{"operation":"document","citation":"84 FR 6910","title":"Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains (FAST Act)","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"historical","official":true,"published_on":"2019-02-28","effective_on":"2019-04-01","summary":"PHMSA, in consultation with the Federal Railroad Administration and pursuant to the Fixing America's Surface Transportation Act (FAST Act) of 2015, issues this final rule to revise and clarify requirements for comprehensive oil spill response plans (COSRPs) and to expand their applicability based on petroleum oil thresholds that apply to an entire train consist. Specifically, this final rule: Expands the applicability for COSRPs; modernizes the requirements for COSRPs; requires railroads to share information about high-hazard flammable train (HHFT) operations with State and tribal emergency response commissions to improve community preparedness; and incorporates by reference a voluntary standard. The amendments in this final rule will provide regulatory flexibility and improve response readiness to mitigate effects of rail accidents and incidents involving petroleum oil and HHFTs.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2019-02491.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2019-02491.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2019-02491","source_url":"https://www.federalregister.gov/documents/2019/02/28/2019-02491/hazardous-materials-oil-spill-response-plans-and-information-sharing-for-high-hazard-flammable","body":"Federal Register, Volume 84 Issue 40 (Thursday, February 28, 2019) [Federal Register Volume 84, Number 40 (Thursday, February 28, 2019)] [Rules and Regulations] [Pages 6910-6952] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2019-02491] [[Page 6909]] Vol. 84 Thursday, No. 40 February 28, 2019 Part III Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 107, 130, 171, et al. Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains (FAST Act); Final Rule Federal Register / Vol. 84 , No. 40 / Thursday, February 28, 2019 / Rules and Regulations [[Page 6910]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 130, 171, 173, and 174 [Docket No. PHMSA-2014-0105 (HM-251B)] RIN 2137-AF08 Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains (FAST Act) AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: PHMSA, in consultation with the Federal Railroad Administration and pursuant to the Fixing America's Surface Transportation Act (FAST Act) of 2015, issues this final rule to revise and clarify requirements for comprehensive oil spill response plans (COSRPs) and to expand their applicability based on petroleum oil thresholds that apply to an entire train consist. Specifically, this final rule: Expands the applicability for COSRPs; modernizes the requirements for COSRPs; requires railroads to share information about high-hazard flammable train (HHFT) operations with State and tribal emergency response commissions to improve community preparedness; and incorporates by reference a voluntary standard. The amendments in this final rule will provide regulatory flexibility and improve response readiness to mitigate effects of rail accidents and incidents involving petroleum oil and HHFTs. DATES: Effective date: This final rule is effective as of April 1, 2019. Voluntary compliance date: PHMSA is authorizing voluntary compliance beginning February 28, 2019. Delayed compliance date: Unless otherwise specified, compliance with the amendments adopted in this final rule is required beginning August 27, 2019. Incorporation by reference: The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of April 1, 2019. ADDRESSES: Information about this rulemaking (Docket Number PHMSA-2014- 0105) is available at the Federal eRulemaking Portal: http://www.regulations.gov , or at DOT's Docket Operation Office: Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Alexander Wolcott, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; or Mark Maday, (202) 493- 0479, Office of Safety Assurance and Compliance, Federal Railroad Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Abbreviations and Terms AAR Association of American Railroads ACP Area Contingency Plan AFPM American Fuel & Petrochemical Manufacturers ANPRM Advance Notice of Proposed Rulemaking ANSI American National Standards Institute API American Petroleum Institute ASLRRA American Short Line and Regional Railroad Association ASTM ASTM International BSEE Bureau of Safety and Environmental Enforcement CFR Code of Federal Regulations COSRP Comprehensive Oil Spill Response Plan Crude Oil Petroleum crude oil CWA Clean Water Act (see Federal Water Pollution Control Act) DHS U.S. Department of Homeland Security DOE U.S. Department of Energy DOI U.S. Department of the Interior DOT U.S. Department of Transportation E.O. Executive Order EPA Environmental Protection Agency EPCRA Emergency Planning and Community Right-to-Know Act ESA Environmentally Sensitive/Significant Area FAST Act Fixing America's Surface Transportation Act of 2015 FEMA Federal Emergency Management Agency FMCSA Federal Motor Carrier Safety Administration FR Federal Register FRA Federal Railroad Administration FRP Facility Response Plan FRSA Federal Railroad Safety Act FWPCA Federal Water Pollution Control Act (see Clean Water Act) GIUE Government Initiated Unannounced Exercises GRP Geographic Response Plan HHFT High-Hazard Flammable Train HMR Hazardous Materials Regulations (see 49 CFR parts 171-180) HMT Hazardous Materials Table (see 49 CFR 172.101) HMTA Hazardous Materials Transportation Act IAFC International Association of Fire Chiefs IBP Initial Boiling Point ICS Incident Command System ICP Integrated Contingency Plan IMT Incident Management Team LEPC Local Emergency Planning Committee MPMS API Manual of Petroleum Measurement Standards NASTTPO National Association of SARA Title III Program Officials NCP National Contingency Plan NFPA National Fire Protection Association NIMS National Incident Management System NPRM Notice of Proposed Rulemaking NTSB National Transportation Safety Board OMB Office of Management and Budget OPA 90 Oil Pollution Act of 1990 OSC Federal On-Scene Coordinator OSRO Oil Spill Removal Organization OSRP Oil Spill Response Plan PG Packing Group PHMSA Pipeline and Hazardous Materials Safety Administration PREP National Preparedness for Response Exercise Program RCP Regional Contingency Plan RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RP Recommended Practice RSPA Research and Special Programs Administration SACP Sub-Area Contingency Plans SERC State Emergency Response Commission SSI Sensitive Security Information TERC Tribal Emergency Response Commission TRANSCAER Transportation Community Awareness and Emergency Response TSA Transportation Security Administration TTCI Transportation Technology Center Inc. U.S.C. United States Code USCG United States Coast Guard USFA United States Fire Administration Table of Contents I. Executive Summary A. Comprehensive Oil Spill Response Plans B. HHFT Information Sharing Notification for Emergency Response Planning C. Initial Boiling Point Test II. Background A. Oil Spill Response Plans B. HHFT Information Sharing Notification for Emergency Response Planning C. Initial Boiling Point Test III. Recent Spill Events IV. National Transportation Safety Board Safety Recommendations V. Summary and Discussion of Public Comment A. Overview of NPRM Comments B. Summary of Oil Spill Response Plans Comments C. Summary of HHFT Information Sharing Notification Comments (Sec. 174.312) D. Summary of Initial Boiling Point Test Comments (Sec. 173.121) VI. Incorporated by Reference [[Page 6911]] VII. Section-by-Section Review VIII. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13771 D. Executive Order 13132 E. Executive Order 13175 F. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures G. Paperwork Reduction Act H. Executive Order 13211 I. Unfunded Mandates Reform Act J. Executive Order 13609 and International Trade Analysis K. Environmental Assessment L. Regulation Identifier Number (RIN) M. Privacy Act List of Subjects I. Executive Summary The Pipeline and Hazardous Materials Safety Administration (PHMSA), in consultation with the Federal Railroad Administration (FRA), issues this final rule to improve oil spill response readiness and mitigate effects of rail accidents and incidents involving petroleum oil and high-hazard flammable trains (HHFTs). See 49 CFR 171.8 for definition. This final rule is necessary due to expansion in U.S. energy production having led to significant challenges for the country's transportation system. PHMSA is finalizing this rule in accordance with sections 7302 and 7307 of the FAST Act, Public Law 114-94, and the Consolidated Appropriations Act of 2018, division L, title I, Public Law 115-141. On July 29, 2016, PHMSA, in consultation with FRA, published a Notice of Proposed Rulemaking (NPRM) under the same title as this final rule (81 FR 50068). The NPRM proposed regulations in three areas: Comprehensive oil spill response plans (COSRPs), HHFT information sharing, and incorporation of an initial boiling point test for determination of light hydrocarbons in stabilized petroleum crude oils. Overall, this final rule adopts the requirements proposed in the NPRM with minor changes for plain language or clarification in consideration of the comments received to the NRPM. The estimated costs and benefits for this final rule are described in Table 1 below: Table 1--10 Year and Annualized Costs (in Millions) and Benefits by Stand-Alone Regulatory Proposal ---------------------------------------------------------------------------------------------------------------- Benefits (7%) Provision ----------------------------------- Costs (7%) Qualitative Breakeven ---------------------------------------------------------------------------------------------------------------- Oil Spill Response Planning and Response........... Cost-effective 10-Year: $21.4. Improved if this Annualized: $3.1. Communication/ requirement Defined Command reduces the Structure may consequences improve of oil spills response. by 6.7%. Pre- identified Access to Equipment and Staging of Appropriate Equipment for Response Zones. Trained Responders.. Information Sharing................................ Cost-effective 10-Year: $3.7. Improved if this Annualized: $0.53. Communication. requirement reduces the Enhanced consequences Preparedness.. of oil spills by 1.2%. IBR of ASTM D7900.................................. N/A............ No Cost Estimated. Regulatory Flexibility. Enhanced Accuracy in Packing Group Assignments.. ------------------------- Total.......................................... ................ Cost-effective 10-Year: $25.2. if this Annualized: $3.6. requirement reduces the consequences of oil spills by 7.8%. ---------------------------------------------------------------------------------------------------------------- A. Comprehensive Oil Spill Response Plans This final rule adopts the requirements for COSRPs as proposed in the NPRM. The COSRP requirements are promulgated under the authority of the Oil Pollution Act of 1990 (OPA 90), Public Law 101-380, which amended the Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA), at 33 U.S.C. 1321. Table 2 below summarizes the applicable statutory requirements for COSRPs, the requirements adopted in this final rule, and the differences between the requirements adopted in this final rule and the proposals of the NPRM: Table 2--COSRPs ------------------------------------------------------------------------ HM-251B final rule HM-251B NPRM OSRP statutory requirements COSRP requirements differences ------------------------------------------------------------------------ 33 U.S.C. 1321(j)(5)(A)(i) 49 CFR part 130 49 CFR part 130 The President shall issue Restructures part Minimal regulations which require 130 to create clarification and an owner or operator of a subpart C for plain language tank vessel or facility COSRPs. wording changes described in paragraph Responds to between NPRM and (j)(5)(C) to prepare and commenter requests final rule submit to the President a to better align throughout all plan for responding, to the COSRPs with minimum sections in maximum extent practicable, requirements for response to to a worst-case discharge, other federally comments. and to a substantial threat mandated (Oil Spill NPRM proposed that of such a discharge, of oil Response Plans) FRA would be or a hazardous substance. OSRPs, especially responsible for those for pipelines approving COSRPs, in 49 CFR part 194. and final rule Requires PHMSA to consolidates DOT's approve COSRPs. OSRP approval under PHMSA. Sec. 130.105 Sec. 130.104 renumbered as Sec. 130.105 [[Page 6912]] Provides general Minimal. Clarifies requirements for COSRPs with only recordkeeping, plan one response zone format, and do not need to information about include separate response structure. ``core plan'' Permits use of section. Integrated Adds greater Contingency Plan flexibility by (ICP) and State permitting use of plans providing State plans that equivalent level of provide equivalent coverage. protection. 33 U.S.C. 1321(j)(5)(C)(iv) Sec. 130.100 Sec. 130.101 renumbered as Sec. 130.100 An onshore facility [e.g. Expands current Minimal. Clarifies rolling stock] \\1\\ that, applicability COSRP are only because of its location, (42,000 gallons of required for routes could reasonably be oil in a single used to transport expected to cause package) to also applicable substantial harm to the include route quantities of oil. environment by discharging segments which are into or on the navigable used for: waters, adjoining At least 20 shorelines, or the cars of liquid exclusive economic zone. petroleum oil in a continuous block or 35 cars of liquid petroleum oil in a train consist. For example, tank cars containing crude oil, fuel oil, petroleum distillates, diesel, or gasoline must be included when counting cars in the consist. Mixtures that do meet the criteria for Class 3 flammable or combustible material in Sec. 173.120, or containing residue as defined in Sec. 171.8 of subchapter C, are not required to be included when determining the number of tank cars transporting liquid petroleum oil. Examples of petroleum oils which may not meet the definition of a Class 3 flammable or combustible liquid include diluted waste water and certain mineral oils. 33 U.S.C. 1321(j)(5)(D)(i) Sec. Sec. 130.105 Sec. 130.103 and 130.110 renumbered as Sec. 130.110 Be consistent with the Requires Minimal. Clarifies requirements of the certification that railroads are National Contingency Plan the plan is identifying (NCP) and Area Contingency consistent with a Environmentally Plans (ACP). list of specific Sensitive Areas NCP/ACP (ESAs) from requirements for existing Area or ``minimum Regional compliance'' to Contingency Plans. clarify the elements of NCP/ACP applicable to rail shipments. 33 U.S.C. 1321(j)(5)(D)(ii) Sec. Sec. 130.120 Sec. Sec. and 130.125 130.104 and 130.105 renumbered as Sec. Sec. 130.120 and 130.125, respectively Identify the qualified Requires Minimal. Clarifies individual having full identification of that communication authority to implement Qualified between Qualified removal actions, and Individual for each Individuals and require immediate response zone in appropriate Federal communications between that quickly accessible officials and individual and the information persons providing appropriate Federal summary. Requires response personnel official and the persons immediate and equipment, must providing personnel and communication be immediate. equipment pursuant to between Qualified clause. Individual and appropriate Federal official and the persons providing personnel and equipment. Requires plan include a checklist of necessary notifications, contact information, and necessary information to clarify procedures.. 33 U.S.C. 1321(j)(5)(D)(iii) Sec. Sec. 130.105 Sec. Sec. and 130.130 130.102 and 130.106 renumbered as Sec. Sec. 130.105 and 130.130, respectively Identify, and ensure by Includes the Minimal. Clarifies contract or other means establishment of railroads determine approved by the President response zones, to the boundaries of the availability of, ensure availability each response zone, private personnel and of personnel and provided resources equipment necessary to equipment in are identified with remove to the maximum different appropriate extent practicable a worst- geographic route planning framework. case discharge (including a segments. Requires Clarifies use of discharge resulting from planning framework U.S. Coast Guard fire or explosion), and to for response zones (USCG) guidelines mitigate or prevent a including ensuring for determining and substantial threat of such resources are evaluating required a discharge. staged within 12 response resources hours at any part during the response of the applicable in accordance with route appendix C of 33 Includes CFR part 154. requirements to identify organization, personnel, equipment, and deployment location thereof capable of removal and mitigation for a worst-case discharge (WCD). Allows use of Oil Spill Removal Organization (OSRO) which has been classified by the United States Coast Guard under 33 CFR 154.1035 or 155.1035 to be used in lieu of listing personnel and equipment. 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.135... Sec. 130.107 renumbered as Sec. 130.135 Describe the training....... Requires Minimal. Clarifies certification and Incident Command documentation System (ICS) employees have been incident commander trained in carrying level training is out their recommended best responsibilities practice. under the plan. [[Page 6913]] 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.140... Sec. 130.108 renumbered as Sec. 130.140 Describe . . . equipment Requires description Minimal. Edits testing. and certification section number and equipment testing title. meets the manufacturer's minimum requirements. 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.140... Sec. 130.108 renumbered as Sec. 130.140 Describe . . . periodic Requires exercises Minimal. Updates unannounced drills. to be equivalent to USCG website the PREP Guidelines. address and replaces term ``drill'' with ``exercise.'' 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.130... Sec. 130.106 renumbered as Sec. 130.130 Describe . . . response COSRPs describe: Minimal. Adds a actions of persons on the Activities reference to vessel or at the facility. and appendix C of 33 responsibilities of CFR part 154 to railroad personnel clarify the prior to arrival of equivalent planning Qualified standards to use of Individual;. OSROs classified Qualified under 33 CFR Individual's 154.1035 and responsibilities 155.1035. and actions; and. Procedures coordinating railroad/Qualified Individual actions with On-Scene Coordinator (OSC).. 33 U.S.C. 1321(j)(5)(D)(v) Sec. 130.150 Sec. 130.109 renumbered as Sec. 130.150 Be updated periodically..... Clarifies plans Minimal. In response should be reviewed to commenters, this every 5 years, when final rule significant clarifies that information railroads may changes, or after a operate for two discharge requiring years upon plan activation submission of ocurs. response plan to PHMSA and certification of appropriate resources, for better consistency with the CWA. 33 U.S.C. 1321(j)(5)(E) Sec. 130.150... Sec. 130.111 renumbered as Sec. 130.150 (1) With respect to any Requires approval of Minimal. NPRM response plan submitted plans by PHMSA proposed FRA under this paragraph for an provided minimum approve railroad onshore facility that, requirements for COSRPs. Final rule because of its location, the plan are met. consolidates DOT's could reasonably be approval of OSRPs expected to cause under PHMSA. As significant and substantial with other PHMSA harm to the environment by programs and discharging into or on the procedures, PHMSA navigable waters or will continue to adjoining shorelines or the work with FRA for exclusive economic zone, guidance on rail and with respect to each specific response plan submitted information and under this paragraph for a procedures, tank vessel, nontank including shared vessel, or offshore review and facility, the President enforcement. shall-- Clarifies method to submit plans in electronic format. (i) promptly review such response plan; (ii) require amendments to any plan that does not meet the requirements of this paragraph; (iii) approve any plan that meets the requirements of this paragraph; (2) A tank vessel, nontank Sec. 130.100 Sec. 130.101 moved vessel, offshore facility, Prohibits to Sec. Sec. or onshore facility transportation of 130.100 and 130.150 required to prepare a oil subject to Minimal. Edits the response plan under this COSRPs unless section numbering subsection may not handle, requirements for and title for plain store, or transport oil submission, review, language. unless-- and approval in Sec. 130.150 are met and the railroad is operating in compliance with the plan. (i) in the case of a tank vessel, nontank vessel, offshore facility, or onshore facility for which a response plan is reviewed by the President under paragraph (1), the plan has been approved by the President; and (ii) the vessel or facility is operating in compliance with the plan [[Page 6914]] (3) Notwithstanding Sec. 130.100 Sec. 130.111 moved paragraph (1), the Allows railroads to to Sec. 130.100 President may authorize a temporarily Minimal. PHMSA tank vessel, nontank continue operating receives plans. vessel, offshore facility, for up to 2 years Clarifies temporary or onshore facility to while waiting for continuation are operate without a response plan approval, limited to 2 years plan approved under this provided the plan per statutory paragraph, until not later has been submitted language. than 2 years after the date to PHMSA and the of the submission to the railroad submits a President of a plan for the signed tank vessel, nontank certification vessel, or facility, if the statement of owner or operator certifies appropriate that the owner or operator resources.. has ensured by contract or other means approved by the President the availability of private personnel and equipment necessary to respond, to the maximum extent practicable, to a worst-case discharge or a substantial threat of such a discharge. ------------------------------------------------------------------------ B. HHFT Information Sharing Notification for Emergency Response Planning --------------------------------------------------------------------------- \\1\\ ``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). --------------------------------------------------------------------------- This final rule adopts the requirements for HHFT information sharing as proposed in the NPRM, with clarification for plain language and modifications in response to commenters. The information sharing notification requirements are promulgated under the authority of Federal hazardous materials transportation law (49 U.S.C. 5101-5128). Table 3 below summarizes the advanced notification information sharing requirements mandated by the Fixing America's Surface Transportation (FAST) Act of 2015 and adopted in this final rule. Table 3--Information Sharing Notification for Emergency Response Planning ---------------------------------------------------------------------------------------------------------------- FAST Act (advanced notification) Final rule HM-251B (information Topic Section 7302(a)(3), (4), (6) sharing) 49 CFR 174.312 ---------------------------------------------------------------------------------------------------------------- Who is subject? Class I railroads transporting All railroads transporting HHFT HHFT (20 cars in a block, 35 in (20 cars in a block, 35 in consist carrying ANY Class 3 consist carrying ANY Class 3 flammable liquid). flammable liquid). Who must the railroads notify? Railroads must notify State Railroads must notify SERCs, Emergency Response Commissions Tribal Emergency Response (SERCs), who must provide the Commissions (TERCs), or other notification information (and appropriate State designated updates) to any political entities who share information subdivision of a State or with appropriate local public agency responsible for authorities, upon their emergency response or law request. enforcement, upon request of the political subdivision or public agency. What security measures are required? Required security and If the disclosure includes confidentiality protections information that railroads include protections from the believe is security sensitive public release of proprietary or proprietary and exempt from information or security- public disclosure, the sensitive information, to railroads should indicate that prevent the release to in the notification. unauthorized persons. What to include in the notification? A reasonable estimate of the A reasonable estimate of the number of implicated trains number of HHFTs that are that are expected to travel, expected to travel, per week, per week, through each county through each county within the within the applicable state. state. Identification of the routes The routes over which the over which such liquid will be affected trains will be transported. transported. Identification and a description A description of the materials of the Class 3 flammable liquid shipped and applicable being transported on such emergency response information trains and applicable emergency required by subparts C and G response information, as of part 172 of this required by regulation. subchapter. A point of contact at the Class At least one point of contact I railroad responsible for at the railroad (including serving as the point of contact name or email address, title, for State emergency response phone number, and address) for centers and local emergency the SERC, TERC, and relevant responders related to the Class emergency responders related I railroad's transportation of to the railroad's such liquid. transportation of affected trains. When/how often? Update the notifications prior Updates the notification for to making any material changes changes in volume greater than to any volumes or frequencies 25 percent. of HHFTs traveling through a county. `Material changes' in Emergency Order means changes greater than 25%. How are records maintained? Requires notification Notification may be provided ``consistent with the electronically or in writing. notification content Railroads provide the requirements in Emergency Order notification to DOT upon Docket No. DOT-OST-2014-0067''. request. [[Page 6915]] What COSRP Information must be included? N/A............................. For petroleum oil trains subject to the COSRP in part 130, includes the contact information for Qualified Individual and the response zone description from the COSRP. ---------------------------------------------------------------------------------------------------------------- C. Initial Boiling Point Test The NPRM proposed to incorporate by reference ASTM International's (ASTM) D7900, ``Standard Test Method for Determination of Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography'' related to initial boiling point for crude oils containing light hydrocarbons as an acceptable testing alternative to the boiling point tests specified in the current regulations. This ASTM standard is referenced by the industry best practice, American National Standards Institute (ANSI)/American Petroleum Institute (API) Recommended Practices 3000, ``Classifying and Loading of Crude Oil into Rail Tank Cars,'' First Edition, September 2014. This final rule incorporates the test method by reference as proposed under the authority of Federal hazardous materials transportation law (49 U.S.C. 5101-5128). This final rule clarifies that initial boiling point, when determining the boiling distribution using ASTM D7900, is the temperature at which 0.5 weight percent is eluted. Inclusion of this additional boiling test option provides regulatory flexibility and promotes enhanced safety in transport through accurate Packing Group (PG) assignment. II. Background Expansion in U.S. energy production has led to significant challenges for the country's transportation system. Traditionally, pipelines and oceangoing tankers have delivered most crude oil to U.S. refineries, accounting for approximately 93 percent of total receipts (in barrels) in 2012.\\2\\ Although other modes of transportation--rail, barge, and truck--have accounted for a relatively minor portion of crude oil shipments historically, volumes have risen rapidly in the 2010s relative to previous decades.\\3\\ The rail transportation of large volumes of crude oil and other petroleum products presents unique safety risks. Rail accidents have tracked changes in production and rail shipments of crude oil-- rising when rail shipments increase in volume and falling when crude oil volumes fall according to FRA and PHMSA incident report data. Please see the RIA for further discussion and a graph of oil-by-rail shipments and derailments. This final rule will improve response readiness and mitigate effects of rail accidents and incidents by instituting information sharing requirements for HHFTs and COSRP requirements for petroleum oil trains. --------------------------------------------------------------------------- \\2\\ Bureau of Transportation Statistics, ``Crude Oil and Petroleum Products Transported in the United States by Mode.'' U.S. Department of Transportation. Last modified 01/2018. https://www.bts.gov/content/crude-oil-and-petroleum-products-transported-united-states-mode . \\3\\ U.S Energy Information Administration. ``Petroleum and Other Liquids.'' Independent Statistics and Analysis. Last modified 08/ 2018. https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_ZAMN-ZAMN_MBBL&f=M . --------------------------------------------------------------------------- DOT reached out to stakeholders in industry, emergency response, and State and tribal governments through various forums and events to better understand and increase community awareness and preparedness for response to bulk transportation incidents involving energy products. In May 2014, PHMSA published the ``Crude Oil Rail Emergency Response Lessons Learned Roundtable Report,'' which outlined key factors that were identified by a panel of fire chiefs and emergency response management officials as having a direct impact on success in managing the outcomes of a crude oil transportation incident.\\4\\ More information about DOT's actions related to community awareness of and preparedness for response to bulk transportation incidents involving energy products is available on PHMSA's ``Safe Transportation of Energy Products'' website.\\5\\ --------------------------------------------------------------------------- \\4\\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training . \\5\\ https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview . --------------------------------------------------------------------------- A. Oil Spill Response Plans The Oil Pollution Act of 1990 (OPA 90) amended the Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA), at 33 U.S.C. 1321 by adding oil spill response planning requirements for ``facilities'' that handle oil. Railroads or ``rolling stock'' are included in the definition of ``onshore facility.'' \\6\\ The CWA requires owners and operators of onshore facilities to prepare and submit Oil Spill Response Plans (ORSPs) for facilities that ``could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.'' The CWA directs the President to issue regulations requiring owners and operators of onshore oil facilities to develop, submit, update and in some cases obtain approval of OSRPs meeting certain minimum requirements in 33 U.S.C. 1321(j)(5). --------------------------------------------------------------------------- \\6\\ ``Onshore facility'' means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land.'' 33 U.S.C. 1321(a)(10). ``Rolling stock'' refers to rail cars. --------------------------------------------------------------------------- On October 22, 1991, the President delegated authority to the Secretary of Transportation to regulate certain transportation-related facilities (i.e., motor carriers and railroads) under sections 1321(j)(1)(C) and 1321(j)(5) of the CWA. See E.O. 12777, 56 FR 54757, sections 2(b)(2) and 2(d)(2). The Secretary later delegated this authority to PHMSA's predecessor agency, the Research and Special Programs Administration (RSPA). PHMSA's delegated authority under sections 1321(j)(1)(C) and 1321(j)(5) for certain transportation- related facilities (i.e., motor vehicles and rolling stock) is solely the authority to promulgate regulations. When required, COSRPs are submitted to the Federal Highway Administration or the FRA, for motor carriers and railroads, respectively. On June 17, 1996, RSPA published a final rule carrying out its delegated authority under the CWA for motor carriers and railroads.\\7\\ The 1996 final rule established ``comprehensive plans'' under the authority of 33 U.S.C. 1321(j)(5) for anyone transporting oil in a quantity greater than 1,000 barrels or 42,000 gallons per package. The 1996 final rule also adopted requirements in part 130 for the preparation of ``basic plans'' for containers with a capacity of [[Page 6916]] 3,500 gallons or more carrying petroleum oil. Basic plans were adopted as a ``containment rule pursuant to Sec. 1321(j)(1)(C)'' of the CWA and therefore do not meet the minimum requirements for OSRPs in section 1321(j)(5).\\8\\ --------------------------------------------------------------------------- \\7\\ 61 FR 30533 (June 17, 1996). \\8\\ 61 FR 30537 (June 17, 1996). --------------------------------------------------------------------------- A rail tank car designed to carry liquid materials, including petroleum oil, has an approximate capacity of 30,000 gallons. Because the typical rail tank car has a capacity around 30,000 gallons, no rail carriers are currently transporting tank cars of petroleum oil subject to the 42,000-gallon packaging threshold for COSRPs adopted by the 1996 final rule. On July 6, 2013, an unattended, runaway unit train carrying crude oil from the Bakken region of North Dakota derailed in the town of Lac-M[eacute]gantic, Quebec. The incident resulted in loss of life and destruction of property and the environment. The cause was found to be human error that led to the unattended train gathering speed before derailing near the center of Lac-M[eacute]gantic. While an OSRP may not have prevented this incident, the Lac-M[eacute]gantic incident prompted examination into the safety of crude oil transportation by rail. The National Transportation Safety Board (NTSB) recommended requiring COSRPs for unit trains of petroleum in Safety Recommendation R-14-005. Congress also directed DOT to develop and report on a plan to finalize updated requirements for OSRPs in section 7307 of the FAST Act. Additionally, in the Consolidated Appropriations Act of 2018, signed into law on March 23, 2018, Congress directed the Secretary to ``issue a final rule to expand the applicability of comprehensive oil spill response plans.'' On July 29, 2016, PHMSA, in consultation with FRA, published an NPRM titled ``Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains.'' The NPRM proposed to modernize COSRP requirements under 49 CFR part 130 in response to NTSB recommendations (including Safety Recommendation R-14-005), the FAST Act, and comments from the public to an August 1, 2014, Advance Notice of Proposed Rulemaking (ANPRM) (79 FR 45079). PHMSA also proposed the requirements to address needs identified by first responders in the ``Crude Oil Rail Emergency Response Lessons Learned Roundtable Report'' and challenges identified through analysis of recent spill events.\\9\\ --------------------------------------------------------------------------- \\9\\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training . --------------------------------------------------------------------------- Specifically, the NPRM proposed to expand COSRPs to routes over which railroads operate a single train containing 20 or more tank cars loaded with liquid petroleum oil in a continuous block or a single train containing 35 or more tanks cars loaded with liquid petroleum oil throughout the train consist. The NPRM also proposed to update the COSRP requirements in response to comments requesting greater specificity to plan contents through a closer alignment to other Federal OSRP regulations promulgated under the CWA. The proposed requirements in the NPRM are similar to PHMSA's Office of Pipeline Safety's (OPS) requirements for pipeline oil spill response plans in 49 CFR part 194. Developing OSRPs for both pipeline and rail require planning for routes spanning large geographic areas. The NPRM proposed railroads divide their routes into ``response zones'' that connect notification procedures and available response resources to the specific geographic area for the covered route segments. Response zones include geographic information, such as a planning framework, which ensures response resources are staged within 12 hours of any point along the route. The NPRM requested comments on providing regulatory flexibility for small businesses, requiring faster response times in certain ``High Volume Areas,'' and recommending that the Qualified Individual should be trained to the Incident Commander level using the Incident Command System (ICS). B. HHFT Information Sharing Notification for Emergency Response Planning Federal hazardous materials transportation law (49 U.S.C. 5101- 5128) authorizes the Secretary to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' The Secretary delegates this authority to PHMSA under 49 CFR 1.97(b). PHMSA is responsible for overseeing a hazardous materials safety program that minimizes the risks to life and property inherent in the transportation of hazardous materials in commerce. The Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) include operational requirements applicable to transportation of hazardous materials by highway, rail, aircraft, and vessel. The Secretary also has authority over all areas of railroad transportation safety (Federal railroad safety laws, principally 49 U.S.C. chapters 201-213); this authority is delegated to FRA under 49 CFR 1.89. FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) and inspects and audits railroads, tank car facilities, and hazardous material offerors for compliance with both FRA's regulations and the HMR. Because of the shared role in the safe and secure transportation of hazardous materials by rail, PHMSA and FRA work closely when considering regulatory changes. The agencies take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail. On May 7, 2014, the Secretary, under the authority of 49 U.S.C. 5121(d), issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 (Order).\\10\\ The Order requires each railroad transporting 1 million gallons or more of Bakken crude oil in a single train in commerce within the United States to provide certain information in writing to the State Emergency Response Commission (SERC) for each state in which it operates such a train. Tribal Emergency Response Commissions (TERCs) are permitted ","truncated":true,"body_characters":300144}