[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
_______________________________________________________________________
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.
-----------------------------------------------------------------------
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