
[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.
---------------------------------------------------------------------------

    \1\ See, e.g., H.R. Rep. 109-12 Sec.  7024 (Mar. 7, 2005).
---------------------------------------------------------------------------

    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]]



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