
[Federal Register: April 16, 2008 (Volume 73, Number 74)]
[Proposed Rules]               
[Page 20774-20778]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap08-18]                         



[[Page 20774]]


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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: Notice of proposed rulemaking.

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SUMMARY: In a separate document published today, the Pipeline and 
Hazardous Materials Safety Administration is requiring railroad 
carriers to compile annual data on specified shipments of hazardous 
materials (security-sensitive materials), use the data to analyze 
safety and security risks along rail transportation routes where those 
materials are transported, assess alternative routing options, and make 
routing decisions based on those assessments. This document proposes 
procedures to enable railroad carriers to challenge rail routing 
decisions made by the FRA Associate Administrator for Safety in 
accordance with PHMSA's requirements.

DATES: Submit comments by June 16, 2008. To the extent possible, we 
will consider late-filed comments as we develop a final rule.

ADDRESSES: You may submit comments identified by the docket number FRA 
2007-28573 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, West Building, Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays.
    Instructions: You must include the agency name and docket number 
FRA-2007-28573 for this notice at the beginning of your comment. 
Internet users may access comments received by DOT at http://
www.regulations.gov. Note that comments received may be posted without 
change to http://www.regulations.gov including any personal information 
provided. Please see the Privacy Act section of this document.
    Comments or those portions of comments FRA determines to include 
trade secrets, confidential commercial information, or sensitive 
security information (SSI) will not be placed in the public docket and 
will be handled separately. If you believe your comments contain trade 
secrets, confidential commercial information, or SSI, those comments or 
the relevant portions of those comments should be appropriately marked 
so that DOT may make a determination. FRA procedures in 49 CFR 209.11 
establish a mechanism by which commenters may request confidentiality.
    In accordance with 49 CFR 209.11, you may ask FRA to keep 
information confidential using the following procedures: (1) Mark the 
document or portions of the document ``CONFIDENTIAL'' or ``CONTAINS 
CONFIDENTIAL INFORMATION''; (2) send DMS both the original document and 
a second copy of the original document with the confidential 
information deleted; and (3) include a separate, detailed statement 
justifying nondisclosure, explaining why the information is 
confidential (such as a trade secret, confidential commercial 
information, or SSI), and referring to the specific legal authority 
claimed. In your explanation, you should provide enough information to 
enable FRA to determine whether the information provided is protected 
by law and must be handled separately.
    In addition, for comments or portions of comments that you believe 
contain SSI as defined in 49 CFR 15.7, you should comply with Federal 
regulations governing restrictions on the disclosure of SSI. See 49 CFR 
1520.9 and 49 CFR 15.9. For example, these sections restrict the 
sharing of SSI to those with a need to know, set out the requirement to 
mark the information as SSI, and address how the information should be 
disposed. Note also when mailing in or using a special delivery service 
to send comments containing SSI, comments should be wrapped in a manner 
to prevent the information from being read. FRA and the Transportation 
Security Administration (TSA) may perform concurrent reviews on 
requests for designations as SSI.
    After reviewing your request for confidentiality and the 
information provided, FRA will analyze applicable laws and regulations 
to decide whether to treat the information as confidential. FRA will 
notify you of the decision to grant or deny confidentiality. If FRA 
denies confidentiality, you will be provided an opportunity to respond 
to the denial before the information is publicly disclosed. FRA will 
reconsider its decision to deny confidentiality based on your response.
    Regarding comments not marked as confidential, prior to posting 
comments received in response to this notice in the public docket, FRA 
will review all comments, whether or not they are identified as 
confidential, to determine if the submission or portions of the 
submission contain information that should not be made available to the 
general public. FRA will notify you if the agencies make such a 
determination relative to your comment. If, prior to submitting your 
comment, you have any questions concerning the procedures for 
determining confidentiality or security sensitivity, you may call the 
individual listed below under FOR FURTHER INFORMATION CONTACT for more 
information.

FOR FURTHER INFORMATION CONTACT: Roberta Stewart, Trial Attorney, 
Office of Chief Counsel, RCC-12, Mail Stop 10, FRA, 1120 Vermont Ave., 
NW., Washington, DC 20590 (telephone 202-493-6027).

SUPPLEMENTARY INFORMATION:

I. Background

    On December 21, 2006, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA) issued a notice of proposed rulemaking (PHMSA's 
NPRM), 71 FR 76834, proposing revisions to the requirements in the 
hazardous materials regulations (HMR) applicable to the safe and secure 
transportation of hazardous materials transported in commerce by rail. 
In today's edition of the Federal Register, PHMSA issued an interim 
final rule (IFR) on this subject. Specifically, PHMSA is requiring 
railroad carriers to compile annual data on specified shipments of 
hazardous materials (security-sensitive materials), use the data to 
analyze safety and security risks along rail transportation routes 
where those materials are transported, assess alternative routing 
options, and make routing decisions based on those assessments. In that 
IFR, PHMSA also issued clarifications of the current security plan 
requirements to address en route storage, delays in transit, delivery 
notification, and additional security inspection requirements for 
hazardous materials shipments.
    The Federal hazardous materials transportation law (Federal hazmat 
law), 49 U.S.C. 5101 et seq., authorizes the Secretary of the 
Department of

[[Page 20775]]

Transportation (Secretary) to ``prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce.'' The Secretary has 
delegated this authority to PHMSA (formerly the Research and Special 
Programs Administration).
    The HMR (49 CFR parts 171-180), promulgated by PHMSA under the 
mandate in 49 U.S.C. 5103(b) govern safety aspects, including security, 
of the transportation of hazardous material the Secretary considers 
appropriate. Consistent with this security authority, in March 2003, 
PHMSA adopted new transportation security requirements for offerors and 
transporters of certain classes and quantities of hazardous materials 
and new security training requirements for hazardous materials 
employees. The security regulations, which are explained in more detail 
below, require offerors and carriers to develop and implement security 
plans and to train their employees to recognize and respond to possible 
security threats.
    When PHMSA adopted its security regulations, shippers and railroad 
carriers were informed these regulations were ``the first step in what 
may be a series of rulemakings to address the security of hazardous 
materials shipments.'' 68 FR 14509, 14511 (March 25, 2003). PHMSA also 
noted that ``TSA is developing regulations that are likely to impose 
additional requirements beyond those established in this final rule,'' 
and stated it would ``consult and coordinate with TSA concerning 
security-related hazardous materials transportation regulations * * *'' 
68 FR 14511.
    Enforcement of the HMR has been delegated by the Secretary to modal 
administrations within DOT. Specifically, FRA is authorized to ``carry 
out the functions vested in the Secretary by 49 U.S.C. 5121(a), (b), 
(c) and (d), 5122, 5123, and 5124, with particular emphasis on the 
transportation or shipment of hazardous materials by railroad.'' 49 CFR 
1.49(s).
    FRA is the agency within DOT responsible for railroad safety, and 
is the primary enforcer of safety and security requirements in the HMR 
pertaining to rail shippers and carriers. FRA inspectors routinely 
review hazardous materials security plans required by the HMR during 
site visits to railroad carrier and shipper facilities and may offer 
suggestions for improving the security plans, as appropriate. If an 
inspector's recommendations are not implemented, FRA may compel a rail 
shipper or carrier to make changes to its security plan through its 
normal enforcement process. FRA consults with TSA concerning railroad 
security issues in accordance with the FRA-TSA annex to the DOT-
Department of Homeland Security Memorandum of Understanding (DOT-DHS 
MOU) on transportation security.
    PHMSA's NPRM and IFR provide that a railroad carrier may be 
required to revise its analysis or make changes to a route selected by 
the carrier to move covered hazardous materials if the route selection 
documentation or underlying analysis is found to be deficient. In 
addition, both PHMSA's NPRM and IFR provide that if the carrier's 
chosen route is found not to be the safest and most secure commercially 
practicable route available, the FRA Associate Administrator for Safety 
(Associate Administrator), in consultation with TSA, may require the 
use of an alternative route until such time as identified deficiencies 
are satisfactorily addressed. PHMSA's NPRM stated that FRA would 
establish procedures for railroad carriers to appeal a decision by the 
Associate Administrator to require the use of an alternative route.
    Several comments were submitted regarding the PHMSA NPRM and the 
possibility that the FRA Associate Administrator could require 
rerouting. The Association of American Railroads (AAR) questioned 
whether FRA properly had the authority to require rerouting. The Dow 
Chemical Company 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. The Surface Transportation 
Board (STB) suggested that prior to making a determination requiring 
the use of an alternative route, FRA and TSA obtain the comments of the 
STB as to whether the contemplated alternative route(s) would be 
commercially practicable.
    FRA's authority to require the use of an alternative route derives 
from Sec.  5121(a) of the Federal hazmat law. The Secretary is 
authorized to issue an order, after notice and an opportunity for a 
hearing, requiring compliance with the Federal hazmat law or a 
regulation, order, special permit, or approval issued under Federal 
hazmat law. The authority provided in 49 U.S.C. 5121(a) has been 
delegated to FRA ``with particular emphasis on the transportation or 
shipment of hazardous materials by railroad'' (49 CFR 1.49(s)), as well 
as to PHMSA, the Federal Aviation Administration, the Federal Motor 
Carrier Safety Administration and the United States Coast Guard (with 
``particular emphasis'' on the respective authority of these agencies).

II. Proposals in This NPRM

    As previously noted, in its rail security NPRM, PHMSA stated that 
FRA would provide a procedure for administrative due process so that a 
railroad carrier may seek redress of decision by the Associate 
Administrator that the carrier's routing analysis is deficient and 
directing a carrier to use a route while the deficiencies are 
corrected. 71 FR at 76844. This NPRM proposes procedures governing the 
review of rail routing decisions, including appeal, and these 
procedures are summarized below. FRA notes in this regard that the 
procedures are carefully designed so that a carrier is fully informed 
of deficiencies found by FRA in a carrier's safety and security routing 
analysis, and that the carrier is permitted to work with FRA to correct 
those deficiencies. FRA will only require the use of an alternate route 
if it concludes the carrier's analysis did not satisfy the minimum 
criteria for performing a safety and security risk analysis, as 
established by Sec.  172.820 and appendix D to part 172, and that an 
alternative route poses the least safety and security risks based on 
the information available to the agency. Moreover, FRA expects to 
mandate temporary route changes only for the most exigent 
circumstances.
    Section 209.501 provides that if the Associate Administrator 
determines that a carrier's route selection documentation and 
underlying analysis are deficient and fail to establish that the route 
chosen by the carrier is the safest and most secure route, the 
Associate Administrator will 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

[[Page 20776]]

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 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 section 209.501(d), there are 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 safest and 
most secure route. 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 shall 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.
    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.
    With respect to enforcement of the new rail security requirements 
established in PHMSA's IFR, FRA plans to work closely with TSA to 
develop a coordinated enforcement strategy to include both FRA and TSA 
inspection personnel. We note in this regard that TSA does not have the 
authority to enforce safety or security requirements established in the 
HMR. If in the course of an inspection of a railroad carrier, TSA 
identifies evidence of non-compliance with a DOT security regulation, 
TSA will provide the information to FRA and PHMSA for appropriate 
action. TSA will not directly enforce DOT security rules, and will not 
initiate safety inspections. Consistent with the PHMSA-TSA and FRA-TSA 
annexes to the DOT-DHS MOU, all the involved agencies will cooperate to 
ensure coordinated, consistent, and effective activities related to 
rail security issues.

III. 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 hazmat 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). Responsibility for the enforcement of the 
hazardous materials transportation law and regulations primarily in 
instances where violations involve railroads and those entities which 
ship by rail has been delegated to FRA. 49 CFR 1.49(s).

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM 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 NPRM is not significant 
under the Regulatory Policies and Procedures of DOT (44 FR 11034). The 
economic impact of this proposed rule is minimal to the extent that 
preparation of a regulatory evaluation is not warranted.

C. Executive Order 13132

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
proposed 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 proposed rule will not have a significant 
economic impact on a substantial number of small entities. This 
proposed 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 proposed rule.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule does not impose unfunded mandates under the 
Unfunded Mandates Act of 1995. It does not result in annual costs of 
$128,100,000 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 
proposed rule.

[[Page 20777]]

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. 
We have evaluated this proposed rule in accordance with Executive Order 
13211, and we have determined that this NPRM is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, we have 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.

    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]

    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.

    2. Amend Sec.  209.3 by adding the following new 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.
* * * * *
    3. Add new Subpart F to read as follows:

Subpart F--Enforcement, Appeal and Hearing Procedures for Rail 
Routing Decisions Pursuant to 49 CFR 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 is the safest and most secure route, the Associate 
Administrator shall issue a written notice of review (``Notice'') to 
the 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 as 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 less 
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 is the safest and most secure route 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

[[Page 20778]]

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 (f) 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 is the safest and most secure 
route, 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.
    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 Material Assessments

* * * * *


------------------------------------------------------------------------

------------------------------------------------------------------------
172.820(a)-(e)............  General failure to perform   5,000-10,000
                             safety and security 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  5,000
                             route analysis; failure 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
                                altenative route
                                analysis.
172.820(f)................  Failure to complete route    2,000
                             analyses within the
                             prescribed time frame.
172.820(g)................  Failure to include one of    2,000
                             the following components
                             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  2,000
                             and make available to DOT
                             and DHS authorized
                             officials.
172.820(i)................  Failure to use route         10,000
                             designated by FRA
                             Associate Administrator
                             for Safety.
------------------------------------------------------------------------

* * * * *

    Issued in Washington, DC, on April 10, 2008.
S. Mark Lindsey,
Chief Counsel, Federal Railroad Administration.

 [FR Doc. E8-8187 Filed 4-15-08; 8:45 am]

BILLING CODE 4910-06-P
