Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information, 41541-41560 [2023-13467]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)]
[Proposed Rules]
[Pages 41541-41560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13467]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 174, and 180

[Docket No. PHMSA-2016-0015 (HM-263)]
RIN 2137-AF21


Hazardous Materials: FAST Act Requirements for Real-Time Train 
Consist Information

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes amendments to its Hazardous Materials 
Regulations to require all railroads to generate in electronic form, 
maintain, and provide to first responders, emergency response 
officials, and law enforcement personnel, certain information regarding 
hazardous materials in rail transportation to enhance emergency 
response and investigative efforts. The proposal responds to a safety 
recommendation of the National Transportation Safety Board and 
statutory mandates in The Fixing America's Surface Transportation Act, 
as amended, and complements existing regulatory requirements pertaining 
to the generation, maintenance, and provision of similar information in 
hard copy form, as well as other hazard communication requirements.

DATES: Comments must be received by August 28, 2023. To the extent 
possible, PHMSA will consider late-filed comments as a final rule is 
developed.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: Docket Management System; U.S. Department of 
Transportation, Docket Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590-0001.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001 between 9 a.m. and 5 p.m. EST, Monday 
through Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2016-
0015 (HM-263) or RIN 2137-AF21 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided. If sent by mail, comments must be submitted in 
duplicate. Persons wishing to receive confirmation of receipt of their 
comments must include a self-addressed stamped postcard.
    Docket: For access to the dockets to read background documents or 
comments received, go to https://www.regulations.gov or DOT Docket 
Operations Office (see ADDRESSES).
    Confidential Business Information: Confidential Business 
Information (CBI) is commercial or financial information that is both 
customarily and actually treated as private by its owner. Under the 
Freedom of Information Act (FOIA; 5 U.S.C. 552), CBI is exempt from 
public disclosure. If your comments responsive to this NPRM contain 
commercial or financial information that is customarily treated as 
private, that you actually treat as private, and that is relevant or 
responsive to this NPRM, it is important that you clearly designate the 
submitted comments as CBI. Please mark each page of your submission 
containing CBI as ``PROPIN.'' Submissions containing CBI should be sent 
to Dirk Der Kinderen, U.S. Department of Transportation, 1200 New 
Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that PHMSA 
receives which is not specifically designated as CBI will be placed in 
the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, 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.

[[Page 41542]]


SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. What is the purpose of the proposed regulatory action?
    B. What are the key provisions?
    C. What is the economic impact?
II. Electronic Hazard Communication for Rail Transportation 
Emergency Response
    A. What action is being proposed?
    B. What is PHMSA's authority for this proposed action?
    C. Does this proposed action apply to me?
III. Background
    A. What is train consist information?
    B. What is currently required regarding train consist 
information?
    C. Is there an alternative to the current train consist 
information requirements?
    D. How does train consist information affect rail transportation 
safety?
    E. How will requiring electronic train consist information 
affect rail transportation safety?
    F. What does PHMSA mean by real-time?
    G. How has PHMSA engaged stakeholders?
IV. Section-by-Section Review of Proposed Amendments
    A. Sections 171.8 and 180.503
    B. Section 174.26
    C. Section 174.28
V. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Orders 12866 and 14094, and DOT Regulatory Policies 
and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272
    F. Paperwork Reduction Act
    G. Unfunded Mandates Reform Act of 1995
    H. Draft Environmental Assessment
    I. Privacy Act
    J. Executive Order 13609 and International Trade Analysis
    K. National Technology Transfer and Advancement Act
    L. Cybersecurity and Executive Order 14082
    M. Severability

I. Executive Summary

A. What is the purpose of the proposed regulatory action?

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
proposes to amend the Hazardous Materials Regulations (HMR; 49 Code of 
Federal Regulations (CFR) parts 171 to 180) in response to 
congressional mandates and a safety recommendation of the National 
Transportation Safety Board (NTSB) by requiring all railroads 
transporting hazardous materials to generate in electronic form train 
consist information, maintain that information off-the-train, update 
that information in real-time, and provide that information to 
authorized ``emergency response personnel'' \1\ in advance of their 
arrival to an accident or incident. As such, railroads operating a 
train carrying hazardous materials will be required to push that 
information to state-authorized local first responders needing that 
information promptly following either an accident involving that train, 
or an incident involving the release or suspected release of hazardous 
material from that train. Railroads must also ensure that, in updating 
that electronic train consist information, they also update hard 
(printed) copy versions of the same information provided to train crews 
such that both hard (printed) copy and electronic versions of that 
information are consistent, accurate, and available when needed most. 
PHMSA expects this enhanced, proactive approach will ensure that 
emergency response personnel have timely, accurate, actionable 
information regarding the hazardous materials being transported and the 
hazards they may encounter when they are en route to or reach the scene 
of a rail accident or incident, thereby reducing the risks to 
surrounding communities and the environment while expediting site 
remediation, restoration of rail service, and community engagement 
efforts as investigation activity proceeds. While PHMSA understands the 
availability of electronic real-time train consist information may not 
have changed the outcome of the recent Norfolk Southern train 
derailment in East Palestine, OH, that accident and similar events that 
have occurred in recent years highlight the importance of providing 
emergency response personnel with timely, complete, and accurate 
information regarding hazardous materials within a train--as any 
additional time for responders to prepare for what they will encounter 
may reduce risks and result in significant public safety, commercial, 
and environmental benefits.
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    \1\ PHMSA understands ``emergency response personnel'' may 
include any personnel from any of Federal (e.g., PHMSA, Federal 
Railroad Administration, National Transportation Safety Board, U.S. 
Environmental Protection Agency, or Federal Emergency Management 
personnel), or organizations that state or local governments 
authorize to perform emergency response activities.
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    The amendments proposed herein respond to a mandate in section 7302 
of The Fixing America's Surface Transportation Act (FAST Act, Pub. L. 
114-94), as amended by the Investment Infrastructure and Jobs Act (Pub. 
L. 117-58),\2\ to require Class I railroads transporting hazardous 
materials to generate accurate, real-time, electronic train consist 
information that must be provided ``to State and local first 
responders, emergency response officials, and law enforcement personnel 
that are involved in the response to or investigation of an accident, 
incident, or public health or safety emergency involving the rail 
transportation of hazardous materials.'' However, consistent with the 
broader language within an NTSB safety recommendation following the 
2005 collision of two freight trains near Anding, MS, PHMSA proposes 
extending the NPRM's proposed requirements to all railroads in light of 
the risks to public safety and the environment from delay in responding 
to releases from even smaller, Class II and III railroads on which 
hazardous materials are transported.
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    \2\ Codified at 49 U.S.C. 20103 note.
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B. What are the key provisions?

    1. Definition of ``Train Consist Information'': PHMSA proposes to 
amend the definition of ``train consist'' at Sec.  171.8 to be 
recharacterized as ``train consist information,'' meaning a hard 
(printed) copy or electronic record of the position and contents of 
hazardous materials rail cars of a train where the record includes 
information required by Sec.  174.26. Specifically, the information 
includes the contact information for a railroad-designated emergency 
point of contact; the point of origin and destination of the hazardous 
materials on the train subject to shipping paper information 
requirements; shipping paper information required by Sec. Sec.  172.201 
to 172.203; and emergency response information required by Sec.  
172.602(a). PHMSA also proposes a conforming revision to Sec.  180.503 
to delete a definition of ``train consist'' that is not used in that 
part.
    2. Notice to Train Crews: PHMSA proposes to amend the provision to 
enhance existing requirements at Sec.  174.26 to provide train consist 
information (as PHMSA proposes to define that term at Sec.  171.8) in 
hard (printed) copy to train crews prior to movement of hazardous 
materials by rail. Specifically, PHMSA proposes to clarify 
responsibilities for railroads to provide a hard (printed) copy version 
of train consist information to train crews, for train crews to update 
that hard (printed) copy version of train consist information, and that 
the hard (printed) copy of the train consist information must be 
maintained in a conspicuous location of an occupied locomotive. 
Railroads must also ensure that train consist information is generated 
and updated in electronic form, maintained offsite of the train itself, 
and immediately accessible by the railroad's designated emergency 
response point of

[[Page 41543]]

contact. Railroads must ensure the hard (printed) copy and electronic 
forms of the train consist information are at all times accurate and 
consistent.
    3. Emergency Response Information Sharing Requirements: PHMSA 
proposes a new section at Sec.  174.28 that will establish real-time, 
electronic train consist information-sharing requirements for hazardous 
materials transported by rail. All railroads will need to generate and 
provide train consist information by electronic means to authorized 
emergency response personnel that could be involved in the response 
to--or investigation of--an accident, incident, or public health or 
safety emergency involving the rail transportation of hazardous 
material. Information generated and shared in accordance with this 
section must be accurate, provided in a secure and confidential manner 
consistent with the intent of the FAST Act, and accessible at any time 
by authorized emergency response personnel. In the event of either an 
accident, or incident involving the release or suspected release of 
hazardous material, railroads operating trains carrying hazardous 
material will be required to promptly forward that train consist 
information in electronic form to state-authorized local first 
responders within a 10-mile radius of the incident or accident to 
assist in response and investigation efforts.

C. What is the economic impact?

    PHMSA estimates that the proposed rule would impact seven Class I 
railroads, 11 Class II railroads, and 585 Class III railroads and 
estimates the undiscounted total financial impact of the rulemaking 
over a 10-year analysis period to be about $46.3 million in 2021 
dollars, for an average annual cost of $4.6 million. The discounted 
total cost of the rulemaking over the analysis period is estimated to 
be $32.8 million in 2021 dollars at a 7 percent discount rate. The 
benefits of this proposed rule will depend greatly on the effectiveness 
of having timely access to real-time train consist information to 
improve emergency responders' ability to respond to rail accidents and 
incidents, which may be a high-consequence/low-probability event such 
as the Norfolk Southern train derailment at East Palestine, OH. PHMSA 
anticipates the proposed rule will improve emergency responders' 
ability to promptly identify all the hazardous materials cars involved 
in an accident and to timely assess the threat from a hazardous 
materials release. PHMSA estimated the annual damage cost of hazardous 
material incidents on rail to be $15.6 million in 2021 dollars. 
Therefore, the proposed rule would have to reduce damage costs by about 
30 percent for the monetized benefits of the proposed rule to equal 
costs. The following table summarizes the annual costs and benefits of 
the major provisions of the proposed rule in constant 2021 dollars.

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                                                       Average annual cost
          Proposed requirement          ------------------------------------------------             Benefit                         Breakeven
                                          Undiscounted         3%              7%
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Amending the definition of train         ..............  ..............  ..............  By aligning the definition of    NA.
 consist information.                                                                     the FAST Act with the language
                                                                                          in the existing regulation,
                                                                                          this amendment improves
                                                                                          regulatory clarity.
Amending notice to train crew..........      $1,051,753        $897,167        $738,708  By improving emergency           Cost-effective if this
                                                                                          responders' ability to           requirement reduces the
                                                                                          promptly identify all the        consequences of hazardous
                                                                                          hazardous materials involved     material incidents by rail by
                                                                                          in an accident and assess the    about 27 percent.
                                                                                          threat from a hazardous
                                                                                          materials release, the
                                                                                          proposed provisions will
                                                                                          reduce injuries and
                                                                                          fatalities, material loss and
                                                                                          response costs, and delays
                                                                                          caused by closures.
New information sharing requirement....       3,169,069       1,025,493         494,850
                                        ----------------------------------------------------------------------------------------------------------------
    Total..............................       4,220,822       1,922,660       1,233,557
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    As illustrated by the Norfolk Southern train derailment incident at 
East Palestine, OH, such accidents can have substantial impacts that 
are not captured by this preliminary regulatory impact analysis 
(PRIA)--including the long-term environmental concerns and health risks 
(both physiological and psychological) for local residents. Research 
also shows that such accidents can reduce property values which--in 
turn--can slow down economic activity in the area.\3\ Additionally, of 
the 140,000 total route-miles of track in the U.S., 104,000 miles are 
in rural and tribal areas, suggesting that train-related hazardous 
material incidents mainly happen in areas populated by disadvantaged 
communities.\4\ PHMSA acknowledges and considers these unquantified 
factors in selecting the provisions of the proposed rulemaking.
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    \3\ For example, a study that examines the impact of 33 
derailments involving hazardous material on property values in New 
York State between 2004 and 2013 found that, on average, a 
derailment depreciates housing values within a one-mile radius by 
5%-8% (Chuan Tang et al. (2020). Rail accidents and property values 
in the era of unconventional energy production. Journal of Urban 
Economics, 120, https://doi.org/10.1016/j.jue.2020.103295
    \4\ See PHMSA, ``Improving Rail in Rural Communities,'' https://railroads.dot.gov/rural (last accessed May 3, 2023).
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II. Electronic Hazard Communication for Rail Transportation Emergency 
Response

A. What action is being proposed?

    PHMSA proposes to require all railroads to generate, maintain 
externally to the train itself, and update in real-time, accurate train 
consist information in electronic form, and to make this information 
available to authorized first responders, emergency response officials, 
and law enforcement personnel at all times upon request.

[[Page 41544]]

Further, PHMSA proposes that, in the event of either an accident, or an 
incident involving the release or suspected release of hazardous 
material, railroads operating trains carrying hazardous material must 
promptly forward that train consist information to state-authorized 
local first responders within a 10-mile radius of the incident or 
accident. PHMSA also proposes conforming and clarifying revisions to 
existing HMR requirements governing notification (via hard copy, 
specially printed, documentation) of train crews for trains carrying 
hazardous material.
    PHMSA proposes a compliance period of one year from the date of 
publication of a final rule in this rulemaking to allow railroads 
sufficient time to implement (via conducting training, procurement and 
installation of pertinent equipment and software, and development of 
procedures and security protocols) measures for generating, organizing, 
and providing to Federal, state and local first responders, emergency 
response officials, and law enforcement personnel train consist 
information in electronic form. Detailed discussions of changes to 
sections of the HMR based on this proposed action are provided in 
Section IV. below.

B. What is PHMSA's authority for this proposed action?

    PHMSA's statutory authority for this action is twofold. Section of 
7302 of the FAST Act, as amended by the Investment Infrastructure and 
Jobs Act, directs the Secretary to issue regulations to require Class I 
railroads \5\ transporting hazardous materials to generate accurate, 
real-time, electronic train consist information that must be provided 
``to State and local first responders, emergency response officials, 
and law enforcement personnel that are involved in the response to or 
investigation of an accident, incident, or public health or safety 
emergency involving the rail transportation of hazardous materials.'' 
Specifically, section 7302(a)(1) directs the Secretary to require that 
Class I railroads include the following data in connection with such 
electronic, real-time train consist information:
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    \5\ The Surface Transportation Board categorizes rail carriers 
into Class I, Class II, and Class III based on carrier's annual 
revenues. The threshold for Class I is a carrier earning revenue 
greater than approximately $900 million/year (2022); the threshold 
for Class II rail carriers is approximately $40 million/year; and 
the threshold for Class III rail carriers is any value less than the 
threshold for Class II railroads.
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    (1) The identity, quantity, and location of hazardous materials on 
a train;
    (2) The point of origin and destination of the train;
    (3) Any emergency response information or resources required by the 
Secretary; and
    (4) An emergency response point of contact designated by the Class 
I railroad.
    Section 7302(a)(4) directs the Secretary to prohibit any Class I 
railroad, employee, or agent from withholding, or causing to be 
withheld, that information from authorized entities. Section 7302(a)(5) 
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 of real-time train consist information to unauthorized 
persons. Finally, section 7302(a)(6) directs the Secretary to allow 
each Class I railroad to enter into a memorandum of understanding with 
any Class II railroad or Class III railroad that operates trains over 
the Class I railroad's line to incorporate the Class II railroad's or 
Class III railroad's train consist information.
    In addition to the FAST Act mandate, the Federal Hazardous 
Materials Transportation Act (HMTA; 49 U.S.C. 5101 et seq.) at 49 
U.S.C. 5103 gives the Secretary general authority to issue regulations 
for the safe transportation of hazardous material in commerce.
    The Secretary delegates the above statutory authorities to PHMSA at 
49 CFR 1.97.

C. Does this proposed action apply to me?

    PHMSA's proposed action applies to all railroads in commerce. 
Although the FAST Act contains an explicit requirement only for Class I 
railroads transporting hazardous materials to generate and provide 
accurate, real-time, electronic train consist information, PHMSA 
proposes--pursuant to its delegated general authority under the HMTA to 
make regulations for the safe transportation of hazardous materials 
including those materials transported by rail--to require Class II and 
Class III railroads (hereafter referred to as ``regional and short line 
railroads'') to also compile, update, and forward (as proposed herein) 
accurate, real-time train consist information in electronic form. PHMSA 
notes that this broader approach is consistent with the inclusive 
language within NTSB safety recommendation R-07-04 issued following the 
2005 collision of two freight trains containing hazardous materials 
near Anding, MS; safety recommendation R-07-04 called on PHMSA to 
require that all railroads immediately provide real-time train consist 
information to emergency responders following an accident or incident 
involving rail transportation of hazardous material.\6\ NTSB's safety 
recommendation is consistent with the common-sense proposition that 
rail transportation of hazardous material is not limited to Class I 
railroads, and thus the prospect of an accident or emergency is also 
not limited to those railroads. Regional and short line railroads also 
transport hazardous material and account for over a third of freight 
rail in the United States, covering about 50,000 miles of the 140,000-
mile U.S. freight rail network. Further, regional and short line 
railroads are typically the first and last mile of service and often 
serve as the only connection of rural, small town, and tribal areas of 
the United States to the nationwide network of railroads--similarly, 
emergency response personnel within those areas are likely to be the 
only personnel close enough to the incident or accident to respond 
quickly. Thus, it is vital for emergency responders and law enforcement 
in areas served by these railroads to also have access to accurate and 
real-time train consist information.
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    \6\ NTSB, NTSB/RAR-07/01, ``Collision of Two CN Freight Trains 
near Anding, Mississippi on July 10, 2005'' at 48 (Mar. 2007) (NTSB 
Report), https://www.ntsb.gov/investigations/AccidentReports/Reports/RAR0701.pdf.
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III. Background

A. What is train consist information?

    The train consist generally refers to the contents of a train 
including the position of locomotives and cars, as well as both non-
hazardous and hazardous freight within those cars. The HMR currently 
defines at Sec.  171.8 the ``train consist'' as a written record of the 
contents and location of each rail car \7\ in a train.
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    \7\ A rail car means a car designed to carry freight or non-
passenger personnel by rail, and includes a box car, flat car, 
gondola car, hopper car, tank car, and occupied caboose.
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B. What is currently required regarding train consist information?

    The HMR at Sec.  174.26(a) requires that railroad train crews must 
have a paper document that reflects the current position in the train 
of each rail car containing a hazardous material and must update it to 
indicate changes in the placement of a hazardous material rail car 
within the train.\8\ The train crew

[[Page 41545]]

may update the document by handwriting on it or by appending or 
attaching another document to it. The train crew must also have a copy 
of a document showing the information required on shipping papers, 
including applicable emergency response information. See Sec.  
174.26(b).
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    \8\ PHMSA notes that the train consist documentation 
requirements discussed throughout this NPRM complement other hazard 
communication requirements within part 172 pertaining to marking 
(subpart D), labelling (subpart E), and placarding (subpart F) of 
hazardous material packages and transport containers and vehicles.
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    A common practice for railroads in satisfying the above regulatory 
requirements is capturing all required information in a single hard 
copy (generally printed) document (sometimes referred to as the ``train 
consist'' or ``train list'') that is provided to train crews. Some 
railroads, primarily those designated as Class I, compile information 
in an electronic database (which could be maintained by the railroad 
itself, or a third party vendor utilizing the ``cloud'') and provide 
hard copies of some of the database information to the train crew. 
Those electronic databases may include more information than just the 
contents and location of a hazardous material rail car in the train: 
they may incorporate information linking the hazardous material at each 
location in the train with shipping papers (commonly referred to as 
bills of lading, required by part 172, subpart C) and emergency 
response information (required by part 172, subpart G).

C. Is there an alternative to the current train consist information 
requirements?

    Starting in 2019, several railroads applied for and were granted 
special permits to allow train consist information documentation to be 
maintained and communicated using only electronic means in connection 
with specific service routes. To date, seven special permits (SPs) have 
been issued,\9\ including for six Class I railroads: DOT-SP 20954 
(issued to BNSF Railway Company); DOT-SP 21046 (issued to CSX 
Transportation and recently expired); DOT-SPs 21053 and 21323 (issued 
to Canadian National Railway Company); DOT-SP 21059 (issued to Union 
Pacific Railroad Company); and DOT-SP 21110 (issued to Norfolk Southern 
Railroad). A single special permit (DOT-SP 21266) has been issued to a 
short line railroad: Richmond Pacific Railroad. The special permits 
provide operational controls and reporting requirements including the 
following items of interest:
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    \9\ Special permits may be reviewed at www.phmsa.dot.gov/approvals-and-permits/hazmat/special-permits-search. DOT-SPs 20954, 
21059, 21110, 21266, and 21323 are active while DOT-SP 21053 is 
active under pending renewal, along with several party-to 
applications, and DOT-SP 21046 expired by its terms. PHMSA also 
notes that although Norfolk Southern is a grantee of a special 
permit, the routes that they included in their application did not 
include the route along East Palestine, OH. PHMSA will consider in 
any final rule in this proceeding whether amendment or revocation of 
those previously-issued special permits would be (based on the 
content of that final rule) warranted. That said, the PHMSA seeks 
comment on how the special permits may be impacted by the proposed 
regulatory amendments in this NPRM.
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    (1) Train consist information must be readily available by 
electronic means to government officials (e.g., emergency response 
personnel);
    (2) Updates of the train consist information must be done 
electronically and in real-time;
    (3) More than one method of electronic information-sharing must be 
available to first responders should the primary method (i.e., cellular 
network devices) not work, as well as a redundant communication option 
should electronic service be unavailable;
    (4) Upon notification of an incident to response authorities, the 
train consist information must be provided;
    (5) Training must be provided to first responders along portions of 
a route without cellular service on methods of communication during an 
incident; and
    (6) Incidents where information was shared electronically with 
first responders must be documented and a consolidated report must be 
provided to PHMSA discussing successes and any corrective actions.
    PHMSA is not aware of any negative impacts associated with 
railroads operating under these special permits authorizing electronic 
train consist information, and based on incident experience, has had 
positive outcomes from the practice. For example, BNSF Railway Company 
has reported four occasions where electronic train consist information 
was shared with first responders to assist in prompt emergency 
response.

D. How does train consist information affect rail transportation 
safety?

    Train consist information aids Federal and state first responders, 
emergency response officials, and law enforcement personnel in ensuring 
coordinated action to assess an accident, incident, or public health or 
safety emergency involving hazardous materials in rail transportation, 
which in turn informs the appropriate response action (e.g., fire 
suppression media) precisely when every second counts. Those officials 
typically rely heavily on this information--along with hazard 
communication required pursuant to part 172 requirements pertaining to 
marking (subpart D), labelling (subpart E), and placarding (subpart 
F)--for timely awareness about hazardous material on a train in 
emergency situations. Indeed, because placarding may be damaged or 
inaccessible (due to fire, hazardous material release or orientation of 
the rail car), train crews may be injured or unavailable, or wireless 
telecommunications service may be limited, the hard copy form of train 
consist information can often be the only accurate basis of knowledge 
on the hazardous material within a train. Further, because emergency 
response may involve personnel from different and distant jurisdictions 
converging on a single location at different times,\10\ there is a 
premium on having a common understanding of the hazardous material on 
the train as coordinated response efforts commence. Timely, accurate 
train consist information also ensures investigation efforts by Federal 
and state personnel can promptly identify systemic safety issues 
meriting broader dissemination and address community concerns regarding 
the availability and reliability of information following an accident 
or incident.
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    \10\ PHMSA notes that if an incident or accident occurs in a 
rural, small town, or Tribal areas, local emergency response 
personnel--may be the only personnel who can respond promptly to the 
incident or accident.
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    An example taken from a 2007 NTSB investigation report \11\ 
underscores the importance of the availability of timely, accurate 
train consist information documentation. In the early morning hours of 
July 10, 2005, two Canadian National Railway Company (CN) trains 
transporting mixed freight including hazardous material collided head-
on in Anding, MS. The collision resulted in the derailment of six 
locomotives and 17 cars. About 15,000 gallons of diesel fuel were 
released from the locomotives and resulted in a fire that ended up 
burning for roughly 15 hours. There also was a limited release of 
hazardous materials from venting tank cars; however, that did not 
contribute to the severity of the accident. Two crewmembers from each 
train were killed in the accident and the train consist information 
aboard the locomotives was destroyed. Nearly 100 residents from the 
surrounding community were evacuated from the area as a precaution. The 
accident ultimately resulted in ca. $10 million (in 2005 dollars) of 
property damage and environmental clean-up costs.
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    \11\ NTSB Report at 2-10.
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    When emergency responders arrived on the accident scene within a 
half-hour of the collision, it was dark; the fire was intense, and 
heavy black smoke prevented visual identification of all the hazardous 
material tank cars in the

[[Page 41546]]

wreckage. The first CN official arrived at the scene an hour after the 
collision and told emergency responders that he did not have any train 
consist information documentation or knowledge about the hazardous 
materials on either train. The absence of train crews to pass along 
train consist information and the inability to access the information 
on the locomotive--i.e., the lack of immediately available train 
consist information--severely restricted the ability of emergency 
responders to make a quick assessment of the potential for a hazardous 
materials release and thus to respond appropriately.
    The CN official obtained accurate train consist information on the 
northbound train via cell phone from the CN dispatcher and provided it 
to emergency responders, but cell phone service was disrupted before 
any information about the southbound train could be obtained. Without a 
document for the southbound train, unsuccessful attempts were made by 
response personnel on-scene to identify potential hazardous material 
threats based on placarding and tank car stenciling--i.e., visible 
hazard signage and markings on the rail cars. Over two-and-a-half hours 
after the collision, another CN employee that had traveled from 
Jackson, MS (roughly 45 minutes away from the accident) delivered 
copies of the train consist information for both trains--but the 
information he delivered for the southbound train did not accurately 
reflect the actual makeup of the southbound train at the time of the 
accident. It was nearly another hour (almost four hours since the 
collision) before CN officials and emergency responders were able to 
develop an accurate listing of the derailed cars from the southbound 
train involved in the fire by visually surveying the scene. Only after 
being able to determine which hazardous materials were being conveyed 
on the train was it safe for emergency responders to begin moving cars 
and applying aqueous film forming foam to suppress the fires at the 
site. It would be roughly fourteen hours after the collision before the 
fire was declared suppressed.
    In reviewing the collision and emergency response efforts, the NTSB 
concluded that the lack of timely information on the contents of each 
train--between the loss of train crew personnel, the damaging of 
stenciling and hazard placarding, and CN's failure to provide timely 
and accurate train consist information for both trains (particularly 
the southbound train)--significantly hampered emergency response 
efforts. The NTSB consequently issued safety recommendation R-07-04 
calling on PHMSA to require that all railroads immediately provide 
real-time train consist information to emergency responders following 
an accident or incident involving rail transportation of hazardous 
material.\12\
---------------------------------------------------------------------------

    \12\ See NTSB Report at 48 (``With the assistance of the Federal 
Railroad Administration, require that railroads immediately provide 
to emergency responders accurate, real-time information regarding 
the identity and location of all hazardous materials on a train.'').
---------------------------------------------------------------------------

    The importance of timely, accurate train consist information is 
also underscored by the recent Norfolk Southern train derailment in 
East Palestine, OH. Although NTSB's investigation of that derailment is 
ongoing, the NTSB noted during a press conference announcing their 
preliminary findings on February 23, 2023, that many of the hazardous 
materials placards displayed on the tank cars melted in the ensuing 
fire following the derailment.\13\ Firefighters who responded to the 
incident from more than 30 minutes away also noted that they didn't 
gain access to information about the train consist until well after 
they arrived on scene. PHMSA notes that in such scenarios, emergency 
response personnel may have to rely on the train consist information 
provided by the train crew and the train operator as they were 
conducting their initial assessment of the incident and planning 
response actions. Notably, too, the East Palestine, OH accident 
exemplifies how investigation efforts by regulatory officials into 
potential systemic issues revealed by an incident (or to assuage 
community anxieties regarding the response effort) can often occur 
simultaneously with incident response efforts at the site.
---------------------------------------------------------------------------

    \13\ NTSB, Preliminary Report No. RRD23MR005, ``Norfolk Southern 
Railway Train Derailment with Subsequent Hazardous Material Release 
and Fires--East Palestine, OH--Feb. 3, 2023 (Feb. 23, 2023), https://www.ntsb.gov/investigations/Documents/RRD23MR005%20East%20Palestine%20OH%20Prelim.pdf.
---------------------------------------------------------------------------

E. How will requiring electronic train consist information affect rail 
transportation safety?

    The HMR currently imposes some documentation requirements 
pertaining to hazardous material within a train. Specifically, each of 
Sec. Sec.  171.8 (``written record'') and 174.26 (``copy of a 
document'') contemplate that a ``train consist'' consists only of a 
printed, hard copy relating only high-level information (the ``contents 
and location of each rail car in a train'') pertaining to any hazardous 
materials being transported. And although provisions elsewhere in the 
HMR governing emergency response (specifically, part 172, subpart G) 
contemplate that train crews will need to have, or have ``immediate'' 
access to, more fulsome information (regarding hazardous material 
technical name, emergency response information, emergency response 
telephone numbers, etc.), Sec.  172.602(b) similarly contemplates that 
information will be in hard copy (``printed'') form rather than 
electronic form.
    These limited documentation requirements can contribute to delays 
in emergency response actions and potentially inaccurate information 
being provided to emergency response personnel at precisely the same 
moment when accurate, timely information is critical to response 
efforts. The success of any response effort turns on the accuracy of 
information regarding the precise hazards confronting emergency 
response personnel and the surrounding community. But as illustrated by 
both the Anding, MS collision and the East Palestine, OH derailment, 
emergency response personnel may not be able to rely on hazard 
communication placarding or stenciling to know with confidence whether, 
and in which car, a train is transporting hazardous material as those 
hazard communication tools may have been obscured (e.g., through 
burning) or been rendered inaccessible. Nor, moreover, can the 
emergency response personnel necessarily rely on the train crew or the 
hard copy of the train consist information they may have onboard; as in 
the Anding, MS collision, train crews can become incapacitated and hard 
copies of the train consist information may perish in the incident. 
Further, even if those resources are available, they may only be 
available in the form of a single document or a limited number of 
persons on the train crew, thereby creating the potential for 
conflicting information or bottlenecking of critical information within 
(potentially multi-disciplinary and multi-jurisdictional) response 
efforts.\14\ Additionally, the fact that emergency response personnel 
converging on the site from multiple jurisdictions may not have access 
to that information until they arrive forfeits opportunities to begin 
reviewing pertinent immediate actions and coordinating response efforts 
while en route to the site--adding more delay in the critical moments 
immediately following an

[[Page 41547]]

accident or incident.\15\ Lastly, because investigation efforts often 
proceed nearly simultaneously with emergency response, delays in 
obtaining accurate train consist information can hamper investigation 
efforts to identify systemic issues or even an imminent hazardous 
materials transportation safety hazard that could result in similar 
incidents elsewhere or to address community concerns regarding the 
adequacy of response efforts.
---------------------------------------------------------------------------

    \14\ PHMSA submits that some of the same limitations from 
reliance solely on hard-copy, locally-maintained train consist 
information could also arise in connection with reliance on 
electronic copies (e.g., on an e-tablet) maintained by train crews.
    \15\ This risk can be particularly acute if the accident or 
incident occurs in a remote rural, small town, or Tribal area, as 
local first responders may be the only personnel who can quickly 
respond to the accident or incident.
---------------------------------------------------------------------------

    PHMSA expects that maintaining electronic train consist information 
away from the train, and which is updated in real-time as a train's 
hazardous contents change, address many of those shortcomings from 
reliance solely on hard copies of that information. Remote (e.g., in 
the ``cloud'') compilation and maintenance of an electronic copy of 
train consist information that is synced in real-time with the hard 
(printed) copy of that information maintained by train crews per Sec.  
174.26 promotes the accuracy of both electronic and hard (printed) copy 
versions of that information, each of which can be checked against the 
other. And to the extent that the compilation and updating of that 
electronic record occurs automatically it can minimize the introduction 
of human error into either the hard or electronic versions of the train 
consist information. Additionally, as illustrated by the Anding, MS 
collision, hard copy documents may be destroyed or inaccessible, or 
train crews may become injured, rendering them ineffective for the 
exchange of information to emergency response personnel; similarly, 
reliance on a single hard copy document or a limited number of 
personnel risks bottlenecking or conflicting accountings of critical 
information. In contrast, compilation and maintenance remotely of an 
electronic version of train consist information will provide necessary 
redundancy for a railroad's ability to exchange critical information 
with emergency response personnel, promising distribution of critical 
information that is more uniform, fulsome, well-distributed, and timely 
than reliance on hard copies and train crew personnel alone. 
Additionally, remotely-maintained, electronic train consist information 
promises earlier coordination of emergency response efforts; emergency 
response personnel commuting to an incident site from various 
jurisdictions may be able to access electronic train consist 
information (as well as pertinent training and immediate actions) en 
route, saving precious time in identifying immediate actions and 
coordinating response efforts. Lastly, electronic train consist 
information can also facilitate investigation efforts in parallel with 
emergency response efforts, thereby allowing more timely identification 
and remediation of systemic issues across the industry, as well as 
helping to assure affected communities of the adequacy of response 
efforts.
    PHMSA notes that the experience with the special permits 
authorizing limited use of electronic approaches to maintaining train 
consist information discussed in Section III.C above provides 
additional evidence of the potential safety-enhancing benefits of 
requiring use of such tools more broadly as proposed in this NPRM. 
PHMSA also notes that stakeholders within the emergency response 
community have also submitted comments in this rulemaking proceeding 
calling on PHMSA to codify a requirement for electronic, real-time 
train consist information to supplement existing hard copy 
documentation requirements.\16\
---------------------------------------------------------------------------

    \16\ See, e.g., Intl. Assn. of Fire Chiefs, Doc. No. PHMSA-2016-
0015-0009, ``Comments on PHMSA's Advanced Notice of Proposed 
Rulemaking [under RIN 2137-AF21]'' at 3 & 6 (Apr. 19, 2017) (IAFC 
Comments). The IAFC comments urged a defense-in-depth approach 
utilizing both electronic and hard copy train consist information 
because exclusive reliance on electronic train consist information 
maintained remotely may be impractical in rural, small-town, or 
Tribal areas where internet connectivity is limited or unreliable.
---------------------------------------------------------------------------

F. What does PHMSA mean by real-time?

    A plain language meaning of real-time is simultaneous (or nearly 
simultaneous) with the time which something takes place. PHMSA 
interprets the references in the FAST Act instruction and NTSB safety 
recommendation R-07-04 to ``real-time'' train consist information to 
have a dual meaning: (1) that the update of train consist information 
during transportation should occur at the time changes to the hazardous 
material on the train are being made, thereby ensuring the accuracy of 
information; and (2) that the required train consist information is 
provided to authorized first responders at the time a response to or 
investigation of an accident, incident, or public health or safety 
emergency is occuring. This latter element in turn means that the 
required electronic train consist information should be provided to and 
is accessible to authorized personnel prior to an accident or 
incident--and pushed promptly following initiation of an accident or 
incident to emergency response personnel needing that information to 
identify potential hazardous material threats and take appropriate 
measures and commence investigation activities.
    Although PHMSA understands that current HMR requirements require 
operators to update hard (printed) copy train consist information as 
there are changes to that information, in practice that hard copy-
exclusive approach can introduce the potential for human error; often a 
member of the train crew (in most circumstances, the engineer) must 
update by hand the printed, hard copy of the train consist information 
in the crew's possession to provide an accurate listing of the position 
of hazardous material cars. Additionally, PHMSA understands that 
current HMR regulations do not contain specific requirements for 
railroads to either (1) make accurate, electronic, real-time train 
consist information available to authorized emergency response 
personnel at all times so they have it in advance of an accident or 
incident, or (2) take affirmative steps to promptly forward that same 
information to state-authorized local first responders following either 
an accident involving a train carrying hazardous material, or an 
incident involving a train carrying hazardous material where a release 
of that hazardous material has occurred or is suspected. As discussed 
in Section III.B. above, the HMR currently requires the use of hard 
copies that may not lend themselves to real-time updating or transfer 
to a person off the train. Existing HMR requirements also lack 
specificity regarding railroads' obligations to proactively and timely 
forwarding of that information to first responders, emergency response 
officials, or law enforcement personnel; rather, the HMR speaks in 
terms of making that information ``accessible'' to train crews (Sec.  
172.602(c)); merely ``available'' to first responders, emergency 
response officials, or law enforcement personnel (Sec.  172.600(c)); in 
the possession of train crews (Sec.  174.26(a)); and submitted to the 
National Response Center ``as soon as practicable but no later than 12 
hours after the occurrence of any incident . . .'' (Sec.  171.15).
    PHMSA expects that implementation of equipment and procedures to 
enable real-time updating of electronic train consist information--as 
well as more explicit requirements for railroads to make that 
information available to emergency response personnel at all

[[Page 41548]]

times or pushed to them following an accident or incident--will be 
practicable for Class I, regional and short line railroads. As a 
general matter, PHMSA submits that those requirements proposed in this 
NPRM should not come as a surprise to any railroad transporting 
hazardous material as the Section 7302 FAST Act mandate (focused by its 
terms on Class I railroads) dates from 2015 and NTSB safety 
recommendation R-07-04 (which contains no such limitation to Class I 
railroads) dates from 2007.\17\ Nor for that matter, are the 
requirements proposed herein on the cutting edge of technology--the 
sort of equipment and procedures likely needed for implementation are 
likely to be incremental adaptations of supply chain management 
software, equipment, and procedures employed in ordinary course by a 
variety of retail providers and logistics companies for tracking goods 
within national and global supply chains (of which the railroads 
themselves are a critical component). Indeed, PHMSA submits that the 
fact that commercial entities can implement cost-effective, real-time 
status tracking procedures and equipment for non-hazardous goods, 
suggests that reasonably prudent railroad operators would be incented 
to employ similar equipment and procedures when transporting materials 
known to be hazardous to public safety and the environment.\18\
---------------------------------------------------------------------------

    \17\ Any requirements would, of course, not be binding on 
railroads until even later in the future--namely, after any final 
rule in this proceeding is published and subsequently becomes 
effective.
    \18\ PHMSA also submits that such incentives would have been 
underscored by the significant environmental consequences, increased 
regulatory oversight, legal liability, and loss of community 
goodwill as a result of the East Palestine, OH derailment.
---------------------------------------------------------------------------

    Nor, for that matter, would railroads' implementation of the 
requirements proposed in this NPRM be against a blank canvas. As 
discussed above, much of the train consist information that PHMSA 
contemplates would be generated, maintained, and provided in electronic 
form is largely already maintained by the railroads pursuant to 
existing HMR requirements in printed, hard copy form; and PHMSA's 
proposed requirement that such information be readily accessible in 
advance of an accident or incident, and forwarded to state-authorized 
local first responders electronically promptly following an accident or 
certain incidents, is similar to existing HMR requirements to make 
certain information available to emergency response personnel and train 
crews. Additionally, as discussed in Section III.C above, a number of 
the Class I railroads (and at least one regional railroad) have already 
demonstrated the feasibility of compiling electronic real-time train 
consist information pursuant to special permits along specific routes; 
those special permits contain requirements for updating and prompt 
relay of that electronic train consist information to emergency 
response personnel in the event of an accident or incident.
    PHMSA also submits that railroads may be able to leverage existing 
software platforms to satisfy this NPRM's proposed electronic train 
consist information maintenance, updating, and forwarding requirements. 
One such platform suggested by stakeholders in this rulemaking 
proceeding is the AskRail[supreg] system developed by the American 
Association of Railroads (AAR), the International Association of Fire 
Chiefs, the Operation Respond Institute, and others.\19\ This 
platform--which is available for use in both desktop and mobile device 
applications--provides authorized emergency response personnel with 
accurate, continuous access in electronic format to most of the train 
consist information contemplated by PHMSA's proposed revisions, 
including the following: the proper shipping name and United Nations ID 
number of the hazardous material; packing group and placarding 
requirements and links to pertinent Emergency Response Guidebook (ERG) 
and safety data sheets; quantity and location of the material on the 
train; car type, DOT specification, and location within the consist 
(i.e., the train); and the emergency response point of contact for the 
railroad. Changes in train consist information are uploaded to the 
AskRail[supreg] system from central processing centers operated by the 
railroads or vendors based on data delivered via any of the following: 
(1) voice reports from train crews, (2) digital communications with 
mobile devices operated by train crews, or (3) digital communications 
with automatic equipment identification (AEI) systems (discused further 
below). To the extent that the AskRail[supreg] system (or any 
alternative platform used in complying with the NPRM's proposed 
requirements) may lack certain information (e.g., origin-destination 
information), functionalities (in particular, the ability for railroads 
to forward information to pertinent emergency response personnel in the 
event of an emergency) or liberal access requirements, PHMSA expects 
that such systems could be designed or modified and railroads could 
proactively engage the response community to address those concerns. 
Similarly, although PHMSA understands that current use of 
AskRail[supreg] system may be largely limited to Class I railroads,\20\ 
it is unaware of any fundamental bar to modification of that system (or 
for that matter, the design or modification of alternative systems) to 
accommodate increased use by regional and short line railroads.\21\ 
PHMSA itself commissioned a pilot program that in 2020 demonstrated the 
technical feasibility of integration of a leading proprietary 
commercial train consist information platform for Class II and III 
railroads (the Wabtec Train Management System) with the AskRail[supreg] 
system.\22\
---------------------------------------------------------------------------

    \19\ See IAFC Comments at 3, 6; AAR, Doc. No. PHMSA-2016-0015-
0007, ``Comments Submitted by AAR re FAST Act Requirements for Real-
Time Train Consist Information by Rail'' at 1, 3, 7 (Apr. 19, 2017) 
(AAR Comments) (recommending use of AskRail[supreg] with respect to 
Class I railroads only).
    \20\ See ASLRRA, Doc. No. PHMSA-2016-0015-0006, ``Docket No. 
PYHMSA-2016-0015 (HM-263): FAST Act Requirements for Real Time Train 
Consist Information by Rail'' 3-4 (Apr. 19, 2017) (ASLRRA Comments).
    \21\ See AAR Comments at 3 (``Currently, AskRail[supreg] has the 
ability to show single car information for all Class II and III 
railroads. If they choose to do so, Class II and III railroads can 
upload their train consist information so that it is available 
through the app. . . .''). The AAR echoed ASLRRA comments that 
extending AskRail[supreg] to Class II and III railroads would 
necessarily involve compliance costs.
    \22\ See PHMSA, Notice ID No. 693JK320P000014, ``Statement of 
Work and Sole Source Justification: Transportation Management 
Consist Information'' (Award Date May 14, 2020). PHMSA is in the 
process of completing the concluding documentation for that project 
and will post those materials to the rulemaking docket as soon as 
practicable.
---------------------------------------------------------------------------

    Some railroads may also opt to reduce the risk of human error by 
employing automatic means of updating the electronic train consist 
information. Some railroads already employ such AEI systems consisting 
of identification tags mounted on each train car (locomotives, end-of-
train units, rail cars, and intermodal containers) and installed, 
trackside AEI readers (i.e., antennas) or portable, handheld AEI 
readers that record and relay switching of cars to the railroad's 
computer system. Installed, trackside AEI readers are placed at key 
locations such as the entrances and exits of rail yards and identify 
cars on a train by the tags on the cars as they pass and automatically 
relay information back to the railroad's computer system to update the 
electronic train consist information. Appropriate placement of 
installed, trackside AEI readers is imperative for ensuring accurate 
train consist information is relayed to the railroad computer systems; 
for example, in the

[[Page 41549]]

2005 Anding, MS collision, a contributing factor in the confusion 
regarding the contents of the southbound train was that the last change 
in the train consist occurred between installed, trackside AEI 
readers.\23\ PHMSA submits, though, that challenges associated with 
identifying proper placement of installed, trackside AEI readers could 
be mitigated somewhat by timely supplementation with one or more of 
portable, handheld AEI readers and voice reports by train crew 
personnel of changes to the hard (printed) copy train consist 
information.
---------------------------------------------------------------------------

    \23\ NTSB Report at 7.
---------------------------------------------------------------------------

G. How has PHMSA engaged stakeholders?

    PHMSA and the Federal Railroad Administration (FRA) sought input 
from stakeholders on the topic of electronic train consist information 
as part of the Rail Safety Advisory Committee (RSAC) Hazardous 
Materials Issues Working Group. The RSAC is a Federal advisory 
committee established by FRA and is governed by the process and 
transparency requirements of the Federal Advisory Committee Act (Pub. 
L. 92-463). The RSAC develops recommendations for certain new 
regulatory standards, through a collaborative process, with all 
segments of the rail community working together to find solutions to 
safety issues. The RSAC in turn has assembled a Hazardous Materials 
Issues Working Group to develop recommendations for changes and updates 
to the regulations for rail transportation of hazardous material.
    In 2016, the Hazardous Materials Issues Working Group (hereafter 
referred to as ``Working Group'') met several times to discuss updates 
to the HMR's rail transportation safety requirements.\24\ On two 
occasions, the Working Group discussed the issue of accurate and real-
time electronic train consist information and whether existing 
technology could achieve the accurate and real-time exchange of train 
consist information. Several stakeholders contended that the 
AskRail[supreg] system could provide the information required by the 
FAST Act. However, representatives from industry asserted that some 
information required by the FAST Act (specifically, origin and 
destination information) may not be relevant in an emergency response 
situation and did not see a need to include these data in 
AskRail[supreg] entries; similarly, industry representatives also 
asserted that there was limited safety value in emergency response 
personnel having real-time electronic train consist information unless 
there had actually been an accident or incident. Some stakeholders also 
expressed concern that the limited access rights currently authorized 
in the AskRail[supreg] system could limit its effectiveness, as the 
current version of the AskRail[supreg] system requires rigorous 
security vetting for would-be users. In the event of an accident or 
incident at a location where authorized local first responders, first 
responders, emergency response officials, and law enforcement had not 
been authorized access to the AskRail[supreg] system in advance, access 
to train consist information may be unavailable to them through 
AskRail[supreg].
---------------------------------------------------------------------------

    \24\ Meeting minutes from HMIWG meetings are available in the 
public docket for this rulemaking.
---------------------------------------------------------------------------

    Additionally, the Working Group discussed the prevalence of 
installed, trackside AEI readers and whether those AEI readers can 
provide accurate, real-time updates to train consist information. That 
discussion highlighted that a challenge in increasing reliance on 
installed, trackside AEI readers to provide accurate, real-time updates 
to electronic train consist information is that their placement across 
the nation's railroad system is not uniform; all participants noted 
that more frequent and uniform placement of AEI readers throughout the 
nation's railroad system would be required before that equipment could 
be relied on to provide accurate, real-time updates to electronic train 
consist information. Although the Working Group discussed a variety of 
potential approaches to address this concern--including supplementation 
by train crew voice reports and a standardized requirement for 
placement of installed, trackside AEI readers within three miles of 
each train yard (i.e., the location where rail car switching operations 
are likely to be completed)--no consensus was reached on any one 
solution or suite of solutions. Further, at least one stakeholder--
American Short Line and Regional Railroad Association (ASLRRA), the 
industry trade group representing regional and short line railroads--
strongly opposed any suggestion of a regulatory requirement for 
installed, trackside AEI readers in implementing FAST Act requirements.
    Following those meetings, PHMSA in 2017 issued an Advance Notice of 
Proposed Rulemaking (ANPRM) soliciting comment on a number of questions 
on implementation of the FAST Act's then-effective mandate to employ 
``fusion centers'' as clearinghouses for receiving from railroads, and 
forwarding to emergency response personnel, electronic real-time train 
consist information.\25\ Although many of the questions posed by PHMSA 
and written comments received from stakeholders were focused on 
implementation mechanics specific to fusion centers, a number of 
entities submitted comments speaking to other implementation dimensions 
of the FAST Act mandate. Specifically, AAR and ASLRRA \26\ repeated 
contentions made in the Working Group discussions regarding the limited 
value of origin-destination information, or 24/7 availability of 
electronic real-time train consist information for emergency response 
efforts. Their respective comments also highlighted potential 
implementation challenges (pertaining to cost, gaps in internet 
connectivity) associated with use of portable, handheld AEI readers, as 
well as the existing gaps in coverage for installed, trackside AEI 
readers. However, the AAR comments ultimately concluded that electronic 
train consist information could be a valuable option for improving 
emergency response efforts, and the AskRail[supreg] system could be 
extended beyond Class I railroads--even as they argued against 
mandating electronic real-time train consist information as a 
substitute or supplement for hard copy documentation and bemoaned the 
potential costs of ensuring regional and short line railroad 
participation in the AskRail[supreg] system. IAFC also submitted 
comments ``strongly'' arguing for forwarding of electronic train 
consist information in the event of an accident or incident, noting 
that the AskRail[supreg] system could--when supplemented by existing 
hard copy documentation requirements--serve that purpose.\27\
---------------------------------------------------------------------------

    \25\ PHMSA, ``Advance Notice of Proposed Rulemaking--Hazardous 
Materials: FAST Act Requirements for Real-Time Train Consist 
Information by Rail,'' 82 FR 6451 (Jan. 19, 2017). The fusion center 
framework was subsequently abandoned in amendments to the FAST Act 
by the Investment Infrastructure and Jobs Act.
    \26\ ASLRRA, ``Docket No. PHMSA-2016-0015 (HM-263): FAST Act 
Requirements for Real-Time Train Consist Information by Rail'' (Apr. 
19, 2017). The ASLRRA comments explicitly endorsed the AAR Comments.
    \27\ IAFC Comments at 6.
---------------------------------------------------------------------------

IV. Section-by-Section Review of Proposed Amendments

Parts 171 and 180

A. Sections 171.8 and 180.503

    Section 171.8 defines key terms used in the HMR. A train consist is 
defined in this section as a ``written record of the contents and 
location of each rail car in a train'' \28\--which PHMSA and

[[Page 41550]]

industry have historically understood to refer to the hard (printed) 
copy documentation maintained and updated by train crews pursuant to 
Sec.  174.26(a). Train crews are also obliged by Sec.  174.26(b) to 
maintain a hard copy of certain ``emergency response information'' 
specified in part 172, subpart G, as well as other shipping paper 
information specified in part 172, subpart C.
---------------------------------------------------------------------------

    \28\ Mirror language appears in the definition of the same term 
at Sec.  180.503.
---------------------------------------------------------------------------

    As discussed in Section II.B above, section 7302 of the FAST Act 
directs (consistent with NTSB safety recommendation R-07-04), that 
PHMSA require railroads to (in real-time) generate, maintain, update, 
and share with emergency response personnel, certain real-time train 
consist information in electronic form. That list of information 
specified in the FAST Act is by-and-large consistent with the suite of 
safety-critical information in each of the current definitions of 
``train consist'' at Sec.  171.8 (which in turn is aligned with the 
information contained with the notice provided to train crews at Sec.  
174.26) and the ``emergency response information'' specified at Sec.  
172.602 (which information must also be immediately available to train 
crews pursuant to Sec.  174.26(b)). PHMSA, therefore, proposes to 
replace the term ``train consist'' with the term ``train consist 
information'' at Sec.  171.8, to mean a record of information (as 
required by Sec.  174.26) of the position and content(s) of hazardous 
materials rail cars of a train. Specifically, the information includes 
contact information for a railroad-designated emergency point of 
contact; the point of origin and destination of hazardous materials 
that is subject to shipping paper requirements on the train; shipping 
paper information required by Sec. Sec.  172.201 to 172.203; and 
emergency response information required by Sec.  172.602(a).\29\ The 
information must be maintained in both hard (printed) copy and 
electronic forms. PHMSA also proposes deletion of the mirror definition 
of ``train consist'' at Sec.  180.503, as that section is the only 
place in which that term appears within part 180.
---------------------------------------------------------------------------

    \29\ PHMSA notes that its proposed definition of ``train consist 
information'' would not encompass hazardous material excepted from 
shipping paper requirements pursuant to Sec.  172.200 because of the 
low risk such transportation generally poses to public safety and 
the environment.
---------------------------------------------------------------------------

    PHMSA notes that this proposed approach ensures that implementation 
of the FAST Act's requirements regarding the content and form of real-
time train consist information will be performed in a manner that 
builds on--rather than disrupts--railroad compliance strategies with 
existing HMR requirements. With respect to the proposed new term 
``train consist information'' the proposed required information largely 
consists of the information that railroads are already obliged by the 
HMR to provide in hard (printed) copy to their train crews and to make 
available to emergency response personnel in connection with hazardous 
materials that are subject to shipping paper requirements. Although the 
FAST Act contemplates the compilation, updating, and transfer to 
emergency personnel of an additional species of information--the origin 
and destination of hazardous material on the train, and the contact 
information for a railroad-designated emergency point of contact--PHMSA 
understands that information is accessible to the railroads. Origin and 
destination information is an important commercial term of service, in 
addition to being a critical piece of information to emergency response 
personnel should gaps (e.g., from inaccuracies, loss, or 
inaccessibility) in other train consist information require quick 
reverse-engineering by emergency response personnel of the hazardous 
material carried by a train involved in an accident or incident. 
Similarly, the railroad itself would designate its emergency point of 
contact. And although PHMSA understands that one potential compliance 
tool (namely, the AskRail[supreg] system) may not currently contain 
information on the origin and destination of hazardous material on a 
train, it expects that (based on the widespread use of sophisticated, 
real-time tracking of goods generally discussed at Section III.F. 
above) that modification of that system (or design or modification of 
an alternative platform) to integrate that functionality is 
practicable. However, the positive experience associated with use of 
electronic train consist information pursuant to special permit 
(discussed at Section III.C. above) is also evidence of the proven 
safety value of electronic, real-time train consist information.
    With respect to a railroad's identification of a designated 
emergency point of contact, PHMSA is less concerned with the specific 
title of that individual than it is in ensuring that (1) the contact 
information provided is complete--to include the name, title, phone 
number and email address, (2) that individual is accessible at all 
times (24/7) the train is in transportation in the event of an accident 
or incident involving rail transportation of hazardous material (and 
then following an incident or accident until emergency response efforts 
have completed), and (3) that individual has immediate access to the 
electronic version of the train consist information for the train 
involved and the contact information for state-authorized local first 
responders required under proposed Sec.  174.28. PHMSA notes that its 
above expectations regarding availability of, and capacity/knowledge of 
the railroad's designated emergency response contact are largely 
consistent with existing HMR emergency response telephone number 
requirements at Sec.  172.604. PHMSA does not expect that person must 
necessarily be an employee of the railroad--provided a third party 
designee is available as contemplated above, and has immediate access 
to the information specified above.\30\ PHMSA notes that this proposed 
requirement (which implements a mandate in Fast Act Section 
7302(a)(1)(A)(iv)) provides additional defense-in-depth should 
emergency response personnel encounter delays in accessing electronic, 
real-time train consist information (pursuant to proposed Sec.  
174.28(a)) themselves, or railroad personnel fail to ``push'' 
electronic, real-time train consist information to state-authorized 
local first responders in a 10-mile radius of the accident or incident 
(pursuant to proposed Sec.  174.28(b)).
---------------------------------------------------------------------------

    \30\ PHMSA further notes that the person designated as the 
railroad's emergency response point of contact may also be 
responsible for ``pushing'' electronic train consist information to 
emergency personnel pursuant promptly during an incident or accident 
proposed Sec.  174.28.
---------------------------------------------------------------------------

    PHMSA notes that its proposed approach of defining ``train consist 
information'' to accommodate both hard (printed) copy and electronic 
forms is essential to providing defense in depth ensuring safety-
critical information is generated, updated, and available to emergency 
response personnel during an accident or incident. As discussed in 
Sections III.E.-F. above, electronic train consist information updated 
in real-time offers significant safety benefits compared to exclusive 
reliance on other sources of information--train crew statements, hard 
copy documentation, placarding and other HMR-mandated hazard 
communication tools--that can perish, be inaccessible, or prove 
unreliable in the critical moments immediately after an accident or 
incident. But, as commenters on the ANPRM noted (see Section III.G 
above), reliance on electronic train consist information alone would 
entail its own safety risks. For that reason, PHMSA understands that 
the regulatory definition of real-time ``train consist information'' 
should envision that information will be maintained in both

[[Page 41551]]

hard (printed) copy and electronic forms. PHMSA acknowledges that this 
approach could entail some version control risks (from conflicts 
between the electronic and hard copy forms of train consist 
information) whose reduction by way of synchronization of hard copy and 
electronic forms could increase administrative and compliance burdens 
on railroads. However, PHMSA expects that those risks (which in any 
event could be controlled by the railroads) would be justified when 
compared against the anticipated safety benefits obtained from (1) 
improved accuracy from being able to verify train consist information 
in hard copy form against electronic records (and vice-versa), and (2) 
enhanced confidence that emergency response personnel will have access 
to accurate, safety-critical train consist information in some form, 
regardless of the circumstances of the accident or incident.

Part 174

B. Section 174.26

    Section 174.26 currently requires railroads to provide each train 
crew a printed, hard copy document (i.e., a record of information) 
reflecting the current position in the train of each rail car 
containing a hazardous material. This provision also requires the train 
crew to update the document to indicate changes in the placement of a 
hazardous material rail car within the train. Additionally, Sec.  
174.26(b) requires that the train crew must have a hard copy of a 
document showing the information required by part 172 (e.g., shipping 
paper information), and emergency response information specified in 
Sec.  172.604. The HMR's emergency response information standards at 
part 172, subpart G also contain requirements that (1) pursuant to 
Sec.  172.600(c), railroads and other carriers make that hard copy 
information immediately available for use at all times hazardous 
material is present--by, for example, making it immediately available 
to a representative of a Federal, state, or local government agency 
responding to an incident involving a hazardous material or conducting 
an investigation that involves a hazardous material; and (2) pursuant 
to Sec.  172.602(c)(1), railroads must maintain hard copy emergency 
response information that is immediately accessible to train crews in 
the event of an accident or incident involving hazardous materials.
    Consistent with the FAST Act section 7302 mandate, PHMSA now 
proposes to supplement those existing requirements by amending Sec.  
174.26 in several ways to ensure that train consist information held in 
hard (printed) copy by train crews for all railroads is itself updated 
in real-time for accuracy based on changes in the hazardous material 
within the train consist, and that train crews ensure that their 
locally-maintained hard copies are at all times synced in real-time 
with electronic versions of the train consist information maintained 
off the train. Those proposed revisions to Sec.  174.26 are as follows: 
(1) replace existing references in Sec.  174.26 to the hard copy 
``document'' memorializing train car position in this provision with 
references to the hard copy versions of the ``train consist 
information'' proposed at Sec.  171.8; (2) specify the information to 
be included as part of the ``train consist information;'' (3) specify 
that a hard (printed) copy version of train consist information must be 
provided to train crews before initial train movement and maintained in 
a conspicuous location of an occupied locomotive during transportation, 
i.e., when the train crew is aboard the locomotive; (4) specify that 
train crews must update that local, hard (printed) copy version to 
reflect changes in the train consist information at intermediate stops 
before the train re-commences movement from those stops; and (5) 
specify that the train crews must also, as soon as practicable, update 
or notify the railroad to update the electronic form of train consist 
information maintained off the train to synchronize with the local hard 
(printed) copy of the train consist information employing (as 
appropriate) electronic devices compliant with the requirements of 49 
CFR part 220. Train crews may use electronic or radio communications to 
notify the railroad to update the electronic train consist 
information.\31\ This will ensure the accuracy of the train consist 
information.
---------------------------------------------------------------------------

    \31\ PHMSA also notes that railroads may comply with this 
provision by installation of trackside AEI readers that update 
electronic train consist information automatically without train 
crew action. However, should a railroad opt for such a system train 
crews would still be responsible for updating the local, hard copy 
version of the train consist information.
---------------------------------------------------------------------------

    PHMSA expects that its proposed regulatory amendments to Sec.  
174.26 are critical for supporting use of electronic, real-time train 
consist information as required by the FAST Act. As discussed at 
greater length in Section III.D. above, the locally maintained and 
updated, hard copy documents in the possession of train crews have 
been--for better or worse--the primary information relied on by 
emergency response personnel in identifying the hazards from historical 
rail accidents and incidents and executing immediate response actions. 
For this reason, PHMSA proposes that hard (printed) copy version of 
electronic train consist information is kept in an occupied locomotive 
such that train crews can immediately access that information and 
provide it to emergency response personnel. But electronic train 
consist information is not itself a cure-all; gapped or intermittent 
internet or phone connectivity in rural, small-town, and tribal areas 
can limit each of (1) the ability of AEIs to capture material changes 
in the train consist information, (2) the ability of train crews to 
report changes in the same by voice, or (3) access to electronic train 
consist information by emergency response personnel.\32\ For these 
reasons, stakeholders in the emergency response community such as IAFC 
have called on retention of the train crew's hard copy requirement to 
backstop the accuracy of electronic train consist information. 
Similarly, the implementation costs and deployment delays associated 
with integration of more widespread use of AEIs to automatically update 
train consist information could be better managed by railroads if the 
HMR would continue to contemplate that train crews themselves could 
``call in'' changes to train consist information as they occur and are 
memorialized on the hard copy version of train consist information. 
PHMSA also notes that its proposed multi-layered approach to ensuring 
train consist information is at all times accurate and consistent 
across hard copy and electronic media will ensure that train crews have 
situational awareness of changes in the train consist information that 
may be lost were all updates made automatically to off-train electronic 
train consist information.
---------------------------------------------------------------------------

    \32\ PHMSA submits that similar concerns caution against 
reliance on mobile devices (e.g., tablets) with locally-saved 
versions of electronic train consist information as a substitute for 
hard (printed) copy versions maintained by train crews pursuant to 
the proposals in this NPRM. However, PHMSA solicits comment on 
whether permitting such substitution in a final rule in this 
proceeding would have both meaningful safety and compliance cost 
advantages compared to hard copy versions.
---------------------------------------------------------------------------

    PHMSA notes that its proposed revisions to Sec.  174.26 would be 
applicable to all railroads--not just the Class I railroads explicitly 
addressed by the section 7302 Fast Act mandate. This approach is 
consistent with the current, broad scope of Sec.  174.26, and as 
explained in Section II.C. above, this approach is also consistent with 
NTSB safety recommendation R-07-04, which was not limited to Class I 
railroads. PHMSA's proposed multi-layered

[[Page 41552]]

approach also reflects the common-sense proposition that hazardous 
material entails the same hazards to public safety and the environment 
whether transported on Class I railroads or regional and short line 
railroads.

C. Section 174.28

    Current HMR requirements do not impose a crystal-clear requirement 
for railroads to ensure that safety-critical train consist information 
is available to emergency response personnel at all times, much less 
placed in the hands of emergency response personnel during an accident 
or incident involving rail transportation of hazardous material. 
Rather, the HMR speaks in terms of making such information 
``accessible'' to train crews (Sec.  172.602(c)), ``available'' to 
first responders, emergency response officials, or law enforcement 
personnel (Sec.  172.600(c)), in the possession of train crews (Sec.  
174.26(a)), and submitted to the National Response Center ``as soon as 
practicable but no later than 12 hours after the occurrence of any 
incident . . .'' (Sec.  171.15).
    Section 7302 of the FAST Act requires PHMSA to issue regulations 
filling that gap by creating an explicit obligation for railroads to 
``provide'' accurate, real-time train consist information in electronic 
form to first responders, emergency response officials, and law 
enforcement personnel involved in a rail accident or incident involving 
transportation of hazardous materials. As discussed in Section III.F. 
above, PHMSA understands that congressional mandate to ``provide'' 
real-time train consist information requires that railroads take 
concrete action both (1) by making that electronic train consist 
information available to emergency response personnel at all times, 
including before an accident or incident occurs; and (2) promptly after 
an accident or incident, ensuring that railroads take action to 
``push'' that same electronic train consist information to state-
authorized local first responders.
    PHMSA consequently proposes a new Sec.  174.28 implementing that 
FAST Act mandate. For the same reasons described in the above 
discussion of the proposed Sec.  174.26, PHMSA proposes that this new 
provision's requirements would apply to all railroads, and not just 
those that were the subject of the FAST Act mandate. Consistent with 
PHMSA's understanding of congressional intent, paragraph (a) of this 
new provision would require all railroads to ensure that authorized 
first responders, emergency response officials, and law enforcement 
personnel along routes in which they transport hazardous material have 
access to up-to-date, electronic real-time train consist information at 
any time--including before an accident or incident occurs. PHMSA notes 
that this element of its new information-sharing requirements can help 
to address concerns regarding the effectiveness of any requirement for 
only post-accident/incident notification arising from (1) internet or 
phone connectivity gaps/intermittency, or (2) delayed or incomplete 
distribution of real-time electronic train consist by railroad 
personnel who may be juggling many tasks following reports of an 
accident or incident involving rail transportation of hazardous 
material. And, as discussed above in Sections III.F.-G., PHMSA 
understands that industry may already have tools (including the 
AskRail[supreg] system) that could be employed for this purpose without 
material modification--or could develop new platforms for this purpose.
    Paragraph (b) within the new Sec.  174.28 would establish an 
obligation for all railroads to supplement the above advance 
information sharing requirement with an explicit obligation for 
railroads to ``push'' electronic train consist information to state-
authorized local first responders in a 10-mile radius of an accident or 
certain incidents promptly following notification to the railroad of 
the accident or incident. This proposed requirement would ensure that 
electronic, real-time train consist information would be forwarded in a 
timely manner to first responders that are either (1) in a community/
jurisdiction that itself would be directly affected by release of 
hazardous materials during an accident or incident, or (2) in a 
neighboring community/jurisdiction that is closest, and therefore best-
positioned to support response efforts in communities directly 
affected. PHMSA understands that this proposed requirement would be 
largely similar to the special permit conditions discussed in Section 
III.C. above. And at its core, this proposed requirement is 
performance-based: in scrutinizing compliance with this requirement, 
PHMSA will therefore focus on (1) before an accident or incident, 
ensuring that railroads have adopted protocols and resources providing 
a high degree of confidence that the ``push'' notifications will 
succeed in promptly placing train consist information in the hands of 
state-authorized local first responders needing it; and (2) after an 
accident or incident occurs, that those notifications did in fact reach 
those personnel in a timely manner.\33\ Similarly, PHMSA will be less 
concerned with the particular tools (e.g., instant message to mobile 
devices, email, fax notification functionalities within the 
AskRail[supreg] system) employed by railroads than on whether railroads 
have ensured that (1) their personnel have, in advance of rail 
transportation of hazardous material, a comprehensive, verified list of 
persons and pertinent contact information for authorized local first 
response personnel along a route, and (2) appropriate protocols and 
training for railroad personnel to ensure that such notifications can 
occur promptly following an accident or incident. As a backstop for 
that performance-based approach, PHMSA has within paragraph (b) 
included a straightforward, ``one-size-fits-all'' minimum 10-mile 
default radius that it believes strikes an appropriate balance between 
each of the safety benefits anticipated from a conservative advance 
notification requirement for the variety of hazardous materials moved 
across the nation's railroads,\34\ and the need for an easily-executed 
baseline notification for railroad personnel amidst the confusion 
following an accident or incident.\35\
---------------------------------------------------------------------------

    \33\ PHMSA expects that railroads will not approach their 
``push'' notification requirement as a check-the-box exercise 
whereby their regulatory obligation is discharged when they send an 
email or leave a voicemail with emergency response personnel. 
Rather, PHMSA expects that they will continue to attempt to contact 
emergency response personnel by a variety of means until they 
receive positive (non-automated) receipt of the notification by 
those personnel.
    \34\ PHMSA notes that the 10-mile notification radius in Sec.  
174.28(b) is a default, minimum value--as circumstances (e.g., the 
physical characteristics of the hazardous material, the quantity and 
form of any release, the physical environment surrounding the 
accident or incident) of the potential hazards warrant, it expects 
that railroads will expand the notification radius accordingly.
    \35\ By way of example, PHMSA understands that the 
AskRail[supreg] system already has a functionality that identifies 
fire department jurisdictions along a rail route that would 
facilitate communication with these entities.
---------------------------------------------------------------------------

    PHMSA also proposes a new paragraph (c) implementing the FAST Act 
mandate direction that the exchange of real-time electronic train 
consist information provided for by PHMSA's proposals must be performed 
in a secure and confidential manner so as to protect proprietary and 
security-sensitive information,\36\ and that regional and short line 
railroads be permitted to enter into memoranda of understanding with 
Class I railroads whose track they use to

[[Page 41553]]

facilitate such transfers of train consist information to emergency 
response personnel \37\ and directed toward information-sharing and 
identification of best practices. Those industry initiatives are 
backstopped by recent guidance issued by the Transportation Security 
Administration (TSA) in October 2022 \38\ directing (most) railroads to 
undertake a series of measures to reduce the risk of cybersecurity 
threats to their operations. PHMSA expects that railroads will be able 
to build on those existing resources to ensure that their execution of 
the requirements proposed in this NPRM are compliant with the new Sec.  
174.28(c). Further, PHMSA notes that nothing proposed in this NPRM 
would restrict railroads from collaborating on a platform (e.g., the 
AskRail[supreg] system) for electronic sharing of accurate and real-
time train consist information with authorized emergency response 
personnel, whether pursuant to a memorandum of understanding or other 
form of agreement.
---------------------------------------------------------------------------

    \36\ PHMSA acknowledges that the precise statutory language 
employed in section 7302(a)(5) FAST Act (``security-sensitive 
information'') differs slightly from the language (``Sensitive 
Security Information'') employed in the Transportation Security 
Administration directive referenced below and in regulation at 49 
CFR parts 15 and 1520.
    \37\ Among the members of the Railroad Information Security 
Committee are the chief information security officers of several 
Class I railroads, Amtrak, Railinc. The Committee is supported by 
each of AAR and ASLRRA.
    \38\ TSA, Sec. Dir. No. 1580/82-2022-01, ``Rail Cybersecurity 
Mitigation Actions and Testing'' (Oct. 2022), sd-1580-82-2022-01.pdf 
(tsa.gov).
---------------------------------------------------------------------------

    PHMSA expects that given all the electronic options available, all 
railroads--even the smallest short line railroads--will be able to 
comply with the performance-based requirements of proposed Sec.  
174.28(a) through (c). By way of a hypothetical example, a short line 
that is only five miles in length and transports one or two hazardous 
materials rail car each month would not have to provide updates to the 
train consist information due to routine switching operations. Further, 
PHMSA envisions that railroad would be able to communicate with the 
local police and fire department(s) servicing its limited route to make 
arrangements for communication of the train consist information for the 
rail car using instant messaging, email, or even fax notification 
before movement of a train carrying hazardous material as well as 
following either an accident involving that train, or incident 
involving release (or suspected release) of hazardous material from 
that train. PHMSA believes that the railroad could satisfy each of 
Sec.  174.28(a) through (c) by such arrangements to make its train 
consist information accessible at all times to emergency response 
personnel, and to ensure that state-authorized local first responders 
are ``pushed'' that information in the event of an accident or 
incident. Although PHMSA notes that the limited scope of the hazardous 
material transportation operations of this hypothetical short line 
railroad results in correspondingly lower compliance obligations under 
proposed Sec.  174.28(a) through (c), not all railroads are similarly 
situated; larger Class I railroads, with more track and more extensive 
hazardous materials transportation operations, may need to adopt 
correspondingly more fulsome compliance protocols in satisfying the 
performance-based requirements at Sec.  174.28(a) through (c).\39\
---------------------------------------------------------------------------

    \39\ PHMSA invites comment, for potential inclusion within a 
final rule in this proceeding, on the appropriateness of 
modification (by way of limitations or exceptions) of the scope of 
application of its proposed Sec.  174.28 requirements. Commenters 
requesting such exceptions should consider providing detailed 
information speaking to material considerations--including the 
potential economic/cost benefits, the potential safety impact of 
such limitations or exceptions predicated in historical shipment and 
incident data, and implementation mechanics--for PHMSA's evaluation 
of any such proposed limitations or exceptions.
---------------------------------------------------------------------------

    Lastly, PHMSA has also included proposed language at paragraph 
(d)--that in the event that railroads employ technology (e.g., the 
AskRail[supreg] system) in complying with the information sharing 
requirements within Sec.  174.28(b)--prohibiting railroads and their 
personnel (or their designees) from withholding or causing to withhold 
electronic train consist information from emergency response personnel 
responding to an incident or accident. PHMSA's proposed regulatory 
language elaborates that railroads employing technology for such 
notifications must ensure that any such emergency response personnel 
have access to that software and the train consist information therein 
throughout the accident or incident--from the initial notification 
pursuant to Sec.  174.28(b) until the conclusion of response and 
investigation efforts. PHMSA submits that this proposed language is 
another essential measure for backstopping the accident/incident 
notification performance standard at paragraph (b).

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    Statutory authority for this rulemaking is provided by the Federal 
hazardous materials transportation law (HMTA; 49 U.S.C. 5101 et seq.). 
As discussed at greater length in Section II.B. above, section 5103(b) 
of the HMTA authorizes the Secretary of Transportation to ``prescribe 
regulations for the safe transportation, including security, of 
hazardous materials in intrastate, interstate, and foreign commerce.'' 
The Secretary has delegated this authority under the HMTA to the PHMSA 
Administrator at 49 CFR 1.97(b).

B. Executive Orders 12866 and 14094, and DOT Regulatory Policies and 
Procedures

    Executive Order 12866 (``Regulatory Planning and Review''),\40\ as 
amended by Executive Order 14094 (``Modernizing Regulatory 
Review''),\41\ requires that agencies ``should assess all costs and 
benefits of available regulatory alternatives, including the 
alternative of not regulating.'' Agencies should consider quantifiable 
measures and qualitative measures of costs and benefits that are 
difficult to quantify. Further, Executive Order 12866 requires that 
``agencies should select those [regulatory] approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety, and other advantages; distributive impacts; and 
equity), unless a statute requires another regulatory approach.'' 
Similarly, DOT Order 2100.6A (``Rulemaking and Guidance Procedures'') 
requires that regulations issued by PHMSA and other DOT Operating 
Administrations should consider an assessment of the potential 
benefits, costs, and other important impacts of the proposed action and 
should quantify (to the extent practicable) the benefits, costs, and 
any significant distributional impacts, including any environmental 
impacts.
---------------------------------------------------------------------------

    \40\ 58 FR 51735 (Oct. 4, 1993).
    \41\ 88 FR 21879 (April 11, 2023).
---------------------------------------------------------------------------

    Executive Order 12866 and DOT Order 2100.6A require that PHMSA 
submit ``significant regulatory actions'' to the Office of Management 
and Budget (OMB) for review. This rulemaking is not considered a 
significant regulatory action under section 3(f) of Executive Order 
12866 (as amended) and, therefore, was not formally reviewed by OMB. 
This rulemaking is also not considered a significant rule under DOT 
Order 2100.6A.
    The following is a brief summary and table of costs, savings, and 
net benefits of some of the amendments proposed in this notice. PHMSA 
has developed a more detailed economic analysis in the PRIA, a copy of 
which has been placed in the docket. PHMSA seeks public comment on its 
proposed revisions to the HMR and the preliminary cost and benefit 
analyses in the PRIA.
    PHMSA has preliminarily determined that the proposed action would 
impact seven Class I railroads, 11 Class II railroads, and 585 Class 
III railroads.

[[Page 41554]]

PHMSA estimates the undiscounted total cost of the rulemaking over the 
10-year analysis period to be about $46.3 million in 2021 dollars, for 
an average annual cost of $4.6 million. The discounted total cost of 
the rulemaking is estimated to be about $32.8 million at a 7 percent 
discount rate. Further, PHMSA notes that the benefits of the proposed 
action are difficult to quantify as it is reliant on the degree to 
which having real-time access to train consist information improves 
emergency responders' ability to respond to rail incidents. Based on 
lessons learned from major hazardous material incidents on rail, PHMSA 
anticipates the proposed action would improve emergency responders' 
ability to promptly identify all the hazardous materials cars and 
hazardous material contained therein that are involved in an accident 
or investigation and to timely assess the threat from a hazardous 
materials release. This would likely reduce injuries and fatalities, 
material loss and response costs, and delays caused by closures. PHMSA 
estimated the annual damage cost of hazardous material incidents on 
rail that could be impacted by the proposed action to be about $15.6 
million in 2021 dollars. Therefore, the proposed rule would have to 
reduce damage costs by about 30 percent for the monetized benefits of 
the proposed rule to equal costs. The following table summarizes the 
quantified annual costs and qualified benefits of the major provisions 
of this rulemaking.

----------------------------------------------------------------------------------------------------------------
                                             Average annual cost
     Proposed requirement     ------------------------------------------------      Benefit         Breakeven
                                Undiscounted         3%              7%
----------------------------------------------------------------------------------------------------------------
Amending the definition of         $3,406,052      $2,905,432      $2,392,269  By improving      Cost-effective
 train consist information.                                                     emergency         if the
                                                                                responders'       proposed
                                                                                ability to        requirements
                                                                                promptly          reduce the
                                                                                identify all      consequences
                                                                                the hazardous     of hazardous
                                                                                materials         material
                                                                                involved in an    incidents by
                                                                                accident and      rail by about
                                                                                assess the        30 percent.
                                                                                threat from a
                                                                                hazardous
                                                                                materials
                                                                                release, the
                                                                                proposed
                                                                                provisions will
                                                                                reduce injuries
                                                                                and fatalities,
                                                                                material loss
                                                                                and response
                                                                                costs, and
                                                                                delays caused
                                                                                by closures.
Amending notice to train crew       1,051,753         897,167         738,708
New information sharing               169,447         162,157         153,722
 requirement.
                              ----------------------------------------------------------------------------------
    Total....................       4,627,252       3,964,756       3,284,699
----------------------------------------------------------------------------------------------------------------

    As illustrated by the Norfolk Southern train derailment at East 
Palestine, OH, such incidents can have substantial consequences that 
are not captured by this regulatory impact analysis, including the 
long-term environmental concerns and health risks (both physiological 
and psychological) for residents. Research also shows that such 
incidents can have significant impacts on property values, which, in 
turn, can slow down economic activity in the area.\42\ Additionally, of 
the 140,000 total route-miles of track in the United States, 104,000 
miles are in rural and tribal areas, suggesting that train related 
hazardous material incidents mainly happen in areas populated by 
disadvantaged communities.\43\ Time is of the essence during the 
initial stages of emergency response to a hazardous materials incident. 
Reducing the lag in provision of critical hazardous material 
identification and response information during rail hazardous materials 
incidents will provide environmental and safety benefits, although 
these benefits are difficult to quantify. PHMSA acknowledges and 
considers these unquantified benefits in selecting the provisions of 
the proposed rulemaking.
---------------------------------------------------------------------------

    \42\ For example, a study that examines the impact of 33 
derailments involving hazardous material on property values in New 
York State between 2004 and 2013 found that, on average, a 
derailment depreciates housing values within a one-mile radius by 
5%-8% (Chuan Tang et al. (2020). Rail accidents and property values 
in the era of unconventional energy production. Journal of Urban 
Economics, 120, https://doi.org/10.1016/j.jue.2020.103295.
    \43\ Improving Rail in Rural Communities [verbar] FRA (dot.gov).
---------------------------------------------------------------------------

C. Executive Order 13132

    PHMSA analyzed this rulemaking in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism'') \44\ 
and the presidential memorandum (``Preemption'').\45\ Executive Order 
13132 requires agencies to assure meaningful and timely input by state 
and local officials in the development of regulatory policies that may 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.''
---------------------------------------------------------------------------

    \44\ 64 FR 43255 (Aug. 10, 1999).
    \45\ 74 FR 24693 (May 22, 2009).
---------------------------------------------------------------------------

    The Federal hazardous materials transportation law contains an 
express preemption provision at 49 U.S.C. 5125(a) in the event 
compliance with a state, local, or Indian tribe requirement is not 
possible or presents an obstacle to compliance. Additionally, the 
Federal hazardous materials transportation law contains an express 
preemption provision at 49 U.S.C.5125(b) that preempts state, local, 
and Indian tribal requirements on the following covered subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials; and
    (5) The design, manufacture, fabrication, inspection, marking, 
maintenance, recondition, repair, or testing of a packaging or 
container represented, marked, certified, or sold as qualified for use 
in transporting hazardous materials in commerce.
    This proposed rule addresses covered subject items (3) and (4) 
above and is expected to preempt state, local, and Indian tribe 
requirements not meeting the ``substantively the same'' standard. In 
this instance, the preemptive effect of the proposed rule is necessary 
to achieve the objectives of the FAST Act and the hazardous materials 
transportation law under which the proposed rule is promulgated. The 
proposed rule is not expected to have substantial direct effects on 
states, the

[[Page 41555]]

relationship between the national government and states, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, PHMSA has preliminarily concluded that the 
consultation and funding requirements of Executive Order 13132 do not 
apply.

D. Executive Order 13175

    PHMSA analyzed this propose rulemaking in accordance with the 
principles and criteria contained in Executive Order 13175 
(``Consultation and Coordination with Indian Tribal Governments'') \46\ 
and DOT Order 5301.1 (``Department of Transportation Policies, 
Programs, and Procedures Affecting American Indians, Alaska Natives, 
and Tribes''). Executive Order 13175 and DOT Order 5301.1 require DOT 
agencies to assure meaningful and timely input from Indian tribal 
government representatives in the development of rules that 
significantly or uniquely affect tribal communities by imposing 
``substantial direct compliance costs'' or ``substantial direct 
effects'' on such communities or the relationship and distribution of 
power between the Federal Government and Native American tribes.
---------------------------------------------------------------------------

    \46\ 65 FR 67249 (Nov. 9, 2000).
---------------------------------------------------------------------------

    PHMSA assessed the impact of this proposed action and has 
preliminarily determined that it will not significantly or uniquely 
affect tribal communities or Native American tribal governments. The 
changes to the rail transportation requirements in the HMR as part of 
this proposed action have national scope, and also are limited to 
establishing baseline requirements for the compilation, updating, and 
electronic exchange of hazardous materials information between 
railroads and first responders, emergency response officials and law 
enforcement personnel; PHMSA, therefore, does not expect this action to 
significantly or uniquely affect tribal communities, nor impose 
substantial compliance costs on Native American tribal governments or 
mandate tribal action. This rulemaking would not adversely affect the 
safe transportation of hazardous materials therefore, it would not 
cause disproportionately high adverse risks for tribal communities. For 
these reasons, the funding and consultation requirements of Executive 
Order 13175 and DOT Order 5301.1 to apply. However, PHMSA solicits 
comment from Native American tribal governments and communities on 
potential impacts of the proposed rulemaking.

E. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
agencies to review regulations to assess their impact on small 
entities, unless the agency head certifies that a rulemaking will not 
have a significant economic impact on a substantial number of small 
entities including small businesses, not-for-profit organizations that 
are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations under 50,000. 
The Regulatory Flexibility Act directs agencies to establish exceptions 
and differing compliance standards for small businesses, where possible 
to do so and still meet the objectives of applicable regulatory 
statutes. Executive Order 13272 (``Proper Consideration of Small 
Entities in Agency Rulemaking'') requires agencies to establish 
procedures and policies to promote compliance with the Regulatory 
Flexibility Act and to ``thoroughly review draft rules to assess and 
take appropriate account of the potential impact'' of the rules on 
small businesses, governmental jurisdictions, and small organizations. 
The DOT posts its implementing guidance on a dedicated web page.\47\
---------------------------------------------------------------------------

    \47\ DOT, ``Rulemaking Requirements Related to Small Entities,'' 
https://www.transportation.gov/regulations/rulemaking-requirements-concerning-small-entities (last accessed June 17, 2021).
---------------------------------------------------------------------------

    This proposed rule has been developed in accordance with Executive 
Order 13272 and with DOT's procedures and policies to promote 
compliance with the Regulatory Flexibility Act to ensure that potential 
impacts of draft rules on small entities are properly considered. This 
proposed action promotes the exchange of information about hazardous 
material on a train between railroads and emergency response personal 
and law enforcement for the benefit of response to or investigation of 
accidents or emergencies involving a train transporting hazardous 
material. The proposed action applies to railroads, some of which are 
small entities, such as regional and short line railroads. As discussed 
at length in the PRIA--posted in the rulemaking docket--the proposed 
action will not, if adopted as proposed, have a significant economic 
impact on a substantial number of small entities.
    PHMSA determined that all 585 Class III railroads (100%) and 10 
Class II railroads (91%) can be considered small entities. None of the 
Class I railroads can be considered small entities.

----------------------------------------------------------------------------------------------------------------
                                                          >1500 employees            1,500 or fewer employees
            Railroad                 Affected    ---------------------------------------------------------------
                                     entities          Count          Percent          Count          Percent
----------------------------------------------------------------------------------------------------------------
Class I.........................               7               7             100               0               0
Class II........................              11               1               9              10              91
Class III.......................             585               0               0             585             100
                                 -------------------------------------------------------------------------------
    Total.......................             603               8  ..............             595  ..............
----------------------------------------------------------------------------------------------------------------

    According to ASLRRA's report, in 2017, the average annual revenues 
of a Class II and Class III railroads were approximately $79 million 
and $4.75 million, respectively. PHMSA converted these into 2021 
dollars by using a deflation index of 1.1202, resulting in an average 
annual revenue of $88.5 million and $5.32 million for Class II and 
Class III, respectively.\31\ Based on estimates, for Class II and III 
railroads, the per railroad undiscounted average annual cost of the 
proposed rule is $5,473 (2021$).

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Amending the definition of train    Amending notice to train crew        New information sharing       Proposed rule
                                          consist information       ----------------------------------            requirement           ----------------
     Class II & III railroads     ----------------------------------                                  ----------------------------------
                                                    Annual cost per    Annual cost    Annual cost per                   Annual cost per  Annual cost per
                                     Annual cost        railroad                          railroad       Annual cost        railroad         railroad
--------------------------------------------------------------------------------------------------------------------------------------------------------
596..............................      $3,104,452           $5,209          $98,042             $164         $109,903             $185           $5,558
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 41556]]

    PHMSA estimates the average annual cost of the proposed rule is 
less than 0.1% of the average annual revenue of Class II and Class III 
railroads. However, for the 41 Class III railroads with five or fewer 
employees, PHMSA acknowledges that the cost of the rulemaking could be 
substantially higher than the estimated per railroad average cost of 
$5,558. Based on estimates in the PRIA, for these railroads, the year 
one cost of the proposed action is estimated to be about $18,000 per 
railroad. Accordingly, PHMSA estimated that the annual revenue of a 
railroad has to be about $1.8 million or less for this proposed action 
to have an economic impact of greater than 1%. However, this estimated 
annual revenue threshold is significantly below the average annual 
revenue of Class III railroads ($5.32 million). PHMSA seeks comment on 
whether the average cost figures presented in this analysis represent 
an accurate accounting of the distribution of costs across Class III 
railroads.
    Based on this analysis, PHMSA has preliminarily determined that the 
proposed action will not have a significant economic impact on a 
substantial number of small entities.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501 et 
seq.), no person is required to respond to an information collection 
unless it has been approved by the Office of Management and Budget 
(OMB) and displays a valid OMB control number. Section 1320.8(d) of 5 
CFR requires PHMSA to provide interested members of the public and 
affected agencies an opportunity to comment on information and 
recordkeeping requests. This proposed action may result in an increase 
in annual burden and costs for information collection due to additional 
railroad information requirements for hazardous materials transported 
by rail.
    PHMSA has analyzed this NPRM in accordance with PRA which requires 
Federal agencies to minimize paperwork burden imposed on the American 
public by ensuring maximum utility and quality of Federal information, 
ensuring the use of information technology to improve government 
performance and improving the Federal Government's accountability for 
managing information collection activities. Under the PRA, no person is 
required to respond to any information collection unless it has been 
approved by OMB and displays a valid OMB control number.
    In this NPRM, PHMSA is proposing to add two new information 
collections to OMB Control No. 2137-0559, ``Rail Carrier and Tank Car 
Tanks Requirements, Rail Tank Car Tanks--Transportation of Hazardous 
Materials by Rail.'' PHMSA estimates that this NPRM will result in an 
overall increase in burden attributed to the proposed requirement for 
additional emergency response information on hazardous materials by 
rail. The revisions proposed in this NPRM will require railroads to 
make certain train consist information available electronically--see 
the ``Section IV. Section-by-section Review of Proposed Amendments 
discussion of Section 174.28.'' Much of this required information is 
already required of and generally applied to shippers who must then 
provide the information to carriers (e.g., rail). Shippers are also 
generally required to supply emergency response information with the 
hazardous material shipping paper information. For purposes of 
facilitating emergency response measures, the additional information 
collection proposed to be applied to railroads by this rule is expanded 
hazardous material train consist information that includes the origin 
and destination of hazardous materials on a train and the specific 
identification of hazardous material location in rail cars. 
Additionally, PHMSA is requiring railroads to provide advance notice to 
state-authorized local responders when an accident or incident 
involving hazardous material occurs.
Hazardous Materials Train Consist Information
    As a result of the changes proposed in this NPRM, PHMSA estimates 
that 603 railroads (Class I, II, and III) will produce hazardous 
material train consist information 76,227 times annually. PHMSA 
estimates the additional burden for this information collection will 
take 4.8 minutes per response resulting in 6,098 additional burden 
hours for the railroads (Class I, II, and III) (76,227 responses x 4.8 
minutes). It is estimated that a railroad employee making $51.73 per 
hour will perform this function resulting in an increased salary cost 
of $297,813 (6,098 burden hours x $51.35 per hour). Additionally, PHMSA 
estimates railroads will need to make an initial investment in building 
a system for electronic sharing of train consist information. PHMSA 
conservatively assumes that the initial cost of building out a system 
will result in $500,000 in burden cost associated with this information 
collection.
Notification of Hazardous Materials Accidents or Incidents
    Additionally, PHMSA estimates that 603 railroads (Class I, II, and 
III) will need to notify local authorities of hazardous materials 
incidents 518.5 times annually. PHMSA understands that not all Class II 
and III railroads transport hazardous materials yet is estimating using 
a conservative assumption that all railroads may at some point 
transport hazardous material. PHMSA estimates the additional burden 
proposed in this NPRM will take 15 minutes resulting in 129 burden 
hours (518.5 hazardous materials incidents x 15 minutes per 
notification). It is estimated that a railroad employee making $50.66 
per hour will perform this function resulting in an increased salary 
cost of $6,567 (129 burden hours x $50.66 per hour). There are no 
additional burden costs associated with this information collection.
    A summary of the total increases for information collections 
proposed under this OMB control number are as follows:
    Annual Increase in Number of Respondents: 603.
    Annual Increase in Number of Responses: 76,846.
    Annual Increase in Burden Hours: 6,228.
    Annual Increase in Salary Cost: $319,689.
    Annual Increase in Burden Costs: $500,000.
    PHMSA requests comment on the information collection and 
recordkeeping burdens associated with developing, implementing, and 
maintaining the proposed requirements in this NPRM. Address written 
comments to the DOT Docket Operations Office identified in the 
ADDRESSES section of this rulemaking. PHMSA must receive comments 
regarding information collection burdens prior to the close of the 
comment period identified in the DATES section of this rulemaking. 
Requests for a copy of this information collection should be directed 
to Steven Andrews, Standards and Rulemaking Division (PHH-10), Pipeline 
and Hazardous Materials Safety Administration, 1200 New Jersey Avenue 
SE, Washington, DC, 20590-0001. If these proposed requirements are 
adopted in a final rule, PHMSA will submit the revised information 
collection and recordkeeping requirements to OMB for approval.

G. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501 et 
seq.)

[[Page 41557]]

requires agencies to assess the effects of Federal regulatory actions 
on state, local, and tribal governments, and the private sector. For 
any proposed or final rule that includes a Federal mandate that may 
result in the expenditure by state, local, and tribal governments, or 
by the private sector of $100 million or more in 1996 dollars in any 
given year, the agency must prepare, amongst other things, a written 
statement that qualitatively and quantitatively assesses the costs and 
benefits of the Federal mandate.
    As explained in the PRIA, this rulemaking is not expected to impose 
unfunded mandates under the UMRA. Nor is it expected to result in costs 
of $100 million or more in 1996 dollars to either state, local, or 
tribal governments, or to the private sector, in any one year. A copy 
of the PRIA is available for review in the rulemaking docket.

H. Draft Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321 et seq.),\48\ requires Federal agencies to consider the 
environmental impacts of their actions in the decision-making process. 
NEPA requires Federal agencies to assess the environmental effects of 
proposed Federal actions prior to making decisions and involve the 
public in the decision-making process. Agencies must prepare an 
environmental assessment (EA) for a proposed action for which a 
categorical exclusion is not applicable and is either unlikely to have 
significant effects or when significance of the action is unknown. In 
accordance with these requirements, an EA must briefly discuss: (1) the 
need for the action; (2) the alternatives considered; (3) the 
environmental impacts of the proposed action and alternatives; and (4) 
a listing of the agencies and persons consulted. If, after reviewing 
public comments in response to the draft EA (DEA), an agency determines 
that a proposed rule will not have a significant impact on the human or 
natural environment, it can conclude the NEPA analysis with a finding 
of no significant impact (FONSI).
---------------------------------------------------------------------------

    \48\ Also at 40 CFR parts 1501 through 1508.
---------------------------------------------------------------------------

1. Need for the Action
    The FAST Act at section 7302 instructs the Secretary to issue 
regulations that require a Class I railroad transporting hazardous 
material to create accurate, real-time, and electronic train consist 
information that must be provided ``to State and local first 
responders, emergency response officials, and law enforcement personnel 
that are involved in the response to or investigation of an accident, 
incident, or public health or safety emergency involving the rail 
transportation of hazardous materials.'' Further, the NTSB has issued 
safety recommendation R-07-04 recommending PHMSA and FRA collaborate to 
require all railroads to immediately provide to emergency response 
personnel accurate, real-time information regarding the identity and 
location of all hazardous materials on a train.
2. Alternatives Considered
    No Action Alternative:
    The no action alternative would not make any changes to the current 
regulatory requirements that railroads must provide train crews with 
hard copy train consist information about hazardous material and its 
location on the train. There would be no additional requirements for 
railroads to generate, maintain, and provide in electronic form, 
information regarding hazardous material to first responders, emergency 
response officials, and law enforcement personnel or to forward this 
information to emergency response personnel in accident or incident 
situations.
    Proposed Action: All Railroads Alternative:
    Under this alternative, all railroads that transport hazardous 
materials would be required to create accurate train consist 
information about the hazardous material and its location on a train in 
both a hard (printed) copy maintained by train crews and an electronic 
copy maintained by the railroad off-of-the-train and providing it in 
real-time through electronic communications to emergency response 
personnel. Railroads would also be required to provide a ``push'' 
notice of the train consist information to emergency response personnel 
in (at least) a 10-mile radius of an accident or incident promptly 
following notification to the railroad of the accident or incident. 
This alternative aims to enhance transportation safety by transitioning 
away from exclusive reliance on train crews and hard copy documents for 
the exchange of information about hazardous material and their location 
on a train.
    Class I Railroads Alternative:
    Under this alternative, only Class I railroads, as defined by the 
STB, that transport hazardous materials would be subject to generating 
accurate train consist information about the hazardous material and its 
location on a train (in both electronic and hard copy forms) and 
providing it in real-time through electronic communication, to 
emergency response personnel. Also, only Class I railroads would be 
required to provide a ``push'' notice of the train consist information 
to emergency response personnel in a 10-mile radius of an accident or 
incident promptly following notification to the railroad of the 
accident or incident. This alternative aims to enhance transportation 
safety by transitioning away from exclusive reliance on train crews and 
hard copy documents for the exchange of information about hazardous 
materials and their locations on a train by adhering more closely to 
the FAST Act mandate to implement measures for Class I railroads.
3. Environmental Impacts of Proposed Action and Alternatives
    No Action Alternative:
    The PHMSA HMR and the FRA rail regulations work in tandem to keep 
hazardous material in packages and rail cars on the tracks during 
transportation. In the unlikely event of an incident or accident, train 
crews carry and maintain documentation, in addition to hazard 
communication displayed on packages and rail cars, that emergency 
responders and law enforcement can use to assess the potential for, or 
threat from, a hazardous materials release and thus, appropriately 
respond. The intent of the FAST Act mandate and NTSB safety 
recommendation to provide real-time electronic means of train consist 
information exchange is to provide greater assurances that emergency 
responders and law enforcement have the right information about the 
hazardous material on a train without delay. The presumption being that 
supplementing the existing hard copy train consist information 
requirements by providing the information electronically, for instance, 
provides better assurance that such information is accurate and in 
real-time, especially in the aftermath of a derailment, and that real-
time information will aid in response decision-making, leading to safer 
outcomes for the public and the environment. The no action alternative 
would not require any updates to the existing requirements or 
regulation of hazardous materials transportation and incident response 
time.
    Proposed Action: All Railroads Alternative:
    This proposed action would supplement existing requirements for 
hard copies of train consist information maintained by train crews by 
requiring railroads to also create and provide accurate and real-time 
train consist information to emergency response personnel. All 
railroads would be required to use electronic

[[Page 41558]]

communication to supplement their hard copy documentation and 
communications requirements. By implementing the proposed action to all 
railroads, the entirety of the nation's rail network would be covered. 
Efficiencies will be introduced by requiring accurate and real-time 
information exchange with the goal of improved safety and enhanced 
response to investigations of an accident or emergency involving 
hazardous material transported by rail. The intent of the proposed 
action is to foster and promote the general welfare of the human and 
natural environment by providing enhanced emergency response and 
investigative efforts for safer transport of hazardous materials. The 
proposed action builds on the current HMR requirements for hazardous 
material information sharing with the goal of improved rail 
transportation safety by enhancing emergency responder and law 
enforcement ability to assess, without delay, the potential for or 
extent of a hazardous material release and take appropriate response 
measures. These enhanced safety measures and requirements are geared 
toward addressing environmental effects including avoidance of human 
exposure and water contamination. Regulations that require the 
increased use of electronic systems for transmission of train consist 
information not only promote enhanced emergency response and 
investigative efforts for accidents or incidents but also respond to 
the FAST Act mandate and NTSB safety recommendation R-07-04.
    Class I Railroads Only Alternative:
    This alternative would require only Class I railroads to supplement 
existing hard copy train consist information documentation requirements 
by creating and providing accurate, real-time train, electronic train 
consist information to emergency response personnel and also providing 
a ``push'' notice of the train consist information to emergency 
response personnel in a 10-mile radius of an accident or incident 
promptly following notification to the railroad of the accident or 
incident. Although, the entirety of the nation's rail network would not 
be covered, applying this alternative would still affect about 68% of 
the nation's rail network and most of the hazardous materials freight 
traffic. Class I railroads operate on about 90,000 miles of the 
140,000-mile U.S. freight rail network. This modified version of the 
proposal would still provide safety and environmental benefits by 
enhancing emergency responder and law enforcement ability to assess 
without delay the potential for a hazardous material release and take 
appropriate response measures. Similar to the proposed action to all 
railroads, this approach also builds on the HMR provisions for 
hazardous material information sharing, just to a narrower extent, 
applicable to only Class I railroads. The enhanced safety measures and 
requirements are geared toward addressing environmental effects 
including avoidance of human exposure and water contamination.
4. Environmental Justice
    Executive Order 12898 (``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations''),\49\ 
directs Federal agencies to take appropriate and necessary steps to 
identify and address disproportionately high and adverse effects of 
Federal actions on the health or environment of minority and low-income 
populations to the greatest extent practicable and permitted by law. 
DOT Order 5610.2C (``U.S. Department of Transportation Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations'') establishes departmental procedures for effectuating 
Executive Order 12898 promoting the principles of environmental justice 
through full consideration of environmental justice principles 
throughout planning and decision-making processes in the development of 
programs, policies, and activities--including PHMSA rulemaking.
---------------------------------------------------------------------------

    \49\ 59 FR 7629 (Feb. 11, 1994).
---------------------------------------------------------------------------

    Through the NEPA process, PHMSA has evaluated this NPRM under DOT 
Order 5610.2C and Executive Order 12898 and has preliminarily 
determined it will not cause disproportionately high and adverse human 
health and environmental effects on minority and low-income 
populations. The proposed rule will not result in any adverse 
environmental or health impact on minority populations and low-income 
populations. Rather, PHMSA anticipates the proposed action to have a 
positive impact on the safe transportation of hazardous materials by 
rail by requiring all trains transporting hazardous materials to have 
real-time information available to emergency responders in the event of 
an accident or incident--particularly rail lines in urban or rural 
areas posing higher risks due to their proximity to minority and low-
income communities in the vicinity of those rail lines. To the extent 
that the nation's rail network passes through geographic locations of 
minority populations, low-income populations, or other underserved and 
other disadvantaged communities, and in the unfortunate circumstance of 
a rail accident or emergency involving hazardous materials, the 
proposed action will have a positive impact by aiding emergency 
response personnel and law enforcement in more quickly assessing 
potential threats from the hazardous materials and taking appropriate 
measures to protect public health and the environment. Lastly, as 
explained in this DEA above, the proposed action will likely reduce 
environmental risks posed by hazardous material rail incidents.
5. Agencies and Persons Consulted
    PHMSA published this notice in consultation with FRA. In addition, 
PHMSA and FRA worked with stakeholders through several RSAC Hazardous 
Material Issues Working Group meetings. The U.S. Department of Homeland 
Security, NTSB, and a variety of rail industry stakeholders, such as 
the AAR and the IIAFC participated in these meetings. Ultimately, some 
participants in the Working Group concluded that electronic train 
consist information could be a valuable option for improving emergency 
response efforts, and the AskRail[supreg] system could be extended 
beyond Class I railroads. PHMSA also issued an ANPRM soliciting 
stakeholder input on the contents of this rulemaking. Please see 
Section III. G above for more details.
6. Draft Finding of No Significant Impact
    As discussed in the DEA above and given that the purpose of the 
rule is to address safety and environmental impacts of potential future 
hazardous materials rail transportation incidents, PHMSA proposes to 
find that this proposed action will have no significant impact on the 
environment. This is based on the analysis presented in the ANPRM, 
NPRM, supporting documents, and this DEA. PHMSA welcomes public 
comments about the safety and environmental risks or benefits that 
could result from this proposed rule as well as possible alternatives 
and their environmental impacts.

I. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform any amendments to the HMR considered in this 
rulemaking. DOT posts these comments, without edit, including any 
personal information the commenter provides, to www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 FDMS). DOT's 
complete Privacy Act Statement is available in the Federal

[[Page 41559]]

Register,\50\ or on DOT's website at https://www.dot.gov/privacy.
---------------------------------------------------------------------------

    \50\ 65 FR 19477 (Apr. 11, 2000).
---------------------------------------------------------------------------

J. Executive Order 13609 and International Trade Analysis

    Executive Order 13609 (``Promoting International Regulatory 
Cooperation'') \51\ requires that agencies consider whether the impacts 
associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American business to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory cooperation 
can identify approaches that are at least as protective as those that 
are or would be adopted in the absence of such cooperation. 
International regulatory cooperation can also reduce, eliminate, or 
prevent unnecessary differences in regulatory requirements.
---------------------------------------------------------------------------

    \51\ 77 FR 26413 (May 4, 2012).
---------------------------------------------------------------------------

    Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 103-465) (as 
amended, the Trade Agreements Act), prohibits agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to the Trade Agreements Act, the establishment of 
standards is not considered an unnecessary obstacle to the foreign 
commerce of the United States, so long as the standards have a 
legitimate domestic objective, such as providing for safety, and do not 
operate to exclude imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
to protect the safety of the American public, and it has assessed the 
effects of the proposed action to ensure that it does not cause 
unnecessary obstacles to foreign trade. Accordingly, this rulemaking is 
consistent with Executive Order 13609 and PHMSA's obligations under the 
Trade Agreements Act.

K. National Technology Transfer and Advancement Act

    The National Technology Transfer and Advancement Act (NTTAA) of 
1995 (15 U.S.C. 272 note) directs Federal agencies to use voluntary 
consensus standards in their regulatory activities unless doing so 
would be inconsistent with applicable law or otherwise impractical. 
Voluntary consensus standards are technical standards--e.g., 
specification of materials, test methods, or performance requirements--
that are developed or adopted by voluntary consensus standard bodies. 
This rulemaking does not propose use of voluntary consensus standards, 
and therefore the NTTAA does not apply.

L. Cybersecurity and Executive Order 14082

    Executive Order 14082 (``Improving the Nation's Cybersecurity'') 
\52\ expressed the Administration policy that ``the prevention, 
detection, assessment, and remediation of cyber incidents is a top 
priority and essential to national and economic security.'' Executive 
Order 14082 directed the Federal Government to improve its efforts to 
identify, deter, and respond to ``persistent and increasingly 
sophisticated malicious cyber campaigns.'' Consistent with Executive 
Order 14082, TSA in October 2022 issued a Security Directive to reduce 
the risk that cybersecurity threats pose to critical railroad 
operations and facilities through implementation of layered 
cybersecurity measures that provide defense in depth.\53\
---------------------------------------------------------------------------

    \52\ 86 FR 26633 (May 17, 2021).
    \53\ TSA, Security Directive No. 1580/82-2022-01, ``Rail 
Cybersecurity Mitigation Actions and Testing'' (Oct. 24, 2022).
---------------------------------------------------------------------------

    PHMSA has considered the effects of the NPRM and has preliminarily 
determined that its proposed regulatory amendments would not materially 
affect the cybersecurity risk profile for rail transportation of 
hazardous materials. PHMSA acknowledges that the proposed requirements 
within this NPRM pertaining to the sharing of electronic train consist 
information (some of which may be proprietary or security-sensitive 
information) could have some effect on the cybersecurity risk profile 
of rail transportation of hazardous material. However, PHMSA notes that 
it has proposed in this NPRM (consistent with a mandate in section 
7302(a)(5) of the FAST Act) explicit language at Sec.  174.28(c) that 
would require such information sharing be performed in a manner that is 
protective of security and confidentiality interests. PHMSA also notes, 
that, as explained in the discussion of Sec.  174.28 within Sections 
III.F-G. above, railroads that would be affected by this NPRM's 
proposals may be participants in existing industry cybersecurity risk-
mitigation initiatives, or subject to recent TSA guidance for 
mitigation of cybersecurity risks associated with rail transportation 
of hazardous material. PHMSA understands these considerations address 
any potential alteration in cybersecurity risks profiles due to this 
NPRM's proposed information-sharing requirements.
    PHMSA seeks comment on any other potential cybersecurity impacts of 
the proposed amendments beyond the considerations discussed here.

M. Severability

    The purpose of this proposed rule is to operate holistically in 
addressing different issues related to safety and environmental hazards 
associated with the rail transportation of hazardous materials. 
However, PHMSA recognizes that certain provisions focus on unique 
topics. Therefore, PHMSA preliminarily finds that the various 
provisions of this proposed rule are severable and able to function 
independently if severed from each other; thus, in the event a court 
were to invalidate one or more of this proposed rule's unique 
provisions, the remaining provisions should stand and continue in 
effect. PHMSA seeks comment on which portions of this rulemaking should 
or should not be severable.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Reporting and recordkeeping requirements.

49 CFR Part 174

    Emergency preparedness, Hazardous materials transportation, 
Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 180

    Hazardous materials transportation, Motor carriers, Motor vehicle 
safety, Packaging and containers, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, PHMSA proposes to amend 49 CFR 
chapter I as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 
4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 701 (28 
U.S.C. 2461 note); 49 CFR 1.81 and 1.97.

0
2. In Sec.  171.8, remove the definition for ``Train consist'' and add 
the definition for ``Train consist information'' in alphabetical order 
to read as follows:

[[Page 41560]]

Sec.  171.8  Definitions.

* * * * *
    Train consist information means a hard (printed) copy or electronic 
record of the position and contents of each hazardous material rail car 
where the record includes the information required by Sec.  174.26 of 
this subchapter.
* * * * *

PART 174--CARRIAGE BY RAIL

0
3. The authority citation for part 174 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and 
1.97.

0
4. Revise Sec.  174.26 to read as follows:


Sec.  174.26  Notice to train crews.

    (a) Prior to movement of a train, a railroad must provide the train 
crew with train consist information as defined in Sec.  171.8 of this 
subchapter in hard copy (printed) form that has: a railroad-designated 
emergency point of contact (name, title, phone number and email 
address) in a conspicuous location; and the position in the train and 
contents of each hazardous material rail car by reporting mark and 
number, to include the:
    (1) Point of origin and destination of hazardous materials subject 
to shipping paper requirements on the train;
    (2) Shipping paper information required by Sec. Sec.  172.201 to 
172.203 of this subchapter; and
    (3) Emergency response information required by Sec.  172.602(a) of 
this subchapter.
    (b) The train crew must update the train consist information to 
reflect any changes in the train consist information occurring at 
intermediate stops prior to continued movement of the train. Any update 
to the train consist information must also be reflected in the 
electronic train consist information required pursuant to Sec.  174.28 
prior to continued movement of the train. Train crews may use 
electronic or radio communications to notify the railroad to update the 
electronic train consist information.
    (c) The train consist information must always be immediately 
available for use by the train crew while the train is in 
transportation. When the train crew is aboard the train locomotive, the 
train consist information shall be stowed in a conspicuous location of 
the occupied locomotive.
    (d) Railroad operating rules for use of electronic devices by train 
crews and use of electronic devices by train crews in association with 
updates to train consist information requirements of this section and 
Sec.  174.28 must comply with 49 CFR part 220, subpart C.
0
5. Add Sec.  174.28 to read as follows:


Sec.  174.28  Electronic Train Consist Information.

    (a) Retention and notification requirements. Each railroad carrying 
hazardous materials must at all times maintain in electronic form, off 
the train, accurate train consist information as required in Sec.  
174.26. Each railroad must make such electronic train consist 
information immediately accessible at all times to its designated 
emergency point of contact such that they are able to communicate train 
consist information to Federal, state, and local first responders, 
emergency response officials, and law enforcement personnel seeking 
assistance. Each railroad must also provide, using electronic 
communication (e.g., a software application or electronic data 
interchange), that electronic train consist information to authorized 
Federal, state, and local first responders, emergency response 
officials, and law enforcement personnel along the train route that 
could be or are involved in the response to, or investigation of, an 
accident, incident, or public health or safety emergency involving the 
rail transportation of hazardous materials such that the information is 
immediately available for use at the time it is needed.
    (b) Emergency notification. When a train carrying hazardous 
material is involved in either an accident, or in an incident involving 
the release or suspected release of a hazardous material from a rail 
car in the train, the railroad must promptly notify State-authorized 
local first responders within at least a 10-mile radius of the accident 
or incident by forwarding train consist information in electronic form 
to those personnel. Notification may be accomplished through Public 
Safety Answering Points (i.e., 911 call centers).
    (c) Security measures. Each railroad must implement security and 
confidentiality protections in generating, updating, providing, and 
forwarding train consist information in electronic form pursuant to 
this section to ensure they provide access only to authorized persons. 
Nothing in this paragraph shall limit a railroad from entering into 
agreements with other railroads or persons to develop and implement a 
secure process for the generation, updating, providing, and forwarding 
of that information.
    (d) Provision of train consist information. No railroad may 
withhold, or cause to be withheld, the train consist information 
described in paragraphs (a) and (b) of this section from Federal, 
state, or local first responders, emergency response officials, and law 
enforcement personnel in the event of an incident, accident, or public 
health or safety emergency involving the rail transportation of 
hazardous materials. If a railroad uses a software application to meet 
the requirements of this section, it must provide all first responders, 
emergency response officials, and law enforcement personnel responding 
to, or investigating, an accident, incident, or public health or safety 
emergency involving the rail transportation of hazardous materials 
access, in accordance with the security and confidentiality protections 
required in paragraph (c) of this section, to the train consist 
information contained within that application without delay for the 
duration of the response or investigation.

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

0
6. The authority citation for part 180 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

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7. In Sec.  180.503, remove the definition ``Train consist''.

    Issued in Washington, DC on June 21, 2023 under authority 
delegated in 49 CFR part 1.97.
William S. Schoonover,
Associate Administrator for Hazardous Materials Safety, Pipeline and 
Hazardous Materials Safety Administration.
[FR Doc. 2023-13467 Filed 6-26-23; 8:45 am]
BILLING CODE 4910-60-P