Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains

Federal RegisterJul 29, 2016

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 130, 171, 173, and 174

[Docket No. PHMSA-2014-0105 (HM-251B)]

RIN 2137-AF08

Hazardous Materials: Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

PHMSA, in consultation with the Federal Railroad Administration, is issuing this NPRM to propose revisions to regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) based on thresholds of liquid petroleum oil that apply to an entire train consist. Specifically, we are proposing to expand the applicability for comprehensive OSRPs so that any railroad that transports a single train carrying 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train carrying 35 or more loaded tank cars of liquid petroleum oil throughout the train consist must also have a current comprehensive written OSRP. We are further proposing to revise the format and clarify the requirements of a comprehensive OSRP (

e.g.,

requiring that covered railroads develop response zones describing resources available to arrive onsite to a worst-case discharge, or the substantial threat of one, which are located within 12 hours of each point along the route used by trains subject to the comprehensive OSRP). We also solicit comment on defining high volume areas and staging resources using alternative response times, including shorter response times for spills that could affect such high volume areas. Further, in accordance with the Fixing America's Surface Transportation Act of 2015, this action proposes to require railroads to share information about high-hazard flammable train operations with state and tribal emergency response commissions to improve community preparedness and seeks comments on these proposals. Lastly, PHMSA is proposing to incorporate by reference an initial boiling point test for flammable liquids from the ASTM D7900 method referenced in the American National Standards Institute/American Petroleum Institute Recommend Practices 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars,” First Edition, September 2014 as an acceptable testing alternative to the boiling point tests currently specified in the HMR. PHMSA believes providing this additional boiling test option provides regulatory flexibility and promotes enhanced safety in transport through accurate packing group assignment.

DATES:

Comments must be received by September 27, 2016. We are proposing a mandatory compliance date of 60 days after the date of publication of a final rule in the

Federal Register

. In this NPRM, we solicit comments from interested persons regarding the feasibility of the proposed compliance date.

ADDRESSES:

You may submit comments identified by the docket number, PHMSA-2014-0105 (HM-251B), by any of the following methods:

•

Federal eRulemaking Portal: http://www.regulations.gov

. Follow the instructions for submitting comments.

•

Fax:

1-202-493-2251.

•

Mail:

Docket Management System; 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 the Docket Management System; 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 notice at the beginning of the comment. To avoid duplication, please use only one of these four methods. All comments received will be posted without change to

http://www.regulations.gov

and will include any personal information you provide.

Docket:

For access to the dockets to read background documents or comments received, go to

http://www.regulations.gov

or DOT's Docket Operations Office located at U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

Privacy Act:

In accordance with 5 U.S.C. 553(c), DOT solicits comment from the public to better inform its rulemaking process. DOT posts these comments, without edit, to

http://www.regulations.gov,

as described in the system of records notice, DOT/ALL-14 FDMS, which is accessible through

www.dot.gov/privacy.

To facilitate comments tracking and response, we encourage commenters to provide their name or the name of their organization; however, submission of names is completely optional. Whether or not commenters identify themselves, all timely filed comments will be fully considered. If you wish to provide comments containing proprietary or confidential information, please contact the agency for alternate submission instructions.

FOR FURTHER INFORMATION CONTACT:

Victoria Lehman, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001; or Karl Alexy, (202) 493-6245, Office of Safety Assurance and Compliance, Federal Railroad Administration.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms

AAR Association of American Railroads

ACP Area Contingency Plan

ANPRM Advance Notice of Proposed Rulemaking

ANSI American National Standards Institute

API American Petroleum Institute

ASTM American Society for Testing and Materials

BSEE Bureau of Safety and Environmental Enforcement

CDT Central Daylight Time

CFR Code of Federal Regulations

Crude Oil Petroleum crude oil

CST Central Standard Time

CWA Clean Water Act (See Federal Water Pollution Control Act)

DHS Department of Homeland Security

DOE Department of Energy

DOI Department of the Interior

DOT Department of Transportation

EDT Eastern Daylight Time

E.O. Executive Order

EPA Environmental Protection Agency

EPCRA Emergency Planning and Community Right-to-Know Act

ESA Environmentally Sensitive/Significant Area (See Endangered Species Act)

EST Eastern Standard Time

FAST Fixing America's Surface Transportation Act

FEMA Federal Emergency Management Agency

FMCSA Federal Motor Carrier Safety Administration

FR Federal Register

FRA Federal Railroad Administration

FWPCA Federal Water Pollution Control Act (See Clean Water Act)

HHFT High Hazard Flammable Train

HMR Hazardous Materials Regulations (See 49 CFR parts 171-180)

HMT Hazardous Materials Table (See 49 CFR 172.101)

IBP Initial Boiling Point

ICP Integrated Contingency Plan

LEPC Local Emergency Planning Committee

MDT Mountain Daylight Time

NASTTPO National Association of SARA Title III Program Officials

NCP National Contingency Plan

NIMS National Incident Management System

NPRM Notice of Proposed Rulemaking

NTSB National Transportation Safety Board

OMB Office of Management and Budget

OPA 90 Oil Pollution Act of 1990

OSC On-Scene Coordinator

OSRP Oil Spill Response Plan

PG Packing Group

PHMSA Pipeline and Hazardous Materials Safety Administration

PREP National Preparedness for Response Exercise Program

RCP Regional Contingency Plan

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RP Recommended Practice

RSPA Research and Special Programs Administration

SERC State Emergency Response Commission

TERC Tribal Emergency Response Commission

TRANSCAER Transportation Community Awareness and Emergency Response

TSA Transportation Security Administration

TTCI Transportation Technology Center Inc.

U.S.C. United States Code

USCG United States Coast Guard

USFA United States Fire Administration

Table of Contents

I. Executive Summary

A. Oil Spill Response Plans

B. Information Sharing

C. Initial Boiling Point Test

II. Background

A. Current Oil Spill Response Requirements

B. Advanced Notice of Proposed Rulemaking

C. Summary of Proposed Oil Spill Response Requirements

D. Related Actions

E. HHFT Information Sharing Notification

F. Security and Confidentiality for HHFT Information Sharing Notification

G. Initial Boiling Point Test

III. Recent Spill Events

IV. National Transportation Safety Board Safety Recommendations

V. Summary and Discussion of Public Comments on Oil Spill Response Plans

A. Overview of Comprehensive Oil Spill Response Plans

B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans

C. Contents of Comprehensive Oil Spill Response Plans

D. Approval of Comprehensive Oil Spill Response Plans

E. Confidentiality/Security Concerns for Comprehensive Oil Spill Response Plans

F. Comprehensive Oil Spill Response Plan Costs

G. Voluntary Actions

VI. Incorporated by Reference

VII. Section-by-Section Review

VIII. Regulatory Review and Notices

A. Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures

B. Unfunded Mandates Reform Act

C. Executive Order 13132

D. Executive Order 13175

E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures

F. Paperwork Reduction Act

G. Environmental Assessment

H. Privacy Act

I. Statutory/Legal Authority for This Rulemaking

J. Regulation Identifier Number (RIN)

K. Executive Order 13211

IX. List of Subjects

I. Executive Summary

The Pipeline and Hazardous Materials Safety Administration (PHMSA), in coordination with the Federal Railroad Administration (FRA), is issuing this notice of proposed rulemaking (NPRM), titled “Oil Spill Response Plans and Information Sharing for High-Hazard Flammable Trains,” in order to improve oil spill response readiness and mitigate effects of rail incidents involving petroleum oil and certain high-hazard flammable trains (defined in 49 CFR 171.8). This NPRM is necessary due to the expansion in the United States' (U.S.) energy production, which has led to significant challenges for the country's transportation system. PHMSA published an advanced notice of proposed rulemaking (ANPRM) on August 1, 2014 (79 FR 45079), under the title, “Oil Spill Response Plans for High-Hazard Flammable Trains.” This proposed rule addresses comments to the ANPRM and proposes to modernize the comprehensive oil spill response plan (“comprehensive plan”) requirements under 49 CFR part 130 for petroleum oils. Additionally, consistent with the Emergency Order issued by the Secretary of Transportation (Secretary) on May 7, 2014, this NPRM proposes to require railroads to share information with state and tribal emergency response commissions (

i.e.,

SERCs and TERCs) to improve community preparedness for potential high-hazard flammable train accidents. Lastly, PHMSA is proposing to incorporate by reference the ASTM D7900 test method referenced by the American National Standards Institute/American Petroleum Institute Recommend Practices 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars,” First Edition, September 2014 related to initial boiling point for flammable liquids as an acceptable testing alternative to the boiling point tests specified in the current regulations. PHMSA believes the incorporation of this ASTM methodology into regulation provides regulatory flexibility and promotes enhanced safety in transport through accurate packing group (PG) assignment.

The proposals in this NPRM work in conjunction with the requirements adopted in the final rule HM-251, “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains” (80 FR 26643; May 8, 2015) (“HHFT Final Rule”). The Department of Transportation (DOT) continues its comprehensive approach to ensure the safe transportation of energy products.

PHMSA discusses the proposed requirements further throughout this NPRM and seeks comments on the questions in the sections, as well as on all aspects of this proposal and its supporting analysis. PHMSA consolidates questions related to the proposed requirements for oil spill response plans in Section II, Subsection C (“Summary of Proposed Oil Spill Response Plan Requirements)” of this rulemaking. PHMSA consolidates the questions related to information sharing in Section VII (“Section-by-Section Review”) under the discussion of § 174.312. PHMSA is also soliciting public comment on specific issues regarding our analysis and has consolidated these questions in Section 4 of the draft Regulatory Impact Analysis (RIA).

Expansion in domestic oil production relative to the 2000s has resulted in a large volume of crude oil being transported to refineries and other transport-related facilities throughout the country.

With the expectation of continued domestic production, rail transportation remains a flexible alternative to transportation by pipelines or vessels, which have historically delivered the vast majority of crude oil to U.S. refineries. The volume of crude oil carried by rail increased 423 percent between 2011 and 2012.

2 3

In 2013, the number of rail carloads of crude oil approached 400,000, reached approximately 450,000 carloads in 2014, and fell to approximately 390,000 carloads in

2015.

Because rail transportation commonly includes petroleum oil shipped in high volumes and large quantities, either as several cars of material along with other commodities in a manifest train or as a single commodity train (commonly referred to as a “unit train”), there is a significant risk of train accidents that could reasonably be expected to cause substantial harm to the environment by discharging product into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.

As detailed in the Section III (“Recent Spill Events”) of this rulemaking and the draft RIA, recent train accidents involving the discharge of petroleum oils have posed significant challenges for responders.

See Memorandum of Understanding (MOU) between the Secretary of Transportation and the Administrator of the Environmental Protection Agency (EPA) establishing jurisdictional guidelines for implementing § 1321(j)(1)(C). 36 FR 24080; reprinted at 40 CFR part 112 App. A (December 18, 1971).

See U.S. Rail Transportation of Crude Oil: Background and Issues for Congress;

http://fas.org/sgp/crs/misc/R43390.pdf

See also “Refinery receipts of crude oil by rail, truck, and barge continue to increase”

http://www.eia.gov/todayinenergy/detail.cfm?id=12131

http://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_NUS-NUS_MBBL&f=M

See 33 U.S.C. 1321(j)(5)(C) and Section I. Statutory/Legal Authority for this Rulemaking of this document.

This rulemaking addresses issues related to preparedness and planning for the potential of train accidents involving the discharge of flammable liquid energy products. Specifically, this NPRM proposes to: (1) Expand the applicability of comprehensive oil spill response plans to include any single train transporting 20 or more loaded tank cars of liquid petroleum oil in a continuous block or a single train transporting 35 or more loaded tank cars of liquid petroleum oil throughout the train consist; (2) clarify and add new requirements for comprehensive oil spill response plans; (3) require railroads to share information with state and tribal emergency response commissions (

i.e.,

SERCs and TERCs) for high-hazard flammable trains to improve community preparedness for potential accidents; and (4) provide an alternative test method for determining the initial boiling point of a flammable liquid. The proposals in this rulemaking are shaped by public comments, National Transportation Safety Board (NTSB) Safety Recommendations, analysis of recent accidents, and input from stakeholder outreach efforts (including first responders). The estimated costs and benefits are described in Table 1 below:

Table 1—10 Year and Annualized Costs and Benefits by Stand-Alone Regulatory Proposal

Provision

Benefits (7%)

Qualitative

Breakeven

Costs (7%)

Oil Spill Response Planning and Response

• Improved Communication/Defined Command Structure may improve response.

• Pre-identified Access to Equipment and Staging of Appropriate Equipment for Response Zones.

• Trained Responders.

Cost-effective if this requirement reduces the consequences of oil spills by 4.1%.

10-Year: $18,051,343. Annualized: $2,570,105.

Information Sharing

• Improved Communication.

• Enhanced Preparedness.

Cost-effective if this requirement reduces the consequences of oil spills by 0.8%.

10-Year: $3,650,832. Annualized: $519,796.

IBR of ASTM D7900

• Regulatory Flexibility.

• Enhanced Accuracy in Packing Group Assignments.

No Cost Estimated.

Total

Cost-effective if this requirement reduces the consequences of oil spills by 4.9%.

10-Year: $21,702,175 Annualized: $3,089,901.

A. Oil Spill Response Plans

The Oil Pollution Act of 1990 amended the Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA) at 33 U.S.C. 1321, by adding oil spill response planning requirements for “facilities” that handle oil. The CWA requires that owners and operators of onshore facilities prepare and submit oil spill response plans for facilities that “could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.”

The CWA applies to railroads or “rolling stock,” which is included in the definition of “onshore facility.”

33 U.S.C. 1321(j)(5)(C).

“Onshore facility” means any facility (including, but not limited to, motor vehicles and rolling stock) of any kind located in, on, or under, any land within the United States other than submerged land.” 33 U.S.C. 1321(a)(10). “Rolling stock” refers to rail cars.

The Department of Transportation's oil spill planning requirements for rolling stock and motor carriers are found at 49 CFR part 130. Part 130 currently requires “comprehensive written plans” that comply with the CWA for the transportation of oil in a quantity greater than 1,000 barrels or 42,000 gallons per package. The approximate capacity of a rail car carrying crude oil is 30,000 gallons. Therefore, part 130 does not currently require that railroads prepare comprehensive written plans. Part 130 also includes preparation of “basic plans” for containers with a capacity of 3,500 gallons or more carrying petroleum oil. Therefore, basic oil spill response plans are currently required for most, if not all, tank car shipments of petroleum oil. This rulemaking does not propose changes to the basic plan requirements because there is no justification for such changes at this time.

On January 23, 2014, the NTSB issued Safety Recommendation R-14-05, recommending that PHMSA revise the oil spill response planning thresholds for comprehensive oil spill response plans.

The NTSB also issued Safety Recommendation R-14-02, recommending that FRA audit spill response plans.

These

recommendations are further discussed in Section IV (“National Transportation Safety Board Safety Recommendation”) of this rulemaking. On August 1, 2014, PHMSA, in consultation with FRA, issued an ANPRM (79 FR 45079; HM-251B) seeking comment on potential revisions to its regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) to high-hazard flammable trains (HHFTs), based on thresholds of crude oil that apply to an entire train consist.

The proposed changes in this rulemaking clarify the comprehensive plan requirements to address the risk posed by HHFTs carrying petroleum oils.

http://www.phmsa.dot.gov/PHMSA/Key_Audiences/Hazmat_Safety_Community/Regulations/NTSB_Safety_Recommendations/Rail/ci.R-14-5,Hazmat.print

http://www.ntsb.gov/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-14-002.

For the purposes of this discussion, train consist is considered the rolling stock, exclusive of the locomotive, making up a train.

This rulemaking addresses the risk of increased shipments of large quantities of petroleum oil being transported by rail and proposes to modernize and clarify the requirements for comprehensive OSRPs and more closely align these requirements with the statutory requirements of the CWA. This rulemaking proposes to expand the applicability for comprehensive OSRPs to railroads transporting a single train containing 20 or more tank cars loaded with liquid petroleum oil in a continuous block, or a single train containing 35 or more tanks cars loaded with liquid petroleum oil throughout the train consist. This quantity aligns with the definition of a high-hazard flammable train in the HHFT Final Rule, which added new requirements and operational controls for these trains. The proposed changes respond to commenter requests for more specificity in plan requirements; provide a better parallel to other federal oil spill response plan regulations promulgated under the CWA; address the needs identified by first responders in the “Crude Oil Rail Emergency Response Lessons Learned Roundtable Report”; and provide requirements to address the challenges identified through an analysis of recent spill events.

The changes also propose to leverage the geographic information provided through the expanded routing analysis requirements of the HHFT Final Rule by applying a geographic component to the response plan structure. Railroads would divide their routes into “response zones” and connect notification procedures and available response resources to the specific geographic route segments that comprise the response zones. The proposed changes clarify the railroad's role in response activities and the communication procedures needed to notify Federal, State, and local agencies. A summary of the Clean Water Act statutory language, the current regulations of 49 CFR part 130, and the proposed changes to the comprehensive plan requirements under this rulemaking are further described in Section II, Subsection C (“Summary of Proposed Oil Spill Response Requirements”).

http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse

B. Information Sharing

Federal hazardous materials transportation law (49 U.S.C. 5101-5128) authorizes the Secretary to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” The Secretary delegated this authority to PHMSA under 49 CFR 1.97(b). As such, PHMSA is responsible for overseeing a hazardous materials safety program that minimizes the risks to life and property inherent in transportation in commerce. The HMR include operational requirements applicable to each mode of transportation. On a yearly basis, the HMR provide safety and security requirements for the transportation of more than 2.5 billion tons of hazardous materials (hazmat), valued at about $2.3 trillion, over 307 billion miles on the nation's interconnected transportation network.

2012 Commodity Flow Survey, Research and Innovative Technology Administration (RITA), Bureau of Transportation Statistics (BTS). See

http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=CFS_2012_00H01&prodType=table

The Secretary also has authority over all areas of railroad transportation safety (Federal railroad safety laws, principally 49 U.S.C. chapters 201-213); this authority is delegated to FRA under 49 CFR 1.89. Pursuant to its statutory authority, FRA promulgates and enforces a comprehensive regulatory program (49 CFR parts 200-244) and the agency inspects and audits railroads, tank car facilities, and hazardous material offerors for compliance with both FRA's regulations and the HMR. FRA also has an extensive, well-established research and development program to improve all areas of railroad safety, including hazardous materials transportation. As a result of the shared role in the safe and secure transportation of hazardous materials by rail, PHMSA and FRA work closely when considering regulatory changes, and the agencies take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail.

On May 7, 2014, DOT issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 (Order).

That Order required each railroad transporting in commerce within the U.S. 1,000,000 gallons or more of Bakken crude oil in a single train to provide certain information in writing to the SERC for each state in which it operates such a train. Subsequently, in August of 2014, PHMSA published an NPRM proposing to codify and clarify the requirements of the Order in the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) and requested public comment on the various facets of that proposal.

See

79 FR 45015 (Aug. 1, 2014) (HHFT NPRM). In the final rule of that proceeding, however, PHMSA did not adopt the notification requirements proposed in the NPRM.

See

80 FR 26643 (May 8, 2015) (HHFT Final Rule). PHMSA determined the expansion of the existing route analysis and consultation requirements under § 172.820 of the HMR to include HHFTs would be the best approach to ensuring that emergency responders and others involved with emergency response planning and preparedness would have access to sufficient information regarding crude oil shipments moving through their jurisdictions. PHMSA reasoned that expanding the existing route analysis and consultation requirements of § 172.820 (which already apply to the rail transportation of certain hazardous materials historically considered to be highly hazardous) would preserve the intent of the Emergency Order to enhance information sharing with emergency responders and allow for the easy incorporation of HHFTs into the overall hazardous materials routing and information sharing scheme.

http://www.dot.gov/briefing-room/emergency-order

On December 4, 2015, President Obama signed into law the Fixing America's Surface Transportation Act of 2015 (“FAST Act”). The FAST Act includes the “Hazardous Materials Transportation Safety Improvement Act of 2015” at §§ 7001 through 7311, which provides direction for PHMSA's hazardous materials safety program. Section 7302 directs the Secretary to issue regulations that require real-time sharing of electronic train consist information for hazardous materials shipments and require Class I railroads to provide State Emergency Response Commissions (SERCs) advanced notification of HHFTs traveling through

their respective jurisdictions. DOT will implement the requirements related to electronic train consists in a separate rulemaking, but is addressing the requirement for advanced notification of HHFTs to SERCs in this rule. Section 7302 requires Class I railroads to provide advanced notification and information on HHFTs to SERCs consistent with the notification requirements in the Secretary's May 2014 Emergency Order in docket number DOT-OST-2014-0067. Section 7302 further requires SERCs receiving this advanced notification to provide the information to law enforcement and emergency response agencies upon request and directs the Secretary to establish security and confidentiality protections for the electronic train consist information and advanced notification information required by § 7302. In response to the FAST Act and the public's interest and feedback the Department previously received related to its May 7, 2014, Emergency Order,

this NPRM proposes to add a new § 174.312 to the HMR. This new section will establish the information sharing requirements, related to Emergency Order DOT-OST-2014-0067. As directed by the FAST Act, the proposed information requirements in § 174.312 are generally consistent with the Order, but broaden the scope of trains covered by the requirement. Consistent with the FAST Act, the proposed regulation expands the notification requirement to apply to all HHFTs as defined in the HHFT Final Rule, not just trains transporting 1,000,000 or more gallons of Bakken crude oil, and requires railroads to provide the notification monthly. Also, § 174.312 would require railroads to provide the required information to both SERCs and Tribal Emergency Response Commissions (TERCs), or other appropriate state designated agencies. Finally, under proposed § 174.312, a railroad operating a train subject to the Comprehensive Oil Spill Response Plan requirements of this proposed rule would also need to provide the relevant SERCs, TERCs, or other appropriate state agencies with the contact information for qualified individuals and the description of response zones required to be compiled under proposed 49 CFR part 130.

A discussion regarding public interest and feedback can be found later in the preamble in the section on “HHFT Rulemaking and Response.”

Table 2 below describes, generally, how this proposed rule would address routing and information sharing issues, as compared to the Order (which remains in effect), the regulatory provisions implemented by the HHFT final rule, and the provisions of the FAST Act. PHMSA discusses the information sharing proposals further in the section-by-section analysis for § 174.312 later in this document and solicits comment on the questions listed there, as well as all aspects of this proposal.

Table 2—Information Sharing for Emergency Responders

Category

Requirement

Type of OSRP

Basic

Comprehensive

Preparation

Sets forth the manner of response to a discharge.

Yes

Yes.

Preparation

Accounts for the maximum potential discharge of the packaging.

Yes

Yes.

Personnel/Equipment

Identifies private personnel and equipment available for response.

Yes

Yes.

Personnel/Coordination

Identifies appropriate persons and agencies (including telephone numbers) to be contacted, including the National Response Center (NRC).

Yes

Yes.

Documentation

Is kept on file at the principal place of business and at the dispatcher's office.

Yes

Yes.

Coordination

Reflects the requirements of the National Contingency Plan (40 CFR part 300) and Area Contingency Plans.

Yes.

Personnel/Coordination

Identifies the qualified individual with full authority to implement removal actions, and requires immediate communications between the individual and the appropriate Federal official and the persons providing spill response personnel and equipment.

Yes.

Personnel/Equipment/Coordination

Identifies and ensures by contract or other means the availability of, private personnel, and the equipment necessary to remove, to the maximum extent practicable, a worst-case discharge (including that resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge.

Yes.

Training

Describes the training, equipment, testing, periodic unannounced drills, and response actions of personnel, to be carried out under the plan to ensure safety and to mitigate or prevent discharge or the substantial threat of such a discharge.

Yes.

Documentation

Is submitted (and resubmitted in the event of a significant change) to the Administrator of FRA.

Yes.

B. Advanced Notice of Proposed Rulemaking

On August 1, 2014, PHMSA, in consultation with FRA, published an ANPRM to seek comment on potential revisions to its regulations that would expand the applicability of comprehensive OSRPs to HHFTs transporting petroleum oil based on thresholds of crude oil that apply to an entire train consist (79 FR 45079). On the same day, also in consultation with FRA, PHMSA published the HHFT NPRM, which proposed to define HHFT to mean a single train carrying 20 or more carloads of a Class 3 flammable liquid (79 FR 45015). As discussed above, trains transporting a package (

i.e.,

rail car) containing 3,500 gallons or more of oil are subject to the basic OSRP requirement at 49 CFR 130.31(a). However, part 130 only requires a comprehensive OSRP when the quantity of oil is greater than 42,000 gallons per package. Because the typical rail tank car has a capacity around 30,000 gallons, few if any rail carriers are currently subject to the comprehensive OSRP plan requirements.

The 2014 AAR's Universal Machine Language Equipment Register (UMLER) numbers showed 5 tank cars listed with a capacity equal to or greater than 42,000 gallons, and none of these cars were being used to transport oil or petroleum products.

In setting the current OSRP threshold quantities, RSPA considered a 1,000,000-gallon threshold that would apply to shipments, rather than individual packages. Specifically, RSPA stated,

Conversely, the 1,000,000-gallon threshold adopted by EPA [Environmental Protection Agency] is contingent on several factors, including restrictive provisions that the facility may not transfer oil over water to or from vessels and that the facility's proximity to a public drinking water intake must be sufficiently distant to assure that the intake would not be shut down in the event of a discharge. Further, the EPA threshold refers to the capacity not of a single fixed storage tank, but of the entire facility, including barrels and drums stored at the facility. In summary, this example also is not analogous to hazards routinely encountered during transportation by railway and highway.

During the June 28, 1993 public meeting, the “substantial harm” threshold was discussed at length, but participants did not agree on what volume of oil reasonably could cause substantial harm to the marine environment. Also, the 42,000-gallon threshold is supported by a number of comments to the docket citing its use by the EPA in related sections of the Code of Federal Regulations. Consequently, RSPA believes its determination to use a threshold value of 42,000 gallons in a single packaging is appropriate and reasonable.

61 FR 30537.

As discussed in the June 17, 1996 RSPA final rule, RSPA recognized that an incident involving the transportation of 1,000,000 gallons of crude oil could reasonably be expected to cause substantial harm, even if not in a single packaging. Under the same CWA authority, delegated to EPA for non-transportation-related facilities, EPA requires Facility Response Plans (FRPs) for facilities with 1,000,000 gallons or more in aggregate oil storage capacity and which meet one or more of the harm factors at 40 CFR part 112.20(f)(1)(ii) and for facilities with transfers of oil over water to or from vessels that have aggregate oil storage capacities of 42,000 gallons or more.

EPA also requires Spill Prevention Control and Countermeasure (SPCC) plans under the CWA authority for onshore non-transportation related facilities with an aggregate aboveground oil storage capacity of more than 1,320 gallons of oil or completely buried storage capacity greater than 42,000 gallons and which have a reasonable expectation of an oil discharge to navigable waters or adjoining shorelines.

The terms comprehensive plan, oil spill response plan (OSRP) and facility response plan (FRP) are often used interchangeably.

PHMSA recognizes that a single tank car is not likely to hold 42,000 gallons of crude oil, but the increasing reliance on HHFTs increases the risk that more than one tank car could rupture during a derailment and result in the discharge of the contents of more than one rail car. RSPA either did not consider this risk or did not consider it significant when it established the current threshold. In the ANPRM, PHMSA sought comments on what impact changing the applicability threshold would have on

current business practices for shipping crude oil by rail. The ANPRM also explained that since the typical capacity for a rail tank car used in the transport of crude oil is around 30,000 gallons, a 1,000,000-gallon threshold for oil per train consist would translate to requiring a comprehensive OSRP for trains composed of approximately 35 cars of crude oil. PHMSA expected the business practices for HHFTs would result in train consists that often exceed 35 crude oil tank cars. The ANPRM also explained that a 42,000 gallon per train consist threshold would translate to requiring comprehensive OSRPs for trains composed of approximately two cars of crude oil.

Also in the ANPRM, PHMSA sought comments on nine questions to inform our understanding of adjusting the threshold quantities that would trigger comprehensive OSRP requirements for HHFTs of petroleum oil as well as adjusting the plan requirements. PHMSA requested that comments reference a specific portion of the ANPRM, explain the reason for any recommended change, include supporting data, and explain the source, methodology, and key assumptions of the supporting data.

The ANPRM described the consequences, including environmental impacts, of several recent HHFT derailments, including Lac-Mégantic, Quebec, Canada; Aliceville, Alabama; and Casselton, North Dakota. In response to its participation in the investigation of the Lac-Mégantic accident, the NTSB issued Safety Recommendation R-14-05, which requested that PHMSA revise the spill response planning thresholds prescribed in 49 CFR part 130 to require comprehensive OSRPs that effectively provide for the carriers' ability to respond to worst-case discharges resulting from accidents involving unit trains or blocks of tank cars transporting oil and other petroleum products. In this recommendation, the NTSB raised a concern that, “[b]ecause there is no mandate for railroads to develop comprehensive plans or ensure the availability of necessary response resources, carriers have effectively placed the burden of remediating the environmental consequences of an accident on local communities along their routes.” In light of these incidents (as well as others described in this rulemaking and the accompanying regulatory impact analysis) and NTSB Safety Recommendation R-14-05, PHMSA is now proposing to revise the applicability and requirements for comprehensive OSRPs.

C. Summary of Proposed Oil Spill Response Requirements

A summary of the Clean Water Act statutory language, the current regulations of 49 CFR part 130 for comprehensive plans, and the proposed changes to the comprehensive plan requirements under this rulemaking are further described in the Tables 4, 5, & 6 below.

Table 4—Applicability Comparison

CWA statute

Current regulatory applicability for

comprehensive plans

Proposed changes to applicability for

comprehensive plans

33 U.S.C. 1321(j)(5)(A)(i)

—The President shall issue regulations which require an owner or operator of a tank vessel or facility described in subparagraph (C) to prepare and submit to the President a plan for responding, to the maximum extent practicable, to a worst-case discharge, and to a substantial threat of such a discharge, of oil or a hazardous substance

49 CFR Part 130

—Comprehensive plan requirements include both the general elements for the basic plan in 130.31(a) and the additional measures in 130.31(b)

49 CFR Part 130

—Restructures part 130 to include comprehensive oil spill response plans in subpart C.

Provides general requirements for recordkeeping, plan format and information about response structure to facilitate usability and enforceability of plan requirements. All proposed changes better align the requirements with other regulations for oil spill response plans under other federal agencies, including optional use of the Integrated Contingency Plan (ICP) format.

33 U.S.C. 1321(j)(5)(C)(iv)

—An onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters, adjoining shorelines, or the exclusive economic zone

§ 130.31(b)(1)

—42,000 gallons of liquid oil in a single package

§ 130.101

—Expands the current applicability to include trains transporting:

• 42,000 gallons of liquid oil in a single package (current applicability); OR

• At least 20 cars of liquid petroleum oil in a continuous block or 35 cars of liquid petroleum oil in a consist.

Table 5—Plan Requirements Comparison

Plan elements required by CWA statute

Current regulatory comprehensive

plan elements

Proposed changes to comprehensive

plan elements

33 U.S.C. 1321(j)(5)(D)(i)

—A response plan must be consistent with the requirements of the National Contingency Plan and Area Contingency Plans

§ 130.31(b)(2)

—A comprehensive plan must be consistent with the requirements of the National Contingency Plan and Area Contingency Plans

§ 130.103

—Requires certification that the plan is consistent with a list of specific NCP/ACP requirements for “minimum compliance,” to clarify the elements of NCP/ACP applicable to rail shipments.

33 U.S.C. 1321(j)(5)(D)(ii)

—A response plan must identify the qualified individual having full authority to implement removal actions, and require immediate communications between that individual and the appropriate federal official and the persons providing personnel and equipment

§ 130.31(b)(3)

—A comprehensive plan must identify the qualified individual having full authority to implement removal actions, and requires immediate communications between that individual and the appropriate federal official and the persons providing spill response personnel and equipment

§§ 130.104-130.105

—Requires identification of qualified individual for each response zone in quickly accessible information summary.

Requires that the plan include a checklist of necessary notifications, contact information, and necessary information to clarify communication procedures.

33 U.S.C. 1321(j)(5)(D)(iii)

—A response plan must identify, and ensure by contract or other means approved by the President the availability of, private personnel and equipment necessary to remove to the maximum extent practicable a worst-case discharge (including a discharge resulting from fire or explosion), and to mitigate or prevent a substantial threat of such a discharge

§ 130.31(b)(4)

—A comprehensive plan must identify, and ensure by contract or other means the availability of, private personnel (including address and phone number), and the equipment necessary to remove, to the maximum extent practicable, a worst-case discharge (including a discharge resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge

§ § 130.102 & 130.106

—Includes the establishment of response zones, to ensure the availability of personnel and equipment in different geographic route segments.

Demonstrate that the response management system uses the National Incident Management System (NIMS) for common terminology and has a manageable span of control, a clearly defined chain of command, and trained personnel to fill each position.

Includes requirements to identify the organization, personnel, equipment, and deployment location thereof capable of removal and mitigation of a worst-case discharge.

33 U.S.C. 1321(j)(5)(D)(iv)

—A response plan must describe the training to be carried out under the plan to ensure the safety of the facility and to mitigate or prevent the discharge

§ 130.31(b)(5)

—A comprehensive plan must describe the training to be carried out under the plan to ensure the safety of the facility and to mitigate or prevent the discharge

§ 130.107

—Requires certification and documentation that employees have been trained in carrying out their responsibilities under the plan.

33 U.S.C. 1321(j)(5)(D)(iv)

—A response plan must describe the equipment testing to be carried out under the plan

§ 130.31(b)(5)

—A comprehensive plan must describe the equipment testing to be carried out under the plan

§ 130.108

—Requires description and certification that equipment testing meets the manufacturer's minimum requirements, which is equivalent to U.S. Coast Guard (USCG) requirements.

33 U.S.C. 1321(j)(5)(D)(iv)

—A response plan must describe the periodic unannounced drills to be carried out under the plan

§ 130.31(b)(5)

—A comprehensive plan must describe the periodic unannounced drills to be carried out under the plan

§ 130.108

—Requires drills to be equivalent to the DOT PREP standard. PREP includes sections for each agency regulated under CWA.

33 U.S.C. 1321(j)(5)(D)(iv)

—A response plan must describe the response actions of persons on the vessel or at the facility

§ 130.31(b)(5)

—A comprehensive plan must describe the response actions of facility personnel, to be carried out under the plan to ensure the safety of the facility and to mitigate or prevent the discharge, or the substantial threat of such a discharge

§ 130.106

—Requires a description of all of the following:

• Activities and responsibilities of railroad personnel prior to arrival of Qualified Individual (QI)

• QI responsibilities and actions

• Procedures coordinating railroad/QI actions with the Federal On-Scene Coordinator

33 U.S.C. 1321(j)(5)(D)(v)

—A response plan must be updated periodically

49 CFR part 130 does not specify clearly if or when the railroad must update a comprehensive plan

§ 130.109

—Clarifies that plans should be reviewed internally in full every 5 years at a minimum, when new or different conditions or information changes within the plan, or after a discharge requiring plan activation occurs.

33 U.S.C. 1321(j)(5)(D)(vi)

—A response plan must be resubmitted for approval of each significant change

§ 130.31(b)(6)

—Is submitted, and resubmitted in the event of any significant change, to the Federal Railroad Administrator (for tank cars)

§ 130.109

—Requires plans to be resubmitted to FRA in the event of new or different operating conditions or information that would substantially affect the implementation of the plan.

Provides examples of significant changes for clarity.

Table 6—Plan Approval Comparison

Approval and review required by CWA statute

Current regulatory requirement

Proposed changes

33 U.S.C. 1321(j)(5)(E)

—With respect to any response plan submitted under this paragraph for an onshore facility that, because of its location, could reasonably be expected to cause significant and substantial harm to the environment by discharging into or on the navigable waters or adjoining shorelines or the exclusive economic zone, and with respect to each response plan submitted under this paragraph for a tank vessel, nontank vessel, or offshore facility, the President shall—

§ 130.31(b)(6)

—Is submitted, and resubmitted in the event of any significant change, to the Federal Railroad Administrator (for tank cars)

§ 130.111

—Requires explicit approval of plans by FRA.

Specifies process for FRA to notify railroads of any sections of alleged deficiencies in plan and provides railroads the opportunity to respond.

Clarifies railroads will review plans five years from the date of last approval and resubmit plans after significant changes.

(i) promptly review such response plan;

(ii) require amendments to any plan that does not meet the requirements of this paragraph;

(iii) approve any plan that meets the requirements of this paragraph;

(iv) review each plan periodically thereafter; and

(v) in the case of a plan for a nontank vessel, consider any applicable State-mandated response plan in effect on August 9, 2004, and ensure consistency to the extent practicable

33 U.S.C. 1321(j)(5)(F)

A tank vessel, nontank vessel, offshore facility, or onshore facility required to prepare a response plan under this subsection may not handle, store, or transport oil unless—

(i) in the case of a tank vessel, nontank vessel, offshore facility, or onshore facility for which a response plan is reviewed by the President under subparagraph (E), the plan has been approved by the President; and

§ 130.101

—Prohibits the transportation of oil subject to comprehensive plans unless the requirements for submission, review and approval in § 130.111 are met and the railroad is operating in compliance with the plan.

(ii) the vessel or facility is operating in compliance with the plan.

33 U.S.C. 1321(j)(5)(G)

—Notwithstanding subparagraph (E), the President may authorize a tank vessel, nontank vessel, offshore facility, or onshore facility to operate without a response plan approved under this paragraph, until not later than 2 years after the date of the submission to the President of a plan for the tank vessel, nontank vessel, or facility, if the owner or operator certifies that the owner or operator has ensured by contract or other means approved by the President the availability of private personnel and equipment necessary to respond, to the maximum extent practicable, to a worst-case discharge or a substantial threat of such a discharge

§ 130.111

—Allows railroads to temporarily continue operating without plan approval, provided the plan has been submitted to FRA and the railroad submits a certification to FRA that the railroad has obtained, through contract or other approved means, the necessary personnel and equipment to respond, to the maximum extent practicable, to a worst-case discharge or a substantial threat of such a discharge.

Requires that the certificate be signed by the qualified individual or an appropriate corporate officer.

PHMSA solicits comment on the proposed oil spill response plan requirements in the following areas:

1. On ways to effectively provide regulatory flexibility to bona fide small entities that pose a lesser safety risk and may not be able to comply with the requirements of the proposed rule due to cost concerns, limited benefit, or practical considerations.

2. On whether the 12-hour response time is sufficient for all areas subject to the plan, or whether a shorter response time (

e.g.,

6-hours) is appropriate for certain areas (

e.g.

High Volume Areas) which pose an increased risk for higher consequences from a spill; on criteria to define such “High Volume Areas” where a shorter response time should be required, as well as whether the definition for “High Volume Area” in 49 CFR 194.5 (excluding pipeline diameter) captures this increased risk, or if there is other criteria which can be used to reasonably and consistently identify such areas for rail; on whether requiring response resources to be capable of arriving within 6 hours will lead to improvements in response, and for specific evidence of these improvements; and on whether the final rule should have a longer response time than 12 hours for spills for all other areas subject to the plan requirements in order to offset costs from requiring shorter response times for High Volume Areas.

3. On whether the proposed training requirements are sufficient, or whether the Qualified Individual should be trained to the Incident Commander level using the Incident Command System (ICS).

D. Related Actions

PHMSA and FRA have taken a comprehensive approach to responding to the risks posed by large quantities of flammable liquids by rail. The HHFT Final Rule outlines many of these actions under the Sections III (“Regulatory Actions Addressing Rail Safety”) and IV (“Non-Regulatory Actions Addressing Rail Safety”).

A brief summary of significant actions relating to response planning and information sharing are included in this document.

See

80 FR 26654 and 80 FR 26657, respectively.

1. Call to Action

On January 9, 2014, the Secretary issued a “Call to Action” to actively engage all the stakeholders in the crude oil industry, including CEOs of member companies of the American Petroleum Institute (API) and CEOs of railroads. In a meeting held on January 16, 2014, the Secretary and the Administrators of PHMSA and FRA requested that offerors and carriers identify prevention and mitigation strategies that can be implemented quickly. As a result of this meeting, the rail and crude oil industries agreed to voluntarily consider or implement potential improvements, including speed restrictions in high consequence areas, alternative routing, the use of distributive power to improve braking, and improvements in emergency response preparedness and training. The following are some of the call-to-action items related to emergency response and classification over the past year.

In February 2014, under an agreement between DOT and AAR, railroads developed a $5 million specialized crude-by-rail training and tuition assistance program for local first responders at the Transportation Technology Center, Inc. (TTCI). The funding provided for the development of a training curriculum for emergency responders in petroleum crude oil response and tuition assistance for over a 1,500 first responders in 2014.

TTCI is wholly owned subsidiary of the Association of American Railroads. TTCI is a transportation research and testing organization, providing emerging technology solutions for the railway industry throughout North America and the world.

As a result of the call to action in 2014, the rail and oil industry, along with PHMSA's input, developed a RP designed to improve rail safety through the proper classification and loading of crude oil. This effort was led by the API and resulted in the development of an ANSI recognized recommend practice (see ANSI/API RP 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars”). This recommend practice, which, during its development, went through a public comment period in order to be designated as an American National Standard, addresses the proper classification of crude oil for rail transportation and the quantity measurement for overfill prevention when loading crude oil into rail tank cars. RP 3000 provides guidance on the material characterization, transport classification, and quantity measurement for overfill prevention of petroleum crude oil for the loading of rail tank cars.

2. Emergency Order

As noted in the Executive Summary above, on May 7, 2014, DOT issued the Order.

The Order requires each railroad transporting in commerce within the U.S. 1,000,000 gallons or more of Bakken crude oil in a single train to provide certain information in writing to the SERC for each state in which it operates such a train. The Order requires railroads to provide (1) the expected volume and frequency of affected trains transporting Bakken crude oil through each county in a state (or a commonwealth's equivalent jurisdiction (

e.g.,

Louisiana parishes, Alaska boroughs, Virginia independent cities), (2) the routes over which the identified trains are expected to be operated; (3) a description of the petroleum crude oil and applicable emergency response information, and (4) contact information for at least one responsible party at the railroad. The Order requires railroads to provide SERCs updated notifications when there is a “material change” in the volume of affected trains.

http://www.dot.gov/briefing-room/emergency-order

DOT subsequently issued a frequently asked questions document clarifying several aspects of the Order (

e.g.,

the required level of specificity of the data to be shared, the duty of railroads to provide updated information to the SERCs and the railroad's ability to share the same data with state agencies other than the SERCs).

See

document number 0003 in Docket No. DOT-OST-2014-0067 and the more detailed discussion of the Order in the “HHFT Information Sharing Notification” section of this discussion.

3. Rulemaking Actions

On May 8, 2015, PHMSA, in consultation with FRA, published the HHFT Final Rule. Several provisions adopted in the HHFT Final Rule relate to this NPRM, including the definition of a HHFT and the information sharing portion of the route analysis and consultation requirements.

The HHFT Final Rule defined

High-Hazard Flammable Train

as a continuous block of 20 or more tank cars in a single train or 35 or more cars dispersed through a train loaded with a Class 3 flammable liquid. This definition served as the applicable threshold of many of the requirements in the HHFT Final Rule and is the threshold at which, per the HHFT Final Rule, the route analysis and consultation requirements of § 172.820 apply to HHFTs. That section prescribes additional safety and security planning requirements for the transportation of certain hazardous materials by rail. Prior to the HHFT Final Rule, § 172.820 applied to the rail transportation of bulk packages of materials poisonous by inhalation and certain explosive and radioactive materials. In the HHFT Final Rule, PHMSA expanded the applicability of § 172.820 to include HHFTs. Thus, in accordance with the HHFT Final Rule, rail carriers that operate HHFTs must annually assess the safety and security risks of routes used to transport those materials, as well as all practicable alternative routes, using a minimum of 27 risk factors identified in appendix D to part 172 of the HMR. Based on this analysis, rail carriers must identify and use the safest and most secure routes for the transportation of HHFTs (as well as the other covered hazardous materials). Paragraph (g) of § 172.820 requires rail carriers subject to the rule to identify a point of contact for routing issues and provide that contact information to the following:

• State and/or regional fusion centers that have been established to coordinate with State, local, and tribal officials on security issues within the area encompassed by the rail carrier's rail system;

and

http://www.dhs.gov/fusion-center-locations-and-contact-information

• State, local, and tribal officials in jurisdictions that may be affected by a rail carrier's routing decisions and who have contacted the carrier regarding routing decisions.

4. Safety Advisories

Safety advisories are documents published by PHMSA and FRA in the

Federal Register

that inform the public and regulated community of a potential dangerous situation or issue. In addition to safety advisories, PHMSA and FRA may also issue other notices, such as safety alerts. PHMSA and FRA published the following safety advisories and notices related to information sharing and emergency response planning.

On April 17, 2015, PHMSA issued a safety advisory notice (Notice No. 15-7; 80 FR 22781) to remind hazardous materials shippers and carriers of their responsibility to ensure that current, accurate, and timely emergency response information is immediately available to emergency response officials for shipments of hazardous materials, and that such information is maintained on a regular basis.

This notice outlined existing regulatory requirements applicable to hazardous materials shippers (including re-offerors) and carriers found in the HMR, specifically in subpart G of part 172.

See:

http://www.gpo.gov/fdsys/pkg/FR-2015-04-23/pdf/2015-09436.pdf

PHMSA Notice 15-7 emphasized that the responsibility to provide accurate and timely information is a shared responsibility for all persons involved in the transportation of hazardous materials. This information includes, but is not limited to, identification and volume of the specific hazardous material; location of the hazardous material on the train; risks of fire and explosion; immediate precautions to be taken in the event of an incident; initial methods for handling spills or leaks in the absence of fire; and preliminary first aid measures. It is a shipper's responsibility to provide accurate emergency response information that is consistent with both the information provided on a shipping paper and the material being transported. Likewise, re-offerors of hazardous materials must ensure that this information can be verified to be accurate, particularly if

the material is altered, mixed, or otherwise repackaged prior to being placed back into transportation. In addition, carriers must ensure that emergency response information is maintained appropriately, is accessible, and can be communicated immediately in the event of a hazardous materials incident. All of this information must be immediately available to any person who, as a representative of Federal, State, local or tribal governments (including a SERC), responds to an incident involving hazardous material or is conducting an investigation which involves a hazardous material.

On April 17, 2015 FRA and PHMSA also issued a joint safety advisory notice (FRA Safety Advisory 2015-02; PHMSA Notice No. 15-11; 80 FR 22778). The agencies issued the joint safety advisory notice to remind railroads operating an HHFT—defined as a train comprised of 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block, or a train with 35 or more loaded tank cars of a Class 3 flammable liquid across the entire train—as well as the offerors of Class 3 flammable liquids transported on such trains, that certain information may be required by PHMSA and/or FRA personnel during the course of an investigation immediately following an accident.

5. Stakeholder Outreach

PHMSA and FRA have also taken specific actions to develop appropriate response outreach and training tools to mitigate the impact of future incidents. The following are some of PHMSA's actions related to emergency response and information sharing for rail crude oil incidents over the past year.

In February 2014, PHMSA hosted a stakeholder meeting with participants from the emergency response community, railroad industry, Transport Canada, and its federal agency partners, FRA and Federal Motor Carrier Safety Administration. The objective was to discuss emergency preparedness related to incidents involving transportation of crude oil by rail. The discussion topics included: Current state of crude oil risk awareness and operational readiness/capability; familiarity with bulk shippers of crude oil and emergency response plans and procedures; available training resources (

e.g.,

sources, accessibility, gaps in training); and the needs of emergency responders/public safety agencies.

In May 2014, in conjunction with the Virginia Department of Fire Programs, PHMSA hosted a “Lessons Learned” forum that consisted of a panel of fire chiefs and emergency management officials from some of the jurisdictions that experienced a crude oil or ethanol rail transportation incident. The purpose of this forum was to share firsthand knowledge about their experiences responding to and managing these significant rail incidents. In attendance were public safety officials from Aliceville, AL; Cherry Valley, IL; Cass County, ND; and Lynchburg, VA. Based on the input received from the forum participants, PHMSA published the “

Crude Oil Rail Emergency Response Lessons Learned Roundtable Report,”

which outlined the key factors that were identified as having a direct impact on the outcomes of managing a crude oil transportation incident.

See

http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_0903D018579BF84E6914C0BB932607F5B3F50300/filename/Lessons_Learned_Roundtable_Report_FINAL_070114.pdf.

While the “Lessons Learned Roundtable Report” was focused on public emergency responders, some of the key findings also addressed the railroads:

• All agencies involved in emergency response operations need to understand NIMS [National Incident Management System], their specific role within NIMS, and must have a representative assigned to the Command Post to facilitate communications and coordination with all response assets.

• Pre-incident planning and communication with all organizations, specifically shippers and carriers (railroads), is essential to learn about the product(s) being transported and the availability of emergency response resources.

• Emergency responders are not fully aware of the response resources available from the railroads and other organizations (

e.g.,

air monitoring capabilities). This information would be useful in pre-incident planning, preparedness, and response operations.In June 2014, in partnership with FRA and the U.S. Fire Administration (USFA),

PHMSA hosted a stakeholder meeting with hazardous materials response subject matter experts from public safety organizations, railroads, government, and industry to discuss the best practices for responding to a crude oil incident by rail. In coordination with the working group, PHMSA drafted the “

Commodity Preparedness and Incident Management Reference Sheet.”

This document contains incident management best practices for emergency response operations, including a risk-based hazardous materials emergency response operational framework. The framework provides first responders with key planning, preparedness, and response principles to successfully manage a crude oil rail transportation incident. The document also assists fire and emergency services personnel in decision-making and developing an appropriate response strategy to an incident (

i.e.,

defensive, offensive, or non-intervention strategies).

In partnership with the USFA's National Fire Academy (NFA), a series of six coffee break training bulletins were published and widely distributed to the emergency response community providing reference to this response document.

This document has been widely distributed throughout the emergency response community and is also available on the PHMSA Operation Safe Delivery Web site at

http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse.

See

http://www.usfa.fema.gov/training/coffee_break/hazmat_index.html.

In October 2014, to further promote the “

Commodity Preparedness and Incident Management Reference Sheet,”

PHMSA contracted with the Department of Energy, Mission Support Alliance-Hazardous Materials Management and Emergency Preparedness (MSA-HAMMER) to develop the

Transportation Rail Incident Preparedness and Response (TRIPR) for Flammable Liquid Unit Trains

training modules. In 2015, the web-accessible Transportation Rail Incident Preparedness and Response (TRIPR) modules became available to provide emergency responders with critical information on best practices related to rail incidents involving Class 3 flammable liquids such as crude oil and ethanol.

The curriculum consists of nine training modules that focus on key response functions and incorporates three animated, interactive training scenarios and introductory videos to help instructors lead tabletop discussions. TRIPR offers a flexible approach to increasing the awareness of emergency response personnel on the best practices and principles related to rail incidents involving Class 3 flammable liquids. A key component of this initiative is to learn from past experiences and to leverage the expertise of public safety agencies, rail carriers, and industry subject matter experts in order to prepare first responders to safely manage rail incidents. These modules are not intended to be a standalone training program, but are offered to supplement existing programs.

See

http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse/TRIPR.

In December 2014, PHMSA hosted a follow-up meeting which re-engaged the

emergency response stakeholder group to allow all parties within the Federal Government, railroad industry, and response community to provide updates on the various emergency response-related initiatives aimed to improve community awareness and preparedness for responding to incidents involving crude oil and other Class 3 flammable liquid shipments by rail.

In addition to PHMSA's efforts mentioned above, in January 2015, the National Response Team (NRT), led by the Environmental Protection Agency (EPA), conducted a webinar, titled “

Emerging Risks, Responder Awareness Training for Bakken Crude Oil,”

to educate responders on Bakken crude oil production and transportation along with the health and safety issues facing first responders. In addition to the training webinar, the NRT also intends to conduct a large-scale exercise scenario in 2015 to assess Federal, State, and local response capabilities to a crude oil incident.

Also in January 2015, the Environmental Protection Agency (EPA), along with other federal partners, including FEMA, USCG, DOE, DOT, and DHS, hosted conference calls with State officials and representatives from the appropriate offices, boards, or commissions that play a role in preparing or responding to an incident involving crude-by-rail. The purpose of these discussions was to gain a better understanding of how States are preparing to respond to rail incidents involving crude oil and to identify key needs from each State. Questions centered on what actions (

e.g.,

planning, training, exercises) have been planned or conducted in the State or local communities, what communities or areas have the greatest risk, what regional actions or activities states have participated in and any other related concerns states would like to discuss.

In August 2015 and May 2016, PHMSA representatives attended the Northwest Tribal Emergency Management Council's annual meeting in Spokane, Washington. This provided PHMSA with the opportunity to speak directly with tribal emergency management leaders and emphasize the importance of effective tribal and federal cooperation.

In addition to these sources of information described above, PHMSA provides resources to the emergency response community in many other forms. Some of the key resources provided by PHMSA include:

• Hazardous Materials Emergency Preparedness (HMEP) Grant Program: On an annual basis, PHMSA awards over $20M in grant funding through its HMEP grant program to States, Territories, and Tribes to carry out planning and training activities to ensure state and local emergency responders are properly prepared and trained to respond to hazmat transportation incidents. These activities include conducting hazardous materials commodity flow surveys, drafting and updating hazmat operations plans, funding emergency response exercises, and NFPA-472 related training.

http://www.phmsa.dot.gov/hazmat/grants.

• Assistance for Local Emergency Response Training (ALERT) Grant: Additionally, in FY15 PHMSA will award its ALERT grant. This is a competitive grant opportunity using prior year recovery funds to a non-profit organization(s) that can provide direct or web-based hazardous materials training for volunteer or remote emergency responders. The priority for this grant will be emergency response activities for the transportation of crude oil, ethanol and other flammable liquids by rail. The anticipated award for this grant is September 2015.

• Emergency Response Guidebook: This guidebook provides emergency responders with a go-to manual to help deal with hazardous materials incidents during the critical first 30 minutes. It is also available as a free mobile app. The Emergency Response Guidebook is available at:

http://www.phmsa.dot.gov/hazmat/outreach-training/erg.

• Hazardous Materials Information Center: The Center provides live, one-on-one assistance Monday-Friday, 9 a.m. to 5 p.m. (ET). The Hazardous Materials Information Center is available at:

http://phmsa.dot.gov/hazmat/standards-rulemaking/hmic.

• Outreach: PHMSA has a staff of highly trained individuals skilled in training known as the Hazardous Materials Safety Assistance Team (HMSAT). The HMSAT team is part of our field operations personnel and is available in all regions of the United States to answer questions and provide on-site assistance to customers of the Hazardous Materials Transportation-State and Local Education (HMT-SALE) program, State, local and tribal governments, and industry associations with technical issues, outreach, training, and compliance assistance in the field of hazardous materials transportation:

http://www.phmsa.dot.gov/phmsa-ext/feedback/hmsatPresenterRequestForm.jsp.

A myriad of other sources of information and support are available to State, local and tribal governments' emergency preparedness and response efforts, including other federal agencies, and industry groups. For example, the U.S. Department of Homeland Security operates the National Operations Center 24 hours a day, 365 days a year to interact with State governors, emergency responders, and perform critical infrastructure operations across the country to prepare for, respond to, and recover from hazardous materials incidents.

Complementing the Federal Government's efforts, the railroad and shipping industries have also made efforts to improve crude oil by rail safety. API has built new partnerships between rail companies and oil producers. At the request of FRA, API is developing an outreach program to train first responders in HHFT derailment response throughout the U.S., particularly in states that have seen a rise in the transport of crude oil by rail. The oil and rail industries have worked to identify where existing training initiatives and conferences can be held to provide the training to as many responders as possible. The AAR is also worked to develop an inventory of emergency response resources and resource staging locations along routes utilized by HHFTs.

The railroad industry, hazardous materials shippers, and other organizations also provide emergency response assistance and training to communities through a variety of means, including the Transportation Community Awareness and Emergency Response (TRANSCAER®) program. The TRANSCAER program offers emergency response information, emergency planning assistance, and training to Local Emergency Planning Committees (LEPCs) under the AAR Circular OT-55-O protocol. AAR and API are working together to produce a crude oil by rail safety training video through their partnership with the TRANSCAER program.

The AAR Circular OT-55-O also outlines a procedure whereby local emergency response officials and emergency planning organizations may obtain a list of the types and volumes of hazardous materials that are transported through their communities. On January 27, 2015, AAR published revisions to the Circular for members to “provide bona fide emergency response

agencies or planning groups with specific commodity flow information covering all hazardous commodities transported through the community for a 12 month period in rank order.” Previously only the top 25 commodities were available. The railroad industry considers this information to be restricted information for business confidential and security reasons, and that the recipient of the information must agree to release the information only to bona fide emergency response planning and response organizations and not distribute the information publicly in whole or in part without the individual railroad's express written permission. Additional description of voluntary efforts by the regulated community is provided under the Section V, Subsection G (“Voluntary Actions”) of this rulemaking.

E. HHFT Information Sharing Notification

As previously discussed, on May 7, 2014, the Secretary of Transportation, under the authority of 49 U.S.C. 5121(d), issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 (Order).

The Order requires each railroad transporting in commerce within the United States, 1,000,000 gallons or more of Bakken crude oil in a single train to provide certain information in writing to the SERC for each state in which it operates such a train. The Order requires railroads to provide (1) the expected volume and frequency of affected trains transporting Bakken crude oil through each county in a state (or a commonwealth's equivalent jurisdiction (

e.g.,

Louisiana parishes, Alaska boroughs, Virginia independent cities)), (2) the routes over which the identified trains are expected to be operated; (3) a description of the petroleum crude oil and applicable emergency response information, and (4) contact information for at least one responsible party at the railroad. Further, the EO requires railroads to provide SERCs updated notifications prior to any “material change” in the volume of affected trains and requires railroads to provide copies of notifications made to each SERC to FRA upon request.

http://www.dot.gov/briefing-room/emergency-order.

DOT subsequently issued a frequently asked questions document (FAQs) clarifying several aspects of the Order.

The FAQs clarified that for purposes of the Order, “Bakken crude oil” is any crude oil tendered to railroads for transportation from any facility located within the Williston Basin (North Dakota, South Dakota, and Montana in the United States or Saskatchewan or Manitoba in Canada).

See

document number 0003 in Docket No. DOT-OST-2014-0067.

Second, the FAQs clarified the level of specificity of the traffic data railroads are required to provide the SERCs and the requirement to provide updated information in anticipation of a “material change” in estimated volumes or frequency of trains traveling through a particular local jurisdiction. Specifically, citing the Order's stated goal of providing first responders an understanding of the volume and frequencies with which Bakken crude oil is transported through their communities so that they can prepare appropriate response plans, the FAQs explained that when reporting traffic data required by the Order, railroads should look at their aggregate traffic of Bakken crude oil through the jurisdiction for the prior year and after considering any reasonably anticipated changes in that traffic, provide a reasonable estimate of the weekly traffic along the affected routes. The FAQs explained that the estimate could be provided in range to account for normal variations in traffic, but any changes of 25 percent or more from the aggregate estimates provided are considered a “material change” requiring a railroad to provide updated information to the relevant SERC.

Third, the FAQs addressed issues related to the potential confidentiality of the data railroads submit to SERCs under the Order. DOT explained that the data is intended for persons with a need-to-know; that is, first responders at the state and local level, as well as other appropriate emergency response planners. Noting that historically railroads and states have routinely entered into confidentiality agreements prior to railroads providing states with information on commodities transported in trains within their jurisdictions, the FAQs clarified that railroads may require reasonable confidentiality agreements prior to providing the required information to SERCs or other state agencies. As discussed later in the following section, confidentiality concerns have been the subject of further analysis and discussion.

Fourth, recognizing that different states have different methods and agencies responsible for emergency response planning and preparedness within their jurisdictions and a state's SERC may not always be the state agency most directly involved in emergency response planning and preparedness, the FAQs provided that if a state agrees that it would be advantageous for the information required by the Order to be shared with another state agency (such as a fusion center) involved with emergency response planning and/or preparedness, as opposed to the SERC, a railroad may share the required information with that agency instead of the SERC.

Finally, the FAQs addressed railroads' responsibilities as applied to tribal lands and clarified that the Order does not require railroads to reach out to Tribal Emergency Response Commissions (TERCs), as DOT itself planned outreach to Tribal leaders to let them know that their TERCs can coordinate with the appropriate SERCs for access to data supplied under the Order. The FAQs did make clear, however, that railroads must ensure that SERCs (or relevant fusion centers or other state agencies) are also supplied with information for traffic through tribal lands.

Following the issuance of the Order, some stakeholders, including the Association of American Railroads (AAR) and the American Shortline and Regional Railroad Association (ASLRRA), expressed concern that the crude oil routing information the Order requires railroads to provide to SERCs is sensitive information from a security perspective and should only be available to persons with a need-to-know the information (

e.g.,

emergency responders and emergency response planners). The AAR and ASLRRA also expressed the view that commercially sensitive information should remain confidential and not be publically available.

See

the discussion of AAR and ASLRRA's concerns published at 79 FR 59891 on October 3, 2014 (FRA's “Proposed Agency Information Collection Activities; Notice and Request for Comments” related to the Order). After consulting with DOT, the Department of Homeland Security (DHS) and the Transportation Security Administration (TSA), FRA responded to AAR and ASLRRA's concerns, by explaining that the information the Order requires railroads to supply to SERCs is not commercially sensitive or Security Sensitive Information (SSI) defined by DOT, DHS, or TSA regulations.

Id.

at 59892. FRA further noted that DOT found no basis to conclude that the public disclosure of the information is detrimental to transportation safety.

Id.

After the issuance of the Emergency Order in August 2014, PHMSA published the High-Hazard Flammable Train NPRM. In that NPRM, PHMSA proposed to codify the requirements of the Emergency Order and requested

public comment on the various facets of that proposal. Specifically, PHMSA proposed to add a new § 174.310, “Requirements for the operation of high-hazard flammable trains,” to subpart G of part 174. Proposed § 174.310 set forth additional requirements for the operation of HHFTs including making such trains subject to the route analysis and consultation requirements of existing § 172.820, certain speed restrictions and specific braking standards, as well as notifications to SERCs consistent with the Order. Specifically, paragraph (a)(2) of proposed § 174.310 required railroads transporting in a single train 1,000,000 gallons or more of Bakken crude to provide certain information about these trains to the SERCs or other appropriate state delegated entities in which it operates. Generally consistent with the Order, the NPRM's proposal required railroads to provide the following information to the SERCs or “other appropriate state delegated entities”: (1) A reasonable estimate of the number of affected trains that expected to travel, per week, through each county within the state; (2) the routes over which the affected trains will be transported; (3) a description of the crude oil being transported and applicable emergency response information; and (4) updates in the event of any “material change.” Table 7 depicts the comments received in response to this proposal, representing approximately 99,856 signatories.

Table 7—Commenter Composition: NPRM Notification

Commenter type

Signatories

Non-Government Organization

90,869

Individuals

8,888

Industry stakeholders

Government organizations or representatives

Totals

99,856

The vast majority of commenters generally supported PHMSA's efforts to establish some level of notification requirements for the operation of trains carrying large quantities of crude oil as proposed in § 174.310(a)(2). However, commenters were divided on some of the specific requirements of the proposal. Some commenters were opposed to the public dissemination of information, citing business confidentiality or security concerns.

Based on the public comments on the NPRM as well as PHMSA and FRA's analysis of the issues from the HHFT Final Rule, PHMSA did not adopt the notification requirements of proposed § 174.310(a)(2). PHMSA determined that the expansion of the existing route analysis and consultation requirements of 49 CFR 172.820 to include HHFTs would be the best approach to ensuring that emergency responders and others involved with emergency response planning and preparedness would have access to sufficient information regarding crude oil shipments moving through their jurisdictions to enable them to adequately plan and prepare from an emergency response perspective. PHMSA reasoned that expanding the existing route analysis and consultation requirements of § 172.820 (which already apply to the rail transportation of certain hazardous materials historically considered to be highly-hazardous

) would preserve the intent of the Emergency Order to enhance information sharing with emergency responders in areas through which HHFTs move and that, in combination with the other new safety requirements in the HHFT Final Rule, obviated the need to continue notification to the SERCs as required by the Order and as proposed in the HHFT NPRM.

TSA regulations under 49 CFR 1580.100 define certain types and quantities of material as “rail security sensitive materials (RSSM). Class 3 flammable liquids, including crude oil and ethanol are not defined as RSSM.

After PHMSA published the HHFT Final Rule, FRA, PHMSA and the Department received feedback from stakeholders, expressing concern about the Department's decision to forgo the proactive notification requirements of the Emergency Order and in the NPRM. Those stakeholders include Congressional representatives, State and local government officials, representatives of emergency response and planning organizations, and the public. Generally, these stakeholders expressed the view that given the unique risks posed by the frequent rail transportation of large volumes of flammable liquids, including Bakken crude oil, PHMSA should not eliminate the proactive information sharing provisions of the Order and rely solely on the consultation and communication requirements in existing § 172.820. Stakeholders, including emergency responders, expressed concern that the HHFT Final Rule may limit the availability of emergency response information by superseding the Order.

In response to these concerns and after further evaluating the issue within the Department, in a May 28, 2015, notice (Notice), PHMSA announced that it would extend the Order indefinitely, while it considered options for codifying the disclosure requirement on a permanent basis.

In the Notice, PHMSA recognized the desire of local communities to know what hazardous materials are moving through their cities and towns and noted that transparency is a critical piece of the Department's comprehensive approach to safety. Further, PHMSA expressed its support for the public disclosure of this information to the extent allowed by the applicable state, local and tribal laws and noted that the Order and HHFT Final Rule all emphasize transparency and information sharing. The Notice explained that longstanding federal law requires shippers and offerors of hazardous materials to carry the critical information necessary for emergency responders to respond appropriately to an incident involving the transportation of any hazardous material and to have someone available to provide emergency response information at all times that the hazardous material is in transportation. See 49 CFR 174.26 and part 172, subpart G. PHMSA issued a safety advisory reminding the regulated community of these legal obligations and outlining the myriad of additional emergency response resources available (

e.g.,

PHMSA's Emergency Response Guidebook and Hazardous Materials Information Center, the U.S. Department of Homeland Security's National Operations Center, industry's TRANSCAER® program, as well as AAR's Circular OT-55-N that outlines a procedure whereby local emergency response officials and emergency response planning organizations may obtain a list of the types and volumes of hazardous materials that are transported through their communities).

See

the detailed discussion of PHMSA's April 17, 2015, Safety Advisory and Stakeholder Outreach in Section II, Subsection C (“Summary of Proposed Oil Spill Response Requirements”) above.

http://www.phmsa.dot.gov/hazmat/phmsa-notice-regarding-emergency-response-notifications-for-shipments-of-petroleum-crude-oil-by-rail.

On December 4, 2015, President Obama signed into law the “Fixing America's Surface Transportation Act of 2015 (“FAST Act”). The FAST Act includes the “Hazardous Materials Transportation Safety Improvement Act of 2015” at §§ 7001 through 7311, which provides direction for the hazardous materials safety program. Section 7302 directs the Secretary to issue regulations that require real-time sharing of the electronic train consist information for hazardous materials shipments and require advanced notification of certain HHFTs. The DOT will address the

requirements in § 7302 related to electronic train consists in a future rulemaking. The FAST Act directs Class I railroads to provide advanced notification and information on high-hazard flammable trains to each State Emergency Response Commission (SERC), consistent with the notification requirements in the Order. The FAST Act requires that SERCs receiving this advanced notification must provide the information to law enforcement and emergency response agencies upon request. The FAST Act also directs the Secretary to establish security and confidentiality protections for electronic train consist information and advanced notification information.

The FAST Act limits the applicability of the advanced notification requirements for HHFT to the Class I railroads. In this NPRM, PHMSA is proposing that the information-sharing requirements apply to all railroads with HHFT operations. This proposal fulfills the Congressional mandate and is within PHMSA's regulatory authority. Through the authority of Federal hazmat transportation law and the delegation of this authority to PHMSA by the Secretary, PHMSA is responsible for overseeing a hazmat safety program that protects against the risks to life, property, and the environment inherent in the transportation of hazmat in commerce. In proposing that the information-sharing requirements apply to all railroads with HHFT operations, PHMSA is addressing the provisions of the FAST Act, as well as acting in accordance with our delineated authority by addressing the potential safety risks posed by HHFT operations of all railroads. Requiring advanced notification from Class I, II, and III railroads is consistent with DOT's Order addressing information-sharing. While we acknowledge that the HHFT operations of Class II and Class III railroads are relatively limited in comparison to those of Class I railroads, and thus pose fewer safety risks in the rail transportation system, the HHFT operations of Class II and Class III railroads nonetheless pose safety risks that justify adherence to the proposed information-sharing requirements of this NPRM.

Recent railroad accidents demonstrate that accidents involving HHFTs are not limited to Class I railroads. In particular, the accidents in Aliceville, AL, and New Augusta, MS involved two Class III railroads, the Alabama Gulf Coast Railway and Illinois Central Railroad. If PHMSA were to limit the requirement to Class I railroads as described in the FAST Act, these railroads and other Class II or Class III railroads would not be required to provide advanced notification and information to SERCs or TERCs. Therefore, in order to effectively address the safety risks posed by HHFTs by increasing the level of information sharing between railroads and SERCs, TERCs, and other affected jurisdictions, PHMSA proposes that the information-sharing requirements of this NPRM apply to all classes of railroads that transport HHFTs. The intent of the information sharing provision of this rule is to ensure that local emergency responders and emergency planning officials have access to sufficient information regarding the movement of HHFTs in their jurisdictions to adequately plan and prepare for emergency events involving HHFTs. This purpose is reaffirmed by the FAST Act's requirements addressing requirements for both sharing and protection of information required by the advanced notification. Under the Emergency Planning and Community Right-to-Know Act (EPCRA) in Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), the Governor of each state is required to establish a state emergency response commission (SERC). The SERC is responsible for establishing emergency planning districts and appointing, supervising, and coordinating local emergency planning committees (LEPCs). EPCRA section 303 requires LEPCs to develop a comprehensive emergency response plans for their emergency planning districts. The SERC is also responsible for reviewing the emergency response plans and make recommendations to revise the plans as necessary for each community. The emergency response plan includes facilities that handle extremely hazardous substances (EHSs) defined under section 302 of EPCRA as well as transportation routes of EHSs. Many LEPCs include EHSs as well other chemicals that pose a risk in their emergency response plan. As previously noted, another agency is sometimes delegated by the state to be directly involved in emergency response planning and preparedness. In both instances, state delegated agencies are connected to the local response and planning framework. The information required to be shared in this rulemaking is largely consistent with the information required by the Order.

F. Security and Confidentiality for HHFT Information Sharing Notification

In response to the Order's information-sharing provisions, railroads raised particular concerns that the sharing of routing information for HHFTs required them to reveal proprietary business information. The railroads argued that the routing information, if published or shared widely, could reveal information about customers. After considering the claim in an October 2014 information collection notice, FRA concluded that the information would not constitute business confidential or proprietary under federal law. See the discussion of AAR and ASLRRA's concerns published at 79 FR 59891 on October 3, 2014 (FRA's “Proposed Agency Information Collection Activities; Notice and Request for Comments” related to the Order). In its discussion, the FRA noted that the railroads did not specifically identify any prospective harm caused by the sharing of this information. Nonetheless, if a railroad claims that routing information contains confidential business information, the merits of that claim would be analyzed under state open records and sunshine laws.

Section 7302 of the FAST Act directs the Secretary to “establish security and confidentiality protections, including protections from the public release of proprietary information or security-sensitive information, to prevent the release to unauthorized persons any electronic train consist information or advanced notification or information provided by Class I railroads under this section.” In fact, railroads previously raised concerns that the sharing of routing information for HHFTs required them to reveal proprietary business information. As discussed above, railroads argued that the Emergency Order routing information, if published or shared widely, could reveal information about customers. After considering the claim in an October 2014 information collection notice, FRA concluded that the information would not be considered business confidential or SSI under federal law. See the discussion of AAR and ASLRRA's concerns published at 79 FR 59891 on October 3, 2014 (FRA's “Proposed Agency Information Collection Activities; Notice and Request for Comments” related to the Order). In its discussion, the FRA noted that the railroads did not specifically identify any prospective harm caused by the sharing of this information. DOT's previous analysis and conclusion determined that the information shared by railroads does not qualify for withholding under federal standards on business confidential or SSI. As proposed, DOT will require railroads to share aggregated information about the volumes of crude oil that travel through a jurisdiction on a weekly basis. This

information does not include customer information or other business identifying details. Further, it does not provide specifics about the timing of HHFT trains. Accordingly, PHMSA believes it is limited in its ability to establish security and confidentiality protections, particularly in light of the FAST Act's dual mandates for PHMSA to ensure free-flowing information to SERCs and first responders and provide protections for further disclosures. However, as noted in FRA's discussion of this matter in its October 2014 Information Disclosure Notice, State laws control, and may limit, the disclosure and dissemination of this information. Accordingly, PHMSA added the following language to the notification requirements: “If the disclosure includes information that railroads believe is security sensitive or proprietary and exempt from public disclosure, the railroads should indicate that in the notification.” This will help guard against inadvertent public disclosure by ensuring that the information that railroads believe to be business confidential is marked appropriately. Before fulfilling a request for information and releasing the information, States will be on notice of which information the railroads consider to be inappropriate for public release. We welcome comments on this discussion and particularly invite comments on means by which PHMSA can fulfill the FAST Act's direction to establish security and confidentiality protections, where this information is not subject to security and confidentiality protections under Federal standards.

G. Initial Boiling Point Test

An offeror's responsibility to classify and describe a hazardous material is a key requirement under the HMR. In accordance with § 173.22 of the HMR, it is the offeror's responsibility to properly “class and describe a hazardous material in accordance with parts 172 and 173 of the HMR.” For transportation purposes, classification is ensuring the proper hazard class, packing group, and shipping name are assigned to a particular material. For a Class 3 Flammable liquid, the HMR provide two tests to determine PG. Both the flash point and IBP must be determined to properly classify and assign an appropriate packing group for a Class 3 Flammable liquid in accordance with §§ 173.120 and 173.121. The HMR authorize all of the following IBP tests for classification of flammable liquids:

• ASTM D-86—Distillation of Petroleum Products at Atmospheric Pressure

• ASTM D-1078—Standard Test Method for Distillation Range of Volatile, Organic Liquids

• ISO 3405—Petroleum Products—Determination of Distillation Characteristics at Atmospheric Pressure

• ISO 3924—Petroleum Products—Determination of Boiling Range Distribution—Gas Chromatography Method

• ISO 4626—Volatile Organic Liquids—Determination of Boiling Range of Organic Solvents Used as Raw Materials

Table 8 provides a description of the flash point tests currently authorized in the HMR for petroleum liquids.

Table 8—Flash Point Testing Requirements for Petroleum Liquids Currently in the HMR

Material

Flash point test

Homogeneous, single-phase liquid having a viscosity less than 45 S.U.S. at 38 °C (100 °F)

ASTM D-56—Standard Method of Test for Flash Point by Tag Closed Cup Tester.

ASTM D-3278—Standard Test Methods for Flash Point by Small Scale Closed-Cup Apparatus.

ASTM D-3828—Standard Test Methods for Flash Point by Small Scale Closed Tester.

All other liquids

ASTM D-93—Standard Test Methods for Flash Point by Pensky-Martens Closed Cup Tester.

ASTM D-3278—Standard Test Methods for Flash Point of Liquids by Small Scale Closed-Cup Apparatus.

For mixtures

Method specified in § 173.120(c)(2).

In 2014, the rail and oil industry, along with PHMSA's input, developed an RP designed to improve rail safety through the proper classification of crude oil and loading practices. This effort was led by API and resulted in the development of an ANSI-recognized recommended practice (see ANSI/API RP 3000, “Classifying and Loading of Crude Oil into Rail Tank Cars”). This recommended practice, which, during its development, went through a public comment period in order to be designated as an American National Standard, addresses the proper classification of crude oil for rail transportation and the quantity measurement for overfill prevention when loading crude oil into rail tank cars. The API RP 3000 provides guidance on the material characterization, transport classification, and quantity measurement for overfill prevention of petroleum crude oil for the loading of rail tank cars.

The API RP 3000 provides best practices for both sampling and testing. The API RP 3000 best practices for flash point testing align with the flash point test options currently in the HMR. For the initial boiling point test, the API RP 3000 concluded that for crude oils containing volatile, low molecular weight components (

e.g.

methane), the recommended best practice is to test using ASTM D7900. This test ensures a minimal loss of light ends because it determines the boiling range distribution from methane through n-nonane with an IBP defined as the temperature at which 0.5 weight percent loss is observed when determining the boiling range distribution defined in ASTM D7169. This test differs from the boiling point test options currently in the HMR, which do not remove and recover the light ends. The development of this recommended practice demonstrates the importance of proper classification.

In the May 8, 2015, Final Rule HM-251(80 FR 26644), PHMSA adopted requirements for a sampling and testing program. The API RP 3000 was finalized in September 2014, after the HM-251 NPRM was published, and the public was unable to have the opportunity comment on the API RP 3000's incorporation into the HMR. Therefore, PHMSA did not incorporate API RP 3000 by reference; however, we noted that it could be used as a method to comply with certain requirements the testing and sampling program. The sampling requirements adopted in

§ 173.41 of the HMR are consistent with API RP 3000, but provide greater flexibility. PHMSA stated that:

shippers may still use API RP 3000 as a voluntary way to comply with the newly adopted sampling requirements. It should be noted that all of the testing provisions of API RP 3000 do not align with the requirements in the HMR. As the testing provisions were not proposed to be modified, shippers must continue to use the testing methods for classification of flammable liquids outlined in § 173.120 and flammable gases in § 173.115.

PHMSA further noted that we might consider the adoption of the non-codified testing provisions of API RP 3000, such as the ASTM D7900 boiling point test in a future rulemaking.

As specified in the final rule, the ASTM D7900 IBP test and practice recommended by industry in the API RP 3000 is not currently aligned with the testing requirements authorized in the HMR, forcing shippers to continue to use the testing methods authorized in § 173.121(a)(2). This misalignment results in a situation where an industry best practice for the testing of crude oil (ASTM D7900 for initial boiling point) that was developed in concert with PHMSA is not authorized by the HMR. Therefore, for initial boiling point determination, PHMSA is proposing to incorporate ASTM D7900 by reference, thus permitting the industry best practice for testing Class 3 PG assignments. We note that the incorporation of ASTM D7900, which aligns with the API RP 3000 will not replace the currently authorized testing methods; rather, it serves as a testing alternative if one chooses to use that method. PHMSA believes this provides flexibility and promotes enhanced safety in transport through accurate PG assignment.

III. Recent Spill Events

PHMSA collected and reviewed information from various sources pertaining to recent derailments involving discharges of crude oil. In this rulemaking and the accompanying analysis, PHMSA has focused on the following derailments: Watertown, WI (November 2015); Culbertson, MT (July 2015); Heimdal, ND (May 2015); Galena, IL (March 2015); Mt. Carbon, WV (February 2015); La Salle, CO (May 2014); Lynchburg, VA (April 2014); Vandergrift, PA (February 2014); New Augusta, MS (January 2014); Casselton, ND (December 2013); Aliceville, AL (November 2013); and Parkers Prairie, MN (March 2013). In the RIA, PHMSA provides narratives and discussion of the circumstances and consequences of these derailments. PHMSA has identified these derailments as involving trains transporting 20 or more tank cars of petroleum oil in a continuous block or 35 or more tank cars dispersed throughout the train in conformance with the proposed applicability of this rule. Furthermore, these derailments resulted in discharges of petroleum oil that harmed or posed a threat of harm to the nation's waterways or the environment.

By reviewing and analyzing the experience of the response to these derailments, PHMSA seeks to identify oil spill response challenges that have occurred in the past and could occur in future derailment scenarios. PHMSA incorporates this understanding of response challenges into this NPRM, which proposes to amend the requirements of 49 CFR part 130 to improve comprehensive oil spill response plans by way of new and revised requirements. PHMSA holds that improved oil spill response planning will, in turn, improve the actual response to future derailments involving petroleum oil and lessen potential negative impacts to the environment and communities.

In general, there have been a variety of challenges apparent in the responses to recent derailments involving petroleum oil. In multiple instances, those responding to oil spills have encountered difficulties in assessing the extent of oil spills due to smoke or fire. In several of the derailments discussed in this rulemaking, the relatively remote location of the town or derailment site limited responders' access to the derailment site and encumbered the deployment of response equipment (

e.g.,

heavy machinery) at the site. Response providers have also faced adverse weather or the potential for adverse weather, which can complicate response protocols and compound the adverse effects of spills. Communications between railroads, response providers, and Federal, State, and local officials are often challenging due to the broad array of organizational representation at derailment sites and the lack of formal response communications protocols. Further, derailments involving energetic ruptures and fires can threaten public safety, necessitating evacuations that span multiple days and require significant resources, including personnel and leadership with experience and training in emergency management.

Derailments often require a significant, long-term commitment of personnel and equipment to remediate an oil spill. Moreover, derailments involving petroleum oil typically require diverse technical or scientific response services. For example, monitoring a direct discharge into a waterway requires water sampling services to detect if harmful levels of compounds found in petroleum oils have contaminated affected waterways. Depending on the proximity of an oil spill to rivers, the spill response could also require monitoring of river levels, since rising river levels could rapidly exacerbate the extent of an oil spill. The smoke emanating from fires requires air monitoring services to detect if harmful levels of air pollutants have jeopardized local air quality and public health.

Thus, in the draft RIA, PHMSA has identified and summarized several recent derailments to illustrate the circumstances and consequences of derailments involving petroleum oil transported in higher-risk train configurations. We have outlined some of the challenges faced by the response to each spill event and discussed ways in which comprehensive oil spill response plans may have improved spill response efforts and/or alleviated the adverse consequences to the nation's waterways or environment.

IV. National Transportation Safety Board Safety Recommendations

As previously discussed, in addition to the efforts of PHMSA and FRA, the NTSB has taken a very active role in identifying the risks posed by the transportation of large quantities of flammable liquids by rail, as well as emergency response activities. Table 9 provides a summary of the rail-related NTSB Safety Recommendations related to this rulemaking.

Table 9—NTSB Recommendations Addressed in This Rulemaking

NTSB

recommendation

Summary

Addressed in this rule?

Description

R-14-02—Issued January 23, 2014

Recommends that FRA develop a program to audit response plans for rail carriers of petroleum products to ensure that adequate provisions are in place to respond to and remove a worst-case discharge to the maximum extent practicable and to mitigate or prevent a substantial threat of a worst-case discharge

Yes

Propose requirements for FRA to approve comprehensive oil spill response plans for rail.

R-14-05—Issued January 23, 2014

Recommends that PHMSA revise the spill response planning thresholds contained in 49 CFR part 130 to require comprehensive response plans to effectively provide for the carriers' ability to respond to worst-case discharges resulting from accidents involving unit trains or blocks of tank cars transporting oil and petroleum products

Yes

Propose to revise the spill planning thresholds to address 20 cars of liquid petroleum oil in a continuous block or 35 cars of liquid petroleum oil in a consist.

R-14-14—Issued August 22, 2014

Recommends that PHMSA require railroads transporting hazardous materials through communities to provide emergency responders and local and state emergency planning committees with current commodity flow data and assist with the development of emergency operations and response plans

Yes

The proposed information sharing requirements in this rulemaking and the adopted routing requirements in final rule HM-251 (80 FR 26643, May 8, 2015) address this recommendation.

V. Summary and Discussion of Public Comments on Oil Spill Response Plans

A. Overview of Comprehensive Oil Spill Response Plans

In the August 1, 2014, ANPRM, PHMSA solicited public comment on questions about potential revisions to its regulations that would expand the applicability of comprehensive oil spill response plans (OSRPs) to high-hazard flammable trains (HHFTs) based on amounts of crude oil in an entire train consist, rather than a single package or tank car. PHMSA received 259 submissions representing more than 70,000 signatories. Over 67,000 signatories included comments directly addressing the ANPRM rulemaking that were submitted to a related docket for the NPRM HM-251, Hazardous Materials: Rail Petitions and Recommendations to Improve the Safety of Railroad Tank Car Transportation (RRR). These comments were identified and considered to the extent practicable. Comments were received from a broad array of stakeholders, including trade organizations, intermodal carriers, consultants, environmental groups, emergency response organizations, other non-government or advocacy organizations, local government organizations or representatives, tribal governments, state governments, Members of Congress, and other interested members of the public. Comments and all corresponding rulemaking materials received may be viewed on the

www.regulations.gov

Web site (Docket ID: PHMSA-2014-0105). Additional comments may be viewed under Docket ID: PHMSA-2012-0082.

In general, comments on the ANPRM were: (1) General statements of support or opposition; (2) personal anecdotes or general statements not specifically related to the proposed changes; (3) comments beyond the scope of the oil spill response planning provisions of the CWA; or (4) identical or nearly identical letter write-in campaigns submitted as part of comment initiatives sponsored by organizations. For example, many commenters recommend insurance or liability requirements for railroads that are not within the scope of PHMSA's statutory authority. Although PHMSA does not have statutory authority to impose insurance or liability requirements, the FAST Act mandates the Secretary initiate a study on the levels and structure of insurance for railroad carriers transporting hazmat under § 7310. That action is underway. The remaining comments reflect a wide variety of differing views on the proposed regulations. The substantive comments received on the ANPRM are organized by topic and discussed in the appropriate section, together with the PHMSA's response to those

comments.

It should be noted that individuals and non-government organization signatories were not categorized consistently due to limitations from transferring capturing comments initially submitted to PHMSA-2012-0082.

Table 10—Overall Commenter Breakdown

Background

Signatories

Description and examples

Non-Government Organization

65,044

Environmental groups, emergency response organizations, and other non-governmental organizations.

Government

3,299

Local, state, tribal governments or representatives, U.S. Congress members, etc.

Individual

2,079

Public submissions not directly representing a specific organization.

Industry Stakeholder

Trade organizations, intermodal carriers, offerors.

B. Plan Scope/Threshold of Comprehensive Oil Spill Response Plans

In order to inquire about the potential impact of different thresholds on the regulated community, PHMSA asked the public to comment on the following question: “When considering appropriate thresholds for comprehensive OSRPs, which of the following thresholds would be most appropriate and provide the greatest potential for increased safety? The following thresholds were provided as examples: (a) 1,000,000 gallons or more of crude oil per train consist; (b) an HHFT of 20 or more carloads of crude oil per train consist; (c) 42,000 gallons

of crude oil per train consist; or (d) another threshold. In addition, PHMSA asked: What thresholds would be most cost-effective?”

Comments to the ANPRM on the scope of the rule were wide-ranging. Many commenters commented on this question directly, voicing support of one or more of the proposed thresholds or suggesting a different threshold, while other commenters chose to comment generally.

The first threshold, (a) 1,000,000 gallons or more of crude oil per train consist was not supported by any commenters as a single metric. Two commenters: The Association of American Railroads (AAR) and the American Short Line and Regional Railroad Association (ASLRRA) did incorporate 1,000,000 gallons as part of another threshold, as discussed further below.

In opposition to the first proposed threshold, many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving quantities below this threshold could cause considerable harm to the environment and in particular, rivers or waterways. On this point, LRT-Done Right has reiterated the significance of PHMSA's derailment data, stating that “. . . less than one carload of spilled oil or ethanol can present great danger.” Similarly, the Delaware Riverkeeper Network commented that, for example, “a spill of 25,000 gallons of oil in Wyoming . . . resulted in a three mile trail of contamination.”

Commenters have also suggested that 1,000,000 gallons is not an adequate threshold because preventing oil spills within the context of rail transport differs substantially from the context of fixed oil facilities. The Delaware Riverkeeper Network has stated, “A threshold of 1,000,000 gallons is . . . inappropriate because the current 1,000,000 gallon threshold [under EPA regulations] applies to stationary facilities and includes all oil containers, including drums, at the facility. Trains carrying volatile crude oil are substantially different than such facilities.” Similarly, the Center for Biological Diversity has said, “[42,000 gallons as a threshold for rail] would be more consistent with established law than a 1,000,000 gallon threshold . . . since trains are not storing oil in a controlled facility, but rather moving it around the country on rail systems that experience fatigue and unforeseen circumstances such as derailments.”

PHMSA's second proposed threshold, (b) an HHFT of 20 or more carloads of crude oil per train consist, was supported at least in part by three commenters.

Namely, the Independent Fuel Terminal Operators Association, the Flathead Lakers, and the Honorable Paul D. Tonko submitted comments in support of a threshold aligned with the definition of an HHFT. The Flathead Lakers, in particular, have noted that incidents involving quantities carried by HHFTs could be catastrophic.

It should be noted that the HMR now define an HHFT as “as a train comprised of 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or 35 or more loaded tank cars of a Class 3 flammable liquid across the entire train.” The (b) threshold was based on the HHFT definition proposed in the August 1, 2014 NPRM which was “as a train comprised of 20 or more tank cars containing a flammable liquid.”

In opposition to a threshold based on the HHFT definition, and similar to commenters' opposition to the first threshold of 1,000,000 gallons, some commenters have indicated that incidents need not involve an HHFT in order to cause considerable harm to the environment. The National Association of SARA Title III Program Officials (NASTTPO) and the Oklahoma Hazardous Materials Emergency Response Commission (OHMERC) have suggested that the threshold for developing a comprehensive oil spill response plan should involve fewer tank cars carrying crude oil because one tank car “is more than enough flammable material to present a risk to first responders and the local community.” Various individual commenters have echoed this sentiment and suggested that a threshold based on the HHFT definition would allow significant quantities of crude oil to be transported by rail carriers that lack comprehensive oil spill response plans.

Several commenters supported the third proposed threshold: (d) 42,000 gallons of crude oil per train consist. Commenters have shown that it is at least numerically consistent with current regulations in 49 CFR part 130, even though there is a key distinction in which part 130 upholds a threshold of 42,000 gallons for a single package (

i.e.,

a single tank car) and the ANPRM has proposed 42,000 gallons as a threshold within a single train consist. As the New York State Department of Transportation has stated, “[A 42,000 gallon per train consist threshold] would maintain consistency with the existing threshold for comprehensive Oil Spill Response Plans (OSRP) while recognizing the hazard posed by the derailment of even a small number of crude oil cars.”

Many commenters have supported the third proposed threshold (

i.e.,

(d) 42,000 gallons of crude oil per train consist) on the basis that it was the lowest quantity threshold that PHMSA proposed. Given that approximately 30,000 gallons can be carried in a single tank car, 42,000 gallons amounts to the quantity of crude oil that could be contained and transported in two tank cars. Therefore, among the proposed thresholds, the 42,000 gallons per train consist threshold would plausibly have a high applicability and require the development of a comprehensive plan by the greatest number of railroads. Thus, commenters supporting this threshold have held that it would plausibly result in the greatest amount of prevention and preparation on the part of affected entities and consequently, the greatest amount of risk reduction, enhancement of public safety, and protection of the environment.

Similarly, the threshold of 42,000 gallons received some support from commenters that propose lower quantities of crude oil as a threshold (

e.g.,

1 gallon, 24,000 gallons, 30,000 gallons, etc.), but acknowledged that a threshold of 42,000 gallons for practical purposes would result in approximately the same amount of applicability and affected entities. Assuming the typical tank car contains 27,000 to 30,000 gallons of crude oil, the main difference between a threshold of 1 gallon and 42,000 gallons would be whether a railroad could legally transport one tank car of crude oil without a comprehensive oil spill response plan. Accordingly, the Delaware Bay & River Cooperative has commented, “. . . one rail car of 30,000 gallons of crude can have significant environmental impacts if spilled in a sensitive area along the Delaware River or other body of water. Therefore, 42,000 gallons may be the appropriate threshold level to trigger the comprehensive plans requirement.”

Nevertheless, some commenters have suggested that the threshold should be one tank car or any quantity of crude oil. The Waterkeeper Alliance has stated, “Whether one car, twenty cars, or one hundred and twenty cars in a train are carrying crude oil, crude-by-rail is inherently dangerous, and PHMSA should require the railroad industry to adequately prepare for any size spill. In sum, the new PHMSA Response Rule must set the comprehensive oil spill response planning threshold at one railcar.” Thus, commenters in support of a threshold of one tank car or any quantity of crude oil hold that even the transport of small amounts of crude oil entail substantial risk and should

necessitate a comprehensive oil spill response plan, rather than a basic plan.

In the ANPRM, PHMSA encouraged commenters to provide additional thresholds differing from those that PHMSA explicitly proposed. According to AAR and ASLRRA, the scope of the rule should involve a threshold based on “Petroleum Crude Oil Routes” (PCORs). AAR and ASLRRA define PCORs as “. . . a railroad line where there is a minimum of twelve trains a year, which is an average of one train a month, that transport 1,000,000 gallons of petroleum crude oil (UN1267 and/or UN3494) or more that is within 800 feet or closer from the centerline of track to a river or waterway that is used for interstate transportation and commerce for more than 10 miles.” Assuming each tank car has a capacity of 30,000 gallons, the transport of 1,000,000 gallons of crude oil would require around 33 tank cars.

The AAR and the ASLRRA also proposed geographical criteria as part of their PCOR definition, differing from PHMSA's proposed thresholds, which are based on a quantity transported or number of carloads within a train consist. As part of its geographical criteria, the AAR suggests that a PCOR must be within 800 feet of a river or waterway used for interstate transportation and commerce for more than 10 miles. The AAR claims that the 800 feet figure is based on a railroad's experience following a discharge. The AAR does not give further details on how the 800 feet figure was developed. The AAR also claims that the 10 miles figure used in its PCOR definition is based on regulations within 49 CFR part 194, which are applicable to oil pipeline owners and operators and are overseen by PHMSA's Office of Pipeline Safety (OPS). Discussion of this claim can be found in the “Discussion of Public Comments: Plan Scope/Threshold” section.

In addition, the AAR has limited the scope of its proposed threshold to include only those railroad lines that move at least twelve trains a year, an average of one train per month. The AAR did not include any data to support incorporating the parameter of twelve trains per year into the NPRM's thresholds or to show that the use of the PCOR definition as a threshold would improve safety or be cost-effective.

Many other commenters proposed alternative thresholds, such as five carloads or 3,500 gallons per tank car. In support of a five carload threshold, NASTTPO has stated that “it is common for more than one HHFT tank car to be involved [in a derailment].” In support of a 3,500 gallons per tank car threshold, commenters, such as safety consultant John Joeckel, have suggested that the current, 3,500-gallon threshold in 49 CFR part 130 for basic oil spill response plans could become the new threshold that triggers the need to develop a comprehensive plan. These commenters reiterate that the current regulations for comprehensive plans under 49 CFR 130 do not generally apply to railroads given that tank cars used to ship crude oil do not have capacities of 42,000 gallons or greater. They suggest that PHMSA could remove part 130's reference to a basic plan and repurpose the 3,500 gallon per packaging threshold so that it would trigger the need for a comprehensive plan.

In addition, some commenters restated the need to revise the thresholds in 49 CFR part 130 and suggested that they align with probable spill volumes or other planning volumes found in other federal regulations (

e.g.,

“average most probable” or “maximum most probable”). In particular, the Response Group has stated that the threshold should relate to probable spill volumes and historical data but did not specifically propose as a threshold a numerical value.

Similarly, the American Petroleum Institute (API) did not express support for PHMSA's proposed thresholds nor did API specifically propose a new threshold. However, API emphasized that “DOT should choose a threshold that is reasonable and practical . . . Onerous planning requirements with an extremely low threshold could exponentially increase the cost and burden on the railroads, while vague planning requirements triggered by a baseless threshold would be equally challenging.” Thus, API has expressed that the cost to railroads in developing and implementing comprehensive plans could be substantial, and PHMSA should consider and analyze the costs of applying different thresholds.

In addition to API's above comment, PHMSA received additional commenter input on the cost-effectiveness of the proposed thresholds. Environmental groups and others have expressed that cost concerns should be secondary to concerns about the potential benefits of enhancing public safety and reducing damage to the environment. For example, the Center for Biological Diversity has stated that the cost-effectiveness of thresholds “. . . is somewhat immaterial, and cost should not be considered in establishing a threshold for comprehensive OSRPs for oil trains, since this is an issue of public health.” Safety consultant John Joeckel has offered a similar comment, stating, “Are we concerned with the cost to the responsible party to develop and implement the OSRP? Or, should we be concerned of the cost to the public arising from an ineffective response with the consequences of significant environmental damage or risks to public safety?”

Many commenters have suggested that the scope of this rule be expanded to include other materials besides oil. Commenters have asked PHMSA to require comprehensive oil spill response plans for rail cars transporting any type of hazardous materials. The Village of Barrington, IL and the TRAC Coalition, in particular, have stated, “Given the clear authority that PHMSA has to issue regulations under federal law for a broad range of hazardous goods, TRAC strongly believes the rules being promulgated under this ANPRM should be applied to all hazmat transported on trains.” This commenter has cited the Cherry Valley, IL ethanol train derailment to show that, “While the ANPRM is about oil spill response plans, clearly other hazardous material poses similar threats to human and environmental safety.” Other commenters, such as LRT-Done Right, have stated that carriers of ethanol should also be subject to comprehensive OSRP requirements.

Conversely, other commenters have suggested that the scope of the rule be limited in order to more specifically address the risks of petroleum crude oil transport. “Petroleum crude oil” (UN1267) is a specific entry in the Hazardous Materials Table (HMT) under 49 CFR 172.101. “Petroleum sour crude oil, flammable, toxic” (UN3494) is a similar entry. On this basis, AAR has asked that the scope of the rule be limited explicitly to these entries in the HMT. The Dangerous Goods Advisory Council (DGAC) has offered an analogous suggestion, stating, “[DGAC] believe[s] that the OPRP [sic] should be limited to crude oil trains only which are comprised of tank cars originating from one consignee to one consignor.” In other words, by limiting the scope of the rule to “crude oil” or “petroleum crude oil” only, commenters are suggesting that the transport of refined petroleum products, ethanol, or other flammable liquids should not be relevant to the determination of whether a rail carrier must have a comprehensive OSRP.

Discussion of Comments: Plan Scope/Threshold

PHMSA carefully considered the comments submitted to the ANPRM regarding the scope of the rule in order to apply comprehensive OSRP requirements to address the increased

risks posed by the expansion of domestic energy production and subsequent rail transportation. PHMSA recognizes the importance of establishing a threshold that enhances public safety, protects the environment, is reasonable and practical, and facilitates compliance and enforcement. PHMSA acknowledges that an effective threshold will take into account a range of factors, and might include distinctions regarding the quantity of petroleum oil transported, the number of carloads within a train consist, the definition of different materials subject to regulation, geographic or location-based criteria, and cost/benefit or practical considerations.

PHMSA emphasizes that safety and environmental risks are related to the quantity of oil transported by trains, and the configuration of tank cars loaded with petroleum oil. Thus, PHMSA has proposed in this NPRM to expand applicability for petroleum oil based on the number and configuration of tank cars transporting petroleum oil in a train. Specifically, this rulemaking proposes that comprehensive oil spill response plans be required of railroads that transport 20 or more tank cars loaded with liquid petroleum oil in a continuous block in a single train or 35 or more of such tank cars dispersed throughout the train. We propose the comprehensive OSRP requirements continue to apply to tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil. In this NPRM, we discuss our basis for this proposed applicability, as well as how it may differ from commenters' suggestions or proposals.

The scope of this rule is directly related to the definition of oil because the statutory authority to require OSRPs comes from § 1321 of the CWA, as amended by OPA, which applies solely to oil and hazardous substances. The CWA applies to both petroleum and non-petroleum oils. In the 1996 final rule, PHMSA incorporated the definition of “oil” from OPA into the current requirements 49 CFR part 130 and developed definitions for “petroleum oil” and “other non-petroleum oil” in order to differentiate petroleum oils from non-petroleum oils throughout the requirements in part 130.

This rulemaking has been initiated to respond to the changing conditions from the increase in the volume of petroleum oil transported by rail and consequences of resulting incidents. PHMSA is not aware of incidents of unit trains carrying other non-petroleum oils which have demonstrated a need to expand the applicability of comprehensive plans for these oils. Therefore, instead of proposing that the expanded applicability of the comprehensive plan apply to all oils (as defined in 33 U.S.C. 1321), PHMSA proposes to limit the proposed expanded applicability to petroleum oils, whether refined or unrefined, transported in certain train configurations. PHMSA proposes to continue to apply the threshold of tank cars exceeding 42,000 gallons carrying petroleum or other non-petroleum oil.

Further, we propose to revise the definition of “petroleum oil” in this rulemaking as “any oil extracted or derived from geological hydrocarbon deposits, including oils produced by distillation or their refined products.” This definition continues to include mixtures of both refined products, such as gasoline and unrefined products, such as petroleum crude oil. We are not proposing any changes to the scope in § 130.2(c)(1) which clarifies that the requirements of part 130 do not apply to “Any mixture or solution in which oil is in a concentration by weight of less than 10 percent.” Therefore petroleum oil in part 130 includes mixtures containing at least 10% petroleum oil, such as denatured ethanol fuel E85 (ethanol containing 15% gasoline). However, mixtures containing less than 10% petroleum oil, such as diluted waste water or E95 (ethanol with 5% gasoline) are not included. Oils which do not contain petroleum, such as synthetic oils or essential oils continue to be defined as “other non-petroleum oil” in § 130.5.

PHMSA disagrees with AAR that the applicability of the comprehensive plans should be limited to petroleum crude oil, as described by HMT entries UN 1267 and UN3494. Limiting the applicability of comprehensive plans to solely these entries would result in regulating oils that generally present a similar type of risk in an incongruous manner. On this point, PHMSA holds that liquid petroleum oils, such as crude oil, diesel fuel, gasoline, or other petroleum distillates, present similar safety risks in commercial transportation.

There are several factors to consider when determining which hazardous materials should be subject to the new or revised requirements of this proposed rule. In general, PHMSA assesses the risks of hazardous materials in transportation in accordance with the nine different hazard classes under the HMR; however, the regulations we seek to amend in 49 CFR part 130 are not part of the HMR. Namely, part 130 is authorized under 33 U.S.C. 1321—Oil and hazardous substance liability, not the Federal hazardous materials transportation law of 49 U.S.C. 5101-5128.

Moreover, the proposed applicability in this NPRM generally aligns with the definition of a “High-Hazard Flammable Train” (HHFT) as published in the final rule, “Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains” (“HM-251”). The proposed applicability differs, however, in the types of materials affected. By way of HM-251, the definition of an HHFT involved the transport of all Class 3 flammable liquids; whereas the comprehensive OSRP requirements in this rulemaking involve the transport of petroleum oil for consistency with part 130's statutory authority. Therefore, the proposed expanded applicability applies to those HHFTs which carry petroleum oil. This creates an integrated approach between the planning requirements in this rulemaking and the other operational controls in the HMR. To better facilitate this integration, residue or diluted mixtures of petroleum oils that no longer meet the definition of a Class 3 flammable or combustible liquid per 49 CFR 173.120 are not included in expanded applicability.

In the ANPRM, PHMSA asked if the 1,000,000 gallons threshold is appropriate for safety and cost-effectiveness. No commenters supported using 1,000,000 gallons as a single metric for applicability. Many commenters have suggested that the 1,000,000 gallons threshold is not effective because oil spills involving trains with quantities below this threshold could cause substantial harm to the environment. While commenters provided many examples of thresholds below 1,000,000 gallons, commenters provided insufficient data about the likelihood of a release from these tank car volumes to demonstrate such thresholds are “reasonably expected” to cause substantial harm. Thus, in order to better understand this differential of risk and the most likely number of punctures resulting in a derailment, PHMSA looks to the modeling conducted by FRA in support of HM-251.

In particular, HM-251 offered a scientific justification for the HHFT definition and using this threshold of tank cars as an identifier of higher-risk train configurations. Based on modeling and analysis performed by FRA, 20 tank cars in a continuous block loaded with a flammable liquid and 35 tank cars loaded with a flammable liquid dispersed throughout a train display consistent characteristics as to the number of tank cars likely to be

breached in a derailment. The operating railroads commented on HM-251 and indicated that this threshold would exclude “manifest” trains and focus on higher risk, “unit” trains. FRA completed an analysis of a hypothetical train set consisting of 100 cars. The analysis assumes 20 cars derailed. The highest probable number of cars losing containment in a derailment involving a train with a 20-car block (loaded with flammable liquid) located immediately after the locomotive and buffer cars would be 2.78 cars. In addition, the most probable number of cars losing containment in a derailment involving a manifest train consisting of 35 cars containing flammable liquids dispersed throughout the train would be 2.59 cars. Therefore, 20 tank cars in a block and 35 tank cars dispersed throughout a train display consistent characteristics (

i.e.,

2.78 cars breached vs. 2.59 cars breached). If the number of flammable liquid cars in a manifest train were increased to 40 or 45, the most likely number of cars losing containment would be 3.12 and 3.46 cars, respectively. This analysis served as one basis for the selection of the revised HHFT definition for HM-251, and it also helps to shape our discussion of applicability in this proposed rule for oil spill response plans (HM-251B).

80 FR 26665; 5/8/2015.

As a result of this modeling, PHMSA holds that a derailment involving a train moving less than 20 tank cars in a continuous block, or less than 35 tank cars throughout the train, would result in relatively fewer punctures than derailments involving more than this number of tank cars. Specifically, as a result of this modeling, PHMSA suggests that the most likely number of tank car punctures for a train with less than 20 tank cars in a block would be less than 2.78, and in a derailment scenario with less than this number of punctures, the derailment is significantly less likely to cause substantial harm to the environment. In more general terms, PHMSA would suggest, as a result of these modeling outcomes from FRA, that a derailment involving two or fewer tank car punctures is less likely, and therefore not “reasonably expected” to cause substantial harm to the environment. Therefore, we believe the applicability proposed in this NPRM appropriately indicates the trains that can reasonably be expected to cause substantial harm to the environment. Consequently, by way of this rulemaking, PHMSA proposes to require these higher-risk train configurations to operate in conformance with comprehensive oil spill response plans.

In addition to the data on the most likely number of tank car punctures in a derailment, PHMSA further maintains that lower-risk train configurations should not be the focus of this rulemaking because extending the requirements of this rule to operators of lower-risk configurations could be burdensome, costly, and inefficient. There are many costs involved in developing and implementing a comprehensive oil spill response plan, such as retainer fees, training and drill costs, and plan development and submission costs. For more information regarding regulatory flexibility, please see Section VIII, Subsection E (“Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures”). For more information regarding the costs of this rule on the regulated community, please see the draft RIA and the associated discussion in Section VIII, Subsection A (“Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures”).

Commenters have also suggested that 1,000,000 gallons, which is used as a threshold in the development of non-transportation-related facility response plans, is not an adequate threshold because the context of rail transport differs substantially from the context of fixed facilities. PHMSA agrees. PHMSA believes that a threshold based on a number of carloads is more effective and practical, and the proposed applicability in this rulemaking is specific to the context of rail transportation. Moreover, as previously discussed, the proposed applicability identifies higher-risk train configurations which could reasonably be expected to cause substantial harm to the environment in the event of a derailment.

A few commenters voiced support for the second threshold of the HM-251B ANPRM, which aligned with the HHFT definition proposed in the HM-251 NPRM and published on August 1, 2014 (

i.e.,

20 tank cars in a train). Given the proposed applicability in this rulemaking, PHMSA generally agrees with these commenters; however, the nature of the HHFT definition has changed since HM-251B's ANPRM publication. On May 8, 2015, PHMSA published the final HM-251 and revised the HHFT definition to comprise 20 tank cars loaded with a Class 3 flammable liquid in a continuous block or 35 or more tank cars loaded with a Class 3 flammable liquid dispersed throughout the train. Thus, by way of HM-251, the HHFT definition came to reference the configuration of tank cars in the train as well as an additional threshold for the number of tank cars in a train. Furthermore, PHMSA has adapted the HHFT definition of HM-251 to form the basis for the applicability for comprehensive oil spill response plans, but notably restricts this applicability to liquid petroleum oils, rather than all Class 3 flammable liquids. For these reasons, PHMSA has not proposed to codify the HHFT definition under part 130.

Moreover, this applicability is important because it is likely that trains with less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such cars dispersed throughout the train, are the result of configuring “manifest” trains. Manifest trains involve combining multiple shipments of potentially various materials from various shippers to form a single train consist. These trains differ substantially from “unit” trains, which generally involve a single commodity offered by a single shipper (the consignor) and delivered to a single entity (the consignee). As discussed in the final rule document for HM-251, the rail industry has noted that manifest trains carrying limited loads of oil along with other commodities pose less of a risk than unit trains with significantly larger loads of oil. Further, the rail industry commented on the NPRM of HM-251, relaying that in many situations it would be difficult to pre-determine when an HHFT would be used and that shippers of smaller volumes of oil would not know if their shipment would ultimately be configured into an HHFT.

PHMSA carries these concerns and related analyses from HM-251 into this proposed rule, as we believe it is still pertinent to the discussion of comprehensive oil spill response plans. In this rulemaking, PHMSA intends to identify higher-risk train configurations that pose a threat of substantial harm to the environment. Conversely, PHMSA does not intend to affect lower-risk train configurations moving smaller quantities of petroleum oil, which are more likely to be the result of configuring a manifest train. Lower-risk train configurations are significantly less likely to cause substantial harm to the environment and extending the full breadth of the proposed requirements for a comprehensive plan to entities transporting lower-risk train configurations would likely be too burdensome and costly, for the limited safety benefits provided. Furthermore, the proposed quantity provides an integrated approach to the comprehensive OSRP requirements and the requirements of HHFTs.

In opposition to an HHFT-like applicability, many commenters have argued that oil spills involving carloads below this threshold could cause considerable harm to the environment. On this point, PHMSA acknowledges that oil spills of a lesser amount can cause harm, but holds that trains carrying less than 20 tank cars of petroleum oil in a continuous block, or less than 35 of such tank cars dispersed throughout the train, are effectively lower-risk train configurations, and they cann

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