[Federal Register: November 26, 2008 (Volume 73, Number 229)]
[Rules and Regulations]
[Page 72194-72201]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26no08-19]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 209
[FRA-2007-28573]
RIN 2130-AB87
Railroad Safety Enforcement Procedures; Enforcement, Appeal and
Hearing Procedures for Rail Routing Decisions
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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Summary: In this final rule, FRA is establishing procedures to
enable railroad carriers to challenge rail routing decisions made by
FRA's Associate Administrator for Safety (Associate Administrator) that
carry out the requirements adopted in a separate rulemaking of the
Pipeline and Hazardous Materials Safety Administration (PHMSA). In
PHMSA's final rule published today, railroad carriers are required to
take the following actions to enhance the safety and security of
certain shipments of explosive, toxic by inhalation (TIH), and
radioactive materials: Compile annual data on shipments of these
materials; use the data to analyze safety and security risks along rail
routes where those materials are transported; assess alternative
routing options, including interchanging the traffic with other
railroad carriers; seek information from State, local and tribal
officials regarding security risks to high-consequence targets along or
in proximity to the routes; consider mitigation measures to reduce
safety and security risks, and select the practicable routes that pose
the least overall safety and security risk. Under PHMSA's final rule,
FRA's Associate Administrator may require a railroad carrier to use an
alternative route to the route selected by the railroad carrier if the
Associate Administrator determines that the carrier's route selection
documentation and underlying analysis are deficient and fail to
establish that the route chosen by the carrier poses the least overall
safety and security risk based on the information available.
DATES: This final rule is effective November 26, 2008.
FOR FURTHER INFORMATION CONTACT: Roberta Stewart, Office of Chief
Counsel, Federal Railroad Administration, 202-493-6027.
SUPPLEMENTARY INFORMATION:
I. Background
In coordination with FRA and the Transportation Security
Administration (TSA), PHMSA has amended the Hazardous Materials
Regulations (HMR; 49 CFR parts 171-180) to adopt requirements to
enhance the safe and secure transportation of hazardous materials by
rail. See PHMSA's interim final rule (73 FR 20751 [Apr. 16, 2008]) and
final rule. Railroad carriers are required to: Compile annual data on
certain shipments of explosive, toxic by inhalation, and radioactive
materials; use the data to analyze safety and security risks along rail
routes where those materials are transported; assess alternative
routing options; seek information from State, local and tribal
officials regarding security risks to high-consequence targets along or
in proximity to the routes; consider mitigation measures to reduce
safety and security risks, and select the practicable routes that pose
the least overall safety and security risk. In addition, each railroad
carrier must address issues related to en route storage and delays in
transit in its security plan and railroad inspect placarded hazardous
materials rail cars for signs of tampering or suspicious items,
including improvised explosive devices.
PHMSA initially adopted these requirements in its April 16, 2008
IFR to carry out the mandate in Section 1551 of the Implementing
Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act
or Act) (Pub. L. 110-53; 121 Stat. 469). The 9/11 Commission Act
required publication of a final rule by May 3, 2008, based on PHMSA's
December 21, 2006 notice of proposed rulemaking (NPRM) and the
requirements of the Act. The Act provides in Sec. 1551(e) that DOT
shall ``ensure that the final rule requires each railroad carrier
transporting security-sensitive materials in commerce to * * * select
the safest and most secure route to be used in transporting'' those
materials, based on the railroad carrier's analysis of the safety and
security risks on primary and alternate transportation routes over
which the carrier has authority to operate. Specifically, the Act
requires that railroad carriers perform the following tasks each
calendar year:
(1) Collect and compile security-sensitive commodity data, by
route, line segment, or series of line segments, as aggregated by the
railroad carrier and identify the geographic location of the route and
the total number of shipments by UN identification number;
(2) Identify practicable alternative routes over which the carrier
has authority to operate as compared to the current route for such
shipments;
(3) Consider the use of interchange agreements with other railroad
carriers when determining practicable alternative routes and the
potential economic effects of using an alternative route;
(4) Seek relevant information from State, local, and tribal
officials, as appropriate, regarding security risks to high-consequence
targets along or in proximity to a route used by a railroad carrier to
transport security-sensitive materials;
(5) Analyze for both the primary route and each practicable
alternative route the safety and security risks for the route, railroad
facilities, railroad storage facilities, and high-consequence targets
along or in proximity to the route; these analyses must be in writing
and performed for each calendar year;
(6) Compare the safety and security risks on the primary and
alternative routes, including the risk of a catastrophic release from a
shipment traveling along these routes, and identify any remediation or
mitigation measures implemented on the primary and alternative
transportation routes; and
(7) Use the analysis described above to select the practicable
route posing the least overall safety and security risk.
In its December 21, 2006 NPRM, April 16, 2008 IFR, and the final
rule published today, PHMSA has indicated that FRA would provide a
procedure for administrative due process so that a railroad carrier may
seek redress of a decision by the Associate Administrator that the
carrier's routing analysis is deficient and directing a carrier to use
an alternate route while the deficiencies are corrected. Accordingly,
FRA published an NPRM on April 16, 2008 (73 FR 20774), proposing to
adopt procedures governing the review of rail routing decisions,
including appeal of the Associate Administrator's decisions and
solicited public comments on these procedures. This final rule
completes FRA's adoption of those procedural provisions.
[[Page 72195]]
II. Summary of the FRA NPRM
The procedures proposed by FRA in the NPRM are summarized below.
Proposed Section 209.501 provided that if the Associate
Administrator determines that a railroad carrier's route selection
documentation and underlying analysis are deficient and fail to
establish that the route chosen by the carrier is the route with the
least overall safety and security risk, the Associate Administrator
would issue a written notice of review (``Notice'') to the railroad
carrier. The Notice will specifically address each deficiency found in
the railroad carrier's route analysis, and may also include suggested
mitigation measures that may be taken to remedy the deficiencies,
including selection and use of an alternative commercially practicable
route. After issuing the Notice, the Associate Administrator will
conference with the railroad carrier for a 30-day period (or longer, if
necessary, as determined by the Associate Administrator) to resolve the
deficiencies. The Associate Administrator will keep a record of all
written correspondence with the railroad carrier, as well as written
summaries of each meeting and telephone conversation with the carrier
pertaining to the Notice.
If, after the close of the 30-day period, the Associate
Administrator concludes that the identified deficiencies have not been
satisfactorily resolved, the Associate Administrator will:
(1) Consult with TSA and PHMSA regarding the safety and security of
the route proposed by the railroad carrier and any alternative route(s)
over which the carrier is authorized to operate that are being
considered by the Associate Administrator. A written summary of the
recommendations from TSA and PHMSA will be prepared;
(2) Obtain the comments of the STB regarding whether the
alternative rail route(s) under consideration by the Associate
Administrator would be commercially practicable; and
(3) After fully considering the input of TSA, PHMSA and STB, render
a decision.
In proposed section 209.501(d), there were two possible outcomes of
a decision by the Associate Administrator. First, the Associate
Administrator may find that the route analysis and documentation
provided by the railroad carrier are sufficient to support the route
selected by the carrier or that commercial practicability issues
preclude the use of an alternative route. In either of those
circumstances, the Associate Administrator would conclude the route
review without further action, and notify the railroad carrier of the
decision in writing.
Alternately, the Associate Administrator may conclude that the
railroad carrier's route analysis does not support the railroad
carrier's original selected route, that safety and security
considerations establish a significant preference for an alternative
route, and that the alternative route is commercially practicable. The
Associate Administrator would then issue a second written notice (2nd
Notice) to the railroad carrier that specifically identifies
deficiencies in the route analysis, including a clear description of
the risks that have not been satisfactorily mitigated; explains why the
available data and reasonable inferences support an alternative route;
and directs the railroad carrier to temporarily use the alternative
route determined by the Associate Administrator to be the route with
the overall least safety and security risk. The railroad carrier would
be required to start using the alternative route selected by the
Associate Administrator within 20 days after the issuance date of the
2nd Notice. The railroad carrier would be required to use the
alternative route until such time as the carrier has adequately
mitigated the risks identified by the Associate Administrator on the
original route selected by the carrier, the decision is stayed by the
Associate Administrator pending the outcome of a court challenge to the
decision, or the decision is overturned by a United States court of
appeals.
When the Associate Administrator issues a 2nd Notice directing the
use of an alternative route pursuant to section 209.501(d)(2), the
Associate Administrator shall make available to the railroad carrier
the administrative record relied upon in issuing the 2nd Notice,
including the recommendations of TSA, PHMSA and the STB to FRA.
Within 20 days after the issuance date of the 2nd Notice, the
railroad carrier may: (1) Comply with the Associate Administrator's
directive to use an alternative route while addressing deficiencies in
its route analysis identified by the Associate Administrator; or (2)
file a petition for judicial review of the Associate Administrator's
2nd Notice. Judicial review would be available in an appropriate United
States court of appeals as provided in 49 U.S.C. 5127. The filing of a
petition for judicial review will not stay or modify the force and
effect of final agency action unless otherwise ordered by the Associate
Administrator or the court of appeals.
III. Discussion of Comments Received; Section-by-Section Analysis
Only three comments were submitted in response to its NPRM. These
came from the Association of American Railroads (AAR), a trade
association representing Class I railroads; Dow Chemical Company (Dow),
a private company; and the Mayo Clinic (Mayo Clinic). Commenters were
generally supportive of having procedures to appeal routing decisions
made by railroads. Concern was voiced by all commenters regarding the
standard that the routing decisions would be held to. Commenters also
expressed interest in having parties other than the affected railroad
carriers be able to provide input to and challenge routing decisions
made by railroads or FRA. In the following paragraphs, we discuss the
comments as they relate to each section of the regulatory text in this
final rule.
A. Review of Route Analysis (Sec. 209.501(a))
In the NPRM, we proposed that the Associate Administrator shall
issue a written notice of review ( ``Notice'') to the railroad carrier
where it is determined that the railroad carrier's route selection,
analysis and documentation are deficient and fail to establish that the
route chosen by the carrier is the safest and most secure route. The
Notice shall specifically address each deficiency that the Associate
Administrator found in the railroad carrier's route analysis. The
Associate Administrator may also include in the Notice suggested
mitigation measures that the railroad carrier may take to remedy the
deficiencies found, such as the selection of an alternative
commercially feasible route.
The AAR commented that FRA's proposed requirement in Sec.
209.501(a) that railroads select the ``safest and most secure route''
imposes a new substantive obligation on railroads that contradicts the
PHMSA IFR. The PHMSA IFR requires railroads to ``select the practicable
route posing the least overall safety and security risk.'' 73 FR 20772
(April 16, 2008). AAR suggests amending proposed 49 CFR 209.501(a) by
inserting ``poses the least overall safety and security risk'' in the
place of ``is the safest most secure route.''
We agree that the language in this final rule should be consistent
with the PHMSA IFR and final rule, and we have changed the phrasing
throughout the regulatory text accordingly.
In its comments, Dow suggests revision of proposed Sec. 209.501(a)
to require that the railroad carrier identify
[[Page 72196]]
affected shippers of covered materials for the purposes of Sec.
209.501(b) and (c). Dow states that that this change is necessary
because shippers of covered hazardous materials will be significantly
affected by an FRA determination that a railroad's route selection is
deficient; therefore, shippers of covered hazardous materials should be
involved in the FRA's process for determining the acceptability of a
railroad's routing decision.
FRA is not adopting Dow's proposed revision because we do not
believe a separate requirement for shipper information is necessary in
this subsection. The railroad carriers' route analyses conducted under
the requirements of the PHMSA Final Rule will include detailed
information regarding the origins, destinations, number of shipments,
and routes of the specific security sensitive materials. FRA will
already have access to and be able to evaluate this detailed data and
take it into account regarding any findings or decisions on a
railroad's route. In addition, FRA will consult with the STB before any
routing change is mandated, which is an additional protection to ensure
that interstate commerce and the timely movement of goods is not unduly
impacted.
The Mayo Clinic suggested amending proposed Sec. 209.501(a) to
require that FRA provide notice in writing to affected jurisdictions
whenever a written notice of review is issued to a railroad carrier. It
stated that jurisdictions that would be potentially harmed in the event
of a catastrophic release or explosion of hazardous materials should
have an opportunity to challenge a railroad carrier's routing decision.
Congress did not afford jurisdictions traversed by a railroad with
an opportunity to challenge a railroad carrier's routing decision, and
FRA does not think it wise to do so in this final rule. Local
jurisdictions had no ability prior to the Act to challenge railroad
routing decisions and the Act did not create such an ability. The Act
provides for routing decisions to be made on the basis of safety and
security by those with expertise to do so and the national perspective
needed to ensure that the general railroad system of transportation
works well and performs its essential role in the Nation's economy.
Experience teaches that local communities are often eager to divert
trains carrying hazardous materials away from themselves. A cacophony
of ``not-in-my-backyard'' challenges from the hundreds of local
communities along a typical railroad route would impair the ability of
the FRA or any other body to make timely, annual routing decisions as
required by the Act. Moreover, FRA believes that the specific
requirements and factors that must be included in a railroad carrier's
route analysis, as well as the requirement for input from State, local
and tribal officials imposed by PHMSA Final Rule are adequate to
protect the interests of jurisdictions along each rail route. A
railroad carrier also faces extremely high liability and remediation
costs if a hazardous materials accident or incident occurs on one of
its routes, which acts as a powerful incentive for the railroad to
indeed conduct its operations in the manner posing the least overall
safety and security risk. For example, the January 2005 Graniteville,
South Carolina, rail accident killed nine people and injured 554 more.
In addition, the accident necessitated the evacuation of more than
5,400 people. Total costs associated with the Graniteville accident are
currently almost $126 million. Should a rail accident involving the
release of TIH materials result in tort judgments that exceed a
railroad's insurance coverage, payment of the judgments could
jeopardize the ability of the railroad to continue operations.
Each rail route may be hundreds of miles long and could pass dozens
of jurisdictions, making it potentially burdensome and time-consuming
for FRA to provide notice in writing to each individual affected
jurisdiction. One of the purposes of this rulemaking was to design an
appeal process that would not unduly hinder rail traffic and interstate
commerce, thereby ensuring that rail traffic is not congested or
delayed by a pending FRA decision, and ensuring that critical
commodities continue to reach the communities that need them in a
timely, safe, and secure manner. That purpose would be thwarted by
soliciting the views of each jurisdiction along a route, waiting for
those views to be delivered, and then taking the time needed to
consider and respond to all of those views.
B. Conference to Resolve Deficiencies (Sec. 209.501(b))
The NPRM proposed that the Associate Administrator conference with
the railroad carrier for a thirty (30)-day period after issuing the
Notice to resolve the deficiencies identified in the Notice. The
Associate Administrator would be required to keep a record of all
written correspondence with the railroad carrier and a summary of each
meeting and telephone conversation as it pertains to the Notice.
Additionally, the Associate Administrator may extend the 30-day
conference period.
Dow requests that proposed Sec. 209.501(b) be revised to allow
shippers of covered hazardous materials to participate in the
conference between the railroad carrier and the Associate
Administrator. It states that shippers of covered hazardous materials
will be significantly affected by an FRA determination that a
railroad's route selection is deficient.
Again, FRA believes that the detailed commodity information
required to be included in a railroad carrier's route analysis and
supporting data will sufficiently protect shippers' interests. As
stated above, this appeals process is not intended to hinder rail
transportation, or to delay the timely, safe, and secure delivery of
the covered commodities to their final destinations.
In the normal course of business, shippers may express some
preference for the specific routing of their shipments, but the routing
decisions are usually left to the full discretion of the railroad
carriers, who are in a better position to analyze the efficiencies of
their systems, and to select route posing the least safety and security
risks. We note that the PHMSA Final Rule does not include an
opportunity for shippers to provide input into the data gathering,
route analysis and route choice performed by the railroad carriers. In
comments submitted to the PHMSA NPRM docket, Dow and the Institute of
Makers of Explosives suggested that consistent with fundamental
concepts of due process, PHMSA should provide an immediate procedure to
appeal an FRA determination to require the use of an alternative route.
To address that concern, FRA issued its NPRM proposing these appeal
procedures concurrently with the PHMSA IFR on April 16, 2008.
The 9/11 Commission Act does not require PHMSA to provide for
hazardous materials shippers to participate in the route analysis
process, and PHMSA's IFR and final rule do not include any requirement
for railroad carriers to consult with shippers or for shippers to
submit any input or data to railroad carriers for their route analyses.
In Sec. 1551(h) of the Act, in contrast, Congress did require that
railroad carriers must ``seek relevant information from State, local,
and tribal officials, as appropriate, regarding security risks to high-
consequence targets along or in proximity to a route.'' Thus, Congress
was quite specific in the Act about what information railroad carriers
should consider when gathering data and analyzing rail routes, and
explicitly included this consultation requirement with State, local and
tribal officials.
[[Page 72197]]
As discussed below, the Associate Administrator will consult with
the STB concerning the commercial practicability of alternative routes
before reaching any final routing decision. FRA believes that this
regulatory provision--together with the detailed data and analysis by
the railroad carriers, and the carriers' own economic interests in
ensuring the efficient, safe and secure transportation of all freight,
including hazardous materials--will adequately safeguard the interests
of hazardous materials shippers.
There are additional problems with including other parties, such as
shippers, in the conference between the Associate Administrator and a
railroad. The railroads' commodity data and route analyses will contain
information that qualifies as Sensitive Security Information (SSI)
under 49 CFR parts 15 and 1520; much of that information is also likely
to be commercially sensitive or confidential. Sharing or release of
such information by the Federal government is necessarily limited by a
number of regulations and statutes in order to protect national
security interests and prevent financial harm to private companies.
Because the railroad carriers' commodity data, route analyses, and the
conference record will contain sensitive information with a
distribution limited by statute and regulation, it cannot be made
available for review or comment to outside parties. To allow the
detailed railroad routing information to be released to parties beyond
authorized government officials and the railroad itself would defeat
the purpose of the 9/11 Commission Act and the PHMSA Final Rule: To
make railroad transportation of security sensitive hazardous materials
safer and more secure.
In its comments to the PHMSA IFR Dow also suggested the use of
conferences under 49 U.S.C. 333 (Section 333 conference) to bring
together the government, shippers, and carriers. In 2005, FRA convened
a Section 333 conference to discuss ways to minimize security and
safety risks associated with the transportation of TIH materials. The
conference has permitted railroads to share information on how TIH
traffic is routed, and the reason for that routing. As indicated in the
PHMSA Final Rule, FRA will continue to make the conference available to
the railroads to jointly evaluate the safety and security risks
associated with rail movements of high-risk hazardous materials across
the entire rail system, and to evaluate risk-reducing arrangements on a
national scale, including rerouting of these materials. FRA will also
consider further hazardous material shipper participation in future
Section 333 conferences.
C. Consultation With and Comment From Other Agencies (Sec. 209.501(c))
The NPRM proposed that, when issues identified in the Notice and
conference period are not adequately resolved, the Associate
Administrator is to: (1) Consult with the Transportation Security
Administration (TSA) and PHMSA concerning the safety and security of
the railroad carrier's proposed route and any alternative routes over
which the railroad carrier is authorized to operate; (2) obtain
comments from the Surface Transportation Board (STB) regarding whether
the alternative routes being considered would be commercially
practicable; and (3) fully consider the input of TSA, PHMSA, and STB in
rendering a decision pursuant to proposed Sec. 209.501(d), which shall
be administratively final.
Dow suggested a revision of proposed Sec. 209.501(c) to require
that FRA take into consideration the input of shippers of covered
hazardous materials prior to making its decision under proposed Sec.
209.501(d). As stated above, FRA believes the detailed information that
will be in the railroad carriers' analyses and input from the STB will
be sufficient to protect shippers' interests, and that no separate
provision for securing shippers' input is necessary.
D. Decision (Sec. 209.501(d)(1))
In the NPRM, we proposed that the Associate Administrator conclude
the review and notify the railroad carrier in writing where it is found
that the route analysis and documentation provided by the railroad
carrier are sufficient to support the route that the carrier has
selected or that valid issues of commercial practicability preclude the
use of alternative routes.
The Mayo Clinic suggests two amendments to this subsection: (1)
Allow affected jurisdictions, particularly those where high-consequence
targets are located, to petition the FRA to review its decision to
allow a railroad carrier to use a route based on the railroad's
determination that it has chosen the safest and most secure route or
that no commercially practicable alternative exists, and (2) make clear
that the Associate Administrator's written decision is a final agency
action and that a denial of a petition by an affected jurisdiction also
would be treated as a final agency action for the purposes of judicial
review.
For the reasons stated above regarding the Mayo Clinic's comments
on section 209.501(a), FRA declines to adopt these suggested changes.
The Associate Administrator's written decision is not intended to be
the exhaustion of FRA's administrative process, and is not final agency
action. As discussed in the NPRM, final agency action will occur only
when the FRA Associate Administrator issues a 2nd Notice, per
subsections 209.501(e) and (g).
E. Actions Following 2nd Notice and Re-Routing Directive (Sec.
209.501(e))
The NPRM proposed that a railroad carrier may file a petition for
judicial review pursuant to paragraph (f) of this section where the
Associate Administrator issues a 2nd Notice directing the use of an
alternate route.
Dow points out that there appears to be a typographical error in
proposed Sec. 209.501(e)(2). FRA agrees that ``paragraph (g)'' should
be inserted to replace the reference to ``paragraph (f)'' and has made
the change to the regulatory text.
F. Review and Decision by Associate Administrator on Revised Route
Analysis Submitted in Response to 2nd Notice (Sec. 209.501(f))
In the NPRM, FRA proposed that upon submission of a revised route
analysis containing an adequate showing by the railroad carrier that
its original selected route poses the least overall safety and security
risk, the Associate Administrator will notify the carrier in writing
that the original selected route may be used. No comments were received
in response to this paragraph; therefore, we are adopting it as
proposed in the NPRM.
G. Appellate Review (Sec. 209.501(g))
The NPRM proposed that a railroad carrier that is aggrieved by
final agency action may petition the appropriate United States court of
appeals as provided by 49 U.S.C. 5127. Under the proposed rule, the
filing of a petition for review would not stay or modify the force and
effect of the final agency action unless the Associate Administrator or
the Court orders otherwise.
Dow comments that the proposed rule improperly restricts the rights
of shippers to judicial review, as provided in 49 U.S.C. 5127, by
failing to extend the right of appellate review to a shipper adversely
affected or aggrieved by an FRA decision on route selection. Dow seeks
an amendment to proposed Sec. 209.501(g) to extend appellate review
rights to shippers adversely affected or
[[Page 72198]]
aggrieved by an FRA decision on route selection.
FRA is declining to adopt Dow's suggested change in the final rule.
We and PHMSA have reviewed the statute and it is our position that
section 49 U.S.C. 5127 does not afford a party not directly regulated
by this final rule with a private right of action in an appellate court
to challenge a decision by FRA requiring rerouting.
Like substantive federal law itself, private rights of action to
enforce federal law must be created by Congress. The statutory intent
is determinative in deciding whether a statute creates not just a
private right but also a private remedy, and a statute does not give
rise to a civil cause of action unless the language of the statute is
explicit or it can be determined by clear implication. See Alexander v.
Sandoval, 532 U.S. 275 (2001); Virginia Bankshares, Inc. v. Sandberg,
501 U.S. 1083 (1991); Merrel Dow Pharmaceuticals Inc. v. Thompson, 478
U.S. 804 (1986); Touche Ross & Co. v. Redington, 442 U.S. 560, 578
(1979); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11
(1979). In determining whether a private right of action exists under a
federal statute, the central inquiry is whether Congress intended to
create, either expressly or by implication, a private cause of action.
Cort v. Ash, 422 U.S. 66 (1975). Where the text and structure of a
statute provide no indication that Congress intends to create new
individual rights, there is no basis for a private suit, whether under
a particular statute or under an implied right of action. Gonzaga
University v. Doe, 536 U.S. 273 (2002) (referring to 42 U.S.C. 1983).
Such a private right of action is not afforded by 49 U.S.C. 5127 to
entities not part of the underlying regulatory scheme and enforcement
action.
The text of section 5127(a) states: ``Filing and venue. Except as
provided in section 20114(c), a person adversely affected or aggrieved
by a final action of the Secretary under this chapter may petition for
review of the final action in the United States court of appeals for
the District of Columbia or in the court of appeals for the United
States for the circuit in which the person resides or has its principal
place of business. The petition must be filed not more than 60 days
after the Secretary's action becomes final.''
The legislative history for section 5127 indicates that it was
intended only to provide an appropriate and consistent judicial forum
for the appeal of final actions taken by the Secretary of
Transportation under Chapter 51. Prior to the passage of section 5127
in the Safe, Efficient, Flexible, Efficient Transportation Equity Act:
A Legacy for Users (SAFETEA-LU), Public Law 109-59, 119 Stat. 1907
(Aug. 10, 2005), several different statutes designated the proper court
for judicial review of final agency actions under Chapter 51, depending
on the mode of transportation to which the final agency action applied.
In some cases, a petition for judicial review was required to be filed
in a Federal district court, and in other cases, only a U.S. court of
appeals had jurisdiction. To provide a consistent procedure and
eliminate confusion, section 5127 specifically established the
appropriate judicial forum for review of final agency actions in the
areas of compliance, enforcement, civil penalties, rulemaking, and
preemption.\1\ Therefore, it appears that Congress only intended 49
U.S.C. 5127 to confer exclusive jurisdiction of final agency actions
under the authority of Chapter 51 to the U.S. courts of appeals.
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\1\ See, e.g., H.R. Rep. 109-12 Sec. 7024 (Mar. 7, 2005).
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There is no other provision suggesting that Congress intended to
provide a right of action to third parties not involved in an
enforcement proceeding under Chapter 51. On the contrary, in the
context of the entire statute and the congressionally developed
enforcement scheme, those aggrieved, and provided an opportunity to
judicial review, are limited to those who participated in the
underlying enforcement proceeding. The requirements of the PHMSA Final
Rule only apply to railroad carriers of certain hazardous materials,
not shippers and not communities traversed by the railroads.
Accordingly, this final rule, which establishes appeal procedures for
the PHMSA Final Rule also only applies to railroad carriers as the
regulated entities. Entities not covered by the PHMSA Final Rule and
not included in the administrative proceeding, including a railroad
carrier's customers (e.g., shippers) and communities traversed by the
railroad, would therefore not be entitled to judicial review under
Sec. 5127.
Additionally, Dow's comments suggest amending proposed Sec.
209.501(g) to stay any FRA-required route alteration during the
pendency of an appeal in order to minimize operational and economic
disruptions until the appellate process is complete. With respect to
this second suggested amendment to section 209.501(g), FRA will decline
to make that change. We reiterate that we have designed these
procedures specifically to avoid undue disruption and delay to rail
transportation. But in the case of a serious or immediate security
threat to rail transportation or a commodity in transportation, FRA and
other Federal agencies must retain the ability to reroute or stop rail
transportation to mitigate any accident, incident, release or terrorist
act that would cause harm to the public and the transportation system.
H. Time (Sec. 209.501(h))
This section proposed a method for computing time for all deadlines
and time periods in the proposed rule. No comments were received on
this section, and it will be adopted as proposed in the NPRM.
I. Penalties (Appendix B to Part 209)
In the NPRM, FRA proposed civil penalty assessments and guidelines
for violations of PHMSA's rail security and routing regulations. These
penalty guidelines would be added to FRA's existing penalty guidelines
for hazardous materials violations. No comments were received on the
proposed penalty guidelines, and they will be adopted as proposed in
the NPRM.
J. Miscellaneous Comments
AAR comments that FRA's proposed rule does not address the
protection of security-sensitive information, particularly route
analysis information. AAR requests that FRA restrict access to route
analysis information to those FRA employees who need the information
for enforcement purposes, and that FRA designate those employees who
need access to rail routing information for enforcement purposes to
facilitate the transmission of said information.
The AAR submitted substantially the same comment in response to the
PHMSA IFR, and we will respond to it in the same way here. FRA will
continue to coordinate closely with the railroads in its inspection and
enforcement activities regarding security plans. To date, FRA is not
aware of issues surrounding access to or inspection of railroad
security plans. FRA's enforcement role is to review the railroads'
analyses, not to perform them. FRA and its employees will comply with
the existing SSI regulations with regard to the handling of the route
analyses and the underlying commodity data. Only FRA employees who are
``covered persons'' with a ``need-to-know'' under the SSI regulations
at 49 CFR parts 15 and 1520 will be accessing the routing analyses and
data.
The Mayo Clinic comments on FRA's statement in the Background
Information section of the NPRM, which provides that the FRA expects to
mandate temporary changes to routes only in the most exigent
circumstances.
[[Page 72199]]
It contends that there is no basis in the Implementing Recommendations
of the 9/11 Commission Act to substitute the exigent circumstances
standard for the ``safest and most secure'' and ``least overall safety
and security risks'' statutory standards.
FRA's response is that this was simply an explanatory statement in
the preamble which does not propose to substitute a standard or
regulation for any standards established by the 9/11 Commission Act or
the regulatory text in the PHMSA Final Rule or this final rule. As
previously noted, railroads have every incentive to choose routes
posing the least overall safety and security risks for moving security-
sensitive materials and FRA anticipates that it will rarely have to
overturn a railroad carrier's routing decision.
IV. Rulemaking Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This NPRM is published under authority of the Federal hazmat law
(49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazardous
materials law authorizes the Secretary to prescribe regulations for the
safe transportation, including security, of hazardous materials in
intrastate, interstate, and foreign commerce. The HMR are issued by
PHMSA. 49 CFR 1.53(b). FRA inspects railroads and rail shippers for
compliance with the hazardous materials transportation law and
regulations. 49 CFR 1.49(s).
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. This final rule is not
significant under the Regulatory Policies and Procedures of DOT (44 FR
11034). The economic impact of this final rule is minimal to the extent
that preparation of a regulatory evaluation is not warranted.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
final rule would not have any direct effect on the States or their
political subdivisions; it would not impose any compliance costs; and
it would not affect the relationships between the national government
and the States or their political subdivisions, or the distribution of
power and responsibilities among the various levels of government.
D. Regulatory Flexibility Act and Executive Order 13272
FRA certifies that this final rule will not have a significant
economic impact on a substantial number of small entities. This final
rule would apply to carriers of hazardous materials by rail. Some of
these entities are classified as small entities; however, there is no
economic impact on any person that complies with Federal hazardous
materials law and the regulations and orders issued under that law.
E. Paperwork Reduction Act
There are no new information requirements in this final rule.
F. Unfunded Mandates Reform Act of 1995
This final rule does not impose unfunded mandates under the
Unfunded Mandates Act of 1995. It does not result in annual costs of
$141,100,000 or more, in the aggregate, to any of the following: State,
local, or Indian tribal governments, or the private sector, and is the
least burdensome alternative to achieve the objective of the rule.
G. Environmental Assessment
There are no significant environmental impacts associated with this
final rule.
H. Energy Impact
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
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking, 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.
FRA has evaluated this final rule in accordance with Executive Order
13211, and determined that this final rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this regulatory action is
not a ``significant energy action'' within the meaning of Executive
Order 13211.
I. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
spring and fall of each year. The RIN contained in the heading of this
document can be used to cross-reference this action with the Unified
Agenda.
List of Subjects in 49 CFR Part 209
Administrative practice and procedure, Hazardous materials
transportation, Penalties, Railroad safety, Railroad safety enforcement
procedures, Reporting and recordkeeping requirements.
0
Therefore, in consideration of the foregoing, chapter II, subtitle B of
title 49 of the Code of Federal Regulations is amended as follows:
PART 209--[AMENDED]
0
1. The authority citation for part 209 continues to read as follows:
Authority: 49 U.S.C. 5123, 5124, 20103, 20107, 20111, 20112,
20114; 28 U.S.C. 2461, note; and 49 CFR 1.49.
0
2. Amend Sec. 209.3 by adding the following new definitions:
Sec. 209.3 Definitions.
* * * * *
Associate Administrator means the Associate Administrator for
Safety, Federal Railroad Administration, or that person's delegate as
designated in writing.
* * * * *
Railroad carrier means a person providing railroad transportation.
* * * * *
0
3. Add new Subpart F, consisting of Sec. 209.501, to read as follows:
Subpart F--Enforcement, Appeal and Hearing Procedures for Rail
Routing Decisions Pursuant to 49 CFR Sec. 172.820
Sec. 209.501 Review of rail transportation safety and security route
analysis.
(a) Review of route analysis. If the Associate Administrator for
Safety determines that a railroad carrier's route selection, analysis
and documentation pursuant to Sec. 172.820 of chapter I of this title
is deficient and fails to establish that the route chosen by the
carrier poses the least overall safety and security risk, the Associate
Administrator shall issue a written notice of review (``Notice'') to
the
[[Page 72200]]
railroad carrier. The Notice shall specifically address each deficiency
found in the railroad carrier's route analysis. The Notice may also
include suggested mitigation measures that the railroad carrier may
take to remedy the deficiencies found, including selection of an
alternative commercially feasible routing.
(b) Conference to resolve deficiencies. After issuing the Notice,
the Associate Administrator conferences with the railroad carrier for a
thirty (30)-day period, or such longer period as provided by the
Associate Administrator, to resolve the deficiencies identified in the
Notice. The Associate Administrator keeps a record of all written
correspondence with the railroad carrier and a summary of each meeting
and telephone conversation with the railroad carrier that pertains to
the Notice.
(c) Consultation with and comment from other agencies. If, after
the close of the conference period, the Associate Administrator
concludes that the issues identified have not been satisfactorily
resolved, the Associate Administrator:
(1) Consults with the Transportation Security Administration
(``TSA'') and the Pipeline and Hazardous Materials Safety
Administration (PHMSA) regarding the safety and security of the route
proposed by the railroad carrier and any alternative route(s) over
which the carrier is authorized to operate that are being considered by
the Associate Administrator and prepares a written summary of the
recommendations from TSA and PHMSA;
(2) Obtains the comments of the Surface Transportation Board
(``STB'') regarding whether the alternative route(s) being considered
by the Associate Administrator would be commercially practicable; and
(3) Fully considers the input of TSA, PHMSA and the STB and renders
a decision pursuant to paragraph (d) of this section which shall be
administratively final.
(d) Decision. (1) If the Associate Administrator finds that the
route analysis and documentation provided by the railroad carrier are
sufficient to support the route selected by the carrier or that valid
issues of commercial practicability preclude an alternative route, the
Associate Administrator concludes the review without further action and
so notifies the railroad carrier in writing.
(2) If the Associate Administrator concludes that the railroad
carrier's route analysis does not support the railroad carrier's
original selected route, that safety and security considerations
establish a significant preference for an alternative route, and that
the alternative route is commercially practicable, the Associate
Administrator issues a second written notice (2nd Notice) to the
railroad carrier that:
(i) Specifically identifies deficiencies found in the railroad
carrier's route analysis, including a clear description of the risks on
the selected route that have not been satisfactorily mitigated;
(ii) Explains why the available data and reasonable inferences
indicate that a commercially practicable alternative route poses fewer
overall safety and security risks than the route selected by the
railroad carrier; and
(iii) Directs the railroad carrier, beginning within twenty (20)
days of the issuance date of the 2nd Notice on the railroad carrier, to
temporarily use the alternative route that the Associate Administrator
determines poses the least overall safety and security risk until such
time as the railroad carrier has adequately mitigated the risks
identified by the Associate Administrator on the original route
selected by the carrier.
(e) Actions following 2nd Notice and re-routing directive. When
issuing a 2nd Notice that directs the use of an alternative route, the
Associate Administrator shall make available to the railroad carrier
the administrative record relied upon by the Associate Administrator in
issuing the 2nd Notice, including the recommendations of TSA, PHMSA and
STB to FRA made pursuant to paragraphs (c)(1) and (2) of this section.
Within twenty (20) days of the issuance date of the Associate
Administrator's 2nd Notice, the railroad carrier may:
(1) Comply with the Associate Administrator's directive to use an
alternative route while the carrier works to address the deficiencies
in its route analysis identified by the Associate Administrator; or
(2) File a petition for judicial review of the Associate
Administrator's 2nd Notice, pursuant to paragraph (g) of this section.
(f) Review and decision by Associate Administrator on revised route
analysis submitted in response to 2nd Notice. Upon submission of a
revised route analysis containing an adequate showing by the railroad
carrier that its original selected route poses the least overall safety
and security risk, the Associate Administrator notifies the carrier in
writing that the carrier may use its original selected route.
(g) Appellate review. If a railroad carrier is aggrieved by final
agency action, it may petition for review of the final decision in the
appropriate United States court of appeals as provided in 49 U.S.C.
5127. The filing of the petition for review does not stay or modify the
force and effect of the final agency action unless the Associate
Administrator or the Court orders otherwise.
(h) Time. In computing any period of time prescribed by this part,
the day of any act, event, or default from which the designated period
of time begins to run shall not be included. The last day of the period
so computed shall be included, unless it is a Saturday, Sunday, or
Federal holiday, in which event the period runs until the end of the
next day which is not one of the aforementioned days.
0
4. In appendix B to part 209, amend the civil penalty guideline table
by adding the following entries:
Appendix B to Part 209--Federal Railroad Administration Guidelines for
Initial Hazardous Materials Assessments
* * * * *
[[Page 72201]]
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49 CFR section Description Guideline amount
----------------------------------------------------------------------------------------------------------------
* * * * * * *
PART 172--SHIPPING PAPERS
----------------------------------------------------------------------------------------------------------------
* * * * * * *
172.820(a)-(e)......................... General failure to perform safety and security 5,000 to 10,000
route analysis.
Factors to consider are the size of the railroad
carrier, and the quantities of hazmat transported.
172.820(a)-(e)......................... Partial failure to complete route analysis; failure 5,000
to complete a component of the route analysis.
--Compilation of security-sensitive commodity
data.
--Identification of practicable alternative
routes.
--Consultation with State, local, and tribal
officials, as appropriate regarding security
risks to high-consequence targets along or in
proximity to a route used by the carrier to
transport security-sensitive materials.
--Safety and security route analysis of route
used.
--Safety and security alternative route analysis
172.820(f)............................. Failure to complete route analyses within the 2,000
prescribed time frame.
172.820(g)............................. Failure to include one of the following components 2,000
in safety and security plan.
--Procedure for consultation with offerors and
consignees to minimize storage of security-
sensitive materials incidental to movement.
--Measures to limit unauthorized access to the
materials during storage or delays in transit.
--Measures to mitigate risk to population
centers associated with in-transit storage of
the materials.
--Measures to be taken in the event of
escalating threat levels for the materials
stored in transit.
(Unit of violation is the component. For a total
failure to have a security plan, cite Sec.
172.800 and use the penalties provided for that
section.).
172.820(h)............................. Failure to maintain records and make available to 2,000
DOT and DHS authorized officials.
172.820(i)............................. Failure to use route designated by FRA Associate 10,000
Administrator for Safety.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Issued in Washington, DC, on November 18, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-27827 Filed 11-25-08; 8:45 am]
BILLING CODE 4910-06-P