# Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments

- **operation:** document
- **citation:** 71 FR 76834
- **title:** Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2006-12-21
- **effective on:** Not available
- **summary:** The Pipeline and Hazardous Materials Safety Administration (PHMSA), in consultation with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), is proposing to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. Specifically, we are proposing to require rail carriers to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail transportation routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. We are also proposing clarifications of the current security plan requirements to address en route storage, delays in transit, delivery notification, and additional security inspection requirements for hazardous materials shipments. In today's edition of the Federal Register, TSA is publishing an NPRM proposing additional security requirements for rail transportation.
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- **source url:** https://www.federalregister.gov/documents/2006/12/21/E6-21518/hazardous-materials-enhancing-rail-transportation-safety-and-security-for-hazardous-materials
**body:**

Federal Register, Volume 71 Issue 245 (Thursday, December 21, 2006) [Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)] [Proposed Rules] [Pages 76834-76850] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: E6-21518] [[Page 76833]] ----------------------------------------------------------------------- Part IV Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 172 and 174 Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments; Proposed Rule Federal Register / Vol. 71, No. 245 / Thursday, December 21, 2006 / Proposed Rules [[Page 76834]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 172 and 174 [Docket No. RSPA-04-18730 (HM-232E)] RIN 2137-AE02 Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration (PHMSA), in consultation with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), is proposing to revise the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. Specifically, we are proposing to require rail carriers to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail transportation routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. We are also proposing clarifications of the current security plan requirements to address en route storage, delays in transit, delivery notification, and additional security inspection requirements for hazardous materials shipments. In today's edition of the Federal Register, TSA is publishing an NPRM proposing additional security requirements for rail transportation. DATES: Submit comments by February 20, 2007. To the extent possible, we will consider late-filed comments as we develop a final rule. ADDRESSES: You may submit comments identified by the docket number RSPA-04-18730 by any of the following methods: Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments. Web site: http://dms.dot.gov . Follow the instructions for submitting comments on the DOT electronic docket site. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. If sent by mail, comments are to be submitted in two copies. Persons wishing to receive confirmation of receipt of their comments should include a self-addressed stamped postcard. Hand Delivery: Docket Management System; Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: You must include the agency name and docket number RSPA-04-18730 for this notice at the beginning of your comment. Internet users may access comments received by DOT at http://dms.dot.gov . Note that comments received may be posted without change to http://dms.dot.gov including any personal information provided. Please see the Privacy Act section of this document. While all comments should be sent to DOT's Docket Management System (DMS), comments or those portions of comments PHMSA determines to include trade secrets, confidential commercial information, or sensitive security information (SSI) will not be placed in the public docket and will be handled separately. If you believe your comments contain trade secrets, confidential commercial information, or SSI, those comments or the relevant portions of those comments should be appropriately marked so that DOT may make a determination. PHMSA procedures in 49 CFR part 105 establish a mechanism by which commenters may request confidentiality. In accordance with 49 CFR 105.30, you may ask PHMSA to keep information confidential using the following procedures: (1) Mark ``confidential'' on each page of the original document you would like to keep confidential; (2) send DMS both the original document and a second copy of the original document with the confidential information deleted; and (3) explain why the information is confidential (such as a trade secret, confidential commercial information, or SSI). In your explanation, you should provide enough information to enable PHMSA to determine whether the information provided is protected by law and must be handled separately. In addition, for comments or portions of comments that you believe contain SSI as defined in 49 CFR 15.7, you should comply with Federal regulations governing restrictions on the disclosure of SSI. See 49 CFR 1520.9 and 49 CFR 15.9, Restrictions on the disclosure of sensitive security information. For example, these sections restrict the sharing of SSI to those with a need to know, set out the requirement to mark the information as SSI, and address how the information should be disposed. Note also when mailing in or using a special delivery service to send comments containing SSI, comments should be wrapped in a manner to prevent the information from being read. PHMSA and TSA may perform concurrent reviews on requests for designations as SSI. After reviewing your request for confidentiality and the information provided, PHMSA will analyze applicable laws and regulations to decide whether to treat the information as confidential. PHMSA will notify you of the decision to grant or deny confidentiality. If PHMSA denies confidentiality, you will be provided an opportunity to respond to the denial before the information is publicly disclosed. PHMSA will reconsider its decision to deny confidentiality based on your response. Regarding comments not marked as confidential, prior to posting comments received in response to this notice in the public docket, PHMSA will review all comments, whether or not they are identified as confidential, to determine if the submission or portions of the submission contain information that should not be made available to the general public. PHMSA will notify you if the agencies make such a determination relative to your comment. If, prior to submitting your comment, you have any questions concerning the procedures for determining confidentiality or security sensitivity, you may call one of the individuals listed below under FOR FURTHER INFORMATION CONTACT for more information. FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, Office of Safety Assurance and Compliance, Federal Railroad Administration; or Susan Gorsky, (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration. SUPPLEMENTARY INFORMATION: I. Background The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101 et seq., as amended by Sec. 1711 of the Homeland Security Act of 2002, P.L. 107-296 and Title VII of the 2005 Safe, Accountable, Flexible and Efficient Transportation Equity Act--A Legacy for Users (SAFETEA-LU)) [[Page 76835]] authorizes the Secretary of the Department of Transportation to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' The Secretary has delegated this authority to PHMSA (formerly the Research and Special Programs Administration). The Hazardous Materials Regulations (HMR: 49 CFR parts 171-180) promulgated by PHMSA under the mandate in section 5103(b) govern safety aspects, including security, of the transportation of hazardous material the Secretary considers appropriate. Consistent with this security authority, in March 2003, PHMSA adopted new transportation security requirements for offerors and transporters of certain classes and quantities of hazardous materials and new security training requirements for hazardous materials employees. The security regulations, which are explained in more detail below, require offerors and carriers to develop and implement security plans and to train their employees to recognize and respond to possible security threats. When PHMSA adopted its security regulations, shippers and rail carriers were informed these regulations were ``the first step in what may be a series of rulemakings to address the security of hazardous materials shipments.'' 68 FR 14509, 14511 (March 25, 2003). PHMSA also noted ``TSA is developing regulations that are likely to impose additional requirements beyond those established in this final rule,'' and stated it would ``consult and coordinate with TSA concerning security-related hazardous materials transportation regulations * * *'' 68 FR 14511. Under the Aviation and Transportation Security Act (ATSA), Public Law 107-71, 115 Stat. 597 (November 19, 2001), and delegated authority from the Secretary of Homeland Security (DHS), the Assistant Secretary of DHS for TSA has broad responsibility and authority for ``security in all modes of transportation * * *''\1\ ATSA authorizes TSA to take immediate action to protect against threats to transportation security. --------------------------------------------------------------------------- \1\ See 49 U.S.C. 114(d). The TSA Assistant Secretary's current authorities under ATSA have been delegated to him by the Secretary of Homeland Security. Under Section 403(2) of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2315 (2002) (HSA), all functions of TSA, including those of the Secretary of Transporation and the Undersecretary of Transportation of Security related to TSA, transferred to the Secretary of Homeland Security. Pursuant to DHS Delegation Number 7060.2., the Secretary delegated to the Assistant Secretary (then referred to as the Administrator of TSA), subject to the Secretary's guidance and control, the authority vested in the Secretary with respect to TSA, including that in Section 403(2) of the HSA. --------------------------------------------------------------------------- TSA's authority over the security of transportation stems from several provisions of 49 U.S.C. 114. In executing its responsibilities and duties, TSA is specifically empowered to develop policies, strategies and plans for dealing with threats to transportation.\2\ As part of its security mission, TSA is responsible for assessing intelligence and other information in order to identify individuals who pose a threat to transportation security and to coordinate countermeasures with other Federal agencies to address such threats.\3\ TSA also is to enforce security-related regulations and requirements,\4\ ensure the adequacy of security measures for the transportation of cargo,\5\ oversee the implementation and ensure the adequacy of security measures at transportation facilities,\6\ and carry out other appropriate duties relating to transportation security.\7\ TSA is charged with serving as the primary liaison for transportation security to the intelligence and law enforcement communities.\8\ --------------------------------------------------------------------------- \2\ 49 U.S.C. 114(f)(3). \3\ 49 U.S.C. 114(f)(1)-(5), (h)(l)-(4). \4\ 49 U.S.C. 114(f)(7). \5\ 49 U.S.C. 114(f)(10). \6\ 49 U.S.C. 114(f)(11) \7\ 49 U.S.C. 114(f)(15). \8\ 49 U.S.C. 114(f)(1) and (5). --------------------------------------------------------------------------- In sum, TSA's authority with respect to transportation security is comprehensive and supported with specific powers related to the development and enforcement of regulations, security directives, security plans, and other requirements. Accordingly, under this authority, TSA may identify a security threat to any mode of transportation, develop a measure for dealing with that threat, and enforce compliance with that measure. As is evident from the above discussion, DHS and DOT share responsibility for hazardous materials transportation security. The two departments consult and coordinate on security-related hazardous materials transportation requirements to ensure they are consistent with the overall security policy goals and objectives established by DHS and the regulated industry is not confronted with inconsistent security guidance or requirements promulgated by multiple agencies. To that end, on August 7, 2006, PHMSA and TSA signed an annex to the September 28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and Responsibilities. The purpose of the annex is to delineate clear lines of authority and responsibility and promote communications, efficiency, and non-duplication of effort through cooperation and collaboration in the area of hazardous materials transportation security based on existing legal authorities and core competencies. Similarly, on September 28, 2006, FRA and TSA signed an annex to address each agency's roles and responsibilities for rail transportation security. The FRA-TSA annex recognizes that FRA has authority over every area of railroad safety (including security) and that FRA enforces PHMSA's hazardous materials regulations. The FRA-TSA annex includes procedures for coordinating (1) planning, inspection, training, and enforcement activities; (2) criticality and vulnerability assessments and security reviews; (3) communicating with affected stakeholders; and (4) use of personnel and resources. Copies of the two annexes are available for review in the public docket for this rulemaking. Consistent with the principles outlined in the PHMSA-TSA annex, PHMSA and FRA collaborated with TSA to develop this NPRM. In today's edition of the Federal Register, TSA is publishing an NPRM proposing additional security requirements for rail transportation. The TSA rulemaking would enhance security in the rail transportation mode by proposing requirements on freight and passenger railroads, rail transit systems, and on facilities with rail connections that ship, receive, or unload certain hazardous materials. The TSA rulemaking is intended to augment the proposals in this NPRM. Hazardous materials are essential to the economy of the United States and the well being of its people. Hazardous materials fuel motor vehicles, purify drinking water, and heat and cool homes and offices. Hazardous materials are used for farming and medical applications, and in manufacturing, mining, and other industrial processes. Railroads carry over 1.7 million shipments of hazardous materials annually, including millions of tons of explosive, poisonous, corrosive, flammable and radioactive materials. The need for hazardous materials to support essential services means transportation of highly hazardous materials is unavoidable. However, these shipments frequently move through densely populated or environmentally sensitive areas where the consequences of an incident could be loss of life, serious injury, or significant environmental damage. [[Page 76836]] The same characteristics of hazardous materials causing concern in the event of an accidental release also make them attractive targets for terrorism or sabotage. Hazardous materials in transportation are frequently transported in substantial quantities and are potentially vulnerable to sabotage or misuse. Such materials are already mobile and are frequently transported in proximity to large population centers. Further, security of hazardous materials in the transportation environment poses unique challenges as compared to security at fixed facilities. Finally, hazardous materials in transportation often bear clear identifiers to ensure their safe and appropriate handling during transportation and to facilitate identification and effective emergency response in the event of an accident or release. A primary safety and security concern related to the rail transportation of hazardous materials is the prevention of a catastrophic release or explosion in proximity to densely populated areas, including urban areas and events or venues with large numbers of people in attendance. Also of major concern is the release or explosion of a rail car in proximity to iconic buildings, landmarks, or environmentally significant areas. Such a catastrophic event could be the result of an accident--such as the January 6, 2005 derailment and release of chlorine in Graniteville, South Carolina--or a deliberate act of terrorism. The causes of intentional and unintentional releases of hazardous material are very different; however, in either case the potential consequences of such releases are significant. Indeed, the consequences of an intentional release of hazardous material by a criminal or terrorist action are likely to be more severe than the consequences of an unintentional release because an intentional action is designed to inflict the most damage possible. II. Current Hazardous Materials Transportation Safety and Security Requirements Subpart I to Part 172 of the HMR requires persons who offer certain hazardous materials for transportation or transport certain hazardous materials in commerce to develop and implement security plans. Security awareness training is also required of all hazardous materials employees (hazmat employees), and in-depth security training is required of hazmat employees or persons required to develop and implement security plans. The HMR require persons who offer for transportation or transport the following hazardous materials to develop and implement security plans: (1) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined at 49 CFR Sec. 173.403, in a motor vehicle, rail car, or freight container; (2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material in a motor vehicle, rail car, or freight container; (3) More than one L (1.06 qt) per package of a material poisonous by inhalation, as defined at 49 CFR Sec. 171.8, that meets the criteria for Hazard Zone A, as specified in 49 CFR Sec. Sec. 173.116(a) or 173.133(a); (4) A shipment of a quantity of hazardous materials in a bulk packaging having a capacity equal to or greater than 13,248 L (3,500 gallons) for liquids or gases or more than 13.24 cubic meters (468 cubic feet) for solids; (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 pounds) gross weight or more of one class of hazardous materials for which placarding of a vehicle, rail car, or freight container is required for that class under the provisions of subpart F of this part; (6) A select agent or toxin regulated by the Centers for Disease Control and Prevention under 42 CFR Part 73; or (7) A quantity of hazardous material that requires placarding under the provisions of subpart F of 49 CFR Part 172. Thus, in accordance with Subpart I of Part 172 of the HMR, rail carriers transporting any of the above materials in commerce must have developed and implemented security plans. The security plan must include an assessment of possible transportation security risks and appropriate measures to address the assessed risks. Specific measures implemented as part of the plan may vary commensurate with the level of threat at a particular time. At a minimum, the security plan must address personnel security, unauthorized access, and en route security. To address personnel security, the plan must include measures to confirm information provided by job applicants for positions involving access to and handling of the hazardous materials covered by the plan. To address unauthorized access, the plan must include measures to address the risk of unauthorized persons gaining access to materials or transport conveyances being prepared for transportation. To address en route security, the plan must include measures to address security risks during transportation, including the security of shipments stored temporarily en route to their destinations. As indicated above, the HMR set forth general requirements for a security plan's components rather than a prescriptive list of specific items that must be included. The HMR set a performance standard providing offerors and carriers with the flexibility necessary to develop security plans addressing their individual circumstances and operational environment. Accordingly, each security plan will differ because it will be based on an offeror's or a carrier's individualized assessment of the security risks associated with the specific hazardous materials it ships or transports and its unique circumstances and operational environment. Offerors and carriers in all modes were required to have security plans in place by September 25, 2003. New shippers and carriers must have security plans in place before they begin operations. To assist the industry in complying with the security plan requirements, PHMSA developed a security plan template to illustrate how risk management methodology could be used to identify areas in the transportation process where security procedures should be enhanced within the context of an overall risk management strategy. The security template is posted in the docket and on the PHMSA website at http://hazmat.dot.gov/rmsef.htm . In addition, a number of industry groups and associations have developed guidance material to assist their members in developing appropriate security plans. With respect to delays in transportation, rail carriers are currently required to expedite the movement of hazardous materials shipments pursuant to Sec. 174.14 of the HMR. Each shipment of hazardous materials must be forwarded ``promptly and within 48 hours (Saturdays, Sundays, and holidays excluded)'' after acceptance of the shipment by the rail carrier. If only biweekly or weekly service is performed, the carrier must forward a shipment of hazardous materials in the first available train. Additionally, carriers are prohibited from holding, subject to forwarding orders, tank cars loaded with Division 2.1 (flammable gas), Division 2.3 (poisonous gas) or Class 3 (flammable liquid) materials. The purpose of Sec. 174.14 is to help ensure the prompt delivery of hazardous materials shipments and to minimize the time materials spend in transportation, thus minimizing the exposure of hazmat shipments to accidents, derailments, unintended releases, or tampering. [[Page 76837]] Apart from the requirements in Sec. 174.14 to expedite the movement of hazardous materials, the HMR do not include specific routing requirements for rail hazmat shipments, e.g., to route shipments around or away from particular geographic areas. For example, in promulgating its March 2003 security regulations under Docket HM- 232, PHMSA specifically required rail carriers to address en route security; however, PHMSA deliberately decided to leave the specifics of hazardous materials rail routing decisions, and other en route security matters covered by transportation security plans, to the judgment of rail carriers. Accordingly, the HM-232 security regulations preempt, among other things, any state, local, or tribal laws and regulations prescribing or restricting the routing of rail hazardous materials shipments. 49 U.S.C. 5125 and 20106. This proposed rule does not change this general approach to route-related requirements for rail hazardous materials shipments. Because the nation's largest rail carriers operate across many states, and the operating conditions in each location can vary greatly, this approach gives carriers the ability to follow a consistent, nationally-applicable Federal standard while also tailoring safety and security measures to the particular circumstances of individual locations. The rail industry, through the Association of American Railroads (AAR), has developed a detailed protocol on recommended railroad operating practices for the transportation of hazardous materials. The AAR issued the most recent version of this document, known as Circular OT-55-I, on August 26, 2005. The Circular details railroad operating practices for: (1) Designating trains as ``key trains'' containing (i) five tank car loads or more of poison inhalation hazard (PIH) materials, (ii) 20 or more car loads or intermodal portable tank loads of a combination of PIH, flammable gas, Class 1.1 or 1.2 explosives, and environmentally sensitive chemicals, or (iii) one or more car loads of spent nuclear fuel or high level radioactive waste; (2) designating operating speed and equipment restrictions for key trains; (3) designating ``key routes'' for key trains, and setting standards for track inspection and wayside defect detectors; (4) yard operating practices for handling placarded tank cars; (5) storage, loading, unloading and handling of loaded tank cars; (6) assisting communities with emergency response training and information; (7) shipper notification procedures; and (8) the handling of time-sensitive materials. These recommended practices were originally implemented by all of the Class 1 rail carriers operating in the United States; the most recent version of the circular also includes short-line railroads as signatories. Circular OT-55-I defines a ``key route'' as: Any track with a combination of 10,000 car loads or intermodal portable tank loads of hazardous materials, or a combination of 4,000 car loadings of PIH (Hazard zone A, B, C, or D), anhydrous ammonia, flammable gas, Class 1.1 or 1.2 explosives, environmentally sensitive chemicals, Spent Nuclear Fuel (SNF), and High Level Radioactive Waste (HLRW) over a period of one year. Any route defined by a railroad as a key route should meet certain standards described in OT-55-I. Wayside defective wheel bearing detectors should be placed at a maximum of 40 miles apart, or an equivalent level of protection may be installed based on improvements in technology. Main track on key routes should be inspected by rail defect detection and track geometry inspection cars or by any equivalent level of inspection at least twice each year. Sidings on key routes should be inspected at least once a year; and main track and sidings should have periodic track inspections to identify cracks or breaks in joint bars. Further, any track used for meeting and passing key trains should be FRA Class 2 track or higher. If a meet or pass must occur on less than Class 2 track due to an emergency, one of the trains should be stopped before the other train passes. The proposals in this NPRM in part reflect the recommended practices mentioned above, which are already in wide use across the rail industry. III. Request for Comments on the Transportation Security of TIH Materials On August 16, 2004, PHMSA and TSA published a notice and request for comments on the need for enhanced security requirements for the rail transportation of hazardous materials posing a poison or toxic inhalation hazard (TIH materials). See 69 FR 50988. (Note that for purposes of the HMR, the terms ``poison'' and ``toxic'' are synonymous, as are the terms ``PIH materials'' and ``TIH materials.'') In the August notice, PHMSA and TSA sought comments on the feasibility of initiating specific security enhancements and the potential costs and benefits of doing so. Security measures addressed in the notice included improvements to security plans, modification of methods used to identify shipments, enhanced requirements for temporary storage, strengthened tank car integrity, and implementation of tracking and communication systems. To date, we have received over 100 comments. We considered the comments concerning the need for improvements to current security plan requirements and revisions to regulations applicable to in-transit storage in developing this NPRM. These comments are discussed in detail in the following sections. The comments to the August notice related to hazard communication, shipment identification, strengthened tank car integrity, and shipment tracking are not addressed in this rulemaking. Additionally, on August 9-10, 2005, FRA participated in a meeting of the AAR Hazardous Materials Bureau of Explosives (BOE) Committee. At this meeting, FRA requested input from the rail industry regarding internal methods used to track and store information about TIH, explosive, and highway route controlled quantity radioactive materials. Comments regarding the definition of a route for the purpose of rail route analysis were taken into consideration in the development of this NPRM, as reflected by the use of line segment, an industry term. Other comments received related to specific measures, which a carrier should consider in performing a route analysis. A summary of this meeting can be found in the docket for this rulemaking. A. Security Plan Improvements In the August notice, PHMSA and TSA stated the two agencies are interested in determining how security plans required under the HMR might be improved, particularly as they relate to TIH materials. PHMSA and TSA asked commenters to provide information concerning the process by which their security plans were developed, including any problems encountered during the drafting or implementation phase, recommended ``best practices,'' and any additional guidance or assistance as appropriate. Commenters found the guidance provided by DOT and various industry associations to be quite useful for developing the security plans under the HMR. Commenters generally agree additional guidance material specific to the transportation of TIH materials could be helpful in enhancing the security of TIH materials; however, commenters generally oppose a requirement for the creation of separate security plans specific to TIH or other high-hazard materials, noting such materials are already covered by the HMR security plan requirements and [[Page 76838]] DOT and DHS have not shown the existing security plan requirements are inadequate. Most commenters who address this issue note that the success of DOT's current security plan requirement is its flexibility and encourage DOT and DHS to focus on performance-based criteria that are general in nature and provide flexibility to tailor transportation security plans and integrate them into overall security management. Commenters are nearly unanimous in opposition to a requirement for DOT and DHS to review and approve specific security plans, unless done on- site as part of a compliance or outreach review. PHMSA and TSA agree with commenters who suggest compliance with the current security plan regulations could be improved with the development of additional guidance material or more specific requirements applicable to certain types of hazardous materials. As discussed in more detail below, in this NPRM, PHMSA is proposing clarifications and enhancements to the current security requirements as they apply to certain rail operations. B. Temporary Storage In the August notice, PHMSA and TSA discussed issues associated with the temporary storage of rail tank cars during transportation, including current regulatory requirements applicable to such storage. PHMSA and TSA requested comments concerning whether revisions to the temporary storage requirements applicable to rail cars transporting TIH materials are appropriate, including the impact such revisions could have on the costs to transport TIH materials and the impact on recipients and users (for example, towns and municipalities). Many commenters agree the security of TIH rail shipments stored temporarily during transportation should be improved but have mixed views on how to achieve this objective. While some commenters support time limits on interim storage and prohibitions on the storage of TIH rail cars in densely populated areas, others suggest such restrictions would be infeasible because of supply chain issues, adverse economic impacts, and railroad operational and efficiency issues. One commenter notes ``since the federal government does not limit the storage of TIH materials at customer facilities, it would be illogical for the federal government to limit railroad storage of TIH materials.'' Several commenters urge PHMSA and TSA to ``use extra caution'' before prohibiting the temporary storage of TIH materials, suggesting a location in a densely populated area should not in itself be a reason to prohibit temporary storage. Rather than place limits on temporary storage, commenters suggest the security measures implemented at facilities at which such storage occurs should be based on risk assessments. Thus, for example, a facility in a densely populated area would be required to implement more stringent security requirements than a facility in a rural area. Specific measures suggested include perimeter fencing with controlled and limited access, enhanced lighting, remote monitoring, and frequent security patrols. As discussed in more detail below, PHSMA, FRA, and TSA agree with commenters that the security of hazardous materials rail shipments stored temporarily during transportation should be improved, and PHMSA is proposing revisions in this NPRM. In addition, in its NPRM published in today's edition of the Federal Register, TSA is proposing additional security measures applicable to the storage of rail shipments of certain hazardous materials. C. Shipment Tracking The August notice indicated DOT and DHS are considering whether communication or tracking requirements should be required for rail shipments of TIH materials, such as satellite tracking of TIH rail cars and real-time monitoring of tank car or track conditions. In addition, the notice suggested DOT and DHS are considering reporting requirements in the event TIH shipments are not delivered within specified time periods. The HMR currently do not include communication or tracking requirements for hazardous materials shipments. Offerors and transporters of TIH materials may elect to implement communication or tracking measures as part of security plans developed in accordance with subpart I of part 172 of the HMR, but such measures are not mandatory. Commenters who addressed this issue are not convinced that tracking of rail shipments of TIH materials has a security benefit, instead suggesting the probability of a rail car being moved off the rail network is extremely remote and, further, tracking rail cars to determine if they are off course has no value from a security perspective. Commenters also express concerns about the reliability of tracking systems and the possibility that some systems could be compromised. Several commenters suggest that since the railroad industry already has the capability to track rail cars, the existing system should be supplemented, not scrapped, and any mandated tracking requirements should provide for flexibility in choosing different technologies. PHMSA, FRA, and TSA believe that most rail carriers have the capability to report on the locations of certain hazardous materials rail cars. We believe carriers should be required to report car location upon request of the government in certain limited situations, particularly during elevated threat conditions. PHMSA, FRA, and TSA are continuing to consider whether and to what extent rail carriers should be required to gather and report car location information, including the type of information to be collected, its format, and the costs of mandating such a requirement. In its NPRM, published in today's edition of the Federal Register, TSA is proposing to require rail carriers to report location and shipping information for certain hazardous materials to TSA upon request. IV. Proposals in this NPRM Based on comments received in response to the TIH notice and our experience in monitoring industry compliance with the HMR security plan requirements, we are proposing the following revisions to the security plan provisions: We propose to require rail carriers transporting certain types of hazardous materials to compile information and data on the commodities transported, including the transportation routes over which these commodities are transported. We propose to require rail carriers transporting certain types of hazardous materials to use the data they compile on commodities they transport to analyze the safety and security risks for the transportation routes used and one possible alternative route to the one used. Rail carriers would be required to utilize these analyses to transport these materials over the safest and most secure commercially practicable routes. We propose to require rail carriers to specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit as part of their security plans. We propose to require rail carriers transporting certain types of hazardous materials to notify consignees if there is a significant unplanned delay affecting the delivery of the hazardous material. We propose to require rail carriers to work with shippers and consignees to minimize the time a rail car containing certain types of hazardous materials is [[Page 76839]] placed on track awaiting pick-up or delivery or transfer from one carrier to another. We propose to require rail carriers to notify storage facilities and consignees when rail cars containing certain types of hazardous materials are delivered to a storage or consignee facility. We propose to require rail carriers to conduct security visual inspections at ground level of rail cars containing hazardous materials to inspect for signs of tampering or the introduction of an improvised explosive device (IED). These proposed revisions are explained in more detail in the following sections. DOT's hazardous materials transportation safety program provides for a high degree of safety with respect to incidents involving unintentional releases of hazardous materials occurring during transportation. However, intentional misuse of hazardous materials was rarely considered when the regulations were developed. Since 9/11, we have come to realize that hazardous materials safety and security are inseparable. Many, if not most, of the requirements designed to enhance hazardous materials transportation safety, such as strong containers and clear hazard communication, enhance the security of hazardous materials shipments as well. Congress recognized this synergy and legislated its intent that ``hazmat safety [was] to include hazmat security'' when it enacted the Homeland Security Act of 2002 authorizing the Secretary of Transportation to ``prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.'' Safety and security must be considered together, particularly because a given security measure could have a potentially negative impact on overall transportation safety--routing and hazard communication are two obvious examples. Of course, the opposite can also be true--a safety policy or regulation could have a potentially negative impact on transportation security. PHMSA, FRA, and TSA are collaborating to ensure an appropriate balance between safety and security concerns. The transport of highly hazardous materials is not limited to rail. Currently, significant amounts of highly hazardous materials are also transported by highway and vessel. The focus on rail is intended to be one phase in a multiphase effort by DOT and DHS to assess and secure the transportation of hazardous materials in all transportation modes to create an end-to-end secure supply chain. In this regard, we no
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