{"operation":"document","citation":"88 FR 41541","title":"Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information","source_type":"rulemaking","agency":"Pipeline and Hazardous Materials Safety Administration","status":"proposed","official":true,"published_on":"2023-06-27","effective_on":null,"summary":"PHMSA proposes amendments to its Hazardous Materials Regulations to require all railroads to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts. The proposal responds to a safety recommendation of the National Transportation Safety Board and statutory mandates in The Fixing America's Surface Transportation Act, as amended, and complements existing regulatory requirements pertaining to the generation, maintenance, and provision of similar information in hard copy form, as well as other hazard communication requirements.","machine_formats":{"json":"https://regulus.evalyn.ai/document/federal-register-2023-13467.json","markdown":"https://regulus.evalyn.ai/document/federal-register-2023-13467.md"},"app_url":"https://regulus.evalyn.ai/document/federal-register-2023-13467","source_url":"https://www.federalregister.gov/documents/2023/06/27/2023-13467/hazardous-materials-fast-act-requirements-for-real-time-train-consist-information","body":"Federal Register, Volume 88 Issue 122 (Tuesday, June 27, 2023) [Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)] [Proposed Rules] [Pages 41541-41560] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2023-13467] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 174, and 180 [Docket No. PHMSA-2016-0015 (HM-263)] RIN 2137-AF21 Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA proposes amendments to its Hazardous Materials Regulations to require all railroads to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts. The proposal responds to a safety recommendation of the National Transportation Safety Board and statutory mandates in The Fixing America's Surface Transportation Act, as amended, and complements existing regulatory requirements pertaining to the generation, maintenance, and provision of similar information in hard copy form, as well as other hazard communication requirements. DATES: Comments must be received by August 28, 2023. To the extent possible, PHMSA will consider late-filed comments as a final rule is developed. ADDRESSES: You may submit comments by any of the following methods: Federal Rulemaking Portal: https://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, Docket Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m. EST, Monday through Friday, except Federal holidays. Instructions: Include the agency name and docket number PHMSA-2016- 0015 (HM-263) or RIN 2137-AF21 for this rulemaking at the beginning of your comment. Note that all comments received will be posted without change to https://www.regulations.gov , including any personal information provided. If sent by mail, comments must be submitted in duplicate. Persons wishing to receive confirmation of receipt of their comments must include a self-addressed stamped postcard. Docket: For access to the dockets to read background documents or comments received, go to https://www.regulations.gov or DOT Docket Operations Office (see ADDRESSES). Confidential Business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as ``PROPIN.'' Submissions containing CBI should be sent to Dirk Der Kinderen, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that PHMSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking. FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, 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. [[Page 41542]] SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. What is the purpose of the proposed regulatory action? B. What are the key provisions? C. What is the economic impact? II. Electronic Hazard Communication for Rail Transportation Emergency Response A. What action is being proposed? B. What is PHMSA's authority for this proposed action? C. Does this proposed action apply to me? III. Background A. What is train consist information? B. What is currently required regarding train consist information? C. Is there an alternative to the current train consist information requirements? D. How does train consist information affect rail transportation safety? E. How will requiring electronic train consist information affect rail transportation safety? F. What does PHMSA mean by real-time? G. How has PHMSA engaged stakeholders? IV. Section-by-Section Review of Proposed Amendments A. Sections 171.8 and 180.503 B. Section 174.26 C. Section 174.28 V. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Orders 12866 and 14094, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act and Executive Order 13272 F. Paperwork Reduction Act G. Unfunded Mandates Reform Act of 1995 H. Draft Environmental Assessment I. Privacy Act J. Executive Order 13609 and International Trade Analysis K. National Technology Transfer and Advancement Act L. Cybersecurity and Executive Order 14082 M. Severability I. Executive Summary A. What is the purpose of the proposed regulatory action? The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the Hazardous Materials Regulations (HMR; 49 Code of Federal Regulations (CFR) parts 171 to 180) in response to congressional mandates and a safety recommendation of the National Transportation Safety Board (NTSB) by requiring all railroads transporting hazardous materials to generate in electronic form train consist information, maintain that information off-the-train, update that information in real-time, and provide that information to authorized ``emergency response personnel'' \\1\\ in advance of their arrival to an accident or incident. As such, railroads operating a train carrying hazardous materials will be required to push that information to state-authorized local first responders needing that information promptly following either an accident involving that train, or an incident involving the release or suspected release of hazardous material from that train. Railroads must also ensure that, in updating that electronic train consist information, they also update hard (printed) copy versions of the same information provided to train crews such that both hard (printed) copy and electronic versions of that information are consistent, accurate, and available when needed most. PHMSA expects this enhanced, proactive approach will ensure that emergency response personnel have timely, accurate, actionable information regarding the hazardous materials being transported and the hazards they may encounter when they are en route to or reach the scene of a rail accident or incident, thereby reducing the risks to surrounding communities and the environment while expediting site remediation, restoration of rail service, and community engagement efforts as investigation activity proceeds. While PHMSA understands the availability of electronic real-time train consist information may not have changed the outcome of the recent Norfolk Southern train derailment in East Palestine, OH, that accident and similar events that have occurred in recent years highlight the importance of providing emergency response personnel with timely, complete, and accurate information regarding hazardous materials within a train--as any additional time for responders to prepare for what they will encounter may reduce risks and result in significant public safety, commercial, and environmental benefits. --------------------------------------------------------------------------- \\1\\ PHMSA understands ``emergency response personnel'' may include any personnel from any of Federal (e.g., PHMSA, Federal Railroad Administration, National Transportation Safety Board, U.S. Environmental Protection Agency, or Federal Emergency Management personnel), or organizations that state or local governments authorize to perform emergency response activities. --------------------------------------------------------------------------- The amendments proposed herein respond to a mandate in section 7302 of The Fixing America's Surface Transportation Act (FAST Act, Pub. L. 114-94), as amended by the Investment Infrastructure and Jobs Act (Pub. L. 117-58),\\2\\ to require Class I railroads transporting hazardous materials to generate accurate, real-time, electronic train consist information that must be provided ``to State and local first responders, emergency response officials, and law enforcement personnel that are involved in the response to or investigation of an accident, incident, or public health or safety emergency involving the rail transportation of hazardous materials.'' However, consistent with the broader language within an NTSB safety recommendation following the 2005 collision of two freight trains near Anding, MS, PHMSA proposes extending the NPRM's proposed requirements to all railroads in light of the risks to public safety and the environment from delay in responding to releases from even smaller, Class II and III railroads on which hazardous materials are transported. --------------------------------------------------------------------------- \\2\\ Codified at 49 U.S.C. 20103 note. --------------------------------------------------------------------------- B. What are the key provisions? 1. Definition of ``Train Consist Information'': PHMSA proposes to amend the definition of ``train consist'' at Sec. 171.8 to be recharacterized as ``train consist information,'' meaning a hard (printed) copy or electronic record of the position and contents of hazardous materials rail cars of a train where the record includes information required by Sec. 174.26. Specifically, the information includes the contact information for a railroad-designated emergency point of contact; the point of origin and destination of the hazardous materials on the train subject to shipping paper information requirements; shipping paper information required by Sec. Sec. 172.201 to 172.203; and emergency response information required by Sec. 172.602(a). PHMSA also proposes a conforming revision to Sec. 180.503 to delete a definition of ``train consist'' that is not used in that part. 2. Notice to Train Crews: PHMSA proposes to amend the provision to enhance existing requirements at Sec. 174.26 to provide train consist information (as PHMSA proposes to define that term at Sec. 171.8) in hard (printed) copy to train crews prior to movement of hazardous materials by rail. Specifically, PHMSA proposes to clarify responsibilities for railroads to provide a hard (printed) copy version of train consist information to train crews, for train crews to update that hard (printed) copy version of train consist information, and that the hard (printed) copy of the train consist information must be maintained in a conspicuous location of an occupied locomotive. Railroads must also ensure that train consist information is generated and updated in electronic form, maintained offsite of the train itself, and immediately accessible by the railroad's designated emergency response point of [[Page 41543]] contact. Railroads must ensure the hard (printed) copy and electronic forms of the train consist information are at all times accurate and consistent. 3. Emergency Response Information Sharing Requirements: PHMSA proposes a new section at Sec. 174.28 that will establish real-time, electronic train consist information-sharing requirements for hazardous materials transported by rail. All railroads will need to generate and provide train consist information by electronic means to authorized emergency response personnel that could be involved in the response to--or investigation of--an accident, incident, or public health or safety emergency involving the rail transportation of hazardous material. Information generated and shared in accordance with this section must be accurate, provided in a secure and confidential manner consistent with the intent of the FAST Act, and accessible at any time by authorized emergency response personnel. In the event of either an accident, or incident involving the release or suspected release of hazardous material, railroads operating trains carrying hazardous material will be required to promptly forward that train consist information in electronic form to state-authorized local first responders within a 10-mile radius of the incident or accident to assist in response and investigation efforts. C. What is the economic impact? PHMSA estimates that the proposed rule would impact seven Class I railroads, 11 Class II railroads, and 585 Class III railroads and estimates the undiscounted total financial impact of the rulemaking over a 10-year analysis period to be about $46.3 million in 2021 dollars, for an average annual cost of $4.6 million. The discounted total cost of the rulemaking over the analysis period is estimated to be $32.8 million in 2021 dollars at a 7 percent discount rate. The benefits of this proposed rule will depend greatly on the effectiveness of having timely access to real-time train consist information to improve emergency responders' ability to respond to rail accidents and incidents, which may be a high-consequence/low-probability event such as the Norfolk Southern train derailment at East Palestine, OH. PHMSA anticipates the proposed rule will improve emergency responders' ability to promptly identify all the hazardous materials cars involved in an accident and to timely assess the threat from a hazardous materials release. PHMSA estimated the annual damage cost of hazardous material incidents on rail to be $15.6 million in 2021 dollars. Therefore, the proposed rule would have to reduce damage costs by about 30 percent for the monetized benefits of the proposed rule to equal costs. The following table summarizes the annual costs and benefits of the major provisions of the proposed rule in constant 2021 dollars. -------------------------------------------------------------------------------------------------------------------------------------------------------- Average annual cost Proposed requirement ------------------------------------------------ Benefit Breakeven Undiscounted 3% 7% -------------------------------------------------------------------------------------------------------------------------------------------------------- Amending the definition of train .............. .............. .............. By aligning the definition of NA. consist information. the FAST Act with the language in the existing regulation, this amendment improves regulatory clarity. Amending notice to train crew.......... $1,051,753 $897,167 $738,708 By improving emergency Cost-effective if this responders' ability to requirement reduces the promptly identify all the consequences of hazardous hazardous materials involved material incidents by rail by in an accident and assess the about 27 percent. threat from a hazardous materials release, the proposed provisions will reduce injuries and fatalities, material loss and response costs, and delays caused by closures. New information sharing requirement.... 3,169,069 1,025,493 494,850 ---------------------------------------------------------------------------------------------------------------- Total.............................. 4,220,822 1,922,660 1,233,557 -------------------------------------------------------------------------------------------------------------------------------------------------------- As illustrated by the Norfolk Southern train derailment incident at East Palestine, OH, such accidents can have substantial impacts that are not captured by this preliminary regulatory impact analysis (PRIA)--including the long-term environmental concerns and health risks (both physiological and psychological) for local residents. Research also shows that such accidents can reduce property values which--in turn--can slow down economic activity in the area.\\3\\ Additionally, of the 140,000 total route-miles of track in the U.S., 104,000 miles are in rural and tribal areas, suggesting that train-related hazardous material incidents mainly happen in areas populated by disadvantaged communities.\\4\\ PHMSA acknowledges and considers these unquantified factors in selecting the provisions of the proposed rulemaking. --------------------------------------------------------------------------- \\3\\ For example, a study that examines the impact of 33 derailments involving hazardous material on property values in New York State between 2004 and 2013 found that, on average, a derailment depreciates housing values within a one-mile radius by 5%-8% (Chuan Tang et al. (2020). Rail accidents and property values in the era of unconventional energy production. Journal of Urban Economics, 120, https://doi.org/10.1016/j.jue.2020.103295 \\4\\ See PHMSA, ``Improving Rail in Rural Communities,'' https://railroads.dot.gov/rural (last accessed May 3, 2023). --------------------------------------------------------------------------- II. Electronic Hazard Communication for Rail Transportation Emergency Response A. What action is being proposed? PHMSA proposes to require all railroads to generate, maintain externally to the train itself, and update in real-time, accurate train consist information in electronic form, and to make this information available to authorized first responders, emergency response officials, and law enforcement personnel at all times upon request. [[Page 41544]] Further, PHMSA proposes that, in the event of either an accident, or an incident involving the release or suspected release of hazardous material, railroads operating trains carrying hazardous material must promptly forward that train consist information to state-authorized local first responders within a 10-mile radius of the incident or accident. PHMSA also proposes conforming and clarifying revisions to existing HMR requirements governing notification (via hard copy, specially printed, documentation) of train crews for trains carrying hazardous material. PHMSA proposes a compliance period of one year from the date of publication of a final rule in this rulemaking to allow railroads sufficient time to implement (via conducting training, procurement and installation of pertinent equipment and software, and development of procedures and security protocols) measures for generating, organizing, and providing to Federal, state and local first responders, emergency response officials, and law enforcement personnel train consist information in electronic form. Detailed discussions of changes to sections of the HMR based on this proposed action are provided in Section IV. below. B. What is PHMSA's authority for this proposed action? PHMSA's statutory authority for this action is twofold. Section of 7302 of the FAST Act, as amended by the Investment Infrastructure and Jobs Act, directs the Secretary to issue regulations to require Class I railroads \\5\\ transporting hazardous materials to generate accurate, real-time, electronic train consist information that must be provided ``to State and local first responders, emergency response officials, and law enforcement personnel that are involved in the response to or investigation of an accident, incident, or public health or safety emergency involving the rail transportation of hazardous materials.'' Specifically, section 7302(a)(1) directs the Secretary to require that Class I railroads include the following data in connection with such electronic, real-time train consist information: --------------------------------------------------------------------------- \\5\\ The Surface Transportation Board categorizes rail carriers into Class I, Class II, and Class III based on carrier's annual revenues. The threshold for Class I is a carrier earning revenue greater than approximately $900 million/year (2022); the threshold for Class II rail carriers is approximately $40 million/year; and the threshold for Class III rail carriers is any value less than the threshold for Class II railroads. --------------------------------------------------------------------------- (1) The identity, quantity, and location of hazardous materials on a train; (2) The point of origin and destination of the train; (3) Any emergency response information or resources required by the Secretary; and (4) An emergency response point of contact designated by the Class I railroad. Section 7302(a)(4) directs the Secretary to prohibit any Class I railroad, employee, or agent from withholding, or causing to be withheld, that information from authorized entities. Section 7302(a)(5) directs the Secretary to establish security and confidentiality protections, including protections from the public release of proprietary information or security-sensitive information, to prevent the release of real-time train consist information to unauthorized persons. Finally, section 7302(a)(6) directs the Secretary to allow each Class I railroad to enter into a memorandum of understanding with any Class II railroad or Class III railroad that operates trains over the Class I railroad's line to incorporate the Class II railroad's or Class III railroad's train consist information. In addition to the FAST Act mandate, the Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101 et seq.) at 49 U.S.C. 5103 gives the Secretary general authority to issue regulations for the safe transportation of hazardous material in commerce. The Secretary delegates the above statutory authorities to PHMSA at 49 CFR 1.97. C. Does this proposed action apply to me? PHMSA's proposed action applies to all railroads in commerce. Although the FAST Act contains an explicit requirement only for Class I railroads transporting hazardous materials to generate and provide accurate, real-time, electronic train consist information, PHMSA proposes--pursuant to its delegated general authority under the HMTA to make regulations for the safe transportation of hazardous materials including those materials transported by rail--to require Class II and Class III railroads (hereafter referred to as ``regional and short line railroads'') to also compile, update, and forward (as proposed herein) accurate, real-time train consist information in electronic form. PHMSA notes that this broader approach is consistent with the inclusive language within NTSB safety recommendation R-07-04 issued following the 2005 collision of two freight trains containing hazardous materials near Anding, MS; safety recommendation R-07-04 called on PHMSA to require that all railroads immediately provide real-time train consist information to emergency responders following an accident or incident involving rail transportation of hazardous material.\\6\\ NTSB's safety recommendation is consistent with the common-sense proposition that rail transportation of hazardous material is not limited to Class I railroads, and thus the prospect of an accident or emergency is also not limited to those railroads. Regional and short line railroads also transport hazardous material and account for over a third of freight rail in the United States, covering about 50,000 miles of the 140,000- mile U.S. freight rail network. Further, regional and short line railroads are typically the first and last mile of service and often serve as the only connection of rural, small town, and tribal areas of the United States to the nationwide network of railroads--similarly, emergency response personnel within those areas are likely to be the only personnel close enough to the incident or accident to respond quickly. Thus, it is vital for emergency responders and law enforcement in areas served by these railroads to also have access to accurate and real-time train consist information. --------------------------------------------------------------------------- \\6\\ NTSB, NTSB/RAR-07/01, ``Collision of Two CN Freight Trains near Anding, Mississippi on July 10, 2005'' at 48 (Mar. 2007) (NTSB Report), https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf . --------------------------------------------------------------------------- III. Background A. What is train consist information? The train consist generally refers to the contents of a train including the position of locomotives and cars, as well as both non- hazardous and hazardous freight within those cars. The HMR currently defines at Sec. 171.8 the ``train consist'' as a written record of the contents and location of each rail car \\7\\ in a train. --------------------------------------------------------------------------- \\7\\ A rail car means a car designed to carry freight or non- passenger personnel by rail, and includes a box car, flat car, gondola car, hopper car, tank car, and occupied caboose. --------------------------------------------------------------------------- B. What is currently required regarding train consist information? The HMR at Sec. 174.26(a) requires that railroad train crews must have a paper document that reflects the current position in the train of each rail car containing a hazardous material and must update it to indicate changes in the placement of a hazardous material rail car within the train.\\8\\ The train crew [[Page 41545]] may update the document by handwriting on it or by appending or attaching another document to it. The train crew must also have a copy of a document showing the information required on shipping papers, including applicable emergency response information. See Sec. 174.26(b). --------------------------------------------------------------------------- \\8\\ PHMSA notes that the train consist documentation requirements discussed throughout this NPRM complement other hazard communication requirements within part 172 pertaining to marking (subpart D), labelling (subpart E), and placarding (subpart F) of hazardous material packages and transport containers and vehicles. --------------------------------------------------------------------------- A common practice for railroads in satisfying the above regulatory requirements is capturing all required information in a single hard copy (generally printed) document (sometimes referred to as the ``train consist'' or ``train list'') that is provided to train crews. Some railroads, primarily those designated as Class I, compile information in an electronic database (which could be maintained by the railroad itself, or a third party vendor utilizing the ``cloud'') and provide hard copies of some of the database information to the train crew. Those electronic databases may include more information than just the contents and location of a hazardous material rail car in the train: they may incorporate information linking the hazardous material at each location in the train with shipping papers (commonly referred to as bills of lading, required by part 172, subpart C) and emergency response information (required by part 172, subpart G). C. Is there an alternative to the current train consist information requirements? Starting in 2019, several railroads applied for and were granted special permits to allow train consist information documentation to be maintained and communicated using only electronic means in connection with specific service routes. To date, seven special permits (SPs) have been issued,\\9\\ including for six Class I railroads: DOT-SP 20954 (issued to BNSF Railway Company); DOT-SP 21046 (issued to CSX Transportation and recently expired); DOT-SPs 21053 and 21323 (issued to Canadian National Railway Company); DOT-SP 21059 (issued to Union Pacific Railroad Company); and DOT-SP 21110 (issued to Norfolk Southern Railroad). A single special permit (DOT-SP 21266) has been issued to a short line railroad: Richmond Pacific Railroad. The special permits provide operational controls and reporting requirements including the following items of interest: --------------------------------------------------------------------------- \\9\\ Special permits may be reviewed at www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search . DOT-SPs 20954, 21059, 21110, 21266, and 21323 are active while DOT-SP 21053 is active under pending renewal, along with several party-to applications, and DOT-SP 21046 expired by its terms. PHMSA also notes that although Norfolk Southern is a grantee of a special permit, the routes that they included in their application did not include the route along East Palestine, OH. PHMSA will consider in any final rule in this proceeding whether amendment or revocation of those previously-issued special permits would be (based on the content of that final rule) warranted. That said, the PHMSA seeks comment on how the special permits may be impacted by the proposed regulatory amendments in this NPRM. --------------------------------------------------------------------------- (1) Train consist information must be readily available by electronic means to government officials (e.g., emergency response personnel); (2) Updates of the train consist information must be done electronically and in real-time; (3) More than one method of electronic information-sharing must be available to first responders should the primary method (i.e., cellular network devices) not work, as well as a redundant communication option should electronic service be unavailable; (4) Upon notification of an incident to response authorities, the train consist information must be provided; (5) Training must be provided to first responders along portions of a route without cellular service on methods of communication during an incident; and (6) Incidents where information was shared electronically with first responders must be documented and a consolidated report must be provided to PHMSA discussing successes and any corrective actions. PHMSA is not aware of any negative impacts associated with railroads operating under these special permits authorizing electronic train consist information, and based on incident experience, has had positive outcomes from the practice. For example, BNSF Railway Company has reported four occasions where electronic train consist information was shared with first responders to assist in prompt emergency response. D. How does train consist information affect rail transportation safety? Train consist information aids Federal and state first responders, emergency response officials, and law enforcement personnel in ensuring coordinated action to assess an accident, incident, or public health or safety emergency involving hazardous materials in rail transportation, which in turn informs the appropriate response action (e.g., fire suppression media) precisely when every second counts. Those officials typically rely heavily on this information--along with hazard communication required pursuant to part 172 requirements pertaining to marking (subpart D), labelling (subpart E), and placarding (subpart F)--for timely awareness about hazardous material on a train in emergency situations. Indeed, because placarding may be damaged or inaccessible (due to fire, hazardous material release or orientation of the rail car), train crews may be injured or unavailable, or wireless telecommunications service may be limited, the hard copy form of train consist information can often be the only accurate basis of knowledge on the hazardous material within a train. Further, because emergency response may involve personnel from different and distant jurisdictions converging on a single location at different times,\\10\\ there is a premium on having a common understanding of the hazardous material on the train as coordinated response efforts commence. Timely, accurate train consist information also ensures investigation efforts by Federal and state personnel can promptly identify systemic safety issues meriting broader dissemination and address community concerns regarding the availability and reliability of information following an accident or incident. --------------------------------------------------------------------------- \\10\\ PHMSA notes that if an incident or accident occurs in a rural, small town, or Tribal areas, local emergency response personnel--may be the only personnel who can respond promptly to the incident or accident. --------------------------------------------------------------------------- An example taken from a 2007 NTSB investigation report \\11\\ underscores the importance of the availability of timely, accurate train consist information documentation. In the early morning hours of July 10, 2005, two Canadian National Railway Company (CN) trains transporting mixed freight including hazardous material collided head- on in Anding, MS. The collision resulted in the derailment of six locomotives and 17 cars. About 15,000 gallons of diesel fuel were released from the locomotives and resulted in a fire that ended up burning for roughly 15 hours. There also was a limited release of hazardous materials from venting tank cars; however, that did not contribute to the severity of the accident. Two crewmembers from each train were killed in the accident and the train consist information aboard the locomotives was destroyed. Nearly 100 residents from the surrounding community were evacuated from the area as a precaution. The accident ultimately resulted in ca. $10 million (in 2005 dollars) of property damage and environmental clean-up costs. --------------------------------------------------------------------------- \\11\\ NTSB Report at 2-10. --------------------------------------------------------------------------- When emergency responders arrived on the accident scene within a half-hour of the collision, it was dark; the fire was intense, and heavy black smoke prevented visual identification of all the hazardous material tank cars in the [[Page 41546]] wreckage. The first CN official arrived at the scene an hour after the collision and told emergency responders that he did not have any train consist information documentation or knowledge about the hazardous materials on either train. The absence of train crews to pass along train consist information and the inability to access the information on the locomotive--i.e., the lack of immediately available train consist information--severely restricted the ability of emergency responders to make a quick assessment of the potential for a hazardous materials release and thus to respond appropriately. The CN official obtained accurate train consist information on the northbound train via cell phone from the CN dispatcher and provided it to emergency responders, but cell phone service was disrupted before any information about the southbound train could be obtained. Without a document for the southbound train, unsuccessful attempts were made by response personnel on-scene to identify potential hazardous material threats based on placarding and tank car stenciling--i.e., visible hazard signage and markings on the rail cars. Over two-and-a-half hours after the collision, another CN employee that had traveled from Jackson, MS (roughly 45 minutes away from the accident) delivered copies of the train consist information for both trains--but the information he delivered for the southbound train did not accurately reflect the actual makeup of the southbound train at the time of the accident. It was nearly another hour (almost four hours since the collision) before CN officials and emergency responders were able to develop an accurate listing of the derailed cars from the southbound train involved in the fire by visually surveying the scene. Only after being able to determine which hazardous materials were being conveyed on the train was it safe for emergency responders to begin moving cars and applying aqueous film forming foam to suppress the fires at the site. It would be roughly fourteen hours after the collision before the fire was declared suppressed. In reviewing the collision and emergency response efforts, the NTSB concluded that the lack of timely information on the contents of each train--between the loss of train crew personnel, the damaging of stenciling and hazard placarding, and CN's failure to provide timely and accurate train consist information for both trains (particularly the southbound train)--significantly hampered emergency response efforts. The NTSB consequently issued safety recommendation R-07-04 calling on PHMSA to require that all railroads immediately provide real-time train consist information to emergency responders following an accident or incident involving rail transportation of hazardous material.\\12\\ --------------------------------------------------------------------------- \\12\\ See NTSB Report at 48 (``With the assistance of the Federal Railroad Administration, require that railroads immediately provide to emergency responders accurate, real-time information regarding the identity and location of all hazardous materials on a train.''). --------------------------------------------------------------------------- The importance of timely, accurate train consist information is also underscored by the recent Norfolk Southern train derailment in East Palestine, OH. Although NTSB's investigation of that derailment is ongoing, the NTSB noted during a press conference announcing their preliminary findings on February 23, 2023, that many of the hazardous materials placards displayed on the tank cars melted in the ensuing fire following the derailment.\\13\\ Firefighters who responded to the incident from more than 30 minutes away also noted that they didn't gain access to information about the train consist until well after they arrived on scene. PHMSA notes that in such scenarios, emergency response personnel may have to rely on the train consist information provided by the train crew and the train operator as they were conducting their initial assessment of the incident and planning response actions. Notably, too, the East Palestine, OH accident exemplifies how investigation efforts by regulatory officials into potential systemic issues revealed by an incident (or to assuage community anxieties regarding the response effort) can often occur simultaneously with incident response efforts at the site. --------------------------------------------------------------------------- \\13\\ NTSB, Preliminary Report No. RRD23MR005, ``Norfolk Southern Railway Train Derailment with Subsequent Hazardous Material Release and Fires--East Palestine, OH--Feb. 3, 2023 (Feb. 23, 2023), https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf . --------------------------------------------------------------------------- E. How will requiring electronic train consist information affect rail transportation safety? The HMR currently imposes some documentation requirements pertaining to hazardous material within a train. Specifically, each of Sec. Sec. 171.8 (``written record'') and 174.26 (``copy of a document'') contemplate that a ``train consist'' consists only of a printed, hard copy relating only high-level information (the ``contents and location of each rail car in a train'') pertaining to any hazardous materials being transported. And although provisions elsewhere in the HMR governing emergency response (specifically, part 172, subpart G) contemplate that train crews will need to have, or ","truncated":true,"body_characters":148672}