[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]



[[Page 1769]]

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

Part II





Department of Transportation





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



Pipeline and Hazardous Materials Safety Administration



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



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  

[[Page 1770]]


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

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.

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

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

[[Page 1771]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 1772]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 1773]]

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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \6\ The NGRTCP is discussed in detail in the preamble to the 
NPRM. See 73 FR 17833-34.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ Copies of technical presentations from the symposium, as 
well as a summary of the symposium is available in the docket.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \35\ See Transcript of Dec. 14, 2006 public meeting.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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).)
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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