Proposed Rule2024-23421
Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation
Primary source
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Published
October 28, 2024
Issuing agencies
Transportation DepartmentPipeline and Hazardous Materials Safety Administration
Abstract
PHMSA proposes to revise the Hazardous Materials Regulations to adopt several modal-specific amendments that would enhance the safe transportation of hazardous materials in commerce. PHMSA, in consultation with the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the United States Coast Guard, proposes amendments identified during Departmental review and from industry petitions for rulemaking.
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[Federal Register Volume 89, Number 208 (Monday, October 28, 2024)]
[Proposed Rules]
[Pages 85590-85683]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23421]
[[Page 85589]]
Vol. 89
Monday,
No. 208
October 28, 2024
Part II
Department of Transportation
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Pipeline and Hazardous Materials Safety Administration
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49 CFR Parts 107, 171, 172, et al.
Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel
Transportation; Proposed Rule
Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 /
Proposed Rules
[[Page 85590]]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 107, 171, 172, 173, 174, 176, 177, 178, 179, and 180
[Docket No. PHMSA-2018-0080 (HM-265)]
RIN 2137-AF41
Hazardous Materials: Advancing Safety of Highway, Rail, and
Vessel Transportation
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
Department of Transportation.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: PHMSA proposes to revise the Hazardous Materials Regulations
to adopt several modal-specific amendments that would enhance the safe
transportation of hazardous materials in commerce. PHMSA, in
consultation with the Federal Motor Carrier Safety Administration, the
Federal Railroad Administration, and the United States Coast Guard,
proposes amendments identified during Departmental review and from
industry petitions for rulemaking.
DATES: Comments must be received by January 27, 2025. To the extent
possible, PHMSA will consider late-filed comments as a final rule is
developed.
ADDRESSES: You may submit comments identified by the Docket Number
PHMSA-2018-0080 (HM-265) by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Fax: 1-202-493-2251.
<bullet> Mail: Docket Management System; U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590.
<bullet> Hand Delivery: Docket Management System; Room W12-140 on
the ground floor of the West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except federal holidays.
Instructions: All submissions must include the agency name and
Docket Number (PHMSA-2018-0080) or Regulation Identifier Number (RIN)
(2137-AF41) for this rulemaking at the beginning of the comment. To
avoid duplication, please use only one of these four methods. All
comments received will be posted without change to the Federal Docket
Management System (FDMS) and will include any personal information you
provide.
Docket: For access to the dockets to read background documents or
comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a> or DOT's Docket
Operations Office (see ADDRESSES).
Confidential Business Information: Confidential Business
Information (CBI) is commercial or financial information that is both
customarily and actually treated as private by its owner. Under the
Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments to this NPRM contain commercial or
financial information that is customarily treated as private, that you
actually treat as private, and that is relevant or responsive to this
NPRM, it is important that you clearly designate the submitted comments
as CBI. Please mark each page of your submission containing CBI as
``PROPIN.'' Submissions containing CBI should be sent to Eamonn
Patrick, Office of Hazardous Materials Safety, Standards and Rulemaking
Division, Pipeline and Hazardous Materials Safety Administration, U.S.
Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC
20590-0001. Any commentary that PHMSA receives which is not
specifically designated as CBI will be placed in the public docket for
this rulemaking.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, as described in
the system of records notice (DOT/ALL-14 FDMS), which can be reviewed
at <a href="http://www.dot.gov/privacy">http://www.dot.gov/privacy</a>.
FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, Standards and
Rulemaking Division, 202-366-8553, Pipeline and Hazardous Materials
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue SE, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Background
A. Railroad Safety Advisory Committee
B. AAR Authority To Approve the Design of Tank Cars and Quality
Assurance Programs
1. Introduction
2. Tank Car Design Approval
3. Tank Car Facility Quality Assurance Program
4. Tank Car Facility Definition
5. Tank Car Facility and Design Certifying Engineer Registration
6. AAR Specifications for Tank Cars Incorporation by Reference
7. Tank Car Linings and Coatings
8. Editorial Revision to Sec. Sec. 180.501 and 180.513
C. Cargo Tank Regulatory Amendments
D. Cargo Tank Marking for Petroleum Distillate Fuels
E. P-1712
F. P-1724
G. P-1735
III. Overview
A. Rail
B. Highway
C. Vessel
D. Multi-Modal
IV. Section-by-Section Review
V. Regulatory Analyses and Notices
A. Statutory/Legal Authority
B. Executive Order 12866, 14094, 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. Unfunded Mandates Reform Act of 1995
H. Draft Environmental Assessment
I. Privacy Act
J. Executive Order 13609 and International Trade Analysis
K. National Technology Transfer and Advancement Act
L. Executive Order 13211
M. Cybersecurity and Executive Order 14082
N. Severability
I. Executive Summary
The Pipeline and Hazardous Materials Safety Administration (PHMSA)
proposes to amend the requirements for the transportation of hazardous
materials set out in the Hazardous Materials Regulations (HMR) (49 Code
of Federal Regulations (CFR) parts 171 to 180) and 49 CFR part 107.
This rulemaking aims to amend provisions specific to the highway, rail,
and vessel transportation of hazardous materials.
In this notice of proposed rulemaking (NPRM), PHMSA proposes to
reform modal specific requirements in the HMR. PHMSA expects that the
adoption of these proposals will maintain or enhance the safe
transportation of hazardous materials while increasing the clarity of
the HMR, and therefore decreasing compliance burdens. The proposed
amendments also reflect changing conditions and trends that affect the
safe transportation of hazardous materials while still maintaining or
enhancing safety. The following are some of the more noteworthy
subjects covered by proposed revisions:
<bullet> Rail tank car use requirements as recommended by the Rail
Safety Advisory Committee (RSAC);
[[Page 85591]]
<bullet> Rail tank car and service equipment design approval
requirements;
<bullet> Highway cargo tank specifications and requalification
requirements; and
<bullet> Marking requirements for cargo tanks that contain multiple
petroleum distillate fuels.
In this rulemaking, PHMSA solicits comment from the public and
regulated community on these proposed amendments, specifically
pertaining to the need for, benefits, and costs of the proposed
amendments; impact on safety; public interest; and any other relevant
concerns. In its preliminary regulatory impact analysis (PRIA), PHMSA
concluded that the aggregate benefits of the proposed amendments
justify their aggregate costs. PHMSA estimates annualized net benefits
at a two percent discount rate of approximately $97.3 million per year.
Details on the estimated cost savings and benefits of this rulemakings
can be found in the PRIA, which is available in the public docket for
this rulemaking.
II. Background
The Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C.
5101 et seq.) at 49 U.S.C. 5103 gives the Secretary general authority
to issue regulations for the safe transportation of hazardous materials
in commerce. The Secretary delegates the above statutory authorities to
PHMSA at 49 CFR 1.97.
A. Railroad Safety Advisory Committee
RSAC is a Federal Advisory Committee established by the U.S.
Secretary of Transportation in accordance with the Federal Advisory
Committee Act (5 U.S.C. App. 2) to provide information, advice, and
recommendations to the Federal Railroad Administration (FRA)
Administrator on matters relating to railroad safety. In 1996, FRA
established RSAC to develop new regulatory standards, through a
collaborative process, with all segments of the rail community working
together to fashion mutually satisfactory solutions on safety
regulatory issues. PHMSA participates in RSAC when issues related to
hazardous material transportation are discussed, and participated in
the development of the proposed recommendations in this rulemaking. On
November 5, 2015, the RSAC accepted Task No. 15-04: ``Hazardous
Materials Issues,'' which assigned the Hazardous Materials Issues
Working Group (HMIWG) to consider several revisions to the HMR to
enhance the safety of hazardous materials transported by rail.\1\
Consensus-approved regulatory change proposals were developed by the
HMIWG and forwarded to the RSAC for consideration. On May 25, 2017, the
RSAC voted and approved HMIWG's consensus recommendations of changes to
the HMR (hereafter referred to as the consensus recommendations) and
submitted the suggested revisions to FRA. FRA subsequently recommended
that PHMSA initiate a rulemaking to propose and adopt the consensus
recommendations. In this rulemaking, PHMSA proposes to adopt the RSAC
consensus recommendations with some modifications. Note that not all of
the consensus recommendations are proposed as received. Rather, this
rulemaking includes some revisions to the recommendations to better fit
the construction of the HMR; to provide more appropriate amendatory
instruction to the Office of the Federal Register; and to address some
technical issues discovered during detailed review of the proposed
regulatory text that was provided in the recommendation.
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\1\ More information about the RSAC, including HMIWG meeting
minutes and other supporting documents can be found at: <a href="https://rsac.fra.dot.gov/">https://rsac.fra.dot.gov/</a>.
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The consensus recommendations propose to make amendments to update,
clarify, or remove existing requirements that are outdated or
unnecessary. They propose the following changes, among others: (1)
require tank car facilities to apply for and receive a DOT registration
letter from PHMSA assigning a registration number prior to qualifying
tank cars for service; (2) incorporate by reference updated versions of
certain industry standards, including the Association of American
Railroads (AAR) Manual of Standards and Recommended Practices Section
C-III Specifications for Tank Cars (M-1002); and (3) revise the
requirements for One-Time Movement Approvals (OTMAs). These changes are
discussed in greater detail later in ``Section IV. Section-by-Section
Review.''
On August 27 and 28, 2013, FRA held a public meeting \2\ to invite
stakeholders and the public to participate in a comprehensive review of
part 174 of the HMR, to improve the safety of railroad transportation
of hazardous materials. Specifically, FRA sought comment on identifying
provisions of part 174--Carriage by Rail--that are outdated, unclear,
no longer necessary, present an undue economic burden on the regulated
community, are inconsistent with other North American standards and
regulations (such as those issued by the AAR and Transport Canada), do
not sufficiently address modern safety concerns, or do not sufficiently
address technological advancements and procedural changes in the
railroad operating environment. FRA included specific requests for
comment on the public meeting agenda for a review of definitions and
abbreviations (Sec. 171.8); notice to train crews (Sec. 174.24);
nonconforming or leaking packages (Sec. 174.50); packagings, cargo
tanks, and multi-unit tank car tanks in Tank-on-Flatcar (TOFC) and
Container-on-Flatcar (COFC) service (Sec. Sec. 174.61 and 174.63),
tank car unloading (Sec. 174.67); switching placarded railcars,
transport vehicles, freight containers and bulk packagings (Sec.
174.83); position of railcars (Sec. 174.85); as well as an open
discussion on part 174. In its consensus recommendations, the RSAC
addressed many of the issues identified and discussed during this
public meeting. See ``Section IV. Section-by-Section Review'' for
discussion of specific proposed changes because of the public meeting
comments and RSAC deliberations.
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\2\ Comments from various associations and members of the public
can be found at: <a href="https://www.regulations.gov/docket?D=FRA-2013-0067">https://www.regulations.gov/docket?D=FRA-2013-0067</a>.
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B. AAR Authority To Approve the Design of Tank Cars and Quality
Assurance Programs
1. Introduction
The design, construction, maintenance, and qualification of tank
cars used to transport hazardous materials are complex regulatory
topics. Tank cars are the largest type of hazardous materials packaging
in use in surface transportation, and the consequence of failure during
transportation can be--and has been--catastrophic. The HMR currently
delegate tank car and service equipment design approval and tank car
facility Quality Assurance Program (QAP) approval to the AAR Tank Car
Committee (TCC). The AAR TCC is a body of representatives drawn from
the railroads, tank car shippers, and the tank car manufacturing,
maintenance, and repair industry. The AAR TCC approves tank car designs
and manages QAP approval, as well as develops its own standards for the
design and operation of tank cars. PHMSA and FRA provide regulatory
oversight to the AAR TCC approval process to ensure the committee is
operating within the HMR's purview. The process by which the AAR TCC
approves tank car and service equipment designs, materials, and
construction, and conversion or alteration, is not specified in Sec.
179.3; however, typically the committee votes on the proposed designs,
materials, and
[[Page 85592]]
construction, and conversion or alteration based on AAR TCC staff
review of design drawings and/or service trial results. The approval of
QAPs is handled similarly via a vote of the AAR TCC after the facility
has been audited by AAR Bureau of Explosives auditors. Audit
scheduling, procedure, and recommendation for approval or denial is
conducted wholly at the discretion of the AAR.
The HMR require each tank car facility to maintain a QAP that meets
the requirements of Sec. 179.7, with the intent that a properly
implemented QAP will:
<bullet> Ensure the qualified tank car conforms to the requirements
of the applicable specification and regulations;
<bullet> Identify any defects in the tank car manufacturing,
repair, inspection, testing, and qualification or maintenance program;
and
<bullet> Prevent any non-conformity from recurring.
Specifically, tank car facility QAPs must--at a minimum--address
the elements in Sec. 179.7(b)-(e), including verification of
construction materials, monitoring and control of processes, and
qualification of personnel.
PHMSA and FRA initiated a review of the current regulations in part
179--Specifications for Tank Cars--that require both tank car design
and tank car facility QAPs to be approved by the AAR TCC. Additionally,
PHMSA and FRA recognize that the scope of the definition of tank car
facility has created confusion among tank car shippers and in the tank
car manufacturing and maintenance industry. In this rulemaking, PHMSA
proposes to revise the definition of tank car facility to reduce
confusion and uncertainty in the regulated community. In conjunction
with the other rail-specific changes proposed in this rule, this change
will improve safety of rail transportation through increased awareness
of who qualifies as a tank car facility and who specifically must
comply with the HMR requirements for that facility (see ``Section
II.B.4 Tank Car Facility Definition'' for further discussion on this
issue).
PHMSA and FRA have determined that the current system requiring AAR
approval for tank car facility QAPs and tank car designs creates a
regulatory bottleneck without commensurate safety benefits for the
regulated industry. As such, PHMSA proposes revisions to the current
system to relieve confusion and increase the efficiency of the approval
process (see ``Section II.B.2 Tank Car Design Approval'' and ``Section
II.B.3 Tank Car Facility Quality Assurance Program'' for further
discussion of these issues). The proposed revisions are intended to
increase the efficiency of the tank car design and QAP approval
process, without compromising safety, by increasing governmental
oversight of regulated entities through a registration program. The
following is a brief summary of proposed changes to the approval
processes and the definition of tank car facility which PHMSA discusses
in greater detail later in this section:
A. Remove the requirement for tank car and service equipment
designs to be approved solely by the AAR TCC and replace it with a
requirement for tank car designs to be approved by a tank car Design
Certifying Engineer (DCE) registered with PHMSA. This proposed
requirement closely mirrors the process for highway cargo tank design
review and approval.
B. Remove the requirement for tank car facilities to have a QAP
approved by the AAR and replace it with a requirement for tank car
facilities to register with PHMSA, maintain a QAP, and certify that it
meets the Sec. 179.7 quality assurance program requirements.
C. Revise the definition of tank car facility to clarify that the
definition applies to facilities that qualify a tank car for service,
and to clarify what activities require qualification of a tank car.
D. Add a registration program for tank car DCEs and tank car
facilities.
E. Revise the incorporation by reference (IBR) of specific chapters
and appendices of the 2014 edition of the AAR Manual of Standards and
Recommended Practices, Section C--III, Specifications for Tank Cars,
Specification M-1002 (i.e., AAR Specifications for Tank Cars) to
correspond to the above proposals (i.e., removing the requirement to
comply with the specific sections of M-1002 that require AAR approval).
F. Revise the requirements for coating and lining inspection of
tank cars to clarify what is expected.
G. Revise Sec. 180.513--Repairs, alterations, conversions, and
modifications--to clarify that tank car facilities must include the
tank car owner's qualification and maintenance program into their QAP
to correct an incorrect reference to including the tank car owner's
QAP. Generally, a tank car owner is not subject to QAP requirements.
2. Tank Car Design Approval
Federal hazardous material transportation regulations have
delegated the authority to approve tank car and service equipment
designs to the AAR--and various predecessor organizations--since at
least 1927. As provided in Sec. 179.3, the AAR TCC has authority to
approve tank car designs, materials and construction, conversion, or
alteration of tank car tanks under the specifications of part 179. By
way of example, Sec. 179.100-12(a) requires that manway nozzles must
be of approved design of forged or rolled steel for steel tanks. In
this context, pursuant to the definition in Sec. 179.2, ``approved''
refers to approval by the AAR TCC.
Although PHMSA has delegated the authority to approve tank car
designs, the current state of the AAR's autonomous approval process
presents inefficiencies when insufficient resources are available to
process approval applications, resulting in unnecessary delays and
increased costs for the tank car design and manufacturing community. As
such, PHMSA and FRA propose to remove the requirement that tank car and
service equipment designs receive approval solely through the AAR TCC
before they are used in hazardous materials (hazmat) service. PHMSA and
FRA propose to replace AAR TCC design approval with alternative
approval by a tank car DCE, similar to the design approval structure
for highway cargo tanks. The proposed tank car DCE requirement will
include registration with PHMSA, and registrations will be subject to
termination for cause, with the intent to create a more transparent,
accountable tank car design approval system without any impact on the
safety of such approved tank cars. ``Design certifying engineer'' is a
defined term in the HMR in Sec. 171.8, and currently only applies to
engineers who can determine that a cargo tank design meets applicable
DOT specification standards. PHMSA and FRA propose to revise the
definition of DCE to include persons able to determine that a tank car
meets applicable DOT specification standards. PHMSA and FRA propose
that a tank car DCE must:
<bullet> Have an engineering degree and at least one year of work
experience in tank car structural or mechanical design; or
<bullet> Be registered currently as a professional engineer by an
appropriate authority of a state of the United States or a province of
Canada.
As proposed, a tank car DCE may not use their experience in cargo
tank structural or mechanical design to meet the experience requirement
for tank car design, and vice versa for a cargo tank DCE. Based on our
knowledge of the cargo tank and tank car industries, PHMSA believes it
is unlikely that a company would attempt to register a
[[Page 85593]]
single engineer as both a tank car and cargo tank DCE. In the event
this does occur, PHMSA would allow a single engineer to be registered
as both a tank car and cargo tank DCE; however, they will need to
acquire separate registrations: a cargo tank DCE registration as
specified in subpart F of part 107, and a tank car DCE registration as
specified in the proposed new subpart J of part 107. PHMSA has
determined that maintaining separate registrations in the event that a
single person holds both will simplify recordkeeping and enforcement by
preventing unintended administrative hang-ups if one registration is
allowed to lapse or termination proceedings are initiated. PHMSA
requests comments on this proposed registration process.
Currently, the tank car design approval process is managed by the
AAR TCC (see Sec. 179.3). PHMSA and FRA attend AAR TCC meetings and
participate in AAR TCC working groups on specific issues; however, the
agencies do not manage the day-to-day operations of the AAR TCC. PHMSA
and FRA have no voting power in the committee and little involvement in
the day-to-day process by which the AAR TCC reviews and approves tank
car designs. PHMSA and FRA retain full authority to set tank car safety
standards through the adoption of tank car design specification
requirements in part 179, and tank car use requirements in part 173. To
provide additional context, there are approximately 130 instances in
part 179 where the HMR requires that a tank car design feature (e.g.,
the manner in which a tank car tank is attached to the car structure)
\3\ or item of service equipment (e.g., a valve) \4\ be ``approved.''
This approval is issued by the AAR TCC when the Committee determines
that tank car tank or equipment is in compliance with the requirements
of the HMR.\5\ The AAR TCC is the only entity granted the authority to
issue such approvals for tank car tanks and service equipment in the
HMR.
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\3\ See Sec. 179.10.
\4\ See Sec. 179.200-16(b).
\5\ See Sec. 179.3.
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PHMSA and FRA have determined that--based on experience
participating in the current AAR TCC process--the process for tank car
design approval is conducted in such a way that increases costs and
delays to the regulated community, without a commensurate increase in
safety that would justify these delays. The HMR create a single-source,
prescriptive system, because only AAR TCC has the authority to approve
an application for a tank car design, material of construction,
conversion, or alteration under part 179 specifications. The HMR
requirements for the review of a tank car design are well understood
and include compliance with part 179 and other considerations that a
tank car design must take into account (e.g., lading properties,
material compatibility, operating temperatures, etc.). There is little
doubt that there are many engineers in the United States with tank car
structural or mechanical design experience who could review and certify
that a tank car's design meets the HMR requirements. Replacing AAR TCC
approval with DCE approval as proposed will create a system that
increases efficiency in the tank car design approval market by
expanding the pool of authorized tank car design approval sources
without impacting the safety of tank cars used to transport hazardous
materials. The proposed system also includes documentation requirements
for DCEs that will facilitate improved government oversight of the
design approval process via periodic audits, and it would allow DCE
registrations to be terminated for cause as further discussed below.
PHMSA and FRA expect that an individual with an engineering degree
and tank car design experience or a registered professional engineer--
thus meeting the Sec. 171.8 definition of a tank car DCE--will be able
to review the design of a tank car or service equipment and determine
whether the design complies with the tank car specification
requirements. This proposal will improve government oversight of the
tank car approval process. Currently, PHMSA and FRA have limited
ability to take enforcement action against the TCC for failures to
comply with the requirements of the HMR. The current TCC design review
procedures have allowed non-compliant tank cars to enter
transportation, posing risks to lives and the environment. When non-
compliant cars are discovered in transportation, FRA takes immediate
action to protect rail workers and the public. This can include issuing
a railworthiness directive to address the non-compliance. Audits of the
TCC tank car design review process conducted by the Department have
revealed systemic operational and processing issues within the TCC--
specifically--that the TCC utilizes, approves, and certifies
Independent Third Party (ITP) individuals for reviewing and verifying
that the application meets all AAR and DOT design requirements. These
audit findings still have not been addressed to date. Additionally, in
the recent past, the TCC elected not to review and approve new designs
for DOT-106 and DOT-110 multi-unit tank car tanks (commonly known as
``ton tanks''). The TCC's decision not to review and approve DOT-106
and DOT-110 designs created significant disruption for a packaging
manufacturer and their customers. As a result, PHMSA expended resources
to develop and issue a Special Permit \6\ to allow the construction and
use of these packagings to avoid disruption to commercial activities
caused by the TCC's decision not to complete the role assigned to them
in Sec. 179.3. PHMSA and FRA are also concerned that the current
system allows TCC to regulate entry to the market by controlling the
approval process. Major tank car and service equipment (e.g., valve)
manufacturers are represented on the TCC. This creates a potential
conflict of interest for the TCC when considering approval applications
from firms that compete with companies its members represent. PHMSA and
FRA have determined that due to unaddressed issues in the AAR TCC
approval process, a recent history of a decision not to perform the
role assigned in the HMR, and the potential for incumbent tank car
industrial concerns to impact entry of competitors into the
marketplace, we can no longer justify delegating authority for tank car
design approval to the AAR TCC.
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\6\ <a href="https://www.phmsa.dot.gov/hazmat/documents/offer/SP14437.pdf/offerserver/SP14437">https://www.phmsa.dot.gov/hazmat/documents/offer/SP14437.pdf/offerserver/SP14437</a>.
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PHMSA and FRA expect that costs for reviewing and approving tank
car designs will decrease by removing the single-source approval and
the barriers of entry to the business of tank car design approval. The
implementation of the proposed tank car DCE program will maintain at
least an equivalent level of safety of tank car design by ensuring tank
car DCEs maintain and adhere to a detailed written procedure to
evaluate the compliance of a tank car design with the HMR's tank car
specification and usage requirements. PHMSA and FRA will be able to
exert substantially greater oversight over tank car DCEs than the AAR
TCC, both through the modification, suspension, and termination
procedures proposed in this NPRM, as well as through the civil and
criminal penalty procedures applicable to all persons who perform
activities subject to the HMR through 49 CFR parts 107, 109, and 49
U.S.C. 5123-5124.
PHMSA, in conjunction with our highway modal partner FMCSA, has
experience overseeing a DCE program for the design approval of bulk
[[Page 85594]]
hazardous materials packages intended for highway transportation
through the existing cargo tank DCE program. This experience makes us
confident that private sector engineers, operating under governmental
oversight through a registration program, can safely and effectively
review a package (i.e., a tank) design and ensure it complies in all
respects with the relevant design requirements of the HMR. PHMSA and
FRA intend to maintain direct oversight on the tank car design process
through regular audits of tank car DCEs and reserve the right to
terminate a tank car DCE registration for cause. Causes for
registration termination include: (1) because of a change in
circumstances the registration is no longer needed or would no longer
be granted if applied for; (2) the application contained inaccurate or
incomplete information and it would not have been granted had accurate
and complete information been provided; (3) the application contained
deliberately inaccurate or incomplete information; or (4) the
registration holder knowingly violated the terms of the registration or
an applicable requirement of 49 CFR Chapter I in a manner demonstrating
lack of fitness to conduct the activity for which the registration is
required. PHMSA emphasizes that criteria (4) can be used to bring
enforcement action and potential modification, suspension, or
termination proceedings against a tank car DCE who fails to maintain
and follow an adequate written procedure that is used to verify
conformance with the requirements of the HMR. See ``Section IV. Section
107.911'' for additional information on the termination of a tank car
DCE registration.
By clearly describing the processes and procedures that the DCE
must follow to approve a tank car design, PHMSA and FRA expect a high
level of safety for tank car designs will be maintained. PHMSA proposes
to require the DCE to review the same information and drawings
currently required in the AAR Form 4-2. This commonality with existing
design records is intended to minimize disruption during the
transitional period and maximize tank car and service equipment
manufacturer and DCE familiarity with the required documentation. The
requirements proposed in Sec. Sec. 179.3 and 179.5 are intended to
create an accountable, auditable, criteria-based tank car design
approval system that is more transparent to government oversight than
the current system. The proposed requirements in Sec. Sec. 179.3 and
179.5 are primarily based on the requirement for a tank car DCE to
develop, maintain, and adhere to a written procedure describing the
process used to verify a tank car or service equipment's design with
the requirements of the HMR. This detailed procedure must include
acceptance and rejection criteria for each tank car or service
equipment design element approved by the DCE, which demonstrate the
tank car or service equipment will meet the requirements of part 179
and retain the hazardous contents of the packaging in all normal
conditions of transportation for the designed life of the packaging.
PHMSA and FRA investigators and engineers will evaluate the detailed
procedures during periodic audits to ensure the procedures adequately
maintain compliance with part 179, and that the DCE is following the
procedures. These general procedural requirements proposed in
Sec. Sec. 179.3 and 179.5 will allow tank car DCEs to determine the
most efficient workflow for their business needs, while providing a
clear basis for evaluation of a tank car DCE's procedures. These
standards also provide a clear framework for PHMSA and FRA to conduct
audits and determine whether lapses in a tank car DCE's performance
warrant the issuance of a Notice of Probable Violation, or, in serious
cases, initiation of modification, suspension, or termination
proceedings.
The DCE registration program also may facilitate greater
technological advancements in tank car and service equipment designs by
facilitating greater access to tank car and service equipment design
certification services. The proposed rule would enable other entities
to approve tank car designs, potentially leading to more processing of
innovative designs that meet the existing performance standards and
their subsequent use in the transportation arena. In addition, opening
these services up to other entities--rather than maintain the design
approval process solely with AAR TCC--may increase competition within
the industry as additional DCEs are registered and begin to provide
tank car design approvals. This competition is expected to result in
potential cost reductions for the regulated community.
To adequately oversee tank car DCEs, PHMSA and FRA propose to
require that each DCE register with PHMSA and provide information on
the types of design reviews the DCE will conduct. This will allow PHMSA
and FRA to audit DCEs to ensure they are properly reviewing each tank
car or service equipment design and only issuing approvals to those
designs that meet the requirements of part 179. Each DCE must develop
procedures, including acceptance and rejection criteria for the
approval process, which demonstrate that the tank car or service
equipment will meet the requirements of part 179 and the design level
of reliability and safety for the hazardous materials service for which
the tank car is intended. The registration requirement is necessary to
assist PHMSA and FRA in performance of their oversight responsibilities
to ensure all tank car DCEs are performing their design reviews with
appropriate rigor, and thus that tank car designs are suitable for
hazmat transportation. See discussion in section ``Section II.B.5 Tank
Car Facility and Design Certifying Engineer Registration'' for
additional details on the proposed registration program.
Therefore, PHMSA proposes to remove reference to AAR approval for
tank car designs wherever it appears in the subchapter. A DCE
registered with PHMSA would fill the tank car design approval role
currently delegated to the AAR. Authorizing qualified individuals,
registered with PHMSA, to review and certify tank car designs under
PHMSA and FRA oversight will increase the level of safety provided by
the HMR while increasing design review efficiency for the tank car
design and manufacturing community. Finally, PHMSA notes this would not
exclude the AAR staff or TCC members from registering as DCEs to
continue to perform these approvals; however, it removes exclusive
delegation and opens the market to all those who are qualified. AAR TCC
may continue to provide approval services commercially, provided they
register with PHMSA and follow the same requirements proposed in this
NPRM that other tank car DCEs must follow.
3. Tank Car Facility Quality Assurance Program
Tank car facilities, as defined in Sec. 179.2, are required to
have a QAP that--among other items--has the means to detect non-
conformities in the tank car manufacturing, repair, inspection,
testing, and qualification or maintenance processes. Currently, each
tank car facility's QAP must meet the requirements of Sec. 179.7,
which requires that the QAP be approved by the AAR. In this rulemaking,
PHMSA proposes to remove the requirement that AAR approve a tank car
facility's QAP. As a substitute, we propose to replace this requirement
with a requirement that tank car facilities must register with PHMSA,
certify that they maintain a QAP that meets the requirements of Sec.
179.7, and include an executive summary of their QAP with their
[[Page 85595]]
registration statement. As proposed, the registration program will
improve safety through increased PHMSA and FRA situational awareness of
tank car facility activities and provide mechanisms to address non-
compliance. PHMSA proposes to allow modification, suspension, or
termination of a tank car facility registration for the following
causes: (1) because of a change in circumstances, that the registration
is no longer needed or would no longer be granted if applied for; (2)
the application contained inaccurate or incomplete information and it
would not have been granted had accurate and complete information been
provided; (3) the application contained deliberately inaccurate or
incomplete information; or (4) the registration holder knowingly
violated the terms of the registration or an applicable requirement of
49 CFR Chapter I in a manner demonstrating lack of fitness to conduct
the activity for which the registration is required. PHMSA emphasizes
that criteria (4) above can be used to bring enforcement action and
initiate modification, suspension, and termination proceedings against
a tank car facility that fails to adhere to their QAP. A tank car
facility's failure to adhere to a QAP could create unacceptable risks
in the rail system and may cause unsafe tank cars to enter
transportation.
The creation of the QAP requirement for tank car facilities was
initiated based on a National Transportation Safety Board (NTSB) safety
recommendation (R-88-63) \7\ issued in response to a September 8, 1987,
incident involving the release of butadiene from a tank car in New
Orleans, Louisiana. In 1993, the Research and Special Programs
Administration (RSPA)--PHMSA's predecessor agency--proposed the
creation of the QAP requirement and definition of tank car facility in
an NPRM (HM-201).\8\ The primary intent of this requirement--as
discussed in the preamble of HM-201--is to ensure each tank car
manufacturing or repair facility has procedures in place to detect any
nonconformity in the tank car manufacturing, maintenance, or repair
process and has the means to prevent its recurrence.
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\7\ See NTSB Safety Recommendation R-88-063: <a href="https://www.ntsb.gov/investigations/AccidentReports/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-88-063">https://www.ntsb.gov/investigations/AccidentReports/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-88-063</a>.
\8\ 58 FR 48485 (Sep. 16, 1993).
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In 1995, RSPA created the definition for the term ``tank car
facility'' and a requirement for each tank car facility to maintain a
QAP meeting the requirements of Sec. 179.7 in final rule HM-175A and
HM-201,\9\ and made minor revisions to the requirements in a 1996 HM-
175A and HM-201 corrections final rule.\10\ The requirements of Sec.
179.7 have not been modified substantively since.
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\9\ 60 FR 49048 (Sep. 21, 1995).
\10\ 61 FR 33250 (Jun. 26, 1996).
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PHMSA and FRA have found that the requirement for only AAR to
review and approve each tank car facility's QAP creates an undue cost
burden on the facility and creates delays in approving facility
operation that hinder commerce. Additionally, PHMSA and FRA's
experience auditing tank car facilities with QAPs approved by AAR TCC
have revealed significant compliance issues with the current QAP
approval process. For example, PHMSA and FRA have knowledge that on at
least one occasion--over the course of many months--AAR did not take
action on a facility that failed AAR Bureau of Explosives QAP audits.
These negative findings demonstrated the facility's failure to maintain
an effective QAP and, therefore, the company's inability to safely
perform their tank car qualification functions as required by the HMR.
Specifically, AAR did not take action to remove the certification of a
tank car facility in Shoshone, Wyoming, (Wasatch Railroad Contractors)
that had failed multiple QAP audits. This inaction allowed the facility
to continue to operate without an effective QAP. FRA and PHMSA raised
concerns that AAR has not adopted procedural changes to prevent this
type of failure (e.g., by immediately addressing findings) from
recurring. Subsequently, on April 22, 2021, two employees were killed
in an explosion while working inside a tank car.\11\ FRA and PHMSA
believe corrective action by AAR and the facility may have prevented
such an incident by not allowing continued work on tank cars. In 2022,
the owner of Wasatch Railroad Contractors was found guilty of five
counts of wire fraud and one count of knowing endangerment for
knowingly exposing employees to asbestos and placing them in imminent
danger of death or serious bodily injury.\12\
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\11\ <a href="https://apnews.com/article/explosions-business-1aa330c562c393a74421e4a90b9394db">https://apnews.com/article/explosions-business-1aa330c562c393a74421e4a90b9394db</a>.
\12\ <a href="https://www.justice.gov/usao-wy/pr/wasatch-railroad-contractors-and-its-chief-executive-officer-sentenced-wire-fraud-and">https://www.justice.gov/usao-wy/pr/wasatch-railroad-contractors-and-its-chief-executive-officer-sentenced-wire-fraud-and</a>.
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Additionally, as part of AAR TCC's current QAP approval process,
AAR requires that tank car facilities bear the expense on an initial
certification audit and annual recertification audits thereafter. The
initial certification process often takes several months, and the tank
car facility has no recourse under the current HMR requirements but to
accept AAR's timeline and fees. Additionally, the audit process does
not increase the level of safety commensurate with the costs and delays
it imposes. FRA inspectors regularly find violations of the HMR at
facilities that AAR authorizes to operate through the current QAP
approval process. FRA issues findings, tickets, and notices of probable
violation to tank car facilities when it discovers non-compliance. When
violations are systemic or significant, FRA uses its railworthiness
authority to address similarly situated cars or fleets of cars.
Therefore, PHMSA and FRA propose to remove the requirement that
tank car facilities submit their QAPs for approval to AAR and replace
it with a requirement that each tank car facility register with PHMSA
and certify that it has created and is maintaining a QAP that meets the
requirements of Sec. 179.7. As part of the registration requirement,
PHMSA and FRA propose that the registrant must submit an executive
summary of its QAP, demonstrating compliance with the elements required
in Sec. 179.7(b). Facilities may submit certifications from outside
organizations, such as an external auditor, to serve as the executive
summary or submit their own executive summary documents. PHMSA will
administer the registration program for facilities, and FRA--in
conjunction with PHMSA--will oversee tank car facility QAPs through
regular facility compliance audits. PHMSA and FRA have limited
oversight and control over the current AAR approval process for tank
car facility QAPs. However, the observations that have been conducted,
coupled with our enforcement oversight of the tank car fleet, provide
PHMSA and FRA with significant concerns that the current system of AAR
audits provides limited safety benefits compared to the burdens
imposed. PHMSA and FRA expect the registration program combined with
regular compliance audits by government personnel will maintain an
equivalent or greater level of safety to the current requirements while
reducing administrative delays caused by the AAR process. PHMSA and FRA
emphasize that adhering to a rigorous QAP is critical for a tank car
facility to ensure that the tank cars qualified for service at the
facility meet the requirements of the tank car's specification and
regulations. See ``Section II.B.5. Tank Car Facility and Design
Certifying Engineer Registration'' for additional details on the
proposed registration program.
[[Page 85596]]
PHMSA recognizes that this topic is the subject of an open petition
P-1770 \13\ submitted by AAR on October 21, 2022. This petition
requests the removal of the AAR approval requirement for QAPs in
accordance with Sec. 179.7. The AAR petition requests that PHMSA
replace AAR approval of QAPs with a requirement for tank car facilities
to comply with an industry standard known as ``AAR M-1003--
Specification for Quality Assurance.'' As described above, PHMSA
believes that a performance-based approach to QAPs--along with
registration with the Department and self-certification--is the best
option. Our proposal allows for the use of accepted industry standards
for quality assurance programs to meet the proposed safety
requirements, but does not mandate one standard over another. This
allows tank car facilities to implement the performance elements in the
most appropriate manner for their operations. Therefore, in this NPRM,
PHMSA is not proposing to incorporate by reference AAR M-1003 into
Sec. 179.7. PHMSA will consider any comments on this topic with
respect to this NPRM as it evaluates petition P-1770.
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\13\ <a href="https://www.regulations.gov/document/PHMSA-2022-0130-0001">https://www.regulations.gov/document/PHMSA-2022-0130-0001</a>.
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4. Tank Car Facility Definition
PHMSA and FRA are aware that there is uncertainty in the tank car
community related to the scope of the definition of ``tank car
facility.'' This uncertainty impacts both tank car shippers and tank
car manufacturers (including service equipment manufacturers). On
October 8, 2019, PHMSA, in conjunction with FRA, issued Letter of
Interpretation Reference No. 19-0117 \14\ addressing the definition of
``tank car facility.'' PHMSA proposes to revise the definition of
``tank car facility'' consistent with Letter of Interpretation
Reference No. 19-0117 so that the definition applies only to the
facility that qualifies the tank car for service. That is, for example,
an equipment manufacturer of a pressure valve used in the construction
of a tank car is not a tank car facility solely on the basis of
manufacturing a component part of a specification tank car. The
determining factor on the applicability of the ``tank car facility''
definition is whether the facility qualifies a tank car for service.
The tank car facility that qualifies the tank car for service is
responsible for ensuring the conformity of the entire tank car,
including service equipment, with the approved specification.
Additionally, PHMSA proposes to revise the definition of ``service
equipment'' in Sec. 180.503 to clarify what constitutes ``service
equipment'' consistent with our expectations in revising the definition
of a tank car facility. Service equipment is pressure or lading
retaining equipment. Examples include pressure relief devices, valves,
manway covers, devices used for loading and unloading, interior heating
coils, and vents.
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\14\ See Letter of Interpretation Reference No. 19-0117: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/19-0117">https://www.phmsa.dot.gov/regulations/title49/interp/19-0117</a>.
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To address the community of tank car shippers: PHMSA's and FRA's
position, as reflected in the proposed definition, is that the removal
of service equipment from the tank car and replacement or re-
installation of the service equipment is a qualification event and
triggers the need for a leakage pressure test (see Sec. 180.509(j)) to
verify the tank car is leak tight at the connection. These functions
must be conducted by a tank car facility, as defined in part 179,
because the service equipment requires a leakage pressure test to
ensure the connection to the tank car is qualified for its intended
service. A leakage pressure test is a qualification event and must be
performed by a tank car facility. Any action that triggers a
qualification event requires a tank car facility to perform the
qualification prior to placing the tank car into transportation.
However, to be clear, a facility that only operates service equipment
for loading and unloading purposes is not a tank car facility.
To address the community of tank car component manufacturers,
repair facilities and manufacturers: PHMSA's and FRA's position, as
reflected in the proposed definition, is that a facility that only
manufactures, maintains, or repairs service equipment is not a tank car
facility. The facility that qualifies the completed tank car for
service after installation of the service equipment is the tank car
facility. The facility that qualifies the tank car for service is
responsible for ensuring the compliance of the packaging with the
requirements of part 179, even those functions that they did not
directly perform (e.g., manufacturing a valve). The tank car facility's
QAP must encompass all work done on the tank car and its components
prior to qualification of the tank car.
Tank car facilities that meet the proposed revised definition of
tank car facility in Sec. 179.2 must have the knowledge and skill to
ensure appropriate conformance with the requirements of parts 179 and
180. As qualification is the final step in the tank car manufacturing
or maintenance process, only requiring the facilities that qualify tank
cars (i.e., facilities that have the ``last touch'') to have a QAP
reduces this requirement to a small subset of the total number of
facilities that perform work related to tank cars, while still
maintaining the high level of safety under the HMR. PHMSA and FRA
emphasize the scope of the definition of ``qualification'' remains
unchanged. Therefore, as proposed, tank car shippers and component
suppliers are not subject to the administrative burdens associated with
the creation and maintenance of QAPs, unless they perform qualification
activities (e.g., removal and replacement of a valve or other service
equipment on a tank car). PHMSA and FRA emphasize that all facilities
that perform a function subject to the HMR are responsible for
performing it correctly and in conformance with all applicable
requirements, regardless of whether they meet the definition of a
``tank car facility.''
Tank car facilities are responsible for ensuring all material
installed onto the tank car meets the requirements of the specification
and the regulations at the time the tank car is qualified for service.
PHMSA and FRA understand that long-standing policy in the tank car
industry had required tank car component manufacturers to maintain AAR-
approved QAPs. This policy was confirmed in previously issued (and
since revoked) PHMSA Letters of Interpretation Reference Nos. 15-0124
and 18-0029. While these letters are no longer valid, and have not been
valid since 2019, at the time they were written they aligned with
generally accepted industry practice and addressed a safety issue
created by production of valves and other tank car service equipment by
unapproved sub-contractors without adequate oversight. As proposed in
this NPRM, the facility that qualifies the tank car for service is
responsible for ensuring the tank car and all equipment necessary for
the tank car's operation meets the applicable requirements of the HMR
and any other applicable standards.
5. Tank Car Facility and Design Certifying Engineer Registration
As previously discussed, PHMSA and FRA propose to require that tank
car facilities and tank car DCEs register with PHMSA prior to
conducting regulated activities. PHMSA and FRA expect that a
registration program for both tank car facilities and tank car DCEs is
a more efficient alternative for the tank car industry while providing
at least an equivalent level of safety. Direct monitoring of registered
tank car facilities and tank car DCEs through site visits and audits
will maintain the
[[Page 85597]]
existing safety standards established in the HMR.
Therefore, PHMSA, in conjunction with FRA, proposes to create
subpart J in part 107 for tank car facility and tank car DCE
registration. The creation of a tank car facility registration program
was agreed to in the RSAC process; however, PHMSA proposes to implement
the tank car facility registration program in a format different than
what appears in the RSAC consensus recommendations. In the RSAC
proposal, the tank car facility registration was added to the existing
cargo tank facility registration subpart (i.e., part 107, subpart F).
After reviewing the RSAC proposal, PHMSA and FRA have determined that
it would be confusing to both the cargo tank and tank car communities
to attempt to insert tank car-specific facility and DCE registration
language into part 107, subpart F. PHMSA proposes to place the tank car
facility and tank car DCE registration requirements in a new subpart to
reduce confusion and highlight the tank car-specific nature of these
programs. However, some of the proposed language is similar to the part
107, subpart F requirements for cargo tanks and cargo tank motor
vehicles.
For tank car facilities, PHMSA proposes to require that each
facility, i.e. each separate physical location with a unique street
address, submit a separate registration. This will allow PHMSA and FRA
to oversee each facility that qualifies tank cars more effectively by
establishing the physical addresses and activities of each facility.
Each registration statement must be signed by a principal, officer,
partner, or employee of the facility responsible for compliance with
the applicable requirements of the HMR, certifying knowledge of those
requirements. In their registration statement, each tank car facility
must list the qualification functions the tank car facility will
perform and identify the types of DOT specification or special permit
tank cars they intend to qualify.
For DCEs, PHMSA proposes to require each person, as defined in
Sec. 171.8, who conducts review of a tank car or service equipment
design must register with PHMSA. Each engineer employed to conduct the
design reviews must be individually named in the registration and will
receive a unique, separate identifier associated with the company's DCE
registration. If an engineer is employed as a DCE to conduct design
reviews of tank cars or service equipment and begins operating as a DCE
for another company, or as self-employed, then the engineer must inform
PHMSA and will then receive a new registration number.
PHMSA also proposes the ability to modify, suspend, or terminate
both tank car facility and tank car DCE registrations for cause in new
Sec. 107.911. Further, procedures for a tank car facility or DCE to
follow to request reconsideration and appeal a decision to modify,
suspend, or terminate a registration are proposed in new Sec. Sec.
107.913 and 107.915, respectively. Modification, suspension, and
termination determinations for tank car facility and DCE registrations
will be made by the Associate Administrator for Safety, FRA. Similarly,
requests for reconsideration must also be submitted to the Associate
Administrator for Safety, FRA, and appeal of the reconsideration
decision to the FRA Administrator.
6. AAR Specifications for Tank Cars Incorporation by Reference
The AAR has developed a comprehensive industry standard for the
construction and maintenance of tank cars, the AAR Manual of Standards
and Recommended Practices, Section C--III, Specifications for Tank
Cars, Specification, M-1002 (AAR Specifications for Tank Cars).
Currently, Sec. 171.7 incorporates by reference the December 2000
edition of the AAR Specifications for Tank Cars throughout parts 173
(Shippers-General Requirements for Shipments and Packagings), 179
(Specifications for Tank Cars), and 180 (Continuing Qualification and
Maintenance of Packagings). In many sections, especially in part 179,
the HMR only references a specific section, such as an appendix, of the
document. To clarify the IBR structure of M-1002, the RSAC agreed to
separately list the individual chapters and appendices of the of AAR
Specifications for Tank Cars in the HMR's consolidated IBR section
(Sec. 171.7). This will clearly denote to the reader the relevant
chapter or appendix of the document that applies in a particular
section of the HMR. This change will also provide PHMSA and FRA greater
flexibility when incorporating by reference future editions of the
standard. For example, if PHMSA and FRA do not concur on the content of
a particular chapter or appendix, it would not prevent other chapters
or appendices from being incorporated by reference.
The RSAC also agreed to update the standard from the December 2000
edition to the November 2014 edition. The 2014 edition of the AAR
Specifications for Tank Cars also addresses NTSB Safety Recommendation
R-12-007,\15\ issued on March 2, 2012. R-12-007 recommends that PHMSA
adopt AAR's revised design standards for center sill and draft sill
attachments. AAR redesigned center and draft sill attachments in
response to NTSB Safety Recommendation R-12-009.\16\ Chapter 6 of the
2014 edition of the AAR Specifications for Tank Cars, which is proposed
for adoption into Sec. 179.10, includes the new sill attachment
standards for newly built tank cars. Therefore, the proposed IBR update
helps PHMSA address NTSB Safety Recommendation R-12-007.
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\15\ See NTSB Safety Recommendation R-12-007: <a href="https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-007">https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-007</a>.
\16\ See NTSB Safety Recommendation R-12-009: <a href="https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-009">https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-009</a>.
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This NPRM proposes to update the IBR of the AAR Specifications for
Tank Cars to the 2014 edition and to incorporate by reference
separately each relevant chapter and appendix, as agreed to in the RSAC
process. Due to the proposed removal of AAR's sole process for review
and approval of tank car designs, certain appendices and sections are
no longer necessary to IBR. Several appendices and sections that
require designs and QAPs to be sent to AAR for approval would no longer
be relevant (see ``Section II.B.2. Tank Car Design Approval).
Therefore, PHMSA does not propose to IBR Appendix B, Appendix L, and
Appendix U of the AAR Specifications for Tank Cars into the HMR.
Additionally, PHMSA proposes to update the edition of the AAR
Manual of Standards and Recommended Practices, Section C--II
Specifications for Design, Fabrication and Construction of Freight
Cars, Chapter 5 to the 2011 edition from the 1988 edition, as agreed in
RSAC.
[[Page 85598]]
PHMSA proposes to IBR the 2014 edition of the AAR Manual of
Standards and Recommended Practices, Section C--III, Specifications for
Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars)
Chapter 2, section 2.2.1.2 into Sec. 179.102-3. This proposed
amendment creates an HMR requirement for shell and head material Charpy
impact testing at time of manufacture for pressure tank cars that
transport poisonous-by-inhalation material. Because this requirement
has been in place through AAR interchange standards since 2005, PHMSA
expects there will be no additional burden placed on tank car
manufacturers. This proposed IBR also addresses NTSB Safety
Recommendation R-19-001, which requests that PHMSA promulgate a final
standard for pressure tank cars used to transport poison inhalation
hazard/toxic inhalation hazard materials that includes enhanced
fracture toughness requirements for tank heads and shells.
PHMSA proposes to incorporate by reference the 2014 edition of the
AAR Manual of Standards and Recommended Practices, Section C--III,
Specifications for Tank Cars, Specification M-1002 (AAR Specifications
for Tank Cars) Chapter 3, into Sec. Sec. 173.241, 173.242, and
173.247. Chapter 3 contains the requirements for manufacturing AAR
specification tank cars. Sections 173.241, 173.242, and 173.247 are the
packaging sections that authorize the use of AAR specification tank
cars. Currently, these sections reference specific AAR specification
tank cars, but provide no information as to how these cars are
constructed, or what version of the AAR Specifications for Tank Cars
they must meet. Incorporating by reference only Chapter 3 into these
sections ensures that AAR specification tank cars are manufactured to a
standard that PHMSA and FRA have reviewed and determined is acceptable
for hazardous materials transportation. If the specifications of the
AAR tank cars referenced in Sec. Sec. 173.241, 173.242, and 173.247
are ever changed in a future edition of the AAR Specifications for Tank
Cars, PHMSA and FRA will need to review the revised specifications
before authorizing the tank cars for hazardous material service.
Incorporation by reference of a specific edition of the AAR
Specifications for Tank Cars in Sec. Sec. 173.241, 173.242, and
173.247 ensures PHMSA will be able to review any future changes to the
construction specification prior to authorizing the new specification
for hazardous materials transportation.
Finally, PHMSA proposes to correct an error in the HMR and RSAC's
proposed IBR text. Currently, the HMR incorporates by reference the AAR
Manual of Standards and Recommended Practices, Section C--III,
Specifications for Tank Cars, Specification M-1002 (AAR Specifications
for Tank Cars), Chapter 6, November 2014 in Sec. 179.400-6. This
citation is incorrect; the correct IBR document for design loads of
outer jackets is AAR Manual of Standards and Recommended Practices,
Section C--II Specifications for Design, Fabrication and Construction
of Freight Cars, Chapter 6. Therefore, PHMSA proposes to IBR Section
C--II, Chapter 6 into Sec. 179.400-6.
7. Tank Car Linings and Coatings
The HMR prescribes requirements for the inspection of tank car
linings in Sec. 180.509(i). On May 22, 2019, the Railway Supply
Institute (RSI) requested a Letter of Interpretation on the
applicability of the inspection requirements of Sec. 180.509(i).
Specifically, RSI asked whether linings and coatings solely used to
protect product purity (i.e., the lining or coating plays no role in
protecting the tank from corrosion or reactivity) are subject to the
inspection requirements of Sec. 180.509(i).
In Letter of Interpretation Reference No. 19-0117,\17\ PHMSA and
FRA provided clarification on inspection requirements for linings and
coatings. Specifically, the requirements of Sec. 180.509(i) apply only
to internal tank car linings and coatings that are applied to protect
the tank from a material that is corrosive or reactive to the tank. As
noted in the preamble of the final rule HM-216B, \18\ PHMSA and FRA are
aware of incidents where a material was loaded into a tank car with a
defective or incompatible lining which caused a reaction with the tank
car. In these instances, the tank lining owners expected the lining was
there to protect product purity when in fact it served to protect the
tank. It is the responsibility of the tank lining owner to determine
whether the internal lining or coating is solely for product purity
purposes.
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\17\ See Letter of Interpretation Reference No. 19-0117: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/19-0117">https://www.phmsa.dot.gov/regulations/title49/interp/19-0117</a>.
\18\ 77 FR 37962 (Jun. 25, 2012).
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To address confusion on the applicability of tank car lining and
coating inspections, PHMSA proposes an editorial revision of the
requirements of Sec. 180.509(i)(1), adding the phrase ``used to
transport hazardous materials corrosive or reactive to the tank'' to
the second sentence of (i)(1). The proposed revision clearly indicates
that tank car linings and coatings are only subject to the inspection
requirements of part 180 if they are used to protect the tank from
material corrosive or reactive to the tank. PHMSA expects that this
clarification will improve compliance with this inspection requirement
and therefore improve safety. PHMSA requests comment on this proposal.
8. Editorial Revisions to Sec. Sec. 180.501 and 180.513
Section 180.501 contains the general requirements for the
qualification and maintenance of tank cars. In this NPRM, PHMSA
proposes to replace the phrase ``owner's qualification program'' with
``owner's qualification and maintenance program'' to maintain alignment
with the scope of part 180, subpart F, and the existing references to
``qualification and maintenance program'' in Sec. Sec. 179.7 and
180.513.
Section 180.513 provides the requirements to repair, alter,
convert, and modify tank cars. PHMSA, in conjunction with FRA, adopted
this section into the HMR in HM-216B. Section 180.513(b) outlines
responsibilities of a tank car facility. The last sentence in Sec.
180.513(b) contains wording that does not communicate the requirement
accurately. Specifically, at the end of paragraph (b), it currently
states, ``a tank car facility must incorporate the owner's Quality
Assurance Program into their own Quality Assurance Program.'' The
sentence contains an incorrect reference to an equipment owner's QAP.
Tank car owners are not subject to the part 179 QAP requirements unless
they also operate a tank car facility. The last sentence should make a
general reference to a tank car owner's qualification and maintenance
program and not a QAP that is required of tank car facilities. The
requirement should read, ``a tank car facility must incorporate the
owner's qualification and maintenance program into their own Quality
Assurance Program.'' Therefore, PHMSA proposes to replace the first
appearance of the phrase ``Quality Assurance Program'' in the last
sentence of Sec. 180.513(b) with the phrase ``qualification and
maintenance program.''
C. Cargo Tank Regulatory Amendments
PHMSA, in conjunction with the Federal Motor Carrier Safety
Administration (FMCSA), developed proposed amendments specific to
enhancing safe highway transportation of hazardous materials. A portion
of the proposed items were initially identified during two technical
information sessions sponsored by National Tank Truck Carriers, Inc.
(NTTC) and Truck Trailer Manufacturer's Association
[[Page 85599]]
(TTMA) in 2005. During these meetings, PHMSA and FMCSA began developing
a list of issues, concerns, and requests for clarifications to be
considered in a future rulemaking. Moreover, PHMSA and FMCSA have
identified numerous advancements in industry practice, as well as
potential safety incidents, over the course of the past 17 years. This
rulemaking aims to address the safety concerns raised by industry
stakeholders.
Additionally, PHMSA and FMCSA continue to review enforcement
actions, letters of interpretation, and information received from cargo
tank manufacturers and testing facilities, in efforts to identify
appropriate revisions to the HMR.
D. Cargo Tank Marking for Petroleum Distillate Fuels
In an advance notice of proposed rulemaking (ANPRM) HM-213E,\19\
PHMSA addressed United Nations identification number (UN ID number)
marking of cargo tank motor vehicles containing petroleum distillate
fuels in response to a Protecting our Infrastructure of Pipelines and
Enhancing Safety Act of 2016 (PIPES Act of 2016) Congressional mandate
and two petitions for rulemaking (P-1667 \20\ and P-1668 \21\). The
PIPES Act of 2016 mandate stated that ``[n]ot later than 90 days after
the date of enactment of this Act, the Secretary of Transportation
shall issue an [ANPRM] to take public comment on the petition for
rulemaking dated October 28, 2015, titled `Corrections to Title 49 CFR
172.336 Identification numbers; special provisions' (P-1667).''
---------------------------------------------------------------------------
\19\ 81 FR 83190 (Nov. 21, 2016).
\20\ See petition for rulemaking P-1667: <a href="https://www.regulations.gov/document?D=PHMSA-2015-0219-0001">https://www.regulations.gov/document?D=PHMSA-2015-0219-0001</a>.
\21\ See petition for rulemaking P-1668: <a href="https://www.regulations.gov/document?D=PHMSA-2015-0251-0001">https://www.regulations.gov/document?D=PHMSA-2015-0251-0001</a>.
---------------------------------------------------------------------------
The central issue addressed in the HM-213E ANPRM was whether a
cargo tank motor vehicle transporting different types of petroleum
distillate fuels (e.g., gasoline, diesel fuel, kerosene, and fuel oil)
over the course of multiple trips should be permitted to display the UN
ID number of the fuel with the lowest flash point, even when that fuel
is not being transported (e.g., display ``1203''--the UN ID number for
gasoline--when the cargo tank contains only diesel fuel).
As detailed in table 1, PHMSA received 14 sets of comments to the
HM-213E ANPRM.
Table 1--HM-213E Commenters and Associated Comment Docket Numbers
------------------------------------------------------------------------
Commenter Docket ID number
------------------------------------------------------------------------
American Trucking Association (ATA)....... PHMSA-2016-0079-0012
Anonymous................................. PHMSA-2016-0079-0003
Commercial Vehicle Safety Alliance (CVSA). PHMSA-2016-0079-0009
Dangerous Goods Advisory Council (DGAC)... PHMSA-2016-0079-0010
International Association of Fire Chiefs PHMSA-2016-0079-0008
(IAFC).
International Association of Fire Fighters PHMSA-2016-0079-0011
(IAFF).
Josh Torrez............................... PHMSA-2016-0079-0002
Kansas Highway Patrol..................... PHMSA-2016-0079-0005
NTTC...................................... PHMSA-2016-0079-0006
Patriot Tank Lines, Inc................... PHMSA-2016-0079-0004
Petroleum Marketers Association of America PHMSA-2016-0079-0013;
(PMAA). PHMSA[dash]2016[dash]0079[d
ash]0014
Public Utilities Commission of Ohio....... PHMSA-2016-0079-0007
Transportation Trades Department, American PHMSA-2016-0079-0015
Federation of Labor and Congress of
Industrial Organizations (AFL-CIO).
------------------------------------------------------------------------
ATA, CVSA, DGAC, Kansas Highway Patrol, Patriot Tank Lines, Inc.,
NTTC, and PMAA support allowing cargo tank motor vehicles that deliver
multiple types of petroleum distillate fuels to display the UN ID
number of the fuel with the lowest flash point, even when that fuel is
not being transported. These organizations note that materials with a
lower flash point generally have a higher flammability hazard, and
therefore, conclude that marking the UN ID number of a lower flash
point material would not increase risks in transportation.
Additionally, these commenters note that the Emergency Response
Guidebook (ERG) emergency response procedures are nearly identical for
UN1203 (gasoline) and UN1202/NA1993 (diesel fuel, fuel oil), and
marking of a cargo tank with ``1203'' even when it only contains diesel
fuel has been a safe industry practice for decades. PHMSA also notes
that for other petroleum distillate fuels--such as UN1223 (kerosene)--
the ERG also directs the reader to the same response procedures for
UN1203 and UN1202/NA1993. Lastly, the commenters note that switching
the UN ID number before every trip to reflect the material transported
in the cargo tank at the time would increase the time per trip and
costs for fuel distributors.
The IAFC, IAFF, Public Utilities Commission of Ohio, and
Transportation Trades Department of the AFL-CIO do not support allowing
cargo tank motor vehicles that deliver multiple types of petroleum
distillate fuels to display the UN ID number of the fuel with the
lowest flash point, even when that fuel is not being transported. These
commenters state that emergency responders would treat an incident--
including clean-up and spill mitigation--involving diesel fuel
differently from gasoline, and the use of the gasoline ``1203'' marking
in place of the diesel fuel ``1202'' or ``1993'' increases confusion
and decreases response effectiveness. Specifically, first responders
may use the presence (or lack) of a fire and communicated hazard to
determine the potential dangers of the fuel in the immediate aftermath
of an accident. Because ``1203'' signifies a material with a lower
flashpoint than ``1202'' or ``1993'' is present on the vehicle, the
absence of a fire signifies that there may not be a fire hazard.
However, when the higher flashpoint material is present, but only the
lower flash point material is communicated on the vehicle, the absence
of a fire may create a false sense of security for emergency
responders, as they would be unaware that the fuel in the tank or
spilled on the ground had not yet reached the higher flash temperature
for diesel fuel.
PHMSA conducted a thorough review of the regulatory history related
to the UN ID number marking requirements for petroleum distillate fuels
in cargo tanks
[[Page 85600]]
and concludes the origin of the confusion on this issue dates to final
rule HM-118.\22\ In HM-118, RSPA added new hazard marking sections
including Sec. 172.332 for requirements on the display of UN ID
numbers, Sec. 172.334 for the prohibited display of UN ID numbers, and
Sec. 172.336 for special provisions and exceptions of UN ID numbers.
In Sec. 172.336, RSPA added two exceptions for the marking of UN ID
numbers for a cargo tank transporting liquid distillate fuels, which
read as follows:
---------------------------------------------------------------------------
\22\ 45 FR 74640 (Nov. 10, 1980).
(c) Identification numbers are not required --
* * * * *
(4) For different liquid distillate fuels, including gasoline,
in a compartmented cargo tank or tank car, if the identification
number is displayed for the distillate fuel having the lowest flash
point.
(5) For each of the different liquid distillate fuels, including
gasoline, transported in a cargo tank, if the identification number
displayed is for the liquid distillate fuel having the lowest flash
point.
* * * * *
In the final rule preamble,\23\ RSPA described the intent of the
exception in Sec. 172.336(c)(5) as:
---------------------------------------------------------------------------
\23\ 45 FR 74647 (Nov. 10, 1980).
Paragraph (c)(5) provides for display of the identification
number of the liquid distillate fuel having the lowest flash point
of any liquid distillate fuel carried in a cargo tank. This
provision will eliminate the need for continuous changes in
identification numbers in many operations where gasoline and fuel
oil are transported in the same cargo tank on different trips during
---------------------------------------------------------------------------
the same day.
While RSPA stated that the intent of this exception would address
moving gasoline and other petroleum distillate fuels in the same cargo
tank on different trips on the same day, this was not reflected in the
regulatory text. Although the time frame for use of this exception was
not explicitly written in the regulatory text, the preamble language
makes it is clear that the exception in Sec. 172.336(c)(5) was not
limited to multi-compartmented tanks carrying multiple petroleum
distillate fuels at the same time. Specifically, if Sec. 172.336(c)(5)
only applied to compartmented cargo tanks that transported multiple
liquid distillate fuels at the same time, Sec. 172.336(c)(4) would be
duplicative. Therefore, PHMSA concludes that RSPA intended Sec.
172.336(c)(5) to authorize a cargo tank to display the UN ID number of
the petroleum distillate fuel with the lowest flash point transported
in that cargo tank on different trips within the same day, and not
based on each individual trip.
Furthermore, RSPA's intent of this regulatory exception was
reiterated in 1996 and 2000, with Letter of Interpretation Reference
Nos. 96-0079 and 00-0208. In these interpretation letters, RSPA clearly
stated that the exception in Sec. 172.336(c)(5) allowed cargo tanks
that previously transported gasoline (UN1203) and were subsequently
transporting only diesel fuel (NA1993/UN1202) to be marked with
``1203.''
As discussed in the HM-213E ANPRM, Sec. 172.336(c)(5) was updated
in 1987 and 2008 to address specific concerns related to increased
ethanol content in certain fuels that required different emergency
response procedures, but the basic structure of the paragraph was not
changed. Further, in 2013, PHMSA published final rule HM-219,\24\ which
amended the HMR in response to various petitions for rulemaking. In HM-
219, PHMSA removed the reference to ``gasohol'' in Sec. 172.336, as
the Hazardous Materials Table (HMT) entry for this material was removed
in 2008. In addition, PHMSA replaced Sec. Sec. 172.336(c)(1)-(6) with
a table to ``more clearly indicate hazard communication requirements.''
In this new table, PHMSA added paragraphs (c)(1)-(3) and (c)(6) as
individual entries but combined the language in paragraphs (c)(4) and
(5) into a single entry. The impact of combining the provisions of
paragraphs (c)(4) and (5) was that the historical context for the
original meaning of paragraph (c)(5) was lost. As this revision in HM-
219 was an attempt at clarification, it was not PHMSA's intent to
change the exceptions substantively for marking of UN ID numbers on
cargo tanks.
---------------------------------------------------------------------------
\24\ 78 FR 14702 (Mar. 7, 2013).
---------------------------------------------------------------------------
On June 26, 2015, PHMSA published an additional Letter of
Interpretation Reference No. 14-0178.\25\ In the incoming letter, the
requester asserted that Sec. 172.336(c) stated clearly that if a cargo
tank is transporting multiple liquid petroleum distillate fuels, it may
be marked with the UN ID number of the fuel with the lowest flash
point. The requester asked if a cargo tank is transporting only diesel
fuel (NA1993), is it authorized to continue displaying the UN ID number
for gasoline (UN1203) even though gasoline was no longer present. As
the regulations no longer clearly indicated that this continued to be
an acceptable practice, in the response, PHMSA stated that a cargo tank
transporting only diesel fuel could not be marked with the UN ID number
for gasoline because the gasoline was no longer present.
---------------------------------------------------------------------------
\25\ See Letter of Interpretation Reference No. 14-0178: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/14-0178">https://www.phmsa.dot.gov/regulations/title49/interp/14-0178</a>.
---------------------------------------------------------------------------
As previously discussed, in HM-219, it was not PHMSA's intent to
remove the longstanding exception that allowed a cargo tank
transporting more than one petroleum distillate fuel in different trips
to display the UN ID number for the petroleum distillate fuel with the
lowest flash point. Although, PHMSA recognizes that there may be safety
concerns associated with this practice, as noted by commenters to the
HM-213E ANPRM, PHMSA has not received specific information describing
instances in which this marking exception has increased risks in
transportation. Therefore, PHMSA proposes to revise the Sec.
172.336(c) table, to authorize display of the UN ID number of the
petroleum distillate fuel with the lowest flash point transported in a
cargo tank in different trips on the previous or current business day.
This proposal aligns with the original intent of Sec. 172.336(c)(5),
and addresses the operational concerns identified by commenters to the
HM-213E ANPRM. In addition, this proposal generally aligns with the
requirements of DOT-SP 21104,\26\ which was issued on November 11,
2020, and further modified on February 26, 2021. DOT-SP 21104 currently
allows for the transportation of gasoline, diesel fuel, kerosene, and
fuel oil in a cargo tank motor vehicle marked with the UN ID number
``1203'' as long as gasoline had been transported in the cargo tank
during the previous or current business day. PHMSA is unaware of any
safety issues associated with DOT-SP 21104.
---------------------------------------------------------------------------
\26\ See DOT-SP 21104: <a href="https://www.phmsa.dot.gov/hazmat/documents/offer/SP21104.pdf/2021014464/SP21104">https://www.phmsa.dot.gov/hazmat/documents/offer/SP21104.pdf/2021014464/SP21104</a>.
---------------------------------------------------------------------------
Although ``different trips on the same day'' was not defined in HM-
118, PHMSA proposes that this provision apply when the petroleum
distillate fuel with the lowest flash point is transported on the cargo
tank motor vehicle during the previous or current business day. As
previously mentioned, this proposal aligns with the time frame
currently authorized in accordance with DOT-SP 21104. As proposed,
PHMSA considers a ``business day'' to mean a day that the operator of
the cargo tank motor vehicle is open and operating in commerce.
Therefore, if a cargo tank carrying gasoline is unloaded and
subsequently filled with a fuel with a higher flash point, ``1203'' may
only continue to be displayed on the cargo tank for that day and the
following day that the operator is open and operating.
[[Page 85601]]
To ensure compliance with this requirement, PHMSA anticipates the use
of shipping paper records (see Sec. 177.817(f)) to verify which
petroleum distillates were transported in the cargo tank during the
previous or current business day. PHMSA requests comment on the
functionality of this proposed exception for the previous or current
business day of petroleum distillate fuels.
In this new entry in the Sec. 172.336(c) table, PHMSA also
proposes to include specific requirements when transporting gasoline
and alcohol fuel blends consisting of more than 10% ethanol.
Specifically, due to different emergency response procedures for liquid
petroleum distillate fuels containing more than 10% ethanol and as
currently required in the fifth row in the Sec. 172.336(c) table,
PHMSA proposes that if the cargo tank contains gasoline and alcohol
fuel blends consisting of more than 10% ethanol, the UN ID number
``3475'' or ``1987,'' as appropriate, must be displayed. Additionally,
the UN ID numbers ``3475'' or ``1987'' may only be displayed if a
gasoline and alcohol fuel blend consisting of more than 10% ethanol is
present in the cargo tank during transportation. This means that
``3475'' or ``1987'' may not be displayed even if it is the lowest
flash point petroleum distillate fuel and the cargo tank transported
the fuel in a different trip on the previous or current business day.
Therefore, if the lowest flash point liquid petroleum distillate fuel
transported in the cargo tank in different trips on the previous or
current business day is a gasoline and alcohol fuel blend consisting of
more than 10% ethanol--and this material is not present in the cargo
tank for that trip--the carrier must display the UN ID number of either
the next lowest flash point liquid petroleum distillate fuel carried in
a different trip on the previous or current business day or the liquid
petroleum distillate fuel currently being transported in the cargo
tank.
Additionally, as an accompanying amendment, PHMSA proposes to
revise the fifth row of the Sec. 172.336 table to specify that the
exception provided in that row only apply to compartmented cargo tanks
or compartmented tank cars. This proposed change distinguishes a
compartmented cargo tank (or tank car) transporting more than one
petroleum distillate fuel in the same trip (fifth row) from a cargo
tank transporting more than one petroleum distillate fuel in different
trips on the current or previous business day (sixth row). This clearly
distinguishes the marking exception that applies to a compartmented
tank that transport multiple fuels of differing flashpoints at one
time, and the exception that applies to a cargo tank (single or multi-
compartment) that is used to transport fuels of differing flashing
points during the course of business on current or previous business
day.
PHMSA requests comments related to specific, articulable safety or
cost concerns associated with this proposed amendment. PHMSA notes that
for NA1993, UN1202, UN1203, UN1223, and other petroleum distillate
fuels, the ERG directs the reader to the same guide page for initial
emergency response measures, and PHMSA further requests information
from emergency responders describing how emergency response would
differ for an accident involving a cargo tank motor vehicle marked
``1993,'' ``1202,'' ``1203,'' ``1223,'' or another UN ID number
associated with a petroleum distillate fuel. Finally, PHMSA requests
information on any known incidents where emergency response was
impacted negatively due to a cargo tank motor vehicle displaying
``1203'' when it was transporting a petroleum distillate fuel with a
higher flash point.
E. P-1712
In petition for rulemaking P-1712,\27\ the Chlorine Institute (CI)
requested PHMSA delete Sec. 173.315(i)(13) from the HMR. This change
would remove the requirement to install Crosby pressure relief devices
(PRDs) on chlorine cargo tanks, thus providing flexibility by
authorizing the use of alternative PRDs meeting the requirements of
Sec. 173.315(i). The petition for rulemaking also outlined the current
use of the Midland PRD on chlorine cargo tanks under the authority of
DOT-SPs 9694 and SP-10457. CI noted that the Midland PRD meets the
requirements in Sec. 173.315(i) and is incorporated in CI's Pamphlet
49, ``Recommendation Practices for Handling Chlorine Bulk Highway
Transporters.'' Furthermore, in their petition for rulemaking, CI notes
that since the requirement was established in Sec. 173.315(i), Midland
Manufacturing entered the chlorine PRD market. This expanded market was
reflected in CI Pamphlet 49, but it was not reciprocated in the HMR,
except by special permit.
---------------------------------------------------------------------------
\27\ See petition for rulemaking P-1712: <a href="https://www.regulations.gov/docket?D=PHMSA-2018-0022">https://www.regulations.gov/docket?D=PHMSA-2018-0022</a>.
---------------------------------------------------------------------------
After reviewing this petition for rulemaking, PHMSA proposes to
allow use of the Midland PRD under Sec. 173.315(i) but does not
propose to delete the specific limitations on the type of PRD
authorized. PHMSA will continue to work with CI to develop generally
applicable specifications for PRDs used on cargo tanks transporting
inhalation hazards. Therefore, for the purpose of this rulemaking,
PHMSA only considered the inclusion of the PRD specifications that are
already outlined in CI Pamphlet 49 and we do not propose the deletion
of Sec. 173.315(i)(13) in its entirety. Instead, PHMSA proposes to
revise Sec. 173.315(i) to specify that the PRD on a chlorine cargo
tank must conform to one of the drawings in CI Pamphlet 49, which would
allow for the use of the Midland PRD in addition to the Crosby PRD.
PHMSA expects that this will provide for additional regulatory
flexibility in selection of a PRD while maintaining the current level
of safety.
F. P-1724
In petition for rulemaking P-1724,\28\ the Greenbrier Companies
requested PHMSA revise Sec. 179.100-12 to allow for an alternative
means of connecting the manway protection housing to the tank car.
Currently, the HMR require the protective housing that shields the
valves and fittings on top of pressure cars to be bolted to the manway
cover. The petition for rulemaking asks that the connection be
alternatively made between the protective housing and the manway
reinforcing pad. This alternative allows the protective housing to be
bolted to a flange connected to the manway reinforcing pad with not
less than twenty \3/4\-inch studs. After reviewing the petition for
rulemaking, PHMSA agrees there is merit in making this proposed
revision as it will provide regulatory flexibility without reducing the
safety of attaching the manway protection housing to a tank car. This
alternative method is currently only authorized in DOT-SPs 14832 and
20607. Therefore, PHMSA proposes to revise Sec. 179.100-12 to permit
the use of an alternative means of connecting the manway protection
housing to the tank car.
---------------------------------------------------------------------------
\28\ See petition for rulemaking P-1724: <a href="https://www.regulations.gov/docket?D=PHMSA-2018-0111">https://www.regulations.gov/docket?D=PHMSA-2018-0111</a>.
---------------------------------------------------------------------------
G. P-1735
In petition for rulemaking P-1735,\29\ TTMA requested PHMSA amend
Sec. Sec. 173.33(d)(3) and 180.405(h)(3) to remove requirements
referring to the venting capacity of the original specification for the
MC cargo tank motor vehicles with upgraded pressure relief valves.
---------------------------------------------------------------------------
\29\ See petition for rulemaking P-1735: <a href="https://www.regulations.gov/docket?D=PHMSA-2019-0132">https://www.regulations.gov/docket?D=PHMSA-2019-0132</a>.
---------------------------------------------------------------------------
After reviewing this petition for rulemaking, PHMSA agrees with the
[[Page 85602]]
position of the petitioner regarding the error made in the preamble in
final rule HM-218H,\30\ but does not agree that a regulatory change to
Sec. Sec. 173.33(d)(3) and 180.405(h)(3) is necessary. In final rule
HM-218H, PHMSA responded to a number of appeals to the final rule. In
the preamble, PHMSA incorrectly stated that the PRD set pressure must
be to the original specification when upgrading or modifying the PRDs
on a MC 300 series cargo tank motor vehicle. PHMSA has previously and
subsequently addressed this issue via letters of interpretation and
clarified that the upgraded or modified PRD on a MC 300 series cargo
tank motor vehicle must meet all requirements of Sec. 178.345-10,
including set pressure (see Letters of Interpretation Reference Nos.
16-0183 and 18-0118). As such, while PHMSA agrees with the position of
the petitioner, PHMSA finds that no amendments are necessary as the
petition for rulemaking was predicated on the incorrect language
included in the preamble to HM-218H.
---------------------------------------------------------------------------
\30\ 83 FR 28162 (Jun. 18, 2018).
---------------------------------------------------------------------------
III. Overview
A. Rail
PHMSA, in conjunction with FRA, proposes numerous revisions to the
HMR related to transportation of hazardous materials by rail. These
proposed revisions will provide greater clarity for hazardous materials
rail carriage requirements and remove regulatory barriers to efficient
operation without diminishing safety. PHMSA proposes the following
amendments:
Related to the proposed amendments offered by RSAC (see ``Section
II.A. RSAC'' for additional discussion), PHMSA proposes:
<bullet> In Sec. 171.7, update the IBR of the AAR Manual of
Standards and Recommended Practices, Section C--Part III,
Specifications for Tank Cars, Specification M-1002, (AAR Specifications
for Tank Cars), to the November 2014 edition from the 2000 edition;
<bullet> In Sec. 171.7, separate the IBR of the AAR Manual of
Standards and Recommended Practices, Section C--Part III,
Specifications for Tank Cars, Specification M-1002 into its component
chapters and appendices, except for Appendix B, Appendix L, and
Appendix U, as discussed in ``Section II.B.6. AAR Specifications for
Tank Cars Incorporation by Reference'';
<bullet> In Sec. 171.7, update the edition of the AAR Manual of
Standards and Recommended Practices, Section C--II Specifications for
Design, Fabrication and Construction of Freight Cars, Chapter 5 to the
2011 edition from the 1988 edition;
<bullet> In Sec. 172.101, editorially revise the description of
Column 9A ``Passenger aircraft/rail'' to clarify the meaning for rail
transportation;
<bullet> In Sec. 172.820, add an exception for route planning for
circumstances where no practicable alternative route exists;
<bullet> In Sec. 173.31(d), add requirements for tank car closure
instructions;
<bullet> In Sec. 173.31(g), clarify securement requirements for
tank car loading and unloading;
<bullet> In Sec. 174.9, revise the safety and security inspection
requirements;
<bullet> In Sec. 174.14, add exceptions to the requirement for
tank car movements to be expedited for certain unavoidable delays;
<bullet> Remove and reserve Sec. 174.16, because the requirements
for removal and disposition of certain explosives are obsolete;
<bullet> Remove and reserve Sec. 174.20 because the reporting to
the Bureau of Explosives for local and carrier restrictions is
unnecessary;
<bullet> In Sec. 174.24, clarify requirements for providing
shipping papers to an authorized official;
<bullet> In Sec. 174.50, revise the OTMA requirements to align
with current FRA policy;
<bullet> In a new Sec. 174.58, clarify the meaning of ``extent
practicable'' as used in the Sec. 171.8 definition of residue;
<bullet> In Sec. 174.59, revise requirements for replacing lost
placards;
<bullet> In Sec. 174.63, make editorial revisions and expand the
types of packages and materials eligible for COFC and TOFC service
without an approval from FRA;
<bullet> In Sec. 174.67, revise the transloading requirements to
create a performance-based system, rather than the current prescriptive
requirements;
<bullet> In Appendix B to part 179, revise the torch and pool fire
testing provisions to improve industry understanding of the
requirements; and
<bullet> In Sec. 180.503, revise the definitions of tank car
owner, coating/lining owner, and service equipment owner to more
accurately reflect the complex business arrangements commonly in use.
Related to AAR delegated authority amendments (see ``Section II.B.
AAR Authority to Approve the Design of Tank Cars and Approve Quality
Assurance Programs'' for additional discussion), PHMSA proposes:
<bullet> In a new subpart J in part 107, add tank car facility and
tank car DCE registration, with the ability to modify, suspend, or
terminate the registration for cause;
<bullet> In Sec. Sec. 107.1, 107.105, and 107.701, revise
procedural requirements to accommodate the proposed new subpart J;
<bullet> In Sec. 171.7, incorporate by reference AAR Manual of
Standards and Recommended Practices, Section C--Part III,
Specifications for Tank Cars, Specification M-1002 Chapter 3 into
Sec. Sec. 173.241, 173.242, and 173.247;
<bullet> In Sec. 171.8, revise the definition of Design Certifying
Engineer to create a parallel definition for tank car DCEs;
<bullet> In Sec. 179.2, revise the definitions for approved and
tank car facility and add definitions for component and tank car;
<bullet> In Sec. 179.2, add introductory text to indicate that
terms defined in Sec. 180.503 also apply to part 179 to address
confusion with defined terms in these related regulatory parts;
<bullet> In Sec. 179.3, remove the requirement for AAR TCC
approval of tank car and service equipment designs, and replace it with
approval by a DCE;
<bullet> In Sec. 179.4, revise the process for designing and
seeking approval of a design of a new tank car specification;
<bullet> In Sec. 179.5, remove the tank car certification of
construction requirement and replace it with a Design Approval
Certificate (DAC). PHMSA also proposes to describe the information that
must be included in a DAC for both tank cars and service equipment;
<bullet> In Sec. 179.6, indicate that AAR approval is no longer
required for repairs;
<bullet> In Sec. 179.7, remove the requirement for AAR approval of
the QAP and make revisions intended to clarify the intent of the
applicability of the QAP requirement;
<bullet> In Sec. 179.11, add a reference to AAR Specifications for
Tank Cars in Appendix W, except section 1.2, for welding requirements;
<bullet> In Sec. 179.24, remove reference to AAR Form 4-2 in
conformance with the replacement of the certificate of construction
with the DAC;
<bullet> Throughout the HMR, including Sec. Sec. 172.102, 173.31,
and 173.314, and parts 179-180, remove all references to approval by
AAR and replace with a reference to an approval by a DCE;
<bullet> In part 179, indicate that compliance with paragraph 1.2
of Appendix W of the AAR Specifications for Tank Cars is not required;
<bullet> In Sec. Sec. 179.100-9, 179.200-10, and 179.220-10,
remove the sentence requiring that welding procedures, welders, and
fabricators be approved;
<bullet> In Sec. Sec. 179.220-15 and 179.400-13, remove the
requirement for design approval for tank cushioning systems;
<bullet> In Sec. 179.400-6, correct an editorial reference to the
incorrect IBR material;
<bullet> In Sec. Sec. 179.500-17 and 179.500-18, revise
recordkeeping requirements to
[[Page 85603]]
remove obsolete references to the Bureau of Explosives;
<bullet> In Sec. 180.501, replace ``owner's qualification
program'' with ``owner's qualification and maintenance program'' to
maintain alignment with the scope of part 180, subpart F, and the other
references to ``qualification and maintenance program'' in Sec. Sec.
179.7 and 180.513;
<bullet> In Sec. 180.503, revise the definitions for maintenance,
modification, qualification, and service equipment;
<bullet> In Sec. 180.509(i), clarify the inspection requirements
for linings and coatings;
<bullet> In Sec. 180.513, revise the responsibilities of tank car
owners; and
<bullet> In Sec. 180.517, revise the section to reflect the
removal of the certificate of construction and its replacement with the
DAC.
Related to PHMSA initiated editorial clarification, PHMSA proposes
to:
<bullet> In Sec. 174.81, revise explosive segregation requirements
to align with current highway and vessel requirements.
Related to NTSB Safety Recommendation R-19-001, PHMSA proposes to:
<bullet> In Sec. 171.7, incorporate by reference AAR
Specifications for Tank Cars Chapter 2, section 2.2.1.2 into Sec.
179.102-3 to require Charpy impact testing for shell and head material
of pressure tank cars used for poisonous-by-inhalation material.
Related to NTSB Safety Recommendation R-12-007, PHMSA proposes to:
<bullet> In Sec. 179.10, incorporate by reference AAR
Specifications for Tank Cars Chapter 6, to require compliance with
AAR's redesigned center and draft sill attachment requirements.
B. Highway
PHMSA, in conjunction with FMCSA, proposes numerous revisions to
the HMR related to transportation of hazardous materials by highway
(i.e., motor vehicle). PHMSA expects these proposed revisions to
enhance the safe transportation of hazardous materials by highway while
providing greater clarity and regulatory flexibility. In addition to
various other revisions to the HMR, PHMSA proposes the following
amendments:
<bullet> In part 107, subpart F, revise the registration
requirements to allow for electronic submission procedures;
<bullet> In part 107 subpart F, create cargo tank facility
modification, suspension, and termination procedures; reconsideration
of modification, suspension, and termination procedures; and appeal of
modification, suspension, and termination procedures;
<bullet> In Sec. 171.7, revise editorially the ASTM D 1838-64 IBR
document to include reference to the 1968 reapproval date;
<bullet> In Sec. 171.7, update the Compressed Gas Association
(CGA) Technical Bulletin P-26 (formerly TB-2) IBR document to the 1997
edition;
<bullet> In Sec. 171.7, replace current incorporation by reference
of CI drawings with the entire CI Pamphlet 49, which would include the
use of the Midland Type PRD for chlorine cargo tank in Sec. 173.315;
<bullet> In the Sec. 172.336(c) table, add a sixth row to specify
that a cargo tank may display the UN ID number of the petroleum
distillate fuel with the lowest flash point transported in different
trips on the previous or current business day, except for gasoline and
alcohol fuel blends with more than 10% ethanol;
<bullet> In Sec. Sec. 173.150(f)(3)(viii) and 177.837(c), require
bonding and grounding when preparing to transfer or transferring a
combustible liquid, or a flammable liquid reclassified as a combustible
liquid, from a cargo tank motor vehicle, in addition to the current
requirements for flammable liquids;
<bullet> In Sec. 177.816(c) and (d), clarify the use of tank
vehicle endorsement or hazardous materials endorsement training to
fulfill the hazardous materials training requirements of Sec. Sec.
172.704 and 177.816;
<bullet> In Sec. 177.835, clarify that a multipurpose bulk truck
may not be used in combination with any cargo tank that is required to
be marked or placarded under Sec. 177.823;
<bullet> In Sec. 177.840, clarify that the requirements apply to
external self-closing stop valves in addition to the current
requirement of internal self-closing stop valves;
<bullet> In Sec. 178.320, revise definitions for cargo tank, cargo
tank motor vehicle, and minimum thickness and add definitions for:
cargo tank motor vehicle certification date, component, flexible
connector, lading retention system, lining, name plate, original test
date, sacrificial device, shear section, and specification plate;
<bullet> In Sec. 178.337-1(d), allow the use of other external
coverings besides paint;
<bullet> In Sec. Sec. 178.337-8, 178.338-11, and 178.345-11,
specify that mechanical means of remote closure for manual operation
must not be obstructed to prevent access to or operation of remote
means of closure in an emergency;
<bullet> In Sec. Sec. 178.337-10 and 178.338-10, clarify that the
exception in Sec. 393.86 for wheels back vehicles does not apply;
<bullet> In Sec. Sec. 178.337-17 and 178.338-18, revise the
specification plate attachment requirement so that the specification
plate must be permanently attached to the cargo tank or its integral
supporting structure, instead of the cargo tank motor vehicle chassis
rail;
<bullet> In Sec. Sec. 178.337-18 and 178.338-19, specify that when
the cargo tank motor vehicle is brought into full compliance, the
specification plate is marked with the cargo tank motor vehicle
certification date;
<bullet> In Sec. 178.338-19, revise the certification language so
that it more closely mirrors certification language for other DOT
specification cargo tank motor vehicles;
<bullet> In Sec. 178.345-1, remove definitions that are also
defined in Sec. 178.320;
<bullet> In Sec. 178.345-14, clarify that when there is no limit
for the maximum loading or unloading rate in gallons per minute, the
specification mark may be marked ``NONE'' or ``OPEN MH'';
<bullet> In Sec. 180.403, add definitions for cargo tank
maintenance, certification plate, objectively reasonable and
articulable belief, and set pressure, and revise the definition of
repair;
<bullet> In a new paragraph in Sec. 180.405(b)(3), provide
instruction on the replacement of cargo tank and cargo motor vehicle
specification plates;
<bullet> In a new Sec. 180.407(a)(7), specify that all equipment
and instruments used to test cargo tanks must be calibrated, with
appropriate documentation, in accordance with the manufacturer's
instructions;
<bullet> In a new Sec. 180.407(a)(8), allow for the use of video
cameras or video optics equipment for any inspection or test;
<bullet> In a new Sec. 180.407(a)(9), require that cargo tank
motor vehicle pressure tests conducted tested at a pressure higher than
50 psi be done with the hydrostatic method, except for DOT
Specification MC 338 cargo tanks used to transport cryogenic liquid;
<bullet> In a new Sec. 180.407(a)(10), require that the Registered
Inspector consult with the owner or motor carrier, as appropriate, to
determine if materials corrosive or reactive to the cargo tank or its
components were transported in the cargo tank motor vehicle since the
last test or inspection, and ensure that the proper tests and
inspections, along with suitable safeguards, are used;
<bullet> In a new Sec. 180.407(a)(11), require that all sources of
spark, flame, or glowing heat within the area in which the tests and
inspections are conducted are extinguished, made inoperable, or
rendered explosion-proof prior to all functions that are performed;
<bullet> In Sec. 180.407(b), include ``bulges'' in the list of
conditions that may render a
[[Page 85604]]
cargo tank unsafe for hazardous materials service;
<bullet> In Sec. 180.407(b)(5), replace ``reasonable doubt'' with
``objectively reasonable and articulable belief'' to create a more
consistent standard describing those circumstances in which a cargo
tank--or series of cargo tanks--may be required to be tested and
inspected outside of the normal test and inspection interval;
<bullet> In Sec. 180.407(d)(2)(i), specify that the tank shell and
head must be evaluated in accordance with Sec. 180.411 and that during
inspection of the cargo tank shell and heads, all pad attachments on
either the cargo tank shell or head shell shall be inspected for method
of attachments;
<bullet> In Sec. Sec. 180.407(d)(2)(ix) and (g)(1)(iii), add an
exception that the upper coupler must be removed if there are
obstructions immediately above the cargo tank shell that prevent the
upper coupler from being directly inspected;
<bullet> In a new paragraph Sec. 180.407(d)(7), add inspection and
maintenance requirements for external ring stiffeners installed on a
cargo tank motor vehicle constructed of metal other than mild steel or
high-strength low-alloy steel;
<bullet> In a new paragraph Sec. 180.407(d)(8), clarify inspection
and verification requirements for welded repairs;
<bullet> In Sec. 180.407(f)(2), add documentation requirements for
linings from the lining manufacturer or installer;
<bullet> In Sec. 180.407(f)(3), add a requirement that when the
degraded or defective areas of the cargo tank lining are repaired or if
the lining is replaced, it must comply with lining manufacturer or
installer procedures;
<bullet> In Sec. 180.407(h)(4), specify that the test pressure of
the delivery hose assembly must be at least 80 percent of the Maximum
Allowable Working Pressure (MAWP) of the cargo tank;
<bullet> In Sec. 180.407(i)(4)(v), specify that thickness testing
must be performed on areas around shell reinforcements, including
evenly distributed areas around all ring stiffeners and those areas in
the bottom half of the cargo tank;
<bullet> In Sec. 180.407(i)(6)(i), specify that the supplemental
Certificate of Compliance that includes the minimum thickness issued by
the DCE must be provided to the CTMV owner;
<bullet> In a new Sec. 180.409(a)(4), clarify that the person
performing or witnessing the inspections and tests must meet the
training requirements of part 172 subpart H;
<bullet> In the Sec. 180.411(b) list, include bulges as an
additional condition requiring evaluation;
<bullet> In new Sec. 180.411(h), specify conditions requiring
removal from service and methods in which a cargo tank motor vehicle
can be returned to service;
<bullet> In new Sec. 180.411(i), specify that when required,
emergency discharge control systems on a DOT Specification MC 330, MC
331, or a non-specification cargo tank motor vehicle operating under
the provisions of Sec. 173.315(k) must be present and functioning
before passing any test or inspection; and
<bullet> In Sec. 180.415(b), require that, unless already marked,
the cargo tank registration number of the cargo tank facility
performing the test or inspection must be marked on the cargo tank.
C. Vessel
PHMSA proposes several revisions to the requirements for
transporting hazardous materials by vessel. These proposals are
intended to increase transportation efficiency, increase harmonization
with the International Maritime Dangerous Goods (IMDG) Code, and
editorially revise the HMR while maintaining the high level of safety
of vessel transport. The following proposals were developed in
conjunction with the United States Coast Guard (USCG):
<bullet> In Sec. 171.23(b)(5) and (b)(5)(iii), revise requirements
for communicating the presence of hazardous substances by clarifying
that only non-bulk packages are required to be marked with the letters
``RQ'' (to signify a reportable quantity), and the name of the
hazardous substance, consistent with Sec. 172.324;
<bullet> In new Sec. 172.504(b)(2), remove the authorization to
use the ``DANGEROUS'' placard for vessel transportation to reduce
confusion and delays;
<bullet> In part 176, editorially revise the office identifier of
the Coast Guard Commandant for Operating and Environmental Standards to
the identifier for the Office of Design and Engineering Standards;
<bullet> In Sec. 176.84(a), clarify editorially that hazardous
materials transported in accordance with a limited quantity exception
are not subject to the stowage codes assigned by Column (10B) of the
Sec. 172.101 Table; and
<bullet> In Sec. 176.905, add an exception for vehicles stored
onshore incidental to vessel transportation to align with similar
exceptions offered to highway and rail transportation of vehicles.
D. Multi-Modal
PHMSA proposes several revisions that affect multiple modes of
transportation. These proposals enhance safe transportation of
hazardous materials and were developed in conjunction with the FRA,
FMCSA, and USCG. Proposals include:
<bullet> In Sec. 171.22(f)(4), clarify requirements for providing
hazardous material shipping paper information during inspections;
<bullet> In Sec. 172.102, revise special provision 13 to identify
more clearly that security plan requirements apply;
<bullet> In the Sec. 172.336(c) table, more clearly identify that
the exception in the fifth row of the table applies only to
compartmented cargo tanks or tank cars carrying more than one petroleum
distillate fuel;
<bullet> In Sec. 172.704(e)(1), provide an exception (including an
editorial correction) for hazmat employees who manufacture, repair,
modify, recondition, or test packagings, and who do not perform any
other function, from security awareness training requirements;
<bullet> In Appendix C to part 172, revise the recommended placard
holder dimensions to be consistent with the current placard size
requirements, and in Sec. 172.516(d), clarify that the current placard
holder is an authorized placard holder; and
<bullet> In Sec. 173.159(e), clarify that wet batteries must be
loaded or braced to secure the batteries against shifting while in
transportation and require that the offeror ensure that persons loading
the batteries have knowledge of the conditional provisions for
exceptions from the general requirements of the HMR.
IV. Section-by-Section Review
The following table identifies the sections and mode(s) of
transportation affected by the proposed changes in this NPRM.
[[Page 85605]]
Table 2--Sections Affected by This NPRM
------------------------------------------------------------------------
Section affected Mode of transportation
------------------------------------------------------------------------
Sec. 107.1.............................. Rail.
Sec. 107.105............................ Rail.
Sec. 107.502............................ Highway.
Sec. 107.503............................ Highway.
Sec. 107.505............................ Highway.
Sec. 107.506............................ Highway.
Sec. 107.507............................ Highway.
Sec. 107.701............................ Rail.
Sec. 107.901............................ Rail.
Sec. 107.903............................ Rail.
Sec. 107.905............................ Rail.
Sec. 107.907............................ Rail.
Sec. 107.909............................ Rail.
Sec. 107.911............................ Rail.
Sec. 107.913............................ Rail.
Sec. 107.915............................ Rail.
Sec. 171.6.............................. Multi-modal.
Sec. 171.7.............................. Multi-modal.
Sec. 171.8.............................. Multi-modal.
Sec. 171.22............................. Vessel.
Sec. 171.23............................. Vessel.
Sec. 172.101............................ Rail.
Sec. 172.102............................ Multi-modal.
Sec. 172.303............................ Multi-modal.
Sec. 172.328............................ Highway.
Sec. 172.336............................ Multi-modal.
Sec. 172.504............................ Vessel.
Sec. 172.516............................ Multi-modal.
Sec. 172.704............................ Multi-modal.
Sec. 172.820............................ Rail.
Appendix C to Part 172.................... Multi-modal.
Sec. 173.31............................. Rail.
Sec. 173.150............................ Highway.
Sec. 173.159............................ Multi-modal.
Sec. 173.241............................ Rail.
Sec. 173.242............................ Rail.
Sec. 173.247............................ Rail.
Sec. 173.314............................ Rail.
Sec. 173.315............................ Highway.
Sec. 173.320............................ Multi-modal.
Sec. 174.9.............................. Rail.
Sec. 174.14............................. Rail.
Sec. 174.16............................. Rail.
Sec. 174.20............................. Rail.
Sec. 174.24............................. Rail.
Sec. 174.50............................. Rail.
Sec. 174.58............................. Rail.
Sec. 174.59............................. Rail.
Sec. 174.63............................. Rail.
Sec. 174.67............................. Rail.
Sec. 174.81............................. Rail.
Sec. 176.2.............................. Vessel.
Sec. 176.84............................. Vessel.
Sec. 176.340............................ Vessel.
Sec. 176.905............................ Vessel.
Sec. 177.801............................ Highway.
Sec. 177.804............................ Highway.
Sec. 177.816............................ Highway.
Sec. 177.835............................ Highway.
Sec. 177.837............................ Highway.
Sec. 177.840............................ Highway.
Sec. 177.841............................ Highway.
Sec. 178.320............................ Highway.
Sec. 178.337-1.......................... Highway.
Sec. 178.337-2.......................... Highway.
Sec. 178.337-3.......................... Highway.
Sec. 178.337-8.......................... Highway.
Sec. 178.337-9.......................... Highway.
Sec. 178.337-10......................... Highway.
Sec. 178.337-17......................... Highway.
Sec. 178.337-18......................... Highway.
Sec. 178.338-3.......................... Highway.
Sec. 178.338-10......................... Highway.
Sec. 178.338-11......................... Highway.
Sec. 178.338-18......................... Highway.
Sec. 178.338-19......................... Highway.
Sec. 178.345-1.......................... Highway.
Sec. 178.345-3.......................... Highway.
Sec. 178.345-8.......................... Highway.
Sec. 178.345-11......................... Highway.
Sec. 178.345-13......................... Highway.
Sec. 178.345-14......................... Highway.
Sec. 178.345-15......................... Highway.
Sec. 178.348-1.......................... Highway.
Sec. 179.2.............................. Rail.
Sec. 179.3.............................. Rail.
Sec. 179.4.............................. Rail.
Sec. 179.5.............................. Rail.
Sec. 179.6.............................. Rail.
Sec. 179.7.............................. Rail.
Sec. 179.10............................. Rail.
Sec. 179.11............................. Rail.
Sec. 179.24............................. Rail.
Sec. 179.100-9.......................... Rail.
Sec. 179.100-10......................... Rail.
Sec. 179.100-12......................... Rail.
Sec. 179.100-18......................... Rail.
Sec. 179.102-3.......................... Rail.
Sec. 179.103-5.......................... Rail.
Sec. 179.200-7.......................... Rail.
Sec. 179.200-10......................... Rail.
Sec. 179.200-11......................... Rail.
Sec. 179.200-17......................... Rail.
Sec. 179.200-22......................... Rail.
Sec. 179.220-10......................... Rail.
Sec. 179.220-11......................... Rail.
Sec. 179.220-15......................... Rail.
Sec. 179.220-18......................... Rail.
Sec. 179.300-9.......................... Rail.
Sec. 179.300-10......................... Rail.
Sec. 179.400-5.......................... Rail.
Sec. 179.400-6.......................... Rail.
Sec. 179.400-11......................... Rail.
Sec. 179.400-12......................... Rail.
Sec. 179.400-13......................... Rail.
Sec. 179.400-15......................... Rail.
Sec. 179.400-18......................... Rail.
Sec. 179.400-19......................... Rail.
Sec. 179.500-17......................... Rail.
Sec. 179.500-18......................... Rail.
Appendix B to Part 179.................... Rail.
Sec. 180.3.............................. Multi-modal.
Sec. 180.403............................ Highway.
Sec. 180.405............................ Highway.
Sec. 180.407............................ Highway.
Sec. 180.409............................ Highway.
Sec. 180.411............................ Highway.
Sec. 180.413............................ Highway.
Sec. 180.415............................ Highway.
Sec. 180.416............................ Highway.
Sec. 180.501............................ Rail.
Sec. 180.503............................ Rail.
Sec. 180.509............................ Rail.
Sec. 180.513............................ Rail.
Sec. 180.517............................ Rail.
Appendix D to Part 180.................... Rail.
------------------------------------------------------------------------
The following is a section-by-section review of the proposed
amendments:
Part 107
Section 107.1
Section 107.1 is the definition section for Part 107--``Hazardous
Materials Programs Procedures.'' The definition of ``registration''
currently states that, ``For purposes of subparts A through E,
``registration'' does not include registration under subpart F or G of
this part.'' In this NPRM, we propose to add a reference to the new
subpart J for tank car facility and tank car DCE registration to the
existing references to subpart F or G. This will ensure that the
registration requirements of subpart J for tank car facilities and DCEs
are not confused or conflated with other registration requirements in
Part 107. See also our discussion in ``Section II.B.5 Tank Car Facility
and Design Certifying Engineer Registration'' for additional
information.
Section 107.105
Section 107.105 contains the general information and supporting
documentation requirements for special permit applications. Paragraph
(a)(5) requires that special permit applicants who hold a registration
under subparts F or G of Part 107 must include their registration
number in their special permit application. PHMSA proposes to add a
reference to the new subpart J to paragraph (a)(5), to require that
tank car facilities or tank car DCEs who submit a special permit
application to PHMSA include their registration number. This will allow
PHMSA to more easily cross-reference tank car facility or DCE
registration records with the special permit request. See also our
discussion in ``Section II.B.5 Tank Car Facility and Design Certifying
Engineer Registration'' for additional information.
Section 107.502
Section 107.502 details general registration requirements for
persons who are engaged in the manufacture, assembly, inspection and
testing, certification, or repair of a cargo tank or a cargo tank motor
vehicle manufactured in accordance with a DOT specification or a
special permit. Paragraph (a)(3) specifies reference citations to
certain terms used in the HMR. PHMSA proposes to add a reference to the
definition of modification, which is currently found in Sec. 180.403.
In addition--and as detailed later in this rulemaking--PHMSA proposes
to add a definition of component to Sec. 178.320(a) and a definition
of maintenance to Sec. 180.403, and PHMSA proposes to reference these
[[Page 85606]]
terms in paragraph (a)(3). Additionally, PHMSA proposes to add
references to these definitions as they are all related to the cargo
tank registration program and the references will provide greater
understanding of the registration requirements. See ``Section IV.
Section-by-Section Review; Part 178; Section 178.320'' and ``Section
IV. Section-by-Section Review; Part 180; Section 180.403'' for further
discussion of the proposed definitions.
PHMSA also proposes to add paragraphs (a)(4) through (a)(9) to
specify definitions for fixed test and inspection facility, FMCSA
Agency Decisionmaker, FMCSA Agency Official, mobile tester, mobile
testing and mobile test and inspection unit. The definitions of fixed
test and inspection facility, mobile tester, mobile testing, and mobile
test and inspection unit are proposed to provide additional clarity and
to help distinguish between fixed facilities and mobile testing units.
As currently required, the registration statement must specify
``whether the facility uses mobile testing/inspection equipment'' (see
Sec. 107.503(a)(3)). However, the HMR does not include definitions to
help distinguish these types of operations. Furthermore, the
definitions for FMCSA Agency Decisionmaker and FMCSA Agency Official
are being proposed as they are referenced in new Sec. Sec. 107.505,
107.506, and 107.507, and they align with FMCSA's organizational
structure.
Paragraph (b) specifies that a person who is employed as a
Registered Inspector or DCE is considered to be registered if the
person's employer is registered. PHMSA proposes minor editorial changes
to specify that the ``inspector'' is a ``Registered Inspector'' and
capitalize the term ``Design Certifying Engineer.''
Paragraph (d) specifies submission information for registration
statements. PHMSA proposes to revise this paragraph to include an
electronic method for submitting registration statements. In addition,
PHMSA proposes to make editorial revisions of an administrative nature
to this paragraph, including revising the mailing address for FMCSA.
Paragraph (e) details the applicant's receipt of registration
statement. The first sentence specifies that a letter will be sent to
the registrant and will assign the registrant with a registration
number. The second sentence specifies that a separate registration
number will be assigned for each cargo tank manufacturing, assembly,
repair facility or other place of business identified by the
registrant. PHMSA proposes to revise the first sentence of paragraph
(e) to allow for the registrant letter to be sent electronically
instead of only in a hard copy. This will promote electronic
correspondence with FMCSA, which is faster and more efficient for all
parties. PHMSA also proposes to move the second sentence of paragraph
(e) to a new paragraph (f), but the regulatory text within the second
sentence will remain unchanged. The proposed change provides increased
visibility and emphasis that a separate registration number will be
assigned for each cargo tank manufacturing, assembly, or repair
facility, or other place of business identified by the registrant.
Section 107.503
This section specifies the requirements pertaining to the
registration statement for persons who are engaged in the manufacture,
assembly, inspection and testing, certification, or repair of a cargo
tank or a cargo tank motor vehicle manufactured in accordance with a
DOT specification or a special permit. PHMSA proposes to revise
paragraph (a)(2) to include an email address for the facility or place
of business, if applicable (i.e., if they have an email address). This
will promote electronic correspondence with FMCSA which is faster and
more efficient for all parties.
PHMSA proposes to revise the statement for compliance in paragraph
(a)(4) to ensure that the person responsible for compliance certifies
that hazmat employees meet the minimum qualification requirements set
forth in Sec. 171.8 for Registered Inspectors or DCEs, and that they
are appropriately trained and knowledgeable of all the functions they
are registered to perform. FMCSA notes that one of the top violations
of employers is a lack of hazmat training of hazmat employees,
including Registered Inspectors or DCEs. Therefore, the certification
statement is revised to include reference to training to emphasize the
requirement.
In paragraph (c), PHMSA proposes to remove the last sentence, as
June 30, 1992, has passed and thus, this is an outdated requirement.
Lastly, PHMSA proposes to add paragraph (d) to require that each
person who performs the wet fluorescent magnetic particle exam submit a
copy of their ASME Code compliant training certificate. The training is
required in both Section V (Non-Destructive Examinations) and Section
VIII, Division 1 of the ASME Code. Requiring the certificate will
ensure that FMCSA can verify that each person who performs the wet
fluorescent magnetic particle exam has received the appropriate
training.
Section 107.505
This proposed new section provides for the modification,
suspension, or termination of a cargo tank facility registration.
During 2019, FMCSA investigations of cargo tank facilities discovered
254 instances where the facilities had not been in compliance with the
regulatory requirements, yet the Department does not have a codified
process to modify, suspend, or terminate registrations to address lack
of compliance. The proposal to allow the modification, suspension or
termination of cargo tank facility registrations also addresses NTSB
Safety Recommendation H-18-005,\31\ issued on January 30, 2018. This
recommends that PHMSA revise the HMR to permit the suspension or
termination of highway cargo tank registrations for failing to meet the
requirements of the HMR. The safety recommendation was made after a
March 11, 2016, incident where a cargo tank semitrailer separated from
its truck-tractor and struck a rock. The impact with the rock breached
the front head of the cargo tank, causing the lading to spill and a
fire to occur. Although the investigation determined that the condition
of the cargo tank was acceptable and its performance was consistent
with its design, the investigation also discovered safety issues with
inspection and testing of DOT Specification MC330 and MC331 cargo tanks
and certification and training of cargo tank inspectors. The NTSB
concluded that DOT needs to be able to suspend or terminate a cargo
tank registration to ensure that when cargo tank facilities perform
inadequate inspections, their authorization to do so can be terminated.
Based on this safety recommendation, and additional recognition by
FMCSA for the need of the ability to modify, suspend, or terminate a
cargo tank registration, PHMSA proposes to add Sec. 107.505 (along
with Sec. 107.506 for reconsideration and Sec. 107.507 for appeal) to
provide this authority. PHMSA proposes that this modification,
suspension, or termination process in Sec. 107.505 be consistent with
existing FMCSA procedures for adjudicating motor carrier violations.
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\31\ See NTSB Safety Recommendation H-18-005: <a href="https://ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-18-005">https://ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-18-005</a>.
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As proposed in paragraph (a), reasons for modification, suspension,
or termination include: (1) that because of a change in circumstance,
the registration is no longer needed or would not be granted if applied
for; (2) that the application contained
[[Page 85607]]
inaccurate or incomplete information and it would not have been granted
had it included accurate and complete information; (3) that the
application contained deliberately inaccurate or incomplete
information; or (4) that the registration holder knowingly violated the
terms of the registration or an applicable requirement of 49 CFR
Chapter I in a manner demonstrating lack of fitness to conduct the
activity for which the registration is required. Upon determination of
this modification, suspension, or termination, and as proposed in
paragraph (b), FMCSA will notify the registrant in writing or by
electronic means of the proposed action and allow opportunity to show
cause as to why the proposed action should not be taken. The registrant
will then have 30 days from service of the notice to file a response to
the notice. After consideration of the response, or after 30 days if no
response has been filed, the FMCSA Agency Official will notify the
registrant of a final decision with a brief statement of reasons and
effective date of the action.
However, as proposed in paragraph (d), if a condition of imminent
hazard exists, the FMCSA Agency Official may issue an immediately
effective emergency order to the registration holder in accordance with
Sec. 109.17 of this subchapter.
As proposed in paragraph (c), the rules of practice for FMCSA
proceedings for service and computation of time in Sec. Sec. 386.6 and
386.8 of this title apply to this section, except that electronic
service is permitted.
Section 107.506
This proposed new section provides for reconsideration of a
registration that was modified, suspended, or terminated in accordance
with proposed Sec. 107.505. This proposed process is similar to
existing FMCSA procedures. As proposed in paragraph (a), this request
would be: (1) in writing or by electronic means and served within 20
days of service of the original decision; (2) state in detail any
alleged errors of fact, law, or procedure; (3) state corrective actions
taken, (4) enclose any additional information needed to support the
request to reconsider; and (5) state in detail the modification of the
final decision.
As proposed in paragraph (b), the decision issued under Sec.
107.505 of this part remains effective pending a decision on
reconsideration. The FMCSA Agency Official will consider requests to
stay the decision using the criteria laid out in proposed Sec.
107.507(b)(1)-(4). As proposed in paragraph (c), the FMCSA Agency
Official request may request additional information or documents and,
to ensure that the deficiencies identified as the basis for the action
have been corrected, may conduct additional investigation. Furthermore,
paragraph (d) specifies that the FMCSA Agency Official will grant or
deny, in whole or in part, the relief requested, and the notification
will be made in writing or by electronic means. As proposed in
paragraph (e), the rules for FMCSA proceedings for service and
computation of time in Sec. Sec. 386.6 and 386.8 of this title apply
to this section, except that electronic service is permitted.
Section 107.507
This proposed new section provides for an appeal process for a
cargo tank facility that has had its registration modified, suspended,
or terminated by the Department in accordance with proposed Sec.
107.505 and has been denied reconsideration in accordance with proposed
Sec. 107.506. This ensures that the registrant has been provided due
process. As proposed, the appeal of the FMCSA Agency Official's
decision is adjudicated by the FMCSA Agency Decisionmaker. Similar to
Sec. Sec. 107.505 and 107.506, the language in proposed Sec. 107.507
is intended to reflect existing FMCSA procedures.
As proposed in paragraph (a), the appeal will be submitted to the
FMCSA Agency Decisionmaker and must: (1) be in writing and served
within 30 days of receipt of the FMCSA Agency Official's decision on
the FMCSA Agency Decisionmaker at the mailing or email address provided
and on all parties to the proceeding; (2) state in detail any alleged
errors of fact, law, or procedure; (3) enclose any additional
information needed to support the appeal; and (4) state in detail the
modification of the final decision sought. Furthermore, as detailed in
paragraph (b), the FMCSA Agency Official's action remains effective
pending a decision on appeal, unless a stay is requested and the FMCSA
Agency Decisionmaker determines:
(1) There is a substantial likelihood that the requesting party
will prevail on the merits;
(2) The requesting party will suffer irreparable injury absent the
stay;
(3) The threatened injury outweighs whatever damage the stay may
cause the opposing party; and
(4) The stay will not harm the public interest.
As proposed in paragraph (c) the FMCSA Agency Official, who bears
the burden of proof, will respond to the appeal within 30 days of
service of the appeal. Lastly, as proposed in paragraph (d), the FMCSA
Agency Decisionmaker will grant or deny, in whole or in part, the
relief requested. This decision is the final agency action.
As proposed, the rules for FMCSA proceedings for service and
computation of time in Sec. Sec. 386.6 and 386.8 of this title apply
to this section, except that electronic service is permitted. This
decision is the final administrative action.
Section 107.701
Section 107.701 contains the procedural requirements for the
submission of registrations. PHMSA proposes to add an exception to
paragraph (c) for the new subpart J. This exception will be applicable
to tank car facilities and tank car DCE registrations. This aligns with
the exception currently provided in paragraph (c) for subpart F, for
cargo tank facilities and cargo tank DCEs. It allows tank car facility
and tank car DCE registrations to be handled in the separate procedural
manner outlined in the proposed subpart J, in which the registrations
will be submitted to PHMSA, but subject to termination by FRA. See also
our discussion in ``Section II.B.5 Tank Car Facility and Design
Certifying Engineer Registration'' for additional information.
Part 107, Subpart J--``REGISTRATION OF TANK CAR FACILITIES AND DESIGN
CERTIFYING ENGINEERS''
PHMSA proposes to create subpart J in part 107 (Sec. Sec. 107.901-
107.915) for tank car facility and tank car DCE registrations. The
subpart includes definitions for terms used in the subpart,
instructions for applying for registration for both tank car facilities
and DCEs, and means of appeal if a registration is modified, suspended,
or terminated. See also ``Section II.B.5. Tank Car Facility and Design
Certifying Engineer Registration'' for additional details on the
creation of this subpart.
Section 107.901
This proposed new section Sec. 107.901 details the purpose and
scope of new part 107 subpart J. Part 107 subpart J addresses the
registration of tank car facilities and DCEs. Paragraph (b) details the
threshold requirement that applicants for registration must be familiar
with the HMR's requirements regarding specifications for tank cars
(part 179) and the qualification and maintenance of tank cars (part
180, subpart F).
Section 107.903
This proposed new section Sec. 107.903 details terms used in part
107, subpart
[[Page 85608]]
J and includes references to the location of their definition. The
terms that PHMSA proposes to include in this section are Design
Certifying Engineer (defined in Sec. 171.8), Qualification (defined in
Sec. 180.503), Tank car (defined in Sec. 179.2), Tank car facility
(defined in Sec. 179.2), and Tank car tank (defined in Sec. 180.503).
Additionally, PHMSA proposes to define FRA Associate Administrator for
Safety and FRA Administrator as used in this subpart.
Section 107.905
This proposed new Sec. 107.905 details the requirements for
submitting a tank car facility registration, including the information
required in the registration statement and where to send the
information. This section requires all tank car facilities to register
with PHMSA in order to legally qualify a DOT specification or special
permit tank car.
In order to register with PHMSA, each tank car facility is required
to provide a list of the qualification functions the tank car facility
will perform, and identify the types of DOT specification or special
permit tank cars that they intend to qualify. Paragraph (b) of this
section prohibits tank car facilities from performing qualification
functions that have not been identified in the registration. Each
facility must also submit an executive summary of its current quality
assurance program that is sufficient to demonstrate compliance with the
requirements set out in Sec. 179.7 in order to complete the
registration process. PHMSA anticipates that this information will
allow for effective oversight of registered tank car facilities.
Section 107.907
This proposed new Sec. 107.907 details the requirements for
submitting a tank car DCE registration. This section requires a DCE to
be registered with PHMSA in order to legally approve the design of a
DOT specification or DOT special permit tank car, as well as service
equipment, and details the required information in the registration
statement and where to send the information. Each registrant is
required to provide a list of the specific design approval functions
that the DCE will perform and identify the types of DOT specification
and special permit tank cars and service equipment that the DCE will
review. Paragraph (b) of this section prohibits design certifying
engineers from performing design approval functions that have not been
identified in the registration application. The registrant must also
provide the name of each DCE, and a description of each DCE's
experience that shows that they meet the requirements set out in Sec.
171.8. PHMSA anticipates that this information will allow for effective
oversight of registered tank car facilities.
Section 107.909
This proposed new Sec. 107.909 details the proposed administrative
details of the tank car facility and tank car DCE registration,
including renewal requirements, requirements to update PHMSA on changes
in activity and personnel, and record retention. As proposed, DCE
registrations must be renewed every six years, and registrants must
keep PHMSA updated on changes in company name, address, ownership,
personnel employed as tank car DCEs, and design approval activities
performed by the registrant. PHMSA will inform FRA of these changes.
PHMSA and FRA intend that this communication will increase our level of
oversight on the activities of engineers who review and approve tank
car and service equipment designs compared the existing AAR TCC closed
system. Additionally, non-compliance with these requirements may create
the basis for revocation of the registration. This will allow PHMSA and
FRA greater enforcement ability than the current system, which will
lead to an increased level of safety.
Section 107.911
This proposed new Sec. 107.911 details the reasons for which FRA
may modify, suspend, or terminate a tank car facility or DCE
registration. As proposed in paragraph (a), reasons for modification,
suspension, or termination include: (1) because of a change in
circumstances, the registration is no longer needed or would no longer
be granted if applied for; (2) that the application contained
inaccurate or incomplete information and it would not have been granted
if complete or accurate information was provided; (3) that the
application contained deliberately inaccurate or incomplete
information; or (4) that the registration holder knowingly violated the
terms of the registration or an applicable requirement of 49 CFR
Chapter I in a manner demonstrating lack of fitness to conduct the
activity for which the registration is required. Upon determination of
this modification, suspension, or termination, and as proposed in
paragraph (b), FRA will notify the registrant in writing or by
electronic means of the proposed action and allow opportunity to show
cause as to why the proposed action should not be taken. The registrant
will then have 30 days to file a response to the notice. After
consideration of the response, or after 30 days have elapsed with no
response from the registrant, the Associate Administrator for Safety,
FRA will notify the registrant of a final decision with a brief
statement of reasons.
However, as proposed in paragraph (c), if it is necessary to avoid
a risk of significant harm to persons or property, then the Associate
Administrator for Safety, FRA may declare the proposed corrective
action immediately effective.
Section 107.913
This proposed new Sec. 107.913 details the proposed process for
requesting reconsideration of FRA's decision to modify, suspend, or
terminate a tank car facility or DCE registration. This proposed
process is similar to the current special permit and approval
reconsideration procedures in Sec. Sec. 107.123 and 107.715,
respectively. As proposed in paragraph (a), this request would be: (1)
by electronic means and filed within 20 days of receipt of the
decision; (2) state in detail any alleged errors of fact and law; (3)
enclose any additional information needed to support the request to
reconsider; and (4) state in detail the modification of the final
decision.
As proposed in paragraph (b), newly submitted information will be
considered if the registration holder can show that the information
could have not been submitted when the application was processed.
Furthermore, paragraph (c) specifies that the Associate Administrator
for Safety, FRA will grant or deny, in whole or in part, the relief
requested, and allows the Associate Administrator for Safety, FRA to
notify the requesting party of the decision in writing or by electronic
means.
Section 107.915
This proposed new Sec. 107.915 details the process for requesting
an appeal of FRA's decision on reconsideration regarding a modified,
suspended, or terminated tank car facility or DCE registration. This
will ensure that the registrant has been provided due process. The
appeal of the Associate Administrator for Safety, FRA's decision will
be adjudicated by the FRA Administrator. Similar to Sec. Sec. 107.911
and 107.913, the language in Sec. 107.915 mirrors the current appeal
process for DOT special permits and approvals in Sec. Sec. 107.125 and
107.717, respectively, except that the appeal is directed to FRA,
rather than PHMSA.
As proposed in paragraph (a), the appeal will be submitted to the
FRA Administrator and must: (1) be by electronic means and filed within
30
[[Page 85609]]
days of receipt of the Associate Administrator for Safety, FRA's
decision; (2) state in detail any alleged errors of fact and law; (3)
enclose any additional information needed to support the appeal; and
(4) state in detail the modification of the final decision sought.
Furthermore, as detailed in paragraph (b), the FRA Administrator may
declare the Associate Administrator for Safety, FRA's action remain
effective pending a decision on appeal, if it is necessary to avoid a
risk of significant harm to persons or property. Lastly, as proposed in
paragraph (c), the FRA Administrator will grant or deny, in whole or in
part, the relief requested. This decision is the final administrative
action.
Part 171
Section 171.6
Section 171.6 provides information on the Office of Management and
Budget (OMB) control numbers assigned to information collection in the
HMR under the Paperwork Reduction Act of 1995. The paragraph (b)(2)
table lists all of the HMR sections associated with each OMB control
number. As this NPRM proposes to add new information collection to the
regulations, PHMSA proposes to revise the table to include the section
references where this information collection request is specified. In
addition, PHMSA proposes minor editorial revisions for grammatical
consistency. For details on the affected OMB control numbers, see
``Section V.G. Paperwork Reduction Act.''
Section 171.7
This section details the IBR documents in the HMR. Paragraph (h)
details IBR documents of the American Society of Testing and Materials
(ASTM). In paragraph (h)(39), PHMSA proposes an editorial revision for
standard method ``ASTM D 1838-64 Copper Strip Corrosion by Liquefied
Petroleum (LP) Gases, 1964'' by adding the date ``Reapproved 1968.''
The current IBR document for the 1964 edition of ASTM 1838-64 has a
reapproved date of 1968, but it is not specified in Sec. 171.7.
Therefore, PHMSA proposes this editorial amendment to add this date to
provide regulatory clarity without amending the actual IBR standard.
This standard is available for purchase at the following online
location: <a href="https://webstore.ansi.org/">https://webstore.ansi.org/</a>.
Paragraph (k) details IBR documents of the AAR. In paragraph (k),
PHMSA proposes to revise editorially the AAR mailing address and
website. As discussed in ``Section II.A. Railroad Safety Advisory
Committee,'' PHMSA proposes to update the edition of and revise how the
AAR Manual of Standards and Recommended Practices, Section C--III,
Specifications for Tank Cars, Specification M-1002 (AAR Specifications
for Tank Cars) is incorporated by reference in the HMR. Specifically,
PHMSA proposes to update the 2014 edition of the AAR Specifications for
Tank Cars, divide it into its component chapters and appendices and
incorporate by reference each chapter and appendix in the relevant
section of the HMR, as agreed to by the RSAC. This revision provides
more specificity on the relevant AAR chapters and appendices that are
incorporated by reference throughout the HMR, instead of generally
indicating the entire manual. Additionally, PHMSA proposes to update
the edition of the AAR Manual of Standards and Recommended Practices,
Section C--II, Specifications for Design, Fabrication and Construction
of Freight Cars, Chapter 5 to the 2011 edition from the 1988 edition,
as agreed by the RSAC. This update also requires updating the title of
the standard from ``AAR Specifications for Design, Fabrication and
Construction of Freight Cars,'' to ``AAR Manual of Standards and
Recommended Practices, Section C--II Specifications for Design,
Fabrication and Construction of Freight Cars'' and moving the IBR from
Sec. 171.7(k)(4) to paragraph (k)(1) to align with the numerical
organization of this paragraph. PHMSA also proposes to incorporate by
reference the updated 2016 edition of the AAR Manual of Standards and
Recommended Practices, Section C, Car Construction Fundamentals and
Details, Standard S-286, Free/Unrestricted Interchange for 286,000 lb
Gross Rail Load Cars for rail cars weighing up to 286,000 lbs., as
agreed in RSAC into Sec. 179.13, and move the current S-286 IBR
reference to Sec. 171.7(k)(20). These revisions are intended to update
the incorporated by reference versions of these industry standards to
reflect the current state of the art.
There are several sections and appendices from the AAR
Specifications for Tank Cars that were recommended by the RSAC but are
not proposed. This is because, based on the proposal to remove AAR as
the sole approval for tank car designs, the incorporation by reference
of these sections and appendices is not needed in the HMR at this time.
As such, PHMSA does not propose to IBR Appendix B, Appendix L, and
Appendix U of the AAR Specifications for Tank Cars into the HMR. As a
matter of amendatory instructions, in Sec. 171.7(k), PHMSA proposes to
reserve where the omitted chapters and appendices would traditionally
be located for future regulatory flexibility. See ``Section II.B.6. AAR
Specifications for Tank Cars Incorporation by Reference'' for
additional details.
PHMSA also proposes to incorporate by reference the following AAR
documents:
<bullet> AAR Manual of Standards and Recommended Practices, Section
C--II Specifications for Design, Fabrication and Construction of
Freight Cars, Chapter 6 into Sec. 179.400-6;
<bullet> AAR Manual of Standards and Recommended Practices, Section
C--III, Specifications for Tank Cars, Specification M-1002 (AAR
Specifications for Tank Cars) Chapter 2 in Sec. 179.102-3;
<bullet> AAR Manual of Standards and Recommended Practices, Section
C--III, Specifications for Tank Cars, Specification M-1002 (AAR
Specifications for Tank Cars) Chapter 3 into Sec. Sec. 173.241,
173.242, and 173.247; and
<bullet> AAR Manual of Standards and Recommended Practices, Section
C--III, Specifications for Tank Cars, Specification M-1002 (AAR
Specifications for Tank Cars) Appendix W into Sec. 179.11.
Additional information on the purpose and intent of these IBRs can
be found in their respective section-by-section discussions. These
standards are available for purchase at the following online location:
<a href="https://aarpublications.com/msrp.html">https://aarpublications.com/msrp.html</a>.
Paragraph (l) details IBR documents of the CI. Currently,
paragraphs (l)(3) and (l)(4) include the IBR drawings for authorized
PRDs for cargo tanks transporting chlorine. As discussed in ``Section
II.E. P-1712,'' instead of adding the third drawing found in CI
Pamphlet 49 to Sec. 171.7, PHMSA proposes to remove the references to
the PRD drawings and incorporate by reference CI Pamphlet 49 in total.
Thus, PHMSA proposes to revise paragraph (l)(3) to read ``Pamphlet 49,
Recommended Practices for Handling Chlorine Bulk Highway Transports,
Edition 10, December 2016, into Sec. 173.315'' and reserving paragraph
(l)(4). This standard is available for purchase at the following online
location: <a href="https://www.chlorineinstitute.org/products">https://www.chlorineinstitute.org/products</a>.
Paragraph (n) details IBR documents of the CGA. In paragraph
(n)(21), PHMSA proposes to update ``CGA Technical Bulletin TB-2,
Guidelines for Inspection and Repair of MC-330 and
[[Page 85610]]
MC-331 Cargo Tanks, 1980'' to the 1997 edition, reaffirmed in 2015. The
Technical Bulletin is now titled ``P-26: Guidelines for Inspection and
Repair of MC-330 and MC-331 Anhydrous Ammonia Cargo Tanks (formerly TB-
2).'' PHMSA proposes to incorporate by reference this newer version
because it directs readers to the correct, relevant HMR citations and
provides clearer instruction on the guidelines provided in the
standard. For example, many of the HMR references in the 1980 edition
(i.e., the current IBR) point to part 173; however, the requirements
are now found in part 180. PHMSA has reorganized the HMR and, thus, the
citations in the 1980 edition are inaccurate, and updating to the 1997
edition will provide correct citations. These standards are available
for purchase at the following online location: <a href="https://www.cganet.com/standards/">https://www.cganet.com/standards/</a>.
Section 171.8
Section 171.8 defines terms in the HMR. PHMSA proposes to amend the
following definitions:
<bullet> Cargo tank: PHMSA proposes several minor editorial
revisions to paragraph (1), which currently defines the materials a
cargo tank is intended to hold, the encompassing parts of a cargo tank,
and the HMR citations that detail cargo tank specifications. PHMSA
proposed revisions include:
[cir] Add ``solids'' and ``semi-solids'' to the list of materials
transported in cargo tanks, consistent with the Sec. 178.320(a)
definition of cargo tank;
[cir] Consistent with the proposal to add a definition for
component, which includes ``fittings'' as a type of component, replace
the term ``fittings'' with the term ``components.'' See ``Section IV.
Section-by-Section Review; Part 178; Section 178.320'';
[cir] Alphabetize the list of parts of a cargo tank encompassed in
the definition;
[cir] Revise the phrase ``the definition of a tank'' to read as
``cargo tank specifications'' in the parenthetical introductory
language as this more accurately describes the section references list
in paragraph (1);
[cir] Add a reference to Sec. 178.345-1, as it is currently not
included in the citation list, but should be included, as this section
details cargo tank specifications for DOT Specification 406, 407, and
412 cargo tanks.
<bullet> Design Certifying Engineer: PHMSA proposes to make an
editorial amendment to the current cargo tank DCE definition and add
provisions to account for a tank car DCE. To accommodate the new
criteria for a tank car DCE, PHMSA proposes to reorganize the current
cargo tank DCE requirements from paragraphs (1)-(3) to paragraphs
(1)(i)-(iii). PHMSA also proposes an editorial amendment in proposed
paragraph (1)(i) to clarify that the one year of work experience
requirement is a minimum requirement. The definition currently
specifies a person must have exactly one year of experience in cargo
tank structural or mechanical design with an engineering degree;
however, it is not PHMSA's intent to limit this to only one year of
experience. Instead, a person with at least one year of work experience
in cargo tank structural or mechanical design, in addition to an
engineering degree, meets the definition of a DCE for cargo tanks.
Additionally, and as previously discussed, PHMSA proposes to add
criteria for a tank car DCE. As such, PHMSA proposes to revise the
introductory paragraph and add paragraphs (2)(i) and (ii). The proposed
criteria in paragraphs (2)(i) and (ii) mirror the current cargo tank
DCE criteria in paragraphs (1)(i) and (ii). Specifically, as proposed,
a Design Certifying Engineer for a tank car is ``a person registered in
accordance with subpart . . . J of part 107 . . . who has the knowledge
and ability to perform stress analysis of pressure vessels and
otherwise determine whether a . . . tank car design and construction
meets the applicable DOT specification.'' In addition, a tank car DCE
is a person who either: ``(i) has an engineering degree and at least
one year of work experience in tank car structural or mechanical design
or (ii) is currently registered as a professional engineer by an
appropriate authority of a State of the United States or a province of
Canada.'' See ``Section II.B.2. Tank Car Design Approval'' for
additional information on the proposed creation of tank car DCEs and
``Section II.B.5. Tank Car Facility and Design Certifying Engineer
Registration'' for additional details on proposed registration
requirements for DCEs.
Section 171.22
Section 171.22 authorizes the use of international dangerous goods
transportation standards in place of the HMR, subject to the conditions
and restrictions of Sec. Sec. 171.22 to 171.26, including use of the
International Civil Aviation Organization's (ICAO) Technical
Instructions for the Safe Transport of Dangerous Goods by Air
(Technical Instructions), the IMDG Code, Transport Canada's
Transportation of Dangerous Goods (TDG) Regulations, and the
International Atomic Energy Agency (IAEA) Regulations. PHMSA proposes
to revise paragraph (f)(4) to specify that in addition to retaining a
copy of the shipping paper, a person who provides for transportation or
receives for transportation a shipping paper must make the shipping
paper readily accessible for inspection. PHMSA and its modal partners
have determined that the current shipping paper accessibility
requirements in Sec. 171.22(f)(4) create unnecessary delays during
routine inspections because these forms are often made available
several hours or days after the inspections are conducted. Therefore,
PHMSA proposes to revise paragraph (f)(4) to indicate more clearly the
expectation that shipping paper information must be made readily
accessible to inspectors or other authorized individuals during
inspections. This change is intended to increase safety by improving
the ability of inspectors to conduct their reviews of hazardous
materials shipments and increase efficiency by facilitating a quicker
return to commerce for hazardous materials delayed by inspection. The
intent of this revision is to ensure timely provision of shipping paper
information for inspection of shipments in transportation (e.g.,
container inspections in port areas). Access to historic shipping paper
information after transportation has ended is a separate scenario, and
may have other standards for reasonable provision of shipping paper
information (e.g., close of business the following business day for
historic rail shipping paper information). See ``Section IV. Section-
by-Section Review; Part 174; Section 174.24'' for further discussion of
historic shipping paper availability in rail transportation.
Section 171.23
Section 171.23 establishes HMR requirements for specific materials
and packagings transported under the ICAO Technical Instructions, IMDG
Code, Transport Canada's TDG Regulations, and the IAEA Regulations.
PHMSA proposes to revise the introductory text of paragraph (b)(5) and
paragraph (b)(5)(iii) to clarify that the letters ``RQ'' and the name
of the hazardous substance must be marked only on non-bulk packages
that contain reportable quantities of a hazardous substance. The HMR do
not currently require this marking on bulk packages because Sec.
172.324, which requires the ``RQ'' marking, only applies to non-bulk
packages. However, PHMSA and USCG understand that international
shippers occasionally misinterpret Sec. 171.23(b) as requiring this
marking on bulk packagings. This proposed revision is
[[Page 85611]]
intended to decrease burdens on shippers by clarifying which markings
are required and to avoid confusion in port areas. Shippers may apply
the letters ``RQ'' and the name of the hazardous substance on a bulk
packaging, but PHMSA and USCG discourage this practice as it might be
unnecessarily confusing and burdensome.
Part 172
Section 172.101
Section 172.101 lists the HMT and provides explanatory text on the
use of the table. Paragraph (j) provides explanatory text about Columns
(9A) and (9B) of the HMT, including an indication that Column (9A) of
the HMT identifies the maximum quantity of hazardous materials that may
be offered in one package when transported by passenger-carrying
aircraft or passenger-carrying rail car. However, as defined in Sec.
171.8, a rail car means a car designed to carry freight or non-
passenger personnel by rail. Therefore, a ``passenger-carrying rail
car'' is inconsistent with the definition of a rail car. PHMSA proposes
to revise editorially Sec. 172.101(j) to indicate instead that Column
(9A) is for the quantity limitation of passenger-carrying aircraft and
passenger-carrying rail. This proposal decreases potential regulatory
confusion without impacting safety. The proposed language was approved
by consensus vote at the May 25, 2017, RSAC meeting and offered to
PHMSA and FRA for consideration.
Section 172.102
This section details the meaning and requirements of the special
provisions listed in Column (7) of the HMT. Special provision 13 is
assigned to ``UN1005, Ammonia, anhydrous, 2.2'' and ``UN3318, Ammonia
solution, relative density less than 0.880 at 15 degrees C in water,
with more than 50 percent ammonia, 2.2.'' PHMSA proposes to clarify
that these materials are subject to security plan requirements. In
final rule HM-232F,\32\ PHMSA specified this stance:
---------------------------------------------------------------------------
\32\ 75 FR 10973 (Mar. 9, 2010).
While anhydrous ammonia is classed for domestic transportation
as a Division 2.2 material, it does pose a significant inhalation
hazard and, thus, should be subjected to safety and security
requirements that address that hazard. [PHMSA] note[s] further that
by requiring security plans for materials that meet the definition
for a material poisonous by inhalation, all materials that exhibit
PIH characteristics are covered even if they are not specifically
identified in column 3 of the Sec. 172.101 table as Division 2.3 or
---------------------------------------------------------------------------
6.1 materials.
However, as currently written, it is not clear that security plan
requirements apply to these shipments. Therefore, to ensure safe
transportation of these hazardous materials, to facilitate compliance
with the HMR, and to provide additional clarity, PHMSA proposes to
specify that security plan requirements apply to materials assigned to
special provision 13. This does not affect the classification of UN1005
and UN3318, and they may continue to be placarded with the Division 2.2
placard for domestic transportation. Additionally, this proposed change
does not mean that persons who transport UN1005 or UN3318 are subject
to FMCSA safety permit requirements; rather, the change is an explicit
reminder that security plan requirements apply to this material.
PHMSA also proposes to revise special provision B45. This special
provision, which is currently assigned to ``UN1067, Dinitrogen
tetroxide, 2.3 (5.1, 8),'' requires that, ``each tank must have a
reclosing combination pressure relief device equipped with stainless
steel or platinum rupture discs approved by the AAR Tank Car
Committee.'' In conformance with other proposals throughout this NPRM
regarding AAR TCC approval requirements, PHMSA proposes to replace the
reference to AAR TCC approval with a reference to a tank car DCE
approval.
Section 172.303
This section identifies that no person may offer for transportation
or transport a package marked as a hazardous material, unless the
package contains that hazardous material, its residue, or it is
excepted in accordance with paragraph (b) of the section. PHMSA
proposes to add paragraph (b)(4) to permit the continued display of the
``BIOHAZARD'', ``HOT'', or sour crude oil markings when the hazardous
material is no longer present. Section 172.502(b)(2) currently
authorizes this continued display, as the section specifies that the
display of a ``BIOHAZARD'', ``HOT'', or sour crude oil marking is not a
prohibited placard. However, because Sec. 172.303 does not include a
matching provision to allow for the continued display of the
``BIOHAZARD'', ``HOT'', or sour crude oil markings, there may be
potential confusion. Therefore, to provide regulatory clarity and to
reinforce the current authorization, PHMSA proposes the editorial
revision in Sec. 172.303 to mirror the allowance in Sec. 172.502.
Section 172.328
Section 172.328 details cargo tank marking requirements. Paragraph
(d) requires that after October 3, 2005, each on-vehicle manually
activated remote shutoff device for closure of the internal self-
closing stop valve must have ``Emergency Shutoff'' marked on the cargo
tank.
PHMSA proposes to add a paragraph title of ``Emergency shutoff
marking'' to paragraph (d) to clarify that the paragraph relates to
emergency shutoff markings. The Office of Federal Register Document
Drafting Handbook provides instruction that when one section paragraph
has a heading, all of the other paragraphs in the section should as
well. As the other paragraphs in Sec. 172.328 have headings, this
editorial proposal ensures conformity with the Office of Federal
Register Drafting Document Handbook.
PHMSA proposes to further revise paragraph (d) editorially. First,
PHMSA proposes to remove the compliance date of October 3, 2005, from
paragraph (d). As this date has passed, there is no need for the
compliance date to remain in the paragraph. PHMSA also proposes to add
introductory language to this paragraph to specify that the emergency
shutoff marking is only required for cargo tank motor vehicles subject
to emergency remote shutoff device requirements under the HMR. This is
not intended to add any new regulatory requirements; instead, it is
added to clarify editorially the applicability of the paragraph.
Lastly, PHMSA proposes to require that the emergency shutoff
marking requirement applies to both internal and external self-closing
stop valves, instead of just internal self-closing stop valves. This
proposal addresses a potential safety gap where an external self-
closing stop valve is on the cargo tank, but it is not appropriately
marked. Thus, both internal and external self-closing stop valves can
be appropriately identified and activated during a hazardous material
incident, which leads to an increase in safety.
Section 172.336
Section 172.336 outlines special provisions for the display of UN
ID numbers. PHMSA proposes to revise the Sec. 172.336(c) table, which
provides scenarios where UN ID numbers are either not required or an
exception applies. As discussed in ``Section II.D. Cargo Tank Marking
for Petroleum Distillate Fuels,'' PHMSA proposes to add a sixth row to
the table to authorize display of the UN ID number representing the
petroleum distillate fuel with the lowest flash point that is
[[Page 85612]]
transported in a cargo tank in different trips on the previous or
current business day. However, due to different emergency response
procedures, PHMSA also proposes that the exception is not applicable
when the cargo tank transports gasoline and alcohol fuel blends
consisting of more than 10% ethanol. This is consistent with the
current requirements in the fifth row of the table. Specifically, PHMSA
proposes that in this circumstance, the UN ID numbers ``3475'' or
``1987'' must also be displayed, as appropriate, and the cargo tank may
only display ``3475'' or ``1987'' when the material is in the cargo
tank. Therefore, if the liquid petroleum distillate fuel with the
lowest flash point transported in the cargo tank in different trips on
the previous or current business day is a gasoline and alcohol fuel
blend consisting of more than 10% ethanol, and it is not being
transported in the cargo tank, ``3475'' or ``1987'' may not be
displayed on the cargo tank. In this scenario, the cargo tank should
display either the UN ID number of the liquid petroleum distillate fuel
with the next lowest flash point transported in different trips on the
previous or current business day or the liquid petroleum distillate
fuel that is being transported.
Lastly, PHMSA proposes to specify that the exception in the fifth
row only applies to compartmented cargo tanks and compartmented tank
cars. This will distinguish clearly the fifth and sixth row exceptions.
The fifth row authorizes the display of the UN ID number of the
petroleum distillate fuel with the lowest flash point when the cargo
tank or tank car contains more than one petroleum distillate fuel. The
fifth-row exception is only possible when the cargo tank or the tank
car is compartmented (i.e., it has multiple compartments each with a
different petroleum distillate fuel). Therefore, PHMSA proposes to
remove the term ``cargo tank'' to indicate clearly the exception only
applies to ``compartmented cargo tanks or compartmented tank cars.''
Section 172.504
Section 172.504 prescribes the general requirements for placarding.
Paragraph (b) authorizes the use of the ``DANGEROUS'' placard when
transporting two or more categories of hazardous materials that require
a different placard specified in table 2 of Sec. 172.504(e). PHMSA
proposes to prohibit the use of the ``DANGEROUS'' placard to describe
multiple categories of hazardous materials being transported by vessel.
PHMSA and USCG identified vessel operator confusion with the display of
the ``DANGEROUS'' placard because the ``DANGEROUS'' placard is not
authorized in the IMDG Code. It is advantageous to harmonize the HMR
with the IMDG Code to promote efficient vessel transportation by
removing the authorization to use this placard. Furthermore, the
``DANGEROUS'' placard may not provide adequate information on the
hazardous materials inside the container for emergency response onboard
vessels. PHMSA and USCG experience is that it is also very rare for the
``DANGEROUS'' placard to be displayed on a freight container for vessel
transportation. Therefore, PHMSA proposes to add this limitation in a
new paragraph (b)(2), while also moving the existing usage limitation
for the ``DANGEROUS'' placard (over 2,205 lbs. aggregate gross weight
or more of one category of material is loaded at one loading facility)
to a new paragraph (b)(1). Please note that ``DANGEROUS'' placards may
continue to be appropriately used for highway or rail transportation,
when applicable, prior to, or after, the portion of transportation by
vessel.
Section 172.516
Section 172.516 details the visibility and display of placards,
including paragraph (d), which specifies that the recommended placard
holder specifications are set forth in Appendix C. PHMSA proposes to
revise the size of the recommended placard holder dimensions in
Appendix C to part 172. As detailed in ``Section IV. Section-by-Section
Review; Part 172; Appendix C to Part 172,'' the recommended placard
holder that is currently authorized in the HMR may continue to be used,
even if the revised placard holder in Appendix C to part 172 is adopted
in a final rule. However, to ensure that there is no confusion with
this allowance, PHMSA proposes to revise Sec. 172.516(d) to add a
reference to the placard holder authorized in Appendix C prior to a
final rule effective date as an authorized placard holder.
Section 172.704
Section 172.704 details HMR training requirements. Paragraph (a)(2)
includes requirements for function-specific training. PHMSA proposes to
add paragraph (a)(2)(iii) to reference Sec. 177.816 for highway
transportation function-specific training. This new paragraph will help
to provide regulatory clarity and ensure those persons transporting
hazardous materials by highway meet the function-specific training in
Sec. 177.816, without adding any additional requirements.
Section 172.704(e)(1) excepts a hazmat employee from the paragraph
(a)(3) safety training when the hazmat employee repairs, modifies,
reconditions, or tests packagings, as qualified for use in the
transportation of hazardous materials, and who does not perform any
other function in the HMR. PHMSA proposes to revise paragraph (e)(1) to
add an exception from the security awareness training requirement in
paragraph (a)(4). Final rule HM-126F,\33\ added training requirements
to the HMR, including the exception from safety awareness training in
paragraph (e)(1). Security awareness training was not included in the
exception because the requirement for security awareness training was
not added to the HMR until RSPA published final rule HM-232.\34\ In HM-
232, RSPA provided the following reasoning for the need of security
awareness training:
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\33\ 20 FR 20944 (May 15, 1992).
\34\ 68 FR 14510 (Mar. 25, 2003).
Because many hazardous materials transported in commerce may
potentially be used as weapons of mass destruction or weapons of
convenience, it is critical to the assurance of public safety that
training for persons who offer and transport hazardous materials in
---------------------------------------------------------------------------
commerce include a security component.
While HM-232 provides a need for security awareness training, RSPA
did not comment on whether it intended to exclude security awareness
training from the exception in paragraph (e)(1). PHMSA affirms that
security awareness training is essential to ensure that hazardous
materials are transported in commerce safely. However, upon review,
PHMSA acknowledges that the burden of security awareness training
imposed on hazmat employees who only manufacture, repair, modify,
recondition, or test packagings, and do not perform any other function
subject to the HMR, may not present the same security benefit as for
those who directly offer or transport hazardous materials. PHMSA
expects that the packagings a hazmat employee manufactures, repairs,
modifies, reconditions, or tests are empty and free of hazardous
materials, and we seek comment on this expectation. As described in HM-
232, the creation of security awareness training was related to
concerns about hazardous materials transported in commerce being used
as weapons of mass destruction or weapons of convenience. A hazmat
employee whose sole hazmat function is qualifying a packaging would not
interact with a hazardous material that could be used as a weapon;
therefore, PHMSA does not expect a reduction in
[[Page 85613]]
security by providing these employees an exception from security
awareness training. Therefore, PHMSA proposes to add the security
awareness training of paragraph (a)(4) to the paragraph (e)(1)
exception for persons performing only repairs, modifications,
reconditioning, or testing of packagings and no other functions subject
to the HMR.
Additionally, PHMSA proposes to expand the eligibility of hazmat
employees excepted from safety and security training to include package
``manufacturers.'' In review of paragraph (e)(1), it was determined
that package manufacturers were unintentionally excluded from this
exception and including package manufacturers to this exception ensures
the paragraph conforms to guidance previously issued by PHMSA.\35\
Therefore, PHMSA proposes to include package ``manufacturers'' among
the list of hazmat employees excepted from safety and, as proposed,
security awareness training. Although these changes broaden the
population of persons excepted from safety and security awareness
training, PHMSA expects the safety and security of hazardous materials
transportation will be maintained because of this training's primary
focus on persons who offer or transport hazardous materials.
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\35\ See Letter of Interpretation Reference No. 05-0064: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/05-0064">https://www.phmsa.dot.gov/regulations/title49/interp/05-0064</a>.
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Section 172.820
Section 172.820 outlines additional security plan requirements for
certain hazardous materials transported by rail. The requirements for a
rail carrier to identify and analyze practicable alternative routes are
specified in paragraph (d). As currently written, there is no
instruction provided for a situation where no alternative routes exist.
Therefore, PHMSA proposes to revise paragraph (d) to provide an
exception from the requirement to conduct an alternative route
analysis, when no practicable alternative routes exist, including
consideration of interchange agreements. The rail carrier must
describe, in writing, the remediation or mitigation measures to be
implemented, if any, on the primary route in conformance with Sec.
172.820(d)(1)(iii) and certify that an alternative route does not exist
for a given primary route. For example, a shortline railroad with only
one possible route to move material subject to Sec. 172.820 is not
required to analyze alternative routes owned by other railroads. HMIWG
discussed the proposed paragraph (d)(3) at its August 16-17, 2016,
meeting. The proposed language was approved by consensus vote at the
May 25, 2017, RSAC meeting and offered to PHMSA and FRA for
consideration. PHMSA expects safety will be maintained as a result of
this proposal, because it is not possible to conduct an alternate route
analysis where no alternate route(s) exist. In this NPRM, we propose a
minor revision to the proposed text of (d)(3) to indicate that the
exception applies to the requirements of (d)(1) and (d)(2).
Appendix C to Part 172
Appendix C to part 172 specifies the dimensions for a recommended
placard holder. PHMSA proposes to revise the recommended placard holder
drawing from a one-side minimum dimension of 273 mm (10 \3/4\ inch) to
250 mm (9.84 inch). This revised dimension meets the current minimum
placard size in Sec. 172.519(c). In final rule HM-218F,\36\ PHMSA made
miscellaneous amendments to update and clarify certain regulatory
requirements, including amending the placard dimensions in Sec.
172.519(c) to harmonize with international standards. Specifically, HM-
218F revised the dimensions of a placard from at least 273 mm (10.8
inches) on each side to the current dimension of at least 250 mm (9.84
inches) on each side. However, when the revision was made to Sec.
172.519(c), an accompanying revision to the recommended placard holder
dimensions in Appendix C to part 172 was not made. This has resulted in
placard holders that may not correctly fit placards thereby, creating
the potential for certain communication elements of the placard to be
obscured. To prevent this potentially unsafe and noncompliant
situation, PHMSA proposes to reduce the dimensions of the recommended
placard holder with revised dimensions that are consistent with the
current minimum placard dimension of 250 mm (9.84 inches) on each side,
because hazard communication information may be obscured. Appendix C
provides only recommended dimensions. A larger version of a placard
holder suitable for larger placards may continue to be used since the
side dimensions for the placards and placard holders are a minimum
specification.
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\36\ 76 FR 43510 (Jul. 20, 2011).
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Part 173
Section 173.31
Section 173.31 prescribes the requirements for use of tank cars.
Paragraph (a)(2) specifies that tank cars and appurtenances may be used
for the transportation of any commodity for which they are authorized
and as specified on the certificate of construction. PHMSA proposes to
revise paragraph (a)(2) in conformance with the proposal to replace AAR
TCC approval with tank car DCE approval. Specifically, PHMSA proposes
to indicate that tank cars and appurtenances may be used for the
transportation of the commodity specified on the DAC, while also
providing a one-year transition period during which certificates of
construction may still be issued. Existing tank cars approved for use
by the AAR TCC may continue in use for the rest of their authorized
life pursuant to their existing AAR Form 4-2 certificate of
construction, subject to periodic qualification as required by part 180
subpart F. Additionally, PHMSA proposes to replace the reference to the
AAR TCC approval with approval by a tank car DCE, consistent with the
other proposed changes.
Section 173.31(d) outlines the requirements for examination of a
tank car prior to shipping. Review of incident data involving non-
accident hazardous materials releases from tank cars indicates that
most releases occur because of improperly secured closures on tank
cars. Additionally, the majority of those failures occur at the manway
cover due to a failure to secure the manway in accordance with the
equipment owner and gasket manufacturer closure instructions, including
the bolt securement sequences, tools, and torque specifications.
Currently, there is no requirement in the HMR that offerors of tank
cars containing hazardous materials develop and implement closure
procedures that are consistent with the industry standards and Original
Equipment Manufacturer (OEM) recommendations. However, the HMR does
require manufacturers of other packagings, namely those specified in
part 178, to forward closure instructions to each person to which the
package is transferred, and that each person who closes those
packagings must do so in accordance with the manufacturer's closure
instructions.
Therefore, in the interest of improving safety and consistency with
requirements for closures for part 178 packaging types, PHMSA proposes
several amendments to Sec. 173.31(d). For clarity, PHMSA proposes to
amend the format of paragraph (d) by revising the paragraph title to
read ``pre-transportation closure, securement, and examination of tank
cars'' and providing each paragraph a title. PHMSA proposes
[[Page 85614]]
additional substantive amendments by adding introductory text on the
expectations of offerors prior to transportation, and by adding
regulatory text to require a closure and securement procedure including
a two-year periodic review of the procedure. As proposed, offerors must
develop and maintain a written procedure for closing and securing all
tank car openings. PHMSA and FRA expect that offerors will use
available best practices and guidance from packaging and component
manufactures in development of these procedures. These proposed changes
to Sec. 173.31(d) are designed to ensure that minimum standards for
closures and their securement on tank cars are implemented to prevent
releases of hazardous material. Rail carriers, rail hazmat shippers,
equipment owners, and manufacturers all have a vested interest in
ensuring tank cars are routinely operated and closed in a reliable and
repeatable manner that is consistent with industry standards and OEM
recommendations. PHMSA and FRA expect that this regulatory change will
result in a net benefit to safety by ensuring proper securement of tank
car closures, thus reducing the number of hazardous material releases
by rail. Reduction in releases will have a positive impact on the
environment, including potential reductions in greenhouse gas
emissions.
Section 173.31(g) outlines the requirements for tank car loading
and unloading. The proposed changes to Sec. 173.31(g) are intended to
clarify the requirements for tank car unloading by adopting language
from long-standing PHMSA letters of interpretation.\37\ These letters
of interpretation explain that the intent of paragraph (g) is to ensure
the entry to a track where a tank car is being loaded or unloaded is
secured. The proposed revisions to Sec. 173.31(g) clarify that the
mechanism used to satisfy securement should be under the direct control
of the loading or unloading operator and locked in place so that it can
only be removed by the employee responsible for the product transfer.
The mechanism should also be capable of stopping or diverting incoming
rail equipment to prevent contact with the tank car being offloaded
(e.g., lined and locked switch or derail). The example of bumper blocks
in the current requirements of paragraph (g)(1) are proposed to be
removed because, as discussed at HMIWG meeting, the majority of
companies subject to this requirement accomplish compliance with the
use of a derail or a switch. Additionally, PHMSA and FRA have concerns
that some bumper blocks do not satisfy the requirements of the
paragraph. Bumper blocks may continue to be used to meet the
requirements of paragraph (g) provided they provide an equivalent level
of security to lining and locking switches or using derails, but PHMSA
proposes not to specifically call out bumper blocks as an option in
paragraph (g). Lastly, in new paragraphs (g)(1)(i)(A)-(D), PHMSA
proposes to clarify the performance of track securement operations in
association with loading or unloading of tank cars to account for
circumstances in which the securement may be temporarily removed for
necessary intra-plant repositioning of rail cars. The proposed
requirements in (g)(1)(i)(A)-(D) align with current industry practice
and are intended to protect railroad personnel and the tank car being
loaded or unloaded from interaction with other rail cars undergoing
switching in intra-plant operations that would otherwise be delayed or
obstructed without the possibility of temporarily removing measures for
securement of the track. The final recommended language was approved by
consensus vote at the May 25, 2017, RSAC meeting and offered to PHMSA
and FRA for consideration.
---------------------------------------------------------------------------
\37\ See PHMSA Letters of Interpretation Gale to Ross, May 31,
2006 (Reference No. 06-0058: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/06-0058">https://www.phmsa.dot.gov/regulations/title49/interp/06-0058</a>) and Foster to Rodgers, October 11, 2018
(Reference No. 18-0032: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/18-0032">https://www.phmsa.dot.gov/regulations/title49/interp/18-0032</a>).
---------------------------------------------------------------------------
Section 173.150
Section 173.150 details exceptions for Class 3 (flammable and
combustible liquids) hazardous materials. Paragraph (f)(3) provides an
exception for combustible liquids transported in bulk packaging or
combustible liquids meeting the definition of a hazardous substance,
hazardous waste, or a marine pollutant. In Sec. 173.150(f)(3)(viii),
PHMSA proposes to add a reference to Sec. 177.837(c). This is a
conforming amendment to the proposed requirement in Sec. 177.837(c) to
require bonding and grounding for the transfer of lading for
combustible liquids or flammable liquids reclassified as combustible
liquids in cargo tanks. PHMSA expects that for the safe transportation
of combustible liquids in cargo tanks, bonding and grounding
requirements should apply when taking the exception in Sec.
173.150(f). See ``Section IV. Section-by-Section Review; Part 177;
Section 177.837'' for additional discussion.
Section 173.159
Section 173.159 details packaging requirements and exceptions for
the transportation of wet batteries (i.e., electric storage batteries,
commonly of the rechargeable type, that contain a liquid electrolyte
component that is corrosive). Paragraph (e) specifies that the
transportation of wet batteries by highway and rail is excepted from
the requirements of HMR when transported in accordance with conditions
outlined in this paragraph. Over the past 10 years, over 700 incidents
involving the transportation of wet batteries have been reported due to
improper preparation of batteries for transportation. Not all of the
referenced incidents are associated with the transportation of wet
batteries in accordance with paragraph (e), but incidents involving the
transportation of wet batteries under other provisions are still
relevant to the transportation of wet batteries under paragraph (e)
because they show what may occur when wet batteries are not properly
prepared for transportation.
Many of these incidents involved a release of corrosive battery
fluid from wet batteries because of load shifting or falling over while
in transportation. Through inspections, PHMSA identified that improper
loading, securement, and transportation of wet batteries likely caused
a number of these incidents. Therefore, PHMSA proposes to add more
specificity in the provisions of Sec. 173.159(e) to clarify the
expectations for load securement of the batteries shipped under this
provision and ensure the safe transportation of wet batteries. This
increased clarification will enhance the safety of transport of wet
batteries and reduce the number of incidents resulting from improper
load securement and transportation. In addition, PHMSA notes that it is
the responsibility of all persons conducting transportation functions,
including loading and unloading, to ensure proper compliance with Sec.
173.159(e), and if there is a violation, PHMSA, along with any
respective modal administration, will attempt to identify and bring any
enforcement proceeding against the person who did not comply with Sec.
173.159(e).
Paragraph (e)(2) currently requires that wet batteries be loaded or
braced to prevent damage and short circuits in transit. This provision
has been in the HMR since its inception, as originally codified in
1956.\38\ Although load securement is not specifically mentioned in
paragraph (e)(2), securing hazardous materials against shifting under
normal transportation conditions is a basic hazardous materials
transportation safety requirement. For transportation by highway and
rail,
[[Page 85615]]
packages containing hazardous materials are required to be secured
against shifting while in transportation in accordance with Sec. Sec.
177.834 and 174.55, respectively. This requirement protects hazardous
materials, including wet batteries, from falling over or spilling under
normal transportation conditions, preventing damage and short circuits
during transportation. After evaluation of the aforementioned incidents
involving wet batteries, PHMSA proposes to amend the language of Sec.
173.159(e)(2) to include securement of the batteries to enhance the
safe transportation of wet batteries shipped under this exception.
Specifically, PHMSA proposes to clarify that loading or bracing of wet
batteries includes securing wet batteries against shifting while in
transit. In addition, and similar to Sec. Sec. 177.834 and 174.55,
PHMSA proposes to indicate that securement against shifting includes
relative motion between packages, under conditions normally incident to
transportation. PHMSA expects this language will help prevent damage to
batteries while in transportation and possible release of their liquid
contents. While ``method of securement'' is not defined in the HMR,
PHMSA has issued Letters of Interpretation regarding securement
methods. For example, in Letter of Interpretation Ref. No. 19-0039,\39\
PHMSA specifies that various methods for securement include tie-downs,
using dunnage or other cargo, shoring bars, jack bars, or toe-boards.
Furthermore, Letter of Interpretation Ref. No. 11-0198 \40\ includes
banding in this list. This is not an exclusive list; instead, these
demonstrate potential methods for securement to prevent shifting,
including relative motion between packages. In addition, the use of one
of these methods is only satisfactory when there is securement against
shifting, including relative motion, under conditions normally incident
to transportation. Lastly, PHMSA notes that for highway transportation,
the Federal Motor Carrier Safety Regulations (FMCSR; 49 CFR parts 350-
399), specifically part 393 subpart I--Protection Against Shifting and
Falling Cargo--details requirements for the prevention of loss and
shifting of load.
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\38\ 21 FR 4432 (June 23, 1956).
\39\ See Letter of Interpretation Reference No. 19-0039: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/19-0039">https://www.phmsa.dot.gov/regulations/title49/interp/19-0039</a>.
\40\ See Letter of Interpretation Reference No. 11-0198: <a href="https://www.phmsa.dot.gov/regulations/title49/interp/11-0198">https://www.phmsa.dot.gov/regulations/title49/interp/11-0198</a>.
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PHMSA also identified instances where persons offer for
transportation or transport wet batteries as unregulated shipments,
even though they are still subject to the provisions of the HMR under
Sec. 173.159(e). While these shipments are not subject to many of the
HMR provisions, including Sec. 172.704 training requirements, a person
who is complying with Sec. 173.159(e) must still know and understand
the applicable requirements in order to safely transport wet batteries.
This applies to both shippers and carriers, including those persons who
load, unload, or transport wet batteries in accordance with Sec.
173.159(e). However, because persons engaged in this operation have
been shown not to be aware of the specific provisions, PHMSA proposes
to revise paragraph (e) to specify that ``the offeror must inform
persons loading the batteries and the operator of the vehicle
transporting batteries of the requirements of this paragraph.'' PHMSA
expects that this will enhance the safe transportation of wet batteries
under Sec. 173.159(e) and add only minimal burden because, as
previously mentioned, being aware of the requirements of Sec.
173.159(e) is necessary for a person to properly apply the exception.
This proposed text reinforces that a person must be aware of the
requirements to properly perform said requirements. In order to
accommodate the proposed language, we propose to redesignate the
language currently located in paragraph (e)(5), requiring compliance
with incident reporting, to new paragraph (e)(6), and moving the
conjunction ``and'' to connect (e)(5) and (e)(6).
Sections 173.241, 173.242, and 173.247
Sections 173.241, 173.242, and 173.247 are bulk packaging
authorization sections for low hazard, medium hazard, and elevated
temperature liquid and solid materials, respectively. Each section
authorizes AAR specification tank cars for the transportation of
hazardous materials. Section 173.241 authorizes AAR Class 203W, 206W,
and 211W tank cars, Sec. 173.242 authorizes AAR Class 206W tank cars,
and Sec. 173.247 authorizes AAR Class 203W, 206W, and 211W tank cars.
However, the specifications for these packages are not found in the
HMR; they are found in Chapter 3 of the AAR Specifications for Tank
Cars. In order to ensure that no changes are made to the construction
specifications of these hazmat packagings without PHMSA and FRA review,
PHMSA proposes to incorporate by reference the 2014 edition of Chapter
3 of the AAR Specifications for Tank Cars into each section. AAR Class
203W, 206W
[…truncated; see source link]Indexed from Federal Register on October 28, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.