[Federal Register Volume 59, Number 240 (Thursday, December 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30593]


[[Page Unknown]]

[Federal Register: December 15, 1994]


_______________________________________________________________________

Part II





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



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49 CFR Parts 171 and 174




Hazardous Materials in COFC and TOFC Service; Final Rule
DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171 and 174

[Docket No. HM-197; Amdt. Nos. 171-130, and 174-79]
RIN 2137-AC26

 
Hazardous Materials in COFC and TOFC Service

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule establishes standards for transporting 
portable tanks containing certain hazardous materials in container-on-
flatcar (COFC) or trailer-on-flatcar (TOFC) service, without obtaining 
prior approval from the Federal Railroad Administration (FRA). Adoption 
of these standards as rules of general applicability will provide wider 
access to the benefits of transportation services that have been proven 
to be effective and safe. Persons holding approvals issued prior to 
this rulemaking who are unable to meet the standards established by 
this final rule will need to re-apply to the Associate Administrator 
for Safety, FRA, prior to the expiration date stated in their current 
approval.
    The intended effects of this action are to reduce the need for 
obtaining written approval for certain COFC or TOFC services and to 
facilitate domestic and international commerce.

DATES: Effective date. February 13, 1995.
    Compliance date. Compliance with the requirements as adopted herein 
is authorized immediately.
    Incorporation by reference date. The incorporation by reference of 
a publication listed in this final rule is approved by the Director of 
the Office of the Federal Register as of February 13, 1995.

FOR FURTHER INFORMATION CONTACT: Edward W. Pritchard, Telephone (202) 
366-0897, Chief Hazardous Materials Division, RRS-12, Federal Railroad 
Administration, 400 Seventh Street, SW., Washington, DC 20590, 
Telephone (202) 366-0897 or Thomas A. Phemister, Telephone (202) 366-
0443, Trial Attorney, Office of Chief Counsel, Federal Railroad 
Administration, RCC-30, 400 Seventh Street, SW., Washington, DC 20590-
0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On April 30, 1985, RSPA published in the Federal Register an 
advance notice of proposed rulemaking (ANPRM) titled ``Shippers; Use of 
Cargo Tanks, Portable Tanks, IM Portable Tanks, and Multi-Unit Tank Car 
Tanks in COFC and TOFC Service,'' under Docket No. HM-197, Notice No. 
85-2 (50 FR 18278). In the ANPRM, RSPA solicited comments and 
information to assist in the identification and development of safety 
criteria for COFC and TOFC service of tanks transporting hazardous 
materials. Specific comments were requested on the adequacy of means 
used to secure a highway chassis (trailer) or a container to a flatcar, 
and the trailer's potential vulnerability in COFC/TOFC service. 
Comments were also requested on other safety issues involving the 
double stacking of containers, securement and cushioning of trailers 
and containers, liquid surge prevention, tank thermal protection, tank 
puncture resistance, and train placement. A public hearing was held on 
June 11, 1985, to discuss the proposals.
    On May 7, 1993, RSPA published in the Federal Register a notice of 
proposed rulemaking (NPRM) under Docket No. HM-197, Notice No. 93-11 
[58 FR 27257], based on comments received to the ANPRM. In the NPRM, 
RSPA proposed to allow the transportation of IM portable tanks and 
portable tanks containing certain hazardous materials in COFC and TOFC 
service under conditions prescribed in the Hazardous Materials 
Regulations (HMR). Currently, these COFC and TOFC movements are 
authorized under approvals issued by the Associate Administrator for 
Safety, FRA. RSPA explained in the preamble of the NPRM that, because 
of strong concerns raised by commenters on the transport of cargo tank 
motor vehicles in TOFC service and because of the limited availability 
of experience data, these services would remain under FRA approval. 
With regard to the transport of multi-unit tank car tanks (DOT 106 and 
110), FRA believes that less than ten units are being transported and 
that they should continue under FRA approval.
    RSPA received seven comments in response to the NPRM from rail 
carriers, rail car and portable tank manufacturers, and trade 
associations representing rail carriers and shippers. Six commenters 
supported the proposals but requested certain changes.
     The remaining commenter stated that the transport of hazardous 
materials in COFC/TOFC systems should be subject to the same 
performance requirements in accidents as those currently required for 
tank cars transporting the same materials. The commenter also took 
exception to RSPA's statement in the preamble of the NPRM that the 
proposal was, in part, based on the transportation safety record of 
more than 50,000 portable tanks in COFC/TOFC service. The commenter 
stated that it had not seen the results of this sample or a comparison 
between performance of these containers and the performance of tank 
cars presently authorized to transport similar materials.
    RSPA and FRA disagree with this commenter's position. The capacity 
of a portable tank (5000-6000 gallons) is considerably less than that 
of a rail tank car (18,500-34,500 gallons), and tank cars and portable 
tanks have significantly different operating environments. FRA has 
approved methods for portable tanks transporting hazardous materials in 
COFC and TOFC service for more than ten years. Based on the years of 
satisfactory transportation experience using safety standards 
established under the approval process, RSPA and FRA believe additional 
safeguards are unnecessary. Therefore, this final rule merely 
incorporates the approval safety standards into the HMR and eliminates 
the approval process.
    On July 26, 1994, RSPA published a final rule establishing 
standards for the construction, maintenance and use of intermediate 
bulk containers (IBCs) for the transportation of hazardous materials 
[59 FR 38040]. IBCs are bulk packagings with a capacity ranging from 
450 liters (119 gallons) to 3,785 liters (1,000 gallons) and are 
designed for mechanical handling. IBCs are generally transported in 
closed freight containers and transport vehicles when transported by 
rail. These packagings may continue to be transported in this manner in 
conformance with Sec. 174.63(b).
    The following is a summary of the changes made under this final 
rule and, where applicable, a discussion of comments received.

II. Summary of Regulatory Changes

Section 171.7

    In the table in paragraph (a)(3), the proposal would have removed 
the entry for the Association of American Railroads's (AAR) publication 
``AAR Specification for Tank Cars'' and updated the entry for ``AAR 
Specification for Tank Cars, Specification M-1002, Section C'' from the 
1988 edition to the 1990 edition. The AAR and another commenter 
requested adoption of the 1992 edition of the publication. The 1992 
publication contains discussions on the controlled interchange movement 
of portable tanks on double-stack cars without end-of-car cushioning. 
Agreeing with commenters that the 1992 edition should be adopted, RSPA 
removed the ``AAR Specification for Tank Car'' entry and incorporated 
by reference the 1992 edition of the AAR publication under another 
rulemaking action (Docket No. HM-166Z [59 FR 28487]). As proposed in 
the NPRM, an entry is added for ``AAR Manual of Standards and 
Recommended Practices, Section I, Specially Equipped Freight Car and 
Intermodal Equipment.'' The edition referenced is corrected to read 
``1988,'' which is the latest edition.

Section 174.61

    RSPA proposed to revise this section to include requirements 
applicable to transport vehicles and freight containers containing 
packages of hazardous materials only. This proposal was supported by 
commenters and is adopted in this final rule.

Section 174.63

    This section contains requirements for portable tanks, IM portable 
tanks, cargo tanks, and multi-unit tank car tanks transported by rail. 
Proposed paragraph (a) contained requirements applicable to DOT 51, 52, 
53, 56, and 57 and IM 101 and 102 portable tanks that are transported 
inside a transport vehicle or container body. A commenter stated that 
the term ``container body'' was ambiguous and requested that the term 
``container body'' be replaced with the term ``freight container.'' 
RSPA agrees and has made the revision. In addition, the proposed 
provisions contained in this section are rearranged for clarity. A 
general provision on the transport of tanks by rail, in proposed 
paragraph (c), is moved to paragraph (a). Proposed paragraphs (a) and 
(b), a remaining provision in paragraph (c), and paragraph (d) are 
rearranged as paragraphs (b), (c), (d) and (e) respectively.
    Several commenters requested clarification on the prohibition in 
proposed paragraph (b)(3) against movement of portable tanks in a 
double-stack configuration. They asked whether it was RSPA and FRA's 
intent to disallow the transport of portable tanks in double-stack cars 
or to disallow placement of a portable tank as the top container in a 
double-stack configuration. RSPA and FRA's intent was to disallow 
portable tanks from being placed under or on top of another portable 
tank or freight container, creating a double-stack configuration. 
Several commenters requested revisions to allow the transport of 
portable tanks in double-stack well cars (i.e., a flatcar with a 
depression in the center that allows the container to extend below the 
normal floor plane). One commenter recommended placement of the 
portable tanks in the bottom well, with the outlet valve facing 
outboard away from the middle of the car and towards the end of the 
car. The commenter also recommended that the well car be equipped with 
a device to fill voids between the sides and corners of the well and 
the frame. RSPA and FRA agree that well cars should be allowed, subject 
to the conditions that the portable tanks are located in the bottom 
well in a single-stack configuration and are fitted to prevent movement 
in the well car. RSPA and FRA also agree that the outlet valves should 
face towards the ends of the car to allow ready access to these valves 
and to facilitate emergency response in case of their leakage. This 
provision is revised accordingly and appears in paragraph (c)(6) in 
this final rule.
    A commenter pointed out that proposed paragraph (b)(4), containing 
requirements for TOFC service, incorrectly refers to AAR Specification 
M-952 which addresses only COFC service. RSPA agrees the reference to 
AAR Specification M-952 is incorrect and has removed the reference from 
the provision appearing in paragraph (c)(4) in this final rule.
    Finally, a commenter requested that rail carriers be allowed to 
move cargo tanks on flatcars in work trains when necessary for 
responding to hazardous materials releases. Because work trains are 
generally associated with railroad maintenance assignments, RSPA agrees 
only emergency response situations deserve special consideration and 
has added an exception for cargo tank movements in paragraph (e).

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Polices and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
subject to review by the Office of Management and Budget. The rule is 
not considered significant under the regulatory policies and procedures 
of the Department of Transportation (44 FR 11034; February 26, 1979). A 
regulatory evaluation is available for review in the Docket.

B. Executive Order 12612

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 12612 (``Federalism''). 
Federal law expressly preempts State, local, and Indian tribe 
requirements applicable to the transportation of hazardous material 
that cover certain subjects and are not ``substantively the same'' as 
the Federal requirements. 49 U.S.C. 5125(b)(1). These covered subjects 
are:
    (A) the designation, description, and classification of hazardous 
material;
    (B) the packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (C) the preparation, execution, and use of shipping documents 
pertaining to hazardous material and requirements respecting the 
number, contents, and placement of those documents;
    (D) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (E) the design, manufacturing, fabrication, marking, maintenance, 
reconditioning, repairing, or testing of a package or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This final rule addresses the handling of hazardous materials. 
Therefore, this final rule preempts State, local, or Indian tribe 
requirements that are not ``substantively the same'' as Federal 
requirements on these subjects. Section 5125(b)(2) of Title 49 U.S.C. 
provides that when DOT issues a regulation concerning any of the 
covered subjects, after November 16, 1990, DOT must determine and 
publish in the Federal Register the effective date of Federal 
preemption. The effective date may not be earlier than the 90th day 
following the date of issuance of the final rule and not later than two 
years after the date of issuance. RSPA has determined that the 
effective date of Federal preemption for these requirements will be 
April 1, 1995.
    Because RSPA lacks discretion in this area, preparation of a 
federalism assessment is not warranted.

C. Regulatory Flexibility Act

    I certify that this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule relaxes 
certain provisions applying to persons who offer for transportation and 
transport hazardous materials by rail, some of whom are small entities. 
This rule should result in minor cost savings to affected entities.

D. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule. This rule, in fact, reduces information collection burdens and 
should result in minor cost savings to affected entities.

E. Regulations 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 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 174

    Hazardous materials transportation, Incorporation by reference, 
Radioactive materials, Railroad safety.

    In consideration of the foregoing, 49 CFR parts 171 and 174 are 
amended as set forth below:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    2. In Sec. 171.7, in paragraph (a)(3) table, under the Association 
of American Railroads, the existing entry for ``AAR Manual of Standards 
and Recommended Practices'' is revised and a new entry is added, in 
alphabetical order, to read as follows:


Sec. 171.7  Reference material.

    (a) * * *
    (3) Table of material incorporated by reference. * * *

------------------------------------------------------------------------
           Source and name of material               49 CFR reference   
------------------------------------------------------------------------
                              * * * * * * *                             
        Association of American Railroads                               
                                                                        
AAR Manual of Standards and Recommended           173.31; 174.63; 179.6;
 Practices, Section C--Part III, Specifications    179.12; 179.100;     
 for Tank Cars, Specification M-1002, September    179.101; 179.102;    
 1992.                                             179.103; 179.105;    
                                                   179.200; 179.201;    
                                                   179.220; 179.300;    
                                                   179.400.             
AAR Manual of Standards and Recommended           174.63.               
 Practices, Section I, Specially Equipped                               
 Freight Car and Intermodal Equipment, 1988.                            
                              * * * * * * *                             
------------------------------------------------------------------------

* * * * *

PART 174--CARRIAGE BY RAIL

    3. The authority citation for part 174 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    4. In Sec. 174.61, paragraph (c) is removed and the section heading 
and the first sentence in paragraph (a) are revised to read as follows:


Sec. 174.61  Transport vehicles and freight containers on flat cars.

    (a) A transport vehicle, freight container, or package containing a 
hazardous material must be designed and loaded so that it will not 
become damaged to an extent that would affect its integrity under 
conditions normally incident to transportation. * * *
* * * * *
    5. Section 174.63 is revised to read as follows:


Sec. 174.63  Portable tanks, IM portable tanks, intermediate bulk 
containers, cargo tanks, and multi-unit tank car tanks.

    (a) A carrier may not transport a bulk packaging (e.g., portable 
tank, IM portable tank, intermediate bulk container, cargo tank, or 
multi-unit tank car tank) containing a hazardous material in container-
on-flatcar (COFC) or trailer-on-flatcar (TOFC) service except as 
authorized by this section or unless approved for transportation by the 
Associate Administrator for Safety, FRA.
    (b) A bulk packaging containing a hazardous material (including IM 
101 and IM 102 when appropriate according to dimensions and weight 
distribution) may be transported inside a fully closed transport 
vehicle or fully closed freight container provided it is properly 
secured with a restraint system that will prevent it from changing 
position, sliding into other packages, or contacting the side or end 
walls (including doors) under conditions normally incident to 
transportation.
    (c) When not transported in conformance with and subject to 
paragraph (b) of this section, a bulk packaging may be transported in 
COFC service or TOFC service subject to the following conditions as 
applicable:
    (1) The bulk packaging contains a material packaged in accordance 
with Sec. 173.240, 173.241, 173.242, or 173.243 of this subchapter;
    (2) The tank and flatcar conform to requirements in AAR 600 of the 
AAR Specifications for Tank Cars, Specification M-1002, entitled 
``Specifications for Acceptability of Tank Containers'';
    (3) For TOFC service, the trailer chassis conforms to requirements 
in paragraphs 3, 4, 5, and 6 of AAR Specification M-943 ``Container 
Chassis For TOFC Service'' of the AAR specification for ``Specially 
Equipped Freight Car and Intermodal Equipment'';
    (4) For COFC service, the container support and securement systems 
conform to requirements in Specification M-952 ``Intermodal Container 
Support and Securement Systems for Freight Cars'', of the AAR 
specification for ``Specially Equipped Freight Car and Intermodal 
Equipment'';
    (5) If transported in a well car--
    (i) The tank is not in a double-stacked configuration (i.e., no 
freight container or portable tank is placed above or below the tank); 
and
    (ii) The tank is transported in the well with its outlet valve 
facing outward towards the end of the well and away from any adjacent 
tank or container; and
    (6) All securement fittings shall be fully engaged and in the 
locked position, provided; however, if the tank is transported in a 
well car, it must be loaded into a well appropriate for the length of 
the container and any void filling device present must be secured in 
its designed appropriate position.
    (d) An approval in effect on February 28, 1991 for the 
transportation of portable tanks or IM portable tanks in TOFC or COFC 
service expires on the date stated in the approval letter or June 15, 
1995, whichever is later.
    (e) A carrier may not transport a cargo tank or multi-unit tank car 
tank containing a hazardous material in TOFC or COFC service unless 
approved for such service by the Associate Administrator for Safety, 
FRA. However, in the event of an accident or incident, no such approval 
is necessary for the transportation of a cargo tank containing a 
hazardous material in TOFC service under the following condition(s):
    (1) There is an emergency need for the cargo tank in order to 
mitigate the consequences of an incident; and
    (2) Movement of the cargo tank is limited to transportation 
necessary for emergency purposes.

    Issued in Washington, DC, on December 7, 1994, under authority 
delegated in 49 CFR part 1.
D.K. Sharma,
Administrator, Research and Special Programs Administration.
[FR Doc. 94-30593 Filed 12-14-94; 8:45 am]
BILLING CODE 4910-60-P