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

- **operation:** document
- **citation:** 73 FR 72182
- **title:** Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2008-11-26
- **effective on:** 2008-12-26
- **summary:** The Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), is improving safety by revising the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials by rail. We are requiring rail carriers to compile annual data on certain shipments of explosive, toxic by inhalation, and radioactive materials; use the data to analyze safety and security risks along rail routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments. We are also clarifying rail carriers' responsibility to address in their security plans issues related to en route storage and delays in transit. In addition, we are adopting a new requirement for rail carriers to inspect placarded hazardous materials rail cars for signs of tampering or the presence of suspicious items, including improvised explosive devices. We adopted these requirements in an interim final rule published April 16, 2008. This final rule fulfills requirements in Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007. Also, in today's edition of the Federal Register, both FRA and TSA are publishing final rules adopting requirements and procedures that promote rail transportation security. ---------------------------------------------------------------------------
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Federal Register, Volume 73 Issue 229 (Wednesday, November 26, 2008) [Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)] [Rules and Regulations] [Pages 72182-72194] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: E8-27826] [[Page 72181]] ----------------------------------------------------------------------- Part III Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration Federal Railroad Administration ----------------------------------------------------------------------- 49 CFR Parts 172, 174 and 209 Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments; Railroad Safety Enforcement Procedures; Enforcement, Appeal and Hearing Procedures for Rail Routing Decisions; Final Rules Federal Register / Vol. 73, No. 229 / Wednesday, November 26, 2008 / Rules and Regulations [[Page 72182]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 172 and 174 [Docket No. PHMSA-RSPA-2004-18730] \1\ 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: Final rule. ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), is improving safety by revising the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials by rail. We are requiring rail carriers to compile annual data on certain shipments of explosive, toxic by inhalation, and radioactive materials; use the data to analyze safety and security risks along rail routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments. We are also clarifying rail carriers' responsibility to address in their security plans issues related to en route storage and delays in transit. In addition, we are adopting a new requirement for rail carriers to inspect placarded hazardous materials rail cars for signs of tampering or the presence of suspicious items, including improvised explosive devices. We adopted these requirements in an interim final rule published April 16, 2008. This final rule fulfills requirements in Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007. Also, in today's edition of the Federal Register, both FRA and TSA are publishing final rules adopting requirements and procedures that promote rail transportation security. --------------------------------------------------------------------------- \1\ This rulemaking was formerly designated as HM-232E; however, with the transition to a new government-wide regulations portal, docket number nomenclature has since changed. Some references to the old docket number are still present in this document. --------------------------------------------------------------------------- DATES: This final rule is effective December 26, 2008. FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, Office of Safety Assurance and Compliance, Federal Railroad Administration; or Susan Gorsky or Ben Supko, (202) 366-8553, Office of Hazardous Materials Standards, Pipeline and Hazardous Materials Safety Administration. SUPPLEMENTARY INFORMATION: I. Background On December 21, 2006, the Pipeline and Hazardous Materials Safety Administration (PHMSA) in coordination with the Federal Railroad Administration (FRA) and the Transportation Security Administration (TSA), published a notice of proposed rulemaking (NPRM) under Docket PHMSA-RSPA-2004-18730 (71 FR 76834) proposing to revise the current requirements in the HMR applicable to the safe and secure transportation of hazardous materials by rail. Specifically, we proposed 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 routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. We also proposed 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. On April 16, 2008, PHMSA, once again coordinating with FRA and TSA, published an interim final rule (IFR) under Docket PHMSA-RSPA-2004- 18730 (73 FR 20751) that amended the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to establish requirements that enhance the safe and secure transportation of hazardous materials by rail. The IFR requires rail carriers to compile annual data on certain shipments of explosive, toxic by inhalation, and radioactive materials; use the data to analyze safety and security risks along rail routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments. It also clarifies that each rail carrier must address issues related to en route storage and delays in transit in its security plan. In addition, the IFR establishes a new requirement for rail carriers to inspect placarded hazardous materials rail cars for signs of tampering or suspicious items, including improvised explosive devices (IEDs). We published the rulemaking as an IFR to account for changes mandated by the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act or Act) (Pub. L. 110-53; 121 Stat. 266). Congress enacted the 9/11 Commission Act, which the President signed into law on August 3, 2007, as the final rule was being developed for the Docket PHMSA-RSPA-2004-18730 proceeding. The 9/11 Commission Act, among other requirements, directed the Secretary of Transportation, in consultation with the Secretary of Homeland Security, to publish a final rule by May 3, 2008, based on a NPRM published under this docket on December 21, 2006. We elected to publish the rule as an IFR rather than a final rule to provide interested persons with an opportunity to comment on changes made to the NRPM that directly relate to the mandates established by the 9/11 Commission Act. In accordance with Section 1551(e) of the Act, PHMSA's final rule must require rail carriers of ``security-sensitive materials'' to ``select the safest and most secure route to be used in transporting'' those materials, based on the rail carrier's analysis of the safety and security risks on primary and alternate transportation routes over which the carrier has authority to operate. Specifically, the final rule must require such rail carriers to perform the following tasks each calendar year: (1) Collect and compile security-sensitive commodity data, by route, line segment, or series of line segments, as aggregated by the rail carrier and identify the geographic location of the route and the total number of shipments by UN identification number; (2) Identify practicable alternative routes over which the carrier has authority to operate as compared to the current route for such shipments; (3) Seek relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route used by a rail carrier to transport security-sensitive materials; (4) Consider the use of interchange agreements with other rail carriers when determining practicable alternative routes and the potential economic effects of using an alternative route; (5) Analyze for both the primary route and each practicable alternative route the safety and security risks for the route, railroad facilities, railroad storage facilities, and high-consequence targets along or in proximity to the route; these analyses must be in writing and performed for each calendar year; (6) Compare the safety and security risks on the primary and alternative routes, including the risk of a catastrophic release from a shipment [[Page 72183]] traveling along these routes, and identify any remediation or mitigation measures implemented on the primary and alternative transportation routes; and (7) Use the analysis described above to select the practicable route posing the least overall safety and security risk. In addition, the Act mandates that PHMSA require a covered rail carrier, at least once every three years, to analyze its route selection determinations, including a comprehensive, system-wide review of all operational changes, infrastructure modifications, traffic adjustments, changes in the nature of high-consequence targets located along or in proximity to the route, or other changes affecting the safety and security of the movements of security-sensitive materials that were implemented since the previous analysis was completed. Finally, the Act mandates that PHMSA require covered rail carriers to retain in writing all route review and selection decision documentation and restrict the distribution, disclosure, and availability of this information to appropriate persons. In this final rule, we are responding to comments submitted on the IFR that relate to our interpretation and application of Sec. 1551 of the 9/11 Commission Act. To review rulemakings, regulatory evaluations, environmental assessments, comments, or public meeting and congressional briefing transcripts for this docket go to http://www.regulations.gov under docket number PHMSA-RSPA-2004-18730. II. Summary of Interim Final Rule Based on comments received in response to the NPRM and the provisions of the 9/11 Commission Act, the April 16 IFR adopted the following revisions to the HMR: Rail carriers transporting certain explosives, poisonous by inhalation (PIH), and radioactive materials must compile information and data on the commodities transported, including the routes over which these commodities are transported. Rail carriers transporting the specified hazardous materials must use the data they compile and relevant information from state, local, and tribal officials, as appropriate, regarding security risks to high-consequence targets along or in proximity to a route to analyze the safety and security risks for each route used and practicable alternative routes to the route used. Using these analyses, rail carriers must select the safest and most secure practicable route for the specified hazardous materials. In developing security plans required under Subpart I of Part 172 of the HMR, rail carriers must specifically address the security risks associated with shipments delayed in transit or temporarily stored in transit. Rail carriers transporting the covered hazardous materials must notify consignees of any significant unplanned delays affecting the delivery of the hazardous material. Rail carriers must work with shippers and consignees to minimize the time a rail car containing one of the specified hazardous materials is placed on track awaiting pick-up, delivery, or transfer. Rail carriers must conduct security visual inspections at ground level of rail cars containing hazardous materials to check for signs of tampering or the introduction of an IED. The IFR became effective on June 1, 2008. Beginning January 1, 2009, rail carriers must compile information on the commodities they transport and the routes they use for the six-month period from July 1, 2008 to December 31, 2008. Rail carriers must complete their data collection by March 1, 2009. By September 1, 2009, rail carriers must complete the safety and security analyses of routes currently utilized and available alternatives, and select the safest, most secure routes for transporting the specified explosive, PIH, and radioactive materials. Beginning January 1, 2010, and for subsequent years, rail carriers must compile information on the commodities they transport and the routes used for the previous calendar year and complete route assessments and selections by the end of the calendar year. III. Comments in Response to the Interim Final Rule We received ten sets of comments in response to the IFR. The majority of the comments were submitted by companies, but we also received comments from a public interest group; a state government agency; a county government agency; a university; and an industry association. Overall, commenters are supportive of the rulemaking and welcome enhanced routing requirements that promote the safe and secure transportation of hazardous materials by rail. A major concern for rail carriers is the requirement for consultation with state, local, and tribal officials, as appropriate. Carriers suggest that it is impractical for railroads to consult on a continuous basis with all local governments along railroad rights-of-way. Several commenters also suggest that DOT establish a process for evaluating transportation safety and security risks across the entire rail transportation system, including facilitating the analysis and selection of routes involving more than one carrier. Some commenters suggest that the Federal government should mandate specific routing for high-hazard materials rather than provide rail carriers the discretion to make routing decisions. The comments in the docket for this rulemaking may be reviewed at http://www.regulations.gov under docket number PHMSA-RSPA-2004-18730. For your convenience, a listing of the docket entries is provided below. ---------------------------------------------------------------------------------------------------------------- Name/company Docket No. ---------------------------------------------------------------------------------------------------------------- Contra Costa County Board of Supervisors.......... PHMSA-RSPA-2004-18730-0203 Friends of the Earth.............................. PHMSA-RSPA-2004-18730-0204 The Dow Chemical Company (Dow).................... PHMSA-RSPA-2004-18730-0205 California Public Utilities Commission (CalPUC)... PHMSA-RSPA-2004-18730-0206 The Dow Chemical Company (Dow).................... PHMSA-RSPA-2004-18730-0207 Theodore S. Glickman.............................. PHMSA-RSPA-2004-18730-0208 Norfolk Southern Railway Company (Norfolk PHMSA-RSPA-2004-18730-0211 Southern). The Association of American Railroads (AAR)....... PHMSA-RSPA-2004-18730-0212 PPG Industries (PPG).............................. PHMSA-RSPA-2004-18730-0213 BNSF Railway Company (BNSF)....................... PHMSA-RSPA-2004-18730-0215 ---------------------------------------------------------------------------------------------------------------- [[Page 72184]] IV. Discussion of Comments and Section-by-Section Analysis In the following paragraphs, we discuss the comments as they apply to the 9/11 Commission Act and explain the impact of the comments on the regulatory text in this final rule. A. General (Sec. 172.820(a)) In accordance with the IFR, rail carriers must implement enhanced safety and security measures for shipments of the following classes and quantities of hazardous materials: (1) More than 2,268 kg (5,000 lbs) in a single carload of a Division 1.1, 1.2 or 1.3 explosive; (2) A bulk quantity of a PIH material, as defined in Sec. 171.8 of the HMR; or, (3) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined in Sec. 173.403 of the HMR. Two commenters focus on the need to include additional hazardous materials. CalPUC suggests that, while the rule will improve the safety and security of rail shipments of explosive, PIH, and radioactive materials, it will not adequately protect the public from accidents or terrorist acts against other types of hazardous materials. CalPUC recommends that the route selection requirements apply to flammable gases, flammable liquids, hydrogen peroxide over 60 percent, Class 5 materials (ammonium nitrate), Class 6 materials (poisons), Class 8 materials (corrosives), and certain marine pollutants. Contra Costa County raises similar concerns regarding the inclusion of liquefied petroleum gas tank cars. As discussed in more detail in the IFR, PHMSA, FRA, and TSA assessed the safety and security vulnerabilities associated with the transportation of different types and classes of hazardous materials. The list of materials to which the proposed enhanced safety and security requirements apply is based on specific railroad transportation scenarios. These scenarios depict how hazardous materials could be deliberately used to cause significant casualties and property damage or accident scenarios resulting in similar catastrophic consequences. DOT and TSA determined that the materials specified in the IFR present the greatest rail transportation safety and security risks--because of the potential consequences of an unintentional release of these materials--and are the most attractive targets for terrorists--because of the potential for these materials to be used as weapons of opportunity or weapons of mass destruction. While DOT and TSA agree that materials identified by CalPUC and Contra Costa County pose certain safety and security risks in rail transportation, the risks are not as great as those posed by the explosive, PIH, and radioactive materials specified in the IFR, and we are not persuaded that they warrant the additional precautions required by the IFR. We note that the hazardous materials listed by both commenters are currently subject to the security plan requirements in Subpart I of Part 172 of the HMR. Thus, shippers and carriers of these materials must develop and implement security plans based on an assessment of the transportation security risks posed by the materials. Security plans must include measures to address personnel security, unauthorized access, and en route security. DOT, in consultation with TSA, will continue to evaluate the transportation safety and security risks posed by all types of hazardous materials and the effectiveness of our regulations in addressing those risks and will consider revising specific requirements as necessary. The IFR applied the route analysis and selection requirements to PIH residue shipments in bulk quantities. Several commenters request that we exclude residue shipments from the list of hazardous materials subject to the rail routing provisions, noting that rail security rules proposed by Transportation Security Administration apply only to full tank car loads of PIH materials. In addition, Dow notes that the term ``bulk quantity'' is not currently defined in the HMR and suggests that if PHMSA decides to regulate residue quantities, we should define the term in the final rule. As discussed in the IFR, we believe the safety risks posed by the rail transportation of residue quantities of PIH materials should be addressed through enhanced safety requirements, including route assessments. Although target attractiveness from a security standpoint is diminished for residue shipments, significant safety risks persist. We continue to believe that these safety risks are reduced by a requirement for residue quantities of PIH materials remaining in tank cars to travel on the ``best'' route available--the route that considers factors such as population density, emergency response capabilities, environmentally-sensitive and significant areas, and event venues. Dow is correct that the term ``bulk quantity'' is not currently defined in the HMR. Our intention in the IFR was to require residue shipments over 119 gallons to be subject to the route analysis and selection criteria. In attempting to develop a definition for the term ``bulk quantity,'' however, we realized that applying such a definition to shipments of compressed gases, such as chlorine and anhydrous ammonia, would be very difficult. Moreover, rail carriers do not have the capability to ascertain the precise amount of residue that may remain in a rail tank car; thus, attempting to distinguish residue shipments that would be subject to the routing requirements from residue shipments that would not would be virtually impossible. For these reasons, in this final rule, we are clarifying that the data collection, route analyses, and route selection requirements apply to shipments of PIH materials, including residue shipments, in a bulk packaging. We note that there will be few, if any, rail routes over which only residue quantities of PIH travel. It is likely that the routes used to transport these residue shipments also carry fully loaded packages of PIH or one of the other hazardous materials covered by this rulemaking, and that the routes would therefore be included in a route analysis. B. Commodity Data (Sec. 172.820(b)) The IFR requires rail carriers to begin compiling commodity data by no later than 90 days after the end of the calendar year for the previous calendar year for the covered hazardous materials, including an identification of the routes utilized and the total number of shipments transported. The data are to be used by the rail carriers to identify the routes over which the specified hazardous materials are transported and the number of shipments utilizing each route. Rail carriers are required to analyze the safety and security risks of the routes identified. This provision of the IFR is consistent with the 9/ 11 Commission Act mandate that rail carriers collect and compile security-sensitive commodity data, by route, line segment, or series of line segments, as aggregated by the rail carrier, and identify the geographic location of the route and the total number of shipments by UN identification number. We did not receive comments addressing this aspect of the IFR. Therefore, in this final rule, we are adopting the commodity flow data collection requirements without change. AAR requests clarification of the actual date by which the commodity flow data must be compiled in 2009. In addition, AAR seeks clarification of IFR preamble language stating, ``For the initial route analysis, we anticipate rail carriers will review the prior two-year period when considering the criteria contained in Appendix D.'' (73 FR 20762). [[Page 72185]] Section 172.820(b) requires commodity data to be compiled no later than 90 days after the end of the calendar year; in 2009 the data must be compiled by March 31. In addition, this section requires the initial data to cover six months, from July 1, 2008 to January 31, 2008. PHMSA's preamble language indicating that we anticipate that carriers will review the data from the prior two years when conducting route analysis was our opinion based on knowledge of the data that rail carriers routinely collect. For their initial analysis, rail carriers are only required to collect data from the six-month period described in this section, additional data may be included, but is not required by the IFR or this final rule. As discussed in more detail below, in this final rule we are providing rail carriers the option to use data for all of 2008 in conducting their initial route analyses. If a rail carrier elects to utilize this option, its route analysis and selection process must be completed by March 31, 2010. C. Rail Transportation Route Analysis (Sec. 172.820(c)) The IFR requires rail carriers to use the data collected in accordance with Sec. 172.820(b) to analyze the rail routes over which the specified materials are transported. Carriers must analyze the specific safety and security risks for routes identified in the commodity data and the railroad facilities along those routes. Consistent with the 9/11 Commission Act, they are required to seek relevant information from state, local, and tribal officials regarding the security risks to high-consequence targets along or in proximity to the route(s) utilized. If a rail carrier is unable to acquire relevant information from state, local, or tribal officials, then it must document that in its analysis. The route analyses must be in writing and consider, at a minimum, a number of factors specific to each individual route. A non-inclusive list of factors is provided in Appendix D to Subpart I of Part 172. Several commenters express concern regarding the IFR requirement to seek relevant information from state, local, and tribal officials regarding the security risks to high-consequence targets along or in proximity to a rail transportation route. Contra Costa County suggests that state and local governments be given the opportunity to consult with the railroads and provide all relevant information, rather than be limited to providing specific data requested by the railroads. According to Contra Costa County, local governments should have access to the person who is managing the route analysis so they may request a consultation with the railroad or provide information that goes beyond the specific data requested by the railroad. In addition, Contra Costa County suggests that the final rule specify the types of local agencies that will be part of the consultation process. By contrast, Norfolk Southern indicates that emergency response capability would be best served by receiving communication from a single state agency, preferably the state homeland security agency. Norfolk Southern also expresses concern regarding the overwhelming amount of state and local correspondence railroads are likely to receive as a result of this requirement. Norfolk Southern suggests the creation of individual railroad Web sites that allow state and local governments to provide data and information that rail carriers should consider when they conduct route evaluations. Similarly, AAR suggests that the Department of Homeland Security (DHS) designate high- consequence targets along railroad lines and serve as the main source of information on security risks to high-consequence targets. AAR also suggests that communication between railroads and state and local governments should, for the most part, be led by a single state agency that advises the railroads on security matters concerning the state and its local governments. As we noted in the IFR, among the factors to be considered by rail carriers in conducting the safety and security analysis are population density along the route; environmentally-sensitive or significant areas; venues along the route (stations, events, places of congregation); emergency response capability along the route; measures and countermeasures already in place to address apparent safety and security risks; proximity to iconic targets; and areas of high consequence along the route. State and local governments may well be able to assist rail carriers in identifying and assessing this type of information. Moreover, state and local government entities may also be able to assist rail carriers in addressing any safety or security vulnerabilities identified along selected routes, in the scheduling of public events, for example, or enhancing emergency response capabilities. For these reasons, we agree with commenters that rail carriers should seek the broadest possible input from state and local governments as they conduct route analyses. We also agree with Contra Costa County that designation of a single point of contact for routing issues at each railroad would help to facilitate communication and interaction between rail carriers and state and local governments. At the same time, we recognize the difficulties that rail carriers may encounter in seeking information from every community along a given route and appreciate the need to simplify such interactions to the greatest extent practicable. We believe that rail carriers should have the flexibility to establish mechanisms to accomplish the required consultations that are tailored to each railroad's specific circumstances, routes, and operating environments. Web-based systems for providing and assessing state and local concerns, as suggested by Norfolk Southern, are certainly options that may prove to be very effective. Alternatively, a railroad may wish to work with state governments to establish a state government focal point for consolidating and communicating local government concerns. Since 2003, many states and larger cities have created State and Local fusion centers, and States have created regional fusion centers to share security and first responder information and intelligence within their jurisdictions as well as with the Federal government. Fusion centers vary from State to State, but most contain similar elements, including members of State law enforcement, public health, social services, public safety, and public works organizations. Increasingly, Federal agencies such as the Department of Homeland Security, Federal Bureau of Investigation, Drug Enforcement Administration, and Bureau of Alcohol Tobacco, Firearms, and Explosives have stationed representatives at State-level fusion centers. Most centers operate as ``all hazard'' centers, addressing all types of emergencies, and not just those that might be related to homeland security or terrorism. As of March 2008, there were 58 fusion centers around the country. Railroads have been coordinating with these fusion centers on railroad police and security issues, and the Federal government has officially recognized the importance of these centers in addressing security issues. The 9/11 Commission Act recognized the importance of fusion centers and established a DHS State, Local, and regional fusion center initiative to foster partnerships between centers at all levels of government. Specific language provided at 6 U.S.C. 124(h) establishes: (1) DHS responsibility to support and coordinate with the fusion centers; (2) authority and guidelines for assigning DHS personnel to state fusion centers; (3) uniform guidelines for fusion centers; and (4) funding of $10 million [[Page 72186]] per year for each of fiscal years 2008-2012 to carry out the Fusion Center Initiative. Since 2001, the Federal government has provided some $380 million to help fund fusion centers that meet guidelines jointly established by DHS and the Department of Justice. In this final rule, in response to comments related to simplifying and facilitating coordination on routing issues between rail carriers and state and local governments, PHSMA is modifying the IFR to require rail carriers to designate a single point of contact (including the name, title, phone number and e-mail address) on routing issues, and to provide this information to: (1) The State and regional fusion centers located in the portion of the country encompassed by their rail systems; and (2) State, Local, and Tribal officials in jurisdictions that may be affected by a rail carrier's routing decisions who directly contact the railroad to discuss these decisions. States, Local Governments, and Indian tribes may contact the State and regional fusion centers to obtain rail carriers' point of contact information. The Department of Homeland Security's National Operation Center is available 24 hours a day to facilitate public and private entities locating and contacting their State or regional fusions centers; the Center's contact number is (202) 282-8101. States, Local Governments, and Indian tribes will have the flexibility to directly consult with rail carriers on matters affecting the railroads' routing decisions, or channeling this information to the railroads through the fusion centers. PHMSA and FRA note that we are working with DHS to provide railroads with information regarding high-consequence targets, as specified in the 9/11 Commission Act. The AAR reiterates its comment that PHMSA should adopt a shipment threshold to trigger the route analysis requirement. Specifically, AAR suggests that if there are no more than 15 shipments along a particular route then the route analysis established by the IFR should not be required. AAR comments utilizing such a threshold eliminates unnecessary analysis of routes used only in emergencies and other unique circumstances. As we stated in the IFR, we are declining to adopt such a threshold. We understand that there may be times when a route is used that would not normally be used in the everyday course of business, and we would expect the analysis to demonstrate that the routing was out of the ordinary. We believe there is utility in doing such an analysis even on a little-used route. Traffic densities and circumstances may change, and natural disasters such as floods and hurricanes may occur. There is an advantage in knowing the characteristics, risks and necessary mitigating measures for a route that may have to be used, even in temporary emergency circumstances. D. Alternative Route Analysis (Sec. 172.820(d)) Consistent with 9/11 Commission Act requirements, the IFR requires carriers to analyze and assess the feasibility of all available alternative routes over which they have authority to operate in addition to the routes normally and regularly used for hazardous materials movements. Practicable routes (or routes that are feasible options, both logically and commercially) must be identified and analyzed using, at a minimum, the Rail Risk Analysis Factors of Appendix D to Part 172. Rail carriers must retain a copy (or an electronic image thereof) of all route review and selection decision documentation used when selecting the safest and most secure practicable route available. This documentation should include, but is not limited to, comparative analyses, charts, graphics, or rail system maps. In accordance with Sec. 1551 of the 9/11 Commission Act, alternative routes must consider the use of interchange agreements. For the purposes of route selection, interchange agreements allow railroads to exchange railcars at specified junction point where rail lines of two or more different railroads meet. Interchange agreements may increase the number of available routes for certain shipments. Routes that utilize interchange agreements may provide a safer, more secure routing option than would otherwise be available. Overall, rail carriers must account for safety and security risks; comparison of safety and security risks to the primary route, including the risk of catastrophic release; any remediation or mitigation measures taken; and potential economic effects. The goal of the routing analysis requirement is to require that each route used for the transportation of the specified hazardous materials is the one presenting the fewest overall safety and security risks. If the use of an alternative route would significantly increase a carrier's operating costs, as well as the costs to its customers, the carrier should consider and document the cost in its route analysis. We received several comments on this section of the IFR. One area of concern for commenters is the role that economic factors play in selecting ``practicable'' alternative routes. Friends of the Earth asserts that these requirements will spare railroads from any inconvenience or even minor expense in having to re-route cargoes onto available alternative routes and suggests that we have put ``practicability'' on par with safety and security. CalPUC contends that it is not reasonable to make costs to railroads and shippers the ultimate determinant for routing decisions and suggests that in doing so, we have excluded the overall costs and damages to the nation and its population in general. Contra Costa County asserts that the IFR provides too much opportunity for the railroads to let economic concerns drive the process. According to Contra Costa County, the railroads should be required to analyze all possible routes on safety factors alone to determine the safest route. We do not agree that the consideration of the ``practicability'' of specific routes will result in routing decisions that are driven solely by economic considerations. Rail carriers must assess available routes using the 27 factors listed in Appendix D to Part 172 to determine the safest, most secure routes. The factors address both safety and security issues, such as the condition of the track and supporting infrastructure; the presence or absence of signals; past incidents; population density along the route; environmentally-sensitive or significant areas; venues along the route (stations, events, places of congregation); emergency response capability along the route; measures and countermeasures already in place to address apparent safety and security risks; and proximity to iconic targets. However, when carriers consider the ``practicability'' of a specific route some consideration must be given to economic factors. We note in this regard that the Congress recognized this by including in Sec. 1551(d) of the 9/11 Commission Act a requirement for the alternative route analyses to include the potential economic effects of using an alternative route. In accordance with the IFR, rail carriers must balance economic factors with safety and security factors in making route selections. If using a possible alternative route would significantly increase a carrier's operating costs, as well as the costs to its customers, the carrier should consider and document these facts in its route analysis. Several commenters address the use of interchange agreements between rail carriers when determining practicable alternative routes. Friends of the Earth asserts that the key flaw in the IFR is that it does not force a railroad to ``interchange'' its most dangerous cargo [[Page 72187]] over to another railroad to go around a target city. Theodore Glickman suggests that because we require railroads to consider only routes over which they have authority to operate, we are missing an opportunity for identifying routes that reduce time in transit and pose fewer safety and security risks. PPG states that carriers should be required to work together to select the safest, most secure routes. Dow and AAR both suggest that we consider mechanisms, including 49 U.S.C. 333, that would assist a rail carrier in analyzing the safety and security risks of an alternative route over which it has no authority to operate. AAR notes that the Sec. 333 conference discussed in the IFR appears to be the best way to conduct discussions of rerouting through interchanges. The requirement in the IFR for railroads to consider interchange agreements as they identify and assess alternative routes is consistent with the 9/11 Commission Act. The Act does not mandate the use of interchange agreements. However, we agree with Dow and AAR that safety and security would be further enhanced if rail carriers could together evaluate the safety and security of routes across the entire rail transportation system. We also agree that utilizing existing statutory authority under 49 U.S.C. 333, which provides relief for potential antitrust concerns, provides a mechanism to facilitate a systems approach to evaluating and mitigating safety and security risks. Section 333 authorizes the FRA Administrator, as delegate of the Secretary of Transportation, to convene conferences at the request of one or more railroads to address coordination of operations and facilities of rail carriers in order to achieve a more efficient, economical, and viable rail system. Persons attending a Sec. 333 conference are immune from antitrust liability for any discussions at the conference, and can also receive immunity for any resulting agreements that receive FRA approval. As discussed in the IFR, in 2005, FRA convened a conference under this authority to discuss ways to minimize security and safety risks associated with the transportation of PIH materials. FRA plans to consider ways to expand this conference to provide a forum
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