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

CourtPipeline And Hazardous Materials Safety Administration
Citation84 FR 6910
Published date28 February 2019
Record Number2019-02491
Federal Register, Volume 84 Issue 40 (Thursday, February 28, 2019)
[Federal Register Volume 84, Number 40 (Thursday, February 28, 2019)]
                [Rules and Regulations]
                [Pages 6910-6952]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-02491]
                [[Page 6909]]
                Vol. 84
                Thursday,
                No. 40
                February 28, 2019
                Part III Department of Transportation----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration-----------------------------------------------------------------------49 CFR Parts 107, 130, 171, et al. Hazardous Materials: Oil Spill Response Plans and Information Sharing
                for High-Hazard Flammable Trains (FAST Act); Final Rule
                Federal Register / Vol. 84 , No. 40 / Thursday, February 28, 2019 /
                Rules and Regulations
                [[Page 6910]]
                -----------------------------------------------------------------------
                DEPARTMENT OF TRANSPORTATION
                Pipeline and Hazardous Materials Safety Administration
                49 CFR Parts 107, 130, 171, 173, and 174
                [Docket No. PHMSA-2014-0105 (HM-251B)]
                RIN 2137-AF08
                Hazardous Materials: Oil Spill Response Plans and Information
                Sharing for High-Hazard Flammable Trains (FAST Act)
                AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
                Department of Transportation (DOT).
                ACTION: Final rule.
                -----------------------------------------------------------------------
                SUMMARY: PHMSA, in consultation with the Federal Railroad
                Administration and pursuant to the Fixing America's Surface
                Transportation Act (FAST Act) of 2015, issues this final rule to revise
                and clarify requirements for comprehensive oil spill response plans
                (COSRPs) and to expand their applicability based on petroleum oil
                thresholds that apply to an entire train consist. Specifically, this
                final rule: Expands the applicability for COSRPs; modernizes the
                requirements for COSRPs; requires railroads to share information about
                high-hazard flammable train (HHFT) operations with State and tribal
                emergency response commissions to improve community preparedness; and
                incorporates by reference a voluntary standard. The amendments in this
                final rule will provide regulatory flexibility and improve response
                readiness to mitigate effects of rail accidents and incidents involving
                petroleum oil and HHFTs.
                DATES:
                 Effective date: This final rule is effective as of April 1, 2019.
                 Voluntary compliance date: PHMSA is authorizing voluntary
                compliance beginning February 28, 2019.
                 Delayed compliance date: Unless otherwise specified, compliance
                with the amendments adopted in this final rule is required beginning
                August 27, 2019.
                 Incorporation by reference: The incorporation by reference of
                certain publications listed in the rule is approved by the Director of
                the Federal Register as of April 1, 2019.
                ADDRESSES: Information about this rulemaking (Docket Number PHMSA-2014-
                0105) is available at the Federal eRulemaking Portal: http://www.regulations.gov, or at DOT's Docket Operation Office: Room W12-140
                on the ground floor of the West Building, 1200 New Jersey Avenue SE,
                Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
                except Federal holidays.
                FOR FURTHER INFORMATION CONTACT: Alexander Wolcott, (202) 366-8553,
                Standards and Rulemaking Division, Pipeline and Hazardous Materials
                Safety Administration, U.S. Department of Transportation, 1200 New
                Jersey Avenue SE, Washington, DC 20590-0001; or Mark Maday, (202) 493-
                0479, Office of Safety Assurance and Compliance, Federal Railroad
                Administration, U.S. Department of Transportation, 1200 New Jersey
                Avenue SE, Washington, DC 20590-0001.
                SUPPLEMENTARY INFORMATION:
                Abbreviations and Terms
                AAR Association of American Railroads
                ACP Area Contingency Plan
                AFPM American Fuel & Petrochemical Manufacturers
                ANPRM Advance Notice of Proposed Rulemaking
                ANSI American National Standards Institute
                API American Petroleum Institute
                ASLRRA American Short Line and Regional Railroad Association
                ASTM ASTM International
                BSEE Bureau of Safety and Environmental Enforcement
                CFR Code of Federal Regulations
                COSRP Comprehensive Oil Spill Response Plan
                Crude Oil Petroleum crude oil
                CWA Clean Water Act (see Federal Water Pollution Control Act)
                DHS U.S. Department of Homeland Security
                DOE U.S. Department of Energy
                DOI U.S. Department of the Interior
                DOT U.S. Department of Transportation
                E.O. Executive Order
                EPA Environmental Protection Agency
                EPCRA Emergency Planning and Community Right-to-Know Act
                ESA Environmentally Sensitive/Significant Area
                FAST Act Fixing America's Surface Transportation Act of 2015
                FEMA Federal Emergency Management Agency
                FMCSA Federal Motor Carrier Safety Administration
                FR Federal Register
                FRA Federal Railroad Administration
                FRP Facility Response Plan
                FRSA Federal Railroad Safety Act
                FWPCA Federal Water Pollution Control Act (see Clean Water Act)
                GIUE Government Initiated Unannounced Exercises
                GRP Geographic Response Plan
                HHFT High-Hazard Flammable Train
                HMR Hazardous Materials Regulations (see 49 CFR parts 171-180)
                HMT Hazardous Materials Table (see 49 CFR 172.101)
                HMTA Hazardous Materials Transportation Act
                IAFC International Association of Fire Chiefs
                IBP Initial Boiling Point
                ICS Incident Command System
                ICP Integrated Contingency Plan
                IMT Incident Management Team
                LEPC Local Emergency Planning Committee
                MPMS API Manual of Petroleum Measurement Standards
                NASTTPO National Association of SARA Title III Program Officials
                NCP National Contingency Plan
                NFPA National Fire Protection Association
                NIMS National Incident Management System
                NPRM Notice of Proposed Rulemaking
                NTSB National Transportation Safety Board
                OMB Office of Management and Budget
                OPA 90 Oil Pollution Act of 1990
                OSC Federal On-Scene Coordinator
                OSRO Oil Spill Removal Organization
                OSRP Oil Spill Response Plan
                PG Packing Group
                PHMSA Pipeline and Hazardous Materials Safety Administration
                PREP National Preparedness for Response Exercise Program
                RCP Regional Contingency Plan
                RFA Regulatory Flexibility Act
                RIA Regulatory Impact Analysis
                RP Recommended Practice
                RSPA Research and Special Programs Administration
                SACP Sub-Area Contingency Plans
                SERC State Emergency Response Commission
                SSI Sensitive Security Information
                TERC Tribal Emergency Response Commission
                TRANSCAER Transportation Community Awareness and Emergency Response
                TSA Transportation Security Administration
                TTCI Transportation Technology Center Inc.
                U.S.C. United States Code
                USCG United States Coast Guard
                USFA United States Fire Administration
                Table of Contents
                I. Executive Summary
                 A. Comprehensive Oil Spill Response Plans
                 B. HHFT Information Sharing Notification for Emergency Response
                Planning
                 C. Initial Boiling Point Test
                II. Background
                 A. Oil Spill Response Plans
                 B. HHFT Information Sharing Notification for Emergency Response
                Planning
                 C. Initial Boiling Point Test
                III. Recent Spill Events
                IV. National Transportation Safety Board Safety Recommendations
                V. Summary and Discussion of Public Comment
                 A. Overview of NPRM Comments
                 B. Summary of Oil Spill Response Plans Comments
                 C. Summary of HHFT Information Sharing Notification Comments
                (Sec. 174.312)
                 D. Summary of Initial Boiling Point Test Comments (Sec.
                173.121)
                VI. Incorporated by Reference
                [[Page 6911]]
                VII. Section-by-Section Review
                VIII. Regulatory Analyses and Notices
                 A. Statutory/Legal Authority for This Rulemaking
                 B. Executive Order 12866 and DOT Regulatory Policies and
                Procedures
                 C. Executive Order 13771
                 D. Executive Order 13132
                 E. Executive Order 13175
                 F. Regulatory Flexibility Act, Executive Order 13272, and DOT
                Policies and Procedures
                 G. Paperwork Reduction Act
                 H. Executive Order 13211
                 I. Unfunded Mandates Reform Act
                 J. Executive Order 13609 and International Trade Analysis
                 K. Environmental Assessment
                 L. Regulation Identifier Number (RIN)
                 M. Privacy Act
                 List of Subjects
                I. Executive Summary
                 The Pipeline and Hazardous Materials Safety Administration (PHMSA),
                in consultation with the Federal Railroad Administration (FRA), issues
                this final rule to improve oil spill response readiness and mitigate
                effects of rail accidents and incidents involving petroleum oil and
                high-hazard flammable trains (HHFTs). See 49 CFR 171.8 for definition.
                This final rule is necessary due to expansion in U.S. energy production
                having led to significant challenges for the country's transportation
                system. PHMSA is finalizing this rule in accordance with sections 7302
                and 7307 of the FAST Act, Public Law 114-94, and the Consolidated
                Appropriations Act of 2018, division L, title I, Public Law 115-141.
                 On July 29, 2016, PHMSA, in consultation with FRA, published a
                Notice of Proposed Rulemaking (NPRM) under the same title as this final
                rule (81 FR 50068). The NPRM proposed regulations in three areas:
                Comprehensive oil spill response plans (COSRPs), HHFT information
                sharing, and incorporation of an initial boiling point test for
                determination of light hydrocarbons in stabilized petroleum crude oils.
                Overall, this final rule adopts the requirements proposed in the NPRM
                with minor changes for plain language or clarification in consideration
                of the comments received to the NRPM. The estimated costs and benefits
                for this final rule are described in Table 1 below:
                 Table 1--10 Year and Annualized Costs (in Millions) and Benefits by Stand-Alone Regulatory Proposal
                ----------------------------------------------------------------------------------------------------------------
                 Benefits (7%)
                 Provision ----------------------------------- Costs (7%)
                 Qualitative Breakeven
                ----------------------------------------------------------------------------------------------------------------
                Oil Spill Response Planning and Response........... Cost-effective 10-Year: $21.4.
                 Improved if this Annualized: $3.1.
                 Communication/ requirement
                 Defined Command reduces the
                 Structure may consequences
                 improve of oil spills
                 response. by 6.7%.
                 Pre-
                 identified
                 Access to
                 Equipment and
                 Staging of
                 Appropriate
                 Equipment for
                 Response Zones.
                 Trained
                 Responders..
                Information Sharing................................ Cost-effective 10-Year: $3.7.
                 Improved if this Annualized: $0.53.
                 Communication. requirement
                 reduces the
                 Enhanced consequences
                 Preparedness.. of oil spills
                 by 1.2%.
                IBR of ASTM D7900.................................. N/A............ No Cost Estimated.
                 Regulatory
                 Flexibility.
                
                 Enhanced
                 Accuracy in
                 Packing Group
                 Assignments..
                 -------------------------
                 Total.......................................... ................ Cost-effective 10-Year: $25.2.
                 if this Annualized: $3.6.
                 requirement
                 reduces the
                 consequences
                 of oil spills
                 by 7.8%.
                ----------------------------------------------------------------------------------------------------------------
                A. Comprehensive Oil Spill Response Plans
                 This final rule adopts the requirements for COSRPs as proposed in
                the NPRM. The COSRP requirements are promulgated under the authority of
                the Oil Pollution Act of 1990 (OPA 90), Public Law 101-380, which
                amended the Federal Water Pollution Control Act (FWPCA), also known as
                the Clean Water Act (CWA), at 33 U.S.C. 1321. Table 2 below summarizes
                the applicable statutory requirements for COSRPs, the requirements
                adopted in this final rule, and the differences between the
                requirements adopted in this final rule and the proposals of the NPRM:
                 Table 2--COSRPs
                ------------------------------------------------------------------------
                 HM-251B final rule HM-251B NPRM
                 OSRP statutory requirements COSRP requirements differences
                ------------------------------------------------------------------------
                 33 U.S.C. 1321(j)(5)(A)(i) 49 CFR part 130 49 CFR part 130
                
                The President shall issue Restructures part Minimal
                 regulations which require 130 to create clarification and
                 an owner or operator of a subpart C for plain language
                 tank vessel or facility COSRPs. wording changes
                 described in paragraph Responds to between NPRM and
                 (j)(5)(C) to prepare and commenter requests final rule
                 submit to the President a to better align throughout all
                 plan for responding, to the COSRPs with minimum sections in
                 maximum extent practicable, requirements for response to
                 to a worst-case discharge, other federally comments.
                 and to a substantial threat mandated (Oil Spill NPRM proposed that
                 of such a discharge, of oil Response Plans) FRA would be
                 or a hazardous substance. OSRPs, especially responsible for
                 those for pipelines approving COSRPs,
                 in 49 CFR part 194. and final rule
                 Requires PHMSA to consolidates DOT's
                 approve COSRPs. OSRP approval under
                 PHMSA.
                
                 Sec. 130.105 Sec. 130.104
                 renumbered as Sec.
                 130.105
                
                [[Page 6912]]
                
                 Provides general Minimal. Clarifies
                 requirements for COSRPs with only
                 recordkeeping, plan one response zone
                 format, and do not need to
                 information about include separate
                 response structure. ``core plan''
                 Permits use of section.
                 Integrated Adds greater
                 Contingency Plan flexibility by
                 (ICP) and State permitting use of
                 plans providing State plans that
                 equivalent level of provide equivalent
                 coverage. protection.
                
                 33 U.S.C. 1321(j)(5)(C)(iv) Sec. 130.100 Sec. 130.101
                 renumbered as Sec.
                 130.100
                
                An onshore facility [e.g. Expands current Minimal. Clarifies
                 rolling stock] \1\ that, applicability COSRP are only
                 because of its location, (42,000 gallons of required for routes
                 could reasonably be oil in a single used to transport
                 expected to cause package) to also applicable
                 substantial harm to the include route quantities of oil.
                 environment by discharging segments which are
                 into or on the navigable used for:
                 waters, adjoining At least 20
                 shorelines, or the cars of liquid
                 exclusive economic zone. petroleum oil in a
                 continuous block or
                 35 cars of liquid
                 petroleum oil in a
                 train consist.
                 For
                 example, tank cars
                 containing crude
                 oil, fuel oil,
                 petroleum
                 distillates,
                 diesel, or gasoline
                 must be included
                 when counting cars
                 in the consist.
                 Mixtures that do
                 meet the criteria
                 for Class 3
                 flammable or
                 combustible
                 material in Sec.
                 173.120, or
                 containing residue
                 as defined in Sec.
                 171.8 of
                 subchapter C, are
                 not required to be
                 included when
                 determining the
                 number of tank cars
                 transporting liquid
                 petroleum oil.
                 Examples of
                 petroleum oils
                 which may not meet
                 the definition of a
                 Class 3 flammable
                 or combustible
                 liquid include
                 diluted waste water
                 and certain mineral
                 oils.
                
                 33 U.S.C. 1321(j)(5)(D)(i) Sec. Sec. 130.105 Sec. 130.103
                 and 130.110 renumbered as Sec.
                 130.110
                
                Be consistent with the Requires Minimal. Clarifies
                 requirements of the certification that railroads are
                 National Contingency Plan the plan is identifying
                 (NCP) and Area Contingency consistent with a Environmentally
                 Plans (ACP). list of specific Sensitive Areas
                 NCP/ACP (ESAs) from
                 requirements for existing Area or
                 ``minimum Regional
                 compliance'' to Contingency Plans.
                 clarify the
                 elements of NCP/ACP
                 applicable to rail
                 shipments.
                 33 U.S.C. 1321(j)(5)(D)(ii) Sec. Sec. 130.120 Sec. Sec.
                 and 130.125 130.104 and
                 130.105
                 renumbered as
                 Sec. Sec.
                 130.120 and
                 130.125,
                 respectively
                
                Identify the qualified Requires Minimal. Clarifies
                 individual having full identification of that communication
                 authority to implement Qualified between Qualified
                 removal actions, and Individual for each Individuals and
                 require immediate response zone in appropriate Federal
                 communications between that quickly accessible officials and
                 individual and the information persons providing
                 appropriate Federal summary. Requires response personnel
                 official and the persons immediate and equipment, must
                 providing personnel and communication be immediate.
                 equipment pursuant to between Qualified
                 clause. Individual and
                 appropriate Federal
                 official and the
                 persons providing
                 personnel and
                 equipment.
                 Requires plan
                 include a checklist
                 of necessary
                 notifications,
                 contact
                 information, and
                 necessary
                 information to
                 clarify procedures..
                
                33 U.S.C. 1321(j)(5)(D)(iii) Sec. Sec. 130.105 Sec. Sec.
                 and 130.130 130.102 and
                 130.106
                 renumbered as
                 Sec. Sec.
                 130.105 and
                 130.130,
                 respectively
                
                Identify, and ensure by Includes the Minimal. Clarifies
                 contract or other means establishment of railroads determine
                 approved by the President response zones, to the boundaries of
                 the availability of, ensure availability each response zone,
                 private personnel and of personnel and provided resources
                 equipment necessary to equipment in are identified with
                 remove to the maximum different appropriate
                 extent practicable a worst- geographic route planning framework.
                 case discharge (including a segments. Requires Clarifies use of
                 discharge resulting from planning framework U.S. Coast Guard
                 fire or explosion), and to for response zones (USCG) guidelines
                 mitigate or prevent a including ensuring for determining and
                 substantial threat of such resources are evaluating required
                 a discharge. staged within 12 response resources
                 hours at any part during the response
                 of the applicable in accordance with
                 route appendix C of 33
                 Includes CFR part 154.
                 requirements to
                 identify
                 organization,
                 personnel,
                 equipment, and
                 deployment location
                 thereof capable of
                 removal and
                 mitigation for a
                 worst-case
                 discharge (WCD).
                 Allows use of Oil
                 Spill Removal
                 Organization (OSRO)
                 which has been
                 classified by the
                 United States Coast
                 Guard under 33 CFR
                 154.1035 or
                 155.1035 to be used
                 in lieu of listing
                 personnel and
                 equipment.
                
                 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.135... Sec. 130.107
                 renumbered as
                 Sec. 130.135
                
                Describe the training....... Requires Minimal. Clarifies
                 certification and Incident Command
                 documentation System (ICS)
                 employees have been incident commander
                 trained in carrying level training is
                 out their recommended best
                 responsibilities practice.
                 under the plan.
                
                [[Page 6913]]
                
                 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.140... Sec. 130.108
                 renumbered as
                 Sec. 130.140
                
                Describe . . . equipment Requires description Minimal. Edits
                 testing. and certification section number and
                 equipment testing title.
                 meets the
                 manufacturer's
                 minimum
                 requirements.
                
                 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.140... Sec. 130.108
                 renumbered as
                 Sec. 130.140
                
                Describe . . . periodic Requires exercises Minimal. Updates
                 unannounced drills. to be equivalent to USCG website
                 the PREP Guidelines. address and
                 replaces term
                 ``drill'' with
                 ``exercise.''
                
                 33 U.S.C. 1321(j)(5)(D)(iv) Sec. 130.130... Sec. 130.106
                 renumbered as
                 Sec. 130.130
                
                Describe . . . response COSRPs describe: Minimal. Adds a
                 actions of persons on the Activities reference to
                 vessel or at the facility. and appendix C of 33
                 responsibilities of CFR part 154 to
                 railroad personnel clarify the
                 prior to arrival of equivalent planning
                 Qualified standards to use of
                 Individual;. OSROs classified
                 Qualified under 33 CFR
                 Individual's 154.1035 and
                 responsibilities 155.1035.
                 and actions; and.
                 Procedures
                 coordinating
                 railroad/Qualified
                 Individual actions
                 with On-Scene
                 Coordinator (OSC)..
                
                 33 U.S.C. 1321(j)(5)(D)(v) Sec. 130.150 Sec. 130.109
                 renumbered as Sec.
                 130.150
                
                Be updated periodically..... Clarifies plans Minimal. In response
                 should be reviewed to commenters, this
                 every 5 years, when final rule
                 significant clarifies that
                 information railroads may
                 changes, or after a operate for two
                 discharge requiring years upon
                 plan activation submission of
                 ocurs. response plan to
                 PHMSA and
                 certification of
                 appropriate
                 resources, for
                 better consistency
                 with the CWA.
                
                 33 U.S.C. 1321(j)(5)(E) Sec. 130.150... Sec. 130.111
                 renumbered as Sec.
                 130.150
                
                (1) With respect to any Requires approval of Minimal. NPRM
                 response plan submitted plans by PHMSA proposed FRA
                 under this paragraph for an provided minimum approve railroad
                 onshore facility that, requirements for COSRPs. Final rule
                 because of its location, the plan are met. consolidates DOT's
                 could reasonably be approval of OSRPs
                 expected to cause under PHMSA. As
                 significant and substantial with other PHMSA
                 harm to the environment by programs and
                 discharging into or on the procedures, PHMSA
                 navigable waters or will continue to
                 adjoining shorelines or the work with FRA for
                 exclusive economic zone, guidance on rail
                 and with respect to each specific
                 response plan submitted information and
                 under this paragraph for a procedures,
                 tank vessel, nontank including shared
                 vessel, or offshore review and
                 facility, the President enforcement.
                 shall-- Clarifies method to
                 submit plans in
                 electronic format.
                 (i) promptly review such
                 response plan;
                 (ii) require amendments
                 to any plan that does
                 not meet the
                 requirements of this
                 paragraph;
                 (iii) approve any plan
                 that meets the
                 requirements of this
                 paragraph;
                (2) A tank vessel, nontank Sec. 130.100 Sec. 130.101 moved
                 vessel, offshore facility, Prohibits to Sec. Sec.
                 or onshore facility transportation of 130.100 and 130.150
                 required to prepare a oil subject to Minimal. Edits the
                 response plan under this COSRPs unless section numbering
                 subsection may not handle, requirements for and title for plain
                 store, or transport oil submission, review, language.
                 unless-- and approval in
                 Sec. 130.150 are
                 met and the
                 railroad is
                 operating in
                 compliance with the
                 plan.
                 (i) in the case of a
                 tank vessel, nontank
                 vessel, offshore
                 facility, or onshore
                 facility for which a
                 response plan is
                 reviewed by the
                 President under
                 paragraph (1), the plan
                 has been approved by
                 the President; and
                 (ii) the vessel or
                 facility is operating
                 in compliance with the
                 plan
                [[Page 6914]]
                
                (3) Notwithstanding Sec. 130.100 Sec. 130.111 moved
                 paragraph (1), the Allows railroads to to Sec. 130.100
                 President may authorize a temporarily Minimal. PHMSA
                 tank vessel, nontank continue operating receives plans.
                 vessel, offshore facility, for up to 2 years Clarifies temporary
                 or onshore facility to while waiting for continuation are
                 operate without a response plan approval, limited to 2 years
                 plan approved under this provided the plan per statutory
                 paragraph, until not later has been submitted language.
                 than 2 years after the date to PHMSA and the
                 of the submission to the railroad submits a
                 President of a plan for the signed
                 tank vessel, nontank certification
                 vessel, or facility, if the statement of
                 owner or operator certifies appropriate
                 that the owner or operator resources..
                 has ensured by contract or
                 other means approved by the
                 President the availability
                 of private personnel and
                 equipment necessary to
                 respond, to the maximum
                 extent practicable, to a
                 worst-case discharge or a
                 substantial threat of such
                 a discharge.
                ------------------------------------------------------------------------
                B. HHFT Information Sharing Notification for Emergency Response
                Planning
                ---------------------------------------------------------------------------
                 \1\ ``Onshore facility'' means any facility (including, but not
                limited to, motor vehicles and rolling stock) of any kind located
                in, on, or under, any land within the United States other than
                submerged land. 33 U.S.C. 1321(a)(10).
                ---------------------------------------------------------------------------
                 This final rule adopts the requirements for HHFT information
                sharing as proposed in the NPRM, with clarification for plain language
                and modifications in response to commenters. The information sharing
                notification requirements are promulgated under the authority of
                Federal hazardous materials transportation law (49 U.S.C. 5101-5128).
                Table 3 below summarizes the advanced notification information sharing
                requirements mandated by the Fixing America's Surface Transportation
                (FAST) Act of 2015 and adopted in this final rule.
                 Table 3--Information Sharing Notification for Emergency Response Planning
                ----------------------------------------------------------------------------------------------------------------
                 FAST Act (advanced notification) Final rule HM-251B (information
                 Topic Section 7302(a)(3), (4), (6) sharing) 49 CFR 174.312
                ----------------------------------------------------------------------------------------------------------------
                Who is subject? Class I railroads transporting All railroads transporting HHFT
                 HHFT (20 cars in a block, 35 in (20 cars in a block, 35 in
                 consist carrying ANY Class 3 consist carrying ANY Class 3
                 flammable liquid). flammable liquid).
                Who must the railroads notify? Railroads must notify State Railroads must notify SERCs,
                 Emergency Response Commissions Tribal Emergency Response
                 (SERCs), who must provide the Commissions (TERCs), or other
                 notification information (and appropriate State designated
                 updates) to any political entities who share information
                 subdivision of a State or with appropriate local
                 public agency responsible for authorities, upon their
                 emergency response or law request.
                 enforcement, upon request of
                 the political subdivision or
                 public agency.
                What security measures are required? Required security and If the disclosure includes
                 confidentiality protections information that railroads
                 include protections from the believe is security sensitive
                 public release of proprietary or proprietary and exempt from
                 information or security- public disclosure, the
                 sensitive information, to railroads should indicate that
                 prevent the release to in the notification.
                 unauthorized persons.
                What to include in the notification? A reasonable estimate of the A reasonable estimate of the
                 number of implicated trains number of HHFTs that are
                 that are expected to travel, expected to travel, per week,
                 per week, through each county through each county within the
                 within the applicable state. state.
                 Identification of the routes The routes over which the
                 over which such liquid will be affected trains will be
                 transported. transported.
                 Identification and a description A description of the materials
                 of the Class 3 flammable liquid shipped and applicable
                 being transported on such emergency response information
                 trains and applicable emergency required by subparts C and G
                 response information, as of part 172 of this
                 required by regulation. subchapter.
                 A point of contact at the Class At least one point of contact
                 I railroad responsible for at the railroad (including
                 serving as the point of contact name or email address, title,
                 for State emergency response phone number, and address) for
                 centers and local emergency the SERC, TERC, and relevant
                 responders related to the Class emergency responders related
                 I railroad's transportation of to the railroad's
                 such liquid. transportation of affected
                 trains.
                When/how often? Update the notifications prior Updates the notification for
                 to making any material changes changes in volume greater than
                 to any volumes or frequencies 25 percent.
                 of HHFTs traveling through a
                 county. `Material changes' in
                 Emergency Order means changes
                 greater than 25%.
                How are records maintained? Requires notification Notification may be provided
                 ``consistent with the electronically or in writing.
                 notification content Railroads provide the
                 requirements in Emergency Order notification to DOT upon
                 Docket No. DOT-OST-2014-0067''. request.
                [[Page 6915]]
                
                What COSRP Information must be included? N/A............................. For petroleum oil trains
                 subject to the COSRP in part
                 130, includes the contact
                 information for Qualified
                 Individual and the response
                 zone description from the
                 COSRP.
                ----------------------------------------------------------------------------------------------------------------
                C. Initial Boiling Point Test
                 The NPRM proposed to incorporate by reference ASTM International's
                (ASTM) D7900, ``Standard Test Method for Determination of Light
                Hydrocarbons in Stabilized Crude Oils by Gas Chromatography'' related
                to initial boiling point for crude oils containing light hydrocarbons
                as an acceptable testing alternative to the boiling point tests
                specified in the current regulations. This ASTM standard is referenced
                by the industry best practice, American National Standards Institute
                (ANSI)/American Petroleum Institute (API) Recommended Practices 3000,
                ``Classifying and Loading of Crude Oil into Rail Tank Cars,'' First
                Edition, September 2014.
                 This final rule incorporates the test method by reference as
                proposed under the authority of Federal hazardous materials
                transportation law (49 U.S.C. 5101-5128). This final rule clarifies
                that initial boiling point, when determining the boiling distribution
                using ASTM D7900, is the temperature at which 0.5 weight percent is
                eluted. Inclusion of this additional boiling test option provides
                regulatory flexibility and promotes enhanced safety in transport
                through accurate Packing Group (PG) assignment.
                II. Background
                 Expansion in U.S. energy production has led to significant
                challenges for the country's transportation system. Traditionally,
                pipelines and oceangoing tankers have delivered most crude oil to U.S.
                refineries, accounting for approximately 93 percent of total receipts
                (in barrels) in 2012.\2\ Although other modes of transportation--rail,
                barge, and truck--have accounted for a relatively minor portion of
                crude oil shipments historically, volumes have risen rapidly in the
                2010s relative to previous decades.\3\ The rail transportation of large
                volumes of crude oil and other petroleum products presents unique
                safety risks. Rail accidents have tracked changes in production and
                rail shipments of crude oil-- rising when rail shipments increase in
                volume and falling when crude oil volumes fall according to FRA and
                PHMSA incident report data. Please see the RIA for further discussion
                and a graph of oil-by-rail shipments and derailments. This final rule
                will improve response readiness and mitigate effects of rail accidents
                and incidents by instituting information sharing requirements for HHFTs
                and COSRP requirements for petroleum oil trains.
                ---------------------------------------------------------------------------
                 \2\ Bureau of Transportation Statistics, ``Crude Oil and
                Petroleum Products Transported in the United States by Mode.'' U.S.
                Department of Transportation. Last modified 01/2018. https://www.bts.gov/content/crude-oil-and-petroleum-products-transported-united-states-mode.
                 \3\ U.S Energy Information Administration. ``Petroleum and Other
                Liquids.'' Independent Statistics and Analysis. Last modified 08/
                2018. https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=ESM_EPC0_RAIL_ZAMN-ZAMN_MBBL&f=M.
                ---------------------------------------------------------------------------
                 DOT reached out to stakeholders in industry, emergency response,
                and State and tribal governments through various forums and events to
                better understand and increase community awareness and preparedness for
                response to bulk transportation incidents involving energy products. In
                May 2014, PHMSA published the ``Crude Oil Rail Emergency Response
                Lessons Learned Roundtable Report,'' which outlined key factors that
                were identified by a panel of fire chiefs and emergency response
                management officials as having a direct impact on success in managing
                the outcomes of a crude oil transportation incident.\4\ More
                information about DOT's actions related to community awareness of and
                preparedness for response to bulk transportation incidents involving
                energy products is available on PHMSA's ``Safe Transportation of Energy
                Products'' website.\5\
                ---------------------------------------------------------------------------
                 \4\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training.
                 \5\ https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview.
                ---------------------------------------------------------------------------
                A. Oil Spill Response Plans
                 The Oil Pollution Act of 1990 (OPA 90) amended the Federal Water
                Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA),
                at 33 U.S.C. 1321 by adding oil spill response planning requirements
                for ``facilities'' that handle oil. Railroads or ``rolling stock'' are
                included in the definition of ``onshore facility.'' \6\ The CWA
                requires owners and operators of onshore facilities to prepare and
                submit Oil Spill Response Plans (ORSPs) for facilities that ``could
                reasonably be expected to cause substantial harm to the environment by
                discharging into or on the navigable waters, adjoining shorelines, or
                the exclusive economic zone.'' The CWA directs the President to issue
                regulations requiring owners and operators of onshore oil facilities to
                develop, submit, update and in some cases obtain approval of OSRPs
                meeting certain minimum requirements in 33 U.S.C. 1321(j)(5).
                ---------------------------------------------------------------------------
                 \6\ ``Onshore facility'' means any facility (including, but not
                limited to, motor vehicles and rolling stock) of any kind located
                in, on, or under, any land within the United States other than
                submerged land.'' 33 U.S.C. 1321(a)(10). ``Rolling stock'' refers to
                rail cars.
                ---------------------------------------------------------------------------
                 On October 22, 1991, the President delegated authority to the
                Secretary of Transportation to regulate certain transportation-related
                facilities (i.e., motor carriers and railroads) under sections
                1321(j)(1)(C) and 1321(j)(5) of the CWA. See E.O. 12777, 56 FR 54757,
                sections 2(b)(2) and 2(d)(2). The Secretary later delegated this
                authority to PHMSA's predecessor agency, the Research and Special
                Programs Administration (RSPA). PHMSA's delegated authority under
                sections 1321(j)(1)(C) and 1321(j)(5) for certain transportation-
                related facilities (i.e., motor vehicles and rolling stock) is solely
                the authority to promulgate regulations. When required, COSRPs are
                submitted to the Federal Highway Administration or the FRA, for motor
                carriers and railroads, respectively.
                 On June 17, 1996, RSPA published a final rule carrying out its
                delegated authority under the CWA for motor carriers and railroads.\7\
                The 1996 final rule established ``comprehensive plans'' under the
                authority of 33 U.S.C. 1321(j)(5) for anyone transporting oil in a
                quantity greater than 1,000 barrels or 42,000 gallons per package. The
                1996 final rule also adopted requirements in part 130 for the
                preparation of ``basic plans'' for containers with a capacity of
                [[Page 6916]]
                3,500 gallons or more carrying petroleum oil. Basic plans were adopted
                as a ``containment rule pursuant to Sec. 1321(j)(1)(C)'' of the CWA
                and therefore do not meet the minimum requirements for OSRPs in section
                1321(j)(5).\8\
                ---------------------------------------------------------------------------
                 \7\ 61 FR 30533 (June 17, 1996).
                 \8\ 61 FR 30537 (June 17, 1996).
                ---------------------------------------------------------------------------
                 A rail tank car designed to carry liquid materials, including
                petroleum oil, has an approximate capacity of 30,000 gallons. Because
                the typical rail tank car has a capacity around 30,000 gallons, no rail
                carriers are currently transporting tank cars of petroleum oil subject
                to the 42,000-gallon packaging threshold for COSRPs adopted by the 1996
                final rule. On July 6, 2013, an unattended, runaway unit train carrying
                crude oil from the Bakken region of North Dakota derailed in the town
                of Lac-M[eacute]gantic, Quebec. The incident resulted in loss of life
                and destruction of property and the environment. The cause was found to
                be human error that led to the unattended train gathering speed before
                derailing near the center of Lac-M[eacute]gantic. While an OSRP may not
                have prevented this incident, the Lac-M[eacute]gantic incident prompted
                examination into the safety of crude oil transportation by rail. The
                National Transportation Safety Board (NTSB) recommended requiring
                COSRPs for unit trains of petroleum in Safety Recommendation R-14-005.
                Congress also directed DOT to develop and report on a plan to finalize
                updated requirements for OSRPs in section 7307 of the FAST Act.
                Additionally, in the Consolidated Appropriations Act of 2018, signed
                into law on March 23, 2018, Congress directed the Secretary to ``issue
                a final rule to expand the applicability of comprehensive oil spill
                response plans.''
                 On July 29, 2016, PHMSA, in consultation with FRA, published an
                NPRM titled ``Oil Spill Response Plans and Information Sharing for
                High-Hazard Flammable Trains.'' The NPRM proposed to modernize COSRP
                requirements under 49 CFR part 130 in response to NTSB recommendations
                (including Safety Recommendation R-14-005), the FAST Act, and comments
                from the public to an August 1, 2014, Advance Notice of Proposed
                Rulemaking (ANPRM) (79 FR 45079). PHMSA also proposed the requirements
                to address needs identified by first responders in the ``Crude Oil Rail
                Emergency Response Lessons Learned Roundtable Report'' and challenges
                identified through analysis of recent spill events.\9\
                ---------------------------------------------------------------------------
                 \9\ https://www.phmsa.dot.gov/safe-transportation-energy-products/emergency-response-and-training.
                ---------------------------------------------------------------------------
                 Specifically, the NPRM proposed to expand COSRPs to routes over
                which railroads operate a single train containing 20 or more tank cars
                loaded with liquid petroleum oil in a continuous block or a single
                train containing 35 or more tanks cars loaded with liquid petroleum oil
                throughout the train consist.
                 The NPRM also proposed to update the COSRP requirements in response
                to comments requesting greater specificity to plan contents through a
                closer alignment to other Federal OSRP regulations promulgated under
                the CWA. The proposed requirements in the NPRM are similar to PHMSA's
                Office of Pipeline Safety's (OPS) requirements for pipeline oil spill
                response plans in 49 CFR part 194. Developing OSRPs for both pipeline
                and rail require planning for routes spanning large geographic areas.
                The NPRM proposed railroads divide their routes into ``response zones''
                that connect notification procedures and available response resources
                to the specific geographic area for the covered route segments.
                Response zones include geographic information, such as a planning
                framework, which ensures response resources are staged within 12 hours
                of any point along the route. The NPRM requested comments on providing
                regulatory flexibility for small businesses, requiring faster response
                times in certain ``High Volume Areas,'' and recommending that the
                Qualified Individual should be trained to the Incident Commander level
                using the Incident Command System (ICS).
                B. HHFT Information Sharing Notification for Emergency Response
                Planning
                 Federal hazardous materials transportation law (49 U.S.C. 5101-
                5128) authorizes the Secretary to ``prescribe regulations for the safe
                transportation, including security, of hazardous material in
                intrastate, interstate, and foreign commerce.'' The Secretary delegates
                this authority to PHMSA under 49 CFR 1.97(b). PHMSA is responsible for
                overseeing a hazardous materials safety program that minimizes the
                risks to life and property inherent in the transportation of hazardous
                materials in commerce. The Hazardous Materials Regulations (HMR; 49 CFR
                parts 171-180) include operational requirements applicable to
                transportation of hazardous materials by highway, rail, aircraft, and
                vessel. The Secretary also has authority over all areas of railroad
                transportation safety (Federal railroad safety laws, principally 49
                U.S.C. chapters 201-213); this authority is delegated to FRA under 49
                CFR 1.89. FRA promulgates and enforces a comprehensive regulatory
                program (49 CFR parts 200-244) and inspects and audits railroads, tank
                car facilities, and hazardous material offerors for compliance with
                both FRA's regulations and the HMR. Because of the shared role in the
                safe and secure transportation of hazardous materials by rail, PHMSA
                and FRA work closely when considering regulatory changes. The agencies
                take a system-wide, comprehensive approach consistent with the risks
                posed by the bulk transport of hazardous materials by rail.
                 On May 7, 2014, the Secretary, under the authority of 49 U.S.C.
                5121(d), issued an Emergency Restriction/Prohibition Order in Docket
                No. DOT-OST-2014-0067 (Order).\10\ The Order requires each railroad
                transporting 1 million gallons or more of Bakken crude oil in a single
                train in commerce within the United States to provide certain
                information in writing to the State Emergency Response Commission
                (SERC) for each state in which it operates such a train. Tribal
                Emergency Response Commissions (TERCs) are permitted to coordinate with
                the appropriate SERC(s) for access to data supplied under this
                Emergency Restriction/Prohibition Order.\11\ The Order also requires a
                railroad to provide SERCs information about the type of oil, volume,
                route, and emergency response procedures, as well as appropriate
                railroad contact information. It also requires railroads to provide
                SERCs updated notifications prior to any ``material change'' in the
                volume of affected trains and provide copies of notifications made to
                each SERC to FRA upon request. DOT subsequently issued a document
                compiling frequently asked questions (FAQs) to clarify several aspects
                of the Order.\12\
                ---------------------------------------------------------------------------
                 \10\ https://www.regulations.gov/document?D=DOT-OST-2014-0067-0001.
                 \11\ https://www.regulations.gov/document?D=DOT-OST-2014-0067-0003.
                 \12\ See document number 0003 in Docket No. DOT-OST-2014-0067.
                ---------------------------------------------------------------------------
                 On October 3, 2014, FRA published ``Proposed Agency Information
                Collection Activities; Notice and Request for Comments'' (79 FR 59891)
                to provide additional analysis of the requirements of the Order. FRA
                consulted with DOT, the U.S. Department of Homeland Security (DHS), and
                the Transportation Security Administration (TSA), and determined the
                information required by the Order was not commercially sensitive or
                Sensitive Security Information (SSI) as defined by DOT, DHS, or TSA
                regulations. Id. at 59892. FRA further noted that DOT found no basis to
                [[Page 6917]]
                conclude that the public disclosure of the information is detrimental
                to transportation safety.
                 In the May 8, 2015, final rule ``Hazardous Materials: Enhanced Tank
                Car Standards and Operational Controls for High-Hazard Flammable
                Trains'' (HM-251 final rule), PHMSA decided against adopting an earlier
                proposal to codify the specific requirements of the Order for railroads
                transporting 1 million gallons or more of crude oil originating in the
                Bakken region, and instead adopted similar requirements more easily
                integrated into the HMR that achieved the desired result.
                 On May 28, 2015, PHMSA announced plans to extend the Order
                indefinitely and to consider options for codifying the disclosure
                requirement on a permanent basis after further evaluating the issue
                within DOT.\13\ PHMSA recognized the desire for local communities to
                receive proactive notification of hazardous materials moving through
                their cities and towns. PHMSA noted that transparency is critical to
                DOT's comprehensive approach to safety and expressed support for the
                public disclosure of this information to the extent allowed by
                applicable State, local, and tribal laws.
                ---------------------------------------------------------------------------
                 \13\ https://www.phmsa.dot.gov/news/phmsa-notice-regarding-emergency-response-notifications-shipments-petroleum-crude-oil-rail.
                ---------------------------------------------------------------------------
                 On December 4, 2015, the FAST Act was signed into law. The FAST Act
                includes the ``Hazardous Materials Transportation Safety Improvement
                Act of 2015'' at sections 7001 through 7311, which provides direction
                for the hazardous materials safety program. Section 7302 directs the
                Secretary to issue regulations to require (1) real-time sharing of the
                electronic train consist information for hazardous materials shipments;
                and (2) advanced notification of HHFTs. DOT has initiated a separate
                rulemaking to address the requirements of section 7302(a)(1) related to
                real-time electronic train consists. Docket No. PHMSA-2016-0015 (HM-
                263).\14\
                ---------------------------------------------------------------------------
                 \14\ https://www.regulations.gov/docket?D=PHMSA-2016-0015.
                ---------------------------------------------------------------------------
                 Section 7302(a)(3) of the FAST Act directs DOT to promulgate
                regulations requiring advanced notification consistent with
                notification content requirements of the Order. The FAST Act expands
                the Order to require Class I railroads to provide advanced notification
                and information on HHFTs to each SERC. The FAST Act requires SERCs
                receiving this advanced notification to provide the information to law
                enforcement and emergency response agencies upon request. The FAST Act,
                in section 7302(a)(6), also directs the Secretary to establish security
                and confidentiality protections for electronic train consist
                information and advanced notification information.
                 In response to the FAST Act and DOT's commitment to codifying the
                Order, PHMSA proposed information sharing notification requirements in
                the ``Hazardous Materials: Oil Spill Response Plans and Information
                Sharing for High-Hazard Flammable Trains (HM-251B)'' NPRM published
                July 29, 2016. The NPRM proposed that all railroads transporting HHFTs
                notify SERCs, Tribal Emergency Response Commissions (TERCs), or other
                State-delegated agencies with information consistent with the Order.
                The NPRM proposed that the notification include key information from
                COSRPs, when applicable.
                 The intent of these requirements is to ensure that local emergency
                responders and emergency response planning officials have access to
                sufficient information regarding the movement of HHFTs in their
                jurisdictions to adequately plan and prepare for emergency events
                involving HHFTs. This purpose is reaffirmed by the FAST Act's
                requirements for sharing and protection of information required by the
                advanced notification. Under the Emergency Planning and Community
                Right-to-Know Act (EPCRA) in title III of the Superfund Amendments and
                Reauthorization Act of 1986 (SARA), the Governor of each state is
                required to establish a SERC. The SERC is responsible for establishing
                emergency planning districts and appointing, supervising, and
                coordinating Local Emergency Planning Committees (LEPCs). For federally
                recognized tribal governments, the Chief Executive Officer of the Tribe
                appoints a Tribal Emergency Response Commission (TERC), as designated
                by the Environmental Protection Agency (EPA) in a final rule published
                July 26, 1990 (55 FR 30632). TERCs have the same responsibilities as
                SERCs. On July 26, 1990, EPA published a final rule designating Indian
                Tribes and their chief executive officers as the implementing
                authorities for EPCRA on all Indian lands.
                 The NPRM proposed to protect information by allowing railroads to
                indicate information they ``believe is security sensitive or
                proprietary and exempt from public disclosure.'' Previous analysis by
                DOT, FRA, and DHS concluded that the aggregated information required to
                be shared by railroads does not qualify for withholding under Federal
                standards for business confidential information or SSI; however, as
                noted in FRA's previous discussion of this matter in its October 2014
                Information Disclosure Notice, State laws control, and may limit, the
                disclosure and dissemination of this information.\15\ Therefore, the
                NPRM acknowledged that states may differ in their methods and proposed
                an approach intended to provide flexibility for SERCs, TERCs, and other
                State-delegated agencies to disseminate information in accordance with
                state laws and procedures. As proposed, before fulfilling a request for
                information and releasing the information, the States and Tribes will
                be on notice of which information the railroads consider to be
                inappropriate for public release.
                ---------------------------------------------------------------------------
                 \15\ 79 FR 59892 (June 30, 2014).
                ---------------------------------------------------------------------------
                C. Initial Boiling Point Test
                 The offeror's responsibility to classify and describe a hazardous
                material is a key requirement under the HMR. Improper classification
                and failure to identify applicable material properties can have
                significant negative impacts on transportation safety. Proper
                classification is necessary to ensure proper packaging, operational
                controls, and hazard communication requirements are met, all of which
                are important to mitigate the negative effects of a train derailment or
                other hazardous materials incident. It is an offeror's responsibility
                to accurately classify and describe a hazardous material. For
                transportation purposes, classification is ensuring the proper hazard
                class, packing group, and shipping name are assigned to a material. To
                determine whether a hazardous material should be classified as Class 3
                Flammable liquid, as well as determine the appropriate packing group,
                the HMR require testing for the material's flash point and initial
                boiling point (IBP) under Sec. Sec. 173.120 and 173.121.
                 The American National Standards Institute (ANSI) recognized
                recommended practice includes guidance on the material
                characterization, transport classification, and quantity measurement
                for overfill prevention of petroleum crude oil for the loading of rail
                tank cars (see API RP 3000, ``Classifying and Loading of Crude Oil into
                Rail Tank Cars''). For crude oils containing volatile, low molecular
                weight components (e.g., light ends), the industry recommended best
                practice for IBP is to test using ASTM D7900. The initial boiling
                point, when determining the boiling distribution using ASTM D7900, is
                the temperature at which 0.5
                [[Page 6918]]
                weight percent is eluted. The ASTM D7900 differs from the boiling point
                tests currently in the HMR in that it is the only test that ensures a
                minimal loss of light ends; however, the ASTM D7900 is not currently
                included in the list of testing methods authorized in the HMR in Sec.
                173.121(a)(2).
                 In this final rule, PHMSA is adopting the NPRM's proposal to
                incorporate by reference the ASTM D7900 test method identified within
                API RP 3000, thus permitting use of this IBP industry best practice.
                The incorporation of the ASTM D7900, which aligns with the API RP 3000,
                will not replace the currently authorized initial boiling point testing
                methods. Rather, it will serve as a testing alternative if one chooses
                to use that method. PHMSA believes this provides flexibility and
                promotes enhanced safety in transport through accurate packing group
                assignment.
                III. Recent Spill Events
                 PHMSA collected and reviewed information from various sources
                pertaining to recent derailments involving discharges of petroleum oil.
                In this rulemaking and the accompanying analysis, PHMSA has focused on
                the following derailments: Mosier, OR (June 2016); Watertown, WI
                (November 2015); Culbertson, MT (July 2015); Heimdal, ND (May 2015);
                Galena, IL (March 2015); Mt. Carbon, WV (February 2015); La Salle, CO
                (May 2014); Lynchburg, VA (April 2014); Vandergrift, PA (February
                2014); New Augusta, MS (January 2014); Casselton, ND (December 2013);
                Aliceville, AL (November 2013); and Parkers Prairie, MN (March 2013).
                In the Regulatory Impact Analysis (RIA), PHMSA provides narratives and
                discussion of the circumstances and consequences of these derailments.
                Please refer to the rulemaking docket (Docket No. PHMSA-2014-0105) for
                the preliminary and final RIA and all supporting documents.
                 PHMSA's review of these derailments identified challenges during
                oil spill response that occurred in the past and could potentially
                occur in future derailment scenarios. PHMSA incorporates this
                understanding of response challenges into this rulemaking, which amends
                the requirements of 49 CFR part 130, to improve COSRPs by way of new
                and revised requirements. Improved oil spill response planning will, in
                turn, improve the actual response to future derailments involving
                petroleum oil and lessen potential negative effects on communities.
                IV. National Transportation Safety Board Safety Recommendations
                 This rulemaking partially addresses several recommendations from
                the NTSB, as summarized in Table 4:
                 Table 4--NTSB Recommendations Partially Addressed in This Rulemaking
                ----------------------------------------------------------------------------------------------------------------
                 NTSB recommendation Recommendation summary Rulemaking description
                ----------------------------------------------------------------------------------------------------------------
                R-14-002: Issued January 23, 2014.................. Recommends that FRA develop a Requires PHMSA to approve
                 program to audit response COSRPs for rail.
                 plans for rail carriers of
                 petroleum products to ensure
                 that adequate provisions are
                 in place to respond to and
                 remove a worst-case discharge
                 to the maximum extent
                 practicable and to mitigate or
                 prevent a substantial threat
                 of a worst-case discharge.
                R-14-005: Issued January 23, 2014.................. Recommends that PHMSA revise Revises the spill planning
                 the spill response planning thresholds to address 20
                 thresholds contained in 49 CFR cars of liquid petroleum
                 part 130 to require oil in a continuous block
                 comprehensive response plans or 35 cars of liquid
                 to effectively provide for the petroleum oil in a
                 carriers' ability to respond consist.
                 to worst-case discharges
                 resulting from accidents
                 involving unit trains or
                 blocks of tank cars
                 transporting oil and petroleum
                 products.
                R-14-014: Issued August 22, 2014................... Recommends that PHMSA require Adopts information sharing
                 railroads transporting requirements for HHFTs.
                 hazardous materials through
                 communities to provide
                 emergency responders and local
                 and state emergency planning
                 committees with current
                 commodity flow data and assist
                 with the development of
                 emergency operations and
                 response plans.
                R-14-006: Issued January 23, 2014.................. Recommends that PHMSA require Adds ASTM D7900 test
                 shippers to sufficiently test method as option to
                 and document the physical and determine boiling point
                 chemical characteristics of of certain crude oil.
                 hazardous materials to ensure
                 the proper classification,
                 packaging, and record-keeping
                 of products offered in
                 transportation.
                ----------------------------------------------------------------------------------------------------------------
                V. Summary and Discussion of Public Comment
                A. Overview of NPRM Comments
                 In the NPRM, PHMSA solicited public comment on potential revisions
                to regulations that would: Expand the applicability of COSRPs to HHFTs
                based on the amount of petroleum oil in an entire train consist, rather
                than a single package or tank car; require rail carriers to share
                information regarding HHFTs with State authorities; and incorporate by
                reference of the ASTM D7900 test method. The NPRM summarized and
                discussed comments received in response to questions regarding
                potential revisions to the COSRP requirements asked by the earlier
                ANPRM. PHMSA received approximately 130 comments in response to the
                NPRM. See Table 5 describing commenter backgrounds:
                 Table 5--Commenter Background
                ------------------------------------------------------------------------
                 Description and
                 Commenter background Count examples of category
                ------------------------------------------------------------------------
                Non-Government Organizations... 35 Environmental groups
                 (30), emergency
                 response organizations
                 (4), and other non-
                 governmental
                 organizations (1).
                Governments.................... 19 Local (8), State (9),
                 Federal (2).
                Private Individuals............ 67 Members of the public.
                Carrier Industry Stakeholders.. 6 Railroads (1) and
                 related trade
                 associations (5).
                Shipper Industry Stakeholders.. 4 Shippers (2) and
                 petroleum-related
                 trade associations
                 (2).
                ------------------------------------------------------------------------
                [[Page 6919]]
                 Most commenters addressed proposed COSRP requirements. COSRP-
                related comments comprised four general categories: (1) Reiterating
                comments provided to the ANPRM; (2) providing statements of general
                support for expanding COSRP requirements; (3) expressing general
                concern or requests to require faster response times for response
                zones; or (4) recommending additional requirements not proposed by the
                NPRM. Many commenters noted the negative impact that a petroleum oil
                spill or HHFT derailment would have on their individual communities and
                personal property, with most such comments coming from residents of the
                Hudson River Valley region. A few commenters provided detailed comments
                about specific proposals in the NPRM for COSRPs. Comments related to
                COSRPs are further discussed in ``Section V.B. Summary of Oil Spill
                Response Plan Comments'' of this final rule.
                 PHMSA received approximately 20 comments on the proposed HHFT
                information sharing notification requirements. These comments fall into
                several categories, including: (1) Applicability; (2) notification
                recipients; (3) frequency of notification; and (4) information security
                and confidentiality concerns. Comments related to HHFT information
                sharing are further discussed in ``Section V.C. Summary of HHFT
                Information Sharing Notification Comments'' of this final rule.
                 PHMSA received five comments addressing the proposed incorporation
                by reference of the ASTM D7900 test method. Comments related to
                incorporation by reference are further addressed in ``Section V.D.
                Summary of Initial Boiling Point Comments'' of this final rule.
                 Additionally, PHMSA received several miscellaneous comments that
                voiced general concern about the public health, safety, and/or
                environmental risks of petroleum trains and/or fossil fuels. These
                comments either did not provide recommendations for regulatory action
                or exceeded the scope of PHMSA's authority.
                B. Summary of Oil Spill Response Plans Comments
                Summary and Response to Basic Spill Response Plan (Sec. 130.31)
                Comments
                 The current threshold for a basic OSRP is 3,500 gallons of
                petroleum oil. Several commenters suggested that basic plans for
                packages exceeding this threshold should be eliminated and replaced
                with comprehensive oil spill response plans, which would effectively
                require a COSRP for all tank-car shipments of petroleum oil. Commenters
                suggested basic OSRPs be replaced because they do not meet the minimum
                requirements of the CWA in 33 U.S.C. 1321(j)(5)(D). The State of
                California Department of Fish and Wildlife, for example, disagreed that
                basic OSRPs could be issued under a containment rule pursuant to
                section 1321(j)(1)(C).
                 The NPRM did not propose changes to the requirements for basic
                OSRPs; therefore, this rule does not make such changes. As stated in
                the NPRM and the initiating 1996 final rule, the requirements for a
                basic OSRP were issued as a ``containment rule pursuant to Sec.
                1321(j)(1)(C)'' of the CWA, and therefore were not intended to fulfill
                the requirements of 33 U.S.C. 1321(j)(5)(D). The requirements of 33
                U.S.C. 1321(j)(5)(D) for OSRPs are promulgated in the requirements for
                COSRPs.
                Summary of Comments Regarding Applicability of COSRP (Sec. 130.100)
                 The NPRM proposed to expand the applicability for COSRPs so that
                any railroad that transports a single train carrying 20 or more loaded
                tank cars of liquid petroleum oil in a continuous block or a single
                train carrying 35 or more loaded tank cars of liquid petroleum oil
                throughout the train consist must also have a current, written COSRP.
                The NPRM provided an exception for tank cars carrying residue as
                defined in Sec. 171.8 of subchapter C or diluted mixtures that do not
                meet the definition of a Class 3 flammable or combustible liquid. The
                NPRM maintained both the current exception in part 130 for mixtures
                that contain less than 10 percent oil by volume and the current
                threshold of 42,000 gallons per package for both petroleum oil and non-
                petroleum oil.
                 PHMSA received approximately 20 comments to the NPRM pertaining to
                the applicability of COSRPs. Most of these comments fell into two major
                categories: The volume of oil being transported and the type of
                materials that trigger COSRPs. Additionally, there were a few comments
                pertaining to applicability in response to a question in the NPRM that
                asked whether additional relief should be given to small entities, such
                as Class II or III railroads.
                 While some commenters supported the proposed volume applicability
                threshold, many commenters provided alternative suggestions. Most
                comments reiterated suggestions regarding applicability provided in
                comments responding to the ANPRM. Generally, individuals and
                environmental organizations recommended using lower thresholds of
                petroleum oil to trigger COSRPs due to environmental concerns, safety
                concerns, or interpretations that the CWA requires oil spill response
                plans for all rolling stock carrying oil. Several commenters requested
                lower applicability thresholds without specifying an alternative
                number.\16\ Lower-volume thresholds proposed by commenters ranged from
                any amount of oil to 20 rail cars of oil. Commenters suggested
                replacing basic plans with COSRPs for packages exceeding 3,500 gallons.
                Commenters who suggested a threshold of one tank car--approximately
                29,000 gallons--believed that any rail line carrying an oil tank car
                should be subject to COSRPs. Commenters that suggested a two-tank car
                threshold did so to maintain consistency with the current requirement
                of 42,000 gallons in one tank car, but suggested changing the language
                to require COSRPs when a train is carrying 42,000 gallons of oil in any
                form, not just one tank car. It was also suggested that the 42,000-
                gallon threshold be removed outright. The Minnesota Pollution Control
                Agency stated that the threshold is not meaningful and seems
                ``arbitrary and outdated especially when you consider two 30,000-gallon
                tank cars pose the same or more risk and are not regulated.''
                ---------------------------------------------------------------------------
                 \16\ See PHMSA-2014-0105-0250, PHMSA-2014-0105-0251, PHMSA-2014-
                0105-0252, PHMSA-2014-0105-0253, PHMSA-2014-0105-0256, PHMSA-2014-
                0105-0290.
                ---------------------------------------------------------------------------
                 In addition to quantitative applicability comments, PHMSA received
                several qualitative applicability comments about the type of oil that
                should require a COSRP. Most of these comments were from environmental
                groups or private citizens and reiterated comments provided in response
                to the ANPRM, without providing additional data. Suggestions for
                expanded applicability of COSRPs included all hazardous substances, all
                Class 3 flammable liquids or other hazardous materials, all kinds of
                oil, or all kinds of liquid petroleum oils (irrespective of hazard
                class). Mandating COSRPs for all hazardous substances was suggested by
                state agencies and environmental groups, who cited the CWA statute
                requirements for hazardous substances, in addition to oil spills per 33
                U.S.C. 1321(j)(5). These commenters supported using the Federal On-
                Scene Coordinator (OSC) to identify concerns evaluating a plan's
                compliance with the statutory and regulatory requirements and expressed
                concern about the potential harm from hazardous substances. In
                addition, commenters cited some state
                [[Page 6920]]
                plans, such as Minnesota's, in which COSRPs are required for all
                hazardous substances. Multiple commenters suggested adding all Class 3
                flammable liquids to the materials requiring a COSRP, with
                justifications mostly based on environmental or safety concerns.
                Commenters also cited ethanol as an example of a Class 3 flammable
                material that poses a risk by rail.
                 NTSB opposed the exception from the COSRP requirements for unit
                trains carrying ``mixtures or solutions of petroleum oil not meeting
                the criteria for Class 3 flammable or combustible material.'' NTSB
                found use of the term ``mixtures or solutions'' confusing, as petroleum
                products are inherently a mixture. NTSB also stated:
                 [S]pilled, petroleum products are significant environmental
                pollutants, whether or not they are Class 3 flammable or combustible
                liquids. In fact, less-flammable petroleum materials that are denser
                than water may sink to form emulsions, adhere to sediments, and
                produce tar balls that are often more difficult to remove from
                waterways than less viscous Class 3 flammable oils.
                The Association of American Railroads (AAR) provided comments related
                to the identification of petroleum oil subject to the plan. AAR
                requested that PHMSA specify which UN or NA identification numbers are
                associated with the definition of petroleum oil. AAR suggested
                requiring railroads to determine which UN or NA numbers associated with
                Class 3 materials further meet the definition of petroleum oil and
                create an additional burden on railroads.
                 AAR provided comments about the applicability of route segments in
                the plans and requested clarification that the COSRP requirements do
                not apply to route segments where applicable quantities of oil are not
                transported. AAR also suggested ``that plans should be required for
                only portions of HHFT routes situated within a half-mile (0.5 miles) of
                a navigable waterway'' so that railroads do not need to perform their
                own environmental reviews throughout the entire rail network, which
                would be overly burdensome. In addition, AAR stated that the use of a
                half-mile standard for planning purposes is consistent with existing
                standardized planning distances found in 40 CFR part 112, appendix C,
                section 5.
                 The International Association of Fire Chiefs (IAFC) suggested
                revising the applicability proposed in Sec. 130.101 (``Any railroad
                which transports a single train transporting . . .''), so as to replace
                ``transports'' with ``operates'' for ``better flow.''
                 In the NPRM, PHMSA asked whether regulatory relief may be
                appropriate for certain small businesses (i.e., Class II and III short
                lines). Most commenters supported regulations based on the risk,
                quantity, and type of oil, regardless of business size. The State of
                California Department of Fish and Wildlife expressed concern that the
                threshold of 20 tank cars in a unit or 35 tank cars across the consist
                would exempt too many short lines from COSRPs. The American Short Line
                and Regional Railroad Association (ASLRRA) submitted comments stating
                that many Class II and III short lines only operate the first or last
                mile of an applicable route and that requiring them to create plans
                would be an undue burden. ASLRRA also described scenarios in which the
                short line acts as a tenant on track owned by a Class I railroad,
                suggesting that Class III railroads should be offered some level of
                relief if voluntarily entering into agreement to use a plan created by
                the Class I for the route section used by both railroads. ASLRRA
                further clarified:
                 [This is not to] suggest the host railroad's oil spill response
                plan should address the tenant's operations as a matter of
                regulatory fiat. Rather, ASLRRA is asking PHMSA to acknowledge that
                it is permissible for a tenant railroad to contract with a host
                railroad for the latter to supply the oil spill response capability
                required by PHMSA.
                Response to Comments Regarding Applicability of COSRP (Sec. 130.100)
                 PHMSA initiated this rulemaking in response to changing conditions
                stemming from the increase in the volume of petroleum oil transported
                by rail and the consequent incidents and accidents; however, pursuant
                to the CWA requirement for rolling stock that ``could reasonably be
                expected to cause substantial harm,'' PHMSA seeks to minimize burdens
                by expanding requirements for COSRPs only where there is a demonstrated
                need. PHMSA does not have evidence of rail incidents involving unit
                trains carrying other non-petroleum oils (as defined in 49 CFR 130.5)
                that have demonstrated a need to expand the applicability of
                comprehensive plans to other non-petroleum oils. Commenters did not
                provide additional data on rail transportation of non-petroleum oil or
                hazardous substances identifying new conditions, nor did they identify
                rail incidents indicating new risks posed by other non-petroleum oils
                or hazardous substances. Therefore, we are continuing with a threshold
                of 42,000 gallons for tank cars carrying petroleum or other non-
                petroleum oil. However, we may consider revising the requirements for
                other non-petroleum oils or hazardous substances in a future
                rulemaking.
                 We disagree that the applicability should be expanded to include
                additional hazardous materials, such as all Class 3 flammable or
                combustible liquids. Commenters did not provide adequate data
                indicating that the type of planning and level of resources required by
                this rulemaking would be appropriate for cleaning up spills for
                materials other than oils. Furthermore, this rulemaking was promulgated
                to respond directly to the risks and unique response requirements
                related to the large volumes of petroleum oil being transported in unit
                trains.
                 PHMSA disagrees that COSRPs would be appropriate for a lower volume
                of petroleum oil or a lesser number of tank cars. As discussed in the
                NPRM and HM-251 final rule, modeling data from FRA indicates that for
                trains with fewer than 20 tank cars in a block, or fewer than 35 tank
                cars dispersed throughout a train, relatively few tank cars containing
                petroleum oil would be breached on average in the event of an
                incident.\17\ The threshold of 20 cars in a block as used in the HM-251
                rulemaking comes from AAR's Circular OT-55, which provides
                ``Recommended Railroad Operating Practices for Transportation of
                Hazardous Materials'' and defines ``key trains.'' Then, FRA performed
                an analysis to determine the average number of cars that would derail
                with 20 tank cars in a block. Once that number was determined, FRA did
                further analysis to determine at what number of tank cars dispersed
                throughout the consist would the number of tanks cars derailed be
                equivalent. The result was 35 tank cars throughout the consist.
                Therefore, in a derailment scenario, these lower-risk train
                configurations (i.e., fewer than 20 tank cars in a block or 35 tank
                cars throughout the train) are not ``reasonably expected'' to breach in
                a manner that could ``cause substantial harm to the environment by
                discharging into or on the navigable waters, adjoining shorelines, or
                the exclusive economic zone.'' Furthermore, given the enhanced tank car
                standards promulgated in the HM-251 final rule and resulting
                improvements in tank-car integrity, PHMSA believes the likelihood of a
                tank car releasing its total contents in a derailment has been
                significantly reduced.\18\ PHMSA maintains that lower-risk train
                configurations should not be the focus of this rulemaking because
                extending
                [[Page 6921]]
                the requirements of this rule to operators of lower-risk configurations
                would be burdensome, costly, and inefficient.
                ---------------------------------------------------------------------------
                 \17\ 80 FR 26665 (May 8, 2015).
                 \18\ 80 FR 26665 (May 8, 2015).
                ---------------------------------------------------------------------------
                 PHMSA did not propose changes to the communication requirements in
                49 CFR 130.11, which apply to both basic and comprehensive plans. Basic
                plans already require that shipments of tank cars carrying petroleum
                oil be described on shipping papers or similar documents as containing
                oil, unless they are identified as ``aviation fuel, diesel fuel, fuel
                oil, gasoline, jet fuel, kerosene, motor fuel, or petroleum.'' While
                basic plans will be replaced with COSRPs for certain train
                configurations, the responsibility for offerors to identify oil will
                not change. Additionally, the U.S. Coast Guard (USCG) maintains a
                ``List of Petroleum and Non-Petroleum Oils'' as a guide to determining
                whether a particular substance is an oil under their regulations.\19\
                Therefore, PHMSA further disagrees that additional guidance is
                necessary to identify petroleum oil, and is adopting the definition of
                petroleum oil as proposed.
                ---------------------------------------------------------------------------
                 \19\ United States Coast Guard, Hazardous Materials Division,
                available at: http://www.dco.uscg.mil/Our-Organization/Assistant-Commandant-for-Prevention-Policy-CG-5P/Commercial-Regulations-standards-CG-5PS/Design-Engineering-Standards/eng5/
                ---------------------------------------------------------------------------
                 The definition of petroleum oil in Sec. 130.5 includes both
                refined and unrefined petroleum products. Oils which do not contain
                petroleum, such as synthetic oils or essential oils, continue to be
                defined as ``non-petroleum oil'' in Sec. 130.5. We are maintaining
                PHMSA's longstanding provision that any ``mixture or solution in which
                oil is in a concentration by weight of less than 10 percent'' is
                excluded from the requirements in part 130. Therefore, petroleum oil in
                part 130 includes mixtures containing at least 10 percent petroleum
                oil, such as denatured ethanol fuel E85 (ethanol containing 15 percent
                gasoline); however, mixtures containing less than 10 percent petroleum
                oil, such as diluted waste water or E95 (ethanol with 5 percent
                gasoline) continue to be excluded.
                 We also disagree with NTSB that the exception for unit trains not
                carrying petroleum oil meeting the definition of a Class 3 flammable
                liquid or combustible liquid should be removed. Providing this
                exception aligns this rulemaking's applicability to unit trains with
                the subset of HHFTs carrying petroleum oil covered in other PHMSA
                rulemakings. Furthermore, the railroad can leverage information from
                the routing analysis required by 49 CFR 172.820 when developing plans.
                 We agree with AAR that the intent of COSRPs is to cover routes
                where applicable quantities of oil are transported. Railroads are not
                required to include routes or route segments in response zones when
                applicable quantities of oil are not transported on these routes or
                route segments. We assume that routes transporting applicable
                quantities of oil are a subset of the routes that railroads must
                already identify under the requirements for routing analysis in the HM-
                251 final rule. Therefore, we are editing the applicability language in
                Sec. 130.100 to state, ``any route or route segments used to
                transport. . .a single train carrying. . . .'' This clarification
                further addresses IAFC's recommendation to avoid using the term
                ``transports a single train transporting'' in the requirements proposed
                in Sec. 130.101, adopted in Sec. 130.100.
                 The CWA requires OSRPs for any facility that ``because of its
                location, could reasonably be expected to cause substantial harm to the
                environment by discharging into or on the navigable waters, adjoining
                shorelines, or the exclusive economic zone.'' PHMSA is not aware of
                evidence demonstrating that routes located more than 0.5 miles from
                navigable waters provide a sufficient buffer to ensure substantial harm
                could not occur in the event of a spill. The EPA's FRP requirements in
                section 5.0 of attachment C-III (``Calculation of the Planning
                Distance'') to appendix C of 40 CFR part 112 provide detailed planning
                calculations for facilities to determine the threat to fish and
                wildlife and sensitive environments or downstream public water intake
                as a result of a discharge of oil to navigable waters. For example,
                under section 5.6 of the above-referenced attachment, facilities
                located further than 0.5 miles from navigable waters must also consider
                the distance to nearby storm drains and factors that may be conducive
                to overland transport of oil to these storm drains. Additionally,
                section 5.7 of the above-referenced attachment requires an owner or
                operator to consider the ``proximity to fish and wildlife and sensitive
                environments, not bordering a navigable water'' in whether a facility
                poses substantial harm. PHMSA was unable to perform detailed analysis
                for features such as storm drains, or topographic features, along every
                point on an HHFT route, so PHMSA assumes that all rail routes used for
                applicable quantities of oil are expected to have the potential to
                impact navigable waters. Therefore, the entire route carrying
                applicable oils should be covered by the planning requirements for
                COSRPs.
                 PHMSA disagrees that Class II or III railroads transporting
                petroleum oil should be excluded from COSRP requirements. As evidenced
                by the derailment in Aliceville, Alabama, which involved a 90-car crude
                oil unit train, Class II and Class III railroads are transporting
                quantities of petroleum oil that pose the same risk as Class I
                railroads. Nothing in the regulations precludes Class I railroads from
                assisting short lines in developing a plan or precludes one railroad
                from utilizing resources provided by another railroad through contract
                or other means; however, both railroads would be subject to submitting
                a plan covering their responsibilities to ensure those responsibilities
                are clearly delineated.
                Summary of Comments Regarding General Requirements for COSRP Format
                (Sec. 130.105)
                 In the NPRM, PHMSA proposed a COSRP format requiring a core plan
                with general information applicable to the entire plan and response
                zones with information specific to the route segment. The NPRM proposed
                that the plan must use and be consistent with the core principles of
                the National Incident Management System (NIMS), including use of the
                Incident Command System (ICS) throughout the plan. The NPRM also
                proposed use of the Integrated Contingency Plan (ICP) as an alternate
                format.\20\
                ---------------------------------------------------------------------------
                 \20\ In June 1996, the National Response Team (NRT) published
                the Integrated Contingency Plan (ICP, or One Plan) Guidance with
                support from five agencies: The Environmental Protection Agency
                (EPA); the Coast Guard; the Occupational Safety and Health
                Administration (OSHA); the Office of Pipeline Safety of the
                Department of Transportation (DOT); and the Minerals Management
                Service (MMS) of the Department of the Interior. The ICP provides a
                mechanism for consolidating multiple facility response plans into
                one plan that can be used during an emergency. See 61 FR 28642
                ---------------------------------------------------------------------------
                 NTSB commented in support of the general plan requirements in
                proposed Sec. 130.102, stating they would ``serve to ensure a
                carrier's ability to respond to worst-case oil and petroleum discharges
                called for by Safety Recommendation R-14-005.''
                 We received comments from State government agencies and railroad
                stakeholders on the use of alternative plan formats. The Washington
                State Department of Ecology and AAR both supported the permissive use
                of ICPs as providing greater flexibility to meet planning standards
                when subject to requirements by other agencies. Both AAR and other
                State government commenters highlighted differences between
                requirements for State plans
                [[Page 6922]]
                and the proposed Federal plan requirements.
                 Several commenters supported the requirement that plans integrate
                NIMS and ICS, while also requesting further clarification of their
                roles. API commented in support of ensuring that ``the terminology used
                and practices required are consistent with established response
                organizations and structures to include the National Response
                Framework, the National Contingency Plan, the National Preparedness and
                Response Exercise Program (NPREP), and National Incident Management
                System (NIMS).'' Additionally, industry commenters highlighted the
                importance of NIMS and ICS, and recommended additional clarity. AAR
                stated, ``PHMSA should clarify that railroads, at their discretion, may
                use EPA's or DHS's criteria to be consistent with the NCP'' in relation
                to the requirements to use NIMS/ICS terminology. API highlighted the
                importance of railroad personnel following NIMS and ICS using ``common
                terminology, training and management of change for staff,'' further
                suggesting that PHMSA and FRA ``should be prepared to provide guidance
                and oversight to the regulated community as they establish processes
                that support personnel and organizational changes.''
                 IAFC recommended clarifying that NIMS and ICS are utilized
                throughout the plan by adding the underlined words to the proposed
                requirements: ``The plan must use and be consistent with the core
                principle of the National Incident Management System (NIMS) including
                the utilization of the ICS.''
                Comments in Response to General Requirements for COSRP Format (Sec.
                130.105)
                 PHMSA agrees with providing flexibility for railroads submitting
                multiple plans under differing Federal and State regulations. The ICP
                was developed to provide a single format for response plans in
                recognition that entities may be required to develop and submit plans
                for multiple Federal agencies to cover different facility types and
                activities. The ICP provides railroads with flexibility.
                 We are also adding an alternative for railroads to submit plans
                that meet State requirements, provided the State plan also meets the
                minimum requirements of the Federal standard. In addition to the State
                plan, the railroad must include the information summary (including the
                contact information for the Qualified Individual) and ensure through
                contract or other approved means the availability of private personnel
                and equipment necessary to respond to a worst-case discharge (WCD) or a
                substantial threat of such a discharge. The use of State plans is
                voluntary and, therefore, does not impose any additional burdens. PHMSA
                is adding this alternative to ensure that railroads do not engage in
                unnecessary duplication and to provide regulatory flexibility in
                response to comments that discuss the potential burden from states with
                differing requirements and plan formats. PHMSA encourages railroads to
                make use of this alternative when possible to minimize compliance
                costs. This alternative will provide equivalent or greater protections
                to the Federal response plan. Furthermore, the allowance of ICP and
                state plans is consistent with the OPS requirements for pipelines. In
                addition, it is PHMSA's intention that railroads will be able to use
                the same data and other information gathered for other response plans
                (i.e., Federal, state, international) to inform the OSRPs required
                under this rulemaking action, provided they meet PHMSA's OSRP
                requirements.
                 PHMSA agrees that consistency with NIMS and ICS is important.
                Requiring use of NIMS and ICS maintains consistency with EPA or DHS and
                ensures better consistency with the current response framework. We are
                adopting the requirements as proposed in the NPRM, with clarifications
                suggested by IAFC to highlight the role of the NIMS and ICS throughout
                the plan, and with minor edits for plain language.
                Summary of Comments Regarding Worst-Case Discharge for COSRP
                (Sec. Sec. 130.105 and 130.5)
                 Under the statute, worst-case discharge (WCD) means ``the largest
                foreseeable discharge in adverse weather conditions,'' as defined at 33
                U.S.C. 1321(a)(24). PHMSA proposed to define a WCD from a train consist
                as the greater of: (1) 300,000 gallons of liquid petroleum oil; or (2)
                15 percent of the total lading of liquid petroleum oil transported
                within the largest train consist reasonably expected to transport
                liquid petroleum oil in a given response zone.
                 Environmental groups stated the WCD calculation was too low and
                should instead include the entire petroleum content of all tank cars on
                the train and additional factors affecting the incidence or severity of
                a derailment (e.g., bridge collapse, tide activity, etc.). The
                coalition comments from Riverkeeper, Center for Biological Diversity,
                et al. stated that the analysis for WCD was insufficient. They provided
                several arguments against specific analysis points in the agency's
                determination of WCD, citing an incomplete incident history,
                disagreeing with adjustments made to account for the protections from
                the enhanced tank car standard in the HM-251 final rule, and asserting
                that CWA only provides deviation from setting a WCD at a package's full
                contents when ``secondary containment'' is provided.
                 The coalition comments from Riverkeeper, Center for Biological
                Diversity, et al. also stated the WCD should be redefined to include
                the full contents of all tank cars carrying petroleum oil in a train.
                They stated the full contents is a ``reasonable assumption'' and
                provided examples of Area Contingency Plans (ACP) that plan for a WCD
                using the full contents of all tank cars. The coalition comments from
                Riverkeeper, Center for Biological Diversity, et al. also stated that
                the final rule must ``appropriately account for a range of damages and
                resources required to rehabilitate communities and the environment
                after a worst-case disaster.''
                 Some private individuals supported removing the ``300,000 gallon''
                option for the WCD and requiring it to be 15 percent for all trains
                carrying petroleum oil. These commenters stated 300,000 gallons was too
                low of a calculation. However, they did not address train
                configurations for which 300,000 gallons is a greater volume than 15
                percent.
                Response to Comments Regarding Worst-Case Discharge for COSRP
                (Sec. Sec. 130.105 and 130.5)
                 This final rule adopts the proposed requirements for WCD. Under the
                statute, worst-case discharge means ``the largest foreseeable discharge
                in adverse weather conditions,'' as defined at 33 U.S.C. 1321(a)(24).
                The largest foreseeable discharge includes discharges resulting from
                fire or explosion.\21\ PHMSA and FRA have not observed any unit train
                derailments that have resulted in the release of the entirety of the
                train's contents. Furthermore, the likelihood of a unit train losing
                the entire contents of all tank cars is extremely low. Therefore,
                defining a WCD as the total contents of all tank cars overstates the
                ``largest foreseeable discharge.''
                ---------------------------------------------------------------------------
                 \21\ 33 U.S.C. 1321(j)(5)(D)(iii).
                ---------------------------------------------------------------------------
                 PHMSA disagrees that the analysis for the WCD is inadequate; it is
                based on the U.S. incident record relevant to the applicability of this
                rule. PHMSA identified and analyzed the quantities released from tank
                cars in the major derailments involving petroleum oil that have
                occurred in recent years in the
                [[Page 6923]]
                United States to estimate the approximate volume of petroleum oil that
                would constitute a WCD in the United States. PHMSA continues to
                maintain that including rail incidents that have occurred outside of
                the United States is not appropriate for COSRP analysis. PHMSA's
                analysis indicates that the WCD, in terms of the quantity released from
                tank cars that punctured or experienced thermal tears, would be
                approximately 500,000 gallons of petroleum oil.
                 Recognizing that the comprehensive safety enhancements, including
                tank car design enhancements promulgated in the HM-251 final rule,
                would reduce the overall quantity released in a derailment scenario
                occurring in the future, PHMSA did not propose 500,000 gallons as a
                planning volume for a WCD. The HM-251 final rule adopted lower speed
                limits for HHFTs during the phase-in period for the new tank car design
                to reduce risk. PHMSA believes the safety improvements for HHFTs
                adopted in the HM-251 final rule provide a reasonable basis for
                adopting a lower planning volume for WCDs. Adjusting the largest
                quantity released within the crude-by-rail derailment history (i.e.,
                474,936 gallons) by the expected mitigation of damages (0.33) from the
                HM-251 rule, we expect related safety improvements over the 10-year
                period from 2017-2026.\22\ This calculation (474,936 x 0.67) yields
                318,000 gallons. Specifically, the quantity released in the Casselton,
                ND indicates that a WCD would involve 474,936 gallons. Expressed as a
                percentage of the total petroleum oil lading carried by the derailed
                Casselton, ND train, a WCD would involve approximately 15 percent of
                the total (474,936 gallons released divided by the 3,088,000 gallons
                carried by the train; rounded down from 15.38 percent). Specifically,
                104 tank cars loaded with petroleum oil were involved in that
                derailment, and we have assumed that the all tank cars contained 29,700
                gallons. Notably, there have been only two derailment incidents in the
                U.S. safety record that had greater than 15 percent of material
                released: Casselton, ND and Aliceville, AL. The crude oil tank car
                fleet has seen major improvements since the HM-251 final rule, and if
                those derailments would have occurred given the current fleet
                composition, we would expect the releases for both incidents to fall
                beneath the WCD threshold. In addition, the WCD is sufficiently high so
                that no incident has exceeded it to the degree that it seems unlikely
                that preparation for the WCD amount would have resulted in an
                inadequate response to the incident that occurred.
                ---------------------------------------------------------------------------
                 \22\ Please see the benefits section, Section 3, in the RIA.
                ---------------------------------------------------------------------------
                 As previously discussed, PHMSA accounted for the expected
                mitigation of damages achieved through the HM-251 final rule to
                determine the proposed 300,000 gallon WCD planning volume. However, for
                the proposed WCD planning volume based on the percentage of the total
                petroleum oil lading within a train consist, PHMSA did not incorporate
                the expected mitigation of damages of the HM-251 rulemaking because we
                believe that this percentage does not account for uncertainty in large
                train configurations. Large train configurations (e.g., 135-tank car
                trains) have an appropriate WCD planning volume, commensurate with
                their presentation of increased risk.
                 As an illustration of the WCD definition and its application to WCD
                planning volumes for use in COSRPs, consider a 50-tank car train and a
                100-tank car train carrying petroleum oil. For the 50-tank car train,
                the WCD planning volume would be 300,000 gallons, since 300,000 gallons
                is greater than 15 percent of the total petroleum oil lading carried by
                that train (i.e., 225,000 gallons, assuming each tank car carries
                30,000 gallons). For the 100-tank car train, the WCD planning volume
                would be 450,000 gallons, since 15 percent of the petroleum oil carried
                by that train--or 450,000 gallons--is greater than 300,000 gallons.
                Furthermore, PHMSA acknowledges both the existence of even larger
                trains (e.g., 120-tank car trains), as well as the uncertainty
                surrounding the number of tank cars loaded with petroleum oil that
                might be transported by rail in the future.
                 PHMSA maintains that distinguishing larger train configurations
                from relatively smaller ones is appropriate given differences in risk,
                and we further maintain that this calculation is to be used to
                determine the ``planning volume'' for WCDs within a given response
                zone. It is not re-calculated for each train in operation within a
                given response zone; rather, it is based on the largest train
                configuration that can reasonably be expected to transport petroleum
                oil within a response zone. Furthermore, nothing in the rulemaking
                prohibits a railroad from using a higher planning volume in their plan.
                 Given that the discussion above applies to the WCD for the expanded
                applicability to unit trains of petroleum oil, we are clarifying that
                the calculation for 300,000 gallons or 15 percent of the lading across
                the train consist applies to unit trains. As stated in the NPRM, PHMSA
                did not propose to change the applicability requirements for tank cars
                exceeding 42,000 gallons. When separating the definition of ``maximum
                most probable discharge'' and ``worst-case discharge,'' the planning
                volume for tank cars exceeding 42,000 gallons was inadvertently
                omitted. Therefore, we are amending the definition of ``worst-case
                discharge'' to reinstate that the planning volume for tank cars
                exceeding 42,000 gallons ``equals the capacity of the cargo
                container.''
                Summary of Comments Regarding the Response Zone for COSRP (Sec. Sec.
                130.105 and 130.5)
                 In the NPRM, PHMSA proposed to define the term response zone as
                ``one or more route segments identified by the railroad utilizing the
                response resources which are available to respond within 12 hours after
                the discovery of a WCD or to mitigate the substantial threat of such a
                discharge for a comprehensive plan meeting requirements of subpart C.''
                PHMSA additionally asked whether the 12-hour response time was
                sufficient for all areas subject to the plan, or whether a shorter
                response time (e.g., 6 hours) would be appropriate for certain areas
                (e.g., High Volume Areas) which pose an increased risk for higher
                consequences from a spill. PHMSA further invited comments on the
                criteria and support-levels for ``high volume areas.'' Commenters to
                the NPRM provided recommendations for determination of the response
                zone and response times.
                 Commenters recommended several different revisions to the
                definition of response zone. Environmental groups and State agencies
                recommended re-defining response zones as pre-defined ``geographic
                response areas.'' This suggestion promotes resource sharing and more
                closely aligns with the EPA response structure. For example, the
                Minnesota Pollution Control Agency gave the example of non-profits
                ``WAKOTA CAER and Red Wing CAER,'' which have voluntarily formed a
                response cooperative. The Minnesota Pollution Control Agency further
                suggested utilizing response zones with pre-defined areas because,
                ``all railroads/industries operating within that geographical area
                could be encouraged or required to establish caches of equipment,
                contractors and other response resources jointly. Those resources would
                then be available to any industry with similar preparedness/response
                requirements.''
                 Other commenters supported resource sharing without linking the
                requirement to specific geographic response zone definition. ASLRRA
                requested that short
                [[Page 6924]]
                lines (Class II or III) operating as a tenant to a Class I railroad be
                permitted to enter into a voluntary agreement to use the plan and
                resources belonging to the Class I railroad for the area of track
                (e.g., response zone) which falls under the tenant/host relationship.
                NTSB encourages, ``small entities to enter into an agreement similar to
                the one managed by the Marine Preservation Association, a not-for-
                profit membership corporation that helps its members address problems
                caused by spills of oil and petroleum in transportation and allows its
                members to enter into a OSRO [oil spill removal organization] service
                agreements.''
                 AAR commented, ``PHMSA should allow each railroad (Class 1, 2 or 3)
                to define the number and location of `Response Zones' that meet the
                specific railroad's existing incident management team (``IMT'')
                location, organizational structure, and contractor network. Railroads
                should not be required to use a prescriptive set of planning standards
                that specify `Response Zones.' '' AAR provided sample regulatory text:
                 Railroad plan holders will develop ``Response Zones'' with
                response resources located within 12 hours of each point along the
                HHFT route where ``Response Activities'' would occur. Additionally,
                Response Zone locations, boundaries and numbers will be based on the
                existing location and organizational structure of each railroad's
                incident management team (IMT) including Qualified Individuals
                (QIs), response resources, and railroad-contracted Oil Spill Removal
                Organization (OSROs) available to arrive onsite to mitigate a WCD or
                substantial threat of one.
                 Overall, most commenters felt that 12 hours was too long and
                recommended a shorter response timeframe ranging from immediately to 6
                hours for all areas. Commenters expressed concerns about public safety
                and environmental damage that could be caused by spills, fires, or
                explosions during the first 12 hours and provided detailed descriptions
                of harm that could occur during that timeframe. Commenters claimed
                faster response times provide better protection, but they provided no
                quantitative data to support the effectiveness of faster response
                resources.
                 Commenters provided examples of State requirements and proposed
                legislation specifying response times for various activities related to
                responding to rail incidents. The State of Minnesota requires railroads
                to: (1) Within one hour, provide qualified personnel on-scene to assess
                the discharge; (2) within the first 8 hours, be capable of deploying
                resources to contain and recover 10 percent of the volume of the worst-
                case scenario and to protect sensitive areas and potable water intakes;
                and (3) within the first 60 hours, deploy full response resources for
                containing and recovering the worst-case scenario. The coalition
                comments from the Riverkeeper, Center of Biological Diversity, et al.
                provided the response times in the Emergency Response Guidebook and the
                requirements adopted in the HM-251 final rule for thermal protection
                capable of withstanding a pool fire for 100 minutes.
                 Commenters provided support for including different areas with a
                faster response timeframe. NTSB suggested that no areas should have a
                longer response time than 12 hours, given the capability for the 12-
                hour response time was already demonstrated. NTSB also suggested
                adopting a 6-hour response time for ``High Volume Areas'' (consistent
                with the definition in Sec. 194.5 of the pipeline regulations,
                excepting the pipeline diameter). NTSB further recommended that PHMSA
                adopt a High Volume Area definition ``that recognizes credible single
                HHFT exposure risks based on the proximity of the track to the river
                and natural drainage paths,'' citing the pipeline spill in Marshall
                Michigan \23\ and the Lac-M[eacute]gantic, Quebec derailment as having
                caused more than one billion dollars in damage and supporting a need
                for faster response times.
                ---------------------------------------------------------------------------
                 \23\ https://www.ntsb.gov/investigations/AccidentReports/Pages/PAR1201.aspx.
                ---------------------------------------------------------------------------
                 Commenters defined a wide range of features, such as population,
                schools, economic activity, cultural and ecological significance,
                geologic factors, speed of tides, and location of nuclear reactors or
                other higher risk activities, as necessitating a faster response time.
                Commenters most frequently described drinking water intakes,
                environmentally-sensitive areas, and specific local waterways, such as
                the Hudson River, as necessitating faster response times and more
                detailed identification or mapping in a plan. Commenters also included
                suggestions such as scaling response times based on the amount of time
                oil would take to reach water or the volume of applicable trains in an
                area as criteria for faster response times. The State of Idaho
                Department of Environmental Quality included concerns that inclement
                weather and fast moving water streams would delay response and lead to
                larger area of impact. Commenters also focused on risk factors, and
                suggested weighting factors from the railroad routing analysis required
                by Sec. 172.820 of the HMR. Commenters also provided the ``High
                Consequence Areas (HCA)'' from the part 195 of the OPS pipeline
                regulations as an example of risk-based criteria. These areas include
                population density in the definition and are related requirements for
                an operator's pipeline integrity management program. It should be noted
                this is a separate program from the OPS requirements for OSRPs in 49
                CFR part 194.
                 AAR requested clarification that response times are a ``planning
                standard, not a compliance standard. For example, if a response vehicle
                has a flat tire on the way to a response, the company should not be
                cited as being out of compliance.'' AAR also requested that PHMSA
                ``clarify that the 12-hour response timeframe applies only to track
                where HHFT trains traverse, and not to the entire rail network.'' AAR
                provided examples of specific changes to the regulatory text to clarify
                this responsibility.
                Response to Comments Regarding Response Zone for COSRP (Sec. Sec.
                130.105 and 130.5)
                 We are adopting the proposed requirements for response zones with
                clarification to the regulatory text in response to commenters. We
                disagree with limiting response zones to pre-defined areas, whether
                geographic response areas or similar criteria. Providing pre-defined
                response areas exceeds the scope of this rulemaking, as commenters did
                not have the opportunity to comment on such boundaries. Furthermore,
                the requirements for consistency with the NCP, ACP, along with the
                notification requirements, ensure that railroads have the necessary
                consistency with local and regional response structures.
                 We agree with AAR that the intent of the requirement for response
                zones is to allow railroads the flexibility to develop response zones
                and stage resources, provided that the planning standards for resources
                are met. The draft RIA provided an estimate of the number of response
                zones for each railroad for the purpose of estimating costs. We did not
                intend for the assumptions and estimation in the draft RIA to prescribe
                a specific number of response zones. Furthermore, we did not intend for
                railroads to provide information and resources about route segments
                where applicable quantities of oil are not transported. Therefore, we
                are clarifying both the definition of response zone and the general
                requirements to communicate that railroads may determine the boundaries
                of response zones, provided that the plan demonstrates that resources
                within the response zone meet the planning criteria. We are also
                clarifying that plans
                [[Page 6925]]
                with only one response zone do not need to duplicate information
                between the core plan and response zone.
                 In general, we agree that railroads and industries should be
                encouraged to share response resources; however, we disagree that
                adding pre-defined response zone boundaries for response zones is
                necessary to enable resource sharing. Nothing in this rulemaking
                prohibits the formation of cooperatives or other such resource sharing
                agreements, provided that each railroad required to have a plan
                demonstrates the availability of appropriate resources by contract or
                other means. Additionally, railroads communicate the response zone
                location to emergency response planning officials through the
                information sharing notification requirements adopted in Sec. 174.312,
                providing adequate information to enable resource sharing.
                 The purpose of the response time requirement is to ensure railroads
                are demonstrating that they can identify, and ensure by contract or
                other means approved by the President, the availability of private
                personnel and equipment necessary to remove, to the maximum extent
                practicable, a worst-case discharge (including a discharge resulting
                from fire or explosion), and to mitigate or prevent a substantial
                threat of such a discharge.\24\ USCG has developed planning guidance
                and standard calculations for response times in the 2016 ``Guidelines
                for the U.S. Coast Guard Oil Spill Removal Organization Classification
                Program.'' \25\ Adopting a 12 hour response time and the USCG's
                assumption that response resources can travel according to a land speed
                of 35 miles per hour ensures that the resources listed in the plan are
                available for a response and that response personnel will know when the
                resources can reasonably be expected to be available on-site. However,
                we disagree with AAR's recommendation that it is necessary to include
                additional regulatory language stating 12 hours is not a performance
                guarantee.
                ---------------------------------------------------------------------------
                 \24\ 33 U.S.C. 1321(j)(5)(D)(iii).
                 \25\ https://homeport.uscg.mil/Lists/Content/Attachments/1286/Guidelines%20for%20the%20USCG%20OSRO%20Classification%20Program.pdf.
                ---------------------------------------------------------------------------
                 In this final rule, we are adopting the requirement for a single
                response time of 12 hours in all areas. This response time is
                consistent with the requirement for ``all other areas'' used by the OPS
                for pipelines. In the NPRM, PHMSA requested public comment on whether
                the 12-hour response time would be sufficient for all areas subject to
                the plan, or whether a shorter response time (e.g., 6-hours) would be
                appropriate for certain areas (e.g. High Volume Areas) that pose an
                increased risk for higher consequences from a spill; on criteria to
                define such ``High Volume Areas'' where a shorter response time should
                be required, as well as whether the definition for ``High Volume Area''
                in 49 CFR 194.5 (excluding pipeline diameter) captures this increased
                risk, or if there is other criteria that can be used to reasonably and
                consistently identify such areas for rail; on whether requiring
                response resources to be capable of arriving within 6 hours would lead
                to improvements in response, and for specific evidence of these
                improvements; and on whether the final rule should have a longer
                response time than 12 hours for spills for all other areas subject to
                the plan requirements in order to offset costs from requiring shorter
                response times for High Volume Areas. Commenters did not provide
                adequate support to demonstrate that requiring the staging of resources
                for response times faster than 12 hours would bring about measurably
                improved protection or benefits, and that there were clear definitions
                for adequately defining high volume areas. Without sufficient data,
                PHMSA is unable to support a clear definition of a high volume area.
                Therefore, in the interest of safety and economic efficiency, PHMSA
                assumes the entire route threatens navigable water and that further
                identification for every point along the route would be impracticable.
                Rather, the use of 12 hours as a planning framework provides
                flexibility for OSROs to maintain larger inventory to be included
                within the response area. There is nothing prohibiting railroads from
                staging resources closer to specific route segments, and disagree that
                a voluntary designation will increase coverage for sensitive areas. We
                also note that providing response resources to remove, maintain, and
                mitigate WCD does not replace other emergency response procedures and
                resources for responding to a release of hazardous materials by rail.
                Summary of Comments Regarding COSRP Consistency With NCP and ACP
                (Sec. Sec. 130.110 and 130.115)
                 NTSB commented generally in support of compliance with the National
                Contingency Plan and Area Contingency Plan provisions proposed in Sec.
                130.103, stating they would ``serve to ensure a carrier's ability to
                respond to worst-case oil and petroleum discharges called for by Safety
                Recommendation R-14-005.''
                 Coalition comments from Riverkeeper, Center for Biological
                Diversity, et al. questioned whether the proposed ``minimum
                consistency'' with the NCP and ACPs meets the requirements of OPA 90.
                Conversely, AAR stated that PHMSA ``must clarify which elements are
                necessary for minimum consistency with the National Contingency Plan.''
                 IAFC supported the requirements for minimum consistency with NCP,
                but recommended additional clarification to ensure that the railroads
                understand that both Federal and state entities have an active role in
                the unified command, citing the NCP requirements in 40 CFR 300.105(d).
                The NCP requirements in 40 CFR 300.105(d) provide the ``organizational
                concepts of the national response system'' and describe a framework
                which, ``brings together the functions of the Federal Government, the
                state government, and the responsible party to achieve an effective and
                efficient response.'' IAFC suggested the proposed language for the
                requirement in Sec. 130.103(a)(1)(i), namely to ``[d]emonstrate a
                railroad's clear understanding of the function of the federal response
                structure'' be amended to include the ``applicable state and federal
                response structure.''
                 Overall, commenters supported consistency with the ACP, but had
                several suggestions related to the inclusion of Environmentally
                Sensitive Areas (ESAs). Environmental groups and private citizens
                supported special identification and protections for ESAs. They also
                described many specific geographic areas, or suggested criteria for
                determining which environmentally sensitive areas require additional
                protection. They often cited cultural, economic, and ecological
                significance in their descriptions. The coalition comments of Scenic
                Hudson and Riverkeeper highlighted the importance of including
                additional strategies to protect and deflect oil from ESAs. They
                further recommended including a requirement to update and revise the
                plan contents.
                 AAR noted that the burden of railroads determining ESAs would be
                too great and recommended limiting the requirement to:
                 [R]eadily available U.S. Fish and Wildlife and Sensitive
                Environment Regional Contingency Plans (RCPs), Area Contingency
                Plans (ACPs), Sub-Area Contingency Plans (SACPs) or Geographic
                Response Plans (GRPs) Annex(s) or databases to identify
                environmentally sensitive or significant areas as defined in Sec.
                130.5 of this part, along the route, which could be adversely
                affected by a worst-case discharge and reference available SACPs or
                GRPs deflection and protection strategies to protect these areas.
                 A private individual also requested that PHMSA ban the use of
                dispersants,
                [[Page 6926]]
                instead of limiting their use to scenarios where they are permitted and
                approved by the ACP and Federal OSC.
                Response to Comments Regarding COSRP Consistence With NCP and ACP
                (Sec. Sec. 130.110 and 130.115)
                 PHMSA maintains that the requirements for ``minimum consistency''
                fulfill the requirements of the CWA. The requirements for the NCP and
                ACP in 40 CFR part 300 include many sections that may not be applicable
                to the rail context. Clarifying which requirements must be followed for
                minimum consistency ensures the most important elements are included.
                Doing so also responds to AAR's comments in response to both the ANPRM
                and NPRM requesting additional clarity and provides greater consistency
                with the OPS requirements for pipelines. We further agree with IAFC
                that the intent of requiring a clear understanding of the Federal
                response structure is to ensure that railroads can operate within a
                unified command, which may include State entities. Therefore, we are
                simplifying the requirement to state that OSRPs must, ``[d]emonstrate a
                railroad's clear understanding of the Incident Command System and
                Unified Command and the roles and responsibilities of the Federal On-
                Scene Coordinator.'' Overall, we are adopting the requirements as
                proposed, with clarifications, as discussed in this section.
                 We agree with AAR that the intent of including ESAs was to ensure
                consistency with the approach identified in ACPs. We did not intend to
                include the additional burden of requiring a new category for analysis.
                Therefore, we are adopting AAR's suggestion that we clarify that the
                inclusion of required ESAs be limited to those which have been
                identified in the existing contingency plans. We are further
                simplifying the definition of ESA to mean a ``sensitive area''
                identified in the applicable Area Contingency Plan, or if no
                applicable, complete ACP exists, an area of environmental importance
                which is in or adjacent to navigable waters. We are not adopting the
                recommendation to expand the definition of ESAs to include additional
                areas and to include additional deflection strategies at this time.
                Doing so would require railroads to perform extensive analysis and
                develop new expertise, which would further delay the development and
                implementation of plans.
                 We further disagree that DOT should ban the use of dispersants, but
                rather the appropriate use should be determined per the NCP, ACP, and
                Federal OSC. The use of dispersants is generally not authorized by the
                NCP or ACP for inland oil discharges.
                Summary of Comments Regarding Notification Procedures and Contacts for
                COSRPs (Sec. 130.125)
                 Overall, commenters supported the inclusion of notification
                requirements. The NTSB commented in support of the notification
                procedures proposed in Sec. 130.105, stating they would ensure a
                carrier's ability to respond to worst-case oil and petroleum discharges
                called for by Safety Recommendation R-14-005.
                 Commenters also recommended providing time limits on the
                notification procedures. Riverkeeper, Center for Biological Diversity,
                et al. stated that because the proposed requirements do not explicitly
                require immediate communication ``between OSROs or the affected
                industry and the Federal official in charge of spill response,'' the
                proposed requirements do not meet the requirements of OPA 90.
                 Several commenters also recommended that the notification
                procedures either include additional state or local resources (e.g.,
                SERCs, TERCs, water utilities, etc.) or that the communication between
                the railroad and local resources be formalized with additional
                requirements. The State of Minnesota provided the State requirement for
                annual communication with emergency managers, fire departments, and
                employee unions as an example of more formal communication.
                Response to Comments Regarding Notification Procedures and Contacts for
                COSRPs (Sec. 130.125)
                 The proposed rule establishes a new section with requirements for
                the notification procedures and contact information that a railroad
                must include in a COSRP. The proposed rule sought to improve
                consistency with existing requirements for pipelines in Sec. 194.107
                and appendix A to part 194. Both part 194 and the combined comment of
                AAR and ASLRRA in response to the ANPRM include a requirement for
                immediate communication procedures. Therefore, in the final rule we are
                adding a requirement to include ``immediate notification procedures''
                to the proposed language in Sec. 130.107(a)(4) stating, ``the
                circumstances and necessary time frames under which the notifications
                must be made.''
                 We disagree that listing additional entities or further formalizing
                communication requirements is necessary at this time. The government
                structure and the entities that require contacting will vary between
                States or localities, and based upon the characteristics of the
                response zone. Furthermore, the plan requires consistency with the NCP
                and ACP, which requires the railroads to understand the response
                structure along the route. Additionally, the information sharing
                requirements adopted in part 174 provide contact between the railroad
                and State and tribal agencies.
                Summary of Comments Regarding Response and Mitigation Activities for
                COSRPs (Sec. 130.130)
                 Overall, commenters agreed that response and mitigation activities
                should be included in the plan. NTSB commented generally in support of
                the response and mitigation activities proposed in Sec. 130.106,
                stating they would ensure a carrier's ability to respond to worst-case
                oil and petroleum discharges called for by Safety Recommendation R-14-
                005; however, commenters provided a range of suggestions on the
                response and mitigation activities included in the plan.
                 Some commenters provided general support for the response and
                mitigation activities, but also recommended additional specificity or
                clarifications. IAFC recommended the proposed language requiring
                resources able to ``remove oil'' be edited to ``control and remove
                oil'' to clarify that the plan also includes common and necessary
                response resources which may not directly remove oil. The National
                Association of SARA Title Three Program Officials (NASTTPO) supported
                the proposed requirements for railroads to include the location and
                inventory of equipment that can be mobilized in a response, but
                recommended including the number and training level of personnel that
                will be mobilized and providing a description of the response time,
                assuming favorable weather.
                 Many commenters offered multiple suggestions to require railroads
                to provide response resources which exceeded the scope of the proposed
                requirements. For example, some commenters suggested requiring
                railroads to stage additional resources that were not proposed or to
                require specific equipment, such as helicopters with firefighting
                capabilities or ``SAFETY Rail Cars'' which contain firefighting and
                containment equipment. One private individual suggested all equipment
                or supplies should be heavily duplicated. Other commenters recommended
                adding requirements for railroads to provide equipment to local
                responders. For example, the City of Berkeley commented that response
                [[Page 6927]]
                resources should be available to first responders, in addition to the
                clean-up resources and personnel.
                 Commenters recommended requiring more detailed procedures. For
                example, commenters recommended including supplies and procedures to
                account for more specific WCD scenarios, such as specific adverse
                weather conditions, bridge collapses, and the effect of tides. Citizens
                Acting for Rail Safety-Twin Cities requested ``public education'' that
                includes evacuation procedures. Scenic Hudson and Riverkeeper suggested
                that, at a minimum, COSRPs should ensure, ``the maximum cleanup
                practicable, given both the weather, the physical conditions and other
                factors at the spill site.'' Commenters also recommended specifying
                requirements for differing procedures to account for different oil
                types, such as heavy- or light-crude oil, citing studies on differing
                clean-up procedures.
                 The coalition comments from Riverkeeper, Center for Biological
                Diversity, et al. expressed concern that ``certifying'' that the
                identified resources are available by ``contract or other means'' is
                not sufficient to ensure that the preparations have been made. They
                requested that PHMSA reintroduce the requirement that OSRPs show--by
                contract--that preparations have been made to respond to the maximum
                extent practicable. They further specified that the proposed rulemaking
                should account for a range of damages and resources required to
                rehabilitate communities and the environment after a WCD. The comments
                included a list of examples of potential damages ranging from ``loss of
                life'' to ``fear of a future catastrophe,'' but do not specify figures
                or how to address these damages beyond ``inclusion'' in the WCD.
                Response to Comments Regarding Response and Mitigation Activities for
                COSRPs (Sec. 130.130)
                 Overall, we have adopted the proposed requirements, which continue
                to align with the pipelines requirements. Many of the additional
                response resources recommended by commenters would increase the burden
                of the rulemaking beyond what was proposed in the NPRM. Furthermore,
                the comments recommending additional resources and activities lacked
                data about the corresponding costs and benefits of these
                recommendations. We did not propose specific mitigation activities. We
                are clarifying in the final rule that the equipment and resources must
                meet the planning standards outlined in appendix C of 33 CFR part 154.
                This is consistent with the approval of OSRPs for pipelines in 49 CFR
                part 194 and the assumptions in the NPRM; it also maintains a level of
                OSRO response resources equivalent to that specified by the USCG in 33
                CFR 154.1035 and 155.1035. We are maintaining the exception from
                listing equipment for OSROs classified in the aforementioned sections.
                We expect railroads, in cooperation with OSROs, to determine and
                describe the appropriate mitigation and response activities they use
                relative to the response zone and available resources. The guidance in
                appendix C of 33 CFR part 154 provides the necessary flexibility to
                allow railroads and OSROs to tailor activities and equipment to the
                specific geographic conditions in the response zone.
                 We agree with IAFC's proposed edit to include the word ``control.''
                It clarifies that the range of activities may include those beyond the
                direct removal of oil.
                 We disagree with coalition comments from Riverkeeper, Center for
                Biological Diversity, et al. that the language to ``certify'' response
                resources is inadequate. The plan requirements make it clear that the
                resources must be available by ``contract or other means.'' \26\ Plans
                must meet all requirements of subpart C of part 130 for approval and,
                therefore, must demonstrate a ``contract or other means'' of
                availability.
                ---------------------------------------------------------------------------
                 \26\ ``Contract or other means'' is defined in 49 CFR 130.5.
                This rulemaking did not change the definition.
                ---------------------------------------------------------------------------
                Summary of Comments Regarding Training Procedures for COSRPs (Sec.
                130.135)
                 The NPRM proposed requirements for training of railroad employees
                to ensure that they are capable of carrying out a role in the plan and
                are familiar with the applicable requirements. The proposed training
                requirements further specify the minimum elements to be included in
                training for all reporting personnel and railroad employees subject to
                the plan. The NPRM also proposed requirements for the railroad to
                document and certify completion of this training. The NPRM asked
                commenters whether ICS incident commander-level training should be
                required for the Qualified Individual.
                 PHMSA received several comments about COSRP training procedures.
                Many commenters highlighted the importance of training. NTSB commented
                generally in support of the training procedures proposed in Sec.
                130.107, stating they would ensure a carrier's ability to respond to
                worst-case oil and petroleum discharges, as called for by Safety
                Recommendation R-14-005. Many commenters provided suggestions for
                additional training requirements that exceeded the scope of the
                proposed rulemaking, such as requiring railroads or shippers to either
                train or provide additional funding for the training of firefighters
                and local responders. NTSB also recommended requiring the use of
                training referenced by OSHA in 29 CFR 1910.120(p) and (q) and by the
                National Fire Protection Association (NFPA) in Standard 472.12. The
                State of Idaho recommended increasing training frequency to every three
                years, instead of every five years.
                 Some industry commenters suggested additional clarification was
                needed for training requirements. API suggested that the training
                standards lacked specificity and needed to describe the required
                training for the Qualified Individual and clarify differences ``for
                personnel on the train versus other railroad personnel, or whether or
                not plans and employee training records should be kept on the trains or
                with the conductor.'' They recommended aligning these practices with
                commonly accepted practices for other modes and facilities to provide
                consistency and confidence in railroad capabilities.
                 AAR commented that the proposed training is too broad and does not
                sufficiently protect railroads from liability relating to volunteers
                working under the direction of state and other stakeholder groups. They
                provided suggested edits to the proposed regulatory text in Sec.
                130.107(c)(4)(d), including clarifying that ``[p]lan holders shall not
                be responsible for contracting with or training volunteers during
                responses working under the direction of state or stakeholder groups''
                and distinguishing that additional training standards may apply to
                response personnel ``under contract to the plan holder.''
                 Commenters also provided suggestions on the recordkeeping and re-
                training requirements. The coalition comments from Riverkeeper, Center
                for Biological Diversity, et al. stated it is not sufficient to certify
                that employees received training, as 33 U.S.C. 1321(j)(5)(D)(iv) states
                that ``a response plan must describe the training to be carried out
                under the plan to ensure the safety of the facility and to mitigate or
                prevent the discharge.''
                 Many commenters also responded to PHMSA's inquiry in the NPRM about
                whether the proposed training requirements were sufficient, or whether
                the Qualified Individual should be trained to the ICS Incident
                Commander-level. Commenters, including State governments and
                [[Page 6928]]
                emergency responder organizations provided support for requiring either
                the Qualified Individual or another individual to receive Incident
                Commander-level training. The Washington State Department of Ecology
                explained that the Qualified Individual and the Incident Commander do
                not perform the same functions, stating that railroads must identify an
                individual who will be trained and qualified to act as an Incident
                Commander, whether it is the Qualified Individual or some other
                individual. The IAFC further recommended requiring that Incident
                Commander training be consistent with the intent of ``Homeland Security
                Presidential Directive-5--Management of Domestic Incidents.'' Other
                commenters recommended further identifying and outlining the roles and
                responsibilities of an Incident Commander in the COSRP until the
                appropriate local, State, or Federal authorities take control of the
                incident. API supported a requirement to include Incident Commander
                training, as consistent with use of NIMS and ICS, but stated PHMSA and
                FRA should be prepared to provide guidance and oversight to the
                regulated community as they establish processes that support personnel
                and organizational changes.
                Response to Training Procedures for COSRP Comments (Sec. 130.135)
                 We disagree with adding requirements for railroads to train
                emergency responders in State and local governments, or otherwise
                provide training which exceeds the scope of the rulemaking. Such
                comments did not account for current programs available to improve
                training of emergency responders. For example, PHMSA's Hazardous
                Materials Emergency Preparedness (HMEP) Grant Program awards more than
                $20 million annually in grant funding to States, Territories, and
                Tribes to carry out planning and training activities to ensure State
                and local emergency responders are properly prepared and trained to
                respond to hazardous material transportation incidents.\27\
                ---------------------------------------------------------------------------
                 \27\ https://www.phmsa.dot.gov/grants/hazmat/hazardous-materials-grants-program.
                ---------------------------------------------------------------------------
                 We agree with the industry, State and other governments, and
                emergency responder organizations that a best practice is for the
                individual acting as the Incident Commander to have Incident Commander-
                level training to ensure the ability to operate in a unified command.
                We further agree that the railroads should have the flexibility to
                designate the Incident Commander, as someone other than the Qualified
                Individual to receive the training and serve in this role; however, we
                note that mandating that the railroad name the incident commander or
                requiring Incident Commander-level training may limit the railroad's
                ability to quickly establish an incident command after a release.
                Employees in proximity to an event may need to temporarily serve as the
                Incident Commander until additional employees arrive onsite to assume
                command. Therefore, we are encouraging, but not mandating, use of ICS-
                300, Intermediate ICS for Expanding Incidents, or equivalent, and NFPA
                472 Chapter 8 for Incident Commander-level training as a best
                practice.\28\ Additional guidance can be found in NFPA High Hazard
                Flammable Trains (HHFT) On-Scene Incident Commander Field Guide.\29\
                ---------------------------------------------------------------------------
                 \28\ https://training.fema.gov/emicourses/crsdetail.aspx?cid=E300&ctype=R.
                 \29\ http://www.nfpa.org/news-and-research/fire-statistics-and-reports/research-reports/for-emergency-responders/fireground-operations/high-hazard-flammable-trains-on-scene-incident-commander-field-guide.
                ---------------------------------------------------------------------------
                 We further disagree that the proposed training requirements lack
                clarity or create undue burdens to train volunteers. The training
                requirements allow railroads flexibility to provide training
                appropriate to an employee's role in carrying out the duties specified
                in the response plan. The regulatory text provides a note and
                illustrative examples as a reminder that other training may be
                applicable (see Sec. 130.135(d)). However, this cross-reference does
                not impose new training burdens on employees or volunteers. Therefore,
                we are adopting the training requirements as proposed.
                Summary of Comments Regarding Recordkeeping, Plan Updates, Submission,
                and Approval for COSRPs (Sec. Sec. 130.145 and 130.150)
                 The NPRM inquired whether the proposed mandatory compliance date of
                60 days after the date of publication of a final rule in the Federal
                Register was feasible. PHMSA received two comments in response to this
                inquiry. Citizens Acting for Rail Safety-Twin Cities supported the 60-
                day compliance date. AAR requested 180 days, stating the time was
                necessary for the coordination, contracting, and planning required for
                covered routes. They further stated that additional time would be
                needed if PHMSA did not adopt their recommendation for clarifying use
                of previously identified ESAs. API also suggested additional time would
                be necessary for railroads to develop COSRPs.
                 We also received other comments on various aspects of the
                recordkeeping and approval requirements. The coalition comments from
                Riverkeeper, Center for Biological Diversity, et al. recommended
                including ``CWA and OPA'' in the statement, ``FRA will approve the
                response plan if FRA determines that the response plan meets all
                requirements of this part to ensure plans meet both the regulations and
                the statute.''
                 Many commenters, such as the NASTTPO, agreed that FRA was the
                appropriate agency to review and approve plans. Several commenters
                questioned whether FRA had the resources and knowledge to approve and
                enforce the oil spill response planning regulations. NTSB noted that
                the requirements for FRA approval would work toward implementing the
                intent of Safety Recommendation R-14-2. NSTB further stated:
                 It is vital that the FRA develop a program and provide
                sufficient resources for thorough on-site audits. This will help to
                avoid the regulated industry essentially policing itself and spill
                response plans being approved without sufficient verification.
                Therefore, we believe that while the proposed requirements in the
                NPRM for comprehensive OSRPs are complete and admirable, it is not
                enough to approve plans without trained staff to verify that
                sufficient resources and tactics are in place to ensure timely and
                effective responses to worst-case oil discharges.
                 API encouraged DOT to ensure that FRA receives the personnel,
                resources, and expertise necessary to execute its new role effectively
                and efficiently. API requested additional details related to FRA's
                COSRP administration, approval, and adjudication processes.
                 The Washington State Department of Ecology supported FRA approval
                with the proposed consultation by EPA and USCG, as well as expanding
                consultation to include states. Several commenters recommended
                requiring approval from additional entities. Private individuals
                suggested public hearings on plans prior to approval. Riverkeeper,
                Center for Biological Diversity, Sierra Club, etc. requested inclusion
                of ``regulatory impact survey'' of FRA's ability to enforce these
                requirements.
                 The coalition comments from Riverkeeper, Center for Biological
                Diversity, et al. further recommended adding a two-year limit to the
                time a railroad can operate without a plan, after submitting it for
                approval to better align with the OPA 90 law. The State of Idaho
                Department of Environmental Quality recommended requiring FRA to
                approve or deny plans within 180 days.
                [[Page 6929]]
                 Comments from State governments and others suggested stricter
                timelines for resubmission of plans. The State of Minnesota suggested
                plans should be resubmitted every three years, instead of the five
                years proposed in the rulemaking. The State of Idaho Department of
                Environmental Quality recommended that the railroad should only have 30
                days to revise plans that have been resubmitted after an initial
                denial. Citizens Acting for Rail Safety-Twin Cities suggested that
                railroad plans should be updated and tested at least annually and
                within 30 days of railroad ownership change.
                 Other commenters requested additional clarification or criteria for
                conditions requiring resubmission of plans. Scenic Hudson and
                Riverkeeper stated that plans should be revised to reflect periodic
                updates to the ACP, especially when changes to the ESAs are made or the
                associated protection and/or deflection strategies are updated.
                 AAR supported the inclusion of specific criteria that determine
                when railroads must update plans, but suggested the proposed language
                was overly broad and required clarification. Specifically, AAR
                suggested clarifying that the requirement to modify plans to include
                new routes should only apply to HHFT routes. AAR also suggested that
                ACP or NCP changes must be presented to the railroad before being
                required to be considered for plan changes. AAR also suggested removing
                the requirement, ``Any other information relating to circumstances that
                may affect full implementation of the plan.''
                Response to Comments Regarding Recordkeeping, Plan Updates, Submission,
                and Approval for COSRPs (Sec. Sec. 130.145 and 130.150)
                 We agree with AAR's comments that 180 days (6 months) is
                appropriate for plan development, given the inclusion of geographic
                information. Railroads have already developed basic plans that include
                some components of the comprehensive oil spill response plans.
                Railroads are required to perform a routing analysis in 49 CFR 172.820,
                which indicates the location of applicable route segments. Furthermore,
                many railroads have participated in voluntary programs to increase
                spill preparedness. However, other plan elements may require
                reformatting or additional data gathering. Therefore, we believe 180
                days is sufficient for the additional planning and coordination
                necessary to submit the COSRPs.
                 The Secretary of Transportation has to approve OSRPs for rail tank
                cars. While this authority was originally delegated by the Secretary to
                FRA, after considering comments questioning FRA's resources to approve
                plans, this authority is transferred to PHMSA, so that a sole DOT
                administration will have the authority to approve OSRPs. In addition to
                reviewing and approving OSRPs, PHMSA also has authority to pursure
                administrative penalties for violation of part 130, as it is issued
                pursuant to its delegated authority of 33 U.S.C. 1321(j).\30\ PHMSA's
                Oil Spill Preparedness and Emergency Support Division is an established
                program with experience approving OSRPs for pipelines. However, as with
                other PHMSA programs and procedures, PHMSA will continue to work with
                FRA for guidance on rail specific information and procedures, including
                shared review and enforcement. We are also adopting the option for
                PHMSA to consult with the EPA or the USCG, as needed. As 33 U.S.C.
                1321(j)(5)(E) requires that a plan that meets the minimum requirements
                be approved, we maintain that mandating multi-agency, public
                participation, or additional approval activities would fail to provide
                enough value in an explicit approval process to justify the increased
                burden and potential delay.
                ---------------------------------------------------------------------------
                 \30\ 33 U.S.C. 1321(b)(6) authorizes the Secretary of
                Transportation to assess ``Class I'' administrative penalies as
                specified and as updated in 40 CFR 19.4. The Attorney General has
                authority, pursuant to 33 U.S.C. 1321(b)(7), to pursue a civil
                penalty action in the district court in which is the defendant is
                located, resides, or is doing business.
                ---------------------------------------------------------------------------
                 We disagree with Riverkeeper, Center for Biological Diversity, et
                al. that it is necessary to include ``the OPA and CWA'' in the
                regulatory text specifying plan approval. The regulatory authority for
                part 130 references the appropriate citations for CWA, and the
                requirements have been promulgated in accordance with the statutory
                requirements. Further specifying this law in the regulatory text as
                suggested by these comments may cause confusion.
                 We agree with Riverkeeper, Center for Biological Diversity, et al.
                that a two-year limit for the time a railroad can operate without a
                plan after submitting it for approval should be added to better align
                with the OPA 90 law (33 U.S.C. 1321(j)(5)(G)). We have added language
                to meet the requirements of OPA 90. Although, the NPRM did not include
                language specifying two years, the additional burden to approve plans
                in a timely manner is placed on PHMSA; there is no additional burden on
                railroads.
                 We disagree with States recommending a stricter timeline for
                resubmission of plans, as this goes beyond the proposed rulemaking and
                creates an additional burden for railroads not proposed. Furthermore,
                the requirement for resubmission every 5 years aligns with OPS
                requirements for pipelines and requires resubmission of plans within 90
                days of significant changes that affect the implementation of the plan.
                We do not expect that more frequent submission of non-significant
                changes (i.e., changes that will not affect the implementation of the
                plan) will improve response.
                 We agree with commenters on many of the clarifications requested
                regarding the approval and submission requirements. We agree with
                Scenic Hudson and Riverkeeper comments that changes to the
                identification ESAs or deflection strategies may require resubmission
                of the plan. In the proposed rule, we included language requiring
                updates for ``[a] change in the NCP or an ACP that has significant
                [effect] on the equipment appropriate for response activities.'' As
                ESAs are a component of the ACP, they would fall under this
                requirement. We have added language clarifying this relationship and
                explaining that a change to applicable ESAs is an example of a
                significant change to the ACP, requiring an update. We have also added
                ``the type of oil transported, if the type affects the required
                response resources, such as a change from crude oil to gasoline'' as an
                example of a change requiring an update. We agree with AAR that
                railroads only need to include updated route information if the route
                is used to transport trains requiring a COSRP.
                 We disagree, however, that further clarification of the
                requirements triggering an update to the plan is necessary. We also
                disagree with AAR that NCP and ACP changes must be presented to the
                railroads. It is the railroads' responsibility to ensure they maintain
                consistency with the NCP and ACP for the route segments in which they
                are operating. We further disagree that including ``information
                relating circumstances that may affect full implementation of the
                plan'' is overly broad. This language is consistent with the
                longstanding language in the OPS requirements for pipelines, and
                ensures that railroads are updating plans to reflect changing
                conditions and informing those who need to know.
                 We disagree with commenters that the methods proposed in Sec.
                130.109 and adopted in Sec. 130.145 for railroads to respond to
                alleged deficiencies are inadequate and should be either further
                limited or further elaborated. These requirements are parallel to the
                longstanding requirements adopted by the OPS for pipelines, which
                ensure a documented and timely response to
                [[Page 6930]]
                either fix or contest the identification of deficiencies by the
                approval agency.
                Comments Regarding Confidentiality and Security Concerns for COSRPs
                (Sec. 130.150)
                 Industry commenters described the plans as sensitive for both
                business and security concerns. AAR's comments highlighted concerns
                that releasing COSRPs to the public would lead to security risks. The
                comments emphasized that they considered routing information to be
                especially vulnerable. AAR cited terrorist propaganda targeting
                petroleum trains as support for their position. Other commenters
                highlighted the value of releasing plan information to a broader
                audience. These commenters expressed their belief in the importance of
                sharing information freely with State entities, emergency responders,
                and the public. The coalition comments from Riverkeeper, Center for
                Biological Diversity, et al. supported full public disclosure, but
                suggested that the plans be shared with public and local response
                agencies at a minimum. They requested details about which specific
                COSRP elements are sensitive. Members of Congress, States, and cities
                suggested both State and/or local authorities should receive unredacted
                plans, as they are familiar with protecting information, and since
                advance knowledge of the plans can help them better respond to
                incidents. For example, the City of Davis, California, provided
                examples of pipeline information and dam inundation maps, for which
                first responders and local entities who participate in NIMS structure
                sign non-disclosure agreements. Comments submitted on behalf of San
                Francisco Baykeeper requested the comprehensive plan information be
                provided online, including sensitive site strategies.
                Response to Comments Regarding Confidentiality and Security Concerns
                for COSRPs (Sec. 130.150)
                 PHMSA values transparency and provides resources to the emergency
                response community in many forms. We continue to disagree, however,
                that providing an entire COSRP to emergency responders or the public
                will lead to better preparedness. We agree with AAR and ASLRRA that
                some elements of a COSRP may contain information that is business
                confidential, SSI, or personally identifiable information. Other
                elements are specific to railroad operations and will not inform the
                actions of first responders or communities.
                 Therefore, we are adopting the proposed requirements that railroads
                may follow existing procedures to request confidential treatment for
                documents filed with the agency, provided that the information is
                exempt by law from public disclosure (e.g., exempt from the mandatory
                disclosure requirements of the Freedom of Information Act (5 U.S.C.
                552), required to be held in confidence by 18 U.S.C. 1905). However, we
                are changing the citation for confidential information from FRA's
                procedures in 49 CFR 209.11 to PHMSA's equivalent procedures in 49 CFR
                105.30. Under this process, the railroads may submit a redacted version
                of the plan, but PHMSA retains the right to make its own determination
                in this regard. We disagree with the comment that specific examples of
                confidential information should be provided. These decisions are
                determined on a case-by-case basis as differences between the levels of
                detail provided by the railroad may impact the determination. We
                maintain that these procedures are well-established and allow for both
                transparency and the safe and secure flow of information.
                 To ensure that State, tribal, and local government planning
                agencies receive advanced notification of the most pertinent
                information from COSRPs, we are adopting the proposed information
                sharing requirements in Sec. 174.312 to include a description of the
                response zone and the contact information for the Qualified Individual
                for HHFTs subject to the response plan.
                Summary of Comments Regarding Equipment Testing and Drill/Exercise
                Procedures for COSRPs (Sec. 130.140)
                 NTSB commented in support of the equipment testing and drill
                requirements proposed in Sec. 130.108. One commenter recommended
                requiring heavily duplicated equipment testing. No other comments
                addressing the proposed equipment testing requirements were received.
                The NPRM received several comments on the drills/exercises.
                 NTSB and several other commenters recommended changing the term
                ``drill'' to ``exercise'' for consistency with National Scheduling
                Coordination Committee and PREP Guidelines. API requests additional
                clarification on use of Government Initiated Unannounced Exercises
                (GIUEs) in accordance with the PREP Guidelines. Other commenters
                commented in support of government-led exercises and drills.
                 Many commenters highlighted the value of regular exercises or
                drills between railroads and the local response community. Minnesota
                highlighted a State requirement for railroads to conduct at least one
                containment, recovery, and sensitive areas-protection drill every three
                years. NASTTPO described the need for exercises in rural areas,
                acknowledging, ``we have no expectation that rail carriers would be
                paying for the attendance of local first responders at training events
                and exercises, nor do we have an expectation that these exercises could
                rapidly be conducted in all areas,'' but continuing to request that
                rail carriers assess the local hazardous material response capability
                along their routes in conjunction with WCDs and prioritize field
                exercises and training for first responders in vulnerable areas.
                Response to Comments Regarding Equipment Testing and Drill/Exercise
                Procedures for COSRPs (Sec. 130.140)
                 We disagree with commenters that duplicate equipment testing is
                necessary for all equipment. We are adopting the proposed requirement
                to describe and certify that equipment testing meets the manufacturer's
                minimum requirements. This ensures that the equipment is maintained as
                intended by the manufacturer and aligns with other Federal OSRP
                requirements under the USCG.\31\
                ---------------------------------------------------------------------------
                 \31\ 33 CFR 154.1057(a)(1).
                ---------------------------------------------------------------------------
                 This final rule adopts the use of PREP Guidelines as proposed, with
                a minor change in wording. We agree with commenters that the word
                ``drill'' should be replaced with ``exercise'' for better consistency
                with the PREP Guidelines. We disagree that commenters provided
                sufficient data to justify further prescribing exercise requirements at
                this time.
                 On April 11, 2016, USCG announced that the updated 2016 PREP
                Guidelines have been finalized and are now publicly available.\32\
                These updates included broadening section 5 of the PREP Guidelines to
                allow for the inclusion of other DOT/PHMSA-regulated facilities, such
                as rail. This provides an option for railroads to conduct exercises
                using the same guidelines as pipelines. The scope of the 2016 PREP
                Guidelines exercises is to: Demonstrate notification processes and
                accessibility between key facility personnel and the Qualified
                Individual; exercise the IMT's organization, communication, and
                decision[hyphen]making in managing a response; and demonstrate the
                ability to deploy response equipment identified in the Facility
                Response Plan (FRP). The 2016 PREP Guidelines also specify that DOT/
                PHMSA has--and reserves--the
                [[Page 6931]]
                authority to conduct and require an operator to participate in a GIUE.
                ---------------------------------------------------------------------------
                 \32\ 81 FR 21362.
                ---------------------------------------------------------------------------
                Summary of Comments Regarding Implementation of COSRPs and PHMSA
                Response (Sec. 130.155)
                 The NTSB provided support for the response plan implementation
                requirements proposed in Sec. 130.112, stating they would ensure a
                carrier's ability to respond to worst-case oil and petroleum
                discharges, as called for by Safety Recommendation R-14-005. No other
                comments were received for this requirement. Therefore, we are adopting
                implementation language as proposed.
                Summary of Comments Regarding Requirements for HHFT Operators and PHMSA
                Response (Sec. 174.310)
                 The State of California Department of Fish and Wildlife opposed
                including a cross-reference to part 130 requirements for COSRPs in the
                requirements for operators of HHFTs in Sec. 174.310, stating that
                inclusion of the requirement inaccurately associates the plan with
                safety requirements related to the design, operation, and maintenance
                of railroads.
                 We disagree. Section 174.310 provides a consolidated list of PHMSA
                requirements specific to HHFTs. The section includes both unique
                requirements and cross-references (e.g., additional security planning
                requirements in Sec. 177.820). Adding a cross-reference to COSRPs in
                part 130 for those HHFTs carrying petroleum oil provides better clarity
                for navigating PHMSA's regulations, consistent with the intent of the
                section. We have also added a cross-reference to the HHFT information
                sharing notification in Sec. 174.312 for clarity. These cross-
                references do not impose new burdens on railroads.
                C. Summary of HHFT Information Sharing Notification Comments (Sec.
                174.312)
                 PHMSA received approximately 20 comments about the proposed HHFT
                information sharing requirements. These comments fall into several
                categories, including applicability, notification recipients, frequency
                of notification, data security, and confidentiality concerns. PHMSA
                also received several comments outside the scope of this rulemaking
                requesting advanced notification of all hazardous materials rail
                shipments or notification to various local entities following an
                incident. The Kentucky Emergency Response Commission supported the
                proposed requirements in Sec. 174.312 as written in the NPRM.
                 PHMSA received a small number of comments on the appropriate
                quantity threshold at which the HHFT information sharing requirements
                would apply. These suggested thresholds included: One car of any
                hazardous material; any oil; any hazardous material in any quantity;
                and a general reduction in the number of cars triggering the
                notification requirements. NTSB stated that the HHFT applicability
                partly satisfies Safety Recommendation R-14-14 in that emergency
                response agencies would have access to periodic reports of flammable
                hazardous material commodities transported through their communities,
                but urged PHMSA to require all railroads to provide advanced
                notification to communities for all hazardous materials transported on
                a given route.
                 Generally, most comments concerning notification recipients agreed
                with supplying HHFT information to the SERCs and TERCs. Several
                commenters also supported SERCs and TERCs further disseminating
                information to the appropriate local government officials. IAFC
                suggested adding fusion centers as an additional entity to receive
                notifications, but clarified that fusion centers should not replace
                SERCs. In terms of TERCs specifically, two commenters suggested that we
                work closely with tribes and allow their leadership to determine the
                best approach. One comment from AAR requested that the final rule
                mandate a registration system for SERCs and TERCs to receive
                information. NTSB supported expanding the notification requirements to
                include LEPCs.
                 PHMSA received several comments about the frequency and type of
                information provided to SERCs and TERCs. IAFC agreed with the
                requirement for monthly updates and updates for when routes change a
                significant amount. They highlighted that receiving active, monthly
                notification was useful for emergency response planning by fire chiefs.
                AAR stated that the monthly reporting requirement would be redundant
                and asked that a new report should only be filed when there is a change
                in volume of 25 percent or greater. Commenters also requested more
                detailed notification of shipments either before or after incidents,
                including ``real-time notification'' of hazardous materials train
                consists. NTSB supported further inclusion of additional resources
                (i.e., an emergency coordinator who participates in the local emergency
                planning process), additional notice of any operational changes that
                could affect emergency planning, and any information necessary to
                develop and implement local emergency plans.
                 The most discussed category was the topic of data security and
                confidentiality. PHMSA received several comments on this topic with
                commenters either asking for the information to be more widely
                available or requesting increased confidentiality measures. State
                governments, environmental organizations, and a private individual were
                in favor of keeping the information public. A local government, trade
                organizations, a carrier, and an emergency response organization were
                in favor of keeping information confidential. Both sides provided
                various reasoning for their given perspective. The Washington State
                Department of Ecology explained that the requirement to provide
                aggregate information weekly is ``consistent and complimentary with
                Washington law of aggregating crude rail information when releasing it
                to the public.'' The commenters advocating for this information to be
                public argued that making information private will put ``the SERC and
                TERC staff in a situation of undue legal jeopardy'' or cause confusion
                and delays in further providing information to appropriate entities.
                Commenters further supported public dissemination, as this information
                is not considered security sensitive information (SSI) by a number of
                States, right-to-know, and FRA's previous October 2014 Information
                Disclosure Notice.\33\ Several comments mentioned FRA's determination
                in the October 2014 Information Disclosure Notice that crude-by-rail
                information required to be reported is not business confidential or
                proprietary information. Industry commenters, such as Union Pacific
                Railroad, advocated for this information to be withheld from the
                public. They argued that the proposed rule fails to meet the FAST Act
                requirement to identify rail information as sensitive, and expressed
                security concerns over the requested information being publicly
                available. The American Fuel & Petrochemicals Manufacturers (AFPM)
                specifically requested that the information be exempt from public
                disclosure--including state FOIA and sunshine laws--for anyone without
                need-to-know, due to concerns over security.
                ---------------------------------------------------------------------------
                 \33\ 79 FR 59892.
                ---------------------------------------------------------------------------
                 Some comments supported a mixed approach, supporting both greater
                public availability of data and increased security measures. One
                comment requested that PHMSA and FRA establish guidelines as to what
                information is considered non-public
                [[Page 6932]]
                SSI. Another comment suggested that security and confidentiality should
                be controlled at the SERC level. Commenters explained that SERCs have
                experience properly controlling other sensitive information. Some
                commenters suggested that local governments should receive the
                notification, but sign non-disclosure agreements.
                Response to Comments Regarding HHFT Information Sharing Notification
                (Sec. 174.312)
                 PHMSA disagrees that the applicability threshold should be lowered.
                Lowering the threshold is outside the scope of this rulemaking, and was
                not sufficiently supported by commenters. Additionally, a lower
                threshold may include non-unit trains in the requirement and
                significantly increase cost for small businesses. As such, the HHFT
                threshold captures the risk of unit trains and provides a consistent
                approach with the requirement to perform routing analysis. This
                applicability aligns with the FAST Act requirement to apply the
                information sharing provision to HHFTs. It also expands the
                applicability from the FAST Act to include Class II and III railroads
                to provide a unified approach to the risk posed by HHFTs.
                 We disagree with commenters that the proposed requirements are
                overly burdensome for ensuring SERCs, TERCs, and local responders
                receive the information contained in the notification. The entities
                included in the notification requirements align with the FAST Act.
                Furthermore, SERCs are already receiving the types of information
                specified in this requirement through the Emergency Order. The purpose
                of this notification is to actively inform communities about HHFTs
                which are transported through them. The routing notification
                requirements in Sec. 172.820 already provide a method for communities
                to request information. The AAR Circular OT-55-P outlines a voluntary
                procedure whereby local emergency response officials and emergency
                planning organizations may request and obtain a list of the types and
                volumes of hazardous materials that are transported through their
                communities.\34\ We also disagree with adding additional detailed
                information elements to the notification, as some of the suggestions by
                commenters for additional requirements exceed the scope of this
                rulemaking. Furthermore, PHMSA is addressing the FAST Act mandate in
                section 7302 to issue regulations that require real-time sharing of
                electronic train consist information for hazardous materials shipments
                in a separate rulemaking action.
                ---------------------------------------------------------------------------
                 \34\ https://www.aar.org/boe.
                ---------------------------------------------------------------------------
                 We agree with AAR that omitting the language for a ``change of 25
                percent or more'' may cause confusion in determining when use of a
                certification of no change is appropriate and that requiring monthly
                notifications is redundant. This is the standard used for the Emergency
                Order. Therefore, we are adopting a requirement to update the
                notification when changes in volume are greater than 25%.
                 We disagree with commenters that the approach to security and
                confidentiality is inadequate. We maintain that notification to SERCs,
                TERCs, or other State-delegated agencies for the purpose of sharing
                with appropriate local officials is sufficient. Adoption of the
                proposed language, ``If the disclosure includes information that
                railroads believe is security sensitive or proprietary and exempt from
                public disclosure, the railroads should indicate that in the
                notification,'' is sufficient to ensure confidentiality and security.
                The purpose of SERCs and TERCs is to share information with local
                planning authorities, and adopting commenter recommendations for more
                prescriptive measures to disseminate information both exceeds the scope
                of the proposed rulemaking and places an additional burden on states.
                We acknowledge that states may differ in their methods. Maintaining
                this approach provides flexibility to ensure that SERCs, TERCs, and
                other State-delegated agencies disseminate information in accordance
                with State laws and procedures. Furthermore, this approach will help
                guard against inadvertent public disclosure of protected materials by
                ensuring that the information that railroads believe to be confidential
                for business or security reasons is marked appropriately. Before
                fulfilling a request for information and releasing the information,
                States will be on notice as to what information the railroads consider
                inappropriate for public release.
                 The adopted information sharing notification elements include
                aggregated information, and analyses by DOT and DHS have indicated that
                the information elements in the notification are not considered SSI.
                Furthermore, railroads have not demonstrated specific prospective harm
                that would be caused by the release of such aggregated information.
                Commenters to the NPRM repeated the same previously raised concerns
                that the sharing of routing information for HHFTs required them to
                reveal proprietary business information. As discussed above, railroads
                argued that the Emergency Order routing information, if published or
                shared widely, could reveal information about customers. After
                considering the claim in an October, 2014 information collection
                notice, FRA concluded that the information would not be considered
                business confidential or SSI under Federal law. FRA's ``Proposed Agency
                Information Collection Activities; Notice and Request for Comments''
                \35\ noted that the railroads did not specifically identify any
                prospective harm caused by the sharing of this information. DOT's
                previous analysis concluded that the information shared by railroads
                does not qualify for withholding under Federal standards as business
                confidential information or SSI. DOT requires railroads to share
                aggregated information about the volumes of HHFTs that travel through a
                jurisdiction on a weekly basis. This information does not include
                customer information or other business identifying details. Further, it
                does not provide specifics about the timing of HHFT trains.
                ---------------------------------------------------------------------------
                 \35\ 79 FR 59891 (October 3, 2014).
                ---------------------------------------------------------------------------
                D. Summary of Initial Boiling Point Test Comments (Sec. 173.121)
                 PHMSA received five comments addressing the proposed incorporation
                by reference of the ASTM D7900 test method. The coalition comments from
                Scenic Hudson, Riverkeeper, et al. stated that the new test method
                should be mandatory. NTSB supported use of the test, but recommended
                that PHMSA remove other boiling point test options they consider to be
                less accurate and, further, mandate additional requirements for best
                method of classification, such as API RP 3000 and the report on
                sampling methods by Sandia National Laboratories. NTSB described adding
                the test as partly addressing NTSB Safety Recommendation R-14-6, which
                recommends testing and documentation for all hazardous materials.
                Industry commenters provided a more detailed description and
                recommendations related to the use of the test. Commenters additionally
                provided recommendations related to additional testing and sampling
                requirements for petroleum crude oil, which exceeded the scope of this
                rulemaking.
                 Both the AFPM and API stated that use of the test is not fully
                aligned with API RP 3000, pointing to differences between the API RP
                3000 and HMR regarding sampling methods and specificity about when to
                use the test.
                [[Page 6933]]
                For example, API stated that ASTM D7900 was applicable only to
                stabilized crude oils, defined as having a Reid vapor pressure
                equivalent to or less than 82.7 kPa (12 psi). Newer versions of the API
                RP 3000 incorporate additional IBP tests for other crude oils. AFPM
                explains:
                 [The API RP 3000 requires] conducting an IBP analysis based on
                the definition of IBP in ASTM D7169, both the ASTM D7169 and ASTM
                D7900 tests must be run. The results of both tests are merged to
                obtain a boiling point distribution curve for the crude oil. The IBP
                is then calculated in accordance with the calculation procedures set
                out in ASTM D7169 to arrive at an IBP consistent with the IBP as
                defined in ASTM D7169 . . . The recommended practice for sampling in
                API RP 3000 differs substantially from the sampling methods
                prescribed in ASTM D7900, which requires that sampling be conducted
                in accordance with ASTM D4057 or D4177.
                 Both AFPM and API supported adoption of the API RP 3000 but
                recommended incorporating specific, detailed language containing
                limitations or descriptions about when and how the test should be used,
                if adopted. API further recommended incorporation of additional
                standards for the collection of samples (e.g., the API Manual of
                Petroleum Measurement Standards (MPMS) Chapter 8.1/ASTM D4057, API MPMS
                Chapter 8.5/ASTM D8009, or ASTM D3700). AFPM recommended including an
                exception that crude oil may be classified as Packing Group (PG) I
                without further testing for better harmonization with requirements of
                Transport Canada.
                Response to IBP Test Comments (Sec. 173.121)
                 PHMSA mostly disagrees with commenters and is adopting the IBP test
                as proposed in the NPRM with the addition of the boiling point
                definition for clarity. The proposed rule included incorporation by
                reference of an additional initial boiling point test method, which
                would make no further changes to other testing and sampling
                requirements for petroleum products in Sec. 173.41, Sec. 173.120, or
                Sec. 173.121. The NPRM did not propose requiring mandatory use of the
                ASTM D7900 test or incorporating additional standards, nor did it
                provide an exception from all other sampling and testing requirements
                in the HMR by providing a PG I designation. Such requirements would
                reduce flexibility of industry stakeholders to comply with test
                requirements.
                 Additionally, a more precise test to measure boiling point may
                provide a limited value, as it is unlikely to lead to a difference in
                classification of weathered and/or treated stable crude oils and may be
                unnecessarily costly to counter the limited outcome. However, PHMSA may
                consider incorporation of additional standards and further revising
                other sampling and testing criteria and methodology for petroleum crude
                oil in a future rulemaking action.
                 Overall, PHMSA further disagrees that adding limitations to the use
                of ASTM D7900 initial boiling point test is necessary to ensure
                shippers use the right test for their flammable materials. Currently,
                Sec. 173.121 provides a list of initial boiling point tests. These
                tests do not apply to all Class 3 liquids; rather, shippers determine
                which test is most appropriate for their material. The full title of
                the test provided in Sec. 173.121 is ``Petroleum products containing
                known flammable gases--Standard Test Method for Determination of Light
                Hydrocarbons in Stabilized Crude Oils by Gas Chromatography (ASTM
                D7900),'' which clearly describes the test is appropriately used for
                certain petroleum products. However, use of the ASTM D7900 requires
                understanding the definition of ``initial boiling point, when
                determining the boiling distribution using ASTM D7900, is the
                temperature at which 0.5 weight percent is eluted.'' This definition is
                included in the ASTM D7169, which is referenced inside the ASTM D7900.
                Therefore, we are adopting the proposed requirement and including the
                aforementioned definition. This provides sufficient information for
                shippers to follow the current classification procedures to select the
                most appropriate test for their samples.
                VI. Incorporated by Reference
                 Section 171.7 lists all standards incorporated by reference into
                the HMR that are not set out in full text in the regulations. This
                final rule incorporates by reference the ASTM D7900-13\e1,\ Standard
                Test Method for Determination of Light Hydrocarbons in Stabilized Crude
                Oils by Gas Chromatography, 2013, available for interested parties to
                purchase in either print or electronic versions through ASTM's website
                at the following URL: https://www.astm.org/Standards/D7900.htm. The
                price charged for this standard at the time of publishing is $52.00.
                The price charged to interested parties helps cover the cost of
                developing, maintaining, hosting, and accessing these standards.
                 This publication (i.e., test method) ensures a minimal loss of
                light ends for crude oils containing volatile, low molecular weight
                components (e.g., methane) because it determines the boiling range
                distribution from methane through n-nonane. Incorporation of this
                publication (i.e., test method) provides flexibility to use an industry
                best standard.
                VII. Section-by-Section Review
                Part 107
                 Administrative update to authorities to include 33 U.S.C.
                1321(b)(6).
                Section 107.301
                 Updates section to include reference to subchapter B to reflect
                administrative update to amended authority for COSRP regulations
                promulgated under 33 U.S.C. 1321(j). Updates reference to the
                Secretary's delegation of authority from Sec. 1.53 of this title to
                Sec. 1.97 of this title.
                Section 107.305
                 Updates section to include reference to subchapter B to reflect
                administrative update to amended authority for COSRP regulations
                promulgated under 33 U.S.C. 1321(j).
                Section 107.309
                 Updates section to include reference to subchapter B to reflect
                administrative update to amended authority for COSRP regulations
                promulgated under 33 U.S.C. 1321(j).
                Section 107.311
                 Updates section to include reference to subchapter B to reflect
                administrative update to amended authority for COSRP regulations
                promulgated under 33 U.S.C. 1321(j).
                Section 107.329
                 Adds new paragraph (c) to include reference to the administrative
                civil penalty under 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 19.4,
                for violations of COSRP regulations promulgated under 33 U.S.C.
                1321(j).
                Part 130
                 We are restructuring part 130 to establish the following subparts:
                 Subpart A--Applicability and General Requirements contains current
                Sec. Sec. 130.1-130.21 with minor revisions and clarifications.
                 Subpart B--Basic Spill Prevention and Response Plans contains
                current Sec. Sec. 130.31-130.33 with minor revisions to remove
                comprehensive plan requirements.
                 Subpart C--Comprehensive Oil Spill Response Plans is a new subpart
                with new requirements for COSRPs. The section number and titles have
                been updated for plain language as follows in Table 6:
                [[Page 6934]]
                 Table 6--Part 130 Subpart C--Comprehensive Oil Spill Response Plans
                 Sections
                ------------------------------------------------------------------------
                 NPRM Final rule
                ------------------------------------------------------------------------
                130.101 Applicability for comprehensive 130.100 Applicability for
                 plans. comprehensive oil spill
                 response plans.
                130.102 General requirements for 130.105 Purpose and general
                 comprehensive plans. format.
                130.103 National Contingency Plan (NCP) 130.110 Consistency with the
                 and Area Contingency Plan (ACP). National Contingency Plan.
                 130.115 Consistency with Area
                 Contingency Plans.
                130.104 Information summary for 130.120 Information summary.
                 comprehensive plans.
                130.105 Notification procedures and 130.125 Notification procedures
                 contacts for comprehensive plans. and contacts.
                130.106 Response and mitigation 130.130 Response and mitigation
                 activities for comprehensive plans. activities.
                130.107 Training procedures for 130.135 Training.
                 comprehensive plans.
                130.108 Equipment testing and drill 130.140 Equipment testing and
                 procedures for comprehensive plans. exercise procedures.
                130.109 Recordkeeping and plan update 130.145 Plan review, update,
                 procedures for comprehensive plans. and recordkeeping procedures.
                130.111 Submission and approval 130.150 Submission and approval
                 procedures for comprehensive plans. procedures.
                130.112 Response plan implementation 130.155 Implementation of
                 for comprehensive plans. comprehensive oil spill
                 response plans.
                ------------------------------------------------------------------------
                Section 130.2
                 Paragraph (d) is updated to show that the requirements in Sec.
                130.31(b) have moved to subpart C. PHMSA does not propose any other
                changes to this section.
                Section 130.5
                 The changes to the definitions section are adopted as proposed in
                the NPRM. The introductory text is reformatted, including moving the
                definition for ``Animal fat'' to the correct alphabetical order as
                proposed in the NPRM. Definitions for ``Maximum Potential Discharge,''
                ``Oil Spill Removal Organization (OSRO),'' ``On-Scene Coordinator
                (OSC),'' ``Response activities,'' ``Response Plan,'' and ``Worst-Case
                Discharge'' are added as proposed in the NPRM. Definitions for
                ``Adverse Weather,'' ``Maximum Potential Discharge,'' ``Person,''
                ``Petroleum Oil,'' and ``Worst-case discharge'' are revised as proposed
                in the NPRM. This final rule corrects an NPRM error in which OSRO used
                ``response'' rather than the correct term ``removal''. The IBR
                reference is corrected for the definition of ``Liquid,'' as proposed in
                the NPRM, and the definition is updated to remain consistent with the
                HMR. In response to comments on the NPRM, the proposed definitions for
                ``Environmentally Sensitive or Significant Areas'' and ``Response
                Zone'' have been further clarified in this final rule.
                Section 130.31
                 This section is revised editorially as proposed in the NPRM to
                clarify that it applies to basic OSRPs and remove references to COSRPs.
                Section 130.33
                 This section is revised as proposed in the NPRM to clarify that it
                only applies to basic OSRPs.
                Section 130.100
                 This final rule establishes a new section to describe the
                applicability requirements for COSRPs. This section has been adopted as
                proposed in the NPRM with revisions for plain language to clarify
                requirements in response to comments. This includes moving the current
                applicability of COSRPs of 42,000 gallons per packaging from Sec.
                130.31 to Sec. 130.100, and expanding the applicability of COSRPs to
                route segments in which railroads transport ``a single train
                transporting 20 or more loaded tank cars of liquid petroleum oil in a
                continuous block or a single train carrying 35 or more loaded tank cars
                of liquid petroleum oil throughout the train consist.'' This section
                also includes an exception proposed in the NPRM for oil that does not
                meet the definition of a Class 3 flammable or combustible liquid, and
                for tank cars carrying residue. Under this final rule, tank cars
                containing crude oil, fuel oil, petroleum distillates, diesel, and
                gasoline must be included when counting tank cars in the consist.
                However, mixtures that do not meet the criteria for Class 3 flammable
                or combustible material in Sec. 173.120 of part 173, or that contain
                residue as defined in Sec. 171.8 of subchapter C, are not required to
                be included when determining the number of tank cars transporting
                liquid petroleum oil. For example, waste water contaminated with
                petroleum oil or certain mineral oils may not meet the definition of a
                Class 3 flammable or combustible liquid. Additionally, oils which were
                already excepted from the applicability in part 130 by Sec. 130.2(b)
                are not required to be counted for COSRPs. Therefore, COSRPs would not
                be required for ``any mixture or solution in which oil is in a
                concentration by weight of less than 10 percent;'' or for ``any
                petroleum oil carried in a fuel tank for the purpose of supplying fuel
                for propulsion of the transport vehicle to which it is attached,'' or
                for ``oil transport exclusively within the confines of a non-
                transportation-related or terminal facility in a vehicle not intended
                for use in interstate or intrastate commerce (see 40 CFR part 112,
                appendix A).''
                Section 130.105
                 This final rule establishes a new section for general requirements
                for the overall development of a COSRP as proposed in the NPRM. This
                section includes general requirements for the plan format, such as
                development of a core plan, and geographic response zones and
                accompanying response zone appendixes. This section also adds
                permission for railroads to use State plans to meet the requirements of
                part 130 provided they maintain an equivalent or greater level of
                protection as the Federal standard.
                Section 130.110
                 This final rule establishes a new section to require that COSRPs
                are certified for consistency with the NCP and demonstrate compliance
                through a list of minimum requirements. In response to comments, this
                section clarifies that the railroad must demonstrate a clear
                understanding of the ``Incident Command System and Unified Command.''
                [[Page 6935]]
                Section 130.115
                 This final rule establishes a new section to require COSRPs are
                certified for consistency with each applicable ACP (or Regional
                Contingency Plan (RCP) for areas lacking an ACP) and demonstrate
                compliance through a list of minimum requirements. This section is
                adopted as proposed in the NPRM, with edits for plain language and
                clarification for ESAs. This section also clarifies that the
                identification of ESAs and protection strategies are determined by
                reviewing and summarizing readily available ACPs, or RCPs when an ACP
                is not available.
                Section 130.120
                 This final rule establishes a new section with requirements for
                COSRPs to include a front-page information summary. This section is
                adopted as proposed in the NPRM with minor edits for plain language.
                Section 130.125
                 This final rule establishes a new section with requirements for the
                notification procedures and contact information that a railroad must
                include in a COSRP. This section is adopted as proposed in the NPRM
                with minor edits for plain language and clarification that
                communication between Qualified Individuals and appropriate Federal
                officials and persons providing response personnel and equipment, must
                be immediate.
                Section 130.130
                 This final rule establishes a new section for railroads to describe
                the response and mitigation activities and the roles and
                responsibilities of participants in COSRPs. This section is adopted as
                proposed in the NPRM with minor edits for plain language and to clarify
                that appendix C of 33 CFR part 154 provides equivalent planning
                standards for use of OSROs classified under 33 CFR 154.1035 and
                155.1035.
                Section 130.135
                 This final rule establishes a new section requiring railroads to
                certify that employees are trained in accordance with the requirements
                of this section. This section is adopted as proposed in the NPRM with
                edits for plain language. In response to commenters, this final rule
                clarifies requirements for volunteers and adds requirements for the
                person acting as Incident Commander to be trained in ICS.
                Section 130.140
                 This final rule establishes a new section with requirements for
                equipment testing to be consistent with the manufacturer's minimum
                requirements. This section is adopted as proposed in the NPRM, with
                edits for plain language and to update the USCG website.
                Section 130.145
                 This final rule establishes a new section with requirements for
                exercise procedures consistent with current PREP requirements for
                COSRPs. This section is adopted as proposed in the NPRM, with edits for
                plain language and clarification. In response to commenters, this final
                rule replaces use of the term ``drill'' in the NPRM with ``exercise''
                for consistency with the PREP guidelines.
                Section 130.150
                 This final rule establishes a new section with requirements for
                recordkeeping, review, and submission of COSRPs. The NPRM proposed that
                railroads submit plans to FRA. The final rule designates PHMSA as
                agency receiving plans and updates this section with submission
                procedures applicable to PHMSA, including specifying options for
                electronic submission of plans. In response to commenters, this final
                rule clarifies that railroads may operate for two years upon submission
                of response plan to PHMSA and certification of appropriate resources,
                for better consistency with the CWA.
                Section 130.155
                 This final rule establishes a new section to apply the current plan
                implementation requirements for COSRPs formerly under Sec. 130.33.
                This section has been adopted as proposed with changes to the section
                numbering and title for plain language.
                Part 171
                Section 171.7
                 This section adds the ASTM D7900 standard to the list of ASTM
                materials incorporated by reference.
                Part 173
                Section 173.121
                 This section adds the ASTM D7900 standard to the list of initial
                boiling point tests in Sec. 173.121(a)(2) that are incorporated by
                reference. This section adds a definition for initial boiling point
                when using the ASTM D7900 standard.
                Part 174
                Section 174.310
                 Part 174, subpart G, provides detailed requirements for
                transporting flammable liquids by rail. The HM-251 final rule added
                Sec. 174.310 to this subpart to provide a consolidated list of
                requirements specific to transporting HHFTs. This final rule adds a new
                paragraph (a)(6) titled ``Oil spill response plans'' for clarity, to
                reference the part 130 requirements for HHFTs composed of trains
                carrying petroleum oil. A new paragraph (a)(7) titled ``Information
                sharing notification for emergency planning'' is added for consistency,
                to provide a reference to the new notification requirements in Sec.
                174.312. Although, the reference in (a)(7) was not proposed in the
                NPRM, no new requirements are being imposed.
                Section 174.312
                 This final rule adds a new Sec. 174.312 to subpart G of part 174
                to require rail carriers that operate HHFTs to provide notifications to
                each applicable SERC, TERC, or other appropriate State-delegated
                agencies for further distribution to appropriate local authorities,
                upon request. Railroads may identify information that they believe is
                security sensitive or proprietary and exempt from public disclosure.
                These requirements are adopted as proposed, with minor edits for plain
                language and clarification. The frequency of update is also modified to
                address commenter concerns. This section specifies that the HHFT
                information sharing notification must include:
                 A reasonable estimate of the number of HHFTs that the
                railroad expects to operate each week, through each county within the
                State or through each tribal jurisdiction;
                 The routes over which the HHFTs will operate;
                 A description of the hazardous material being transported
                and all applicable emergency response information required by subparts
                C and G of part 172;
                 At least one point of contact at the railroad (including
                name, title, phone number, and address) with knowledge of the
                railroad's transportation of affected trains (referred to as the ``HHFT
                point of contact''); and
                 If a route is subject to the COSRPs, the notification must
                include a description of the response zones (including counties and
                States) and contact information for the Qualified Individual and
                alternate, as specified under Sec. 130.104(a).
                Railroads may provide the required notifications electronically or in
                hard copy and must update the notifications for changes in volume
                greater than 25%. The frequency of updates aligns with the Emergency
                Order. The NPRM proposed monthly updates or statement of `no change.''
                 Each point of contact must be clearly identified by name or title
                in
                [[Page 6936]]
                organization and by contact role (e.g., Qualified Individual, HHFT
                point of contact).
                 Adding this new HHFT information sharing notification to Sec.
                174.312 builds upon the information sharing framework for HHFTs started
                by expansion of the routing requirements in Sec. 172.820 in the HM-251
                final rule (80 FR 26644). Together, these requirements enable the
                railroads to work with State officials to ensure that safety and
                security planning is occurring. Under existing Sec. 172.820(g) of the
                HMR, fusion centers and other State, local, and tribal officials with a
                need-to-know will continue to work with the railroads on routing and
                risk analysis information conducted pursuant to part 172, subpart I,
                for information that is deemed SSI. The HHFT notification in the newly
                established Sec. 174.312 ensures that SERCs, TERCs, or other
                appropriate State agencies will routinely receive and share non-
                sensitive information from rail carriers regarding the movement of
                HHFTs in their jurisdictions that can aid local emergency responders
                and law enforcement in emergency preparedness and community awareness.
                VIII. Regulatory Analyses and Notices
                A. Statutory/Legal Authority for This Rulemaking
                 This final rule is published under the authority of the Federal
                Water Pollution Control Act (FWPCA), 33 U.S.C. 1321, also known as the
                Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 (OPA
                90), which directs the President to issue regulations requiring owners
                and operators of certain vessels and onshore and offshore oil
                facilities to develop, submit, update, and in some cases, obtain
                approval of oil spill response plans. Executive Order 12777 delegated
                responsibility to the Secretary of Transportation for certain
                transportation-related facilities. The Secretary delegated to PHMSA the
                authority to promulgate regulations, 49 CFR 1.97(c), and to review and
                approve OSRPs.\36\ A Memorandum of Understanding (MOU) between the DOT
                and EPA further establishes jurisdictional guidelines for implementing
                OPA 90 (36 FR 24080). The changes to part 130 in this rule address
                minimizing the impact of discharge of oils into or on the navigable
                waters or adjoining shorelines.
                ---------------------------------------------------------------------------
                 \36\ The Secretary has delegated the authority to review approve
                OSRPs by memorandum. Section 1.97 will be updated to reflect this
                delegation as part of the Department's next delegations rulemaking.
                ---------------------------------------------------------------------------
                 This final rule is also published under the authority of the
                Federal hazardous materials transportation law, 49 U.S.C. 5103(b),
                which authorizes the Secretary of Transportation to ``prescribe
                regulations for the safe transportation, including security, of
                hazardous materials in intrastate, interstate, and foreign commerce.''
                The changes in this rule to 49 CFR parts 171, 173, and 174 address
                safety and security vulnerabilities regarding the transportation of
                hazardous materials in commerce. The requirements proposed in Sec.
                174.312 are also mandated by the FAST Act (Pub. L. 114-94).
                 The Federal railroad safety laws (49 U.S.C. 20103) provide the
                Secretary with authority over all areas of railroad transportation
                safety. The Secretary delegates this authority to the FRA in 49 CFR
                1.89. Pursuant to its statutory authority, FRA promulgates and enforces
                a comprehensive regulatory program (49 CFR parts 200-244) addressing
                issues such as railroad track, signal systems, railroad communications,
                and rolling stock. The FRA inspects railroads and shippers for
                compliance with both FRA and PHMSA regulations.
                B. Executive Order 12866 and DOT Regulatory Policies and Procedures
                 This final rule is considered a significant regulatory action under
                Executive Order 12866 and the Regulatory Policies and Procedures of the
                Department of Transportation (44 FR 11034). However, this final rule is
                not an economically significant regulatory action as defined by section
                3(f)(1) under Executive Order 12866, since it does not have an annual
                effect on the economy of $100 million or more or adversely affect in a
                material way the economy, a sector of the economy, productivity,
                competition, jobs, the environment, public health or safety, or State,
                local, or tribal governments or communities. A Regulatory Impact
                Analysis (RIA) is available for review in the public docket for this
                rulemaking and summarized below. Please see the RIA for more details on
                the benefits and costs of the final rule.
                C. Executive Order 13771
                 This final rule is considered an E.O. 13771 regulatory action.
                Details on the estimated costs of this rulemaking can be found in the
                rule's economic analysis.
                D. Executive Order 13132
                 This final rule has been analyzed in accordance with the principles
                and criteria contained in Executive Order 13132, ``Federalism,'' (64 FR
                43255; Aug. 10, 1999), and the presidential memorandum on
                ``Preemption,'' (74 FR 24693; May 22, 2009). Executive Order 13132
                requires PHMSA to develop an accountable process to ensure ``meaningful
                and timely input by State and local officials in the development of
                regulatory policies that have federalism implications.'' These include
                regulations that 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.'' The agency may not issue a regulation that imposes
                substantial direct compliance costs and that is not required by
                statute, unless the Federal Government provides the funds necessary to
                pay the direct compliance costs incurred by state and local governments
                or the agency consults with state and local government officials early
                in the process of developing the regulation. Where a regulation has
                federalism implications and preempts state law, the agency, where
                practicable, seeks to consult with state and local officials in the
                process of developing the regulation.
                 This final rule will not 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. The final rule amends the existing title
                49 of the Code of Federal Regulations in three areas. First, it updates
                part 130 by expanding the applicability of COSRPs to unit trains of
                flammable liquid petroleum oil, and by providing more detailed
                requirements for COSRPs. Second, it updates part 174 by requiring
                railroads to share additional information with state and tribal
                emergency response organizations. Finally, it updates part 173 to
                incorporate by reference an additional initial boiling point test for
                flammable liquids as an acceptable testing alternative to the current
                list of boiling point tests.
                 The final rule does not impose any new requirements with effects on
                the States, on the relationship between the national government and the
                States, or on the distribution of power and responsibilities among
                government entities. In addition, PHMSA has determined that this final
                rule will not impose substantial direct compliance costs on State and
                local governments. Therefore, the consultation and funding requirements
                of Executive Order 13132 do not apply.
                 PHMSA issues this final rule under the following statutory
                authorities: The Hazardous Materials Transportation Act (HMTA), the
                Federal Railroad Safety Act (FRSA), and the Clean Water Act as
                [[Page 6937]]
                it is amended by the Oil Pollution Act of 1990.
                 The HMTA provides that a State law or Indian tribe requirement is
                preempted in the following cases: Compliance with both the State law or
                Indian tribe requirement and the Federal requirement is not possible;
                the State law or Indian tribe requirement creates an obstacle to
                accomplishing or executing the Federal requirement; or where a Federal
                requirement has covered the subject and the state law or Indian
                requirement is not substantively the same. Covered subjects under the
                HMTA include:
                 (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
                other written hazardous materials transportation incident reporting
                involving state or local emergency responders in the initial response
                to the incident; and
                 (5) The design, manufacture, fabrication, inspection, marking,
                maintenance, reconditioning, repair, or testing of a package,
                container, or packaging component that is represented, marked,
                certified, or sold as qualified for use in transporting hazardous
                material in commerce.
                 Under the FRSA, ``[l]aws, regulations, and orders related to
                railroad safety and laws, regulations, and orders related to railroad
                security shall be nationally uniform to the extent practicable.'' With
                narrow exceptions for essentially local safety or security hazards,
                states may not ``adopt or continue in force a law, regulation, or order
                related to railroad safety'' once the ``Secretary of Transportation . .
                . prescribes a regulation or issues an order covering the subject
                matter of the State requirement.'' (33 U.S.C. 20106(a)(2)). This
                standard applies to Federal regulations governing the transportation of
                hazardous materials by railroad, even when PHMSA or another agency
                promulgates those regulations.
                 OPA 90 (codified into the CWA) provides the statutory authority for
                the oil spill response planning portions of this final rule. Regarding
                the changes to oil spill response planning requirements in 49 CFR part
                130, Federal regulation under 33 U.S.C. 1321 accommodates regulation by
                States and political subdivisions. Pursuant to 33 U.S.C. 1321(o)(2),
                states or political subdivisions are not preempted by the Federal oil
                spill requirements ``from imposing any requirement or liability with
                respect to the discharge of oil or hazardous substance into any waters
                within such State, or with respect to any removal activities related to
                such discharge.''
                 As PHMSA noted in the NPRM, the preemption language of 33 U.S.C.
                1321 protects states' abilities to regulate requirements, liabilities,
                and removal activities with respect to the discharge of oil or
                hazardous substances. Elements of state oil spill response plan
                legislation may be preempted under the preemption standard established
                by FRSA and HMTA if the state legislation imposes railroad safety or
                hazardous materials containment requirements.
                 PHMSA received several comments related to the NPRM's preemption
                discussion. These comments include several submissions from states in
                support of the proposition that this final rule does not preempt
                states' abilities to impose oil spill response requirements on
                entities, including railroads. Several states, including but not
                limited to Washington, California, and Minnesota, commented in support
                of the preemption standards discussed in the NPRM.
                 Some commenters provided detailed explanations of the distinction
                between hazardous materials and rail safety regulations under those
                statutory authorities and the CWA's preemption standard. For example,
                the Pacific States and British Columbia Oil Spill Task Force (Task
                Force) noted that FRSA and HMTA may preempt State laws that focus on
                rail safety, but that states retain CWA authority to impose oil spill
                planning requirements. They noted that response plans are not relevant
                to traditional railroad safety or operational requirements. Oil spill
                response planning pursuant to the CWA is designed to minimize the
                environmental harm of spilled oil reaching state waters independent of
                the train and its normal operation. The Task Force supports PHMSA's
                continued reliance on the Clean Water Act's preemption standards and
                national framework of federal and state action. In another example, the
                coalition comments from organizations including Riverkeeper, the Center
                for Biological Diversity, Earthjustice, Scenic Hudson, Stand.earth,
                Sierra Club, the National Wildlife Federation, Waterkeeper Alliance,
                Lake Champlain Committee, Vermont Natural Resources Council, NY/NJ
                Baykeeper, Little River Waterkeeper, Lake Pend Oreille Waterkeeper,
                Snake River Waterkeeper, Puget Soundkeeper Alliance, Communities for a
                Better Environment and several local riverkeeper and baykeeper
                organizations discussed 33 U.S.C. 1321(o)(2) of the Oil Pollution Act's
                as follows:
                 Under OPA, state and local authorities may impose any additional
                liabilities and requirements regarding oil spills and impose their
                own financial penalties for any legal violations related to oil
                spills. This broad non-preemption provision therefore covers more
                than mere oil spill planning requirements, as this notice of
                proposed rulemaking suggests. Any state and local laws that impose
                oil spill-related requirements, liabilities, or financial penalties
                on crude-by-rail owners or operators are expressly preserved under
                OPA and cannot be subject to preemption under the FRSA or HMTA.
                PHMSA also received comments from railroad trade associations
                requesting that PHMSA reverse its initial preemption discussion and
                find that the Federal standards in 49 CFR part 130 preempt state oil
                spill response plans. AAR argued that efforts in Washington and
                California to promulgate state-specific requirements and control rail
                operations are creating a patchwork of different and potentially
                conflicting requirements across the United States that will overburden
                the railroads. The AAR opined that state oil spill response plan
                legislation is preempted under the preemption standard established by
                FRSA, HMTA, and the ICC Termination Act. Recent efforts by states to
                promulgate differing state-specific requirements demonstrate the need
                for a single Federal standard to avoid a patchwork of potentially
                conflicting requirements across the United States that will overburden
                the railroads and impede commerce. ASLRRA commented in agreement with
                AAR that PHMSA's preemption of State rules is critical to prevent
                unnecessary duplication, inefficiency, and confusion to the rail
                industry. ASLRRA recommended that PHMSA standards should preempt all
                current and future State rules requiring oil spill response plans for
                the rail industry.
                 After evaluating the comments on the issue of Federal preemption
                and the permissibility of state oil spill response planning
                requirements for railroads, PHMSA continues to believe that the
                discussion in the proposed rule accurately states the application of
                the existing statutory authorities. The Clean Water Act allows for
                states to regulate requirements, liabilities, and removal activities
                with respect to the discharge of oil or hazardous substances, including
                oil spill response planning requirements; however, any state or
                [[Page 6938]]
                local regulation of railroad safety standards or hazardous materials
                containment or communication standards under the guise of oil spill
                response planning will be preempted under FRSA and HMTA.
                E. Executive Order 13175
                 Executive Order 13175, ``Consultation and Coordination with Indian
                Tribal Governments,'' (65 FR 67249; Nov. 9, 2000) requires agencies to
                assure meaningful and timely input from Indian tribal government
                representatives in the development of rules that have tribal
                implications. Agencies must determine whether a proposed rulemaking has
                tribal implications, which include any rulemaking that imposes
                ``substantial direct effects'' on one or more Indian communities, on
                the relationship between the Federal Government and Indian tribes, or
                on the distribution of power between the Federal Government and Indian
                tribes. Further, to the extent practicable and permitted by law,
                agencies cannot promulgate two types of rules--(1) rules that have
                tribal implications that impose substantial direct compliance costs on
                Indian tribal governments and that are not required by statute, and (2)
                rules that have tribal implications and that preempt tribal law--unless
                they meet certain conditions.
                 PHMSA is committed to tribal outreach and engaging tribal
                governments in dialogue. In the NPRM, PHMSA solicited comments on
                potential tribal impacts in an effort to capture tribal concerns as
                part of the regulatory process. Additionally, PHMSA regularly conducts
                outreach efforts. For instance, PHMSA representatives attended the
                National Joint Tribal Emergency Management Conference in September 2016
                and the Northwest Tribal Emergency Management Conference in May 2016.
                In the spirit of Executive Order 13175, and consistent with DOT Order
                5301.1, PHMSA will be continuing outreach to tribal officials
                independent of our assessment of the direct tribal implications of this
                final rule.
                F. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies
                and Procedures
                 PHMSA must consider whether a rulemaking would have a ``significant
                economic impact on a substantial number of small entities,'' which
                include 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.
                 To ensure potential impacts of rules on small entities are properly
                considered, PHMSA in coordination with the FRA, developed this final
                rule in accordance with Executive Order 13272 (``Proper Consideration
                of Small Entities in Agency Rulemaking'') and DOT's procedures and
                policies to promote compliance with the RFA.
                 The RFA and Executive Order 13272 (67 FR 53461; August 16, 2002)
                require agency review of proposed and final rules to assess their
                impacts on small entities. An agency must prepare an initial regulatory
                flexibility analysis (IRFA) unless it determines and certifies that a
                rule, if promulgated, would not have a significant economic impact on a
                substantial number of small entities.
                 After subjecting the rule to public comment, the Agency is required
                by E.O. 13272 to assess the comments received by small entities and the
                public and prepare a final regulatory flexibility analysis (FRFA) which
                address a series of topics (presented below) regarding the rule's
                expected impacts on small entities affected.
                 Under the RFA at 5 U.S.C. 604(a), each final regulatory flexibility
                analysis is required to address the following topics:
                 (1) A statement of the need for, and objectives of, the rule;
                 (2) a statement of the significant issues raised by the public
                comments in response to the initial regulatory flexibility analysis, a
                statement of the assessment of the agency of such issues, and a
                statement of any changes made in the proposed rule as a result of such
                comments;
                 (3) the response of the agency to any comments filed by the Chief
                Counsel for Advocacy of the Small Business Administration in response
                to the proposed rule, and a detailed statement of any change made to
                the proposed rule in the final rule as a result of the comments;
                 (4) a description of and an estimate of the number of small
                entities to which the rule will apply or an explanation of why no such
                estimate is available;
                 (5) a description of the projected reporting, recordkeeping and
                other compliance requirements of the rule, including an estimate of the
                classes of small entities which will be subject to the requirement and
                the type of professional skills necessary for preparation of the report
                or record;
                 (6) a description of the steps the agency has taken to minimize the
                significant economic impact on small entities consistent with the
                stated objectives of applicable statutes, including a statement of the
                factual, policy, and legal reasons for selecting the alternative
                adopted in the final rule and why each one of the other significant
                alternatives to the rule considered by the agency which affect the
                impact on small entities was rejected; and
                 (7) for a covered agency, as defined in section 609(d)(2), a
                description of the steps the agency has taken to minimize any
                additional cost of credit for small entities.
                 The RFA requires that each initial regulatory flexibility analysis
                contain a description of any significant alternatives to the proposal
                that accomplish the statutory objectives and minimize the significant
                economic impact of the proposal on small entities. 5 U.S.C. 603(c). In
                this instance, none of the alternatives accomplish the statutory
                objectives and minimize the significant economic impact of the proposal
                on small entities.
                (1) Need for, and Objectives of, the Rule
                 PHMSA, in coordination with the FRA, is issuing this final rule in
                order to improve response readiness and mitigate effects of rail
                incidents involving petroleum oil and certain HHFTs. This is necessary
                due to the expansion in U.S. energy production, which has led to
                significant challenges for the country's transportation system. This
                final rule has requirements in two areas as shown below: Section I,
                Subsection A (``Oil Spill Response Plans'') and Subsection B
                (``Information Sharing'').\37\ The first requirement modernizes the
                Comprehensive Spill Plan requirements. 49 CFR part 130. Additionally,
                this final rule requires railroads to share additional information with
                state and tribal emergency response organizations (i.e., SERCs and
                TERCs) to improve community preparedness. The requirements of this
                final rule work in conjunction with the requirements adopted in the
                HHFT Final Rule (80 FR 26644) in order to continue the comprehensive
                approach toward ensuring the safe transportation of energy products and
                mitigating the consequences of such accidents should they occur. PHMSA
                is addressing below the potential impacts on small entities with the
                final rule requirements for
                [[Page 6939]]
                response plans and information sharing.\38\
                ---------------------------------------------------------------------------
                 \37\ This rulemaking also proposes incorporation and the
                voluntary use of the initial boiling point (IBP) test (ASTM D7900)
                to determine classification and packing group for Class 3 Flammable
                liquids. We note that the incorporation of API RP 3000 and
                consequently ASTM D7900 will not replace the currently authorized
                testing methods, rather serve as a testing alternative if one
                chooses to use that method. PHMSA believes this provides flexibility
                and promotes enhanced safety in transport through accurate PG
                assignment. This provision would not pose any impacts on small
                entities.
                 \38\ We note that the incorporation of API RP 3000, which
                contains the ASTM D7900 test will not replace the currently
                authorized initial boiling point testing methods, but rather serve
                as a testing alternative if one chooses to use that method. PHMSA
                believes this provides flexibility and promotes enhanced safety in
                transport through accurate packing group assignment. This
                requirement will impose no new costs.
                ---------------------------------------------------------------------------
                (A) Oil Spill Response Plans
                 PHMSA is promulgating this final rule in response to recent train
                accidents involving the derailment of HHFTs. Shipments of large volumes
                of liquid petroleum oil pose a significant risk to life, property, and
                the environment. PHMSA has identified several recent derailments to
                illustrate the circumstances and consequences of derailments involving
                petroleum oil transported in higher-risk train configurations:
                Plainfield, IL (July 2017); Money, MS (May 2017); Mosier, OR (June
                2016); Heimdal, ND (May 2015); Galena, IL (March 2015); Mt. Carbon, WV
                (February 2015); La Salle, CO (May 2014); Lynchburg, VA (April 2014);
                Vandergrift, PA (February 2014); New Augusta, MS (January 2014);
                Casselton, ND (December 2013); Aliceville, AL (November 2013); and
                Parkers Prairie, MN (March 2013).
                 For example, on December 30, 2013, a train carrying crude oil
                derailed and ignited near Casselton, North Dakota, prompting
                authorities to issue a voluntary evacuation of the city and surrounding
                area. On November 7, 2013, a train carrying crude oil to the Gulf Coast
                from North Dakota derailed in Aliceville, Alabama, spilling crude oil
                in a nearby wetland and igniting into flames. These train accidents
                involving derailments of HHFTs transporting crude oil resulted in
                discharges of petroleum oil that harmed or posed a threat of harm to
                the nation's waterways.
                 Of note here is the NTSB's Safety Recommendation R-14-5,\39\ which
                requested that PHMSA revise the spill response planning thresholds
                prescribed in 49 CFR part 130 to require comprehensive OSRPs that
                effectively provide for the carriers' ability to respond to worst-case
                discharges resulting from accidents involving unit trains or blocks of
                tank cars transporting oil and petroleum products. In this
                recommendation, the NTSB raised a concern that, ``[b]ecause there is no
                mandate for railroads to develop comprehensive plans or ensure the
                availability of necessary response resources, carriers have effectively
                placed the burden of remediating the environmental consequences of an
                accident on local communities along their routes.'' In light of these
                accidents and NTSB Recommendation R-14-5, PHMSA has re-examined whether
                it is more appropriate to consider the train consist, rather than just
                the individual tank car, when setting the threshold for comprehensive
                OSRPs, and determined that such consideration is appropriate. The
                revisions included in the final rule expand the applicability of the
                comprehensive OSRP requirement. PHMSA holds that improved oil spill
                response planning will in turn improve the actual response to future
                derailments involving petroleum oil and lessen the negative impacts to
                the environment and communities.
                ---------------------------------------------------------------------------
                 \39\ http://www.ntsb.gov/safety/safety-recs/recletters/R-14-004-006.pdf.
                ---------------------------------------------------------------------------
                 On June 17, 1996, RSPA published a final rule issuing requirements
                that meet the intent of the Clean Water Act. This rule adopted
                requirements for packaging, communication, spill response planning, and
                response plan implementation intended to prevent and contain spills of
                oil during transportation. Under these current requirements, railroads
                are required to complete a basic OSRP for oil shipments in a package
                with a capacity of 3,500 gallons or more, and a comprehensive OSRP is
                required for oil shipments in a package containing more than 42,000
                gallons (1,000 barrels).
                 Currently, most, if not all, of the rail community transporting
                oil, including crude oil transported as a hazardous material, is
                subject to the basic OSRP requirement of 49 CFR 130.31(a) since most,
                if not all, rail tank cars being used to transport crude oil have a
                capacity greater than 3,500 gallons. However, a comprehensive OSRP for
                shipment of oil was only required when the quantity of oil is greater
                than 42,000 gallons per tank car. Accordingly, the number of railroads
                required to have a comprehensive OSRP was much lower, or possibly non-
                existent, because a very limited number of rail tank cars in use would
                be able to transport a volume of 42,000 gallons in a car.\40\
                ---------------------------------------------------------------------------
                 \40\ The 2014 AAR's Universal Machine Language Equipment
                Register numbers showed five tank cars listed with a capacity equal
                to or greater than 42,000 gallons, and none of these cars were being
                used to transport oil or petroleum products.
                ---------------------------------------------------------------------------
                 The final rule expands the applicability of comprehensive OSRPs
                based on thresholds of crude oil that apply to the train consist.
                Specifically, the final rule expands the applicability for OSRPs so
                that no person may transport an HHFT quantity \41\ of liquid petroleum
                oil unless that person has implemented a comprehensive OSRP.
                ---------------------------------------------------------------------------
                 \41\ An HHFT exists when a train has a block of 20 tank cars or
                35 tank cars dispersed throughout the train that are loaded with a
                Class 3 flammable liquid.
                ---------------------------------------------------------------------------
                 Each railroad subject to the final rule must prepare and submit a
                comprehensive OSRP that includes a plan for responding, to the maximum
                extent practicable, to a worst-case discharge and to a substantial
                threat of such a discharge of oil. The OSRP must also be submitted to
                the PHMSA, where it will be reviewed and approved by PHMSA personnel.
                 The changes respond to commenter requests for requirements for more
                detailed guidance and provide a better parallel to other federal oil
                spill response plan regulations promulgated under the OPA 90 authority.
                A full summary of the changes to the plan requirements are described in
                the final rule. Each comprehensive plan must include.\42\ I. Core Plan:
                A core plan includes an information summary, as required in 49 CFR
                130.105, and any components which do not change between response zones.
                Each plan must:
                ---------------------------------------------------------------------------
                 \42\ The following text is provided as an overview of the rule
                and does not replace regulatory text included in the NPRM.
                ---------------------------------------------------------------------------
                 Use and be consistent with the core principle of the
                National Incident Management System (NIMS) including the utilization of
                the Incident Command System (ICS):
                 Include an information summary as required by Sec. Sec.
                130.105 and 130.120.
                 Certify that the railroad reviewed the National
                Contingency Plan (NCP) and each applicable Area Contingency Plan (ACP)
                and that its response plan is consistent with the NCP and each
                applicable ACP and follows Immediate Notification procedures, as
                required by Sec. Sec. 130.110 and 139.115.
                 Include notification procedures and a list of contacts as
                required in Sec. 130.125.
                 Include response and mitigation activities and resources
                as required in Sec. 130.130.
                 Certify that applicable employees were trained per Sec.
                130.135.
                 Describe procedures to ensure equipment testing and a
                description of the exercise program per Sec. 130.140
                 Describe plan review and update procedures per Sec.
                130.145.
                 Submit the plan as required by Sec. 130.150.
                 II. Response Zone Appendix: For each response zone, a railroad must
                include a response zone appendix to provide the information summary, as
                described in 49 CFR 130.120, and any additional components of the plan
                specific to the
                [[Page 6940]]
                response zones. Each response zone appendix must identify:
                 A description of the response zone, including county(s)
                and state(s);
                 Identification of any environmentally sensitive areas
                along the router per Sec. 130.115; and
                 Identification of the location where the response
                organization will deploy and the location and description of equipment
                required by Sec. 130.130.
                 In addition, the final rule requires plan holders to identify an
                OSRO, provided through a contract or other approved means, to respond
                to a worst-case discharge within 12 hours.
                (B) Information Sharing
                 On May 7, 2014, DOT issued Emergency Restriction/Prohibition Order
                in Docket No. DOT-OST-2014-0067,\43\ which required each railroad
                transporting 1,000,000 gallons or more of Bakken crude oil in a single
                train in commerce within the U.S. to provide certain information in
                writing to the SERC for each state in which it operates such a train.
                In the HM-251 (RIN 2137-AE91) NPRM published in 2014 (79 FR 45015; Aug.
                1, 2014), PHMSA proposed to codify and clarify the requirements of the
                Order in the HMR and requested public comment on the various facets of
                that proposal. Unlike many other requirements in the August 1, 2014
                NPRM, the notification requirements were specific to a single train
                that contains one million gallons or more of UN 1267, Petroleum crude
                oil, Class 3, sourced from the Bakken shale. In the HHFT Final Rule,
                PHMSA did not adopt the separate notification requirements proposed in
                the NPRM and instead relied on the expansion of the existing route
                analysis and consultation requirements of Sec. 172.820 to include
                HHFTs to satisfy information sharing needs.
                ---------------------------------------------------------------------------
                 \43\ http://www.dot.gov/briefing-room/emergency-order.
                ---------------------------------------------------------------------------
                 In response to the FAST Act and DOT's commitment to codifying the
                Order involving information sharing, we are requiring in this HM-251B
                final rule to add new Sec. 174.312 for information sharing provisions
                to the additional requirements for transportation of flammable liquids
                by rail. This addition creates a tiered approach to information
                sharing, whereas fusion centers will continue to act as the focal point
                for risk analysis information deemed SSI under the routing analysis in
                Sec. 172.820 and SERCs and TERCs will actively be provided with non-
                sensitive security information that can aid in emergency preparedness
                and community awareness. The final rule requirements provide emergency
                responders with an integrated approach to receiving information about
                HHFTs.
                 As required by this final rule, the notification must meet the
                following requirements:
                 A reasonable estimate of the number of HHFT that the
                railroad expects to operate each week, through each county within the
                State or through each tribal jurisdiction;
                 The routes over which the HHFTs will operate;
                 A description of the hazardous material being transported
                and all applicable emergency response information required by subparts
                C and G of part 172 of this subchapter;
                 An HHFT point of contact: At least one point of contact at
                the railroad (including name, title, phone number and address) related
                to the railroad's transportation of affected trains;
                 If a route is additionally subject to the comprehensive
                spill plan requirements, the notification must include a description of
                the response zones (including counties and states) and contact
                information for the qualified individual and alternate, as specified
                under Sec. 130.104(a);
                 Railroads must update the notifications for changes in
                volume greater than 25%.
                 Notifications and updates may be transmitted
                electronically or by hard copy.
                 Each point of contact must be clearly identified by name
                or title and role (e.g., qualified individual, HHFT point of contact)
                in association with the telephone number. One point of contact may
                fulfill multiple roles.
                 Copies of HHFT notifications made must be made available
                to the Department of Transportation upon request.
                 The required changes build upon the requirements adopted in HHFT
                Final Rule to continue to the comprehensive approach to ensuring the
                safe transportation of energy products.
                 The Secretary has the authority to prescribe regulations for the
                safe transportation, including the security, of hazardous materials in
                intrastate, interstate, and foreign commerce (49 U.S.C. 5103(b)) and
                has delegated this authority to PHMSA via 49 CFR 1.97(b).
                 (2) A Statement of the Significant Issues Raised by the Public
                Comments in Response to the Initial Regulatory Flexibility Analysis, a
                Statement of the Assessment of the Agency of Such Issues, and a
                Statement of any Changes Made in the Proposed Rule as a Result of Such
                Comments
                 In response to the NPRM, PHMSA received several comments on whether
                regulatory relief for oil spill response plans may be appropriate for
                certain small businesses (i.e., short lines). As discussed in the
                Section B ``Comment Summary'' of this rulemaking, most commenters
                supported regulations based on the risk, quantity, and type of oil,
                regardless of business size.
                 The American Short Line and Regional Railroad Association (ASLRRA)
                provided a global rulemaking comment which questioned whether the
                rulemaking ``provides either a meaningful or operationally sustainable
                path to addressing safety, particularly from a small business
                perspective.'' ASLRRA also noted that Class III railroads ``meet the
                economic criteria established for inclusion in 49 CFR 1201.1'' and
                suggested requirements under the under the Small Business Regulatory
                Enforcement Fairness Act of 1996 (Pub. L. 104-121) (``SBREFA''), apply
                along with the RFA. ASLRRA did not provide any data analysis of the
                impact to Class III railroads. Their comments focused on three topics:
                (1) That short lines be exempt from comprehensive OSRP requirements;
                (2) that it should be permissible under the regulations for a short
                line to be covered by Class I comprehensive OSRPs when the short line
                is effectively a tenant of the Class I railroad; and (3) that Federal
                OSRP requirements should preempt State level OSRP requirements.
                 On point (1), PHMSA maintains that Class II or III railroads
                transporting petroleum oil and HHFTs are transporting materials that
                pose the same risk to communities as Class I railroads, and therefore
                should not be excluded from the rulemaking. The Agency received several
                comments to this effect from environmental organizations, members of
                the general public, and certain State governments. These comments
                generally supported the concept of basing OSRP requirements on the
                quantity and type of oil being transported, and risk, rather than
                entity size. PHMSA believes the final rule is an appropriate balance
                between risk mitigation and cost and ensures all entities that are at
                risk for a substantial oil spill are covered by the requirements of the
                final rule regardless of size.
                 On point (3) The ``Executive Order 13132, ``Federalism'' discussion
                in this section provides an analysis and response to comments related
                to issues for federal preemption.
                 Finally, on point (2), PHMSA does not believe that the requirements
                of the final rule preclude Class I railroads from assisting Class III
                entities with developing comprehensive oil spill response plan. Nothing
                in OSRP
                [[Page 6941]]
                regulations prohibit Class I railroads from providing support to Class
                III Railroads to develop a plan or to prohibit resource sharing between
                railroads. There are large parts of plans (e.g. Identification of
                environmentally sensitive areas or sharing of qualified individuals)
                for which a Class I could provide the Class III with assistance.
                Another example would be the Class III including documentation, under
                an agreement with a Class I, of a ``contract or other means''
                demonstrating they have permission to use the Class I's response
                resources. Under the COSRP requirements adopted in this rulemaking,
                Class I railroads may choose to lessen the burden for Class III
                railroads through resource sharing agreements or by providing plan
                development information for overlapping response action plans. Nothing
                in the regulations precludes Class I railroads from assisting short
                lines in developing a plan or precludes one railroad from utilizing
                resources provided by another railroad through contract or other means;
                however, both railroads would be subject to submitting a plan to ensure
                the responsibilities are clearly delineated.
                 The ASLRRA also contends that PHMSA should have consulted with the
                Small Business Administration's Advocacy Office. PHMSA does not believe
                such consultation is necessary give the level of impacts and number of
                entities impacted by the final rule. The ASLRRA comments did not
                provide any specific information on the cost to develop comprehensive
                OSRPs, number of entities affected, or a comparison of costs to average
                operating margins or total revenue. The cost impacts on small entities
                are described more fully below in the context of the average revenue
                for Class III railroads.
                (3) The Response of the Agency to Any Comments Filed by the Chief
                Counsel for Advocacy of the Small Business Administration in Response
                to the Proposed Rule, and a Detailed Statement of Any Changes Made to
                the Proposed Rule in the Final Rule as a Result of the Comments
                 PHMSA did not receive any comments filed by the chief counsel for
                Advocacy of the Small Business Administration and hence has not made
                any changes as a result of comments from that office.
                (4) A Description of and an Estimate of the Number of Small Entities To
                Which the Rule Will Apply or an Explanation of Why No Such Estimate Is
                Available
                 The universe of the entities considered in this FRFA generally
                includes only those small entities that can reasonably expect to be
                directly regulated by the regulatory action. Short line railroads are
                the types of small entities potentially affected by this final rule.
                 A ``small entity'' is defined in 5 U.S.C. 601(3) as having the same
                meaning as ``small business concern'' under section 3 of the Small
                Business Act. This includes any small business concern that is
                independently owned and operated, and is not dominant in its field of
                operation. Title 49 U.S.C. 601(4) likewise includes within the
                definition of small entities non-profit enterprises that are
                independently owned and operated, and are not dominant in their field
                of operation. Additionally, 5 U.S.C. 601(5) defines as small entities
                governments of cities, counties, towns, townships, villages, school
                districts, or special districts with populations less than 50,000.
                 The U.S. Small Business Administration (SBA) stipulates in its size
                standards that the largest a ``for-profit'' railroad business firm may
                be, and still be classified as a small entity, is 1,500 employees for
                ``line haul operating railroads'' and 500 employees for ``switching and
                terminal establishments.''
                 Federal agencies may adopt their own size standards for small
                entities in consultation with SBA and in conjunction with public
                comment. Pursuant to that authority, FRA has published a final
                Statement of Agency Policy that formally establishes small entities or
                small businesses as being railroads, contractors, and hazardous
                materials offerors that meet the revenue requirements of a Class III
                railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
                in inflation-adjusted annual revenues,\44\ and commuter railroads or
                small governmental jurisdictions that serve populations of 50,000 or
                less. 68 FR 24891 (May 9, 2003) (codified as appendix C to 49 CFR part
                209). The $20 million limit is based on the Surface Transportation
                Board's revenue threshold for a Class III railroad. Railroad revenue is
                adjusted for inflation by applying a revenue deflator formula in
                accordance with 49 CFR 1201.1-1. PHMSA is using this definition for the
                rulemaking.
                ---------------------------------------------------------------------------
                 \44\ For 2012 the Surface Transportation Board (STB) adjusted
                this amount to $36.2 million.
                ---------------------------------------------------------------------------
                Railroads
                 Not all small railroads would be required to comply with the
                provisions of this rule. Most of the approximately 579 small railroads
                \45\ that operate in the United States do not transport hazardous
                materials.\46\ Based on the requirements of this final rule, the
                entities potentially affected by requirement are as described below:
                ---------------------------------------------------------------------------
                 \45\ Although there are approximately 738 small railroads in
                existence, a portion of these railroads do not haul freight and
                hence would not be affected entities. PHMSA estimates the number of
                small entities that haul freight and hence might be affected by OSRP
                requirements to be 579 entities.
                 \46\ Short Line and Regional Railroad Association. 2017. ``Short
                Line and Regional Railroad Facts and Figures.''
                ---------------------------------------------------------------------------
                (A) Oil Spill Response Plans
                 For determining the entities that would be affected by the
                requirements of this rulemaking, PHMSA used the configuration of trains
                contained in the definition of ``HHFT'' as it applies to petroleum oil,
                established in the HHFT Final Rule--defined as a train hauling 20 or
                more carloads of flammable liquid in a continuous block, or 35 or more
                carloads of crude oil throughout the train. PHMSA and FRA estimated
                that 55 small railroads transport crude oil in HHFTs and therefore
                could potentially be affected by this rule. This estimate was
                formulated using FRA's extensive expertise in rail operations,
                knowledge of the STB Waybill Data, and outreach to the FRA regional
                offices in 2013 to collect information on small carriers shipping crude
                oil.
                 Therefore, this rule would impact 9.5 percent of the universe of
                579 small railroads. The Agency attempted to update this number in the
                interim between the NPRM and final rule but, working in cooperation
                with FRA, was unable to identify data that would enable a re-estimation
                of the number of entities affected by the rule, because not all Class
                III railroads submit carload data to the STB for inclusion in the
                waybill sample. The volume of crude shipped by rail has declined
                significantly since publication of the NPRM, and one of the effects of
                this decline in volume shipped by rail may be that some Class III
                railroads have stopped shipping crude oil in the interim.
                (B) Information Sharing
                 The applicability of this requirement is derived from the
                information published in the HHFT Final Rule. Specifically, the
                definition of a High-Hazard Flammable Train and the information sharing
                portion of the routing requirements are related to this final rule. The
                HHFT Final Rule defined ``High-Hazard Flammable Train'' as a continuous
                block of 20 or more tank cars in a single train or 35 or more cars
                [[Page 6942]]
                dispersed through a train loaded with a flammable liquid.
                 This definition also served as the applicable threshold of many of
                the requirements in the HHFT rulemaking, including routing
                requirements. Section 172.820 prescribes additional safety and security
                planning requirements for transportation by rail. In the HHFT Final
                Rule, the applicability for routing requirements in Sec. 172.820 were
                revised to require that any rail carrier transporting an HHFT comply
                with the additional safety and security planning requirements for
                transportation by rail. The routing requirements adopted in the HHFT
                Final Rule are related to the NPRM, as the final rule requirements will
                create a tiered approach to information sharing; whereas fusion centers
                will continue to act as the focal point for risk analysis information
                deemed SSI in Sec. 172.820, SERCs and TERCs will actively be provided
                with non-sensitive security information in the HHFT notification that
                can aid in emergency preparedness and community awareness in Sec.
                174.312.
                 The universe of affected entities for the information sharing
                requirements is different than the number of entities affected under
                the comprehensive response plan requirement. The applicability of this
                requirement is derived from the information published in the HHFT Final
                Rule. Specifically, the definition of an HHFT and the information
                sharing portion of the routing requirements are related to the NPRM.
                The number of small entities impacted under this requirement is
                different from the number of entities impacted under the comprehensive
                OSRP requirement due to the different applicability of these two
                requirements. In particular, the comprehensive OSRP requirement applies
                to HHFTs transporting crude oil (and potentially other petroleum oils),
                while the information sharing requirement applies to HHFTs transporting
                both crude oil and ethanol (and potentially other Class 3 flammable
                liquids). As described under the impact on the small entities section
                with the routing requirements in the HHFT Final Rule, there are 160
                affected small entities under the routing requirements. Thus, the
                requirement in this final rule could potentially affect 160 small
                railroads transporting flammable liquids in HHFTs. Therefore, this rule
                would impact 27.6 percent of the universe of 579 small railroads.
                 Again the Agency was unable to identify data that would enable us
                to adjust the number of entities affected in the interim between the
                NPRM and final rule.
                (5) A Description of the Projected Reporting, Recordkeeping and Other
                Compliance Requirements of the Proposed Rule, Including an Estimate of
                the Classes of Small Entities Which Will Be Subject to the Requirement
                and the Type of Professional Skills Necessary for Preparation of the
                Report or Record
                 For a thorough presentation of cost estimates, please refer to the
                draft RIA, which has been placed in the docket for this rulemaking.
                PHMSA is addressing below the two requirements areas in this final
                rule, Oil Spill Response Plans and Information Sharing.
                (A) Oil Spill Response Plans
                 This rule modernizes the requirements by changing the applicability
                for comprehensive oil spill response plans and clarifying the
                comprehensive plan requirements. The final rule expands the
                applicability of comprehensive OSRPs to railroads transporting a single
                train of 20 or more loaded tank cars of liquid petroleum oil in a
                continuous block or a single train carrying 35 or more loaded tank cars
                of liquid petroleum oil throughout the train consist. These railroads,
                that are currently required to develop a basic plan, are now required
                to develop a comprehensive plan.
                 PHMSA describes below the impact on the small railroads that would
                be required under the final rule which requires any railroad carrying
                20 or more tank cars of liquid petroleum oil in a continuous block or
                35 such cars on a single train to submit a comprehensive OSRP. The
                total cost estimate with the requirements for small railroads is
                conservative, when compared to the cost estimates of the other several
                alternatives evaluated by PHMSA. PHMSA evaluated several alternatives
                related to the threshold values for the universe of affected entities
                that would be required to submit a comprehensive response plan.\47\ For
                additional information about the development of these cost estimates,
                the specific differences between a basic and comprehensive OSRP
                including the estimated cost per railroad by railroad class please
                refer to the final RIA, which has been placed in the docket for this
                rulemaking. For determining the entities that would be affected by the
                required threshold, PHMSA used the definition HHFT from the HHFT Final
                Rule.\48\ PHMSA narrowed the affected entities to only include
                railroads that transported crude oil and, in consultation with FRA,
                revised the estimated number of Class III carriers that would be
                subject to the rulemaking. Based on this assessment, PHMSA estimates
                there are 73 railroads (7 Class I, 11 Class II, and 55 Class III) that
                would be subject to this final rule.
                ---------------------------------------------------------------------------
                 \47\ Under each of these alternatives, the number of Class I and
                Class II railroads affected by the proposed thresholds does not
                change. However, the number of Class III railroads that would be
                subject to the proposed rule ranges from 55 to 20 railroads. Based
                on evaluation of the 2013 Waybill Sample data and in consultation
                with the FRA, PHMSA determined that 55 small railroads are the
                largest number of small railroads that is subject to the proposed
                option requirements. Please, refer to the draft RIA for additional
                information regarding the number of impacted entities under the
                other several alternatives.
                 \48\ 80 FR 26643-26750 (May 8, 2015).
                ---------------------------------------------------------------------------
                 I. Core Plan: A core plan includes an information summary, as
                adopted in Sec. 130.105, and any components which do not change
                between response zones.
                 II. Response Zone Appendix: For reach response zone, a railroad
                must include a response zone appendix to provide the information
                summary, as required in Sec. 130.120, and any additional components of
                the plan specific to the response zones.
                 In addition, the final rule requires plan holders to identify an
                OSRO, provided through a contract or other approved means, to respond
                to a worst-case discharge within 12 hours.
                 PHMSA has identified several categories of costs related to the
                development and implementation of a comprehensive response plan. Those
                costs include the following: Plan development, submission, and
                maintenance; contract fees for designating an OSRO; training and
                drills; and plan review and approval. For additional information about
                the development of these cost estimates, please refer to the draft RIA,
                which has been placed in the docket for this rulemaking.
                 As noted in section 4 of this FRFA, approximately 55 small
                railroads carry crude oil in train consists large enough that they
                would potentially be affected by this rule.
                 PHMSA considers the average annual cost per railroad relevant for
                the purposes of this analysis in addition to presenting first year and
                subsequent year cost per railroad due to the nature of frequency of
                requirements with the development of a comprehensive plan, which varies
                between annual and every five years. The total undiscounted cost with
                the plan for the small railroads is $15,221,806 over the ten-year
                period of the analysis. PHMSA estimates the total cost to each small
                railroad to be $51,020 in the first year and an annual average cost of
                $25,082 in subsequent years, taking into account the costs growing
                [[Page 6943]]
                with increases in real wages.\49\ Small railroads have annual operating
                revenues that range from $3 million to $20 million. A recent
                publication on from the ASLRRA states that average freight revenue for
                Class III railroads is $4.75 million per year.\50\ Thus, the costs
                associated with this requirement amount to roughly one percent or less
                of the railroad's annual operating revenue (in the initial year when
                costs are highest the amount is 1.07 percent of average annual revenue,
                and falls to an average of 0.53 percent in subsequent years and is 0.58
                percent for the full ten year analysis period, assuming revenue is
                roughly stable at $4.75 million over the analysis period). PHMSA
                realizes that some small railroads will have lower annual revenue than
                $4.75 million. However, PHMSA is confident that this estimate of total
                cost per small railroad provides a good representation of the cost
                applicable to small railroads, in general.
                ---------------------------------------------------------------------------
                 \49\ Costs per railroad are derived in the draft RIA, with costs
                for all Class III railroads divided by the 55 impacted railroads.
                The Year 1 total costs are calculated at $2,806,125. The estimated
                Year 1 cost per railroad is then calculated at $51,020 = $2,806,125/
                55 small railroads. The average annual cost for the subsequent years
                is calculated at $1,379,520 = $12,415,681/9 years. The estimated
                average annual cost per small railroad for the subsequent years is
                then calculated at $25,082 = $11,379,520/55 small railroads.
                 \50\ Short Line and Regional Railroad Association.2017. ``Short
                Line and Regional Railroad Facts and Figures.''
                ---------------------------------------------------------------------------
                 In conclusion, PHMSA believes that although some small railroads
                will be directly impacted, the impact will amount to roughly one
                percent or less of an average small railroad's annual operating
                revenue. PHMSA plans to publish a Compliance Guide to explain the
                regulations to small businesses.
                (B) Information Sharing
                 In response to the FAST Act and DOT's commitment to codifying the
                Order involving information sharing, in this final rule we are adding
                new information sharing provisions to the additional safety and
                security planning requirements for transportation by rail in a new
                Sec. 312. As discussed previously, Sec. 172.820(g) provides the
                requirements for rail carrier point of contact on routing issues for
                SSI. In this final rule we add Sec. 174.312 to add additional
                information sharing requirements. A rail carrier of a HHFT as defined
                in Sec. 171.8 of this subchapter must provide the following
                notification to SERC, TERC, or other appropriate state delegated
                entities in which it operates. Information required to be shared must
                consist of the following:
                 A reasonable estimate of the number of affected HHFTs that
                are expected to travel, per week, through each county within the state.
                 The routes over which the affected trains will be
                transported.
                 A description of the materials shipped and applicable
                emergency response information required by subparts C and G of part 172
                of this subchapter.
                 At least one point of contact at the railroad (including
                name, title, phone number and address) responsible for serving as the
                point of contact for the SERC, TERC, and relevant emergency responders
                related to the railroad's transportation of affected trains.
                 The information summary elements (e.g. response zone
                description and contact information for qualified individuals) for the
                comprehensive oil spill response plan required by Sec. 130.120(c),
                when applicable.
                 Railroads must update notifications made under Sec.
                174.312 for changes in volume greater than 25%.
                 Copies of railroad notifications made under Sec. 174.312
                must be made available to DOT upon request.
                 Approximately 160 small railroads carry crude oil and ethanol in
                train consists large enough that they would potentially be affected by
                this rule. PHMSA estimates the total cost of information sharing to
                each small railroad to be $7,758 in the first year and $2,365 for
                subsequent years, with costs growing with increases in real wages.\51\
                ---------------------------------------------------------------------------
                 \51\ Please refer to the draft RIA for full description on how
                these costs per railroad are derived.
                ---------------------------------------------------------------------------
                 Small railroads' annual operating revenues range from $3 million to
                $20 million. A recent publication on from the ASLRRA states that
                average freight revenue for Class III railroads is $4.75 million per
                year.\52\ One percent of average annual revenue per small railroad is
                $47,500. Thus, the costs associated with this requirement amount to
                less than one percent of the railroad's annual operating revenue. PHMSA
                realizes that some small railroads will have lower annual revenue than
                $4.75 million. However, PHMSA is confident that this estimate of total
                cost per small railroad provides a good representation of the cost
                applicable to small railroads, in general.
                ---------------------------------------------------------------------------
                 \52\ Short Line and Regional Railroad Association. 2017. ``Short
                Line and Regional Railroad Facts and Figures.''
                ---------------------------------------------------------------------------
                Total Burden on Small Entities
                 Table 7--Summary Undiscounted Annual Burden on Class III Railroads
                ----------------------------------------------------------------------------------------------------------------
                 Average annual
                 cost in
                 Number of Year 1 cost subsequent
                 Requirement area impacted small per small years per
                 railroads railroad-- small
                 undiscounted railroad--
                 undiscounted
                ----------------------------------------------------------------------------------------------------------------
                Oil Spill Response Plans........................................ 55 $51,020 $25,082
                Information Sharing............................................. 160 7,758 2,365
                 -----------------------------------------------
                 Total burden per small railroad ($)......................... .............. 58,778 27,447
                ----------------------------------------------------------------------------------------------------------------
                 In conclusion, PHMSA believes that although some small railroads
                will be directly impacted, the average impact will amount to less than
                one percent of an average small railroad's annual operating revenue.
                 This final rule is not expected to have a noticeable impact on the
                competitive position of the affected small railroads or on the small
                entity segment of the railroad industry as a whole. The small entity
                segment of the railroad industry faces little in the way of intramodal
                competition. Small railroads generally serve as ``feeders'' to the
                larger railroads, collecting carloads in smaller numbers and at lower
                densities than would be economical for the larger railroads. They
                transport those cars over relatively short distances and then turn them
                over to the
                [[Page 6944]]
                larger systems, which transport them relatively long distances to their
                ultimate destination, or for handoff back to a smaller railroad for
                final delivery. Although their relative interests do not always
                coincide, the relationship between the large and small entity segments
                of the railroad industry is more supportive and co-dependent than
                competitive.
                 It is also rare for small railroads to compete with each other. As
                mentioned above, small railroads generally serve smaller, lower density
                markets and customers. They tend to operate in markets where there is
                not enough traffic to attract or sustain rail competition, large or
                small. Given the significant capital investment required (to acquire
                right-of-way, build track, purchase fleet, etc.), new entry in the
                railroad industry is not a common occurrence. Thus, even to the extent
                the final rule may have an economic impact, PHMSA does not expect it to
                have an impact on the intramodal competitive position of small
                railroads.
                (6) A Description of the Steps the Agency Has Taken To Minimize the
                Significant Economic Impacts on Small Entities Consistent With the
                Stated Objectives of Applicable Statutes, Including a Statement of the
                Factual, Policy, and Legal Reasons for Selecting the Alternative
                Adopted in the Final Rule and Why Each One of the Other Significant
                Alternatives to the Rule Considered by the Agency Which Affect the
                Impact on Small Entities Was Rejected
                 PHMSA is promulgating this final rule in response to recent train
                accidents involving the derailment of HHFTs. Shipments of large volumes
                of liquid petroleum oil pose a significant risk to life, property, and
                the environment. The Agency considered several alternatives that would
                lessen the impacts on small businesses, including: Applying the OSRP
                requirement to railroads operating on Class III track or higher, and
                applying the OSRP requirement to consists of 70 or more carloads of
                crude oil. While these alternatives would reduce the impact on small
                businesses relative to the alternative selected by PHMSA, the Agency
                determined that to ensure protection of the environment, life and
                property, OSRP requirements should be applied to all railroads
                operating trains hauling 20 or more carloads of crude oil in a block or
                35 carloads throughout a train consist on all classes of track. Several
                commenters submitted comments stating that application of OSRPs should
                be based on the risk of a significant oil spill and not on entity size.
                OSRPs will ensure a coordinated and prompt response to oil spills from
                trains at significant risk of spilling large quantities of oil. The
                other alternatives were rejected because they do not adequately address
                the risk of a worst-case discharge throughout the rail system.
                (7) For a Covered Agency, as Defined in Section 609(d)(2), a
                Description of the Steps the Agency Has Taken To Minimize Any
                Additional Costs of Credit for Small Entities
                 PHMSA is not a covered entity.
                G. Paperwork Reduction Act
                 PHMSA is requesting a revision to the information collection from
                the Office of Management and Budget (OMB) under OMB Control No. 2137-
                0628, entitled ``Flammable Hazardous Materials by Rail
                Transportation.'' This final rule will result in an increase in annual
                burden and costs under OMB Control No. 2137-0628 due to proposed
                requirements pertaining to the creation of oil spill response plans and
                notification requirements for the movement of flammable liquids by
                rail.
                 Under the Paperwork Reduction Act of 1995, Public Law 104-13, no
                person is required to respond to an information collection unless it
                has been approved by OMB and displays a valid OMB control number.
                Section 1320.8(d) of title 5 of the CFR requires that PHMSA provide
                interested members of the public and affected agencies an opportunity
                to comment on information and recordkeeping requests.
                 This document identifies a revised information collection request
                that PHMSA will submit to OMB for approval based on the requirements in
                this final rule. PHMSA has developed burden estimates to reflect
                changes in this final rule. PHMSA received comments from industry
                stakeholders, API and AAR which suggested the burden hours estimated
                for plan development were too low. These commenters did not provide
                data or estimates to revise the data. To be responsive to commenters'
                concerns, PHMSA provided additional analysis and updated the estimates
                for the level of effort required to complete a response plan. This
                amounts to doubling the effort for core plan development and increasing
                by 12-fold the effort estimated to create a single response zone
                appendix. Additional information concerning OSRP plan development hours
                is available in the final RIA in the docket for this rulemaking.
                Oil Spill Response Plans
                 PHMSA estimates that there will be approximately 73 respondents,
                based on a review of the number of railroad operators in existence that
                transport trains with 20 or more tank cars loaded with liquid petroleum
                oil in a continuous block or 35 or more tank cars loaded with liquid
                petroleum oil throughout the train. PHMSA estimates that it will take a
                rail operator 180 hours to produce a comprehensive oil spill response
                plan. In addition, the oil spill response plan will have an addendum
                for each response zone through which the applicable trains pass. It is
                estimated this addendum will take 180 hours per response zone. The
                comprehensive oil response plans also will require annual maintenance.
                This annual maintenance is expected to take 162 hours for Class I
                railroads, 54 hours for Class II railroads, and 36 hours for Class III
                railroads.
                Initial Development of Oil Spill Response Plan
                 There are seven Class I railroads in existence that will be
                required to create a comprehensive oil spill response plan at 180 hours
                per plan resulting in 1,260 burden hours. Each Class I railroad is
                expected to have 8 response zones at 180 hours per response zone
                resulting in 10,080 burden hours. Combined this will result in a total
                of 11,340 burden hours Class I railroad oil spill response plans.
                 There are eleven Class II railroads in existence that will be
                required to create a comprehensive oil spill response plan at 180 hours
                per response plan resulting in 1,980 burden hours. Each Class II
                railroad is expected to have 2 response zones at 180 hours per zone
                resulting in 3,960 burden hours. Combined this will result in a total
                of 5,940 burden Class II railroad oil spill response plans.
                 There are 55 Class III railroads in existence that will be required
                to create a comprehensive oil spill response plan at 180 hours per
                response plan resulting in 9,900 burden hours. Each class III railroad
                is expected to pass through 1 response zones at 180 hours per zone
                resulting in 9,900 burden hours. Combined this will result in a total
                of 19,800 burden hours for Class III railroads oil spill response
                plans.
                 The total annual burden hours for all initial creation of oil spill
                response plans is 37,080 burden hours. There are no out of pocket
                expenses associated with this information collection. Presented below
                is a summary of the numbers describe above:
                 Class I--(7 Responses x 180 Hours per plan) + (7 responses x 8
                Response Zones
                [[Page 6945]]
                x 180 hours per zone) = 11,340 burden hours.
                 Class II--(11 Response x 180 Hours per plan) + (11 response x 2
                Response Zones x 180 hours per zone) = 5,940 burden hours.
                 Class III--(55 Response x 180 Hours per plan) + (55 responses x 1
                Response Zone x 180 hours per zone) = 19,800 burden hours.
                Oil Spill Response Plan Maintenance--Performed Annually
                 There are seven Class I railroads in existence that will be
                required to annually maintain their oil spill response plan at 162
                hours per plan resulting in 1,134 annual burden hours.
                 There are eleven Class II railroads in existence that will be
                required to annually maintain their oil spill response plan at 54 hours
                per plan resulting in 594 annual burden hours.
                 There are 55 Class III railroads in existence that will be required
                to annually maintain their oil spill response plan at 36 hours per plan
                resulting in annual burden hours.
                 The total annual burden hours for annual updates of oil spill
                response plans is 3,708 burden hours. Presented below is a summary of
                the numbers describe above:
                 Class I--7 Responses x 162 Hours per response = 1,134 annual burden
                hours
                 Class II--11 Response x 54 Hours per response = 594 annual burden
                hours
                 Class III--55 response x 36 hours per response = 1,980 annual
                burden hours
                 Total Hours for Plan Maintenance = 3,708 Annual Burden Hours.
                Notifications to Emergency Response Commissions
                Initial Notification Response Plan
                 For the creation of the initial HHFT information sharing
                notification PHMSA estimates that there will be approximately 178
                respondents based on a review of the number of railroad operators
                shipping class 3 flammable liquids. PHMSA estimates that it will take a
                rail operator 30 hours to create initial notification plan for the
                State Emergency Response Commissions (SERCs), 30 hours to create
                initial notification plan for the Tribal Emergency Response Commissions
                (TERCs), and 15 hours to create the initial plan for other state
                delegated agencies.
                 There are seven Class I railroads required to create SERC plans at
                30 hours per response for a total of 210 burden hours. There are seven
                Class I railroads at 30 hours per response for 210 burden hours for
                TEPC plans. There are seven Class I railroads at 15 hours per response
                for a total of 105 burden hours for other state delegated agency plans.
                This will result in an initial one year total burden of 525 hours for
                Class I railroads.
                 There are eleven Class II railroads at 30 hours per response
                resulting in 330 burden hours for SERC plans. There are eleven Class II
                railroads at 30 hours per response resulting in 330 burden hours for
                TERC plans. There are eleven Class II railroads at 15 hours per
                response resulting in 165 burden hours for other state delegated agency
                plans. This will result in an initial one year total burden of 825
                hours for Class II railroads.
                 There are 160 Class III railroads at 30 hours per response
                resulting in 4,800 burden hours for SERC plans. There are 160 Class III
                railroads at 30 hours per response resulting in 4,800 burden hours for
                TERC plans. There are 160 Class III railroads at 15 hours per response
                resulting in 2,400 burden hours for other state delegated agency plans.
                This will result in an initial one year total burden of 12,000 hours
                for Class III railroads.
                 The total annual burden hours for initial notification plans is
                13,350 burden hours.
                 Presented below is a summary of the numbers describe above:
                 Class I--(7 responses x 30 hours for SERC plan) + (7 responses x 30
                hours for TERC plan) + (7 responses x 15 hours for other state
                delegated agency plan) = 525 burden hours.
                 Class II--(11 responses x 30 hours for SERC plan) + (11 responses x
                30 hours for TERC plan) + (11 responses x 15 hours for other state
                delegated agency plan) = 825 burden hours.
                 Class III--(160 responses x 30 hours for SERC plan) + (160
                responses x 30 hours for TERC plan) + (160 responses x 15 hours for
                other state delegated agency plan) = 12,000 burden hours.
                Notification Response Plan Maintenance--Performed Annually
                 For the maintenance of the notification plan PHMSA estimates that
                there will be approximately 178 respondents based on a review of the
                number of railroad operators shipping class 3 flammable liquids. PHMSA
                estimates that it will take a rail operator 12 hours to maintain
                notification plan for the SERCs, 12 hours to maintain notification plan
                for TERCs, and 6 hours to maintain the plan for other state delegated
                agencies.
                 There are seven Class I railroads at 12 hours per response
                resulting in 84 burden hours for SERC plans. There are seven Class I
                railroads at 12 hours per response resulting in 84 burden hours for
                TERC plans. There are seven Class I railroads at 6 hours per response
                resulting in 42 burden hours for other state delegated agency plans.
                This will result in an annual total burden of 210 hours for Class I
                railroads.
                 There are eleven Class II railroads at 12 hours per response
                resulting in 132 burden hours for SERC plans. There are eleven Class II
                railroads at 12 hours per response resulting in 132 burden hours for
                TERC plans. There are eleven Class II railroads at 6 hours per response
                resulting in 66 burden hours for other state delegated agency plans.
                This will result in an annual burden of 330 hours for Class II
                railroads.
                 There are 160 Class III railroads at 12 hours per response
                resulting in 1,920 burden hours for SERC plans. There are 160 Class III
                railroads at 12 hours per response resulting in 1,920 burden hours for
                TERC plans. There are 160 Class III railroads at 6 hours per response
                resulting in 960 burden hours for other state delegated agency plans.
                This will result in an annual burden of 4,800 hours for Class III
                railroads.
                 The total annual burden hours for annual maintenance of
                notification plans is 5,340 burden hours. There are no out of pocket
                expenses associated with this information collection. Presented below
                is a summary of the numbers describe above:
                 Class I--(7 responses x 12 hours for SERC plan) + (7 responses x 12
                hours for TERC plan) + (7 responses x 6 hours for other state delegated
                agency plan) = 210 burden hours.
                 Class II--(11 responses x 12 hours for SERC plan) + (11 responses x
                12 hours for TERC plan) + (11 responses x 6 hours for other state
                delegated agency plan) = 330 burden hours.
                 Class III--(160 responses x 12 hours for SERC plan) + (160
                responses x 12 hours for TERC plan) + (160 responses x 6 hours for
                other state delegated agency plan) = 4,800 burden hours.
                Total Increased Burden
                 OMB No. 2137-0682: Flammable Hazardous Materials by Rail
                Transportation.
                 Initial Year Annual Burden:
                 Initial Year Annual Responses: 740.
                 Initial Year Annual Burden Hours: 50,430.
                 Additional Cost Burden: $0.
                 Subsequent Year Burden:
                 Annual Responses: 607.
                 Annual Burden Hours: 9,048.
                 Additional Cost Burden: $0.
                 Please direct your requests for a copy of the information
                collection to Steven Andrews or Shelby Geller, U.S. Department of
                Transportation, Pipeline & Hazardous Materials Safety
                [[Page 6946]]
                Administration (PHMSA), East Building, Office of Hazardous Materials
                Standards (PHH-12), 1200 New Jersey Avenue Southeast, Washington, DC
                20590, Telephone (202) 366-8553.
                H. Executive Order 13211
                 Executive Order 13211 requires Federal agencies to prepare a
                Statement of Energy Effects for any ``significant energy action.'' (66
                FR 28355; May 22, 2001). Under the Executive Order, a ``significant
                energy action'' is defined as any action by an agency (normally
                published in the Federal Register) that promulgates, or is expected to
                lead to the promulgation of, a final rule or regulation (including a
                notice of inquiry, advance NPRM, and NPRM) that (1)(i) is a significant
                regulatory action under Executive Order 12866 or any successor order
                and (ii) is likely to have a significant adverse effect on the supply,
                distribution, or use of energy; or (2) is designated by the
                Administrator of the Office of Information and Regulatory Affairs as a
                significant energy action.
                 PHMSA has evaluated this action in accordance with Executive Order
                13211. See the environmental assessment section for a more thorough
                discussion of environmental effects and the supply, distribution, or
                use of energy. PHMSA has determined that this action will not have a
                significant adverse effect on the supply, distribution, or use of
                energy. Consequently, PHMSA has determined that this regulatory action
                is not a ``significant energy action'' within the meaning of Executive
                Order 13211.
                I. Unfunded Mandates Reform Act
                 This final rule does not impose unfunded mandates as defined by the
                Unfunded Mandates Reform Act of 1995. Public Law 104-4. It does not
                result in costs of $100 million or more, adjusted for inflation, to
                either State, local, or tribal governments, in the aggregate, or to the
                private sector in any one year, and is the least burdensome alternative
                that achieves the objective of the rule. As such, PHMSA has concluded
                that the final rule does not require an Unfunded Mandates Act analysis.
                J. Executive Order 13609 and International Trade Analysis
                 Under Executive Order 13609, ``Promoting International Regulatory
                Cooperation,'' 77 FR 26413 (May 4, 2012), agencies must 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.
                 Similarly, the Trade Agreements Act of 1979 (Pub. L. 96-39), as
                amended by the Uruguay Round Agreements Act (Pub. L. 103-465),
                prohibits Federal agencies from establishing any standards or engaging
                in related activities that create unnecessary obstacles to the foreign
                commerce of the United States. For purposes of these requirements,
                Federal agencies may participate in the establishment of international
                standards, 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. We have assessed the
                effects of the final rule 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
                Agreement Act, as amended.
                K. Environmental Assessment
                 PHMSA has analyzed this rule in accordance with the National
                Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321, et seq.), as
                amended; the Council on Environmental Quality (CEQ) regulations
                implementing NEPA (40 CFR parts 1500-1508); the U.S. Department of
                Transportation (DOT) Order 5610.C (September 18, 1979, as amended on
                July 13, 1982 and July 30, 1985), entitled ``Procedures for Considering
                Environmental Impacts,'' and other pertinent environmental regulations,
                Executive Orders, statutes, and laws for the consideration of
                environmental impacts of PHMSA actions. The agency relies on all
                authorities noted above to ensure that it actively incorporates
                environmental considerations into informed decision-making on all of
                its actions, including rulemaking. An ``Environmental Assessment'' (EA)
                and a ``Finding of No Significant Impact'' (FONSI) are available in the
                docket PHMSA-2014-0105 (HM-251B). PHMSA has concluded that this action
                would have a positive effect on the human and natural environments
                since these response plan and information requirements would mitigate
                environmental consequences of spills related to rail transport of
                petroleum oil and HHFTs by reducing the severity of incidents as
                follows:
                ------------------------------------------------------------------------
                
                ------------------------------------------------------------------------
                Oil Spill Response Planning.............. Improved Response
                 Times.
                 Improved
                 Communication/Defined
                 Command Structure.
                 Better Access to
                 Equipment.
                 Trained Responders.
                Information Sharing...................... Improved
                 Communication.
                 Enhanced
                 Preparedness.
                ------------------------------------------------------------------------
                L. Regulatory Identification Number (RIN)
                 A regulation identifier number (RIN) is assigned to each regulatory
                action listed in the Unified Agenda of Federal Regulatory and
                Deregulator Actions (``Unified Agenda''). The Regulatory Information
                Service Center publishes the Unified Agenda in April and October of
                each year. RIN 2137-AF08 can be used to cross-reference this action
                with the Unified Agenda.
                M. Privacy Act
                 In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
                public to better inform its rulemaking process. 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), which can be reviewed at
                www.dot.gov/privacy.
                List of Subjects
                49 CFR Part 107
                 Administrative practice and procedure, Hazardous materials
                [[Page 6947]]
                transportation, Penalties, Reporting and recordkeeping requirements.
                49 CFR Part 130
                 Incorporation by reference, Oil pollution, Packaging and
                containers, Reporting and recordkeeping requirements, Transportation.
                49 CFR Part 171
                 Exports, Hazardous materials transportation, Hazardous waste,
                Imports, Incorporation by reference, Reporting and recordkeeping
                requirements.
                49 CFR Part 173
                 Hazardous materials transportation, Packaging and containers,
                Radioactive materials, Reporting and recordkeeping requirements,
                Uranium.
                49 CFR Part 174
                 Hazardous materials transportation, Incorporation by reference,
                Radioactive materials, Railroad safety.
                 In consideration of the foregoing, 49 CFR chapter I is amended as
                follows:
                PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
                0
                1. The authority citation for part 107 is revised to read as follows:
                 Authority: 49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 Section
                4; Pub. L. 104-121 Sections 212-213; Pub. L. 104-134 Section 31001;
                Pub. L. 114-74 Section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and
                1.97; 33 U.S.C. 1321.
                0
                 2. Revise Sec. 107.301 to read as follows:
                Sec. 107.301 Delegated authority for enforcement.
                 Under redelegation from the Administrator of the Pipeline and
                Hazardous Materials Safety Administration, the Associate Administrator
                for Hazardous Materials Safety and the Office of the Chief Counsel
                exercise their authority for enforcement of the Federal hazardous
                material transportation law, Federal Water Pollution Control Act, this
                subchapter, and subchapters B and C of this chapter, in accordance with
                Sec. 1.97 of this title.
                0
                 3. Revise Sec. 107.305(a) to read as follows:
                Sec. 107.305 Investigations.
                 (a) General. In accordance with its delegated authority under part
                1 of this title, the Associate Administrator may initiate
                investigations relating to compliance by any person with any provisions
                of this subchapter, subchapter B of this chapter, or subchapter C of
                this chapter, or any special permit, approval, response plan, or order
                issued thereunder, or any court decree relating thereto. The Associate
                Administrator encourages voluntary production of documents in
                accordance with and subject to Sec. 105.45 of this subchapter, and
                hearings may be conducted, and depositions taken pursuant to 49 U.S.C.
                5121(a). The Associate Administrator may conduct investigative
                conferences and hearings in the course of any investigation.
                * * * * *
                0
                4. Revise Sec. 107.309(a) to read as follows:
                Sec. 107.309 Warning letters.
                 (a) The Associate Administrator may issue a warning letter to any
                person whom the Associate Administrator believes to have committed a
                probable violation of the Federal hazardous material transportation
                law, the Federal Water Pollution Control Act, or any provision of this
                subchapter, subchapter B of this chapter, subchapter C of this chapter,
                or any special permit issued thereunder.
                * * * * *
                0
                5. Amend Sec. 107.311 by revising paragraphs (a) and (b)(1) to read as
                follows:
                Sec. 107.311 Notice of probable violation.
                 (a) The Office of Chief Counsel may serve a notice of probable
                violation on a person alleging the violation of one or more provisions
                of the Federal hazardous material transportation law, the Federal Water
                Pollution Control Act, or any provision of this subchapter, subchapter
                B of this chapter, or subchapter C of this chapter, or any special
                permit, response plan, or order issued thereunder.
                 (b) * * *
                 (1) A citation of the provisions of the Federal hazardous material
                transportation law, Federal Water Pollution Control Act, an order
                issued thereunder, this subchapter, subchapter B of this chapter,
                subchapter C of this chapter, or the terms of any special permit issued
                thereunder which the Office of Chief Counsel believes the respondent is
                violating or has violated.
                * * * * *
                0
                6. Amend Sec. 107.329 by adding paragraph (c) to read as follows:
                Sec. 107.329 Maximum penalties.
                * * * * *
                 (c) Any owner, operator, or person found to have violated a
                response plan or provision of 33 U.S.C. 1321(j), or any regulation or
                order issued thereunder, is subject to an administrative civil penalty
                under 33 U.S.C. 1321(b)(6), as adjusted by 40 CFR 19.4.
                PART 130--OIL SPILL PREVENTION AND RESPONSE PLANS
                0
                7. The authority citation for part 130 continues to read as follows:
                 Authority: 33 U.S.C. 1321; 49 CFR 1.81 and 1.97.
                Sec. Sec. 130.1, 130.2, 130.3, 130.5, 130.11, and 130.21 [Designated
                as Subpart A]
                0
                8. Designate Sec. Sec. 130.1, 130.2, 130.3, 130.5, 130.11, and 130.21
                as subpart A and add a heading for newly designated subpart A to read
                as follows:
                Subpart A--Applicability and General Requirements
                0
                9. Amend Sec. 130.2 by revising paragraphs (a) and (d) to read as
                follows:
                Sec. 130.2 Scope.
                 (a) The requirements of this part apply to oil that is subject to a
                basic or comprehensive oil spill response plan in accordance with
                subparts B and C of this part.
                * * * * *
                 (d) The requirements in subpart C of this part do not apply to
                mobile marine transportation-related facilities (see 33 CFR part 154).
                0
                10. Amend Sec. 130.5:
                0
                a. By adding, in alphabetical order, definitions for ``Adverse
                weather'' and ``Environmentally sensitive or significant areas'';
                0
                b. By revising the definition for ``Liquid'' and removing the note
                following the definition;
                0
                c. By adding, in alphabetical order, definitions for ``Maximum
                potential discharge,'' ``Oil Spill Removal Organization,'' and ``On-
                Scene Coordinator'';
                0
                d. By revising the definitions of ``Person'' and ``Petroleum oil'';
                0
                e. By adding, in alphabetical order, defintions for ``Response
                activities,'' ``Response plan,'' and ``Response zone''; and
                0
                f. By revising the definition of ``Worst-case discharge''.
                 The additions and revisions read as follows:
                Sec. 130.5 Definitions.
                * * * * *
                 Adverse weather means the weather conditions (e.g., ice conditions,
                temperature ranges, flooding, strong winds) that will be considered
                when identifying response systems and equipment to be deployed in
                accordance with a response plan.
                * * * * *
                [[Page 6948]]
                 Environmentally sensitive or significant areas (ESA) means a
                ``sensitive area'' identified in the applicable Area Contingency Plan
                (ACP), or if no applicable, complete ACP exists, an area of
                environmental importance which is in or adjacent to navigable waters.
                * * * * *
                 Liquid means a material, with a melting point or initial melting
                point of 20 [deg]C (68 [deg]F) or lower at a standard pressure of 101.3
                kPa (14.7 psia). A viscous material for which a specific melting point
                cannot be determined must be subjected to the procedures specified in
                ASTM D4359-90 ``Standard Test Method for Determining Whether a Material
                is Liquid or Solid'' (IBR, see Sec. 171.7 of this chapter).
                * * * * *
                 Maximum potential discharge means a planning volume for a discharge
                from a motor vehicle or rail car equal to the capacity of the cargo
                container.
                * * * * *
                 Oil Spill Removal Organization (OSRO) means an entity that provides
                response resources.
                 On-Scene Coordinator (OSC) means the Federal official pre-
                designated by the Administrator of the United States Environmental
                Protection Agency (EPA) or by the Commandant of the United States Coast
                Guard (USCG) to coordinate and direct Federal response under the
                National Contingency Plan (NCP) (40 CFR part 300, subpart D).
                * * * * *
                 Person means an individual, firm, corporation, partnership,
                association, State, municipality, commission, or political subdivision
                of a State, or any interstate body, as well as a department, agency, or
                instrumentality of the executive, legislative, or judicial branch of
                the Federal Government. This definition includes railroads.
                 Petroleum oil means any oil extracted or derived from geological
                hydrocarbon deposits, including oils produced by distillation or their
                refined products.
                * * * * *
                 Response activities means the containment and removal of oil from
                navigable waters and adjoining shorelines, the temporary storage and
                disposal of recovered oil, or the taking of other actions as necessary
                to minimize or mitigate damage to the environment.
                 Response plan means a basic oil spill response plan meeting
                requirements of subpart B of this part or a comprehensive oil spill
                response plan meeting requirements of subpart C of this part. For
                comprehensive plans in subpart C, this definition includes both the
                railroad's core plan and the response zone appendices, for responding,
                to the maximum extent practicable, to a worst-case discharge of oil or
                the substantial threat of such a discharge.
                 Response zone means a geographic area along applicable rail
                route(s), containing one or more adjacent route segments for which the
                railroad is required to plan for the deployment of, and provide, spill
                response capabilities meeting the planning requirements of Sec.
                130.130. The size, locations, and boundaries of the zone are determined
                and identified by the railroad after considering the existing location
                and organizational structure of each railroad's incident management
                team (IMT), including the availability and capability of response
                resources.
                * * * * *
                 Worst-case discharge means ``the largest foreseeable discharge in
                adverse weather conditions,'' as defined at 33 U.S.C. 1321(a)(24). The
                largest foreseeable discharge includes discharges resulting from fire
                or explosion. The worst-case discharge from a unit train consist is the
                greater of:
                 (1) 300,000 gallons of liquid petroleum oil; or
                 (2) 15 percent of the total lading of liquid petroleum oil
                transported within the largest unit train consist reasonably expected
                to transport liquid petroleum oil in a given response zone. The worst-
                case discharge calculated from tank cars exceeding 42,000 gallons is
                equal to the capacity of the cargo container.
                Sec. Sec. 130.22 through 130.29 [Added and Reserved]
                0
                11. Add reserved Sec. Sec. 130.22 through 130.29 to subpart A.
                Sec. Sec. 130.31 and 130.33 [Designate as Subpart B]
                0
                12. Designate Sec. Sec. 130.31 and 130.33 as subpart B and add a
                heading for newly designated subpart B to read as follows:
                Subpart B--Basic Spill Response Plans
                0
                13. Amend Sec. 130.31 by revising the section heading and paragraphs
                (a) introductory text and (b) to read as follows:
                Sec. 130.31 Basic spill response plans.
                 (a) No person may transport liquid petroleum oil in a packaging
                having a capacity of 3,500 gallons or more unless that person has a
                current basic written plan that:
                * * * * *
                 (b) A railroad with a comprehensive plan in conformance with the
                requirements of subpart C of this part is not required to have a basic
                spill response plan for routes covered by the comprehensive plan.
                * * * * *
                0
                14. Revise the heading of Sec. 130.33 to read as follows:
                Sec. 130.33 Basic response plan implementation.
                * * * * *
                Sec. Sec. 130.34 through 130.99 [Added and Reserved]
                0
                15. Add reserved Sec. Sec. 130.34 through 130.99 to subpart B.
                0
                16. Add subpart C to read as follows:
                Subpart C--Comprehensive Oil Spill Response Plans
                Sec.
                130.100 Applicability of comprehensive oil spill response plans.
                130.105 Purpose and general format.
                130.110 Consistency with the National Contingency Plan.
                130.115 Consistency with Area Contingency Plans.
                130.120 Information summary.
                130.125 Notification procedures and contacts.
                130.130 Response and mitigation activities.
                130.135 Training.
                130.140 Equipment testing and exercise procedures.
                130.145 Plan review, update, and recordkeeping procedures.
                130.150 Approval and submission procedures.
                Sec. 130.100 Applicability of comprehensive oil spill response plans.
                 (a) Railroads must have current, written comprehensive oil spill
                response plans (COSRPs) meeting the requirements of this subpart for
                any route or route segments used to transport either of the following:
                 (1) Any liquid petroleum oil or other non-petroleum oil subject to
                this part in a quantity greater than 42,000 gallons (1,000 barrels) per
                packaging; or
                 (2) A single train carrying 20 or more loaded tank cars of liquid
                petroleum oil in a continuous block or a single train carrying 35 or
                more loaded tank cars of liquid petroleum oil throughout the train
                consist.
                 (i) Tank cars carrying liquid petroleum oil products not meeting
                the criteria for Class 3 flammable or combustible material in Sec.
                173.120 of this chapter, or containing residue as defined in Sec.
                171.8 of this chapter, are not required to be included when determining
                the number of tank cars transporting liquid petroleum oil in paragraph
                (a)(2) of this section.
                 (ii) [Reserved]
                [[Page 6949]]
                 (b) The requirements of this subpart do not apply if the oil being
                transported is otherwise excepted per Sec. 130.2(c).
                 (c) A railroad required to develop a response plan in accordance
                with this section may not transport applicable quantities of oil
                (including handling and storage incidental to transport) unless--
                 (1) The response plan is submitted, reviewed, and approved as
                required by Sec. 130.150 except as described in paragraph (d) of this
                section; and
                 (2) The railroad is operating in compliance with the response plan.
                 (d) A railroad required to develop a response plan in accordance
                with this section may continue to transport oil without an approval
                from PHMSA provided that all of the following criteria are met:
                 (1) The railroad submitted a plan in accordance with the
                requirements of Sec. 130.150(a) within the previous two years;
                 (2) The submitted plan includes the certification in Sec. 130.130;
                 (3) The railroad is operating in compliance with the submitted
                plan; and
                 (4) PHMSA has not issued a final decision that all or part of the
                plan does not meet the requirements of this subpart.
                Sec. 130.105 Purpose and general format.
                 (a) Each railroad subject to this subpart must prepare and submit a
                plan, including resources and procedures, for responding, to the
                maximum extent practicable, to a worst-case discharge, and to a
                substantial threat of such a discharge, of oil. The plan must use and
                be consistent with the core principle of the National Incident
                Management System (NIMS) including the utilization of the Incident
                Command System (ICS).
                 (b) Each response plan must be formatted to include:
                 (1) Core plan. Response plans with more than one response zone must
                include a core plan containing an information summary required by Sec.
                130.120 and information that does not change between different response
                zones; and
                 (2) Response zone appendix or appendices. For each response zone
                included in the response plan, the response plan must include a
                response zone appendix that provides the information summary required
                by Sec. 130.120 and any additional information that differs between
                response zones or is not included in the core plan. In addition, each
                response zone appendix must identify all of the following:
                 (i) A description of the response zone, including county(s) and
                state(s);
                 (ii) A list of route sections contained in the response zone,
                identified by railroad milepost or other identifier;
                 (iii) Identification of environmentally sensitive or significant
                areas per route section as determined by Sec. 130.115; and
                 (iv) The location from which the Oil Spill Removal Organization
                will deploy, and the location and description of the response equipment
                required by Sec. 130.130(c)(6).
                 (c) To meet the requirements of the response plan as required by
                Sec. 130.100, a railroad may submit an applicable Annex(es) of an
                Integrated Contingency Plan (ICP). The Annex(es) must meet the minimum
                requirements of a Federal response plan required under this part.
                Guidance on the ICP is available from the National Response Team
                (http://www.NRT.org).
                 (d) To meet the requirements of the response plan as required by
                Sec. 130.100, a railroad may submit a response plan that complies with
                a State law or regulation. The state plan must meet the minimum
                requirements of a Federal response plan required under this part and
                must include all of the following:
                 (1) An information summary as required by Sec. 130.120;
                 (2) A list of the names or titles and 24-hour telephone numbers of
                the qualified individual(s) and at least one alternate qualified
                individual(s); and
                 (3) A certification and documentation that that railroad has
                identified and secured, through contract or other approved means, the
                private personnel and equipment necessary to respond to a worst-case
                discharge or a substantial threat of such a discharge.
                Sec. 130.110 Consistency with the National Contingency Plan.
                 (a) A railroad must certify in the response plan that it reviewed
                the NCP (40 CFR part 300) and that its response plan is consistent with
                the NCP.
                 (b) At a minimum, for consistency with the NCP, a comprehensive
                response plan must include all of the following:
                 (1) Demonstrate a railroad's clear understanding of the Incident
                Command System and Unified Command and the roles and responsibilities
                of the Federal On-Scene Coordinator;
                 (2) Include procedures to immediately notify the National Response
                Center; and
                 (3) Establish provisions to ensure safety at the response site.
                Sec. 130.115 Consistency with Area Contingency Plans.
                 (a) A railroad must certify for each response zone that it reviewed
                each applicable ACP (or Regional Contingency Plan (RCP) for areas
                lacking an ACP).
                 (b) At a minimum, for consistency with the applicable ACP (or
                Regional Contingency Plan (RCP) for areas lacking an ACP), the
                comprehensive response plan must do all of the following:
                 (1) Address the removal of a worst-case discharge, and the
                mitigation or prevention of the substantial threat of a worst-case
                discharge, of oil;
                 (2) Identify environmentally sensitive or significant areas along
                the route, as defined in Sec. 130.5, which could be adversely affected
                by a worst-case discharge, by reviewing and summarizing the applicable
                ACP or RCP;
                 (3) Incorporate appropriate strategies identified in applicable
                ACPs or RCPs, to protect environmentally sensitive or significant areas
                identified in paragraph (b)(2) of this section;
                 (4) Describe the responsibilities of the railroad and of Federal,
                State, and local agencies in removing a discharge and in mitigating or
                preventing a substantial threat of a discharge; and
                 (5) Identify the procedures to obtain any required Federal and
                State authorization for using alternative response strategies such as
                in-situ burning and/or chemical agents, as provided for in the
                applicable ACP and subpart J of 40 CFR part 300.
                Sec. 130.120 Information summary.
                 (a) Each person preparing a comprehensive response plan must
                include information summaries for the core plan and each response zone
                meeting the requirements of this section.
                 (b) The information summary for the core plan must include all of
                the following:
                 (1) The name and mailing address of the railroad;
                 (2) A listing and description of each response zone, including
                county(s) and State(s); and
                 (3) The name or title of the qualified individual(s) and
                alternate(s) for each response zone, with telephone numbers at which
                they can be contacted on a 24-hour basis.
                 (c) The information summary for each response zone appendix must
                include all of the following:
                 (1) The name and mailing address of the railroad;
                 (2) A description of the response zone, including county(s) and
                State(s);
                 (3) The name or title of the qualified individual(s) and
                alternate(s) for the response zone, with telephone numbers at which
                they can be contacted on a 24-hour basis;
                [[Page 6950]]
                 (4) The type(s) of oil expected to be carried; and
                 (5) Determination of the worst-case discharge and supporting
                calculations.
                 (d) The information summary should be listed first, before other
                information in the plan, or clearly identified through the use of tabs
                or other visual aids.
                Sec. 130.125 Notification procedures and contacts.
                 (a) The railroad must develop and implement notification procedures
                that include all of the following:
                 (1) Procedures for immediate notification of the qualified
                individual or alternate and immediate communications between that
                individual, and the appropriate Federal official and the persons
                providing personnel and equipment;
                 (2) A checklist of the notifications required under the response
                plan, listed in the order of priority;
                 (3) The primary and secondary communication methods by which
                notifications can be made;
                 (4) The circumstances and necessary time frames under which the
                notifications must be made; and
                 (5) The information to be provided in the initial and each follow-
                up notification.
                 (b) The notification procedures must include the names of the
                following individuals or organizations, with the ten-digit telephone
                numbers at which they can be contacted on a 24-hour basis:
                 (1) The National Response Center (NRC);
                 (2) Qualified individual, or alternative;
                 (3) Federal, State, and local agencies that the railroad expects to
                have pollution control responsibilities or provide pollution control
                support; and
                 (4) Personnel or organizations to notify for the activation of
                equipment and personnel resources identified in Sec. 130.130.
                Sec. 130.130 Response and mitigation activities.
                 (a) Each railroad must certify that it has identified and secured,
                by contract or other means, the private response resources in each
                response zone necessary to remove and control, to the maximum extent
                practicable, a worst-case discharge. The certification must be signed
                by the qualified individual or an appropriate corporate officer.
                 (b) Each railroad must identify and describe in the plan the
                response resources that are available to arrive onsite within 12 hours
                of the discovery of a worst-case discharge or the substantial threat of
                such a discharge. It is assumed that resources can travel according to
                a land speed of 35 miles per hour, unless the railroad can demonstrate
                otherwise.
                 (c) Each plan must identify all of the following information for
                response and mitigation activities:
                 (1) Methods of initial discharge detection;
                 (2) Responsibilities of, and actions to be taken by, personnel to
                initiate and supervise response activities pending the arrival of the
                qualified individual or other response resources identified in the
                response plan that are necessary to ensure the protection of safety at
                the response site and to mitigate or prevent any discharge from the
                tank cars;
                 (3) The qualified individual's responsibilities and authority;
                 (4) Procedures for coordinating the actions of the railroad or
                qualified individual with the actions of the U.S. EPA or U.S. Coast
                Guard On-Scene Coordinator responsible for monitoring or directing
                response and mitigation activities;
                 (5) The Oil Spill Removal Organization's responsibilities and
                authority; and
                 (6) For each Oil Spill Removal Organization identified under this
                section, a listing adequate for the worst-case discharge listed in the
                plan of:
                 (i) Equipment, supplies, and personnel available, and the location
                thereof, including equipment suitable for adverse weather conditions
                and the personnel necessary to continue operation of the equipment and
                staff the Oil Spill Removal Organization during the response, in
                accordance with appendix C of 33 CFR part 154; or
                 (ii) In lieu of the listing of equipment, supplies, and personnel,
                a statement that the Oil Spill Removal Organization has been classified
                by the United States Coast Guard under 33 CFR 154.1035 or 155.1035.
                Sec. 130.135 Training.
                 (a) A railroad must certify in the response plan that it has
                conducted training to ensure that:
                 (1) All railroad employees subject to the plan know--
                 (i) Their responsibilities under the comprehensive oil spill
                response plan; and
                 (ii) The name of, and procedures for contacting, the qualified
                individual or alternate on a 24-hour basis;
                 (2) All railroad employees with responsibilities as reporting
                personnel in the plan also know--
                 (i) The content of the information summary of the response plan;
                 (ii) The toll-free telephone number of the National Response
                Center; and
                 (iii) The notification process required by Sec. 130.105; and
                 (3) The qualified individual or, as an alternative, the person
                acting in an Incident Commander role, may be trained in the Incident
                Command System at the Incident Commander Level.
                 (b) Employees subject to this section must be trained at least once
                every five years or, if the plan is revised during the five-year
                recurrent training cycle, within 90 days of implementation of the
                revised plan. New employees must be trained within 90 days of
                employment or change in job function.
                 (c) Each railroad must create and retain records of current
                training of each railroad employee engaged in oil spill response,
                inclusive of the preceding five years, in accordance with this section,
                for as long as that employee is employed and for 90 days thereafter. A
                railroad must make the employee's record of training available upon
                request, at a reasonable time and location, to an authorized official
                of the Department of Transportation. The record must include all of the
                following:
                 (1) The employee's name;
                 (2) The completion date of the employee's most recent training;
                 (3) The name and address of the person providing the training; and
                 (4) A certification statement that the designated employee has been
                trained, as required by this subpart.
                 (d) Nothing in this section relieves a person from the
                responsibility to ensure that all personnel are trained in accordance
                with other regulations. As an example, response personnel may be
                subject to the Occupational Safety and Health Administration (OSHA)
                standards for emergency response operations in 29 CFR 1910.120,
                including volunteers or casual laborers employed during a response who
                are subject to those standards pursuant to 40 CFR part 311. Hazmat
                employees, as defined in Sec. 171.8 of this chapter, are subject to
                the training requirements in subpart H of part 172 of this chapter,
                including safety training.
                Sec. 130.140 Equipment testing and exercise procedures.
                 (a) Testing. The plan must include a description of the methods
                used to ensure that equipment testing meets the manufacturer's minimum
                recommendations or equivalent.
                 (b) Exercises. A railroad must implement and describe an exercise
                program for COSRPs following the National Preparedness for Response
                Exercise Program (PREP) Guidelines, which can be found using the search
                function on the USCG's web page
                [[Page 6951]]
                (https://homeport.uscg.mil). These guidelines are also available from
                the TASC DEPT Warehouse, 33141Q 75th Avenue, Landover, MD 20875 (fax:
                301-386-5394, stock number USCG-X0241). As an alternative, a railroad
                choosing not to follow PREP Guidelines must have an exercise program
                that is equivalent to PREP. The plan must include a description of the
                exercise procedures and programs the railroad uses to assess whether
                its response plan will function as planned, including the types of
                exercises and their frequencies.
                 (c) Recordkeeping. Railroads must keep records showing the exercise
                dates and times, and the after action reports that accompany the
                response plan exercises. Railroads must provide copies of these records
                to Department of Transportation representatives upon request.
                Sec. 130.145 Plan review, update, and recordkeeping procedures.
                 (a) For purposes of this part, copy means a hardcopy or an
                electronic version. Each railroad must:
                 (1) Maintain a copy of the complete plan at the railroad's
                principal place of business;
                 (2) Provide a copy of the core plan and the appropriate response
                zone appendix to each qualified individual and alternate; and
                 (3) Provide a copy of the information summary to each dispatcher in
                response zones identified in the plan.
                 (b) Each railroad must include procedures to review the plan after
                a discharge requiring the activation of the plan in order to evaluate
                and record the plan's effectiveness.
                 (c) Each railroad must update its plan to address new or different
                conditions or information. In addition, each railroad must review its
                plan in full at least every 5 years from the date of the last approval.
                 (d) If changes to the plans are made, updated copies of the plan
                must be provided to every individual referenced under paragraph (a) of
                this section.
                 (e) If new or different operating conditions or information would
                substantially affect the implementation of the response plan, the
                railroad must immediately modify its plan to address such a change and
                must submit the change to PHMSA within 90 days in accordance with Sec.
                130.111. Examples of changes in operating conditions or information
                that would substantially affect a railroad's response plan are:
                 (1) Establishment of a new railroad route, including an extension
                of an existing railroad route, construction of a new track, or
                obtaining trackage rights over a route not covered by the previously
                approved plan used for trains which require a comprehensive plan in
                accordance with Sec. 130.100(a);
                 (2) The name of the Oil Spill Removal Organization;
                 (3) Emergency response procedures;
                 (4) The qualified individual;
                 (5) A change in the NCP or an ACP that has significant impact on
                the equipment appropriate for response activities (e.g., identification
                of ESAs as described by Sec. 130.115);
                 (6) A change in the type of oil transported, if the type affects
                the required response resources (e.g., a change from crude oil to
                gasoline); and
                 (7) Any other information relating to circumstances that may affect
                full implementation of the plan.
                 (f) If PHMSA determines that a change to a response plan does not
                meet the requirements of this part, PHMSA will notify the operator of
                any alleged deficiencies, and provide the railroad with an opportunity
                to respond--including an opportunity for an informal conference--to any
                proposed plan revisions, as well as an opportunity to correct any
                deficiencies.
                 (g) A railroad that disagrees with a determination that proposed
                revisions to a plan are deficient may petition PHMSA for
                reconsideration within 30 days from the date of receipt of PHMSA's
                notice. After considering all relevant material presented in writing or
                at an informal conference, PHMSA will notify the railroad of its final
                decision. The railroad must comply with the final decision within 30
                days of issuance, unless PHMSA allows additional time.
                Sec. 130.150 Approval and submission procedures.
                 (a) Each railroad must submit an electronic copy in an industry
                standard format (e.g., Adobe Acrobat, Microsoft Word, or hypertext
                markup language (HTML)) of the COSRP required by this part. Copies of
                the response plan must be submitted via commercial carrier to:
                Associate Administrator for Hazardous Materials Safety, Pipeline and
                Hazardous Materials Safety Administration, U.S. Department of
                Transportation, East Building, 2nd Floor, 1200 New Jersey Avenue SE,
                Washington, DC 20590-0001. Alternatively, the railroad may arrange for
                secure electronic transfer of the file to PHMSA or email a copy of the
                plan to PHMSA.OPA90@dot.gov.
                 (b) If PHMSA determines that a response plan requiring approval
                does not meet all the requirements of this part, PHMSA will notify the
                railroad of any alleged deficiencies and provide the railroad an
                opportunity to respond--including the opportunity for an informal
                conference--to any proposed plan revisions, as well as an opportunity
                to correct any deficiencies.
                 (c) A railroad that disagrees with PHMSA's determination that a
                plan contains alleged deficiencies may petition PHMSA for
                reconsideration within 30 days from the date of receipt of PHMSA's
                notice. After considering all relevant material presented in writing or
                at an informal conference, PHMSA will notify the operator of its final
                decision. The railroad must comply with the final decision within 30
                days of issuance, unless PHMSA allows additional time.
                 (d) PHMSA will approve the response plan if PHMSA determines that
                the response plan meets all requirements of this part. PHMSA may
                consult with the U.S. Environmental Protection Agency (EPA) or the U.S.
                Coast Guard (USCG), allowing a Federal On-Scene Coordinator (OSC) to
                identify concerns regarding a plan's compliance with the statutory and
                regulatory requirements.
                 (e) If PHMSA receives a request from a Federal OSC to review a
                response plan, PHMSA will give a copy of the response plan to the
                Federal OSC provided that any requests for the plan are referred to
                PHMSA. PHMSA may consider Federal OSC comments on: Response techniques;
                protecting fish, wildlife and environmentally sensitive environments;
                and consistency with the ACP. PHMSA remains the approving authority for
                the response plan.
                 (f) A railroad may ask for confidential treatment in accordance
                with the procedures in Sec. 105.30 of this chapter.
                Sec. 130.155 Implementation of comprehensive oil spill response
                plans.
                 If, during transportation of oil subject to this subpart, a
                discharge of oil occurs--into or on the navigable waters; on the
                adjoining shorelines to the navigable waters; or that may affect
                natural resources belonging to, appertaining to, or under the exclusive
                management authority of, the United States--the person transporting the
                oil must implement the plan required by Sec. 130.100 in a manner
                consistent with the National Contingency Plan, 40 CFR part 300, or as
                otherwise directed by the Federal On-Scene Coordinator.
                PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
                0
                17. The authority citation for part 171 continues to read as follows:
                 Authority: 49 U.S.C. 5101-5128, 44701; Public Law 101-410
                section 4; Public Law 104-134, section 31001; Public Law 114-74
                section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
                [[Page 6952]]
                0
                18. Amend Sec. 171.7 by:
                0
                 a. In paragraph (h) introductory text, removing ``American Society for
                Testing and Materials'' and adding in its place ``ASTM International'';
                and
                0
                b. Redesignating paragraphs (h)(45) through (51) as (h)(46) through
                (52) and adding new paragraph (h)(45).
                 The addition reads as follows:
                Sec. 171.7 Reference material.
                * * * * *
                 (h) * * *
                 (45) ASTM D7900-13\e1\, Standard Test Method for Determination of
                Light Hydrocarbons in Stabilized Crude Oils by Gas Chromatography,
                Approved December 1, 2013, into Sec. 173.121.
                * * * * *
                PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
                PACKAGINGS
                0
                19. The authority citation for part 173 continues to read as follows:
                 Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.81, 1.96 and
                1.97.
                0
                20. Amend Sec. 173.121 by:
                0
                a. Removing the word ``or'' from the end of paragraph (a)(2)(iv);
                0
                b. Removing the period at the end of paragraph (a)(2)(v) and adding ``;
                or'' in its place; and
                0
                c. Adding paragraph (a)(2)(vi).
                 The addition reads as follows:
                Sec. 173.121 Class 3--Assignment of packing group.
                 (a) * * *
                 (2) * * *
                 (vi) Petroleum products containing known flammable gases--Standard
                Test Method for Determination of Light Hydrocarbons in Stabilized Crude
                Oils by Gas Chromatography (ASTM D7900) (IBR; see Sec. 171.7 of this
                subchapter) where the initial boiling point is the temperature at which
                0.5 weight percent is eluted when determining the boiling range
                distribution.
                * * * * *
                PART 174--CARRIAGE BY RAIL
                0
                21. The authority citation for part 174 is revised to read as follows:
                 Authority: 49 U.S.C. 5101-5128; 33 U.S.C. 1321; 49 CFR 1.81 and
                1.97.
                0
                22. Amend Sec. 174.310 by:
                0
                a. Removing the semicolon at the end of paragraph (a)(1) and adding a
                period in its place;
                0
                b. Removing the ``h'' at the end of paragraph (a)(2); and
                0
                c. Adding paragraphs (a)(6) and (7).
                 The additions read as follows:
                Sec. 174.310 Requirements for the operation of high-hazard flammable
                trains.
                 (a) * * *
                 (6) Oil spill response plans. The additional requirements for
                petroleum oil transported by rail in accordance with part 130 of of
                this chapter.
                 (7) High-hazard flammable train (HHFT) information sharing
                notification for emergency response planning. The additional
                requirements for notification in Sec. 174.312.
                * * * * *
                0
                23. Add Sec. 174.312 to read as follows:
                Sec. 174.312 HHFT information sharing notification for emergency
                response planning.
                 (a) Prior to operating high-hazard flammable trains (HHFTs) as
                defined in Sec. 171.8 of this subchapter, a railroad must provide the
                information described in paragraphs (b) and (c) to each State Emergency
                Response Commission (SERC), Tribal Emergency Response Commission
                (TERC), or other appropriate State-delegated agency in each State
                through which it operates HHFTs. The SERC, TERC, or other appropriate
                State-delegated agency shall further distribute the information to the
                appropriate local authorities at their request.
                 (b) At a minimum, the information railroads are required to provide
                to the relevant State or tribal agencies must include all of the
                following:
                 (1) A reasonable estimate of the number of HHFTs that the railroad
                expects to operate each week, through each county within the State or
                through each tribal jurisdiction;
                 (2) The routes over which the HHFTs will operate;
                 (3) A description of the hazardous materials being transported and
                all applicable emergency response information required by subparts C
                and G of part 172 of this subchapter;
                 (4) An HHFT point of contact: At least one point of contact at the
                railroad (including name or email address, title, phone number and
                address) who has knowledge of the railroad's transportation of affected
                trains and who is responsible for serving as the point of contact for
                the SERC, TERC, or other State or tribal agency responsible for
                receiving the information; and
                 (5) If a route identified in paragraph (b)(2) of this section is
                additionally subject to the comprehensive spill plan requirements in
                subpart C of part 130 of this chapter, the information must include a
                description of the response zones (including counties and states) and
                the contact information for the qualified individual and alternate, as
                specified under Sec. 130.120(c) of this chapter.
                 (c) The HHFT notification must be maintained and transmitted in
                accordance with all of the following requirements:
                 (1) Railroads must update the notifications for changes in volume
                greater than 25%.
                 (2) Notifications and updates may be transmitted electronically or
                by hard copy.
                 (3) If the disclosure includes information that a railroad believes
                is security sensitive or proprietary and exempt from public disclosure,
                the railroad should indicate that in the notification.
                 (4) Each point of contact must be clearly identified by name or
                title, and contact role (e.g., qualified individual, HHFT point of
                contact) in association with the telephone number. One point of contact
                may fulfill multiple roles.
                 (5) Copies of the railroad's notifications made under this section
                must be made available to the Department of Transportation upon
                request.
                 Issued in Washington, DC, on February 12, 2019, under authority
                delegated in 49 CFR part 1.97.
                Drue Pearce,
                Deputy Administrator, Pipeline and Hazardous Materials Safety
                Administration.
                [FR Doc. 2019-02491 Filed 2-27-19; 8:45 am]
                 BILLING CODE 4910-60-P
                

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