Hazardous Materials: Enhancing Rail Transportation Safety and Security for Hazardous Materials Shipments, 20752-20773 [E8-8185]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 73, Number 74 (Wednesday, April 16, 2008)]
[Rules and Regulations]
[Pages 20752-20773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8185]



[[Page 20751]]

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Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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Federal Railroad Administration



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49 CFR Parts 172, 174, and 209



Hazardous Materials: Enhancing Rail Transportation Safety and Security 
for Hazardous Materials Shipments; Railroad Safety Enforcement 
Procedures; Interim Final Rule and Proposed Rule

Federal Register / Vol. 73, No. 74 / Wednesday, April 16, 2008 / 
Rules and Regulations

[[Page 20752]]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 172 and 174

[Docket No. PHMSA-RSPA-2004-18730] \1\
RIN 2137-AE02


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

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Interim final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in 
coordination with the Federal Railroad Administration and the 
Transportation Security Administration, is revising the current 
requirements in the Hazardous Materials Regulations applicable to the 
safe and secure transportation of hazardous materials transported in 
commerce by rail. This interim final rule fulfills requirements in 
Section 1551 of the Implementing Recommendations of the 9/11 Commission 
Act of 2007.
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    \1\ This rulemaking was formerly designated as HM-232E; however, 
with the transition to a new government-wide regulations portal, 
docket number nomenclature has since changed. Some references to the 
old docket number are still present in this document.
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    In this interim final rule, we are requiring rail carriers to 
compile annual data on certain shipments of explosive, toxic by 
inhalation, and radioactive materials, use the data to analyze safety 
and security risks along rail routes where those materials are 
transported, assess alternative routing options, and make routing 
decisions based on those assessments. We are also clarifying rail 
carriers' responsibility to address in their security plans issues 
related to en route storage and delays in transit. In addition, we are 
adopting a new requirement for rail carriers to inspect placarded 
hazardous materials rail cars for signs of tampering or suspicious 
items, including improvised explosive devices.

DATES: This interim final rule is effective June 1, 2008.
    Voluntary Compliance Date: Voluntary compliance is authorized as of 
May 16, 2008.
    Comments: Comments must be received by May 16, 2008.

ADDRESSES: You may submit comments identified by the docket number 
PHMSA-RSPA-2004-18730 by any of the following methods:
     Federal eRulemaking Portal: Go to https://
www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations; Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number for this rule. Note that all comments received will be 
posted without change, including any personal information provided. 
Please see the Privacy Act section of the preamble.

FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, 
Office of Safety Assurance and Compliance, Federal Railroad 
Administration; or Susan Gorsky or Ben Supko, (202) 366-8553, Office of 
Hazardous Materials Standards, Pipeline and Hazardous Materials Safety 
Administration.

SUPPLEMENTARY INFORMATION: 

I. Background

    Hazardous materials are essential to the economy of the United 
States and the well being of its people. Hazardous materials fuel motor 
vehicles, purify drinking water, and heat and cool homes and offices. 
They are used for farming and medical applications, and in 
manufacturing, mining, and other industrial processes. Railroads 
annually carry over 1.7 million shipments of hazardous materials 
including explosive, poisonous, corrosive, flammable and radioactive 
materials. As common carriers, railroads are obligated to accept 
hazardous cargo that is tendered in compliance with legal requirements, 
whether or not they would choose to do so for business reasons. This 
common carrier obligation ensures that offerors are given the 
opportunity to ship hazardous materials, including the most dangerous 
hazardous materials, in the safest, most secure manner possible.
    The need for hazardous materials to support essential services 
means transportation of hazardous materials is unavoidable. However, 
these shipments frequently move through densely-populated or 
environmentally-sensitive areas where the consequences of an incident 
could be loss of life, serious injury, property damage, and/or 
significant environmental damage.
    The same characteristics of hazardous materials that cause concern 
in the event of an accidental release also make them attractive targets 
for terrorism or sabotage. Hazardous materials in transportation are 
frequently transported in substantial quantities and are potentially 
vulnerable to sabotage or misuse. Such materials are already mobile and 
are frequently transported in proximity to large population centers. 
Further, security of hazardous materials in the transportation 
environment poses unique challenges as compared to security at fixed 
facilities. Finally, hazardous materials in transportation often bear 
clear identifiers to ensure their safe and appropriate handling during 
transportation and to facilitate identification and effective emergency 
response in the event of an accident or release; these identifiers may 
also identify hazardous materials shipments as targets of opportunity 
for terrorists or other criminals.
    A primary safety and security concern related to the rail 
transportation of hazardous materials is the prevention of catastrophic 
release or explosion in proximity to densely populated areas, including 
urban areas and events or venues with large numbers of people in 
attendance. Also of major concern is the release or explosion of rail 
cars in close proximity to iconic buildings, landmarks, or 
environmentally significant areas. Such a catastrophic event could be 
the result of an accident--such as the January 6, 2005 derailment and 
release of chlorine in Graniteville, South Carolina, which resulted in 
9 fatalities and 554 injuries--or a deliberate act of terrorism. The 
causes of intentional and unintentional releases of hazardous material 
are very different; however, in either case, the potential consequences 
of both releases are significant. Indeed, the consequences of an 
intentional release of hazardous material by a criminal or terrorist 
action are likely to be more severe than the consequences of an 
unintentional release because an intentional action is designed to 
inflict the most damage possible.
    DHS is the lead agency for transportation security and has shared 
responsibility with DOT for hazardous materials transportation 
security. DOT consults and coordinates on security-related hazardous 
materials transportation requirements to ensure they are consistent 
with DHS's overall security policy goals. Both departments

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work to ensure that the regulated industry is not confronted with 
inconsistent security guidance or requirements promulgated by the 
government.
    The Federal Hazardous Materials Transportation Law (Federal Hazmat 
Law, 49 U.S.C. 5101 et seq.), authorizes the Secretary of the 
Department of Transportation to ``prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce.'' The Secretary has 
delegated this authority to the Pipeline and Hazardous Materials Safety 
Administration (PHMSA). The Hazardous Materials Regulations (HMR; 49 
CFR parts 171-180), promulgated by PHMSA under the mandate in section 
5103(b), govern safety aspects, including security, of the 
transportation of hazardous material. In accordance with its security 
authority, in March 2003, PHMSA adopted new transportation security 
requirements for offerors and transporters of certain classes and 
quantities of hazardous materials and new security training 
requirements for hazardous materials employees. 68 FR 14509 (March 25, 
2003). These security regulations, which are explained in more detail 
below, require offerors and carriers to develop and implement security 
plans and to train their employees to recognize and respond to possible 
security threats.
    When PHMSA adopted its security regulations, we stated that these 
regulations were ``the first step in what may be a series of 
rulemakings to address the security of hazardous materials shipments.'' 
68 FR 14511. PHMSA also noted that the Transportation Security 
Administration (TSA) ``is developing regulations that are likely to 
impose additional requirements beyond those established in this final 
rule,'' and stated it would ``consult and coordinate with TSA 
concerning security-related hazardous materials transportation 
regulations * * *'' Id.
    Under Section 101(a) of the Aviation and Transportation Security 
Act (ATSA) (codified at 49 U.S.C. 114) and 49 CFR 1502.1, TSA has broad 
responsibility and authority for ``security in all modes of 
transportation * * *'' ATSA authorizes TSA to take immediate action to 
protect transportation security (49 U.S.C. 114(d)(2)), and to:

--Develop policies, strategies and plans for dealing with threats to 
transportation (Sec.  114(f)(3));
--Assess intelligence and other information in order to identify 
individuals who pose a threat to transportation security (Sec.  
114(f)(1));
--Coordinate countermeasures with other Federal agencies to address 
such threats (Sec.  114(f)(4));
--Enforce security-related regulations and requirements (Sec.  
114(f)(7));
--Ensure the adequacy of security measures for the transportation of 
cargo (Sec.  114(f)(10));
--Oversee the implementation and ensure the adequacy of security 
measures at transportation facilities (Sec.  114(f)(11));
--Carry out other appropriate duties relating to transportation 
security (Sec.  114(f)(15)); and
--Serve as the primary liaison for transportation security to the 
intelligence and law enforcement communities (Sec.  114(f)(5)).

    In sum, TSA's authority with respect to transportation security is 
comprehensive and supported with specific powers related to the 
development and enforcement of regulations, security directives, 
security plans, and other requirements. Accordingly, under this 
authority, TSA may identify a security threat to any mode of 
transportation, develop a measure for dealing with that threat, and 
enforce compliance with that measure.
    On August 7, 2006, PHMSA and TSA signed an annex to the September 
28, 2004 DOT-DHS Memorandum of Understanding (MOU) on Roles and 
Responsibilities. The purpose of the annex is to delineate clear lines 
of authority and responsibility and promote communications, efficiency, 
and non-duplication of effort through cooperation and collaboration in 
the area of hazardous materials transportation security based on 
existing legal authorities and core competencies. Similarly, on 
September 28, 2006, the Federal Railroad Administration (FRA) and TSA 
signed an annex to address each agency's roles and responsibilities for 
rail transportation security. The FRA-TSA annex provides that ``DHS 
holds lead authority, primary responsibility and dedicated resources 
for security activities in all modes of transportation including 
rail.'' Concerning safety, the FRA-TSA annex recognizes that FRA has 
authority over every area of railroad safety (including security) and 
that FRA enforces PHMSA's hazardous materials regulations. The FRA-TSA 
annex includes procedures for coordinating: (1) Planning, inspection, 
training, and enforcement activities; (2) criticality and vulnerability 
assessments and security reviews; (3) communicating with affected 
stakeholders; and (4) use of personnel and resources. Copies of the two 
annexes are available for review in the public docket for this 
rulemaking. In accordance with the principles outlined in the PHMSA-TSA 
and FRA-TSA annexes, PHMSA and FRA collaborated with TSA to develop 
this interim final rule.

II. Current Hazardous Materials Transportation Safety and Security 
Requirements

 A. The Hazardous Materials Regulations

    In accordance with Sec.  172.704(a) of the HMR, all hazardous 
materials employees (hazmat employees) are required to fulfill the 
security awareness training, and employees responsible for developing 
and implementing security plans must also complete in-depth security 
training. Subpart I of Part 172 of the HMR requires persons who offer 
certain hazardous materials for transportation or transport certain 
hazardous materials in commerce to develop and implement security 
plans. A person is required to develop and implement a security plan if 
he or she transports any of the following materials in commerce:
    (1) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined at 49 CFR 173.403, in a motor vehicle, rail car, 
or freight container;
    (2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material in a motor vehicle, rail car, or freight 
container;
    (3) More than one L (1.06 qt) per package of a material poisonous 
by inhalation, as defined at 49 CFR 171.8, that meets the criteria for 
Hazard Zone A, as specified in 49 CFR 173.116(a) or 173.133(a);
    (4) A shipment of a quantity of hazardous materials in a bulk 
packaging having a capacity equal to, or greater than, 13,248 L (3,500 
gallons) for liquids or gases or more than 13.24 cubic meters (468 
cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
pounds) gross weight, or more, of one class of hazardous materials for 
which placarding of a vehicle, rail car, or freight container is 
required for that class under the provisions of subpart F of 49 CFR 
part 172;
    (6) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention under 42 CFR part 73; or
    (7) A quantity of hazardous material that requires placarding under 
the provisions of subpart F of 49 CFR part 172.
    Subpart I of part 172 sets forth general requirements for a 
security plan's components rather than a prescriptive

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list of specific items that must be included. The security plan must 
include an assessment of possible transportation security risks and 
appropriate measures to address the assessed risks. Specific measures 
implemented as part of the plan may vary according to the nature and 
level of threat at a particular time. At a minimum, the security plan 
must address personnel security, unauthorized access, and en route 
security. To address personnel security, the plan must include measures 
to confirm background information provided by job applicants for 
positions involving access to and handling of the hazardous materials 
covered by the plan. To address unauthorized access, the plan must 
include measures designed to limit or mitigate the risk of unauthorized 
persons gaining access to materials or transport conveyances being 
prepared for transportation. To address en route security, the plan 
must include measures to mitigate security risks during transportation, 
including the security of shipments stored temporarily en route to 
their destinations.
    Under these standards, security plans can and should differ from 
one offeror or carrier to another. In each case, the plan should be 
based on the offeror's or carrier's individualized assessment of the 
security risks associated with the specific hazardous materials it 
ships or transports and its unique circumstances and operational 
environment.
    The HMR also contain limited provisions intended to minimize delays 
in transportation. Pursuant to Sec.  174.14 of the HMR, rail carriers 
are required to expedite the movement of hazardous materials shipments. 
Each shipment of hazardous materials must be forwarded ``promptly and 
within 48 hours (Saturdays, Sundays, and holidays excluded)'' after 
acceptance of the shipment by the rail carrier. If only biweekly or 
weekly service is performed, the carrier must forward a shipment of 
hazardous materials in the first available train. Additionally, 
carriers are prohibited from holding, subject to forwarding orders, 
tank cars loaded with Division 2.1 (flammable gas), Division 2.3 
(poisonous gas) or Class 3 (flammable liquid) materials. The purpose of 
Sec.  174.14 is to help ensure the prompt delivery of hazardous 
materials shipments and to minimize the time such materials spend in 
transportation, thus minimizing the exposure of hazmat shipments to 
accidents, derailments, unintended releases, or tampering.

B. AAR Circular OT-55-I

    The rail industry, through the Association of American Railroads 
(AAR), has developed a detailed protocol on recommended railroad 
operating practices for the transportation of hazardous materials. 
These recommended practices were originally implemented by all of the 
Class 1 rail carriers operating in the United States; short-line 
railroads are also signatories to the most recent version of this 
document, known as Circular OT-55-I, issued by AAR on July 17, 2006. 
The Circular details railroad operating practices for: (1) Designating 
trains containing (i) five tank car loads or more of poison inhalation 
hazard (PIH) materials, (ii) 20 or more car loads or intermodal 
portable tank loads of a combination of PIH, flammable gas, Class 1.1 
or 1.2 explosives, and environmentally-sensitive chemicals, or (iii) 
one or more car loads of spent nuclear fuel or high level radioactive 
waste as ``key trains;'' (2) designating operating speed and equipment 
restrictions for key trains; (3) designating ``key routes'' for key 
trains, and setting standards for track inspection and wayside defect 
detectors; (4) yard operating practices for handling placarded tank 
cars; (5) storage, loading, unloading and handling of tank cars; (6) 
assisting communities with emergency response training and information; 
(7) shipper notification procedures; and (8) the handling of time-
sensitive materials.

    Circular OT-55-I defines a ``key route'' as:

    Any track with a combination of 10,000 car loads or intermodal 
portable tank loads of hazardous materials, or a combination of 
4,000 car loadings of PIH (Hazard zone A, B, C, or D), anhydrous 
ammonia, flammable gas, Class 1.1 or 1.2 explosives, 
environmentally-sensitive chemicals, Spent Nuclear Fuel (SNF), and 
High Level Radioactive Waste (HLRW) over a period of one year.

    Any route defined by a railroad as a key route should meet certain 
standards described in OT-55-I. Wayside defective wheel bearing 
detectors should be placed at a maximum of 40 miles apart, or an 
equivalent level of protection may be installed based on improvements 
in technology. Main track on key routes should be inspected by rail 
defect detection and track geometry inspection cars or by any 
equivalent level of inspection at least twice each year. Sidings on key 
routes should be inspected at least once a year, and main track and 
sidings should have periodic track inspections to identify cracks or 
breaks in joint bars. Further, any track used for meeting and passing 
key trains should be FRA Class 2 track or higher. If a meet or pass 
must occur on less than Class 2 track due to an emergency, one of the 
trains should be stopped before the other train passes. This interim 
final rule in part reflects the recommended practices mentioned above, 
which are already in wide use across the rail industry.

III. Notices of Proposed Rulemaking

    On December 21, 2006, PHMSA, in coordination with FRA and TSA, 
published a notice of proposed rulemaking (NPRM) under Docket HM-232E 
(71 FR 76834) proposing to revise the current requirements in the HMR 
applicable to the safe and secure transportation of hazardous materials 
by rail. Specifically, we proposed to require rail carriers to compile 
annual data on specified shipments of hazardous materials, use the data 
to analyze safety and security risks along rail routes where those 
materials are transported, assess alternative routing options, and make 
routing decisions based on those assessments. We also proposed 
clarifications of the current security plan requirements to address en 
route storage, delays in transit, delivery notification, and additional 
security inspection requirements for hazardous materials shipments.
    Also on December 21, 2006, TSA published an NPRM proposing security 
regulations that would cover a broader spectrum of rail transportation, 
including passenger service. (71 FR 76852; see also TSA's Initial 
Regulatory Flexibility Analysis, 72 FR 7376 [Feb. 15, 2007].) The TSA 
proposal is intended to reduce security risks associated with certain 
hazardous materials shipments in designated High Threat Urban Areas 
(HTUAs) and to raise the overall security baseline for freight railroad 
shipments. (TSA has identified 46 geographic areas as HTUAs warranting 
special consideration based on population and risk assessment data. See 
71 FR at 76861.) The TSA proposal applies to freight railroad carriers; 
intercity, commuter, and short-haul passenger trains; rail mass transit 
systems; and rail operations at certain fixed facilities that ship or 
receive PIH, explosive, or radioactive materials.
    The hazardous materials provisions of the TSA proposal complement 
and build on the proposals in the PHMSA NPRM. Specifically, TSA 
proposed to require railroads to designate rail security coordinators 
to serve as primary contacts for receipt of intelligence information 
and to require reporting of significant security concerns, potential 
threats, and incidents. In addition, upon request

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from TSA, rail carriers and certain facility operators would be 
required to report car locations and shipping information for shipments 
of PIH, explosive, and radioactive materials within one hour of the 
request. TSA also proposed enhanced chain-of-custody requirements for 
rail shipments of PIH, explosive, and radioactive materials in HTUAs to 
ensure that no car is left unattended as it is transferred from shipper 
to carrier, between carriers, or from carrier to consignee.
    To obtain additional public input on our NPRM, PHMSA hosted 
meetings on February 1, 2007, in Washington, DC, and February 9, 2007, 
in Dallas, Texas. TSA also held a public meeting on its NPRM on 
February 2, 2007, in Arlington, Virginia. Thirty-five persons attended 
the Washington, DC public meeting, and 15 persons attended the Dallas 
meeting. Records of the public meetings, including attendance lists, 
transcripts, and a list of questions commenters were asked to address, 
are available for review in the public docket for this rulemaking.

IV. Implementing Recommendations of the 9/11 Commission Act of 2007

    Several weeks after the close of the comment period in this 
proceeding, Congress enacted the Implementing Recommendations of the 9/
11 Commission Act of 2007 (Pub. L. 110-53; 121 Stat. 266), which the 
President signed into law on August 3, 2007. Among other requirements, 
the Act directs the Secretary of Transportation, in consultation with 
the Secretary of Homeland Security, to publish a final rule based on 
PHMSA's December 21, 2006 NPRM by May 3, 2008. In accordance with 
Section 1551(e) of the Act, PHMSA's final rule must require rail 
carriers of ``security-sensitive materials'' to ``select the safest and 
most secure route to be used in transporting'' those materials, based 
on the rail carrier's analysis of the safety and security risks on 
primary and alternate transportation routes over which the carrier has 
authority to operate. Specifically, the HM-232E final rule must require 
such rail carriers to perform the following tasks each calendar year:
    (1) Collect and compile security-sensitive commodity data, by 
route, line segment, or series of line segments, as aggregated by the 
rail carrier and identify the geographic location of the route and the 
total number of shipments by UN identification number;
    (2) Identify practicable alternative routes over which the carrier 
has authority to operate as compared to the current route for such 
shipments;
    (3) Seek relevant information from state, local, and tribal 
officials, as appropriate, regarding security risks to high-consequence 
targets along or in proximity to a route used by a rail carrier to 
transport security-sensitive materials;
    (4) Consider the use of interchange agreements with other rail 
carriers when determining practicable alternative routes and the 
potential economic effects of using an alternative route;
    (5) Analyze for both the primary route and each practicable 
alternative route the safety and security risks for the route, railroad 
facilities, railroad storage facilities, and high-consequence targets 
along or in proximity to the route; these analyses must be in writing 
and performed for each calendar year;
    (6) Compare the safety and security risks on the primary and 
alternative routes, including the risk of a catastrophic release from a 
shipment traveling along these routes, and identify any remediation or 
mitigation measures implemented on the primary and alternative 
transportation routes; and
    (7) Using the analysis described above, select the practicable 
route posing the least overall safety and security risk.
    The rule must also require that a covered rail carrier, at least 
once every three years, analyze its route selection determinations, 
including a comprehensive, system-wide review of all operational 
changes, infrastructure modifications, traffic adjustments, changes in 
the nature of high-consequence targets located along or in proximity to 
the route, or other changes affecting the safety and security of the 
movements of security-sensitive materials that were implemented since 
the previous analysis was completed. Finally, the rule is to require 
that covered rail carriers retain in writing all route review and 
selection decision documentation and restrict the distribution, 
disclosure, and availability of this information to appropriate 
persons.
    The 9/11 Commission Act defines ``security-sensitive material'' to 
mean the material or classes of materials that the Secretary of 
Homeland Security, in consultation with the Secretary of 
Transportation, determines through a rulemaking proceeding with 
opportunity for public comment pose a significant risk to national 
security while being transported in commerce.
    As we explain further in later sections of this rule, PHMSA 
believes the interim final rule we are publishing today fulfills the 
requirements in Sec.  1551 of the 9/11 Commission Act, in addition to 
addressing the comments received in response to the NPRM. We believe 
that the changes and additions to the NPRM made in this IFR are well 
within the scope of the NPRM. We are publishing an interim final rule 
rather than a final rule to provide interested persons with an 
opportunity to provide specific comments on whether the IFR fully 
implements the requirements of the Act.

V. Comments on the NPRM

    We received more than 50 sets of comments from individuals; members 
of Congress; Federal, state, and local governmental entities; 
companies; industry associations; public interest groups; labor 
organizations; and a homeowners' association. Generally, large rail 
carriers and their associations express support for the proposals in 
the NPRM and, in particular, the flexibility for rail carriers to 
designate routes based on an analysis of safety and security 
vulnerabilities and measures implemented to address those 
vulnerabilities. Small carriers and single line haulers express some 
concern about the applicability of the routing provisions to their 
operations--in many cases, smaller rail carriers operate on a single 
line and routing options are limited.
    Commenters representing state and local governments and 
environmental groups generally oppose the proposals in the NPRM. Some 
of these commenters suggest that the Federal government should mandate 
specific routing for high-hazard materials rather than provide rail 
carriers the discretion to make routing decisions. Others, particularly 
state and local government commenters, want to be able to implement 
routing restrictions within their jurisdictions and, thus, urge us to 
modify or eliminate the preemptive effect of a final rule on non-
Federal jurisdictions.
    Nearly all the commenters suggest that we maintain consistency with 
TSA's proposed rail requirements in regard to package size, covered 
hazardous materials, and enforcement of the proposed requirements.
    The comments and public meeting transcripts in the docket for this 
rulemaking may be reviewed at https://www.regulations.gov under docket 
number PHMSA-RSPA-2004-18730. For your convenience, a listing of the 
docket entries is provided below.

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                              Name/company
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Melanie Weintraub and Family.
Kevin D. Kime.
Institute of Makers of Explosives (IME).
Tom Nitza.

[[Page 20756]]

 
Anonymous.
U.S. Department of Energy, Naval Nuclear Propulsion Program (NNPP).
Congressman Dennis J. Kucinich.
Transcript--Washington, DC Public Meeting.
BASF Corporation.
District of Columbia.
Institute of Makers of Explosives (IME).
American Chemistry Council (ACC).
The Chlorine Institute, Inc.
The Fertilizer Institute, Inc. (TFI).
Metropolitan Transportation Authority.
The Dow Chemical Company (Dow).
Chairman and 3 members of the Committee on Homeland Security, U.S. House
 of Representatives.
The National Industrial Transportation League (NITL).
American Short Line and Regional Railroad Association.
Greenpeace.
Back Creek-II Homeowners Association, Inc.
Argonne National Laboratory Report.
Surface Transportation Board (STB).
Friends of the Earth.
Friends of the Earth.
Friends of the Earth.
Mayo Clinic.
Association of American Railroads (AAR).
City of Cleveland, Ohio.
BNSF Railway Company.
Transportation Trades Department, AFL-CIO.
Independent Lubricant Manufacturers Association.
City of Baltimore, Maryland.
Norfolk Southern Corporation.
Eureka County, Nevada, Office of Public Works.
National Association of Chemical Distributors.
Brotherhood of Locomotive Engineers and Trainmen.
DuPont.
Friends of the Earth.
State of New Jersey, Office of Homeland Security & Preparedness.
Transcript--Dallas Public Meeting.
Union Pacific Railroad Company.
The Dow Chemical Company, Olin Corporation, Norfolk Southern
 Corporation, Union Pacific Railroad Company, and Occidental Chemical
 Corporation.
Akzo Nobel Chemicals, Inc.
City of St. Louis, MO.
Nuclear Energy Institute.
National Association of SARA Title III Program Officials.
Colorado Emergency Planning Commission.
Jefferson County Local Emergency Planning Committee.
City of Las Vegas, Nevada.
Springfield Terminal Railway Company.
American Petroleum Institute.
CSX Transportation, Inc.
State of Connecticut, Attorney General.
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VI. Summary of the Interim Final Rule

    Based on comments received in response to the NPRM and the 
provisions of the 9/11 Commission Act, in this interim final rule, we 
are adopting the following revisions to the HMR:
     Rail carriers transporting certain explosives, PIH 
material, and radioactive materials must compile information and data 
on the commodities transported, including the routes over which these 
commodities are transported.
     Rail carriers transporting the specified hazardous 
materials must use the data they compile and relevant information from 
state, local, and tribal officials, as appropriate, regarding security 
risks to high-consequence targets along or in proximity to a route to 
analyze the safety and security risks for each route used and 
practicable alternative routes to the route used.
     Using these analyses, rail carriers must select the safest 
and most secure practicable route for the specified hazardous 
materials.
     In developing their security plans, rail carriers must 
specifically address the security risks associated with shipments 
delayed in transit or temporarily stored in transit.
     Rail carriers transporting the covered hazardous materials 
must notify consignees of any significant unplanned delays affecting 
the delivery of the hazardous material.
     Rail carriers must work with shippers and consignees to 
minimize the time a rail car containing one of the specified hazardous 
materials is placed on track awaiting pick-up, delivery, or transfer.
     Rail carriers must conduct security visual inspections at 
ground level of rail cars containing hazardous materials to check for 
signs of tampering or the introduction of an improvised explosive 
device (IED).
    This interim final rule is effective June 1, 2008. Beginning 
January 1, 2009, rail carriers must compile information on the 
commodities they transport and the routes they use for the 6-month 
period from July 1, 2008 to December 31, 2008. Rail carriers must 
complete their data collection by March 1, 2009. By September 1, 2009, 
rail carriers must complete the safety and security analyses of routes 
currently utilized and available alternatives and select the safest, 
most secure routes for transporting the specified explosive, PIH, and 
radioactive materials. Beginning January 1, 2010, and for subsequent 
years, rail carriers must compile information on the commodities they 
transport and the routes used for the previous calendar year and 
complete route assessments and selections by the end of the calendar 
year.
    In adopting these requirements, we reject the more prescriptive 
approaches urged by some commenters. We continue to believe that rail 
carriers are in the best position to identify and assess risks across 
their systems and that en route safety and security measures will be 
most effective in reducing system risks when tailored to the carrier's 
specific circumstances and operations. This approach for determining 
the safest and most secure rail routes is consistent with the 
requirements in Sec.  1551 of the 9/11 Commission Act. Rail carriers 
use alternative routing in the normal course of business to accommodate 
a variety of circumstances, such as derailments, accidents, damaged 
track, natural events, traffic bottlenecks, and heightened security 
necessitated by major events. In performing the route analysis required 
by the interim final rule, we expect a rail carrier to make an informed 
decision, balancing all relevant factors and the best information 
available.
    Although individualized risk assessment necessarily is more 
challenging to perform and oversee, we believe this approach offers the 
greatest overall benefit. We expect the end result of the analyses to 
be a clear picture of the practicable alternative route(s) available to 
rail carriers for the transportation of the specified hazardous 
materials. As we transition to the new requirements, PHMSA and FRA are 
committed to working with the railroads to provide the tools and 
training necessary to conduct the required analyses and make 
appropriate route selections.
    By the same token, we intend to aggressively oversee railroads' 
route analyses and route selection determinations and will use all 
available tools to enforce compliance with the rule. As the agency with 
primary responsibility for railroad safety enforcement, FRA will 
incorporate review and inspection of route analyses and selections into 
its inspection programs. FRA inspectors may offer suggestions for 
modifying or improving the analysis or make changes to a route if the 
route selection documentation or underlying analysis is found to be 
deficient. If an inspector's recommendations are not implemented, FRA 
may compel a rail carrier to make changes and/or assess a civil 
penalty. Further, if the carrier's chosen route is found not to be the 
safest and most secure practicable route available, FRA may require the 
use of an alternative route.
    As we implement the interim final rule, PHMSA and FRA are committed 
to working with railroads, and with communities and first responders, 
to strengthen their capabilities and reduce

[[Page 20757]]

the risks associated with hazardous materials transportation. As 
discussed below, we are developing a route assessment tool that rail 
carriers may use in weighing and considering the route analysis 
criteria.
    PHMSA also is stepping up its efforts to build emergency response 
capabilities through national programs and community-based planning and 
training. We are sponsoring several initiatives intended to enhance 
community preparedness, including a project with the International 
Association of Fire Chiefs to provide real-time access to emergency 
response information and to share lessons learned from past incidents 
and exercises. With Congress' approval, we are expanding the Hazardous 
Materials Emergency Preparedness (HMEP) program, which provides funds 
for developing, improving, and implementing emergency response plans 
and for training public sector employees to respond to accidents and 
incidents involving hazardous materials. We believe these planning and 
training efforts are most effective when they are tailored to the 
particular risks facing a community.
    We agree that local and regional governments require information on 
the types, quantities, and locations of hazardous materials transported 
through their jurisdictions to plan for effective and appropriate 
emergency response to incidents. We developed a detailed handbook 
(Guidance for Conducting Hazardous Materials Flow Surveys, January 
1995) for local governments to use in conducting commodity flow studies 
of hazardous materials transported by highway, and we are encouraging 
states to use HMEP grant funds to study flow patterns of hazardous 
materials within and between states and to determine the need within a 
state for regional hazardous materials emergency response teams. We are 
updating our 1995 handbook through a cooperative research project aimed 
at producing a comprehensive, user-friendly resource that will help 
local planners develop commodity-flow data for all modes of 
transportation and to use the data to inform decision-making concerning 
risk assessment, emergency response preparedness, and resource 
allocation and to support analyses across jurisdictional boundaries. In 
addition, we are developing a guide for assessing emergency response 
needs and capabilities for hazardous materials releases to provide a 
tool for state and local governments to use to identify and address 
unmet emergency response planning and resource needs.
    The specific provisions of the interim final rule, including a 
discussion of comments received on the NPRM and the provisions of the 
9/11 Commission Act, are detailed in the following sections of this 
rule.

VII. Discussion of Comments and Section-by-Section Review

A. General (Sec.  172.820(a))

    In the NPRM, we proposed to require rail carriers to implement 
enhanced safety and security measures for shipments of the following 
classes and quantities of hazardous materials:
    (1) More than 2,268 kg (5,000 lbs) in a single carload of a 
Division 1.1, 1.2 or 1.3 explosive;
    (2) A bulk quantity of a material poisonous by inhalation, as 
defined in Sec.  171.8 of the HMR; or
    (3) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec.  173.403 of the HMR.
    The 9/11 Commission Act directs the Secretary of Transportation to 
ensure that this final rule requires railroad carriers to compile 
commodity data on the security-sensitive materials they transport. 
Section 1501 of the Act defines ``security-sensitive material'' to mean 
a material or group or class of materials, in a particular quantity and 
form that the Secretary of Homeland Security, in consultation with the 
Secretary of Transportation, determines through rulemaking with 
opportunity for public comment, poses a significant risk to national 
security while being transported in commerce. In making such a 
determination, the Secretary of Homeland Security is directed to 
consider: (1) Class 7 radioactive materials; (2) Division 1.1, 1.2, and 
1.3 explosives; (3) materials poisonous or toxic by inhalation, 
including Division 2.3 gases and Division 6.1 materials; and (4) a 
select agent or toxin regulated by the Centers for Disease Control and 
Prevention (CDC) under 42 CFR part 73.
    PHMSA, FRA, and TSA assessed the safety and security 
vulnerabilities associated with the transportation of different types 
and classes of hazardous materials. The list of materials to which the 
proposed enhanced safety and security requirements would apply is based 
on specific railroad transportation scenarios. These scenarios depict 
how hazardous materials could be deliberately used to cause significant 
casualties and property damage or accident scenarios resulting in 
similar catastrophic consequences. DOT and DHS determined that the 
materials specified in the NPRM present the greatest rail 
transportation safety and security risks--because of the potential 
consequences of an unintentional release of these materials--and the 
most attractive targets for terrorists--because of the potential for 
these materials to be used as weapons of opportunity or weapons of mass 
destruction.
    Following is a basic summary of the materials and critical 
vulnerabilities warranting enhanced safety and security measures:
     Division 1.1, 1.2, and 1.3 explosive materials. A Division 
1.1 explosive is one presenting a mass explosive hazard. A mass 
explosion is one affecting almost the entire load simultaneously. A 
Division 1.2 explosive has a projection hazard, which means if the 
material were to explode, it would project fragments outward at some 
distance. A Division 1.3 explosive presents a fire hazard and either a 
minor blast hazard or a minor projection hazard or both. If compromised 
in transit by detonation or as a secondary explosion to an IED, these 
explosives could result in substantial damage to people, public and 
private property, and rail infrastructure. Roughly 2,500 carloads of 
these explosives are transported by rail each year.
     PIH materials. PIH materials are gases or liquids that are 
known, or presumed on the basis of tests, to be toxic to humans and to 
pose a hazard to health in the event of a release during 
transportation. PIH materials pose special risks during transportation 
because their uncontrolled release can endanger significant numbers of 
people. The January 6, 2005 train derailment in Graniteville, South 
Carolina with subsequent release of chlorine sadly underscored this 
risk. About 100,000 carloads of TIH chemicals are shipped by rail each 
year. Note that for purposes of the HMR, the terms ``poison'' and 
``toxic'' are synonymous, as are the terms ``poison inhalation hazard'' 
or ``PIH materials'' and ``toxic inhalation hazard'' or ``TIH 
materials.''
     Highway Route Controlled Quantity Radioactive Materials 
(HRCQ). Shipments of HRCQ of radioactive materials are large quantities 
of radioactive materials requiring special controls during 
transportation. Because of the quantity included in a single packaging, 
HRCQ shipments pose significant safety and security risks. Very few 
HRCQ shipments are transported by rail. Spent nuclear fuel and high-
level waste are shipped in containers certified under the Atomic Energy 
Act to meet stringent safety requirements designed to prevent release 
of radioactive materials even in the event of a severe accident.

[[Page 20758]]

    The NPRM did not propose to include select agents or toxins 
regulated by the CDC under 42 CFR part 73 because railroads transport 
few, if any, shipments of theses types of materials. Generally, 
shipments of infectious substances, including select agents and toxins, 
must be transported quickly from origin to destination to prevent 
degradation of samples that can occur over time and to ensure swift 
diagnosis and treatment of infectious diseases. For these reasons, 
highway (for short distances) and air (for longer distances) are the 
preferred modes of transport for these materials.
    Most commenters agree that the above listed materials pose the most 
significant rail transportation safety and security risks. The 
Institute of Makers of Explosives (IME), Dow Chemical Company (Dow), 
Chlorine Institute, Inc., and Mr. Tom Nitza express some concern that 
the PHMSA and TSA rail security NPRMs are not consistent in terms of 
their application to shipments of PIH materials. The PHMSA NPRM applies 
to bulk quantities of PIH materials. A ``bulk quantity'' as used in the 
HMR means a quantity that exceeds 450 L (119 gallons) for liquids, a 
net mass greater than 400 kg (882 pounds) for solids, or a water 
capacity greater than 454 kg (1,000 pounds) as a receptacle for gas (49 
CFR 171.8). Thus, the provisions of the PHMSA NPRM would apply to PIH 
shipments transported in tank cars, including residue amounts exceeding 
119 gallons, and portable tanks and other bulk containers. The TSA NPRM 
applies to tank cars containing PIH materials, excluding residues. 
Commenters suggest that the two rules should be applied consistently 
and recommend that we adopt the TSA tank-car threshold and exclude 
residue shipments.
    While we recognize that TSA used a risk-based approach in 
determining the PIH quantities to which its rail security NPRM would 
apply, we disagree from a safety perspective that bulk packages other 
than tank cars and residue shipments should be excepted from the route 
analysis and route selection requirements adopted in this interim final 
rule. Although target attractiveness from a security standpoint is 
diminished, significant safety risks persist. A typical tank car of 
chlorine, for example, will contain about 16,000 gallons when full and 
may contain a residue amount of 160-320 gallons (1-2 percent of the 
original amount in the tank). Upon release from its container or 
packaging, each cubic foot of liquid chlorine will rapidly expand to 
approximately 450 cubic feet of chlorine gas. Using this rough estimate 
for the expansion of chlorine, a residue amount of 160-320 gallons 
would result in approximately 9,600 to 19,200 cubic feet of chlorine 
gas. Based on guidance in the DOT Emergency Response Guidebook, the 
residue amount remaining in a chlorine tank car, if spilled, would 
suggest an initial isolation distance ranging from 800 ft in all 
directions and a protective distance of at least 1.5 mi for persons 
downwind at night. From a safety standpoint, it makes sense to require 
bulk quantities of PIH residue remaining in tank cars to travel on the 
``best'' route available--the route that considers factors such as 
population density, emergency response capabilities, environmentally-
sensitive and significant areas, and event venues.
    Adoption of the proposed TSA threshold for PIH shipments would also 
exclude rail shipments of most bulk packagings containing PIH materials 
from the route analysis and selection requirements in this interim 
final rule. Portable tanks, for example, typically contain up to 3,000 
gallons, and some are designed to contain up to 6,000 gallons. While 
the isolation and evacuation distances for portable tanks would be the 
same as those for residue quantities in a tank car, the amount of gas 
produced would greatly increase. The amount of a PIH material contained 
in a fully loaded portable tank could, if released entirely, expand to 
produce roughly 180,000 to 361,000 cubic feet of gas, creating a safety 
risk to individuals within the area of the release. When considering 
risks posed by bulk containers such as portable tanks, different safety 
and security related aspects must be considered. Portable tanks are 
designed to be filled and emptied after removal from a transport 
conveyance; therefore, they have thinner walls and heads and are 
generally less robust, which makes them more prone to puncture or 
rupture than a tank car.
    We believe the safety risks posed by the rail transportation of 
bulk quantities of PIH materials should be addressed through enhanced 
safety requirements, including route assessments. Therefore, in this 
interim final rule, we are requiring enhanced safety measures for bulk 
quantities of a material poisonous by inhalation, as proposed in the 
NPRM.
    Written comments submitted by IME and AAR and statements by 
participants in the public meetings highlight the confusion as to 
whether we intended anhydrous ammonia to be included as a PIH material 
for which enhanced safety and security measures are required. The 
answer is yes. To ensure that this confusion does not persist, in this 
interim final rule, we are specifically adding anhydrous ammonia as an 
example, in Sec.  172.802(a), of a material that falls under the 
requirements to develop and implement additional safety and security 
planning requirements, as established by this interim final rule. 
Commenters are correct that, under the HMR, anhydrous ammonia is 
classed as a Division 2.2 compressed gas for domestic transportation. 
However, anhydrous ammonia meets the definition of a material that is 
poisonous by inhalation under Sec.  171.8 of the HMR. That definition 
includes any material identified as an inhalation hazard by a special 
provision in column 7 of the Sec.  172.101 Hazardous Materials Table 
(HMT). The entry for anhydrous ammonia in the HMT includes Special 
Provision 13, which requires the words ``Inhalation Hazard'' to be 
entered on shipping papers and marked on packages.
    Once again, we note that for purposes of the HMR, the terms 
``poison'' and ``toxic'' are synonymous, as are the terms ``poison 
inhalation hazard'' or ``PIH materials'' and ``toxic inhalation 
hazard'' or ``TIH materials.''
    In the NPRM, we sought comments as to whether the proposed 
requirements should also apply to flammable gases, flammable liquids, 
or other materials that could be weaponized, as well as hazardous 
materials that could cause serious environmental damage if released 
into rivers or lakes. Commenters who addressed this issue state that 
rail shipments of Division 1.1, 1.2, and 1.3 explosives; PIH materials; 
and highway-route controlled quantities of radioactive materials pose 
significant rail safety and security risks warranting the enhanced 
security measures proposed in the NPRM and adopted in this interim 
final rule. Commenters generally do not support enhanced security 
measures for a broader list of materials than was proposed in the NPRM.
    The City of Las Vegas, Nevada, supports expanding the list of 
materials for which enhanced security measures are required to include 
flammable liquids; flammable gases; certain oxidizers; certain organic 
peroxides; and 5,000 pounds or greater of pyrophoric materials. While 
DOT and DHS agree that these materials pose certain safety and security 
risks in rail transportation, the risks are not as great as those posed 
by the explosive, PIH, and radioactive materials specified in the NPRM, 
and we are not persuaded that they warrant the additional precautions 
required by the interim final rule. We note that the hazardous 
materials listed by the City of Las Vegas are currently subject to the

[[Page 20759]]

security plan requirements in Subpart I of Part 172 of the HMR. Thus, 
shippers and carriers of these materials must develop and implement 
security plans based on an assessment of the transportation security 
risks posed by the materials. Security plans must include measures to 
address personnel security, unauthorized access, and en route security. 
DOT, in consultation with DHS, will continue to evaluate the 
transportation safety and security risks posed by all types of 
hazardous materials and the effectiveness of our regulations in 
addressing those risks and will consider revising specific requirements 
as necessary.
    For purposes of Section 1551 of the 9/11 Commission Act, DHS, in 
consultation with DOT, is developing a list of ``security-sensitive 
materials'' for rail transportation. DHS plans to publish its 
determination concerning ``rail security-sensitive materials'' in a 
forthcoming rulemaking. Upon publication of this determination, DOT 
will consider whether to revise the list of materials to which the 
safety and security requirements adopted in this IFR apply. We note in 
this regard that in future rulemaking actions DHS may also make 
determinations as to the materials that should be considered security-
sensitive for other modes of transportation or for non-transportation 
operations and facilities.

B. Commodity Data (Sec.  172.820(b))

    The NPRM proposed to require rail carriers to compile commodity 
data on an annual basis for the covered hazardous materials, including 
an identification of the routes utilized and the total number of 
shipments transported. The data are to be used by the rail carriers to 
identify the routes over which the specified hazardous materials are 
transported and the number of shipments utilizing each route. As 
proposed, rail carriers would be required to analyze the safety and 
security risks of the routes identified.
    The City of Cleveland, Ohio, suggests that we revise the proposal 
in the NPRM to require rail carriers to share the commodity data with 
local governments responsible for the geographic areas through which 
hazardous materials are transported. We agree that state and local 
governments should have access to such information, provided access to 
the information is limited to those with a ``need-to-know'' for 
transportation safety and security purposes, and further provided that 
such information may not be publicly disclosed pursuant to any state, 
local, or tribal law. Because of the security sensitivity of the 
commodity data, it is not appropriate for it to be broadly disclosed to 
government or private entities. We note that AAR Circular OT-55-I 
provides for disclosure of certain commodity flow data, upon request, 
to local emergency response agencies and planning groups. At a minimum, 
such information is to include rank-order identification of the top 25 
hazardous commodities transported through the community.
    Section 1551(h) of the 9/11 Commission Act requires rail carriers 
to seek relevant information from state, local, and tribal officials, 
as appropriate, regarding security risks to high-consequence targets 
along or in proximity to a route used to transport security sensitive 
materials. A ``high consequence target'' is defined in the Act to mean 
a property, natural resource, location, area, or other target 
designated by the Secretary of Homeland Security that is a viable 
target of national significance for which an attack by railroad could 
result in catastrophic loss of life, significant damage to national 
security or defense capabilities, or national economic harm. We are 
adopting this requirement in this interim final rule. More broadly, 
however, rail carriers should work with state and local governments 
when conducting the route safety and security analysis required by this 
interim final rule and in making routing decisions based on that 
analysis. To this end, rail carriers must share information as 
necessary and appropriate to enable state and local governments to 
provide meaningful input into the process. We note in this regard that 
among the factors to be considered by rail carriers in conducting the 
safety and security analysis are population density along the route; 
environmentally-sensitive or significant areas; venues along the route 
(stations, events, places of congregation); emergency response 
capability along the route; measures and countermeasures already in 
place to address apparent safety and security risks; proximity to 
iconic targets; and areas of high consequence along the route. State 
and local governments may well be able to assist rail carriers in 
identifying and assessing this type of information. Moreover, state and 
local government entities may also be able to assist rail carriers in 
addressing any safety or security vulnerabilities identified along 
selected routes, in the scheduling of public events, for example, or 
enhancing emergency response capabilities. If a rail carrier is unable 
to acquire relevant information from state, local, or tribal officials, 
then it must document that in its analysis.
    We note as well that states and local governments may contact FRA 
to voice concerns and request an inspection of a route plan, security 
vulnerability, or, more generally, a rail carrier.
    To provide carriers with flexibility in compiling and assessing the 
data, we are not adopting a specified format; however, the data must be 
available in a format that can be read and understood by DOT personnel 
and that clearly identifies the physical locations of the carrier's 
route(s) and commodities transported over each route. Physical location 
may be identified by beginning and ending point, locality name, station 
name, track milepost, or other method devised by the rail carrier which 
specifies the geographic location. Carriers must retain the data for 
two years, in either hard copy or electronic form.

C. Rail Transportation Route Analysis (Sec.  172.820(c))

    In the NPRM, PHMSA proposed to require rail carriers to use the 
data compilation described above to analyze the rail routes over which 
the specified materials are transported. As proposed, carriers would be 
required to analyze the specific safety and security risks for routes 
identified in the commodity data collection and the railroad facilities 
along those routes. The route analyses would be required to be in 
writing and to consider, at a minimum, a number of factors specific to 
each individual route. A non-inclusive list of those factors was 
included in proposed Appendix D to Subpart I of Part 172.
    Several comments were submitted in response to the proposed 
requirement. In its comments, Dow suggests that ``railroad 
facilities,'' as used in this section, should be defined as facilities 
at which storage incidental to movement occurs along the route, 
including, but not limited to, classification and switching yards, and 
non-private sidings. Dow suggests that we clarify that railroad 
facilities do not include an offeror's facility, private track, private 
siding, or the hazardous materials' final destination. We agree with 
Dow that the term ``railroad facility'' should be clearly defined in 
the HMR. Therefore, in this interim final rule, we are adopting Dow's 
suggested definition in Sec.  172.820(c). For purposes of this section, 
``railroad facility'' means railroad property including, but not 
limited to, storage facilities, classification and switching yards, and 
non-private sidings. The term does not include an offeror's facility, 
private track, private siding, or consignee's facility.
    AAR suggests an exception from the analysis requirements if there 
have been no significant changes since the

[[Page 20760]]

previous analysis and less than five calendar years have passed since 
the previous analysis was performed. We will address this issue in more 
detail later in this rule. We would note that any significant changes 
to the route over which the covered hazardous materials are transported 
that occurs before the calendar year actually lapses trigger a revised 
route analysis.
    AAR also suggests an exception from the route analysis requirements 
for rail carriers that transport fewer than 500 carloads of the covered 
hazardous materials. We do not agree. The safety and security risks 
posed by shipments of Division 1.1, 1.2, and 1.3 explosives, highway 
route controlled quantities of radioactive materials, and bulk 
quantities of PIH materials are significant even if a rail carrier only 
transports a single carload. The 2005 accident in Graniteville, South 
Carolina, resulted in the puncture of a single tank car of chlorine, 
but the consequences of that accident were devastating. While it is 
true that the calculation of safety and security risks for the rail 
transportation system as a whole increases as the total number of 
shipments increases, it is also true there is a risk associated with 
each carload transported. An exception from the route analysis 
requirements adopted in this interim final rule for rail carriers that 
transport the specified hazardous materials in amounts below a given 
threshold is not warranted given the safety and security risks posed by 
these materials.
    The National Industrial Transportation League asserts that 
requiring a small railroad to analyze the safety and security risks of 
its only available route serves no purpose since such railroads have no 
alternative routes to assess. The commenter notes that small Class II 
and III railroads generally operate on a single track, usually a feeder 
track to main rail lines, and have no available alternate routes. We do 
not agree. Even in the absence of alternative routes, we believe an 
assessment of the safety and security risks along the route utilized is 
critical to enhancing rail transportation safety and security. A 
comparison of the route utilized with an alternate route is not 
required in this circumstance; however, rail carriers must address 
safety and security vulnerabilities identified by the route analysis.
    Section 1551(c) of the 9/11 Commission Act requires rail carriers' 
safety and security analyses of the routes used to transport security 
sensitive materials to include the route, railroad facilities, railroad 
storage facilities, and high-consequence targets along or in proximity 
to the route. This is consistent with the analysis requirements 
proposed in the NPRM and adopted in this interim final rule. We have 
modified the applicable sections of the interim final rule to clarify 
that rail carriers' safety and security analyses must cover the listed 
items.
    As discussed in the NPRM, we gave careful consideration to the 
question of how to define a ``rail transportation route'' for the 
purpose of the analysis proposed in the NPRM. We proposed this very 
basic definition: a route is a series of one or more rail line 
segments, as selected by the rail carrier. Between the beginning and 
ending points of a rail carrier's possession and responsibility for a 
hazardous materials shipment, it would be up to the rail carrier to 
define the routes to be assessed. For example, a route could begin at 
the geographic point where a rail carrier takes physical possession of 
the hazardous material from the offeror or another carrier for 
transportation. A route could end at the geographic point where: (1) 
The rail carrier relinquishes possession of the hazardous material, 
either by delivering the commodity to its final destination or 
interchanging the shipment to another carrier; or (2) the carrier's 
operating authority ends. Hazardous materials shipments will likely 
have intermediary stops and transitions for example, a shipment may be 
held in a railroad yard, placed in a different train, or stored 
temporarily during transportation. Our aim is to have rail carriers 
analyze the territory and track over which these certain hazardous