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Federal Register / Vol. 84, No. 40 / Thursday, February 28, 2019 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 107, 130, 171, 173, and
174
[Docket No. PHMSA–2014–0105 (HM–251B)]
RIN 2137–AF08
Hazardous Materials: Oil Spill
Response Plans and Information
Sharing for High-Hazard Flammable
Trains (FAST Act)
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), Department of Transportation
(DOT).
ACTION: Final rule.
AGENCY:
PHMSA, in consultation with
the Federal Railroad Administration and
pursuant to the Fixing America’s
Surface Transportation Act (FAST Act)
of 2015, issues this final rule to revise
and clarify requirements for
comprehensive oil spill response plans
(COSRPs) and to expand their
applicability based on petroleum oil
thresholds that apply to an entire train
consist. Specifically, this final rule:
Expands the applicability for COSRPs;
modernizes the requirements for
COSRPs; requires railroads to share
information about high-hazard
flammable train (HHFT) operations with
State and tribal emergency response
commissions to improve community
preparedness; and incorporates by
reference a voluntary standard. The
amendments in this final rule will
provide regulatory flexibility and
improve response readiness to mitigate
effects of rail accidents and incidents
involving petroleum oil and HHFTs.
DATES:
Effective date: This final rule is
effective as of April 1, 2019.
Voluntary compliance date: PHMSA
is authorizing voluntary compliance
beginning February 28, 2019.
Delayed compliance date: Unless
otherwise specified, compliance with
the amendments adopted in this final
rule is required beginning August 27,
2019.
Incorporation by reference: The
incorporation by reference of certain
publications listed in the rule is
approved by the Director of the Federal
Register as of April 1, 2019.
ADDRESSES: Information about this
rulemaking (Docket Number PHMSA–
2014–0105) is available at the Federal
eRulemaking Portal: http://
www.regulations.gov, or at DOT’s
Docket Operation Office: Room W12–
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SUMMARY:
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140 on the ground floor of the West
Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Alexander Wolcott, (202) 366–8553,
Standards and Rulemaking Division,
Pipeline and Hazardous Materials Safety
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001; or Mark Maday, (202) 493–0479,
Office of Safety Assurance and
Compliance, Federal Railroad
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms
AAR Association of American Railroads
ACP Area Contingency Plan
AFPM American Fuel & Petrochemical
Manufacturers
ANPRM Advance Notice of Proposed
Rulemaking
ANSI American National Standards
Institute
API American Petroleum Institute
ASLRRA American Short Line and Regional
Railroad Association
ASTM ASTM International
BSEE Bureau of Safety and Environmental
Enforcement
CFR Code of Federal Regulations
COSRP Comprehensive Oil Spill Response
Plan
Crude Oil Petroleum crude oil
CWA Clean Water Act (see Federal Water
Pollution Control Act)
DHS U.S. Department of Homeland
Security
DOE U.S. Department of Energy
DOI U.S. Department of the Interior
DOT U.S. Department of Transportation
E.O. Executive Order
EPA Environmental Protection Agency
EPCRA Emergency Planning and
Community Right-to-Know Act
ESA Environmentally Sensitive/Significant
Area
FAST Act Fixing America’s Surface
Transportation Act of 2015
FEMA Federal Emergency Management
Agency
FMCSA Federal Motor Carrier Safety
Administration
FR Federal Register
FRA Federal Railroad Administration
FRP Facility Response Plan
FRSA Federal Railroad Safety Act
FWPCA Federal Water Pollution Control
Act (see Clean Water Act)
GIUE Government Initiated Unannounced
Exercises
GRP Geographic Response Plan
HHFT High-Hazard Flammable Train
HMR Hazardous Materials Regulations (see
49 CFR parts 171–180)
HMT Hazardous Materials Table (see 49
CFR 172.101)
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HMTA Hazardous Materials Transportation
Act
IAFC International Association of Fire
Chiefs
IBP Initial Boiling Point
ICS Incident Command System
ICP Integrated Contingency Plan
IMT Incident Management Team
LEPC Local Emergency Planning Committee
MPMS API Manual of Petroleum
Measurement Standards
NASTTPO National Association of SARA
Title III Program Officials
NCP National Contingency Plan
NFPA National Fire Protection Association
NIMS National Incident Management
System
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
OMB Office of Management and Budget
OPA 90 Oil Pollution Act of 1990
OSC Federal On-Scene Coordinator
OSRO Oil Spill Removal Organization
OSRP Oil Spill Response Plan
PG Packing Group
PHMSA Pipeline and Hazardous Materials
Safety Administration
PREP National Preparedness for Response
Exercise Program
RCP Regional Contingency Plan
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RP Recommended Practice
RSPA Research and Special Programs
Administration
SACP Sub-Area Contingency Plans
SERC State Emergency Response
Commission
SSI Sensitive Security Information
TERC Tribal Emergency Response
Commission
TRANSCAER Transportation Community
Awareness and Emergency Response
TSA Transportation Security
Administration
TTCI Transportation Technology Center
Inc.
U.S.C. United States Code
USCG United States Coast Guard
USFA United States Fire Administration
Table of Contents
I. Executive Summary
A. Comprehensive Oil Spill Response
Plans
B. HHFT Information Sharing Notification
for Emergency Response Planning
C. Initial Boiling Point Test
II. Background
A. Oil Spill Response Plans
B. HHFT Information Sharing Notification
for Emergency Response Planning
C. Initial Boiling Point Test
III. Recent Spill Events
IV. National Transportation Safety Board
Safety Recommendations
V. Summary and Discussion of Public
Comment
A. Overview of NPRM Comments
B. Summary of Oil Spill Response Plans
Comments
C. Summary of HHFT Information Sharing
Notification Comments (§ 174.312)
D. Summary of Initial Boiling Point Test
Comments (§ 173.121)
VI. Incorporated by Reference
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VII. Section-by-Section Review
VIII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
B. Executive Order 12866 and DOT
Regulatory Policies and Procedures
C. Executive Order 13771
D. Executive Order 13132
E. Executive Order 13175
F. Regulatory Flexibility Act, Executive
Order 13272, and DOT Policies and
Procedures
G. Paperwork Reduction Act
H. Executive Order 13211
I. Unfunded Mandates Reform Act
J. Executive Order 13609 and International
Trade Analysis
K. Environmental Assessment
L. Regulation Identifier Number (RIN)
M. Privacy Act
List of Subjects
I. Executive Summary
The Pipeline and Hazardous Materials
Safety Administration (PHMSA), in
consultation with the Federal Railroad
Administration (FRA), issues this final
rule to improve oil spill response
readiness and mitigate effects of rail
accidents and incidents involving
petroleum oil and high-hazard
flammable trains (HHFTs). See 49 CFR
171.8 for definition. This final rule is
necessary due to expansion in U.S.
energy production having led to
significant challenges for the country’s
transportation system. PHMSA is
finalizing this rule in accordance with
sections 7302 and 7307 of the FAST
Act, Public Law 114–94, and the
Consolidated Appropriations Act of
2018, division L, title I, Public Law 115–
141.
On July 29, 2016, PHMSA, in
consultation with FRA, published a
Notice of Proposed Rulemaking (NPRM)
under the same title as this final rule (81
FR 50068). The NPRM proposed
regulations in three areas:
Comprehensive oil spill response plans
(COSRPs), HHFT information sharing,
and incorporation of an initial boiling
point test for determination of light
hydrocarbons in stabilized petroleum
crude oils. Overall, this final rule adopts
the requirements proposed in the NPRM
with minor changes for plain language
or clarification in consideration of the
comments received to the NRPM. The
estimated costs and benefits for this
final rule are described in Table 1
below:
TABLE 1—10 YEAR AND ANNUALIZED COSTS (IN MILLIONS) AND BENEFITS BY STAND-ALONE REGULATORY PROPOSAL
Benefits
(7%)
Provision
Oil Spill Response Planning and Response.
Information Sharing ...................................
Costs
(7%)
Qualitative
Breakeven
• Improved Communication/Defined
Command Structure may improve
response.
• Pre-identified Access to Equipment
and Staging of Appropriate Equipment for Response Zones.
• Trained Responders.
• Improved Communication ...............
• Enhanced Preparedness.
Cost-effective if this requirement reduces the consequences of oil
spills by 6.7%.
10-Year: $21.4.
Annualized: $3.1.
Cost-effective if this requirement reduces the consequences of oil
spills by 1.2%.
N/A ......................................................
10-Year: $3.7.
Annualized: $0.53.
IBR of ASTM D7900 .................................
• Regulatory Flexibility .......................
• Enhanced Accuracy in Packing
Group Assignments.
Total ...................................................
.............................................................
A. Comprehensive Oil Spill Response
Plans
This final rule adopts the
requirements for COSRPs as proposed in
the NPRM. The COSRP requirements are
promulgated under the authority of the
Cost-effective if this requirement reduces the consequences of oil
spills by 7.8%.
Oil Pollution Act of 1990 (OPA 90),
Public Law 101–380, which amended
the Federal Water Pollution Control Act
(FWPCA), also known as the Clean
Water Act (CWA), at 33 U.S.C. 1321.
Table 2 below summarizes the
No Cost Estimated.
10-Year: $25.2.
Annualized: $3.6.
applicable statutory requirements for
COSRPs, the requirements adopted in
this final rule, and the differences
between the requirements adopted in
this final rule and the proposals of the
NPRM:
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TABLE 2—COSRPS
OSRP statutory requirements
HM–251B final rule COSRP requirements
HM–251B NPRM differences
33 U.S.C. 1321(j)(5)(A)(i)
The President shall issue regulations which require an owner or operator of a tank vessel
or facility described in paragraph (j)(5)(C) to
prepare and submit to the President a plan
for responding, to the maximum extent practicable, to a worst-case discharge, and to a
substantial threat of such a discharge, of oil
or a hazardous substance.
49 CFR part 130
Restructures part 130 to create subpart C for
COSRPs.
Responds to commenter requests to better
align COSRPs with minimum requirements
for other federally mandated (Oil Spill Response Plans) OSRPs, especially those for
pipelines in 49 CFR part 194. Requires
PHMSA to approve COSRPs.
49 CFR part 130
Minimal clarification and plain language wording changes between NPRM and final rule
throughout all sections in response to comments.
NPRM proposed that FRA would be responsible for approving COSRPs, and final rule
consolidates DOT’s OSRP approval under
PHMSA.
§ 130.105
§ 130.104 renumbered as § 130.105
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TABLE 2—COSRPS—Continued
OSRP statutory requirements
HM–251B final rule COSRP requirements
HM–251B NPRM differences
Provides general requirements for recordkeeping, plan format, and information about
response structure.
Permits use of Integrated Contingency Plan
(ICP) and State plans providing equivalent
level of coverage.
Minimal. Clarifies COSRPs with only one response zone do not need to include separate ‘‘core plan’’ section.
Adds greater flexibility by permitting use of
State plans that provide equivalent protection.
33 U.S.C. 1321(j)(5)(C)(iv)
An onshore facility [e.g. rolling stock] 1 that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.
§ 130.100
Expands current applicability (42,000 gallons
of oil in a single package) to also include
route segments which are used for:
• At least 20 cars of liquid petroleum oil
in a continuous block or 35 cars of liquid petroleum oil in a train consist.
• For example, tank cars containing
crude oil, fuel oil, petroleum distillates,
diesel, or gasoline must be included
when counting cars in the consist. Mixtures that do meet the criteria for Class
3 flammable or combustible material in
§ 173.120, or containing residue as defined in § 171.8 of subchapter C, are
not required to be included when determining the number of tank cars transporting liquid petroleum oil. Examples
of petroleum oils which may not meet
the definition of a Class 3 flammable or
combustible liquid include diluted waste
water and certain mineral oils.
§ 130.101 renumbered as § 130.100
Minimal. Clarifies COSRP are only required
for routes used to transport applicable
quantities of oil.
33 U.S.C. 1321(j)(5)(D)(i)
Be consistent with the requirements of the National Contingency Plan (NCP) and Area
Contingency Plans (ACP).
§§ 130.105 and 130.110
Requires certification that the plan is consistent with a list of specific NCP/ACP requirements for ‘‘minimum compliance’’ to
clarify the elements of NCP/ACP applicable
to rail shipments.
§§ 130.120 and 130.125
§ 130.103 renumbered as § 130.110
Minimal. Clarifies railroads are identifying Environmentally Sensitive Areas (ESAs) from
existing Area or Regional Contingency
Plans.
Identify the qualified individual having full authority to implement removal actions, and require immediate communications between
that individual and the appropriate Federal official and the persons providing personnel
and equipment pursuant to clause.
Requires identification of Qualified Individual
for each response zone in quickly accessible information summary. Requires immediate communication between Qualified Individual and appropriate Federal official and
the persons providing personnel and equipment.
Requires plan include a checklist of necessary notifications, contact information,
and necessary information to clarify procedures.
Minimal. Clarifies that communication between Qualified Individuals and appropriate
Federal officials and persons providing response personnel and equipment, must be
immediate.
33 U.S.C. 1321(j)(5)(D)(iii)
§§ 130.105 and 130.130
Identify, and ensure by contract or other means
approved by the President the availability of,
private personnel and equipment necessary
to remove to the maximum extent practicable
a worst-case discharge (including a discharge resulting from fire or explosion), and
to mitigate or prevent a substantial threat of
such a discharge.
Includes the establishment of response
zones, to ensure availability of personnel
and equipment in different geographic route
segments. Requires planning framework for
response zones including ensuring resources are staged within 12 hours at any
part of the applicable route
Includes requirements to identify organization,
personnel, equipment, and deployment location thereof capable of removal and mitigation for a worst-case discharge (WCD).
Allows use of Oil Spill Removal Organization (OSRO) which has been classified by
the United States Coast Guard under 33
CFR 154.1035 or 155.1035 to be used in
lieu of listing personnel and equipment
§§ 130.102 and 130.106 renumbered as
§§ 130.105 and 130.130, respectively
Minimal. Clarifies railroads determine the
boundaries of each response zone, provided resources are identified with appropriate planning framework. Clarifies use of
U.S. Coast Guard (USCG) guidelines for
determining and evaluating required response resources during the response in
accordance with appendix C of 33 CFR part
154.
33 U.S.C. 1321(j)(5)(D)(iv)
Describe the training ..........................................
§ 130.135
Requires certification and documentation employees have been trained in carrying out
their responsibilities under the plan.
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33 U.S.C. 1321(j)(5)(D)(ii)
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§§ 130.104 and 130.105 renumbered as
§§ 130.120 and 130.125, respectively
§ 130.107 renumbered as § 130.135
Minimal. Clarifies Incident Command System
(ICS) incident commander level training is
recommended best practice.
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TABLE 2—COSRPS—Continued
OSRP statutory requirements
HM–251B final rule COSRP requirements
HM–251B NPRM differences
33 U.S.C. 1321(j)(5)(D)(iv)
Describe . . . equipment testing .......................
§ 130.140
Requires description and certification equipment testing meets the manufacturer’s minimum requirements.
§ 130.108 renumbered as § 130.140
Minimal. Edits section number and title.
33 U.S.C. 1321(j)(5)(D)(iv)
Describe . . . periodic unannounced drills ........
§ 130.140
Requires exercises to be equivalent to the
PREP Guidelines.
§ 130.108 renumbered as § 130.140
Minimal. Updates USCG website address and
replaces term ‘‘drill’’ with ‘‘exercise.’’
33 U.S.C. 1321(j)(5)(D)(iv)
Describe . . . response actions of persons on
the vessel or at the facility.
§ 130.130
COSRPs describe:
• Activities and responsibilities of railroad
personnel prior to arrival of Qualified
Individual;
• Qualified Individual’s responsibilities
and actions; and
• Procedures coordinating railroad/Qualified Individual actions with On-Scene
Coordinator (OSC).
§ 130.106 renumbered as § 130.130
Minimal. Adds a reference to appendix C of
33 CFR part 154 to clarify the equivalent
planning standards to use of OSROs classified under 33 CFR 154.1035 and 155.1035.
33 U.S.C. 1321(j)(5)(D)(v)
Be updated periodically ......................................
§ 130.150
Clarifies plans should be reviewed every 5
years,
when
significant
information
changes, or after a discharge requiring plan
activation ocurs.
§ 130.109 renumbered as § 130.150
Minimal. In response to commenters, this final
rule clarifies that railroads may operate for
two years upon submission of response
plan to PHMSA and certification of appropriate resources, for better consistency with
the CWA.
33 U.S.C. 1321(j)(5)(E)
(1) With respect to any response plan submitted under this paragraph for an onshore
facility that, because of its location, could
reasonably be expected to cause significant
and substantial harm to the environment by
discharging into or on the navigable waters
or adjoining shorelines or the exclusive economic zone, and with respect to each response plan submitted under this paragraph
for a tank vessel, nontank vessel, or offshore
facility, the President shall—
(i) promptly review such response plan;
(ii) require amendments to any plan that
does not meet the requirements of this
paragraph;
(iii) approve any plan that meets the requirements of this paragraph;
(2) A tank vessel, nontank vessel, offshore facility, or onshore facility required to prepare a
response plan under this subsection may not
handle, store, or transport oil unless—
§ 130.150
Requires approval of plans by PHMSA provided minimum requirements for the plan
are met.
§ 130.111 renumbered as § 130.150
Minimal. NPRM proposed FRA approve railroad COSRPs. Final rule consolidates
DOT’s approval of OSRPs under PHMSA.
As with other PHMSA programs and procedures, PHMSA will continue to work with
FRA for guidance on rail specific information and procedures, including shared review and enforcement. Clarifies method to
submit plans in electronic format.
§ 130.100
Prohibits transportation of oil subject to
COSRPs unless requirements for submission, review, and approval in § 130.150 are
met and the railroad is operating in compliance with the plan
§ 130.101 moved to §§ 130.100 and 130.150
Minimal. Edits the section numbering and title
for plain language.
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(i) in the case of a tank vessel, nontank
vessel, offshore facility, or onshore facility for which a response plan is reviewed
by the President under paragraph (1),
the plan has been approved by the
President; and
(ii) the vessel or facility is operating in
compliance with the plan
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TABLE 2—COSRPS—Continued
OSRP statutory requirements
HM–251B final rule COSRP requirements
HM–251B NPRM differences
(3) Notwithstanding paragraph (1), the President may authorize a tank vessel, nontank
vessel, offshore facility, or onshore facility to
operate without a response plan approved
under this paragraph, until not later than 2
years after the date of the submission to the
President of a plan for the tank vessel,
nontank vessel, or facility, if the owner or operator certifies that the owner or operator has
ensured by contract or other means approved by the President the availability of private personnel and equipment necessary to
respond, to the maximum extent practicable,
to a worst-case discharge or a substantial
threat of such a discharge.
§ 130.100
Allows railroads to temporarily continue operating for up to 2 years while waiting for plan
approval, provided the plan has been submitted to PHMSA and the railroad submits
a signed certification statement of appropriate resources.
§ 130.111 moved to § 130.100
Minimal. PHMSA receives plans. Clarifies
temporary continuation are limited to 2
years per statutory language.
B. HHFT Information Sharing
Notification for Emergency Response
Planning
This final rule adopts the
requirements for HHFT information
sharing as proposed in the NPRM, with
clarification for plain language and
modifications in response to
commenters. The information sharing
notification requirements are
promulgated under the authority of
Federal hazardous materials
transportation law (49 U.S.C. 5101–
5128). Table 3 below summarizes the
advanced notification information
sharing requirements mandated by the
Fixing America’s Surface Transportation
(FAST) Act of 2015 and adopted in this
final rule.
TABLE 3—INFORMATION SHARING NOTIFICATION FOR EMERGENCY RESPONSE PLANNING
FAST Act (advanced notification)
Section 7302(a)(3), (4), (6)
Final rule HM–251B (information sharing)
49 CFR 174.312
Class I railroads transporting HHFT (20 cars in a block,
35 in consist carrying ANY Class 3 flammable liquid).
Railroads must notify State Emergency Response
Commissions (SERCs), who must provide the notification information (and updates) to any political subdivision of a State or public agency responsible for
emergency response or law enforcement, upon request of the political subdivision or public agency.
Required security and confidentiality protections include
protections from the public release of proprietary information or security-sensitive information, to prevent
the release to unauthorized persons.
A reasonable estimate of the number of implicated
trains that are expected to travel, per week, through
each county within the applicable state.
Identification of the routes over which such liquid will be
transported.
Identification and a description of the Class 3 flammable liquid being transported on such trains and applicable emergency response information, as required
by regulation.
A point of contact at the Class I railroad responsible for
serving as the point of contact for State emergency
response centers and local emergency responders
related to the Class I railroad’s transportation of such
liquid.
Update the notifications prior to making any material
changes to any volumes or frequencies of HHFTs
traveling through a county. ‘Material changes’ in
Emergency Order means changes greater than 25%.
Requires notification ‘‘consistent with the notification
content requirements in Emergency Order Docket
No. DOT–OST–2014–0067’’.
All railroads transporting HHFT (20 cars in a block, 35
in consist carrying ANY Class 3 flammable liquid).
Railroads must notify SERCs, Tribal Emergency Response Commissions (TERCs), or other appropriate
State designated entities who share information with
appropriate local authorities, upon their request.
Topic
Who is subject?
Who must the railroads notify?
What security measures are
required?
What to include in the notification?
When/how often?
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How are records maintained?
1 ‘‘Onshore facility’’ means any facility
(including, but not limited to, motor vehicles and
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If the disclosure includes information that railroads believe is security sensitive or proprietary and exempt
from public disclosure, the railroads should indicate
that in the notification.
A reasonable estimate of the number of HHFTs that
are expected to travel, per week, through each county within the state.
The routes over which the affected trains will be transported.
A description of the materials shipped and applicable
emergency response information required by subparts C and G of part 172 of this subchapter.
At least one point of contact at the railroad (including
name or email address, title, phone number, and address) for the SERC, TERC, and relevant emergency
responders related to the railroad’s transportation of
affected trains.
Updates the notification for changes in volume greater
than 25 percent.
Notification may be provided electronically or in writing.
Railroads provide the notification to DOT upon request.
rolling stock) of any kind located in, on, or under,
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any land within the United States other than
submerged land. 33 U.S.C. 1321(a)(10).
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TABLE 3—INFORMATION SHARING NOTIFICATION FOR EMERGENCY RESPONSE PLANNING—Continued
FAST Act (advanced notification)
Section 7302(a)(3), (4), (6)
Final rule HM–251B (information sharing)
49 CFR 174.312
N/A ..................................................................................
For petroleum oil trains subject to the COSRP in part
130, includes the contact information for Qualified Individual and the response zone description from the
COSRP.
Topic
What COSRP Information
must be included?
C. Initial Boiling Point Test
The NPRM proposed to incorporate
by reference ASTM International’s
(ASTM) D7900, ‘‘Standard Test Method
for Determination of Light
Hydrocarbons in Stabilized Crude Oils
by Gas Chromatography’’ related to
initial boiling point for crude oils
containing light hydrocarbons as an
acceptable testing alternative to the
boiling point tests specified in the
current regulations. This ASTM
standard is referenced by the industry
best practice, American National
Standards Institute (ANSI)/American
Petroleum Institute (API) Recommended
Practices 3000, ‘‘Classifying and
Loading of Crude Oil into Rail Tank
Cars,’’ First Edition, September 2014.
This final rule incorporates the test
method by reference as proposed under
the authority of Federal hazardous
materials transportation law (49 U.S.C.
5101–5128). This final rule clarifies that
initial boiling point, when determining
the boiling distribution using ASTM
D7900, is the temperature at which 0.5
weight percent is eluted. Inclusion of
this additional boiling test option
provides regulatory flexibility and
promotes enhanced safety in transport
through accurate Packing Group (PG)
assignment.
II. Background
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Expansion in U.S. energy production
has led to significant challenges for the
country’s transportation system.
Traditionally, pipelines and oceangoing
tankers have delivered most crude oil to
U.S. refineries, accounting for
approximately 93 percent of total
receipts (in barrels) in 2012.2 Although
other modes of transportation—rail,
barge, and truck—have accounted for a
relatively minor portion of crude oil
shipments historically, volumes have
risen rapidly in the 2010s relative to
previous decades.3 The rail
2 Bureau of Transportation Statistics, ‘‘Crude Oil
and Petroleum Products Transported in the United
States by Mode.’’ U.S. Department of
Transportation. Last modified 01/2018. https://
www.bts.gov/content/crude-oil-and-petroleumproducts-transported-united-states-mode.
3 U.S Energy Information Administration.
‘‘Petroleum and Other Liquids.’’ Independent
Statistics and Analysis. Last modified 08/2018.
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transportation of large volumes of crude
oil and other petroleum products
presents unique safety risks. Rail
accidents have tracked changes in
production and rail shipments of crude
oil— rising when rail shipments
increase in volume and falling when
crude oil volumes fall according to FRA
and PHMSA incident report data. Please
see the RIA for further discussion and
a graph of oil-by-rail shipments and
derailments. This final rule will
improve response readiness and
mitigate effects of rail accidents and
incidents by instituting information
sharing requirements for HHFTs and
COSRP requirements for petroleum oil
trains.
DOT reached out to stakeholders in
industry, emergency response, and State
and tribal governments through various
forums and events to better understand
and increase community awareness and
preparedness for response to bulk
transportation incidents involving
energy products. In May 2014, PHMSA
published the ‘‘Crude Oil Rail
Emergency Response Lessons Learned
Roundtable Report,’’ which outlined key
factors that were identified by a panel
of fire chiefs and emergency response
management officials as having a direct
impact on success in managing the
outcomes of a crude oil transportation
incident.4 More information about
DOT’s actions related to community
awareness of and preparedness for
response to bulk transportation
incidents involving energy products is
available on PHMSA’s ‘‘Safe
Transportation of Energy Products’’
website.5
A. Oil Spill Response Plans
The Oil Pollution Act of 1990 (OPA
90) amended the Federal Water
Pollution Control Act (FWPCA), also
known as the Clean Water Act (CWA),
at 33 U.S.C. 1321 by adding oil spill
response planning requirements for
https://www.eia.gov/dnav/pet/hist/LeafHandler.
ashx?n=PET&s=ESM_EPC0_RAIL_ZAMN-ZAMN_
MBBL&f=M.
4 https://www.phmsa.dot.gov/safe-transportationenergy-products/emergency-response-and-training.
5 https://www.phmsa.dot.gov/safe-transportationenergy-products/safe-transportation-energyproducts-overview.
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‘‘facilities’’ that handle oil. Railroads or
‘‘rolling stock’’ are included in the
definition of ‘‘onshore facility.’’ 6 The
CWA requires owners and operators of
onshore facilities to prepare and submit
Oil Spill Response Plans (ORSPs) for
facilities that ‘‘could reasonably be
expected to cause substantial harm to
the environment by discharging into or
on the navigable waters, adjoining
shorelines, or the exclusive economic
zone.’’ The CWA directs the President to
issue regulations requiring owners and
operators of onshore oil facilities to
develop, submit, update and in some
cases obtain approval of OSRPs meeting
certain minimum requirements in 33
U.S.C. 1321(j)(5).
On October 22, 1991, the President
delegated authority to the Secretary of
Transportation to regulate certain
transportation-related facilities (i.e.,
motor carriers and railroads) under
sections 1321(j)(1)(C) and 1321(j)(5) of
the CWA. See E.O. 12777, 56 FR 54757,
sections 2(b)(2) and 2(d)(2). The
Secretary later delegated this authority
to PHMSA’s predecessor agency, the
Research and Special Programs
Administration (RSPA). PHMSA’s
delegated authority under sections
1321(j)(1)(C) and 1321(j)(5) for certain
transportation-related facilities (i.e.,
motor vehicles and rolling stock) is
solely the authority to promulgate
regulations. When required, COSRPs are
submitted to the Federal Highway
Administration or the FRA, for motor
carriers and railroads, respectively.
On June 17, 1996, RSPA published a
final rule carrying out its delegated
authority under the CWA for motor
carriers and railroads.7 The 1996 final
rule established ‘‘comprehensive plans’’
under the authority of 33 U.S.C.
1321(j)(5) for anyone transporting oil in
a quantity greater than 1,000 barrels or
42,000 gallons per package. The 1996
final rule also adopted requirements in
part 130 for the preparation of ‘‘basic
plans’’ for containers with a capacity of
6 ‘‘Onshore facility’’ means any facility
(including, but not limited to, motor vehicles and
rolling stock) of any kind located in, on, or under,
any land within the United States other than
submerged land.’’ 33 U.S.C. 1321(a)(10). ‘‘Rolling
stock’’ refers to rail cars.
7 61 FR 30533 (June 17, 1996).
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3,500 gallons or more carrying
petroleum oil. Basic plans were adopted
as a ‘‘containment rule pursuant to
§ 1321(j)(1)(C)’’ of the CWA and
therefore do not meet the minimum
requirements for OSRPs in section
1321(j)(5).8
A rail tank car designed to carry
liquid materials, including petroleum
oil, has an approximate capacity of
30,000 gallons. Because the typical rail
tank car has a capacity around 30,000
gallons, no rail carriers are currently
transporting tank cars of petroleum oil
subject to the 42,000-gallon packaging
threshold for COSRPs adopted by the
1996 final rule. On July 6, 2013, an
unattended, runaway unit train carrying
crude oil from the Bakken region of
North Dakota derailed in the town of
Lac-Me´gantic, Quebec. The incident
resulted in loss of life and destruction
of property and the environment. The
cause was found to be human error that
led to the unattended train gathering
speed before derailing near the center of
Lac-Me´gantic. While an OSRP may not
have prevented this incident, the LacMe´gantic incident prompted
examination into the safety of crude oil
transportation by rail. The National
Transportation Safety Board (NTSB)
recommended requiring COSRPs for
unit trains of petroleum in Safety
Recommendation R–14–005. Congress
also directed DOT to develop and report
on a plan to finalize updated
requirements for OSRPs in section 7307
of the FAST Act. Additionally, in the
Consolidated Appropriations Act of
2018, signed into law on March 23,
2018, Congress directed the Secretary to
‘‘issue a final rule to expand the
applicability of comprehensive oil spill
response plans.’’
On July 29, 2016, PHMSA, in
consultation with FRA, published an
NPRM titled ‘‘Oil Spill Response Plans
and Information Sharing for HighHazard Flammable Trains.’’ The NPRM
proposed to modernize COSRP
requirements under 49 CFR part 130 in
response to NTSB recommendations
(including Safety Recommendation R–
14–005), the FAST Act, and comments
from the public to an August 1, 2014,
Advance Notice of Proposed
Rulemaking (ANPRM) (79 FR 45079).
PHMSA also proposed the requirements
to address needs identified by first
responders in the ‘‘Crude Oil Rail
Emergency Response Lessons Learned
Roundtable Report’’ and challenges
identified through analysis of recent
spill events.9
8 61
FR 30537 (June 17, 1996).
9 https://www.phmsa.dot.gov/safe-transportation-
energy-products/emergency-response-and-training.
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Specifically, the NPRM proposed to
expand COSRPs to routes over which
railroads operate a single train
containing 20 or more tank cars loaded
with liquid petroleum oil in a
continuous block or a single train
containing 35 or more tanks cars loaded
with liquid petroleum oil throughout
the train consist.
The NPRM also proposed to update
the COSRP requirements in response to
comments requesting greater specificity
to plan contents through a closer
alignment to other Federal OSRP
regulations promulgated under the
CWA. The proposed requirements in the
NPRM are similar to PHMSA’s Office of
Pipeline Safety’s (OPS) requirements for
pipeline oil spill response plans in 49
CFR part 194. Developing OSRPs for
both pipeline and rail require planning
for routes spanning large geographic
areas. The NPRM proposed railroads
divide their routes into ‘‘response
zones’’ that connect notification
procedures and available response
resources to the specific geographic area
for the covered route segments.
Response zones include geographic
information, such as a planning
framework, which ensures response
resources are staged within 12 hours of
any point along the route. The NPRM
requested comments on providing
regulatory flexibility for small
businesses, requiring faster response
times in certain ‘‘High Volume Areas,’’
and recommending that the Qualified
Individual should be trained to the
Incident Commander level using the
Incident Command System (ICS).
B. HHFT Information Sharing
Notification for Emergency Response
Planning
Federal hazardous materials
transportation law (49 U.S.C. 5101–
5128) authorizes the Secretary to
‘‘prescribe regulations for the safe
transportation, including security, of
hazardous material in intrastate,
interstate, and foreign commerce.’’ The
Secretary delegates this authority to
PHMSA under 49 CFR 1.97(b). PHMSA
is responsible for overseeing a
hazardous materials safety program that
minimizes the risks to life and property
inherent in the transportation of
hazardous materials in commerce. The
Hazardous Materials Regulations (HMR;
49 CFR parts 171–180) include
operational requirements applicable to
transportation of hazardous materials by
highway, rail, aircraft, and vessel. The
Secretary also has authority over all
areas of railroad transportation safety
(Federal railroad safety laws, principally
49 U.S.C. chapters 201–213); this
authority is delegated to FRA under 49
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CFR 1.89. FRA promulgates and
enforces a comprehensive regulatory
program (49 CFR parts 200–244) and
inspects and audits railroads, tank car
facilities, and hazardous material
offerors for compliance with both FRA’s
regulations and the HMR. Because of the
shared role in the safe and secure
transportation of hazardous materials by
rail, PHMSA and FRA work closely
when considering regulatory changes.
The agencies take a system-wide,
comprehensive approach consistent
with the risks posed by the bulk
transport of hazardous materials by rail.
On May 7, 2014, the Secretary, under
the authority of 49 U.S.C. 5121(d),
issued an Emergency Restriction/
Prohibition Order in Docket No. DOT–
OST–2014–0067 (Order).10 The Order
requires each railroad transporting 1
million gallons or more of Bakken crude
oil in a single train in commerce within
the United States to provide certain
information in writing to the State
Emergency Response Commission
(SERC) for each state in which it
operates such a train. Tribal Emergency
Response Commissions (TERCs) are
permitted to coordinate with the
appropriate SERC(s) for access to data
supplied under this Emergency
Restriction/Prohibition Order.11 The
Order also requires a railroad to provide
SERCs information about the type of oil,
volume, route, and emergency response
procedures, as well as appropriate
railroad contact information. It also
requires railroads to provide SERCs
updated notifications prior to any
‘‘material change’’ in the volume of
affected trains and provide copies of
notifications made to each SERC to FRA
upon request. DOT subsequently issued
a document compiling frequently asked
questions (FAQs) to clarify several
aspects of the Order.12
On October 3, 2014, FRA published
‘‘Proposed Agency Information
Collection Activities; Notice and
Request for Comments’’ (79 FR 59891)
to provide additional analysis of the
requirements of the Order. FRA
consulted with DOT, the U.S.
Department of Homeland Security
(DHS), and the Transportation Security
Administration (TSA), and determined
the information required by the Order
was not commercially sensitive or
Sensitive Security Information (SSI) as
defined by DOT, DHS, or TSA
regulations. Id. at 59892. FRA further
noted that DOT found no basis to
10 https://www.regulations.gov/
document?D=DOT-OST-2014-0067-0001.
11 https://www.regulations.gov/
document?D=DOT-OST-2014-0067-0003.
12 See document number 0003 in Docket No.
DOT–OST–2014–0067.
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conclude that the public disclosure of
the information is detrimental to
transportation safety.
In the May 8, 2015, final rule
‘‘Hazardous Materials: Enhanced Tank
Car Standards and Operational Controls
for High-Hazard Flammable Trains’’
(HM–251 final rule), PHMSA decided
against adopting an earlier proposal to
codify the specific requirements of the
Order for railroads transporting 1
million gallons or more of crude oil
originating in the Bakken region, and
instead adopted similar requirements
more easily integrated into the HMR
that achieved the desired result.
On May 28, 2015, PHMSA announced
plans to extend the Order indefinitely
and to consider options for codifying
the disclosure requirement on a
permanent basis after further evaluating
the issue within DOT.13 PHMSA
recognized the desire for local
communities to receive proactive
notification of hazardous materials
moving through their cities and towns.
PHMSA noted that transparency is
critical to DOT’s comprehensive
approach to safety and expressed
support for the public disclosure of this
information to the extent allowed by
applicable State, local, and tribal laws.
On December 4, 2015, the FAST Act
was signed into law. The FAST Act
includes the ‘‘Hazardous Materials
Transportation Safety Improvement Act
of 2015’’ at sections 7001 through 7311,
which provides direction for the
hazardous materials safety program.
Section 7302 directs the Secretary to
issue regulations to require (1) real-time
sharing of the electronic train consist
information for hazardous materials
shipments; and (2) advanced
notification of HHFTs. DOT has
initiated a separate rulemaking to
address the requirements of section
7302(a)(1) related to real-time electronic
train consists. Docket No. PHMSA–
2016–0015 (HM–263).14
Section 7302(a)(3) of the FAST Act
directs DOT to promulgate regulations
requiring advanced notification
consistent with notification content
requirements of the Order. The FAST
Act expands the Order to require Class
I railroads to provide advanced
notification and information on HHFTs
to each SERC. The FAST Act requires
SERCs receiving this advanced
notification to provide the information
to law enforcement and emergency
response agencies upon request. The
13 https://www.phmsa.dot.gov/news/phmsanotice-regarding-emergency-response-notificationsshipments-petroleum-crude-oil-rail.
14 https://www.regulations.gov/
docket?D=PHMSA-2016-0015.
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FAST Act, in section 7302(a)(6), also
directs the Secretary to establish
security and confidentiality protections
for electronic train consist information
and advanced notification information.
In response to the FAST Act and
DOT’s commitment to codifying the
Order, PHMSA proposed information
sharing notification requirements in the
‘‘Hazardous Materials: Oil Spill
Response Plans and Information Sharing
for High-Hazard Flammable Trains
(HM–251B)’’ NPRM published July 29,
2016. The NPRM proposed that all
railroads transporting HHFTs notify
SERCs, Tribal Emergency Response
Commissions (TERCs), or other Statedelegated agencies with information
consistent with the Order. The NPRM
proposed that the notification include
key information from COSRPs, when
applicable.
The intent of these requirements is to
ensure that local emergency responders
and emergency response planning
officials have access to sufficient
information regarding the movement of
HHFTs in their jurisdictions to
adequately plan and prepare for
emergency events involving HHFTs.
This purpose is reaffirmed by the FAST
Act’s requirements for sharing and
protection of information required by
the advanced notification. Under the
Emergency Planning and Community
Right-to-Know Act (EPCRA) in title III of
the Superfund Amendments and
Reauthorization Act of 1986 (SARA), the
Governor of each state is required to
establish a SERC. The SERC is
responsible for establishing emergency
planning districts and appointing,
supervising, and coordinating Local
Emergency Planning Committees
(LEPCs). For federally recognized tribal
governments, the Chief Executive
Officer of the Tribe appoints a Tribal
Emergency Response Commission
(TERC), as designated by the
Environmental Protection Agency (EPA)
in a final rule published July 26, 1990
(55 FR 30632). TERCs have the same
responsibilities as SERCs. On July 26,
1990, EPA published a final rule
designating Indian Tribes and their
chief executive officers as the
implementing authorities for EPCRA on
all Indian lands.
The NPRM proposed to protect
information by allowing railroads to
indicate information they ‘‘believe is
security sensitive or proprietary and
exempt from public disclosure.’’
Previous analysis by DOT, FRA, and
DHS concluded that the aggregated
information required to be shared by
railroads does not qualify for
withholding under Federal standards for
business confidential information or
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SSI; however, as noted in FRA’s
previous discussion of this matter in its
October 2014 Information Disclosure
Notice, State laws control, and may
limit, the disclosure and dissemination
of this information.15 Therefore, the
NPRM acknowledged that states may
differ in their methods and proposed an
approach intended to provide flexibility
for SERCs, TERCs, and other Statedelegated agencies to disseminate
information in accordance with state
laws and procedures. As proposed,
before fulfilling a request for
information and releasing the
information, the States and Tribes will
be on notice of which information the
railroads consider to be inappropriate
for public release.
C. Initial Boiling Point Test
The offeror’s responsibility to classify
and describe a hazardous material is a
key requirement under the HMR.
Improper classification and failure to
identify applicable material properties
can have significant negative impacts on
transportation safety. Proper
classification is necessary to ensure
proper packaging, operational controls,
and hazard communication
requirements are met, all of which are
important to mitigate the negative
effects of a train derailment or other
hazardous materials incident. It is an
offeror’s responsibility to accurately
classify and describe a hazardous
material. For transportation purposes,
classification is ensuring the proper
hazard class, packing group, and
shipping name are assigned to a
material. To determine whether a
hazardous material should be classified
as Class 3 Flammable liquid, as well as
determine the appropriate packing
group, the HMR require testing for the
material’s flash point and initial boiling
point (IBP) under §§ 173.120 and
173.121.
The American National Standards
Institute (ANSI) recognized
recommended practice includes
guidance on the material
characterization, transport
classification, and quantity
measurement for overfill prevention of
petroleum crude oil for the loading of
rail tank cars (see API RP 3000,
‘‘Classifying and Loading of Crude Oil
into Rail Tank Cars’’). For crude oils
containing volatile, low molecular
weight components (e.g., light ends), the
industry recommended best practice for
IBP is to test using ASTM D7900. The
initial boiling point, when determining
the boiling distribution using ASTM
D7900, is the temperature at which 0.5
15 79
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weight percent is eluted. The ASTM
D7900 differs from the boiling point
tests currently in the HMR in that it is
the only test that ensures a minimal loss
of light ends; however, the ASTM
D7900 is not currently included in the
list of testing methods authorized in the
HMR in § 173.121(a)(2).
In this final rule, PHMSA is adopting
the NPRM’s proposal to incorporate by
reference the ASTM D7900 test method
identified within API RP 3000, thus
permitting use of this IBP industry best
practice. The incorporation of the
ASTM D7900, which aligns with the
API RP 3000, will not replace the
currently authorized initial boiling
point testing methods. Rather, it will
serve as a testing alternative if one
chooses to use that method. PHMSA
believes this provides flexibility and
promotes enhanced safety in transport
through accurate packing group
assignment.
III. Recent Spill Events
PHMSA collected and reviewed
information from various sources
pertaining to recent derailments
involving discharges of petroleum oil. In
this rulemaking and the accompanying
analysis, PHMSA has focused on the
following derailments: Mosier, OR (June
2016); Watertown, WI (November 2015);
Culbertson, MT (July 2015); Heimdal,
ND (May 2015); Galena, IL (March
2015); Mt. Carbon, WV (February 2015);
La Salle, CO (May 2014); Lynchburg, VA
(April 2014); Vandergrift, PA (February
2014); New Augusta, MS (January 2014);
Casselton, ND (December 2013);
Aliceville, AL (November 2013); and
Parkers Prairie, MN (March 2013). In the
Regulatory Impact Analysis (RIA),
PHMSA provides narratives and
discussion of the circumstances and
consequences of these derailments.
Please refer to the rulemaking docket
(Docket No. PHMSA–2014–0105) for the
preliminary and final RIA and all
supporting documents.
PHMSA’s review of these derailments
identified challenges during oil spill
response that occurred in the past and
could potentially occur in future
derailment scenarios. PHMSA
incorporates this understanding of
response challenges into this
rulemaking, which amends the
requirements of 49 CFR part 130, to
improve COSRPs by way of new and
revised requirements. Improved oil spill
response planning will, in turn, improve
the actual response to future
derailments involving petroleum oil and
lessen potential negative effects on
communities.
IV. National Transportation Safety
Board Safety Recommendations
This rulemaking partially addresses
several recommendations from the
NTSB, as summarized in Table 4:
TABLE 4—NTSB RECOMMENDATIONS PARTIALLY ADDRESSED IN THIS RULEMAKING
NTSB recommendation
Recommendation summary
R–14–002: Issued January 23,
2014.
Recommends that FRA develop a program to audit response plans for
rail carriers of petroleum products to ensure that adequate provisions are in place to respond to and remove a worst-case discharge
to the maximum extent practicable and to mitigate or prevent a substantial threat of a worst-case discharge.
Recommends that PHMSA revise the spill response planning thresholds contained in 49 CFR part 130 to require comprehensive response plans to effectively provide for the carriers’ ability to respond
to worst-case discharges resulting from accidents involving unit
trains or blocks of tank cars transporting oil and petroleum products.
Recommends that PHMSA require railroads transporting hazardous
materials through communities to provide emergency responders
and local and state emergency planning committees with current
commodity flow data and assist with the development of emergency
operations and response plans.
Recommends that PHMSA require shippers to sufficiently test and
document the physical and chemical characteristics of hazardous
materials to ensure the proper classification, packaging, and recordkeeping of products offered in transportation.
R–14–005: Issued January 23,
2014.
R–14–014:
2014.
Issued
August
22,
R–14–006: Issued January 23,
2014.
V. Summary and Discussion of Public
Comment
A. Overview of NPRM Comments
In the NPRM, PHMSA solicited public
comment on potential revisions to
regulations that would: Expand the
applicability of COSRPs to HHFTs based
on the amount of petroleum oil in an
entire train consist, rather than a single
package or tank car; require rail carriers
to share information regarding HHFTs
with State authorities; and incorporate
by reference of the ASTM D7900 test
method. The NPRM summarized and
discussed comments received in
Rulemaking description
Requires PHMSA
COSRPs for rail.
to
approve
Revises the spill planning thresholds to address 20 cars of liquid
petroleum oil in a continuous
block or 35 cars of liquid petroleum oil in a consist.
Adopts information sharing requirements for HHFTs.
Adds ASTM D7900 test method as
option to determine boiling point
of certain crude oil.
response to questions regarding
potential revisions to the COSRP
requirements asked by the earlier
ANPRM. PHMSA received
approximately 130 comments in
response to the NPRM. See Table 5
describing commenter backgrounds:
TABLE 5—COMMENTER BACKGROUND
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Commenter background
Count
Description and examples of category
Non-Government Organizations .................................................
35
Governments ...............................................................................
Private Individuals .......................................................................
Carrier Industry Stakeholders .....................................................
Shipper Industry Stakeholders ....................................................
19
67
6
4
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Environmental groups (30), emergency response organizations (4), and other non-governmental organizations (1).
Local (8), State (9), Federal (2).
Members of the public.
Railroads (1) and related trade associations (5).
Shippers (2) and petroleum-related trade associations (2).
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Most commenters addressed proposed
COSRP requirements. COSRP-related
comments comprised four general
categories: (1) Reiterating comments
provided to the ANPRM; (2) providing
statements of general support for
expanding COSRP requirements; (3)
expressing general concern or requests
to require faster response times for
response zones; or (4) recommending
additional requirements not proposed
by the NPRM. Many commenters noted
the negative impact that a petroleum oil
spill or HHFT derailment would have
on their individual communities and
personal property, with most such
comments coming from residents of the
Hudson River Valley region. A few
commenters provided detailed
comments about specific proposals in
the NPRM for COSRPs. Comments
related to COSRPs are further discussed
in ‘‘Section V.B. Summary of Oil Spill
Response Plan Comments’’ of this final
rule.
PHMSA received approximately 20
comments on the proposed HHFT
information sharing notification
requirements. These comments fall into
several categories, including: (1)
Applicability; (2) notification recipients;
(3) frequency of notification; and (4)
information security and confidentiality
concerns. Comments related to HHFT
information sharing are further
discussed in ‘‘Section V.C. Summary of
HHFT Information Sharing Notification
Comments’’ of this final rule.
PHMSA received five comments
addressing the proposed incorporation
by reference of the ASTM D7900 test
method. Comments related to
incorporation by reference are further
addressed in ‘‘Section V.D. Summary of
Initial Boiling Point Comments’’ of this
final rule.
Additionally, PHMSA received
several miscellaneous comments that
voiced general concern about the public
health, safety, and/or environmental
risks of petroleum trains and/or fossil
fuels. These comments either did not
provide recommendations for regulatory
action or exceeded the scope of
PHMSA’s authority.
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B. Summary of Oil Spill Response Plans
Comments
Summary and Response to Basic Spill
Response Plan (§ 130.31) Comments
The current threshold for a basic
OSRP is 3,500 gallons of petroleum oil.
Several commenters suggested that basic
plans for packages exceeding this
threshold should be eliminated and
replaced with comprehensive oil spill
response plans, which would effectively
require a COSRP for all tank-car
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shipments of petroleum oil.
Commenters suggested basic OSRPs be
replaced because they do not meet the
minimum requirements of the CWA in
33 U.S.C. 1321(j)(5)(D). The State of
California Department of Fish and
Wildlife, for example, disagreed that
basic OSRPs could be issued under a
containment rule pursuant to section
1321(j)(1)(C).
The NPRM did not propose changes
to the requirements for basic OSRPs;
therefore, this rule does not make such
changes. As stated in the NPRM and the
initiating 1996 final rule, the
requirements for a basic OSRP were
issued as a ‘‘containment rule pursuant
to § 1321(j)(1)(C)’’ of the CWA, and
therefore were not intended to fulfill the
requirements of 33 U.S.C. 1321(j)(5)(D).
The requirements of 33 U.S.C.
1321(j)(5)(D) for OSRPs are promulgated
in the requirements for COSRPs.
Summary of Comments Regarding
Applicability of COSRP (§ 130.100)
The NPRM proposed to expand the
applicability for COSRPs so that any
railroad that transports a single train
carrying 20 or more loaded tank cars of
liquid petroleum oil in a continuous
block or a single train carrying 35 or
more loaded tank cars of liquid
petroleum oil throughout the train
consist must also have a current, written
COSRP. The NPRM provided an
exception for tank cars carrying residue
as defined in § 171.8 of subchapter C or
diluted mixtures that do not meet the
definition of a Class 3 flammable or
combustible liquid. The NPRM
maintained both the current exception
in part 130 for mixtures that contain less
than 10 percent oil by volume and the
current threshold of 42,000 gallons per
package for both petroleum oil and nonpetroleum oil.
PHMSA received approximately 20
comments to the NPRM pertaining to
the applicability of COSRPs. Most of
these comments fell into two major
categories: The volume of oil being
transported and the type of materials
that trigger COSRPs. Additionally, there
were a few comments pertaining to
applicability in response to a question
in the NPRM that asked whether
additional relief should be given to
small entities, such as Class II or III
railroads.
While some commenters supported
the proposed volume applicability
threshold, many commenters provided
alternative suggestions. Most comments
reiterated suggestions regarding
applicability provided in comments
responding to the ANPRM. Generally,
individuals and environmental
organizations recommended using lower
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thresholds of petroleum oil to trigger
COSRPs due to environmental concerns,
safety concerns, or interpretations that
the CWA requires oil spill response
plans for all rolling stock carrying oil.
Several commenters requested lower
applicability thresholds without
specifying an alternative number.16
Lower-volume thresholds proposed by
commenters ranged from any amount of
oil to 20 rail cars of oil. Commenters
suggested replacing basic plans with
COSRPs for packages exceeding 3,500
gallons. Commenters who suggested a
threshold of one tank car—
approximately 29,000 gallons—believed
that any rail line carrying an oil tank car
should be subject to COSRPs.
Commenters that suggested a two-tank
car threshold did so to maintain
consistency with the current
requirement of 42,000 gallons in one
tank car, but suggested changing the
language to require COSRPs when a
train is carrying 42,000 gallons of oil in
any form, not just one tank car. It was
also suggested that the 42,000-gallon
threshold be removed outright. The
Minnesota Pollution Control Agency
stated that the threshold is not
meaningful and seems ‘‘arbitrary and
outdated especially when you consider
two 30,000-gallon tank cars pose the
same or more risk and are not
regulated.’’
In addition to quantitative
applicability comments, PHMSA
received several qualitative applicability
comments about the type of oil that
should require a COSRP. Most of these
comments were from environmental
groups or private citizens and reiterated
comments provided in response to the
ANPRM, without providing additional
data. Suggestions for expanded
applicability of COSRPs included all
hazardous substances, all Class 3
flammable liquids or other hazardous
materials, all kinds of oil, or all kinds
of liquid petroleum oils (irrespective of
hazard class). Mandating COSRPs for all
hazardous substances was suggested by
state agencies and environmental
groups, who cited the CWA statute
requirements for hazardous substances,
in addition to oil spills per 33 U.S.C.
1321(j)(5). These commenters supported
using the Federal On-Scene Coordinator
(OSC) to identify concerns evaluating a
plan’s compliance with the statutory
and regulatory requirements and
expressed concern about the potential
harm from hazardous substances. In
addition, commenters cited some state
16 See PHMSA–2014–0105–0250, PHMSA–2014–
0105–0251, PHMSA–2014–0105–0252, PHMSA–
2014–0105–0253, PHMSA–2014–0105–0256,
PHMSA–2014–0105–0290.
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plans, such as Minnesota’s, in which
COSRPs are required for all hazardous
substances. Multiple commenters
suggested adding all Class 3 flammable
liquids to the materials requiring a
COSRP, with justifications mostly based
on environmental or safety concerns.
Commenters also cited ethanol as an
example of a Class 3 flammable material
that poses a risk by rail.
NTSB opposed the exception from the
COSRP requirements for unit trains
carrying ‘‘mixtures or solutions of
petroleum oil not meeting the criteria
for Class 3 flammable or combustible
material.’’ NTSB found use of the term
‘‘mixtures or solutions’’ confusing, as
petroleum products are inherently a
mixture. NTSB also stated:
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[S]pilled, petroleum products are
significant environmental pollutants,
whether or not they are Class 3 flammable or
combustible liquids. In fact, less-flammable
petroleum materials that are denser than
water may sink to form emulsions, adhere to
sediments, and produce tar balls that are
often more difficult to remove from
waterways than less viscous Class 3
flammable oils.
The Association of American Railroads
(AAR) provided comments related to the
identification of petroleum oil subject to
the plan. AAR requested that PHMSA
specify which UN or NA identification
numbers are associated with the
definition of petroleum oil. AAR
suggested requiring railroads to
determine which UN or NA numbers
associated with Class 3 materials further
meet the definition of petroleum oil and
create an additional burden on
railroads.
AAR provided comments about the
applicability of route segments in the
plans and requested clarification that
the COSRP requirements do not apply to
route segments where applicable
quantities of oil are not transported.
AAR also suggested ‘‘that plans should
be required for only portions of HHFT
routes situated within a half-mile (0.5
miles) of a navigable waterway’’ so that
railroads do not need to perform their
own environmental reviews throughout
the entire rail network, which would be
overly burdensome. In addition, AAR
stated that the use of a half-mile
standard for planning purposes is
consistent with existing standardized
planning distances found in 40 CFR part
112, appendix C, section 5.
The International Association of Fire
Chiefs (IAFC) suggested revising the
applicability proposed in § 130.101
(‘‘Any railroad which transports a single
train transporting . . .’’), so as to
replace ‘‘transports’’ with ‘‘operates’’ for
‘‘better flow.’’
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In the NPRM, PHMSA asked whether
regulatory relief may be appropriate for
certain small businesses (i.e., Class II
and III short lines). Most commenters
supported regulations based on the risk,
quantity, and type of oil, regardless of
business size. The State of California
Department of Fish and Wildlife
expressed concern that the threshold of
20 tank cars in a unit or 35 tank cars
across the consist would exempt too
many short lines from COSRPs. The
American Short Line and Regional
Railroad Association (ASLRRA)
submitted comments stating that many
Class II and III short lines only operate
the first or last mile of an applicable
route and that requiring them to create
plans would be an undue burden.
ASLRRA also described scenarios in
which the short line acts as a tenant on
track owned by a Class I railroad,
suggesting that Class III railroads should
be offered some level of relief if
voluntarily entering into agreement to
use a plan created by the Class I for the
route section used by both railroads.
ASLRRA further clarified:
[This is not to] suggest the host railroad’s
oil spill response plan should address the
tenant’s operations as a matter of regulatory
fiat. Rather, ASLRRA is asking PHMSA to
acknowledge that it is permissible for a
tenant railroad to contract with a host
railroad for the latter to supply the oil spill
response capability required by PHMSA.
Response to Comments Regarding
Applicability of COSRP (§ 130.100)
PHMSA initiated this rulemaking in
response to changing conditions
stemming from the increase in the
volume of petroleum oil transported by
rail and the consequent incidents and
accidents; however, pursuant to the
CWA requirement for rolling stock that
‘‘could reasonably be expected to cause
substantial harm,’’ PHMSA seeks to
minimize burdens by expanding
requirements for COSRPs only where
there is a demonstrated need. PHMSA
does not have evidence of rail incidents
involving unit trains carrying other nonpetroleum oils (as defined in 49 CFR
130.5) that have demonstrated a need to
expand the applicability of
comprehensive plans to other nonpetroleum oils. Commenters did not
provide additional data on rail
transportation of non-petroleum oil or
hazardous substances identifying new
conditions, nor did they identify rail
incidents indicating new risks posed by
other non-petroleum oils or hazardous
substances. Therefore, we are
continuing with a threshold of 42,000
gallons for tank cars carrying petroleum
or other non-petroleum oil. However,
we may consider revising the
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requirements for other non-petroleum
oils or hazardous substances in a future
rulemaking.
We disagree that the applicability
should be expanded to include
additional hazardous materials, such as
all Class 3 flammable or combustible
liquids. Commenters did not provide
adequate data indicating that the type of
planning and level of resources required
by this rulemaking would be
appropriate for cleaning up spills for
materials other than oils. Furthermore,
this rulemaking was promulgated to
respond directly to the risks and unique
response requirements related to the
large volumes of petroleum oil being
transported in unit trains.
PHMSA disagrees that COSRPs would
be appropriate for a lower volume of
petroleum oil or a lesser number of tank
cars. As discussed in the NPRM and
HM–251 final rule, modeling data from
FRA indicates that for trains with fewer
than 20 tank cars in a block, or fewer
than 35 tank cars dispersed throughout
a train, relatively few tank cars
containing petroleum oil would be
breached on average in the event of an
incident.17 The threshold of 20 cars in
a block as used in the HM–251
rulemaking comes from AAR’s Circular
OT–55, which provides ‘‘Recommended
Railroad Operating Practices for
Transportation of Hazardous Materials’’
and defines ‘‘key trains.’’ Then, FRA
performed an analysis to determine the
average number of cars that would
derail with 20 tank cars in a block. Once
that number was determined, FRA did
further analysis to determine at what
number of tank cars dispersed
throughout the consist would the
number of tanks cars derailed be
equivalent. The result was 35 tank cars
throughout the consist. Therefore, in a
derailment scenario, these lower-risk
train configurations (i.e., fewer than 20
tank cars in a block or 35 tank cars
throughout the train) are not
‘‘reasonably expected’’ to breach in a
manner that could ‘‘cause substantial
harm to the environment by discharging
into or on the navigable waters,
adjoining shorelines, or the exclusive
economic zone.’’ Furthermore, given the
enhanced tank car standards
promulgated in the HM–251 final rule
and resulting improvements in tank-car
integrity, PHMSA believes the
likelihood of a tank car releasing its
total contents in a derailment has been
significantly reduced.18 PHMSA
maintains that lower-risk train
configurations should not be the focus
of this rulemaking because extending
17 80
18 80
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FR 26665 (May 8, 2015).
FR 26665 (May 8, 2015).
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the requirements of this rule to
operators of lower-risk configurations
would be burdensome, costly, and
inefficient.
PHMSA did not propose changes to
the communication requirements in 49
CFR 130.11, which apply to both basic
and comprehensive plans. Basic plans
already require that shipments of tank
cars carrying petroleum oil be described
on shipping papers or similar
documents as containing oil, unless
they are identified as ‘‘aviation fuel,
diesel fuel, fuel oil, gasoline, jet fuel,
kerosene, motor fuel, or petroleum.’’
While basic plans will be replaced with
COSRPs for certain train configurations,
the responsibility for offerors to identify
oil will not change. Additionally, the
U.S. Coast Guard (USCG) maintains a
‘‘List of Petroleum and Non-Petroleum
Oils’’ as a guide to determining whether
a particular substance is an oil under
their regulations.19 Therefore, PHMSA
further disagrees that additional
guidance is necessary to identify
petroleum oil, and is adopting the
definition of petroleum oil as proposed.
The definition of petroleum oil in
§ 130.5 includes both refined and
unrefined petroleum products. Oils
which do not contain petroleum, such
as synthetic oils or essential oils,
continue to be defined as ‘‘nonpetroleum oil’’ in § 130.5. We are
maintaining PHMSA’s longstanding
provision that any ‘‘mixture or solution
in which oil is in a concentration by
weight of less than 10 percent’’ is
excluded from the requirements in part
130. Therefore, petroleum oil in part
130 includes mixtures containing at
least 10 percent petroleum oil, such as
denatured ethanol fuel E85 (ethanol
containing 15 percent gasoline);
however, mixtures containing less than
10 percent petroleum oil, such as
diluted waste water or E95 (ethanol
with 5 percent gasoline) continue to be
excluded.
We also disagree with NTSB that the
exception for unit trains not carrying
petroleum oil meeting the definition of
a Class 3 flammable liquid or
combustible liquid should be removed.
Providing this exception aligns this
rulemaking’s applicability to unit trains
with the subset of HHFTs carrying
petroleum oil covered in other PHMSA
rulemakings. Furthermore, the railroad
can leverage information from the
routing analysis required by 49 CFR
172.820 when developing plans.
19 United States Coast Guard, Hazardous
Materials Division, available at: http://
www.dco.uscg.mil/Our-Organization/AssistantCommandant-for-Prevention-Policy-CG-5P/
Commercial-Regulations-standards-CG-5PS/DesignEngineering-Standards/eng5/
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We agree with AAR that the intent of
COSRPs is to cover routes where
applicable quantities of oil are
transported. Railroads are not required
to include routes or route segments in
response zones when applicable
quantities of oil are not transported on
these routes or route segments. We
assume that routes transporting
applicable quantities of oil are a subset
of the routes that railroads must already
identify under the requirements for
routing analysis in the HM–251 final
rule. Therefore, we are editing the
applicability language in § 130.100 to
state, ‘‘any route or route segments used
to transport. . .a single train carrying.
. . .’’ This clarification further
addresses IAFC’s recommendation to
avoid using the term ‘‘transports a single
train transporting’’ in the requirements
proposed in § 130.101, adopted in
§ 130.100.
The CWA requires OSRPs for any
facility that ‘‘because of its location,
could reasonably be expected to cause
substantial harm to the environment by
discharging into or on the navigable
waters, adjoining shorelines, or the
exclusive economic zone.’’ PHMSA is
not aware of evidence demonstrating
that routes located more than 0.5 miles
from navigable waters provide a
sufficient buffer to ensure substantial
harm could not occur in the event of a
spill. The EPA’s FRP requirements in
section 5.0 of attachment C–III
(‘‘Calculation of the Planning Distance’’)
to appendix C of 40 CFR part 112
provide detailed planning calculations
for facilities to determine the threat to
fish and wildlife and sensitive
environments or downstream public
water intake as a result of a discharge of
oil to navigable waters. For example,
under section 5.6 of the abovereferenced attachment, facilities located
further than 0.5 miles from navigable
waters must also consider the distance
to nearby storm drains and factors that
may be conducive to overland transport
of oil to these storm drains.
Additionally, section 5.7 of the abovereferenced attachment requires an
owner or operator to consider the
‘‘proximity to fish and wildlife and
sensitive environments, not bordering a
navigable water’’ in whether a facility
poses substantial harm. PHMSA was
unable to perform detailed analysis for
features such as storm drains, or
topographic features, along every point
on an HHFT route, so PHMSA assumes
that all rail routes used for applicable
quantities of oil are expected to have the
potential to impact navigable waters.
Therefore, the entire route carrying
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applicable oils should be covered by the
planning requirements for COSRPs.
PHMSA disagrees that Class II or III
railroads transporting petroleum oil
should be excluded from COSRP
requirements. As evidenced by the
derailment in Aliceville, Alabama,
which involved a 90-car crude oil unit
train, Class II and Class III railroads are
transporting quantities of petroleum oil
that pose the same risk as Class I
railroads. Nothing in the regulations
precludes Class I railroads from
assisting short lines in developing a
plan or precludes one railroad from
utilizing resources provided by another
railroad through contract or other
means; however, both railroads would
be subject to submitting a plan covering
their responsibilities to ensure those
responsibilities are clearly delineated.
Summary of Comments Regarding
General Requirements for COSRP
Format (§ 130.105)
In the NPRM, PHMSA proposed a
COSRP format requiring a core plan
with general information applicable to
the entire plan and response zones with
information specific to the route
segment. The NPRM proposed that the
plan must use and be consistent with
the core principles of the National
Incident Management System (NIMS),
including use of the Incident Command
System (ICS) throughout the plan. The
NPRM also proposed use of the
Integrated Contingency Plan (ICP) as an
alternate format.20
NTSB commented in support of the
general plan requirements in proposed
§ 130.102, stating they would ‘‘serve to
ensure a carrier’s ability to respond to
worst-case oil and petroleum discharges
called for by Safety Recommendation R–
14–005.’’
We received comments from State
government agencies and railroad
stakeholders on the use of alternative
plan formats. The Washington State
Department of Ecology and AAR both
supported the permissive use of ICPs as
providing greater flexibility to meet
planning standards when subject to
requirements by other agencies. Both
AAR and other State government
commenters highlighted differences
between requirements for State plans
20 In June 1996, the National Response Team
(NRT) published the Integrated Contingency Plan
(ICP, or One Plan) Guidance with support from five
agencies: The Environmental Protection Agency
(EPA); the Coast Guard; the Occupational Safety
and Health Administration (OSHA); the Office of
Pipeline Safety of the Department of Transportation
(DOT); and the Minerals Management Service
(MMS) of the Department of the Interior. The ICP
provides a mechanism for consolidating multiple
facility response plans into one plan that can be
used during an emergency. See 61 FR 28642
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and the proposed Federal plan
requirements.
Several commenters supported the
requirement that plans integrate NIMS
and ICS, while also requesting further
clarification of their roles. API
commented in support of ensuring that
‘‘the terminology used and practices
required are consistent with established
response organizations and structures to
include the National Response
Framework, the National Contingency
Plan, the National Preparedness and
Response Exercise Program (NPREP),
and National Incident Management
System (NIMS).’’ Additionally, industry
commenters highlighted the importance
of NIMS and ICS, and recommended
additional clarity. AAR stated, ‘‘PHMSA
should clarify that railroads, at their
discretion, may use EPA’s or DHS’s
criteria to be consistent with the NCP’’
in relation to the requirements to use
NIMS/ICS terminology. API highlighted
the importance of railroad personnel
following NIMS and ICS using
‘‘common terminology, training and
management of change for staff,’’ further
suggesting that PHMSA and FRA
‘‘should be prepared to provide
guidance and oversight to the regulated
community as they establish processes
that support personnel and
organizational changes.’’
IAFC recommended clarifying that
NIMS and ICS are utilized throughout
the plan by adding the underlined
words to the proposed requirements:
‘‘The plan must use and be consistent
with the core principle of the National
Incident Management System (NIMS)
including the utilization of the ICS.’’
Comments in Response to General
Requirements for COSRP Format
(§ 130.105)
PHMSA agrees with providing
flexibility for railroads submitting
multiple plans under differing Federal
and State regulations. The ICP was
developed to provide a single format for
response plans in recognition that
entities may be required to develop and
submit plans for multiple Federal
agencies to cover different facility types
and activities. The ICP provides
railroads with flexibility.
We are also adding an alternative for
railroads to submit plans that meet State
requirements, provided the State plan
also meets the minimum requirements
of the Federal standard. In addition to
the State plan, the railroad must include
the information summary (including the
contact information for the Qualified
Individual) and ensure through contract
or other approved means the availability
of private personnel and equipment
necessary to respond to a worst-case
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discharge (WCD) or a substantial threat
of such a discharge. The use of State
plans is voluntary and, therefore, does
not impose any additional burdens.
PHMSA is adding this alternative to
ensure that railroads do not engage in
unnecessary duplication and to provide
regulatory flexibility in response to
comments that discuss the potential
burden from states with differing
requirements and plan formats. PHMSA
encourages railroads to make use of this
alternative when possible to minimize
compliance costs. This alternative will
provide equivalent or greater
protections to the Federal response
plan. Furthermore, the allowance of ICP
and state plans is consistent with the
OPS requirements for pipelines. In
addition, it is PHMSA’s intention that
railroads will be able to use the same
data and other information gathered for
other response plans (i.e., Federal, state,
international) to inform the OSRPs
required under this rulemaking action,
provided they meet PHMSA’s OSRP
requirements.
PHMSA agrees that consistency with
NIMS and ICS is important. Requiring
use of NIMS and ICS maintains
consistency with EPA or DHS and
ensures better consistency with the
current response framework. We are
adopting the requirements as proposed
in the NPRM, with clarifications
suggested by IAFC to highlight the role
of the NIMS and ICS throughout the
plan, and with minor edits for plain
language.
Summary of Comments Regarding
Worst-Case Discharge for COSRP
(§§ 130.105 and 130.5)
Under the statute, worst-case
discharge (WCD) means ‘‘the largest
foreseeable discharge in adverse
weather conditions,’’ as defined at 33
U.S.C. 1321(a)(24). PHMSA proposed to
define a WCD from a train consist as the
greater of: (1) 300,000 gallons of liquid
petroleum oil; or (2) 15 percent of the
total lading of liquid petroleum oil
transported within the largest train
consist reasonably expected to transport
liquid petroleum oil in a given response
zone.
Environmental groups stated the WCD
calculation was too low and should
instead include the entire petroleum
content of all tank cars on the train and
additional factors affecting the
incidence or severity of a derailment
(e.g., bridge collapse, tide activity, etc.).
The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. stated that the analysis
for WCD was insufficient. They
provided several arguments against
specific analysis points in the agency’s
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determination of WCD, citing an
incomplete incident history, disagreeing
with adjustments made to account for
the protections from the enhanced tank
car standard in the HM–251 final rule,
and asserting that CWA only provides
deviation from setting a WCD at a
package’s full contents when
‘‘secondary containment’’ is provided.
The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. also stated the WCD
should be redefined to include the full
contents of all tank cars carrying
petroleum oil in a train. They stated the
full contents is a ‘‘reasonable
assumption’’ and provided examples of
Area Contingency Plans (ACP) that plan
for a WCD using the full contents of all
tank cars. The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. also stated that the final
rule must ‘‘appropriately account for a
range of damages and resources required
to rehabilitate communities and the
environment after a worst-case
disaster.’’
Some private individuals supported
removing the ‘‘300,000 gallon’’ option
for the WCD and requiring it to be 15
percent for all trains carrying petroleum
oil. These commenters stated 300,000
gallons was too low of a calculation.
However, they did not address train
configurations for which 300,000
gallons is a greater volume than 15
percent.
Response to Comments Regarding
Worst-Case Discharge for COSRP
(§§ 130.105 and 130.5)
This final rule adopts the proposed
requirements for WCD. Under the
statute, worst-case discharge means ‘‘the
largest foreseeable discharge in adverse
weather conditions,’’ as defined at 33
U.S.C. 1321(a)(24). The largest
foreseeable discharge includes
discharges resulting from fire or
explosion.21 PHMSA and FRA have not
observed any unit train derailments that
have resulted in the release of the
entirety of the train’s contents.
Furthermore, the likelihood of a unit
train losing the entire contents of all
tank cars is extremely low. Therefore,
defining a WCD as the total contents of
all tank cars overstates the ‘‘largest
foreseeable discharge.’’
PHMSA disagrees that the analysis for
the WCD is inadequate; it is based on
the U.S. incident record relevant to the
applicability of this rule. PHMSA
identified and analyzed the quantities
released from tank cars in the major
derailments involving petroleum oil that
have occurred in recent years in the
21 33
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United States to estimate the
approximate volume of petroleum oil
that would constitute a WCD in the
United States. PHMSA continues to
maintain that including rail incidents
that have occurred outside of the United
States is not appropriate for COSRP
analysis. PHMSA’s analysis indicates
that the WCD, in terms of the quantity
released from tank cars that punctured
or experienced thermal tears, would be
approximately 500,000 gallons of
petroleum oil.
Recognizing that the comprehensive
safety enhancements, including tank car
design enhancements promulgated in
the HM–251 final rule, would reduce
the overall quantity released in a
derailment scenario occurring in the
future, PHMSA did not propose 500,000
gallons as a planning volume for a WCD.
The HM–251 final rule adopted lower
speed limits for HHFTs during the
phase-in period for the new tank car
design to reduce risk. PHMSA believes
the safety improvements for HHFTs
adopted in the HM–251 final rule
provide a reasonable basis for adopting
a lower planning volume for WCDs.
Adjusting the largest quantity released
within the crude-by-rail derailment
history (i.e., 474,936 gallons) by the
expected mitigation of damages (0.33)
from the HM–251 rule, we expect
related safety improvements over the
10-year period from 2017–2026.22 This
calculation (474,936 x 0.67) yields
318,000 gallons. Specifically, the
quantity released in the Casselton, ND
indicates that a WCD would involve
474,936 gallons. Expressed as a
percentage of the total petroleum oil
lading carried by the derailed Casselton,
ND train, a WCD would involve
approximately 15 percent of the total
(474,936 gallons released divided by the
3,088,000 gallons carried by the train;
rounded down from 15.38 percent).
Specifically, 104 tank cars loaded with
petroleum oil were involved in that
derailment, and we have assumed that
the all tank cars contained 29,700
gallons. Notably, there have been only
two derailment incidents in the U.S.
safety record that had greater than 15
percent of material released: Casselton,
ND and Aliceville, AL. The crude oil
tank car fleet has seen major
improvements since the HM–251 final
rule, and if those derailments would
have occurred given the current fleet
composition, we would expect the
releases for both incidents to fall
beneath the WCD threshold. In addition,
the WCD is sufficiently high so that no
incident has exceeded it to the degree
22 Please see the benefits section, Section 3, in the
RIA.
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that it seems unlikely that preparation
for the WCD amount would have
resulted in an inadequate response to
the incident that occurred.
As previously discussed, PHMSA
accounted for the expected mitigation of
damages achieved through the HM–251
final rule to determine the proposed
300,000 gallon WCD planning volume.
However, for the proposed WCD
planning volume based on the
percentage of the total petroleum oil
lading within a train consist, PHMSA
did not incorporate the expected
mitigation of damages of the HM–251
rulemaking because we believe that this
percentage does not account for
uncertainty in large train configurations.
Large train configurations (e.g., 135-tank
car trains) have an appropriate WCD
planning volume, commensurate with
their presentation of increased risk.
As an illustration of the WCD
definition and its application to WCD
planning volumes for use in COSRPs,
consider a 50-tank car train and a 100tank car train carrying petroleum oil.
For the 50-tank car train, the WCD
planning volume would be 300,000
gallons, since 300,000 gallons is greater
than 15 percent of the total petroleum
oil lading carried by that train (i.e.,
225,000 gallons, assuming each tank car
carries 30,000 gallons). For the 100-tank
car train, the WCD planning volume
would be 450,000 gallons, since 15
percent of the petroleum oil carried by
that train—or 450,000 gallons—is
greater than 300,000 gallons.
Furthermore, PHMSA acknowledges
both the existence of even larger trains
(e.g., 120-tank car trains), as well as the
uncertainty surrounding the number of
tank cars loaded with petroleum oil that
might be transported by rail in the
future.
PHMSA maintains that distinguishing
larger train configurations from
relatively smaller ones is appropriate
given differences in risk, and we further
maintain that this calculation is to be
used to determine the ‘‘planning
volume’’ for WCDs within a given
response zone. It is not re-calculated for
each train in operation within a given
response zone; rather, it is based on the
largest train configuration that can
reasonably be expected to transport
petroleum oil within a response zone.
Furthermore, nothing in the rulemaking
prohibits a railroad from using a higher
planning volume in their plan.
Given that the discussion above
applies to the WCD for the expanded
applicability to unit trains of petroleum
oil, we are clarifying that the calculation
for 300,000 gallons or 15 percent of the
lading across the train consist applies to
unit trains. As stated in the NPRM,
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PHMSA did not propose to change the
applicability requirements for tank cars
exceeding 42,000 gallons. When
separating the definition of ‘‘maximum
most probable discharge’’ and ‘‘worstcase discharge,’’ the planning volume
for tank cars exceeding 42,000 gallons
was inadvertently omitted. Therefore,
we are amending the definition of
‘‘worst-case discharge’’ to reinstate that
the planning volume for tank cars
exceeding 42,000 gallons ‘‘equals the
capacity of the cargo container.’’
Summary of Comments Regarding the
Response Zone for COSRP (§§ 130.105
and 130.5)
In the NPRM, PHMSA proposed to
define the term response zone as ‘‘one
or more route segments identified by the
railroad utilizing the response resources
which are available to respond within
12 hours after the discovery of a WCD
or to mitigate the substantial threat of
such a discharge for a comprehensive
plan meeting requirements of subpart
C.’’ PHMSA additionally asked whether
the 12-hour response time was sufficient
for all areas subject to the plan, or
whether a shorter response time (e.g., 6
hours) would be appropriate for certain
areas (e.g., High Volume Areas) which
pose an increased risk for higher
consequences from a spill. PHMSA
further invited comments on the criteria
and support-levels for ‘‘high volume
areas.’’ Commenters to the NPRM
provided recommendations for
determination of the response zone and
response times.
Commenters recommended several
different revisions to the definition of
response zone. Environmental groups
and State agencies recommended redefining response zones as pre-defined
‘‘geographic response areas.’’ This
suggestion promotes resource sharing
and more closely aligns with the EPA
response structure. For example, the
Minnesota Pollution Control Agency
gave the example of non-profits
‘‘WAKOTA CAER and Red Wing
CAER,’’ which have voluntarily formed
a response cooperative. The Minnesota
Pollution Control Agency further
suggested utilizing response zones with
pre-defined areas because, ‘‘all
railroads/industries operating within
that geographical area could be
encouraged or required to establish
caches of equipment, contractors and
other response resources jointly. Those
resources would then be available to
any industry with similar preparedness/
response requirements.’’
Other commenters supported resource
sharing without linking the requirement
to specific geographic response zone
definition. ASLRRA requested that short
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lines (Class II or III) operating as a
tenant to a Class I railroad be permitted
to enter into a voluntary agreement to
use the plan and resources belonging to
the Class I railroad for the area of track
(e.g., response zone) which falls under
the tenant/host relationship. NTSB
encourages, ‘‘small entities to enter into
an agreement similar to the one
managed by the Marine Preservation
Association, a not-for-profit
membership corporation that helps its
members address problems caused by
spills of oil and petroleum in
transportation and allows its members
to enter into a OSRO [oil spill removal
organization] service agreements.’’
AAR commented, ‘‘PHMSA should
allow each railroad (Class 1, 2 or 3) to
define the number and location of
‘Response Zones’ that meet the specific
railroad’s existing incident management
team (‘‘IMT’’) location, organizational
structure, and contractor network.
Railroads should not be required to use
a prescriptive set of planning standards
that specify ‘Response Zones.’ ’’ AAR
provided sample regulatory text:
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Railroad plan holders will develop
‘‘Response Zones’’ with response resources
located within 12 hours of each point along
the HHFT route where ‘‘Response Activities’’
would occur. Additionally, Response Zone
locations, boundaries and numbers will be
based on the existing location and
organizational structure of each railroad’s
incident management team (IMT) including
Qualified Individuals (QIs), response
resources, and railroad-contracted Oil Spill
Removal Organization (OSROs) available to
arrive onsite to mitigate a WCD or substantial
threat of one.
Overall, most commenters felt that 12
hours was too long and recommended a
shorter response timeframe ranging from
immediately to 6 hours for all areas.
Commenters expressed concerns about
public safety and environmental damage
that could be caused by spills, fires, or
explosions during the first 12 hours and
provided detailed descriptions of harm
that could occur during that timeframe.
Commenters claimed faster response
times provide better protection, but they
provided no quantitative data to support
the effectiveness of faster response
resources.
Commenters provided examples of
State requirements and proposed
legislation specifying response times for
various activities related to responding
to rail incidents. The State of Minnesota
requires railroads to: (1) Within one
hour, provide qualified personnel onscene to assess the discharge; (2) within
the first 8 hours, be capable of
deploying resources to contain and
recover 10 percent of the volume of the
worst-case scenario and to protect
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sensitive areas and potable water
intakes; and (3) within the first 60
hours, deploy full response resources
for containing and recovering the worstcase scenario. The coalition comments
from the Riverkeeper, Center of
Biological Diversity, et al. provided the
response times in the Emergency
Response Guidebook and the
requirements adopted in the HM–251
final rule for thermal protection capable
of withstanding a pool fire for 100
minutes.
Commenters provided support for
including different areas with a faster
response timeframe. NTSB suggested
that no areas should have a longer
response time than 12 hours, given the
capability for the 12-hour response time
was already demonstrated. NTSB also
suggested adopting a 6-hour response
time for ‘‘High Volume Areas’’
(consistent with the definition in § 194.5
of the pipeline regulations, excepting
the pipeline diameter). NTSB further
recommended that PHMSA adopt a
High Volume Area definition ‘‘that
recognizes credible single HHFT
exposure risks based on the proximity of
the track to the river and natural
drainage paths,’’ citing the pipeline spill
in Marshall Michigan 23 and the LacMe´gantic, Quebec derailment as having
caused more than one billion dollars in
damage and supporting a need for faster
response times.
Commenters defined a wide range of
features, such as population, schools,
economic activity, cultural and
ecological significance, geologic factors,
speed of tides, and location of nuclear
reactors or other higher risk activities, as
necessitating a faster response time.
Commenters most frequently described
drinking water intakes,
environmentally-sensitive areas, and
specific local waterways, such as the
Hudson River, as necessitating faster
response times and more detailed
identification or mapping in a plan.
Commenters also included suggestions
such as scaling response times based on
the amount of time oil would take to
reach water or the volume of applicable
trains in an area as criteria for faster
response times. The State of Idaho
Department of Environmental Quality
included concerns that inclement
weather and fast moving water streams
would delay response and lead to larger
area of impact. Commenters also
focused on risk factors, and suggested
weighting factors from the railroad
routing analysis required by § 172.820 of
the HMR. Commenters also provided
the ‘‘High Consequence Areas (HCA)’’
23 https://www.ntsb.gov/investigations/
AccidentReports/Pages/PAR1201.aspx.
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from the part 195 of the OPS pipeline
regulations as an example of risk-based
criteria. These areas include population
density in the definition and are related
requirements for an operator’s pipeline
integrity management program. It
should be noted this is a separate
program from the OPS requirements for
OSRPs in 49 CFR part 194.
AAR requested clarification that
response times are a ‘‘planning
standard, not a compliance standard.
For example, if a response vehicle has
a flat tire on the way to a response, the
company should not be cited as being
out of compliance.’’ AAR also requested
that PHMSA ‘‘clarify that the 12-hour
response timeframe applies only to track
where HHFT trains traverse, and not to
the entire rail network.’’ AAR provided
examples of specific changes to the
regulatory text to clarify this
responsibility.
Response to Comments Regarding
Response Zone for COSRP (§§ 130.105
and 130.5)
We are adopting the proposed
requirements for response zones with
clarification to the regulatory text in
response to commenters. We disagree
with limiting response zones to predefined areas, whether geographic
response areas or similar criteria.
Providing pre-defined response areas
exceeds the scope of this rulemaking, as
commenters did not have the
opportunity to comment on such
boundaries. Furthermore, the
requirements for consistency with the
NCP, ACP, along with the notification
requirements, ensure that railroads have
the necessary consistency with local
and regional response structures.
We agree with AAR that the intent of
the requirement for response zones is to
allow railroads the flexibility to develop
response zones and stage resources,
provided that the planning standards for
resources are met. The draft RIA
provided an estimate of the number of
response zones for each railroad for the
purpose of estimating costs. We did not
intend for the assumptions and
estimation in the draft RIA to prescribe
a specific number of response zones.
Furthermore, we did not intend for
railroads to provide information and
resources about route segments where
applicable quantities of oil are not
transported. Therefore, we are clarifying
both the definition of response zone and
the general requirements to
communicate that railroads may
determine the boundaries of response
zones, provided that the plan
demonstrates that resources within the
response zone meet the planning
criteria. We are also clarifying that plans
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with only one response zone do not
need to duplicate information between
the core plan and response zone.
In general, we agree that railroads and
industries should be encouraged to
share response resources; however, we
disagree that adding pre-defined
response zone boundaries for response
zones is necessary to enable resource
sharing. Nothing in this rulemaking
prohibits the formation of cooperatives
or other such resource sharing
agreements, provided that each railroad
required to have a plan demonstrates
the availability of appropriate resources
by contract or other means.
Additionally, railroads communicate
the response zone location to emergency
response planning officials through the
information sharing notification
requirements adopted in § 174.312,
providing adequate information to
enable resource sharing.
The purpose of the response time
requirement is to ensure railroads are
demonstrating that they can identify,
and ensure by contract or other means
approved by the President, the
availability of private personnel and
equipment necessary to remove, to the
maximum extent practicable, a worstcase discharge (including a discharge
resulting from fire or explosion), and to
mitigate or prevent a substantial threat
of such a discharge.24 USCG has
developed planning guidance and
standard calculations for response times
in the 2016 ‘‘Guidelines for the U.S.
Coast Guard Oil Spill Removal
Organization Classification Program.’’ 25
Adopting a 12 hour response time and
the USCG’s assumption that response
resources can travel according to a land
speed of 35 miles per hour ensures that
the resources listed in the plan are
available for a response and that
response personnel will know when the
resources can reasonably be expected to
be available on-site. However, we
disagree with AAR’s recommendation
that it is necessary to include additional
regulatory language stating 12 hours is
not a performance guarantee.
In this final rule, we are adopting the
requirement for a single response time
of 12 hours in all areas. This response
time is consistent with the requirement
for ‘‘all other areas’’ used by the OPS for
pipelines. In the NPRM, PHMSA
requested public comment on whether
the 12-hour response time would be
sufficient for all areas subject to the
plan, or whether a shorter response time
24 33
U.S.C. 1321(j)(5)(D)(iii).
25 https://homeport.uscg.mil/Lists/Content/
Attachments/1286/Guidelines
%20for%20the%20USCG
%20OSRO%20Classification%20Program.pdf.
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(e.g., 6-hours) would be appropriate for
certain areas (e.g. High Volume Areas)
that pose an increased risk for higher
consequences from a spill; on criteria to
define such ‘‘High Volume Areas’’
where a shorter response time should be
required, as well as whether the
definition for ‘‘High Volume Area’’ in 49
CFR 194.5 (excluding pipeline diameter)
captures this increased risk, or if there
is other criteria that can be used to
reasonably and consistently identify
such areas for rail; on whether requiring
response resources to be capable of
arriving within 6 hours would lead to
improvements in response, and for
specific evidence of these
improvements; and on whether the final
rule should have a longer response time
than 12 hours for spills for all other
areas subject to the plan requirements in
order to offset costs from requiring
shorter response times for High Volume
Areas. Commenters did not provide
adequate support to demonstrate that
requiring the staging of resources for
response times faster than 12 hours
would bring about measurably
improved protection or benefits, and
that there were clear definitions for
adequately defining high volume areas.
Without sufficient data, PHMSA is
unable to support a clear definition of
a high volume area. Therefore, in the
interest of safety and economic
efficiency, PHMSA assumes the entire
route threatens navigable water and that
further identification for every point
along the route would be impracticable.
Rather, the use of 12 hours as a planning
framework provides flexibility for
OSROs to maintain larger inventory to
be included within the response area.
There is nothing prohibiting railroads
from staging resources closer to specific
route segments, and disagree that a
voluntary designation will increase
coverage for sensitive areas. We also
note that providing response resources
to remove, maintain, and mitigate WCD
does not replace other emergency
response procedures and resources for
responding to a release of hazardous
materials by rail.
Summary of Comments Regarding
COSRP Consistency With NCP and ACP
(§§ 130.110 and 130.115)
NTSB commented generally in
support of compliance with the National
Contingency Plan and Area Contingency
Plan provisions proposed in § 130.103,
stating they would ‘‘serve to ensure a
carrier’s ability to respond to worst-case
oil and petroleum discharges called for
by Safety Recommendation R–14–005.’’
Coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. questioned whether the
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proposed ‘‘minimum consistency’’ with
the NCP and ACPs meets the
requirements of OPA 90. Conversely,
AAR stated that PHMSA ‘‘must clarify
which elements are necessary for
minimum consistency with the National
Contingency Plan.’’
IAFC supported the requirements for
minimum consistency with NCP, but
recommended additional clarification to
ensure that the railroads understand
that both Federal and state entities have
an active role in the unified command,
citing the NCP requirements in 40 CFR
300.105(d). The NCP requirements in 40
CFR 300.105(d) provide the
‘‘organizational concepts of the national
response system’’ and describe a
framework which, ‘‘brings together the
functions of the Federal Government,
the state government, and the
responsible party to achieve an effective
and efficient response.’’ IAFC suggested
the proposed language for the
requirement in § 130.103(a)(1)(i),
namely to ‘‘[d]emonstrate a railroad’s
clear understanding of the function of
the federal response structure’’ be
amended to include the ‘‘applicable
state and federal response structure.’’
Overall, commenters supported
consistency with the ACP, but had
several suggestions related to the
inclusion of Environmentally Sensitive
Areas (ESAs). Environmental groups
and private citizens supported special
identification and protections for ESAs.
They also described many specific
geographic areas, or suggested criteria
for determining which environmentally
sensitive areas require additional
protection. They often cited cultural,
economic, and ecological significance in
their descriptions. The coalition
comments of Scenic Hudson and
Riverkeeper highlighted the importance
of including additional strategies to
protect and deflect oil from ESAs. They
further recommended including a
requirement to update and revise the
plan contents.
AAR noted that the burden of
railroads determining ESAs would be
too great and recommended limiting the
requirement to:
[R]eadily available U.S. Fish and Wildlife
and Sensitive Environment Regional
Contingency Plans (RCPs), Area Contingency
Plans (ACPs), Sub-Area Contingency Plans
(SACPs) or Geographic Response Plans
(GRPs) Annex(s) or databases to identify
environmentally sensitive or significant areas
as defined in § 130.5 of this part, along the
route, which could be adversely affected by
a worst-case discharge and reference
available SACPs or GRPs deflection and
protection strategies to protect these areas.
A private individual also requested
that PHMSA ban the use of dispersants,
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instead of limiting their use to scenarios
where they are permitted and approved
by the ACP and Federal OSC.
The use of dispersants is generally not
authorized by the NCP or ACP for
inland oil discharges.
Response to Comments Regarding
COSRP Consistence With NCP and ACP
(§§ 130.110 and 130.115)
PHMSA maintains that the
requirements for ‘‘minimum
consistency’’ fulfill the requirements of
the CWA. The requirements for the NCP
and ACP in 40 CFR part 300 include
many sections that may not be
applicable to the rail context. Clarifying
which requirements must be followed
for minimum consistency ensures the
most important elements are included.
Doing so also responds to AAR’s
comments in response to both the
ANPRM and NPRM requesting
additional clarity and provides greater
consistency with the OPS requirements
for pipelines. We further agree with
IAFC that the intent of requiring a clear
understanding of the Federal response
structure is to ensure that railroads can
operate within a unified command,
which may include State entities.
Therefore, we are simplifying the
requirement to state that OSRPs must,
‘‘[d]emonstrate a railroad’s clear
understanding of the Incident Command
System and Unified Command and the
roles and responsibilities of the Federal
On-Scene Coordinator.’’ Overall, we are
adopting the requirements as proposed,
with clarifications, as discussed in this
section.
We agree with AAR that the intent of
including ESAs was to ensure
consistency with the approach
identified in ACPs. We did not intend
to include the additional burden of
requiring a new category for analysis.
Therefore, we are adopting AAR’s
suggestion that we clarify that the
inclusion of required ESAs be limited to
those which have been identified in the
existing contingency plans. We are
further simplifying the definition of
ESA to mean a ‘‘sensitive area’’
identified in the applicable Area
Contingency Plan, or if no applicable,
complete ACP exists, an area of
environmental importance which is in
or adjacent to navigable waters. We are
not adopting the recommendation to
expand the definition of ESAs to
include additional areas and to include
additional deflection strategies at this
time. Doing so would require railroads
to perform extensive analysis and
develop new expertise, which would
further delay the development and
implementation of plans.
We further disagree that DOT should
ban the use of dispersants, but rather the
appropriate use should be determined
per the NCP, ACP, and Federal OSC.
Summary of Comments Regarding
Notification Procedures and Contacts for
COSRPs (§ 130.125)
Overall, commenters supported the
inclusion of notification requirements.
The NTSB commented in support of the
notification procedures proposed in
§ 130.105, stating they would ensure a
carrier’s ability to respond to worst-case
oil and petroleum discharges called for
by Safety Recommendation R–14–005.
Commenters also recommended
providing time limits on the notification
procedures. Riverkeeper, Center for
Biological Diversity, et al. stated that
because the proposed requirements do
not explicitly require immediate
communication ‘‘between OSROs or the
affected industry and the Federal
official in charge of spill response,’’ the
proposed requirements do not meet the
requirements of OPA 90.
Several commenters also
recommended that the notification
procedures either include additional
state or local resources (e.g., SERCs,
TERCs, water utilities, etc.) or that the
communication between the railroad
and local resources be formalized with
additional requirements. The State of
Minnesota provided the State
requirement for annual communication
with emergency managers, fire
departments, and employee unions as
an example of more formal
communication.
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Response to Comments Regarding
Notification Procedures and Contacts for
COSRPs (§ 130.125)
The proposed rule establishes a new
section with requirements for the
notification procedures and contact
information that a railroad must include
in a COSRP. The proposed rule sought
to improve consistency with existing
requirements for pipelines in § 194.107
and appendix A to part 194. Both part
194 and the combined comment of AAR
and ASLRRA in response to the ANPRM
include a requirement for immediate
communication procedures. Therefore,
in the final rule we are adding a
requirement to include ‘‘immediate
notification procedures’’ to the
proposed language in § 130.107(a)(4)
stating, ‘‘the circumstances and
necessary time frames under which the
notifications must be made.’’
We disagree that listing additional
entities or further formalizing
communication requirements is
necessary at this time. The government
structure and the entities that require
contacting will vary between States or
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localities, and based upon the
characteristics of the response zone.
Furthermore, the plan requires
consistency with the NCP and ACP,
which requires the railroads to
understand the response structure along
the route. Additionally, the information
sharing requirements adopted in part
174 provide contact between the
railroad and State and tribal agencies.
Summary of Comments Regarding
Response and Mitigation Activities for
COSRPs (§ 130.130)
Overall, commenters agreed that
response and mitigation activities
should be included in the plan. NTSB
commented generally in support of the
response and mitigation activities
proposed in § 130.106, stating they
would ensure a carrier’s ability to
respond to worst-case oil and petroleum
discharges called for by Safety
Recommendation R–14–005; however,
commenters provided a range of
suggestions on the response and
mitigation activities included in the
plan.
Some commenters provided general
support for the response and mitigation
activities, but also recommended
additional specificity or clarifications.
IAFC recommended the proposed
language requiring resources able to
‘‘remove oil’’ be edited to ‘‘control and
remove oil’’ to clarify that the plan also
includes common and necessary
response resources which may not
directly remove oil. The National
Association of SARA Title Three
Program Officials (NASTTPO)
supported the proposed requirements
for railroads to include the location and
inventory of equipment that can be
mobilized in a response, but
recommended including the number
and training level of personnel that will
be mobilized and providing a
description of the response time,
assuming favorable weather.
Many commenters offered multiple
suggestions to require railroads to
provide response resources which
exceeded the scope of the proposed
requirements. For example, some
commenters suggested requiring
railroads to stage additional resources
that were not proposed or to require
specific equipment, such as helicopters
with firefighting capabilities or
‘‘SAFETY Rail Cars’’ which contain
firefighting and containment equipment.
One private individual suggested all
equipment or supplies should be
heavily duplicated. Other commenters
recommended adding requirements for
railroads to provide equipment to local
responders. For example, the City of
Berkeley commented that response
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resources should be available to first
responders, in addition to the clean-up
resources and personnel.
Commenters recommended requiring
more detailed procedures. For example,
commenters recommended including
supplies and procedures to account for
more specific WCD scenarios, such as
specific adverse weather conditions,
bridge collapses, and the effect of tides.
Citizens Acting for Rail Safety-Twin
Cities requested ‘‘public education’’ that
includes evacuation procedures. Scenic
Hudson and Riverkeeper suggested that,
at a minimum, COSRPs should ensure,
‘‘the maximum cleanup practicable,
given both the weather, the physical
conditions and other factors at the spill
site.’’ Commenters also recommended
specifying requirements for differing
procedures to account for different oil
types, such as heavy- or light-crude oil,
citing studies on differing clean-up
procedures.
The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. expressed concern that
‘‘certifying’’ that the identified resources
are available by ‘‘contract or other
means’’ is not sufficient to ensure that
the preparations have been made. They
requested that PHMSA reintroduce the
requirement that OSRPs show—by
contract—that preparations have been
made to respond to the maximum extent
practicable. They further specified that
the proposed rulemaking should
account for a range of damages and
resources required to rehabilitate
communities and the environment after
a WCD. The comments included a list
of examples of potential damages
ranging from ‘‘loss of life’’ to ‘‘fear of a
future catastrophe,’’ but do not specify
figures or how to address these damages
beyond ‘‘inclusion’’ in the WCD.
Response to Comments Regarding
Response and Mitigation Activities for
COSRPs (§ 130.130)
Overall, we have adopted the
proposed requirements, which continue
to align with the pipelines
requirements. Many of the additional
response resources recommended by
commenters would increase the burden
of the rulemaking beyond what was
proposed in the NPRM. Furthermore,
the comments recommending additional
resources and activities lacked data
about the corresponding costs and
benefits of these recommendations. We
did not propose specific mitigation
activities. We are clarifying in the final
rule that the equipment and resources
must meet the planning standards
outlined in appendix C of 33 CFR part
154. This is consistent with the
approval of OSRPs for pipelines in 49
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CFR part 194 and the assumptions in
the NPRM; it also maintains a level of
OSRO response resources equivalent to
that specified by the USCG in 33 CFR
154.1035 and 155.1035. We are
maintaining the exception from listing
equipment for OSROs classified in the
aforementioned sections. We expect
railroads, in cooperation with OSROs, to
determine and describe the appropriate
mitigation and response activities they
use relative to the response zone and
available resources. The guidance in
appendix C of 33 CFR part 154 provides
the necessary flexibility to allow
railroads and OSROs to tailor activities
and equipment to the specific
geographic conditions in the response
zone.
We agree with IAFC’s proposed edit
to include the word ‘‘control.’’ It
clarifies that the range of activities may
include those beyond the direct removal
of oil.
We disagree with coalition comments
from Riverkeeper, Center for Biological
Diversity, et al. that the language to
‘‘certify’’ response resources is
inadequate. The plan requirements
make it clear that the resources must be
available by ‘‘contract or other
means.’’ 26 Plans must meet all
requirements of subpart C of part 130 for
approval and, therefore, must
demonstrate a ‘‘contract or other means’’
of availability.
Summary of Comments Regarding
Training Procedures for COSRPs
(§ 130.135)
The NPRM proposed requirements for
training of railroad employees to ensure
that they are capable of carrying out a
role in the plan and are familiar with
the applicable requirements. The
proposed training requirements further
specify the minimum elements to be
included in training for all reporting
personnel and railroad employees
subject to the plan. The NPRM also
proposed requirements for the railroad
to document and certify completion of
this training. The NPRM asked
commenters whether ICS incident
commander-level training should be
required for the Qualified Individual.
PHMSA received several comments
about COSRP training procedures. Many
commenters highlighted the importance
of training. NTSB commented generally
in support of the training procedures
proposed in § 130.107, stating they
would ensure a carrier’s ability to
respond to worst-case oil and petroleum
discharges, as called for by Safety
26 ‘‘Contract or other means’’ is defined in 49 CFR
130.5. This rulemaking did not change the
definition.
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Recommendation R–14–005. Many
commenters provided suggestions for
additional training requirements that
exceeded the scope of the proposed
rulemaking, such as requiring railroads
or shippers to either train or provide
additional funding for the training of
firefighters and local responders. NTSB
also recommended requiring the use of
training referenced by OSHA in 29 CFR
1910.120(p) and (q) and by the National
Fire Protection Association (NFPA) in
Standard 472.12. The State of Idaho
recommended increasing training
frequency to every three years, instead
of every five years.
Some industry commenters suggested
additional clarification was needed for
training requirements. API suggested
that the training standards lacked
specificity and needed to describe the
required training for the Qualified
Individual and clarify differences ‘‘for
personnel on the train versus other
railroad personnel, or whether or not
plans and employee training records
should be kept on the trains or with the
conductor.’’ They recommended
aligning these practices with commonly
accepted practices for other modes and
facilities to provide consistency and
confidence in railroad capabilities.
AAR commented that the proposed
training is too broad and does not
sufficiently protect railroads from
liability relating to volunteers working
under the direction of state and other
stakeholder groups. They provided
suggested edits to the proposed
regulatory text in § 130.107(c)(4)(d),
including clarifying that ‘‘[p]lan holders
shall not be responsible for contracting
with or training volunteers during
responses working under the direction
of state or stakeholder groups’’ and
distinguishing that additional training
standards may apply to response
personnel ‘‘under contract to the plan
holder.’’
Commenters also provided
suggestions on the recordkeeping and
re-training requirements. The coalition
comments from Riverkeeper, Center for
Biological Diversity, et al. stated it is not
sufficient to certify that employees
received training, as 33 U.S.C.
1321(j)(5)(D)(iv) states that ‘‘a response
plan must describe the training to be
carried out under the plan to ensure the
safety of the facility and to mitigate or
prevent the discharge.’’
Many commenters also responded to
PHMSA’s inquiry in the NPRM about
whether the proposed training
requirements were sufficient, or
whether the Qualified Individual should
be trained to the ICS Incident
Commander-level. Commenters,
including State governments and
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emergency responder organizations
provided support for requiring either
the Qualified Individual or another
individual to receive Incident
Commander-level training. The
Washington State Department of
Ecology explained that the Qualified
Individual and the Incident Commander
do not perform the same functions,
stating that railroads must identify an
individual who will be trained and
qualified to act as an Incident
Commander, whether it is the Qualified
Individual or some other individual.
The IAFC further recommended
requiring that Incident Commander
training be consistent with the intent of
‘‘Homeland Security Presidential
Directive-5—Management of Domestic
Incidents.’’ Other commenters
recommended further identifying and
outlining the roles and responsibilities
of an Incident Commander in the
COSRP until the appropriate local,
State, or Federal authorities take control
of the incident. API supported a
requirement to include Incident
Commander training, as consistent with
use of NIMS and ICS, but stated PHMSA
and FRA should be prepared to provide
guidance and oversight to the regulated
community as they establish processes
that support personnel and
organizational changes.
Response to Training Procedures for
COSRP Comments (§ 130.135)
We disagree with adding
requirements for railroads to train
emergency responders in State and local
governments, or otherwise provide
training which exceeds the scope of the
rulemaking. Such comments did not
account for current programs available
to improve training of emergency
responders. For example, PHMSA’s
Hazardous Materials Emergency
Preparedness (HMEP) Grant Program
awards more than $20 million annually
in grant funding to States, Territories,
and Tribes to carry out planning and
training activities to ensure State and
local emergency responders are properly
prepared and trained to respond to
hazardous material transportation
incidents.27
We agree with the industry, State and
other governments, and emergency
responder organizations that a best
practice is for the individual acting as
the Incident Commander to have
Incident Commander-level training to
ensure the ability to operate in a unified
command. We further agree that the
railroads should have the flexibility to
designate the Incident Commander, as
27 https://www.phmsa.dot.gov/grants/hazmat/
hazardous-materials-grants-program.
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someone other than the Qualified
Individual to receive the training and
serve in this role; however, we note that
mandating that the railroad name the
incident commander or requiring
Incident Commander-level training may
limit the railroad’s ability to quickly
establish an incident command after a
release. Employees in proximity to an
event may need to temporarily serve as
the Incident Commander until
additional employees arrive onsite to
assume command. Therefore, we are
encouraging, but not mandating, use of
ICS–300, Intermediate ICS for
Expanding Incidents, or equivalent, and
NFPA 472 Chapter 8 for Incident
Commander-level training as a best
practice.28 Additional guidance can be
found in NFPA High Hazard Flammable
Trains (HHFT) On-Scene Incident
Commander Field Guide.29
We further disagree that the proposed
training requirements lack clarity or
create undue burdens to train
volunteers. The training requirements
allow railroads flexibility to provide
training appropriate to an employee’s
role in carrying out the duties specified
in the response plan. The regulatory text
provides a note and illustrative
examples as a reminder that other
training may be applicable (see
§ 130.135(d)). However, this crossreference does not impose new training
burdens on employees or volunteers.
Therefore, we are adopting the training
requirements as proposed.
Summary of Comments Regarding
Recordkeeping, Plan Updates,
Submission, and Approval for COSRPs
(§§ 130.145 and 130.150)
The NPRM inquired whether the
proposed mandatory compliance date of
60 days after the date of publication of
a final rule in the Federal Register was
feasible. PHMSA received two
comments in response to this inquiry.
Citizens Acting for Rail Safety-Twin
Cities supported the 60-day compliance
date. AAR requested 180 days, stating
the time was necessary for the
coordination, contracting, and planning
required for covered routes. They
further stated that additional time
would be needed if PHMSA did not
adopt their recommendation for
clarifying use of previously identified
ESAs. API also suggested additional
time would be necessary for railroads to
develop COSRPs.
28 https://training.fema.gov/emicourses/
crsdetail.aspx?cid=E300&ctype=R.
29 http://www.nfpa.org/news-and-research/firestatistics-and-reports/research-reports/foremergency-responders/fireground-operations/highhazard-flammable-trains-on-scene-incidentcommander-field-guide.
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We also received other comments on
various aspects of the recordkeeping
and approval requirements. The
coalition comments from Riverkeeper,
Center for Biological Diversity, et al.
recommended including ‘‘CWA and
OPA’’ in the statement, ‘‘FRA will
approve the response plan if FRA
determines that the response plan meets
all requirements of this part to ensure
plans meet both the regulations and the
statute.’’
Many commenters, such as the
NASTTPO, agreed that FRA was the
appropriate agency to review and
approve plans. Several commenters
questioned whether FRA had the
resources and knowledge to approve
and enforce the oil spill response
planning regulations. NTSB noted that
the requirements for FRA approval
would work toward implementing the
intent of Safety Recommendation R–14–
2. NSTB further stated:
It is vital that the FRA develop a program
and provide sufficient resources for thorough
on-site audits. This will help to avoid the
regulated industry essentially policing itself
and spill response plans being approved
without sufficient verification. Therefore, we
believe that while the proposed requirements
in the NPRM for comprehensive OSRPs are
complete and admirable, it is not enough to
approve plans without trained staff to verify
that sufficient resources and tactics are in
place to ensure timely and effective
responses to worst-case oil discharges.
API encouraged DOT to ensure that
FRA receives the personnel, resources,
and expertise necessary to execute its
new role effectively and efficiently. API
requested additional details related to
FRA’s COSRP administration, approval,
and adjudication processes.
The Washington State Department of
Ecology supported FRA approval with
the proposed consultation by EPA and
USCG, as well as expanding
consultation to include states. Several
commenters recommended requiring
approval from additional entities.
Private individuals suggested public
hearings on plans prior to approval.
Riverkeeper, Center for Biological
Diversity, Sierra Club, etc. requested
inclusion of ‘‘regulatory impact survey’’
of FRA’s ability to enforce these
requirements.
The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. further recommended
adding a two-year limit to the time a
railroad can operate without a plan,
after submitting it for approval to better
align with the OPA 90 law. The State of
Idaho Department of Environmental
Quality recommended requiring FRA to
approve or deny plans within 180 days.
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Comments from State governments
and others suggested stricter timelines
for resubmission of plans. The State of
Minnesota suggested plans should be
resubmitted every three years, instead of
the five years proposed in the
rulemaking. The State of Idaho
Department of Environmental Quality
recommended that the railroad should
only have 30 days to revise plans that
have been resubmitted after an initial
denial. Citizens Acting for Rail SafetyTwin Cities suggested that railroad
plans should be updated and tested at
least annually and within 30 days of
railroad ownership change.
Other commenters requested
additional clarification or criteria for
conditions requiring resubmission of
plans. Scenic Hudson and Riverkeeper
stated that plans should be revised to
reflect periodic updates to the ACP,
especially when changes to the ESAs are
made or the associated protection and/
or deflection strategies are updated.
AAR supported the inclusion of
specific criteria that determine when
railroads must update plans, but
suggested the proposed language was
overly broad and required clarification.
Specifically, AAR suggested clarifying
that the requirement to modify plans to
include new routes should only apply to
HHFT routes. AAR also suggested that
ACP or NCP changes must be presented
to the railroad before being required to
be considered for plan changes. AAR
also suggested removing the
requirement, ‘‘Any other information
relating to circumstances that may affect
full implementation of the plan.’’
Response to Comments Regarding
Recordkeeping, Plan Updates,
Submission, and Approval for COSRPs
(§§ 130.145 and 130.150)
We agree with AAR’s comments that
180 days (6 months) is appropriate for
plan development, given the inclusion
of geographic information. Railroads
have already developed basic plans that
include some components of the
comprehensive oil spill response plans.
Railroads are required to perform a
routing analysis in 49 CFR 172.820,
which indicates the location of
applicable route segments. Furthermore,
many railroads have participated in
voluntary programs to increase spill
preparedness. However, other plan
elements may require reformatting or
additional data gathering. Therefore, we
believe 180 days is sufficient for the
additional planning and coordination
necessary to submit the COSRPs.
The Secretary of Transportation has to
approve OSRPs for rail tank cars. While
this authority was originally delegated
by the Secretary to FRA, after
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considering comments questioning
FRA’s resources to approve plans, this
authority is transferred to PHMSA, so
that a sole DOT administration will
have the authority to approve OSRPs. In
addition to reviewing and approving
OSRPs, PHMSA also has authority to
pursure administrative penalties for
violation of part 130, as it is issued
pursuant to its delegated authority of 33
U.S.C. 1321(j).30 PHMSA’s Oil Spill
Preparedness and Emergency Support
Division is an established program with
experience approving OSRPs for
pipelines. However, as with other
PHMSA programs and procedures,
PHMSA will continue to work with FRA
for guidance on rail specific information
and procedures, including shared
review and enforcement. We are also
adopting the option for PHMSA to
consult with the EPA or the USCG, as
needed. As 33 U.S.C. 1321(j)(5)(E)
requires that a plan that meets the
minimum requirements be approved,
we maintain that mandating multiagency, public participation, or
additional approval activities would fail
to provide enough value in an explicit
approval process to justify the increased
burden and potential delay.
We disagree with Riverkeeper, Center
for Biological Diversity, et al. that it is
necessary to include ‘‘the OPA and
CWA’’ in the regulatory text specifying
plan approval. The regulatory authority
for part 130 references the appropriate
citations for CWA, and the requirements
have been promulgated in accordance
with the statutory requirements. Further
specifying this law in the regulatory text
as suggested by these comments may
cause confusion.
We agree with Riverkeeper, Center for
Biological Diversity, et al. that a twoyear limit for the time a railroad can
operate without a plan after submitting
it for approval should be added to better
align with the OPA 90 law (33 U.S.C.
1321(j)(5)(G)). We have added language
to meet the requirements of OPA 90.
Although, the NPRM did not include
language specifying two years, the
additional burden to approve plans in a
timely manner is placed on PHMSA;
there is no additional burden on
railroads.
We disagree with States
recommending a stricter timeline for
resubmission of plans, as this goes
beyond the proposed rulemaking and
creates an additional burden for
30 33 U.S.C. 1321(b)(6) authorizes the Secretary of
Transportation to assess ‘‘Class I’’ administrative
penalies as specified and as updated in 40 CFR
19.4. The Attorney General has authority, pursuant
to 33 U.S.C. 1321(b)(7), to pursue a civil penalty
action in the district court in which is the
defendant is located, resides, or is doing business.
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railroads not proposed. Furthermore,
the requirement for resubmission every
5 years aligns with OPS requirements
for pipelines and requires resubmission
of plans within 90 days of significant
changes that affect the implementation
of the plan. We do not expect that more
frequent submission of non-significant
changes (i.e., changes that will not affect
the implementation of the plan) will
improve response.
We agree with commenters on many
of the clarifications requested regarding
the approval and submission
requirements. We agree with Scenic
Hudson and Riverkeeper comments that
changes to the identification ESAs or
deflection strategies may require
resubmission of the plan. In the
proposed rule, we included language
requiring updates for ‘‘[a] change in the
NCP or an ACP that has significant
[effect] on the equipment appropriate
for response activities.’’ As ESAs are a
component of the ACP, they would fall
under this requirement. We have added
language clarifying this relationship and
explaining that a change to applicable
ESAs is an example of a significant
change to the ACP, requiring an update.
We have also added ‘‘the type of oil
transported, if the type affects the
required response resources, such as a
change from crude oil to gasoline’’ as an
example of a change requiring an
update. We agree with AAR that
railroads only need to include updated
route information if the route is used to
transport trains requiring a COSRP.
We disagree, however, that further
clarification of the requirements
triggering an update to the plan is
necessary. We also disagree with AAR
that NCP and ACP changes must be
presented to the railroads. It is the
railroads’ responsibility to ensure they
maintain consistency with the NCP and
ACP for the route segments in which
they are operating. We further disagree
that including ‘‘information relating
circumstances that may affect full
implementation of the plan’’ is overly
broad. This language is consistent with
the longstanding language in the OPS
requirements for pipelines, and ensures
that railroads are updating plans to
reflect changing conditions and
informing those who need to know.
We disagree with commenters that the
methods proposed in § 130.109 and
adopted in § 130.145 for railroads to
respond to alleged deficiencies are
inadequate and should be either further
limited or further elaborated. These
requirements are parallel to the
longstanding requirements adopted by
the OPS for pipelines, which ensure a
documented and timely response to
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either fix or contest the identification of
deficiencies by the approval agency.
Comments Regarding Confidentiality
and Security Concerns for COSRPs
(§ 130.150)
Industry commenters described the
plans as sensitive for both business and
security concerns. AAR’s comments
highlighted concerns that releasing
COSRPs to the public would lead to
security risks. The comments
emphasized that they considered
routing information to be especially
vulnerable. AAR cited terrorist
propaganda targeting petroleum trains
as support for their position. Other
commenters highlighted the value of
releasing plan information to a broader
audience. These commenters expressed
their belief in the importance of sharing
information freely with State entities,
emergency responders, and the public.
The coalition comments from
Riverkeeper, Center for Biological
Diversity, et al. supported full public
disclosure, but suggested that the plans
be shared with public and local
response agencies at a minimum. They
requested details about which specific
COSRP elements are sensitive. Members
of Congress, States, and cities suggested
both State and/or local authorities
should receive unredacted plans, as
they are familiar with protecting
information, and since advance
knowledge of the plans can help them
better respond to incidents. For
example, the City of Davis, California,
provided examples of pipeline
information and dam inundation maps,
for which first responders and local
entities who participate in NIMS
structure sign non-disclosure
agreements. Comments submitted on
behalf of San Francisco Baykeeper
requested the comprehensive plan
information be provided online,
including sensitive site strategies.
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Response to Comments Regarding
Confidentiality and Security Concerns
for COSRPs (§ 130.150)
PHMSA values transparency and
provides resources to the emergency
response community in many forms. We
continue to disagree, however, that
providing an entire COSRP to
emergency responders or the public will
lead to better preparedness. We agree
with AAR and ASLRRA that some
elements of a COSRP may contain
information that is business
confidential, SSI, or personally
identifiable information. Other elements
are specific to railroad operations and
will not inform the actions of first
responders or communities.
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Therefore, we are adopting the
proposed requirements that railroads
may follow existing procedures to
request confidential treatment for
documents filed with the agency,
provided that the information is exempt
by law from public disclosure (e.g.,
exempt from the mandatory disclosure
requirements of the Freedom of
Information Act (5 U.S.C. 552), required
to be held in confidence by 18 U.S.C.
1905). However, we are changing the
citation for confidential information
from FRA’s procedures in 49 CFR
209.11 to PHMSA’s equivalent
procedures in 49 CFR 105.30. Under
this process, the railroads may submit a
redacted version of the plan, but
PHMSA retains the right to make its
own determination in this regard. We
disagree with the comment that specific
examples of confidential information
should be provided. These decisions are
determined on a case-by-case basis as
differences between the levels of detail
provided by the railroad may impact the
determination. We maintain that these
procedures are well-established and
allow for both transparency and the safe
and secure flow of information.
To ensure that State, tribal, and local
government planning agencies receive
advanced notification of the most
pertinent information from COSRPs, we
are adopting the proposed information
sharing requirements in § 174.312 to
include a description of the response
zone and the contact information for the
Qualified Individual for HHFTs subject
to the response plan.
Summary of Comments Regarding
Equipment Testing and Drill/Exercise
Procedures for COSRPs (§ 130.140)
NTSB commented in support of the
equipment testing and drill
requirements proposed in § 130.108.
One commenter recommended requiring
heavily duplicated equipment testing.
No other comments addressing the
proposed equipment testing
requirements were received. The NPRM
received several comments on the drills/
exercises.
NTSB and several other commenters
recommended changing the term ‘‘drill’’
to ‘‘exercise’’ for consistency with
National Scheduling Coordination
Committee and PREP Guidelines. API
requests additional clarification on use
of Government Initiated Unannounced
Exercises (GIUEs) in accordance with
the PREP Guidelines. Other commenters
commented in support of governmentled exercises and drills.
Many commenters highlighted the
value of regular exercises or drills
between railroads and the local
response community. Minnesota
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highlighted a State requirement for
railroads to conduct at least one
containment, recovery, and sensitive
areas-protection drill every three years.
NASTTPO described the need for
exercises in rural areas, acknowledging,
‘‘we have no expectation that rail
carriers would be paying for the
attendance of local first responders at
training events and exercises, nor do we
have an expectation that these exercises
could rapidly be conducted in all
areas,’’ but continuing to request that
rail carriers assess the local hazardous
material response capability along their
routes in conjunction with WCDs and
prioritize field exercises and training for
first responders in vulnerable areas.
Response to Comments Regarding
Equipment Testing and Drill/Exercise
Procedures for COSRPs (§ 130.140)
We disagree with commenters that
duplicate equipment testing is necessary
for all equipment. We are adopting the
proposed requirement to describe and
certify that equipment testing meets the
manufacturer’s minimum requirements.
This ensures that the equipment is
maintained as intended by the
manufacturer and aligns with other
Federal OSRP requirements under the
USCG.31
This final rule adopts the use of PREP
Guidelines as proposed, with a minor
change in wording. We agree with
commenters that the word ‘‘drill’’
should be replaced with ‘‘exercise’’ for
better consistency with the PREP
Guidelines. We disagree that
commenters provided sufficient data to
justify further prescribing exercise
requirements at this time.
On April 11, 2016, USCG announced
that the updated 2016 PREP Guidelines
have been finalized and are now
publicly available.32 These updates
included broadening section 5 of the
PREP Guidelines to allow for the
inclusion of other DOT/PHMSAregulated facilities, such as rail. This
provides an option for railroads to
conduct exercises using the same
guidelines as pipelines. The scope of the
2016 PREP Guidelines exercises is to:
Demonstrate notification processes and
accessibility between key facility
personnel and the Qualified Individual;
exercise the IMT’s organization,
communication, and decision-making in
managing a response; and demonstrate
the ability to deploy response
equipment identified in the Facility
Response Plan (FRP). The 2016 PREP
Guidelines also specify that DOT/
PHMSA has—and reserves—the
31 33
32 81
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authority to conduct and require an
operator to participate in a GIUE.
Summary of Comments Regarding
Implementation of COSRPs and PHMSA
Response (§ 130.155)
The NTSB provided support for the
response plan implementation
requirements proposed in § 130.112,
stating they would ensure a carrier’s
ability to respond to worst-case oil and
petroleum discharges, as called for by
Safety Recommendation R–14–005. No
other comments were received for this
requirement. Therefore, we are adopting
implementation language as proposed.
Summary of Comments Regarding
Requirements for HHFT Operators and
PHMSA Response (§ 174.310)
The State of California Department of
Fish and Wildlife opposed including a
cross-reference to part 130 requirements
for COSRPs in the requirements for
operators of HHFTs in § 174.310, stating
that inclusion of the requirement
inaccurately associates the plan with
safety requirements related to the
design, operation, and maintenance of
railroads.
We disagree. Section 174.310
provides a consolidated list of PHMSA
requirements specific to HHFTs. The
section includes both unique
requirements and cross-references (e.g.,
additional security planning
requirements in § 177.820). Adding a
cross-reference to COSRPs in part 130
for those HHFTs carrying petroleum oil
provides better clarity for navigating
PHMSA’s regulations, consistent with
the intent of the section. We have also
added a cross-reference to the HHFT
information sharing notification in
§ 174.312 for clarity. These crossreferences do not impose new burdens
on railroads.
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C. Summary of HHFT Information
Sharing Notification Comments
(§ 174.312)
PHMSA received approximately 20
comments about the proposed HHFT
information sharing requirements.
These comments fall into several
categories, including applicability,
notification recipients, frequency of
notification, data security, and
confidentiality concerns. PHMSA also
received several comments outside the
scope of this rulemaking requesting
advanced notification of all hazardous
materials rail shipments or notification
to various local entities following an
incident. The Kentucky Emergency
Response Commission supported the
proposed requirements in § 174.312 as
written in the NPRM.
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PHMSA received a small number of
comments on the appropriate quantity
threshold at which the HHFT
information sharing requirements would
apply. These suggested thresholds
included: One car of any hazardous
material; any oil; any hazardous
material in any quantity; and a general
reduction in the number of cars
triggering the notification requirements.
NTSB stated that the HHFT
applicability partly satisfies Safety
Recommendation R–14–14 in that
emergency response agencies would
have access to periodic reports of
flammable hazardous material
commodities transported through their
communities, but urged PHMSA to
require all railroads to provide
advanced notification to communities
for all hazardous materials transported
on a given route.
Generally, most comments concerning
notification recipients agreed with
supplying HHFT information to the
SERCs and TERCs. Several commenters
also supported SERCs and TERCs
further disseminating information to the
appropriate local government officials.
IAFC suggested adding fusion centers as
an additional entity to receive
notifications, but clarified that fusion
centers should not replace SERCs. In
terms of TERCs specifically, two
commenters suggested that we work
closely with tribes and allow their
leadership to determine the best
approach. One comment from AAR
requested that the final rule mandate a
registration system for SERCs and
TERCs to receive information. NTSB
supported expanding the notification
requirements to include LEPCs.
PHMSA received several comments
about the frequency and type of
information provided to SERCs and
TERCs. IAFC agreed with the
requirement for monthly updates and
updates for when routes change a
significant amount. They highlighted
that receiving active, monthly
notification was useful for emergency
response planning by fire chiefs. AAR
stated that the monthly reporting
requirement would be redundant and
asked that a new report should only be
filed when there is a change in volume
of 25 percent or greater. Commenters
also requested more detailed
notification of shipments either before
or after incidents, including ‘‘real-time
notification’’ of hazardous materials
train consists. NTSB supported further
inclusion of additional resources (i.e.,
an emergency coordinator who
participates in the local emergency
planning process), additional notice of
any operational changes that could
affect emergency planning, and any
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information necessary to develop and
implement local emergency plans.
The most discussed category was the
topic of data security and
confidentiality. PHMSA received
several comments on this topic with
commenters either asking for the
information to be more widely available
or requesting increased confidentiality
measures. State governments,
environmental organizations, and a
private individual were in favor of
keeping the information public. A local
government, trade organizations, a
carrier, and an emergency response
organization were in favor of keeping
information confidential. Both sides
provided various reasoning for their
given perspective. The Washington
State Department of Ecology explained
that the requirement to provide
aggregate information weekly is
‘‘consistent and complimentary with
Washington law of aggregating crude
rail information when releasing it to the
public.’’ The commenters advocating for
this information to be public argued that
making information private will put
‘‘the SERC and TERC staff in a situation
of undue legal jeopardy’’ or cause
confusion and delays in further
providing information to appropriate
entities. Commenters further supported
public dissemination, as this
information is not considered security
sensitive information (SSI) by a number
of States, right-to-know, and FRA’s
previous October 2014 Information
Disclosure Notice.33 Several comments
mentioned FRA’s determination in the
October 2014 Information Disclosure
Notice that crude-by-rail information
required to be reported is not business
confidential or proprietary information.
Industry commenters, such as Union
Pacific Railroad, advocated for this
information to be withheld from the
public. They argued that the proposed
rule fails to meet the FAST Act
requirement to identify rail information
as sensitive, and expressed security
concerns over the requested information
being publicly available. The American
Fuel & Petrochemicals Manufacturers
(AFPM) specifically requested that the
information be exempt from public
disclosure—including state FOIA and
sunshine laws—for anyone without
need-to-know, due to concerns over
security.
Some comments supported a mixed
approach, supporting both greater
public availability of data and increased
security measures. One comment
requested that PHMSA and FRA
establish guidelines as to what
information is considered non-public
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SSI. Another comment suggested that
security and confidentiality should be
controlled at the SERC level.
Commenters explained that SERCs have
experience properly controlling other
sensitive information. Some
commenters suggested that local
governments should receive the
notification, but sign non-disclosure
agreements.
Response to Comments Regarding HHFT
Information Sharing Notification
(§ 174.312)
PHMSA disagrees that the
applicability threshold should be
lowered. Lowering the threshold is
outside the scope of this rulemaking,
and was not sufficiently supported by
commenters. Additionally, a lower
threshold may include non-unit trains
in the requirement and significantly
increase cost for small businesses. As
such, the HHFT threshold captures the
risk of unit trains and provides a
consistent approach with the
requirement to perform routing analysis.
This applicability aligns with the FAST
Act requirement to apply the
information sharing provision to
HHFTs. It also expands the applicability
from the FAST Act to include Class II
and III railroads to provide a unified
approach to the risk posed by HHFTs.
We disagree with commenters that the
proposed requirements are overly
burdensome for ensuring SERCs, TERCs,
and local responders receive the
information contained in the
notification. The entities included in the
notification requirements align with the
FAST Act. Furthermore, SERCs are
already receiving the types of
information specified in this
requirement through the Emergency
Order. The purpose of this notification
is to actively inform communities about
HHFTs which are transported through
them. The routing notification
requirements in § 172.820 already
provide a method for communities to
request information. The AAR Circular
OT–55–P outlines a voluntary
procedure whereby local emergency
response officials and emergency
planning organizations may request and
obtain a list of the types and volumes
of hazardous materials that are
transported through their
communities.34 We also disagree with
adding additional detailed information
elements to the notification, as some of
the suggestions by commenters for
additional requirements exceed the
scope of this rulemaking. Furthermore,
PHMSA is addressing the FAST Act
mandate in section 7302 to issue
34 https://www.aar.org/boe.
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regulations that require real-time
sharing of electronic train consist
information for hazardous materials
shipments in a separate rulemaking
action.
We agree with AAR that omitting the
language for a ‘‘change of 25 percent or
more’’ may cause confusion in
determining when use of a certification
of no change is appropriate and that
requiring monthly notifications is
redundant. This is the standard used for
the Emergency Order. Therefore, we are
adopting a requirement to update the
notification when changes in volume
are greater than 25%.
We disagree with commenters that the
approach to security and confidentiality
is inadequate. We maintain that
notification to SERCs, TERCs, or other
State-delegated agencies for the purpose
of sharing with appropriate local
officials is sufficient. Adoption of the
proposed language, ‘‘If the disclosure
includes information that railroads
believe is security sensitive or
proprietary and exempt from public
disclosure, the railroads should indicate
that in the notification,’’ is sufficient to
ensure confidentiality and security. The
purpose of SERCs and TERCs is to share
information with local planning
authorities, and adopting commenter
recommendations for more prescriptive
measures to disseminate information
both exceeds the scope of the proposed
rulemaking and places an additional
burden on states. We acknowledge that
states may differ in their methods.
Maintaining this approach provides
flexibility to ensure that SERCs, TERCs,
and other State-delegated agencies
disseminate information in accordance
with State laws and procedures.
Furthermore, this approach will help
guard against inadvertent public
disclosure of protected materials by
ensuring that the information that
railroads believe to be confidential for
business or security reasons is marked
appropriately. Before fulfilling a request
for information and releasing the
information, States will be on notice as
to what information the railroads
consider inappropriate for public
release.
The adopted information sharing
notification elements include aggregated
information, and analyses by DOT and
DHS have indicated that the information
elements in the notification are not
considered SSI. Furthermore, railroads
have not demonstrated specific
prospective harm that would be caused
by the release of such aggregated
information. Commenters to the NPRM
repeated the same previously raised
concerns that the sharing of routing
information for HHFTs required them to
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reveal proprietary business information.
As discussed above, railroads argued
that the Emergency Order routing
information, if published or shared
widely, could reveal information about
customers. After considering the claim
in an October, 2014 information
collection notice, FRA concluded that
the information would not be
considered business confidential or SSI
under Federal law. FRA’s ‘‘Proposed
Agency Information Collection
Activities; Notice and Request for
Comments’’ 35 noted that the railroads
did not specifically identify any
prospective harm caused by the sharing
of this information. DOT’s previous
analysis concluded that the information
shared by railroads does not qualify for
withholding under Federal standards as
business confidential information or
SSI. DOT requires railroads to share
aggregated information about the
volumes of HHFTs that travel through a
jurisdiction on a weekly basis. This
information does not include customer
information or other business
identifying details. Further, it does not
provide specifics about the timing of
HHFT trains.
D. Summary of Initial Boiling Point Test
Comments (§ 173.121)
PHMSA received five comments
addressing the proposed incorporation
by reference of the ASTM D7900 test
method. The coalition comments from
Scenic Hudson, Riverkeeper, et al.
stated that the new test method should
be mandatory. NTSB supported use of
the test, but recommended that PHMSA
remove other boiling point test options
they consider to be less accurate and,
further, mandate additional
requirements for best method of
classification, such as API RP 3000 and
the report on sampling methods by
Sandia National Laboratories. NTSB
described adding the test as partly
addressing NTSB Safety
Recommendation R–14–6, which
recommends testing and documentation
for all hazardous materials. Industry
commenters provided a more detailed
description and recommendations
related to the use of the test.
Commenters additionally provided
recommendations related to additional
testing and sampling requirements for
petroleum crude oil, which exceeded
the scope of this rulemaking.
Both the AFPM and API stated that
use of the test is not fully aligned with
API RP 3000, pointing to differences
between the API RP 3000 and HMR
regarding sampling methods and
specificity about when to use the test.
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For example, API stated that ASTM
D7900 was applicable only to stabilized
crude oils, defined as having a Reid
vapor pressure equivalent to or less than
82.7 kPa (12 psi). Newer versions of the
API RP 3000 incorporate additional IBP
tests for other crude oils. AFPM
explains:
[The API RP 3000 requires] conducting an
IBP analysis based on the definition of IBP
in ASTM D7169, both the ASTM D7169 and
ASTM D7900 tests must be run. The results
of both tests are merged to obtain a boiling
point distribution curve for the crude oil. The
IBP is then calculated in accordance with the
calculation procedures set out in ASTM
D7169 to arrive at an IBP consistent with the
IBP as defined in ASTM D7169 . . . The
recommended practice for sampling in API
RP 3000 differs substantially from the
sampling methods prescribed in ASTM
D7900, which requires that sampling be
conducted in accordance with ASTM D4057
or D4177.
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Both AFPM and API supported
adoption of the API RP 3000 but
recommended incorporating specific,
detailed language containing limitations
or descriptions about when and how the
test should be used, if adopted. API
further recommended incorporation of
additional standards for the collection
of samples (e.g., the API Manual of
Petroleum Measurement Standards
(MPMS) Chapter 8.1/ASTM D4057, API
MPMS Chapter 8.5/ASTM D8009, or
ASTM D3700). AFPM recommended
including an exception that crude oil
may be classified as Packing Group (PG)
I without further testing for better
harmonization with requirements of
Transport Canada.
Response to IBP Test Comments
(§ 173.121)
PHMSA mostly disagrees with
commenters and is adopting the IBP test
as proposed in the NPRM with the
addition of the boiling point definition
for clarity. The proposed rule included
incorporation by reference of an
additional initial boiling point test
method, which would make no further
changes to other testing and sampling
requirements for petroleum products in
§ 173.41, § 173.120, or § 173.121. The
NPRM did not propose requiring
mandatory use of the ASTM D7900 test
or incorporating additional standards,
nor did it provide an exception from all
other sampling and testing requirements
in the HMR by providing a PG I
designation. Such requirements would
reduce flexibility of industry
stakeholders to comply with test
requirements.
Additionally, a more precise test to
measure boiling point may provide a
limited value, as it is unlikely to lead to
a difference in classification of
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6933
weathered and/or treated stable crude
oils and may be unnecessarily costly to
counter the limited outcome. However,
PHMSA may consider incorporation of
additional standards and further
revising other sampling and testing
criteria and methodology for petroleum
crude oil in a future rulemaking action.
Overall, PHMSA further disagrees that
adding limitations to the use of ASTM
D7900 initial boiling point test is
necessary to ensure shippers use the
right test for their flammable materials.
Currently, § 173.121 provides a list of
initial boiling point tests. These tests do
not apply to all Class 3 liquids; rather,
shippers determine which test is most
appropriate for their material. The full
title of the test provided in § 173.121 is
‘‘Petroleum products containing known
flammable gases—Standard Test
Method for Determination of Light
Hydrocarbons in Stabilized Crude Oils
by Gas Chromatography (ASTM
D7900),’’ which clearly describes the
test is appropriately used for certain
petroleum products. However, use of
the ASTM D7900 requires
understanding the definition of ‘‘initial
boiling point, when determining the
boiling distribution using ASTM D7900,
is the temperature at which 0.5 weight
percent is eluted.’’ This definition is
included in the ASTM D7169, which is
referenced inside the ASTM D7900.
Therefore, we are adopting the proposed
requirement and including the
aforementioned definition. This
provides sufficient information for
shippers to follow the current
classification procedures to select the
most appropriate test for their samples.
publication (i.e., test method) provides
flexibility to use an industry best
standard.
VI. Incorporated by Reference
Section 171.7 lists all standards
incorporated by reference into the HMR
that are not set out in full text in the
regulations. This final rule incorporates
by reference the ASTM D7900–13e1,
Standard Test Method for Determination
of Light Hydrocarbons in Stabilized
Crude Oils by Gas Chromatography,
2013, available for interested parties to
purchase in either print or electronic
versions through ASTM’s website at the
following URL: https://www.astm.org/
Standards/D7900.htm. The price
charged for this standard at the time of
publishing is $52.00. The price charged
to interested parties helps cover the cost
of developing, maintaining, hosting, and
accessing these standards.
This publication (i.e., test method)
ensures a minimal loss of light ends for
crude oils containing volatile, low
molecular weight components (e.g.,
methane) because it determines the
boiling range distribution from methane
through n-nonane. Incorporation of this
Adds new paragraph (c) to include
reference to the administrative civil
penalty under 33 U.S.C. 1321(b)(6), as
adjusted by 40 CFR 19.4, for violations
of COSRP regulations promulgated
under 33 U.S.C. 1321(j).
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VII. Section-by-Section Review
Part 107
Administrative update to authorities
to include 33 U.S.C. 1321(b)(6).
Section 107.301
Updates section to include reference
to subchapter B to reflect administrative
update to amended authority for COSRP
regulations promulgated under 33
U.S.C. 1321(j). Updates reference to the
Secretary’s delegation of authority from
§ 1.53 of this title to § 1.97 of this title.
Section 107.305
Updates section to include reference
to subchapter B to reflect administrative
update to amended authority for COSRP
regulations promulgated under 33
U.S.C. 1321(j).
Section 107.309
Updates section to include reference
to subchapter B to reflect administrative
update to amended authority for COSRP
regulations promulgated under 33
U.S.C. 1321(j).
Section 107.311
Updates section to include reference
to subchapter B to reflect administrative
update to amended authority for COSRP
regulations promulgated under 33
U.S.C. 1321(j).
Section 107.329
Part 130
We are restructuring part 130 to
establish the following subparts:
Subpart A—Applicability and General
Requirements contains current
§§ 130.1–130.21 with minor revisions
and clarifications.
Subpart B—Basic Spill Prevention
and Response Plans contains current
§§ 130.31–130.33 with minor revisions
to remove comprehensive plan
requirements.
Subpart C—Comprehensive Oil Spill
Response Plans is a new subpart with
new requirements for COSRPs. The
section number and titles have been
updated for plain language as follows in
Table 6:
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TABLE 6—PART 130 SUBPART C—COMPREHENSIVE OIL SPILL RESPONSE PLANS SECTIONS
NPRM
Final rule
130.101 Applicability for comprehensive plans .....................................
130.102 General requirements for comprehensive plans .....................
130.103 National Contingency Plan (NCP) and Area Contingency
Plan (ACP).
130.104 Information summary for comprehensive plans ......................
130.105 Notification procedures and contacts for comprehensive
plans.
130.106 Response and mitigation activities for comprehensive plans
130.107 Training procedures for comprehensive plans ........................
130.108 Equipment testing and drill procedures for comprehensive
plans.
130.109 Recordkeeping and plan update procedures for comprehensive plans.
130.111 Submission and approval procedures for comprehensive
plans.
130.112 Response plan implementation for comprehensive plans .......
Section 130.2
Paragraph (d) is updated to show that
the requirements in § 130.31(b) have
moved to subpart C. PHMSA does not
propose any other changes to this
section.
Section 130.5
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The changes to the definitions section
are adopted as proposed in the NPRM.
The introductory text is reformatted,
including moving the definition for
‘‘Animal fat’’ to the correct alphabetical
order as proposed in the NPRM.
Definitions for ‘‘Maximum Potential
Discharge,’’ ‘‘Oil Spill Removal
Organization (OSRO),’’ ‘‘On-Scene
Coordinator (OSC),’’ ‘‘Response
activities,’’ ‘‘Response Plan,’’ and
‘‘Worst-Case Discharge’’ are added as
proposed in the NPRM. Definitions for
‘‘Adverse Weather,’’ ‘‘Maximum
Potential Discharge,’’ ‘‘Person,’’
‘‘Petroleum Oil,’’ and ‘‘Worst-case
discharge’’ are revised as proposed in
the NPRM. This final rule corrects an
NPRM error in which OSRO used
‘‘response’’ rather than the correct term
‘‘removal’’. The IBR reference is
corrected for the definition of ‘‘Liquid,’’
as proposed in the NPRM, and the
definition is updated to remain
consistent with the HMR. In response to
comments on the NPRM, the proposed
definitions for ‘‘Environmentally
Sensitive or Significant Areas’’ and
‘‘Response Zone’’ have been further
clarified in this final rule.
Section 130.31
This section is revised editorially as
proposed in the NPRM to clarify that it
applies to basic OSRPs and remove
references to COSRPs.
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130.100 Applicability for comprehensive oil spill response plans.
130.105 Purpose and general format.
130.110 Consistency with the National Contingency Plan.
130.115 Consistency with Area Contingency Plans.
130.120 Information summary.
130.125 Notification procedures and contacts.
130.130 Response and mitigation activities.
130.135 Training.
130.140 Equipment testing and exercise procedures.
130.145
Plan review, update, and recordkeeping procedures.
130.150
Submission and approval procedures.
130.155
Implementation of comprehensive oil spill response plans.
Section 130.33
This section is revised as proposed in
the NPRM to clarify that it only applies
to basic OSRPs.
Section 130.100
This final rule establishes a new
section to describe the applicability
requirements for COSRPs. This section
has been adopted as proposed in the
NPRM with revisions for plain language
to clarify requirements in response to
comments. This includes moving the
current applicability of COSRPs of
42,000 gallons per packaging from
§ 130.31 to § 130.100, and expanding the
applicability of COSRPs to route
segments in which railroads transport
‘‘a single train transporting 20 or more
loaded tank cars of liquid petroleum oil
in a continuous block or a single train
carrying 35 or more loaded tank cars of
liquid petroleum oil throughout the
train consist.’’ This section also
includes an exception proposed in the
NPRM for oil that does not meet the
definition of a Class 3 flammable or
combustible liquid, and for tank cars
carrying residue. Under this final rule,
tank cars containing crude oil, fuel oil,
petroleum distillates, diesel, and
gasoline must be included when
counting tank cars in the consist.
However, mixtures that do not meet the
criteria for Class 3 flammable or
combustible material in § 173.120 of
part 173, or that contain residue as
defined in § 171.8 of subchapter C, are
not required to be included when
determining the number of tank cars
transporting liquid petroleum oil. For
example, waste water contaminated
with petroleum oil or certain mineral
oils may not meet the definition of a
Class 3 flammable or combustible
liquid. Additionally, oils which were
already excepted from the applicability
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in part 130 by § 130.2(b) are not
required to be counted for COSRPs.
Therefore, COSRPs would not be
required for ‘‘any mixture or solution in
which oil is in a concentration by
weight of less than 10 percent;’’ or for
‘‘any petroleum oil carried in a fuel tank
for the purpose of supplying fuel for
propulsion of the transport vehicle to
which it is attached,’’ or for ‘‘oil
transport exclusively within the
confines of a non-transportation-related
or terminal facility in a vehicle not
intended for use in interstate or
intrastate commerce (see 40 CFR part
112, appendix A).’’
Section 130.105
This final rule establishes a new
section for general requirements for the
overall development of a COSRP as
proposed in the NPRM. This section
includes general requirements for the
plan format, such as development of a
core plan, and geographic response
zones and accompanying response zone
appendixes. This section also adds
permission for railroads to use State
plans to meet the requirements of part
130 provided they maintain an
equivalent or greater level of protection
as the Federal standard.
Section 130.110
This final rule establishes a new
section to require that COSRPs are
certified for consistency with the NCP
and demonstrate compliance through a
list of minimum requirements. In
response to comments, this section
clarifies that the railroad must
demonstrate a clear understanding of
the ‘‘Incident Command System and
Unified Command.’’
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Section 130.115
This final rule establishes a new
section to require COSRPs are certified
for consistency with each applicable
ACP (or Regional Contingency Plan
(RCP) for areas lacking an ACP) and
demonstrate compliance through a list
of minimum requirements. This section
is adopted as proposed in the NPRM,
with edits for plain language and
clarification for ESAs. This section also
clarifies that the identification of ESAs
and protection strategies are determined
by reviewing and summarizing readily
available ACPs, or RCPs when an ACP
is not available.
Section 130.120
This final rule establishes a new
section with requirements for COSRPs
to include a front-page information
summary. This section is adopted as
proposed in the NPRM with minor edits
for plain language.
Section 130.125
This final rule establishes a new
section with requirements for the
notification procedures and contact
information that a railroad must include
in a COSRP. This section is adopted as
proposed in the NPRM with minor edits
for plain language and clarification that
communication between Qualified
Individuals and appropriate Federal
officials and persons providing response
personnel and equipment, must be
immediate.
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Section 130.130
This final rule establishes a new
section for railroads to describe the
response and mitigation activities and
the roles and responsibilities of
participants in COSRPs. This section is
adopted as proposed in the NPRM with
minor edits for plain language and to
clarify that appendix C of 33 CFR part
154 provides equivalent planning
standards for use of OSROs classified
under 33 CFR 154.1035 and 155.1035.
Section 130.135
This final rule establishes a new
section requiring railroads to certify that
employees are trained in accordance
with the requirements of this section.
This section is adopted as proposed in
the NPRM with edits for plain language.
In response to commenters, this final
rule clarifies requirements for
volunteers and adds requirements for
the person acting as Incident
Commander to be trained in ICS.
Section 130.140
This final rule establishes a new
section with requirements for
equipment testing to be consistent with
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the manufacturer’s minimum
requirements. This section is adopted as
proposed in the NPRM, with edits for
plain language and to update the USCG
website.
Section 130.145
This final rule establishes a new
section with requirements for exercise
procedures consistent with current
PREP requirements for COSRPs. This
section is adopted as proposed in the
NPRM, with edits for plain language
and clarification. In response to
commenters, this final rule replaces use
of the term ‘‘drill’’ in the NPRM with
‘‘exercise’’ for consistency with the
PREP guidelines.
Section 130.150
This final rule establishes a new
section with requirements for
recordkeeping, review, and submission
of COSRPs. The NPRM proposed that
railroads submit plans to FRA. The final
rule designates PHMSA as agency
receiving plans and updates this section
with submission procedures applicable
to PHMSA, including specifying options
for electronic submission of plans. In
response to commenters, this final rule
clarifies that railroads may operate for
two years upon submission of response
plan to PHMSA and certification of
appropriate resources, for better
consistency with the CWA.
Section 130.155
This final rule establishes a new
section to apply the current plan
implementation requirements for
COSRPs formerly under § 130.33. This
section has been adopted as proposed
with changes to the section numbering
and title for plain language.
Part 171
Section 171.7
This section adds the ASTM D7900
standard to the list of ASTM materials
incorporated by reference.
Part 173
Section 173.121
This section adds the ASTM D7900
standard to the list of initial boiling
point tests in § 173.121(a)(2) that are
incorporated by reference. This section
adds a definition for initial boiling point
when using the ASTM D7900 standard.
Part 174
Section 174.310
Part 174, subpart G, provides detailed
requirements for transporting flammable
liquids by rail. The HM–251 final rule
added § 174.310 to this subpart to
provide a consolidated list of
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requirements specific to transporting
HHFTs. This final rule adds a new
paragraph (a)(6) titled ‘‘Oil spill
response plans’’ for clarity, to reference
the part 130 requirements for HHFTs
composed of trains carrying petroleum
oil. A new paragraph (a)(7) titled
‘‘Information sharing notification for
emergency planning’’ is added for
consistency, to provide a reference to
the new notification requirements in
§ 174.312. Although, the reference in
(a)(7) was not proposed in the NPRM,
no new requirements are being imposed.
Section 174.312
This final rule adds a new § 174.312
to subpart G of part 174 to require rail
carriers that operate HHFTs to provide
notifications to each applicable SERC,
TERC, or other appropriate Statedelegated agencies for further
distribution to appropriate local
authorities, upon request. Railroads may
identify information that they believe is
security sensitive or proprietary and
exempt from public disclosure. These
requirements are adopted as proposed,
with minor edits for plain language and
clarification. The frequency of update is
also modified to address commenter
concerns. This section specifies that the
HHFT information sharing notification
must include:
• A reasonable estimate of the
number of HHFTs that the railroad
expects to operate each week, through
each county within the State or through
each tribal jurisdiction;
• The routes over which the HHFTs
will operate;
• A description of the hazardous
material being transported and all
applicable emergency response
information required by subparts C and
G of part 172;
• At least one point of contact at the
railroad (including name, title, phone
number, and address) with knowledge
of the railroad’s transportation of
affected trains (referred to as the ‘‘HHFT
point of contact’’); and
• If a route is subject to the COSRPs,
the notification must include a
description of the response zones
(including counties and States) and
contact information for the Qualified
Individual and alternate, as specified
under § 130.104(a).
Railroads may provide the required
notifications electronically or in hard
copy and must update the notifications
for changes in volume greater than 25%.
The frequency of updates aligns with
the Emergency Order. The NPRM
proposed monthly updates or statement
of ‘no change.’’
Each point of contact must be clearly
identified by name or title in
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organization and by contact role (e.g.,
Qualified Individual, HHFT point of
contact).
Adding this new HHFT information
sharing notification to § 174.312 builds
upon the information sharing
framework for HHFTs started by
expansion of the routing requirements
in § 172.820 in the HM–251 final rule
(80 FR 26644). Together, these
requirements enable the railroads to
work with State officials to ensure that
safety and security planning is
occurring. Under existing § 172.820(g) of
the HMR, fusion centers and other State,
local, and tribal officials with a need-toknow will continue to work with the
railroads on routing and risk analysis
information conducted pursuant to part
172, subpart I, for information that is
deemed SSI. The HHFT notification in
the newly established § 174.312 ensures
that SERCs, TERCs, or other appropriate
State agencies will routinely receive and
share non-sensitive information from
rail carriers regarding the movement of
HHFTs in their jurisdictions that can aid
local emergency responders and law
enforcement in emergency preparedness
and community awareness.
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VIII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This
Rulemaking
This final rule is published under the
authority of the Federal Water Pollution
Control Act (FWPCA), 33 U.S.C. 1321,
also known as the Clean Water Act
(CWA), as amended by the Oil Pollution
Act of 1990 (OPA 90), which directs the
President to issue regulations requiring
owners and operators of certain vessels
and onshore and offshore oil facilities to
develop, submit, update, and in some
cases, obtain approval of oil spill
response plans. Executive Order 12777
delegated responsibility to the Secretary
of Transportation for certain
transportation-related facilities. The
Secretary delegated to PHMSA the
authority to promulgate regulations, 49
CFR 1.97(c), and to review and approve
OSRPs.36 A Memorandum of
Understanding (MOU) between the DOT
and EPA further establishes
jurisdictional guidelines for
implementing OPA 90 (36 FR 24080).
The changes to part 130 in this rule
address minimizing the impact of
discharge of oils into or on the navigable
waters or adjoining shorelines.
This final rule is also published under
the authority of the Federal hazardous
36 The Secretary has delegated the authority to
review approve OSRPs by memorandum. Section
1.97 will be updated to reflect this delegation as
part of the Department’s next delegations
rulemaking.
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materials transportation law, 49 U.S.C.
5103(b), which authorizes the Secretary
of Transportation to ‘‘prescribe
regulations for the safe transportation,
including security, of hazardous
materials in intrastate, interstate, and
foreign commerce.’’ The changes in this
rule to 49 CFR parts 171, 173, and 174
address safety and security
vulnerabilities regarding the
transportation of hazardous materials in
commerce. The requirements proposed
in § 174.312 are also mandated by the
FAST Act (Pub. L. 114–94).
The Federal railroad safety laws (49
U.S.C. 20103) provide the Secretary
with authority over all areas of railroad
transportation safety. The Secretary
delegates this authority to the FRA in 49
CFR 1.89. Pursuant to its statutory
authority, FRA promulgates and
enforces a comprehensive regulatory
program (49 CFR parts 200–244)
addressing issues such as railroad track,
signal systems, railroad
communications, and rolling stock. The
FRA inspects railroads and shippers for
compliance with both FRA and PHMSA
regulations.
B. Executive Order 12866 and DOT
Regulatory Policies and Procedures
This final rule is considered a
significant regulatory action under
Executive Order 12866 and the
Regulatory Policies and Procedures of
the Department of Transportation (44 FR
11034). However, this final rule is not
an economically significant regulatory
action as defined by section 3(f)(1)
under Executive Order 12866, since it
does not have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities. A Regulatory Impact
Analysis (RIA) is available for review in
the public docket for this rulemaking
and summarized below. Please see the
RIA for more details on the benefits and
costs of the final rule.
C. Executive Order 13771
This final rule is considered an E.O.
13771 regulatory action. Details on the
estimated costs of this rulemaking can
be found in the rule’s economic
analysis.
D. Executive Order 13132
This final rule has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, ‘‘Federalism,’’ (64 FR 43255;
Aug. 10, 1999), and the presidential
memorandum on ‘‘Preemption,’’ (74 FR
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24693; May 22, 2009). Executive Order
13132 requires PHMSA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ These include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ The
agency may not issue a regulation that
imposes substantial direct compliance
costs and that is not required by statute,
unless the Federal Government provides
the funds necessary to pay the direct
compliance costs incurred by state and
local governments or the agency
consults with state and local
government officials early in the process
of developing the regulation. Where a
regulation has federalism implications
and preempts state law, the agency,
where practicable, seeks to consult with
state and local officials in the process of
developing the regulation.
This final rule will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. The final rule
amends the existing title 49 of the Code
of Federal Regulations in three areas.
First, it updates part 130 by expanding
the applicability of COSRPs to unit
trains of flammable liquid petroleum
oil, and by providing more detailed
requirements for COSRPs. Second, it
updates part 174 by requiring railroads
to share additional information with
state and tribal emergency response
organizations. Finally, it updates part
173 to incorporate by reference an
additional initial boiling point test for
flammable liquids as an acceptable
testing alternative to the current list of
boiling point tests.
The final rule does not impose any
new requirements with effects on the
States, on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among government
entities. In addition, PHMSA has
determined that this final rule will not
impose substantial direct compliance
costs on State and local governments.
Therefore, the consultation and funding
requirements of Executive Order 13132
do not apply.
PHMSA issues this final rule under
the following statutory authorities: The
Hazardous Materials Transportation Act
(HMTA), the Federal Railroad Safety
Act (FRSA), and the Clean Water Act as
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it is amended by the Oil Pollution Act
of 1990.
The HMTA provides that a State law
or Indian tribe requirement is
preempted in the following cases:
Compliance with both the State law or
Indian tribe requirement and the
Federal requirement is not possible; the
State law or Indian tribe requirement
creates an obstacle to accomplishing or
executing the Federal requirement; or
where a Federal requirement has
covered the subject and the state law or
Indian requirement is not substantively
the same. Covered subjects under the
HMTA include:
(1) The designation, description, and
classification of hazardous materials;
(2) The packing, repacking, handling,
labeling, marking, and placarding of
hazardous materials;
(3) The preparation, execution, and
use of shipping documents related to
hazardous materials and requirements
related to the number, contents, and
placement of those documents;
(4) The written notification,
recording, and reporting of the
unintentional release in transportation
of hazardous materials and other written
hazardous materials transportation
incident reporting involving state or
local emergency responders in the
initial response to the incident; and
(5) The design, manufacture,
fabrication, inspection, marking,
maintenance, reconditioning, repair, or
testing of a package, container, or
packaging component that is
represented, marked, certified, or sold
as qualified for use in transporting
hazardous material in commerce.
Under the FRSA, ‘‘[l]aws, regulations,
and orders related to railroad safety and
laws, regulations, and orders related to
railroad security shall be nationally
uniform to the extent practicable.’’ With
narrow exceptions for essentially local
safety or security hazards, states may
not ‘‘adopt or continue in force a law,
regulation, or order related to railroad
safety’’ once the ‘‘Secretary of
Transportation . . . prescribes a
regulation or issues an order covering
the subject matter of the State
requirement.’’ (33 U.S.C. 20106(a)(2)).
This standard applies to Federal
regulations governing the transportation
of hazardous materials by railroad, even
when PHMSA or another agency
promulgates those regulations.
OPA 90 (codified into the CWA)
provides the statutory authority for the
oil spill response planning portions of
this final rule. Regarding the changes to
oil spill response planning requirements
in 49 CFR part 130, Federal regulation
under 33 U.S.C. 1321 accommodates
regulation by States and political
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subdivisions. Pursuant to 33 U.S.C.
1321(o)(2), states or political
subdivisions are not preempted by the
Federal oil spill requirements ‘‘from
imposing any requirement or liability
with respect to the discharge of oil or
hazardous substance into any waters
within such State, or with respect to any
removal activities related to such
discharge.’’
As PHMSA noted in the NPRM, the
preemption language of 33 U.S.C. 1321
protects states’ abilities to regulate
requirements, liabilities, and removal
activities with respect to the discharge
of oil or hazardous substances. Elements
of state oil spill response plan
legislation may be preempted under the
preemption standard established by
FRSA and HMTA if the state legislation
imposes railroad safety or hazardous
materials containment requirements.
PHMSA received several comments
related to the NPRM’s preemption
discussion. These comments include
several submissions from states in
support of the proposition that this final
rule does not preempt states’ abilities to
impose oil spill response requirements
on entities, including railroads. Several
states, including but not limited to
Washington, California, and Minnesota,
commented in support of the
preemption standards discussed in the
NPRM.
Some commenters provided detailed
explanations of the distinction between
hazardous materials and rail safety
regulations under those statutory
authorities and the CWA’s preemption
standard. For example, the Pacific States
and British Columbia Oil Spill Task
Force (Task Force) noted that FRSA and
HMTA may preempt State laws that
focus on rail safety, but that states retain
CWA authority to impose oil spill
planning requirements. They noted that
response plans are not relevant to
traditional railroad safety or operational
requirements. Oil spill response
planning pursuant to the CWA is
designed to minimize the environmental
harm of spilled oil reaching state waters
independent of the train and its normal
operation. The Task Force supports
PHMSA’s continued reliance on the
Clean Water Act’s preemption standards
and national framework of federal and
state action. In another example, the
coalition comments from organizations
including Riverkeeper, the Center for
Biological Diversity, Earthjustice, Scenic
Hudson, Stand.earth, Sierra Club, the
National Wildlife Federation,
Waterkeeper Alliance, Lake Champlain
Committee, Vermont Natural Resources
Council, NY/NJ Baykeeper, Little River
Waterkeeper, Lake Pend Oreille
Waterkeeper, Snake River Waterkeeper,
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6937
Puget Soundkeeper Alliance,
Communities for a Better Environment
and several local riverkeeper and
baykeeper organizations discussed 33
U.S.C. 1321(o)(2) of the Oil Pollution
Act’s as follows:
Under OPA, state and local authorities may
impose any additional liabilities and
requirements regarding oil spills and impose
their own financial penalties for any legal
violations related to oil spills. This broad
non-preemption provision therefore covers
more than mere oil spill planning
requirements, as this notice of proposed
rulemaking suggests. Any state and local
laws that impose oil spill-related
requirements, liabilities, or financial
penalties on crude-by-rail owners or
operators are expressly preserved under OPA
and cannot be subject to preemption under
the FRSA or HMTA.
PHMSA also received comments from
railroad trade associations requesting
that PHMSA reverse its initial
preemption discussion and find that the
Federal standards in 49 CFR part 130
preempt state oil spill response plans.
AAR argued that efforts in Washington
and California to promulgate statespecific requirements and control rail
operations are creating a patchwork of
different and potentially conflicting
requirements across the United States
that will overburden the railroads. The
AAR opined that state oil spill response
plan legislation is preempted under the
preemption standard established by
FRSA, HMTA, and the ICC Termination
Act. Recent efforts by states to
promulgate differing state-specific
requirements demonstrate the need for a
single Federal standard to avoid a
patchwork of potentially conflicting
requirements across the United States
that will overburden the railroads and
impede commerce. ASLRRA
commented in agreement with AAR that
PHMSA’s preemption of State rules is
critical to prevent unnecessary
duplication, inefficiency, and confusion
to the rail industry. ASLRRA
recommended that PHMSA standards
should preempt all current and future
State rules requiring oil spill response
plans for the rail industry.
After evaluating the comments on the
issue of Federal preemption and the
permissibility of state oil spill response
planning requirements for railroads,
PHMSA continues to believe that the
discussion in the proposed rule
accurately states the application of the
existing statutory authorities. The Clean
Water Act allows for states to regulate
requirements, liabilities, and removal
activities with respect to the discharge
of oil or hazardous substances,
including oil spill response planning
requirements; however, any state or
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local regulation of railroad safety
standards or hazardous materials
containment or communication
standards under the guise of oil spill
response planning will be preempted
under FRSA and HMTA.
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E. Executive Order 13175
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments,’’ (65 FR 67249; Nov. 9,
2000) requires agencies to assure
meaningful and timely input from
Indian tribal government representatives
in the development of rules that have
tribal implications. Agencies must
determine whether a proposed
rulemaking has tribal implications,
which include any rulemaking that
imposes ‘‘substantial direct effects’’ on
one or more Indian communities, on the
relationship between the Federal
Government and Indian tribes, or on the
distribution of power between the
Federal Government and Indian tribes.
Further, to the extent practicable and
permitted by law, agencies cannot
promulgate two types of rules—(1) rules
that have tribal implications that impose
substantial direct compliance costs on
Indian tribal governments and that are
not required by statute, and (2) rules
that have tribal implications and that
preempt tribal law—unless they meet
certain conditions.
PHMSA is committed to tribal
outreach and engaging tribal
governments in dialogue. In the NPRM,
PHMSA solicited comments on
potential tribal impacts in an effort to
capture tribal concerns as part of the
regulatory process. Additionally,
PHMSA regularly conducts outreach
efforts. For instance, PHMSA
representatives attended the National
Joint Tribal Emergency Management
Conference in September 2016 and the
Northwest Tribal Emergency
Management Conference in May 2016.
In the spirit of Executive Order 13175,
and consistent with DOT Order 5301.1,
PHMSA will be continuing outreach to
tribal officials independent of our
assessment of the direct tribal
implications of this final rule.
F. Regulatory Flexibility Act, Executive
Order 13272, and DOT Policies and
Procedures
PHMSA must consider whether a
rulemaking would have a ‘‘significant
economic impact on a substantial
number of small entities,’’ which
include small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations under 50,000.
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To ensure potential impacts of rules
on small entities are properly
considered, PHMSA in coordination
with the FRA, developed this final rule
in accordance with Executive Order
13272 (‘‘Proper Consideration of Small
Entities in Agency Rulemaking’’) and
DOT’s procedures and policies to
promote compliance with the RFA.
The RFA and Executive Order 13272
(67 FR 53461; August 16, 2002) require
agency review of proposed and final
rules to assess their impacts on small
entities. An agency must prepare an
initial regulatory flexibility analysis
(IRFA) unless it determines and certifies
that a rule, if promulgated, would not
have a significant economic impact on
a substantial number of small entities.
After subjecting the rule to public
comment, the Agency is required by
E.O. 13272 to assess the comments
received by small entities and the public
and prepare a final regulatory flexibility
analysis (FRFA) which address a series
of topics (presented below) regarding
the rule’s expected impacts on small
entities affected.
Under the RFA at 5 U.S.C. 604(a),
each final regulatory flexibility analysis
is required to address the following
topics:
(1) A statement of the need for, and
objectives of, the rule;
(2) a statement of the significant
issues raised by the public comments in
response to the initial regulatory
flexibility analysis, a statement of the
assessment of the agency of such issues,
and a statement of any changes made in
the proposed rule as a result of such
comments;
(3) the response of the agency to any
comments filed by the Chief Counsel for
Advocacy of the Small Business
Administration in response to the
proposed rule, and a detailed statement
of any change made to the proposed rule
in the final rule as a result of the
comments;
(4) a description of and an estimate of
the number of small entities to which
the rule will apply or an explanation of
why no such estimate is available;
(5) a description of the projected
reporting, recordkeeping and other
compliance requirements of the rule,
including an estimate of the classes of
small entities which will be subject to
the requirement and the type of
professional skills necessary for
preparation of the report or record;
(6) a description of the steps the
agency has taken to minimize the
significant economic impact on small
entities consistent with the stated
objectives of applicable statutes,
including a statement of the factual,
policy, and legal reasons for selecting
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the alternative adopted in the final rule
and why each one of the other
significant alternatives to the rule
considered by the agency which affect
the impact on small entities was
rejected; and
(7) for a covered agency, as defined in
section 609(d)(2), a description of the
steps the agency has taken to minimize
any additional cost of credit for small
entities.
The RFA requires that each initial
regulatory flexibility analysis contain a
description of any significant
alternatives to the proposal that
accomplish the statutory objectives and
minimize the significant economic
impact of the proposal on small entities.
5 U.S.C. 603(c). In this instance, none of
the alternatives accomplish the statutory
objectives and minimize the significant
economic impact of the proposal on
small entities.
(1) Need for, and Objectives of, the Rule
PHMSA, in coordination with the
FRA, is issuing this final rule in order
to improve response readiness and
mitigate effects of rail incidents
involving petroleum oil and certain
HHFTs. This is necessary due to the
expansion in U.S. energy production,
which has led to significant challenges
for the country’s transportation system.
This final rule has requirements in two
areas as shown below: Section I,
Subsection A (‘‘Oil Spill Response
Plans’’) and Subsection B (‘‘Information
Sharing’’).37 The first requirement
modernizes the Comprehensive Spill
Plan requirements. 49 CFR part 130.
Additionally, this final rule requires
railroads to share additional information
with state and tribal emergency
response organizations (i.e., SERCs and
TERCs) to improve community
preparedness. The requirements of this
final rule work in conjunction with the
requirements adopted in the HHFT
Final Rule (80 FR 26644) in order to
continue the comprehensive approach
toward ensuring the safe transportation
of energy products and mitigating the
consequences of such accidents should
they occur. PHMSA is addressing below
the potential impacts on small entities
with the final rule requirements for
37 This rulemaking also proposes incorporation
and the voluntary use of the initial boiling point
(IBP) test (ASTM D7900) to determine classification
and packing group for Class 3 Flammable liquids.
We note that the incorporation of API RP 3000 and
consequently ASTM D7900 will not replace the
currently authorized testing methods, rather serve
as a testing alternative if one chooses to use that
method. PHMSA believes this provides flexibility
and promotes enhanced safety in transport through
accurate PG assignment. This provision would not
pose any impacts on small entities.
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response plans and information
sharing.38
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(A) Oil Spill Response Plans
PHMSA is promulgating this final
rule in response to recent train
accidents involving the derailment of
HHFTs. Shipments of large volumes of
liquid petroleum oil pose a significant
risk to life, property, and the
environment. PHMSA has identified
several recent derailments to illustrate
the circumstances and consequences of
derailments involving petroleum oil
transported in higher-risk train
configurations: Plainfield, IL (July
2017); Money, MS (May 2017); Mosier,
OR (June 2016); Heimdal, ND (May
2015); Galena, IL (March 2015); Mt.
Carbon, WV (February 2015); La Salle,
CO (May 2014); Lynchburg, VA (April
2014); Vandergrift, PA (February 2014);
New Augusta, MS (January 2014);
Casselton, ND (December 2013);
Aliceville, AL (November 2013); and
Parkers Prairie, MN (March 2013).
For example, on December 30, 2013,
a train carrying crude oil derailed and
ignited near Casselton, North Dakota,
prompting authorities to issue a
voluntary evacuation of the city and
surrounding area. On November 7, 2013,
a train carrying crude oil to the Gulf
Coast from North Dakota derailed in
Aliceville, Alabama, spilling crude oil
in a nearby wetland and igniting into
flames. These train accidents involving
derailments of HHFTs transporting
crude oil resulted in discharges of
petroleum oil that harmed or posed a
threat of harm to the nation’s
waterways.
Of note here is the NTSB’s Safety
Recommendation R–14–5,39 which
requested that PHMSA revise the spill
response planning thresholds prescribed
in 49 CFR part 130 to require
comprehensive OSRPs that effectively
provide for the carriers’ ability to
respond to worst-case discharges
resulting from accidents involving unit
trains or blocks of tank cars transporting
oil and petroleum products. In this
recommendation, the NTSB raised a
concern that, ‘‘[b]ecause there is no
mandate for railroads to develop
comprehensive plans or ensure the
availability of necessary response
resources, carriers have effectively
38 We note that the incorporation of API RP 3000,
which contains the ASTM D7900 test will not
replace the currently authorized initial boiling
point testing methods, but rather serve as a testing
alternative if one chooses to use that method.
PHMSA believes this provides flexibility and
promotes enhanced safety in transport through
accurate packing group assignment. This
requirement will impose no new costs.
39 http://www.ntsb.gov/safety/safety-recs/
recletters/R-14-004-006.pdf.
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placed the burden of remediating the
environmental consequences of an
accident on local communities along
their routes.’’ In light of these accidents
and NTSB Recommendation R–14–5,
PHMSA has re-examined whether it is
more appropriate to consider the train
consist, rather than just the individual
tank car, when setting the threshold for
comprehensive OSRPs, and determined
that such consideration is appropriate.
The revisions included in the final rule
expand the applicability of the
comprehensive OSRP requirement.
PHMSA holds that improved oil spill
response planning will in turn improve
the actual response to future
derailments involving petroleum oil and
lessen the negative impacts to the
environment and communities.
On June 17, 1996, RSPA published a
final rule issuing requirements that meet
the intent of the Clean Water Act. This
rule adopted requirements for
packaging, communication, spill
response planning, and response plan
implementation intended to prevent and
contain spills of oil during
transportation. Under these current
requirements, railroads are required to
complete a basic OSRP for oil shipments
in a package with a capacity of 3,500
gallons or more, and a comprehensive
OSRP is required for oil shipments in a
package containing more than 42,000
gallons (1,000 barrels).
Currently, most, if not all, of the rail
community transporting oil, including
crude oil transported as a hazardous
material, is subject to the basic OSRP
requirement of 49 CFR 130.31(a) since
most, if not all, rail tank cars being used
to transport crude oil have a capacity
greater than 3,500 gallons. However, a
comprehensive OSRP for shipment of
oil was only required when the quantity
of oil is greater than 42,000 gallons per
tank car. Accordingly, the number of
railroads required to have a
comprehensive OSRP was much lower,
or possibly non-existent, because a very
limited number of rail tank cars in use
would be able to transport a volume of
42,000 gallons in a car.40
The final rule expands the
applicability of comprehensive OSRPs
based on thresholds of crude oil that
apply to the train consist. Specifically,
the final rule expands the applicability
for OSRPs so that no person may
transport an HHFT quantity 41 of liquid
40 The 2014 AAR’s Universal Machine Language
Equipment Register numbers showed five tank cars
listed with a capacity equal to or greater than
42,000 gallons, and none of these cars were being
used to transport oil or petroleum products.
41 An HHFT exists when a train has a block of 20
tank cars or 35 tank cars dispersed throughout the
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petroleum oil unless that person has
implemented a comprehensive OSRP.
Each railroad subject to the final rule
must prepare and submit a
comprehensive OSRP that includes a
plan for responding, to the maximum
extent practicable, to a worst-case
discharge and to a substantial threat of
such a discharge of oil. The OSRP must
also be submitted to the PHMSA, where
it will be reviewed and approved by
PHMSA personnel.
The changes respond to commenter
requests for requirements for more
detailed guidance and provide a better
parallel to other federal oil spill
response plan regulations promulgated
under the OPA 90 authority. A full
summary of the changes to the plan
requirements are described in the final
rule. Each comprehensive plan must
include.42 I. Core Plan: A core plan
includes an information summary, as
required in 49 CFR 130.105, and any
components which do not change
between response zones. Each plan
must:
• Use and be consistent with the core
principle of the National Incident
Management System (NIMS) including
the utilization of the Incident Command
System (ICS):
• Include an information summary as
required by §§ 130.105 and 130.120.
• Certify that the railroad reviewed
the National Contingency Plan (NCP)
and each applicable Area Contingency
Plan (ACP) and that its response plan is
consistent with the NCP and each
applicable ACP and follows Immediate
Notification procedures, as required by
§§ 130.110 and 139.115.
• Include notification procedures and
a list of contacts as required in
§ 130.125.
• Include response and mitigation
activities and resources as required in
§ 130.130.
• Certify that applicable employees
were trained per § 130.135.
• Describe procedures to ensure
equipment testing and a description of
the exercise program per § 130.140
• Describe plan review and update
procedures per § 130.145.
• Submit the plan as required by
§ 130.150.
II. Response Zone Appendix: For each
response zone, a railroad must include
a response zone appendix to provide the
information summary, as described in
49 CFR 130.120, and any additional
components of the plan specific to the
train that are loaded with a Class 3 flammable
liquid.
42 The following text is provided as an overview
of the rule and does not replace regulatory text
included in the NPRM.
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response zones. Each response zone
appendix must identify:
• A description of the response zone,
including county(s) and state(s);
• Identification of any
environmentally sensitive areas along
the router per § 130.115; and
• Identification of the location where
the response organization will deploy
and the location and description of
equipment required by § 130.130.
In addition, the final rule requires
plan holders to identify an OSRO,
provided through a contract or other
approved means, to respond to a worstcase discharge within 12 hours.
(B) Information Sharing
On May 7, 2014, DOT issued
Emergency Restriction/Prohibition
Order in Docket No. DOT–OST–2014–
0067,43 which required each railroad
transporting 1,000,000 gallons or more
of Bakken crude oil in a single train in
commerce within the U.S. to provide
certain information in writing to the
SERC for each state in which it operates
such a train. In the HM–251 (RIN 2137–
AE91) NPRM published in 2014 (79 FR
45015; Aug. 1, 2014), PHMSA proposed
to codify and clarify the requirements of
the Order in the HMR and requested
public comment on the various facets of
that proposal. Unlike many other
requirements in the August 1, 2014
NPRM, the notification requirements
were specific to a single train that
contains one million gallons or more of
UN 1267, Petroleum crude oil, Class 3,
sourced from the Bakken shale. In the
HHFT Final Rule, PHMSA did not adopt
the separate notification requirements
proposed in the NPRM and instead
relied on the expansion of the existing
route analysis and consultation
requirements of § 172.820 to include
HHFTs to satisfy information sharing
needs.
In response to the FAST Act and
DOT’s commitment to codifying the
Order involving information sharing, we
are requiring in this HM–251B final rule
to add new § 174.312 for information
sharing provisions to the additional
requirements for transportation of
flammable liquids by rail. This addition
creates a tiered approach to information
sharing, whereas fusion centers will
continue to act as the focal point for risk
analysis information deemed SSI under
the routing analysis in § 172.820 and
SERCs and TERCs will actively be
provided with non-sensitive security
information that can aid in emergency
preparedness and community
awareness. The final rule requirements
43 http://www.dot.gov/briefing-room/emergencyorder.
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provide emergency responders with an
integrated approach to receiving
information about HHFTs.
As required by this final rule, the
notification must meet the following
requirements:
• A reasonable estimate of the
number of HHFT that the railroad
expects to operate each week, through
each county within the State or through
each tribal jurisdiction;
• The routes over which the HHFTs
will operate;
• A description of the hazardous
material being transported and all
applicable emergency response
information required by subparts C and
G of part 172 of this subchapter;
• An HHFT point of contact: At least
one point of contact at the railroad
(including name, title, phone number
and address) related to the railroad’s
transportation of affected trains;
• If a route is additionally subject to
the comprehensive spill plan
requirements, the notification must
include a description of the response
zones (including counties and states)
and contact information for the
qualified individual and alternate, as
specified under § 130.104(a);
• Railroads must update the
notifications for changes in volume
greater than 25%.
• Notifications and updates may be
transmitted electronically or by hard
copy.
• Each point of contact must be
clearly identified by name or title and
role (e.g., qualified individual, HHFT
point of contact) in association with the
telephone number. One point of contact
may fulfill multiple roles.
• Copies of HHFT notifications made
must be made available to the
Department of Transportation upon
request.
The required changes build upon the
requirements adopted in HHFT Final
Rule to continue to the comprehensive
approach to ensuring the safe
transportation of energy products.
The Secretary has the authority to
prescribe regulations for the safe
transportation, including the security, of
hazardous materials in intrastate,
interstate, and foreign commerce (49
U.S.C. 5103(b)) and has delegated this
authority to PHMSA via 49 CFR 1.97(b).
(2) A Statement of the Significant
Issues Raised by the Public Comments
in Response to the Initial Regulatory
Flexibility Analysis, a Statement of the
Assessment of the Agency of Such
Issues, and a Statement of any Changes
Made in the Proposed Rule as a Result
of Such Comments
In response to the NPRM, PHMSA
received several comments on whether
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regulatory relief for oil spill response
plans may be appropriate for certain
small businesses (i.e., short lines). As
discussed in the Section B ‘‘Comment
Summary’’ of this rulemaking, most
commenters supported regulations
based on the risk, quantity, and type of
oil, regardless of business size.
The American Short Line and
Regional Railroad Association
(ASLRRA) provided a global rulemaking
comment which questioned whether the
rulemaking ‘‘provides either a
meaningful or operationally sustainable
path to addressing safety, particularly
from a small business perspective.’’
ASLRRA also noted that Class III
railroads ‘‘meet the economic criteria
established for inclusion in 49 CFR
1201.1’’ and suggested requirements
under the under the Small Business
Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104–121) (‘‘SBREFA’’),
apply along with the RFA. ASLRRA did
not provide any data analysis of the
impact to Class III railroads. Their
comments focused on three topics: (1)
That short lines be exempt from
comprehensive OSRP requirements; (2)
that it should be permissible under the
regulations for a short line to be covered
by Class I comprehensive OSRPs when
the short line is effectively a tenant of
the Class I railroad; and (3) that Federal
OSRP requirements should preempt
State level OSRP requirements.
On point (1), PHMSA maintains that
Class II or III railroads transporting
petroleum oil and HHFTs are
transporting materials that pose the
same risk to communities as Class I
railroads, and therefore should not be
excluded from the rulemaking. The
Agency received several comments to
this effect from environmental
organizations, members of the general
public, and certain State governments.
These comments generally supported
the concept of basing OSRP
requirements on the quantity and type
of oil being transported, and risk, rather
than entity size. PHMSA believes the
final rule is an appropriate balance
between risk mitigation and cost and
ensures all entities that are at risk for a
substantial oil spill are covered by the
requirements of the final rule regardless
of size.
On point (3) The ‘‘Executive Order
13132, ‘‘Federalism’’ discussion in this
section provides an analysis and
response to comments related to issues
for federal preemption.
Finally, on point (2), PHMSA does not
believe that the requirements of the final
rule preclude Class I railroads from
assisting Class III entities with
developing comprehensive oil spill
response plan. Nothing in OSRP
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regulations prohibit Class I railroads
from providing support to Class III
Railroads to develop a plan or to
prohibit resource sharing between
railroads. There are large parts of plans
(e.g. Identification of environmentally
sensitive areas or sharing of qualified
individuals) for which a Class I could
provide the Class III with assistance.
Another example would be the Class III
including documentation, under an
agreement with a Class I, of a ‘‘contract
or other means’’ demonstrating they
have permission to use the Class I’s
response resources. Under the COSRP
requirements adopted in this
rulemaking, Class I railroads may
choose to lessen the burden for Class III
railroads through resource sharing
agreements or by providing plan
development information for
overlapping response action plans.
Nothing in the regulations precludes
Class I railroads from assisting short
lines in developing a plan or precludes
one railroad from utilizing resources
provided by another railroad through
contract or other means; however, both
railroads would be subject to submitting
a plan to ensure the responsibilities are
clearly delineated.
The ASLRRA also contends that
PHMSA should have consulted with the
Small Business Administration’s
Advocacy Office. PHMSA does not
believe such consultation is necessary
give the level of impacts and number of
entities impacted by the final rule. The
ASLRRA comments did not provide any
specific information on the cost to
develop comprehensive OSRPs, number
of entities affected, or a comparison of
costs to average operating margins or
total revenue. The cost impacts on small
entities are described more fully below
in the context of the average revenue for
Class III railroads.
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(3) The Response of the Agency to Any
Comments Filed by the Chief Counsel
for Advocacy of the Small Business
Administration in Response to the
Proposed Rule, and a Detailed
Statement of Any Changes Made to the
Proposed Rule in the Final Rule as a
Result of the Comments
PHMSA did not receive any
comments filed by the chief counsel for
Advocacy of the Small Business
Administration and hence has not made
any changes as a result of comments
from that office.
(4) A Description of and an Estimate of
the Number of Small Entities To Which
the Rule Will Apply or an Explanation
of Why No Such Estimate Is Available
The universe of the entities
considered in this FRFA generally
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includes only those small entities that
can reasonably expect to be directly
regulated by the regulatory action. Short
line railroads are the types of small
entities potentially affected by this final
rule.
A ‘‘small entity’’ is defined in 5 U.S.C.
601(3) as having the same meaning as
‘‘small business concern’’ under section
3 of the Small Business Act. This
includes any small business concern
that is independently owned and
operated, and is not dominant in its
field of operation. Title 49 U.S.C. 601(4)
likewise includes within the definition
of small entities non-profit enterprises
that are independently owned and
operated, and are not dominant in their
field of operation. Additionally, 5 U.S.C.
601(5) defines as small entities
governments of cities, counties, towns,
townships, villages, school districts, or
special districts with populations less
than 50,000.
The U.S. Small Business
Administration (SBA) stipulates in its
size standards that the largest a ‘‘forprofit’’ railroad business firm may be,
and still be classified as a small entity,
is 1,500 employees for ‘‘line haul
operating railroads’’ and 500 employees
for ‘‘switching and terminal
establishments.’’
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA and in
conjunction with public comment.
Pursuant to that authority, FRA has
published a final Statement of Agency
Policy that formally establishes small
entities or small businesses as being
railroads, contractors, and hazardous
materials offerors that meet the revenue
requirements of a Class III railroad as set
forth in 49 CFR 1201.1–1, which is $20
million or less in inflation-adjusted
annual revenues,44 and commuter
railroads or small governmental
jurisdictions that serve populations of
50,000 or less. 68 FR 24891 (May 9,
2003) (codified as appendix C to 49 CFR
part 209). The $20 million limit is based
on the Surface Transportation Board’s
revenue threshold for a Class III
railroad. Railroad revenue is adjusted
for inflation by applying a revenue
deflator formula in accordance with 49
CFR 1201.1–1. PHMSA is using this
definition for the rulemaking.
Railroads
Not all small railroads would be
required to comply with the provisions
of this rule. Most of the approximately
44 For 2012 the Surface Transportation Board
(STB) adjusted this amount to $36.2 million.
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6941
579 small railroads 45 that operate in the
United States do not transport
hazardous materials.46 Based on the
requirements of this final rule, the
entities potentially affected by
requirement are as described below:
(A) Oil Spill Response Plans
For determining the entities that
would be affected by the requirements
of this rulemaking, PHMSA used the
configuration of trains contained in the
definition of ‘‘HHFT’’ as it applies to
petroleum oil, established in the HHFT
Final Rule—defined as a train hauling
20 or more carloads of flammable liquid
in a continuous block, or 35 or more
carloads of crude oil throughout the
train. PHMSA and FRA estimated that
55 small railroads transport crude oil in
HHFTs and therefore could potentially
be affected by this rule. This estimate
was formulated using FRA’s extensive
expertise in rail operations, knowledge
of the STB Waybill Data, and outreach
to the FRA regional offices in 2013 to
collect information on small carriers
shipping crude oil.
Therefore, this rule would impact 9.5
percent of the universe of 579 small
railroads. The Agency attempted to
update this number in the interim
between the NPRM and final rule but,
working in cooperation with FRA, was
unable to identify data that would
enable a re-estimation of the number of
entities affected by the rule, because not
all Class III railroads submit carload
data to the STB for inclusion in the
waybill sample. The volume of crude
shipped by rail has declined
significantly since publication of the
NPRM, and one of the effects of this
decline in volume shipped by rail may
be that some Class III railroads have
stopped shipping crude oil in the
interim.
(B) Information Sharing
The applicability of this requirement
is derived from the information
published in the HHFT Final Rule.
Specifically, the definition of a HighHazard Flammable Train and the
information sharing portion of the
routing requirements are related to this
final rule. The HHFT Final Rule defined
‘‘High-Hazard Flammable Train’’ as a
continuous block of 20 or more tank
cars in a single train or 35 or more cars
45 Although there are approximately 738 small
railroads in existence, a portion of these railroads
do not haul freight and hence would not be affected
entities. PHMSA estimates the number of small
entities that haul freight and hence might be
affected by OSRP requirements to be 579 entities.
46 Short Line and Regional Railroad Association.
2017. ‘‘Short Line and Regional Railroad Facts and
Figures.’’
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dispersed through a train loaded with a
flammable liquid.
This definition also served as the
applicable threshold of many of the
requirements in the HHFT rulemaking,
including routing requirements. Section
172.820 prescribes additional safety and
security planning requirements for
transportation by rail. In the HHFT
Final Rule, the applicability for routing
requirements in § 172.820 were revised
to require that any rail carrier
transporting an HHFT comply with the
additional safety and security planning
requirements for transportation by rail.
The routing requirements adopted in the
HHFT Final Rule are related to the
NPRM, as the final rule requirements
will create a tiered approach to
information sharing; whereas fusion
centers will continue to act as the focal
point for risk analysis information
deemed SSI in § 172.820, SERCs and
TERCs will actively be provided with
non-sensitive security information in
the HHFT notification that can aid in
emergency preparedness and
community awareness in § 174.312.
The universe of affected entities for
the information sharing requirements is
different than the number of entities
affected under the comprehensive
response plan requirement. The
applicability of this requirement is
derived from the information published
in the HHFT Final Rule. Specifically,
the definition of an HHFT and the
information sharing portion of the
routing requirements are related to the
NPRM. The number of small entities
impacted under this requirement is
different from the number of entities
impacted under the comprehensive
OSRP requirement due to the different
applicability of these two requirements.
In particular, the comprehensive OSRP
requirement applies to HHFTs
transporting crude oil (and potentially
other petroleum oils), while the
information sharing requirement applies
to HHFTs transporting both crude oil
and ethanol (and potentially other Class
3 flammable liquids). As described
under the impact on the small entities
section with the routing requirements in
the HHFT Final Rule, there are 160
affected small entities under the routing
requirements. Thus, the requirement in
this final rule could potentially affect
160 small railroads transporting
flammable liquids in HHFTs. Therefore,
this rule would impact 27.6 percent of
the universe of 579 small railroads.
Again the Agency was unable to
identify data that would enable us to
adjust the number of entities affected in
the interim between the NPRM and final
rule.
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(5) A Description of the Projected
Reporting, Recordkeeping and Other
Compliance Requirements of the
Proposed Rule, Including an Estimate of
the Classes of Small Entities Which Will
Be Subject to the Requirement and the
Type of Professional Skills Necessary
for Preparation of the Report or Record
For a thorough presentation of cost
estimates, please refer to the draft RIA,
which has been placed in the docket for
this rulemaking. PHMSA is addressing
below the two requirements areas in this
final rule, Oil Spill Response Plans and
Information Sharing.
(A) Oil Spill Response Plans
This rule modernizes the
requirements by changing the
applicability for comprehensive oil spill
response plans and clarifying the
comprehensive plan requirements. The
final rule expands the applicability of
comprehensive OSRPs to railroads
transporting a single train of 20 or more
loaded tank cars of liquid petroleum oil
in a continuous block or a single train
carrying 35 or more loaded tank cars of
liquid petroleum oil throughout the
train consist. These railroads, that are
currently required to develop a basic
plan, are now required to develop a
comprehensive plan.
PHMSA describes below the impact
on the small railroads that would be
required under the final rule which
requires any railroad carrying 20 or
more tank cars of liquid petroleum oil
in a continuous block or 35 such cars on
a single train to submit a comprehensive
OSRP. The total cost estimate with the
requirements for small railroads is
conservative, when compared to the
cost estimates of the other several
alternatives evaluated by PHMSA.
PHMSA evaluated several alternatives
related to the threshold values for the
universe of affected entities that would
be required to submit a comprehensive
response plan.47 For additional
information about the development of
these cost estimates, the specific
differences between a basic and
comprehensive OSRP including the
estimated cost per railroad by railroad
class please refer to the final RIA, which
has been placed in the docket for this
47 Under each of these alternatives, the number of
Class I and Class II railroads affected by the
proposed thresholds does not change. However, the
number of Class III railroads that would be subject
to the proposed rule ranges from 55 to 20 railroads.
Based on evaluation of the 2013 Waybill Sample
data and in consultation with the FRA, PHMSA
determined that 55 small railroads are the largest
number of small railroads that is subject to the
proposed option requirements. Please, refer to the
draft RIA for additional information regarding the
number of impacted entities under the other several
alternatives.
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rulemaking. For determining the entities
that would be affected by the required
threshold, PHMSA used the definition
HHFT from the HHFT Final Rule.48
PHMSA narrowed the affected entities
to only include railroads that
transported crude oil and, in
consultation with FRA, revised the
estimated number of Class III carriers
that would be subject to the rulemaking.
Based on this assessment, PHMSA
estimates there are 73 railroads (7 Class
I, 11 Class II, and 55 Class III) that
would be subject to this final rule.
I. Core Plan: A core plan includes an
information summary, as adopted in
§ 130.105, and any components which
do not change between response zones.
II. Response Zone Appendix: For
reach response zone, a railroad must
include a response zone appendix to
provide the information summary, as
required in § 130.120, and any
additional components of the plan
specific to the response zones.
In addition, the final rule requires
plan holders to identify an OSRO,
provided through a contract or other
approved means, to respond to a worstcase discharge within 12 hours.
PHMSA has identified several
categories of costs related to the
development and implementation of a
comprehensive response plan. Those
costs include the following: Plan
development, submission, and
maintenance; contract fees for
designating an OSRO; training and
drills; and plan review and approval.
For additional information about the
development of these cost estimates,
please refer to the draft RIA, which has
been placed in the docket for this
rulemaking.
As noted in section 4 of this FRFA,
approximately 55 small railroads carry
crude oil in train consists large enough
that they would potentially be affected
by this rule.
PHMSA considers the average annual
cost per railroad relevant for the
purposes of this analysis in addition to
presenting first year and subsequent
year cost per railroad due to the nature
of frequency of requirements with the
development of a comprehensive plan,
which varies between annual and every
five years. The total undiscounted cost
with the plan for the small railroads is
$15,221,806 over the ten-year period of
the analysis. PHMSA estimates the total
cost to each small railroad to be $51,020
in the first year and an annual average
cost of $25,082 in subsequent years,
taking into account the costs growing
48 80
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with increases in real wages.49 Small
railroads have annual operating
revenues that range from $3 million to
$20 million. A recent publication on
from the ASLRRA states that average
freight revenue for Class III railroads is
$4.75 million per year.50 Thus, the costs
associated with this requirement
amount to roughly one percent or less
of the railroad’s annual operating
revenue (in the initial year when costs
are highest the amount is 1.07 percent
of average annual revenue, and falls to
an average of 0.53 percent in subsequent
years and is 0.58 percent for the full ten
year analysis period, assuming revenue
is roughly stable at $4.75 million over
the analysis period). PHMSA realizes
that some small railroads will have
lower annual revenue than $4.75
million. However, PHMSA is confident
that this estimate of total cost per small
railroad provides a good representation
of the cost applicable to small railroads,
in general.
In conclusion, PHMSA believes that
although some small railroads will be
directly impacted, the impact will
amount to roughly one percent or less
of an average small railroad’s annual
operating revenue. PHMSA plans to
publish a Compliance Guide to explain
the regulations to small businesses.
(B) Information Sharing
In response to the FAST Act and
DOT’s commitment to codifying the
Order involving information sharing, in
this final rule we are adding new
information sharing provisions to the
additional safety and security planning
requirements for transportation by rail
in a new § 312. As discussed previously,
§ 172.820(g) provides the requirements
for rail carrier point of contact on
routing issues for SSI. In this final rule
we add § 174.312 to add additional
information sharing requirements. A rail
carrier of a HHFT as defined in § 171.8
of this subchapter must provide the
following notification to SERC, TERC, or
other appropriate state delegated
entities in which it operates.
Information required to be shared must
consist of the following:
• A reasonable estimate of the
number of affected HHFTs that are
expected to travel, per week, through
each county within the state.
• The routes over which the affected
trains will be transported.
• A description of the materials
shipped and applicable emergency
response information required by
subparts C and G of part 172 of this
subchapter.
• At least one point of contact at the
railroad (including name, title, phone
number and address) responsible for
serving as the point of contact for the
SERC, TERC, and relevant emergency
responders related to the railroad’s
transportation of affected trains.
• The information summary elements
(e.g. response zone description and
contact information for qualified
individuals) for the comprehensive oil
spill response plan required by
§ 130.120(c), when applicable.
• Railroads must update notifications
made under § 174.312 for changes in
volume greater than 25%.
• Copies of railroad notifications
made under § 174.312 must be made
available to DOT upon request.
Approximately 160 small railroads
carry crude oil and ethanol in train
consists large enough that they would
potentially be affected by this rule.
PHMSA estimates the total cost of
information sharing to each small
railroad to be $7,758 in the first year
and $2,365 for subsequent years, with
costs growing with increases in real
wages.51
Small railroads’ annual operating
revenues range from $3 million to $20
million. A recent publication on from
the ASLRRA states that average freight
revenue for Class III railroads is $4.75
million per year.52 One percent of
average annual revenue per small
railroad is $47,500. Thus, the costs
associated with this requirement
amount to less than one percent of the
railroad’s annual operating revenue.
PHMSA realizes that some small
railroads will have lower annual
revenue than $4.75 million. However,
PHMSA is confident that this estimate
of total cost per small railroad provides
a good representation of the cost
applicable to small railroads, in general.
Total Burden on Small Entities
TABLE 7—SUMMARY UNDISCOUNTED ANNUAL BURDEN ON CLASS III RAILROADS
Number of
impacted
small
railroads
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Requirement area
Year 1 cost
per small
railroad—
undiscounted
Average
annual
cost in
subsequent
years per
small
railroad—
undiscounted
Oil Spill Response Plans .............................................................................................................
Information Sharing .....................................................................................................................
55
160
$51,020
7,758
$25,082
2,365
Total burden per small railroad ($) .......................................................................................
........................
58,778
27,447
In conclusion, PHMSA believes that
although some small railroads will be
directly impacted, the average impact
will amount to less than one percent of
an average small railroad’s annual
operating revenue.
This final rule is not expected to have
a noticeable impact on the competitive
position of the affected small railroads
or on the small entity segment of the
railroad industry as a whole. The small
entity segment of the railroad industry
faces little in the way of intramodal
competition. Small railroads generally
serve as ‘‘feeders’’ to the larger railroads,
collecting carloads in smaller numbers
and at lower densities than would be
economical for the larger railroads. They
transport those cars over relatively short
distances and then turn them over to the
49 Costs per railroad are derived in the draft RIA,
with costs for all Class III railroads divided by the
55 impacted railroads. The Year 1 total costs are
calculated at $2,806,125. The estimated Year 1 cost
per railroad is then calculated at $51,020 =
$2,806,125/55 small railroads. The average annual
cost for the subsequent years is calculated at
$1,379,520 = $12,415,681/9 years. The estimated
average annual cost per small railroad for the
subsequent years is then calculated at $25,082 =
$11,379,520/55 small railroads.
50 Short Line and Regional Railroad
Association.2017. ‘‘Short Line and Regional
Railroad Facts and Figures.’’
51 Please refer to the draft RIA for full description
on how these costs per railroad are derived.
52 Short Line and Regional Railroad Association.
2017. ‘‘Short Line and Regional Railroad Facts and
Figures.’’
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larger systems, which transport them
relatively long distances to their
ultimate destination, or for handoff back
to a smaller railroad for final delivery.
Although their relative interests do not
always coincide, the relationship
between the large and small entity
segments of the railroad industry is
more supportive and co-dependent than
competitive.
It is also rare for small railroads to
compete with each other. As mentioned
above, small railroads generally serve
smaller, lower density markets and
customers. They tend to operate in
markets where there is not enough
traffic to attract or sustain rail
competition, large or small. Given the
significant capital investment required
(to acquire right-of-way, build track,
purchase fleet, etc.), new entry in the
railroad industry is not a common
occurrence. Thus, even to the extent the
final rule may have an economic
impact, PHMSA does not expect it to
have an impact on the intramodal
competitive position of small railroads.
(6) A Description of the Steps the
Agency Has Taken To Minimize the
Significant Economic Impacts on Small
Entities Consistent With the Stated
Objectives of Applicable Statutes,
Including a Statement of the Factual,
Policy, and Legal Reasons for Selecting
the Alternative Adopted in the Final
Rule and Why Each One of the Other
Significant Alternatives to the Rule
Considered by the Agency Which Affect
the Impact on Small Entities Was
Rejected
PHMSA is promulgating this final
rule in response to recent train
accidents involving the derailment of
HHFTs. Shipments of large volumes of
liquid petroleum oil pose a significant
risk to life, property, and the
environment. The Agency considered
several alternatives that would lessen
the impacts on small businesses,
including: Applying the OSRP
requirement to railroads operating on
Class III track or higher, and applying
the OSRP requirement to consists of 70
or more carloads of crude oil. While
these alternatives would reduce the
impact on small businesses relative to
the alternative selected by PHMSA, the
Agency determined that to ensure
protection of the environment, life and
property, OSRP requirements should be
applied to all railroads operating trains
hauling 20 or more carloads of crude oil
in a block or 35 carloads throughout a
train consist on all classes of track.
Several commenters submitted
comments stating that application of
OSRPs should be based on the risk of a
significant oil spill and not on entity
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size. OSRPs will ensure a coordinated
and prompt response to oil spills from
trains at significant risk of spilling large
quantities of oil. The other alternatives
were rejected because they do not
adequately address the risk of a worstcase discharge throughout the rail
system.
(7) For a Covered Agency, as Defined in
Section 609(d)(2), a Description of the
Steps the Agency Has Taken To
Minimize Any Additional Costs of
Credit for Small Entities
PHMSA is not a covered entity.
G. Paperwork Reduction Act
PHMSA is requesting a revision to the
information collection from the Office of
Management and Budget (OMB) under
OMB Control No. 2137–0628, entitled
‘‘Flammable Hazardous Materials by
Rail Transportation.’’ This final rule
will result in an increase in annual
burden and costs under OMB Control
No. 2137–0628 due to proposed
requirements pertaining to the creation
of oil spill response plans and
notification requirements for the
movement of flammable liquids by rail.
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, no person
is required to respond to an information
collection unless it has been approved
by OMB and displays a valid OMB
control number. Section 1320.8(d) of
title 5 of the CFR requires that PHMSA
provide interested members of the
public and affected agencies an
opportunity to comment on information
and recordkeeping requests.
This document identifies a revised
information collection request that
PHMSA will submit to OMB for
approval based on the requirements in
this final rule. PHMSA has developed
burden estimates to reflect changes in
this final rule. PHMSA received
comments from industry stakeholders,
API and AAR which suggested the
burden hours estimated for plan
development were too low. These
commenters did not provide data or
estimates to revise the data. To be
responsive to commenters’ concerns,
PHMSA provided additional analysis
and updated the estimates for the level
of effort required to complete a response
plan. This amounts to doubling the
effort for core plan development and
increasing by 12-fold the effort
estimated to create a single response
zone appendix. Additional information
concerning OSRP plan development
hours is available in the final RIA in the
docket for this rulemaking.
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Oil Spill Response Plans
PHMSA estimates that there will be
approximately 73 respondents, based on
a review of the number of railroad
operators in existence that transport
trains with 20 or more tank cars loaded
with liquid petroleum oil in a
continuous block or 35 or more tank
cars loaded with liquid petroleum oil
throughout the train. PHMSA estimates
that it will take a rail operator 180 hours
to produce a comprehensive oil spill
response plan. In addition, the oil spill
response plan will have an addendum
for each response zone through which
the applicable trains pass. It is estimated
this addendum will take 180 hours per
response zone. The comprehensive oil
response plans also will require annual
maintenance. This annual maintenance
is expected to take 162 hours for Class
I railroads, 54 hours for Class II
railroads, and 36 hours for Class III
railroads.
Initial Development of Oil Spill
Response Plan
There are seven Class I railroads in
existence that will be required to create
a comprehensive oil spill response plan
at 180 hours per plan resulting in 1,260
burden hours. Each Class I railroad is
expected to have 8 response zones at
180 hours per response zone resulting in
10,080 burden hours. Combined this
will result in a total of 11,340 burden
hours Class I railroad oil spill response
plans.
There are eleven Class II railroads in
existence that will be required to create
a comprehensive oil spill response plan
at 180 hours per response plan resulting
in 1,980 burden hours. Each Class II
railroad is expected to have 2 response
zones at 180 hours per zone resulting in
3,960 burden hours. Combined this will
result in a total of 5,940 burden Class II
railroad oil spill response plans.
There are 55 Class III railroads in
existence that will be required to create
a comprehensive oil spill response plan
at 180 hours per response plan resulting
in 9,900 burden hours. Each class III
railroad is expected to pass through 1
response zones at 180 hours per zone
resulting in 9,900 burden hours.
Combined this will result in a total of
19,800 burden hours for Class III
railroads oil spill response plans.
The total annual burden hours for all
initial creation of oil spill response
plans is 37,080 burden hours. There are
no out of pocket expenses associated
with this information collection.
Presented below is a summary of the
numbers describe above:
Class I—(7 Responses × 180 Hours per
plan) + (7 responses × 8 Response Zones
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× 180 hours per zone) = 11,340 burden
hours.
Class II—(11 Response × 180 Hours
per plan) + (11 response × 2 Response
Zones × 180 hours per zone) = 5,940
burden hours.
Class III—(55 Response × 180 Hours
per plan) + (55 responses × 1 Response
Zone × 180 hours per zone) = 19,800
burden hours.
Oil Spill Response Plan Maintenance—
Performed Annually
There are seven Class I railroads in
existence that will be required to
annually maintain their oil spill
response plan at 162 hours per plan
resulting in 1,134 annual burden hours.
There are eleven Class II railroads in
existence that will be required to
annually maintain their oil spill
response plan at 54 hours per plan
resulting in 594 annual burden hours.
There are 55 Class III railroads in
existence that will be required to
annually maintain their oil spill
response plan at 36 hours per plan
resulting in annual burden hours.
The total annual burden hours for
annual updates of oil spill response
plans is 3,708 burden hours. Presented
below is a summary of the numbers
describe above:
Class I—7 Responses × 162 Hours per
response = 1,134 annual burden hours
Class II—11 Response × 54 Hours per
response = 594 annual burden hours
Class III—55 response × 36 hours per
response = 1,980 annual burden hours
Total Hours for Plan Maintenance =
3,708 Annual Burden Hours.
Notifications to Emergency Response
Commissions
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Initial Notification Response Plan
For the creation of the initial HHFT
information sharing notification
PHMSA estimates that there will be
approximately 178 respondents based
on a review of the number of railroad
operators shipping class 3 flammable
liquids. PHMSA estimates that it will
take a rail operator 30 hours to create
initial notification plan for the State
Emergency Response Commissions
(SERCs), 30 hours to create initial
notification plan for the Tribal
Emergency Response Commissions
(TERCs), and 15 hours to create the
initial plan for other state delegated
agencies.
There are seven Class I railroads
required to create SERC plans at 30
hours per response for a total of 210
burden hours. There are seven Class I
railroads at 30 hours per response for
210 burden hours for TEPC plans. There
are seven Class I railroads at 15 hours
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Jkt 247001
per response for a total of 105 burden
hours for other state delegated agency
plans. This will result in an initial one
year total burden of 525 hours for Class
I railroads.
There are eleven Class II railroads at
30 hours per response resulting in 330
burden hours for SERC plans. There are
eleven Class II railroads at 30 hours per
response resulting in 330 burden hours
for TERC plans. There are eleven Class
II railroads at 15 hours per response
resulting in 165 burden hours for other
state delegated agency plans. This will
result in an initial one year total burden
of 825 hours for Class II railroads.
There are 160 Class III railroads at 30
hours per response resulting in 4,800
burden hours for SERC plans. There are
160 Class III railroads at 30 hours per
response resulting in 4,800 burden
hours for TERC plans. There are 160
Class III railroads at 15 hours per
response resulting in 2,400 burden
hours for other state delegated agency
plans. This will result in an initial one
year total burden of 12,000 hours for
Class III railroads.
The total annual burden hours for
initial notification plans is 13,350
burden hours.
Presented below is a summary of the
numbers describe above:
Class I—(7 responses × 30 hours for
SERC plan) + (7 responses × 30 hours for
TERC plan) + (7 responses × 15 hours
for other state delegated agency plan) =
525 burden hours.
Class II—(11 responses × 30 hours for
SERC plan) + (11 responses × 30 hours
for TERC plan) + (11 responses × 15
hours for other state delegated agency
plan) = 825 burden hours.
Class III—(160 responses × 30 hours
for SERC plan) + (160 responses × 30
hours for TERC plan) + (160 responses
× 15 hours for other state delegated
agency plan) = 12,000 burden hours.
Notification Response Plan
Maintenance—Performed Annually
For the maintenance of the
notification plan PHMSA estimates that
there will be approximately 178
respondents based on a review of the
number of railroad operators shipping
class 3 flammable liquids. PHMSA
estimates that it will take a rail operator
12 hours to maintain notification plan
for the SERCs, 12 hours to maintain
notification plan for TERCs, and 6 hours
to maintain the plan for other state
delegated agencies.
There are seven Class I railroads at 12
hours per response resulting in 84
burden hours for SERC plans. There are
seven Class I railroads at 12 hours per
response resulting in 84 burden hours
for TERC plans. There are seven Class
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6945
I railroads at 6 hours per response
resulting in 42 burden hours for other
state delegated agency plans. This will
result in an annual total burden of 210
hours for Class I railroads.
There are eleven Class II railroads at
12 hours per response resulting in 132
burden hours for SERC plans. There are
eleven Class II railroads at 12 hours per
response resulting in 132 burden hours
for TERC plans. There are eleven Class
II railroads at 6 hours per response
resulting in 66 burden hours for other
state delegated agency plans. This will
result in an annual burden of 330 hours
for Class II railroads.
There are 160 Class III railroads at 12
hours per response resulting in 1,920
burden hours for SERC plans. There are
160 Class III railroads at 12 hours per
response resulting in 1,920 burden
hours for TERC plans. There are 160
Class III railroads at 6 hours per
response resulting in 960 burden hours
for other state delegated agency plans.
This will result in an annual burden of
4,800 hours for Class III railroads.
The total annual burden hours for
annual maintenance of notification
plans is 5,340 burden hours. There are
no out of pocket expenses associated
with this information collection.
Presented below is a summary of the
numbers describe above:
Class I—(7 responses × 12 hours for
SERC plan) + (7 responses × 12 hours for
TERC plan) + (7 responses × 6 hours for
other state delegated agency plan) = 210
burden hours.
Class II—(11 responses × 12 hours for
SERC plan) + (11 responses × 12 hours
for TERC plan) + (11 responses × 6
hours for other state delegated agency
plan) = 330 burden hours.
Class III—(160 responses × 12 hours
for SERC plan) + (160 responses × 12
hours for TERC plan) + (160 responses
× 6 hours for other state delegated
agency plan) = 4,800 burden hours.
Total Increased Burden
OMB No. 2137–0682: Flammable
Hazardous Materials by Rail
Transportation.
Initial Year Annual Burden:
Initial Year Annual Responses: 740.
Initial Year Annual Burden Hours:
50,430.
Additional Cost Burden: $0.
Subsequent Year Burden:
Annual Responses: 607.
Annual Burden Hours: 9,048.
Additional Cost Burden: $0.
Please direct your requests for a copy
of the information collection to Steven
Andrews or Shelby Geller, U.S.
Department of Transportation, Pipeline
& Hazardous Materials Safety
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Administration (PHMSA), East
Building, Office of Hazardous Materials
Standards (PHH–12), 1200 New Jersey
Avenue Southeast, Washington, DC
20590, Telephone (202) 366–8553.
H. Executive Order 13211
Executive Order 13211 requires
Federal agencies to prepare a Statement
of Energy Effects for any ‘‘significant
energy action.’’ (66 FR 28355; May 22,
2001). Under the Executive Order, a
‘‘significant energy action’’ is defined as
any action by an agency (normally
published in the Federal Register) that
promulgates, or is expected to lead to
the promulgation of, a final rule or
regulation (including a notice of
inquiry, advance NPRM, and NPRM)
that (1)(i) is a significant regulatory
action under Executive Order 12866 or
any successor order and (ii) is likely to
have a significant adverse effect on the
supply, distribution, or use of energy; or
(2) is designated by the Administrator of
the Office of Information and Regulatory
Affairs as a significant energy action.
PHMSA has evaluated this action in
accordance with Executive Order 13211.
See the environmental assessment
section for a more thorough discussion
of environmental effects and the supply,
distribution, or use of energy. PHMSA
has determined that this action will not
have a significant adverse effect on the
supply, distribution, or use of energy.
Consequently, PHMSA has determined
that this regulatory action is not a
‘‘significant energy action’’ within the
meaning of Executive Order 13211.
I. Unfunded Mandates Reform Act
This final rule does not impose
unfunded mandates as defined by the
Unfunded Mandates Reform Act of
1995. Public Law 104–4. It does not
result in costs of $100 million or more,
adjusted for inflation, to either State,
local, or tribal governments, in the
aggregate, or to the private sector in any
one year, and is the least burdensome
alternative that achieves the objective of
the rule. As such, PHMSA has
concluded that the final rule does not
require an Unfunded Mandates Act
analysis.
J. Executive Order 13609 and
International Trade Analysis
Under Executive Order 13609,
‘‘Promoting International Regulatory
Cooperation,’’ 77 FR 26413 (May 4,
2012), agencies must consider whether
the impacts associated with significant
variations between domestic and
international regulatory approaches are
unnecessary or may impair the ability of
American business to export and
compete internationally. In meeting
shared challenges involving health,
safety, labor, security, environmental,
and other issues, international
regulatory cooperation can identify
approaches that are at least as protective
as those that are or would be adopted in
the absence of such cooperation.
International regulatory cooperation can
also reduce, eliminate, or prevent
unnecessary differences in regulatory
requirements.
Similarly, the Trade Agreements Act
of 1979 (Pub. L. 96–39), as amended by
the Uruguay Round Agreements Act
(Pub. L. 103–465), prohibits Federal
agencies from establishing any
standards or engaging in related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. For purposes of these
requirements, Federal agencies may
participate in the establishment of
international standards, so long as the
standards have a legitimate domestic
objective, such as providing for safety,
and do not operate to exclude imports
that meet this objective. The statute also
requires consideration of international
Oil Spill Response Planning ..................................................................................
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Information Sharing ...............................................................................................
•
•
•
•
•
•
can be used to cross-reference this
action with the Unified Agenda.
A regulation identifier number (RIN)
is assigned to each regulatory action
listed in the Unified Agenda of Federal
Regulatory and Deregulator Actions
(‘‘Unified Agenda’’). The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. RIN 2137–AF08
M. Privacy Act
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Jkt 247001
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, including any personal information
the commenter provides, to
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K. Environmental Assessment
PHMSA has analyzed this rule in
accordance with the National
Environmental Policy Act of 1969
(NEPA; 42 U.S.C. 4321, et seq.), as
amended; the Council on Environmental
Quality (CEQ) regulations implementing
NEPA (40 CFR parts 1500–1508); the
U.S. Department of Transportation
(DOT) Order 5610.C (September 18,
1979, as amended on July 13, 1982 and
July 30, 1985), entitled ‘‘Procedures for
Considering Environmental Impacts,’’
and other pertinent environmental
regulations, Executive Orders, statutes,
and laws for the consideration of
environmental impacts of PHMSA
actions. The agency relies on all
authorities noted above to ensure that it
actively incorporates environmental
considerations into informed decisionmaking on all of its actions, including
rulemaking. An ‘‘Environmental
Assessment’’ (EA) and a ‘‘Finding of No
Significant Impact’’ (FONSI) are
available in the docket PHMSA–2014–
0105 (HM–251B). PHMSA has
concluded that this action would have
a positive effect on the human and
natural environments since these
response plan and information
requirements would mitigate
environmental consequences of spills
related to rail transport of petroleum oil
and HHFTs by reducing the severity of
incidents as follows:
Improved Response Times.
Improved Communication/Defined Command Structure.
Better Access to Equipment.
Trained Responders.
Improved Communication.
Enhanced Preparedness.
L. Regulatory Identification Number
(RIN)
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standards and, where appropriate, that
they be the basis for U.S. standards.
PHMSA participates in the
establishment of international standards
to protect the safety of the American
public. We have assessed the effects of
the final rule to ensure that it does not
cause unnecessary obstacles to foreign
trade. Accordingly, this rulemaking is
consistent with Executive Order 13609
and PHMSA’s obligations under the
Trade Agreement Act, as amended.
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
www.dot.gov/privacy.
List of Subjects
49 CFR Part 107
Administrative practice and
procedure, Hazardous materials
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transportation, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 130
Incorporation by reference, Oil
pollution, Packaging and containers,
Reporting and recordkeeping
requirements, Transportation.
49 CFR Part 171
Exports, Hazardous materials
transportation, Hazardous waste,
Imports, Incorporation by reference,
Reporting and recordkeeping
requirements.
4. Revise § 107.309(a) to read as
follows:
■
49 CFR Part 173
Hazardous materials transportation,
Packaging and containers, Radioactive
materials, Reporting and recordkeeping
requirements, Uranium.
49 CFR Part 174
Hazardous materials transportation,
Incorporation by reference, Radioactive
materials, Railroad safety.
In consideration of the foregoing, 49
CFR chapter I is amended as follows:
PART 107—HAZARDOUS MATERIALS
PROGRAM PROCEDURES
1. The authority citation for part 107
is revised to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Pub. L. 101–410 Section 4; Pub. L. 104–121
Sections 212–213; Pub. L. 104–134 Section
31001; Pub. L. 114–74 Section 4 (28 U.S.C.
2461 note); 49 CFR 1.81 and 1.97; 33 U.S.C.
1321.
■
2. Revise § 107.301 to read as follows:
§ 107.301 Delegated authority for
enforcement.
Under redelegation from the
Administrator of the Pipeline and
Hazardous Materials Safety
Administration, the Associate
Administrator for Hazardous Materials
Safety and the Office of the Chief
Counsel exercise their authority for
enforcement of the Federal hazardous
material transportation law, Federal
Water Pollution Control Act, this
subchapter, and subchapters B and C of
this chapter, in accordance with § 1.97
of this title.
3. Revise § 107.305(a) to read as
follows:
■
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§ 107.305
(a) General. In accordance with its
delegated authority under part 1 of this
title, the Associate Administrator may
initiate investigations relating to
compliance by any person with any
provisions of this subchapter,
subchapter B of this chapter, or
subchapter C of this chapter, or any
18:45 Feb 27, 2019
§ 107.309
Warning letters.
(a) The Associate Administrator may
issue a warning letter to any person
whom the Associate Administrator
believes to have committed a probable
violation of the Federal hazardous
material transportation law, the Federal
Water Pollution Control Act, or any
provision of this subchapter, subchapter
B of this chapter, subchapter C of this
chapter, or any special permit issued
thereunder.
*
*
*
*
*
■ 5. Amend § 107.311 by revising
paragraphs (a) and (b)(1) to read as
follows:
§ 107.311
Notice of probable violation.
(a) The Office of Chief Counsel may
serve a notice of probable violation on
a person alleging the violation of one or
more provisions of the Federal
hazardous material transportation law,
the Federal Water Pollution Control Act,
or any provision of this subchapter,
subchapter B of this chapter, or
subchapter C of this chapter, or any
special permit, response plan, or order
issued thereunder.
(b) * * *
(1) A citation of the provisions of the
Federal hazardous material
transportation law, Federal Water
Pollution Control Act, an order issued
thereunder, this subchapter, subchapter
B of this chapter, subchapter C of this
chapter, or the terms of any special
permit issued thereunder which the
Office of Chief Counsel believes the
respondent is violating or has violated.
*
*
*
*
*
6. Amend § 107.329 by adding
paragraph (c) to read as follows:
■
Investigations.
VerDate Sep<11>2014
special permit, approval, response plan,
or order issued thereunder, or any court
decree relating thereto. The Associate
Administrator encourages voluntary
production of documents in accordance
with and subject to § 105.45 of this
subchapter, and hearings may be
conducted, and depositions taken
pursuant to 49 U.S.C. 5121(a). The
Associate Administrator may conduct
investigative conferences and hearings
in the course of any investigation.
*
*
*
*
*
Jkt 247001
§ 107.329
Maximum penalties.
*
*
*
*
*
(c) Any owner, operator, or person
found to have violated a response plan
or provision of 33 U.S.C. 1321(j), or any
regulation or order issued thereunder, is
subject to an administrative civil
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6947
penalty under 33 U.S.C. 1321(b)(6), as
adjusted by 40 CFR 19.4.
PART 130—OIL SPILL PREVENTION
AND RESPONSE PLANS
7. The authority citation for part 130
continues to read as follows:
■
Authority: 33 U.S.C. 1321; 49 CFR 1.81
and 1.97.
§ § 130.1, 130.2, 130.3, 130.5, 130.11, and
130.21 [Designated as Subpart A]
8. Designate §§ 130.1, 130.2, 130.3,
130.5, 130.11, and 130.21 as subpart A
and add a heading for newly designated
subpart A to read as follows:
■
Subpart A—Applicability and General
Requirements
9. Amend § 130.2 by revising
paragraphs (a) and (d) to read as follows:
■
§ 130.2
Scope.
(a) The requirements of this part
apply to oil that is subject to a basic or
comprehensive oil spill response plan
in accordance with subparts B and C of
this part.
*
*
*
*
*
(d) The requirements in subpart C of
this part do not apply to mobile marine
transportation-related facilities (see 33
CFR part 154).
10. Amend § 130.5:
a. By adding, in alphabetical order,
definitions for ‘‘Adverse weather’’ and
‘‘Environmentally sensitive or
significant areas’’;
■ b. By revising the definition for
‘‘Liquid’’ and removing the note
following the definition;
■ c. By adding, in alphabetical order,
definitions for ‘‘Maximum potential
discharge,’’ ‘‘Oil Spill Removal
Organization,’’ and ‘‘On-Scene
Coordinator’’;
■ d. By revising the definitions of
‘‘Person’’ and ‘‘Petroleum oil’’;
■ e. By adding, in alphabetical order,
defintions for ‘‘Response activities,’’
‘‘Response plan,’’ and ‘‘Response zone’’;
and
■ f. By revising the definition of ‘‘Worstcase discharge’’.
The additions and revisions read as
follows:
■
■
§ 130.5
Definitions.
*
*
*
*
*
Adverse weather means the weather
conditions (e.g., ice conditions,
temperature ranges, flooding, strong
winds) that will be considered when
identifying response systems and
equipment to be deployed in accordance
with a response plan.
*
*
*
*
*
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Environmentally sensitive or
significant areas (ESA) means a
‘‘sensitive area’’ identified in the
applicable Area Contingency Plan
(ACP), or if no applicable, complete
ACP exists, an area of environmental
importance which is in or adjacent to
navigable waters.
*
*
*
*
*
Liquid means a material, with a
melting point or initial melting point of
20 °C (68 °F) or lower at a standard
pressure of 101.3 kPa (14.7 psia). A
viscous material for which a specific
melting point cannot be determined
must be subjected to the procedures
specified in ASTM D4359–90 ‘‘Standard
Test Method for Determining Whether a
Material is Liquid or Solid’’ (IBR, see
§ 171.7 of this chapter).
*
*
*
*
*
Maximum potential discharge means
a planning volume for a discharge from
a motor vehicle or rail car equal to the
capacity of the cargo container.
*
*
*
*
*
Oil Spill Removal Organization
(OSRO) means an entity that provides
response resources.
On-Scene Coordinator (OSC) means
the Federal official pre-designated by
the Administrator of the United States
Environmental Protection Agency (EPA)
or by the Commandant of the United
States Coast Guard (USCG) to coordinate
and direct Federal response under the
National Contingency Plan (NCP) (40
CFR part 300, subpart D).
*
*
*
*
*
Person means an individual, firm,
corporation, partnership, association,
State, municipality, commission, or
political subdivision of a State, or any
interstate body, as well as a department,
agency, or instrumentality of the
executive, legislative, or judicial branch
of the Federal Government. This
definition includes railroads.
Petroleum oil means any oil extracted
or derived from geological hydrocarbon
deposits, including oils produced by
distillation or their refined products.
*
*
*
*
*
Response activities means the
containment and removal of oil from
navigable waters and adjoining
shorelines, the temporary storage and
disposal of recovered oil, or the taking
of other actions as necessary to
minimize or mitigate damage to the
environment.
Response plan means a basic oil spill
response plan meeting requirements of
subpart B of this part or a
comprehensive oil spill response plan
meeting requirements of subpart C of
this part. For comprehensive plans in
subpart C, this definition includes both
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the railroad’s core plan and the response
zone appendices, for responding, to the
maximum extent practicable, to a worstcase discharge of oil or the substantial
threat of such a discharge.
Response zone means a geographic
area along applicable rail route(s),
containing one or more adjacent route
segments for which the railroad is
required to plan for the deployment of,
and provide, spill response capabilities
meeting the planning requirements of
§ 130.130. The size, locations, and
boundaries of the zone are determined
and identified by the railroad after
considering the existing location and
organizational structure of each
railroad’s incident management team
(IMT), including the availability and
capability of response resources.
*
*
*
*
*
Worst-case discharge means ‘‘the
largest foreseeable discharge in adverse
weather conditions,’’ as defined at 33
U.S.C. 1321(a)(24). The largest
foreseeable discharge includes
discharges resulting from fire or
explosion. The worst-case discharge
from a unit train consist is the greater
of:
(1) 300,000 gallons of liquid
petroleum oil; or
(2) 15 percent of the total lading of
liquid petroleum oil transported within
the largest unit train consist reasonably
expected to transport liquid petroleum
oil in a given response zone. The worstcase discharge calculated from tank cars
exceeding 42,000 gallons is equal to the
capacity of the cargo container.
requirements of subpart C of this part is
not required to have a basic spill
response plan for routes covered by the
comprehensive plan.
*
*
*
*
*
■ 14. Revise the heading of § 130.33 to
read as follows:
§ § 130.22 through 130.29
Reserved]
(a) Railroads must have current,
written comprehensive oil spill
response plans (COSRPs) meeting the
requirements of this subpart for any
route or route segments used to
transport either of the following:
(1) Any liquid petroleum oil or other
non-petroleum oil subject to this part in
a quantity greater than 42,000 gallons
(1,000 barrels) per packaging; or
(2) A single train carrying 20 or more
loaded tank cars of liquid petroleum oil
in a continuous block or a single train
carrying 35 or more loaded tank cars of
liquid petroleum oil throughout the
train consist.
(i) Tank cars carrying liquid
petroleum oil products not meeting the
criteria for Class 3 flammable or
combustible material in § 173.120 of this
chapter, or containing residue as
defined in § 171.8 of this chapter, are
not required to be included when
determining the number of tank cars
transporting liquid petroleum oil in
paragraph (a)(2) of this section.
(ii) [Reserved]
[Added and
11. Add reserved §§ 130.22 through
130.29 to subpart A.
■
§ § 130.31 and 130.33
Subpart B]
[Designate as
12. Designate §§ 130.31 and 130.33 as
subpart B and add a heading for newly
designated subpart B to read as follows:
■
Subpart B—Basic Spill Response
Plans
13. Amend § 130.31 by revising the
section heading and paragraphs (a)
introductory text and (b) to read as
follows:
■
§ 130.31
Basic spill response plans.
(a) No person may transport liquid
petroleum oil in a packaging having a
capacity of 3,500 gallons or more unless
that person has a current basic written
plan that:
*
*
*
*
*
(b) A railroad with a comprehensive
plan in conformance with the
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§ 130.33 Basic response plan
implementation.
*
*
*
*
*
§ § 130.34 through 130.99
Reserved]
[Added and
15. Add reserved §§ 130.34 through
130.99 to subpart B.
■ 16. Add subpart C to read as follows:
■
Subpart C—Comprehensive Oil Spill
Response Plans
Sec.
130.100 Applicability of comprehensive oil
spill response plans.
130.105 Purpose and general format.
130.110 Consistency with the National
Contingency Plan.
130.115 Consistency with Area
Contingency Plans.
130.120 Information summary.
130.125 Notification procedures and
contacts.
130.130 Response and mitigation activities.
130.135 Training.
130.140 Equipment testing and exercise
procedures.
130.145 Plan review, update, and
recordkeeping procedures.
130.150 Approval and submission
procedures.
§ 130.100 Applicability of comprehensive
oil spill response plans.
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(b) The requirements of this subpart
do not apply if the oil being transported
is otherwise excepted per § 130.2(c).
(c) A railroad required to develop a
response plan in accordance with this
section may not transport applicable
quantities of oil (including handling and
storage incidental to transport) unless—
(1) The response plan is submitted,
reviewed, and approved as required by
§ 130.150 except as described in
paragraph (d) of this section; and
(2) The railroad is operating in
compliance with the response plan.
(d) A railroad required to develop a
response plan in accordance with this
section may continue to transport oil
without an approval from PHMSA
provided that all of the following
criteria are met:
(1) The railroad submitted a plan in
accordance with the requirements of
§ 130.150(a) within the previous two
years;
(2) The submitted plan includes the
certification in § 130.130;
(3) The railroad is operating in
compliance with the submitted plan;
and
(4) PHMSA has not issued a final
decision that all or part of the plan does
not meet the requirements of this
subpart.
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§ 130.105
Purpose and general format.
(a) Each railroad subject to this
subpart must prepare and submit a plan,
including resources and procedures, for
responding, to the maximum extent
practicable, to a worst-case discharge,
and to a substantial threat of such a
discharge, of oil. The plan must use and
be consistent with the core principle of
the National Incident Management
System (NIMS) including the utilization
of the Incident Command System (ICS).
(b) Each response plan must be
formatted to include:
(1) Core plan. Response plans with
more than one response zone must
include a core plan containing an
information summary required by
§ 130.120 and information that does not
change between different response
zones; and
(2) Response zone appendix or
appendices. For each response zone
included in the response plan, the
response plan must include a response
zone appendix that provides the
information summary required by
§ 130.120 and any additional
information that differs between
response zones or is not included in the
core plan. In addition, each response
zone appendix must identify all of the
following:
(i) A description of the response zone,
including county(s) and state(s);
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(ii) A list of route sections contained
in the response zone, identified by
railroad milepost or other identifier;
(iii) Identification of environmentally
sensitive or significant areas per route
section as determined by § 130.115; and
(iv) The location from which the Oil
Spill Removal Organization will deploy,
and the location and description of the
response equipment required by
§ 130.130(c)(6).
(c) To meet the requirements of the
response plan as required by § 130.100,
a railroad may submit an applicable
Annex(es) of an Integrated Contingency
Plan (ICP). The Annex(es) must meet the
minimum requirements of a Federal
response plan required under this part.
Guidance on the ICP is available from
the National Response Team (http://
www.NRT.org).
(d) To meet the requirements of the
response plan as required by § 130.100,
a railroad may submit a response plan
that complies with a State law or
regulation. The state plan must meet the
minimum requirements of a Federal
response plan required under this part
and must include all of the following:
(1) An information summary as
required by § 130.120;
(2) A list of the names or titles and 24hour telephone numbers of the qualified
individual(s) and at least one alternate
qualified individual(s); and
(3) A certification and documentation
that that railroad has identified and
secured, through contract or other
approved means, the private personnel
and equipment necessary to respond to
a worst-case discharge or a substantial
threat of such a discharge.
§ 130.110 Consistency with the National
Contingency Plan.
(a) A railroad must certify in the
response plan that it reviewed the NCP
(40 CFR part 300) and that its response
plan is consistent with the NCP.
(b) At a minimum, for consistency
with the NCP, a comprehensive
response plan must include all of the
following:
(1) Demonstrate a railroad’s clear
understanding of the Incident Command
System and Unified Command and the
roles and responsibilities of the Federal
On-Scene Coordinator;
(2) Include procedures to immediately
notify the National Response Center;
and
(3) Establish provisions to ensure
safety at the response site.
§ 130.115 Consistency with Area
Contingency Plans.
(a) A railroad must certify for each
response zone that it reviewed each
applicable ACP (or Regional
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Contingency Plan (RCP) for areas
lacking an ACP).
(b) At a minimum, for consistency
with the applicable ACP (or Regional
Contingency Plan (RCP) for areas
lacking an ACP), the comprehensive
response plan must do all of the
following:
(1) Address the removal of a worstcase discharge, and the mitigation or
prevention of the substantial threat of a
worst-case discharge, of oil;
(2) Identify environmentally sensitive
or significant areas along the route, as
defined in § 130.5, which could be
adversely affected by a worst-case
discharge, by reviewing and
summarizing the applicable ACP or
RCP;
(3) Incorporate appropriate strategies
identified in applicable ACPs or RCPs,
to protect environmentally sensitive or
significant areas identified in paragraph
(b)(2) of this section;
(4) Describe the responsibilities of the
railroad and of Federal, State, and local
agencies in removing a discharge and in
mitigating or preventing a substantial
threat of a discharge; and
(5) Identify the procedures to obtain
any required Federal and State
authorization for using alternative
response strategies such as in-situ
burning and/or chemical agents, as
provided for in the applicable ACP and
subpart J of 40 CFR part 300.
§ 130.120
Information summary.
(a) Each person preparing a
comprehensive response plan must
include information summaries for the
core plan and each response zone
meeting the requirements of this
section.
(b) The information summary for the
core plan must include all of the
following:
(1) The name and mailing address of
the railroad;
(2) A listing and description of each
response zone, including county(s) and
State(s); and
(3) The name or title of the qualified
individual(s) and alternate(s) for each
response zone, with telephone numbers
at which they can be contacted on a 24hour basis.
(c) The information summary for each
response zone appendix must include
all of the following:
(1) The name and mailing address of
the railroad;
(2) A description of the response
zone, including county(s) and State(s);
(3) The name or title of the qualified
individual(s) and alternate(s) for the
response zone, with telephone numbers
at which they can be contacted on a 24hour basis;
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(4) The type(s) of oil expected to be
carried; and
(5) Determination of the worst-case
discharge and supporting calculations.
(d) The information summary should
be listed first, before other information
in the plan, or clearly identified through
the use of tabs or other visual aids.
§ 130.125 Notification procedures and
contacts.
(a) The railroad must develop and
implement notification procedures that
include all of the following:
(1) Procedures for immediate
notification of the qualified individual
or alternate and immediate
communications between that
individual, and the appropriate Federal
official and the persons providing
personnel and equipment;
(2) A checklist of the notifications
required under the response plan, listed
in the order of priority;
(3) The primary and secondary
communication methods by which
notifications can be made;
(4) The circumstances and necessary
time frames under which the
notifications must be made; and
(5) The information to be provided in
the initial and each follow-up
notification.
(b) The notification procedures must
include the names of the following
individuals or organizations, with the
ten-digit telephone numbers at which
they can be contacted on a 24-hour
basis:
(1) The National Response Center
(NRC);
(2) Qualified individual, or
alternative;
(3) Federal, State, and local agencies
that the railroad expects to have
pollution control responsibilities or
provide pollution control support; and
(4) Personnel or organizations to
notify for the activation of equipment
and personnel resources identified in
§ 130.130.
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§ 130.130 Response and mitigation
activities.
(a) Each railroad must certify that it
has identified and secured, by contract
or other means, the private response
resources in each response zone
necessary to remove and control, to the
maximum extent practicable, a worstcase discharge. The certification must be
signed by the qualified individual or an
appropriate corporate officer.
(b) Each railroad must identify and
describe in the plan the response
resources that are available to arrive
onsite within 12 hours of the discovery
of a worst-case discharge or the
substantial threat of such a discharge. It
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is assumed that resources can travel
according to a land speed of 35 miles
per hour, unless the railroad can
demonstrate otherwise.
(c) Each plan must identify all of the
following information for response and
mitigation activities:
(1) Methods of initial discharge
detection;
(2) Responsibilities of, and actions to
be taken by, personnel to initiate and
supervise response activities pending
the arrival of the qualified individual or
other response resources identified in
the response plan that are necessary to
ensure the protection of safety at the
response site and to mitigate or prevent
any discharge from the tank cars;
(3) The qualified individual’s
responsibilities and authority;
(4) Procedures for coordinating the
actions of the railroad or qualified
individual with the actions of the U.S.
EPA or U.S. Coast Guard On-Scene
Coordinator responsible for monitoring
or directing response and mitigation
activities;
(5) The Oil Spill Removal
Organization’s responsibilities and
authority; and
(6) For each Oil Spill Removal
Organization identified under this
section, a listing adequate for the worstcase discharge listed in the plan of:
(i) Equipment, supplies, and
personnel available, and the location
thereof, including equipment suitable
for adverse weather conditions and the
personnel necessary to continue
operation of the equipment and staff the
Oil Spill Removal Organization during
the response, in accordance with
appendix C of 33 CFR part 154; or
(ii) In lieu of the listing of equipment,
supplies, and personnel, a statement
that the Oil Spill Removal Organization
has been classified by the United States
Coast Guard under 33 CFR 154.1035 or
155.1035.
§ 130.135
Training.
(a) A railroad must certify in the
response plan that it has conducted
training to ensure that:
(1) All railroad employees subject to
the plan know—
(i) Their responsibilities under the
comprehensive oil spill response plan;
and
(ii) The name of, and procedures for
contacting, the qualified individual or
alternate on a 24-hour basis;
(2) All railroad employees with
responsibilities as reporting personnel
in the plan also know—
(i) The content of the information
summary of the response plan;
(ii) The toll-free telephone number of
the National Response Center; and
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(iii) The notification process required
by § 130.105; and
(3) The qualified individual or, as an
alternative, the person acting in an
Incident Commander role, may be
trained in the Incident Command
System at the Incident Commander
Level.
(b) Employees subject to this section
must be trained at least once every five
years or, if the plan is revised during the
five-year recurrent training cycle, within
90 days of implementation of the
revised plan. New employees must be
trained within 90 days of employment
or change in job function.
(c) Each railroad must create and
retain records of current training of each
railroad employee engaged in oil spill
response, inclusive of the preceding five
years, in accordance with this section,
for as long as that employee is employed
and for 90 days thereafter. A railroad
must make the employee’s record of
training available upon request, at a
reasonable time and location, to an
authorized official of the Department of
Transportation. The record must
include all of the following:
(1) The employee’s name;
(2) The completion date of the
employee’s most recent training;
(3) The name and address of the
person providing the training; and
(4) A certification statement that the
designated employee has been trained,
as required by this subpart.
(d) Nothing in this section relieves a
person from the responsibility to ensure
that all personnel are trained in
accordance with other regulations. As
an example, response personnel may be
subject to the Occupational Safety and
Health Administration (OSHA)
standards for emergency response
operations in 29 CFR 1910.120,
including volunteers or casual laborers
employed during a response who are
subject to those standards pursuant to
40 CFR part 311. Hazmat employees, as
defined in § 171.8 of this chapter, are
subject to the training requirements in
subpart H of part 172 of this chapter,
including safety training.
§ 130.140 Equipment testing and exercise
procedures.
(a) Testing. The plan must include a
description of the methods used to
ensure that equipment testing meets the
manufacturer’s minimum
recommendations or equivalent.
(b) Exercises. A railroad must
implement and describe an exercise
program for COSRPs following the
National Preparedness for Response
Exercise Program (PREP) Guidelines,
which can be found using the search
function on the USCG’s web page
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(https://homeport.uscg.mil). These
guidelines are also available from the
TASC DEPT Warehouse, 33141Q 75th
Avenue, Landover, MD 20875 (fax: 301–
386–5394, stock number USCG–X0241).
As an alternative, a railroad choosing
not to follow PREP Guidelines must
have an exercise program that is
equivalent to PREP. The plan must
include a description of the exercise
procedures and programs the railroad
uses to assess whether its response plan
will function as planned, including the
types of exercises and their frequencies.
(c) Recordkeeping. Railroads must
keep records showing the exercise dates
and times, and the after action reports
that accompany the response plan
exercises. Railroads must provide copies
of these records to Department of
Transportation representatives upon
request.
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§ 130.145 Plan review, update, and
recordkeeping procedures.
(a) For purposes of this part, copy
means a hardcopy or an electronic
version. Each railroad must:
(1) Maintain a copy of the complete
plan at the railroad’s principal place of
business;
(2) Provide a copy of the core plan
and the appropriate response zone
appendix to each qualified individual
and alternate; and
(3) Provide a copy of the information
summary to each dispatcher in response
zones identified in the plan.
(b) Each railroad must include
procedures to review the plan after a
discharge requiring the activation of the
plan in order to evaluate and record the
plan’s effectiveness.
(c) Each railroad must update its plan
to address new or different conditions
or information. In addition, each
railroad must review its plan in full at
least every 5 years from the date of the
last approval.
(d) If changes to the plans are made,
updated copies of the plan must be
provided to every individual referenced
under paragraph (a) of this section.
(e) If new or different operating
conditions or information would
substantially affect the implementation
of the response plan, the railroad must
immediately modify its plan to address
such a change and must submit the
change to PHMSA within 90 days in
accordance with § 130.111. Examples of
changes in operating conditions or
information that would substantially
affect a railroad’s response plan are:
(1) Establishment of a new railroad
route, including an extension of an
existing railroad route, construction of a
new track, or obtaining trackage rights
over a route not covered by the
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previously approved plan used for
trains which require a comprehensive
plan in accordance with § 130.100(a);
(2) The name of the Oil Spill Removal
Organization;
(3) Emergency response procedures;
(4) The qualified individual;
(5) A change in the NCP or an ACP
that has significant impact on the
equipment appropriate for response
activities (e.g., identification of ESAs as
described by § 130.115);
(6) A change in the type of oil
transported, if the type affects the
required response resources (e.g., a
change from crude oil to gasoline); and
(7) Any other information relating to
circumstances that may affect full
implementation of the plan.
(f) If PHMSA determines that a change
to a response plan does not meet the
requirements of this part, PHMSA will
notify the operator of any alleged
deficiencies, and provide the railroad
with an opportunity to respond—
including an opportunity for an
informal conference—to any proposed
plan revisions, as well as an opportunity
to correct any deficiencies.
(g) A railroad that disagrees with a
determination that proposed revisions
to a plan are deficient may petition
PHMSA for reconsideration within 30
days from the date of receipt of
PHMSA’s notice. After considering all
relevant material presented in writing or
at an informal conference, PHMSA will
notify the railroad of its final decision.
The railroad must comply with the final
decision within 30 days of issuance,
unless PHMSA allows additional time.
informal conference—to any proposed
plan revisions, as well as an opportunity
to correct any deficiencies.
(c) A railroad that disagrees with
PHMSA’s determination that a plan
contains alleged deficiencies may
petition PHMSA for reconsideration
within 30 days from the date of receipt
of PHMSA’s notice. After considering
all relevant material presented in
writing or at an informal conference,
PHMSA will notify the operator of its
final decision. The railroad must
comply with the final decision within
30 days of issuance, unless PHMSA
allows additional time.
(d) PHMSA will approve the response
plan if PHMSA determines that the
response plan meets all requirements of
this part. PHMSA may consult with the
U.S. Environmental Protection Agency
(EPA) or the U.S. Coast Guard (USCG),
allowing a Federal On-Scene
Coordinator (OSC) to identify concerns
regarding a plan’s compliance with the
statutory and regulatory requirements.
(e) If PHMSA receives a request from
a Federal OSC to review a response
plan, PHMSA will give a copy of the
response plan to the Federal OSC
provided that any requests for the plan
are referred to PHMSA. PHMSA may
consider Federal OSC comments on:
Response techniques; protecting fish,
wildlife and environmentally sensitive
environments; and consistency with the
ACP. PHMSA remains the approving
authority for the response plan.
(f) A railroad may ask for confidential
treatment in accordance with the
procedures in § 105.30 of this chapter.
§ 130.150 Approval and submission
procedures.
§ 130.155 Implementation of
comprehensive oil spill response plans.
(a) Each railroad must submit an
electronic copy in an industry standard
format (e.g., Adobe Acrobat, Microsoft
Word, or hypertext markup language
(HTML)) of the COSRP required by this
part. Copies of the response plan must
be submitted via commercial carrier to:
Associate Administrator for Hazardous
Materials Safety, Pipeline and
Hazardous Materials Safety
Administration, U.S. Department of
Transportation, East Building, 2nd
Floor, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001.
Alternatively, the railroad may arrange
for secure electronic transfer of the file
to PHMSA or email a copy of the plan
to [email protected].
(b) If PHMSA determines that a
response plan requiring approval does
not meet all the requirements of this
part, PHMSA will notify the railroad of
any alleged deficiencies and provide the
railroad an opportunity to respond—
including the opportunity for an
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If, during transportation of oil subject
to this subpart, a discharge of oil
occurs—into or on the navigable waters;
on the adjoining shorelines to the
navigable waters; or that may affect
natural resources belonging to,
appertaining to, or under the exclusive
management authority of, the United
States—the person transporting the oil
must implement the plan required by
§ 130.100 in a manner consistent with
the National Contingency Plan, 40 CFR
part 300, or as otherwise directed by the
Federal On-Scene Coordinator.
PART 171—GENERAL INFORMATION,
REGULATIONS, AND DEFINITIONS
17. The authority citation for part 171
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701;
Public Law 101–410 section 4; Public Law
104–134, section 31001; Public Law 114–74
section 4 (28 U.S.C. 2461 note); 49 CFR 1.81
and 1.97.
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18. Amend § 171.7 by:
a. In paragraph (h) introductory text,
removing ‘‘American Society for Testing
and Materials’’ and adding in its place
‘‘ASTM International’’; and
■ b. Redesignating paragraphs (h)(45)
through (51) as (h)(46) through (52) and
adding new paragraph (h)(45).
The addition reads as follows:
■
■
§ 171.7
Reference material.
*
*
*
*
*
(h) * * *
(45) ASTM D7900–13e1, Standard
Test Method for Determination of Light
Hydrocarbons in Stabilized Crude Oils
by Gas Chromatography, Approved
December 1, 2013, into § 173.121.
*
*
*
*
*
PART 173—SHIPPERS—GENERAL
REQUIREMENTS FOR SHIPMENTS
AND PACKAGINGS
19. The authority citation for part 173
continues to read as follows:
■
Authority: 49 U.S.C. 5101–5128, 44701; 49
CFR 1.81, 1.96 and 1.97.
20. Amend § 173.121 by:
a. Removing the word ‘‘or’’ from the
end of paragraph (a)(2)(iv);
■ b. Removing the period at the end of
paragraph (a)(2)(v) and adding ‘‘; or’’ in
its place; and
■ c. Adding paragraph (a)(2)(vi).
The addition reads as follows:
■
■
§ 173.121
group.
Class 3—Assignment of packing
(a) * * *
(2) * * *
(vi) Petroleum products containing
known flammable gases—Standard Test
Method for Determination of Light
Hydrocarbons in Stabilized Crude Oils
by Gas Chromatography (ASTM D7900)
(IBR; see § 171.7 of this subchapter)
where the initial boiling point is the
temperature at which 0.5 weight percent
is eluted when determining the boiling
range distribution.
*
*
*
*
*
PART 174—CARRIAGE BY RAIL
21. The authority citation for part 174
is revised to read as follows:
■
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Authority: 49 U.S.C. 5101–5128; 33 U.S.C.
1321; 49 CFR 1.81 and 1.97.
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22. Amend § 174.310 by:
a. Removing the semicolon at the end
of paragraph (a)(1) and adding a period
in its place;
■ b. Removing the ‘‘h’’ at the end of
paragraph (a)(2); and
■ c. Adding paragraphs (a)(6) and (7).
The additions read as follows:
■
■
§ 174.310 Requirements for the operation
of high-hazard flammable trains.
(a) * * *
(6) Oil spill response plans. The
additional requirements for petroleum
oil transported by rail in accordance
with part 130 of of this chapter.
(7) High-hazard flammable train
(HHFT) information sharing notification
for emergency response planning. The
additional requirements for notification
in § 174.312.
*
*
*
*
*
■ 23. Add § 174.312 to read as follows:
§ 174.312 HHFT information sharing
notification for emergency response
planning.
(a) Prior to operating high-hazard
flammable trains (HHFTs) as defined in
§ 171.8 of this subchapter, a railroad
must provide the information described
in paragraphs (b) and (c) to each State
Emergency Response Commission
(SERC), Tribal Emergency Response
Commission (TERC), or other
appropriate State-delegated agency in
each State through which it operates
HHFTs. The SERC, TERC, or other
appropriate State-delegated agency shall
further distribute the information to the
appropriate local authorities at their
request.
(b) At a minimum, the information
railroads are required to provide to the
relevant State or tribal agencies must
include all of the following:
(1) A reasonable estimate of the
number of HHFTs that the railroad
expects to operate each week, through
each county within the State or through
each tribal jurisdiction;
(2) The routes over which the HHFTs
will operate;
(3) A description of the hazardous
materials being transported and all
applicable emergency response
information required by subparts C and
G of part 172 of this subchapter;
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(4) An HHFT point of contact: At least
one point of contact at the railroad
(including name or email address, title,
phone number and address) who has
knowledge of the railroad’s
transportation of affected trains and
who is responsible for serving as the
point of contact for the SERC, TERC, or
other State or tribal agency responsible
for receiving the information; and
(5) If a route identified in paragraph
(b)(2) of this section is additionally
subject to the comprehensive spill plan
requirements in subpart C of part 130 of
this chapter, the information must
include a description of the response
zones (including counties and states)
and the contact information for the
qualified individual and alternate, as
specified under § 130.120(c) of this
chapter.
(c) The HHFT notification must be
maintained and transmitted in
accordance with all of the following
requirements:
(1) Railroads must update the
notifications for changes in volume
greater than 25%.
(2) Notifications and updates may be
transmitted electronically or by hard
copy.
(3) If the disclosure includes
information that a railroad believes is
security sensitive or proprietary and
exempt from public disclosure, the
railroad should indicate that in the
notification.
(4) Each point of contact must be
clearly identified by name or title, and
contact role (e.g., qualified individual,
HHFT point of contact) in association
with the telephone number. One point
of contact may fulfill multiple roles.
(5) Copies of the railroad’s
notifications made under this section
must be made available to the
Department of Transportation upon
request.
Issued in Washington, DC, on February 12,
2019, under authority delegated in 49 CFR
part 1.97.
Drue Pearce,
Deputy Administrator, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2019–02491 Filed 2–27–19; 8:45 am]
BILLING CODE 4910–60–P
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| File Type | application/pdf |
| File Modified | 2019-02-28 |
| File Created | 2019-02-28 |