Monday, November 24, 2008 (Washington, DC)

PHMSA and FRA Issue Final Rules on Rail Hazmat Routing. The Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration (FRA) have issued final rules in relation to an April 2008 Interim Final Rule (IFR) requiring railroads to perform comprehensive safety and security risk analyses to determine the routes posing the least overall safety and security risks for the movement of the most toxic and dangerous hazardous materials. The IFR stipulated September 1, 2009, as the date by which a railroad must implement its route selection using a minimum of 27 risk factors and based on analysis of six-month data from July to December 2008. The PHMSA final rule retains that compliance date as an option, but also allows for railroads to implement route selection by March 31, 2010, if they provide notification that they will be using full year 2008 data. This will allow railroads to include in their risk analyses movements of certain types of hazardous materials that might more frequently occur during the January to June timeframe. In addition, the FRA final rule describes the procedures for a railroad to appeal an agency decision that its risk analysis is deficient and directing the railroad to use an alternate route while the deficiencies are corrected. The rules can be viewed at /Pages/1986.shtml. Warren Flatau (202) 493-6024

Background

The Final Rule issued in November 2008 builds upon and responds to comments received regarding an Interim Final Rule (IFR) issued in April 2008 by the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA). The IFR requires railroads to use routes with the fewest overall safety and security risks to transport security-sensitive hazardous materials

In addition, the IFR fully complied with the 9/11 Commission Act of 2007 (signed into law on August 3, 2007). Since the public comment period for the proposed rule had already closed on February 20, 2007, the ‘interim’ designation was used to provide interested persons an opportunity to comment on the rule and to provide PHMSA, working in close consultation with the Federal Railroad Administration (FRA), the opportunity to create a Final Rule based upon actions of the Department of Homeland Security (DHS) to define “security-sensitive material” and “high consequence target.”

Under the IFR, on July 1, 2008, railroads began implementing the various safety and security provisions of the rule and FRA began compliance oversight and enforcement activities.

The IFR and the Final Rule apply to rail carriers that transport security-sensitive materials, defined as:

• Bulk shipments of Poison Inhalation Hazard (PIH) materials, such as chlorine and anhydrous ammonia, which are known or presumed on the basis of tests to be toxic to humans and pose a hazard to health in the event of a release during transportation;

• More than 5,000 pounds in a single carload of Division 1.1, 1.2, or 1.3 explosive materials which pose a hazard of mass explosion, fragment projection, or a fire hazard with or without a minor blast or fragment projection hazard; and

• Certain high-level radioactive material shipments.

Key Changes in the Final Rule that Differ From the IFR

• The IFR stipulated that railroads subject to the rule must implement route selection procedures by September 1, 2009, using a minimum of 27 risk factors and based on analysis of six-month data (from July to December 2008). The Final Rule maintains that compliance date, but also permits railroads to implement route selection procedures by March 31, 2010, if they provide advance notification that they will be using full year 2008 data. This will allow railroads to include in their risk analyses seasonal variations in the movement of certain types of hazardous materials. For example, a railroad may transport a particular hazmat commodity more frequently during the January to June timeframe.

• The Final Rule requires railroads to designate a single point of contact to simplify and facilitate coordination of routing issues with State, local and tribal governments and to work through State and regional fusion centers (organized to handle security and first responder intelligence) to exchange the needed information.

• The IFR included language to the effect that all affected parties (offerors, railroads, and consignees) should agree upon measures to be implemented by the railroads to minimize the time that security sensitive shipments are stored in transit. The Final Rule removes the requirement for all affected parties to agree, so that in the event no agreement is reached, a railroad will have flexibility to store cars on its own property.

Summary of the Rail Hazmat Routing Rule
Railroads must implement initial route selection procedures by September 1, 2009 or March 31, 2010

If a railroad chooses to perform an analysis utilizing six-months of data (from July to December 2008) it must implement its initial route selection by September 1, 2009. If a railroad chooses to perform an analysis based upon 12-month data (from January to December 2008) it must provide advance notification of that decision and implement its initial route selection by March 31, 2010. Full year data analyses will enable railroads to fully take into account movements of certain types of security-sensitive materials that occur more frequently during the earlier part of the year. For example, there is higher demand for anhydrous ammonia during the spring planting season.

Also, beginning in 2010, the rail transportation route analysis, alternative route analysis, and route selection process must be completed no later than the end of the calendar year following the year to which the analyses apply.

Railroads must compile data for use in make routing decisions

On July 1, 2008, railroads began compiling data on specified shipments of security-sensitive materials and routes currently used. Railroads must use this data to analyze safety and security risks along routes where such materials are transported, assess alternative routing options, and make routing decisions based upon those assessments.

Railroads must perform a methodical safety and security risk analysis using a minimum of 27 risk factors

Each railroad’s designated point of contact must seek information from state and local officials regarding potential security risks to high-consequence locations along or in proximity to those routes. The data will be used to conduct a safety/security risk analysis of existing routes, and the potential hazards and risks affecting alternate routes.

Risk analyses must consider at minimum 27 risk factors that may affect the possibility of a catastrophic release along a specific route, including factors such as the volume of the commodity transported; the total distance traversed; track attributes; population density; the environmental characteristics of the area surrounding the route; and any prior history of incidents or risk mitigation measures for the route, among others (see below for full list).

Railroads must analyze and assess alternate routes

In addition to the routes ordinarily used for hazardous materials movements, railroads must analyze and assess the safety and security of all available practicable alternative routes over which they have authority to operate. Railroads must also consider the use of interchange agreements with other railroads when determining practicable alternative routes and the potential economic effect of using an alternative route.

Railroads must select the route with the fewest overall safety and security risks

Using the results of the route analyses and risk mitigation measures that will be implemented, a railroad must select the route posing the least overall safety and security risk.

Railroads may use a Government-funded routing model to assist with compliance

The Department of Homeland Security provided funding to the Railroad Research Foundation, a not-for-profit arm of the Association of American Railroads, to develop a routing model that railroads may use in complying with the rule. Railroads are permitted to choose other routing models for use in preparing their analyses.

FRA is given authority to require railroads to use an alternate route

FRA may require a railroad to use an alternative route to the route selected by the railroad if it is determined that the railroad’s route selection documentation and underlying analysis are deficient and fail to establish that the route chosen poses the least overall safety and security risks based on the information available. FRA is authorized to require the use of an alternate route that FRA determines poses less overall safety and security risks until such time as the identified deficiencies in the routing analysis are corrected by the railroad. FRA will consult with PHMSA, the Transportation Security Administration, and the Surface Transportation Board before ordering the use of an alternate route.

In a separate but related Final Rule (and published concurrently with the PHMSA Final Rule) the FRA has established procedures for a railroad to appeal a decision of the FRA to require the use of an alternative route.

Railroads must address en route storage and delays in transit

Railroad security plans must include: (1) a procedure for consulting with offerors and consignees to minimize the time a material is stored incidental to movement; (2) measures to limit access to the materials during temporary storage and delays in transit; (3) measures to mitigate risk to population centers during temporary storage incidental to transportation; (4) measures to be taken in the event of an escalating threat level during temporary storage incidental to transportation; and (5) a procedure for notifying the consignee in the event of transportation delays.

Railroads must enhance pre-trip inspections of rail hazmat cars

To guard against the possibility that an unauthorized individual could tamper with rail cars containing hazardous materials to precipitate an incident during transportation, such as detonation or release using an improvised explosive device (IED), railroads must include as part of their routine pre-trip inspections of placarded hazardous material rail cars an inspection for signs of tampering with the rail car, including its seals and closures, and an inspection for any item that does not belong, is suspicious, or may be an IED.

Rail Risk Analysis Factors
This sets forth the minimum criteria that must be considered by railroads when performing the safety and security risk analyses. Factors to be considered include: 1. Volume of hazardous material transported;
2. Rail traffic density;
3. Trip length for route;
4. Presence and characteristics of railroad facilities;
5. Track type, class, and maintenance schedule;
6. Track grade and curvature;
7. Presence or absence of signals and train control systems along the route (“dark” versus signaled territory);
8. Presence or absence of wayside hazard detectors;
9. Number and types of grade crossings;
10. Single versus double track territory;
11. Frequency and location of track turnouts;
12. Proximity to iconic targets;
13. Environmentally-sensitive or significant areas;
14. Population density along the route;
15. Venues along the route (stations, events, places of congregation);
16. Emergency response capability along the route;
17. Areas of high consequence along the route, including high consequence targets as defined in § 172.820(c);
18. Presence of passenger traffic along route (shared track);
19. Speed of train operations;
20. Proximity to en-route storage or repair facilities;
21. Known threats, including any non-public threat scenarios provided by the Department of Homeland Security or the Department of Transportation for carrier use in the development of the route assessment;
22. Measures in place to address apparent safety and security risks;
23. Availability of practicable alternative routes;
24. Past incidents;
25. Overall times in transit;
26. Training and skill level of crews; and
27. Impact on rail network traffic and congestion.