[Federal Register Volume 61, Number 124 (Wednesday, June 26, 1996)]
[Rules and Regulations]
[Pages 33250-33257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15273]



      

[[Page 33249]]


_______________________________________________________________________

Part VI





Department of Transportation





_______________________________________________________________________



Research and Special Programs Administration



_______________________________________________________________________



49 CFR Part 171, et al.



Tank Cars: Crashworthiness Protection Requirements; Corrections and 
Response to Petitions for Reconsideration; Final Rule

  Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / 
Rules and Regulations  

[[Page 33250]]



DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 171, 173, 179, and 180

[Docket Nos. HM-175A and HM-201; Amdt. Nos. 171-137, 173-245, 179-50, 
and 180-8]
RIN 2137-AC85


Crashworthiness Protection Requirements for Tank Cars; Detection 
and Repair of Cracks, Pits, Corrosion, Lining Flaws, Thermal Protection 
Flaws and Other Defects of Tank Car Tanks; Corrections and Response to 
Petitions for Reconsideration

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

ACTION: Final rule; corrections and response to petitions for 
reconsideration.

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

SUMMARY: This final rule revises certain requirements in the Hazardous 
Materials Regulations to improve the crashworthiness of tank cars and 
to increase the probability of detecting critical tank car defects. In 
response to two petitions for reconsideration and other comments, RSPA 
is allowing an analysis using independent mathematical or computer 
modeling procedures to verify compliance with the thermal protection 
standard for certain tank cars. In addition, RSPA is clarifying the 
head-puncture resistance requirements and thermal protection 
requirements, and is making other minor editorial and technical changes 
for clarity. The changes made in this document are intended to ease 
certain regulatory requirements where there will be no adverse effect 
on safety.

DATES: Effective date: The effective date of this final rule is July 1, 
1996.
    Compliance date: Compliance with the regulations, as amended 
herein, is authorized as of June 26, 1996.

FOR FURTHER INFORMATION CONTACT: James H. Rader (telephone 202-366-
0510), Office of Safety Assurance and Compliance; or Thomas A. 
Phemister (telephone 202-366-0635), Office of Chief Counsel, Federal 
Railroad Administration, 400 Seventh Street S.W., Washington, D.C., 
20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 21, 1995, RSPA, with the assistance of the Federal 
Railroad Administration (FRA), published a final rule under Docket Nos. 
HM-175A and HM-201 (60 FR 49048) that addressed the safe performance of 
tank cars used to transport hazardous materials. The final rule amended 
the Hazardous Materials Regulations (HMR) to, among other changes, 
expand the use of thermal protection and head protection systems on 
tank cars.
    FRA gave presentations providing an overview of the final rule at 
numerous outreach meetings that were attended by over 750 
representatives from trade associations, rail carriers, shippers, and 
manufacturers and repairers of tank cars. In addition, RSPA received 
two petitions for reconsideration of certain aspects of the final rule. 
One petition was filed by The Sulphur Institute (TSI) and the other was 
filed jointly by The Fertilizer Institute (TFI) and CF Industries, 
Incorporated (CF). The Railway Progress Institute (RPI) wrote to RSPA 
requesting an editorial correction in Sec. 173.31(b)(6)(ii) to 
eliminate the need for listing each tank car's reporting mark and 
number to FRA for each car modified, reassigned, retired, or removed 
from service. Finally, the Chemical Manufacturers Association (CMA), 
joined later by TFI, petitioned the United States Court of Appeals to 
review the provision in Sec. 173.31(d)(2) that the discovery of a loose 
closure on a tank car would give rise to a ``rebuttable presumption'' 
that a proper inspection had not been performed. Based on the merits of 
the comments, questions and suggestions received and the petitions, 
RSPA is revising the final rule as discussed below. Editorial 
corrections and minor revisions based on suggestions from commenters or 
RSPA's own initiative are discussed in the summary of regulatory 
changes by section.
    Because the amendments adopted herein clarify and relax certain 
provisions of the September 21, 1995 final rule, and impose no new 
regulatory burden on any person, notice and public procedure are 
unnecessary. For these same reasons, these amendments are being made 
effective on the same effective date of the September 21, 1995 final 
rule, without the usual 30-day delay following publication.

II. Discussion

    Head protection: In Sec. 173.31(b)(3)(ii) of the final rule, RSPA 
required full-head protection for tank cars carrying a Class 2 material 
and tank cars constructed from aluminum or nickel plate when they are 
used to transport hazardous material. Section 173.31(b)(3)(iii) 
requires full compliance with this requirement by July 1, 2006. TSI 
stated that the preamble discussion in the final rule indicated that 
the head protection applied only to tank cars used to transport Class 2 
materials and to aluminum and nickel plate tank cars used to transport 
any hazardous material. However, the wording in paragraph (b)(3)(iii) 
could imply that all tank cars must have head protection by the July 1, 
2006 compliance date. TSI petitioned RSPA to revise the provision.
    RSPA agrees with TSI that the wording in Sec. 173.31(b)(3)(iii) 
could be misunderstood. RSPA notes that similar wording is used in 
Sec. 173.31(b)(4)(ii), (e)(2), and (f), which specify the compliance 
period for other requirements adopted in the final rule relating to 
thermal protection, tank cars used to transport certain poisonous-by-
inhalation (PIH) materials, and hazardous substances. Therefore, in 
this document, RSPA is revising paragraphs (b)(3)(iii), (b)(4)(ii), 
(e)(2), and (f)(1) to clarify that these requirements apply to only 
certain tank cars.
    One commenter asked RSPA to clarify the requirements for the head 
protection system required in the September 21 final rule. The 
commenter asked whether the head on the tank car could be considered a 
``head protection system'' if it had adequate thickness. The commenter 
requested that Sec. 173.31 be modified to ``clearly state that the head 
itself may serve as the tank head protection system.'' The commenter 
also asked if ``cars with a configuration essentially equal to the cars 
tested by DOT (DOT/FRA/ORD-92/11) be deemed * * * acceptable without 
further testing''? RSPA and FRA agree that the heads on a tank car can 
be considered a head protection system provided it met the appropriate 
performance criteria; however, RSPA believes placing this revision in 
the testing requirements in Appendix A would be more appropriate. 
Therefore, RSPA is clarifying in Appendix A to Part 179, paragraph 1, 
that a tank-head puncture-resistance system is a function of head 
thickness, jacket thickness, insulation thickness, or the material of 
construction, or a combination of any of these factors. Further, RSPA 
and FRA will accept testing of a specific head protection design to 
qualify like designs.
    Progress reporting: In a letter dated October 19, 1995, RPI asked 
RSPA to revise Sec. 173.31(b)(6)(ii); RPI asserted that reporting the 
mark of each modified car would be an administrative burden and stated 
that what was important was providing information on the number and 
percent of in-service tank cars modified, reassigned, retired, or 
removed to meet the requirement in Sec. 173.31(b)(6). RSPA agrees with 
RPI and has amended paragraph (b)(6)(ii). The provision that each owner 
modify, reassign, retire, or remove at least 50%

[[Page 33251]]

of its in-service tank car fleet used to transport these specified 
hazardous materials within the first half of the compliance period 
(i.e., by July 1, 2001) is retained.
    Thermal protection: In the final rule, the thermal protection 
requirements formerly found in Sec. 179.105-4(a), (b), and (c) were 
moved to new Sec. 179.18. In Sec. 179.18, paragraph (a) specifies that 
thermal protection, when required, must be sufficient to prevent a 
release of the lading, except through the pressure relief device, when 
the tank car is subjected to (1) a pool fire for 100 minutes, and (2) a 
torch fire for 30 minutes. The overall thermal performance of the tank 
and its cargo is influenced by the heat capacity and volatility of the 
cargo, the flow capacity of the pressure relief device, the heat 
transfer characteristics of the tank, and the type of thermal 
protection material used. Paragraph (b)(1) requires verification of 
compliance with this standard by modeling the fire effects on the 
entire surface of the tank car according to the procedures outlined in 
a FRA contract report entitled ``Temperatures, Pressures and Liquid 
Levels of Tank Cars Engulfed in Fires,'' DOT/FRA/OR&D-84/08.11 (1984) 
(hereinafter referred to as ``1984 thermal model''). Prior to adoption 
of the final rule, the regulations did not specify any particular 
method to conduct such an analysis. The final rule also broadened the 
thermal protection requirements to apply to all tank cars used to 
transport Class 2 materials, with certain limited exceptions.
    TFI and CF petitioned RSPA to delay the use of implementation of 
the thermal protection standard and asserted that adoption of the 1984 
thermal model violated the Administrative Procedure Act, 5 U.S.C. 553.
    In the preamble to the final rule, RSPA and FRA discussed in detail 
the objections of TFI and others to extending thermal protection to 
tank cars transporting anhydrous ammonia (and other Division 2.2 
materials), and indicated their agreement with the views of one 
commenter who stated that ``there can be little basis for exempting 
anhydrous ammonia from the thermal protection requirements because it 
is not likely to catch fire once released. Its material poisonous by 
inhalation (PIH) characteristic remains, and the potential for 
rupturing in a non-insulated tank car is high.'' (60 FR 49053) RSPA and 
FRA believe that the NPRM provided adequate notice that they might 
adopt the 1984 thermal model if, as it occurred, that model had not 
been updated by the time the final rule was issued.
    RSPA and FRA are aware of industry support for the 1984 thermal 
model and ongoing research by the FRA will address specific concerns 
about the use of the model. RSPA and FRA believe the 1984 thermal model 
produces supportable results at reasonable cost, but also understand 
that certain persons may wish to continue to perform an analysis using 
independent mathematical or computer modeling procedures to verify 
compliance with the thermal protection standard. Accordingly, in this 
final rule, Sec. 179.18(b)(1) is revised to allow any method of 
verifying compliance with the thermal protection standard; however, 
RSPA and FRA reserve the right to require evidence of a model's 
effectiveness. In addition, RSPA and FRA will accept, without the need 
to ``prove'' the method, the procedures outlined in the 1984 thermal 
model.

III. Summary of Regulatory Changes by Section

    The following review-by-section summarizes the revisions resulting 
from the petitions and comments received in response to the September 
21 final rule.

Part 171

    Section 171.6. In the table in paragraph (b)(2), column 3, under 
the entry for OMB Control Number 2137-0559, the sections identified in 
the collection of information are updated to reflect recent changes.

Part 173

    Section 173.31. Paragraph (b)(2)(ii) is amended by revising the 
phrase ``in class DOT 115 tank cars, tank cars'' to read ``in class DOT 
115 tank cars, single-unit tank cars'' to correct a typographical 
error.
    Based on the TSI petition for reconsideration, paragraph 
(b)(3)(iii) is revised to clarify that existing tank cars being used to 
transport a Class 2 material and tank cars manufactured from aluminum 
or nickel plate that currently have no head protection must have full-
head protection installed by July 1, 2006.
    Paragraph (b)(4)(i) is revised to clarify that tank cars having a 
thermal protection system and tank cars that have an insulation system 
that has a heat flux of no more than 0.613 kilojoules per hour, per 
square meter, per degree Celsius temperature differential (0.03 B.t.u. 
per square foot, per hour, per degree Fahrenheit temperature 
differential) are considered to meet the thermal protection standard. 
For example, tank cars currently marked ``J'' or ``T,'' tank cars 
currently marked ``A'' but having a thermal protection material applied 
(e.g., 2-inches of ceramic fiber and 2-inches of glass fiber found on 
chlorine tank cars), and tank cars that have superior thermal 
resistance, such as tank cars used for carbon dioxide (refrigerated 
liquid) and nitrous oxide (refrigerated liquid), are considered to 
conform to the thermal protection standard. Paragraph (b)(4)(ii) is 
revised to clarify that only tank cars transporting Class 2 materials 
require thermal protection.
    Paragraph (b)(6)(ii) is revised to remove the requirement to 
include the reporting mark of each tank car and to clarify the 
reporting period and due date of the progress report.
    Paragraph (d)(1)(viii) is revised to clarify that ``other safety 
systems'' means ``bottom discontinuity protection.'' Paragraph (d)(2) 
of the final rule contained a rebuttable presumption standard aimed 
specifically at loose closures on tank cars. The ``secure and 
leakproof'' standard presently contained in 49 CFR 173.24(f), coupled 
with the requirement that closures be ``tool tight'' (formerly at 49 
CFR 173.31(b)(3)), are not new requirements, and (d)(2) made clear the 
standard that had always applied. The reasoning behind the new language 
was amply discussed in the preamble to the final rule (60 FR at 49064-
49066). Simply stated, if a hazardous materials package is discovered 
with loose closures, the closures were not designed properly, or they 
were not tightened properly, or they were loosened in transit. Neither 
RSPA nor FRA are aware of hazardous material packaging designs that 
allow closures to loosen in transit by themselves, even when subjected 
to overspeed impacts, as noted in the preamble to the final rule, and 
no commenter offered evidence to disprove this. This does not mean that 
every time closures are discovered loose, the offeror is at fault. The 
preamble in the September 21 final rule listed a number of examples 
where the presumption has been rebutted, taken from FRA's actual 
enforcement of the HMR against railroads and their shippers. (60 FR 
49065)
    CMA, joined later by TFI, petitioned the United States Court of 
Appeals to review the ``rebuttable presumption'' created in relation to 
the discovery of loose closures on tank cars. CMA's primary contention, 
as set forth in its Statement of Issues to be Raised filed with the 
court, is that the presumption as stated shifts the burden of proof in 
civil penalty cases from the government to the respondents and, 
accordingly, is contrary to Rule 301 of the Federal

[[Page 33252]]

Rules of Evidence. Neither RSPA nor FRA agree that the presumption 
shifts the burden of proof to respondents. Rather, consistent with Rule 
301, the presumption simply imposes on respondents the burden of going 
forward with evidence to rebut or meet the presumption. It is not 
intended to shift to respondents the burden of proof in the sense of 
the risk of nonpersuasion, which remains with FRA. However, for the 
sake of clarity and consistency with the original preamble, RSPA and 
FRA have revised the rule. Section 173.31(d)(2) is amended to read:

    Closures on tank cars are required, in accordance with this 
subchapter, to be designed and closed so that under conditions 
normally incident to transportation, including the effects of 
temperature and vibration, there will be no identifiable release of 
a hazardous material to the environment. In any action brought to 
enforce this section, the lack of securement of any closure to a 
tool-tight condition, detected at any point, will establish a 
rebuttable presumption that a proper inspection was not performed by 
the offeror of the car. This presumption may be rebutted by any 
evidence indicating that the lack of securement resulted from a 
specific cause not within the control of the offeror.

    Neither the original rebuttable presumption nor this amendment is 
in any way intended to abrogate the protections or the burdens of Rule 
301. FRA accepts, and always has, the burden of proof inherent in the 
taking of an action for a civil penalty. The revised language makes 
FRA's position clear by removing any suggestion that the rule limits 
the types of evidence that respondents may offer and that the fact 
finder may consider in a rebuttal case. This clarification harmonizes 
the language of Sec. 173.31(d)(2) with the description of the provision 
in the original preamble, which noted that examples of rebuttal 
evidence stated in the rule were not meant to be exclusive. What is 
sought in Sec. 173.31(d)(2) is a recognition of the obligation placed 
on those who offer hazardous materials for transportation--closures on 
tank cars must be tool tight when the car is offered and they must be 
designed and closed so that they remain tool tight ``under conditions 
normally incident to transportation.'' When FRA initiates a civil 
penalty action for a violation of this section of the HMR, and presents 
evidence of a loose closure, it expects the respondent to come forward 
with rebuttal evidence, which may include evidence indicating that the 
loose closures resulted from a specific cause not within the control of 
the offeror. After all the evidence is presented, however, FRA still 
bears the burden of proof.
    Paragraph (e)(2) is revised to specify the tank test pressure and 
other safety provisions required for tank cars transporting a PIH 
material in place of the list of authorized tank car specifications. 
Lastly, paragraph (f)(1) is revised to specify the tank test pressure 
and component requirements for tank cars transporting a hazardous 
substance, listed in Sec. 173.31(f)(2), in place of the list of 
authorized tank car specifications.
    Section 173.314. In response to suggestions made by commenters, 
Note 1 in paragraph (c) is clarified by placing the English and metric 
units in a separate sentence from the definition. In paragraph (n), the 
paragraph heading is amended by removing the word ``chloride'' because 
the paragraph applies only to ``hydrogen'' and not ``hydrogen 
chloride.''

Part 179

    Section 179.2. In paragraph (a)(10), the definition for ``tank car 
facility'' is revised to include an entity that ``qualifies'' or 
``maintains'' tank cars to clarify the definition and its relationship 
to the qualification requirements in Part 180.
    Section 179.7. The introductory text in paragraph (a)(2) is revised 
to clarify that this provision also applies to qualification and 
maintenance programs.
    Paragraph (b)(5) is revised to ensure that the tank car owner's 
qualification and maintenance program is included in the quality 
assurance program that tank car facilities will use to identify the 
characteristics of and elements on each tank car design to be inspected 
and tested. This change will make clear the relationship between the 
written procedures, prescribed in paragraph (d) of this section, and 
the manufacturing, inspection, testing, and maintenance programs.
    Paragraph (b)(7) is amended by replacing the word ``imperfections'' 
with ``nonconformities'' for consistency with the wording used in 
paragraph (a)(3). A ``nonconformity'' means that the area under 
observation does not conform to the acceptance criteria; whereas an 
``imperfection'' implies there is a defect, regardless of whether the 
defect conforms to the pass/fail acceptance criteria.
    Paragraph (b)(9) is amended by removing the list of specific non-
destructive inspection and test methods because authorized methods for 
non-destructive testing (NDT) are now listed in Sec. 180.509(e). 
Paragraph (b)(10) is removed because it is no longer necessary to list 
the qualification requirements for examiners performing specific types 
of visual inspections based on the changes made to paragraph (b)(9). 
Paragraph (b)(11) is renumbered as paragraph (b)(10) and is revised by 
adding the word ``reliability'' to ensure the adequacy and 
repeatability of the non-destructive inspection test technique. 
Paragraphs (b) (12) and (13) are renumbered as paragraphs (b) (11) and 
(12), respectively.
    In paragraph (d), the word ``establish'' is corrected to read 
``provide'' because the owner of the tank car generally will provide 
the written procedures for inspecting the tank to the tank car 
facility. In the September 21 final rule, RSPA stated that these 
procedures belong in the tank car owner's written maintenance plan or 
Association of American Railroads (AAR) Specifications for Tank Cars. 
Further, the approach adopted by RSPA and FRA allows each tank car 
owner the flexibility to develop inspection and test procedures 
appropriate for each unique tank car or series of tank cars based on 
operating and maintenance experience (see 60 FR 49063).
    In paragraph (f), the words ``inspect, or test'' are revised to 
read ``inspect, test, qualify or maintain'' for consistency with 
Sec. 179.2.
    Section 179.16. Paragraph (b) is revised to clarify that two 
methods may be used to achieve compliance with the performance standard 
prescribed for the tank-head puncture-resistance system. The method 
prescribing that the tank-head resistance system must be verified by 
testing in accordance with Appendix A to Part 179 is retained in 
paragraph (b). The method allowing the installation of full-head 
protection (shields) or full tank head jackets, as an alternative to 
verification by testing, is moved to new paragraph (c). In addition, in 
new paragraphs (c)(1) and (c)(2), the phrase ``tank-head puncture-
resistance system'' is corrected to read ``full tank-head protection 
(shields) or full tank-head jackets.''
    Section 179.18. In paragraph (a), the phrase ``safety relief 
valve'' is revised to read ``pressure relief device'' for consistency 
with existing regulations. Paragraph (b)(1) is amended to specify that 
FRA's 1984 thermal model is an optional pre-approved procedure for 
verifying compliance with the thermal protection standard in paragraph 
(a). In paragraph (b)(2), the words ``an unlisted'' are revised to read 
``a new or untried'', for consistency with language used in the opening 
paragraphs of Appendix B to Part 179.
    Section 179.22. In paragraphs (b), (c), and (d), the phrase ``is 
equipped with'' is revised to read ``requires''. This

[[Page 33253]]

change will allow the optional marking of a tank car ``S,'' ``J,'' or 
``T'' when such car has, but does not require, head or thermal 
protection. Tank cars requiring such protection must be marked to show 
the appropriate tank specification.
    Appendix A to Part 179. In Appendix A to Part 179, a second 
sentence is added to paragraph 1, based on comments received, to 
clarify that tank-head puncture-resistance is a function of one or more 
of the following: head thickness, jacket thickness, insulation 
thickness, and the material of construction.

Part 180

    Section 180.501. Paragraph (a) is amended by removing the phrase 
``that the tank cars are in proper condition for transportation'' and 
by inserting in its place ``continuing qualification''. This change 
will help clarify that the tank cars must continue to conform to the 
qualification requirements of subpart F of Part 180.
    Section 180.509. Paragraph (b)(1) is revised to replace the 
requirement to inspect all ``tank cars showing any evidence of a 
condition....that would make them unsafe for transportation'' with a 
requirement to perform a leakage pressure test after reassembly of the 
tank car or service equipment. This revision will clarify that repairs 
or maintenance will not subject the tank to the full inspection and 
test program because repairs and maintenance must be done in accordance 
with Appendix R of the AAR's Specifications for Tank Cars (see also 60 
FR 49060). It also clarifies that a leakage pressure test, as 
prescribed in paragraph (j), must be performed after reassembly of the 
tank car. Paragraph (b)(2) is amended to clarify that leaking tank cars 
or tank cars showing evidence of structural damage are required to be 
inspected and tested without regard to any other periodic inspection or 
test requirement. This change will clarify that the entire tank 
structure is subject to an inspection and test only when the structural 
integrity of the tank may have been compromised.
    RSPA is removing the 10-year limit in paragraph (c)(3)(iii) for 
requalification of inner linings and coatings of tank cars. Paragraph 
(c)(3)(iii)(A) is revised to require that supporting documentation used 
to make inspection and test interval determinations for linings or 
coatings for materials corrosive to the tank be made available to FRA 
personnel upon request. This requirement was in paragraph 
(c)(3)(iii)(B). In addition, in paragraph (c)(3)(iii)(A), the phrase 
``, and acceptance criteria'' is added to the first and second sentence 
to clarify that an owner must determine not only the inspection 
interval and test technique, but also the acceptance criteria for 
linings and coatings. Paragraph (c)(3)(iii)(B) is revised to require 
the owner of a lining or coating to provide the periodic inspection 
interval, test technique, and acceptance criteria to the person 
requalifying the lining or coating. This provision was added in 
response to a National Transportation Safety Board (NTSB) 
recommendation (NTSB R-95-10/R-95-11) that inspectors have sufficient 
access to an owner's acceptance criteria. Section 180.511(e) of the 
final rule defines the lining and coating acceptance criteria as ``no 
evidence of holes or degraded areas.'' Several commenters stated all 
linings and coatings have holes or degraded areas and, therefore, all 
linings and coatings will fail the test. They suggested that the owner 
of the lining or coating should determine the acceptance criteria 
(i.e., the allowable number of discontinuities [e.g., a film defect 
characterized by small pore-like or pin-hole type flaws]), because the 
number of discontinuities will depend on the film-coating or rubber-
lining material, thickness, design, and surface conditions. RSPA and 
FRA agree that the owner's knowledge of the lining or coating will 
assist in determining with greater accuracy safe acceptance criteria 
for linings and coatings.
    The table in paragraph (g)(1)(ii) is revised to convert the 
fractions in column two (``DOT 103 * * *, Top shell'') to their decimal 
equivalent and the second and fourth column headings are revised from 
``Top shell'' to read ``Top shell and head'' to allow limited 
reductions in the tank head thickness.
    In paragraph (i), requirements for inspecting and testing the 
lining and coating based on the owner's acceptance criteria are added 
as discussed earlier in this preamble.
    Paragraph (j) is revised to clarify that the tank must have a 
leakage test after reassembly of a tank car or its service equipment. 
One commenter supplied information on leak testing that shows 
acceptable results at much lower pressures. Another commenter provided 
information showing that, for bubble film testing, the rate of bubble 
formation, the size of bubbles formed, and the rate that individual 
bubbles increase in size are means for estimating the size of a leak 
(the rate of gas flow through a leak). At lower pressures, such as 10-
15 psi, a leak can be detected with acceptable test techniques. Based 
on the comments, the leak test requirement is amended by removing the 
pressure references and by allowing any accepted NDT practices, such as 
bubble emission testing (solution film tests) and ultrasonic leak 
detection. This revision provides additional relief from the 
requirement without compromising safety by authorizing lower test 
pressures and reducing the potential danger of a pneumatic high-
pressure test on an empty tank car.
    In paragraph (l), the paragraph heading is amended by removing the 
phrase ``with metal jackets or thermal protection systems.'' This 
change will clarify that requirements in the paragraph also apply to 
non-jacketed tank cars.
    Section 180.511. Paragraph (e) is amended by replacing the phrase 
``shows no evidence of holes or degraded areas'' with ``conforms to the 
owner's acceptance criteria.'' This change will clarify that the 
acceptance criteria are based on the owner's determinations.
    Section 180.515. Paragraph (a) is amended by replacing the phrase 
``paragraph (b) of this section'' with ``Appendix C of the AAR 
Specifications for Tank Cars.'' This change removes the cross-reference 
to paragraph (b) and simplifies the regulation.
    Paragraph (b) is removed based on the change above. Paragraphs (c) 
and (d) are renumbered (b) and (c) respectively.
    Section 180.519. The first sentence in paragraph (b)(6) is amended 
by replacing the reference ``paragraph (d)(8)'' with ``paragraph (c)'' 
to correct a typographical error, and by replacing the phrase ``1-60 
for January 1960'' with ``01-90 for January 1990'' to update the 
reference date in the example. In paragraph (b)(5), in Retest Table 1, 
the last entry ``BE-275'' is revised to read ``BE-27'' to correct a 
typographical error.
    In paragraph (c), the phrase ``DOT 110A-Z'' is revised to read 
``DOT 110A-W'' to correct a typographical error.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is considered a non-significant regulatory action 
under section 3(f) of Executive Order 12866 and was not reviewed by the 
Office of Management and Budget (OMB). Although the underlying rule was 
considered significant under the Regulatory policies and Procedures of 
the Department of Transportation (44 FR 11034), because it affects a 
significant segment of the tank car industry, this document is 
considered ``non-significant'' because it clarifies and corrects 
provisions of the final rule and provides consistency. This final rule

[[Page 33254]]

does not impose additional requirements and, in fact, provides relief 
in some areas. The net result is that costs imposed under the final 
rule published in the Federal Register on September 21, 1995 are 
reduced, but without a reduction in safety. The original regulatory 
evaluation of the final rule was reexamined but not modified because 
changes made under this rule provide limited relief and thus will 
result in minimal economic impact on the industry.

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 
related 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; or
    (E) The design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or a container 
which is represented, marked, certified, or sold as qualified for use 
in transporting hazardous material.
    This final rule addresses the design, manufacture, repair, and 
other requirements for packages represented as qualified for the use in 
the transportation of hazardous material. 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 no later than two years after the date of issuance. RSPA has 
determined that the effective date of Federal preemption of this final 
rule will be September 24, 1996.
    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. The entities affected 
by the rule are involved in tank car leasing, maintenance, repair and 
use. There are no direct or indirect adverse economic impacts for small 
units of government, businesses, or other organizations.

D. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid OMB 
control number. Information collection requirements in 49 CFR 173.31, 
179.7, and 180.517 are currently approved under OMB control number 
2137-0559. A provision adopted in this final rule, to eliminate a 
requirement to show the reporting mark of each tank car in an annual 
progress report, will result in a minor reduction in the amount of 
burden imposed by this collection. RSPA believes that this change in 
burden is not sufficient to warrant revision of the currently approved 
information collection.

E. 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 
April and October of each year. The RIN numbers 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 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and record keeping requirements, 
Uranium.

49 CFR Part 179

    Hazardous materials transportation, Railroad safety, Reporting and 
record keeping requirements.

49 CFR Part 180

    Hazardous materials transportation, Motor carriers, Motor vehicle 
safety, Packaging and containers, Railroad safety, Reporting and record 
keeping requirements.

     ln consideration of the foregoing, 49 CFR Chapter I is amended as 
follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITION

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

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


Sec. 171.6  [Amended]

    2. In Sec. 171.6, in paragraph (b)(2), column 3 of the table, for 
the entry ``2137-0559'' the references ``173.31 (a)(4), (c)(8), (d)(8), 
Table Footnote (i)'' are removed and the references 
``173.31(b)(6)(ii),'' and ``179.7 (b)(2), (5), (d), 180.517 (a), (b)'' 
are added in numerical order.

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS

    3. The authority citation of Part 173 continues to read as follows:

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


Sec. 173.31  [Amended]

    4. In Sec. 173.31, the following changes are made:
    a. In paragraph (b)(2)(ii), the phrase ``in class DOT 115 tank 
cars, tank cars used'' is revised to read ``in class DOT 115 tank cars, 
single-unit tank cars used''.
    5. ln Sec. 173.31, paragraphs (b)(3)(iii), (b)(4)(i), (b)(4)(ii), 
(b)(6)(ii), (d)(1)(viii), (d)(2), (e)(2) and (f)(1) are revised to read 
as follows:


Sec. 173.31  Use of tank cars.

* * * * *
    (b) * * *
    (3) * * *
    (iii) Except as provided in paragraph (b)(3)(iv) of this section, 
those tank cars specified in paragraphs (b)(3)(i) and (ii) of this 
section not requiring a tank-head puncture resistance system prior to 
July 1, 1996, must have a tank-head puncture resistance system 
installed no later than July 1, 2006.
* * * * *
    (4) * * *
    (i) Tank cars transporting a Class 2 material, except for a class 
106, 107A, 110, and 113 tank car. A tank car equipped with a thermal 
protection system conforming to Sec. 179.18 of this subchapter, or that 
has an insulation system having an overall thermal

[[Page 33255]]

conductance of no more than 0.613 kilojoules per hour, per square 
meter, per degree Celsius temperature differential (0.03 B.t.u. per 
square foot, per hour, per degree Fahrenheit temperature differential), 
conforms to this requirement.
    (ii) A tank car transporting a Class 2 material that was not 
required to have thermal protection prior to July 1, 1996, must be 
equipped with thermal protection no later than July 1, 2006.
* * * * *
    (6) * * *
    (ii) By October 1 of each year, each owner of a tank car subject to 
this paragraph (b)(6) shall submit to the Hazardous Materials Division 
(RRS-12), Office of Safety Assurance and Compliance, Federal Railroad 
Administration, 400 7th Street, SW., Washington, DC 20590-0001, a 
progress report that shows the total number of in-service tank cars 
that need head protection, thermal protection, or bottom-discontinuity 
protection; the number of new or different tank cars acquired to 
replace those tank cars required to be upgraded to a higher service 
pressure; and the total number of tank cars modified, reassigned, 
acquired, retired, or removed from service the previous year.
* * * * *
    (d) * * *
    (1) * * *
    (viii) The external thermal protection system, tank-head puncture 
resistance system, coupler vertical restraint system, and bottom 
discontinuity protection for conditions that make the tank car unsafe 
for transportation.
* * * * *
    (2) Closures on tank cars are required, in accordance with this 
subchapter, to be designed and closed so that under conditions normally 
incident to transportation, including the effects of temperature and 
vibration, there will be no identifiable release of a hazardous 
material to the environment. ln any action brought to enforce this 
section, the lack of securement of any closure to a tool-tight 
condition, detected at any point, will establish a rebuttable 
presumption that a proper inspection was not performed by the offeror 
of the car. That presumption may be rebutted by any evidence indicating 
that the lack of securement resulted from a specific cause not within 
the control of the offeror.
    (e) * * *
    (2) Tank car specifications. A tank car used for a material 
poisonous by inhalation must have a tank test pressure of 20.7 Bar (300 
psi) or greater, head protection, and a metal jacket (e.g., DOT 
105S300W), except that--
    (i) A higher test pressure is required if otherwise specified in 
this subchapter; and
    (ii) Other than as provided in paragraph (b)(6) of this section, a 
tank car which does not conform to the requirements of this paragraph 
(e)(2), and was authorized for the material poisonous by inhalation 
under the regulations in effect on June 30, 1996, may continue in use 
until July 1, 2006.
    (f) * * *
    (1) A tank car used for a hazardous substance listed in paragraph 
(f)(2) of this section must have a tank test pressure of at least 13.8 
Bar (200 psi), head protection and a metal jacket, except that--
    (i) No metal jacket is required if--
    (A) The tank test pressure is 23.4 Bar (340 psi) or higher; or
    (B) The tank shell and heads are manufactured from AAR steel 
specification TC-128, normalized;
    (ii) A higher test pressure is required if otherwise specified in 
this subchapter; and
    (iii) Other than as provided in paragraph (b)(6) of this section, a 
tank car which does not conform to the requirements of this paragraph 
(f)(1), and was authorized for a hazardous substance under the 
regulations in effect on June 30, 1996, may continue in use until July 
1, 2006.
* * * * *
    6. In Sec. 173.314, Note 1 following paragraph (c) table and the 
heading of paragraph (n) are revised to read as follows:


Sec. 173.314  Compressed gases in tank cars and multi-unit tank cars.

* * * * *
    (c) * * *

    Notes:
     1. The percent filling density for liquefied gases is hereby 
defined as the percent ratio of the mass of gas in the tank to the 
mass of water that the tank will hold. For determining the water 
capacity of the tank in kilograms, the mass of one liter of water at 
15.5 deg.C in air is 1 kg. (the mass of one gallon of water at 
60 deg.F in air is 8.32828 pounds).
* * * * *
    (n) Special requirements for hydrogen. * * *
* * * * *

PART 179--SPECIFICATIONS FOR TANK CARS

    7. The authority citation for Part 179 continues to read as 
follows:

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


Sec. 179.2  [Amended]

    8. In Sec. 179.2, in paragraph (a)(10), the words ``inspects, or 
tests'' are revised to read ``inspects, tests, qualifies, or 
maintains''.
    9. In Sec. 179.7, paragraph (b)(10) is removed, and paragraphs 
(b)(11), (b)(12), and (b)(13) are redesignated as paragraphs (b)(10), 
(b)(11), and (b)(12), respectively, and paragraphs (a)(2), (b)(5), 
(b)(9), and (d) are revised to read as follows:


Sec. 179.7  Quality assurance program.

    (a) * * *
    (2) Has the means to detect any nonconformity in the manufacturing, 
repair, inspection, testing, and qualification or maintenance program 
of the tank car; and
* * * * *
    (b) * * *
    (5) A description of the manufacturing, repair, inspection, 
testing, and qualification or maintenance program, including the 
acceptance criteria, so that an inspector can identify the 
characteristics of the tank car and the elements to inspect, examine, 
and test at each point.
* * * * *
    (9) Qualification requirements of personnel performing non-
destructive inspections and tests.
* * * * *
    (d) Each tank car facility shall provide written procedures to its 
employees to ensure that the work on the tank car conforms to the 
specification, AAR approval, and owner's acceptance criteria.
* * * * *


Sec. 179. 7  [Amended]

    10. In addition, in Sec. 179.7, the following changes are made:
    a. In paragraph (b)(7) the word ``imperfections'' is revised to 
read ``nonconformities''.
    b. In newly designated paragraph (b)(10), the phrase ``and 
reliability'' is added after the word ``sensitivity''.
    c. In paragraph (f), the words ``inspect, or test'' are revised to 
read ``inspect, test, qualify or maintain''.
    11. In Sec. 179.16, paragraph (b) is revised and a new paragraph 
(c) is added, to read as follows:


Sec.  179.16  Tank-head puncture-resistance systems.

* * * * *
    (b) Verification by testing. Compliance with the requirements of 
paragraph (a) of this section shall be verified by full-scale testing 
according to Appendix A of this part.
    (c) Alternative compliance by other than testing. As an alternative 
to

[[Page 33256]]

requirements prescribed in paragraph (b) of this section, compliance 
with the requirements of paragraph (a) of this section may be met by 
installing full-head protection (shields) or full tank-head jackets on 
each end of the tank car conforming to the following:
    (1) The full-head protection (shields) or full tank-head jackets 
must be at least 1.27 cm (0.5 inch) thick, shaped to the contour of the 
tank head and made from steel having a tensile strength greater than 
379.21 N/mm2 (55,000 psi).
    (2) The design and test requirements of the full-head protection 
(shields) or full tank-head jackets must meet the impact test 
requirements of Section 5.3 of the AAR Specifications for Tank Cars.
    (3) The workmanship must meet the requirements of Section C, Part 
II, Chapter 5 of the AAR Specifications for Design, Fabrication, and 
Construction of Freight Cars.
    12. In Sec. 179.18, paragraph (b)(1) is revised to read as follows:


Sec. 179.18  Thermal protection systems.

* * * * *
    (b) * * * (1) Compliance with the requirements of paragraph (a) of 
this section shall be verified by analyzing the fire effects on the 
entire surface of the tank car. The analysis must consider the fire 
effects on and heat flux through tank discontinuities, protective 
housings, underframes, metal jackets, insulation, and thermal 
protection. A complete record of each analysis shall be made, retained, 
and upon request, made available for inspection and copying by an 
authorized representative of the Department. The procedures outlined in 
``Temperatures, Pressures, and Liquid Levels of Tank Cars Engulfed in 
Fires,'' DOT/FRA/OR&D-84/08.11, (1984), Federal Railroad 
Administration, Washington, DC (available from the National Technical 
Information Service, Springfield, VA) shall be deemed acceptable for 
analyzing the fire effects on the entire surface of the tank car.
* * * * *


Sec. 179.18  [Amended]

    13. In addition, in Sec. 179.18, in paragraph (a) introductory 
text, the phrase ``safety relief valve'' is revised to read ``pressure 
relief device'' and in paragraph (b)(2) the phrase ``an unlisted'' is 
revised to read ``a new or untried''.


Sec. 179.22  [Amended]

    14. In Sec. 179.22, in paragraphs (b), (c) and (d), the wording 
``is equipped with'' is revised to read ``requires'' each place it 
appears.
    15. In appendix A to part 179, paragraph 1 is amended by adding a 
sentence at the end of the paragraph to read as follows:

Appendix A to Part 179--Procedures for Tank-Head Puncture-
Resistance Test

     1. * * * Tank-head puncture-resistance is a function of one or 
more of the following: Head thickness, jacket thickness, insulation 
thickness, and material of construction.
* * * * *

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

    16. The authority citation for Part 180 continues to read as 
follows:

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


Sec. 180.501  [Amended]

    17. In Sec. 180.501, paragraph (a) is amended by removing the 
phrase ``that the tank cars are in proper condition for 
transportation'' and adding in its place, the phrase,``continuing 
qualification''.
    18. In Sec. 180.509, a sentence is added at the end of paragraph 
(b)(1); the introductory text of paragraph (b), and paragraphs 
(c)(3)(iii) (A) and (B), (j), and the heading of paragraph (l) are 
revised to read as follows:


Sec. 180.509  Requirements for inspection and test of specification 
tank cars.

* * * * *
    (b) * * *. Without regard to any other periodic inspection and test 
requirements, a tank car must have an appropriate inspection and test 
according to the type of defect and the type of maintenance or repair 
performed if:
    (1) * * *. An example is if maintenance is performed to replace a 
fitting, then only a leakage pressure test needs to be performed.
* * * * *
    (c) * * *
    (3) * * *
    (iii) * * *
    (A) When a lining or coating is applied to protect the tank shell 
from the lading, the owner of the lining or coating shall determine the 
periodic inspection interval, test technique, and acceptance criteria 
for the lining or coating. The owner must maintain at its principal 
place of business all supporting documentation used to make such a 
determination, such as the lining or coating manufacturer's recommended 
inspection interval, test technique, and acceptance criteria. The 
supporting documentation must be made available to FRA upon request.
    (B) The owner of the lining or coating shall provide the periodic 
inspection interval, test technique, and acceptance criteria for the 
lining or coating to the person responsible for qualifying the lining 
and coating.
* * * * *
    (j) Leakage pressure test. After reassembly of a tank car or 
service equipment, a tank car facility must perform a leak test on the 
tank or service equipment to detect leakage, if any, between manway 
covers, cover plates, and service equipment. The test may be conducted 
with the hazardous material in the tank. When the test pressure exceeds 
the start-to-discharge or burst pressure of a pressure relief device, 
the device must be rendered inoperative. The written procedures and 
test method for leak testing must ensure for the sensitivity and 
reliability of the test method and for the serviceability of components 
to prevent premature failure.
* * * * *
    (l) Inspection and test compliance date for tank cars. * * *
* * * * *


Sec. 180.509  [Amended]

    19. In addition, in Sec. 180.509, the following changes are made:
    a. Paragraph (c)(3)(iii) introductory text is amended by removing 
the phrase ``, and when a lining or coating is applied to protect the 
tank shell from the lading, an interval based on the owner's 
determination for the lining or coating, but not greater than every 10 
years''.
    b. In paragraph (g)(1)(ii) introductory text, the phrase 
``reduction in thickness'' is revised to read ``reduction in the 
required minimum thickness''.
    c. In the paragraph (g)(1)(ii) table, in the second column, for the 
third and fifth entries, the parenthetical ``(\3/16\ inch)'' is revised 
to read ``(0.188 inch)'' each place it appears; and in the second and 
fourth columns, the column heading ``Top shell'' is revised to read 
``Top shell and tank head'' for each column.
    d. In paragraph (i), the phrase ``and test technique'' is revised 
to read ``, test technique, and acceptance criteria''.


Sec. 180.511  [Amended]

    20. ln Sec. 180.511, in paragraph (e), the phrase ``shows no 
evidence of holes or degraded areas'' is revised to read ``conforms to 
the owner's acceptance criteria''.


Sec. 180.515  [Amended]

    21. ln Sec. 180.515, the following changes are made:

[[Page 33257]]

    a. In the first sentence in paragraph (a), the phrase ``paragraph 
(b) of this section'' is revised to read ``Appendix C of the AAR 
Specifications for Tank Cars''.
    b. Paragraph (b) is removed and paragraphs (c) and (d) are 
redesignated as paragraphs (b) and (c) respectively.


Sec. 180.519  [Amended]

    22. In Sec. 180.519, the following changes are made:
    a. In paragraph (b)(5), in the first column of Retest Table 1, the 
last entry ``BE-275'' is revised to read ``BE-27''.
    b. The first sentence of paragraph (b)(6) is amended by revising 
the reference paragraph ``(d)(8)'' to read ``(c)'', and revising the 
phrase ``1-60 for January 1960'' to read ``01-90 for January 1990''.
    c. In paragraph (c), the phrase ``DOT 110A-Z'' is revised to read 
``DOT 110A-W''.

    Issued in Washington, DC, on June 10, 1996, under authority 
delegated in 49 CFR Part 1.
Kelley S. Coyner,
Deputy Administrator.
[FR Doc. 96-15273 Filed 6-25-96; 8:45 am]
BILLING CODE 4910-60-P