460
49 CFR Ch. I (10–1–23 Edition)
§ 172.804
restrictions and a demonstrated need
to know. When the security plan is up-
dated or revised, all employees respon-
sible for implementing it must be noti-
fied and all copies of the plan must be
maintained as of the date of the most
recent revision.
(d) Each person required to develop
and implement a security plan in ac-
cordance with this subpart must main-
tain a copy of the security plan (or an
electronic file thereof) that is acces-
sible at, or through, its principal place
of business and must make the security
plan available upon request, at a rea-
sonable time and location, to an au-
thorized official of the Department of
Transportation or the Department of
Homeland Security.
[68 FR 14521, Mar. 25, 2003, as amended at 75
FR 10989, Mar. 9, 2010]
§ 172.804
Relationship to other Federal
requirements.
To avoid unnecessary duplication of
security requirements, security plans
that conform to regulations, standards,
protocols, or guidelines issued by other
Federal agencies, international organi-
zations, or industry organizations may
be used to satisfy the requirements in
this subpart, provided such security
plans address the requirements speci-
fied in this subpart.
§ 172.820
Additional planning require-
ments for transportation by rail.
(a)
General.
Each rail carrier trans-
porting in commerce one or more of
the following materials is subject to
the additional safety and security plan-
ning requirements of this section:
(1) More than 2,268 kg (5,000 lbs.) in a
single carload of a Division 1.1, 1.2 or
1.3 explosive;
(2) A quantity of a material poi-
sonous by inhalation in a single bulk
packaging;
(3) A highway route-controlled quan-
tity of a Class 7 (radioactive) material,
as defined in § 173.403 of this sub-
chapter;
(4) A high-hazard flammable train
(HHFT) as defined in § 171.8 of this sub-
chapter; or
(5) A quantity of UN1972 (Methane,
refrigerated liquid or Natural gas, re-
frigerated liquid) when transported in a
rail tank car.
(b) Not later than 90 days after the
end of each calendar year, a rail carrier
must compile commodity data for the
previous calendar year for the mate-
rials listed in paragraph (a) of this sec-
tion. The following stipulations apply
to data collected:
(1) Commodity data must be col-
lected by route, a line segment or se-
ries of line segments as aggregated by
the rail carrier. Within the rail carrier
selected route, the commodity data
must identify the geographic location
of the route and the total number of
shipments by UN identification number
for the materials specified in para-
graph (a) of this section.
(i) A rail carrier subject to additional
planning requirements of this section
based on paragraph (a)(5) of this sec-
tion that has yet to transport UN 1972,
must factor in planned shipments of
UN 1972 to the commodity data for use
in the paragraph (c) route analysis
prior to initial transport of the mate-
rial.
(ii) [Reserved]
(2) A carrier may compile commodity
data, by UN number, for all Class 7 ma-
terials transported (instead of only
highway route controlled quantities of
Class 7 materials) and for all Division
6.1 materials transported (instead of
only Division 6.1 poison inhalation haz-
ard materials).
(c)
Rail transportation route analysis.
For each calendar year, a rail carrier
must analyze the safety and security
risks for the transportation route(s),
identified in the commodity data col-
lected as required by paragraph (b) of
this section. The route analysis must
be in writing and include the factors
contained in appendix D to this part, as
applicable.
(1) The safety and security risks
present must be analyzed for the route
and railroad facilities along the route.
For purposes of this section, railroad
facilities are railroad property includ-
ing, but not limited to, classification
and switching yards, storage facilities,
and non-private sidings. This term does
not include an offeror’s facility, pri-
vate track, private siding, or con-
signee’s facility.
(2) In performing the analysis re-
quired by this paragraph, the rail car-
rier must seek relevant information
461
Pipeline and Haz. Matls. Safety Admin., DOT
§ 172.820
from state, local, and tribal officials,
as appropriate, regarding security risks
to high-consequence targets along or in
proximity to the route(s) utilized. If a
rail carrier is unable to acquire rel-
evant information from state, local, or
tribal officials, then it must document
that in its analysis. For purposes of
this section, a high-consequence target
means a property, natural resource, lo-
cation, area, or other target designated
by the Secretary of Homeland Security
that is a viable terrorist target of na-
tional significance, the attack of which
by railroad could result in catastrophic
loss of life, significant damage to na-
tional security or defense capabilities,
or national economic harm.
(d)
Alternative route analysis.
(1) For
each calendar year, a rail carrier must
identify practicable alternative routes
over which it has authority to operate,
if an alternative exists, as an alter-
native route for each of the transpor-
tation routes analyzed in accordance
with paragraph (c) of this section. The
carrier must perform a safety and secu-
rity risk assessment of the alternative
routes for comparison to the route
analysis prescribed in paragraph (c) of
this section. The alternative route
analysis must be in writing and include
the criteria in appendix D of this part.
When determining practicable alter-
native routes, the rail carrier must
consider the use of interchange agree-
ments with other rail carriers. The
written alternative route analysis
must also consider:
(i) Safety and security risks pre-
sented by use of the alternative
route(s);
(ii) Comparison of the safety and se-
curity risks of the alternative(s) to the
primary rail transportation route, in-
cluding the risk of a catastrophic re-
lease from a shipment traveling along
each route;
(iii) Any remediation or mitigation
measures implemented on the primary
or alternative route(s); and
(iv) Potential economic effects of
using the alternative route(s), includ-
ing but not limited to the economics of
the commodity, route, and customer
relationship.
(2) In performing the analysis re-
quired by this paragraph, the rail car-
rier should seek relevant information
from state, local, and tribal officials,
as appropriate, regarding security risks
to high-consequence targets along or in
proximity to the alternative routes. If
a rail carrier determines that it is not
appropriate to seek such relevant in-
formation, then it must explain its rea-
soning for that determination in its
analysis.
(e)
Route Selection.
A carrier must use
the analysis performed as required by
paragraphs (c) and (d) of this section to
select the route to be used in moving
the materials covered by paragraph (a)
of this section. The carrier must con-
sider any remediation measures imple-
mented on a route. Using this process,
the carrier must at least annually re-
view and select the practicable route
posing the least overall safety and se-
curity risk. The rail carrier must re-
tain in writing all route review and se-
lection decision documentation and re-
strict the distribution, disclosure, and
availability of information contained
in the route analysis to covered per-
sons with a need-to-know, as described
in parts 15 and 1520 of this title. This
documentation should include, but is
not limited to, comparative analyses,
charts, graphics or rail system maps.
(f)
Completion of route analysis.
(1) The
rail transportation route analysis, al-
ternative route analysis, and route se-
lection process required under para-
graphs (c), (d), and (e) of this section
must be completed no later than the
end of the calendar year following the
year to which the analyses apply.
(2) The initial analysis and route se-
lection determinations required under
paragraphs (c), (d), and (e) of this sec-
tion must include a comprehensive re-
view of the entire system. Subsequent
analyses and route selection deter-
minations required under paragraphs
(c), (d), and (e) of this section must in-
clude a comprehensive, system-wide re-
view of all operational changes, infra-
structure modifications, traffic adjust-
ments, changes in the nature of high-
consequence targets located along, or
in proximity to, the route, and any
other changes affecting the safety or
security of the movements of the mate-
rials specified in paragraph (a) of this
section that were implemented during
the calendar year.
462
49 CFR Ch. I (10–1–23 Edition)
§ 172.822
(3) A rail carrier need not perform a
rail transportation route analysis, al-
ternative route analysis, or route se-
lection process for any hazardous ma-
terial other than the materials speci-
fied in paragraph (a) of this section.
(g)
Rail carrier point of contact on rout-
ing issues.
Each rail carrier must iden-
tify a point of contact (including the
name, title, phone number and e-mail
address) on routing issues involving
the movement of materials covered by
this section in its security plan and
provide this information to:
(1) State and/or regional Fusion Cen-
ters that have been established to co-
ordinate with state, local and tribal of-
ficials on security issues and which are
located within the area encompassed
by the rail carrier’s rail system; and
(2) State, local, and tribal officials in
jurisdictions that may be affected by a
rail carrier’s routing decisions and who
directly contact the railroad to discuss
routing decisions.
(h)
Storage, delays in transit, and noti-
fication.
With respect to the materials
specified in paragraph (a) of this sec-
tion, each rail carrier must ensure the
safety and security plan it develops
and implements under this subpart in-
cludes all of the following:
(1) A procedure under which the rail
carrier must consult with offerors and
consignees in order to develop meas-
ures for minimizing, to the extent
practicable, the duration of any stor-
age of the material incidental to move-
ment (see § 171.8 of this subchapter).
(2) Measures to prevent unauthorized
access to the materials during storage
or delays in transit.
(3) Measures to mitigate risk to pop-
ulation centers associated with in-
transit storage.
(4) Measures to be taken in the event
of an escalating threat level for mate-
rials stored in transit.
(5) Procedures for notifying the con-
signee in the event of a significant
delay during transportation; such noti-
fication must be completed within 48
hours after the carrier has identified
the delay and must include a revised
delivery schedule. A significant delay
is one that compromises the safety or
security of the hazardous material or
delays the shipment beyond its normal
expected or planned shipping time. No-
tification should be made by a method
acceptable to both the rail carrier and
consignee.
(i)
Recordkeeping.
(1) Each rail carrier
must maintain a copy of the informa-
tion specified in paragraphs (b), (c), (d),
(e), and (f) of this section (or an elec-
tronic image thereof) that is accessible
at, or through, its principal place of
business and must make the record
available upon request, at a reasonable
time and location, to an authorized of-
ficial of the Department of Transpor-
tation or the Department of Homeland
Security. Records must be retained for
a minimum of two years.
(2) Each rail carrier must restrict the
distribution, disclosure, and avail-
ability of information collected or de-
veloped in accordance with paragraphs
(c), (d), (e), and (f) of this section to
covered persons with a need-to-know,
as described in parts 15 and 1520 of this
title.
(j)
Compliance and enforcement.
If the
carrier’s route selection documenta-
tion and underlying analyses are found
to be deficient, the carrier may be re-
quired to revise the analyses or make
changes in route selection. If DOT finds
that a chosen route is not the safest
and most secure practicable route
available, the FRA Associate Adminis-
trator for Safety, in consultation with
TSA, may require the use of an alter-
native route. Prior to making such a
determination, FRA and TSA will con-
sult with the Surface Transportation
Board (STB) regarding whether the
contemplated alternative route(s)
would be economically practicable.
[73 FR 20771, Apr. 16, 2008, as amended at 73
FR 72193, Dec. 26, 2008; 76 FR 56314, Sept. 13,
2011; 80 FR 26746, May 8, 2015; 85 FR 45029,
July 24, 2020]
§ 172.822
Limitation on actions by
states, local governments, and In-
dian tribes.
A law, order, or other directive of a
state, political subdivision of a state,
or an Indian tribe that designates, lim-
its, or prohibits the use of a rail line
(other than a rail line owned by a
state, political subdivision of a state,
or an Indian tribe) for the transpor-
tation of hazardous materials, includ-
ing, but not limited to, the materials