[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Rules and Regulations]
[Pages 1770-1802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31056]
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Part II
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 171, 172, et al.
Hazardous Materials: Improving the Safety of Railroad Tank Car
Transportation of Hazardous Materials; Final Rule
Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules
and Regulations
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173, 174 and 179
[Docket No. FRA-2006-25169]
RIN 2130-AB69
Hazardous Materials: Improving the Safety of Railroad Tank Car
Transportation of Hazardous Materials
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: The Pipeline and Hazardous Materials Safety Administration
(PHMSA), in coordination with the Federal Railroad Administration
(FRA), is amending the Hazardous Materials Regulations to prescribe
enhanced safety measures for rail transportation of poison inhalation
hazard (PIH) materials, including interim design standards for railroad
tank cars. Pending validation and implementation of the crashworthiness
performance standard proposed in the NPRM issued under this docket on
April 1, 2008, the rule mandates commodity-specific improvements in
safety features and design standards for newly manufactured DOT
specification tank cars. The rule also adopts a 50 mph speed
restriction for loaded rail tank cars transporting PIH materials; an
improved top fittings performance standard; an allowance to increase
the gross weight of tank cars that meet the enhanced standards; and
adoption of the industry standard for normalized steel in certain tank
cars. The interim standards established in this rule will enhance the
accident survivability of PIH tank cars when compared to existing
regulations while providing tank car owners continued flexibility in
car selection. Adoption of this interim standard will ensure the
ongoing availability of tank cars while PHMSA and FRA complete research
and testing on advanced tank car design to validate and implement a
more stringent performance standard.
DATES: Effective Date: March 16, 2009. The incorporation by reference
of the publication listed in the rule is approved by the Director of
the Federal Register as of March 16, 2009.
Incorporation by Reference Date: The incorporation by reference of
the publications adopted in Sec. 171.7 of this final rule has been
approved by the Director of the Federal Register as of March 16, 2009.
FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229,
Office of Safety Assurance and Compliance, Federal Railroad
Administration; Lucinda Henriksen, (202) 493-1345, Office of Chief
Counsel, Federal Railroad Administration; or Michael Stevens, (202)
366-8553, Office of Hazardous Materials Standards, Pipeline and
Hazardous Materials Safety Administration.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
AAR--Association of American Railroads
ASLRRA--American Short Line and Regional Railroad Association
BNSF--BNSF Railway Company
BLET--Brotherhood of Locomotive Engineers and Trainmen
CPC--Casualty Prevention Circular
CI--Chlorine Institute
CP--Canadian Pacific
CPR--Conditional Probability of Release
CSXT--CSXT Transportation
Department--U.S. Department of Transportation
DOW--Dow Chemical Company
DOT--U.S. Department of Transportation
Federal Hazmat Law--Federal hazardous materials transportation law
(49 U.S.C. 5101 et seq.)
FRA--Federal Railroad Administration
HMR--Hazardous Materials Regulations
NGRTCP--Next Generation Rail Tank Car Project
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
OMB--Office of Management and Budget
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Poison Inhalation Hazard
R&D--Research and Development
RSAC--Railroad Safety Advisory Committee
RSI--Railway Supply Institute
SAFETEA-LU--Safe, Accountable, Flexible, Efficient, Transportation
Equity Act: A Legacy for Users, Public Law 109-59
SBA--Small Business Administration
Tank Car Manual--Association of American Railroads Tank Car
Committee Tank Car Manual
TCC--Association of American Railroads Tank Car Committee
TFI--The Fertilizer Institute
TIH--Toxic Inhalation Hazard
TSA--Department of Homeland Security, Transportation Security
Administration
Trinity--Trinity Industries, Inc.
UTU--United Transportation Union
Union Tank--Union Tank Car Company
UP--Union Pacific Railroad Company
Volpe--Volpe National Transportation Systems Center
Table of Contents for Supplementary Information
I. Background
II. Statutory Authority, Congressional Mandate, and NTSB
Recommendations
III. The Proposed Rule
IV. Discussion of Comments on the Proposed Rule
V. Discussion of Comments on Petitions for Interim Tank Car
Standards
VI. Summary of Rule
VII. Section-by-Section Analysis
VIII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
B. Executive Order 12866 and DOT Regulatory Policies and
Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act and Executive Order 13272
F. Paperwork Reduction Act
G. Regulation Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
I. Background
On April 1, 2008, PHMSA published a notice of proposed rulemaking
(NPRM) proposing revisions to the Hazardous Materials Regulations (HMR;
49 CFR Parts 171-180) to improve the crashworthiness protection of
railroad tank cars designed to transport materials that are poisonous,
or toxic, by inhalation (referred to as PIH or TIH materials). 73 FR
17818. The NPRM proposed enhanced tank car performance standards for
head and shell impacts; operational restrictions for trains hauling
tank cars containing PIH materials; interim operational restrictions
for trains hauling tank cars used to transport PIH materials, but not
meeting the enhanced performance standards; and an allowance to
increase the gross weight on rail of tank cars that meet the enhanced
tank-head and shell puncture-resistance systems.
The NPRM provided detailed background information on the need to
enhance the crashworthiness protection of railroad tank cars,
government and industry efforts to improve the safety of hazardous
materials transportation via railroad tank car, and the Department's
research efforts focused on tank car safety. As we explained in the
NPRM, although rail transportation of hazardous materials is a safe
method for moving large quantities of hazardous materials over long
distances, rail tank cars used to contain these materials have not been
designed to withstand the force of high-speed derailments and
collisions. In the last several years, rail tank cars have been
breached in numerous accidents, resulting in large releases of
hazardous materials. Of particular concern, three of these accidents
involved PIH materials: (1) The January 18, 2002, derailment of a
Canadian Pacific (CP) train in Minot, North Dakota which resulted in a
catastrophic release of anhydrous ammonia; (2) the June 28, 2004
collision
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between trains operated by Union Pacific Railroad Company (UP)
Burlington Northern and Santa Fe Railway Company (now known as BNSF
Railway Company) in Macdona, Texas, involving a breach of a loaded tank
car containing chlorine; and (3) the January 6, 2005 collision between
two Norfolk Southern Railway Company (NS) trains in Graniteville, South
Carolina, also involving the catastrophic rupture of a loaded chlorine
tank car. As noted in the NPRM, although none of these accidents was
caused by the hazardous materials tank cars, the failure of the tank
cars involved led to fatalities, injuries, evacuations, and property
and environmental damage.
In response to these accidents, related NTSB recommendations, and
the Congressional mandate for tank car safety improvements in the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users, Public Law 109-59 (SAFETEA-LU), PHMSA and FRA initiated a
comprehensive review of design and operational factors that affect rail
tank car safety. As noted in the NPRM, DOT's on-going and multi-faceted
strategy to enhance the safety of rail tank cars and transportation of
hazardous materials by rail tank cars utilizes a risk-based, system-
wide approach that addresses: (1) Tank car design and manufacturing;
(2) railroad operational issues such as human factors, track conditions
and maintenance, wayside hazardous detectors, signals and train control
systems; and (3) improved planning and training for emergency response.
Subsequent to publication of the NPRM, DOT hosted a two-day
technical symposium on tank car crashworthiness and held a series of
public meetings to solicit feedback on the NPRM. Although participants
at both the technical symposium and public meetings generally agreed
with DOT's goal of improving the accident survivability of tank cars,
commenters expressed practical concerns regarding DOT's specific
proposals.
Also subsequent to publication of the NPRM, the Association of
American Railroads (AAR) renewed the effectiveness of its previously
suspended interchange standard for tank cars transporting PIH materials
(Casualty Prevention Circular 1187 or CPC-1187). AAR's CPC-1187
implements interchange standards for the shell, head, and top fittings
of PIH tank cars. Specifically, AAR's CPC-1187 interchange standard
contains tank car head and shell design standards and an alternate
performance standard based on the metric AAR terms ``conditional
probability of release.'' The head and shell requirements of CPC-1187
can be met by using DOT specification tank cars of higher tank classes
than required by DOT standards; however, tank cars built to meet the
CPC-1187 standard would not meet the standards DOT proposed in the
NPRM. CPC-1187 also requires tank cars used to transport PIH materials
be equipped with top fittings protection systems designed to withstand,
without loss of lading, a rollover with a linear velocity of 9 mph and
that the top fittings protection system to be attached to the tank by
welding.
In addition, in response to the NPRM, the overwhelming majority of
industry commenters have expressed the view that the standards proposed
in the NPRM are ``technology-forcing'' and that the tank car industry
currently lacks the technological and engineering ability to
manufacture tank cars meeting the proposed standards. According to
commenters, the net effect of these ``competing'' standards in CPC-1187
and the NPRM has been that shippers and tank car purchasers (e.g., tank
car lessors) cannot currently purchase PIH tank cars with any assurance
that the cars will have a reasonable economic life.\1\ Accordingly,
commenters indicate that shippers and tank car owners are being forced
to forego the phasing out of aging tank cars that they would normally
retire and replace with new cars, potentially resulting in a shortage
of cars needed for the transportation of PIH materials in the short
term. While commenters generally express support for the development of
a performance standard related to tank car puncture resistance, they
recommend that DOT provide an interim solution to ensure the
availability of PIH tank cars in the time period before DOT's proposed
performance standards are finalized and tank cars can be built to meet
those standards.
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\1\ The NPRM proposed the complete phase-out within eight years
of all PIH tank cars not meeting the proposed performance standards.
As noted above, cars built to meet the requirements of CPC-1187
would not meet the standards proposed in the NPRM and because of
weight restrictions, it is possible that cars built to meet CPC-1187
might not be retrofitable to meet any portion of the final
performance standard promulgated in this rulemaking.
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In this connection, in a petition dated July 3, 2008 (Joint
Petition), the American Chemistry Council (ACC), American Short Line
and Regional Railroad Association (ASLRRA), the Association of American
Railroads (AAR), Chlorine Institute (CI), and Railway Supply Institute
requested that the Department authorize interim standards for tank cars
transporting PIH materials. In a separate petition filed on July 7,
2008, The Fertilizer Institute (TFI) made a similar request.\2\ Each of
these petitions is discussed in more detail below.
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\2\ PHMSA assigned petition numbers P-1525 and P-1524 to the
Joint Petition and TFI petition, respectively. On July 23, 2008,
PHMSA published a notice soliciting public comment on the petitions
under docket number PHMSA-2008-0182. 73 FR 42765.
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Based on comments received in response to the NPRM and the two
petitions for rulemaking, in this rule FRA and PHMSA are adopting
interim standards for tank cars used to transport PIH materials. This
rule is an interim response based on current engineering judgments
within the affected market sector. DOT intends to continue working with
the industry to complete research and testing on advanced tank car
design. Accordingly, we anticipate additional regulatory proceedings as
the results of continuing government and private sector research and
development are validated and the resulting technology is successfully
implemented by industry. DOT intends that the standards set forth in
this rule shall apply in the meantime, pending the development and
commercialization of more stringent performance standards.
II. Statutory Authority, Congressional Mandate, and NTSB
Recommendations
Federal hazmat law authorizes the Secretary of DOT (Secretary) to
``prescribe regulations for the safe transportation, including
security, of hazardous material in intrastate, interstate, and foreign
commerce.'' The Secretary has delegated this authority to PHMSA. 49 CFR
1.53(b). The HMR, promulgated by PHMSA under the authority provided in
Federal hazmat law, are designed to achieve three goals: (1) To ensure
that hazardous materials are packaged and handled safely and securely
during transportation; (2) to provide effective communication to
transportation workers and emergency responders of the hazards of the
materials being transported; and (3) to minimize the consequences of an
incident should one occur. The hazardous material regulatory system is
a risk management system that is prevention-oriented and focused on
identifying a safety or security hazard and reducing the probability
and quantity of a hazardous material release.
Under the HMR, hazardous materials are categorized by analysis and
experience into hazard classes and packing groups based upon the risks
that they present during transportation. The HMR specify appropriate
packaging and handling requirements for hazardous materials, and
require a
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shipper to communicate the material's hazards through the use of
shipping papers, package marking and labeling, and vehicle placarding.
The HMR also require shippers to provide emergency response information
applicable to the specific hazard or hazards of the material being
transported. Finally, the HMR mandate training requirements for persons
who prepare hazardous materials for shipment or who transport hazardous
materials in commerce. The HMR also include operational requirements
applicable to each mode of transportation.
The Secretary also has authority over all areas of railroad
transportation safety (Federal railroad safety laws, 49 U.S.C. 20101 et
seq.), and has delegated this authority to FRA. 49 CFR 1.49. Pursuant
to its statutory authority, FRA promulgates and enforces a
comprehensive regulatory program (49 CFR parts 200-244) to address
railroad track; signal systems; railroad communications; rolling stock;
rear-end marking devices; safety glazing; railroad accident/incident
reporting; locational requirements for the dispatch of U.S. rail
operations; safety integration plans governing railroad consolidations;
merger and acquisitions of control; operating practices; passenger
train emergency preparedness; alcohol and drug testing; locomotive
engineer certification; and workplace safety. FRA inspects railroads
and shippers for compliance with both FRA and PHMSA regulations. FRA
also conducts research and development to enhance railroad safety. In
addition, both PHMSA and FRA are working with the emergency response
community to enhance its ability to respond quickly and effectively to
rail transportation accidents involving hazardous materials.
As noted above, on August 10, 2005, Congress passed SAFETEA-LU,
which added section 20155 to the Federal hazmat law. 49 U.S.C. 20155.
In part, section 20155 required FRA to (1) validate a predictive model
quantifying the relevant dynamic forces acting on railroad tank cars
under accident conditions, and (2) initiate a rulemaking to develop and
implement appropriate design standards for pressurized tank cars.
In response to the accident in Minot, North Dakota, on January 18,
2002, in which a train derailment resulted in the catastrophic release
of anhydrous ammonia leading to one death and 11 serious injuries, the
NTSB made four safety recommendations to FRA specific to the structural
integrity of hazardous material tank cars. The NTSB recommended that
FRA analyze the impact resistance of steels in the shells of pressure
tank cars constructed before 1989 and establish a program to rank those
cars according to their risk of catastrophic failure and implement
measures to eliminate or mitigate this risk. The NTSB also recommended
that FRA validate the predictive model being developed to quantify the
maximum dynamic forces acting on railroad tank cars under accident
conditions and develop and implement tank car design-specific fracture
toughness standards for tank cars used for the transportation of
materials designated as Class 2 hazardous materials under the HMR. In
response to the accident in Graniteville, South Carolina, on January 6,
2005, in which a train collision resulted in the breach of a tank car
containing chlorine and nine people died from inhalation of chlorine
vapors, the NTSB recommended, in part, that FRA ``require railroads to
implement operating measures such as * * * reducing speeds through
populated areas to minimize impact forces from accidents and reduce the
vulnerability of tank cars transporting'' certain highly-hazardous
materials. Each of these NTSB recommendations is discussed in the
NPRM.\3\
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\3\ See 73 FR 17818, 17826-28. The NPRM indicated that NTSB
classified FRA's responses to Safety Recommendations R-05-15 and R-
05-16 stemming from the Graniteville accident as ``Open-Response
Received.'' Subsequently, in a letter dated June 7, 2007, however,
NTSB classified these recommendations as ``Closed-Unacceptable
Action'' and ``Open-Unacceptable Response.'' A copy of NTSB's June
7, 2007, letter is available in the docket.
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The Department considers this rule responsive to section 20155's
mandate, as well as to the NTSB recommendations. As discussed in more
detail in section IV below, however, we recognize that this rule does
not directly implement each of the relevant NTSB recommendations.
Instead, the interim standards we are adopting in this rule are only
the first part of a longer-term strategy to enhance the safety of rail
shipments of PIH materials. Improving the safety and security of
hazardous materials transportation via railroad tank car is an on-going
process. We plan to continue to develop and validate a performance
standard to further improve the crashworthiness of PIH tank cars, with
a view towards incorporating the improved performance standard into the
HMR. Going forward, FRA's hazardous materials research and development
program will continue to focus on reducing the rate and severity of
hazardous materials releases by optimizing the manufacture, operation,
inspection, and maintenance procedures for the hazardous materials tank
car fleet. In addition, we plan to continue our holistic approach to
rail safety, as discussed in detail in the NPRM, including railroad
operating and maintenance practices; railroad routing practices;
shipper commodity handling practices; and emergency response
procedures.
III. The Proposed Rule
Generally, the NPRM proposed a two-pronged approach to enhancing
the accident survivability of tank cars. First, the NPRM proposed to
limit the operating conditions of tank cars transporting PIH materials.
Second, the NPRM proposed enhanced tank-head and shell puncture
resistance standards.
The NPRM described FRA's research demonstrating that the speed at
which a train is traveling has the greatest effect on the closing
velocity between cars involved in a derailment or accident situation
and that the secondary car-to-car impact speed in such situations is
approximately one-half the initial train speed (the speed of the train
at the time of the collision or derailment). Based on this research,
the Department recognized that limiting the operating speed of tank
cars transporting PIH materials is one potential method to impose a
control on the forces experienced by railroad tank cars. Accordingly,
we proposed two operational speed restrictions:
(1) A maximum speed limit of 50 mph for all trains transporting
railroad tank cars containing PIH materials; and
(2) A maximum speed limit of 30 mph in non-signaled (i.e., dark)
territory for all trains transporting railroad tank cars containing PIH
materials, unless the material is transported in a tank car meeting the
enhanced tank-head and shell puncture-resistance systems performance
standards of this proposal.
As an alternative to the maximum speed limit of 30 mph in dark
territory, we proposed submission for FRA approval of a complete risk
assessment and risk mitigation strategy establishing that operating
conditions over the subject track provide at least an equivalent level
of safety as that provided by signaled track.
In conjunction with these speed restrictions, we also proposed
improved tank-head and shell puncture-resistance standards. The
enhanced standards proposed to require tank cars that transport PIH
materials in the United States to be designed and manufactured with a
shell puncture-resistance system capable of withstanding impact at 25
mph and with a tank-head puncture resistance system capable of
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withstanding impact at 30 mph. To ensure timely replacement of the PIH
tank car fleet, we proposed an eight-year implementation schedule,
contemplating design, development, and manufacturing ramp-up in the
first two years, replacement of 50% of the fleet within the next three
years, and replacement of the remaining 50% of the fleet in the
following three years. As part of this implementation plan, we proposed
the expedited replacement of tank cars used for the transportation of
PIH materials manufactured before 1989 with non-normalized steel head
or shell construction.\4\ Recognizing that improvements in tank car
performance have historically relied in large part on thicker and/or
stronger steel, which brings with it a corresponding addition to the
empty weight of the tank car, we also proposed an allowance to increase
the gross weight on rail for tank cars designed to meet the proposed
enhanced tank-head and shell puncture-resistance systems performance
standards (up to 286,000 pounds).
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\4\ Non-normalized steel is steel that has not been subjected to
a specific heat treatment procedure that improves the steel's
ability to resist fracture.
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IV. Discussion of Comments on the Proposed Rule
Subsequent to publication of the NPRM, DOT hosted a technical
symposium on tank car crashworthiness and conducted four public
meetings to solicit comment on the proposed rule. The intent of the
technology symposium was to provide a forum for FRA and PHMSA to share
with the tank car industry the agencies' collective knowledge and
experience in the testing and design of rail tank cars significantly
more crashworthy than conventional tank cars, as well as to provide
parties involved in the manufacturing, repairing, and testing of tank
cars an opportunity to openly discuss issues related to the
manufacturing of such tank cars.
We received approximately 50 written comments in response to the
NPRM, including comments from members of the railroad and PIH shipping
industry, trade organizations, local governments, tank car
manufacturing and repair companies, members of Congress, as well as
members of the general public. Several of these commenters also
provided verbal comments at the public meetings held during the
subsequent comment period. The following discussion provides an
overview of the written and verbal comments DOT received in response to
the NPRM and how DOT has chosen to address those comments in this rule.
As previously noted, two petitions were filed requesting DOT to
establish interim tank car standards; comments on these petitions are
set forth in Section V. More detailed discussions of specific comments
on the NPRM and the petitions for interim standards, as well as DOT's
responses, can be found in the relevant Section-by-Section analysis
portion of the preamble.
Generally, commenters recognize the need to improve the
crashworthiness of PIH tank cars and express support for DOT's efforts
in the NPRM. For example, the NTSB supports the stated goals of the
NPRM and states that many aspects of the proposal, when implemented,
will significantly improve the safety of the transportation of PIH
materials in railroad tank cars. The AAR applauds DOT's issuance of the
NPRM as a ``truly innovative approach'' to tank car design and CI
indicates that the organization ``fully supports the major step
forward'' DOT took in issuing the proposed rule. Although commenters
also generally support the development of a performance standard
focused on tank car puncture resistance such as that proposed \5\
commenters also raise important practical concerns regarding DOT's
specific proposals. The majority of commenters' concerns are focused on
(1) the technical basis for and feasibility of achieving, in the short
term, the proposed tank-head and shell puncture resistance performance
standards; (2) the proposed eight-year implementation period, including
the proposed accelerated replacement of cars constructed with non-
normalized steel; (3) the proposed allowance to increase the gross
weight on rail of PIH tank cars; (4) the proposed speed restrictions,
particularly the interim 30 mph speed restriction in dark territory for
tank cars not meeting the proposed enhanced performance standards, but
used to transport PIH materials; (5) the lack of proposed enhancements
to PIH tank car top fittings; (6) the need for an interim standard for
tank cars used to transport PIH materials; and (7) the costs associated
with implementing the proposed rule.
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\5\ Trinity Industries, Inc. (Trinity), a tank car builder,
comments that issuance of the proposed puncture resistance
performance standard is inconsistent with SAFETEA-LU's mandate to
develop ``appropriate design standards'' for pressurized rail tank
cars. Although we respectfully disagree with Trinity's comment, we
note that the issue would not appear to be relevant to this rule in
that we are adopting tank car design standards.
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A. Proposed Performance Standards
The majority of commenters express the view that although the 25
and 30 mph shell and head-impact puncture resistance standards are
laudable goals, such proposed standards are ``technology forcing'' and
achieving such impact resistance utilizing existing technology and
currently accepted tank car engineering practices is not possible in
the short term. For example, Dow, a driving force behind the Next
Generation Rail Tank Car Project (NGRTCP),\6\ suggests that although
the 25 mph shell-impact puncture resistance system standard (which
represents a six-fold performance improvement over existing chlorine
tank cars) may be obtainable based upon the design concepts and
technologies developed by the NGRTCP, the proposed 30 mph head impact
standard (which represents a ten to twelve-fold improvement over
existing chlorine cars) is outside the range of solutions contemplated
by the Project. Noting that no existing tank car designs under review
as part of the NGRTCP would meet the proposed head and shell-impact
standards, tank car builders estimate that it will take up to ten years
until a design proven to meet the proposed performance standards (both
25 mph shell-impact and 30 mph head-impact puncture resistance
standards) could be ready for full-scale implementation. Other
commenters indicate that it may take approximately three years until a
design proven to meet the proposed 25 mph puncture resistance standard
will be ready for full-scale implementation. These commenters' concerns
regarding the time required until the tank car industry can meet the
proposed performance standards are discussed in more detail below with
other comments related to the proposed implementation period.
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\6\ The NGRTCP is discussed in detail in the preamble to the
NPRM. See 73 FR 17833-34.
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Some commenters, noting the synergy between the proposed 50 mph
speed limit for PIH tank cars and the 25 mph shell impact puncture
resistance performance standard, question the efficacy of the proposed
30 mph head-impact standard. As explained in the NPRM and by FRA staff
at the May 28, 2008, public meeting, the 30 mph head impact standard
was intended to protect against impacts when a tank car is involved in
the primary collision (i.e., impacts other than the secondary car-to-
car impacts upon which the proposed 50 mph speed limit was based). FRA
believes that in such instances, it is desirable to have additional
head-impact protection strategies available to help reduce the risk of
loss of lading and that the available space in front of the tank-head
will accommodate sufficient energy absorbing material
[[Page 1774]]
between the head shield or jacket and the inner commodity tank. See 73
FR 17849.
NTSB acknowledges that establishing tank car puncture resistance at
25 mph would be an improvement that would enhance tank car safety. NTSB
suggests, however, that such standard does not represent a standard for
ensuring safety in 50-mph collisions because the general premise upon
which the standard is based (i.e., the finding by the Volpe National
Transportation Systems Center (Volpe) that the secondary car-to-car
impact speed is one-half that of the initial train speed) is not
applicable to all derailment conditions. Specifically, noting the two-
dimensional, linear model utilized in Volpe's research, NTSB recommends
the development and validation of more technically rigorous models that
include consideration of the many three-dimensional, highly nonlinear
dynamic responses that occur in derailment situations. Noting that its
Safety Recommendation R-04-06 contemplates the consideration of
different types of critical-loading conditions observed in derailments,
NTSB suggests that although improving the puncture-resistance of tank
cars is an important safety enhancement, by itself, it does not fully
respond to Safety Recommendation R-04-06. Accordingly, NTSB suggests
that additional modeling and validation is necessary to understand the
full range of dynamic responses that occur in derailments. We
appreciate NTSB's comments in this regard and as we pursue continued
research and development on advanced car design, we will continue to
further refine our quantification of the dynamic forces acting on
railroad tank cars in accident conditions.
CI notes that the proposed 30 mph head-impact standard represents
an ``exponential increase in severity over the existing head protection
requirement'' and questions whether the proposed standard goes beyond
what is necessary to protect the integrity of the tank in real world
accident scenarios. Noting its own efforts to address tank car puncture
resistance, CI explains that its research demonstrates that a
significant improvement (2x) in puncture resistance is possible if tank
cars are constructed of steels with higher fracture toughness than AAR
TC 128B steel (the steel typically used in tank car construction).
Consistent with its Safety Recommendation R-04-07, NTSB similarly
recommends that a standard for the fracture toughness of tank car
construction materials be included in any final DOT tank car standard.
NTSB suggests that the inherent material variability identified through
FRA's research is common to the class of steel utilized and has been
used in other applications to define fracture-based criteria. Although
DOT believes that material properties play an important role in the
performance of a tank car subjected to fatigue type loading, FRA's
research has clearly demonstrated that for the impact conditions
typical of accidents that result in a release, a holistic approach is
required to prevent a breach of the commodity tank. As noted in the
NPRM, however, DOT will continue to examine the dynamic fracture
toughness of steels used in the construction of pressure tank cars in
hazardous materials service and we will incorporate any workable tank
car design-specific fracture toughness standards into the final
performance standards.
Other commenters note that the Volpe concept work (described in
detail at the technology symposium) \7\ does not establish the
feasibility of the proposed performance standards. Several commenters
express the view that because the Volpe concept car differs
significantly from traditional rail car designs and manufacturing
methods, questions regarding the sill design, movement of the tank
during yard impacts, how the car will be constructed, and other
technical details need to be fully evaluated before the car can be
manufactured and put into service. Commenters note that the proposed
performance standards are based on impacts of 25 (shell) and 30 mph
(head) from a 286,000 pound mass concentrated through a 6'' x 6''
impactor. Citing a recent head impact test by the NGRTCP, one tank car
builder, American Railcar Industries (ARI), concludes that even meeting
the 25 mph shell-impact puncture resistance standard requires a larger
impactor, or less impacting weight. Another manufacturer suggests that
it may be possible to achieve the 25 mph standard with the 6'' x 6''
impactor due to the deformations that are likely to occur, but the 30
mph standard probably would not be achievable.
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\7\ Copies of technical presentations from the symposium, as
well as a summary of the symposium is available in the docket.
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Noting that current research has focused on development of a
chlorine car (the Volpe ``concept car'') to meet the proposed
performance standards, commenters express the view that other PIH
materials (e.g., anhydrous ammonia, ethylene oxide, methyl mercaptan,
anhydrous hydrogen fluoride) have significantly different physical and
chemical properties that must be accommodated in tank car designs. For
example, product density affects how much product can be loaded into a
car. Arkema, a shipper of methyl mercaptan, a raw material used in the
production of animal feeds for the poultry and swine industry, notes
that chlorine weighs approximately 12 pounds per gallon, while methyl
mercaptan weighs only about 7.8 pounds per gallon. Because chlorine is
a rather dense material as compared to other PIH materials, the typical
chlorine car has smaller tank dimensions than tank cars designed to
transport other PIH materials. As Dow notes, these smaller tank
dimensions have allowed the NGRTCP to design a chlorine car with
greater thickness and greater standoff distances (i.e., the distance
between the tank and the tank's outer protection) than may be possible
for tank cars designed to carry other PIH commodities.
Commenters also suggest that the differing physicochemical
properties and severity of hazards presented by various PIH materials
need to be considered when designing tank cars to handle particular PIH
materials. DGAC notes that many PIH materials are highly flammable and
will ignite prior to the formation of a toxic cloud. As an example,
BASF notes that ethylene oxide has flammability ranges between 3% and
100% in air and therefore, that an ethylene oxide release would result
in a fire before there was an opportunity to affect the general
population from a toxicity hazard. BASF further notes that there is a
significant difference in the danger posed by a Zone B PIH material
(e.g., chlorine) versus a Zone D PIH material (e.g., ethylene oxide).
Commenters further state that the disparate physicochemical
properties of the various PIH materials shipped via railroad tank car
have historically led to very specific car designs for certain
materials. For example, DuPont notes that oleum and sulfur trioxide
have relatively high freezing points. Accordingly, rail cars intended
for the transportation of oleum and sulfur trioxide must be equipped
with sufficient insulation capable of maintaining the temperature of
the chemicals above their respective freezing points. Similarly, tank
cars used to transport chlorosulfonic acid are constructed of stainless
steel tanks to prevent discoloring of the acid. According to DuPont,
there is no feasible alternative to stainless steel and the properties
of the stainless steel inner tanks relative to the puncture resistance
requirements of the proposed performance standards would have to be
considered. Similarly, shippers of
[[Page 1775]]
anhydrous hydrogen fluoride and hydrofluoric acid note that the
corrosive properties of these chemicals have led to non-jacketed tank
car designs for these particular commodities and that the non-jacketed
cars allow for visual detection of any corrosive product on the outside
of the commodity tank before it can compromise the integrity of the
tank. Noting the Volpe concept car presented at the technology
symposium and the NGRTCP car design rely on a ``sandwich'' (i.e.,
layered design with a jacket encompassing supporting foam or other
energy absorbing material surrounding and isolating the commodity tank
from the structural forces of the moving train), these commenters
suggest that such a design concept would introduce new maintenance and
inspection challenges that could lead to a detriment in safety in that
the inner tank could not be inspected as readily as is currently
possible.
Although DOT recognizes commenters' concerns with commodity
specific tank car design issues, as noted at the May 28, 2008 public
meeting, the NPRM was not intended as a ``one size fits all'' approach.
Specifically, as described at the technical symposium, the Volpe
concept car is intended to demonstrate DOT's proposed approach to
meeting the performance standards. DOT's approach, focusing on the
energy absorbing capability of the tank car, is applicable to any type
of tank car. DOT recognizes, however, that specific design elements
would necessarily have to be modified for specific commodities.
Other commenters, including AAR and BNSF Railway Company (BNSF)
suggest that the 6'' x 6'' impactor contemplated in the proposed rule
is not representative of real world objects impacting tank cars and
that any proposed standard needs to consider impacts other than
carbody-to-carbody impacts, such as impacts by smaller, sharper
objects; the crushing or tearing away of the shell; and oblique
punctures or punctures away from the centerline of the tank. In support
of this position, BNSF references five accidents on its railroad that
resulted in releases from eight pressure tank cars over the last 12
years. Five of those eight releases did not involve carbody-to-carbody
impacts. Instead those tank car releases involved: (1) Stub still
failure due to a large vertical force on the draft gear which caused
the sill to tear away a section of the tank shell, (2) puncture by
pieces of broken rail, (3) the shearing off of liquid and vapor valves;
(4) puncture by being struck by the corner of a flat car; and (5)
puncture when the corner of an I-beam (which fell from a previous car)
struck a tank car. Similarly, AAR expresses the view that the proposed
performance standard is flawed because it focuses exclusively on the
ability of tank car designs to absorb energy without releasing product
and does not consider other possible modes of failure. Specifically,
AAR suggests that DOT's focus on energy absorption effectively
addresses punctures from ``large, blunt objects coming into contact
with the tank head or shell from a perpendicular direction,'' but
ignores other accident scenarios prevalent in railroad operations,
including: (1) Punctures from smaller, sharper objects; (2) releases
due to the tearing away of attachments to the shell; (3) cracking of
the shell; and (4) oblique punctures and punctures away from the center
of the head or the centerline of the shell. On the other hand, the
Railway Supply Institute, Inc. (RSI) suggests that basing the proposed
performance standard on a test utilizing a 6'' x 6'' impactor is not
appropriate because the size of the impactor does not correlate to
anything expected to be seen in the field. RSI suggests that the size
of the impactor should be increased to more accurately reflect the face
surface of a standard non-shelf coupler.
In response to the BNSF and AAR comments regarding the NPRM's focus
on the energy absorption of impacts to tank cars, we note that the
proposed head and shell impact standards were based on a series of
complementary measures, including: (1) Blunting the load impacting the
tank, (2) absorbing energy, (3) reinforcing the commodity tank, and (5)
removal of in-train forces from the commodity tank. Although DOT
continues to believe that this approach addresses each of the failure
modes cited by commenters, as explained at the technology symposium,
DOT recognizes that this approach is most effective in addressing
carbody-to-carbody impacts that result in the bulk crushing and
deformation of tank cars, and what DOT believes to be the most likely
failure mode to result in a catastrophic release of hazardous
materials, that is, the puncture of the head or shell by some
intermediate size piece of railroad equipment (e.g., coupler, drawbar,
side or draft sill).
Commenters suggest that DOT should not promulgate final head and
shell puncture-resistance standards until the NGRTCP has completed its
work and compliant tank car designs have been developed, and cars have
been built and tested for each PIH commodity. Dow indicates that the
NGRTCP expects to have a prototype tank car built by the end of 2008
that would meet a 25 mph head and shell impact puncture resistance
standard. Dow cautions, as do other commenters, that such a prototype
car should be subjected to an additional period of in-service testing
prior to being approved for use. Further, noting the ``evolutionary
process'' of tank car safety enhancements, Dow concludes that the
proposed performance standards are two to three generations ahead of
what is currently achievable. Accordingly, in its comments, Dow urges
the Department to adopt regulatory standards based on ``practical,
proven, real world solutions.'' Similarly, commenters express the view
that current generation PIH tank cars (i.e., existing PIH rail car
designs) are not inherently flawed or unsafe. Accordingly, these
commenters suggest that DOT pursue a design that utilizes current car
designs as a ``platform'' for safety and security enhancements.
Although DOT believes that the proposed performance standards can
be met utilizing currently available materials and innovative
engineering approaches to tank car design, as discussed above, we
recognize the need to further model and validate any final performance
standard. We also recognize the need to assist industry in developing
the requisite technical expertise to accurately model and analyze the
large deformation with material failure problems required to develop a
significantly better tank car design (whether that final design is one,
two, or three generations ahead of existing DOT specification cars). We
will continue to work with the tank car manufacturing and shipping
industries through a series of technical meetings to share the ongoing
findings of FRA's tank car research program (including Volpe's modeling
and testing efforts). The goal of this work will be to develop an
improved performance standard for adoption into the HMR. Meanwhile, in
order to ensure the ongoing availability of PIH tank cars, this rule
establishes interim standards for tank cars that may be built prior to
the development and commercialization of the final performance
standard. This rule responds to commenters' recommendations that in the
time period before the development and commercialization of a final
performance standard, we adopt a design that utilizes current car
designs as a basis for improvements. As discussed in more detail in
sections VI and VII below, this rule adopts enhanced commodity-specific
design standards for PIH tank cars based on existing DOT specification
cars.
AAR urges DOT to adopt its ``conditional probability of release''
[[Page 1776]]
(CPR) metric in ascertaining the safety afforded by various tank car
designs (i.e., the probability of a release in the event of an
accident). This request was reiterated in the Joint Petition for an
interim standard in which the ACC, ASLRRA, AAR, CI, and RSI requested
that DOT approve interim rail tank car standards that would incorporate
design specifications as well as an alternative performance standard
based on the CPR metric. The Joint Petition is discussed in more detail
in section IV.F below. Although FRA believes that the analysis
underlying the CPR metric is technically sound from the standpoint of
implementation of standard statistical mathematics, FRA does not
believe that the design of a tank car can rationally be based on
statistical analysis alone. Instead, consideration of the physics that
tank cars experience during accidents, derailments, and other types of
rail incidents must be considered. FRA is also concerned that many of
the issues raised by commenters concerning validation of the
performance standard proposed in the NPRM apply equally to the
``improvement factor'' utilized in the Joint Petition. We note in this
regard that the ``improvement factor'' was, in effect, reverse
engineered from existing, available tank car specifications. The Joint
Petition asks DOT to allow for alternative proofs that the tank car
improvement factor for the commodity is met, even though different
designs are employed than those specified as meeting the requirement.
FRA does not believe that alternative proofs could be utilized in this
context without reliance on broad assumptions that may not be supported
by actual experience. Additionally, going through the exercise of
attempting to prove an outcome that was tied to an available DOT
specification in the first instance would be both awkward and likely
fruitless, because the basis of the regression results rely on
evaluation of traditional DOT specification cars. DOT is aware that
this approach is built around an expectation that protective structures
may be distributed between the tank and jacket or head shield as
described in the petition for chlorine cars. Accordingly, this rule
does not adopt the CPR metric as proposed by both AAR and the
additional parties to the Joint Petition. However, DOT does accept the
basic framework of specifications that the parties contemplate for use
and provides a more direct and less cumbersome means to demonstrate the
performance of alternative designs of the sort the petitioners
sought.\8\ The Department's rationale is discussed in more detail in
section VI below.
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\8\ Both the petition and this rule rely upon an assumption
that, within reasonable bounds, distribution of protective structure
between an exterior layer and the tank itself will produce the same
results from the point of view of tank puncture resistance as using
all of the material thickness in constructing the tank. Petitioners
have not established that this is the case; however, engineers
directing and conducting FRA-sponsored research are satisfied that
the effects are likely commutative (additive), at least in the
classic puncture scenarios described in the NPRM.
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B. Proposed Implementation Period
The majority of commenters also express the view that the proposed
eight-year implementation period is overly-aggressive and not
realistic. Specifically, commenters contend that design, development,
and manufacturing ramp-up cannot be completed within the two-year
period contemplated by the proposed rule. Commenters also state that
the six-year fleet replacement period contemplated in the NPRM is too
short, given the capital expenditures that would be required by
individual fleet owners to replace their entire fleets in six years,
the capacity of tank car manufacturers to manufacture new cars, and
other market forces (e.g., demand for ethanol tank cars). Further,
several commenters express the opinion that the proposed rule's
requirements that 50% of each owner's fleet be replaced with cars
conforming to the proposed performance standards within five years of a
final rule's effective date and the requirement that all PIH tank cars
constructed of non-normalized steel in the head or shell be replaced
within the same time frame are unjustified, and in some instances,
impossible to meet.
With regard to the two-year design and manufacturing ramp-up period
contemplated in the proposed rule,\9\ commenters assert that it will
take up to ten years until a proven design is ready for full-scale
implementation.\10\ Specifically, in written comments, as well as at
the technical symposium, tank car builders explain that the time
required to take a new tank car design from the conceptual research and
development point to full-scale production is highly dependent on
several competing factors. First, the extent to which a new design
differs from traditional rail car design will affect the time required
to finalize, test, and implement that design. Second, builders
indicated that the time necessary to move from design to full-scale
production will also be dependent on the extent of manufacturer re-
tooling required, the extent of changes in fabrication protocols and
welding protocols required, the extent of training and recertification
of skilled workers in those new protocols and welding techniques
required, the need to obtain potentially new materials, as well as the
need for Chapter 11 \11\ service testing. Commenters suggest that a
service trial period ranging from between 12 to 18 months to two years
should be required for any new car with a design substantially
different from current cars.
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\9\ See 73 FR 17846-47.
\10\ Some commenters indicated that it would take at least three
years to develop a compliant design (at least to the 25 mph puncture
resistance standard) and some said it would take two years to get a
design to market, provided a bigger impactor was used. These
commenters, however, also noted that an additional service trial
period would be necessary before the cars could reasonably be put
into full service.
\11\ Chapter 11 of the AAR's Manual of Standards and Recommended
Practices, CII, M-1001, entitled ``Service-Worthiness Tests and
Analyses for New Freight Cars.''
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RSI asserts that the typical regulatory lead time for ``other
federal performance standards that require new designs and engineering
breakthroughs'' (i.e., technology forcing regulations) is substantially
longer than the two-year period contemplated by the proposed rule.
According to RSI, new performance regulations in other transportation
industries with ``significantly more resources allocated to research
and development'' have allowed from three to six years for design
development to the commencement of production. In support of this
assertion, RSI cites a recent U.S. Environmental Protection Agency rule
on locomotive emission standards, which allows seven years for
compliance with performance standards requiring the development of new
technology, while allowing one year for compliance with performance
standards that can be met with existing technology.
Further, as discussed above, several commenters note that to date,
research has focused on a chlorine car (the Volpe ``concept car'')
designed to meet the proposed performance standards. Citing practical
experience, commenters involved in the shipment of PIH materials other
than chlorine (e.g., anhydrous ammonia, ethylene oxide, methyl
mercaptan, anhydrous hydrogen fluoride) express the view that any final
tank car standards will need to take into consideration the
physicochemical properties of specific PIH materials, as well as the
differing hazards presented by each material. These commenters assert
that this commodity-specific analysis will necessitate more time than
[[Page 1777]]
the two-year design and manufacturing ramp-up period proposed.
Asserting that a six-year replacement period for existing bulk
packages is ``unprecedented,'' DGAC states that the proposed rule's
six-year replacement period is ``unjustifiable from a cost benefit
perspective.'' Arkema, a methyl mercaptan shipper, notes that there are
a limited number of engineers and rail car manufacturers to meet the
mandates of any new railcar design. Accordingly, Arkema expresses
concern that first priorities for designing and building enhanced rail
cars for PIH materials will focus on cars designed to transport those
substances that make up the bulk of the PIH railcar fleet (i.e.,
chlorine and anhydrous ammonia).
With regard to the proposed rule's requirement that all PIH tank
cars constructed of non-normalized steel in the head or shell be
replaced within five years after the final rule's effective date,
(effectively, half-way through the six year proposed fleet replacement
period), several commenters note the PIH shipping industry's voluntary
efforts already underway to phase-out these tank cars. TFI, the
national trade association that represents fertilizer producers,
importers, wholesalers and retailers (i.e., shippers of anhydrous
ammonia), notes that its members are already voluntarily phasing-out
the use of non-normalized steel cars for the transportation of
anhydrous ammonia. Specifically, TFI states that its members utilize
approximately 4,600 tank cars to ship anhydrous ammonia and only about
340 of those cars are pre-1989 non-normalized steel cars. Further, TFI
notes that its members anticipate that these 340 non-normalized steel
cars will be completely removed from their anhydrous ammonia fleets
earlier than the five years proposed in the NPRM. For example, one
member, CF Industries, Inc. (CF), states that, beginning in 2005, it
began voluntarily to modernize its fleet of anhydrous ammonia tank cars
by phasing out 313 of its pre-1989 non-normalized steel cars. CF
indicates that it plans to remove the remaining 24 non-normalized steel
cars from its fleet of anhydrous ammonia cars by the end of 2008.
Several commenters, citing present difficulties obtaining new PIH
tank cars, raise the concern that if such difficulties are not resolved
in the short term, shippers may be forced to keep these older cars
longer or reduce the size of their fleets. These concerns are discussed
in more detail below with other comments pertaining to the need for an
interim standard for PIH tank cars.
CI comments that although it does not object to prioritizing the
removal of pre-1989 tank cars constructed with non-normalized steel in
any fleet replacement program, the accelerated retirement of these cars
as proposed is not justified because there is not sufficient evidence
demonstrating that such accelerated replacement will significantly
enhance rail safety. Similarly, other chlorine shippers (PPG & U.S.
Magnesium) say that early replacement of non-normalized steel cars as
proposed is not justified since the performance of non-normalized cars
has not differed significantly from that of normalized cars, and the
cars show similar puncture resistance to normalized steel cars.
Further, PPG notes that as proposed, the accelerated phase out of non-
normalized PIH tank cars would require PPG to change out 75% of its
fleet in three years, having a significant impact on PPG's earnings and
putting PPG at a significant disadvantage relative to its competition.
On the other hand, another chlorine shipper, Olin Corporation (Olin),
does not object to the accelerated phase out of the pre-1989 non-
normalized steel cars so long as the ``accelerated transition''
(presumably referring to the proposed requirement that one-half the
fleet be replaced with cars meeting the enhanced performance standards
within five years) is limited to non-normalized cars.
As an alternative to the overall eight-year implementation period
proposed, both CI and TFI suggest that any final implementation period
should be developed as part of a joint government/industry effort. PPG,
which has a fleet of almost 2,600 owned and leased tank cars used for
shipping chlor-alkali products, suggests that instead of specifying an
implementation period in terms of a date certain, DOT incorporate a
``test plan'' into any final rule establishing enhanced tank car
performance standards. Specifically, PPG suggests that such ``test
plan'' include a statistically significant test fleet, a service trial
period, and process for intermediate inspections. Dow recommends that
DOT consider a longer transition period based upon the age, safety, and
performance features of tank cars or to phase in new tank car standards
for different PIH commodities over successive periods of time, allowing
shippers to cascade cars down in service from higher to lower risk PIH
materials. DOT appreciates the alternatives recommended by these
commenters. Because the rule is limited to standards for new tank car
construction in the time prior to the development, adoption,
implementation and commercialization of a final performance standard,
incorporation into this final rule of any of the recommendations is not
appropriate at this time. We will, however, consider the specific
recommendations as we develop regulatory requirements to implement a
final performance standard.
With regard to the time period allowed for individual car owners to
replace their existing PIH tank car fleets with tank cars meeting any
final DOT standard, commenters suggest that consideration must be given
to several competing factors on a fleet-by-fleet basis.\12\ For
example, several shippers have voluntarily upgraded their fleets over
the last few years, and have purposefully ``over-built'' their tank
cars with additional safety features not mandated by the HMR. These
shippers express the view that unless consideration is given to these
additional safety features already in place, they are effectively being
penalized for voluntarily investing in those upgrades in the first
place. Commenters also express the view that individual fleet size and
age, annual shipment volumes, product characteristics, quantities of
cars available for purchase or lease, and manufacturing delivery
schedules are other factors that need to be considered on an individual
fleet-by-fleet basis when determining an appropriate fleet replacement
period.
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\12\ See Transcript of comments of PPG at May 14, 2008 meeting
(available in the docket) and; written comments of U.S. Magnesium
and ACC in the docket (document numbers 57 and 86).
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We appreciate the comments regarding the need to consider adequate
time for developing car designs, validating compliance with the
performance standards, and ensuring the car is dynamically suitable and
serviceable. DOT will consider these issues as we work to validate and
finalize a performance standard for PIH tank cars and incorporate that
standard into the HMR. We note that issues related to a delayed
effective date would not appear to be relevant to this final rule,
since builders can adapt existing tank car designs within a short time
to meet the interim requirements. We also are modifying our proposal
for phasing out cars constructed prior to 1989 with non-normalized
steel in the head or shell. Although we continue to believe that an
accelerated phase out of these cars is justified, we recognize the
voluntary efforts already underway by many fleet owners to phase out
these cars, in many cases on schedules more
[[Page 1778]]
aggressive than the five-year deadline proposed in the NPRM. Rather
than imposing a fixed deadline, this rule requires rail car owners that
elect to retire or remove rail tank cars from PIH service, other than
because of damage to the cars, to prioritize the retirement or removal
of pre-1989 non-normalized steel cars.
C. Proposed Allowance To Increase the Gross Weight on Rail of PIH Tank
Cars
Although commenters raise practical concerns related to an increase
to 286,000 pounds in the maximum gross weight on rail of hazardous
materials tank cars, most generally support this aspect of DOT's
proposal. Specifically, AAR indicates that the infrastructure of Class
I carriers can generally accommodate the heavier cars and that short
line railroads should generally be able to transport the heavier cars,
with a few isolated weight restrictions (e.g., bridges).\13\ TFI
expresses support for this aspect of DOT's proposal, but noting the
practical issue that some anhydrous ammonia shipment origin and
destination points cannot handle the heavier cars, TFI expresses
concern that light loading (loading a tank car with less than its full
capacity of product) and diversion to other modes of transportation
(e.g., highway) could occur. Similarly, CI indicates that although the
proposed allowance to increase the maximum gross weight on rail would
be a ``positive move removing regulatory burden on shippers using the
heavier car,'' CI expresses the same concerns as TFI. Individual
shippers and the DGAC commented similarly, with one shipper (U.S.
Magnesium) noting that it expects to upgrade its own track this year to
accommodate 286,000 pound cars. At the May 14, 2008 public meeting, a
representative of Olin Corporation, one of the largest shippers of
chlorine in North America, estimated that due to infrastructure issues,
approximately 50% of Olin's customers are currently unable to receive
286,000 pound cars. Further, the Olin representative noted that if the
current 500 psi tank car typically used to transport chlorine were
replaced with a 600 psi car, as originally proposed by the AAR's
interchange standard, due to the increased weight of the tank car
itself, Olin would have to light load approximately half of its
shipments by approximately six tons each. In other words, instead of
shipping 90 tons of chlorine in one tank car, Olin would be limited to
shipping only 84 tons per tank car. Assuming demand remained constant,
as other commenters note, this light loading would translate into
additional shipments of chlorine and potentially the need for
additional tank cars in which to transport the chlorine.
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\13\ No short line railroad directly commented on the NPRM.
However, the American Short Line and Regional Railroad Association
did join in the petition filed by the AAR, ACC, and RSI.
---------------------------------------------------------------------------
In response to questions presented by the Department at the May 15,
2008 public meeting regarding exactly how many anhydrous ammonia origin
and destination points would not be able to handle the heavier cars, in
its written comments TFI notes that five of its members reported that
approximately 2,758 shipments of anhydrous ammonia would be affected
annually. In response to a similar question posed on May 14, 2008 to
CI, the Institute reports that of the six member companies responding
to the question, approximately 50% of the origin and destination points
of each company would be unable to handle rail tank cars weighing
286,000 pounds. The American Chemistry Council (ACC), which represents
companies that ship most, if not all, of the PIH materials other than
anhydrous ammonia, similarly noted that not all shipper and receiver
locations of its members can accommodate 286,000 pound gross weight on
rail cars.
TFI and individual shippers of anhydrous ammonia suggest that a
longer phase-in schedule would allow more time for infrastructure
upgrades necessary to support the heavier car and suggest that DOT
require that railroads prioritize upgrades in geographical areas
through which PIH materials are typically transported.
Although we recognize the practical issues noted by commenters
associated with utilizing heavier tank cars to transport PIH materials,
we also note that AAR's existing interchange standards, applicable to
all freight car types and products, provide for the free interchange of
freight cars up to 286,000 pounds.\14\ Accordingly, we understand that
freight rail cars with a maximum gross weight on rail of 286,000 pounds
have become the industry standard for Class I railroads and that a
substantial portion of the entire North American freight car fleet (not
just hazardous materials tank cars) already meets the 286,000 pound
interchange standard.\15\ Given anticipated growth and capacity issues,
FRA believes that the number of 286,000 pound freight cars will
continue to increase over the coming years as railroads and shippers
seek to maximize the resulting efficiencies and reductions in operating
costs associated with the use of these larger freight cars. In general,
use of larger 286,000 pound rail cars reduces the number of cars needed
to transport the same volume of cargo, allowing corresponding
reductions in the number of trains and locomotives. These reductions
produce savings in ownership, maintenance, and crew costs; improved
net-to-tare ratio (ratio of goods carried to empty car weight); and
reduced fuel costs associated with the decrement of the train
resistance (fewer axles needed for equivalent car weight). Offsetting
these cost advantages are higher maintenance of way costs (including
costs to upgrade track from 263,000 pound compliant to 286,000 pound
compliant). Although short lines in most instances do not handle
traffic volumes sufficient to truly realize these cost savings, in
order to participate in the national rail network (i.e., to originate
and terminate traffic from other railroads), short lines must be able
to accommodate the equipment used by Class 1 carriers. Accordingly,
short lines must upgrade the weight-bearing capacity of their tracks
and bridges to handle 286,000 pound railcars or risk losing business.
FRA understands that throughout the last several years the short line
industry has been going through an extensive process of upgrading track
infrastructure to accommodate 286,000 pound freight cars. The short
line industry has been aided in this endeavor through state funding,
tax credits, and most recently the Rail Revitalization and Improvement
Funding (RRIF) program, which provides loans and loan guarantees for
the acquisition, development, improvement, or rehabilitation of rail
equipment or facilities.
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\14\ Standard S-286 is the existing industry standard for
designing, building, and operating rail cars at gross weights
between 263,000 pounds and 286,000 pounds.
\15\ As noted in the NPRM, to date DOT has also issued several
Special Permits allowing the use of tank cars weighing up to 286,000
pounds. See e.g., 71 FR 47288, 27301 (Aug. 16, 2001) (Special Permit
number DOT-SP 14167, Trinity Industries, Inc.).
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Accordingly, as noted at the May 15, 2007 public meeting, FRA
believes that infrastructure restrictions related to the use of 286,000
pound tank cars are for the most part limited to PIH shipment origin
and destination points. FRA also believes that the railroad industry
standard providing for 286,000 pound freight cars generally will lead
to the upgrading of not only railroad infrastructure, but the
infrastructure of companies that ship or receive by rail (whether via
hazardous materials tank cars or other railroad freight cars).
As noted above, although several shippers raise practical concerns
related to the proposed allowance to increase the maximum allowed gross
weight on rail of hazardous materials tank cars,
[[Page 1779]]
several of those same shippers suggest that a longer phase-in period
for enhanced tank cars would allow more time for infrastructure
upgrades to handle the heavier cars. In addition, because the scope of
this rule is limited to newly-manufactured cars, shippers will have the
flexibility to use existing 263,000 pound cars where infrastructure
does not support the heavier cars.
At the end of the day, most of the commenters that expressed
concern about the 286,000 pound issue joined one of the two petitions
for rulemaking seeking establishment of interim tank car standards.
Both petitions advocate increases in package strength that inevitably
will either lead to construction of 286,000 pound cars (if allowed) or
reduced-capacity 263,000 pound cars. Our economic analysis recognizes
that, for an interim period during which remaining facilities are being
improved to handle 286,000 pound cars, some additional shipments will
be required. This should not impose an impossible burden on anyone; in
fact, most commenters, while expressing some concern about increased
costs, express considerable support for the adoption and implementation
of safety improvements.
D. Proposed Speed Restrictions
The NPRM proposed a maximum speed limit of 50 mph for all trains
containing railroad tank cars used to transport PIH materials, and a
maximum speed limit of 30 mph in non-signaled (dark) territory for all
trains with railroad tank cars transporting PIH materials, unless the
material is transported in a tank car meeting the proposed enhanced
tank-head and shell puncture-resistance systems. The NTSB and several
members of the PIH shipping industry (tank car owners and lessees)
express support for these proposed operational restrictions. For
example, noting that the NTSB has attributed recent incidents involving
the breach of chlorine tank cars to railroad operational issues, CI
expresses its full support for the proposed operational restrictions.
Another commenter (Occidental Chemical Corporation (OxyChem)) suggests
that the proposed rule should have included additional operational
improvements and restrictions by railroads and notes that although the
speed and the presence of signaled versus dark territory are factors
impacting the likelihood and severity of an accident, other factors
(such as traffic density, bidirectional traffic, number of switches
along a line, population densities, positive train control, and
placement of PIH tank cars within trains) also need to be considered.
Noting operational restrictions imposed through a recent Special Permit
issued to BNSF Railway authorizing the railroad to operate outside the
requirements of 49 CFR 174.14 (commonly known as the 48-hour rule) in
order to better manage its PIH movements over non-signaled track,
OxyChem suggests that similar operating restrictions be incorporated
into the final rule.\16\
---------------------------------------------------------------------------
\16\ See Special Permit No. DO-SP 14436 (Jan. 30, 2008). The
Special Permit provides BNSF with relief from the requirements of
the 48 hour rule when transporting TIH materials over certain dark
territory routes, subject to certain conditions (e.g., maximum
authorized speed of 35 mph, route must be evaluated and inspected by
qualified railroad track department personnel prior to train hauling
PIH materials traversing the track, trains hauling PIH materials
must hold the main line during meets, and trains on sidings must
stop before a PIH train passes).
---------------------------------------------------------------------------
Although expressing support ``in principle'' for the proposed speed
restrictions, NTSB asserts that such restrictions do not fully address
its Safety Recommendations R-05-15 and R-05-16 relating to operating
speeds in non-signaled territory. Specifically, NTSB notes that its
Safety Recommendation R-05-15 applies to any train operating in non-
signaled territory, with no system to provide train crews with advance
notice of switch positions; the NPRM would apply only to tank cars
transporting PIH materials. Similarly, NTSB notes that its Safety
Recommendation R-05-16 includes operating measures (including
positioning tank car toward the rear of trains and reducing speeds
through populated areas) designed to minimize impact forces from
accidents and to reduce the vulnerability of tank cars transporting PIH
materials; neither of which were considered in the NPRM. Although, as
discussed below, DOT agrees with NTSB that reduced train speed in non-
signaled territory can be part of a strategy to mitigate the effects of
train accidents, we do not believe that Recommendations R-05-15 and R-
05-16 can be effectively implemented in their entirety without
introducing additional safety risks and an extreme economic burden on
industry.\17\ As we work to develop and implement a final performance
standard, however, we will continue to evaluate the potential of any
feasible operating measures to minimize the impact forces from
accidents and reduce the vulnerability of PIH tank cars.
---------------------------------------------------------------------------
\17\ FRA's specific concerns with these Safety Recommendations
are discussed in the NPRM. 73 FR 17828.
---------------------------------------------------------------------------
Some of the same shippers expressing support for the proposed
operational restrictions, however, also express concern regarding the
potential negative impacts of the speed restrictions, including longer
transit times, increased costs, potential increase in number of cars
needed to meet demand, and apparent competing goals of Transportation
Security Administration (TSA) initiatives to reduce the transit time of
PIH materials, including reducing the dwell time of PIH shipments in
transportation through high density population centers. Similarly,
citing the same concerns noted above, other PIH material shippers
express the view that the detrimental effects of certain aspects of the
proposed operational restrictions would outweigh any safety benefits to
be derived from such restrictions. For example, the National
Association of Chemical Distributors (NACD) expresses concern with the
proposed interim 30 mph speed restriction in dark territory for PIH
tank cars not meeting the enhanced performance standards proposed.
Specifically, NACD asserts that such a speed limit is ``contrary to the
important objective of having these materials in transit for as short
of a time as possible.'' NACD further asserts that the 30 mph speed
limit would provide no guarantee that incidents would be eliminated.
Further, NACD asserts that ``if two trains traveling at 30 mph were to
crash, the result would be the same as that of a crash involving a
single train traveling at 60 mph.''
NACD also expresses the view that the proposed 30 mph speed limit
would adversely affect the timely delivery of anhydrous ammonia, a
time-sensitive product given the short window of opportunity for
application in agricultural operations. Similarly, Dow suggests that
the operating restrictions proposed in the NPRM (taken together with
other regulatory requirements), would ``only exacerbate'' the current
situation of the tank car industry and even ``accepting the optimistic
assumption in the NPRM that compliant tank cars will be available for
purchase in two years, TIH shippers are likely to require more tank
cars before then, if the proposed operating restrictions'' are
implemented in the meantime.\18\
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\18\ Arkema indicated that it does not support maximum speed
limit restrictions based solely on railcar content and that any
speed limit restrictions should also be based on ``roadbed
construction and environment.'' In response to this comment, DOT
notes that FRA's track safety standards (49 CFR part 213) mandate
minimum safety requirements that a track must meet and the condition
of the track is directly tied to the maximum allowable operating
speed for the track.
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Subject to certain practical concerns, AAR and the Class I
railroads (including CSXT, CP, and NS), generally support the proposed
50 mph maximum speed
[[Page 1780]]
limit for all tank cars transporting PIH materials. However, these
commenters strongly oppose the proposed interim 30 mph restriction in
dark territory for tank cars not meeting the proposed tank head and
shell impact performance standards.\19\ First, acknowledging that as
proposed, both the 30 and 50 mph speed limits would apply to residue
tank car shipments of PIH materials, AAR expresses the view that the
risk of a significant release of a PIH material ``from residue
shipments is so small that the costs imposed on railroads and society
from either speed limit cannot be justified.'' AAR also notes that the
Department's analysis of costs related to the proposed 50 mph
restriction in the Regulatory Impact Analysis (RIA) accompanying the
NPRM appears to assume that the only trains that would be impacted by
the 50 mph speed restriction would be trains operating with fewer than
five tank cars containing PIH materials in accordance with industry's
standard practice (i.e., AAR's Circular OT-55-I).\20\ Since Circular
OT-55-I only applies to loaded tank cars, AAR reasons that DOT must be
``assuming that its proposal also only applies to loaded tank cars.''
Further, AAR asserts that DOT's estimate in the RIA that there are
78,000 tank car loads of PIH materials annually is reasonable only if
residue shipments are not counted. AAR further asserts that should DOT
desire to apply either proposed speed restriction to residue shipments,
publication of a new NPRM would be required.
---------------------------------------------------------------------------
\19\ CSXT noted that OT-55-I's 50 mph speed limit on key trains
``does not have the same network implications as dropping from 50 to
30 mph. In maintaining network fluidity, homogeneity of speeds is
invaluable. If a train ordinarily can operate for parts of its run
at above 50 mph, but is forced on occasion to limit speeds to 50,
the adverse effects are generally not extensive. In addition,
general merchandise trains that operate out of areas where TIH is
sourced are scheduled with the expectation that they will always be
limited to 50 mph.'' NS further noted that they treat all trains
containing one or more loaded PIH tank cars (as opposed to OT-55-I's
five or more loaded PIH tank cars) as key trains. Accordingly, NS's
standard practice is to operate trains with one or more loaded PIH
tank cars no faster than 50 mph.
\20\ A copy of AAR Circular OT-55-I is available in the docket
and a more detailed discussion of the Circular's recommended
practices is included in the NPRM. 73 FR 17831.
---------------------------------------------------------------------------
The commenting Class I railroads echoed AAR's views regarding
residue tank cars and suggested that as an alternative DOT adopt a
requirement that ``virtually all PIH be removed from a tank car before
it is returned to the delivering rail carrier.''
As noted above, AAR and most of the Class I railroads that provided
written comments strongly oppose the proposed 30 mph interim speed
limit for tank cars transporting PIH materials in dark territory that
do not meet the enhanced performance requirements of the rule. These
commenters reiterate the practical concerns expressed by shippers,
assert that DOT did not adequately justify the proposed restriction,
and suggest that the proposed restriction would have an adverse effect
on railroad operations (e.g., increased switching, delays and/or
increased transit times for virtually all railroad customers thereby
reducing equipment utilization (which would exacerbate existing
capacity constraints), and increasing dwell time of PIH tank cars in
yards and terminals). In addition, CP asserts that the NPRM's focus on
PIH shipments traversing ``non-signaled territory does not appear to be
rationally related'' to the stated purpose of the rule (i.e., to
minimize the probability of release from a PIH tank car in the event of
an accident).
AAR notes that the proposed 30 mph speed limit would require
railroads to adjust their operations in one of two ways. First,
railroads could group PIH shipments in fewer trains, thereby limiting
the number of trains that would be subject to the speed restriction.
AAR asserts, however, that the ability of railroads to group PIH cars
in fewer trains is limited by the regulatory requirement to expedite
hazardous materials shipments. See 49 CFR 174.14 (prohibiting, with
certain exceptions, carriers from holding hazardous materials shipments
for longer than 48 hours at any one location). Further, AAR asserts
that to the extent railroads are able to group PIH tank cars in fewer
trains, the dwell time for such shipments would necessarily increase;
which is directly counter to TSA's efforts to reduce dwell time for PIH
shipments. CP estimates that holding PIH tank cars for consolidation
into fewer trains on one line segment of 430 miles of non-signaled
track between Portal, ND and Glenwood, MN (Portal-Glenwood line), would
increase dwell time by a minimum of 4 days in each direction (i.e., 8
days on a round trip). CP further notes that such consolidation would
result in an additional 1-2 switching moves during the course of each
PIH shipment, which AAR suggests could have an adverse safety impact by
increasing the exposure of employees to injury.
Second, AAR notes that railroads could slow all trains with PIH
shipments in non-signaled territory to the proposed 30 mph limit. AAR
asserts that an overall reduction in speeds for all PIH-hauling trains
would adversely affect railroad operations by decreasing overall system
velocity, which could potentially lead to diversion of some traffic to
other modes of transportation.\21\
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\21\ Although commenters caution that diversion of PIH shipments
to other transportation modes (e.g., motor carrier) may occur if
rail transportation becomes too cumbersome or expensive, it appears
that any such diversion would be limited due to safety and cost
considerations. Commenters note it takes approximately four truck
loads to transport the same capacity as one rail tank car.
Commenters further note that diversion to motor carrier is generally
only cost effective for relatively short moves (i.e., moves up to
500 miles).
---------------------------------------------------------------------------
CSXT asserts that the proposed 30 mph interim speed restriction in
dark territory is based on two faulty assumptions: (1) That only trains
actually containing a PIH tank car would be affected by the proposed
restriction; and (2) that as new cars meeting the proposed performance
requirements come into service, the number of trains that will be
affected by the speed restriction will decrease. CSXT contends that,
given its train scheduling methodology, both of these assumptions are
false. According to CSXT, ``[t]he projected run time of a scheduled
merchandise train (i.e., a train potentially carrying non-hazardous as
well as hazardous freight) is based on three factors: (1) The maximum
authorized speeds in the timetable, (2) the meet and pass planning in
[the CSXT] systems, and (3) the historical run times of trains on the
subdivision.'' In building initial train profiles under the provisions
of the proposed rule, CSXT contends that it would have to assume the
most restricted scenarios (i.e., assume that all general merchandise
trains operating in non-signaled territory would have a PIH car) and
that ``[m]aking tactical changes daily based on the actual train
consist would simply not be viable.''
According to CSXT, 17 of its 51 scheduled general merchandise
trains operating in non-signaled territory would be unable to make the
crew change point if a 30 mph speed restriction were imposed. In these
17 instances, CSXT notes that having to routinely re-crew trains en
route would disrupt operations, creating at a minimum, ``17 daily choke
points on the CSXT network.'' Further, CSXT contends that the proposed
30 mph speed restriction would result in a 10% reduction in capacity on
one densely traveled line. Although CSXT did not identify the line at
issue, it reported that the potential effects of a 35 mph speed
restriction and a 40 mph speed restriction on this same line and
concluded that restrictions would result in capacity reductions of 7%
and 4%, respectively. CSXT further notes that each of these analyses
considered absolutely perfect operating conditions,
[[Page 1781]]
with no track curfews, other network congestion issues, or localized
difficulties.
Finally, CSXT explains that rail network velocity directly impacts
how fast privately owned freight cars cycle. Increasing network
velocity enables a carrier to handle more freight with existing car
capacity, while providing good customer service. Implicit in CSXT's
comments is the suggestion that decreasing network velocity will lead
to longer equipment cycle times, and thus, additional rail freight
cars, not only for the PIH shipping industry, but non-PIH rail shippers
as well.\22\
---------------------------------------------------------------------------
\22\ CSXT references the present high demand for coal
transportation and suggests that ``productivity of utility
companies' car fleets should be a national priority.''
---------------------------------------------------------------------------
Similar to CSXT's comments, CP asserts that DOT underestimated the
costs of implementing the proposed 30 mph speed restriction.
Specifically, CP analyzed the potential costs of implementing the
restriction in two primary corridors of its network that include
significant amounts of non-signaled track--approximately 430 miles of
non-signaled track between Portal, ND and Glenwood, MN and
approximately 266 miles of non-signaled track between Noyes, MN and
Glenwood, MN. Assuming that the 30 mph speed restriction would apply to
all trains carrying PIH shipments over these non-signaled line
segments, CP determined that the proposed 30 mph speed limit would
result in direct increased operating costs of $7 million per year
(approximately $3.5 million in train miles costs and another $3.5
million in train re-crewing costs). Over the proposed eight year
implementation period, these costs would total $56 million. Noting that
DOT estimated in the RIA that the proposed restriction would cost the
rail industry as a whole approximately $133.87 million over eight years
(not including costs incurred by BNSF), CP expresses the view that its
finding of a $56 million increase in operating costs for its two lines
strongly suggests that the RIA's cost estimate substantially
underestimated the potential economic burden that the restriction would
impose on the rail industry.
CP further notes that in addition to the increased direct operating
costs in the form of train miles and re-crewing costs, analysis
indicated that the proposed 30 mph speed restriction would increase
running time by five hours for all trains carrying PIH tank cars
between Portal and Glenwood. This, CP asserts, would impact not only
PIH shipments, but every other car moving in a train that was subject
to the 30 mph restriction, and given the time-sensitive commodities
moved on the CP lines at issue, could cause shippers of time-sensitive
commodities to divert their shipments from CP's lines to motor
carriers. Further, noting that installing a signal system on the
Portal-Glenwood line would require a capital investment of $36-$71
million, with additional annual maintenance costs of $400,000-$800,000,
CP asserts that eliminating the non-signaled lines within its network
is cost prohibitive.
Putting aside the estimated impacts of the proposed interim 30 mph
restriction, AAR and CP, in particular, assert that DOT did not
adequately justify the proposed requirement. These commenters contend
that DOT's analysis of 19 accidents since 1967 provides an insufficient
basis for the proposed speed restriction because of the limited number
of accidents considered, all of which involved chlorine or anhydrous
ammonia tank cars breached due to head and shell punctures, cracks, or
tears. Further, noting changes in the railroad operating environment
since 1965, CP asserts that DOT's analysis ``led it to make findings
based on circumstances that no longer exist.'' Noting the various mean
and median speeds at which the 19 cited accidents occurred, these
commenters also question DOT's proposed 30 mph threshold and instead
suggest that a higher speed threshold may be more appropriate. CP
estimates that the costs of imposing 30, 35, 40 and 45 mph speed
restrictions in dark territory would result in cost increases relative
to the revenue generated by PIH shipments of 27%, 16%, 8%, and 2%,
respectively. Again, contending that this cost burden would impact not
only the PIH shipping and receiving industries, but all rail customers,
CP suggests that DOT consider alternatives to the proposed 30 mph dark
territory speed restriction to improve the safety of railroad tank car
PIH transportation.
Although DOT remains firmly convinced that reduced train speed in
dark territory can be part of an interim strategy to mitigate the
effects of train accidents in some instances, DOT is not adopting the
30 mph speed limitation in this final rule. In proposing the
restriction, we envisioned it as a temporary measure with a foreseeable
life span, for which potential impacts could reasonably be foreseen. As
a result of DOT's decision to authorize the construction of interim
cars that will not meet the performance standards proposed in the NPRM,
and the expectation that these cars will have a useful life of at least
two decades, estimating the potential impact of the 30 mph speed
restriction is extremely difficult. Moreover, the time horizon within
which the speed restrictions would remain in effect would be
substantially expanded. Traffic continues to grow on the national rail
system, even on many non-signaled rail lines. As capacity is
constrained, the cost of any restriction on the speed of trains will
markedly increase. Further, we are persuaded by the comments filed by
CSXT (discussed above) that the introduction of speed-restricted cars
could significantly upset its operating plan because of its inability
to anticipate which trains would need to transport PIH cars on any
given day and because of the ripple effects of delays.
Finally, DOT believes that the recently published final rule on
routing of sensitive hazardous materials, including PIH shipments,
provides a useful framework for better targeting risk reduction
strategies.\23\ The interim final rule requires rail carriers to
analyze the safety and security risks of the routes currently used to
transport certain high-risk hazardous materials, including PIH
materials, and all available alternative routes. Rail carriers must use
that analysis to select routes that pose the fewest overall safety and
security risks. In addition, under authority granted in 49 U.S.C.
20502, DOT may require implementation of supportable risk reduction
measures, including the installation of signal and train control
systems. Taken together, these measures allow DOT and the railroads to
develop ways to target and address excess risk in dark territory.
---------------------------------------------------------------------------
\23\ 73 FR 72182 (Nov. 26, 2008).
---------------------------------------------------------------------------
In this rule, DOT is adopting the proposed overall 50 mph speed
restriction for loaded PIH tank cars. Commenters are correct that we
did not clearly state our intention to subject residue shipments to the
50 mph speed restriction in the NPRM; certainly, the supporting RIA did
not account for the added costs that would result from the inclusion of
residue shipments. While we continue to believe that residue shipments
of PIH materials pose a safety risk that is directly related to the
amount of material remaining in the tank, we note that the reduced
product load may contribute to somewhat less frequent releases than
from fully loaded cars, stemming in part from the reduced mass of the
car, and that the consequences of an accident involving a residue
shipment will generally be less severe than the consequences of an
accident involving a fully loaded car. For these reasons, we agree with
commenters that the costs associated
[[Page 1782]]
with imposing the overall speed restriction on residue shipments would
likely outweigh any safety benefits. Therefore, in this rule we are not
adopting the overall 50 mph speed restriction for tank cars containing
residues of PIH materials. We encourage railroads to apply the overall
50 mph speed restriction to residue shipments where such application is
feasible and practicable.
E. PIH Tank Car Top Fittings
Noting ongoing government and industry research efforts to develop
consensus-based industry standards for enhanced tank car top fittings
protection, in the NPRM we did not propose to revise current
requirements for tank car top fittings.\24\ Specifically, we stated
that adopting new standards (by rulemaking or otherwise) for top
fittings protection would be inappropriate because it was not yet clear
what modifications would provide a substantial improvement in the
ability of top fittings to: (1) Withstand accident conditions, while
providing at least the same level of protection from non-accident
releases; (2) continue to work with industry's existing loading and
unloading infrastructure; and (3) maintain compatibility with current
emergency response requirements (e.g., compatibility with Emergency Kit
C, which is used to contain leaks in and around the pressure relief
device and valves in the case of chlorine cars). 73 FR 17840. In the
NPRM, we also noted that although incidents involving tank car top
fittings do occur, historical accident data demonstrate that top
fittings are not a significant factor in the risk associated with large
product losses. Id.
---------------------------------------------------------------------------
\24\ See 73 FR 17840. The existing regulatory requirements for
top fittings are found at 49 CFR 179.100-12.
---------------------------------------------------------------------------
Several commenters express disagreement with our conclusions and
suggest that we incorporate improved top fittings standards in a final
rule addressing enhanced tank car specifications. For example, BNSF
asserts that ``[t]op fittings protection needs to be addressed by DOT,
either specifically in the requirements of the Final Rule or by
including or formally recognizing the industry's interchange standards
in the Final Rule.'' BNSF cites a May 17, 2008 derailment in Lafayette,
Louisiana, resulting in the release of over 8,000 gallons of
hydrochloric acid when a tank car's top fittings were sheared off. The
release resulted in the mandatory evacuation of several thousand
residents. BNSF notes that although hydrochloric acid is not a PIH
material, a tank car containing a PIH material was next to the derailed
hydrochloric acid tank car in the consist.
Noting DOT's stated reliance on an analysis of 14 chlorine tank car
releases between 1965 and 2005, with one release of 1,000 gallons,\25\
AAR asserts that ``DOT can hardly minimize the significance of a loss
of 1,000 gallons * * * when it has just issued an interim final rule
addressing the routing of TIH materials where it bases a decision to
regulate on the potential for a release from tank cars containing 320
gallons or less.'' See 74 FR 20752, 20758 (Apr. 16, 2008). AAR further
notes that according to the Railroad Tank Car Safety Research and Test
Project's analysis of lading losses, losses from the top fittings
account for 20 percent of 135 releases from pressure cars in mainline
accidents where five percent or more of the lading was released; \26\
in AAR's words, ``hardly an insignificant percentage.'' In its comments
to the docket, AAR urges us to adopt the top-fittings standard of CPC-
1187.\27\ AAR notes that the AAR Tank Car Committee has already
approved two designs meeting both the CPC-1187 standard and DOT
standards, and that a third design meeting the CPC-1187 standard is
authorized under a DOT special permit.
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\25\ 73 FR 17840.
\26\ AAR cites the Railroad Tank Car Safety Research and Test
Project, ``Safety Performance of Tank Cars in Accidents:
Probabilities of Lading Loss,'' RA-05-02, p. 30 (Jan. 2006).
\27\ The top fittings standard proposed in the Joint Petition
discussed above is the top fittings standard of CPC-1187.
---------------------------------------------------------------------------
Another commenter, TGO Technologies, Inc., suggests that any new
tank car design must include secondary containment of the manway. TGO
asserts that measures such as lowering the profile of the valves,
installing a roll bar, welding the protective housing to the pressure
plate (as opposed to bolting it), and similar measures, may provide
``some protection'' against releases, but not equal to what a passive
secondary containment system could provide. Although DOT understands
the value of secondary containment systems in certain situations, we do
not believe that reliance on such systems would be appropriate in
attempting to increase the crashworthiness of railroad tank cars
transporting PIH materials.
Recognizing that since publication of the NPRM, industry has
developed several improved top fittings designs,\28\ and in response to
commenters' suggestions that we address top fittings, in this rule DOT
is modifying requirements in the HMR applicable to PIH tank car top
fittings. The specific modifications adopted are discussed in more
detail in the section by section analysis of Sec. 179.102-3 below.
---------------------------------------------------------------------------
\28\ Although some of these designs are still undergoing service
trials, each have been found to improve the ability of the fittings
to withstand accident conditions (and not adversely affect the
potential for non-accident releases), work with industry's existing
loading and unloading practices, and maintain compatibility with
current emergency response equipment.
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F. The Need for an Interim Standard for Tank Cars Used To Transport PIH
Materials
PIH shippers that submitted comments on the NPRM note that, unlike
other railroad freight cars, hazardous materials tank cars are
primarily owned or leased by shippers, not the railroads. The
overwhelming majority of these commenters recommend that DOT adopt an
interim tank car standard, with an appropriate grandfathering period
for tank cars meeting such standard, as a solution to ensure the
availability of PIH tank cars in the time period before DOT's proposed
performance standards are finalized and tank cars can be built to meet
those standards. PIH shippers explain that obtaining new or leased PIH
tank cars at the present time is very difficult, if not impossible.
Commenters note that, subsequent to publication of the NPRM, AAR
renewed its previously suspended interchange standard (Casualty
Prevention Circular 1187 or CPC-1187) for tank cars transporting PIH
materials.\29\ Although the tank car head and shell requirements of
CPC-1187 can be met by using DOT specification tank cars of higher tank
classes than required by DOT standards, tank cars built to meet the
CPC-1187 standard would not meet the performance standards proposed in
the NPRM. Commenters express concern that the tank cars could not be
retrofitted to meet any final DOT standard because of the weight of the
cars. Coupled with the general consensus of the tank car industry that
the tank head and shell puncture resistance performance requirements
proposed in the NPRM are ``technology-forcing,'' commenters assert that
the tank car market is effectively frozen. According to these
commenters, shippers and other tank car purchasers (e.g., tank car
lessors) cannot purchase PIH tank cars with any assurance that the cars
will have a reasonable economic life. According to these commenters,
this uncertainty
[[Page 1783]]
encourages lessors to delay purchases or to exit the market altogether,
in either case leading to the delayed phase-out of aging tank cars that
would normally be replaced with newer, safer cars and, potentially, a
shortage of PIH tank cars.
---------------------------------------------------------------------------
\29\ CPC-1187 is discussed in detail in the preamble to the
NPRM. 73 FR 17832-17833 and in AAR's comments responding to the
NPRM. See document no. 79 in the docket.
---------------------------------------------------------------------------
Several commenters suggest specific interim solutions. Some
recommend that DOT grandfather existing PIH tank cars under any final
rule. Others recommend that DOT grandfather tank cars constructed to
meet the standards of CPC-1187, assuring purchasers of these tank cars
that the cars will be afforded a reasonable economic useful life.
Commenters suggest grandfathering periods from 15-50 years.
For example, Dow suggests an interim chlorine tank car utilizing a
current 105J600W car with full-height head shields, 1.1360 inch head
thickness and 0.9819 inch shell thickness; or an enhanced 105J500W car
with full-height head shields, and with head, head shield and jacket
thickness to achieve an equivalent level of puncture resistance as the
enhanced 105J600W, or any alternative design that can be demonstrated
to achieve an equivalent puncture resistance. Similarly, Dow suggests
an interim ethylene oxide car utilizing a 105J500W car with full-height
head shields, 1.0300 inch head thickness and 0.8900 inch shell
thickness; or an enhanced 105J300W or 105J400W car with full-height
head shields, and with head, head shield and jacket thickness to
achieve an equivalent level of puncture resistance as the enhanced
105J500W, or any alternative design that can be demonstrated to achieve
an equivalent puncture resistance. Dow recommends that any such interim
car be authorized for its intended service for at least 25 years from
its original build date.
The Ethylene Oxide/Ethylene Glycols Panel of the Ethylene Oxide
Safety Task Group of the ACC recommends a retrofit approach to an
interim ethylene oxide tank car. Specifically, this Task Group suggests
an interim standard for ethylene oxide tank cars complying with at
least the 105J300W specification, insulated tanks and protected with an
outer steel jacket at least 0.375 inches thick and constructed of steel
similar to TC128B. The Task Group further proposes that a tank car
meeting such interim standard be authorized for ethylene oxide service
for 50 years from its original construction.
In addition to these specific suggestions for interim tank car
standards, as noted in the ``Background'' section above, industry
participants filed two petitions requesting that the Department amend
the HMR to authorize interim standards for tank cars transporting PIH
materials. The Joint Petition, filed by ACC, ASLRRA, AAR, CI and RSI
(Petitioner Group) seeks DOT approval of interim rail tank car
standards that could be met in three different ways. First, the Joint
Petition contemplates a commodity-specific scaled step up in the DOT
specification tank car used to transport PIH commodities. In other
words, the Joint Petition proposes that where the HMR currently require
a 105*300W car (DOT specification tank car authorized for
transportation of chlorine) or 112*340W car (DOT specification tank car
authorized for transportation of anhydrous ammonia), as a stepped
improvement, the proposed interim standard would require a 105J500W or
112J500W car,\30\ with a minimum head and shell thickness of \13/16\
inches and a full-height \1/2\-inch thick or equivalent head shield.
Similarly, the Joint Petition proposes that where the HMR currently
require a 105*500W or 105*600W tank car, as a stepped improvement, the
proposed interim standard would require a 105J600W car, with a minimum
head and shell thickness of \15/16\ inches and full-height \1/2\-inch
thick or equivalent head shield.
---------------------------------------------------------------------------
\30\ A DOT class 112 car differs from a DOT class 105 car in
that it is not insulated.
---------------------------------------------------------------------------
Second, the Joint Petition contemplates an alternative performance
standard based on the CPR metric discussed above. This alternative
performance standard utilizes relative probabilities that conventional
tank cars and tank cars with thicker tanks will release hazardous
materials in an accident. In the Joint Petition, this relative
comparison between two conditional probabilities is referred to as the
``Tank Improvement Factor'' (TIF). The Joint Petition contains a table
showing the TIF for 25 PIH materials commonly transported by railroad
tank car.
Third, the Joint Petition requests that DOT allow alternative
methodologies to demonstrate improvement equivalent to the TIF
calculation.
The Joint Petition proposes a specific design standard for chlorine
tank cars, which Petitioners assert would achieve the desired CPR
improvement. The initial chlorine tank car design standard proposed was
a 105J500W tank car with a head, shell, jacket, and head shield, 0.777
inch thick, 0.777 inch thick, 0.375 inch thick, and a 0.625 inches
thick, respectively. In comments submitted on July 25, 2008, the
Petitioner Group modified the proposed chlorine design standard to a
105J500W tank car with a total head and head shield thickness of 1.636
inches and a total shell and jacket thickness of 1.102 inches. Both
proposed design standards specified that the jacket be constructed of
steel with a minimum tensile strength of 70 ksi and minimum elongation
in two inches of 21%.
The Joint Petition also proposes a top fittings protection standard
that would require top fittings to be designed to withstand, without
loss of lading, a rollover with a linear velocity of nine mph. Noting
that the HMR currently mandate that the top fittings protection system
be bolted to the tank, the Joint Petition suggests that the 9 mph
rollover standard necessitates, instead, that the top fittings
protection system be attached to the tank by welding. This top fittings
arrangement is consistent with CPC-1187's requirement.
Finally, the Joint Petition proposes that DOT grandfather tank cars
built to meet the proposed standards for 25 years after the effective
date of the final rule in this docket.
In its petition, TFI expresses support for many aspects of the
Joint Petition, but also contends that the unique characteristics of
its members' fleets of anhydrous ammonia tank cars necessitate special
consideration by DOT. Noting the safety features of the typical
anhydrous ammonia tanks cars currently in service, DOT112J340W tank
cars, TFI proposes that these cars remain in production until January
1, 2009 and proposes set useful lives of these cars of approximately
20-25 years. As an interim car to be manufactured starting January 1,
2009 until cars are available under any DOT final performance standard,
TFI proposes DOT 112J400 pound cars with thicker jackets and a
guaranteed useful life of 25 years from the date of a final rule in
this docket.
DOT agrees with commenters' assertions that an interim solution is
necessary. Accordingly, this rule amends the HMR by specifying enhanced
commodity-specific design standards for PIH tank cars constructed after
March 16, 2009. The standards specified are based on existing DOT
specification cars and modified top fitting designs developed by
industry since publication of the NPRM. This rule provides for a 20-
year expected PIH service life of tank cars meeting these interim
standards. As noted above, this rule is an interim solution to the
market issues identified by commenters. DOT intends to move forward as
expeditiously as possible with the development and validation of an
enhanced performance standard for PIH tank cars, and the incorporation
of such enhanced standard into the HMR.
[[Page 1784]]
Although as noted in section A above, we have not adopted the exact
standards proposed by AAR and the Petitioner Group, we utilized the
Group's basic framework of proposed specifications to develop a more
direct and less cumbersome means of demonstrating the performance of
alternative tank car designs, which takes into consideration the
physics that tank cars experience during accidents, derailments, and
other types of rail incidents. This methodology results in interim
standards generally consistent with that proposed by both the
Petitioner Group and TFI.\31\
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\31\ In its petition, TFI further suggests an accelerated phase-
out of pre-1989 tank cars constructed utilizing non-normalized steel
by December 31, 2010. Although we have not adopted this proposal, as
noted in section IV.B and discussed in more detail in the section-
by-section analysis of Sec. 173.31, this rule does require rail car
owners that retire or remove rail tank cars from PIH service to
prioritize the retirement or removal of pre-1989 non-normalized
steel cars. In addition, we note that this rule addresses only PIH
tank cars constructed after March 16, 2009 and cars built to meet
the standards set forth in this rule. This rule does not limit the
PIH service life of existing PIH tank cars meeting the requirements
of the HMR prior to this rule's effectiveness.
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V. Discussion of Comments on Petitions for Interim Tank Car Standards
On July 23, 2008, PHMSA published the petitions submitted by the
Petitioner Group and TFI and requested comments on their merits (73 FR
42765). Approximately 20 persons submitted comments, including industry
associations, PIH shippers and receivers, a tank car manufacturing and
repair company, the American Association for Justice, and
representatives of local governments and emergency response teams.
Although most commenters reiterate their support for DOT's development
of a performance standard as proposed in the NPRM, the overwhelming
majority of commenters express support for the development of interim
PIH tank car standards with an accompanying grandfather period. For
example, Dow supports both the Joint Petition and TFI's petition and
suggests that an interim final rule for PIH tank cars should include
(1) tank car safety improvements ``based upon currently available and
proven construction materials, design concepts and technologies''; and
(2) a reasonable economic life for tank cars built during the interim
period. Similarly, Olin's Chlor Alkali Products Division suggests that
adoption of the interim standard in the Joint Petition would lead to
immediate safety improvements and make it economically viable for tank
car owners to replace existing tank cars at the end of their useful
lives with newer, safer cars, thereby ensuring shippers would have
access to adequate PIH tank cars to meet service needs. PPG expresses
support for the Joint Petition and asserts that interim standards are
necessary to provide alternatives for tank car designs that would
ensure the continued safe shipment of chlorine and allow for a design
that can be retrofitted in the future to meet any final performance
standard.
One commenter, DuPont, contends that the Joint Petition's proposal
is ``far too generic and does not adequately address the
crashworthiness and commodity-specific requirements for tank car
design.'' DuPont suggests that the TIF contemplated in the Joint
Petition is ``not a true indicator'' of a tank car's crashworthiness
and that a ``strictly probabilistic approach,'' such as the CPR metric
proposed in the Joint Petition is not appropriate. Further, DuPont
suggests that each PIH commodity must be considered individually as
interim performance standards are developed.
As discussed in Section IV.A of this preamble and the Section-by-
Section analysis of Sec. 173.244, we agree that the purely statistical
analysis of CPR is not the best metric for measuring the effectiveness
of tank car improvements. We also appreciate DuPont's concerns
regarding the commodity-specific requirements for tank car design.
Accordingly, in this rule we have adopted commodity-specific design
standards for PIH tank cars based on existing DOT specification cars.
We recognize that as a result of the differing physicochemical
properties of certain PIH commodities, such as chlorosulfonic acid and
anhydrous hydrogen fluoride, unique tank car designs have developed
over time and are currently authorized by special permit. We do not
intend to supplant those special permits with this rule. Shippers may
continue use of the existing tank cars under these special permits.
Additionally, the special permit process provides for the development
and authorization of alternative tank car designs as contemplated by
the Joint Petition. Specifically, the special permit process enables
tank car owners and manufacturers to develop variations in tank car
designs, using materials and techniques that are not currently
authorized. We anticipate that shippers and tank car manufacturers will
continue to perform safety equivalency evaluations and submit special
permit applications to address variations in tank car designs for
particular materials.
Although we agree with DuPont's suggestion that a performance
standard should be the ultimate goal of any effort to specify tank car
improvements, we do not believe that such a standard is necessary to
achieve the purposes of this interim rule. Instead, we believe the
commodity-specific design standards based on existing DOT specification
cars provides a commercially feasible and effective method of improving
the accident survivability of PIH tank cars in the near term. As noted
earlier in this document, this rule is the first part of a longer-term
strategy to enhance the safety of rail shipments of PIH materials. We
plan to continue to develop and validate performance standards that
further improve the crashworthiness of PIH tank cars.
As discussed above, the Joint Petition also proposes a top fittings
protection standard that would require top fittings to be designed to
withstand, without loss of lading, a rollover with a linear velocity of
nine mph and permit top fittings protection system to be attached to
the tank by welding. In its comments, DuPont expresses concern about
the proposed top fittings protection standard, stating that inspections
of similar designs have shown that corrosion can develop in welded
protective housings and that such corrosion could impact the structural
integrity of the housing, reducing its effectiveness in the event of a
rollover. DuPont notes that it is ``aware of no data analyzing the
impact of the corrosion risk on the overall integrity of the housing
(and related impact on overall tank car safety) as compared to the
current bolted housing design.'' As noted in the section-by-section
analysis of Sec. 179.102-3 below, we share DuPont's concern regarding
the welding of the top fittings protective housing to the tank, and
accordingly, we have not adopted this aspect of the Joint Petition.
Several anhydrous ammonia shippers and receivers submitted comments
supporting the TFI petition, including its proposal to permit cars
currently used to transport anhydrous ammonia to remain in service for
20-25 years. Although we appreciate TFI's desire for assurance as to a
guaranteed PIH service life of its existing anhydrous ammonia fleet,
such assurance is outside the scope of this rule. This rule addresses
only PIH tank cars constructed after March 16, 2009 and cars built to
meet the standards set forth in this rule. This rule does not limit the
PIH service life of existing PIH tank cars meeting the requirements of
the HMR prior to this rule's effective date nor does it provide a
guaranteed PIH service life for the existing fleet. The issue of
[[Page 1785]]
grandfathering the existing PIH tank car fleet will be addressed with
DOT's promulgation of a final performance standard.
In its petition, TFI proposes an interim standard for anhydrous
ammonia cars that would incorporate the current DOT 112J400 pound cars
with thicker jackets to enhance accident survivability. We agree that a
112J400W car with a thicker jacket and head will provide a significant
safety improvement over existing 112J340W cars. Accordingly, this rule
specifies that newly constructed cars designed for anhydrous ammonia
service must meet the 105J500I or 112J500I specifications, and also
authorizes a 400 pound car, as proposed by TFI, with a thicker jacket
and head.
VI. Summary of Rule
This rule prescribes enhanced safety measures for rail
transportation of PIH materials, including improvements in the safety
features of DOT specification tank cars. Pending further validation and
implementation of the crashworthiness performance standard proposed in
the NPRM, this rule amends the HMR to prescribe enhanced commodity-
specific design standards for PIH tank cars based on existing DOT
specifications. The amendments require that shell and/or jacket
thickness be increased for each commodity and that full head shields be
used where not already required. The increases in package
crashworthiness are generally scaled in the same manner as previous DOT
specifications, and the general intent is that the increases in package
robustness be accommodated within a gross weight on rail limitation of
286,000 pounds. This rule adds new engineering analysis to support
adding thickness to the head shield and jacket. Additionally, this rule
puts in place new requirements for enhancement of top fittings
protection systems and nozzle arrangements. This rule also implements a
proposed 50 mph speed limit for all loaded, placarded rail tank cars
used to transport PIH materials.
As discussed above, this rule will not implement the proposed
interim 30 mph speed limit in dark territory for tank cars transporting
PIH materials that do not meet the proposed enhanced performance
requirements. In addition, in response to comments, this rule does not
implement the proposed expedited replacement requirement for PIH tank
cars manufactured before 1989 with non-normalized steel head or shell
construction as proposed. Instead this rule requires that tank car
owners prioritize retirement or replacement of pre-1989 non-normalized
steel cars when retiring or removing cars from PIH materials service.
As stated above, although DOT believes that this rule incrementally
improves the crashworthiness protection of newly manufactured tank cars
designed for the transportation of PIH materials, DOT intends that the
standards set forth in this rule apply on an interim basis, until such
time as final performance standards are developed and tank cars are
available meeting such standards. DOT believes that PIH tank cars built
to the final performance standards will be significantly safer than
cars built to these interim standards. Accordingly, DOT does not intend
that the entire PIH tank car fleet be replaced with cars meeting these
interim requirements.\32\ To the contrary, beyond the numbers necessary
to meet new business demands and to replace cars that are damaged or
have reached the end of their service lives, acquisition of cars
meeting the interim standards will tend to diminish potential safety
benefits by delaying the introduction of cars built to the final
performance standards. Instead, DOT expects that tank car owners will
acquire cars meeting these interim standards to replace existing PIH
tank cars that are retired, scrapped, damaged, or otherwise taken out
of service in the normal course of operations and to meet new business
needs, only as necessary to efficiently and safely manage their PIH
tank car fleets pending the development and implementation of final
performance standards addressing the crashworthiness of PIH tank cars.
---------------------------------------------------------------------------
\32\ As noted in the Regulatory Impact Analysis accompanying
this rule, DOT estimates that the fleet of interim PIH tank cars
will at most represent approximately 14% of the total PIH tank car
fleet (roughly 2,044 tank cars).
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VII. Section-by-Section Analysis
Part 171
Section 171.7--Reference Material
This section addresses reference materials that are incorporated by
reference into the HMR. In the NPRM, we proposed to allow an increase
in the gross weight on rail of tank cars to 286,000 pounds and
accordingly, we proposed to amend Sec. 171.7(a)(3), the table of
material incorporated by reference, to add the entry for AAR Standard
S-286-2002, Specification for 286,000 lbs. Gross Rail Load Cars for
Free/Unrestricted Interchange Service, revised as of 2005.
Subsequently, FRA learned that AAR revised Standard S-286-2002 in 2006
and renamed the standard ``S-286, Free/Unrestricted Interchange for
286,000 lb Gross Rail Load Cars''. AAR Standard S-286 is the existing
industry standard for designing, building, and operating rail cars at
gross weights between 263,000 pounds and 286,000 pounds. As discussed
in the analysis of Sec. 179.13, in this rule we are adopting the
proposal to allow an increase in the gross weight on rail of tank cars.
Accordingly, we are adopting the proposal to incorporate the AAR
Standard, only revising the rule text to incorporate the most recent
version of the Standard. By incorporating the standard into the HMR, we
will ensure that tank cars exceeding the existing 263,000 pound
limitation and weighing up to 286,000 pounds gross weight on rail are
mechanically and structurally sound.
Part 172
The Hazardous Materials Table in Sec. 172.101 is amended to
consolidate and update the special provisions applicable to the rail
tank car transportation of PIH materials. The revisions to the table
are for ease of reference only and do not substantively change the
requirements applicable to the transportation of PIH materials by
railroad tank cars.
Part 173
Section 173.31--Use of Tank Cars
Existing Sec. 173.31 addresses the use of tank cars to transport
hazardous materials and contains various safety system and marking
requirements. The NPRM proposed to revise existing paragraphs (a)(6),
(b)(3), (b)(6) and (e)(2)(ii), as well as add new paragraphs (b)(7) and
(b)(8). This rule implements revisions to paragraphs (b)(6) and
(e)(2)(ii) and adds new paragraphs (e)(2)(iii) and (e)(2)(iv). The
proposed revision to paragraph (a)(6) is unnecessary because this rule
implements a marking under Sec. 179.22 that does not change the
existing delimiters specified in the paragraph. The proposed revision
to paragraph (b)(3) is unnecessary because this rule does not modify
the existing head protection requirements specified in the paragraph.
Proposed new paragraphs (b)(7) and (b)(8) related to the enhanced tank
shell puncture-resistance systems. This rule does not mandate the
proposed tank head and shell puncture-resistance performance standards.
Therefore, the proposed revisions to these paragraphs are not adopted
in this rule.
Current paragraph (b)(6) requires tank car owners to implement
measures to ensure the phased-in completion of modifications previously
required by the Department and to annually report progress on such
phased-in implementation. We proposed to modify
[[Page 1786]]
paragraph (b)(6) by deleting references to various compliance dates
that have now passed. This rule adopts the proposed deletions from
paragraph (b)(6).
Current paragraph (e)(2) requires tank cars used to transport PIH
materials to have a minimum tank test pressure of 20.7 Bar (300 psig),
head protection, and a metal jacket. In this rule, we are revising this
paragraph to remove the outdated compliance date in paragraph
(e)(2)(ii), and cross reference the applicable authorized tank car
specifications and standards listed in Sec. 173.244(a)(2) and (3) and
Sec. 173.314(c) and (d).
We are also adding new paragraphs (e)(2)(iii) and (iv). New
paragraph (e)(2)(iii) authorizes the use of PIH tank cars meeting the
applicable authorized tank car specifications and standards listed in
Sec. 173.244(a)(2) or (3) or Sec. 173.314(c) or (d) for 20 years
after the date of original construction. New paragraph (e)(2)(iv)
requires that if a tank car owner retires or otherwise removes a tank
car from PIH materials service, that owner must retire or remove cars
constructed of non-normalized steel in the head or shell before
removing any car in PIH materials service constructed of normalized
steel meeting the applicable DOT specification. Because a car damaged
as a result of an accident no longer meets DOT specifications, and the
decision to remove this car from service may actually be that of the
damaging railroad, this requirement does not apply to the replacement
of such damaged cars (i.e., a car owner is free to replace a damaged
car with a car constructed to meet this interim standard regardless of
whether the damaged car was a pre-1989 car of non-normalized steel
construction, or a newer car constructed of normalized steel).
Section 173.244--Bulk Packaging for Certain Pyrophoric Liquids
(Division 4.2), Dangerous When Wet (Division 4.3) Materials, and
Poisonous Liquids With Inhalation Hazards (Division 6.1)
This section sets forth bulk packaging requirements for certain
Division 4.2, 4.3, and 6.1 materials. The NPRM did not propose
revisions to this section. However, in this rule, we are revising
paragraph (a) to authorize new tank car specifications for tank cars
manufactured after March 16, 2009, for the listed PIH materials.
Generally, the tank car specifications authorized in this section are a
step up from the specifications currently mandated by the HMR for each
commodity, consistent with the proposal in the Joint Petition.
Recognizing that the HMR do not require all PIH commodities to be
transported in tank cars equipped with thermal protection, the
specifications authorized include both class 105 and 112 cars. We are
also revising paragraph (a) to include the language from special
provisions B71, B72, and B74 (which are removed from the Sec. 172.101
Hazardous Materials Table) as a matter of convenience for the reader.
Paragraph (a)(3) provides an alternative authorized tank car to
that listed in column (2) of the table in paragraph (a), that provides
an equivalent level of safety. This alternative would allow the use of
a car with a tank constructed to a lower test pressure within the same
DOT class, provided that the added steel necessary for the higher
pressure is moved from the tank to the tank car jacket and head. This
provision responds to the Petitioner Group's request that DOT provide
an alternative performance standard to the stepped-up commodity
specific tank car specifications, and also responds to TFI's request to
authorize on an interim basis 112J400 cars with thicker jackets for
anhydrous ammonia service.
The Petitioner Group requested that DOT authorize cars that meet a
formula \33\ demonstrating that improvements to the head or shell are
at least as good as the design standards (i.e., the stepped-up
commodity-specific tank car specifications) in terms of CPR. The
petitioners suggest that this alternative will provide an opportunity
to retrofit these tank cars at some future point in order to achieve an
equivalent level of safety to any changing regulatory requirements or
technology improvements.
---------------------------------------------------------------------------
\33\ The formula proposed is:
1-(CPR of tank car/CPR of minimum specification tank car) >= TIF
for the commodity.
---------------------------------------------------------------------------
As noted in section IV.F above, the Petitioner Group proposes a
specific alternative design standard for chlorine tank cars: a DOT
105J500W tank car with a total head and head shield thickness of 1.636
inches and a total shell and jacket thickness of 1.102 inches. The
jacket material would be 70,000 p.s.i. minimum tensile strength steel,
having a minimum elongation of 21 percent in two inches.
As previously stated, DOT remains unconvinced that the CPR metric
is the best means of determining tank car improvements. However, DOT
agrees that the Petitioner Group's proposal for an alternative car is a
valid concept. We note, however, that the Petitioner Group's proposal
(in Exhibit 1 to the petition pertaining to 25 different PIH materials
and the proposed alternative chlorine tank car design) is based on a
single tank car diameter per commodity. Mandating minimum thicknesses
without specifying mandatory diameters would be inconsistent with the
current regulatory structure applicable to pressure vessels.
Additionally, tank car manufacturers may desire to vary the tank
diameters to offer a variety of configurations depending on shippers'
needs and their own manufacturing processes. The HMR provide a formula
that enables a builder to calculate the tank thickness based upon the
chosen diameter.\34\ In addition, the calculations provide an incentive
for using steels with a higher tensile strength. By using AAR TC-128,
Grade B steel with a tensile strength of 81,000 k.s.i. tensile
strength, the tank shell can be manufactured at 84.3% of the thickness
mandated for a car of the same diameter manufactured from steels with
lower tensile strengths (e.g., 70,000 k.s.i. to 80,000 k.s.i.).
---------------------------------------------------------------------------
\34\ See Sec. 179.100-6(a).
---------------------------------------------------------------------------
The DOT alternative tank car outlined in paragraph (a)(3) mirrors
the approach used by the Petitioner Group in developing its
alternative, but does not limit the tank diameter or force the builder
to use a lower tensile steel by adding forming thicknesses when
determining how much steel to move from the tank shell and head to the
head shield and jacket. DOT finds that the effect of steel in the tank
and head or jacket is, at a minimum, commutative and can be transferred
with relative ease provided that minimum equivalent thicknesses are
maintained. Because of the variances in commodity, tank diameter,
length, and steel, DOT's alternative tank car provides equivalent
safety to the specified car through a more generally applicable
performance standard. The concept is simple: Sec. 179.100-6(a)
requires the wall thickness after forming for tank shell and heads to
be no less than the minimum thickness listed in the Sec. 179.101-1
Table or the calculation provided. For pressure tank cars greater than
400 pounds with an inside diameter above 100 inches, the formula
thickness will always set the minimum. Therefore, under DOT's approach,
the difference in the required plate thickness, based on the
calculations of the specified and alternative cars, is added to the
alternative car in the form of extra thickness in its tank car jacket
and head shield.
There are, however, several limitations to the alternative. First,
a reduction in tank test pressure of only one level is permitted.
Second, the tank
[[Page 1787]]
car head shield and jacket must be made from tank car carbon steel
authorized in Sec. 179.100-7. Finally, if the tank shell and head are
constructed from AAR TC-128, Grade B steel and the jacket and head
shield are made from authorized steel with a 70,000 p.s.i. tensile
strength, the material being transferred to the head shield and jacket
must include a 15.7 percent addition to account for the shift in steel
to a lower tensile strength.
Because the carbon steel plate used in the Petitioner Group's
specified car has a tensile strength of 81,000 p.s.i., if steel plate
of a lower tensile strength is used to add thickness, the equivalent
level of safety standard demands that the measured difference in
thickness be augmented by a factor to account for that lower tensile
strength. The difference in tensile strengths between 81,000 ksi steel
and the other common plate, with a tensile strength of 70,000 ksi, is a
factor of 1.157 when, for instance, ASTM A-516, Grade 70 is used in
lieu of AAR TC-128 Grade B steel. This means that, in addition to the
measured difference between the shells of the two cars, the thickness
of the added steel of a lower tensile must itself be increased by the
equivalency factor. For example, the Sec. 179.100-6 formula for the
shell plate thickness of a 600 pound test car that is 106 inches in
diameter requires AAR TC-128, Grade B plate of .981 inch thickness. A
500 pound car built of this diameter and this steel requires a shell
.818 inches thick, for a difference of .163 inches. If this required
additional thickness is of 70,000 p.s.i. tensile strength steel, .163
must be multiplied by 1.157, for a total addition of .189 inches to the
existing 11 gage (.1196 inch) jacket structure and .5 inch head shield.
FRA has determined that this equivalency factor is valid for all
tank cars over 100 inches in diameter and over 400 pounds test
pressure.
Section 173.249--Bromine
Current Sec. 173.249 sets forth specific packaging requirements,
including specific tank car requirements, for bromine, a PIH material.
The NPRM proposed to add a new paragraph (g) to the section, clarifying
that railroad tank cars transporting bromine must comply with the
enhanced tank-head and shell puncture-resistance requirements of
proposed Sec. Sec. 179.16(b) and 179.24. Because we are not adopting
the proposed tank-head and shell puncture-resistance requirements in
this rule, we are instead revising this section to add a new paragraph
(g) clarifying that railroad tank cars built after March 16, 2009, and
used to transport bromine must meet the applicable authorized tank car
specification listed in the table in Sec. 173.244(a)(2) or the
alternative specified in Sec. 173.244(a)(3).
Section 173.314--Compressed Gases in Tank Cars and Multi-Unit Tank Cars
Current Sec. 173.314 sets forth specific filling limits and tank
car packaging requirements for various compressed gases, including
chlorine, a PIH material. Although in the NPRM our proposed revisions
to this section were limited to paragraph (k), which contains specific
tank car packaging requirements relevant to chlorine, in this rule we
are revising paragraphs (c), (d), and (k).
Current paragraph (c) sets forth specific compressed gas filling
limits for tank cars and commodity-specific authorized tank car classes
for particular commodities. In this rule, we are amending the table in
paragraph (c) to authorize specifications for tank cars manufactured
after March 16, 2009 for the listed PIH materials. We are adding note
11 to the table to make clear that for tank cars built prior to March
16, 2009 and used to transport PIH materials, the current class of
authorized tank cars may continue to be used, provided the tank cars
have been approved by the AAR Tank Car Committee for transportation of
the specified material. Similarly, we are adding note 12 to the table
to make clear that for tank cars built on or after March 16, 2009, only
tank cars meeting the listed authorized tank car specifications in
column 4 of the table (or the alternative requirements of paragraph
(d)) may be used to transport PIH materials. Multi-unit tank car tanks
and forged-welded tank car tanks (e.g., DOT 106, DOT 109, and DOT 110)
may continue to be used as authorized. Similar to the authorized
specifications in Sec. 173.244, the authorized specifications in this
section are a step up (i.e., a higher test pressure) from the
specifications currently mandated by the HMR for each commodity,
consistent with the proposal in the Joint Petition. Again, recognizing
that the HMR do not require all PIH commodities to be transported in
tank cars equipped with thermal protection, the specifications
authorized include both class 105 and 112 cars.
Consistent with the revisions in Sec. 173.244(a)(3), currently
reserved paragraph (d) is added to provide an alternative to
constructing a car meeting the authorized tank car specifications
listed in column (3) of the table in paragraph (c), provided the
alternative car achieves an equivalent level of safety. The technical
basis for this alternative is described above in the discussion of
Sec. 173.244(a)(3).
The NPRM proposed to revise paragraph (k) to make clear that
railroad tank cars transporting chlorine must comply with the enhanced
tank-head and shell puncture-resistance requirements of proposed
Sec. Sec. 179.16(b) and 179.24. Because we are not adopting the
proposed tank-head and shell puncture-resistance requirements, we are
instead revising paragraph (k) to clarify that railroad tank cars built
after March 16, 2009 and used to transport chlorine must meet the
applicable authorized tank car specification in the table immediately
following paragraph (c). We are also revising this paragraph to provide
that tank cars constructed after March 16, 2009 used for the
transportation of chlorine may be equipped with a pressure relief
device required for a DOT 105A300W car, but that the car may not be
restenciled to the lower test pressure.
In the NPRM, we proposed to replace the current insulation system
of 2-inches glass fiber over 2-inches ceramic fiber with a requirement
to meet the existing thermal protection requirements of Sec. 179.18,
or with a system that has an overall thermal conductance of no more
than 0.613 kilojoules per hour, per square meter, per degree Celsius
temperature differential. As noted in the NPRM, this proposal was
intended to allow flexibility in the use of the interstitial space
between the tank shell and jacket for crush energy management purposes.
Because we are not adopting the proposed tank head and shell impact
performance standards which would necessitate use of the interstitial
space, we have decided not to adopt the proposed regulatory change at
this time.
Section 173.323--Ethylene Oxide
Existing Sec. 173.323 sets forth specific packaging requirements,
including tank car requirements, for ethylene oxide, a PIH material.
Specifically paragraph (c)(1) contains requirements for transporting
ethylene oxide in railroad tank cars. In the NPRM we proposed to revise
paragraph (c)(1) to make clear that railroad tank cars transporting
ethylene oxide must comply with the proposed enhanced tank-head and
shell puncture-resistance requirements of proposed Sec. Sec. 179.16(b)
and 179.24. Because we are not adopting the proposed tank-head and
shell puncture resistance requirements, we are instead revising
paragraph (c)(1) to clarify that railroad tank cars built after March
16, 2009 and used to transport ethylene oxide must meet the applicable
authorized tank car specification listed
[[Page 1788]]
in the table in Sec. 173.314(c) or the requirements of Sec.
173.314(d).
Part 174
Section 174.2--Limitation on Actions by States, Local Governments, and
Indian Tribes
Section 174.2 is unchanged from that proposed in the NPRM and
simply informs the public of statutory provisions which govern the
preemptive effect of the rule. Although we did not receive any comments
responding to proposed Sec. 174.2, we did receive comments related to
the NPRM's discussion of the preemptive effect of the proposed rule in
the Regulatory Notices section of the preamble. Those comments, as well
as our responses, are discussed in the Regulatory Notices section
below.
Section 174.86--Maximum Allowable Operating Speed
Current Sec. 174.86 addresses the maximum allowable operating
speed for molten metals and molten glass. The NPRM proposed to add new
paragraphs (b) and (c) limiting the operating speed of all railroad
tank cars transporting PIH materials to 50 mph, and in non-signaled
territory limiting the operating speed of railroad tank cars
transporting PIH materials to 30 mph, unless alternative measures
providing an equivalent level of safety are provided, or the material
is being transported in a tank car conforming to the proposed enhanced
tank-head and shell impact puncture resistance requirements.
As discussed in section IV.B above, this rule adopts the proposed
50 mph restriction for all trains transporting loaded, placarded tank
cars containing PIH materials, but does not adopt the proposed interim
30 mph restriction in dark territory. Accordingly, in this final rule,
we are revising paragraph (b) to restrict the operating speed of trains
transporting any loaded, placarded tank cars containing PIH materials
to 50 mph. We are not adopting the proposed revisions to paragraph (c).
Part 179
Section 179.8--Limitation on Actions by States, Local Governments, and
Indian Tribes
Section 179.8 is unchanged from that proposed in the NPRM and
simply informs the public of statutory provisions which govern the
preemptive effect of the rule. Although we did not receive any comments
responding to proposed Sec. 179.8, we did receive comments related to
the NPRM's discussion of the preemptive effect of the proposed rule in
the Regulatory Notices section of the preamble. Those comments, as well
as our responses, are discussed in the Regulatory Notices section
below.
Section 179.13--Tank Car Capacity and Gross Weight Limitation
Existing Sec. 179.13 sets forth tank car capacity and gross weight
limitations. Specifically, this section provides that tank cars may not
exceed a capacity of 34,500 gallons or 263,000 pounds gross weight on
rail. In the NPRM, recognizing that safety improvements would
necessitate an increase in the weight of a tank car, we proposed to
revise this section to allow an increase in the gross weight on rail to
286,000 pounds for tank cars constructed to meet the proposed head and
shell impact puncture-resistance standards. Although this rule does not
adopt the proposed performance standards, the safety improvements
mandated in this rule may necessitate the construction of heavier cars,
and as discussed in section IV.C above, this rule adopts the proposal
to allow an increase in the gross weight on rail of tank cars
constructed to meet the new interim standards provided the weight
increases are not used to increase product capacity.
Section 179.16--Tank-Head Puncture-Resistance Systems
Current Sec. 179.16 contains the tank-head puncture resistance
requirements applicable to tank cars currently required under the HMR
to have tank-head puncture-resistance systems. The NPRM proposed to
amend this section to specify an enhanced tank-head puncture-resistance
performance standard for tank cars used to transport PIH materials.
Because we are not adopting the proposed tank-head puncture-resistance
performance standard, this rule does not modify the requirements of
this section. As noted above, however, DOT plans to continue to develop
and validate a performance standard such as that proposed to further
improve the crashworthiness of PIH tank cars.
Section 179.22--Marking
Existing Sec. 179.22 contains marking requirements applicable to
railroad tank cars. Specifically, this section provides that tank cars
must be marked in accordance with the Tank Car Manual and assigns
meaning to each of the delimiters used in tank car specification
markings. This rule adds a new paragraph (e) which requires that tank
cars manufactured after March 16, 2009 to meet the requirements of
Sec. 173.244(a)(2) or (3) or Sec. 173.314(c) or (d) be marked with an
``I'' following the test pressure instead of the letter ``W.'' This
marking requirement is intended to allow ready identification of tank
cars constructed to meet these interim standards.
Section 179.100-3--Type
Current Sec. 179.100-3 provides general requirements for the
construction of pressure tank cars designed for hazardous materials
transportation. Although the NPRM did not propose a revision to this
section, consistent with the recommendation of some commenters during
the public outreach process prior to promulgation of the NPRM,\35\ this
rule revises currently reserved paragraph (b) to adopt the long
standing industry standard (AAR interchange requirement) requiring head
shields and shells of newly constructed pressure tank cars to be
constructed of normalized steel.
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\35\ See Transcript of Dec. 14, 2006 public meeting.
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Section 179.102-3--Materials Poisonous by Inhalation
This rule adds a new Sec. 179.102-3 which addresses certain
aspects of the design of PIH material tank cars constructed to meet the
requirements of Sec. 173.244(a)(2) and (3) and Sec. 173.314(c) and
(d). First, in response to commenters recommendations, paragraph (a)
includes a performance standard for tank car top fittings protection,
based on industry's development of several improved top fitting designs
since publication of the NPRM.
As discussed above, the Petitioner Group proposed a top fittings
protection standard that would require top fittings to be designed to
withstand, without loss of lading, a rollover with a linear velocity of
nine miles per hour. Further, the Petitioner Group proposed that DOT
allow the top fittings protective housing to be attached to the tank by
welding, as opposed to the HMR's current requirement that the top-
fittings protection system be bolted to the tank.
Although we adopted the proposed nine miles per hour performance
standard, we did not adopt the allowance for welding of the protective
housing to the tank. Additionally, new Sec. 179.102-3 provides an
alternative standard that we believe addresses the intent of the
Petitioner Group's request, and recognizes the views expressed by other
commenters with regard to top fittings. Particularly, in the
Department's public outreach efforts prior to publication of the NPRM,
commenters expressed general agreement that two of the most important
factors for top fitting
[[Page 1789]]
survivability in an accident are lowering the profile of the fittings
to reduce vulnerability and strengthening the protection surrounding
the fittings. See 73 FR 17840. Although the manway nozzle is not a part
of a tank car's top fittings protection system for regulatory
purposes,\36\ the nozzle is integral to protecting top fittings in
accident scenarios. If the nozzle fails, regardless of the strength of
the fittings themselves, a release will occur. Accordingly, paragraph
(a) requires the top fittings of tank cars constructed after March 16,
2009 to be enclosed within a protective housing and cover. The
protective housing system and the tank nozzle must be capable of
sustaining, without failure, a rollover accident at nine miles per
hour. Paragraph (a) further defines ``failure'' as occurring when ``the
deformed protective housing contacts any of the service equipment or
when the tank retention capability is compromised.'' Although the
Petitioner Group's proposed top fittings standard was based on the
ability of top fittings to withstand a nine mph rollover ``without loss
of lading,'' we note that the underlying research considered failure to
occur whenever the deformed protective housing came into contact with
any of the service equipment, or whenever the tank retention capability
was compromised in any other manner. Accordingly, we believe the
``failure'' criteria in Sec. 179.102-3(a)(1) is consistent with that
proposed by the Petitioner Group.
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\36\ Nozzles are considered part of the tank for regulatory
requirements. See 49 CFR 179.100-12. Top fittings protection systems
include the manway plate, the protective housing, the cover, and the
enclosed valves or fittings.
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Recognizing that the top fittings arrangements of different
conventional DOT specification tank cars have varying performance
levels, in paragraph (b) DOT has provided an alternative for the top
fitting protection portion of this requirement. Under the alternative,
tank cars must be equipped with a nozzle that meets the nine miles per
hour roll-over requirement, but may have a top fittings protection
system that prevents the release of product from any top fitting in the
case of an accident where the top fittings would be sheared off. If
this alternative is used, the required excess flow devices must be
mechanically operated.
DOT notes that currently only one special permit (DOT SP-14167,
issued to Trinity Industries, Inc. on April 20, 2006) authorizes the
welding of the top fittings protection system to the tank. Because of
the relative lack of service trial data from the alternate welding
design, in this rule, DOT has chosen to retain the current standard
requiring that the top fittings protection system be bolted to the
manway cover. DOT reminds tank car builders that, upon application, DOT
will consider requests for special permits to continue to evaluate new
designs deviating from the requirements of the HMR. In addition, DOT
will consider incorporating any special permit for alternate designs
into the regulations as soon as adequate service data is available.
We note that in developing these standards for top fittings
protection, we considered various alternatives. We considered adopting
just the Petitioner Group's proposed nine miles per hour rollover
standard. Recognizing that the top fittings arrangements of different
conventional DOT specification tank cars have varying performance
levels, we considered adopting a standard that required the doubling of
the speed that the top fittings of current tank cars authorized for
particular PIH materials could withstand. We also considered adopting
just a standard providing that if the top fittings were sheared off, no
product would be released. We believe that the 9 mph rollover standard
in paragraph (a)(1), coupled with the alternative top fittings standard
in (a)(3), represents a realistic and complementary approach in
reducing the likelihood of releases through the valves and fittings by
requiring the strengthening of all aspects of the tank car that impact
the performance of the top fittings and allowing for innovations
currently underway in the industry that prevent release if the
protective housing and valves are sheared off. As noted in the NPRM,
however, FRA has an ongoing research program focused on improving the
performance of tank car top fittings in the event of roll-over
incidents. We will continue this research effort and if the research
demonstrates additional improvements can be made, we will propose such
improvements in a subsequent rulemaking. DOT specifically requests
comment on the standards set forth in Sec. 179.102-3 of this rule.
New paragraph (b) includes a requirement that the tank jacket
applied to a car meeting the standards specified in Sec. 173.244(a)(3)
or Sec. 173.314(d) must undergo an engineering analysis as part of the
Certificate of Construction consideration and grant process. The
analysis must demonstrate that the jacket will not shift under the
forces generated in a 6 mph coupling. This requirement is necessary
because the alternative car jacket is certain to be significantly
heavier that the 11 gauge jacket now used as an industry standard. That
jacket has a proven history over many years of not shifting during
normal railroad transportation, including switch yard impacts of at
least 6 miles per hour. In order to keep a heavier jacket similarly
anchored, additional support is necessary to achieve the same level of
safe performance. Several builders have indicated that they are
considering, for instance, doubling the number of jacket anchor points.
In order to allow the builders maximum flexibility to design a jacket
anchoring system that will restrain a heavier jacket, DOT has mandated
a performance, rather than a design, requirement.
Section 179.102-17--Hydrogen Chloride, Refrigerated Liquid
Existing Sec. 179.102-17 sets forth specific tank car packaging
requirements for hydrogen chloride, refrigerated liquid, a PIH
material. The NPRM proposed to add a new paragraph (m) to the section
to make clear that railroad tank cars transporting hydrogen chloride
must comply with the proposed enhanced tank-head and shell puncture-
resistance requirements of Sec. Sec. 179.16(b) and 179.24. Because we
are not adopting the proposed tank-head and shell puncture resistance
requirements, we are instead revising this section to add a new
paragraph (m) clarifying that railroad tank cars built after March 16,
2009 and used to transport hydrogen chloride must meet the applicable
authorized tank car specification listed in the table in Sec.
173.314(c) or the alternative specified in Sec. 173.314(d).
VII. Regulatory Analyses and Notices
A. Statutory/Legal Authority for This Rulemaking
This rule is published under authority of the Federal hazmat law.
Section 5103(b) of Federal hazmat law authorizes the Secretary of
Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. SAFETEA-LU, which added Sec. 20155 to the
Federal hazmat law, requires, in part, that FRA (1) validate a
predictive model quantifying the relevant dynamic forces acting on
railroad tank cars under accident conditions and (2) initiate a
rulemaking to develop and implement appropriate design standards for
pressurized tank cars. Additionally, the Federal Railroad Safety Act,
49 U.S.C. 20101 et seq., authorizes the Secretary to issue regulations
governing all areas of railroad transportation safety.
[[Page 1790]]
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule has been evaluated in accordance with existing policies
and procedures, and determined not to be economically significant under
both Executive Order 12866 and DOT policies and procedures (44 FR
11034; Feb. 26, 1979). This rule is a significant regulatory action
under Sec. 3(f) Executive Order 12866 and, therefore, was reviewed by
the Office of Management and Budget (OMB). The rule is a significant
rule under the Regulatory Policies and Procedures order issued by the
DOT (44 FR 11034). We have prepared and placed in the docket a
regulatory impact analysis (RIA) addressing the economic impact of this
rule.
The RIA includes qualitative discussions and quantitative
measurements of costs related to implementation of this rule. The costs
are primarily for additional labor and material to incorporate the
improved PIH tank car crashworthiness features. In addition, there are
costs associated with tank car design modifications, increased PIH tank
car traffic, fuel for heavier tank cars, and the 50 mph operating
restriction.
The RIA also provides estimates of potential savings from
derailments and other accidents in which PIH tank car integrity will be
less likely to be compromised as a result of implementing this rule.
Such benefits include the saving of lives, the avoidance of injuries,
and the avoidance of evacuations, environmental cleanup, track and road
closures, and property and business damages. Additional societal
benefits are also discussed, but their value is translated into
monetary terms only to the extent practicable with the information
available. The analysis also includes business benefits associated with
the fact that the operating restriction will result in fuel savings.
For the 30-year period analyzed, the rule is estimated to have
quantified costs totaling $153 million with a PV (7%) of $83.6 million.
The business and other societal (non-safety) benefits discussed total
$37.64 million. As noted in the RIA, the likely effectiveness of this
rule can be represented by a percentage falling between 27 and 69
percent and for costs and benefits to break even, interim PIH tank cars
would have to achieve a minimum average effectiveness of 64 percent.
Although the large number of factors impacting any analysis of the
effectiveness of the designs required by this rule prevents an exact
determination of the effectiveness of this rule, because it is very
likely the number of events with respect to which puncture is possible
will tend to cluster toward the lower range of energies actually
encountered, achievement of the 64 percent effectiveness rate is a
plausible outcome. As also noted in the RIA, DOT is confident from a
public policy standpoint that the petitioners are advancing sound
arguments for DOT taking the requested action. Further, industry's
expressed need for Federal action to address a safety gap via their
petitions demonstrates a certain willingness to accept the costs
associated with the manufacture and operation of interim tank cars
meeting the requirements of this rule.
The results of the RIA analysis are sensitive to various inputs and
assumptions. DOT believes that the range of benefit levels show that,
despite the uncertainty surrounding the assumptions related to release
consequences, much needed safety benefits would be realized through
implementation of this rule. Absent issuance of this rule, availability
of essential materials would be threatened. Unfortunately, no
engineering consensus yet exists that would provide a complete
foundation for moving forward with the performance standard that DOT
proposed in its NPRM. However, the petitions for interim standards
provide the opportunity to begin to close the gap within the bounds of
accepted technology. This rulemaking addresses industry's current need
to procure PIH tank cars while reducing the risk presently attending
transportation of PIH materials by railroad tank car within a time
certain. Providing reassurance to the communities through which these
trains travel, that feasible action has been taken to safeguard those
potentially affected, itself provides societal benefits.
The RIA also notes that although quantitative methodologies such as
a benefit-cost analysis are a useful way of organizing and comparing
the favorable and unfavorable effects of regulatory changes such as
this rule, a benefit-cost analysis does not provide the policy answer,
but rather defines and displays a useful framework for debate and
review. Hence, the RIA is only one tool which can be utilized when
considering such a policy change.
C. Executive Order 13132
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132 (``Federalism''). This
rule amends PHMSA's existing regulations on the design and
manufacturing of rail tank cars authorized for the transportation of
PIH materials and the handling of rail shipments of PIH materials in
these rail tank cars. As discussed below, State and local requirements
on the same subject matters covered by PHMSA's existing regulations and
the amendments proposed in this NPRM, including certain State common
law tort actions, are preempted by 49 U.S.C. 5125 and 20106. At the
same time, this NPRM does not propose any regulation that would have
direct effects on the States, the relationship between the national
government and the States, or the distribution of power and
responsibilities among the various levels of government. Additionally,
it would not impose any direct compliance costs on State and local
governments. Therefore, the consultation and funding requirements of
Executive Order 13132 do not apply.
Through FRA and PHMSA, DOT comprehensively and intentionally
regulates the subject matter of the transportation of hazardous
materials by rail, thereby setting the Federal standard of care that
railroads must meet, and this rule is part of this regulatory scheme.
These regulations leave no room for State, local or Indian tribe
standards established by any means (e.g., statutory, regulatory, or
common law) dealing with the subject matter covered by the DOT
regulations. States are free of course to craft standards that address
the extremely rare ``essentially local safety and security hazard'' so
long as the standards otherwise (1) meet the three part test of 49
U.S.C. 20106 and (2) are not preempted under 49 U.S.C. 5125. Tort suits
may be brought when they are based on a violation of the Federal
standard of care; failure to comply with a plan created pursuant to a
Federal requirement; or failure to comply with a State law or
regulation that is permitted under Sec. 20106.
As discussed in the NPRM's preamble, the preemption provisions of
both the Federal hazardous materials transportation law (HMTA), 49
U.S.C. 5125, and the former Federal Railroad Safety Act of 1970 (FRSA),
49 U.S.C. 20106, govern the preemptive effect of this rule.\37\ State
and local requirements, including State common law tort actions, are
preempted by 49 U.S.C. 5125 and 20106, respectively, when
[[Page 1791]]
such non-Federal requirements cover the same subject matter as the
requirements in the Hazardous Materials Regulations (HMR), 49 CFR parts
171-180, and other DOT regulations and orders, or are inconsistent with
the HMR. A State may adopt, or continue in force a law, regulation, or
order covering the same subject matter as a DOT regulation or order
applicable to railroad safety and security (including the requirements
in this subpart), only when the additional or more stringent state law,
regulation, or order is necessary to eliminate or reduce an essentially
local safety or security hazard; is not incompatible with a law,
regulation, or order of the United States Government; and does not
unreasonably burden interstate commerce. (``Local safety and security
hazard exception'' found in Sec. 20106(a)(2).)
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\37\ See the ``Regulatory Analyses and Notices'' discussion of
Executive Order 13132 (73 FR 17852). Section 20106 preemption
applies to DOT regulations promulgated pursuant to both the FRSA and
the HMTA. See CSXT v. Williams, 406 F. 3d 667, 671 n.6 (D.C. Cir.
2005); see also CSXT Transp. v. Easterwood, 507 U.S. 658, 663 n.4
(1993); CSXT Transp. v. Public Utils. Comm'n of Ohio, 901 F. 2d 497
(6th Cir. 1990).
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The HMTA at Sec. 5125 contains an express provision preempting
State, local, and Indian tribe requirements on the following subjects:
(1) The designation, description, and classification of hazardous
material;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; and
(5) The design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This rule addresses both subjects 2 and 5 noted above and therefore
preempts any State, local or Indian tribe requirement that is not
substantively the same as PHMSA's regulations on these subject matters,
as those regulations are amended by this rule. The effective date of
preemption under 49 U.S.C. 5125 is April 13, 2009.
The FRSA also contains a preemptive provision that pertains to
safety regulations issued by DOT. Section 20103 authorizes the
Secretary of Transportation to prescribe regulations and issue orders
for every area of railroad safety. Section 20106 provides that States
may not adopt or continue in effect any law, regulation, or order
related to railroad safety or security that covers the subject matter
of a regulation prescribed or order issued by the Secretary of
Transportation (with respect to railroad safety matters) or the
Secretary of Homeland Security (with respect to railroad security
matters), except when the State law, regulation, or order qualifies
under the local safety or security exception to Sec. 20106. The courts
have construed the ``essentially local safety or security'' exception
very narrowly, holding that it is designed to enable States to respond
to local situations which are not statewide in character and not
capable of being adequately encompassed within uniform national
standards. See, e.g., Union Pacific R.R. v. California Pub. Util.
Comm'n, 346 F.3d 851, 860 (9th Cir. 2003) (CPUC). The intent of Sec.
20106 is to promote national uniformity in railroad safety and security
standards. 49 U.S.C. 20106(a)(1).
The Supreme Court has consistently found that Sec. 20106 preempts
not only State statutes, but State common law as well. See Norfolk
Southern Ry. v. Shanklin, 529 U.S. 344 (2000), and Easterwood (holding
that under Sec. 20106 state law claims are preempted whenever the
Secretary of Transportation has issued regulations that ``cover'' the
subject matter of the state law claims, including common law claims).
In Easterwood, the Supreme Court found that FRA's regulations that
``substantially subsume'' the subject matter of the relevant State law
will cause Sec. 20106 to apply, and it ruled that the railroad could
not be held liable on the grounds that it negligently permitted its
train to operate too fast under the circumstances when the train was
operating within the speed limits imposed by FRA regulations. 507 U.S.
at 664. Accordingly, with the exception of a provision directed at an
essentially local safety or security hazard, Sec. 20106 preempts any
State statutory, regulatory, or common law standard covering the same
subject matter as a DOT regulation or order.
As noted in the NPRM, in 2007, Congress clarified the availability
of State law causes of action under Sec. 20106 arising out of
activities covered by Federal requirements (Implementing
Recommendations of the 9/11 Commission Act of 2007, Public Law No. 110-
53 Sec. 1528, 121 Stat. 453). As amended, Sec. 20106(b) permits
certain State tort actions arising from events or activities occurring
on or after January 18, 2002 (the date of the Minot, North Dakota
hazardous materials train accident), for the following: (1) A violation
of the Federal Standard of care established by regulation or order
issued by the Secretary of Transportation (with respect to railroad
safety) or the Secretary of Homeland Security (with respect to railroad
security); (2) a party's failure to comply with, its own plan, rule, or
standard that it created pursuant to a regulation or order issued by
either of the two Secretaries; or (3) a party's violation of a State
standard that is necessary to eliminate or reduce an essentially local
safety or security hazard, is not incompatible with a law, regulations,
or order of the United States Government, and does not unreasonably
burden interstate commerce.
As we noted in the NPRM, this exception to preemption is limited.
By its terms, the exception applies only to an action in State court
seeking damages for personal injury, death or property damage. The
statute does not provide for the recovery of punitive damages in the
permitted common law tort actions. In addition, the statute permits
actions for violation of an internal control plan, rule, or standard
only to the extent that it is created pursuant to a Federal regulation
or order issued by DOT or DHS. These limitations are consistent with
well established judicial precedent and the legislative history of the
2007 amendment. As noted in the NPRM, while parties are encouraged to
go beyond the minimum regulatory standards, elements of their plan that
establish policies, procedures, or requirements that are not imposed by
a Federal regulation are not ``created pursuant to'' a Federal
regulation or order. Accordingly, there is no authorization of a common
law tort action alleging a violation of those aspects of such an
internal plan, rule, or standard related to the subject matter of this
regulation that exceed the minimum required or are otherwise not
specifically required by the Federal regulation or order. Where the
Federal regulation has established the standard of care, a railroad or
another regulated entity does not alter that standard of care by
creating a plan based on a higher standard. Finally, as indicated in
the NPRM, nothing in Sec. 20106 creates a Federal cause of action on
behalf of an injured party or confers Federal question jurisdiction for
such State law causes of action. See Sec. 20106(c).
In response to the NPRM's discussion of the preemptive effect of
Sec. 20106 relevant to the proposed rule, we received comments from
four parties: AAR, the American Association for Justice (AAJ), the
Brotherhood of Locomotive Engineers and Trainmen (BLET), and the United
Transportation Union (UTU). In both the May 29, 2008 meeting and
written comments to the docket, AAR expressed the view that DOT's
preamble discussion of the preemptive effect of the proposed rule
[[Page 1792]]
was correct and referred to comments it had filed in previous FRA
proceedings.
Citing the 2007 amendment to Sec. 20106, at the May 29, 2008
public meeting and in written comments, AAJ expressed the view that
neither Sec. 20106 or Sec. 5125 authorizes preemption of state common
law claims. AAJ requested that we revise the preamble discussion of
preemption to delete any language regarding the preemption of state
common law claims.
AAJ asserted that Federal railroad regulations ``have never
lawfully preempted State law claims,'' the HMR ``do not broadly preempt
state tort actions,'' and ``State common law should act in conjunction
with Federal regulations to govern railroad safety issues.'' It stated
that the 2007 amendment to Sec. 20106 ``sends a loud and clear message
that Sec. 20106 in no way preempts state common law claims.'' In
support of this assertion, AAJ cited several cases addressing
preemption in various contexts, including an unreported Minnesota state
court decision arising out of the Minot derailment, that was decided
several months before the amendment, In re Soo Line R.R. Co. Derailment
of January 18, 2002 in Minot, ND, 2006 WL 1153359. In that decision,
the court found for various reasons that plaintiffs' claims were not
preempted. AAJ cited In Re Soo Line for the case's reliance on the
well-settled ``presumption against preemption'' noted in Easterwood.
See Easterwood, 507 U.S. at 664 (noting that ``preemption will not lie
unless it is the `clear and manifest purpose of Congress.' '' citing
Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). AAJ's
comments, however, fail to recognize that, as noted above, the Court in
Easterwood held that federal regulations preempt state law claims,
including common law claims, whenever the Secretary of Transportation
has issued regulations that cover the subject matter of the state law
claim. 507 U.S. at 664-65, 674. See also CPUC, 346 F.3d at 861.
Moreover, the Court held that ``[l]egal duties imposed on railroads by
the common law fall within the scope of [the] broad phrases'' of the
FRSA preemption provision. Easterwood, 507 U.S. at 664. The 2007
amendment clarified that state tort claims are not preempted in certain
circumstances; i.e., when the state claim is based on the violation of
the Federal standard of care, failure to comply with a plan created
pursuant to a Federal requirement, or failure to comply with a State
law or regulation the subject matter of which has not been covered by a
Federal requirement, or if covered, is permitted under the local safety
and security hazard exception requirements of Sec. 20106.
Also citing the 2007 amendment to Sec. 20106, BLET and UTU
disagreed with our assertion that common law state tort actions are
permissible for violations of internal plans, rules, or standards
``only when'' such plans, rules, or standards ``are created pursuant to
Federal regulation or order issued by DOT or DHS to the minimum
required by the Federal regulation or order.'' BLET and UTU requested
that the preamble discussion of violations of internal plans, rules, or
standards be revised to indicate that Sec. 20106 ``permits actions for
violation of an internal plan, rule, or standard that is created
pursuant to a Federal regulation or order issued by DOT or DHS.''
BLET and UTU claimed that the exception to preemption in Sec.
20106(b)(1)(B) is construed too narrowly in the NPRM because that
discussion applied the exception only to State causes of action for
violations of those portions of a party's plan that were minimally
required by Federal regulation or order. Based upon the reading of the
plain language of the statute, as well as the legislative history of
the 2007 amendment, DOT respectfully disagrees with BLET and UTU
comments. The exception to preemption in Sec. 20106(b)(1)(B) is
necessarily limited to those elements of a party's plan that are
created pursuant to a Federal regulation or order. Plans, or provisions
in a plan that are not required by a Federal regulation are not
``created pursuant to'' that regulation, and section 20106(b) does not
subject parties to tort liability for failure to comply with them. BLE
and UTU asserted that to construe the statute as DOT did in the NPRM
would eliminate any additional liability based on compliance with a
party's plan, because there would only be liability when the regulation
is violated. This is incorrect. Federal regulations requiring the
creation of a plan are violated if a party fails to create a plan, or
to create a plan with the required elements and to abide by the
required elements. Parties are also subject to tort liability for their
failure to comply with any other requirements contained in the Federal
regulation.
As previously noted, DOT through FRA and PHMSA has comprehensively
regulated the subject matter of the transportation of hazardous
materials by rail. FRA has adopted a comprehensive set of Federal
regulations governing the safety of rail carrier operations (passenger
and freight, including hazardous materials). Among the matters covered
by FRA regulations are train speed, track and roadbed conditions,
signal systems, brake system standards, hours of service requirement
for railroad employees, operating practices, and drug and alcohol
testing for railroad employees. See 49 CFR Parts 200-244. FRA's track
safety standards (49 CFR Part 213) prescribe, among other things,
maintenance and inspection requirements and maximum speeds for each
class of track, and restrict the transportation of hazardous materials
only on low speed excepted track. FRA's regulations are tailored to the
nation's operating environment in order to provide for the safety of
rail operations, including the carriage of hazardous materials, in the
United States.
PHMSA has similarly adopted comprehensive Federal regulations
covering all transportation of hazardous materials, including
transportation by rail, in the HMR. See the discussion in the preamble
to the NPRM, 73 FR at 17819. The HMR address all areas of hazardous
materials transportation, including operating requirements for rail,
highway, air, and vessel transportation; comprehensive rail tank car
standards and rail tank car specifications (including PHMSA approval of
tank car designs); training requirements for persons who prepare
hazardous materials for shipment or who transport hazardous materials;
security plan requirements covering the transportation of hazardous
materials from origin to destination (including the selection of
routes); and the reporting of hazardous materials incidents. The
operating requirements for railroads include restrictions on the
placement of hazardous material cars in trains.
Taken together, these regulations are intended to establish
comprehensive requirements for the safe and secure rail transportation
of hazardous materials. Accordingly, 49 U.S.C. 5125 and 20106 preempt
any State law, regulation, or order, including State common law,
concerning the hazardous material tank car packaging (e.g., including,
but not limited to, the design, manufacturing, maintenance, repair, and
inspection of hazardous materials tank cars), and the rail
transportation of hazardous materials in tank cars.
This rule on PIH tank car crashworthiness further refines DOT's
comprehensive regulation of hazardous materials tank car safety,
leaving no room for State statutory, regulatory, or common law
standards. Accordingly, DOT contends that Sec. Sec. 5125 and 20106
preempt any State law, rule, or regulation, or common law theory of
liability that might purport to impose differing or more stringent
standards,
[[Page 1793]]
rules, or regulations relevant to the design, manufacturing,
construction, maintenance, repair, inspection, or transportation of
hazardous materials tank cars. For example, DOT intends this rule to
preempt any State law, rule or regulation, or common law theory of
liability that would require a railroad, tank car owner, lessor or
lessee, to utilize tank cars meeting more stringent safety requirements
than those contained in the HMR.
As noted above, however, parties are encouraged to go beyond the
minimum regulatory requirements in establishing and implementing plans,
rules, and procedures for safe transportation operations. On subjects
covered by Federal regulatory requirements, such as the rail
transportation of hazardous materials, such additional requirements
that a party voluntarily imposes upon itself do not establish an
enforceable standard of care and, even if violated, cannot support a
common law tort claim under the preemption standards and exceptions in
Sec. 20106. See Shanklin, 529 U.S. at 357 (finding that Federal
regulations detailing what types of grade crossing warning devices must
be installed under Federal program establish a ``federal standard for
the adequacy of those devices that displace state tort law addressing
the same subject'').
D. Executive Order 13175
We analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this rule does
not significantly or uniquely affect tribes and does not impose
substantial and direct compliance costs on Indian tribal governments,
the funding and consultation requirements of Executive Order 13175 do
not apply, and a tribal summary impact statement is not required.
E. Regulatory Flexibility Act and Executive Order 13272
To ensure potential impacts of rules on small entities are properly
considered, we developed this rule in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant impact on a
substantial number of small entities.
As discussed in earlier sections of this preamble, DOT initiated
this rulemaking in response to accidents involving catastrophic
failures of rail tank cars, NTSB recommendations and growing public and
industry concern over the risks of transporting PIH materials by rail.
In 2005 SAFETEA-LU directed the Secretary of Transportation to
``initiate a rulemaking to develop and implement appropriate design
standards for pressurized tank cars.'' This rule is responsive to
SAFETEA-LU's mandate, as well as recommendations of the NTSB.
In the NPRM, DOT proposed enhanced tank car performance standards
for head and shell impacts; operational restrictions for trains hauling
tank cars containing PIH materials; interim operational restrictions
for trains hauling tank cars used to transport PIH materials, but not
meeting the enhanced performance standards; and an allowance to
increase the gross weight on rail of tank cars that meet the enhanced
tank-head and shell puncture-resistance systems. (See section I of
preamble). The current rule is a ``natural outgrowth'' of information
gathered in response to the NPRM. The rule is less prescriptive and
permits more operational flexibility, while making it clear that the
standards set forth in this rule serve as interim standards until such
time as final performance standards are developed and tank cars are
available meeting such standards. The rule retains the maximum speed
limit of 50 mph for all railroad tank cars used to transport PIH
materials, but no longer mandates a maximum speed limit of 30 mph for
PIH tank cars in non-signaled (i.e., dark) territory. The rule provides
for enhanced safety based on commodity specific design standards for
PIH tank cars, resulting in a less burdensome policy alternative that
still yields incremental improvements in safety. The rule also retains
the allowance for increasing the maximum gross weight on rail of
hazardous materials tank cars to 286,000 pounds. The rule further
requires that tank car owners prioritize retirement or replacement of
pre-1989 non-normalized steel cars when retiring or removing cars from
PIH materials service. In addition, in response to industry comments,
DOT is adopting a performance standard for top fittings.
DOT has considered comments submitted to the docket and at public
hearings in response to the NPRM. DOT appreciates the information
provided by many parties and especially notes the petitions presented
by industry trade groups representing railroad and shipper entities.
TFI submitted a petition, and a coalition consisting of ACC, ASLRRA,
AAR, CI, and RSI separately submitted a petition. The proposed rule,
and consequently the IRFA, included as part of the NPRM, have been
modified as a result, as described above. In this rule, DOT has
adjusted the proposals in the NPRM to reduce the impact on all
entities. Given these changes, DOT is able to certify that the rule
will result in ``no significant economic impact on a substantial number
of small entities.'' The reasons for this certification are explained
in the following section of this preamble.
I. Description of Regulated Entities and Impacts
The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. Three types of small entities
are potentially affected by this rule: (1) PIH material shippers and
tank car owners, (2) small railroads, and (3) a small tank car
manufacturer.
``Small entity'' is defined in 5 U.S.C. 601 section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under Sec. 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their field of operations. The U.S. Small Business
Administration (SBA) stipulates ``size standards'' for small entities.
It provides that the largest a for-profit railroad business firm may be
(and still classify as a ``small entity'') is 1,500 employees for
``Line-Haul Operating'' railroads, and 500 employees for ``Short-Line
Operating'' railroads.\38\ For PIH material shippers potentially
impacted by this rule, SBA's size standard is 750 or 1,000 employees,
depending on the industry the shipper is in as determined by its North
American Industry Classification System (NAICS) Code. The SBA size
standard for rail tank car manufacturers, under the category of
``railroad rolling stock manufacturing'', NAICS Code 336510, is 1,000
employees.
---------------------------------------------------------------------------
\38\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS
Codes 482111 and 482112.
---------------------------------------------------------------------------
SBA size standards may be altered by Federal agencies in
consultation with SBA, and in conjunction with public
[[Page 1794]]
comment. Pursuant to the authority provided to it by SBA, FRA has
published a final policy, which formally establishes small entities as
railroads that meet the line haulage revenue requirements of a Class
III railroad.\39\ Currently, the revenue requirements are $20 million
or less in annual operating revenue, adjusted annually for inflation.
The $20 million limit (adjusted annually for inflation) is based on the
Surface Transportation Board's threshold of a Class III railroad
carrier, which is adjusted by applying the railroad revenue deflator
adjustment.\40\ The same dollar limit on revenues is established to
determine whether a railroad shipper or contractor is a small entity.
As proposed in the NPRM, DOT is using this definition for this
rulemaking.
---------------------------------------------------------------------------
\39\ See 68 FR 24891 (May 9, 2003).
\40\ For further information on the calculation of the specific
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------
A. Shippers
Almost all hazardous materials tank cars, including those cars that
transport PIH materials, are owned or leased by shippers. DOT believes
that a majority, if not all, of these shippers are large entities. As
noted in the Initial Regulatory Flexibility Analysis (IRFA) prepared in
support of the NPRM, DOT used data from the DOT/PHMSA Hazardous
Materials Information System (HMIS) database to screen for PIH material
shippers that may be small entities. The HMIS uses the SBA size
standards as the basis for determining if a company qualifies as a
small business. DOT also gathered data from industry trade groups such
as the ACC and TFI to help identify the number of small shippers that
might be affected. After identifying the set of small businesses that
could potentially be impacted, DOT cross-referenced this group with The
Official Railway Equipment Register (October, 2007) to determine if any
of these actually own tank cars subject to this rule.
From the DOT/PHMSA HMIS database, and industry sources, DOT found
eight small shippers that might be impacted. By further checking
information available on the companies' websites, all eight shippers
are noted as being subsidiaries of larger businesses. Out of these
eight, however, only one owns tank cars that would be affected. The
remaining seven shippers either do not own tank cars or own tank cars
that would not be affected by this rule. The one remaining small
shipper potentially impacted has annual revenues that exceed by 20
times the FRA size standard for a small entity. Further, although this
shipper is for-profit, the parent company is a non-profit. Thus, DOT is
confident that there are very few or no PIH material shippers that are
small businesses affected by this rule.
Among all PIH shippers in the industry, the rule will result in
approximately a 14% car replacement rate over 6 years, or 2,044 cars.
The rule reduces the impact from the NPRM, which would have affected
100% of the cars. Regarding the heavier 286,000-pound cars, affecting
only 14% of the cars means that older 263,000-pound cars can be used in
the relatively small number of locations that cannot accept the
286,000-pound cars. In other words, by affecting a relatively small
portion of the fleet, the rule allows shippers sufficient flexibility
to manage their fleets in a manner that mitigates any impact. See the
preamble above for a detailed discussion of the comments received
regarding 286,000-pound cars. Given that there is widespread industry
support for heavier cars, and industry interchange rules would have
moved the industry to adopt 286,000-pound cars as standard practice in
the absence of the rule, DOT does not expect the impact of the heavier
cars to be significant. In addition, the rule is permissive in nature,
that is, 286,000-pound cars are allowed but not mandated.
Finally, no small shippers provided any oral comments during DOT's
six days of public meetings. Nor did any small shippers provide any
written comments to the public docket for this rulemaking.
B. Railroads
DOT estimates that approximately 46 railroads meeting the
definition of ``small entity'' as described above transport PIH
materials via railroad tank car.\41\ Because this rule applies to all
of these railroads, we have concluded that a substantial number of
small entities will be impacted.
---------------------------------------------------------------------------
\41\ Data provided by Railinc, Corp. (a subsidiary of AAR)
indicates that approximately 80 short-line and regional railroads
transport PIH materials via railroad tank car. Of these 80
railroads, 34 are regional railroads that meet the Surface
Transportation Board's definition of a Class II railroad, and thus,
are not considered ``small entities'' for the purposes of this IRFA.
---------------------------------------------------------------------------
However, the overall impact on small railroads will not be
significant. All railroads that transport PIH materials via railroad
tank car, including the 46 railroads identified as small entities,
would still have to incur the additional expense to accommodate
286,000-pound tank cars to comply with the new AAR PIH tank car
standard (i.e., a 286,000-pound tank car equipped with additional head
protection, thicker shell, and modified top fittings). (See the
preamble above for a more detailed discussion of the new AAR PIH tank
car standard.)
Recognizing the growing use of rail cars with gross weight on rail
exceeding 263,000 pounds for non-hazardous commodities, such as grain,
this rule provides the flexibility to design a tank car for the
transportation of PIH materials weighing up to 286,000 pounds, in line
with AAR's existing standard S-286 Accordingly, the actual impact of
the general increase in gross weight on rail of products in this
commodity group in relation to the overall transition now being
completed within the industry (which has been eased by tax incentives
and, in some cases, government-guaranteed loan arrangements) should not
be substantial. While we recognize that some small railroads will not
be able to accommodate the additional weight on some of their bridges
and track, we believe that railroads that handle PIH cars have, in
general, already made or are making the transition to track structures
and bridges capable of handling 286,000-pound cars in line with the
general movement in the industry toward these heavier freight cars.
These railroads include many switching and terminal railroads that are
partially or totally owned by Class 1 railroads as interline
connections. These connections have previously mandated upgrading to
286,000-pound capability.
For example, in 2005, the Texas Transportation Institute reported
that 42 percent of the short-line railroad miles that were operated in
Texas that year had already been upgraded, nine percent would not need
an upgrade, and 47 percent needed upgrading if they wanted to transport
any type of 286,000-pound shipments.\42\ In addition, the results of a
1998-1999 survey conducted by the ASLRRA indicated that 41 percent of
respondent short-line railroads could handle 286,000-pound rail cars
and 87 percent of the respondent short-line railroads indicated that
they would need to accommodate 286,000-pound railcars in the
future.\43\ More current data from the
[[Page 1795]]
ASLRRA suggests that many of the railroads needing future capability to
handle 286,000-pound rail loads for this rule have been upgraded within
the past two years.\44\ In addition, industry comments to the NPRM
support DOT's understanding that the railroads are almost all capable
of transporting 286,000-pound cars.
---------------------------------------------------------------------------
\42\ Jeffrey E. Warner & Manuel Solari Terra, ``Assessment of
Texas Short Line Railroads, `` Texas Transportation Institute (Nov.
15, 2005).
\43\ The Ten-Year Needs of Short Line and Regional Railroads,
Standing Committee on Rail Transportation, American Association of
State Highway and Transportation Officials, Washington, DC (Dec.
1999). This report was based on a survey conducted by the ASLRRA in
1998 and 1999 with data from 1997.
\44\ John Gallagher, ``Tank Car Tensions,'' Traffic World (June
19, 2006).
---------------------------------------------------------------------------
Furthermore, as noted for Shippers above, the rule is affecting a
much smaller percent of the cars (14%) than the NPRM would have,
allowing the industry flexibility to route heavier cars to locations
that are equipped to handle them, and use the lighter cars where
needed. In general, most of the impacts will not burden the 46 small
railroads potentially affected by this rule.
It should be noted that the ASLRRA represents a majority of small
railroads. The ASLRRA was a co-signer in the petition to PHMSA
requesting an interim PIH tank car standard with implications for car
weights up to 286,000 pounds, which is the basis of this rule.
C. Manufacturers
DOT estimates that there are five tank car builders in the United
States. All but one are large entities in themselves or are
subsidiaries of larger conglomerates. For example, Union Tank Car
Company employs about 850 people at just one plant in Louisiana. As
another example, Trinity Rail Group is a subsidiary of Trinity
Industries, Inc., which has 14,400 employees and about $3.9 billion in
annual revenues (Trinity Rail Group has about $2.3 billion in annual
revenues.) Although all of the large rail tank car manufacturers will
be affected, the small manufacturer identified would likely not be
significantly impacted for the following reasons. First, pressure tank
car manufacturing is a very small part of this entity's business. This
company offers repair, maintenance, manufacturing, and fleet management
services. Fifty percent or less of this company's business is
manufacturing of tank cars (an average of 40 tank cars each year); and
five percent or less of such manufacturing is of pressure tank cars. In
addition, this manufacturer has not built a pressure tank car in
several years. The company has stated that if it were to build pressure
tank cars under this rule, it would incur increased material costs,
which would be passed on to the buyer. Furthermore, it would likely
incur no additional design or retooling costs because it uses pre-made
head-shields and could simply use thicker steel for manufacturing
pressure tank cars.
Note that the rule also mitigates the economic impact by achieving
additional safety by enhancing existing designs and reducing the
percent of cars that will be affected as noted above.
II. Certification
Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the Pipeline and Hazardous Materials Safety
Administrator certifies that this rule will not have a significant
economic impact on a substantial number of small entities. Although a
substantial number of small railroads and manufacturers may be affected
by the rule, none of the two groups of entities will be significantly
impacted.
F. Paperwork Reduction Act
This final rule results in an increase in the information
collection and recordkeeping burden under OMB Control Number 2137-0559,
``(Rail Carriers and Tank Car Tanks Requirements) Requirements for Rail
Tank Car Tanks--Transportation of Hazardous Materials by Rail.''
Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide
interested members of the public and affected agencies with an
opportunity to comment on information collection and recordkeeping
requests. This final rule identifies a revised information collection
request PHMSA will submit to the Office of Management and Budget (OMB)
for approval based on the requirements in this final rule.
PHMSA developed information collection burden estimates to reflect
proposals in the NPRM. Based on comments received from the affected
market sector in response to the NPRM and two petitions for rulemaking,
FRA and PHMSA are adopting interim standards for tank cars used to
transport PIH materials and limiting the operating speeds of all
loaded, placarded PIH tank cars to 50 mph. DOT intends that the
standards set forth in this final rule serve as interim standards until
such times as final performance standards are developed and tank cars
are available meeting such standards. Therefore, PHMSA estimates that
the total information collection and recordkeeping burdens for OMB
Control Number 2137-0559 due to the amendments in this final rule would
be as follows:
Total Annual Number of Respondents: 400.
Total Annual Responses: 16,781.
Total Annual Burden Hours: 3,546.
Total Annual Burden Cost: $220,436.25.
Direct your requests for a copy of the information collection to
Deborah Boothe or T. Glenn Foster, U.S. Department of Transportation,
Pipeline & Hazardous Materials Safety Administration (PHMSA), East
Building, Office of Hazardous Materials Standards (PHH-11), 1200 New
Jersey Avenue, SE., Washington, DC 20590; telephone (202) 366-8553.
G. Regulation Identifier Number (RIN)
A 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.
H. Unfunded Mandates Reform Act
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $141,100,000 or more
(adjusted annually for inflation) in any 1 year, and before
promulgating any final rule for which a general notice of proposed
rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector.
This rule will not result in the expenditure of more than
$141,100,000 (adjusted annually for inflation) by the public sector in
any one year, and thus preparation of such a statement is not required.
I. Environmental Assessment
There are no significant environmental impacts associated with this
final rule. In fact, as discussed in the preamble to the NPRM, the
enhanced standards of this rule should have a positive impact on the
environment because such standards will enhance the accident
survivability of newly constructed tank cars used to transport PIH
materials, thereby
[[Page 1796]]
minimizing the possibility that PIH materials would be released from
those cars.
J. Privacy Act
Anyone is able to search the electronic form of any written
communications and comments received into any of our dockets by the
name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (65 FR 19477) or at
http://www.dot.gov/privacy.html.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Exports, Hazardous materials transportation, Hazardous waste,
Labeling, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 174
Hazardous materials transportation, Radioactive materials, Rail
carriers, Railroad safety, Reporting and recordkeeping requirements.
49 CFR Part 179
Hazardous materials transportation, Railroad safety, Reporting and
recordkeeping requirements.
The Rule
0
On the basis of the foregoing, PHMSA amends title 49, Chapter I,
Subchapter C, as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
0
2. In Sec. 171.7, in paragraph (a)(3), in the Table of Material
Incorporated by Reference, under the entry ``Association of American
Railroads,'' revise the address and add the entry ``AAR Standard S-286,
Free/Unrestricted Interchange for 286,000 lbs. Gross Rail Load Cars,
Adopted 2002; Revised: 2003, 2005, 2006,'' 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, American
Railroads Building, 50 F Street, NW., Washington,
DC 20001; telephone (877) 999-8824, http://www.aar.org/publications.com;
* * * * * * *
AAR Standard 286; AAR Manual of Standards and 179.13
Recommended Practices, Section C, Car Construction
Fundamentals and Details, Standard S-286, Free/
Unrestricted Interchange for 286,000 lb Gross Rail
Load Cars (Adopted 2002; Revised: 2003, 2005, 2006)
* * * * * * *
------------------------------------------------------------------------
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING
REQUIREMENTS, AND SECURITY PLANS
0
3. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.
0
4. In Sec. 172.101:
0
a. In the Hazardous Materials Table, in Column (7), remove ``B71'' in
the following entry:
Hydrogen fluoride, anhydrous
0
b. In the Hazardous Materials Table, in Column (7), remove ``B72'' in
the following entries:
Acrolein, stabilized
Bromine pentafluoride
Ethyl isocyanate
Ethyleneimine, stabilized
Iron pentacarbonyl
Isobutyl isocyanate
Isopropyl isocyanate
Methoxymethyl isocyanate
Methyl chloroformate
Methyl chloromethyl ether
Methyl isocyanate
Methyl vinyl ketone, stabilized
Methylhydrazine
n-Propyl isocyanate tert-Butyl isocyanate
Toxic by inhalation liquid, N.O.S. with an inhalation toxicity lower
than or equal to 200 ml/m\3\ and saturated vapor concentration greater
than or equal to 500 LC50
Toxic by inhalation liquid, flammable, N.O.S. with an inhalation
toxicity lower than or equal to 200 ml/m\3\ and saturated vapor
concentration greater than or equal to 500 LC50
Toxic by inhalation liquid, water reactive, N.O.S. with an inhalation
toxicity lower than or equal to 200 ml/m\3\ and saturated vapor
concentration greater than or equal to 500 LC50
Toxic by inhalation liquid, oxidizing, N.O.S. with an inhalation
toxicity lower than or equal to 200 ml/m\3\ and saturated vapor
concentration greater than or equal to 500 LC50
Toxic by inhalation liquid, corrosive, N.O.S. with an inhalation
toxicity lower than or equal to 200 ml/m3 and saturated
vapor concentration greater than or equal to 500 LC50
0
c. In Sec. 172.101, in the Hazardous Materials Table, in Column (7),
remove ``B74'' in the following entries:
Allyl alcohol
Allyl chloroformate
Allylamine
Arsenic trichloride
Boron tribromide
Bromine trifluoride
n-Butyl chloroformate
n-Butyl isocyanate
Chloroacetone, stabilized
Chloroacetonitrile
Chloroacetyl chloride
2-Chloroethanal
Chloropicrin
Chloropivaloyl chloride
Chlorosulfonic acid (with or without sulfur trioxide)
Crotonaldehyde, stabilized
[[Page 1797]]
Cyclohexyl isocyanate
3, 5-Dichloro-2,4,6-trifluoropyridine
Diketene, stabilized
Dimethyl sulfate
Dimethylhydrazine symmetrical
Dimethylhydrazine unsymmetrical
Ethyl chloroformate
Ethyl chlorothioformate
Ethyldichloroarsine
Ethylene chlorohydrin
Ethylene dibromide
Hexachlorocyclopentadiene
Hydrogen cyanide, solution in alcohol with not more than 45% hydrogen
cyanide
Isopropyl chloroformate
Methacrylonitrile, stabilized
Methanesulfonyl chloride
Methyl bromide and ethylene dibromide mixture, liquid
Methyl iodide
Methyl isothiocyanate
Methyl orthosilicate
Methyl phosphonic dichloride
2-Methyl-2-heptanethiol
Nitric acid, red fuming
Perchloromethyl mercaptan
Phenyl isocyanate
Phenyl mercaptan
Phenylcarbylamine chloride
Phosphorus oxychloride
Phosphorus trichloride
n-Propyl chloroformate
Sulfur trioxide, stabilized
Sulfuric acid, fuming with 30 percent or more free sulfur trioxide
Sulfuryl chloride
Thiophosgene
Titanium tetrachloride
Toxic by inhalation liquid, N.O.S. with an inhalation toxicity lower
than or equal to 1000 ml/m\3\ and saturated vapor concentration greater
than or equal to 10 LC50
Toxic by inhalation liquid, flammable, N.O.S. with an inhalation
toxicity lower than or equal to 1000 ml/m\3\ and saturated vapor
concentration greater than or equal to 10 LC50
Toxic by inhalation liquid, water reactive, N.O.S. with an inhalation
toxicity lower than or equal to 1000 ml/m3 and saturated vapor
concentration greater than or equal to 10 LC50
Toxic by inhalation liquid, corrosive, N.O.S. with an inhalation
toxicity lower than or equal to 1000 ml/m\3\ and saturated vapor
concentration greater than or equal to 10 LC50
Trichloroacetyl chloride
Trimethoxysilane
Trimethylacetyl chloride
0
d. The Hazardous Materials Table is amended by revising the following
entries in the appropriate alphabetical sequence to read as follows:
[[Page 1798]]
Sec. 172.101 Hazardous Materials Table
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(8) (9) (10)
---------------------------------------------------------------------------------------------------------------
Hazardous Packaging (Sec. 173 ***) Quantity limitations (See Vessel stowage
materials Hazard Identification Special --------------------------------------------- Sec. Sec. 173.27 and ------------------------------------
Symbols descriptions and class or numbers PG Label codes provisions (Sec. 175.75)
proper shipping division 172.102) ------------------------------
names Exceptions Non-bulk Bulk Passenger Cargo Location Other
aircraft/rail aircraft only
(1) (2)............... (3) (4).............. (5).......... (6).............. (7).............. (8A)......... (8B)......... (8C)......... (9A)......... (9B)......... (10A)........ (10B)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[REVISE]
* * * * * * *
Acrolein, 6.1 UN1092........... I............ 6.1, 3........... 1, B9, B14, B30, None......... 226.......... 244.......... Forbidden.... Forbidden.... D............ 40
stabilized. B42, B77, T22,
TP2, TP7, TP13,
TP38, TP44.
* * * * * * *
Adhesives, 3 UN1133........... I............ 3................ T11, TP1, TP8, 150.......... 201.......... 243.......... 1 L.......... 30 L......... B............
containing a TP27.
flammable liquid.
* * * * * * *
+............... Bromine........... 8 UN1744........... I............ 8, 6.1........... 1, B9, B85, N34, None......... 226.......... 249.......... Forbidden.... Forbidden.... D............ 12, 40, 66, 74, 89,
N43, T22, TP2, 90
TP10, TP12, TP13.
* * * * * * *
+............... Bromine solutions. 8 UN1744........... I............ 8, 6.1........... 1, B9, B85, N34, None......... 226.......... 249.......... Forbidden.... Forbidden.... D............ 12, 40, 66, 74, 89,
N43, T22, TP2, 90
TP10, TP12, TP13.
+............... Bromine solutions. 8 UN1744........... I............ 8, 6.1........... 2, B9, B85, N34, None......... 227.......... 249.......... Forbidden.... Forbidden.... D............ 12, 40, 66, 74, 89,
N43, T22, TP2, 90
TP10, TP12, TP13.
* * * * * * *
Hydrogen fluoride, 8 UN1052........... I............ 8.6.1............ 3, B7, B46, B77, None......... 163.......... 244.......... Forbidden.... Forbidden.... D............ 40
anhydrous. N86, T10, TP2.
* * * * * * *
Nitric oxide, 2.3 UN1660........... ............. 2.3, 5.1, 8...... 1, B77........... None......... 337.......... None......... Forbidden.... Forbidden.... D............ 40, 89, 90
compressed.
Nitric oxide and 2.3 UN1975........... ............. 2.3, 5.1, 8...... 1, B77........... None......... 337.......... None......... Forbidden.... Forbidden.... D............ 40, 89, 90
dinitrogen
tetroxide
mixturesor Nitric
oxide and
nitrogen dioxide
mixtures.
* * * * * * *
+............... Tetranitromethane. 5.1 UN1510........... I............ 5.1, 6.1......... 2, B32, T20, TP2, None......... 227.......... None......... Forbidden.... Forbidden.... D............ 40, 66
TP13, TP38, TP44.
* * * * * * *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 1799]]
0
5. In Sec. 172.102, in paragraph (c)(3), Special Provisions B42, B65
and B76 are revised and Special Provisions B64, B71, B72 and B74 are
removed. The revisions read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(3) * * *
Code/Special Provisions
* * * * *
B42 Tank cars constructed before March 16, 2009, must have a test
pressure of 34.47 Bar (500 psig) or greater and conform to Class 105J.
Each tank car must have a reclosing pressure relief device having a
start-to-discharge pressure of 10.34 Bar (150 psig). The tank car
specification may be marked to indicate a test pressure of 13.79 Bar
(200 psig).
* * * * *
B65 Tank cars constructed before March 16, 2009, must have a test
pressure of 34.47 Bar (500 psig) or greater and conform to Class 105A.
Each tank car must have a reclosing pressure relief device having a
start-to-discharge pressure of 15.51 Bar (225 psig). The tank car
specification may be marked to indicate a test pressure of 20.68 Bar
(300 psig).
* * * * *
B76 Tank cars constructed before March 16, 2009, must have a test
pressure of 20.68 Bar (300 psig) or greater and conform to Class 105S,
112J, 114J or 120S. Each tank car must have a reclosing pressure relief
device having a start-to-discharge pressure of 10.34 Bar (150 psig).
The tank car specification may be marked to indicate a test pressure of
13.79 Bar (200 psig).
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
6. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
0
7. Amend Sec. 173.31 as follows:
0
a. Revise paragraphs (b)(6) introductory text and (e)(2)(ii); and
0
b. Add new paragraphs (e)(2)(iii) and (e)(2)(iv).
The revisions and additions read as follows:
Sec. 173.31 Use of Tank Cars.
* * * * *
(b) * * *
(6) Scheduling of modifications and progress reporting. The date of
conformance for the continued use of tank cars subject to paragraphs
(b)(4), (b)(5), and (f) of this section and Sec. 173.314(j) is subject
to the following conditions and limitations.
* * * * *
(e) * * *
(2) * * *
(ii) Each tank car constructed on or after March 16, 2009, and used
for the transportation of PIH materials must meet the applicable
authorized tank car specifications and standards listed in Sec.
173.244(a)(2) or (3) and Sec. 173.314(c) or (d).
(iii) A tank car meeting the applicable authorized tank car
specifications listed in Sec. 173.244(a)(2) or (3), or Sec.
173.314(c) or (d) is authorized for the transportation of a material
poisonous by inhalation for a period of 20 years after the date of
original construction.
(iv) A tank car owner retiring or otherwise removing a tank car
from service transporting materials poisonous by inhalation, other than
because of damage to the car, must retire or remove cars constructed of
non-normalized steel in the head or shell before removing any car in
service transporting materials poisonous by inhalation constructed of
normalized steel meeting the applicable DOT specification.
* * * * *
0
7. In Sec. 173.244, revise paragraph (a) to read as follows:
Sec. 173.244 Bulk packaging for certain pyrophoric liquids (Division
4.2), dangerous when wet (Division 4.3) materials, and poisonous
liquids with inhalation hazards (Division 6.1).
* * * * *
(a) Rail cars: (1) Class DOT 105, 109, 112, 114, or 120 fusion-
welded tank car tanks; and Class 106 or 110 multi-unit tank car tanks.
For tank car tanks built prior to March 16, 2009, the following
conditions apply:
(i) Division 6.1 Hazard Zone A materials must be transported in
tank cars having a test pressure of 34.47 Bar (500 psig) or greater and
conform to Classes 105J, 106 or 110.
(ii) Division 6.1 Hazard Zone B materials must be transported in
tank cars having a test pressure of 20.68 Bar (300 psig) or greater and
conform to Classes 105S, 106, 110, 112J, 114J or 120S.
(iii) Hydrogen fluoride, anhydrous must be transported in tank cars
having a test pressure of 20.68 Bar (300 psig) or greater and conform
to Classes 105, 112, 114 or 120.
(2) For materials poisonous by inhalation, single unit tank cars
tanks built prior to March 16, 2009 and approved by the Tank Car
Committee for transportation of the specified material. Except as
provided in Sec. 173.244(a)(3), tank cars built on or after March 16,
2009 used for the transportation of the PIH materials listed below,
must meet the applicable authorized tank car specification listed in
the following table:
------------------------------------------------------------------------
Authorized
Proper shipping name tank car
specification
------------------------------------------------------------------------
Acetone cyanohydrin, stabilized (Note 1)................. 105J500I
112J500I
Acrolein (Note 1)........................................ 105J600I
Allyl Alcohol............................................ 105J500I
112J500I
Bromine.................................................. 105J500I
Chloropicrin............................................. 105J500I
112J500I
Chlorosulfonic acid...................................... 105J500I
112J500I
Dimethyl sulfate......................................... 105J500I
112J500I
Ethyl chloroformate...................................... 105J500I
112J500I
Hexachlorocyclopentadiene................................ 105J500I
112J500I
Hydrocyanic acid, aqueous solutionor Hydrogen cyanide, 105J500I
aqueous solutionwith not more than 20% hydrogen cyanide 112J500I
(Note 2)................................................
Hydrogen cyanide, stabilized (Note 2).................... 105J600I
Hydrogen fluoride, anhydrous............................. 105J500I
112J500I
Poison inhalation hazard, Zone A materials not 105J600I
specifically identified in this table...................
Poison inhalation hazard, Zone B materials not 105J500I
specifically identified in this table................... 112J500I
Phosphorus trichloride................................... 105J500I
112J500I
Sulfur trioxide, stabilized.............................. 105J500I
112J500I
Sulfuric acid, fuming.................................... 105J500I
112J500I
Titanium tetrachloride................................... 105J500I
112J500I
------------------------------------------------------------------------
Note 1: Each tank car must have a reclosing pressure relief device
having a start-to-discharge pressure of 10.34 Bar (150 psig).
Restenciling to a lower test pressure is not authorized.
Note 2: Each tank car must have a reclosing pressure relief device
having a start-to-discharge pressure of 15.51 Bar (225 psig).
Restenciling to a lower test pressure is not authorized.
(3) As an alternative to the authorized tank car specification
listed in the table in paragraph (a)(2) of this section, a car of the
same authorized tank car specification but of the next lower test
pressure, as prescribed in column 5 of the table at Sec. 179.101-1 of
this subchapter, may be used provided that
[[Page 1800]]
both of the following conditions are met:
(i) The difference between the alternative and the required minimum
plate thicknesses, based on the calculation prescribed in Sec.
179.100-6 of this subchapter, must be added to the alternative tank car
jacket and head shield. When the jacket and head shield are made from
steel with a minimum tensile strength from 70,000 p.s.i. to 80,000
p.s.i., but the required minimum plate thickness calculation is based
on steel with a minimum tensile strength of 81,000 p.s.i., the
thickness to be added to the jacket and head shield must be increased
by a factor of 1.157. Forming allowances for heads are not required to
be considered when calculating thickness differences.
(ii) The tank car jacket and head shield are manufactured from
carbon steel plate as prescribed in Sec. 179.100-7(a) of this
subchapter.
* * * * *
0
8. Amend Sec. 173.249 as follows:
0
a. Revise the last sentence of paragraph (a); and
0
b. Add new paragraph (g).
The revisions and additions read as follows:
Sec. 173.249 Bromine.
* * * * *
(a) * * * Tank cars must conform to the requirements in paragraphs
(a) through (g) of this section.
* * * * *
(g) Except as provided in Sec. 173.244(a)(3), tank cars built on
or after March 16, 2009 and used for the transportation of bromine must
meet the applicable authorized tank car specification listed in the
table in Sec. 173.244(a)(2).
0
9. In Sec. 173.314:
0
a. Revise paragraph (c) introductory text and the table.
0
b. Add notes 11 and 12 to the end of paragraph (c).
0
c. Add a new paragraph (d).
The revisions and additions read as follows:
Sec. 173.314 Compressed gases in tank cars and multi-unit tank cars.
* * * * *
(c) Authorized gases, filling limits for tank cars. A compressed
gas in a tank car or a multi-unit tank car must be offered for
transportation in accordance with Sec. 173.31 and this section. The
gases listed below must be loaded and offered for transportation in
accordance with the following table:
----------------------------------------------------------------------------------------------------------------
Outage and filling Authorized tank car Authorized tank car
Proper shipping name limits (see note 1) class (see note 11) specification (see note 12)
----------------------------------------------------------------------------------------------------------------
Ammonia, anhydrous, or ammonia Notes 2, 10.......... 105, 112, 114, 120.. 105J500I, 112J500I
solutions > 50 percent ammonia.
Note 3............... 106................. ...............................
Ammonia solutions with > 35 Note 3............... 105, 109, 112, 114,
percent, but <= 50 percent 120.
ammonia by mass.
Argon, compressed................. Note 4............... 107.................
Boron trichloride................. Note 3............... 105, 106............
Carbon dioxide, refrigerated Note 5............... 105.................
liquid.
Chlorine.......................... Notes 6, 13.......... 105................. 105J600I
125.................. 106.................
Chlorine trifluoride.............. Note 3............... 106, 110............
Chlorine pentafluoride............ Note 3............... 106, 110............
Dimethyl ether.................... Note 3............... 105, 106, 110, 112,
114, 120.
Dimethylamine, anhydrous.......... Note 3............... 105, 106, 112.......
Dinitrogen tetroxide, inhibited... Note 3............... 105, 106, 112....... 105J500I
Division 2.1 materials not Notes 9, 10.......... 105, 106, 110, 112,
specifically identified in this 114, 120.
table.
Division 2.2 materials not Note 3............... 105, 106, 109, 110,
specifically identified in this 112, 114, 120.
table.
Division 2.3 Zone A materials not None................. See Sec. 173.245.. 105J600I
specifically identified in this
table.
Division 2.3 Zone B materials not Note 3............... 105, 106, 110, 112, 105J600I
specifically identified in this 114, 120.
table.
Division 2.3 Zone C materials not Note 3............... 105, 106, 110, 112, 105J500I
specifically identified in this 114, 120.
table.
Division 2.3 Zone D materials not Note 3............... 105, 106, 109, 110, 105J500I, 112J500I
specifically identified in this 112, 114, 120.
table.
Ethylamine........................ Note 3............... 105, 106, 110, 112,
114, 120.
Helium, compressed................ Note 4............... 107.................
Hydrogen.......................... Note 4............... 107.................
Hydrogen chloride, refrigerated Note 7............... 105................. 105J600I, 112S600I
liquid.
Hydrogen Sulphide................. Note 3............... 105, 106, 110, 112, 105J600I
114, 120.
Hydrogen sulphide, liquefied...... 68................... 106.................
Methyl bromide.................... Note 3............... 105, 106............ 105J500I
Methyl chloride................... Note 3............... 105, 106, 112.......
Methyl mercaptan.................. Note 3............... 105, 106............ 105J500I
Methylamine, anhydrous............ Note 3............... 105, 106, 112.......
Nitrogen, compressed.............. Note 4............... 107.................
Nitrosyl chloride................. 124.................. 105................. 105J500I
110.................. 106.................
Nitrous oxide, refrigerated liquid Note 5............... 105.................
Oxygen, compressed................ Note 4............... 107.................
Phosgene.......................... Note 3............... 106.................
Sulfur dioxide, liquefied......... 125.................. 105, 106, 110....... 105J500I
[[Page 1801]]
Sulfuryl fluoride................. 120.................. 105.................
Vinyl fluoride, stabilized........ Note 8............... 105.................
----------------------------------------------------------------------------------------------------------------
**11. For materials poisonous by inhalation, the single unit tank
car tanks authorized are only those cars approved by the Tank Car
Committee for transportation of the specified material and built prior
to March 16, 2009.
12. Except as provided by paragraph (d) of this section, for
materials poisonous by inhalation, fusion-welded tank car tanks built
on or after March 16, 2009 used for the transportation of the PIH
materials noted, must meet the applicable authorized tank car
specification and must be equipped with a head shield as prescribed in
Sec. 179.16(c)(1).
(d) Alternative tank car tanks for materials poisonous by
inhalation. (1) As an alternative to the authorized tank car
specification noted in the column 4 of the table in paragraph (c) of
this section, a car of the same authorized tank car specification but
of the next lower test pressure, as prescribed in column 5 of the table
at Sec. 179.101-1, may be used provided both of the following
conditions are met:
(i) The difference between the alternative and the required minimum
plate thicknesses, based on the calculation prescribed in Sec.
179.100-6 of this subchapter, is added to the alternative tank car
jacket and head shield. When the jacket and head shield are made from
any authorized steel with a minimum tensile strength from 70,000 p.s.i.
to 80,000 p.s.i., but the required minimum plate thickness calculation
is based on steel with a minimum tensile strength of 81,000 p.s.i., the
thickness to be added to the jacket and head shield must be increased
by a factor of 1.157. Forming allowances for heads are not required to
be considered when calculating thickness differences as prescribed in
this paragraph.
(ii) The tank car jacket and head shield must be manufactured from
carbon steel plate as prescribed in Sec. 179.100-7(a) of this
subchapter.
* * * * *
(k) Special requirements for chlorine. (1) Tank cars built after
September 30, 1991, must have an insulation system consisting of 5.08
cm (2 inches) glass fiber over 5.08 cm (2 inches) of ceramic fiber.
(2) Tank cars must have excess flow valves on the interior pipes of
liquid discharge valves.
(3) Tank cars constructed to a DOT 105A500W specification and
authorized for chlorine service prior to March 16, 2009 may be marked
as a DOT 105A300W specification with the size and type of reclosing
pressure relief valves required by the marked specification.
(4) Except as provided in Sec. 173.314(d), tank cars constructed
after March 16, 2009 and used for the transportation of chlorine must
meet the authorized tank car specification listed in the table in
paragraph (c) of this section. These tank cars may be equipped with a
pressure relief device of the size and type authorized in paragraph
(k)(3) of this section. Restenciling to a lower test pressure is not
authorized.
* * * * *
0
10. In Sec. 173.323, revise paragraph (c)(1) to read as follows.
Sec. 173.323 Ethylene Oxide.
* * * * *
(c) * * *
(1) Tank cars. Class DOT 105 tank cars:
(i) Each tank car built before March 16, 2009 must have a tank test
pressure of at least 20.7 Bar (300 psig); and
(ii) Except as provided in Sec. 173.314(d), tank cars built on or
after March 16, 2009 used for the transportation of ethylene oxide must
meet the applicable authorized tank car specification listed in the
table in Sec. 173.314(c).
* * * * *
PART 174--CARRIAGE BY RAIL
0
11. The authority citation for part 174 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.
0
12. Add new Sec. 174.2 to read as follows:
Sec. 174.2 Limitation on actions by states, local governments, and
Indian tribes.
Sections 5125 and 20106 of Title 49, United States Code, limit the
authority of states, political subdivisions of states, and Indian
tribes to impose requirements on the transportation of hazardous
materials in commerce. A state, local, or Indian tribe requirement on
the transportation of hazardous materials by rail may be preempted
under either 49 U.S.C. 5125 or 20106, or both.
(a) Section 171.1(f) of this subchapter describes the circumstances
under which 49 U.S.C. 5125 preempts a requirement of a state, political
subdivision of a state, or Indian tribe.
(b) Under the Federal Railroad Safety Act (49 U.S.C. 20106),
administered by the Federal Railroad Administration (see 49 CFR parts
200 through 244), laws, regulations and orders related to railroad
safety, including security, shall be nationally uniform to the extent
practicable. A state may adopt, or continue in force, a law,
regulation, or order covering the same subject matter as a DOT
regulation or order applicable to railroad safety and security
(including the requirements in this subpart) only when an additional or
more stringent state law, regulation, or order is necessary to
eliminate or reduce an essentially local safety or security hazard; is
not incompatible with a law, regulation, or order of the United States
Government; and does not unreasonably burden interstate commerce.
0
13. Revise Sec. 174.86 to read as follows:
Sec. 174.86 Maximum allowable operating speed.
(a) For molten metals and molten glass shipped in packagings other
than those prescribed in Sec. 173.247 of this subchapter, the maximum
allowable operating speed may not exceed 24 km/hour (15 mph) for
shipments by rail.
(b) For trains transporting any loaded, placarded tank cars
containing a material poisonous by inhalation, the maximum allowable
operating speed may not exceed 80.5 km/hour (50 mph) for shipments by
rail.
PART 179--SPECIFICATIONS FOR TANK CARS
0
14. The authority citation for part 179 continues to read as follows:
Authority: 49 U.S.C. 5101-5128; 49 CFR part 1.53.
0
15. Add new Sec. 179.8 to read as follows:
Sec. 179.8 Limitation on actions by states, local governments, and
Indian tribes.
Sections 5125 and 20106 of Title 49, United States Code, limit the
authority of states, political subdivisions of states, and Indian
tribes to impose
[[Page 1802]]
requirements on the transportation of hazardous materials in commerce.
A state, local, or Indian tribe requirement on the transportation of
hazardous materials by rail may be preempted under either 49 U.S.C.
5125 or 20106, or both.
(a) Section 171.1(f) of this subchapter describes the circumstances
under which 49 U.S.C. 5125 preempts a requirement of a state, political
subdivision of a state, or Indian tribe.
(b) Under the Federal Railroad Safety Act (49 U.S.C. 20106),
administered by the Federal Railroad Administration (see 49 CFR parts
200-244), laws, regulations and orders related to railroad safety,
including security, shall be nationally uniform to the extent
practicable. A state may adopt, or continue in force, a law,
regulation, or order covering the same subject matter as a DOT
regulation or order applicable to railroad safety and security
(including the requirements in this subpart) only when an additional or
more stringent state law, regulation, or order is necessary to
eliminate or reduce an essentially local safety or security hazard; is
not incompatible with a law, regulation, or order of the United States
Government; and does not unreasonably burden interstate commerce.
0
16. Revise Sec. 179.13 to read as follows:
Sec. 179.13 Tank car capacity and gross weight limitation.
(a) Except as provided in paragraph (b) of this section, tank cars
built after November 30, 1970, may not exceed 34,500 gallons (130,597
L) capacity or 263,000 pounds gross weight on rail. Existing tank cars
may not be converted to exceed 34,500 gallons capacity or 263,000
pounds gross weight on rail.
(b) Tank cars meeting the applicable authorized tank car
specifications listed in Sec. 173.244(a)(2) or (3), or Sec.
173.314(c) or (d) may not exceed 34,500 gallons (130,597 L) capacity or
286,000 pounds (129,727 kg) gross weight on rail. Tank cars exceeding
263,000 pounds and up to 286,000 pounds gross weight on rail must meet
the requirements of AAR Standard S-286, Free/Unrestricted Interchange
for 286,000 Lb Gross Rail Load Cars (IBR; see Sec. 171.7 of this
subchapter), except that any increase in weight above 263,000 may not
be used to increase commodity quantity.
0
17. In Sec. 179.22, add paragraph (e) to read as follows:
Sec. 179.22 Marking.
* * * * *
(e) Each tank car manufactured after March 16, 2009 to meet the
requirements of Sec. 173.244(a)(2) or (3) or Sec. 173.314(c) or (d)
shall be marked with the letter ``I'' following the test pressure
instead of the letter ``W''. (Example: DOT 105J600I).
0
18. In Sec. 179.100-3, add paragraph (b) to read as follows:
Sec. 179.100-3 Type.
* * * * *
(b) Head shields and shells of tanks built under this specification
must be normalized. Tank car heads must be normalized after forming
unless specific approval is granted for a facility's equipment and
controls.
0
19. Add Sec. 179.102-3 to read as follows:
Sec. 179.102-3 Materials poisonous by inhalation.
(a) Each tank car built after March 16, 2009 for the transportation
of a material poisonous by inhalation must, in addition to the
requirements prescribed in Sec. 179.100-12(c), enclose the service
equipment within a protective housing and cover.
(1) Tank cars must be equipped with a top fitting protection system
and nozzle capable of sustaining, without failure, a rollover accident
at a speed of 9 miles per hour, in which the rolling protective housing
strikes a stationary surface assumed to be flat, level and rigid and
the speed is determined as a linear velocity, measured at the geometric
center of the loaded tank car as a transverse vector. Failure is deemed
to occur when the deformed protective housing contacts any of the
service equipment or when the tank retention capability is compromised.
(2) As an alternative to the tank car top fitting protection system
requirements in paragraph (a)(1) of this section, the tank car may be
equipped with a system that prevents the release of product from any
top fitting in the case of an accident where any top fitting would be
sheared off. The tank nozzle must meet the performance standard in
paragraph (a)(1) of this section and only mechanically operated excess
flow devices are authorized.
(b) An application for approval of a tank car built in accordance
with Sec. 173.244(a)(3) or Sec. 173.314(d) must include a
demonstration, through engineering analysis, that the tank jacket and
support structure system, including any anchors and support devices, is
capable of withstanding a 6 mile per hour coupling without jacket shift
such that results in damage to the nozzle.
0
20. In Sec. 179.102-17, add a new paragraph (m) to read as follows:
Sec. 179.102-17 Hydrogen chloride, refrigerated liquid.
* * * * *
(m) Except as provided in Sec. 173.314(d), tank cars built on or
after March 16, 2009 used for the transportation of hydrogen chloride,
refrigerated liquid, must meet the applicable authorized tank car
specification listed in Sec. 173.314(c).
Issued in Washington, DC on December 23, 2008, under the
authority delegated in 49 CFR Part 106.
Carl T. Johnson,
Administrator.
[FR Doc. E8-31056 Filed 1-12-09; 8:45 am]
BILLING CODE 4910-60-P