# Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains

- **operation:** document
- **citation:** 81 FR 50068
- **title:** Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2016-07-29
- **effective on:** Not available
- **summary:** PHMSA, in consultation with the Federal Railroad Administration, is issuing this NPRM to propose revisions to regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) based on thresholds of liquid petroleum oil that apply to an entire train consist. Specifically, we are proposing to expand the applicability for comprehensive OSRPs so that any railroad that transports a single train carrying 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist must also have a current comprehensive written OSRP. We are further proposing to revise the format and clarify the requirements of a comprehensive OSRP (e.g., requiring that covered railroads develop response zones describing resources available to arrive onsite to a worst-case discharge, or the substantial threat of one, which are located within 12 hours of each point along the route used by trains subject to the comprehensive OSRP). We also solicit comment on defining high volume areas and staging resources using alternative response times, including shorter response times for spills that could affect such high volume areas. Further, in accordance with the Fixing America's Surface Transportation Act of 2015, this action proposes to require railroads to share information about high-hazard flammable train operations with state and tribal emergency response commissions to improve community preparedness and seeks comments on these proposals. Lastly, PHMSA is proposing to incorporate by reference an initial boiling point test for flammable liquids from the ASTM D7900 method referenced in the American National Standards Institute/American Petroleum Institute Recommend Practices 3000, "Classifying and Loading of Crude Oil into Rail Tank Cars," First Edition, September 2014 as an acceptable testing alternative to the boiling point tests currently specified in the HMR. PHMSA believes providing this additional boiling test option provides regulatory flexibility and promotes enhanced safety in transport through accurate packing group assignment.
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Federal Register, Volume 81 Issue 146 (Friday, July 29, 2016) [Federal Register Volume 81, Number 146 (Friday, July 29, 2016)] [Proposed Rules] [Pages 50068-50129] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2016-16938] [[Page 50067]] Vol. 81 Friday, No. 146 July 29, 2016 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 130, 171, 173, et al. Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains; Proposed Rule Federal Register / Vol. 81 , No. 146 / Friday, July 29, 2016 / Proposed Rules [[Page 50068]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 130, 171, 173, and 174 [Docket No. PHMSA-2014-0105 (HM-251B)] RIN 2137-AF08 Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA, in consultation with the Federal Railroad Administration, is issuing this NPRM to propose revisions to regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) based on thresholds of liquid petroleum oil that apply to an entire train consist. Specifically, we are proposing to expand the applicability for comprehensive OSRPs so that any railroad that transports a single train carrying 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist must also have a current comprehensive written OSRP. We are further proposing to revise the format and clarify the requirements of a comprehensive OSRP (e.g., requiring that covered railroads develop response zones describing resources available to arrive onsite to a worst-case discharge, or the substantial threat of one, which are located within 12 hours of each point along the route used by trains subject to the comprehensive OSRP). We also solicit comment on defining high volume areas and staging resources using alternative response times, including shorter response times for spills that could affect such high volume areas. Further, in accordance with the Fixing America's Surface Transportation Act of 2015, this action proposes to require railroads to share information about high-hazard flammable train operations with state and tribal emergency response commissions to improve community preparedness and seeks comments on these proposals. Lastly, PHMSA is proposing to incorporate by reference an initial boiling point test for flammable liquids from the ASTM D7900 method referenced in the American National Standards Institute/American Petroleum Institute Recommend Practices 3000, ``Classifying and Loading of Crude Oil into Rail Tank Cars,'' First Edition, September 2014 as an acceptable testing alternative to the boiling point tests currently specified in the HMR. PHMSA believes providing this additional boiling test option provides regulatory flexibility and promotes enhanced safety in transport through accurate packing group assignment. DATES: Comments must be received by September 27, 2016. We are proposing a mandatory compliance date of 60 days after the date of publication of a final rule in the Federal Register. In this NPRM, we solicit comments from interested persons regarding the feasibility of the proposed compliance date. ADDRESSES: You may submit comments identified by the docket number, PHMSA-2014-0105 (HM-251B), by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590. Hand Delivery: To the Docket Management System; Room W12- 140 on the ground floor of the West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this notice at the beginning of the comment. To avoid duplication, please use only one of these four methods. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you provide. Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office located at U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comment from the public to better inform its rulemaking process. DOT posts these comments, without edit, to http://www.regulations.gov , as described in the system of records notice, DOT/ALL-14 FDMS, which is accessible through www.dot.gov/privacy . To facilitate comments tracking and response, we encourage commenters to provide their name or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely filed comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions. FOR FURTHER INFORMATION CONTACT: Victoria Lehman, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001; or Karl Alexy, (202) 493- 6245, Office of Safety Assurance and Compliance, Federal Railroad Administration. SUPPLEMENTARY INFORMATION: Abbreviations and Terms AAR Association of American Railroads ACP Area Contingency Plan ANPRM Advance Notice of Proposed Rulemaking ANSI American National Standards Institute API American Petroleum Institute ASTM American Society for Testing and Materials BSEE Bureau of Safety and Environmental Enforcement CDT Central Daylight Time CFR Code of Federal Regulations Crude Oil Petroleum crude oil CST Central Standard Time CWA Clean Water Act (See Federal Water Pollution Control Act) DHS Department of Homeland Security DOE Department of Energy DOI Department of the Interior DOT Department of Transportation EDT Eastern Daylight Time E.O. Executive Order EPA Environmental Protection Agency EPCRA Emergency Planning and Community Right-to-Know Act ESA Environmentally Sensitive/Significant Area (See Endangered Species Act) EST Eastern Standard Time FAST Fixing America's Surface Transportation Act FEMA Federal Emergency Management Agency FMCSA Federal Motor Carrier Safety Administration FR Federal Register FRA Federal Railroad Administration FWPCA Federal Water Pollution Control Act (See Clean Water Act) HHFT High Hazard Flammable Train HMR Hazardous Materials Regulations (See 49 CFR parts 171-180) HMT Hazardous Materials Table (See 49 CFR 172.101) IBP Initial Boiling Point [[Page 50069]] ICP Integrated Contingency Plan LEPC Local Emergency Planning Committee MDT Mountain Daylight Time NASTTPO National Association of SARA Title III Program Officials NCP National Contingency Plan NIMS National Incident Management System NPRM Notice of Proposed Rulemaking NTSB National Transportation Safety Board OMB Office of Management and Budget OPA 90 Oil Pollution Act of 1990 OSC On-Scene Coordinator OSRP Oil Spill Response Plan PG Packing Group PHMSA Pipeline and Hazardous Materials Safety Administration PREP National Preparedness for Response Exercise Program RCP Regional Contingency Plan RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RP Recommended Practice RSPA Research and Special Programs Administration SERC State Emergency Response Commission TERC Tribal Emergency Response Commission TRANSCAER Transportation Community Awareness and Emergency Response TSA Transportation Security Administration TTCI Transportation Technology Center Inc. U.S.C. United States Code USCG United States Coast Guard USFA United States Fire Administration Table of Contents I. Executive Summary A. Oil Spill Response Plans B. Information Sharing C. Initial Boiling Point Test II. Background A. Current Oil Spill Response Requirements B. Advanced Notice of Proposed Rulemaking C. Summary of Proposed Oil Spill Response Requirements D. Related Actions E. HHFT Information Sharing Notification F. Security and Confidentiality for HHFT Information Sharing Notification G. Initial Boiling Point Test III. Recent Spill Events IV. National Transportation Safety Board Safety Recommendations V. Summary and Discussion of Public Comments on Oil Spill Response Plans A. Overview of Comprehensive Oil Spill Response Plans B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans C. Contents of Comprehensive Oil Spill Response Plans D. Approval of Comprehensive Oil Spill Response Plans E. Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans F. Comprehensive Oil Spill Response Plan Costs G. Voluntary Actions VI. Incorporated by Reference VII. Section-by-Section Review VIII. Regulatory Review and Notices A. Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures B. Unfunded Mandates Reform Act C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Environmental Assessment H. Privacy Act I. Statutory/Legal Authority for This Rulemaking J. Regulation Identifier Number (RIN) K. Executive Order 13211 IX. List of Subjects I. Executive Summary The Pipeline and Hazardous Materials Safety Administration (PHMSA), in coordination with the Federal Railroad Administration (FRA), is issuing this notice of proposed rulemaking (NPRM), titled ``Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains,'' in order to improve oil spill response readiness and mitigate effects of rail incidents involving petroleum oil and certain high- hazard flammable trains (defined in 49 CFR 171.8). This NPRM is necessary due to the expansion in the United States' (U.S.) energy production, which has led to significant challenges for the country's transportation system. PHMSA published an advanced notice of proposed rulemaking (ANPRM) on August 1, 2014 (79 FR 45079), under the title, ``Oil Spill Response Plans for High-Hazard Flammable Trains.'' This proposed rule addresses comments to the ANPRM and proposes to modernize the comprehensive oil spill response plan (``comprehensive plan'') requirements under 49 CFR part 130 for petroleum oils. Additionally, consistent with the Emergency Order issued by the Secretary of Transportation (Secretary) on May 7, 2014, this NPRM proposes to require railroads to share information with state and tribal emergency response commissions (i.e., SERCs and TERCs) to improve community preparedness for potential high-hazard flammable train accidents. Lastly, PHMSA is proposing to incorporate by reference the ASTM D7900 test method referenced by the American National Standards Institute/ American Petroleum Institute Recommend Practices 3000, ``Classifying and Loading of Crude Oil into Rail Tank Cars,'' First Edition, September 2014 related to initial boiling point for flammable liquids as an acceptable testing alternative to the boiling point tests specified in the current regulations. PHMSA believes the incorporation of this ASTM methodology into regulation provides regulatory flexibility and promotes enhanced safety in transport through accurate packing group (PG) assignment. The proposals in this NPRM work in conjunction with the requirements adopted in the final rule HM-251, ``Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains'' (80 FR 26643; May 8, 2015) (``HHFT Final Rule''). The Department of Transportation (DOT) continues its comprehensive approach to ensure the safe transportation of energy products. PHMSA discusses the proposed requirements further throughout this NPRM and seeks comments on the questions in the sections, as well as on all aspects of this proposal and its supporting analysis. PHMSA consolidates questions related to the proposed requirements for oil spill response plans in Section II, Subsection C (``Summary of Proposed Oil Spill Response Plan Requirements)'' of this rulemaking. PHMSA consolidates the questions related to information sharing in Section VII (``Section-by-Section Review'') under the discussion of Sec. 174.312. PHMSA is also soliciting public comment on specific issues regarding our analysis and has consolidated these questions in Section 4 of the draft Regulatory Impact Analysis (RIA). Expansion in domestic oil production relative to the 2000s has resulted in a large volume of crude oil being transported to refineries and other transport-related facilities throughout the country.\1\ With the expectation of continued domestic production, rail transportation remains a flexible alternative to transportation by pipelines or vessels, which have historically delivered the vast majority of crude oil to U.S. refineries. The volume of crude oil carried by rail increased 423 percent between 2011 and 2012. 2 3 In 2013, the number of rail carloads of crude oil approached 400,000, reached approximately 450,000 carloads in 2014, and fell to approximately 390,000 carloads in [[Page 50070]] 2015.\4\ Because rail transportation commonly includes petroleum oil shipped in high volumes and large quantities, either as several cars of material along with other commodities in a manifest train or as a single commodity train (commonly referred to as a ``unit train''), there is a significant risk of train accidents that could reasonably be expected to cause substantial harm to the environment by discharging product into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.\5\ As detailed in the Section III (``Recent Spill Events'') of this rulemaking and the draft RIA, recent train accidents involving the discharge of petroleum oils have posed significant challenges for responders. --------------------------------------------------------------------------- \1\ See Memorandum of Understanding (MOU) between the Secretary of Transportation and the Administrator of the Environmental Protection Agency (EPA) establishing jurisdictional guidelines for implementing Sec. 1321(j)(1)(C). 36 FR 24080; reprinted at 40 CFR part 112 App. A (December 18, 1971). \2\ See U.S. Rail Transportation of Crude Oil: Background and Issues for Congress; http://fas.org/sgp/crs/misc/R43390.pdf . \3\ See also ``Refinery receipts of crude oil by rail, truck, and barge continue to increase'' http://www.eia.gov/todayinenergy/detail.cfm?id=12131 . \4\ http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_NUS-NUS_MBBL&f=M . \5\ See 33 U.S.C. 1321(j)(5)(C) and Section I. Statutory/Legal Authority for this Rulemaking of this document. --------------------------------------------------------------------------- This rulemaking addresses issues related to preparedness and planning for the potential of train accidents involving the discharge of flammable liquid energy products. Specifically, this NPRM proposes to: (1) Expand the applicability of comprehensive oil spill response plans to include any single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train transporting 35 or more loaded tank cars of liquid petroleum oil throughout the train consist; (2) clarify and add new requirements for comprehensive oil spill response plans; (3) require railroads to share information with state and tribal emergency response commissions (i.e., SERCs and TERCs) for high-hazard flammable trains to improve community preparedness for potential accidents; and (4) provide an alternative test method for determining the initial boiling point of a flammable liquid. The proposals in this rulemaking are shaped by public comments, National Transportation Safety Board (NTSB) Safety Recommendations, analysis of recent accidents, and input from stakeholder outreach efforts (including first responders). The estimated costs and benefits are described in Table 1 below: Table 1--10 Year and Annualized Costs and Benefits by Stand-Alone Regulatory Proposal ---------------------------------------------------------------------------------------------------------------- Benefits (7%) Provision -------------------------------------------- Costs (7%) Qualitative Breakeven ---------------------------------------------------------------------------------------------------------------- Oil Spill Response Planning and Improved Cost-effective if 10-Year: $18,051,343. Annualized: Response. Communication/ this requirement $2,570,105. Defined Command reduces the Structure may consequences of oil improve response. spills by 4.1%. Pre- identified Access to Equipment and Staging of Appropriate Equipment for Response Zones. Trained Responders. Information Sharing............. Improved Cost-effective if 10-Year: $3,650,832. Annualized: Communication. this requirement $519,796. Enhanced reduces the Preparedness. consequences of oil spills by 0.8%. IBR of ASTM D7900............... Regulatory .................... No Cost Estimated. Flexibility. Enhanced Accuracy in Packing Group Assignments. Total....................... .................... Cost-effective if 10-Year: $21,702,175 Annualized: this requirement $3,089,901. reduces the consequences of oil spills by 4.9%. ---------------------------------------------------------------------------------------------------------------- A. Oil Spill Response Plans The Oil Pollution Act of 1990 amended the Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA) at 33 U.S.C. 1321, by adding oil spill response planning requirements for ``facilities'' that handle oil. The CWA requires that owners and operators of onshore facilities prepare and submit oil spill response plans for facilities that ``could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.'' \6\ The CWA applies to railroads or ``rolling stock,'' which is included in the definition of ``onshore facility.'' \7\ --------------------------------------------------------------------------- \6\ 33 U.S.C. 1321(j)(5)(C). \7\ ``Onshore facility'' means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land.'' 33 U.S.C. 1321(a)(10). ``Rolling stock'' refers to rail cars. --------------------------------------------------------------------------- The Department of Transportation's oil spill planning requirements for rolling stock and motor carriers are found at 49 CFR part 130. Part 130 currently requires ``comprehensive written plans'' that comply with the CWA for the transportation of oil in a quantity greater than 1,000 barrels or 42,000 gallons per package. The approximate capacity of a rail car carrying crude oil is 30,000 gallons. Therefore, part 130 does not currently require that railroads prepare comprehensive written plans. Part 130 also includes preparation of ``basic plans'' for containers with a capacity of 3,500 gallons or more carrying petroleum oil. Therefore, basic oil spill response plans are currently required for most, if not all, tank car shipments of petroleum oil. This rulemaking does not propose changes to the basic plan requirements because there is no justification for such changes at this time. On January 23, 2014, the NTSB issued Safety Recommendation R-14-05, recommending that PHMSA revise the oil spill response planning thresholds for comprehensive oil spill response plans.\8\ The NTSB also issued Safety Recommendation R-14-02, recommending that FRA audit spill response plans.\9\ These [[Page 50071]] recommendations are further discussed in Section IV (``National Transportation Safety Board Safety Recommendation'') of this rulemaking. On August 1, 2014, PHMSA, in consultation with FRA, issued an ANPRM (79 FR 45079; HM-251B) seeking comment on potential revisions to its regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) to high-hazard flammable trains (HHFTs), based on thresholds of crude oil that apply to an entire train consist.\10\ The proposed changes in this rulemaking clarify the comprehensive plan requirements to address the risk posed by HHFTs carrying petroleum oils. --------------------------------------------------------------------------- \8\ http://www.phmsa.dot.gov/PHMSA/Key_Audiences/Hazmat_Safety_Community/Regulations/NTSB_Safety_Recommendations/Rail/ci.R-14-5,Hazmat.print . \9\ http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-14-002 . \10\ For the purposes of this discussion, train consist is considered the rolling stock, exclusive of the locomotive, making up a train. --------------------------------------------------------------------------- This rulemaking addresses the risk of increased shipments of large quantities of petroleum oil being transported by rail and proposes to modernize and clarify the requirements for comprehensive OSRPs and more closely align these requirements with the statutory requirements of the CWA. This rulemaking proposes to expand the applicability for comprehensive OSRPs to railroads transporting a single train containing 20 or more tank cars loaded with liquid petroleum oil in a continuous block, or a single train containing 35 or more tanks cars loaded with liquid petroleum oil throughout the train consist. This quantity aligns with the definition of a high-hazard flammable train in the HHFT Final Rule, which added new requirements and operational controls for these trains. The proposed changes respond to commenter requests for more specificity in plan requirements; provide a better parallel to other federal oil spill response plan regulations promulgated under the CWA; address the needs identified by first responders in the ``Crude Oil Rail Emergency Response Lessons Learned Roundtable Report''; and provide requirements to address the challenges identified through an analysis of recent spill events.\11\ The changes also propose to leverage the geographic information provided through the expanded routing analysis requirements of the HHFT Final Rule by applying a geographic component to the response plan structure. Railroads would divide their routes into ``response zones'' and connect notification procedures and available response resources to the specific geographic route segments that comprise the response zones. The proposed changes clarify the railroad's role in response activities and the communication procedures needed to notify Federal, State, and local agencies. A summary of the Clean Water Act statutory language, the current regulations of 49 CFR part 130, and the proposed changes to the comprehensive plan requirements under this rulemaking are further described in Section II, Subsection C (``Summary of Proposed Oil Spill Response Requirements''). --------------------------------------------------------------------------- \11\ http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse . --------------------------------------------------------------------------- B. Information Sharing Federal hazardous materials transportation law (49 U.S.C. 5101- 5128) authorizes the Secretary to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' The Secretary delegated this authority to PHMSA under 49 CFR 1.97(b). As such, PHMSA is responsible for overseeing a hazardous materials safety program that minimizes the risks to life and property inherent in transportation in commerce. The HMR include operational requirements applicable to each mode of transportation. On a yearly basis, the HMR provide safety and security requirements for the transportation of more than 2.5 billion tons of hazardous materials (hazmat), valued at about $2.3 trillion, over 307 billion miles on the nation's interconnected transportation network.\12\ --------------------------------------------------------------------------- \12\ 2012 Commodity Flow Survey, Research and Innovative Technology Administration (RITA), Bureau of Transportation Statistics (BTS). See http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=CFS_2012_00H01&prodType=table . --------------------------------------------------------------------------- The Secretary also has authority over all areas of railroad transportation safety (Federal railroad safety laws, principally 49 U.S.C. chapters 201-213); this authority is delegated to FRA under 49 CFR 1.89. Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) and the agency inspects and audits railroads, tank car facilities, and hazardous material offerors for compliance with both FRA's regulations and the HMR. FRA also has an extensive, well-established research and development program to improve all areas of railroad safety, including hazardous materials transportation. As a result of the shared role in the safe and secure transportation of hazardous materials by rail, PHMSA and FRA work closely when considering regulatory changes, and the agencies take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail. On May 7, 2014, DOT issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 (Order).\13\ That Order required 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 SERC for each state in which it operates such a train. Subsequently, in August of 2014, PHMSA published an NPRM proposing to codify and clarify the requirements of the Order in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) and requested public comment on the various facets of that proposal. See 79 FR 45015 (Aug. 1, 2014) (HHFT NPRM). In the final rule of that proceeding, however, PHMSA did not adopt the notification requirements proposed in the NPRM. See 80 FR 26643 (May 8, 2015) (HHFT Final Rule). PHMSA determined the expansion of the existing route analysis and consultation requirements under Sec. 172.820 of the HMR to include HHFTs would be the best approach to ensuring that 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. PHMSA reasoned that expanding the existing route analysis and consultation requirements of Sec. 172.820 (which already apply to the rail transportation of certain hazardous materials historically considered to be highly hazardous) would preserve the intent of the Emergency Order to enhance information sharing with emergency responders and allow for the easy incorporation of HHFTs into the overall hazardous materials routing and information sharing scheme. --------------------------------------------------------------------------- \13\ http://www.dot.gov/briefing-room/emergency-order . --------------------------------------------------------------------------- On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation Act of 2015 (``FAST Act''). The FAST Act includes the ``Hazardous Materials Transportation Safety Improvement Act of 2015'' at Sec. Sec. 7001 through 7311, which provides direction for PHMSA's hazardous materials safety program. Section 7302 directs the Secretary to issue regulations that require real-time sharing of electronic train consist information for hazardous materials shipments and require Class I railroads to provide State Emergency Response Commissions (SERCs) advanced notification of HHFTs traveling through [[Page 50072]] their respective jurisdictions. DOT will implement the requirements related to electronic train consists in a separate rulemaking, but is addressing the requirement for advanced notification of HHFTs to SERCs in this rule. Section 7302 requires Class I railroads to provide advanced notification and information on HHFTs to SERCs consistent with the notification requirements in the Secretary's May 2014 Emergency Order in docket number DOT-OST-2014-0067. Section 7302 further requires SERCs receiving this advanced notification to provide the information to law enforcement and emergency response agencies upon request and directs the Secretary to establish security and confidentiality protections for the electronic train consist information and advanced notification information required by Sec. 7302. In response to the FAST Act and the public's interest and feedback the Department previously received related to its May 7, 2014, Emergency Order,\14\ this NPRM proposes to add a new Sec. 174.312 to the HMR. This new section will establish the information sharing requirements, related to Emergency Order DOT-OST-2014-0067. As directed by the FAST Act, the proposed information requirements in Sec. 174.312 are generally consistent with the Order, but broaden the scope of trains covered by the requirement. Consistent with the FAST Act, the proposed regulation expands the notification requirement to apply to all HHFTs as defined in the HHFT Final Rule, not just trains transporting 1,000,000 or more gallons of Bakken crude oil, and requires railroads to provide the notification monthly. Also, Sec. 174.312 would require railroads to provide the required information to both SERCs and Tribal Emergency Response Commissions (TERCs), or other appropriate state designated agencies. Finally, under proposed Sec. 174.312, a railroad operating a train subject to the Comprehensive Oil Spill Response Plan requirements of this proposed rule would also need to provide the relevant SERCs, TERCs, or other appropriate state agencies with the contact information for qualified individuals and the description of response zones required to be compiled under proposed 49 CFR part 130. --------------------------------------------------------------------------- \14\ A discussion regarding public interest and feedback can be found later in the preamble in the section on ``HHFT Rulemaking and Response.'' --------------------------------------------------------------------------- Table 2 below describes, generally, how this proposed rule would address routing and information sharing issues, as compared to the Order (which remains in effect), the regulatory provisions implemented by the HHFT final rule, and the provisions of the FAST Act. PHMSA discusses the information sharing proposals further in the section-by- section analysis for Sec. 174.312 later in this document and solicits comment on the questions listed there, as well as all aspects of this proposal. Table 2--Information Sharing for Emergency Responders ---------------------------------------------------------------------------------------------------------------- FAST Act OSRP NPRM Category Emergency order HHFT final rule (advanced (information and HHFT NPRM (routing) notification) sharing) ---------------------------------------------------------------------------------------------------------------- Who is subject?................. All railroads All railroads Class I railroads All railroads transporting transporting HHFT transporting HHFT transporting HHFT 1,000,000 gallons (20 cars in a (20 cars in a (20 cars in a or more of Bakken block, 35 in block, 35 in block, 35 in crude oil in a consist carrying consist carrying consist carrying single train. ANY Class 3 ANY Class 3 ANY Class 3 flammable liquid). flammable liquid). flammable liquid). Who must the railroads notify? Railroads notify Railroads provide Railroads must Railroads must SERCs or other point of contact notify SERCs who notify SERCs, appropriate state- (POC) information share information TERCs. or other designated to state and/or with other state appropriate state entities. Provide regional fusion and local public designated the notification centers and agencies upon entities who to FRA upon state, local, and request, as share information request. tribal officials appropriate. with other state in jurisdictions and local public that may be agencies upon affected by a request, as rail carrier's appropriate. routing decisions Railroads provide and who directly the notification contact the to DOT upon railroad to request. discuss routing decisions. What type of notification?...... Active--Informatio Passive--Informati Active--Informatio Active--Propose n must on on routing and n must the active continuously be risk analysis continuously be information supplied to these will be discussed supplied to these sharing entities. upon request with entities. requirements in state, local, and the Order with tribal officials certain changes in jurisdictions described below. that may be affected by a rail carrier's routing decisions. When/how often?................. Update Routing and risk Update the Monthly notifications analysis is notifications notification or when Bakken crude performed prior to making certification of oil traffic annually. any material no change to materially changes to any ensure that changes within a volumes or changes to particular county frequencies of frequency or or state (by 25% HHFTs traveling volume are or more). through a county. clearly communicated. [[Page 50073]] What to include in the A reasonable Information on A reasonable A reasonable notification? estimate of the results of estimate of the estimate of the number of routing and risk number of number of HHFTs affected trains analysis can be implicated trains that are expected that are expected discussed upon that are expected to travel, per to travel, per request. This to travel, per week, through week, through includes the week, through each county each county volume of each county within the state. within the state. hazardous within the material applicable state. transported, rail traffic density, trip length, and route among other factors. The routes over Information on Identification of The routes over which the results of the routes over which the affected trains routing and risk which such liquid affected trains will be analysis can be will be will be transported. discussed upon transported. transported. request. This includes routes over which affected trains are transported. A description of Compile under Identification and A description of the petroleum current a description of the materials crude oil and requirements in the Class 3 shipped and applicable subparts C and G flammable liquid applicable emergency of part 172. being transported emergency response on such trains response information and applicable information required by emergency required by subparts C and G response subparts C and G of part 172 of information, as of part 172 of this subchapter. required by this subchapter. regulation. At least one point A point of contact A point of contact At least one point of contact at the (including the at the Class I of contact at the railroad name, title, railroad railroad (including name, phone number and responsible for (including name, title, phone e-mail address) serving as the title, phone number and who can provide point of contact number and address) fusion centers for State address) for the responsible for and consult with emergency SERC, TERC, and serving as the other State, response centers relevant point of contact local and tribal and local emergency for the State officials (may emergency responders Emergency include SERCs/ responders related to the Response TERCs) about the related to the railroad's Commission and results of the Class I transportation of relevant routing and risk railroad's affected trains. emergency analysis transportation of responders (includes such liquid. related to the information on 27 railroad's factors) upon transportation of request. affected trains. Spill Response Plan Info........ N/A............... N/A............... N/A............... For petroleum oil trains subject to Comprehensive Oil Spill Response Plan, the contact info for the qualified individuals and description of response zones compiled under part 130 must also be included. ---------------------------------------------------------------------------------------------------------------- C. Initial Boiling Point Test An offeror's responsibility to accurately classify and describe a hazardous material is a key requirement under the HMR. In accordance with Sec. 173.22 of the HMR, it is the offeror's responsibility to properly ``class and describe a hazardous material in accordance with parts 172 and 173 of the HMR.'' For transportation purposes, classification is ensuring the proper hazard class, packing group, and shipping name are assigned to a particular material. For a Class 3 flammable liquid, the HMR provide two tests to determine classification. Both the flash point and initial boiling point (IBP) must be conducted to properly classify and assign an appropriate packing group (PG) for a Class 3 Flammable liquid with certain changes described below, in accordance with Sec. Sec. 173.120 and 173.121. In 2014, the rail and oil industry, with PHMSA's input, developed a recommended practice (RP) designed to improve crude oil rail safety through proper classification and loading practices. This effort was led by API and resulted in the development of an American National Standards Institute (ANSI) recognized recommended practice (see ANSI/ API RP 3000, ``Classifying and Loading of Crude Oil into Rail Tank Cars''). The API RP 3000 provides guidance on the material characterization, transport classification, and quantity measurement for overfill prevention of petroleum crude oil for the loading of rail tank cars. With regard to classification, this recommended practice concluded that for crude oils containing volatile, low molecular weight components (e.g. methane), the recommended best practice is to test using American Society for Testing and Materials (ASTM) D7900. The IBP test and practice recommended by industry (ASTM D7900) is not currently aligned with the testing requirements authorized in the HMR, forcing shippers to continue to use the testing methods authorized in Sec. 173.121(a)(2). The ASTM D7900 differs from the boiling point tests currently in the HMR, because it is the only test which ensures a minimal loss of light ends. Therefore, for initial [[Page 50074]] boiling point determination, PHMSA is proposing to incorporate by reference the ASTM D7900 test method identified within API RP 3000, thus permitting the industry best practice for testing Class 3 PG assignments. We note that the incorporation of the ASTM D7900, which aligns with the API RP 3000, will not replace the currently authorized initial boiling point testing methods, but rather serve as a testing alternative if one chooses to use that method. PHMSA believes this provides flexibility and promotes enhanced safety in transport th
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