PHMSA Publishes Railroad Incident Notification NPRM
Today, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) published a notice of proposed rulemaking in the Federal Register (88 FR 41541-41560) for “Hazardous Materials: FAST Act Requirements for Real-Time Train Consist Information”. The rule would require all railroads to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts.
Safety Mandates
This rulemaking would implement the requirements of §7302(a)(1) of the Fixing America's Surface Transportation Act (49 USC 20103 Note) to require that Class I railroads provide a real-time train consist information to emergency response personnel that “are involved in the response to, or investigation of, an accident, incident, or public health or safety emergency involving the rail transportation of hazardous materials”. Additionally, in response to a National Transportation Safety Board (NTSB) recommendation (R-07-04) in their Report on a 2005 train collision in Anding, MS, PHMSA is expanding the FAST requirement to Class II and Class III railroads.
Key Provisions
PHMSA is revising the definition of ‘train consist’ in 49 CFR 171.8. It changes the term to ‘train consist information’ to allow for the term to include both a printed copy of the information and an electronic version. The printed copy would be provided to the train crew and would be maintained “in a conspicuous location of an occupied locomotive”. The electronic version would be maintained off of the train and would be “immediately accessible by the railroad's designated emergency response point of contact.” Railroads would be required to electronically share the relevant train consist information with “state-authorized local first responders within a 10-mile radius of the incident or accident to assist in response and investigation efforts.”
Pre-Accident Information Sharing
While the notification requirement wording of the new §174.28(a) is less than clear, the discussion in the preamble makes clear that railroads must make “electronic train consist information available to emergency response personnel at all times, including before an accident or incident occurs”.
Information Security
Included in this NPRM is a proposed new §174.28(c) that would implement the information security requirements of §7302(a)(5) to “establish security and confidentiality protections, including protections from the public release of proprietary information or security-sensitive information, to prevent the release of unauthorized persons any electronic train consist information or advanced notification”. The discussion in the preamble notes that recent TSA cybersecurity directive for railroads will provide a potential base for railroad actions to support this new requirement.
Public Comments
PHMSA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket PHMSA-2016-0015). Comments should be submitted by August 28th, 2023.
Commentary
While the new §174.28(c) requires railroads to take internal measures to “to ensure they provide access only to authorized persons” there is nothing in this rulemaking that addresses the security of that information once it is transmitted by the railroads to emergency response personnel. To be sure, it is not the railroad’s responsibility to ensure the protection beyond that point. Having said that, some sort of action must be taken to at least inform personnel that receive that information from the railroads that they have the responsibility to protect the information. This could be accomplished by rewording subsection (c) by making the second sentence paragraph (i), and adding a new paragraph (ii):
“(ii) In any train consist information sent or transmitted to non-railroad response personnel prior to an incident, the information about the number, type and location of railcars containing hazardous material, along with the route and timing of the shipment, will be transmitted in a separate document that is clearly labeled in accordance with 49 C.F.R. Part 1520 as Sensitive Security Information.”