# Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains

- **operation:** document
- **citation:** 80 FR 71952
- **title:** Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2015-11-18
- **effective on:** Not available
- **summary:** On May 8, 2015, the Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration (FRA), published a final rule entitled "Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains," which adopted requirements designed to reduce the consequences and, in some instances, reduce the probability of accidents involving trains transporting large quantities of Class 3 flammable liquids. The Hazardous Materials Regulations provide a person the opportunity to appeal a PHMSA action, including a final rule. PHMSA received six appeals regarding the final rule, one of which was withdrawn. This document responds to the five remaining appeals submitted by the Dangerous Goods Advisory Council (DGAC), American Chemistry Council (ACC), Association of American Railroads (AAR), American Fuel & Petrochemical Manufacturers (AFPM), and jointly the Umatilla, Yakama, Warm Springs, and Nez Perce tribes (Columbia River Treaty Tribes) and the Quinault Indian Nation (Northwest Treaty Tribes).
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Federal Register, Volume 80 Issue 222 (Wednesday, November 18, 2015) [Federal Register Volume 80, Number 222 (Wednesday, November 18, 2015)] [Rules and Regulations] [Pages 71952-71973] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2015-28774] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 174, and 179 [Docket No. PHMSA-2012-0082 (HM-251)] RIN 2137-AE91 Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Response to appeals. ----------------------------------------------------------------------- SUMMARY: On May 8, 2015, the Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration (FRA), published a final rule entitled ``Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains,'' which adopted requirements designed to reduce the consequences and, in some instances, reduce the probability of accidents involving trains transporting large quantities of Class 3 flammable liquids. The Hazardous Materials Regulations provide a person the opportunity to appeal a PHMSA action, including a final rule. PHMSA received six appeals regarding the final rule, one of which was withdrawn. This document responds to the five remaining appeals submitted by the Dangerous Goods Advisory Council (DGAC), American Chemistry Council (ACC), Association of American Railroads (AAR), American Fuel & Petrochemical Manufacturers (AFPM), and jointly the Umatilla, Yakama, Warm Springs, and Nez Perce tribes (Columbia River Treaty Tribes) and the Quinault Indian Nation (Northwest Treaty Tribes). DATES: November 18, 2015. ADDRESSES: You may find information on this rulemaking and the associated appeals (Docket No. PHMSA-2012-0082) at the Federal eRulemaking Portal: http://www.regulations.gov . FOR FURTHER INFORMATION CONTACT: Ben Supko, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration or Karl Alexy, (202) 493-6245, Office of Safety Assurance and Compliance, Federal Railroad Administration, 1200 New Jersey Ave. SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents of Supplementary Information I. Background II. Response to Appeals A. Scope of Rulemaking Dangerous Goods Advisory Council American Chemistry Council Association of American Railroads PHMSA and FRA Response B. Tribal Impacts and Consultation Columbia River Treaty Tribes and Northwest Treaty Tribes PHMSA and FRA Response C. Information Sharing/Notification Columbia River Treaty Tribes and Northwest Treaty Tribes PHMSA and FRA Response D. Testing and Sampling Program Dangerous Goods Advisory Council PHMSA and FRA Response E. Retrofit Timeline and Tank Car Reporting Requirements American Fuel & Petrochemical Manufacturers PHMSA and FRA Response F. Thermal Protection for Tank Cars Association of American Railroads PHMSA and FRA Response G. Advanced Brake Signal Propagation Systems Dangerous Goods Advisory Council PHMSA and FRA Response Association of American Railroads PHMSA and FRA Response III. Summary I. Background Under 49 CFR 106.110-106.130,\1\ a person may appeal a PHMSA action, including a final rule. Appeals must reach PHMSA no later than 30 days after the date PHMSA published the regulation. On May 8, 2015, PHMSA, in coordination with FRA, published a final rule entitled ``Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains'' (HM-251, 80 FR 26644) (the final rule). The final rule adopted requirements designed to reduce the consequences and, in some instances, reduce the probability of, accidents involving trains transporting large quantities of flammable liquids. The final rule defines certain trains transporting large volumes of flammable liquids as ``high-hazard flammable trains'' (HHFT) \2\ and regulates their operation in terms of enhanced tank car designs, speed restrictions, braking systems, and routing. In response to the final rule, PHMSA received six appeals, one of which was withdrawn. The five active appeals were submitted by the DGAC, ACC, AAR, AFPM, and jointly the Columbia River Treaty Tribes and the Northwest Treaty Tribes. --------------------------------------------------------------------------- \1\ All references to sections of the regulations in this document refer to title 49 CFR. \2\ HHFT ``means a single train transporting 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or a single train carrying 35 or more loaded tank cars of a Class 3 flammable liquid throughout the train consist.'' Sec. 171.8. --------------------------------------------------------------------------- Section 106.130 requires PHMSA to notify those who appeal, in writing, of the action on the appeal, within 90 days after the date that PHMSA published the action being appealed. Based on the final rule's publication date of May 8, 2015, PHMSA was required to provide a response or notice of delay by August 6, 2015. On August 6, 2015, PHMSA posted a notice of delay on its Web site and subsequently published that notice in the Federal Register on August 10, 2015 (Notice 15-14; 80 FR 47987).\3\ --------------------------------------------------------------------------- \3\ http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_79961459E55D0ADB8FF510CF4A93EC93E3A00000/filename/Notice_No_15_14_Delay_in_Appeals.pdf --------------------------------------------------------------------------- This document summarizes and responds to the appeals of the DGAC, [[Page 71953]] ACC, AAR, AFPM, and jointly the Columbia River Treaty Tribes and the Northwest Treaty Tribes. PHMSA has consolidated the appeals and structured this document to address the content of the appeals by topic area. The topic areas include (1) Scope of Rulemaking; (2) Tribal Impacts and Consultation; (3) Information Sharing/Notification; (4) Testing and Sampling Programs; (5) Retrofit Timeline and Tank Car Reporting Requirements; (6) Thermal Protection for Tank Cars; and (7) Advanced Brake Signal Propagation Systems. In each section, PHMSA summarizes the pertinent appeals on the topic area, by appellant, and then provides PHMSA and FRA's response to the appeals on that topic area. The document concludes with a summary of further actions in response to the appeals. II. Response to Appeals A. Scope of Rulemaking Dangerous Goods Advisory Council DGAC expresses concern that the definition of ``HHFT'' as adopted in the final rule would subject manifest trains \4\ to the applicable additional requirements for HHFTs. DGAC contends that shippers cannot know if tank cars they offer to a carrier will be assembled into a manifest train that meets the definition of HHFT, triggering requirements for those tank cars to meet the enhanced standards the final rule establishes. Additionally, DGAC states that at the time of pick-up, railroads cannot make this determination either. DGAC expects that the inability of both shippers and carriers to determine if a future manifest train will be an HHFT will necessitate approximately 40,000 additional DOT Specification 111 (DOT-111) tank cars to be retrofitted to the DOT Specification 117R (DOT-117R) requirements or replaced with the new DOT Specification 117 (DOT-117) tank cars under the final rule. DGAC believes that the definition of HHFT in the final rule is harmfully broad and should be revised to limit its applicability to railroad operations only and not to determine a tank car specification. --------------------------------------------------------------------------- \4\ A ``manifest train'' means a freight train with a mixture of car types and cargoes. --------------------------------------------------------------------------- DGAC also states that both the term and definition for a ``high- hazard flammable unit train'' (HHFUT) \5\ were not proposed in the NPRM. DGAC believes the addition of a new definition for HHFUT is unnecessary and requests that the definition be eliminated. --------------------------------------------------------------------------- \5\ HHFUT ``means a single train transporting 70 or more loaded tank cars containing Class 3 flammable liquid.'' Sec. 171.8. --------------------------------------------------------------------------- DGAC also believes that speed restrictions in the final rule should apply only to crude oil and ethanol trains. It states speed restrictions on all flammable liquids may cause delays in rail service for other rail operations, which could cause significant safety impacts. DGAC opines that more time in transit, more or longer trains, and more overall congestion could cause more incidents. DGAC also states that the scope of the final rule is not harmonized with applicable Canadian regulations. While it believes Canada has taken a ``commodity-based approach'' to the phase-out of legacy DOT-111 tank cars and corresponding retrofit timeline, it states that the U.S. approach is based on classification and packing group. DGAC believes that a commodity-based approach, addressing crude oil and ethanol, makes the most sense because it would address the material being transported in unit trains from a reasonable risk approach. DGAC also continues to encourage PHMSA, FRA, and Transport Canada (TC) to better identify the root causes of crashes and derailments involving these flammable liquids. In summary, DGAC contends that the applicability of the final rule should be limited to the transportation of crude oil and ethanol trains, which, it says, was the stated intention of the rule. DGAC argues that, if the Department wishes to pursue enhanced tank car standards and operational requirements for other Class 3 (flammable liquid) materials, it should do so in a separate rulemaking. American Chemistry Council ACC requests that PHMSA revise the final rule to ensure that the requirement to retrofit existing tank cars applies only to cars carrying crude oil and ethanol. Other than tank cars transporting crude oil or ethanol, ACC states that the preamble and the Regulatory Impact Analysis (RIA) show that PHMSA's final rule did not intend to require retrofits of most tank cars transporting other flammable liquids. ACC requests ``that the HHFT definition be reserved for regulations that apply to railroad train operations, not to tank car design.'' They assert that the HHFT definition should not trigger design standards that would apply to most tank cars intended to contain Class 3 flammable liquids. ACC does not contest the application of the HHFT concept to operational controls, such as establishing speed limits or braking requirements. Furthermore, like DGAC, ACC contends that the final rule will necessitate that approximately 40,000 \6\ additional DOT-111 tank cars either be retrofitted to meet the DOT-117R requirements or be replaced with the new DOT-117 tank cars. ACC suggests that this is in contrast to the stated focus on crude oil and ethanol. ACC echoes DGAC, stating that the shipper has no control over how railroads pick up cars and assemble manifest trains. While chemical shippers can, and often do, tender fewer than 20 tank cars loaded with flammable liquids at a time, there is no certainty that those chemicals will always be on a manifest train with fewer than 35 tank cars loaded with a flammable liquid. ACC asserts that the final rule does not align with the increased risk of derailment associated with unit trains and notes that flammable liquid chemicals are not shipped in unit trains. For that reason, ACC considers the HHFT definition to be overly broad and not aligned with the increased risk of derailment associated with unit trains. ACC urges that the scope be clarified so that the final rule will apply to crude oil unit trains, citing the relevant discussion in the Notice of Proposed Rulemaking. See 79 FR 45040. ACC indicates that because even a single tank car loaded with a Class 3 (flammable liquid) material tendered by one of its members may be placed in an HHFT, all tank cars intended to contain Class 3 (flammable liquid) materials will have to meet the design criteria set forth in the final rule. Furthermore, ACC explains that after publication of the final rule, railroads explicitly told ACC members that they will not manage manifest train operations to avoid triggering the regulatory requirements of the HHFT definition. --------------------------------------------------------------------------- \6\ The members of ``the [Railway Supply Institute] RSI Committee on Tank Cars . . . collectively build more than ninety- five percent (95%) of all new railroad tank cars and own and provide for lease over seventy percent (70%) of railroad tank cars operating in North America.'' On page 56 of those comments, in Table C-3, RSI estimated that at the end of 2015 tank car fleets will contain the following: 87,507 tank cars (of all types) used for the movement of crude oil; 27,899 tank cars (of all types) in ethanol service; and 39,122 tank cars that carry flammable liquids other than crude oil or ethanol. --------------------------------------------------------------------------- ACC contends that removing the retrofitting requirements for Class 3 flammable liquids that are not crude oil or ethanol would alleviate shop capacity problems and provide greater harmonization with TC's analogous retrofit schedule. ACC contends that PHMSA's adherence to using packing group, rather than to using risk, severely [[Page 71954]] complicates the implementation of the rules in the two countries. ACC states that some of the Class 3 flammable liquid materials that will be affected by the final rule are classified in Packing Group (PG) I, so those tank cars will reach PHMSA's deadlines for retrofit or replacement before the tank cars that carry either ethanol or PG II crude oil. ACC states that the different prioritizations chosen by TC and by PHMSA will exacerbate conflicts over tank car shop space. In sum, ACC believes that the scope of the final rule will inadvertently affect nearly 40,000 legacy DOT-111 tank cars that transport Class 3 flammable liquids that were not accounted for in the accompanying RIA. ACC states that because a shipper cannot know how a carrier will assemble a train, the possibility that a shipper's tank car will be placed into an HHFT will force all shippers of Class 3 materials to retrofit or purchase tank cars to meet the DOT-117R or DOT-117 specification. ACC believes that, coupled with a retrofit timeline that does not match the Canadian timeline, the final rule will fail to properly address the risks associated with hazardous materials offered and transported in unit trains. Association of American Railroads AAR contests the scope of the final rule because it permits shippers to continue to package Class 3 flammable liquid materials in tank cars that do not meet the new DOT-117 tank car standard. AAR states that PHMSA has created two pools of tank cars, those that meet the heightened standard for HHFTs and those that do not. As a result, AAR asserts, shippers may continue to offer Class 3 flammable liquid materials in DOT-111 tank cars as long as the DOT-111 is not placed in an HHFT. According to AAR, this places an unjustified burden on the railroads to continuously analyze the composition of each train transporting Class 3 flammable liquid materials in DOT-111 tank cars. AAR claims that PHMSA's argument, that through fleet management the railroads can avoid this issue, is baseless. AAR believes that PHMSA should harmonize with Canada by banning the use of DOT-111 tank cars for transporting any Class 3 flammable liquid materials. By failing to harmonize with Canada in this respect, AAR contends that the U.S. market will become flooded with legacy DOT-111 tank cars, which will further exacerbate the fleet management challenges U.S. railroads will face to construct trains to avoid meeting the definition of an HHFT. To support its appeal, AAR submitted waybill data from its subsidiary Railinc showing numbers of flammable liquid shipments tendered in smaller groups of cars that do not by themselves meet the definition of an HHFT. Data from the first quarter of 2015 illustrate that 37,000 cars of flammable liquids (other than crude oil and ethanol) were tendered in blocks of 20 cars or fewer. During the same period, 37,576 tank cars of other flammable liquids (other than the 25,009 tank cars of crude oil or 39,956 tank cars of ethanol) were tendered in groups of fewer than 35 cars. According to AAR, had the final rule been in effect, a total of 102,541 cars of flammable liquids could have moved in existing DOT-111s.\7\ AAR contends that PHMSA should specify a sunset date for discontinuing the use of DOT-111 tank cars for hazardous materials not in an HHFT. --------------------------------------------------------------------------- \7\ The detailed figures AAR provided can be found in its appeal under Docket No. PHMSA-2012-0082. --------------------------------------------------------------------------- PHMSA and FRA Response In regards to DGAC's, ACC's, and AAR's appeals on the scope of the final rule, we disagree with those appellants' assertions and maintain that the method we determined to apply the new regulatory requirements and the regulatory analysis to support those decisions were conducted through careful consideration of the risks flammable liquids pose and the comments received during the rulemaking process. The position these appellants are taking in the appeals is based on anecdotal evidence and an interpretation of tank car fleet numbers that exaggerates the scope of the rulemaking. While we respect the argument that both shippers and carriers of Class 3 flammable liquids by rail will face new challenges in the wake of these regulations, we maintain that they are capable of working together to comply with the requirements established by the final rule. DGAC, AAR, and ACC contend that both shippers and carriers cannot predict whether tank cars offered for transportation will be placed in a train set meeting the definition of an HHFT. By relying on this rationale, DGAC and ACC contend that the final rule will require nearly 40,000 tank cars to be replaced with the new DOT-117 tank car or be retrofitted to the DOT-117R requirements because a tank car possibly placed in an HHFT. These numbers are based on the 2015 Railway Supply Institute (RSI) fleet forecast predicting the number of DOT-111 tank cars transporting Class 3 flammable liquids (other than crude oil and ethanol). The solution they urge is limiting the scope of the rule to crude oil and ethanol. We disagree. We believe that limiting the scope of the rulemaking to crude oil and ethanol would not align with the intent and applicability of the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180). The HMR are risk based and focus on the hazards presented during transportation. Focusing only on a subset of flammable liquids is a short-sighted regulatory approach and has the potential to lead to inconsistencies and safety concerns in the future. PHMSA's goal is to provide regulatory certainty that addresses the risks posed by all HHFTs. In the NPRM, PHMSA proposed a definition of an HHFT with a threshold of 20 cars in a train. This aligned with AAR's ``Key Train'' definition in its circular OT-55-N, indicating the railroads currently recognize that trains of this make-up represent a high risk.\8\ Additionally, the NPRM tied the applicability of the new tank car specification to the HHFT definition. In response to the NPRM, PHMSA received numerous comments suggesting that both shippers and carriers would be placed in an untenable position because it is impossible to determine when tank cars would be in an HHFT. To address commenters' concerns, we revised the definition of HHFT to 20 cars in a block or 35 throughout the train. The risk-based equivalency of 20 cars in a block and 35 cars throughout the train is calculated in the RIA on page 323.\9\ PHMSA based this change on calculations finding that 20 cars in a block is roughly equivalent to 35 cars placed throughout a train, as well as AAR's comments noting that such a change would alleviate concerns about manifest trains operating in High Threat Urban Areas (HTUAs). --------------------------------------------------------------------------- \8\ http://www.boe.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf . Note that the current circular is OT-55-O: http://www.boe.aar.com/CPC-1312%20OT-55-O%201.27.2015.pdf . \9\ PHMSA-2012-0082-3442 --------------------------------------------------------------------------- Similarly, PHMSA denies DGAC's request to remove the definition of HHFUT. Again, PHMSA developed the definition based on an analysis of comments received on the NPRM and careful cost analysis. While the definition of HHFUT was not expressly proposed in the NPRM, the NPRM did propose requirements for enhanced brake signal propagation systems for all trains meeting the definition of HHFT. PHMSA believes that the HHFUT definition captures the subset of HHFTs that represent the highest risk and where the most benefits from ECP [[Page 71955]] braking will be gained and that the definition is within the scope of the NPRM proposals. Regarding the appellants' concerns that the tank car specification is linked to the number of cars in the train, PHMSA understands that railroads have significant fleet management programs in place. On page 221 of the RIA, PHMSA details the agency's understanding of railroads' capability to conduct fleet management. We are aware that both shippers and carriers have fleet managers to predict or control whether a given tank car will be used in manifest train service or unit train service. Despite these fleet management capabilities and programs, the appellants indicate they have little control over the number of cars loaded with Class 3 (flammable liquid) materials in a train. To argue that neither party can predict a train's composition--particularly when transporting hazardous materials--implies an alarming lack of awareness in appellants' own operations. Indeed, train crews are actually required to maintain a document that reflects the current position in the train of each rail car containing a hazardous material. See Sec. 174.26. AAR contends that all cars transporting flammable liquids should be retrofitted to the DOT-117R requirements. On the other hand, the shippers contend no cars, other than those transporting crude oil and ethanol, should be retrofitted. PHMSA believes the final rule strikes the correct balance by requiring retrofits of all tank cars in crude oil and ethanol service plus the 354 tank cars in PG III service by estimating roughly 10 percent of trains transporting PG III commodities might meet the HHFT definition, and thus, that 10 percent of the cars would require retrofitting.\10\ Further, PHMSA expects that the railroads will manage the assembly of loaded tank cars and manage the classification of trains to exclude tank cars from HHFTs that do not meet the new DOT-117 and DOT-117R tank car specifications. --------------------------------------------------------------------------- \10\ PHMSA-2012-0082-3442 at p. 15. --------------------------------------------------------------------------- Therefore, as previously stated, the estimated number of tank cars in PG III flammable liquid service that would be used to make up HHFTs, and hence have to meet the new requirements, is 354 tank cars, not the nearly 40,000 DGAC and ACC allege. The costs presented in the RIA were based on an analysis of public waybill data and include the costs of retrofitting the 354 tank cars mentioned above. The analysis showed that no other flammable liquid commodities of any packing group--other than crude oil or ethanol--were shipped in quantities that would trigger the HHFT requirements. Further, our analysis of the waybill data indicated that far fewer than 10 percent of PG III cars would be affected by the HHFT definition. Nevertheless, to be conservative, we assumed roughly 10 percent of trains transporting PG III commodities might meet the HHFT definition, therefore 10 percent of the cars would require retrofitting. After adjusting for retirement of some cars and accounting for Canada's fleet share, we calculated that 10 percent of the remaining cars equaled the 354 cars that we incorporated into the cost analysis. ACC's assertion that nearly 40,000 tank cars would have to be retrofitted or replaced to meet the enhanced tank car standards due to their possible placement in an HHFT is grossly exacerbated by the railroads advising ACC that they will not manage fleets to avoid their shipments becoming subject to the new regulations. PHMSA does not agree that this is a valid basis for revising the scope of the final rule's requirements. We explicitly limited the reach of the final rule to trains transporting large quantities of flammable liquids, and defined HHFT to exclude typical manifest trains that do not transport the large quantities of flammable liquids. For railroads to state that they will not manage train sets undermines the risk-based goal of the final rule to exclude commodities not typically shipped in large quantities. DGAC, ACC, and AAR also contend that the U.S. packing group approach is not harmonized with Canada's commodity-based approach to the phase out of DOT-111 tank cars and corresponding retrofit timeline. Again, we disagree. By designating DOT-111 tank cars for phase out by packing group, we are aligned with Canada. While the Canadian approach expressly states crude oil and ethanol, we chose to use PG I, which encapsulates crude oil, and PG II, which encapsulates ethanol. DOT and TC were in constant communication while developing the respective rulemaking actions. AAR also appealed the rule for not specifying a sunset date for the continued use of DOT-111 tank cars for all Class 3 flammable liquids. AAR contends that this will cause the non-retrofitted Canadian fleet to flood the U.S. market, making it increasingly difficult to manage the operational complexities of two pools of tank cars. Even if AAR's contention is true, we chose to authorize the continued use of DOT-111 tank cars for the transportation of hazardous materials not in an HHFT because it would have been cost prohibitive to prohibit all Class 3 flammable liquids in DOT-111 tank cars. As stated in the RIA and final rule preamble, we believe that we appropriately addressed the risk of continued use of such cars by prohibiting the use of legacy DOT-111 tank cars for HHFT service. For these reasons, the DGAC, ACC, and AAR appeals on the scope of the final rule are denied. B. Tribal Impacts and Consultation Columbia River Treaty Tribes and Northwest Treaty Tribes The Columbia River Treaty Tribes and the Northwest Treaty Tribes (``Treaty Tribes'') submitted an appeal to the Secretary on June 5, 2015. The Treaty Tribes' arguments suggest that by omitting formal tribal consultation, DOT did not follow Executive Order (E.O.) 13175 and DOT guidance. By way of remedy, the Treaty Tribes urge PHMSA to ``reopen a notice and comment period for the Tank Car Rule [and] carry out tribal consultations on all aspects of the Tank Car Rule.'' The Treaty Tribes' appeal lays out various arguments for tribal consultation under E.O. 13175 and DOT guidance. First, the appeal argues that PHMSA erred in concluding that the rulemaking ``does not significantly or uniquely affect tribes.'' Second, the Treaty Tribes' appeal argues that the final rule ``impose[s] substantial direct effects or compliance costs'' on Indian tribal governments. Third, the Treaty Tribes' appeal finds fault with PHMSA's discussion of its ``superseding preemption'' authority for hazardous materials regulations in the final rule's discussion of tribal consultation. PHMSA and FRA Response We appreciate the comments the Treaty Tribes and other Tribes provided to the NPRM, which are addressed in the final rule. However, PHMSA respectfully disagrees with the Treaty Tribes appellants and maintains that the appellants' concerns were addressed during the rulemaking process. Overall, the comments from Indian tribal governments to the NPRM expressed concerns about the potential environmental, economic, and safety impacts of crude oil train derailments on tribal lands. PHMSA responded to those concerns by adopting a final rule designed to reduce the severity of and/or prevent derailments in an effort to improve public safety and protection of the environment. PHMSA and FRA conducted an extensive and thorough review of all comments received, and considered the concerns of all [[Page 71956]] stakeholders, including Indian tribal governments. In the final rule, PHMSA summarized and discussed the comments of our stakeholders, including in-depth discussions of the comments of Indian tribal governments, and provided justifications for our adopted proposals and for those proposals we did not adopt. Executive Order 13175 E.O. 13175 establishes processes for when a Federal agency is ``formulating and implementing policies that have tribal implications.'' \11\ This E.O., re-affirmed by President Obama in a November 5, 2009, ``Tribal Consultation'' memorandum, \12\ states that ``[p]olicies that have tribal implications'' refers to ``regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.'' In addition, under DOT Order 5301.1 and other DOT tribal policies, components of DOT must consult with Indian tribal governments before taking any actions that ``significantly or uniquely'' affect them.\13\ In the final rule, PHMSA discussed E.O. 13175, and reasonably concluded that the rulemaking did not: (1) Have tribal implications; (2) significantly or uniquely affect tribes; or (3) impose substantial direct effects or compliance costs on tribal governments.\14\ --------------------------------------------------------------------------- \11\ ``Consultation and Coordination with Indian Tribal Governments,'' 65 FR 67249 (Nov. 9, 2000). \12\ ``Memorandum on Tribal Consultation,'' 74 FR 57881. \13\ ``U.S. Dept. of Transportation, Office of the Secretary of Transportation, Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes,'' Order No. DOT 5303.1 (Nov. 16, 1999). \14\ Although PHMSA did not explicitly invoke DOT Order 5303.1, PHMSA analyzed the applicability of tribal consultation using the Order's applicability to actions that ``significantly or uniquely'' affect Indian tribal governments. --------------------------------------------------------------------------- Significant or Unique Tribal Effects The Treaty Tribes argue that consultation was required because of alleged unique and substantial effects of the final rule on the Treaty Tribes and their interests. Specifically, the Treaty Tribes' appeal discusses the unique history of their fishing rights and states, ``[h]ad PHMSA consulted with the Northwest treaty tribes, it would have learned of the tribal and federal interests in their collective usual and accustomed fishing areas and potential impacts resulting from the proposed Tank Car Rule.'' The Treaty Tribes discussed their concerns with the rail routing analysis discussion of environmentally sensitive areas. Though the Treaty Tribes' fishing rights may be unique, the trigger for the consultation requirement is a federal action that has a significant or unique effect upon tribes. Here, no such federal action exists. The enhanced safety provisions in the final rule, are designed to decrease the likelihood and severity of derailments and resulting spills, in an effort to improve public safety and protect the environment. The requirements adopted in the final rule do not apply directly to tribes. They apply to railroads and hazardous materials shippers. Any potential effect on tribes would take place several stages removed from the federal action of the final rule. PHMSA believes that these regulations work to the benefit of all communities and areas affected by the rail transportation of flammable liquids. For this reason, PHMSA affirms that the impact of the final rule is not ``significant'' or ``unique'' to communities or resources under the jurisdiction of tribal governments. Relationship Between Tribes and United States The Treaty Tribes argue that the rule affects the relationship between tribes and the U.S., triggering the consultation provisions of E.O. 13175. The NPRM requested comments on whether the railroad's notification requirements should proceed through tribal emergency response commissions. This proposal was not adopted in the final rule. The tribes argue that this impacted the relationship between the tribes and the federal government. However, the information-sharing provisions would have directed the railroads to share information with the tribes. Although this may or may not affect the tribes' relationships with the railroads, it would not affect the relationship between tribes and the federal government. As further discussed in the Notification Section of this document, the Treaty Tribes asked that PHMSA reinstitute the notice provisions of the Secretary's May 7, 2014 Emergency Order. DOT has kept in place the May 2014 Emergency Order that requires railroads to provide Bakken crude oil information directly to State Emergency Response Commissions (SERCs). PHMSA plans to revisit these provisions in an upcoming rulemaking and has pledged to maintain the Emergency Order until such a rulemaking codifying these provisions is published. Accordingly, for the reasons previously stated, this rulemaking has not affected the relationship between tribes and the federal government. Preemption/Distribution of Power and Responsibilities Finally, the Treaty Tribes argue that ``PHMSA asserts the preemption provisions of 49 U.S.C. 5126 and 20106 supersede'' the need for tribal consultation. This is an inaccurate characterization of PHMSA's position. In the final rule, we state that ``PHMSA has determined that this rulemaking does not significantly or uniquely affect tribes, and does not impose substantial direct effects or compliance costs on such governments.'' Although the rule referenced the preemption authorities of PHMSA and FRA, the basis for the decision to forgo tribal consultation was the lack of direct tribal impacts. In this case, PHMSA reasonably determined that a consultation with tribal officials was not necessary under the guidelines of E.O. 13175 and DOT policies. Remedy Moreover, the Treaty Tribes' appeal asked that PHMSA ``reopen a notice and comment period for the Tank Car Rule [and] carry out tribal consultations on all aspects of the Tank Car Rule.'' Independent of the arguments discussed above, PHMSA and FRA suggest that granting this aspect of the Treaty Tribes' appeal would result in further rulemaking proceedings that would frustrate implementation of the final rule's safety advancements and potentially delay safety improvements due to regulatory uncertainty. Outreach While PHMSA does not believe E.O. 13175 required a consultation for the HHFT rulemaking, PHMSA recognizes the importance of government-to- government relationships with tribes. To this end, PHMSA has expanded its tribal outreach efforts. For example, in March 2015, DOT representatives met with representatives from the Prairie Island Tribe to discuss tribal concerns with the movement of Bakken crude oil through their community. In August 2015, PHMSA representatives attended the Northwest Tribal Emergency Management Council's annual meeting in Spokane, Washington. This provided an opportunity to speak directly with tribal emergency management leaders and emphasize the importance of effective tribal and federal cooperation. In addition, PHMSA provides hazardous materials emergency preparedness grant funding to tribes to carry out planning and training activities to ensure that [[Page 71957]] State, local, and tribal emergency responders are properly prepared and trained to respond to hazardous materials transportation incidents. For these reasons, the Treaty Tribes appeal to reopen a notice and comment period for the final rule and carry out tribal consultations on all aspects of the rule is denied. C. Information Sharing/Notification Columbia River Treaty Tribes and Northwest Treaty Tribes The Treaty Tribes also appealed the notification provisions of the final rule. They have stated, ``On its face, the Tank Car Rule could be read to abandon the Emergency Order and cut back on both emergency responder and tribal access to train route and emergency response information.'' According to the Treaty Tribes, the notification provisions adopted in the final Rule ``weaken the notification scheme in a number of ways'' since the information provided is ``far less informative'' and its dissemination is limited to ``those with a need- to-know in an anti-terrorism context.'' For these reasons, the Treaty Tribes asked that PHMSA reinstitute the notice provisions of the Secretary's May 7, 2014 Emergency Order. PHMSA and FRA Response We agree with the Treaty Tribes. As discussed in the Treaty Tribes' petition, on May 7, 2014, the Secretary issued an Emergency Order in Docket No. DOT-OST-2014-0067 (``May 2014 Emergency Order'' or ``Order''). That Order requires each railroad transporting in commerce within the U.S. 1,000,000 gallons or more of Bakken crude oil in a single train to provide certain information in writing to the SERCs for each State in which it operates such a train. The Order requires railroads to provide: (1) The expected volume and frequency of affected trains transporting Bakken crude oil through each county in a State; (2) the routes over which the identified trains are expected to operate; (3) a description of the petroleum crude oil and applicable emergency response information; and (4) contact information for at least one responsible party at the railroad. In addition, the Order requires that railroads provide copies of notifications made to each SERC to FRA upon request and to provide SERCs updated notifications when there is a ``material change'' in the volume of affected trains. Subsequent to issuing the Order, in August 2014, PHMSA published the HHFT NPRM, which, in part, proposed to codify and clarify the requirements of the Order, and requested public comment on the proposal. Based on the comments received to the NPRM, along with PHMSA and FRA's analysis of the issues involved in the HHFT final rule, PHMSA did not adopt the notification requirements of the proposed rule. PHMSA determined expansion of the existing route analysis and consultation requirements of Sec. 172.820 to include HHFTs was the best approach to ensure emergency responders and others involved with emergency response planning and preparedness would have access to sufficient information regarding crude oil shipments moving through their jurisdictions to adequately plan and prepare from an emergency response perspective. Thus, the final rule expanded the applicability of Sec. 172.820 to HHFTs. As part of these additional safety and security planning requirements, the final rule requires rail carriers operating HHFTs to comply with Sec. 172.820(g
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