must
railroad's specific:circumstances and carrier determines one particular route consider in analyzing each route and
operations.Rail carriers are in the best is the safest and most practicable,but alternative route.The;criteria listed are
position to assess security risks along has a particular security risk,the carrier those we believe are most relevant in
the full length of the routes available to should then implement specific security analyzing the rail routes for the
them and to target enhanced safety and measures so that the route will pose the hazardous materials covered by this
security measures to identified least overall safety and security risk.We interim final rule. Of course,not all the
vulnerabilities.Appendix D to the rule also recognize some security risks or criteria will be present on each route,
lists the wide varietv of factors that a threats may be long-term,while others and each route will have its own
carrier must consider in choosing the are short-term,such as those arising combination of factors to be considered.
safest and most secure route.The from holding a major national event Again,our aim is to enable rail carriers
interim final rule requires carriers to (e.g.,national political party to tailor these analyses to the particular
analyze the primary route and a conventions) in close proximity to the; risks and factors of their operations,and
practicable alternative route using the rail route. Mitigation measures could be to get a clear picture of the;
Rail Risk Analysis Factors in Appendix put in place for the duration of the characteristics of each route.
D and select.the route posing the least event;after they event is over,normal For the initial route analysis,we
overall safetv and security risk.As operations could resume.Again,we anticipate rail carriers will review the
discussed below,carriers are also expect many of the railroads already prior two-year period when considering
required to address delays in transit and have experience in addressing safety the criteria contained in Appendix D. In
on route storage security measures in and security issues such as these and subsequont years,the scope of the
their security plans. have already catalogued possible actions analvses should focus on changes from
As with the primary route analysis, to mitigate such risks. the initial analyses.For example,using
we expect the end result of the In the evaluation of alternative routes, the criteria in Appendix D,carriers
alternative route analysis to be a clear rail carriers may also indicate certain should analvze the impact of changes in
picture of the practicable alternative conditions under which alternative areas of high consequence along the
route(s)available to rail carriers for the routes will be used. In the case of a route,traffic density,new customers
transportation of the specified short-term safety or security risk,such offering or receiving the specified
hazardous materials.Alternative routing as a temporary event at a venue along hazardous materials,and significant
is used in the normal course of business the route,or a derailment,carriers may operational changes,to name a few of
throughout the railroad industry in specify an alternative route and the the considerations listed in Appendix D.
order to accommodate circumstances measures to be put in place for use of We recognize the need for flexibility
such as derailments,accidents,damaged that alternative route. in performing risk assessments;yet we
track,natural events(mudslides, Dow suggests that,consistent with the must balance it against the need for
floods),traffic bottlenecks,and proposed rule's performance standard,a some degree of uniformity in the
heightened security due to major rail carrier should not be required to assessments. We have tried to balance
national events.The rail carriers' implement remediation and mitigation these interests by prescribing uniform
analysis of the alternative routes should, measures to address vulnerabilities assessment criteria,while allowing each
in the end,clearly indicate the identified during the performance of the rail carrier to choose the assessment
reasonableness,appropriateness,and safety and security risk analysis if:(1) methodology it will follow.Regardless
feasibility, including economic An alternative route analysis reveals a of the risk assessment methodology
feasibility,of using the alternative practicable route posing the least overall selected,a rail carrier should apply
routes.We expect a complete alternative safety and security risk;and (2)the certain common principles.These
route analysis will reflect such carrier selects that route in accordance include the following:
considerations as any actual use of the with §172.820(e).We agree with the . The analysis should employ the
alternative route;safety and security commenter,but note that the best reasonable,obtainable information
benefits and risks of the alternative requirement to implement remediation from the natural,physical,and social
route;and commercial or economic and mitigation measures proposed in sciences to assess risks to health,safety,
costs and benefits of the route.Clearlv, the NPRM and adopted in this interim and the environment;
if an alternative route,after analysis,is final rule applies in situations where a • Characterizations of risks and of
determined to be the safest and most rail carrier selects a route that does riot changes in the nature or magnitude of
secure practicable route,the carrier pose the least overall safety and security risks should be both qualitative and,to
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20763
the extent possible given available data, measures to address them,including the required to revise and update route
quantitative; determination of which of a carrier's analyses only when necessary to
• Characterizations of risk should be routes present the overall fewest safety account for changes in the way a carrier
broad enough to deduce a range of and security risks. operates,changes to the routes utilized,
activities to reduce:risks; We anticipate several possible route or in response to specific threats.In
e Statements of assumptions,their selection outcomes: addition,AAR suggests an exception
rationale,and their impact on the risk • The;existing route presents the from the analysis requirements if there
analysis should be explicit; lowest overall safety and security risk have been no significant changes since
• The analysis should consider the; and continues to be the:selected routethe previous analysis and fewer than
full population at risk,as well as • The alternative route presents the five calendar years have passed since
subpopulations particularly susceptible lowest overall safety and security risks. the previous analysis was performed.
to such risks and/or more highly The alternative will be selected,and Tlae Brotherhood of Locomotive
exposed;and transportation of the;identified materials Engineers and Trainmen suggests that
• The analysis should adopt on the alternative route will begin as the frequencies set forth in the proposed
consistent approaches to evaluating the expeditiously as possible. rule are appropriate,except that the;
risks posed by hazardous agents or . The existing or the alternative route comprehensive review should be
events. presents the lowest overall safety and performed every three(3)years.
We believe institutionalizing a security risk except under specific The 9/11 Commission Act prescribes
practical assessanent program is identified conditions.The lowest both the nature and frequency of the
important to supporting business overall safety and security risk route analysis.Under§1551(g)of the Act,we;
activities and provides several benefits. will be;used dependent upon the must require rail carriers to perform a
First,and perhaps most importantly, conditions.The conditions warranting comprehensive review at least once
assessment programs help ensure route change must be clearly identified every three years.The analysis is to
identification,on a continuing basis,of in the analyses and routing decision include a system-wide review of all
the movement of materials presenting documentation. operational changes, infrastructure
the greatest risk to the public and the . Based on the analyses,either the modifications,traffic adjustments,
business community. Second,risk existing or alternative practicable route changes in the nature of high-
assessmc;nts help personnel throughout . is identified as presenting the lowest consequence targets located along or in
the organization better understand overall safety and security risks; proximity to the route,and any other
where to best apply limited resources to however,the rail carrier identifies changes affecting the safety and security
minimize risks.Further,risk measures to mitigate some of the;risk of the movement of security-sensitive;
assessments provide a mechanism for and lower the overall risk of the other materials that were implemented since
reaching a consensus on which risks are route.The route with the lowest overall the previous analysis was completed.
the greatest and what.steps are safety and security risk should be We accept the comments that our
appropriate for mitigating them.Finally, selected and used. In documenting the proposed schedule for one-and five-
a formal risk assessment program route selection,the carrier should year reviews is unnecessarily confusing
provides an efficient means for identify remediation measures to be and complicated and that the proposed
communicating assessment findings and implemented with a schedule:of their five year timr:,frame for system-widr,
rec:onimended actions to business unit implementation and the route change reviews is too long.Therefore, in this
managers as well as to senior corporate upon completion. interim final rule,we are requiring rail
officials.The periodic nature of the Clearly,other outcomes are possible. carriers to conduct all the required
assessments provides organizations a The analyses must be completed and analyses every year—that is,each year,
means of readily understanding any routing changes resulting from the a rail carrier must assess the safety and
reported information and comparing analyses must be implemented no later security vulnerabilities along the routes
results over time. than January 1 of the following year. it uses to transport the specified
The route,analysis described above hazardous materials and must also
must identify safety and security E. Completion of Route Analyses assess the safety and security
vulnerabilities along the route to be (§172.820(f)) vulnerabilities of practicable alternative
utilized.Each rail carrier's security plan In the NPRM,we proposed to require routes for each route;currently utilized.
must include measures to minimize the rail carriers to conduct the rail This analvsis must include a
safety and security vulnerabilities transportation route analysis,alternative comprehensive review of all operational
identified through the route analyses. route analysis,and route selection by changes,infrastructure:,modifications,
With respect to mitigation measures and the end of the year to which it applies. traffic:adjustments,changes in the
cost,there:are many measures rail In addition,we proposed to require the nature of high-consequence targets
carriers can take without necessarily carrier to complete a comprehensive located along or in proximity to the
adding to the cost of compliance.For review of all operational changes, route,or other changes affecting the
example,carriers can work to notify infrastructure modifications,traffic safety and security of the movement of
local law enforcement and emergencyadjustments,or other changes the materials covered by this interim
responders of the types and implemented over a period not to final rule.This process will ensure that
approximate:amounts of particular exceed five calendar years. modifications and changes to the entire
commodities typically transported Most comments addressing this aspect system are taken into account.in the
through communities. Further,location of the NPRM request that we eliminate route analyses during the same calendar
changes can be made as to where rail confusion and shorten the five-year time year that they occur. In addition,a rail
cars containing highly hazardous period for the system wide review.One carrier should consider changes that
materials are stored in transit.As with commenter,AAR,suggests that we make may reasonably be anticipated to occur
the current security plan requirements, the one year review encompass the in the upcoming year,such as changes
our goal is to permit rail carriers the entire system or better c:larifv what is to the volumes or types of hazardous
flexibility to identify potential safety meant by the separate reviews.AAR materials transported or changes
and security vulnerabilities and further suggests that carriers should be affecting rail infrastructure(e.;.,
20764 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
planned maintenance that could result constraints may be given fall and shippers on an appropriate
in temporary closures of bridges or track consideration arid that proposed notification method.
segments). solations should be implemented with We do not believe that the notification
We do not agree with AAR that a mutual consent of all parties.Finally, issue is as complicated as AAR suggests.
carrier should be required to review and ACC recommends that,in those We are aware that malty rail carriers
revise its route analysis only when instances when mutual consent is not have in place electronic systems
necessary to account for changes in the achieved,proposed solutions should be through which consignees may look up
way a carrier operates,changes to the implemented through binding and track their expected rail shipments.
routes utilized,or in response to mediation conducted by the Surface This is an acceptable method of
specific threats.We believe there is Transportation Board's(STB's)Office of notification,as are e-mail,facsimile,or
value in conducting an annual review of Compliance and Consumer Assistance. telephone.None of these methods
the route analysis even in the absence We agree with the suggestion made by would result in significant cost impacts
of changes to the way a carrier operates. ACC that any decision made to for rail carriers.Because most railroads
Conditions along the selected routes minimize the time that a material is already have in place systems to
may have changed,for example,or there stored incidental to movement should monitor the transportation of c:ortain
may be changes affecting other factors include mutual consent from all parties types of shipments,and procedures for
utilized in the analyses,such as and that those parties should be given notification of consignees,we do not
incidents on the selected route,the equal weight.Therefore,in this interim anticipate this requirement will involve
capabilities of local emergency response final rule,we are modifying the major operational changes for any of the
agencies,or venues located in proximity proposal by incorporating ACC's affected carriers.The reason the carrier
to the;selected route. suggestion that decisions be and consignee must agree on a
F. Storage.Delays in Transit,and implemented with the mutual consent notification method is to ensure that the
Notification(§172.820(8)) of all parties.Weare not including the information about a shipment delay
provision to require consultation with reaches the consignee in a timely
In the NPRM,we proposed to require STB in the absence of an agreement fashion.Absent such an agreement,the
rail carriers to specifically address arnong the parties. Such a provision carrier cannot be certain that the
delays in transit and on route storage in would be overly burdensome;moreover, notification will reach the appropriate
security plans.Thus,we proposed to rail carriers,offerors,and consignees official for the consignoe.
require rail carrier security plans to should be capable of corning to an A significant delay is one that:(1)
include: (1)A procedure for consulting agreement without the necessity for Compromises the safety or security of
with.offerors and consignees to mediation.In the absence ol'such an the hazardous material shipped;or(2)
minimize the time a material is stored agreement,a rail carrier may implement delays the shipment beyond its normal
incidental to movement; (2)a procedure whatever measures it finds necessary to expected or planned shipping time.A
for informing the operator of the facility rninirnize the time that a material is 'significant delay"must be determined
at which the material will be stored stored incidental to movement. on a ease-by-case and hazmat-by-hazmat
incidental to movement that the In the NPRM,we proposed to require . basis.As a general rule,any delay
material has been delivered; (3) a rail carrier to notify the consignee if beyond the normal expected shipping
measures to limit access to the materials there is a significant unplanned delay time for the material qualifies as a
during storage and delays in transit; (4) during transportation of one of t:he significant delay."
measures to mitigate risk to population specified hazardous materials,within 48 The AAR Circular OT-55-1 outlines
during storage incidental to hours of identifying the significant operating practices the rail industry has
transportation; (5)measures to be taken delay,and provide a revised delivery already implemented for certain time-
in the event of an escalating threat level schedule.Our goal is to strengthen the sensitive shipments.The notification
during storage incidental to roglrirernc:nts of the current"4fl-]ic:tur . requirement adopted in this interim
transportation; (6)a procedure for rule"contained in§174.14,and to final rule simply builds on those
notifying the consignee in the event of delegate more positive control and practices.In particular,the Circular
transportation delays;and (7)a responsibility to the railroads for addresses time-sensitive shipments and
procedure to inform the consignee that tracking and controlling the movement specifies railroads are to be responsible
the material has been delivered. of railcars carrying hazardous materials. for monitoring of shi IneI1t5 of suchConcerning consultations to minimize Such notification will also facilitate b p
delays in transit,ACC requests that we communication between the carrier in products and communicating with
re ufre rail carrier's to formally consult affected parties when the shipment may
q y possession of the material and the not reach its destination within the
with offerors and consignees,to consignee to ensure th6.hazardous
minimize to the extent practicable,the materials do not inadvertently wait in specified timeframe.Circular OT-55-I
period of time during which the transit. recommends delivery of time-sensitive
material is stored incidental to In the NPRM,we specified such materials should take place within 20 or
movement.ACC suggests that the notification must be made by a method 30 days,depending on the commodity.z
consultations should provide offerors, acceptable to both carrier and Because of the variety of materials
consignees,and rail carriers equal consignee.One commenter,AAR,states covered by this interim final rule•
weight in developing practicable that consignees should not have veto PHMSA has not designated specific:
solutions,which consider,but are not power over the method selected for delivery timeframe guidelines for these
limited to,railroad and shipper/ notification of dolays and is concerned materials.
consignee production capacity, land because different customers will likely In the NPRM,we proposed to require
availability,restrictive local ordinances, request different notification systems, carriers to notify storage facilities and
and other relevant factors. ACC further potentially increasing transportation consignees upon delivery of a rail car
suggests that these consultations should costs.On the other hand,The Chlorine
be conducted on an individual basis, institute indicates that it strongly "rhe additional commodities listed in Circular
OT-55-1 and requiring a delivery time of 30 days
where regional distinctions in security supports the notification provisions that are styrene monomer,stabilized and flammable
requirements and the;aforementioned require carriers to work with receivers liquid,n.o.s.(recycled styrene).
Federal Register/Vol. 73, No. 74/Wednesday', April 16, 2008/Rules and Regulations 20765
containing one of the specified available,the FRA Associate FRA expects to mandate route changes
hazardous materials, IME,Akzo Nobel Administrator for Safety,in consultation only in exigent circumstances or where
Chemicals,and ACC suggest we delete with TSA,could require the use of an a carrier has acted in clear defiance of
the delivery notification requirements alternative route until such time as the requirements.
and,instead,align the HMR with the identified deficiencies are satisfactorily We agree with STB's suggestion that
positive chain-of-custody requirements addressed. FRA and TSA should consult with STB
proposed by TSA in its rail security AAR questions whether PHMSA has prior to making a determination to
NPRM. We agree.The TSA t.:le statutory authority to grant FRA the compel the use of an alternative rout.(,.
requirements establish positive control power to require the use of an In this interim final rule,we are adding
of rail tsars containing the specified alternative route.ERA's authority to language to this effect in the appropriate
hazardous materials by requiring direct require the use of an alternative route paragraph. STB's participation.in this
hand-off of each tsar to a responsible stems frorn §5121(a)of the Federal process will ensure that the FRA-TSA
individual,at points of: (1)Carrier hazardous materials transportation law. determinations concerning alternative
interchange in an HTUA or outside an The Secretary of Transportation is routes fully consider the economic
HTUA for tsars that may enter an HTUA; authorized to issue an order,after notice impacts and commercial practicability
(2)origin;and(3)delivery to a facility and an opportunity for a hearing, of the routes under consideration,
in a HTUA.There is,therefore,no need requiring compliance with tile,Federal As we explained in the preamble to
for the notification requirements we Hazmat Law or a regulation,order, the NPRM,with respect to enforcement
proposed in the NPRM.Accordingly,we special permit,or approval issued under of the security requirements in this
are not adopting thorn in this interim Federal Hazmat Law.The authority interim final rule,FRA plans to work
final rule. provided in 49 U.S.C. 5121(a)has been closely with TSA to develop a
G.Recordkeeping(g 172.82o(h)J delegated to FRA,"with particular coordinated enforcement strategy to
emphasis on the transportation or include both FFA and TSA inspection
In the NPRM.we proposed to require shipment of hazardous materials by personnel.We note in this regard that
each rail carrier to maintain an railroad"(49 CFR 1.49(s))as well as to TSA does not have the authority to
accessible copy of the information and FAA,FMCSA,PHMSA,and USCG (with enforce safety or security requirements
analyses associatedwith the collection -particular emphasis"on the respective established in the HMR.If in the course
of commodity data and route assessment authority of these agencies). of an inspection of a railroad carrier or
and selection processes.We further Dow and IME suggest that,consistent a rail hazardous material shipper,'TSA
proposed to require the distribution of with fundamental concepts of due identifies evidence of non-complianco
such information to be limited to process,PHMSA should provide an with a DOT security regulation,TSA
covered persons with a need-to-know, immediate procedure to appeal an FRA will provide the information to FRA and
in accordance with Sensitive Security determination to require the use of an PHMSA for appropriate action.TSA
Information (SSi) regulations in 49 CFR alternative route.STB suggests that the will not directly enforce DOT security
Parts 15 and 1520.The recordkeeping regulation indicate that prior to making rules and will not initiate safety
requirements are consistent with the 9/ a.determination to require the use of an inspections.In accordance witfl tile.
11 Commission Act. alternative route,FRA and TSA will PHMSA-TSA and FRA-TSA annexes to
No comments were.submitted in obtain the comments of STB regarding the DOT-DHS MOU,all the involved
response to this paragraph;therefore,we whether the contemplated alternative agencies will cooperate to ensure
are adopting it as proposed. route(s)would he economically coordinated,consistent.,and effective
H. Compliance and Enforcement . practicable. In addition,Doti requests activities related to rail security issues.
( 172 820(i)) that PHMSA clarify the role that TSA or To address Dow's concern,in this
other agencies will play in performing interim final rule we have included a
FRA is the agency within DOT inspections under this rule,including clear statement that FRA, in cooperation
responsible for railroad safety and is the addressing whether TSA will use third- with PHMSA,will enforce the
primary enforcer of safety and security party contractors to perform requirements contained in this interim
requirements in the HMR pertaining to inspections. final rule.
rail shippers and carriers.FRA In the preamble to the NPRM,we. We are not implementing a
inspectors routinely review security indicated that FRA would develop submission arid approval process for
plans during site visits and may offer procedures for rail carriers to appeal a security plans and route analyses.The
suggestions for improving security decision by the FRA Associate review and approval of hundreds of
plans,as appropriate.if an inspector's Administrator for Safety to require the security plans and analyses would be
recommendations are not implemented, use of an alternative route,including extremely resourco-intensive and time-
FRA may compel a rail shipper or information a rail carrier should include consuming.Moreover,the 9/11
carrier to make changes to its security in its appeal,the time frame.,for filing an Commission Act does not provide for an
plan through its normal enforcement e.ppeal,and the process to be utilized by approval process for route selections
process.FRA consults with TSA FRA in considering the appeal, made by rail carriers.During FRA's
concerning railroad security issues in including any consultations with TSA normal inspection process,inspectors
accordance with the FRA-TSA annex to or PHMSA.FRA is developing such will review security plans,route
the DOT-DHS MOU on transportation procedures and is publishing a notice of analyses,and route choices for
security. proposed rulemaking concurrently with compliance with applicable regulations
In the NPRM,we proposed to require this interim final rule.We note in this to ensure that the chosen route is the
carriers to revise their analyses or make regard that FRA will only require an safest and most secure practicable route
changes to a route if the route selection alternate route if it concludes the as supported by the analysis done by the
documentation or underlying analyses carrier's analysis did not satisfy the carrier.if the inspection identifies
are.found to be deficient.In addition, rninimum criteria for performing a deficiencies in tile.route analyses,
we proposed that,are the carrier's safety and security risk analysis,as security plan,or manner in which the
chosen route is found not to be the established by the proposed §172.820 plan is implemented,the deficiencies
safest.and most secure practicable route and Appendix D to Part 172.Moreover, will be addressed using FRA's existing
20766 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
enforcement procedures. Inspectors will 11 Commission Act.Specifically,we are can be readily identified.A complete
have the discretion to issue notices of adding high consequence targets,as inspection will encompass the entire
non-compliance or to recommend defined in§1551(h)(2) to the list of rail car at ground level,including-the
assessment of civil penalties for factors that must be considered. area beneath the rail car;thus,a proper
probable violations
rlatio ns.ire a l Pre-Trip Security lnspectians(§174.J) thanecanrbe seen frommore
a slow movingcar
As indicated above,FRA may requ
rail carrier to use an alternative route if PHMSA proposed in the NPRM to vehicle.An inspector must be able:to
the carrier's chosen;route is found not increase the scope of the current safety identify signs of tampering, including
to be the.safest and most secure inspection to include a security closures and seals,suspicious items or
practicable route available. inspection of all rail cars carrying items that do not belong,and other signs
placarded loads of hazardous materials. that the security of the car may have
1.Appendix D to Part 172—Roil Risk The primary focus of the enhanced been compromised,including the
Ana1vsis Factors
inspection is to recognize an iED,which presence of an iED. Where an indication
in the NPRM,we proposed minimum is a device fabricated in an improvised of tampering or a foreign object is found,
criteria in Appendix D to Part 172 to be manner incorporating explosives or the rail carrier must take appropriate
used by rail carriers when performing destructive,lethal,noxious, actions to ensure the security of the rail
the safety and security risk analyses pyrotechnic,or incendiary chemicals in car and its contents have not been
rogcrired by§172.820.We listed 27 its design,and generally including a compromised before accepting the rail
factors in this appendix for carriers to power supply,a switch or timer,and a car for further movement.
consider in the analyses. detonator or initiator. We understand from the comments
Generally,commenters support the To guard against the possibility that submitted by AAR that training to
rail risk analysis factors provided in an unauthorized individual could enable rail carrier personnel to comply
Appendix D.For example,the tamper with rail cars containing with the security inspection
Brotherhood of Locomotive Engineers hazardous materials to precipitate an requirements is already provided in
and Trainmen,states that it incident during transportation,such as most carriers'current inspection
wholeheartedly supports the risk detonation or release using an IED,we programs. In addition,as we stated in
analvses and that the appropriate proposed to require the rail carriers'pre- the preamble to the NPRM,TSA is
metrics essential to a detailed risk trip inspections of placarded rail cars to developing instructional materials to
analysis are provided in this appondix. include an inspection for signs of assist rail carriers in training employees
Dow,AAR,and IME also provided tampering with the rail czar, including its on identifying IEDs and signs of
comments.Most notably,IME indicated seals and closures,and an inspection for tampering.This training material should
that it supports the factors,but.suggest any item that does not belong,i:; be completed and available by the
we enhance their usefulness by suspicious,or may be an IED.When an middle of 2008.
providing a ranking of the criteria listed indication of tampering or a foreign
in Appendix D or an indication of the object is found,the rail carrier must take K.Preemptive Effect of This Interim
order of precedence in which the factors appropriate actions.before accepting the Final Rale(§172.822)
should be considered. iME notes,for rail car for further movement,to ensure Because of the high level of interest in
example,that.a route with the best the security of the rail car and its this issue,we proposed to address the
emergency response capability is likely contents have not been compromised. preemptive effect of the final rule in the
to be a route that is more densely The commenters overwhelmingly regulatory text.We explained our
populated and asks how these factors support the proposod inspection judgment that state and local regulation
should be weighted in such situations. requirement. One commenter,BNSF of rail routes for shipments of hazardous
We agree that how these factors are Railway Company,asks PHMSA to materials is preempted,by operation of
weighted and used is an extremely provide specific:details on how the the Federal hazardous materials
important aspect of an overall safety and inspection should be performed. It asks transportation law(49 U.S.C. 5125)and
security risk assessment methodology. if walking the train or inspecting it from the Federal Rail Safety Act(49 U.S.C.
However,we do not believe that a one- a slow roving vehicle would suffice for 20106),based on the agency's decision
size-fits-all approach to weighting the the inspection requirements.Another in Docket No. HM-232 to leave the
factors provides sufficient.flexibility for conunenter,Dow,asks if PHMSA or routing of hazardous materials
rail carriers to address unique local+ TSA will provide the additional training shipments to the judgment of rail
conditions or concerns. We.expert necessary for rail carriers to comply carriers.We also stated our view that.
carriers to make conscientious efforts to with the proposed changes.The the route analvsis and selection
develop logical and defendable systems Chlorine Instituto states that the proposals in the NPRM,if adopted,
using these factors.Tools to assist rail additional training required in "would have the same preemptive offect
carriers to use the factors to assess the conjunction with regular training upon states,political subdivisions,or
safety and security vulnerabilities of should not he overly hurdensome. Indian tribes,"because those proposals
specific routes,including how to weight Based on commenters'support for would "not change PHMSA's basic:
the factors in performing the analysis, enhanced security inspections,we are approach in HM-232 of leaving ultimate
are being developed with funding by a adopting the provision as proposed in hazardous materials routing decisions to
grant from the Department of Homeland the NPRM.We offer the:following the rail carriers." 71 FR at 76845&
Security.Initial products from this clarifications in response to the 76846.
program were developed in 2007 and conunenters'questions. We specifically invited comments
are currently boing evaluated and The security inspection of each from interested states,political
refined.Wo expect the analysis tools to placarded rail car should be performed subdivisions,and Indian tribes.
be available in 2008. in conjunction with the safety Immediatelv after publication of the
In this interim final rule,we are inspection currently required under NPRM,we cont individual letters to the
adopting the list of factors as proposed §174.9.The inspection is to be mayors of twelve cities where local
in the NPRM,with modifications for conducted at ground level and at a close officials had expressed concerns about
consistency with requirements of the 9/ enough distance so that any problems routes of rail shipments of hazardous
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20767
materials and to the following original)In its separate comments,Dow law under which the regulation is
organizations:The National Governors stated that"PHMSA should make it adopted,may have preemptive effect
Association,Council of State . abundantlyclear that the federal under§'20106).Moreover,as stated in
Governments,National Conference of hazardous material transportation laws, the NPRM,PHMSA has concluded (and
State Legislatures, United States 49 U.S.C. 5101 et seq.,substantially the United States has taken the position
Conference of Mayors,National subsumes all state,local,and Indian in the pending lawsuit over the District
Association of Counties,National tribe laws on the subject matter of the of Columbia[District.) ordinance)that
League of Cities,and National Congress use of rail lines for the transportation of both§§5125 and 20106 preempt any .
of American Indians. In these letters,we hazardous materials." ' non-Federal designation or restriction of
summarized the I)roposals.in the NPRM AAR asserted that the NPRM"faills] routes for rail shipments of hazardous
and provided a copy of the NPRM, to provide the public with proper notice materials.
encouraged participation in the as to the scope of preemption.The PHMSA also agrees with those
rulemaking and the public meeting on fundamental preemption provision for commeriters who suggested that we
February 1,2007,and offered to meet railroad safety and security clarify that the preemption provisions of
separately to discuss the rulemaking in requirements is 49 U.S.C.section 49 U.S.C.sections 5125 and 20106
detail. None of the organizations or 20106,"which"applies to regulatory apply to all of the HMR,not just to
cities accepted our offer to meet action taken by any agency within DHS §17.2.820. Therefore,in place of
separately to discuss the NPRM,nor did or DOT, including FRA,PHMSA,and proposed§172.820(g),we are adding a
they participate in the:public.meeting. TSA."AAR also stated that the;NPRM new§172.822 dealing with the
In response to the NPRM and these falls short in addressing preemption preemptive effect of the I-iMR,including
additional letters,we received becacise the preemption provision it subpart 1. Section 172.822 refers to the
numerous comments on whether or not proposes only addresses one aspect of statutory standards for preemption in 49
states and political subdivisions are' t:ae NPRM,routing requirements: U.S.C.sections 5125 and 20106.which
preempted from imposing additional exceeds its statutory authority by we believe would apply to'any state,
designations or restrictions on routes for providing that PI-IMSA ran waive local,or Indian tribe requirement
rail shipments of hazard ous.materials, preemption of state or local routing affecting the transportation of hazardous
beyond the route analysis and selection requirements;and ignores the complete materials,including the designation or
process proposed in the NPRM.In preemption of local regulation of restriction of'routes for rail shipments of
general, comments from industry railroad safety and security. hazardous materials.
included statements that there is a need Similarly,the City of.Clevelan' d,Ohio The District referred to the pending
for"national uniformity on the rail stated that the regulatory text proposed lawsuit by CSX Transportation, Inc.
routing of TIH,explosive,and in the NPRM should also refer to 49 which challenges the District's
radioactive materials" (ACC);that"[b]y U.S.C.section 20106,and also ordinance against rail shipments of
preempting state laws that restrict the contended that §'20106 allows"state certain types and quantities of
movement of hazardous materials, governments(interpreted by case law to hazardous materials within 2.2 miles of
PHMSA will ensure hazardous materials also include,local governments)"to the U.S.Capitol building.The District
continue to travel on the safest and most adopt an additional requirement on rail stated that"the fundamental role of
secure mode of transportation for these transportation which: "(1)Is necessary government is to protect its citizens.
items" (TF1,NITL);and that"Federal to eliminate or reduce an essentially That role should be left to the District
rulemaking and enforcement.of - local safety or security hazard; is not here,and not given to private industry,
hazardous materials regulations allows incompatible with a law,regulation,or unless and until the federal government
for a unified plan to effectively order of the United States Government: develops the rapacity to make such
implement best practices throughout the and(3)does not unreasonably burden determinations."The City of Baltimore,
nation"and "minimizes confusion for interstate commerce."The City of Maryland,emphasized that the decision
regulated entities by utilizing uniform Cleveland,Ohio also asserted that,as of the Court of Appeals in the CSX
criteria for all facilities"(Chlorine one of the high threat urban areas litigation"did not represent a final
Institute). (HTUA).designated by TSA,"it should ruling on the merits of the issue,"but
1 lowever,some.of the comments from he provided with special consideration simply overturned the District Court's
shippers and carriers criticized the with respect to its needs to adopt . denial of a preliminary injunction.
specific language proposed in the enhanced regulations and the possible The Chairman and three other
NPRM:iME questioned "why the need to enact specific:r6uting members of the Homeland Security
statement was limited to these proposals restrictions for rail." Committee of the U.S. House of
and does not encompass all of the PHMSA agrees with those cornments Representatives stated there is a need
agency's security rules,or even all of the that suggest that the,regulatory.language for"clear and mandatory direction from
agency's security plan rules;'-' in a set of on preemption should refer to both 49 the federal government,"and a "finding
jointly-failed comments,Dow;Olin, U.S.C.section 5125 and 20106,because of preemption is a gift to the industry
Norfolk Southern,Union Pacific,and both of those provisions must be and strips away local and state
Occidental ask PHMSA to`.`expand the considered in any determination governments'ability to protect its
preemption considerations described in whether a non-Federal requirement on citizens.". .
proposed§172.820(8),"because rail transportation of hazardous As we have indicated elsewhere in
`brouting is only one aspect of state and materials is preempted.:See CSX. � -� this rule,rerouting of hazardous
local regulation that has the potential to Transportation.Inc. v. Easterwood,507 materials to avoid densely populated or
conflict with federal regulations."These U.S.658,663 n.4 (1993): CSX sensitive areas may well-increase safety
companies also stated that"49 U.S.C.. Transportation,Inc.v.'l'ublic Utilities and security risks. Moreover,routing
20106 only authorizes state,regulation Gomin'n,901 F:2d 497,501 (6th Cir, restrictions onprohibitions enacted by
in limited circumstances.and excludes 1.990),cert.denied,498 U.S. 1066 (1991) states or local governments transfer
all references to'political subdivisions ("any regulation"adopted by the safety and security risks to other areas
of a State' (i.e.local government safety Secretary of Transportation respecting but do little.,to achieve enhanced safety
or security regulation)." (Emphasis in railroad safety matters,regardless of the and security for the rail transportation
20768 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
.system as a whole.We note that the model we mandate that rail carriers "security-sensitive materials"to"select
virtually every urban and suburban follow as they implement the provisions the safest and most secure routc.to be
jurisdiction in the United States has a adopted in this interim final rule—that used in transporting"those materials,
population density that is a matter of is,to work with state and local based on the.rail carrier's analysis of the
concern in planning for and regulating governments in conducting route safety safety and security risks on primary and
hazardous materials transportation; if all and security analyses and in making alternate transportation routes over
of the jurisdictions located on or near routing decisions based on the analyses. which the carrier has authority to
rail routes were to enact routing Nothing in this interim final rule should operate.
restrictions applicable to the rail be construed or applied in a manner B. Executive Order 12866 und,DOT
transportation of hazardous materials, inconsistent with DOE fulfilling;its Begulator37Policies pnd Procedures
such transportation would come to a obligations under§180(c)of the,Nuclear
virtual standstill.The provisions Waste Policy Act to provide technical This interim final rule:is a significant
adopted in this interim final rule will assistance and funds to states and tribes regulatory action under section 3(f)
reduce the overall risks posed by the for training public safety officials on Executive Order 12866 and,therefore,
movement of explosive,PIH,and procedures for safe routine was reviewed by the Office of
radioactive materials by rail,withouttransportation and emergency response Management and Budget(OMB).The
imposing an undue burden onwith regard to spend nuclear fuel or interim final rule is a significant rule
transportation. high level waste shipments to a under the Regulatory Policies and
In §1528 of the..9/11 Commission Act, reposit.orv. Procedures order issued by the U.S.
Congress restructured this preemption The National Association of SARA Department of Transp6rtation (44 FR
provision in 49 U.S.C. 20106 by placing 'Title IIi Program Officials,the Colorado 11034). We completed a regulatory
the then-existing language in a new Emergency Planning Commission,and evaluation and placed it in the docket
paragraph(a),and.in a new paragraph the Jefferson County,Colorado.Local for this rulemaking. .
(b)clarifying what state law causes ofEmergency Planning Committee stated Generally,costs associated with the
action for.personal injure, death,or that"preemption must conic with a provisions of this interim final rule
property damage are not preempted• benefit"and that"PHMSA should include costs for collecting and
The Joint Conference Report on§1528 require carriers to consider increased retaining data and pc;rfornrin0 the
makes clear that the restructuring of 49 risk to a community as part of their mandated route safety and security
U.S.C. 20106 was not intended to make; routines decisions."We note in this analysis.We estimate total 20-year costs
anv substantive change to the meaning regard that the routing safety and to gather the data and conduct the
of new paragraph (a).Rather,as security analyses adopted in this analyses proposed in this interim final
specified in §1551(h),the specific interim final rule require rail carriers to rule to be about.$20 million (discounted
authority of states,localities,and Indian consider tiie safety and security risks of at 7%).
tribes is limited to rovidino In addition,rail carriers and shippers
p the routes they use,considering factors may incur costs associated with
information on the security risks to such as population density along'the v
high-consequence targets along or in route,venues alone the rotite(si:ations, rerouting shipments or mitigating safety
proximity to a route used by a rail b .. and security vulnerabilities identified as
events,places of c:ongregation),
carrier to transport securftV-sensitive emergency response capability along the a result of their route analvses.Because
materials. Nonetheless,as discussed the interim final rule builds on the
route,and areas of high consequence current route evaluation and routing
above,this does not prevent rail carriers <rlon�=the route. g
from working with state,local,and ° practices already in place.for most,if
tribal governments,including sharing VII1.Regulatory Analyses and Notices not all,railroads that haul the types of'
information as necessary.and . A. Statutory/Legal Authority f or•This hazardous materials covered,we do.not
appropriate,to enable these non-Federal Rulemnkina expect.rail carriers to incur significant
government bodies to provide b costs associated with rerouting.The
meaningful.input into the rail carrier's This interim final rule is published railroads already conduct route analyses
process of conducting the route safety under authority of Federal Hazardous and re-routing—in line with what this
and security analvsis,and making Materials Transportation Law(Federal rule would require—in accordance with
routing decisions✓hased on that analysis, Hazmat Law;49 U.S.C. 5107 et seq.) the AAR comments and Circular
as required by this interim final rule. Section 5103(h)of Federal Hazmat Law OT-55–I. Moreover,the smaller carriers
We encourage such cooperation authorizes the Secretary of (regionals and short lines)are unlikely
between raft carriers and state,local, Transportation to prescribe regulations to have access to many alternative
and tribal officials. for the safe transportation,including routes,and where an alternative does
In this regard,Eureka County, security,of hazardous materials in exist.,it is not.likely to be safer and more
Nevada,expressed concern that the intrastate,interstate,and foreign secure.than the route they are currently
proposed requirements for rail carriers commerce. In addition,this interim using.If there is an alternative route the
to select the routes based on an analysis ficial rule;is published under authority carrier determines to be.safer and more
of safety and security risks would of the Implementing the secure than the one it is currently using,
preempt the.announced program of the Recommendations of the 9/11 the carrier could well switch routes,
Department of Energy(DOE)to work Commission Act of 2007.Section 1551 even in the absence of a regulatory
with stakeholders,including state of the 9/11 Commission Act directs the requirement,because it roduces the
regional groups,in selecting routes for Secretary.of Transportation,in overall risk to its operations.Such
shipments of spent nuclear fuel to consultation with the Secretary of reduction in risk offers a significant
Yucca Mountain. We do riot believe that Homeland Security,to publish a final economic advantage in the long run.
this interim final rule will adversely rule by May 3,2008,based on the Identifying and mitigating security
affect the DOE program for selecting NPRM published under this docket on vulnerabilities along rail routes is
spent nuclear fuel routes.Indeed,the December 21,2006.In accordance with currently being done by the railroads.
DOE effort to include stakeholders in its Section 1551(e)of the Act,PHMSA's We believe that readily available"high-
route selection deliberations is precisely final rule must roquire rail carriers of tech"and "low-tech"measures are
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20769
being quickly implemented.The rule.We note in this regard that no prevent just one,major accident or
development.,procurement,and wide- commenters raised this issue in their intentional releaser over a twenty-vear
spread installation of the more discussions of the potential impacts of period,the resulting benefits would
technology-driven alternatives could the proposals in the NPRM.Overall more than justify the potential
take several vears,however,PHMSA's transportation costs should not compliance costs:we believe that they
previous security rule requires the substantially increase because of this could.
railroads to have a security plan that interim final rale. C.Executive Order 13132
includes en route security.This existing Estimating the security benefits of the
regulatory requirement, coupled with new requirements is challenging. This interim final rule has been
industry efforts to address security Accident causation probabilities can be analyzed in accordance with the
vulnerabilities,has caused railroads to estimated based on accident histories in principles and criteria contained in
enhance their security posture.As with a way that the probability of a criminal Executive Orders 13132 ("Federalism")
routing decisions,such reduction in risk or terrorist act cannot.The threat of an and 13175 ("Consultation and
offers a significant economic advantage attack is virtually impossible to assess Coordination with Indian Tribal
in the long run.Therefore,we expect from a quantitative standpoint.it is Governments").This interim final rifle
that the cost of mitigation attributed undeniable that hazardous materials in would not have any direct effect on the
solely to this interim final rule will not transportation are a possible target of states,their political subdivisions,or
be significant. We note in this regard terrorism or sabotage.The probability Indian tribes; it would not impose any
that safety and security measures are that hazardous materials will be targeted compliance costs:and it would riot
intertwined and often complementary; is,at best,a guess.Similarly,the affect the relationships between the
therefore,separating security costs from projected outcome of a terrorist attack national government and the states,
safety costs is not feasible. cannot be precisely estimated.It is political subdivisions,or Indian tribes,
We do not expect this interim final assumed choices will be made to or the distribution of power and
rule to result in a diversion from maximize consequences and damages. responsibilities among the various
railroads to trucks.For the movements Scenarios can be envisioned in which levels of government.
subject to this mile,transportation and hazardous materials could he used to Section VLK above contains a
distribution patterns,with associated inflict hundreds or even thousands of discussion of PFIMSA's conclusion that
infrastructure,tend to be well- fatalities.To date,there have been no the decision in the March 25,2003 final
established. For example,the:vast known or specific threats against freight rale in HM-232 to leave to rail carriers
majority of PIH offerors ship by rail; railroads,rail cars,or tank czars,which the specifiers cif routing rail shipments of
indeed,many do not have the snakes all of these elements even more hazardous materials preempts all states,
infrastrucaure(loading racks,product difficult to quantify.Security plans their political subdivisions,and Indian
transfer facilities)necessary to utilize lower risk through the identification tribes from prescribing or restricting
trucks for such transportation. and mitigation of vulnerabilities. routes for rail shipments of hazardous
Moreover.the current fleet of cargo tank Therefore,rail carriers and the public materials,under Federal hazardous
motor vehicles is insufficient to handle benefit from the development and material transportation law(49 U.S.C.
a significant shill of PIH cargoes from implementation of security plans. 5125)and the Federal Rail Safety Act
rail to highway—for example,there are However,forecasting the;benefits likely (49 U.S.C. 20106).In that section,we
only 85 cargo tank motor vehicles used to result from plan implementation also discuss the comments on the
for the transportation of chlorine. requires the exercise of judgment and proposed language in the NPRM
Because it takes about four tank trucks necessarily includes subjective concerning the preemptive effect of
to haul the amount of product that can elements. HM-232 and this interim final rale and
be moved in a rail tank car,the industry The major benefits expected to result explain the reasons for adopting revised
would have to build many more trucks from this interim final rule relate to language in 49 CFR 172,822.
to accommodate a shift in transportation enhanced safety and security of rail
from rail to highway, necessitating a shipments of hazardous materials.We D.Execufive Order 13175
significant expansion in current tank estimated the costs of a major accident We analyzed this interim final rule in
truck manufacturing capacity.In or terrorist incident by calculating the accordance with the principles and
addition,because it takes four trucks to costs of the January 2005 Graniteville, criteria prescribed in Executive Order
transport the same amount of product as South Carolina,accident. This accident 13175 ("Consultation and Coordination
a single:rail tank car,it generally is only killed nine people:and injured 554 with Indian Tribal Governments").
cost-effective to utilize trucks for more.In addition,the accident Because this interim final rule does not
relatively limited distances.A farm necessitated the evacuation of more significantly or uniquely affect tribes,
cooperative or agricultural products than 5,400 people.Total costs and does not impose substantial and
distributor,for example,typically associated with the Graniteville direct compliance costs on Indian tribal
receives large quantities of anhydrous accident are almost$126 million.Tire governments,the funding and
ammonia by rail car and offloads the consequences of an intentional release consultation requirements of Executive
material into storage tanks for by a criminal or terrorist action, Order 13175 do not apply:thus,a tribal
subsequent truck movement to local particularly in an urban area, likely summary impact statement is not
customers. would be more severe than the required.
Changing these established Graniteville accident because an E. Re.�ulatary Flexibility Art,Executive
transportation patterns would require intentional act would be designed to b
substantial investment in new capacity inflict the most damage possible.The Order 13272,and DOT Procedures and
and infrastructure,vastly exceeding the requirements of the interim final mile Policies
costs of complying with the interim are intended to reduce the safety and To ensure potential impacts of rules
final rule. Under these circumstances, security risks associated with the on small entities are properly
we do not expect any shift in transportation of the specified considered,we developed this interim
transportation mode as a result of hazardous materials.if the measures final rule in accordance with Executive
implementation of this interim final proposed in this interim final rule Order 13272 ("Proper Consideration of
20770 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
Small Entities in Agency Rulemaking") to a smaller railroad for final delivery. OMB No.2137-0612,"Hazardous
and DOT's procedures and policies to Although their relative interests,do not Materials Security Plans"
promote compliance with the always coincide,the relationship First Year Annual Burden:
Regulatory Flexibility Act(5 U.S.C. 601 between the large and small entity Total Annual Number of
et seq.). segments of the railroad industry is Respondents:139.
The Regulatory Flexibility Act more supportive and c:o-depend.ont.than Total Annual Responses:139.
requires an agency to review regulations competitive. Total Annual Burden Hours:51,469.
to assess their impact on small entities. It is also rare for small railroads to Total Annual Burden Cost:
An agency must conduct a regulatory compete with each other.As mentioned `
flexibility analysis unless ft determines $3,130,859.'7.
above,small railroads generally Serve Subsequent Year Burden:
and certffies that a rule is not expected smaller,lower density markets and
to have a significant impact on a Total Annual Number of'
o P" customers.The} tend to operate in Respondents:139.
substantial number of small entities. markets where there is not enough Tota]Annual Responses:139.
The Small Business Administration P
(SBA)permits agencies to alter the SBA traffic:to attract or sustain rail Total Annual Burden Hours:13,677.
competition,large or small. Liven the
definitions for small businesses upon significant capital investment required Total Annual Burden Cost:
$831,971.91.
consultation with SBA and in (to acquire right-of-way,build track,
conjunction with public comment. Direct your requests for a copy of the
railroad industry iss especially rare.Pursuant to this authority,FRA purchase fleet,etcnew entry in ethe information collection to Deborah
.
published a final rule(68 FR 24891; Boothe:or T.Glenn Foster, U.S.
May 9,2003) defining a"small entity" Thus,even to the extent the interim Department of Transportation,Pipeline
as a railroad meeting the;line haulage final rule may have an economic &Hazardous Materials Safety
impact,it should have no impact on the Administration
revenue requirements of a Class III (PHMSA),East
intr lmodal competitive position of
railroad. Currently,the revenue small railroadsBuilding,Office:of Hazardous Materials
.
requirements are$20 million or less in Standards(PHH-11), 1200 New Jersey
annual operatinWe did not receive any comments in
g revenue.This is the; Avenue Southeast Washington DC,
definition used by, PHMSA to determine opposition to our conclusion that this 30590 Telephone('202)366-8553.
the potential impact of this interim final rulemaking will not have a significant
rule on small entities. impact on a substantial number of small G.Regulation Identifier Number(RIN)
Not all small railroads will be entities.Based on the lack of opposing A regulation identifier number(RIN)
required to comply with the provisions comments,the foregoing discussion• is assigned to each regulatory action
of this interim final rule.Most of the and more detailed analysis in the listed in the Unified Agenda of Federal
510 small railroads transport no regulatory evaluation for this interim Regulations.The Regulatory Information
hazardous materials.PHMSA and FRA final rule,I certify that the provisions of Service Center publishes the Unified
estimate there are about 100 small this interim final rule,if adopted,will Agenda in April and October of each
railroads—or 20% of all small not have a significant impact on a year.The RIN number contained in the
railroads—that could potentially be substantial number of small entities. heading of this document can be used
affected by this interim final rule.Cost F. Paperivork Reduction Act to cross-reference this action with the
impacts for small railroads will result Unified Agenda.
primarily from the costs for data This interim final rule may result in
collection and analvsis.PHMSA an increase in annual burden and costs H. Unfunded Mandates Reform Act
estimates the cost to each small railroad under Office of Management and Budget This interim final rule does not
to be$2,776.70 per year over 20 years, (OMB)Control Number 2137-0612, impose unfunded mandates under the
discounted at 7%.Based on small PHMSA currently has an approved
Unfunded Mandates Reform Act of
railroads' annual operating revenues, information collection under OMB 1995.It does not result in costs of
these costs are not significant. Small Control No. 2137-0612,"Hazardous $120.7 million or more to either state,
railroads'annual operating revenues Materials Security Plans"expiring May local,or tribal governments,in the
range from $3 million to$20 million. 31,2009• aggregate,or to the:private sector,and
Thus,the costs imposed by the interim Under the Paperwork Reduction Act is the least burdensome alternative to
final rule amount to between 0.01% and of 1995,no person is required to achieve the objective of the rule.
0.09% of a small railroad's annual respond to an information collection
operating revenue, unless it has been approved by OMB i.Environmental Assessment
This interim final rule will not have and displays a valid OMB control The National Environmental Policv
a noticeable impact on the competitive. number.5 CFR 1320.8(d)requires that Act,42 U.S.C.4321-4375,requires that
position of the affected small railroads PHMSA provide interested members of federal agencies analyze proposed
or on the small entity segment of the the public:and affected agencies an actions to determine whether the action
railroad industry as a whole.The small opportunity to comment on information will have a significant impact on the
entity segment of the railroad industry and recordkeeping requests. human environment.The Council on
faces little in the way of intramodal This notice identifies a revised Environmental Quality(CEQ)
competition.Small railroads generally information collection request that regulations order federal agencies to
serve as "feeders"to the larger railroads, PHMSA submitted to OMB for approval conduct an environmental review
collecting carloads in smaller numbers based on the requirements in this rule. considering: (1)The need for the
and at lower densities than would be PHMSA has developed burden proposed action; (2)alternatives to the
economical for the larger railroads.They estimates to reflect changes in this proposed action; (3)probable
transport those cars over relatively short proposed rule.We estimate that the total environmental impacts of the proposed
distances and then turn them over to the information collection and action and alternatives;and (4)the
larger systems,which transport them recordkeeping burden for the current agencies and persons consulted during
relatively long distances to their requirements and as specified in this the consideration process.40 CFR
ultimate destination,or for handoff back rule would he as follows: 1508.9(b).
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20771
In accordance with the CEQ Subpart I—Safety and Security Plans sidings.This term does not include an
regulations,we completed an offeror's facility,private track,private
environmental assessment for this E, 3.Add new§172.820,to read as siding,or consignee's facility.
interim final rule that considers the follows: (2)In performing the analysis
potential environmental impacts of §172.820 Additional planning required by this paragraph,the rail
throe alternatives.The environmental carrier must seek relevant information
requirements for transportation by rail.
assessment is available for review in the from state,local,and tribal officials,as
ublic:docket for this rulernakin (a) General.Each rail carrier a b appropriate,re-ardin g security risks to
" Y
P g' transporting in commerce one or more high-consequence
nsequence targets along or in
The provisions of this interim final of the following materials is subject to proximity to the route(s) utilized.If a
rule build on current regulatory t::ie additional safety and security rail carrier is unable to acquire relevant
requirements to enhance the planning requirements of this section: information from state,local,or tribal
transportation safety and security of (1)More than 2,268 kg(5,000 lbs) in officials,then it must document that in
shipments of hazardous materials. a single carload of a Division 1.1,1.2 or its analysis.For purposes of this section,
transported by rail,thereby reducing the 1.3 explosive; a high-consequence target means a
risks of an ac:c:idental or intentional (2)A bulk quantity of a material property,natural resource,location,
release of hazardous materials and poisonous by inhalation,as defined in
consequent environmental damage;.The §171.8 of this subchapter(including area,or other target designated by the
p b Secretary of Homeland Security that is
net environmental impact,therefore, anhydrous amrrrorria);or a viable terrorist target of national
will be moderately positive.There are (3)A highway route-controlled significance,the attack of which by
no significant environmental impacts quantity of a Class 7(radioactive) railroad could result in catastrophic loss
associated with this interim final rule. material,as defined in §173.403 of this of life,significant damage to national
J.Privacy Act subchapter. security or defense capabilities,or
(b) Commodity data.Not later than 90 national economic harm.
Anyone is able to search the clays after the end of each calendar year, (d)Alternative route analysis. (1)For
electronic form of any written a rail carrier must compile commodity each calendar year,a rail carrier must
communications and comments data for the previous calendar year for identify practicable alternative routes
received into any of our dockets by the the materials listed in paragraph (a)of over which it has authority to operate,
name of the individual submitting the this section,except that for calendar if an alternative exists,as an alternative
document (or signing the document,if Year 2008,data may be compiled for the route for each of the transportation
submitted on behalf of an association, 6-month period heginnirlg July 1,2008, routes analvzed in accordance with
business,labor union,etc.). You may The following stipulations apply to data paragraph (c)of this section.The carrier
review DOT's complete Privacy Act collected: must perform a safety and security risk
Statement in the Federal Register (1)Commodity data must be collected assessment of the alternative routes for
published on April 11,2000 (65 FR by route,a line segment or series of line comparison to the route analysis
19477)or you may visit http:H segments as aggregated by the rail prescribed in paragraph(c)of this
wwwregulations.gov. carrier.Within the rail carrier selected section.The alternative.,route analysis
route,the commodity data must identify must be in writing and include the
List of Subjects the geographic location of the route and criteria in Appendix D of this part.
49 CFR Part 172 the total number of shipments by UN When determining practicable
identification number for the materials alternative routes,the rail carrier must
Hazardous materials transportation, specified in paragraph (a)of this consider the use of interchange
Hazardous waste:,Labeling,Packaging Section• agreements with other rail carriers.The
and containers,Reporting and (2)A carrier may compile commodity written alternative route analvsis must
record keep ing requirements. data,by UN number,for all Class 7 also consider:
4.9 CFR Part ]74 materials transported(instead of only (i)Safety and security risks presented
highway route controlled quantities of by use of the alternative route(s);
Hazardous materials transportation, glass 7 materials)and for all Division (ii)Comparison of the safety and
Rail carriers,Reporting and 6.1 materials transported (instead of security risks of the alternative(s)to the
rccordkeeping requirements. only Division 6.1 poison inhalation primary rail transportation route,
hazard materials). including the risk of a catastrophic
■ In consideration of the foregoing,we (c)Rail transportation route analysis. release from a shipment traveling along
are amending title 49 Chapter 1, For each calendar year,a rail carrier each route;
Subchapter C,as follows: must analyze the safety and security (iii)Any remediation or mitigation
risks for the transportation route(s), measures implemented on the primary
PART 172—HAZARDOUS MATERIALS identified in the commodity data or alternative route(s);and
TABLE,SPECIAL PROVISIONS, collected as required b ara h (b)of
q Y P•ro g P (iv)Potential economic effects of
HAZARDOUS MATERIALS
this section,The route analvsis must be using the alternative route(s),including
COMMUNICATIONS,EMERGENCY in writing and include the factors but not limited to the economics of the
RESPONSE INFORMATION,AND contained in Appendix D to this part,as commodity,route,and customer
TRAINING REQUIREMENTS
applicable. relationship.
(1)The safety and security risks (2)In performing the analvsis
■ 1.The authority citation for part 172 present must be analyzed for the route required by this paragraph,the rail
continues to read as follows: and railroad facilities along the route. carrier should seek relevant information
Authority:49 U.S.C.5101-5128,44701:49 For purposes of this section,railroad from state,local,and tribal officials,as
CMZ 1.53. facilities are railroad property appropriate,regarding security risks to
including,but riot limited to, high-consequence targets along or in
■ 2.Revise the title of subpart I of part classification and switching yards, proximity to the alternative routes.if a
172 to read as follows: storage facilities,and non-private rail carrier determines that.it is not
20772 Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations
appropriate to seek such relevant this section,each rail carrier must a determination,FRA and TSA will
information,then it must explain its ensure the safety and security plan it consult with the Surface Transportation
reasoning for that determination in its develops and implements under this Board (STB)regarding whether the
analvsis. subpart includes all of the following: contemplated alternative roette(s)would
(e)Route Selection.A carrier must use (1)A procedure under which the rail be economically practicable.
the:analysis performed as required by carrier.must formally consult with ■4.Add new§17'2.822 to read as
paragraphs(c)and (d)of this section to offerors and consignees in order to follows:
select the route to be used in moving the develop measures for minimizing,to the
materials covered by paragraph (a)of extent practicable:,the duration of any §172.822 Limitation on actions by states,
this section.The carrier must consider storage of the material incidental to local governments,and Indian tribes.
any remediation measures implemented movement (see§171.8 of this A law,order,or other directive of a
on a route.Using this process,the subchapter). Such measures should be state,political subdivision of a state,or
carrier must at least annually review implemented with mutual consent of all an Indian tribe that designates,limits,or
and select the practicable route posing parties. prohibits the use of a rail line(other
the least overall safety and security risk. (2)Measures to prevent unauthorized than a rail line owned by a state,
The rail carrier must retain in writing all access to the materials during storage or political subdivision of a state,or an
route review and selection decision delays in transit. Indian tribe)for the transportation of
documentation and restrict the (31 Measures to mitigate risk to hazardous materials,including,but not
distribution,disclosure,and availability population centers associated with in- limited to,the materials specified in
of information contained in the route transit storage. §172.820(a),is preempted.49 U.S.C.
analysis to covered persons with a need- (4)Measures to be taken in the event 5125, 20106.
to-know,as described in parts 15 and of an escalating threat level for materials 0 5.Add new Appendix D to part 172,
1520 of this title.This documentation stored in transit.. to read as follows:
should include,but is not limited to, (5)Procedures for notifying the.
comparative analyses,charts,graphics consignee;in the event of a significant Appendix D to Part 172—Rail Risk
or rail system maps. delay during transportation;such Analysis Factors
(f) Completion of route analyses. (1) notification must be completed within A.']'his appendix sets forth the minimum
Thr.,initial rail transportation route 48 hours after the carrier has identified criteria that must be considered by rail
analysis,alternative route analysis,and the delay and must include a revised
carriers when performing the safety and
route selection process required under delivery schedule.A significant delay is security risk analyses required by§172.820.
paragraphs(c),(d),and (e)of this one that compromises the safety or The risk analvsis to be performed may be
section must be completed by security of the hazardous material or . quantitative,qualitative,or a combination of
September 1,2009.In subsequent years, delays the shipment beyond its normal both.In addition to clearly identifying the
the rail transportation route analysis, expected or planned shipping time. analvzo , material(s)and routes)being
alternative route analysis,and route Notification should he made by a analyzed,the analysis must provide a
selection process required under method acceptable to both the rail thorough description of the threats,identified
P q o vulnerabilities.and mitigation measures
paragraphs(c), (d),and(e)of this carrier and consignee. implemented to address identified
section must be completed no later than (h)Recordkeeping. (1)Each rail vulnerabilities.
the end of the calendar year following carrier must maintain a copy of the B.in evaluating the safety and security of
the year to which the analyses apply. information specified in paragraphs(b), hazardous materials transport,selection of
The initial analvsis and route selection (c), (d),(e),and (t)of this section (or an the route for transportation is critical.For the
determinations required under electronic:image thereof)that is purpose of rail transportation route analysis,
paragraphs(c), (d),and (e)of this accessible at,or through,its principal as specified in§172.820(c)and(d),a route
section must include a comprehensive place of business and must make the may include the point where the carrier takes
review of the entire system.Subsequent record available upon request,at a possession of the material and all track and
analyses and route selection reasonable time and location,to an railroad facilities up to the point
where the
material is relinquished 1.o anotherrentity.
determinations required under authorized official of the Department of Railroad facilities are railroad property
paragraphs(c), (d),and(e)of this Transportation or the;Department of including,but not limited to,classification
section must include a comprehensive, Homeland Security.Records must be and switching yards,storage facilities,and
system-wide review of all operational retained for a minimum of two years. non-private sidings:however,they do not
changes, infrastructure modifications, (2)Each rail carrier must restrict the include an offerors facility,private track,
traffic adjustments,changes in the distribution,disclosure,and availability private siding,or consignee's facility.Each
nature of high-consequence targets of information collected or developed in rail carrier must use best efforts to
located along,or in proximity to,the accordance with paragraphs(c), (d),(e), communicate with its shippers,consignees,
and interlining partners to ensure the safety
route,and any other changes affecting and(f)of this section to covered persons and security of shipments during all stages of
the safety or security of the movements with a need-to-know,as described in transportation.
of the materials specified in paragraph parts 15 and 1520 of this title. C.Because of the varying operating
(a)of this section that were (i) Compliance and enforcement.If environments and interconnected nature of
int lemented during the calendar year. the carrier's rotate selection the rail system,each carrier must select and
2)A rail carrier need not perform a documentation and underlying analyses document the analysis method/model used
rail transportation route analysis, are found to be deficient,the carrier and identifv the routes to be analyzed.
alternative route analysis,or route may be required to revise the analyses D.The safety and security risk analysis
selection process for any hazardous or make changes in route selection.If must consider current data and information
material other than the materials DOT finds that a chosen route is not the as well as changes that may reasonably be
specified in paragraph (a)of this safest and most secure practicable route anticipated to occur during the analysis year.
Factors to be considered in the performance
section. available,the FRA Associate of this safety and security risk analysis
(g) Storage, delays in transit,and Administrator for Safety,in consultation include:
notification.With respect to the with TSA,may require the use of an 1.Volume of hazardous material
materials specified in paragraph(a)of alternative route:.Prior to making such transported;
Federal Register/Vol. 73, No. 74/Wednesday, April 16, 2008/Rules and Regulations 20773
2.(tail traffic:density: PART 174-CARRIAGE BY RAIL particularly attentive to signs that
3.Trip length for route; security may have been compromised
4.Presence and characteristics of railroad R 6.The authority citation for part 174 on rail cars transporting materials
facilities; continues to read as follows:
5.'rrac:k type,class.and maintenance covered by§172.920 of this subchapter,
schedule; Authority:49 U.S.C.5101-5128:49 CFR rail carload quantities of ammonium
Ii.Track grade and curvature; 1.53• nitrate or ammonium nitrate mixtures in
7.Presence or absence of signals and train ■t 7.Revise§174.9 to read as follows; solid form,or hazardous materials of
control systems along the route("dark" interest based on current threat
versus signaled lerriLorv); §174.9 Safety and security inspection and
8.Presence or absence of wayside hazard acceptance. information.
detectors; (a)At each location where a (c:)if a rail car does not conform to the
9.Number and types of grade crossings; hazardous material is accepted for safety and security requirements of this
10.Single versus double track territory; transportation or placed in a train,the subchapter,the carrier may not forward
11.Frequency and location ol'track carrier must inspect each rail car
turnouts; P or transport the rail car until the
12.Proximity to iconic targets; containing the hazardous material,at deficiencies are corrected or the car is
13.Environmentally sensitive or ground level,for required markings, approved for movement in accordance
significant areas; labels,placards,securement of closures, with§174.50.
14.Population density along the route; and leakage.These inspections may be (d)Where an indication of tampering
15.Venues along the route(stations, performed in conjunction with
events,places of congregation); inspections required under parts 215 or suspicious item is found,a carrier
16.Emergency response capability alongand332 of this title. must take appropriate action to ensure
the route; the security of the rail car and its
17.Areas of high consequence along the (b)Feach rail car containing an
route,including high consequence targets as amount of hazardous material requiring contents have not been compromised
defined in§172.820(c); placarding in accordance with§172.504 before accepting the rail car for further
18.Presence of passenger traffic along of this subchapter,the carrier must movement. If the carrier determines that
route(shared track): visually inspect the rail car at ground the security of the.rail car has been
19.Speed of train operations; level for signs of tampering,including compromised,the carrier must take
20.Proximity to en-route storage or repair closures and seals,for suspicious items action,in conformance with its existing
facilities; or items that do not belong,and for security plan (see subpart I of part 172
21.Known threats,including any non-
public threat scenarios provided by the other signs that the security of the czar of this subchapter)to address the
Department of Homeland Security or the may have been compromised,incauding security issues before forwarding the
Department of Transportation for carrier use the presence of an improvised explosive rail car for further movement.
in the development of the route assessment; device,.As used in this section,an Issued in Washington,DC on April 71,
22.Measures in place to address apparent improvised explosive device is a device , 1
safety and security risks; fabricated in an improvised manner 2008,under the authority delegated in 49
23.Availability ol'practirable alternative incorporating explosives or destructive, CFR part 1.'
routes; lethal,noxious, pyrotechnic,or Carl T.Johnson,
24.Past incidents;
25.Overall times in transit; incendiary chemicals in its design,and Administrator.
26.Training and skill level of crews;and generally includes a power supply,a IFR Doc.E8-8185 Filed 4-15-08;8:45 am]
27.Impact on rail network traffic andswitch or timer,and a detonator or BILLING CODE 4910--60-P
congestion. initiator.The carrier should be