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

- **operation:** document
- **citation:** 73 FR 20752
- **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:** 2008-04-16
- **effective on:** 2008-06-01
- **summary:** The Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration and the Transportation Security Administration, is revising the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. This interim final rule fulfills requirements in Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007. ---------------------------------------------------------------------------
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Federal Register, Volume 73 Issue 74 (Wednesday, April 16, 2008) [Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)] [Rules and Regulations] [Pages 20752-20773] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: E8-8185] [[Page 20751]] ----------------------------------------------------------------------- Part II 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; Interim Final Rule and Proposed Rule Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / Rules and Regulations [[Page 20752]] ----------------------------------------------------------------------- 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: Interim final rule. ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration and the Transportation Security Administration, is revising the current requirements in the Hazardous Materials Regulations applicable to the safe and secure transportation of hazardous materials transported in commerce by rail. This interim final rule fulfills requirements in Section 1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- In this interim final rule, 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 suspicious items, including improvised explosive devices. DATES: This interim final rule is effective June 1, 2008. Voluntary Compliance Date: Voluntary compliance is authorized as of May 16, 2008. Comments: Comments must be received by May 16, 2008. ADDRESSES: You may submit comments identified by the docket number PHMSA-RSPA-2004-18730 by any of the following methods: Federal eRulemaking Portal: Go to http://www.regulations.gov . Follow the online instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Operations, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590. Hand Delivery: To Docket Operations; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: All submissions must include the agency name and docket number for this rule. Note that all comments received will be posted without change, including any personal information provided. Please see the Privacy Act section of the preamble. 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 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. They are used for farming and medical applications, and in manufacturing, mining, and other industrial processes. Railroads annually carry over 1.7 million shipments of hazardous materials including explosive, poisonous, corrosive, flammable and radioactive materials. As common carriers, railroads are obligated to accept hazardous cargo that is tendered in compliance with legal requirements, whether or not they would choose to do so for business reasons. This common carrier obligation ensures that offerors are given the opportunity to ship hazardous materials, including the most dangerous hazardous materials, in the safest, most secure manner possible. The need for hazardous materials to support essential services means transportation of 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, property damage, and/or significant environmental damage. The same characteristics of hazardous materials that cause 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; these identifiers may also identify hazardous materials shipments as targets of opportunity for terrorists or other criminals. A primary safety and security concern related to the rail transportation of hazardous materials is the prevention of 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 rail cars in close 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, which resulted in 9 fatalities and 554 injuries--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 both 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. DHS is the lead agency for transportation security and has shared responsibility with DOT for hazardous materials transportation security. DOT consults and coordinates on security-related hazardous materials transportation requirements to ensure they are consistent with DHS's overall security policy goals. Both departments [[Page 20753]] work to ensure that the regulated industry is not confronted with inconsistent security guidance or requirements promulgated by the government. The Federal Hazardous Materials Transportation Law (Federal Hazmat Law, 49 U.S.C. 5101 et seq.), 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 the Pipeline and Hazardous Materials Safety Administration (PHMSA). 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. In accordance with its 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. 68 FR 14509 (March 25, 2003). These 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, we stated that these regulations were ``the first step in what may be a series of rulemakings to address the security of hazardous materials shipments.'' 68 FR 14511. PHMSA also noted that the Transportation Security Administration (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 * * *'' Id. Under Section 101(a) of the Aviation and Transportation Security Act (ATSA) (codified at 49 U.S.C. 114) and 49 CFR 1502.1, TSA has broad responsibility and authority for ``security in all modes of transportation * * *'' ATSA authorizes TSA to take immediate action to protect transportation security (49 U.S.C. 114(d)(2)), and to: --Develop policies, strategies and plans for dealing with threats to transportation (Sec. 114(f)(3)); --Assess intelligence and other information in order to identify individuals who pose a threat to transportation security (Sec. 114(f)(1)); --Coordinate countermeasures with other Federal agencies to address such threats (Sec. 114(f)(4)); --Enforce security-related regulations and requirements (Sec. 114(f)(7)); --Ensure the adequacy of security measures for the transportation of cargo (Sec. 114(f)(10)); --Oversee the implementation and ensure the adequacy of security measures at transportation facilities (Sec. 114(f)(11)); --Carry out other appropriate duties relating to transportation security (Sec. 114(f)(15)); and --Serve as the primary liaison for transportation security to the intelligence and law enforcement communities (Sec. 114(f)(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. 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, the Federal Railroad Administration (FRA) and TSA signed an annex to address each agency's roles and responsibilities for rail transportation security. The FRA-TSA annex provides that ``DHS holds lead authority, primary responsibility and dedicated resources for security activities in all modes of transportation including rail.'' Concerning safety, 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. In accordance with the principles outlined in the PHMSA-TSA and FRA-TSA annexes, PHMSA and FRA collaborated with TSA to develop this interim final rule. II. Current Hazardous Materials Transportation Safety and Security Requirements A. The Hazardous Materials Regulations In accordance with Sec. 172.704(a) of the HMR, all hazardous materials employees (hazmat employees) are required to fulfill the security awareness training, and employees responsible for developing and implementing security plans must also complete in-depth security training. Subpart I of 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. A person is required to develop and implement a security plan if he or she transports any of the following materials in commerce: (1) A highway route-controlled quantity of a Class 7 (radioactive) material, as defined at 49 CFR 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 171.8, that meets the criteria for Hazard Zone A, as specified in 49 CFR 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 49 CFR part 172; (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. Subpart I of part 172 sets forth general requirements for a security plan's components rather than a prescriptive [[Page 20754]] list of specific items that must be included. 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 according to the nature and 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 background 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 designed to limit or mitigate 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 mitigate security risks during transportation, including the security of shipments stored temporarily en route to their destinations. Under these standards, security plans can and should differ from one offeror or carrier to another. In each case, the plan should be based on the offeror's or 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. The HMR also contain limited provisions intended to minimize delays in transportation. Pursuant to Sec. 174.14 of the HMR, rail carriers are required to expedite the movement of hazardous materials shipments. 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 such materials spend in transportation, thus minimizing the exposure of hazmat shipments to accidents, derailments, unintended releases, or tampering. B. AAR Circular OT-55-I 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. These recommended practices were originally implemented by all of the Class 1 rail carriers operating in the United States; short-line railroads are also signatories to the most recent version of this document, known as Circular OT-55-I, issued by AAR on July 17, 2006. The Circular details railroad operating practices for: (1) Designating 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 as ``key trains;'' (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 tank cars; (6) assisting communities with emergency response training and information; (7) shipper notification procedures; and (8) the handling of time- sensitive materials. 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. This interim final rule in part reflects the recommended practices mentioned above, which are already in wide use across the rail industry. III. Notices of Proposed Rulemaking On December 21, 2006, PHMSA, in coordination with FRA and TSA, published a notice of proposed rulemaking (NPRM) under Docket HM-232E (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. Also on December 21, 2006, TSA published an NPRM proposing security regulations that would cover a broader spectrum of rail transportation, including passenger service. (71 FR 76852; see also TSA's Initial Regulatory Flexibility Analysis, 72 FR 7376 [Feb. 15, 2007].) The TSA proposal is intended to reduce security risks associated with certain hazardous materials shipments in designated High Threat Urban Areas (HTUAs) and to raise the overall security baseline for freight railroad shipments. (TSA has identified 46 geographic areas as HTUAs warranting special consideration based on population and risk assessment data. See 71 FR at 76861.) The TSA proposal applies to freight railroad carriers; intercity, commuter, and short-haul passenger trains; rail mass transit systems; and rail operations at certain fixed facilities that ship or receive PIH, explosive, or radioactive materials. The hazardous materials provisions of the TSA proposal complement and build on the proposals in the PHMSA NPRM. Specifically, TSA proposed to require railroads to designate rail security coordinators to serve as primary contacts for receipt of intelligence information and to require reporting of significant security concerns, potential threats, and incidents. In addition, upon request [[Page 20755]] from TSA, rail carriers and certain facility operators would be required to report car locations and shipping information for shipments of PIH, explosive, and radioactive materials within one hour of the request. TSA also proposed enhanced chain-of-custody requirements for rail shipments of PIH, explosive, and radioactive materials in HTUAs to ensure that no car is left unattended as it is transferred from shipper to carrier, between carriers, or from carrier to consignee. To obtain additional public input on our NPRM, PHMSA hosted meetings on February 1, 2007, in Washington, DC, and February 9, 2007, in Dallas, Texas. TSA also held a public meeting on its NPRM on February 2, 2007, in Arlington, Virginia. Thirty-five persons attended the Washington, DC public meeting, and 15 persons attended the Dallas meeting. Records of the public meetings, including attendance lists, transcripts, and a list of questions commenters were asked to address, are available for review in the public docket for this rulemaking. IV. Implementing Recommendations of the 9/11 Commission Act of 2007 Several weeks after the close of the comment period in this proceeding, Congress enacted the Implementing Recommendations of the 9/ 11 Commission Act of 2007 (Pub. L. 110-53; 121 Stat. 266), which the President signed into law on August 3, 2007. Among other requirements, the Act directs the Secretary of Transportation, in consultation with the Secretary of Homeland Security, to publish a final rule based on PHMSA's December 21, 2006 NPRM by May 3, 2008. 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 HM-232E 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 traveling along these routes, and identify any remediation or mitigation measures implemented on the primary and alternative transportation routes; and (7) Using the analysis described above, select the practicable route posing the least overall safety and security risk. The rule must also require that a covered rail carrier, at least once every three years, 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 rule is to require that covered rail carriers retain in writing all route review and selection decision documentation and restrict the distribution, disclosure, and availability of this information to appropriate persons. The 9/11 Commission Act defines ``security-sensitive material'' to mean the material or classes of materials that the Secretary of Homeland Security, in consultation with the Secretary of Transportation, determines through a rulemaking proceeding with opportunity for public comment pose a significant risk to national security while being transported in commerce. As we explain further in later sections of this rule, PHMSA believes the interim final rule we are publishing today fulfills the requirements in Sec. 1551 of the 9/11 Commission Act, in addition to addressing the comments received in response to the NPRM. We believe that the changes and additions to the NPRM made in this IFR are well within the scope of the NPRM. We are publishing an interim final rule rather than a final rule to provide interested persons with an opportunity to provide specific comments on whether the IFR fully implements the requirements of the Act. V. Comments on the NPRM We received more than 50 sets of comments from individuals; members of Congress; Federal, state, and local governmental entities; companies; industry associations; public interest groups; labor organizations; and a homeowners' association. Generally, large rail carriers and their associations express support for the proposals in the NPRM and, in particular, the flexibility for rail carriers to designate routes based on an analysis of safety and security vulnerabilities and measures implemented to address those vulnerabilities. Small carriers and single line haulers express some concern about the applicability of the routing provisions to their operations--in many cases, smaller rail carriers operate on a single line and routing options are limited. Commenters representing state and local governments and environmental groups generally oppose the proposals in the NPRM. Some of these 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. Others, particularly state and local government commenters, want to be able to implement routing restrictions within their jurisdictions and, thus, urge us to modify or eliminate the preemptive effect of a final rule on non- Federal jurisdictions. Nearly all the commenters suggest that we maintain consistency with TSA's proposed rail requirements in regard to package size, covered hazardous materials, and enforcement of the proposed requirements. The comments and public meeting transcripts 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 ------------------------------------------------------------------------- Melanie Weintraub and Family. Kevin D. Kime. Institute of Makers of Explosives (IME). Tom Nitza. [[Page 20756]] Anonymous. U.S. Department of Energy, Naval Nuclear Propulsion Program (NNPP). Congressman Dennis J. Kucinich. Transcript--Washington, DC Public Meeting. BASF Corporation. District of Columbia. Institute of Makers of Explosives (IME). American Chemistry Council (ACC). The Chlorine Institute, Inc. The Fertilizer Institute, Inc. (TFI). Metropolitan Transportation Authority. The Dow Chemical Company (Dow). Chairman and 3 members of the Committee on Homeland Security, U.S. House of Representatives. The National Industrial Transportation League (NITL). American Short Line and Regional Railroad Association. Greenpeace. Back Creek-II Homeowners Association, Inc. Argonne National Laboratory Report. Surface Transportation Board (STB). Friends of the Earth. Friends of the Earth. Friends of the Earth. Mayo Clinic. Association of American Railroads (AAR). City of Cleveland, Ohio. BNSF Railway Company. Transportation Trades Department, AFL-CIO. Independent Lubricant Manufacturers Association. City of Baltimore, Maryland. Norfolk Southern Corporation. Eureka County, Nevada, Office of Public Works. National Association of Chemical Distributors. Brotherhood of Locomotive Engineers and Trainmen. DuPont. Friends of the Earth. State of New Jersey, Office of Homeland Security & Preparedness. Transcript--Dallas Public Meeting. Union Pacific Railroad Company. The Dow Chemical Company, Olin Corporation, Norfolk Southern Corporation, Union Pacific Railroad Company, and Occidental Chemical Corporation. Akzo Nobel Chemicals, Inc. City of St. Louis, MO. Nuclear Energy Institute. National Association of SARA Title III Program Officials. Colorado Emergency Planning Commission. Jefferson County Local Emergency Planning Committee. City of Las Vegas, Nevada. Springfield Terminal Railway Company. American Petroleum Institute. CSX Transportation, Inc. State of Connecticut, Attorney General. ------------------------------------------------------------------------ VI. Summary of the Interim Final Rule Based on comments received in response to the NPRM and the provisions of the 9/11 Commission Act, in this interim final rule, we are adopting the following revisions to the HMR: Rail carriers transporting certain explosives, PIH material, 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 their security plans, 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 improvised explosive device (IED). This interim final rule is effective June 1, 2008. Beginning January 1, 2009, rail carriers must compile information on the commodities they transport and the routes they use for the 6-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. In adopting these requirements, we reject the more prescriptive approaches urged by some commenters. We continue to believe that rail carriers are in the best position to identify and assess risks across their systems and that en route safety and security measures will be most effective in reducing system risks when tailored to the carrier's specific circumstances and operations. This approach for determining the safest and most secure rail routes is consistent with the requirements in Sec. 1551 of the 9/11 Commission Act. Rail carriers use alternative routing in the normal course of business to accommodate a variety of circumstances, such as derailments, accidents, damaged track, natural events, traffic bottlenecks, and heightened security necessitated by major events. In performing the route analysis required by the interim final rule, we expect a rail carrier to make an informed decision, balancing all relevant factors and the best information available. Although individualized risk assessment necessarily is more challenging to perform and oversee, we believe this approach offers the greatest overall benefit. We expect the end result of the analyses to be a clear picture of the practicable alternative route(s) available to rail carriers for the transportation of the specified hazardous materials. As we transition to the new requirements, PHMSA and FRA are committed to working with the railroads to provide the tools and training necessary to conduct the required analyses and make appropriate route selections. By the same token, we intend to aggressively oversee railroads' route analyses and route selection determinations and will use all available tools to enforce compliance with the rule. As the agency with primary responsibility for railroad safety enforcement, FRA will incorporate review and inspection of route analyses and selections into its inspection programs. FRA inspectors may offer suggestions for modifying or improving the analysis or make changes to a route if the route selection documentation or underlying analysis is found to be deficient. If an inspector's recommendations are not implemented, FRA may compel a rail carrier to make changes and/or assess a civil penalty. Further, if the carrier's chosen route is found not to be the safest and most secure practicable route available, FRA may require the use of an alternative route. As we implement the interim final rule, PHMSA and FRA are committed to working with railroads, and with communities and first responders, to strengthen their capabilities and reduce [[Page 20757]] the risks associated with hazardous materials transportation. As discussed below, we are developing a route assessment tool that rail carriers may use in weighing and considering the route analysis criteria. PHMSA also is stepping up its efforts to build emergency response capabilities through national programs and community-based planning and training. We are sponsoring several initiatives intended to enhance community preparedness, including a project with the International Association of Fire Chiefs to provide real-time access to emergency response information and to share lessons learned from past incidents and exercises. With Congress' approval, we are expanding the Hazardous Materials Emergency Preparedness (HMEP) program, which provides funds for developing, improving, and implementing emergency response plans and for training public sector employees to respond to accidents and incidents involving hazardous materials. We believe these planning and training efforts are most effective when they are tailored to the particular risks facing a community. We agree that local and regional governments require information on the types, quantities, and locations of hazardous materials transported through their jurisdictions to plan for effective and appropriate emergency response to incidents. We developed a detailed handbook (Guidance for Conducting Hazardous Materials Flow Surveys, January 1995) for local governments to use in conducting commodity flow studies of hazardous materials transported by highway, and we are encouraging states to use HMEP grant funds to study flow patterns of hazardous materials within and between states and to determine the need within a state for regional hazardous materials emergency response teams. We are updating our 1995 handbook through a cooperative research project aimed at producing a comprehensive, user-friendly resource that will help local planners develop commodity-flow data for all modes of transportation and to use the data to inform decision-making concerning risk assessment, emergency response preparedness, and resource allocation and to support analyses across jurisdictional boundaries. In addition, we are developing a guide for assessing emergency response needs and capabilities for hazardous materials releases to provide a tool for state and local governments to use to identify and address unmet emergency response planning and resource needs. The specific provisions of the interim final rule, including a discussion of comments received on the NPRM and the provisions of the 9/11 Commission Act, are detailed in the following sections of this rule. VII. Discussion of Comments and Section-by-Section Review A. General (Sec. 172.820(a)) In the NPRM, we proposed to require rail carriers to implement enhanced safety and security measures for shipments of the following 
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