Rule2024-13474
Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information
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Published
June 24, 2024
Effective
July 24, 2024
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA is amending the Hazardous Materials Regulations to require railroads that carry hazardous materials to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts. The amendments in this final rule address a safety recommendation of the National Transportation Safety Board and statutory mandates in The Fixing America's Surface Transportation Act, as amended by the Infrastructure, Investment, and Jobs Act, and complement existing regulatory requirements pertaining to the generation, maintenance, and provision of similar information in hard copy form, as well as other hazard communication requirements.
Full Text
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[Federal Register Volume 89, Number 121 (Monday, June 24, 2024)]
[Rules and Regulations]
[Pages 52956-52994]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-13474]
[[Page 52955]]
Vol. 89
Monday,
No. 121
June 24, 2024
Part III
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171, 174, and 180
Hazardous Materials: FAST Act Requirements for Real-Time Train Consist
Information; Final Rule
Federal Register / Vol. 89 , No. 121 / Monday, June 24, 2024 / Rules
and Regulations
[[Page 52956]]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 174, and 180
[Docket No. PHMSA-2016-0015 (HM-263)]
RIN 2137-AF21
Hazardous Materials: FAST Act Requirements for Real-Time Train
Consist Information
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: PHMSA is amending the Hazardous Materials Regulations to
require railroads that carry hazardous materials to generate in
electronic form, maintain, and provide to first responders, emergency
response officials, and law enforcement personnel, certain information
regarding hazardous materials in rail transportation to enhance
emergency response and investigative efforts. The amendments in this
final rule address a safety recommendation of the National
Transportation Safety Board and statutory mandates in The Fixing
America's Surface Transportation Act, as amended by the Infrastructure,
Investment, and Jobs Act, and complement existing regulatory
requirements pertaining to the generation, maintenance, and provision
of similar information in hard copy form, as well as other hazard
communication requirements.
DATES:
Effective Date: July 24, 2024.
Voluntary Compliance Date: June 24, 2024.
Delayed Compliance Date: For Class I Railroads June 24, 2025. For
Class II and III Railroads June 24, 2026.
FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, 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.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. What is the purpose of the regulatory action?
B. What are the key provisions?
C. What changed between the NPRM and the final rule?
D. What is the economic impact?
II. Electronic Hazard Communication for Rail Transportation
Emergency Response
A. What action is being taken?
B. What is PHMSA's authority for this action?
C. Does this action apply to me?
III. Background
A. What is train consist information?
B. What was required regarding train consist information prior
to this final rule?
C. How does this final rule impact existing special permits for
electronic train consist information?
D. How does train consist information affect rail transportation
safety?
E. How will the requirements for electronic train consist
information adopted in this final rule affect rail transportation
safety?
F. What does PHMSA mean by real-time?
G. How has PHMSA engaged stakeholders?
IV. Summary and Discussion of Comments
A. Summary of Comments Received
B. Applicability of Real-Time Electronic Train Consist
Information Requirements to Regional and Short Line Railroads
C. Emergency Notification of Rail Accidents and Incidents
Involving Hazardous Materials
D. Defining the Recipients of Train Consist Information
E. Maintenance of Both Paper and Electronic Train Consists
F. Availability of Train Consist Information in Real-Time
G. Timing of Updates to Train Consist Information
H. Applicability of Requirements to Freight Lines Operating on
Commuter/Passenger Rail Track
I. Origin/Destination Information
J. Emergency Response Point of Contact
K. Use of the Existing AskRail[supreg] Application To Comply
With This Rulemaking
L. Cost, Benefit, and Delayed Compliance Period
M. Comments Beyond the Scope of This Rulemaking
N. Additional Notice and Opportunity To Comment
V. Section-by-Section Review of Amendments
A. Sections 171.8 and 180.503
B. Section 174.26
C. Section 174.28
VI. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Orders 12866 and 14094, and DOT Regulatory Policies
and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Paperwork Reduction Act
G. Unfunded Mandates Reform Act of 1995
H. Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International Trade Analysis
K. National Technology Transfer and Advancement Act
L. Cybersecurity and Executive Order 14082
M. Severability
I. Executive Summary
A. What is the purpose of the regulatory action?
The Pipeline and Hazardous Materials Safety Administration (PHMSA)
is amending the Hazardous Materials Regulations (HMR; 49 Code of
Federal Regulations (CFR) parts 171 to 180) in response to
congressional mandates and a safety recommendation of the National
Transportation Safety Board (NTSB) and its existing statutory safety
authorities. This final rule requires railroads transporting hazardous
materials to generate train consist information in electronic form,
maintain that information off-the-train, and update that information in
real-time. Railroads must provide that information to authorized
federal, state, and local first responders, emergency response
officials, and law enforcement personnel \1\ along the train route who
could be or are involved in the response to, or investigation of, an
accident, incident, or public health or safety emergency involving the
rail transportation of hazardous materials in advance of their arrival
to an accident or incident.
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\1\ PHMSA understands ``authorized Federal, State, and local
first responders, emergency response officials, and law enforcement
personnel'' may include personnel from any of federal agencies
(e.g., PHMSA, Federal Railroad Administration, National
Transportation Safety Board, U.S. Environmental Protection Agency,
or Federal Emergency Management personnel) involved in the response
to or investigation of a hazmat incident during rail transportation,
or organizations that state or local governments authorize to
perform emergency response activities. PHMSA further understands
that ``local first responders'' includes tribal and territorial
first responders.
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Additionally, immediately following either an accident involving a
train carrying hazardous materials or an incident involving the release
or suspected release of hazardous material from a train, the railroad
operating the train must make an emergency notification telephonically
and provide train consist information electronically to the primary
Public Safety Answering Point (PSAP) \2\ responsible for the area where
the event occurred as well as the track owner (if the track owner is
different from the railroad operating the train). PHMSA also adopts a
requirement that railroads must test their emergency notification
system at least annually. In updating that electronic train consist
information, railroads must also update the local copy version of the
same information
[[Page 52957]]
provided to train crews in printed paper copy. Updating both the local
printed paper copy maintained by the train crew and the electronic
version of that information maintained off the train ensures the
information is consistent, accurate, and available when needed most.
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\2\ A PSAP is an entity responsible for receiving 9-1-1 calls
and processing those calls according to a specific operational
policy. Primary PSAPs are responsible for directly receiving 9-1-1
and other emergency calls and may route them to other PSAPs for
response.
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PHMSA expects this enhanced, proactive approach will ensure that
emergency response personnel have timely, accurate, actionable
information regarding the hazardous materials being transported and the
hazards they may encounter when they are en route to or reach the scene
of a rail accident or incident, thereby reducing the risks to
surrounding communities and the environment while expediting site
remediation, restoration of rail service, and community engagement
efforts as investigation activity proceeds. While PHMSA understands the
availability of electronic real-time train consist information may not
have changed the outcome of the recent Norfolk Southern train
derailment in East Palestine, Ohio, that accident and similar events
that have occurred in recent years highlight the importance of
providing emergency response personnel with timely, complete, and
accurate information regarding hazardous materials within a train--as
any additional time for responders to prepare for what they will
encounter may reduce risks and result in significant public safety,
commercial, and environmental benefits.
The amendments in this final rule respond to a mandate in Section
7302 of The Fixing America's Surface Transportation Act (FAST Act, Pub.
L. 114-94), as amended by the Investment Infrastructure and Jobs Act
(Pub. L. 117-58),\3\ to require Class I railroads \4\ transporting
hazardous materials to generate accurate, real-time, electronic train
consist information that must be provided ``to State and local first
responders, emergency response officials, and law enforcement personnel
that are involved in the response to or investigation of an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials.'' However, consistent with the
broader language within an NTSB safety recommendation following the
2005 collision of two freight trains near Anding, Mississippi, PHMSA is
applying the final rule requirements to all railroads that transport
hazardous materials in light of the risks to public safety and the
environment from delay in responding to releases from smaller Class II
and III railroads. In this final rule, PHMSA is adopting alternative
compliance methods as an option for Class III railroads to reduce the
regulatory burden on these small businesses while still improving the
ability of emergency responders to access accurate train consist
information from these railroads. Additionally, while the proposed rule
was more narrowly focused on providing information to emergency
response personnel, thanks to public comments, this final rule adopts
an approach that provides critical information to a broader group of
responders while reducing the burden on railroads.
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\3\ Codified at 49 U.S.C. 20103 note.
\4\ The Surface Transportation Board categorizes rail carriers
into Class I, Class II, and Class III based on carrier's annual
revenues. The threshold for Class I is a carrier earning revenue
greater than approximately $1 billion/year (2023); the threshold for
Class II rail carriers is approximately $46 million/year; and the
threshold for Class III rail carriers is any value less than the
threshold for Class II railroads.
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B. What are the key provisions?
This section outlines the key provisions of the final rule. For
benefit of the reader, a discussion of the changes made between this
final rule and the notice of proposed rulemaking (NPRM) \5\ follows in
section I.C. below.
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\5\ 88 FR 41541 (Jun. 27, 2023). <a href="https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf">https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf</a>.
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Definition of ``Train Consist Information:'' PHMSA is amending the
definition of ``train consist'' at Sec. 171.8 to be recharacterized as
``train consist information,'' meaning a hard (printed) copy or
electronic record of the position and contents of hazardous materials
rail cars of a train where the record includes information required by
Sec. 174.26. Specifically, the information includes the contact
information for a railroad-designated emergency point of contact; the
point of origin and destination of the train; shipping paper
information required by Sec. Sec. 172.201 to 172.203; and emergency
response information required by Sec. 172.602(a). PHMSA also makes a
conforming revision to Sec. 180.503 to delete a definition of ``train
consist'' that is not used in that part.
Notice to Train Crews: PHMSA is amending the requirements in Sec.
174.26 to provide train consist information (as PHMSA defines that term
at Sec. 171.8) in local printed paper form to train crews prior to
movement of hazardous materials by rail. Specifically, PHMSA clarifies
responsibilities for railroads to provide a local printed paper copy
version of train consist information to train crews; for train crews to
update that local copy version of train consist information; and that
the local copy of the train consist information must be maintained in a
conspicuous location of an occupied locomotive or in the possession of
a train crew member if they evacuate the locomotive during an accident
or incident. Railroads must also ensure that train consist information
is generated and updated in electronic form; maintained offsite of the
train itself; and immediately accessible by the railroad's designated
emergency response point of contact. Railroads must ensure the local
printed paper copy and electronic train consist information maintained
off the train are at all times accurate and consistent.
Note that Class III railroads complying with the alternative
compliance method adopted in this final rule are not required to
maintain and update train consist information in electronic form.
Instead, they must have a written plan that identifies how the railroad
will provide accurate train consist information to local emergency
responders; inform local emergency response organizations and PSAPs
about their plan (and any material changes made to the plan after the
original notification); enact the plan during incidents or accidents
requiring emergency response; and test the plan at least annually.
Emergency Response Information Sharing Requirements: PHMSA creates
a new section at Sec. 174.28 that establishes real-time, electronic
train consist information-sharing requirements for hazardous materials
transported by rail. Railroads transporting hazardous materials must
generate and provide train consist information by electronic means to
authorized federal, state, and local first responders; emergency
response officials; and law enforcement personnel who could be involved
in the response to--or investigation of--an accident, incident, or
public health or safety emergency involving the rail transportation of
hazardous material. Information generated and shared in accordance with
this section must be accurate; provided in a secure and confidential
manner consistent with the intent of the FAST Act; and accessible at
any time by authorized federal, state, and local first responders,
emergency response officials, and law enforcement personnel.
In the event of either an accident involving a train carrying
hazardous materials, or incident involving the release or suspected
release of hazardous material, railroads operating trains carrying
hazardous material are required to immediately notify the primary PSAP
responsible for the area where the incident occurred telephonically and
the track owner (if
[[Page 52958]]
the track owner and the railroad operating the train are different),
and provide the train consist information to the primary PSAP/track
owner electronically in a form that the PSAP/track owner is capable of
readily accessing (i.e., a form the PSAP/track owner can access and use
based on the specific information technology resources they have
available) to assist in response and investigation efforts. This
emergency notification requirement applies to situations that require
response from local emergency response agencies. For example, PHMSA
does not expect that a railroad will provide emergency notification and
train consist information to the primary PSAP responsible for the area
where the incident occurred due to the release of a minimal amount of
material from the routine operation of service equipment, provided the
release does not cause property damage, injury to employees, or any
danger to public safety or health. PHMSA emphasizes that the emergency
notification requirement adopted in this final rule does not affect a
railroad's responsibility to continue to comply with all applicable
local, state, and federal reporting requirements related to releases of
hazardous materials, hazardous substances, oil, or any similar
subjects.
Class III railroads may comply with the requirements applicable to
Class I and II railroads, or they may comply with an alternative method
for providing train consist information to authorized federal, state,
and local first responders, emergency response officials, and law
enforcement personnel. This alternative method is discussed in greater
detail in Sections IV.B and V.C below. To summarize the alternative
requirements, Class III railroads must develop a written plan that
identifies how the railroad will provide emergency notification and
accurate train consist information to local emergency responders;
notify emergency responders along their route of the contents of the
plan (and any material changes made to the plan after the original
notification); \6\ conduct a test at least annually to demonstrate the
effectiveness of the plan; and enact the plan in the event of a rail
incident or accident requiring response from local emergency response
agencies.
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\6\ In this context, PHMSA notes our expectation that a Class
III railroad utilizing the alternate compliance method will notify
local emergency response agencies of any significant changes to the
procedures outlined in the plan, such as a change to the type of
technology used to provide accurate train consist information.
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Finally, railroads must develop a test program and conduct tests of
their emergency notification and electronic train consist transmission
system at least annually, to ensure reliability of these systems across
their network. Class III railroads complying with the alternative
compliance method must conduct a test, at least annually, demonstrating
that their written plan is effective for emergency notification and
transmission of train consist information.
C. What changed between the NPRM and the final rule?
In response to comments received to the NPRM, PHMSA is making the
following changes in this final rule. See Section IV for further
details on the reasoning and impact of these changes.
Table--Changes Between the NPRM and the Final Rule
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NPRM proposal Final rule requirement Explanation
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<bullet> One-year compliance period <bullet> One-year compliance period <bullet> This extension in the
for all railroads. for Class I railroads. compliance period for Class II and
<bullet> Two-year compliance period III railroads provides these
for Class II and III railroads. smaller entities with additional
time to make the necessary changes
to their operations and systems to
comply with the requirements of
this final rule.
<bullet> Train consist information <bullet> Train consist information <bullet> This revision of a proposed
must include information on the must include the origin and requirement aligns the final rule
origin and destination of all destination of the train. more closely with the FAST Act
hazardous materials transported on mandate for data on train origin
the train. and destination, which will provide
responders with information on the
train's direction of travel.
<bullet> Railroads must provide <bullet> Railroads must provide <bullet> This revision is intended
prompt emergency notification of an immediate emergency notification of to ensure the incident commander
accident or incident involving an accident or incident involving receives critical train consist
hazardous materials to every state- hazardous materials to the primary information without providing
authorized local first responder PSAP responsible for the area where confusing notifications to
within a 10-mile radius. the incident occurred unaffected jurisdictions.
telephonically and the track owner <bullet> This adjusted notification
(if the track owner is different requirement is intended to ensure
than the railroad operating the railroads have an operable system
train). in place to make the emergency
<bullet> Railroads must test their notification, and that operational
emergency notification system at procedures are practiced regularly.
least annually, and create and
retain records of the results of
the tests (e.g., was the test
notification received and
acknowledged immediately).
<bullet> The contact information for <bullet> The contact information for <bullet> This revision to a proposed
the railroad's designated emergency the railroad's designated emergency requirement acknowledges that
point of contact must include name, point of contact must include a including a specific individual's
title, e-mail address, and phone phone number. name, title, and email address is
number. not practical for the constant,
round-the-clock operational nature
of rail transportation of hazardous
materials.
<bullet> All railroads are subject <bullet> There are alternative <bullet> PHMSA concludes that
to the same requirements in Sec. compliance requirements for Class different operational
174.28 for Electronic Train Consist III railroads. considerations for Class III
Information. railroads and relative economic
burdens for small businesses must
be accounted for to facilitate
effective implementation, and thus
has created an alternative
compliance requirement for Class
III railroads.
<bullet> Train crews may use <bullet> Train crews may use <bullet> This editorial revision to
electronic or radio communications electronic, radio communications, the proposed requirement clarifies
to notify the railroad to update or other means to notify the further the flexibility railroads
electronic train consist railroad to update the electronic can use to communicate train
information. train consist information. consist changes to their
centralized electronic system.
<bullet> The requirements for <bullet> The requirements for <bullet> This editorial revision to
electronic real-time train consist electronic real-time train consist a proposed requirement clarifies
information apply to a railroad information apply to a railroad that the railroad operating a train
carrying hazardous material. operating a train carrying carrying hazardous materials is
hazardous material. subject to the requirements of this
rule, rather than the track owner
(if the track owner is different
that the railroad operating the
train).
[[Page 52959]]
<bullet> Emergency notifications <bullet> Emergency notifications <bullet> This editorial revision
must be made promptly. must be made immediately. (replacing ``promptly'' with
``immediately'') better conveys
PHMSA's intention in the NPRM that
railroads notify the primary PSAP/
track owner as quickly as possible
after learning of the accident or
incident. ``Immediately'' is
understood to have more urgency
than ``promptly.''
<bullet> n/a. <bullet> The proposed paragraphs in <bullet> The creation of a new
Sec. 174.28(c) (security) and (d) paragraph (c) in Sec. 174.28 to
(provision of train consist authorize alternative compliance
information) are redesignated (d) requirements for Class III
and (e), respectively. railroads requires redesignation of
the proposed (c) and (d) to (d) and
(e).
<bullet> The NPRM provided no <bullet> PHMSA is clarifying that <bullet> It was not PHMSA's intent
clarification on the types of only accidents and incidents that to require the notification of
accidents or incidents involving require activation of local local emergency response resources
release or suspected release of emergency response resources must and provision of train consist
hazardous materials requiring be immediately reported and information in circumstances that
emergency notification. accompanied with electronic train do not require emergency response.
consist information.
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D. What is the economic impact?
PHMSA estimates the final rule impacts six Class I railroads, 14
Class II railroads, and 638 Class III railroads, and estimates the
undiscounted total financial impact of the rule over a 10 year analysis
period to be about $17.7 million in 2022 dollars, for an average annual
cost of $1.8 million. The discounted total cost of the rule over the
analysis period is estimated to be $15.8 million in 2022 dollars at a
two percent discount rate, for an average annual cost of $1.6 million.
The benefits of this final rule will depend greatly on the
effectiveness of having timely access to real-time train consist
information to improve authorized federal, state, and local first
responders, emergency response officials, and law enforcement
personnel's ability to respond to rail accidents and incidents, which
may be a high-consequence/low-probability event such as the Norfolk
Southern train derailment at East Palestine, Ohio.
PHMSA anticipates the final rule will improve authorized federal,
state, and local first responders, emergency response officials, and
law enforcement personnel's ability to promptly identify all the
hazardous materials cars involved in an accident and to assess the
threat from a hazardous materials release in a timely manner. PHMSA
estimated the annual damage cost of hazardous material incidents on
rail to be $15 million in 2022 dollars. Therefore, the rule would have
to reduce damage costs by about 12 percent for the monetized benefits
of the rule to equal costs. The following table summarizes the annual
costs and benefits of the major provisions of the final rule in
constant 2022 dollars.
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Average annual cost
Requirement -------------------------------- Benefit Breakeven
Undiscounted 2%
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Amending the definition of $327,847 $291,089 By aligning the Cost-effective if this
train consist information. definition of the FAST requirement reduces
Act with the language the consequences of
in the existing hazardous material
regulation, this incidents by rail by
amendment improves about 11.8 percent.
regulatory clarity.
Amending notice to train crew.. 1,169,018 1,036,601 By improving emergency
personnel's ability to
promptly identify all
the hazardous
materials involved in
an accident and assess
the threat from a
hazardous materials
release, the
provisions will reduce
injuries and
fatalities, material
loss and response
costs, and delays
caused by closures.
New emergency response 275,018 251,219
information sharing
requirement.
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Total...................... 1,771,883 1,578,908
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As illustrated by the Norfolk Southern train derailment incident at
East Palestine, Ohio, such accidents can have substantial impacts that
are not quantified by the final regulatory impact analysis (RIA) in
this rulemaking--including the long-term environmental concerns and
health risks (both physiological and psychological) for local
residents. Research also shows that such accidents can reduce property
values, which--in turn--can slow down economic activity in the area.\7\
Additionally, of the 140,000 total route-miles of track in the U.S.,
104,000 miles are in rural and tribal areas, suggesting that train-
related hazardous material incidents mainly happen in areas populated
by disadvantaged communities.\8\ PHMSA acknowledged and considered
these unquantified factors in adopting the provisions of the
rulemaking.
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\7\ For example, a study that examines the impact of 33
derailments involving hazardous material on property values in New
York State between 2004 and 2013 found that, on average, a
derailment depreciates housing values within a one-mile radius by
five to eight percent (Chuan Tang et al. (2020). Rail accidents and
property values in the era of unconventional energy production.
Journal of Urban Economics, 120, <a href="https://doi.org/10.1016/j.jue.2020.103295">https://doi.org/10.1016/j.jue.2020.103295</a>.
\8\ See PHMSA, ``Improving Rail in Rural Communities,'' <a href="https://railroads.dot.gov/rural">https://railroads.dot.gov/rural</a> (last accessed May 3, 2023).
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[[Page 52960]]
II. Electronic Hazard Communication for Rail Transportation Emergency
Response
A. What action is being taken?
In this final rule, PHMSA adopts a requirement for railroads
transporting hazardous materials to generate, maintain externally to
the train itself, and update in real-time, accurate train consist
information in electronic form, and to make this information available
to authorized federal, state, and local first responders, emergency
response officials, and law enforcement personnel at all times upon
request. Further, PHMSA requires that, in the event of either an
accident involving a train carrying hazardous materials, or an incident
involving the release or suspected release of hazardous material,
railroads operating trains carrying hazardous material must immediately
telephonically notify the primary PSAP responsible for the area (i.e.,
having jurisdiction) where the incident occurred, and forward that
train consist information to the primary PSAP and the track owner (if
the railroad operating the train and the track owner are different) in
a form that the PSAP and track owner are capable of readily accessing.
Class III railroads may comply with the requirements adopted for Class
I and II railroads, or they may comply with the alternative
requirements adopted in this rule for planning, notifying, and
providing accurate train consist information to local emergency
response agencies. PHMSA also makes conforming and clarifying revisions
to previously existing HMR requirements governing notification (via
local printed paper copy documentation) of train crews for trains
carrying hazardous material.
PHMSA is adopting a delayed compliance period of one year from the
date of publication of this final rule for Class I railroads to allow
railroads sufficient time to implement (via conducting training,
procurement and installation of pertinent equipment and software, and
development of procedures and security protocols) measures for
generating, organizing, and providing train consist information in
electronic form to authorized federal, state and local first
responders, emergency response officials, and law enforcement
personnel. PHMSA is adopting a delayed compliance period of two years
for Class II and III railroads to allow these smaller railroads
additional time to implement the systems and procedures necessary to
comply with this final rule. Detailed discussions of comments received
to the rulemaking docket are provided in Section IV below, and
discussion of changes to sections of the HMR based on this rule are
provided in Section V below.
B. What is PHMSA's authority for this action?
PHMSA's statutory authority for this action is twofold. Section of
7302 of the FAST Act, as amended by the Investment Infrastructure and
Jobs Act, directs the Secretary of Transportation (Secretary) to issue
regulations to require Class I railroads transporting hazardous
materials to generate accurate, real-time, electronic train consist
information that must be provided ``to State and local first
responders, emergency response officials, and law enforcement personnel
that are involved in the response to or investigation of an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials.'' Specifically, Section
7302(a)(1) directs the Secretary to require that Class I railroads
include the following data in connection with such electronic, real-
time train consist information:
<bullet> Identity, quantity, and location of hazardous materials on
a train;
<bullet> Point of origin and destination of the train;
<bullet> Emergency response information or resources required by
the Secretary; and
<bullet> Emergency response point of contact designated by the
Class I railroad.
Section 7302(a)(4) directs the Secretary to prohibit any Class I
railroad, employee, or agent from withholding, or causing to be
withheld, that information from authorized entities. Section 7302(a)(5)
directs the Secretary to establish security and confidentiality
protections, including protections from the public release of
proprietary information or security-sensitive information, to prevent
the release of real-time train consist information to unauthorized
persons. Finally, Section 7302(a)(6) directs the Secretary to allow
each Class I railroad to enter into a memorandum of understanding with
any Class II railroad or Class III railroad that operates trains over
the Class I railroad's line to incorporate the Class II railroad's or
Class III railroad's train consist information.
In addition to the FAST Act mandate, the Federal Hazardous
Materials Transportation Act (HMTA; 49 U.S.C. 5101 et seq.) at 49
U.S.C. 5103 gives the Secretary general authority to issue regulations
for the safe transportation of hazardous material in commerce.
The Secretary delegates the above statutory authorities to PHMSA at
49 CFR 1.97.
C. Does this action apply to me?
The action in this final rule applies to all railroads that
transport hazardous materials in commerce. Although the FAST Act
contains an explicit requirement only for Class I railroads
transporting hazardous materials to generate and provide accurate,
real-time, electronic train consist information, in this final rule
PHMSA adopts requirements--pursuant to its delegated general authority
under the HMTA to make regulations for the safe transportation of
hazardous materials including those materials transported by rail--for
Class II railroads to also compile, update, and forward accurate, real-
time train consist information in electronic form. Class III railroads
may comply with the requirements adopted for Class I and II railroads,
or they may comply with the alternative requirements adopted in this
rule for planning, notifying, and providing accurate train consist
information to local emergency response agencies.
PHMSA notes that this broader approach to include all railroads
transporting hazardous materials in the United States is consistent
with the inclusive language within NTSB safety recommendation R-07-04
issued following the 2005 collision of two freight trains containing
hazardous materials near Anding, Mississippi. Safety recommendation R-
07-04 called on PHMSA to require that all railroads immediately provide
real-time train consist information to emergency responders following
an accident or incident involving rail transportation of hazardous
material.\9\
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\9\ NTSB, NTSB/RAR-07/01, ``Collision of Two CN Freight Trains
near Anding, Mississippi on July 10, 2005'' at 48 (Mar. 2007) (NTSB
Report), <a href="https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf">https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf</a>.
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NTSB's safety recommendation is consistent with the common-sense
proposition that rail transportation of hazardous material is not
limited to Class I railroads, and thus the prospect of an accident or
emergency is also not limited to those railroads. Class II and III
railroads (hereinafter referred to as ``regional and short line
railroads'') also transport hazardous material and account for more
than one third of freight rail in the United States, covering about
50,000 miles of the 140,000-mile U.S. freight rail network. Further,
regional and short line railroads are typically the first and last mile
of service, and often serve as the only connection of rural, small
town,
[[Page 52961]]
and tribal areas of the United States to the nationwide network of
railroads--similarly, emergency response personnel within those areas
are likely to be the only personnel close enough to the incident or
accident to respond quickly. Thus, it is vital for authorized federal,
state, and local first responders, emergency response officials, and
law enforcement personnel in areas served by these railroads to also
have access to accurate and real-time train consist information. In
this final rule, PHMSA is providing a longer delayed compliance period
(two years) for Class II and III railroads in recognition that they may
need additional time to develop the necessary systems and procedures to
comply with this final rule.
Finally, PHMSA is providing clarification in this final rule that
the requirement to provide real-time train consist information applies
to the railroad operating the train carrying hazardous materials, not
the track owner--if the track owner and the railroad operating the
train are different entities. For example, if a freight railroad is
utilizing a passenger railroad's tracks to move a train carrying
hazardous materials, the freight railroad is the entity responsible for
complying with the real-time train consist requirements PHMSA is
adopting in this final rule.
III. Background
A. What is train consist information?
The train consist generally refers to the contents of a train
including the position of locomotives and cars, as well as both non-
hazardous and hazardous freight within those cars. Prior to the
adoption of this final rule, the HMR defined ``train consist'' in Sec.
171.8 as ``a written record of the contents and location of each rail
car \10\ in a train.'' In this final rule, PHMSA is adopting the
definition of train consist information as proposed in the NPRM:
``Train consist information means hard (printed) copy or electronic
record of the position and contents of each hazardous material rail car
where the record includes the information required by Sec. 174.26 of
this subchapter.''
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\10\ A rail car means a car designed to carry freight or non-
passenger personnel by rail, and includes a box car, flat car,
gondola car, hopper car, tank car, and occupied caboose.
---------------------------------------------------------------------------
B. What was required regarding train consist information prior to this
final rule?
Prior to publication of this final rule, the HMR at Sec. 174.26(a)
required that railroad train crews must have a local paper document
that reflects the current position in the train of each rail car
containing a hazardous material, and must update it to indicate changes
in the placement of a hazardous material rail car within the train.\11\
The regulations required the train crew to update the document, and
allowed for updates by handwriting or by appending or attaching another
document. Additionally, Sec. 174.26(b) required that the train crew
must also have a copy of a document showing the information required on
hazardous materials shipping papers, including applicable emergency
response information.
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\11\ PHMSA notes that the train consist documentation
requirements discussed throughout this final rule complement other
hazard communication requirements within part 172 pertaining to
marking (subpart D), labelling (subpart E), and placarding (subpart
F) of hazardous material packages and transport containers and
vehicles.
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A common practice for railroads in satisfying the above regulatory
requirements was capturing all required information in a single hard
copy (generally printed) document (sometimes referred to as the ``train
consist'' or ``train list'') that is provided to train crews. Some
railroads, primarily those designated as Class I, compile information
in an electronic database (which could be maintained by the railroad
itself, or by a third-party vendor utilizing the ``cloud'') and provide
hard copies of some of the database information to the train crew.
Those electronic databases may include more information than just the
contents and location of a hazardous material rail car in the train;
they may incorporate information linking the hazardous material at each
location in the train with shipping papers (commonly referred to as
bills of lading, required by part 172, subpart C) and emergency
response information (required by part 172, subpart G).
C. How does this final rule impact existing special permits for
electronic train consist information?
Starting in 2019, several railroads applied for and were granted
special permits to allow train consist information documentation to be
maintained and communicated using only electronic means in connection
with specific service routes. To date, seven special permits (SPs) have
been issued,\12\ including for six Class I railroads: DOT-SP 20954
(issued to BNSF Railway Company); DOT-SP 21046 (issued to CSX
Transportation and currently expired); DOT-SP 21053 (issued to Canadian
National Railway Company); DOT-SP 21323 (issued to Canadian Pacific
Railway Company and currently expired); DOT-SP 21059 (issued to Union
Pacific Railroad Company); and DOT-SP 21110 (issued to Norfolk Southern
Railroad). A single special permit (DOT-SP 21266) has been issued to a
Class III railroad: Richmond Pacific Railroad. The special permits
provide operational controls and reporting requirements, including the
following:
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\12\ Special permits may be reviewed at <a href="http://www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search">www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search</a>. DOT-SPs 20954,
21059, 21110 and 21266 are active while DOT-SP 21053 is active under
pending renewal, along with several party-to applications, and DOT-
SPs 21046 and 21323 expired by its terms. PHMSA also notes that
although Norfolk Southern is a grantee of a special permit, the
routes that they included in their application did not include the
route along East Palestine, Ohio.
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<bullet> Train consist information must be readily available by
electronic means to government officials (e.g., emergency response
personnel);
<bullet> Updates of the train consist information must be done
electronically and in real-time;
<bullet> More than one method of electronic information-sharing
must be available to first responders should the primary method (i.e.,
cellular network devices) not work, as well as a redundant
communication option should electronic service be unavailable;
<bullet> Upon notification of an incident to response authorities,
the train consist information must be provided;
<bullet> Training must be provided to first responders along
portions of a route without cellular service on methods of
communication during an incident; and
<bullet> Incidents where information was shared electronically with
first responders must be documented, and a consolidated report must be
provided to PHMSA discussing successes and any corrective actions.
Electronic train consist information has been provided to emergency
responders in accordance with the requirements of these special
permits. For example, BNSF Railway Company has reported four occasions
where electronic train consist information was shared with first
responders to assist in prompt emergency response. However, PHMSA is
not prepared to adopt the requirements of these special permits into
the HMR for general use at this time. We believe more operational
experience is needed in both ordinary service--particularly in remote
areas where communication services may not be available--and during
rail emergencies before we can rely on electronic devices for the train
crew's copy of train consist information for all
[[Page 52962]]
routes in the United States. Therefore, PHMSA will continue to consider
requests for renewal, party status, and new applications for special
permits related to electronic devices used to display and transmit the
train crew's copy of train consist information in accordance with our
standard procedures. (See 49 CFR part 107, subpart B.)
D. How does train consist information affect rail transportation
safety?
Train consist information aids federal, state, and local first
responders, emergency response officials, and law enforcement personnel
in ensuring coordinated action to assess an accident, incident, or
public health or safety emergency involving hazardous materials in rail
transportation. This communication in turn informs the appropriate
response action (e.g., selecting the correct fire suppression media)
precisely when every second counts.
Officials typically rely heavily on this information--along with
hazard communication on the railcars themselves required pursuant to
part 172 requirements pertaining to marking (subpart D), labeling
(subpart E), and placarding (subpart F)--for timely awareness about
hazardous material on a train in emergency situations. The local copy
of train consist information maintained by the crew can often be the
only accurate basis of knowledge on the hazardous material within a
train because marking, labeling, and placarding may be damaged or
inaccessible (due to fire, hazardous material release, or orientation
of the rail car); train crews may be injured or unavailable; or
wireless telecommunications service may be limited. There is a premium
on having a common understanding of the hazardous material on the train
as coordinated response efforts commence because emergency response may
involve personnel from different and distant jurisdictions converging
on a single location at different times.\13\ Timely, accurate train
consist information also ensures investigation efforts by federal and
state personnel can promptly identify systemic safety issues meriting
broader dissemination, and address community concerns regarding the
availability and reliability of information following an accident or
incident.
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\13\ PHMSA notes that if an incident or accident occurs in a
rural, small town, or tribal areas, local emergency response
personnel may be the only personnel who can respond promptly to the
incident or accident.
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An example taken from a 2007 NTSB investigation report \14\
underscores the importance of the availability of timely, accurate
train consist information documentation. In the early morning hours of
July 10, 2005, two Canadian National Railway Company (CN) trains
carrying mixed freight including hazardous material collided head-on in
Anding, Mississippi. The collision resulted in the derailment of six
locomotives and 17 cars. About 15,000 gallons of diesel fuel were
released from the locomotives and resulted in a fire that burned for
roughly 15 hours. There also was a limited release of hazardous
materials from venting tank cars; however, that did not contribute to
the severity of the accident. Two crewmembers from each train were
killed in the accident and the train consist information aboard the
locomotives was destroyed. Nearly 100 residents from the surrounding
community were evacuated from the area as a precaution. The accident
ultimately resulted in approximately $10 million (in 2005 dollars) of
property damage and environmental clean-up costs.
---------------------------------------------------------------------------
\14\ NTSB Report at 2-10.
---------------------------------------------------------------------------
When emergency responders arrived on the accident scene within a
half-hour of the collision, it was dark; the fire was intense; and
heavy black smoke prevented visual identification of all the hazardous
material tank cars in the wreckage. The first CN official arrived at
the scene an hour after the collision and told emergency responders
that he did not have any train consist information documentation or
knowledge about the hazardous materials on either train. The absence of
train crews to pass along train consist information and the inability
to access the information on the locomotive--i.e., the lack of
immediately available train consist information--severely restricted
the ability of emergency responders to make a quick assessment of the
potential for a hazardous materials release and thus respond
appropriately.
The CN official obtained accurate train consist information on the
northbound train via cell phone from the CN dispatcher and provided it
to emergency responders, but cell phone service was disrupted before
any information about the southbound train could be obtained. Without a
document for the southbound train, unsuccessful attempts were made by
response personnel on-scene to identify potential hazardous material
threats based on placarding and tank car stenciling--i.e., visible
hazard signage and markings on the rail cars. More than two-and-a-half
hours after the collision, another CN employee who traveled from
Jackson, Mississippi, (roughly 45 minutes away from the accident)
delivered copies of the train consist information for both trains--but
the information he delivered for the southbound train did not
accurately reflect the actual makeup of the southbound train at the
time of the accident. It was nearly another hour (almost four hours
since the collision) before CN officials and emergency responders were
able to develop an accurate listing of the derailed cars from the
southbound train involved in the fire by visually surveying the scene.
Only after being able to determine which hazardous materials were being
conveyed on the train was it safe for emergency responders to begin
moving cars and applying aqueous film forming foam to suppress the
fires at the site. It would be roughly 14 hours after the collision
before the fire was declared suppressed.
In reviewing the collision and emergency response efforts, the NTSB
concluded that the lack of timely information on the contents of each
train--between the loss of train crew personnel, the damaging of
stenciling and hazard placarding, and CN's failure to provide timely
and accurate train consist information for both trains (particularly
the southbound train)--significantly hampered emergency response
efforts. The NTSB consequently issued safety recommendation R-07-04
calling on PHMSA to require that all railroads immediately provide
real-time train consist information to emergency responders following
an accident or incident involving rail transportation of hazardous
material.\15\
---------------------------------------------------------------------------
\15\ See NTSB Report at 48 (``With the assistance of the Federal
Railroad Administration, require that railroads immediately provide
to emergency responders accurate, real-time information regarding
the identity and location of all hazardous materials on a train.'').
---------------------------------------------------------------------------
The importance of timely, accurate train consist information is
also underscored by the recent Norfolk Southern train derailment in
East Palestine, Ohio. Although NTSB's investigation of that derailment
is ongoing, the NTSB noted during a press conference announcing their
preliminary findings on February 23, 2023, that many of the hazardous
materials placards displayed on the tank cars melted in the ensuing
fire following the derailment.\16\ Firefighters who
[[Page 52963]]
responded to the incident from more than 30 minutes away also noted
that they didn't gain access to information about the train consist
until well after they arrived on scene. PHMSA notes that in such
scenarios, emergency response personnel may have to rely on the train
consist information provided by the train crew during their initial
assessment of the incident and while planning initial response actions.
Notably, too, the East Palestine, Ohio, accident exemplifies how
investigation efforts by regulatory officials into potential systemic
issues revealed by an incident (or to assuage community anxieties
regarding the response effort) can often occur simultaneously with
incident response efforts at the site.
---------------------------------------------------------------------------
\16\ NTSB, Preliminary Report No. RRD23MR005, ``Norfolk Southern
Railway Train Derailment with Subsequent Hazardous Material Release
and Fires--East Palestine, Ohio--Feb. 3, 2023 (Feb. 23, 2023),
<a href="https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf">https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf</a>.
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E. How will the requirements for electronic train consist information
adopted in this final rule affect rail transportation safety?
Prior to the adoption of this final rule, the HMR imposed some
documentation requirements pertaining to hazardous material within a
train. Specifically, each of Sec. Sec. 171.8 (``written record'') and
174.26 (``copy of a document'') contemplated that a ``train consist''
is a printed, hard copy, relating only high-level information (the
``contents and location of each rail car in a train'') pertaining to
any hazardous materials being transported. Although provisions
elsewhere in the HMR governing emergency response (specifically, part
172, subpart G) contemplate that train crews will need to have, or have
``immediate'' access to, more fulsome information (regarding hazardous
material technical name, emergency response information, emergency
response telephone numbers, etc.), Sec. 172.602(b) similarly
contemplates that information will be in hard copy (``printed'') form
rather than electronic form.
The limited documentation requirements in the HMR prior to the
adoption of this final rule contributed to delays in emergency response
actions and potentially inaccurate information being provided to
emergency response personnel at precisely the same moment when
accurate, timely information was critical to response efforts. The
success of any response effort turns on the accuracy of information
regarding the precise hazards confronting emergency response personnel
and the surrounding community. But as illustrated by both the Anding,
Mississippi, collision and the East Palestine, Ohio, derailment,
emergency response personnel may not be able to rely on hazard
communication placarding or stenciling to know with confidence whether,
and in which car, a train is carrying hazardous material as those
hazard communication tools may have been obscured (e.g., through
burning) or been rendered inaccessible. Moreover, emergency response
personnel cannot necessarily rely on the train crew or the hard copy of
the train consist information they may have onboard. As in the Anding,
Mississippi, collision, train crews can become incapacitated and hard
copies of the train consist information may be destroyed in the
incident. Even if those resources are available, they may only be
available in the form of a single document or to a limited number of
persons on the train crew, thereby creating the potential for
conflicting information or bottlenecking of critical information within
(potentially multi-disciplinary and multi-jurisdictional) response
efforts.\17\ Additionally, the fact that emergency response personnel
converging on the site from multiple jurisdictions may not have access
to that information until they arrive forfeits opportunities to begin
reviewing pertinent immediate actions and coordinating response efforts
while en route to the site--which may add more delay in the critical
moments immediately following an accident or incident.\18\ Lastly,
because investigation efforts often proceed nearly simultaneously with
emergency response, delays in obtaining accurate train consist
information can hamper investigation efforts to identify systemic
issues or even an imminent hazardous materials transportation safety
hazard that could result in similar incidents elsewhere, or to address
community concerns regarding the adequacy of response efforts.
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\17\ PHMSA submits that some of the same limitations from
reliance solely on hard-copy, locally maintained train consist
information could also arise in connection with reliance on
electronic copies (e.g., on an e-tablet) maintained by train crews.
\18\ This risk can be particularly acute if the accident or
incident occurs in a remote rural, small town, or tribal area, as
local first responders may be the only personnel who can quickly
respond to the accident or incident.
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PHMSA finds that maintaining electronic train consist information
away from the train and updating this information in real-time as the
position and number of railcars containing hazardous materials on a
train change, addresses many of those shortcomings from reliance solely
on the local copy of train consist information. Remote (e.g., in the
``cloud'') compilation and maintenance of an electronic copy of train
consist information that is synced in real-time with the local copy of
that information maintained by train crews per Sec. 174.26 as hard
(printed) copy promotes the accuracy of both remote and local copy
versions of that information, each of which can be checked against the
other. And, to the extent that the compilation and updating of that
remote electronic record occurs automatically, it can minimize the
introduction of human error into either hard or electronic versions of
the train consist information.
Additionally, as illustrated by the Anding, Mississippi, collision,
the local copy of train consist information maintained in the
locomotive may be destroyed or inaccessible, or train crews may become
injured, rendering them ineffective for the exchange of information to
emergency response personnel. Reliance on a single hard or electronic
copy document, or on a limited number of personnel, risks bottlenecking
or creating conflicting accountings of critical information. In
contrast, remote compilation and maintenance of an electronic version
of train consist information will provide necessary redundancy for a
railroad's ability to exchange critical information with emergency
response personnel, promising distribution of critical information that
is more uniform, fulsome, well-distributed, and timely than reliance on
hard copies and train crew personnel alone. Additionally, remotely
maintained, electronic train consist information promotes earlier
coordination of emergency response efforts; emergency response
personnel traveling to an incident site from various jurisdictions may
be able to access electronic train consist information (as well as
pertinent training and immediate actions) en route, saving precious
time in identifying immediate actions and coordinating response
efforts. Electronic train consist information can also facilitate
investigation efforts in parallel with emergency response efforts,
thereby allowing more timely identification and remediation of systemic
issues across the industry, as well as helping to assure affected
communities of the adequacy of response efforts.
PHMSA notes that the experience with the special permits
authorizing limited use of electronic approaches to maintaining train
consist information discussed in Section III.C above provides
additional evidence of the potential safety-enhancing benefits of
requiring use of such tools more broadly. PHMSA also notes that
stakeholders within the emergency response community have also
[[Page 52964]]
submitted comments in this rulemaking proceeding, calling on PHMSA to
codify a requirement for electronic, real-time train consist
information to supplement existing hard copy documentation
requirements.\19\ See Section IV below for further information on
comments received to this rulemaking proceeding, including supportive
comments from emergency response organizations.
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\19\ See, e.g., Intl. Assn. of Fire Chiefs, Doc. No. PHMSA-2016-
0015-0009, ``Comments on PHMSA's Advanced Notice of Proposed
Rulemaking [under RIN 2137-AF21]'' at 3 & 6 (Apr. 19, 2017) (IAFC
Comments). The IAFC comments urged a defense-in-depth approach
utilizing both electronic and hard copy train consist information
because exclusive reliance on electronic train consist information
maintained remotely may be impractical in rural, small-town, or
tribal areas where internet connectivity is limited or unreliable.
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F. What does PHMSA mean by real-time?
A plain language meaning of real-time is simultaneous (or nearly
simultaneous) with the time which something takes place. PHMSA
interprets the references in the FAST Act instruction and NTSB safety
recommendation R-07-04 to ``real-time'' train consist information to
have a dual meaning: (1) that the update of train consist information
during transportation should occur at the time changes to the hazardous
material on the train are being made, thereby ensuring the accuracy of
information; and (2) that the required train consist information is
provided to authorized federal, state, and local first responders,
emergency response officials, and law enforcement personnel at the time
a response to or investigation of an accident, incident, or public
health or safety emergency is occurring. This latter element in turn
means that the required electronic train consist information should be
provided and accessible to authorized personnel before an accident or
incident--and pushed immediately following initiation of an accident or
incident to emergency response personnel needing that information to
identify potential hazardous material threats, take appropriate
measures, and commence investigation activities.
Although PHMSA understands that the HMR as written prior to the
publication of this final rule required operators to update hard
(printed) copy train consist information as there are changes to that
information, in practice that hard-copy exclusive approach can
introduce the potential for human error. Often a member of the train
crew (in most circumstances, the conductor) must update by hand the
local printed paper copy of the train consist information in the crew's
possession to provide an accurate listing of the position of hazardous
material cars. Additionally, PHMSA understands that the HMR as written
prior to the publication of this final rule did not contain specific
requirements for railroads to either (1) make accurate, electronic,
real-time train consist information available to authorized emergency
response personnel at all times so they have it in advance of an
accident or incident, or (2) take affirmative steps to immediately
notify and forward that same information to state-authorized local
first responders or primary PSAP following either an accident involving
a train carrying hazardous material, or an incident involving a train
carrying hazardous material where a release of that hazardous material
has occurred or is suspected. As discussed in Section III.B. above, the
HMR as written prior to the publication of this final rule required the
use of local printed paper copies that may not lend themselves to real-
time updating or transfer to a person off the train. The HMR also
lacked specificity regarding railroads' obligations to forward that
information to authorized federal, state, and local first responders,
emergency response officials, and law enforcement personnel in a
proactive and timely manner; rather, the HMR spoke in terms of making
that information ``accessible'' to train crews (Sec. 172.602(c));
merely ``available'' to first responders, emergency response officials,
or law enforcement personnel (Sec. 172.600(c)); in the possession of
train crews (Sec. 174.26(a)); and submitted to the National Response
Center ``as soon as practical but no later than 12 hours after the
occurrence of any incident . . . '' (Sec. 171.15).
PHMSA expects that implementation of equipment and procedures to
enable real-time updating of electronic train consist information--as
well as more explicit requirements for railroads to make that
information available to authorized federal, state, and local first
responders, emergency response officials, and law enforcement personnel
at all times and to push the information to them via the primary PSAP
following an accident or incident--will be practicable for Class I,
Class II, and for many Class III railroads.
As a general matter, PHMSA submits that the requirements adopted in
this final rule should not come as a surprise to any railroad
transporting hazardous material as the Section 7302 FAST Act mandate
(focused by its terms on Class I railroads) dates from 2015 and NTSB
safety recommendation R-07-04 (which contains no such limitation to
Class I railroads) dates from 2007.\20\ Nor are the requirements
adopted in this final rule on the cutting edge of technology--the sort
of equipment and procedures needed for implementation are likely to be
incremental adaptations of supply chain management software, equipment,
and procedures employed in ordinary course by a variety of retail
providers and logistics companies for tracking goods within national
and global supply chains (of which the railroads themselves are a
critical component). PHMSA submits the fact that commercial entities
can implement cost-effective, real-time status tracking procedures and
equipment for non-hazardous goods suggests that reasonably prudent
railroad operators would be incentivized to employ similar equipment
and procedures when transporting materials known to be hazardous to
public safety and the environment.\21\
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\20\ In this final rule, PHMSA provides a one-year delayed
compliance period for Class I railroads, and a two-year delayed
compliance period for Class II and III railroads. This provides
ample time for the railroads to make any necessary changes to their
operations and systems to comply with the requirements of the final
rule. PHMSA is also adopting an alternative compliance method for
Class III railroads to reduce compliance burdens on these small
businesses.
\21\ PHMSA also submits that such incentives would have been
underscored by the significant environmental consequences, increased
regulatory oversight, legal liability, and loss of community
goodwill as a result of the East Palestine, Ohio, derailment.
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Additionally, railroads will not be implementing the requirements
of this final rule against a blank canvas. As discussed above, much of
the train consist information that PHMSA contemplates would be
generated, maintained, and provided in electronic form is largely
already maintained by the railroads pursuant to existing HMR
requirements in printed form; and PHMSA's requirement adopted in this
final rule that such information be readily accessible in advance of an
accident or incident, and forwarded to primary PSAPs electronically in
a form the PSAP is capable of readily accessing immediately following
an accident or certain incidents, is similar to existing HMR
requirements to make certain information available to emergency
response personnel and train crews. As discussed in Section III.C
above, a number of the Class I railroads (and at least one short line
railroad) have already demonstrated the feasibility of compiling
electronic real-time train consist information pursuant to special
permits along specific routes; those special permits contain
requirements for the update and prompt relay of that
[[Page 52965]]
electronic train consist information to emergency response personnel in
the event of an accident or incident.
PHMSA also submits that railroads may be able to leverage existing
software platforms to satisfy this final rule's electronic train
consist information maintenance, updating, and forwarding requirements.
One such platform suggested by stakeholders in this rulemaking
proceeding is the AskRail[supreg] system developed by the American
Association of Railroads (AAR), the International Association of Fire
Chiefs, the Operation Respond Institute, and others.\22\ This
platform--which is available for use in both desktop and mobile device
applications--provides authorized emergency response personnel and
primary PSAPs with accurate, continuous access in electronic format to
most of the train consist information contemplated by PHMSA's proposed
revisions, including the following: the proper shipping name and United
Nations ID number of the hazardous material; packing group and
placarding requirements and links to pertinent Emergency Response
Guidebook (ERG) and safety data sheets; quantity and location of the
material on the train; car type, DOT specification, and location within
the train; and the emergency response point of contact for the
railroad. Changes in train consist information are uploaded to the
AskRail[supreg] system from central processing centers operated by the
railroads or vendors based on data delivered via any of the following:
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\22\ See IAFC Comments at 3, 6; AAR, Doc. No. PHMSA-2016-0015-
0007, ``Comments Submitted by AAR re FAST Act Requirements for Real-
Time Train Consist Information by Rail'' at 1, 3, 7 (Apr. 19, 2017)
(AAR Comments) (recommending use of AskRail[supreg] with respect to
Class I railroads only).
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<bullet> Voice reports from train crews;
<bullet> Digital communications with mobile devices operated by
train crews; or
<bullet> Digital communications with automatic equipment
identification (AEI) systems (discussed further below).
Although AskRail[supreg] may currently operate as a ``near real-
time'' system based on associated use of AEI systems (i.e., there may
be a lag between a change to the train's makeup and the update to
AskRail[supreg] prior to passing the next AEI reader), PHMSA believes
that it is well within the capabilities of railroads operating under
this system to ensure that updates to train consist information are
made in real-time, before movement of the train. To the extent that the
AskRail[supreg] system (or any alternative platform or methods used in
complying with the final rule's requirements) may lack certain
information (e.g., origin-destination information), functionalities (in
particular, the ability for railroads to forward information to
pertinent emergency response personnel in the event of an emergency),
or extensive access requirements during emergencies, PHMSA expects that
such systems could be designed or modified and railroads could
proactively engage the response community to address those concerns.
Although PHMSA understands that current use of the AskRail[supreg]
system may currently be largely limited to Class I railroads,\23\ it is
unaware of any fundamental bar to modification of that system (or for
that matter, the design or modification of alternative systems) to
accommodate increased use by regional and short line railroads.\24\
PHMSA itself commissioned a pilot program that in 2020 demonstrated the
technical feasibility of integrating a leading proprietary commercial
train consist information platform for Class II and III railroads (the
Wabtec Train Management System) with the AskRail[supreg] system.\25\
---------------------------------------------------------------------------
\23\ See ASLRRA, Doc. No. PHMSA-2016-0015-0006, ``Docket No.
PHMSA-2016-0015 (HM-263): FAST Act Requirements for Real Time Train
Consist Information by Rail'' 3-4 (Apr. 19, 2017) (ASLRRA Comments).
\24\ See AAR Comments at 3 (``Currently, AskRail[supreg] has the
ability to show single car information for all Class II and III
railroads. If they choose to do so, Class II and III railroads can
upload their train consist information so that it is available
through the app . . . .''). The AAR echoed ASLRRA comments that
extending AskRail[supreg] to Class II and III railroads would
necessarily involve compliance costs.
\25\ See PHMSA, Notice ID No. 693JK320P000014, ``Statement of
Work and Sole Source Justification: Transportation Management
Consist Information'' (Award Date May 14, 2020). PHMSA maintains a
copy of the project closeout report.
---------------------------------------------------------------------------
Some railroads may also opt to reduce the risk of human error by
employing automatic means of updating the electronic train consist
information. Some railroads already employ such AEI systems consisting
of identification tags mounted on each train car (locomotives, end-of-
train units, rail cars, and intermodal containers) and installed,
trackside AEI readers (i.e., antennas) or portable, handheld AEI
readers that record and relay switching of cars to the railroad's
computer system. Installed, trackside AEI readers are placed at key
locations, such as the entrances and exits of rail yards; identify cars
on a train by the tags on the cars as they pass; and automatically
relay information back to the railroad's computer system to update the
electronic train consist information. Appropriate placement of
installed, trackside AEI readers is imperative for ensuring accurate
train consist information is relayed to the railroad computer systems.
For example, in the 2005 Anding, Mississippi, collision, a contributing
factor in the confusion regarding the contents of the southbound train
was that the last change in the train consist occurred between
installed, trackside AEI readers.\26\ PHMSA submits that challenges
associated with identifying proper placement of installed, trackside
AEI readers could be mitigated somewhat by timely supplementation with
one or more portable, handheld AEI readers and voice reports by train
crew personnel of changes to the local train consist information.
---------------------------------------------------------------------------
\26\ NTSB Report at 6.
---------------------------------------------------------------------------
G. How has PHMSA engaged stakeholders?
PHMSA and the Federal Railroad Administration (FRA) had previously
sought input from stakeholders on the topic of electronic train consist
information as part of the Rail Safety Advisory Committee (RSAC)
Hazardous Materials Issues Working Group. The RSAC is a federal
advisory committee established by FRA and is governed by the process
and transparency requirements of the Federal Advisory Committee Act
(Pub. L. 92-463). The RSAC develops recommendations for certain new
regulatory standards through a collaborative process with all segments
of the rail community working together to find solutions to safety
issues. The RSAC in turn has assembled a Hazardous Materials Issues
Working Group to develop recommendations for changes and updates to the
regulations for rail transportation of hazardous material.
In 2016, the Hazardous Materials Issues Working Group (hereafter
referred to as ``Working Group'') met several times to discuss updates
to the HMR's rail transportation safety requirements.\27\ On two
occasions, the Working Group discussed the issue of accurate and real-
time electronic train consist information and whether existing
technology could achieve the accurate and real-time exchange of train
consist information. Several stakeholders contended that the
AskRail[supreg] system could provide the information required by the
FAST Act. However, representatives from industry asserted that some
information required by the FAST Act (specifically, origin and
destination information) may not be relevant in an emergency response
[[Page 52966]]
situation and did not see a need to include these data in
AskRail[supreg] entries; similarly, industry representatives also
asserted that there was limited safety value in emergency response
personnel having real-time electronic train consist information unless
there had actually been an accident or incident. Some stakeholders also
expressed concern that the limited access rights currently authorized
in the AskRail[supreg] system could limit its effectiveness, as the
current version of the AskRail[supreg] system requires rigorous
security vetting for would-be users. In the event of an accident or
incident at a location where authorized federal, state, and local first
responders, emergency response officials, and law enforcement personnel
had not been provided access to the AskRail[supreg] system in advance,
access to train consist information may be unavailable to them through
AskRail[supreg].
---------------------------------------------------------------------------
\27\ Meeting minutes from HMIWG meetings are available in the
public docket for this rulemaking.
---------------------------------------------------------------------------
Additionally, the Working Group discussed the prevalence of
installed, trackside AEI readers and whether those AEI readers can
provide accurate, real-time updates to train consist information. That
discussion highlighted a challenge in increasing reliance on installed,
trackside AEI readers to provide accurate, real-time updates to
electronic train consist information--namely, their placement across
the nation's railroad system is not uniform. All participants noted
that more frequent and uniform placement of AEI readers throughout the
nation's railroad system would be required before that equipment could
be relied on to provide accurate, real-time updates to electronic train
consist information. Although the Working Group discussed a variety of
potential approaches to address this concern--including supplementation
by train crew voice reports and a standardized requirement for
placement of installed, trackside AEI readers within three miles of
each train yard (i.e., the location where rail car switching operations
are likely to be completed)--no consensus was reached on any one
solution or suite of solutions. Further, at least one stakeholder--
American Short Line and Regional Railroad Association (ASLRRA), the
industry trade group representing regional and short line railroads--
strongly opposed any suggestion of a regulatory requirement for
installed, trackside AEI readers in implementing FAST Act requirements.
Following those meetings, PHMSA issued an Advance Notice of
Proposed Rulemaking (ANPRM) in 2017 soliciting comments on implementing
the FAST Act's then-effective mandate to employ ``fusion centers'' as
clearinghouses for receiving from railroads, and forwarding electronic
real-time train consist information to emergency response
personnel.\28\ Although many questions posed by PHMSA and written
comments received from stakeholders were focused on implementation
mechanics specific to fusion centers, a number of entities submitted
comments speaking to other implementation dimensions of the FAST Act
mandate.
---------------------------------------------------------------------------
\28\ PHMSA, ``Advance Notice of Proposed Rulemaking--Hazardous
Materials: FAST Act Requirements for Real-Time Train Consist
Information by Rail,'' 82 FR 6451 (Jan. 19, 2017). The fusion center
framework was subsequently abandoned in amendments to the FAST Act
by the Investment Infrastructure and Jobs Act.
---------------------------------------------------------------------------
AAR and ASLRRA \29\ repeated contentions made in the Working Group
discussions regarding the limited value of origin-destination
information, or 24/7 availability of electronic real-time train consist
information for emergency response efforts. Their respective comments
also highlighted potential implementation challenges (pertaining to
cost and gaps in internet connectivity) associated with use of
portable, handheld AEI readers, as well as the existing gaps in
coverage for installed, trackside AEI readers. However, the AAR
comments ultimately concluded that electronic train consist information
could be a valuable option for improving emergency response efforts,
and the AskRail[supreg] system could be extended beyond Class I
railroads--even as they argued against mandating electronic real-time
train consist information as a substitute or supplement for hard copy
documentation and bemoaned the potential costs of ensuring regional and
short line railroad participation in the AskRail[supreg] system.\30\
The International Association of Fire Fighters (IAFC) also submitted
comments to the ANPRM ``strongly'' arguing for the forwarding of
electronic train consist information in the event of an accident or
incident, noting that the AskRail[supreg] system could--when
supplemented by existing hard copy documentation requirements--serve
that purpose.\31\
---------------------------------------------------------------------------
\29\ ASLRRA, ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act
Requirements for Real-Time Train Consist Information by Rail'' (Apr.
19, 2017). The ASLRRA comments explicitly endorsed the AAR Comments.
\30\ AAR ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act
Requirements for Real-Time Train Consist Information by Rail'' (Apr.
19, 2017). <a href="https://www.regulations.gov/comment/PHMSA-2016-0015-0007">https://www.regulations.gov/comment/PHMSA-2016-0015-0007</a>.
\31\ IAFC ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act
Requirements for Real-Time Train Consist Information by Rail'' (Apr.
21, 2017) at 6.
---------------------------------------------------------------------------
On June 27, 2023, PHMSA published an NPRM \32\ on this topic, and
solicited comments from the regulated community and other interested
parties on implementing real-time train consist information. PHMSA
extended the comment period for an additional 60 days.\33\ PHMSA
received 32 sets of comments to the NPRM, which are discussed in detail
in Section IV below. In this final rule, PHMSA is adopting modified
requirements related to the delayed compliance period for Class II and
III railroads; information on the origin and destination of the train;
the emergency notification required after an accident or incident; the
railroad's designated emergency point of contact; and creating an
alternate compliance method for Class III railroads based on comments
submitted to the NPRM. See Section I.C. above for a summary of the
changes made to the final rule, and Section IV below for a summary and
discussion of comments.
---------------------------------------------------------------------------
\32\ 88 FR 41541 (June 27, 2023). <a href="https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf">https://www.govinfo.gov/content/pkg/FR-2023-06-27/pdf/2023-13467.pdf</a>.
\33\ 88 FR 55430 (Aug. 15, 2023). <a href="https://www.govinfo.gov/content/pkg/FR-2023-08-15/pdf/2023-17472.pdf">https://www.govinfo.gov/content/pkg/FR-2023-08-15/pdf/2023-17472.pdf</a>.
---------------------------------------------------------------------------
IV. Summary and Discussion of Comments
A. Summary of Comments Received
PHMSA received 32 sets of public comments to the NPRM.\34\
---------------------------------------------------------------------------
\34\ This figure accounts for the two sets of comments submitted
by ASLRRA, one of which was a request to extend the comment period
by 60 days, which was granted, and two sets of comments submitted by
NENA/NASNA.
Table--Comments Submitted to the NPRM
------------------------------------------------------------------------
Commenter Docket Identifier
------------------------------------------------------------------------
Mitchel Berger.................... PHMSA-2016-0015-0014.
ASLRRA............................ PHMSA-2016-0015-0016.
Petrina Harrison.................. PHMSA-2016-0015-0017.
Sally Blake....................... PHMSA-2016-0015-0018.
[[Page 52967]]
Elizabeth Smith................... PHMSA-2016-0015-0019.
Pinsky Law Group.................. PHMSA-2016-0015-0021.
Mark Nichols...................... PHMSA-2016-0015-0022.
NTSB.............................. PHMSA-2016-0015-0023.
NENA/NASNA........................ PHMSA-2016-0015-0024.
Washington State Department of PHMSA-2016-0015-0025.
Ecology and Washington Utilities
and Transportation Commission.
Todd Jackson...................... PHMSA-2016-0015-0026.
Anonymous (PHMSA-2016-0015-0027).. PHMSA-2016-0015-0027.
Public Utilities Commission of PHMSA-2016-0015-0028.
Ohio.
New York State Metropolitan PHMSA-2016-0015-0029.
Transportation Authority.
Ohio Department of Public Safety-- PHMSA-2016-0015-0030.
Ohio Emergency Management Agency.
IAFC.............................. PHMSA-2016-0015-0031.
SMART-TD.......................... PHMSA-2016-0015-0032.
Amtrak............................ PHMSA-2016-0015-0033.
Coalition to Stop CPKC............ PHMSA-2016-0015-0034.
Transportation Trades Department.. PHMSA-2016-0015-0035.
The Attorneys General of PHMSA-2016-0015-0036
Pennsylvania, New York, Maryland,
Delaware, Connecticut, Illinois,
District of Columbia, Wisconsin,
Maine, Massachusetts, New Jersey,
Oregon, and Vermont (hereinafter
``the Attorneys General'').
AFPM.............................. PHMSA-2016-0015-0037.
Association of Public-Safety PHMSA-2016-0015-0038.
Communications Officials.
Illinois Commerce Commission...... PHMSA-2016-0015-0039.
Maine DEP and Maine EMA........... PHMSA-2016-0015-0040.
Anonymous (PHMSA-2016-0015-0041).. PHMSA-2016-0015-0041.
Commuter Rail Coalition........... PHMSA-2016-0015-0042.
Association of American Railroads PHMSA-2016-0015-0043.
(AAR).
ASLRRA............................ PHMSA-2016-0015-0044.
National Association of SARA Title PHMSA-2016-0015-0045.
III Program Officials.
American Public Transportation PHMSA-2016-0015-0046.
Association.
NENA/NASNA........................ PHMSA-2016-0015-0053.
------------------------------------------------------------------------
Overall, the majority of the comments received supported the
requirements proposed in the NPRM. In addition to the supportive
comments, PHMSA received suggestions to improve the proposed
requirements, as well as objections, primarily lodged by AAR and
ASLRRA, to the proposed requirements. Summaries of these substantive
comments, and PHMSA's response to them, is provided below.
PHMSA also notes that between January 22 and March 6, 2024, it held
listening sessions with some of the above stakeholders who had
submitted written comments on the NPRM to provide them an opportunity
to elaborate on those comments. PHMSA has filed summaries of those
listening sessions to the rulemaking docket:
Table--Stakeholder Listening Sessions on Comments Submitted to the NPRM
------------------------------------------------------------------------
Commenter Docket Identifier
------------------------------------------------------------------------
ASLRRA.................................... PHMSA-2016-0015-0048.
AAR....................................... PHMSA-2016-0015-0049.
IAFC...................................... PHMSA-2016-0015-0051.
NENA...................................... PHMSA-2016-0015-0050.
NASNA..................................... PHMSA-2016-0015-0052.
SMART-TD.................................. PHMSA-2016-0015-0054.
AFL-CIO TTD & Affiliated Unions........... PHMSA-2016-0015-0056.
------------------------------------------------------------------------
PHMSA notes that the above listening sessions generally
recapitulated each stakeholder's written comments. That said, the
discussions below identify any distinguishable comments from those
sessions.
B. Applicability of Real-Time Electronic Train Consist Information
Requirements to Regional and Short Line Railroads
In the NPRM, PHMSA proposed to apply the same real-time electronic
train consist requirements to all railroads that transport hazardous
materials in the United States. The NTSB, Attorneys General, and
International Association of Sheet Metal, Air, Rail and Transportation
Workers Transportation Division (SMART-TD) expressed support for the
inclusion of regional and short line--Class II and III--railroads in
the scope of the rule. These comments noted that the same types of
hazardous materials are transported by regional and short line
railroads as the national Class I railroads and present the same
possibility for significant accidents impacting the public. NTSB
additionally urged PHMSA to ensure that emergency responders operating
in areas served by regional and short line railroads have the same
access to critical train consist information as those that operate in
areas served by Class I railroads. ASLRRA, a trade organization that
represents regional and short line railroads, objected to the decision
to include them in the scope of the rule. In its comment, ASLRRA stated
that PHMSA lacks statutory authority for this action; has failed to
account for lower risks presented by these railroads; and performed a
faulty regulatory flexibility and cost/benefit analysis. Additionally,
on January 22, 2024, ASLRRA met with the Office of Hazardous Materials
Safety (OHMS) and presented verbal comments in support of their written
comment. A meeting summary \35\ is available in the public docket.
---------------------------------------------------------------------------
\35\ <a href="https://www.regulations.gov/document/PHMSA-2016-0015-0048">https://www.regulations.gov/document/PHMSA-2016-0015-0048</a>
---------------------------------------------------------------------------
ASLRRA noted that the FAST Act, as modified by the 2021 Investment
Infrastructure and Jobs Act, directs PHMSA to implement a real-time
electronic train consist information requirement for Class I railroads,
and does not mention regional or short line
[[Page 52968]]
railroads in association with this mandate, unlike other instances in
the FAST Act that do specifically mention these classes of railroads.
ASLRRA stated that regional and short line railroad operations are
safer than those of larger railroads, due to shorter trains, lower
speeds and less complex operations. ASLRRA cited data for the period
2015-2022 that indicates their member railroads accounted for 1.23
percent of the total damages caused by hazardous materials releases in
the rail mode, while Class I railroads accounted for the remaining
98.77 percent.\36\ ASLRRA stated the majority of movement on regional
and short line railroads are at or below 25 mph, which reduces the
consequences of a derailment due to the lower amount of kinetic energy
and could decrease the chances of a derailment by allowing shorter
stopping distance and additional time to detect a visually apparent
hazard along the tracks. Additionally, ASLRRA notes the 2005 incident
in Anding, Mississippi, which led NTSB to issue Safety Recommendation
R-07-04, involved a Class I railroad. ASLRRA also stated that regional
and short line railroads, which operate in much smaller geographic
areas than Class I railroads, maintain close ties with local emergency
response organizations, making the provision of real-time train consist
information in electronic format redundant and potentially less
effective than existing arrangements.
---------------------------------------------------------------------------
\36\ ASLRRA members accounted for $ 1.3 million dollars in
damages related to hazardous materials releases in the rail mode in
the United States, compared to $1.06 billion dollars of damages
caused by Class I railroads.
---------------------------------------------------------------------------
Further, ASLRRA stated there are substantial financial and
operational barriers to integrate regional and short line railroads
into the existing AskRail[supreg] electronic train consist system
created by Class I railroads, and that PHMSA failed to account for
these burdens properly. ASLRRA estimated that approximately 100
regional and short line railroads provide electronic train consist
information to AskRail through Wabtec's Train Management System
(TMS).\37\ ASLRRA identified an additional 210 Wabtec TMS users who do
not integrate their data into AskRail[supreg], and would need to
retrain staff and modify existing processes to integrate data into
AskRail[supreg]. ASLRRA identified a final group of approximately 200
regional and short line railroads who do not use Wabtec TMS and would
also need to modify existing systems and processes to integrate into
AskRail[supreg]. ASLRRA grouped these regional and short line railroads
together and stated that a total of 410 regional and short line
railroads would be subject to economic burdens associated with
providing real-time electronic train consist information.
---------------------------------------------------------------------------
\37\ PHMSA provided the funding for this integration through a
grant in 2020. See PHMSA, Notice ID No. 693JK320P000014, ``Statement
of Work and Sole Source Justification: Transportation Management
Consist Information'' (Award Date May 14, 2020).
---------------------------------------------------------------------------
ASLRRA claimed PHMSA substantially undervalued the cost burden by
indicating that only 41 regional and short line railroads would bear
significant economic burdens in the preliminary regulatory impact
analysis (PRIA) that supported the NPRM. ASLRRA also stated that the
estimate of $18,000 to obtain and implement a real-time electronic
train consist system and $5,500 per year to maintain the system was
significantly too low; they estimated that a more reasonable estimate
was at least $100,000 to obtain and implement a system that would meet
the requirements of the proposed rule.
Finally, ASLRRA stated PHMSA failed to account for the unique
challenges faced by small businesses, including failure to propose a
delayed compliance date for small businesses, and failure to account
for the overall lower level of technological integration among the
regional and short line railroads.
PHMSA's Response
In this final rule, PHMSA is adopting the scope of the requirement
as proposed--all railroads that carry hazardous materials in the United
States must comply with the requirements adopted in this rule. However,
acknowledging the additional organizational and technological
challenges facing Class II and III railroads, PHMSA is providing a two-
year delayed compliance period for those railroads. This two-year
period is intended to allow time for these railroads to make the
necessary changes to their operating systems and staffing to comply
with the real-time electronic train consist information requirements.
PHMSA acknowledges that Class III railroads have unique operational
and resource constraints that make the retention and real-time
transmission of electronic train consist information more difficult for
these small businesses compared to larger Class I and II railroads.
Therefore, PHMSA is adopting an alternative compliance method for Class
III railroads. This alternative compliance method is discussed in depth
below.
PHMSA does not concur with ASLRRA's assessment that it lacks the
statutory authority to implement real-time train consist requirements
for all railroads that transport hazardous materials in commerce.
Applying this rulemaking to regional and short line railroads is
neither in conflict with PHMSA's statutory authority nor the FAST Act
as amended. PHMSA also disagrees that it failed to account for
different risks presented by regional and short line railroads, or that
PHMSA failed to meet its responsibilities under the Regulatory
Flexibility Act to reduce unnecessary burdens on small businesses.
First, although the statutory mandate in the FAST Act--as modified
by the Investment Infrastructure and Jobs Act--directed PHMSA to apply
the rulemaking to Class I railroads, PHMSA has a separate general
authority to regulate the transportation of hazardous materials. The
Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101 et
seq.) at 49 U.S.C. 5103 gives the Secretary broad general authority to
issue regulations for the safe transportation of hazardous material in
commerce. The Secretary delegates the above statutory authorities to
PHMSA at 49 CFR 1.97. PHMSA is utilizing this general authority to
include regional and short line railroads in the scope of this
rulemaking. The NTSB, Attorneys General, and SMART-TD support the
inclusion of all railroads that transport hazardous materials in the
United States in this rulemaking.
Second, although the 2005 incident in Anding, Mississippi, that led
to NTSB Safety Recommendation R-07-04 involved a Class I railroad,
Safety Recommendation R-07-04 recommends all railroads immediately
provide real-time train consist information to emergency responders
following an accident or incident involving rail transportation of
hazardous material. Additionally, regional and short line railroads
have been involved in serious hazardous materials incidents in the
past. These incidents include the 2012 derailment of a Conrail (Class
III) freight train in Paulsboro, New Jersey; \38\ the devastating 2013
derailment of a unit train of crude oil operated by the Montreal,
Maine, & Atlantic railroad (Class II) in Lac Megantic, Quebec; \39\ and
the 2023 derailment of a Montana Rail Link (Class II) train near Reed
Point, Montana, which released molten sulfur and asphalt into the
Yellowstone River.\40\ Regional and short line railroads move
substantial amounts of
[[Page 52969]]
hazardous materials--as of late 2023, six Class II railroads and six
Class III railroads had filed Comprehensive Oil Spill Response Plans
with PHMSA, indicating they transport or plan to transport a train
carrying 20 or more loaded tank cars of liquid petroleum oil in a
continuous block, or train carrying 35 or more loaded tank cars of
liquid petroleum oil throughout the train consist.\41\ Regional and
short line railroads transport hazardous materials, and therefore their
operations create a risk of serious incidents involving the releases of
hazardous materials.
---------------------------------------------------------------------------
\38\ See <a href="https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1401.pdf">https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1401.pdf</a>.
\39\ See <a href="https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054-r-es.html">https://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054-r-es.html</a>.
\40\ See <a href="https://www.ntsb.gov/investigations/Pages/HMD23LR002.aspx">https://www.ntsb.gov/investigations/Pages/HMD23LR002.aspx</a>.
\41\ See 49 CFR 130.100.
---------------------------------------------------------------------------
Third, PHMSA finds ASLRRA's argument that movement of hazardous
materials by regional and short line railroads represents lower risks
due to lower speed and less complex train operations unpersuasive. For
example, ASLRRA's comment fails to present information related to the
class of track used by these railroads when discussing low-speed
operations. While ASLRRA is correct that lower speeds are associated
with lower conditional probability of releases during derailments,
operating on lower class track also is associated with a higher risk of
derailment.\42\ Lower speed derailments do not eliminate the
possibility of hazardous materials releases during accidents--tank
shell breaches, service equipment failures, and other causes of
hazardous materials releases can, and do, still occur with derailments
below 25 mph.
---------------------------------------------------------------------------
\42\ See Barkan and Kawprasert 2010 ``Track with higher Federal
Railroad Administration classes has lower accident rates. . .''
(<a href="https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Kawprasert-and-Barkan-2010.pdf">https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Kawprasert-and-Barkan-2010.pdf</a>) and Barkan et al. 2014. ``The
analysis shows that signaled track with higher FRA track class and
higher traffic density is associated with a lower derailment rate.''
(<a href="https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Liu-et-al-2017-Freight-train-derailment-rates-for-railroad-safety-and-risk-analysis.pdf">https://railtec.illinois.edu/wp/wp-content/uploads/pdf-archive/Liu-et-al-2017-Freight-train-derailment-rates-for-railroad-safety-and-risk-analysis.pdf</a>).
---------------------------------------------------------------------------
Lower speed operations do not impact the probability of non-
accident releases (NARs) at all. NARs are typically caused by failures
in tank car service equipment used to load and unload tank cars, such
as the tank car's manway or valves due to poor maintenance, improper
usage, or environmental conditions. While many NARs are minor, some
NARs create emergency situations that would implicate the notification
requirements adopted in this final rule due to the volume or hazards of
the materials released.
Finally, ASLRRA's argument fails to acknowledge that a significant
percentage of regional and short line train movements do occur at the
full operating speed for train equipment, up to 70 miles per hour for a
train containing tank cars, the predominant bulk packaging used for the
rail transportation of hazardous materials.\43\
---------------------------------------------------------------------------
\43\ See HM-251 pgs. 26683-26692 for further details on
considerations related to train operating speed (<a href="https://www.govinfo.gov/content/pkg/FR-2015-05-08/pdf/2015-10670.pdf">https://www.govinfo.gov/content/pkg/FR-2015-05-08/pdf/2015-10670.pdf</a>).
---------------------------------------------------------------------------
Despite less complex operations and slower average speeds, trains
operated by regional and short line railroads have derailed and
released hazardous materials with serious consequences and likely will
again. Therefore, PHMSA does not believe it is justifiable to exclude
these types of railroads from the scope of this rule.
Fourth and finally, PHMSA does not agree this rulemaking places an
undue burden on small businesses, or that PHMSA has failed to properly
account for this burden. In its comment, ASLRRA stated PHMSA
substantially under-counted the number of regional and short line
railroads that would be subject to significant financial burdens. In
the PRIA that supported the NPRM, PHMSA estimated 500 regional and
short line railroads are working with Wabtec (250 using TMS, and 250
not using TMS). In its comment, ASLRRA stated that 100 of their member
railroads are using Wabtec's TMS and sending data to AskRail[supreg];
210 use Wabtec's TMS with no AskRail integration; and 200 railroads are
either not using Wabtec's TMS or using a competing suite of train
management system software. Of the 95 regional and short line railroads
that PHMSA estimated are not working with Wabtec, PHMSA further
estimated that 41 had fewer than five employees, and would therefore
face the highest compliance costs, primarily by hiring additional staff
to comply with the designated emergency point of contact requirement.
PHMSA's intention in highlighting these 41 short line railroads was not
to say they were the only regional or short line railroads that would
bear additional compliance costs, but that this population of railroads
would bear the highest percentage of compliance costs due to their very
small size.
PHMSA concurs that some Class III railroads may be unable to comply
with the real-time electronic train consist requirements due to their
very small size, which limits both the number and type of employees
available for their operations and constrains their ability to acquire
necessary technology. PHMSA also acknowledges that Class III railroads,
which have very short rail networks compared to Class I and II
railroads, are in a strong position to develop close relationships with
emergency response organizations and primary PSAPs in their area of
operation. Therefore, in this final rule, PHMSA is adopting an
alternative compliance method for Class III railroads, allowing them to
comply with either the requirements applicable to Class I and II
railroads or this alternative compliance method. Wabtec data shows that
many Class III railroads already provide information to the
AskRail[supreg] or could provide data to AskRail[supreg] with only very
minor modifications to their systems, and PHMSA expects these railroads
will likely choose to comply with the requirements on this final rule
in the same ways as Class I and II railroads. Otherwise, Class III
railroads must follow all key provisions of the alternative compliance
method, which are listed below:
1. Create a written plan that identifies the procedures the Class
III railroad will follow to provide emergency notification and transmit
accurate train consist information in the event of an incident or
accident involving hazardous materials that requires a response from
local emergency response agencies. The procedure must assign at least
one person not onboard the locomotive with the responsibility to
provide accurate train consist information to local emergency response
agencies and/or primary PSAPs in addition to assigning this
responsibility to the train crew onboard the locomotive, unless there
are no employees of the Class III railroad capable of fulfilling this
function.
2. Provide notification to all local emergency response agencies
and primary PSAPs along their route about the contents of the written
plan (and any material changes thereto after initial notification).
3. Enact the written plan when an incident or accident occurs.
4. Retain a copy of the written plan and provide a copy to
authorized representatives of the Department upon request.
5. Conduct a test at least annually that demonstrates that the plan
is effective for providing emergency notification and accurate train
consist information to local emergency response agencies.
This alternative compliance requirement will provide an improved
level of safety from the status quo by requiring Class III railroads to
plan for emergency situations and inform local emergency response
agencies and primary PSAPs about how they will provide notification of
the emergency and train consist information to the responding agencies.
Class III railroads have the flexibility to determine how they will
provide train consist information. Example methods that
[[Page 52970]]
PHMSA anticipates Class III railroads may use include, but are not
limited to, telephone call; radio call on a pre-arranged emergency
communication frequency; email transmission to a pre-arranged email
address; and physical handover of train consist documents. PHMSA
emphasizes the importance of training, especially function-specific
training that complies with Part 172 subpart H, for any employee
assigned the responsibility to provide train consist information to
emergency response agencies, whether an engineer, conductor, office
staff, or other.
We also require that Class III railroads assign the responsibility
for providing train consist information to at least one person who is
not on the locomotive in order to address the possibility that the
train crew is incapacitated or unavailable after the incident occurs.
There may be scenarios, in particular for very small Class III
railroads with fewer than five employees, where there is no employee
capable of providing train consist information to emergency response
organizations except for those employees operating the locomotive. In
this situation, it is acceptable for the plan to only assign the
responsibility to provide train consist information to emergency
response organizations to those employees on the locomotive. PHMSA
understands that Class III railroads operating locomotives without
employing any office staff capable of transmitting train consist
information during train operation represent a very small fraction of
trains that carry hazardous materials daily in the United States.
Based on the information received from commenters and the creation
of the Class III alternative compliance method, PHMSA has adjusted the
cost estimates in the final Regulatory Impact Analysis (RIA) supporting
this rulemaking in the following ways:
<bullet> Updated the number of railroads to six Class I railroads,
14 Class II railroads, and 638 Class III railroads.
<bullet> Removed the cost of assigning an emergency point of
contact from the cost estimation because Class III railroads are
allowed to designate personnel in the locomotive as an emergency
response point of contact if there are no other employees capable of
performing this function.
<bullet> For Class III railroads that are not currently working
with a vendor and using train management systems (TMS), removed the
cost of producing and sharing electronic real-time train consist
information and added the cost of the alternative method of compliance.
In conclusion, PHMSA will adopt the scope of the rule as proposed--
all railroads that transport hazardous materials in commerce in the
United States must comply with the requirements adopted here. However,
in consideration of the challenges facing Class II and III railroads,
PHMSA will allow a longer compliance period for these railroads, and
PHMSA will allow an alternative compliance method for Class III
railroads.
C. Emergency Notification of Rail Accidents and Incidents Involving
Hazardous Materials
In the NPRM, PHMSA proposed a requirement for railroads to promptly
notify and provide real-time train consist information electronically
to every state-authorized local first responder organization within at
least a 10-mile radius of an accident or incident involving the
transportation of hazardous materials by rail. PHMSA received numerous
comments on this proposed requirement. The Ohio Department of Public
Safety (Ohio DPS), NTSB, and the Attorneys General support the
emergency notification requirement. These organizations stated that
providing real-time train consist information directly to local first
responder organizations in the immediate aftermath of an emergency
situation involving rail transportation of hazardous materials is the
best way to ensure critical information regarding the contents and
position of railcars makes it to the responders who need it most.
NTSB and the Attorneys General additionally requested that PHMSA
define ``promptly'' with a specific time period within which the
notification must be made. NTSB suggested PHMSA expand the proposed
notification requirement to include all accidents involving trains
transporting hazardous materials, even if no hazardous materials
release was suspected.
Other commenters, including the Maine Department of Environmental
Protection & Maine Emergency Management Agency (Maine DEP & EMA),
Association of Public Safety Communications Officials (APCO), IAFC, the
National Emergency Number Association/National Association of State 911
Administrators (NENA/NASNA), the Pinsky Law Group, and American
Federation of Labor and Congress of Industrial Organizations
Transportation Trades Department (AFL-CIO TTD), generally supported the
emergency notification requirement, but requested substantive
modifications or clarification to improve the effectiveness of the
notification.
Maine DEP & EMA and AFL-CIO TTD requested that PHMSA expand the
minimum notification radius beyond 10 miles to account for rural areas
where there are no first response organizations within 10 miles of
railroad tracks, and to ensure the notification is also received
directly by organizations with mutual-aid agreements with the first
response organization covering the incident location. Maine DEP & EMA,
AFL-CIO TTD, and APCO suggested providing the emergency notification to
the primary PSAP (e.g., 9-1-1 call center) that covers the incident
location, in addition to direct notification of first response
organizations, in order to provide redundancy and improve the chances
that the notification and train consist are received by the responding
agency in a timely manner. IAFC and the Pinsky Law Group requested that
the emergency notification be made only to the primary PSAP to avoid
confusion, and to align with existing procedures for centralized
command and control of response resources during emergencies.
Specifically, IAFC and the Pinsky Law Group noted that especially in
metropolitan areas, a mass notification provided directly to all
response organizations within 10 miles could create confusion among the
recipients of the notification and prevent the orderly dispatch of the
proper response assets to the incident site.
NENA/NASNA and APCO cautioned PHMSA that while primary PSAPs are
designed to accept telephone calls regarding emergency situations,
their capacity to accept email or app-based notifications of
emergencies, as well as to transmit information to responders, is
limited and not consistently similar across their network. In
particular, transmission of information is limited by training and
technology, and could require substantial investment by primary PSAPs
to enable the transmission of electronic train consist information in
graphical format to responders in the field. They stated that while
primary PSAPs must be notified of emergencies involving the rail
transportation of hazardous materials, they should not be relied upon
as the sole way to provide train consist information to responding
agencies.
Several organizations that represent commuter and passenger
railroads--New York State Metropolitan Transportation Authority,
Commuter Rail Coalition, and the American Public Transportation
Association--requested that PHMSA include them in the category of
persons who must be notified if there is a release or suspected release
of a hazardous material from a freight train operating on their tracks.
Amtrak additionally requested that PHMSA include them in the category
of
[[Page 52971]]
persons who must be notified if there is a release or suspected release
of a hazardous material from a freight train operating on their tracks
or within a 10-mile radius of their tracks.
Washington State Department of Ecology and Washington Utilities and
Transportation Commission (Ecology and UTC) and the Attorneys General
requested that PHMSA adopt a requirement for railroads to conduct
periodic tests of their emergency notification system to ensure the
system will function in an actual emergency.
AAR opposed the inclusion of the emergency notification requirement
as proposed. AAR stated that the 10-mile radius is arbitrary,
inconsistent with current emergency response procedures, and not
mandated by the FAST Act. AAR stated that the 10-mile radius is
inconsistent with existing DOT Special Permits for train consists
maintained on electronic devices, which require railroads to notify the
emergency response agency having jurisdiction, rather than every first
response organization in an area. Finally, AAR made an argument similar
to IAFC and the Pinsky Law Group that the mass notification of all
first responders in an area was likely to create confusion and prevent
the incident commander from exercising control over the incident scene.
PHMSA's Response
PHMSA appreciates the comments received on this issue. Based on the
comments received, PHMSA has determined the original proposal that
required providing broad notification directly to all local first
responders within a 10-mile radius, while likely to be effective in
ensuring that the train consist information is received firsthand by
the responding entity, could also create negative consequences during
the initial stages of emergency response. In particular, the
requirement to notify all local response organizations within a 10-mile
radius could disrupt the incident command structure by causing unneeded
self-deployments by entities receiving train consist information to the
incident area and create confusion among jurisdictions not directly
impacted by the event. However, PHMSA concurs with commenters who point
out the value in a proactive emergency notification requirement, which
provides another avenue to share train consist information with the
incident commander and aid responders in preparing for arrival at the
scene.
Therefore, in this final rule, PHMSA adopts an emergency
notification requirement but modifies the required recipients to only
the:
<bullet> Primary PSAP (e.g., 9-1-1 call center) responsible for the
area where the incident occurred; and
<bullet> Track owner (if the track owner is different than the
railroad operating the train).
The primary PSAP is best positioned to receive a telephonic
notification of an accident/incident; receive an electronic copy of the
train consist information; and then efficiently provide the electronic
train consist information to the appropriate entities within incident
command structure according to operating policy.
PHMSA recognizes that training, technology, and resource
availability constrain primary PSAPs, particularly in rural areas, and
some may lack the ability to electronically transmit train consist
information from the railroad directly to responders' equipment.
However, PHMSA expects that even in these circumstances, the primary
PSAP is best positioned to identify the responding entity to the
railroad and serve as a conduit for passing contact information,
verbally if necessary, to connect the railroad and the responding
agency. In addition, PHMSA provides funds to all states through the
Hazardous Materials Emergency Preparedness (HMEP) grant program that
can be used to ensure PSAPs can make changes to train personnel and
prepare for implementation of this rule. In this final rule, PHMSA is
also clarifying our expectation that the railroad coordinate with the
primary PSAP to provide the electronic train consist information in a
format that is readily accessible to the PSAP based on the information
technology resources they have available.
PHMSA, in this final rule, is adopting a series of adjustments to
the proposals in the NPRM--including longer compliance timelines for
Class II and III railroads; annual testing requirements for railroad
emergency notification systems (Sec. 174.28(b)(2)); and requirements
for Class III railroads to provide to local emergency response
personnel and primary PSAPs (and annually test) written emergency
notification plans (Sec. 174.28(c))--to facilitate collaboration
between railroads, emergency response organizations, and primary PSAPs
in navigating any obstacles to effective implementation of the final
rule's requirements. PHMSA also provides millions of dollars of grant
funding annually to states through the HMEP program \44\ that can be
used to prepare primary PSAPs to receive and disseminate this
information.
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\44\ <a href="https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant">https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant</a>.
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Lastly, PHMSA expects that railroad trade organizations will
(consistent with their historical practices and commitments to public
safety and environmental protection) serve as resources to assist their
members and other stakeholders in complying with the requirements
introduced by the final rule.
PHMSA emphasizes that the emergency notification to the primary
PSAP adopted in this final rule is the minimum requirement. PHMSA
expects that during emergencies railroads will work closely with the
primary PSAP to identify the responding entity and incident commander,
and provide the train consist information to the incident commander as
quickly as possible given the circumstances of the accident or
incident.
Regarding NTSB and the Attorneys' General request that PHMSA define
``promptly'' with a specific time period, PHMSA concurs that some
additional specificity related to this requirement would be helpful
because use of the term ``prompt'' may not create the same sense of
urgency for all parties subject to the requirement. However, PHMSA's
position is not to adopt a requirement for a specific time period,
which may be too prescriptive for all circumstances and not materially
impact safety while diverting attention to whether the specific time
requirement is satisfied rather than whether train consist information
is transferred to the appropriate persons. In this context, our intent
in the NPRM was that ``promptly'' meant that railroads must issue the
notification as soon as railroad personnel became aware of an accident,
or incident involving the release or suspected release of hazardous
materials.\45\
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\45\ See, e.g., 88 FR at 41542 and 41550 (emphasizing the
importance of immediate availability of train consist information
for the railroad emergency points of contact); 41544-46 (emphasizing
the importance of immediate availability of consist information in
the NTSB's analysis of the Anding, Mississippi, accident); and
41546-47 (emphasizing the importance of the availability of avoiding
delay in getting train consist information to emergency response
personnel in the ``critical moments immediately following an
accident or incident.'').
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Railroads should not delay the emergency primary PSAP notification
to contact other entities first (e.g., private hazardous materials
response contractors). Notification and provision of train consist
information to other entities, like private response contractors, may
occur simultaneously with the primary PSAP emergency notification;
however, the railroad must
[[Page 52972]]
prioritize notification and transmission of train consist information
to the primary PSAP to protect the lives of local first responders,
emergency response officials, law enforcement personnel, and other
persons near the incident site.
Therefore, in order to communicate the NPRM's intent more clearly
for the emergency notification requirement in Sec. 174.28(b), in this
final rule, PHMSA is revising the regulatory text by replacing
``promptly'' with ``immediately.'' PHMSA finds this clarifying revision
would better align with current HMR requirements using the word
``immediately'' in similar contexts (e.g., Sec. 172.600 ``Emergency
response information conforming to this subpart is immediately
available for use . . .''). PHMSA believes aligning Sec. 174.28(b)
with this existing language will better communicate the urgency of the
emergency notification requirement.
Regarding the NTSB's comments suggesting that PHMSA require
notification for accidents involving trains carrying hazardous
materials even when a hazardous materials release does not occur or is
not suspected, PHMSA's original intent for the proposed requirement
aligns with this suggestion. Yet, because the proposed requirement was
not clear to entities such as the NTSB, PHMSA believes further
clarification is warranted. The proposed language required emergency
notification in two circumstances for a train carrying hazardous
materials:
<bullet> Accident (e.g., a collision, derailment or fire); or
<bullet> Incident involving the release or suspected release of a
hazardous material from a rail car (e.g., release of hazardous material
through an improperly secured tank car manway or malfunctioning valve).
In this final rule, PHMSA adopts this requirement with an editorial
revision to clarify that railroads must send the emergency notification
and train consist information for accidents and incidents that would
each require a response from local emergency response agencies. A
railroad must provide the emergency notification for any accident
involving a train carrying hazardous materials, even if there is no
release or suspected release of hazardous materials, if the
circumstances of the accident require response from local emergency
response agencies. This will ensure that emergency response agencies
are aware of the hazardous materials on a train involved in an accident
in their jurisdiction, even if those hazardous materials do not
initially present an immediate danger.
For example, the five tank cars containing vinyl chloride involved
in the East Palestine, Ohio, derailment and fire did not release their
contents during the accident, yet their presence in the accident area
eventually resulted in a controlled vent and burn procedure several
days later. In future rail accidents and incidents, it is likely that
similar situations will occur--specifically that hazardous materials
will not be released immediately but their presence will necessitate
evacuations or other specific emergency response activities to mitigate
the hazards that they pose even while still contained in their
packaging. Notifying the emergency response command of the presence of
hazardous materials in a rail accident, even if those materials are not
immediately released, or suspected to have been released, is critical
to ensuring that proper response and mitigation resources are activated
for the event.
Regarding the comments submitted by New York State Metropolitan
Transportation Authority, Commuter Rail Coalition, the American Public
Transportation Association, and Amtrak, PHMSA concurs that there is
value in requiring a freight railroad to provide immediate notification
of an accident or incident to the track owner when a freight railroad
uses another railroad's tracks. It is PHMSA's understanding that many
local first responders are trained to contact the track owner when a
rail accident or incident is reported, so ensuring the track owner is
informed of the event and also has train consist information at hand
will increase the likelihood that the information is successfully
provided to the appropriate responding agencies. Additionally, some
commuter and passenger railroads, like Amtrak, employ authorized local
first responders, emergency response officials, and law enforcement
personnel, who would likely be among the first responders to any
hazardous materials accident or incident on their tracks.
Regarding the comments submitted by Ecology and UTC, and the
Attorneys General, suggesting the creation of a requirement to test the
emergency notification system, PHMSA concurs. It is a logical extension
of the proposed emergency notification requirement to have railroads
conduct tests of their system to ensure it functions effectively in an
emergency. PHMSA anticipates these system tests will create only a
minor burden for railroads, and since the number of tests and locations
for the tests scale with a railroad's network (i.e., a smaller railroad
with a small track network will require fewer tests to validate system
reliability across that network), the requirement will not create an
undue burden for regional and short line railroads. Class III railroads
implementing the alternative compliance requirements adopted in this
final rule must also conduct an annual test of their emergency
notification and communication plan. PHMSA's analysis shows that this
requirement will create an average annual cost burden of $19,843 for
all Class I railroads combined, $46,229 for all Class II railroads
combined, and $149,393 for Class III railroads combined (2022 dollars).
In consideration of comments received and our analysis, PHMSA
adopts a requirement for railroads to test their emergency notification
system or emergency communication plan at least annually; to create and
retain records of the results of the test; and to review any test
failures to determine corrective action to prevent reoccurrence. PHMSA
is not adopting prescriptive, one-size-fits-all requirements regarding
the number and location of these tests. Each railroad is best
positioned to determine the number of tests and their locations
required in order to demonstrate that their emergency notification
system is reliable and serves the intended purpose to notify primary
PSAPs and track owners of a hazardous materials-related incident.\46\
PHMSA is also requiring that in the event the recipient of the test
notification does not receive and acknowledge receipt of the
notification, the railroad involved must conduct a review to determine
the cause of the test failure, and identify corrective action to avoid
a similar failure in a real accident or incident scenario.
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\46\ PHMSA notes that it expects that railroad operators will
perform such testing in good faith and in a manner that will be
effective in light of the unique public safety and environmental
risks they are best positioned to identify along their routes. By
way of example, annual testing verifying communications with the
same primary PSAP(s) year-after-year while entirely neglecting
others along their routes would likely not be an effective approach.
Similarly, it may be prudent for railroads to prioritize
verification of effective communications and response as coordinated
by a sample of resource-constrained primary PSAPs in rural areas
along their routes.
---------------------------------------------------------------------------
In conclusion, PHMSA is modifying the emergency notification
requirement to require the railroad operating the train involved in an
accident that requires response from local emergency response agencies,
or an incident involving the release or suspected release of a
hazardous material that requires response from local emergency response
agencies, must provide immediate telephonic notification and
[[Page 52973]]
an electronic copy of the train consist information to the primary PSAP
responsible for the area where the incident occurred and the track
owner (if the track owner is different than the railroad operating the
train). PHMSA is also adopting a requirement for railroads to conduct
tests of their emergency notification system or emergency communication
plan, and create and retain records of the results of the tests and any
necessary corrective action.
D. Defining the Recipients of Train Consist Information
In the NPRM, PHMSA proposed to require that railroads provide
electronic train consist information to authorized federal, state, and
local first responders, emergency response officials, and law
enforcement personnel along the train route that could be or are
involved in the response to, or investigation of, an accident,
incident, or public health or safety emergency involving the rail
transportation of hazardous materials such that the information is
immediately available for use at the time it is needed. Separately,
PHMSA proposed to require that railroads provide prompt notification of
an incident to state-authorized local first responders within a 10-mile
radius of an accident involving a train carrying hazardous materials or
an incident involving the release or suspected release of hazardous
materials.
Several commenters, including the Ohio Department of Public Safety
(Ohio DPS), Attorneys General, Maine DEP & EMA, and Illinois Commerce
Commission (CC) requested greater specificity regarding the intended
recipient of the real-time train consist information. The Attorneys
General and Maine DEP & EMA specifically noted that as written, the
regulatory language does not specify who determines which emergency
response entities are authorized to receive the train consist
information, and further stated their position that all relevant first
responders must have access to and receive electronic train consist
information, without overburdening local PSAPs.
The National Association of SARA Title III Program Officials
(NASTTPO) and a private individual requested that PHMSA expand the
intended audience of real-time train consist information to any person
or organization involved in emergency response to a rail incident
involving hazardous materials, including volunteers and those without
``.gov'' email addresses. NASTTPO requested that PHMSA either remove
the word ``authorized'' from Sec. 174.28(a) or clearly describe an
appropriate authorization process for persons seeking access to real-
time train consist information. NASTTPO suggested several revisions to
Sec. 174.28, with the intention of prohibiting railroads from
excluding persons or organizations from access to real-time train
consist information based on factors like a lack of a ``.gov'' email
address, or membership in non-traditional response organizations beyond
the typical fire, law enforcement, and emergency medical services
agencies.
AAR requested greater clarity on the intended audience for real-
time train consist information, and that PHMSA narrow the scope to only
those personnel directly involved with accident/incident response and
mitigation. Specifically, AAR criticized the NPRM's proposals for
``seem[ing] to disregard the accepted, streamlined approach to
emergency response as outlined in the Federal Emergency Management
Agency's (FEMA) National Incident Management System (NIMS)'' in favor
of a ``shotgun approach that sprays information out to people that do
not need the information and requires the provision of information . .
. at times unnecessary for emergency response.'' \47\ AAR elaborated on
this criticism by noting that in the NPRM, PHMSA used the phrase
``emergency response personnel'' to describe the intended audience of
real-time train consist information in the rule preamble and defined
that term as ``any personnel from any federal [agency] (e.g., PHMSA,
FRA, NTSB, U.S. Environmental Protection Agency (EPA), or Federal
Emergency Management Agency personnel), or organizations that state or
local governments authorize to perform emergency response activities.''
AAR stated that this definition conflicts with the definition of
``emergency response personnel'' in 15 U.S.C. 2223e,\48\ which defines
the term as ``personnel responsible for mitigation activities in a
medical emergency, fire emergency, hazardous material emergency, or
natural disaster.'' AAR requested that PHMSA adopt this 15 U.S.C. 2223e
definition as the intended recipient of the real-time train consist
information, and specifically remove reference to federal agencies
involved in post-incident investigations, inspections, or management.
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\47\ AAR, Doc. No. PHMSA-2016-0015-0043, ``Comments Submitted by
AAR'' at 3.
\48\ <a href="https://www.govinfo.gov/content/pkg/USCODE-2021-title15/pdf/USCODE-2021-title15-chap49-sec2223e.pdf">https://www.govinfo.gov/content/pkg/USCODE-2021-title15/pdf/USCODE-2021-title15-chap49-sec2223e.pdf</a>.
---------------------------------------------------------------------------
PHMSA's Response
First, as discussed above in Section IV.C, PHMSA is, in response to
comments received on the NPRM, adjusting its proposed requirement to
provide emergency notification to every state-authorized local first
responder within a 10-mile radius of the incident/accident with a
requirement to notify and provide electronic train consist information
to the primary PSAP responsible for the area where the accident or
incident has occurred, and the track owner (if the railroad operating
the train is not the track owner) in a form they are capable of readily
accessing. This revision provides further clarity on the intended
recipient of the emergency notification, as requested by Ohio DPS and
Illinois CC.
This adjusted approach better channels notifications of an
incident/accident and safety-critical train consist information through
primary PSAPs that are critical elements within NIMS's emergency
response infrastructure precisely because they are well-positioned to
identify resources that can effectively respond to an accident/incident
or which are most likely to be adversely affected by an accident/
incident.
PHMSA further submits that other measures adopted in this final
rule--pertaining to compliance timelines, development parameters,
annual testing requirements for emergency notification systems, and
written emergency notification plans (each discussed in section IV.C
above)--will also provide opportunities for continual fine-tuning
practical implementation (including integration within NIMS
architecture) of the notification requirements adopted in this final
rule.
PHMSA appreciates the comments from the Attorneys General, AAR, and
NASTPPO, Maine EMA & DEP, and a private individual seeking greater
clarity on the intended audience for real-time train consist
information. PHMSA does not concur with AAR's request to revise the
requirements of Sec. 174.28(a) to exclude federal agencies involved in
the investigation of an accident, incident, or public health or safety
emergency involving the rail transportation of hazardous materials from
the intended audience of real-time train consist information. PHMSA is
not aware of, and AAR has provided no evidence of, any real-world
situations where provision of train consist information to federal
agencies or other emergency response organizations has in fact hindered
emergency response activities.
PHMSA stresses that this requirement does not require that
railroads provide
[[Page 52974]]
any federal employee from any agency with train consist information.
Certain federal agencies are involved in the response to, and
investigation of, rail accidents and incidents involving the
transportation of hazardous materials. Accurate real-time train consist
information is critical to employees performing these functions.
Therefore, railroads must provide real-time train consist information
to those federal personnel who are performing these emergency response
and investigatory functions. This requirement does not impose burdens
on railroads that work to the detriment of emergency response. Federal
agencies are not seeking preferential treatment, or special
consideration for access to real time train consist information.
Federal agencies simply seek access to real-time train consist
information commensurate with their response and investigatory
mandates. However, PHMSA does acknowledge that since the term
``emergency response personnel'' is already defined in a federal
statute, it would be appropriate to consistently use language that
aligns more closely with the FAST Act mandate, specifically
``authorized Federal, State, and local first responders, emergency
response officials, and law enforcement personnel'' when discussing the
intended audience of the real-time train consist information in this
rulemaking.
Regarding the Attorneys General, Maine DEP & EMA, a private
individual, and NASTPPO's comments, it is PHMSA's opinion that the word
``authorized'' in the phrase ``authorized Federal, State, and local
first responders, emergency response officials, and law enforcement
personnel'' means those persons authorized by an appropriate authority
(e.g., a town, city, county, state, or federal agency) to take part in
the response to, or investigation of, an accident or incident involving
the transportation of hazardous materials by rail. PHMSA is unaware of
any single entity that performs this authorization process for all
response organizations nationwide.
As suggested by Maine DEP & EMA, state-level Emergency Management
Agencies (EMAs) have a substantial role to play in determining which
organizations within a state are authorized to respond to and
investigate accidents and incidents involving the transportation of
hazardous materials by rail. However, PHMSA does not have sufficient
information to require that state-level EMAs, and only state-level
EMAs, perform this function. PHMSA submits that as a federal agency
with the responsibility and authority to enforce regulations related to
the transportation of hazardous materials, PHMSA could serve as an
informal arbiter of disputes related to access to electronic train
consist information.
Regarding NASTPPO and a private individual's comments that PHMSA
should recognize the value of emergency response carried out by
volunteers and members of organizations not traditionally responsible
for responding to a rail emergency involving hazardous materials (e.g.,
health care providers), PHMSA acknowledges that in many communities,
especially in rural areas, emergency response responsibilities fall on
volunteers and non-traditional responders. PHMSA appreciates NASTTPO's
suggestions for revisions to the language in Sec. 174.28. PHMSA
concurs that the variety of jurisdictions, legal authorities, and
scenarios regarding emergency response would make it impossible to
define a separate authorization process in this rule or fully discuss
every possible eventuality in this document or any associated guidance.
However, revising the text of the proposed rule as requested \49\ is
too substantial a departure from the text of the FAST Act and the NPRM
proposal.
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\49\ NASTTPO's suggested revision to Sec. 174.28: In
determining which individuals should have access to train consist
information via a software application, railroads may not limit
access to only individuals with government email addresses. The
railroads must allow access to individuals that can document
membership in a volunteer organization that may be engaged in
emergency response activities during a hazardous materials incident.
Such documentation may include a letter from the management of the
volunteer organization, local emergency manager, fire or police
chief, or a local emergency preparedness organization, such as the
local emergency planning committee, state homeland security,
emergency management or transportation agency, or state emergency
response commission. In each community the first persons responding
to an incident may be variable and may well be beyond formal fire,
law enforcement, and emergency medical services agencies. These
individuals and each community should self-identify to the railroad
when obtaining access to software applications providing train
consist information consistent with the provisions of part (d).
---------------------------------------------------------------------------
Although PHMSA is not adopting the regulatory language suggested by
NASTTPO, PHMSA cautions railroads that refusing to allow access to
electronic train consist information simply because the requestor lacks
a ``.gov'' email address is too simplistic. Railroads must consider
additional information and context, including a person's membership in
volunteer response organizations and documentation verifying their
authorization to conduct emergency response on behalf of communities
they support when determining eligibility for access to electronic
real-time train consist information.
E. Maintenance of Both Paper and Electronic Train Consists
In the NPRM, PHMSA proposed to require that railroads maintain two
forms of up-to-date copies of the train consist information. One copy
was proposed to be a physical, printed (i.e., paper) copy in the
possession of the locomotive's crew--note that the HMR currently
requires this--while the other copy was the real-time train consist
maintained in electronic form off the train.
Ecology and UTC, AFL-CIO TTD, Attorneys General, IAFC, SMART-TD,
and NTSB supported the requirement to maintain both an up-to-date
printed paper copy of the train consist in the locomotive or with the
train crew and an electronic copy maintained off the train. These
organizations cited benefits to emergency response by maintaining
redundant copies of the train consist information so that responders
would be more likely to be able to access the information during
emergency scenarios when cellular data connectivity is lost or is not
available, especially in rural and remote areas.
AAR opposed this proposed requirement to maintain two copies of the
train consist information, including a printed paper copy document in
the locomotive. AAR stated that proposed requirement exceeded the FAST
Act mandate, was unnecessarily duplicative, and provided no safety
benefit. AAR stated that real-time electronic train consist information
maintained off the train is more accurate than relying on train crews
to manually update stacks of paper train consists, and that if the
copies of the consist did not match, it would create confusion during
emergency response.
Finally, AAR stated that continuing to require printed paper train
consist documents in locomotives would prevent railroads from realizing
economic savings and reducing their carbon footprint caused by printing
``millions of sheets of paper'' and providing the electricity and ink
required to maintain printers across their network. AAR requested that
PHMSA eliminate the requirement for railroads to maintain duplicate
copies of the train consist and allow railroads the ability to choose
the form of the copy of train consist information in the locomotive,
including the option of a paper copy, or maintaining a local electronic
copy.
[[Page 52975]]
PHMSA's Response
In this final rule, PHMSA is adopting the proposed requirement for
the train crew to maintain an up-to-date printed paper copy of the
train consist information in the locomotive. This preserves the
requirement that existed in the HMR prior to the adoption of this final
rule. The printed paper copy of train consist information maintained in
the locomotive or with the train crew has historically served as a
critical resource for emergency responders during rail emergencies, and
emergency responders are familiar with this format of information. At
this time, the requirements for electronic maintenance and transmission
of train consist information adopted in this final rule will
complement--but not replace--the local printed paper copy of train
consist information in the locomotive. PHMSA intends the crew's local
printed paper copy to serve as a redundant backup to the electronic
train consist requirements adopted in this final rule. The printed
paper copy provides information to the crew on the location and hazards
of the materials they are moving to protect themselves and others.
As noted above in Section IV.C, PHMSA has issued several special
permits to railroads that allow these railroads to provide train crews
with an electronic device that is capable of displaying and
transmitting train consist information. PHMSA believes there is benefit
in exercising these ``pilot projects'' to allow more time to evaluate
their effectiveness in ordinary use and during rail emergencies before
adopting this option into the HMR. In the meantime, PHMSA will allow
holders of these special permits to continue operating in accordance
with the conditions of the permits in order to gain this experience.
PHMSA may revisit this issue in the future, as we gain more
experience with the existing special permits and other electronic
hazard communication projects. As such and for the time being, we are
retaining the baseline requirement that the train crew's copy of train
consist information must be a printed paper document, and must be
updated to reflect any changes in the train's composition due to
pickups, set outs, or other work.
F. Availability of Train Consist Information in Real-Time
In the NPRM, PHMSA proposed that each railroad must provide
electronic train consist information in such a way that it is
immediately available for use by its intended recipients. In the NPRM
preamble, PHMSA clarified the intent of this requirement by stating
that the electronic train consist information must be provided and be
accessible to recipients prior to the occurrence of an accident or
incident in order to ensure it is immediately available at the onset of
response efforts. Several commenters requested clarification or
modification of this requirement.
AAR stated that PHMSA improperly implemented the FAST Act mandate
by conflating the requirement to create and maintain train consist
information in real-time, which they state is required by the FAST Act,
with a requirement to provide real-time information to authorized
recipients at all times, which they state is not required by the FAST
Act. AAR requested that PHMSA revise Sec. 174.28(a) to state that the
real-time information must only be supplied during an accident,
incident, or public health or safety emergency involving rail transport
of hazmat.
The Attorneys General requested that PHMSA revise the regulatory
language in Sec. 174.28(a) to replace the word ``provide'' with the
phrase ``make available.'' The Attorneys General stated that as
written, paragraph (a) appears to require railroads to send
notification of train movements and consist information to every
authorized recipient at all times, which does not appear to be the
stated intention of the requirement. Ohio DPS supported the requirement
that train consist information be accessible at any time by authorized
emergency response personnel, in order to inform responders of the
risks at the scene as soon as possible. AFL-CIO TTD requested that
PHMSA require railroads to proactively notify all PSAPs along the route
of a train and provide the train consist information to these PSAPs, so
that the train consist information would be immediately available in
event of an emergency.
PHMSA's Response
It is not the intention of Sec. 174.28(a) to require that
railroads provide proactive notification about a train's movement and
consist information to every emergency response organization or primary
PSAP along the route during normal operations. This volume of
information would be overwhelming; likely could not be managed in a
safe and secure way by all recipients; and would ultimately defeat the
purpose of the requirement by flooding authorized federal, state, and
local first responders, emergency response officials, and law
enforcement personnel with huge volumes of non-critical information
that could be confused with the critical information when an emergency
event actually occurred. The only ``notification'' requirement in this
final rule is found in Sec. 174.28(b), which only applies when there
is an actual accident involving a train carrying hazardous materials
requiring response from local emergency response organizations or
incident involving the release or suspected release of a hazardous
material requiring response from local emergency response
organizations.
The intent of the requirement in Sec. 174.28(a) is that railroads
\50\ must create and maintain accurate train consist information for
all trains carrying hazardous materials, and must maintain that
information in an accessible or transmissible electronic format in such
a way that it can be used by an authorized person at any point in time
(i.e., in real time). This ensures that the train consist information
is available prior to an accident or incident and can therefore be
accessed immediately when needed. PHMSA stresses the distinction
between maintaining train consist information in a secure manner for
availability (i.e., at the ready) versus sending a notification of
train movements. The former strikes the balance between security and
accessibility of information while the latter is too insecure and
unfocused to be useful.
---------------------------------------------------------------------------
\50\ As noted in Section IV.B and V.C, PHMSA is adopting an
alternative compliance method for Class III railroads that does not
require electronic transmission of train consist information. Class
III railroads may choose to comply with the requirements in Sec.
174.28(a) and (b) (requiring electronic transmission) or the
alternative method in Sec. 174.28(c).
---------------------------------------------------------------------------
In this final rule, PHMSA adopts the language as proposed, which
aligns with the FAST Act mandate. Specifically, this requires that
railroads transporting hazardous materials must ``provide'' electronic
train consist information, to federal, state, and local first
responders, emergency response officials, and law enforcement personnel
along the train route that could be or are involved in the response to,
or investigation of, an accident, incident, or public health or safety
emergency involving the rail transportation of hazardous materials.
PHMSA acknowledges the Attorneys General's concerns regarding potential
confusion over the meaning and usage of ``provide,'' but believes this
preamble discussion adequately explains the regulatory intent.
Regarding the method(s) used to fulfill this requirement, railroads
have the flexibility to choose how to comply with this performance
standard. Most will likely use an electronic database system, like the
AskRail[supreg] system developed and used by all Class I
[[Page 52976]]
railroads and some Class II and III railroads, that allows authorized
individuals to access real-time train consist information with a query
based on a railcar reporting mark or other train identifier. However,
it is not PHMSA's intention to mandate use of the AskRail[supreg]
system in the HMR. Railroads may choose other methods of providing this
information than standing up an electronic database system, as long as
they meet the standard in Sec. 174.28(a).
G. Timing of Updates to Train Consist Information
In the NPRM, PHMSA proposed to require that train consist
information be updated prior to continued movement of the train
whenever a change to the train's makeup occurs (e.g., addition or
removal of railcars from the train) on both the train crew's printed
paper copy, and on the electronic copy maintained off the train. The
Attorneys General supported this requirement because requiring updates
before the train moves ensures that authorized federal, state, and
local first responders, emergency response officials, and law
enforcement personnel will have access to accurate information at all
times.
AAR opposed this requirement. AAR stated that there are areas of
the rail system that are not covered by any type of communication
technology, and therefore the train crew would be unable to update the
central train consist information database using electronic devices or
radio communications in these locations.\51\ AAR requested that PHMSA
revise the requirement and have train crews update the copy of train
consist information maintained on the central electronic database
``when practicable.''
---------------------------------------------------------------------------
\51\ SMART-TD, a rail labor organization, also confirmed to
PHMSA that there are areas of the rail network with no cellular data
coverage.
---------------------------------------------------------------------------
AAR also requested revisions to Sec. 174.26(b) to authorize means
of notification besides electronic or radio communication; replace the
word ``notify'' with ``synchronize;'' and make conforming edits to
align with their request to remove the requirement that train consist
information be maintained in both printed paper copy format in the
locomotive and electronically off the train. See Section IV.E.
``Maintenance of Both Paper and Electronic Train Consists'' for more
information on the latter request.
PHMSA's Response
It would defeat the purpose of the real-time train consist rule to
allow the train to move without updating the train consist information
maintained off the train, which acts as the primary method for
providing electronic train consist information to responders. In the
Anding, Mississippi, accident (see Sections III. D. ``How Does Train
Consist Information Affect Rail Transportation Safety?'' and III. E.
``How Does Requiring Electronic Train Consist Information Affect Rail
Transportation Safety?'' for further information on the Anding,
Mississippi, incident), a change was made to the southbound CN train's
make-up, and the train began moving without updating dispatch on the
change to the train consist, which was a typical occurrence at the
time.\52\ When the accident occurred, the train consist information
stored in CN's computer systems reflected the train's original makeup
when it departed the Memphis yard, and did not reflect changes made to
the train's makeup in the Greenwood, Mississippi, railyard--the setting
out (removal) of 21 cars and pickup of 9 cars. After the changes made
at Greenwood, the train did not pass an AEI reader before the collision
occurred, and there was no way for the crew to communicate the change
back to the central system.
---------------------------------------------------------------------------
\52\ NTSB Report at 7.
---------------------------------------------------------------------------
It took hours to provide an accurate picture of the contents of
railcars involved in the derailment to the responders after the
accident because the crew was killed and the printed paper copy
maintained by the crew was destroyed in the collision and subsequent
fire; meanwhile, the electronic consist information maintained in CN's
database was not up to date. The intention of this final rule is to
prevent this kind of communication breakdown from occurring again.
Therefore, PHMSA adopts, as proposed, the requirement that the crew
must update the off-train electronic consist information prior to
movement of the train (note that Class III railroads complying with the
alternative method adopted in this final rule are not subject to this
requirement because they are not required to maintain train consist
information in electronic form). If, for example, a railroad uses a
system that involves AEI readers and changes to the train's makeup
occurs in areas between AEI readers and without cellular data coverage,
PHMSA expects that train crews will use methods such as voice radio or
satellite communication to provide updates to a dispatch center where
staff can make the necessary updates to the master electronic train
consist to reflect the changes--the set outs and pickups.
AAR's suggested revision to allow the train crew to utilize means
besides electronic or radio communication is acceptable. PHMSA
encourages railroads to maintain flexibility around the means used to
update the off-train electronic train consist, where PHMSA's concern is
only that it is updated and accurate before the train moves again.
However, PHMSA is not adopting the requested revision to replace
``notify'' with ``synchronize'' as PHMSA believes the proposed language
is the clearest way to express our intention that both the local copy
of the train consist information maintained in the locomotive and the
remote electronic train consist information maintained off the train
are updated and accurate at all times before movement of the train.
H. Applicability of Requirements to Freight Lines Operating on
Commuter/Passenger Rail Track
PHMSA received several comments from organizations representing
commuter and passenger railroads who own tracks that are used by
freight railroads transporting hazardous materials. These
organizations--New York State Metropolitan Transportation Authority,
Commuter Rail Coalition, and the American Public Transportation
Association--requested clarification regarding the applicability of the
real-time train consist rule to their operations. As described, the
railroads represented by these organizations do not operate freight
trains, except for work trains engaged in maintenance of way
activities.
PHMSA's Response
PHMSA's concurs with the commenters that the proposed language did
not clearly distinguish applicability of proposed requirements between
the railroad operating a train carrying hazardous materials and the
railroad maintaining ownership of the track, and is therefore
editorially revising the language in new Sec. 174.28 in this final
rule. The intention of the proposed requirements in the NPRM was to
apply the real-time electronic train consist requirements to the
railroad transporting hazardous materials--i.e., the railroad operating
the train.
In the scenario where a freight railroad is operating on tracks
owned by a commuter or passenger railroad, the freight railroad
operating the hazardous material train is responsible for complying
with the real-time train consist requirements adopted in this final
rule. To clarify this point, in this final rule PHMSA is modifying the
regulatory language in Sec. 174.28(a) and (b) to clearly indicate that
the
[[Page 52977]]
requirements in this section apply to the railroad operating a train
carrying hazardous materials.
I. Origin/Destination Information
In the NPRM, PHMSA proposed to require that railroads include
origin and destination information with train consist information, in
conformance with the FAST Act's mandate. In the NPRM, PHMSA explained
its understanding of the ``origin and destination information''
information requirement to mean the origin and destination of the
hazardous materials on the train subject to shipping paper information
requirements.
PHMSA received several comments regarding this requirement. APCO
and the Attorneys General supported inclusion of origin and destination
information with train consist information. The Illinois CC requested
clarification--specifically whether origin and destination can be
recorded as a city/county; or whether the information on the origin
also would include actual shipper information. IAFC supported inclusion
of origin and destination information because it encodes information on
the direction of travel of the train, which can be difficult to
determine in the initial stages of a chaotic accident such as a
derailment. IAFC explained that identifying direction of travel is
important for determining railcar identity, and therefore the commodity
contained within, during a response.
AAR opposed the inclusion of origin and destination information as
proposed in the NPRM. AAR stated the proposed requirement to include
the origin and destination of the hazardous materials carried on the
train would be impossible to comply with, in particular for multi-modal
shipments. AAR argued that a similar requirement for origin and
destination information for hazardous materials is not required to be
provided for any other mode of transportation, and that railroads would
not be able to obtain origin and destination information from highway
or vessel carriers performing the prior or subsequent legs of
transportation. Additionally, AAR stated that origin and destination
information is proprietary information for each carrier, and that
revealing such information would compromise sensitive business
information about their own operations and customers. Finally, AAR
stated that origin and destination information is irrelevant for
emergency response purposes and does not assist responders in the
initial stages of an incident.
PHMSA's Response
PHMSA acknowledges AAR's assessment that, as proposed, the
requirement for origin and destination information for the hazardous
material contained in each railcar would be too burdensome for
railroads to compile and may be of limited value in emergency response
scenarios. PHMSA agrees with IAFC's comment that the origin and
destination information encodes information about train direction,
which is an important factor in the initial stages of a response.
Therefore, in this final rule, PHMSA is adopting a requirement that
the railroad include the origin point of the train (e.g., the railyard
where the train was assembled), and the next destination (e.g., the
next railyard with a scheduled stop in the direction of travel). This
requirement maintains alignment with the FAST Act's mandate to include
origin and destination information for the train and is responsive to
AAR's valid concerns about realities of information available in the
logistics system about hazardous materials on a train, yet still
addresses IAFC's comment that origin and destination information about
a train is helpful by assisting responders with identifying the train's
direction of travel after an accident.
PHMSA stresses that this origin/destination data requirement is a
minimum requirement to assist authorized federal, state, and local
first responders, emergency response officials, and law enforcement
personnel to identify the position of railcars during the initial
stages of an emergency response. PHMSA expects that railroads and
emergency response officials will continue to contact and collaborate
with hazardous materials producers through the emergency response
telephone number provided on hazardous materials shipping papers (see
Sec. 172.604) and through dedicated industry response assistance
programs (e.g., CHLOREP \53\).
---------------------------------------------------------------------------
\53\ <a href="https://www.chlorineinstitute.org/chlorep">https://www.chlorineinstitute.org/chlorep</a>.
---------------------------------------------------------------------------
J. Emergency Response Point of Contact
In the NPRM, PHMSA proposed to require that railroads designate an
emergency response point of contact and provide that person's contact
information including name, title, phone number and email address. The
purpose of this requirement is to ensure that authorized federal,
state, and local first responders, emergency response officials, and
law enforcement personnel have access to a dedicated railroad contact
who could provide emergency response support including but not limited
to having knowledge and response and mitigation information, or access
to personnel with this expertise, related to the hazardous materials
included in the train consist information.
PHMSA received several comments regarding this requirement. The
Attorneys General supported the proposed requirement because it would
promote the timely sharing of train consist information during an
emergency. AAR opposed the inclusion of name, title, phone number, and
email address for the designated emergency response point of contact.
AAR stated that the details of the name, title, and email address of
the emergency response point of contact were subject to constant change
as personnel changes, while a railroad's dedicated emergency response
phone number, for example, would likely remain constant. Additionally,
AAR expressed concern that focus on the name and title of the
designated emergency response point of contact would take away from the
quality of the information to be provided. AAR suggested that PHMSA
align the designated emergency response point of contact requirement
with the existing emergency response telephone number requirement that
applies to the shipper of a hazardous material found in Sec. 172.604
of the HMR.
PHMSA's Response
PHMSA intended the inclusion of the name, title, phone number, and
email address for the railroad's designated emergency response point of
contact to increase a local first responder's ability to contact the
designated contact person. However, PHMSA acknowledges that AAR's
comments about the unintended consequences of the inclusion of name,
title, and email address are valid. Therefore, in this final rule PHMSA
is removing the requirement that the train consist information include
an emergency response point of contact include a name, title, and email
address.
The purpose of the emergency response point of contact is to
provide a link between the railroad and response personnel for
emergency response information-sharing and support in an emergency.
Railroads must provide a dedicated phone number and may satisfy this
requirement by designating a third-party organization that has
immediate access to railroad information (e.g., train consist
information) and is capable of providing supportive response
information to authorized federal, state, and local first responders,
emergency response
[[Page 52978]]
officials, and law enforcement personnel during an emergency. If a
railroad elects to use a third-party, it is ultimately responsible for
ensuring that necessary contractual/procedural relationships are
structured in a way to fulfill the emergency response point of contact
role.
K. Use of the Existing AskRail[supreg] Application To Comply With This
Rulemaking
AAR described the AskRail[supreg] application that is operated by
the AAR subsidiary, Railinc, and stated their belief that the
AskRail[supreg] application satisfies the major components of real-time
train consist information requirements mandated in the FAST Act.
PHMSA concurs that AskRail[supreg], as currently implemented,
satisfies some of the requirements adopted in this final rule. The
AskRail[supreg] application is designed to provide train consist
information in electronic form to registered federal, state, and local
first responders, emergency response officials, and law enforcement
personnel. However, PHMSA stresses that it is the responsibility of
each railroad transporting hazardous materials to meet the real-time
performance standards implemented in Sec. Sec. 174.26 and 174.28 in
this final rule. For example, it is PHMSA's understanding that as
currently implemented, AskRail[supreg] is a ``near real-time'' system
rather than fully real-time because train consist information is not
uploaded prior to train movement in all cases, due to spacing between
AEI readers. To be clear, sole reliance on AEI readers in all
circumstances would not meet the requirements adopted in this final
rule to ensure that the centralized electronic train consist
information is always updated prior to movement of the train.
PHMSA encourages the use of existing systems and services, like
Askrail[supreg], where possible to meet the requirements of this final
rule. The use of existing systems and services reduces retraining needs
for authorized federal, state, and local first responders, emergency
response officials, and law enforcement personnel, and reduces burden
on railroads. However, these existing systems and services may need to
be modified to meet the standards adopted in this final rule.
L. Cost, Benefit, and Delayed Compliance Period
AAR stated their belief that the adoption of the FAST Act mandates
for real-time train consists will not be cost-beneficial. They noted
that the PRIA break-even analysis stated the rulemaking will be cost-
effective if it reduces the consequences of hazardous material
incidents by approximately 30 percent. AAR expressed their belief that
this was not possible. AAR also suggested that PHMSA does not have a
valid justification for exceeding the requirements that are in the FAST
Act mandate, such as the emergency notification requirement, because
ultimately it will not be cost-beneficial. Finally, AAR requests at
least a two-year delayed compliance period to allow Class I railroads
to make necessary updates to their electronic systems without
unnecessary disruption of operations.
PHMSA's Response
PHMSA does not agree with AAR's characterization of the benefits
and costs of the rulemaking. First, PHMSA notes that this rulemaking
responds to both a congressional mandate and an NTSB recommendation;
PHMSA's evaluation of the costs and benefits of the rulemaking were
necessarily informed by that direction.
Second, AAR provides no information to support their claim that the
requirements proposed in the NPRM could not reduce the consequences of
hazardous materials incidents by 30 percent, the breakeven point
identified in the PRIA.\54\ Additionally, due to the changes adopted in
this final rule (see Section I.C. for additional details), the overall
cost burden of the rulemaking has been decreased, and PHMSA's analysis
shows that the breakeven point is now about 12 percent. Serious rail
incidents involving the release of hazardous materials are high-
consequence, low-probability events whose harms do not lend themselves
to easy quantification as they can entail more than mere bodily injury
or property damage (e.g., environmental and mental health-related
harms).
---------------------------------------------------------------------------
\54\ PHMSA further notes that the premise of AAR's argument
here--that the benefits from mitigating accident/incident
consequence by making train consist information available to
emergency response personnel cannot justify implementing costs--is
hard to square with its and its members' decisions to make
(significant) investments in developing the AskRail[supreg]
application.
---------------------------------------------------------------------------
These harms vary as a function of which of the thousands of
hazardous materials regulated by PHMSA, each of which have their own
environmental and public safety risk profiles, are involved. Many of
those harms, moreover, may not arise instantaneously at the moment of
initiation of an incident/accident initiation. Some may emerge well
after the incident/accident because of the unique risk profile of the
hazardous material or because the decisions made by emergency response
personnel. There may be greater magnitude of harms to public safety and
the environment (e.g., by exposing more emergency response personnel)
experienced as a result of the accident/incident.
PHMSA understands, therefore, that immediate, reliable provision of
train consist information to authorized federal, state, and local first
responders, emergency response officials, and law enforcement personnel
for use in emergency situations will support site/hazard assessment and
onset of response efforts that can reduce likelihood of hazmat-related
death and injury, environmental damage, and property damage--including
those consequences that may develop in the moments following accident/
incident initiation.
For example, in an accident scenario involving derailed tank cars
carrying flammable liquids or gases that are exposed to a fire,
responders without access to train consist information may approach too
close to the tank cars during response efforts if they are unable to
visually identify the contents of the tank cars from markings or
placards. If tank cars were to catastrophically fail or begin venting
contents through pressure relief devices while responders are within
the danger area, death or injury could occur from debris and exposure
to the material release.
Similarly, if the hazardous materials on a train required certain
resources and emergency response officials lacked resources, training,
or personnel to ensure effective response, the train consist
information content and notification requirements will help ensure that
emergency response personnel can quickly identify those gaps and seek
additional resources as appropriate. The incidents in Anding,
Mississippi, and Paulsboro, New Jersey, serve as examples of the hours
that can be lost during the critical early stages of a response when
updated train consist information is not available to authorized
federal, state, and local first responders, emergency response
officials, and law enforcement personnel. Timely access to accurate
train consist information can help to reduce such negative outcomes.
Finally, PHMSA does not concur with AAR's request for a two-year
delayed compliance period for Class I railroads. The NPRM proposed a
one-year delayed compliance period, and AAR has not presented any
specific information as to why this is not achievable for Class I
railroads. Class I railroads have the
[[Page 52979]]
resources, wherewithal, and expertise to be able to upgrade their
systems to comply within a year and any further delay in safety
improvements is viewed as unnecessary. Therefore, PHMSA is adopting the
one-year delayed compliance period for Class I railroads as proposed.
As discussed above in Section IV. B., PHMSA is allowing a two-year
delayed compliance period for Class II and III railroads.
M. Comments Beyond the Scope of This Rulemaking
PHMSA received comments suggesting changes to the NPRM that it has
determined are beyond the scope of this rulemaking. These comments are
discussed in this section.
1. Require a Standardized Format for All Paper and Electronic Train
Consists
Maine DEP & EMA, the Illinois CC, and a private citizen requested
that PHMSA require the use of a standardized format for train consist
information for all railroads. These commenters noted that different
railroads have different formats and layouts for their train consist
information, which can make it potentially difficult for responders to
identify the critical hazardous materials information during an
emergency depending on the format they are looking at. Similarly, the
IAFC requested that PHMSA identify which electronic application or
other service the railroads must use to meet the requirements of this
final rule.
PHMSA's Response
PHMSA recognizes that different formats and layouts for paper train
consist information, and different electronic applications create
difficulties for authorized federal, state, and local first responders,
emergency response officials, and law enforcement personnel. However,
it is beyond the scope of this rulemaking to mandate a single format
for train consist information or require the use of a specific
electronic application or service.
PHMSA encourages federal, state, and local first responders,
emergency response officials, and law enforcement personnel to take
advantage of training opportunities, especially those offered by
railroads and through organizations like TRANSCAER[supreg],\55\ to
familiarize themselves with the train consist information format and
electronic systems in use by railroads in their response areas. PHMSA
provides grant funding for emergency response training through its
ALERT program \56\ to assist local authorized federal, state, and local
first responders, emergency response officials, and law enforcement
personnel with this type of training.
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\55\ <a href="https://www.transcaer.com/">https://www.transcaer.com/</a>.
\56\ <a href="https://www.phmsa.dot.gov/grants/hazmat/assistance-local-emergency-response-training-alert">https://www.phmsa.dot.gov/grants/hazmat/assistance-local-emergency-response-training-alert</a>.
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2. Emergency Notification for State Emergency Response Commissions
(SERCs)
The Illinois CC requested that PHMSA require railroads notify
appropriate SERCs when they provide an emergency notification of an
accident involving a train carrying hazardous materials, or an incident
involving the release or suspected release of a hazardous material.
Inclusion of SERCs is beyond the scope of this rulemaking because
SERCs generally do not have a role in the immediate emergency response
to an incident. SERCs are responsible for implementing the Emergency
Planning and Community Right-to-Know Act (Pub. L. 99-499) and are not
designed to receive this kind of emergency notification, disseminate
it, or act on it. PHMSA notes that railroads may voluntarily notify
SERCs of a rail accident or incident involving hazardous materials in
their state.
3. Require a Standardized Procedure for Maintenance of Local Responder
Contact Information
The Attorneys General requested that PHMSA develop a required
procedure for railroads to gather, maintain, and update the contact
information for all local first responders within 10 miles of their
routes to support accurate emergency notification.
As discussed above, in this final rule PHMSA is adopting a revised
requirement for the emergency notification. Specifically, PHMSA is
replacing the requirement to notify all local first responders within
10 miles of the accident or incident with a requirement for railroads
to notify the primary PSAP responsible for the area where the accident
or incident occurred as well as the track owner--if the track owner is
different than the railroad operating the train. It is beyond the scope
of this rule to develop a standard procedure regarding the gathering,
maintenance, and updating of contact information for primary PSAPs. We
agree that railroads must have accurate contact information and
geographic coverage information for the primary PSAPs along their
routes in order to comply with the requirement adopted in this final
rule, and it is PHMSA's understanding that such information is already
available to railroads.
However, PHMSA believes it will be more efficient and effective to
allow railroads to define their own procedures to comply with this
requirement, rather than to create a ``one-size-fits-all'' approach in
the HMR. Additionally, PHMSA is adopting a requirement for all
railroads to test their emergency notification system or emergency
communications plan at least annually, which will serve to demonstrate
that each railroad is maintaining and updating this contact
information.
4. Contingency Planning and Local Connectivity
Ecology and UTC, and the Attorneys General requested that PHMSA
require railroads to create contingency plans for provision of
electronic train consist information to authorized federal, state, and
local first responders, emergency response officials, and law
enforcement personnel in areas with no or limited data connectivity.
PHMSA's Response
PHMSA believes that the system of hazard communication for the rail
transportation of hazardous materials, including the requirements
adopted in this final rule, represents a redundant, resilient system
that will be effective in ensuring authorized federal, state, and local
first responders, emergency response officials, and law enforcement
personnel have access to information on the position and contents of
railcars containing hazardous materials, even in areas with no data
connectivity. However, it is beyond the scope of this rulemaking to
require that railroads develop contingency plans for scenarios where
the provision of train consist information to authorized federal,
state, and local first responders, emergency response officials, and
law enforcement personnel required by Sec. 174.28(a) fails due to
local connectivity issues.
In this final rule, PHMSA maintains the existing requirement that
the train crew must keep an up-to-date local printed paper copy of
train consist information in their possession. Next, PHMSA adopts a
requirement for railroads to provide an immediate emergency telephonic
notification to the primary PSAP responsible for the area where the
incident or accident occurred and provide a copy of train consist
information directly to the primary PSAP so they can disseminate
further, as appropriate. As discussed in Section IV. C. ``Emergency
Notification of Rail Accidents and Incidents Involving Hazardous
Materials'' above, the primary PSAP is best positioned to
[[Page 52980]]
understand the incident command structure that will be formed, which
agencies will respond, and how to overcome any local connectivity
issues.
Finally, the existing system of hazard communication on rail cars
carrying hazardous materials, including placards (Part 172, subpart F)
and markings (Sec. 172.330, including UN ID number and proper shipping
name or common name) on the rail cars used to transport hazardous
materials, remains unchanged in this rulemaking. While environmental
conditions, such as darkness, smoke, and firefighting foam or the
destruction of hazard communication during an accident can make visual
identification of the contents of a rail car difficult, these marks and
placards continue to play an important role in hazard identification.
5. Commodity Flow Reporting
The Public Utility Commission of Ohio and the Maine DEP & Maine EMA
requested that PHMSA require railroads to provide aggregated
information on the identity and quantity of hazardous materials
transported by rail to state and county emergency planners. The NTSB
also noted that Safety Recommendation R-14-14,\57\ issued to the U.S.
Department of Transportation, remains open, and the requirements
adopted in this final rule could potentially address this safety
recommendation.
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\57\ Safety Recommendation R-14-014 TO THE UNITED STATES
DEPARTMENT OF TRANSPORTATION: 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.
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PHMSA's Response
PHMSA appreciates these comments and concurs that aggregated
commodity flow information is important for emergency planners.
However, this request is beyond the scope of this rulemaking. This
rulemaking is intended to improve communication between railroads and
federal, state, and local first responders, emergency response
officials, and law enforcement personnel related to the hazardous
materials involved in a rail incident or accident. The requirement
proposed in the comments would require reporting of aggregated
hazardous materials transportation data unrelated to a particular
incident or accident, which is a substantially different requirement,
and would require additional notice and opportunity for comment. PHMSA
may consider this topic in a future rule. Emergency planners can
request commodity flow information from TRANSCAER[supreg] and PHMSA has
grant funding available to defray the cost of commodity flow
studies.\58\
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\58\ See <a href="https://www.transcaer.com/resources/commodity-flow-studies">https://www.transcaer.com/resources/commodity-flow-studies</a> and <a href="https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant">https://www.phmsa.dot.gov/about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-preparedness-hmep-grant</a>.
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6. Training and Promotion of Availability of Real-Time Train Consist
AFL-CIO TTD requested that PHMSA require Class I railroads to
notify every fire department within their service area about the
availability of electronic real-time train consist information and how
to access it. Additionally, they encouraged PHMSA to require that Class
I railroads provide training to first responders to ensure they are
able to accurately read and interpret train consist information in
either in-person training sessions or via online modules. The Attorneys
General included a similar comment--they requested that PHMSA require
railroads to coordinate with the appropriate state agencies to account
for state-specific needs for real-time train consist information.
PHMSA's Response
PHMSA is committed to increasing awareness of the availability of
real-time electronic train consist information and the availability of
training in the use of this information to protect human lives and the
environment. However, imposing an additional requirement on the
railroads to promote the availability of the information and provide
training is beyond the scope of this rulemaking.
PHMSA plans to increase our outreach and engagement with the
emergency response community to publicize the availability of real-time
train consist information, as well as the resources that PHMSA has made
available to receive training. Additionally, the annual test
requirement adopted in this final rule is intended to both increase
local responder awareness of the availability of real-time electronic
train consist information and ensure that railroads can reliably
provide the information during emergencies. PHMSA also expects that
railroads will use the rule's compliance period to engage with
emergency response organizations along their routes to prepare for
implementation. Note that Class III railroads that choose to comply
with the alternative compliance method adopted in this final rule must
inform all emergency response organizations along their route about the
contents of their written plan that ident
[…truncated; see source link]Indexed from Federal Register on June 24, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.