# Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2014-17764 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** August 1, 2014 - **Citation:** 79 FR 45016 ## Text DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 171, 172, 173, 174, and 179 [Docket No. PHMSA-2012-0082 (HM-251)] RIN 2137-AE91 Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The Pipeline and Hazardous Materials Safety Administration (PHMSA or we), in coordination with the Federal Railroad Administration (FRA), is proposing: new operational requirements for certain trains transporting a large volume of Class 3 flammable liquids; improvements in tank car standards; and revision of the general requirements for offerors to ensure proper classification and characterization of mined gases and liquids. These proposed requirements are designed to lessen the frequency and consequences of train accidents/incidents (train accidents) involving certain trains transporting a large volume of flammable liquids. The growing reliance on trains to transport large volumes of flammable liquids poses a significant risk to life, property, and the environment. These significant risks have been highlighted by the recent instances of trains carrying crude oil that derailed in Casselton, North Dakota; Aliceville, Alabama; and Lac-Mégantic, Quebec, Canada. The proposed changes also address National Transportation Safety Board (NTSB) safety recommendations on the accurate classification and characterization of such commodities, enhanced tank car construction, and rail routing. DATES: Comments must be received by September 30, 2014. ADDRESSES: You may submit comments identified by the docket number (Docket No. PHMSA-2012-0082 (HM-251)) and any relevant petition number by any of the following methods: • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. • Fax: 1-202-493-2251. • 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. • Hand Delivery: To the 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 for this document 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 http://www.regulations.gov and will include any personal information you provide. All comments received will be posted without change to the Federal Docket Management System (FDMS), including any personal information. Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office located at U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE., Washington, DC 20590. Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement at: http://www.dot.gov/privacy. FOR FURTHER INFORMATION CONTACT: Ben Supko or Michael Stevens, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration or Karl Alexy, (202) 493-6245, Office of Safety Assurance and Compliance, Federal Railroad Administration, 1200 New Jersey Ave. SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Frequently Used Abbreviations and Shortened Terms AAR Association of American Railroads ANPRM Advance notice of proposed rulemaking or PHMSA's ANPRM published September 6, 2013 in this rulemaking, depending on context App. Appendix CFR Code of Federal Regulations CPC Casualty Prevention Circular Crude oil Petroleum crude oil DHS U.S. Department of Homeland Security DOT U.S. Department of Transportation DP Distributed power, an alternative brake signal propagation system ECP brakes Electronically controlled pneumatic brakes, an alternative brake signal propagation system EO 28 FRA Emergency Order No. 28 (78 FR 54849; August 7, 2013) EOT device Two Way End-of-train device FR Federal Register FRA Federal Railroad Administration GRL Gross Rail Load HHFT High-Hazard Flammable Train HMT Hazardous Materials Table at 49 CFR 172.101 HMR Hazardous Materials Regulations at 49 CFR Parts 171-180 LPG Liquefied petroleum gas NAR Non-accident release, the unintentional release of a hazardous material while in transportation, including loading and unloading while in railroad possession, that is not caused by a derailment, collision, or other rail-related accident NPRM Notice of proposed rulemaking NTSB National Transportation Safety Board OTMA One-time movement approval PG Packing Group (see 49 CFR 171.8) PIH Poison Inhalation Hazard RIA Regulatory impact analysis RSAC Railroad Safety Advisory Committee RSPA Research and Special Programs Administration, the predecessor of PHMSA SERCs State Emergency Response Commissions T87.6 Task Force A task force of the AAR Tank Car Committee TIH Toxic inhalation hazard or Toxic-by-Inhalation TTC Tank Car Committee TSA Transportation Security Administration U.S.C. United States Code Table of Contents of Supplementary Information I. Executive Summary II. Overview of Current Regulations Relevant to This Proposal A. Classification and Characterization of Mined Liquids and Gases B. Packaging C. Track Integrity and The Safety of Freight Railroad Operations D. Oil Spill Response Plans E. Rail Routing III. Background A. Regulatory Actions B. Emergency Orders and Non-Regulatory Actions C. NTSB Safety Recommendations IV. Comments on the ANPRM A. Commenter Key B. Summary of Comments Relevant to the Proposed Amendments in This NPRM C. Summary of Comments on Possible Amendments Not in This NPRM V. Discussion of Comments and Section-by-Section Review A. High-Hazard Flammable Train B. Notification to SERCs of Petroleum Crude Oil Train Transportation C. Rail Routing D. Classification and Characterization of Crude Oil of Mined Liquids and Gases E. Additional Requirements for High-Hazard Flammable Trains a. Speed Restriction b. Alternative Brake Signal Propagation Systems F. New Tank Cars for High-Hazard Flammable Trains a. DOT Specification 117—Prescribed Car b. DOT Specification 117—Performance Standard G. Existing Tank Cars for High-Hazard Flammable Trains H. Forthcoming FRA NPRM on Securement and Attendance VI. Regulatory Review and Notices A. Executive Order 12866, Executive Order 13563, Executive Order 13610, and DOT Regulatory Policies and Procedures B. Unfunded Mandates Reform Act C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies and Procedures F. Paperwork Reduction Act G. Environmental Assessment H. Privacy Act I. Executive Order 13609 and International Trade Analysis J. Statutory/Legal Authority for This Rulemaking K. Regulation Identifier Number (RIN) I. Executive Summary Expansion in United States (U.S.) energy production has led to significant challenges in the transportation system. Expansion in oil production has led to increasing volumes of product transported to refineries. Traditionally, pipelines and oceangoing tankers have delivered the vast majority of crude oil to U.S. refineries, accounting for approximately 93 percent of total receipts (in barrels) in 2012. Although other modes of transportation—rail, barge, and truck—have accounted for a relatively minor portion of crude oil shipments, volumes have been rising very rapidly. With a growing domestic supply, rail transportation, in particular, has emerged as a flexible alternative to transportation by pipeline or vessel. The volume of crude oil carried by rail increased 423 percent between 2011 and 2012. 1 2 Volumes continued to increase in 2013, as the number of rail carloads of crude oil surpassed 400,000. 3 U.S. ethanol production has also increased considerably during the last 10 years and has generated similar growth in the transportation of ethanol by rail. 4 The increase in shipments of large quantities of flammable liquids by rail has led to an increase in the number of train accidents, posing a significant safety and environmental concern. 1 See U.S. Rail Transportation of Crude Oil: Background and Issues for Congress; http://fas.org/sgp/crs/misc/R43390.pdf. 2 See also “Refinery receipts of crude oil by rail, truck, and barge continue to increase” http://www.eia.gov/todayinenergy/detail.cfm?id=12131 . 3 http://www.stb.dot.gov/stb/industry/econ_waybill.html . 4 Association of American Railroads. 2013. Railroads and Ethanol. Available online at https://www.aar.org/keyissues/Documents/Background-Papers/Railroads%20and%20Ethanol.pdf . In this NPRM, PHMSA is proposing revisions to the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) that establish requirements for “high-hazard flammable train” (HHFT). This proposed rule defines a HHFT as a train comprised of 20 or more carloads of a Class 3 flammable liquid and ensures that the rail requirements are more closely aligned with the risks posed by the operation of these trains. As discussed further in this preamble and in our analysis, this rule primarily impacts unit train shipments of ethanol and crude oil; because ethanol and crude oil are most frequently transported in high volume shipments, typically in trains with 20 or more cars of those commodities. Currently, as shipped, crude oil and ethanol are typically classified as Class 3 flammable liquids. The primary intent of this rulemaking is to propose revisions to the HMR that update and clarify the regulations to prevent and mitigate the consequences of a train accident involving flammable liquids, should one occur. Table 1 identifies those affected by this NPRM and describes the regulatory changes. Table 1—Affected Entities and Requirements Proposed requirement Affected entity Better classification and characterization of mined gases and liquids Offerors/Shippers of all mined gases and liquids. • Written sampling and testing program for all mined gases and liquids, such as crude oil, to address: (1) frequency of sampling and testing; (2) sampling at various points along the supply chain; (3) sampling methods that ensure a representative sample of the entire mixture; (4) testing methods to enable complete analysis, classification, and characterization of material; (5) statistical justification for sample frequencies; and, (6) duplicate samples for quality assurance. Require offerer to certify that program is in place, document the testing and sampling program, and make program information available to DOT personnel, upon request. Rail routing risk assessment Rail Carriers, Emergency Responders. • Requires carriers to perform a routing analysis that considers 27 safety and security factors. The carrier must select a route based on findings of the route analysis. These planning requirements are prescribed in § 172.820 and would be expanded to apply to HHFTs. Notification to SERCs. • Require trains containing one million gallons of Bakken crude oil to notify State Emergency Response Commissions (SERCs) or other appropriate state delegated entity about the operation of these trains through their States. Reduced operating speeds. • Restrict all HHFTs to 50-mph in all areas. • PHMSA is requesting comment on three speed restriction options for HHFTs that contain any tank cars not meeting the enhanced tank car standards proposed by this rule: (1) a 40-mph maximum speed restriction in all areas (2) a 40-mph speed restriction in high threat urban areas 5 ; and, (3) a 40-mph speed restriction in areas with a 100K+ population. • PHMSA is also requesting comment on a 30-mph speed restriction for HHFTs that do not comply with enhanced braking requirements. Enhanced braking. • Require all HHFTs be equipped with alternative brake signal propagation systems. Depending on the outcome of the tank car standard proposal and implementation timing, all HHFTs would be operated with either electronic controlled pneumatic brakes (ECP), a two-way end of train device (EOT), or distributed power (DP). Enhanced standards for both new and existing tank cars Tank Car Manufacturers, Tank Car owners, Shippers and Rail Carriers. • Require new tank cars constructed after October 1, 2015 (that are used to transport flammable liquids as part of a HHFT) to meet criteria for a selected option, including specific design requirements or performance criteria (e.g., thermal, top fittings, and bottom outlet protection; tank head and shell puncture resistance). PHMSA is requesting comment on the following three options for the DOT Specification 117: 1. FRA and PHMSA Designed Car, or equivalent 2. AAR 2014 Tank Car, 6 or equivalent 3. Jacketed CPC-1232, 7 or equivalent • Require existing tank cars that are used to transport flammable liquids as part of a HHFT, to be retrofitted to meet the selected option for performance requirements, except for top fittings protection. Those not retrofitted would be retired, repurposed, or operated under speed restrictions for up to five years, based on packing group assignment of the lading. Table 2 further summarizes the three options for the DOT Specification 117. As noted in Table 1, PHMSA proposes to require one of these options for new tank cars constructed after October 1, 2015, if those tank cars are used as part of HHFT. In addition, for all three Options, PHMSA proposes the following timelines for tank cars used as part of HHFT: (1) For Packing Group I, DOT Specification 111 tank cars are not authorized after October 1, 2017; (2) for Packing Group II, DOT Specification 111 tank cars are not authorized after October 1, 2018; and (3) for Packing Group III, DOT Specification 111 tank cars are not authorized after October 1, 2020. 5 As defined in 49 CFR 1580.3—High Threat Urban Area (HTUA) means an area comprising one or more cities and surrounding areas including a 10-mile buffer zone, as listed in appendix A to Part 1580 of the 49 CFR. 6 On March 9, 2011 AAR submitted petition for rulemaking P-1577, which was discussed in the ANPRM. In response to the ANPRM, on November 15, 2013, AAR and ASLRAA submitted as a comment recommendations for tank car standards that are enhanced beyond the design in P-1577. For the purposes of this rulemaking this tank car will be referred to as the “AAR 2014 tank car.” See http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0082-0090. 7 In 2011, the AAR issued Casualty Prevention Circular (CPC) 1232, which outlines industry requirements for additional safety equipment on certain DOT Specification 111 tanks ordered after October 1, 2011, and intended for use in ethanol and crude oil service. Table 2—Safety Features by Tank Car Option Tank car Bottom outlet handle GRL (lbs) Head shield type Pressure relief valve Shell thickness Jacket Tank material * Top fittings protection ** Thermal protection system Braking Option 1: PHMSA and FRA Designed Tank Car Bottom outlet handle removed or designed to prevent unintended actuation during a train accident 286k Full-height, 1/2 inch thick head shield Reclosing pressure relief device 9/16 inch Minimum Minimum 11-gauge jacket constructed from A1011 steel or equivalent. The jacket must be weather-tight TC-128 Grade B, normalized steel TIH Top fittings protection system and nozzle capable of sustaining, without failure, a rollover accident at a speed of 9 mph Thermal protection system in accordance with § 179.18 ECP brakes. Option 2: AAR 2014 Tank Car Bottom outlet handle removed or designed to prevent unintended actuation during a train accident 286k Full-height, 1/2 inch thick head shield Reclosing pressure relief device 9/16 inch Minimum Minimum 11-gauge jacket constructed from A1011 steel or equivalent. The jacket must be weather-tight TC-128 Grade B, normalized steel Equipped per AAR Specifications Tank Cars, appendix E paragraph 10.2.1 Thermal protection system in accordance with § 179.18 In trains with DP or EOT devices. Option 3: Enhanced CPC 1232 Tank Car Bottom outlet handle removed or designed to prevent unintended actuation during a train accident 286k Full Height 1/2 inch thick head shield Reclosing pressure relief device 7/16 inch Minimum Minimum 11-gauge jacket constructed from A1011 steel or equivalent. The jacket must be weather-tight TC-128 Grade B, normalized steel Equipped per AAR Specifications Tank Cars, appendix E paragraph 10.2.1 Thermal protection system in accordance with § 179.18 In trains with DP or EOT devices. DOT 111A100W1 Specification (Currently Authorized) Bottom Outlets are Optional 263K Optional; Bare Tanks half height; Jacket Tanks full height Reclosing pressure relief valve 7/16 inch Minimum Jackets are optional TC-128 Grade B, normalized steel. * Not required, but when Equipped per AAR Specifications Tank Cars, appendix E paragraph 10.2.1 Optional Not required. * For the purposes of this figure, TC-128 Grade B normalized steel is used to provide a consistent comparison to the proposed options. Section 179.200-7 provides alternative materials which are authorized for the DOT Specification 111. ** Please note that the PHMSA does not propose to require additional top fittings protection for retrofits, because the costs are not supported by corresponding benefits. Newly constructed cars, however, are required to have additional top fittings protection. Except for additional top fittings protection, the requirements for newly constructed tank cars and retrofits are the same. The transportation of large volumes of flammable liquids poses a risk to life, property, and the environment. The volume of flammable liquids shipped by rail and in HHFTs has been increasing rapidly since 2006, representing a growing risk. Therefore, we are reevaluating the structure of the HMR as they pertain to rail transportation. Approximately 68 percent of the flammable liquids transported by rail are comprised of crude oil or ethanol. The U.S. is now the global leader in crude oil production growth. According to the rail industry, in 2009, there were 10,800 carloads of crude oil originations transported by Class I railroads, and in 2013, there were over 400,000 carloads of crude oil originations by Class I railroads, or 37 times as many in the U.S. 8 Crude oil production from the Bakken region of the Williston Basin is now over one million barrels per day. 9 8 Association of American Railroads. 2013. Moving Crude by Rail. December. Available online at: http://dot111.info/wp-content/uploads/2014/01/Crude-oil-by-rail.pdf. 9 Information regarding oil and gas production is available at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2. U.S. ethanol production has increased considerably during the last 10 years and has generated similar growth in the transportation of ethanol by rail, according to a recent white paper by the Association of American Railroads (AAR). 10 In 2008 there were around 292,000 rail carloads of ethanol. In 2011, that number increased over 40 percent, to 409,000. 11 Not surprisingly, this growth in rail traffic has been accompanied by an increase in the number of rail derailments and accidents involving ethanol. 10 Association of American Railroads. 2013. Railroads and Ethanol. Available online at https://www.aar.org/keyissues/Documents/Background-Papers/Railroads%20and%20Ethanol.pdf. 11 http://www.stb.dot.gov/stb/industry/econ_waybill.html. As the number of shipments of crude oil in HHFTs has increased, the number of mainline train accidents involving crude oil has increased from zero in 2010 to five in 2013 and thus far five in 2014. 12 This increase comes at a time when, across the entire rail network, the number of train accidents and hazardous materials releases are decreasing; while total shipment volume has increased, the total number of train accidents has declined by 43 percent since 2003, and accidents involving a hazardous materials release has declined by 16 percent since 2003. 13 The projected continued growth of domestic crude oil production, and the growing number of train accidents involving crude oil, PHMSA concludes that the potential for future severe train accidents involving crude oil in HHFTs has increased substantially. Such an increase raises the likelihood of higher-consequence train accidents. 12 Source: PHMSA Hazmat Inelegance Portal (HIP), February 2014. 13 Data from compiled by FRA's Office of Safety Analysis. Recent accidents highlight the potentially severe consequences of accidents involving HHFTs carrying crude oil. On December 30, 2013, a train transporting grain derailed onto another track into the path of a train transporting crude oil, which had too little time to stop before it collided with the grain train, and then itself derailed and unintentionally released product, which ignited near Casselton, North Dakota, prompting authorities to issue a voluntary evacuation of the city and surrounding area. On November 8, 2013, a train transporting crude oil to the Gulf Coast from North Dakota derailed in Aliceville, Alabama, spilling crude oil in nearby wetlands ignited. On July 6, 2013, a catastrophic railroad accident occurred in Lac-Mégantic, Quebec, Canada, when an unsecured and unattended freight train transporting crude oil rolled down a descending grade and subsequently derailed, resulting in the unintentional release of lading from multiple tank cars. The subsequent fires and explosions, along with other effects of the accident, resulted in the deaths of 47 individuals. In addition, the derailment caused extensive damage to the town center, a release of hazardous materials resulting in a massive environmental impact that will require substantial clean-up costs, and the evacuation of approximately 2,000 people from the surrounding area. Accidents involving HHFTs transporting ethanol can also cause severe damage. On August 5, 2012, a train derailed 18 of 106 cars, 17 of which were carrying ethanol, near Plevna, MT. Twelve of the 17 cars released lading and began to burn, causing two grass fires, a highway near the site to be closed, and over $1 million in damages. On October 7, 2011, a train derailed 26 loaded freight cars (including 10 loaded with ethanol) approximately one-half mile east of Tiskilwa, IL. The release of ethanol and resulting fire initiated an evacuation of about 500 residents within a 1/2 -mile radius of the accident scene, and resulted in damages over $1.8 million. On June 19, 2009, near Rockford, IL, a train derailed 19 cars, all of which contained ethanol, and 13 of the derailed cars caught fire. The derailment destroyed a section of single main track and an entire highway-rail grade crossing. As a result of the fire that erupted after the derailment, a passenger in one of the stopped cars was fatally injured, two passengers in the same car received serious injuries, and five occupants of other cars waiting at the highway/rail crossing were injured. Two responding firefighters also sustained minor injuries. The release of ethanol and resulting fire initiated a mandatory evacuation of about 2,000 residents within a 1/2 -mile radius of the accident scene and damages of approximately $1.7 million. The EPA estimated that 60,000 gallons of ethanol spilled into an unnamed stream, which flowed near the Rock and Kishwaukee Rivers. The following table highlights the risk of HHFTs by summarizing the impacts of selected major train accidents involving trains of Class 3 flammable liquid. Table 3—Major Crude Oil/Ethanol Train Accidents in the U.S. [2006-2014] Location Date (MM/YY) Number of tank cars derailed Number of crude oil/ethanol cars penetrated Speed at derailment in miles per hour (mph) Material and type of train Product loss (gallons of crude or ethanol) Fire Type of train accident or cause of train accident LaSalle, CO 05/14 5 1 9 Crude Oil (unit) 5,000 No To Be Determined (TBD). Lynchburg, VA 04/14 17 2 23 Crude Oil (unit) 30,000 Yes TBD. Vandergrift, PA 02/14 21 4 31 Crude Oil 10,000 No TBD. New Augusta, MS 01/14 26 25 45 Crude Oil 90,000 No TBD. Casselton, ND 12/13 20 18 42 Crude Oil (unit) 476,436 Yes Collision. Aliceville, AL 11/13 26 25 39 Crude Oil (unit) 630,000 Yes TBD. Plevna, MT 08/12 17 12 25 Ethanol 245,336 Yes TBD. Columbus, OH 07/12 3 3 23 Ethanol 53,347 Yes TBD—NTSB Investigation. Tiskilwa, IL 10/11 10 10 34 Ethanol 143,534 Yes TBD—NTSB Investigation. Arcadia, OH 02/11 31 31 46 Ethanol (unit) 834,840 Yes Rail Defect. Rockford/Cherry Valley, IL 06/09 19 13 19 Ethanol (unit) 232,963 Yes Washout. Painesville, OH 10/07 7 5 48 Ethanol 76,153 Yes Rail Defect. New Brighton, PA 10/06 23 20 37 Ethanol (unit) 485,278 Yes Rail Defect. Note 1. The term “unit” as used in this chart means that the train was made up only of cars carrying that single commodity, as well as any required non-hazardous buffer cars and the locomotives. Note 2. All accidents listed in the table involved HHFTs. Note 3. All crude oil or crude oil/LPG accidents involved a train transporting over 1 million gallons of oil. While not all accidents involving crude oil and ethanol release as much product or have as significant consequences as those shown in this table, these accidents indicate the potential harm from future releases. Table 4 provides a brief summary of the justifications for each provision in this NPRM, and how each provision will address the safety risks described previously. Table 4—Rulemaking Provisions and Safety Justifications Provision Justification Rail Routing PHMSA is proposing routing requirements to reduce the risk of a train accident. This proposal requires railroads to balance the risk factors to identify the route that poses the lower risk. As such, they may, in certain cases, choose a route that eliminates exposure in areas with high population densities but poses a risk for more frequent events in areas with very low densities. In other cases the risk of derailment may be so low along a section of track that, even though it runs through a densely populated area, it poses the lowest total risk when severity and likelihood are considered. Classification of Mined Gas and Liquid PHMSA is proposing to require a sampling and testing program for mined gas and liquid, such as crude oil. PHMSA expects the proposed requirements would reduce the expected non-catastrophic damages and ensure that materials are properly classified in accordance with the HMR. Notification to SERCs PHMSA is proposing to codify the May 7, 2014, DOT issued an Emergency Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067 (EO or Order). Recent accidents have demonstrated the need for action in the form of additional communication between railroads and emergency responders to ensure that the emergency responders are aware of train movements carrying large quantities of crude oil through their communities. Speed Restrictions PHMSA is proposing to restrict the speed of HHFTs. Speed is a factor that may contribute to derailments. Speed can influence the probability of an accident, as lower speeds may allow for a brake application to stop the train before a collision. Speed also increases the kinetic energy of a train, resulting in a greater possibility of the tank cars being punctured in the event of a derailment. The proposed restrictions will reduce the frequency and severity of train accidents. Braking To reduce the number of cars and energy associated with train accidents, PHMSA is proposing to require alternative brake signal propagation systems: Distributed power (DP), or two-way end of train devices (EOT); for tank car Option 1, electronic controlled pneumatic brakes (ECP) Tank Car Specifications PHMSA is proposing a new DOT Specification 117 tank car to address the risks associated with the rail transportation of ethanol and crude oil and the risks posed by HHFTs. All tank car Options for the DOT Specification 117 incorporate several enhancements to increase puncture resistance; provide thermal protection to survive a 100-minute pool fire; and protect top fitting (new construction only) and bottom outlets during a derailment. Under all Options, the proposed system of design enhancements would reduce the consequences of a derailment of tank cars carrying crude oil or ethanol. There would be fewer car punctures, fewer releases from the service equipment (top and bottom fittings), and delayed release of flammable liquid from the tank cars through the pressure relief devices. The consequences of train accidents and increase in the rail transportation of flammable liquids highlight the need to review existing regulations and industry practices related to such transportation. PHMSA and FRA are focused on reducing the risks posed by HHFTs and are taking action to prevent accidents from occurring and to mitigate the consequences when accidents do occur. PHMSA and FRA's actions to date demonstrate their focus on reducing risk associated with the rail transportation of large quantities of flammable liquids. PHMSA and FRA actions include: (1) Issuing FRA's Emergency Order No. 28 (EO 28) (78 FR 48218) published on August 7, 2013 stressing train securement; (2) issuing two Joint Safety Advisories published on August 7, 2013 (78 FR 48224) and November 20, 2013 (78 FR 69745) stressing the importance of security planning and proper characterization and classification of crude oil; (3) initiating a comprehensive review of operational factors that impact the transportation of hazardous materials by rail in a public meeting held on August 27-28, 2013 (78 FR 42998); (4) referring safety issues related to EO 28 and the August 7, 2013 Joint Safety Advisory to FRA's Railroad Safety Advisory Committee (RSAC); (5) issuing an emergency order on February 25, 2014, which was revised and amended on March 6, 2014 requiring that all rail shipments of crude oil that is properly classed as a flammable liquid in Packing Group (PG) III material be treated as a PG I or II material; 14 (6) issuing an emergency order on May 7, 2014, requiring all railroads that operate trains containing one million gallons of Bakken crude oil to notify SERCs about the operation of these trains through their States; 15 (7) issuing a Safety Advisory on May 7, 2014, urging carriers transporting Bakken crude oil by rail to select and use tank cars of the highest integrity to transport the material; 16 and (8) publishing the September 6, 2013, advance notice of proposed rulemaking (ANPRM) responding to eight petitions for rulemaking and four NTSB Safety Recommendations related to the transportation of hazardous materials by rail (78 FR 54849). 14 See Docket No. DOT-OST-2014-0025. See also http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Amended_Emergency_Order_030614.pdf. 15 http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_D9E224C13963CAF0AE4F15A8B3C4465BAEAF0100/filename/Final_EO_on_Transport_of_Bakken_Crude_Oi_05_07_2014.pdf. 16 http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_9084EF057B3D4E74A2DEB5CC86006951BE1D0200/filename/Final_FRA_PHMSA_Safety_Advisory_tank_cars_May_2014.pdf. In addition to these eight actions, PHMSA issued a Safety Alert on January 2, 2014, warning of potential crude oil variability and emphasizing the proper and sufficient testing to ensure accurate characterization and classification. The Safety Alert expressed PHMSA's concern that unprocessed crude oil may affect the integrity of packaging or present additional hazards related to corrosivity, sulfur content, and dissolved gas content. 17 To address these risks, this NPRM is proposing additional requirements for a sampling plan that would include proper characterization, classification, and selection of a hazardous material's Packing Group. Further, the NPRM is proposing to expand the routing requirements under subpart I of part 172 of the HMR to include HHFTs. Through its speed, tank car, braking, and notification requirements, this NPRM is intended to take a comprehensive approach to the risks of HHFTs. 17 See http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_111F295A99DD05D9B698AE8968F7C1742DC70000/filename/1_2_14%20Rail_Safety_Alert.pdf. PHMSA has prepared and placed in the docket a Regulatory Impact Analysis (RIA) addressing the economic impact of this proposed rule. Table 5 shows the costs and benefits by affected section and rule provision over a 20 year period, discounted at a 7% rate. Please note that because there is overlap in the risk reduction achieved between some of the proposed requirements listed in Table 5, the total benefits and costs of the provisions cannot be accurately calculated by summing the benefits and costs of each proposed provision. For example, the benefits for tank car Option 1, the PHMSA and FRA Designed Car, include benefits that are also presented as part of the benefits for the proposed “Braking” requirements at 49 CFR 174.130. Table 6 shows an explanation of the comprehensive benefits and costs (i.e., the combined effects of individual provisions), and the estimated benefits, costs, and net benefits of each proposed scenario. Please also note that, given the uncertainty associated with the risks of crude oil and ethanol shipments, Table 5 contains a range of benefits estimates. The low end of the range of estimated benefits estimates risk from 2015 to 2034 based on the U.S. safety record for crude oil and ethanol from 2006 to 2013, adjusting for the projected increase in shipment volume over the next 20 years. Absent this proposed rule, we predict about 15 mainline derailments for 2015, falling to a prediction of about 5 mainline derailments annually by 2034. The high end of the range of estimated benefits includes the same estimate of 5 to 15 annual mainline derailments predicted, based on the U.S. safety record, plus an estimate that the U.S. would experience an additional 10 safety events of higher consequence—nine of which would have environmental damages and monetized injury and fatality costs exceeding $1.15 billion per event and one of which would have environmental damages and monetized injury and fatality costs exceeding $5.75 billion—over the next 20 years. Table 5—20 Year Costs and Benefits by Stand-Alone Proposed Regulatory Amendments 2015-2034 18 Affected section 19 Provision Benefits (7%) Costs (7%) (millions) 49 CFR 172.820 Rail Routing+ Cost effective if routing were to reduce risk of an incident by 0.17% $4.5 49 CFR 173.41 Classification of Mined Gas and Liquid Cost effective if this requirement reduces risk by 0.61% 16.2 49 CFR 174.310 Notification to SERCs Qualitative 0 Speed Restriction: Option 1: 40 mph speed limit all areas* $199 million-$636 million 2,680 Speed Restriction: Option 2: 40 mph 100k people* $33.6 million-$108 million 240 Speed Restriction: Option 3: 40 mph in HTUAs* $6.8 million-$21.8 million 22.9 Braking: Electronic Pneumatic Control with DP or EOT# $737 million-$1,759 million 500 49 CFR Part 179 Option 1: PHMSA and FRA designed car @ $822 million-$3,256 million 3,030 Option 2: AAR 2014 Tank Car $610 million-$2,426 million 2,571 Option 3: Jacketed CPC-1232 (new const.) $393 million-$1,570 million 2,040 Note: “*” indicates voluntary compliance regarding crude oil trains in high-threat urban areas (HTUA). “+” indicates voluntary actions that will be taken by shippers and railroads. “#” indicates that only tank car Option 1, the PHMSA and FRA designed car, has a requirement for ECP brakes. However, all HHFTs would be required to have DP or two-way EOT, regardless of which tank car Option is selected at the final rule stage. 18 All costs and benefits are in millions over 20 years, and are discounted to present value using a 7 percent rate. 19 All affected sections of the Code of Federal Regulations (CFR) are in Title 49. Table 6—20 Year Benefits and Costs of Proposal Combinations of Proposed Regulatory Amendments 2015-2034 20 Proposal Benefit Range (millions) Cost (millions) PHMSA and FRA Design Standard + 40 MPH System Wide $1,436-$4,386 $5,820 PHMSA and FRA Design Standard + 40 MPH in 100K $1,292-$3,836 3,380 PHMSA and FRA Design Standard + 40 MPH in HTUA $1,269-$3,747 3,163 AAR 2014 Standard + 40 MPH System Wide $794-$3,034 5,272 AAR 2014 Standard + 40 MPH in 100K $641-$2,449 2,831 AAR 2014 Standard + 40 MPH in HTUA $616-$2,354 2,614 CPC 1232 Standard + 40 MPH System Wide $584-$2,232 4,741 CPC 1232 Standard + 40 MPH in 100K $426-$1,626 2,300 CPC 1232 Standard + 40 MPH in HTUA $400-$1,527 2,083 20 All costs and benefits are in millions, and are discounted to present value using a 7 percent rate. II. Overview of Current Regulations Relevant to This Proposal Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101-5128) authorizes the Secretary of Transportation (Secretary) to “prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.” The Secretary has delegated this authority to PHMSA. 49 CFR 1.97(b). PHMSA is responsible for overseeing a hazardous materials safety program that minimizes the risks to life and property inherent in transportation in commerce. The HMR provide safety and security requirements for shipments valued at more than $1.4 trillion annually. 21 The HMR are designed to achieve three goals: (1) To ensure that hazardous materials are packaged and handled safely and securely during transportation; (2) to provide effective communication to transportation workers and emergency responders of the hazards of the materials being transported; and (3) to minimize the consequences of an incident should one occur. The hazardous material regulatory system is a risk management system that is prevention-oriented and focused on identifying a safety or security hazard, thus reducing the probability and quantity of a hazardous material release. 21 2007 Commodity Flow Survey, Research and Innovative Technology Administration, Bureau of Transportation Statistics. Under the HMR, hazardous materials are categorized by analysis and experience into hazard classes and packing groups based upon the risks that they present during transportation. The HMR specify appropriate packaging and handling requirements for hazardous materials based on such classification, and require an offeror to communicate the material's hazards through the use of shipping papers, package marking and labeling, and vehicle placarding. The HMR also require offerors to provide emergency response information applicable to the specific hazard or hazards of the material being transported. Further, the HMR mandate training for persons who prepare hazardous materials for shipment or who transport hazardous materials in commerce and require the development and implementation of plans to address security risks related to the transportation of certain types and quantities of hazardous materials in commerce, including additional planning requirements for transportation by rail (e.g., the routing of the material). The HMR also include operational requirements applicable to each mode of transportation. The Secretary has authority over all areas of railroad transportation safety (Federal railroad safety laws, principally 49 U.S.C. chapters 201-213), and delegates this authority to FRA. 49 CFR 1.89. FRA inspects and audits railroads, tank car facilities, and offerors for compliance with both FRA and PHMSA regulations. FRA also has an extensive, well-established research and development program to enhance all elements of railroad safety including hazardous materials transportation. As a result of the shared role in the safe and secure transportation of hazardous materials by rail, PHMSA and FRA work very closely when considering regulatory changes. Regarding rail safety and security, PHMSA and FRA take a system-wide, comprehensive approach consistent with the risks posed by the bulk transport of hazardous materials by rail. To address our concerns regarding the risks associated with mined liquids and gases (like crude oil), and HHFTs, we are focusing on three areas: (1) Proper classification and characterization; (2) operational controls to lessen the likelihood and consequences of accidents; and (3) improvements to tank car integrity. This approach is designed to minimize the occurrence of train accidents and mitigate the damage caused should an accident occur. As described throughout this NPRM, PHMSA and FRA have relied on a variety of regulatory and non-regulatory methods to address concerns regarding HHFTs. These efforts have included issuing guidance, initiating rulemakings, participating in transportation safety committees, holding public meetings with the regulated community and other stakeholders, enhancing enforcement efforts, reaching out to the public, and addressing tank car integrity and freight rail safety in general. All of these efforts have been consistent with our system safety approach. We are confident that collectively these actions have provided and will continue to provide valuable rail safety enhancements, information and guidance to the regulated community, and improve overall safety for the public. This overview section provides a general discussion of the current regulations that affect the safety of HHFTs. These issues include: (1) Proper classification and characterization of the hazardous materials offered for transportation; (2) packagings authorized for the materials transported in HHFTs; (3) the role of track integrity in preventing train accidents; (4) oil spill response plans; and (5) routing of trains based on an assessment of the safety and security risks along routes. A. Classification and Characterization of Mined Liquids and Gases The proper classification and characterization of a hazardous material is a key requirement under the HMR, as it dictates which other requirements apply, such as specific operational controls and proper packaging selection. Classification is simply ensuring the proper hazard class and packing group (if applicable) are assigned to a particular material. Characterization is a complete description of the properties of a material during the transportation cycle. Characterization includes the identification of the effects a material has on both the reliability and safety of the packaging that contains it. Proper classification and characterization is especially important when dealing with a material such as mined liquids and gases, including crude oil, as these materials' properties are variable. Crude oil's properties are not easily understood and the characterization may vary considerably based on time, location, method of extraction, temperature at time of extraction or processing, and the type and extent of processing of the material. In contrast, the classification and characterization of manufactured products is generally well understood and consistent. Under § 173.22 of the HMR, it is the offeror's responsibility to properly “class and describe the hazardous material in accordance with parts 172 and 173 of the HMR.” When a single material meets more than one hazard class, it must be classed based on the hazard precedence table in § 173.2a. Once an offeror determines the hazard class of a material, the offeror must then select the most appropriate proper shipping name from the § 172.101 Hazardous Materials Table (HMT). In the case of crude oil, relevant properties to properly classify a flammable liquid include: Flash point, and boiling point (See section 173.120). The HMR does not specifically provide requirements for characterization tests however; relevant properties that may affect the characterization of crude oil include corrosivity, vapor pressure, specific gravity at loading and reference temperatures, and the presence and concentration of specific compounds such as sulfur. Characterization of certain properties enables an offeror to select the most appropriate shipping name, and identify key packaging considerations. Based on the shipping name the HMT provides the list of packagings authorized for use by the HMR. As indicated in § 173.24(e), even though certain packagings are authorized, it is the responsibility of the offeror to ensure that such packagings are compatible with their lading. Such information and determination of the authorized packaging also ensure that the appropriate outage is maintained in accordance with § 173.24(a). Crude oil transported by rail is often derived from different sources and is then blended, complicating proper classification and characterization of the material. PHMSA and FRA audits of crude oil loading facilities, prior to the issuance of the February 26, 2014 Emergency Restriction/Prohibition Order, indicate that the classification of crude oil being transported by rail was often based solely on a generic Safety Data Sheet (SDS). The data on these sheets only provide a material classification and a range of material properties. This SDS information is typically provided by the consignee (the person to whom the shipment is to be delivered) to the offeror. In these instances, it is possible no validation of the crude oil properties took place. Further, FRA's audits indicate that SDS information is often not gleaned from any recently conducted analyses or from analyses of the many different sources (wells) of the crude oil. Improper classification and characterization can also impact operational requirements under the HMR. Offerors and carriers must ensure that outage is considered when loading a tank car. Section 173.24b(a) of the HMR prescribes the minimum tank car outage for hazardous materials at one percent at a reference temperature that is based on the existence of tank car insulation. A crude oil offeror must know the specific gravity of the hazardous material at the reference temperature as well as the temperature and specific gravity of the material at that temperature when loaded. This information is then used to calculate the total quantity that can be safely loaded into the car to comply with the one percent outage requirement. If the outage is not properly calculated because the material's specific gravity is unknown (or is provided as a range), the tank car could be loaded such that if the temperature increases during transportation, the tank will become shell-full, increasing the likelihood of a leak from the valve fittings or manway, and increase risk during a train accident. Since 2004, approximately 10 percent of the one-time movement approval (OTMA) requests that FRA has received under the requirements of 49 CFR 174.50 have been submitted to move overloaded tank cars. Of these requests, 33 percent were tank cars containing flammable liquids. FRA notes that tank cars overloaded by weight are typically identified when the tank cars go over a weigh-in-motion scale at a railroad's classification yard. As previously indicated, crude oil and ethanol are typically moved in HHFTs, and the cars in these trains are generally moved as a single block in a “through” priority or “key train.” 22 As a result, the train is not broken up in a classification yard for individual car routing purposes, and cars do not typically pass over weigh-in-motion scales in classification yards. Therefore, it is unlikely that FRA would receive many OTMA requests for overloaded tank cars containing crude oil, suggesting that there is a potential of underreporting. Overloads of general service flammable liquid tank cars should not be confused with any excess capacity issues. We do not have information that shippers are filling the excess capacity available to them. 22 On August 5, 2013, AAR published Circular No. OT-55-N. This document supersedes OT-55-M, issued October 1, 2012. The definition of a “key train” was revised to include “20 car loads or portable tank loads of any combination of hazardous material.” Therefore, the maximum speed of these trains is limited to 50 MPH. The document is available in the public docket for this proceeding and at the following URL: http://www.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf. Moreover, crude oil accounted for the most non-accident releases (NARs) 23 by commodity in 2012, nearly doubling the next highest commodity (alcohols not otherwise specified, which accounts for a comparable annual volume transported by rail). FRA's data indicate that 98 percent of the NARs involved loaded tank cars. Product releases through the top valves and fittings of tank cars when the hazardous material expands during transportation. This suggests that loading facilities may not know the specific gravity of the hazardous materials loaded into railroad tank cars, resulting in a lack of sufficient outage. 23 According to the AAR, a non-accident release (NAR) is the unintentional release of a hazardous material while in transportation, including loading and unloading while in railroad possession, which is not caused by a derailment, collision, or other rail-related accident. NARs consist of leaks, splashes, and other releases from improperly secured or defective valves, fittings, and tank shells and also include venting of non-atmospheric gases from safety release devices. Commenters to the ANPRM noted incidents involving damage to tank cars in crude oil service in the form of severe corrosion of the internal surface of the tank, manway covers, and valves and fittings. A possible cause is contamination of the crude oil by materials used in the fracturing process that are corrosive to the tank car tank and service equipment. Therefore, when crude oil is loaded into tank cars, it is critical that the existence and concentration of specific elements or compounds be identified, along with the corrosivity of the materials to the tank cars and service equipment. Proper identification also enables an offeror, in coordination with the tank car owner, to determine if there is a need for an interior coating or lining, alternative materials of construction for valves and fittings, and performance requirements for fluid sealing elements, such as gaskets and o-rings. These steps will help ensure the reliability of the tank car until the next qualification event. For the reasons outlined above, proper classification and characterization of hazardous materials is critical to ensuring that materials are packaged and transported safely. The HMR do not prescribe a specific test frequency for classification and characterization of hazardous materials. However, as provided in § 173.22, the regulations clearly intend for the frequency and type of testing to be based on an offeror's knowledge of the hazardous material, with specific consideration given to the volume of hazardous material shipped, the variety of the sources of the hazardous material, and the processes used to generate the hazardous material. Once an offeror has classified and characterized the material; selected the appropriate packaging; loaded the packaging; and marked, labeled, and placarded in accordance with the HMR, the offeror must “certify” the shipment. Section 172.204 of the HMR currently requires the offeror of the hazardous material to “certify that the material is offered for transportation in accordance with this subchapter.” Certification is a very important step in the transportation process. The certification indicates the HMR was followed and that all requirements have been met. The shipper's certification must include either of the following statements: This is to certify that the above-named materials are properly classified, described, packaged, marked and labeled, and are in proper condition for transportation according to the applicable regulations of the Department of Transportation. or— I hereby declare that the contents of this consignment are fully and accurately described above by the proper shipping name, and are classified, packaged, marked and labeled/placarded, and are in all respects in proper condition for transport according to applicable international and national governmental regulations. As such, ultimately, the offeror is responsible for certifying a correct classification, and while the HMR do not specifically prescribe a frequency for classification, it requires an offeror to consider each hazard class in accordance with the defined HMR test protocol. As previously discussed, improper classification and characterization can have serious ramifications that could impact transportation safety. On January 23, 2014, in response to its investigation of the Lac-Mégantic accident, the NTSB issued three recommendations to PHMSA and FRA. Safety Recommendation R-14-6 requested that PHMSA require shippers to sufficiently test and document the physical and chemical characteristics of hazardous materials to ensure the proper classification, packaging, and record-keeping of products offered in transportation. These and other NTSB Safety Recommendation and the corresponding PHMSA responses are discussed in further detail in Section C of the background portion of this document. B. Packaging For each proper shipping name, bulk packaging requirements are provided in Column (8C) of the HMT. For most flammable liquids, the authorized packaging requirements for a PG I material are provided in § 173.243 and for PGs II and III in § 173.242. The following table is provided as a general guide for the packaging options for rail transport provided by the HMR for a flammable and combustible liquids. 24 Additional information on tank car specifications is available at the following URL: http://www.bnsfhazmat.com/refdocs/1326686674.pdf. Table 7—Tank Car Options 24 Flammable liquid, PG I Flammable liquid, PG II and III Combustible Liquid DOT 103 DOT 103 DOT 103. DOT 104 DOT 104 DOT 104. DOT 105 DOT 105 DOT 105. DOT 109 DOT 109 DOT 109. DOT 111 DOT 111 DOT 111. DOT 112 DOT 112 DOT 112. DOT 114 DOT 114 DOT 114. DOT 115 DOT 115 DOT 115. DOT 120 DOT 120 DOT 120. AAR 206W AAR 206W. AAR 203W. AAR 211W. Note 1. Sections 173.241, 173.242, and 173.243 authorize the use of the above tank cars. Note 2. DOT 103, 104,105, 109, 112, 114, and 120 tank cars are pressure tank cars (HMR; Part 179, Subpart C). Note 3. DOT 111 and 115 tank cars are non-pressure tank cars (HMR; Part 179, Subpart D). Note 4. AAR 203W, AAR 206W, and AAR 211W tank cars are non-DOT specification tank cars that meet AAR standards. These tank cars are authorized under § 173.241 of the HMR (see Special Provision B1, as applicable). Note 5. DOT 114 and DOT 120 pressure cars are permitted to have bottom outlets and, generally, would be compatible with the DOT 111. The offeror must select a packaging that is suitable for the properties of the material and based on the packaging authorizations provided by the HMR. With regard to package selection, the HMR require in § 173.24(b) that each package used for the transportation of hazardous materials be “designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normally incident to transportation . . . there will be no identifiable (without the use of instruments) release of hazardous materials to the environment [and] . . . the effectiveness of the package will not be substantially reduced.” Under this requirement, offerors must consider how the properties of the material (which can vary depending on temperature and pressure) will affect the packaging. The DOT Specification 111 tank car is one of several cars authorized by the HMR for the rail transportation of many hazardous materials, including ethanol, crude oil and other flammable liquids. For summary of the design requirements of the DOT Specification 111 tank car see table 2 in the executive summary. Provided in table 8 below, are estimates of the types of tank car tanks and corresponding services. 25 Source: RSI presentation at the NTSB rail safety forum April 22, 2014, update provided on June 18, 2014. Table 8—Estimates for Current Fleet of Rail Tank Cars 25 Tank car category Population Total # of Tank Cars 334,869 Total # of DOT 111 272,119 Total # of DOT 111 in Flammable Liquid Service 80,500 Total # of CPC 1232 in Flammable Liquid Service 17,300 Total # of Tank Cars hauling Crude Oil 42,550 Total # of Tank Cars Hauling Ethanol 29,780 CPC 1232 (Jacketed) in Crude Oil Service 4,850 CPC 1232 (Jacketed) in Ethanol Service 0 CPC 1232 (Non-Jacketed) in Crude Oil Service 9,400 CPC 1232 (Non-Jacketed) in Ethanol Service 480 DOT 111 (Jacketed) in Crude Oil Service 5,500 DOT 111 (Jacketed) in Ethanol Service 100 DOT 111 (Non-Jacketed) in Crude Oil Service 22,800 DOT 111 (Non-Jacketed) in Ethanol Service 29,200 Rising demand for rail carriage of crude oil 26 and ethanol 27 increases the risk of train accidents involving those materials. Major train accidents often result in the release of hazardous materials. These events pose a significant danger to the public and the environment. FRA closely monitors train accidents involving hazardous materials and documents the damage sustained by all cars involved in the accident. 26 In 2013 there were approximately 400,000 originations of tank car loads of crude oil. In 2012, there were nearly 234,000 originations. In 2011 there were nearly 66,000 originations. In 2008 there were just 9,500 originations. Association of American Railroads, Moving Crude Petroleum by Rail, http://dot111.info/wp-content/uploads/2014/01/Crude-oil-by-rail.pdf (December 2013). 27 In 2011 there were nearly 341,000 originations of tank car loads of ethanol, up from 325,000 in 2010. In 2000 there were just 40,000 originations. Association of American Railroads, Railroads and Ethanol, https://www.aar.org/keyissues/Documents/Background-Papers/Railroads%20and%20Ethanol.pdf. (April 2013). In published findings from the June 19, 2009, incident in Cherry Valley, Illinois, the NTSB indicated that the DOT Specification 111 tank car can almost always be expected to breach in the event of a train accident resulting in car-to-car impacts or pileups. 28 In addition, PHMSA received numerous petitions encouraging rulemaking and both FRA and PHMSA received letters from members of Congress in both parties urging prompt, responsive actions from the Department. The Association of American Railroads (AAR) created the T87.6 Task Force to consider several enhancements to the DOT Specification 111 tank car design and rail carrier operations to enhance rail transportation safety. Simultaneously, FRA conducted research on long-standing safety concerns regarding the survivability of the DOT Specification 111 tank cars designed to current HMR standards and used for the transportation of ethanol and crude oil, focusing on issues such as puncture resistance and top fittings protection. The research indicated that special consideration is necessary for the transportation of ethanol and crude oil in DOT Specification 111 tank cars, especially in HHFTs. 28 National Transportation Safety Board, Railroad Accident Report—Derailment of CN Freight Train U70691-18 With Subsequent Hazardous Materials Release and Fire, http://www.ntsb.gov/doclib/reports/2012/RAR1201.pdf (February 2012). In addition, PHMSA and FRA reviewed the regulatory history pertaining to flammable liquids transported in tank cars. Prior to 1990, the distinction between authorized packaging, for flammable liquids in particular, was described in far more detail in § 173.119. Section 173.119 indicated that the packaging requirements for flammable liquids are based on a combination of flash point, boiling point, and vapor pressure. The regulations provided a point at which a flammable liquid had to be transported in a tank car suitable for compressed gases, commonly referred to as a “pressure car” (e.g., DOT Specifications 105, 112, 114 tank cars). On December 21, 1990, the Research and Special Programs Administration (RSPA), PHMSA's predecessor agency, published a final rule (Docket HM-181; 55 FR 52402), that comprehensively revised the HMR with regard to hazard communication, classification, and packaging requirements based on the United Nations (UN) Recommendations on the Transport of Dangerous Goods (UN Recommendations). Under Docket HM-181, RSPA aimed to simplify and streamline the HMR by aligning with international standards and implementing performance-oriented packaging standards. As previously stated, § 173.119 specified that the packaging requirements for flammable liquids are based on a combination of flash point, boiling point, and vapor pressure. Section 173.119(f) specified that flammable liquids with a vapor pressure more than 27 pounds per square inch absolute (psia) but less than 40 psia at 100 °F (at 40 psia, the material met the definition of a compressed gas), were only authorized for transportation in certain pressure cars. The older regulations recognized that flammable liquids exhibiting high vapor pressures, such as those liquids with dissolved gases, posed significant risks and required a more robust packaging. The packaging authorizations are currently indicated in the HMT and part 173, subpart F. DOT Specification 111 tank cars are authorized for low, medium and high-hazard liquids and solids (equivalent to Packing Groups III, II, I, respectively). Packing groups are designed to assign a degree of danger presented within a particular hazard class. Packing Group I poses the highest danger (“great danger”) and Packing Group III the lowest (“minor danger”). 29 In addition, the general packaging requirements prescribed in § 173.24 provide additional consideration for selecting the most appropriate packaging from the list of authorized packaging identified in column (8) of the HMT. 29 Packing groups, in addition in indicating risk of the material, can trigger levels of varying requirements. For example packing groups can indicate differing levels of testing requirements for a non-bulk packaging such or the need for additional operational requirements such as security planning requirements. In 2011, the AAR issued Casualty Prevention Circular (CPC) 1232, which outlines industry requirements for certain DOT Specification 111 tanks ordered after October 1, 2011, intended for use in ethanol and crude oil service (construction approved by FRA on January 25, 2011—see the Background below for information regarding a detailed description of PHMSA and FRA actions to allow construction under CPC-1232). Key tank car requirements contained in CPC-1232 include the following: • PG I and II material tank cars to be constructed to AAR Standard 286; 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 (GRL) Cars (AAR Standard 286); • Head and shell thickness must be 1/2 inch for TC-128B non jacketed cars and 7/16 inch for jacketed cars; • Shells of non-jacketed tank cars constructed of A5l6-70 must be 9/16 inch thick; • Shells of jacketed tank cars constructed of A5l6-70 must be 1/2 inch thick; • New cars must be equipped with at least 1/2 inch half-head shields; • Heads and the shells must be constructed of normalized steel; • Top fittings must be protected by a protective structure as tall as the tallest fitting; and • A reclosing pressure relief valve must be installed. The CPC-1232 requirements are intended to improve the crashworthiness of the tank cars and include a thicker shell, head protection, top fittings protection, and relief valves with a greater flow capacity. C. Track Integrity and the Safety of Freight Railroad Operations Train accidents are often the culmination of a sequence of events that are influenced by a variety of factors and conditions. Broken rails or welds, track geometry, and human factors such as improper use of switches are leading causes of derailments. For example, one study found that broken rails or welds resulted in approximately 670 derailments between 2001 and 2010, which far exceed the average of 89 derailments for all other causes. 30 Rail defects have caused major accidents involving HHFTs, including accidents New Brighton, PA and Arcadia, OH. 30 See “Analysis of Causes of Major Train Derailment and Their Effect on Accident Rates” http://ict.illinois.edu/railroad/CEE/pdf/Journal%20Papers/2012/Liu%20et%20al%202012.pdf. PHMSA and FRA have a shared responsibility for regulating the transportation of hazardous materials by rail and take a system-wide, comprehensive approach to the risks posed by the bulk transport of hazardous materials by rail. This approach includes both preventative and mitigating measures. In this rulemaking PHMSA is proposing amendments to directly address the safe transportation of HHFTs. The focus of this NPRM is on mitigating the damages of train accidents, but the speed restriction, braking system and routing provisions could also prevent train accidents. This NPRM does not directly address regulations governing the inspection and maintenance of track. PHMSA and FRA find that existing regulations and on-going rulemaking efforts—together with this NPRM's proposals for speed, braking, and routing—sufficiently address safety issues involving rail defects and human factors. Specifically, the expansion of routing analysis to include HHFTs would require consideration of the 27 safety and security factors (See table 10). These factors include track type, class, and maintenance schedule (which would address rail defects) as well as training and skill level of crews (which would address human factors). Pursuant to its statutory authority, FRA promulgates railroad safety regulations (49 CFR subtitle B, chapter II (parts 200-299)) and orders, enforces those regulations and orders as well as the HMR and the Federal railroad safety laws, and conducts a comprehensive railroad safety program. FRA's regulations promulgated for the safety of railroad operations involving the movement of freight address: (1) Railroad track; (2) signal and train control systems; (3) operating practices; (4) railroad communications; (5) rolling stock; (6) rear-end marking devices; (7) safety glazing; (8) railroad accident/incident reporting; (9) locational requirements for the dispatch of U.S. rail operations; (10) safety integration plans governing railroad consolidations, mergers, and acquisitions of control; (11) alcohol and drug testing; (12) locomotive engineer and conductor certification; (13) workplace safety; (14) highway-rail grade crossing safety; and other subjects. The FRA has many initiatives underway to address freight rail safety. Key regulatory actions are outlined below: • Risk Reduction Program (2130-AC11)-FRA is developing an NPRM that will consider appropriate contents for Risk Reduction Programs by Class I freight railroads and how they should be implemented and reviewed by FRA. A Risk Reduction Program is a structured program with proactive processes and procedures developed and implemented by a railroad to identify hazards and to mitigate, if not eliminate, the risks associated with those hazards on its system. A Risk Reduction Program encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what action to take to mitigate or eliminate the associated risks. The ANPRM was published on December 8, 2010, and the comment period ended on February 7, 2011. • Track Safety Standards: Improving Rail Integrity (2130-AC28)—FRA published this rule on January 24, 2014 (79 FR 4234). FRA's final rule prescribes specific requirements for effective rail inspection frequencies, rail flaw remedial actions, minimum operator qualifications, and requirements for rail inspection records. The bulk of this regulation codified the industry's current good practices. In addition, it removes the regulatory requirements concerning joint bar fracture reporting. Section 403(c) of the Rail Safety Improvement Act of 2008 (RSIA) (Pub. L. 110-432, 122 Stat. 4848 (October 16, 2008)) (49 U.S.C. 20142 note)) mandated that FRA review its existing regulations to determine if regulatory amendments should be developed that would revise, for example, rail inspection frequencies and methods and rail defect remedial actions and consider rail inspection processes and technologies. The final rule became effective on March 25, 2014. PHMSA and FRA seek public comment on the extent to which additional changes to track integrity regulations are justified for HHFT routes. When commenting, please include a specific proposal, explain the reason for any recommended change, and include the source, methodology, and key assumptions of any supporting evidence. • Positive Train Control (PTC) (multiple rulemakings) —PTC is a processor-based/communication-based train control system designed to prevent train accidents. The RSIA mandates that PTC be implemented across a significant portion of the Nation's rail system by December 31, 2015. See 49 U.S.C. 20157. PTC may be voluntarily developed and implemented by a railroad following the requirements of 49 CFR part 236, Subpart H, Standards for Processor-Based Signal and Train Control Systems; or, may be, as mandated by the RSIA, developed and implemented by a railroad following the requirements of 49 CFR part 236, Subpart I, Positive Train Control Systems. With limited exceptions and exclusions, PTC is required to be installed and implemented on Class I railroad main lines (i.e., lines with over 5 million gross tons annually) over which any poisonous- or toxic-by-inhalation (PIH/TIH) hazardous materials are transported; and, on any railroad's main lines over which regularly scheduled passenger intercity or commuter operations are conducted. It is currently estimated this will equate to approximately 70,000 miles of track and will involve approximately 20,000 locomotives. PTC technology is capable of automatically controlling train speeds and movements should a train operator fail to take appropriate action for the conditions at hand. For example, PTC can force a train to a stop before it passes a signal displaying a stop indication, or before diverging on a switch improperly lined, thereby averting a potential collision. PTC systems required to comply with the requirements of Subpart I must reliably and functionally prevent: • Train-to-train collisions; • Overspeed derailments; • Incursion into an established work zone; and • Movement through a main line switch in the improper position. D. Oil Spill Response Plans PHMSA's regulations (49 CFR part 130) prescribe prevention, containment and response planning requirements of the Department of Transportation applicable to transportation of oil 31 by motor vehicles and rolling stock. The purpose of a response plan is to ensure that personnel are trained and available and equipment is in place to respond to an oil spill, and that procedures are established before a spill occurs, so that required notifications and appropriate response actions will follow quickly when there is a spill. We believe that most, if not all, of the rail community transporting oil, including crude oil transported as a hazardous material, is subject to the basic response plan requirement of 49 CFR 130.31(a) based on the understanding that most, if not all, rail tank cars being used to transport crude oil have a capacity greater than 3,500 gallons. However, a comprehensive response plan for shipment of oil is only required when the oil is in a quantity greater than 42,000 gallons per package. Tank cars of this size are not used to transport oil. As a result, the railroads do not file a comprehensive oil response plan. A comparison of a basic and comprehensive plan can be seen below in Table 9. The shaded rows of the table indicate requirements that are not part of the basic plan but would be included in the comprehensive plan. 31 For purposes of 49 CFR part 130, oil means oil of any kind or in any form, including, but not limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with the wastes other than dredged spoil. 49 CFR 130.5. This includes non-petroleum oil such as animal fat, vegetable oil, or other non-petroleum oil. Table 9—Comparison of Basic and Comprehensive Spill Plans by Requirement Category Requirement Type of plan Basic Comprehensive Preparation Sets forth the manner of response to a discharge. Yes Yes. Preparation Accounts for the maximum potential discharge of the packaging. Yes Yes. Personnel/Equipment Identifies private personnel and equipment available for response. Yes Yes. Personnel/Coordination Identifies appropriate persons and agencies (including telephone numbers) to be contacted, including the NRC Yes Yes. Documentation Is kept on file at the principal place of business and at the dispatcher's office Yes Yes. Coordination Reflects the requirements of the National Contingency Plan (40 CFR Part 300) and Area Contingency Plans No Yes. Personnel/Coordination Identified the qualified individual with full authority to implement removal actions, and requires immediate communications between the individual and the appropriate Federal official and the persons providing spill response personnel and equipment No Yes. Personnel/Equipment/Coordination Identifies and ensures by contract or other means the availability of private personnel, and the equipment necessary to remove, to the maximum extent practicable, a worst-case discharge (including that resulting from fire or explosion) and to mitigate or prevent a substantial threat of such a discharge No Yes. Training Describes the training, equipment, testing, periodic unannounced drills, and response actions of personnel, to be carried out under the plan to ensure safety and to mitigate or prevent discharge or the substantial threat of such a discharge No Yes. Documentation Is submitted (and resubmitted in the event of a significant change), to the Administrator of FRA No Yes. E. Rail Routing For some time, there has been considerable public and Congressional interest in the safe and secure rail routing of security-sensitive hazardous materials (such as chlorine and anhydrous ammonia). The Implementing Recommendations of the 9/11 Commission Act of 2007 directed the Secretary, in consultation with the Secretary of Homeland Security, to publish a rule governing the rail routing of security-sensitive hazardous materials. On December 21, 2006, PHMSA, in coordination with FRA and the Transportation Security Administration (TSA) of the U.S. Department of Homeland Security (DHS), published an NPRM under Docket HM-232E (71 FR 76834), which proposed to revise the current requirements in the HMR applicable to the safe and secure transportation of hazardous materials by rail. Specifically, we proposed to require rail carriers to compile annual data on specified shipments of hazardous materials, use the data to analyze safety and security risks along rail routes where those materials are transported, assess alternative routing options, and make routing decisions based on those assessments. In that NPRM, we solicited comments on whether the proposed requirements should also apply to flammable gases, flammable liquids, or other materials that could be weaponized, as well as hazardous materials that could cause serious environmental damage if released into rivers or lakes. Commenters who addressed this issue indicated that rail shipments of Division 1.1, 1.2, and 1.3 explosives; PIH materials; and highway-route controlled quantities of radioactive materials pose significant rail safety and security risks warranting the enhanced security measures proposed in the NPRM and adopted in a November 26, 2008 final rule (73 FR 20752). Commenters generally did not support enhanced security measures for a broader list of materials than were proposed in the NPRM. The City of Las Vegas, Nevada, did support expanding the list of materials for which enhanced security measures are required to include flammable liquids; flammable gases; certain oxidizers; certain organic peroxides; and 5,000 pounds or greater of pyrophoric materials. While DOT and DHS agreed that these materials pose certain safety and security risks in rail transportation, the risks were not as great as those posed by the explosive, PIH, and radioactive materials specified in the NPRM, and PHMSA was not persuaded that they warranted the additional safety and security measures. PHMSA did note, however, that DOT, in consultation with DHS, would continue to evaluate the transportation safety and security risks posed by all types of hazardous materials and the effectiveness of our regulations in addressing those risks and would consider revising specific requirements as necessary. The 2008 final rule requires rail carriers to select a practicable route posing the least overall safety and security risk to transport security-sensitive hazardous materials (73 FR 72182). The final rule implemented regulations requiring rail carriers to compile annual data on certain shipments of explosive, toxic by inhalation, and radioactive materials; use the data to analyze safety and security risks along rail routes where those materials are transported; assess alternative routing options; and make routing decisions based on those assessments. In accordance with § 172.820(e), the carrier must select the route posing the least overall safety and security risk. The carrier must retain in writing all route review and selection decision documentation. Additionally, the rail carrier must identify a point of contact on routing issues involving the movement of covered materials and provide the contact information to the following: 1. State and/or regional Fusion Centers that have been established to coordinate with state, local, and tribal officials on security issues and which are located within the area encompassed by the rail carrier's rail system; 32 and 32 http://www.dhs.gov/fusion-center-locations-and-contact-information. 2. State, local, and tribal officials in jurisdictions that may be affected by a rail carrier's routing decisions and who have contacted the carrier regarding routing decisions. Rail carriers must assess available routes using, at a minimum, the 27 factors listed in Appendix D to Part 172 of the HMR to determine the safest, most secure routes for security-sensitive hazardous materials. Table 10—Factors To Be Considered in the Performance of This Safety and Security Risk Analysis Volume of hazardous material transported Rail traffic density Trip length for route. Presence and characteristics of railroad facilities Track type, class, and maintenance schedule Track grade and curvature. Presence or absence of signals and train control systems along the route (“dark” versus signaled territory) Presence or absence of wayside hazard detectors Number and types of grade crossings. Single versus double track territory Frequency and location of track turnouts Proximity to iconic targets. Environmentally sensitive or significant areas Population density along the route Venues along the route (stations, events, places of congregation). Emergency response capability along the route Areas of high consequence along the route, including high consequence targets Presence of passenger traffic along route (shared track). Speed of train operations Proximity to en-route storage or repair facilities Known threats, including any threat scenarios provided by the DHS or the DOT for carrier use in the development of the route assessment. Measures in place to address apparent safety and security risks Availability of practicable alternative routes Past accidents. Overall times in transit Training and skill level of crews Impact on rail network traffic and congestion. These factors address safety and security issues, such as the condition of the track and supporting infrastructure; the presence or absence of signals; past incidents; population density along the route; environmentally-sensitive or significant areas; venues along the route (stations, events, places of congregation); emergency response capability along the route; measures and countermeasures already in place to address apparent safety and security risks; and proximity to iconic targets. The HMR require carriers to make conscientious efforts to develop logical and defendable systems using these factors. FRA enforces the routing requirements in the HMR and is authorized, after consulting with PHMSA, TSA, and the Surface Transportation Board, to require a railroad to use an alternative route other than the route selected by the railroad if it is determined that the railroad's route selection documentation and underlying analysis are deficient and fail to establish that the route chosen poses the least overall safety and security risk based on the information available (49 CFR 209.501). On January 23, 2014, in response to its investigation of the Lac-Mégantic accident, the NTSB issued three recommendations to both PHMSA and FRA. Recommendation R-14-4 requested PHMSA work with FRA to expand hazardous materials route planning and selection requirements for railroads to include key trains transporting flammable liquids as defined by the AAR Circular No. OT-55-N and, where technically feasible, require rerouting to avoid transportation of such hazardous materials through populated and other sensitive areas. III. Recent Actions Addressing HHFT Risk PHMSA and FRA have used a variety of regulatory and non-regulatory methods to address the risks of the bulk transport of flammable liquids, including crude oil and ethanol, by rail in HHFTs. These efforts include issuing guidance, conducting rulemakings, participating in rail safety committees, holding public meetings with the regulated community, enhancing enforcement efforts, and reaching out to the public. All of these efforts are consistent with our system-wide approach. We are confident these actions provide valuable information and guidance to the regulated community and enhance public safety. In the following, we discuss in detail these efforts and the NTSB recommendations related to HHFTs. A. Regulatory Actions On May 14, 2010, PHMSA published a final rule under Docket HM-233A (75 FR 27205) that amended the HMR by incorporating provisions contained in certain widely used or longstanding special permits having an established safety record. As part of this rulemaking, PHMSA authorized certain rail tank cars, transporting hazardous materials, to exceed the gross weight on rail limitation of 263,000 pounds (263,000 lb. GRL) upon approval of FRA. On January 25, 2011, FRA published a Federal Register notice of FRA's approval (76 FR 4250) pursuant to PHMSA's May 14, 2010 final rule. The notice established detailed conditions for the manufacturing and operation of certain tank cars in hazardous materials service, including the DOT-111, that weigh between 263,000 and 286,000 pounds. Taken as a whole, the PHMSA rulemaking and the FRA notice serves as the mechanism for tank car manufacturers to build a 286,000-pound tank car. As such, rail car manufacturers currently have the authority to manufacture the enhanced DOT Specification 111 tank car (e.g., CPC-1232 tank car outlined in “II. Overview of Current Regulations Relevant to this Proposal”) under the conditions outlined, in the January 25, 2011 notice. The notice grants a blanket approval for tank cars to carry up to 286,000 lb. GRL, when carrying non-PIH materials, subject to certain requirements. FRA divided these additional requirements into the following three categories: 1. Existing tank cars that were authorized under a PHMSA special permit for greater than 263,000 lb. GRL, FRA's approval requires the following: a. Compliance with various terms of the existing special permits; b. Tank cars constructed, rebuilt, or modified to meet AAR Standard S-259 33 must be operated only in controlled interchange; 33 Both S-259 and S-286 are mechanical (underframes, trucks, wheels, axles, brake system, draft system, a car body fatigue) design requirements for operation of tank cars at a gross rail load of 286,000 pounds. S-259 preceded S-286. c. Tank cars constructed, rebuilt, or modified to meet AAR Standard S-286 may operate in unrestricted interchange; and d. Tank car owners must determine which standard applies, ensure tank cars are marked appropriately, and maintain and file associated records. 2. Tank cars that have been built, rebuilt, or otherwise modified pursuant to AAR Standards S-259 or S-286 for greater than 263,000 pounds gross weight on rail, but are not authorized under a PHMSA special permit, FRA's approval requires the following: a. Tank cars constructed, rebuilt, or modified to meet AAR Standard S-259 must be operated only in controlled interchange; b. Tank cars constructed, rebuilt, or modified to meet AAR Standard S-286 may operate in unrestricted interchange; c. Tank cars must satisfy design specifications listed in the notice, including materials of construction, thickness, and jacketing; and d. Tank car owners must determine which standard and additional specification requirements apply, ensure tank cars are marked appropriately, and maintain and file associated records. 3. New tank cars, manufactured after the notice was published, to carry more than 263,000 pounds gross weight on rail, FRA's approval requires the following: a. Tank cars must be constructed in accordance with AAR Standard S-286; and b. Tank cars must satisfy design specifications listed in the notice, including puncture resistance and service equipment. Any manufacturer choosing to design a car that does not meet the conditions of FRA's 2011 approval must request a new approval from FRA in accordance with § 179.13 of the HMR. Following the publication of the PHMSA rule and the subsequent FRA approval notice, PHMSA received a petition for rulemaking (P-1577) from the AAR on March 9, 2011, requesting changes to PHMSA's specifications for tank cars (namely the DOT Specification 111 tank car) used to transport PG I and II materials. DOT recognized the improvements of the P-1577 tank car relative to the DOT Specification 111 tank car, but challenged the industry to consider additional improvements in puncture resistance, thermal protection, top fitting protection, bottom outlet protection, and braking, as well as railroad operations. As a result, the AAR Tank Car Committee (TCC) constituted the T87.6 Task Force. The task force was charged with (1) reevaluating the standards in P-1577 and considering additional design enhancements for tank cars used to transport crude oil, ethanol and ethanol/gasoline mixtures as well as (2) considering operating requirements to reduce the risk of train accidents involving tank cars carrying crude oil classified as PG I and II, and ethanol. FRA chaired this task force and expected the activity would lead to a more comprehensive approach than requested by P-1577. The task force promised to address the root cause, severity, and consequences of train accidents, and its recommendations were finalized on March 1, 2012. The T87.6 Task Force recommended requirements for a pressure relief device with a start of discharge setting of 75 psig, and a minimum flow capacity of 27,000 SCFM. The task force did not address many of the recommendations provided by FRA, including the following: Tank car design and use: • Thermal protection to address breaches attributable to exposure to fire conditions; • Roll-over protection to prevent damage to top and bottom fittings and limit stresses transferred from the protection device to the tank shell; • Hinged and bolted manways to address a common cause of leakage during accidents and Non-Accident Releases (NARs); • Bottom outlet valve elimination; and • Increasing outage from 1 percent to 2 percent to improve puncture resistance. Rail Carrier Operations: • Rail integrity (e.g., broken rails or welds, misaligned track, obstructions, track geometry, etc.) to reduce the number and severity of train accidents; • Alternative brake signal propagation systems ECP, DP, and two-way EOT device to reduce the number of cars and energy associated with train accidents; • Speed restrictions for key trains containing 20 or more loaded tank cars (on August 5, 2013, AAR issued Circular No. OT-55-N addressing this issue); and • Emergency response to mitigate the risks faced by response and salvage personnel, the impact on the environment, and delays to traffic on the line. After considering the disparity between the various stakeholders and the lack of actionable items by the task force, PHMSA and FRA initiated the development of an ANPRM to consider revisions to the HMR by improving the crashworthiness of railroad tank cars and improve operations. The ANPRM would respond to petitions for rulemaking submitted by industry and safety recommendations issued by the NTSB. Between April 2012 and October 2012, PHMSA received an additional three petitions (P-1587, P-1595 and P-1612) and one modification of a petition (P-1612) on rail safety issues. The additional petitions were submitted by concerned communities and various industry associations requesting further modification to the tank car standards. On September 6, 2013, PHMSA published the ANPRM (78 FR 54849) seeking public comments on whether issues raised in eight petitions 34 and four NTSB Safety Recommendations would enhance safety, revise, and clarify the HMR with regard to rail transport. Specifically, we requested comments on important amendments that would do the following: (1) Enhance the standards for DOT Specification 111 tank cars used to transport PG I and II flammable liquids; (2) explore the feasibility of additional operational requirements to enhance the safe transportation of Packing Group I and II flammable liquids; (3) afford FRA greater discretion to authorize the movement of non-conforming tank cars; (4) correct regulations that allow an unsafe condition associated with pressure relief valves (PRV) on rail cars transporting carbon dioxide, refrigerated liquid; (5) revise outdated regulations applicable to the repair and maintenance of DOT Specification 110, DOT Specification 106, and ICC 27 tank car tanks (ton tanks); and (6) except rupture discs from removal if the inspection itself would damage, change, or alter the intended operation of the device. 34 In addition to the four tank car related petitions, PHMSA also received four additional petitions relating to rail operational requirements which were contained in the September 2013 ANPRM. On November 5, 2013, PHMSA published a 30-day extension of the comment period for the ANPRM (78 FR 66326). We received a request to extend the comment period to 90 days from the Sierra Club on behalf of Climate Parents, Columbia Riverkeeper, ForestEthics, Friends of Earth, Natural Resources Defense Council, Oil Change International, San Francisco Baykeeper, Spokane Riverkeeper, Washington Environmental Council, and the Waterkeeper Alliance. The request indicated that the primary basis for extension was to allow the public a meaningful review of these proposed changes in rail safety requirements, especially regarding tank cars transporting crude oil and tar sands, while highlighting several recent tank car train accidents. The request also indicated that the government shutdown in October 2013 prevented communication with DOT staff for review of the technical proposals during the initial 60-day comment period. Although PHMSA normally considers an initial 60-day comment period sufficient time to review and respond to rulemaking proposals, due to PHMSA's desire to collect meaningful input from a number of potentially affected stakeholders, PHMSA extended the comment period by 30 days. Comments submitted in response to the ANPRM indicate that public interest in the issues raised by the ANPRM is significant. PHMSA received over 100 individual submissions of comments, including the signatures of over 152,000 stakeholders, expressing views regarding tank car and operational standards for flammable liquids. The comments were from local communities, cities, and towns; rail carriers; offerors; suppliers of equipment; tank car manufacturers; environmental groups; NTSB; and the U.S. Congress. PHMSA reviewed the public comments and used the information gathered to aid in the development of this proposed rule. B. Emergency Orders and Non-Regulatory Actions In addition to the rulemaking activity described above, FRA took action, in the form of an emergency order, following the Lac-Mégantic derailment. On August 7, 2013, FRA published EO 28 (78 FR 48218) to address safety issues related to securement of certain hazardous materials trains; specifically, trains with— (1) Five or more tank carloads of any one or any combination of materials poisonous by inhalation as defined in Title 49 CFR 171.8, and including anhydrous ammonia (UN1005) and ammonia solutions (UN3318); or (2) 20 rail carloads or intermodal portable tank loads of any one or any combination of materials listed in (1) above, or, any Division 2.1 flammable gas, Class 3 flammable liquid or combustible liquid, Class 1.1 or 1.2 explosive, 35 or hazardous substance listed in 49 CFR 173.31(f)(2). 35 Should have read “Division” instead of “Class.” EO 28 prohibits railroads from leaving trains or vehicles transporting the specified quantities of the specified types of hazardous materials unattended on mainline track or siding outside of a yard or terminal unless the railroad adopts and complies with a plan that provides sufficient justification for leaving them unattended under specific circumstances and locations. The order also requires railroads to develop specific processes for securing, communicating, and documenting the securement of unattended trains and vehicles subject to the Order, including locking the controlling locomotive cab door or removing the reverser and setting a sufficient number of hand brakes before leaving the equipment unattended. In addition, the order requires railroads to review, verify, and adjust as necessary existing requirements and instructions related to the number of hand brakes to be set on unattended trains; conduct train securement job briefings among crewmembers and employees; and develop procedures to ensure qualified employees inspect equipment for proper securement after emergency response actions that involve the equipment. The quantities of specific hazardous materials addressed in EO 28 were further addressed under the AAR Circular No. OT-55-N, Recommended Railroad Operating Practices for Transportation of Hazardous Materials, effective August 5, 2013. 36 AAR Circular No. OT-55-N supersedes AAR Circular No. OT-55-M, issued October 1, 2012. In OT-55-N, AAR revised the definition of “key train” in two specific areas. 36 The document is available in the public docket for this proceeding and at the following URL: http://www.aar.com/CPC-1258%20OT-55-N%208-5-13.pdf. (1) The definition of “key train” was revised from “five tank carloads of Poison or Toxic Inhalation Hazard (PIH or TIH) (Hazard Zone A, B, C, or D), anhydrous ammonia (UN1005), or ammonia solutions (UN3318)” to one tank carload. (2) The “key train” definition was amended by adding “20 carloads or portable tank loads of any combination of hazardous material.” Any train that meets the “key train” definition is limited to a 50-mph speed restriction under AAR Circular No. OT-55-N. In addition, any route defined by a railroad as a key route shall meet certain standards described in OT-55-N, including the following: • Wayside defective wheel bearing detectors at a maximum of 40 miles apart, or an equivalent level of protection; • Main track on key routes should be inspected by rail defect detection and track geometry inspection cars or by any equivalent level of inspection at least twice each year; • Sidings on key routes should be inspected at least once a year, and main track and sidings should have periodic track inspections to identify cracks or breaks in joint bars; and • Track used for meeting and passing key trains should be FRA Class 2 track or higher. As previously discussed, EO 28 prohibits railroads from leaving trains or vehicles transporting the specified hazardous materials unattended on mainline track or siding outside of a yard or terminal unless the railroad adopts and complies with a plan that provides sufficient justification for leaving them unattended under specific circumstances and locations. EO 28 was supplemented with a PHMSA and FRA joint safety advisory published the same day (78 FR 48224). The joint safety advisory addressed causes of the Lac-Mégantic derailment, provided DOT safety and security recommendations, and announced PHMSA and FRA participation in an Emergency RSAC meeting to address rail safety concerns. On August 27-28, 2013, PHMSA and FRA held a public meeting to review the requirements in the HMR applicable to rail operations (78 FR 42998). PHMSA and FRA conducted this meeting as part of a comprehensive review of operational factors that impact the safety of the transportation of hazardous materials by rail. This meeting provided the opportunity for public input on a wide range of rail safety requirements including operational rail requirements. PHMSA and FRA reviewed the transcript and public comments, all of which support a comprehensive review of these requirements. Additional information gathered from the public meeting, particularly regarding the modernization of Part 174 of the HMR, will be addressed in a future rulemaking. On August 29, 2013, FRA convened an emergency meeting to initiate a series of RSAC working groups to discuss and work through specific tasks resulting from the Lac-Mégantic derailment. RSAC members discussed the formulation of task statements regarding appropriate train crew size, hazard classes, and quantities of hazardous materials that should trigger additional operating procedures, including attendance and securement requirements. On April 9, 2014 RSAC approved by a majority vote the Hazardous Materials Working Group's consensus recommendations. 37 Table 11 provides the RSAC recommendations. 37 https://rsac.fra.dot.gov/meetings/Railroad%20Safety%20Advisory%20Committee%20Hazardous%20Materials%20Issues%20Recommendation%20VOTE.pdf. Table 11—RSAC Consensus Recommendations From the Hazardous Materials Issues Working Group Subject Recommendation Definition of residue Propose to amend the definition of Residue as follows: Residue means the hazardous material remaining in a packaging, including a tank car, after its contents have been unloaded to the maximum extent practicable and before the packaging is either refilled or cleaned of hazardous material and purged to remove any hazardous vapors. The extent practicable means an unloading facility has unloaded a bulk package using properly functioning service equipment and plant process equipment. Guidance document language for securement of tank cars on private track Proposed wording for a recommended practice document. Securement and security of loaded hazardous materials cars on private track: “It has come to FRA's attention that cuts of loaded hazardous materials cars are being stored on track that is exclusively leased, and meets the definition of private track, but that may not be adjacent to a shipper or consignee facility. These stored cars are of great concern to the general public living in nearby communities. The cars are being stored in other locations simply for available space reasons—there isn't available storage space closer to a consignee facility. If the cars are stored on track that meets the definition of “private track” they are considered to be no longer in transportation, and the hazardous materials regulations do not apply. Nonetheless, FRA strongly recommends the following as best practices that may enhance the safety and security of stored hazardous materials cars.” “FRA recommends that companies (party in control of private track as defined in § 171.8) review the private track locations where cuts of hazardous materials cars (20 or more cars) are regularly stored to determine the following: 1. Whether additional attendance, monitoring, or other security measures may be appropriate; 2. Whether an adequate and appropriate number of handbrakes are set on the cuts of cars that will ensure that there is no unintended movement of the cars; 3. Whether all of the hazard communication information (placards, emergency response information) be maintained as they would if the cars were in transportation, and that this information may be available to emergency responders if requested.” PHMSA re-engage their regulatory authority over certain aspects of loading, unloading and storage of tank cars containing hazardous materials In 2003, the Research and Special Programs Administration (RSPA), the predecessor agency to PHMSA, clarified its regulatory jurisdiction over the loading, unloading, and storage of hazardous materials. 68 Fed. Reg. 61906 (October 30, 2003). The intent was to clarify where transportation began and ended, and thus, where PHMSA jurisdiction began and ended. In the rail mode, certain aspects of the storage, loading, and unloading of hazardous materials to and from rail tank cars were no longer regulated, and those requirements were removed from the CFR. The thought was that the loading, unloading, and storage were more appropriately workplace issues better addressed by an agency such as OSHA. PHMSA continued to regulate certain “pre-transportation functions” that it believed were clearly tied to transportation safety, such as the securement of closures on rail tank cars after loading but before offering the package to a carrier. This proposal is not intended to change the current regulation of OSHA over workplace safety issues related to loading, unloading, and storage of railroad tank cars. As certain industries that ship hazardous materials by rail have evolved, and as some loading, unloading, storage, and transportation practices have changed, DOT believes it may be appropriate to re-engage on these subjects. DOT believes that there may be aspects of these procedures that directly affect transportation safety, and that it would be appropriate for to regulate them. Align definition of Appendix A train with “Key Train” from OT-55-N Appendix A to Emergency Order 28 Any train transporting: 1. One or more tank car loads of materials poisonous by inhalation as defined in 49 CFR 171.8, and including anhydrous ammonia (UN 1005) and ammonia solutions (UN 3318); or 2. 20 or more rail car loads or intermodal portable tank loads of any material listed in (1) above, or bulk car loads Division 2.1 flammable gases, Class 3 flammable liquids, or hazardous substances listed in 49 CFR 173.31(f)(2); or rail car loads of packages of Division 1.1 or 1.2 explosives. PHMSA solicits information and comment on any alternate approaches that may be contained in or considered as part of any recommendation from the RSAC to FRA regarding the proposals in this NPRM. FRA and PHMSA are active participants and observers of the AAR Tank Car Committee. This committee is comprised of the AAR, railroads, tank car owners, manufacturers, and shippers, with active participation from U.S. and Canadian regulators. The AAR Tank Car Committee works together to develop technical standards for how tank cars, including those used to transport hazardous materials, are designed and constructed. PHMSA also participates as a working member in API's Classification and Loading of Crude Oil Standard Development Working Group. On November 20, 2013, PHMSA and FRA issued a follow-up Joint Safety Advisory to reinforce the importance of proper characterization, classification, and selection of a packing group for Class 3 (flammable liquid) materials, and the corresponding regulations for safety and security planning. The Advisory reinforced the Department's position that we expect rail offerors and rail carriers to revise their safety and security plans required by the HMR, including the required risk assessments, to address the safety and security issues identified in FRA's Emergency Order No. 28 and the August 7, 2013, joint Safety Advisory (78 FR 69745). The Advisory was supplemented with enhanced enforcement operations by FRA to ensure compliance with the applicable requirements. On January 2, 2014, PHMSA issued a Safety Alert warning of crude oil variability and emphasized proper and sufficient testing to ensure accurate characterization and classification of this hazardous material. Proper characterization and classification of a hazardous material are integral for the HMR to accomplish its safety purpose. Characterization and classification ultimately determine the appropriate and permitted packagings for a given hazardous material. This alert addressed the initial findings of Operation Classification, a compliance initiative involving unannounced inspections and testing of crude oil samples to verify that offerors of the materials have properly classified and described the hazardous materials. The alert expressed PHMSA's concern that unprocessed crude oil may affect the integrity of the packaging or present additional hazards, related to corrosivity, sulfur content, and dissolved gas content. It also noted that preliminary testing, focused on the classification and packing group assignments that have been selected and certified by offerors of crude oil and PHMSA, had found it necessary to expand the scope of their sampling and analyses to measure other factors that would affect the proper characterization and classification of the materials. PHMSA and FRA launched Operation Classification in August 2013 to verify that crude oil is being properly classified in accordance with Federal regulations. Activities included unannounced inspections, data collection and sampling at strategic terminal and loading locations for crude oil. PHMSA investigators tested samples from various points along the crude oil transportation chain; from cargo tanks that deliver crude oil to rail loading facilities, from storage tanks at the facilities, and from pipelines connecting storage tanks to rail cars that would move the crude across the country. On February 4, 2014, PHMSA announced the first results from Operation Classification, which indicated that some crude oil taken from cargo tanks en route to rail loading facilities was not properly classified. Based on some of the test results, 11 of the 18 samples taken from cargo tanks delivering crude oil to the rail loading facilities were assigned to packing groups that incorrectly indicated a lower risk than what was actually being transported. PHMSA issued three Notices of Probable Violations to the companies involved as a result, proposing civil penalties totaling $93,000. Operation Classification is part of a larger Department-wide effort named Operation Safe Delivery. Operation Safe Delivery is an effort to ensure the safe transportation of crude oil moving by rail using a comprehensive approach, including prevention, mitigation and response. On January 9, 2014, the Secretary issued a “Call to Action,” to actively engage all the stakeholders in the crude oil industry, including CEOs of member companies of the American Petroleum Institute and CEOs of the railroads. In a meeting held on January 16, 2014, the Secretary and the Administrators of PHMSA and FRA requested that offerors and carriers identify prevention and mitigation strategies that can be implemented quickly. Specifically, the Call to Action discussed issues including proper classification and characterization of hazardous materials, operational controls and track maintenance that could prevent accidents, and tank car integrity improvements that could mitigate the effect of accidents should one occur. The meeting was an open and constructive dialogue on how, collaboratively, industry and government can make America's railways safer. As a result of this meeting, the rail and crude oil industries agreed to voluntarily consider or implement potential improvements including speed restrictions in high consequence areas, alternative routing, the use of distributive power to improve braking, and improvements in emergency response preparedness and training. On January 22, 2014 the Secretary sent a letter to the attendees recapping the meeting and stressing the importance of this issue. 38 38 See Call to Action Follow-up letter http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Files/Letter_from_Secretary_Foxx_Follow_up_to_January_16.pdf. The rail and crude oil industries committed to consider and address several issues and, within 30 days, provide details regarding the specific actions that shippers and carriers will take immediately to improve safety in the transportation of petroleum crude oil. Specifically, the AAR agreed to consider, and provide additional details about, the following: • The use of existing Federal protocols for routing hazardous materials, such as Toxic-by-Inhalation hazardous materials (TIH), for petroleum crude oil unit train shipments; • The use of speed restrictions where appropriate on crude oil unit trains traveling through high consequence areas; • The use of distributed power on unit petroleum crude oil trains; and • Increasing and improving track, mechanical, and other rail safety inspections. The API recommended and agreed to consider the following: • Share expertise and testing information with DOT, notably PHMSA, regarding the characteristics of petroleum crude oil in the Bakken region; • Work on identifying best practices to ensure that appropriate and comprehensive testing and classification of petroleum crude oil being transported by rail is performed; and • Collaborate with PHMSA on improving its analysis of petroleum crude oil characteristics. Both AAR and API agreed to consider the following: • Improve emergency responder capabilities and training to address petroleum crude oil train accidents; and • Recommission the AAR's Rail Tank Car Standards Committee to reach consensus on additional changes proposed to the AAR rail tank car standard CPC 1232s, to be considered by DOT, as appropriate, in the rulemaking process. On January 17, 2014, PHMSA launched a Web page entitled Operation Safe Delivery: Enhancing the Safe Transport of Flammable Liquids. 39 This site describes the Department's efforts to enhance the safe transport of flammable liquids by rail and acts as a valuable resource for shippers and transporters of those materials. The site will be continuously updated to provide progress reports on industry commitments as part of the Call to Action and additional Departmental activities related to the rail safety initiative. The page also displays PHMSA's rail safety action plan. The site has already received considerable traffic, and seems to be an educational resource for the regulated community. 39 http://www.phmsa.dot.gov/hazmat/osd/calltoaction. On February 21, 2014, in response to the Secretary's Call to Action: API committed to the following: 1. To assemble top experts to develop a comprehensive industry standard for testing, characterizing, classifying, and loading and unloading crude oil in rail tank cars. API is moving as quickly as possible with the goal of publishing this standard in six months. Its standards process is open, transparent and accredited by the American National Standards Institute, the same organization that accredits similar programs at several U.S. national laboratories. All stakeholders are invited to participate, including PHMSA. 2. Work with PHMSA, the railroad industry, and emergency responders to enhance emergency response communications and training. API recently joined Transportation Community Awareness and Emergency Response, known as TRANSCAER R , which is a voluntary national outreach effort that assists communities in preparing for and responding to incidents. API continues to work with PHMSA and other representatives from the Department of Transportation to share information and expertise on crude oil characteristics. They have also offered to help PHMSA review the data collected through Operation Classification. 3. API continues to work with the railroad industry, railcar manufacturers, and other stakeholders to address tank car design. Their industry has been building next generation tank cars since 2011 that exceed federal standards. These new cars make up nearly 40 percent of the crude oil tank car fleet and will be 60 percent by the end of 2015. They are currently engaged in a holistic and data-driven examination to determine whether additional design changes would measurably improve safety without inadvertently shifting risk to other areas. AAR and its member railroads committed to the following: 1. By no later than July 1, 2014, railroads will apply any protocols developed by the rail industry to comply with the existing route analysis requirements of 49 CFR 172.820(c)-(f) and (i) to the movement of trains transporting 20 or more loaded railroad tank cars containing petroleum crude oil (Key Crude Oil Train). 2. Rail carriers will continue to adhere to a speed restriction of 50 mph for any Key Crude Oil Trains. By no later than July 1, 2014, railroads will adhere to a speed restriction of 40 mph for any Key Crude Oil Train with at least one `DOT Specification 111' tank car loaded with crude oil or one non-DOT specification tank car loaded with crude oil while that train travels within the limits of any high-threat urban area as defined by 49 CFR 1580.3. For purposes of AAR's commitments, `DOT Specification 111' tank cars are those cars that meet DOT Specification 111 standards but do not meet the requirements of CPC-1232 or any new standards adopted by DOT after the date of this letter. 3. By April, 2014, railroads will equip all Key Crude Oil Trains, operating on main track with either distributed power locomotives or an operative two-way telemetry end of train device as defined by 49 CFR 232.5. 4. Effective March 25, 2014, railroads will perform at least one additional internal rail inspection than is required by 49 CFR 213.237(c) each calendar year on main line routes it owns or has been assigned responsibility for maintaining under 49 CFR 213.5 over which Key Crude Oil Trains are operated. Railroads will also conduct at least two track geometry inspections each calendar year on main line routes it owns or is responsible for maintaining under 49 CFR 213.5 over which Key Crude Oil Trains are operated. 5. By no later than July 1, 2014, railroads will commence installation and will complete such installations as soon as practicable, of wayside defective bearing detectors at least every 40 miles along main line routes it owns or has been assigned responsibility or maintaining under 49 CFR 213.5 over which Key Crude Oil Trains are operated, unless track configuration or other safety considerations dictate otherwise. 6. AAR and the railroads will create an inventory of emergency response resources along routes over which Key Crude Oil Trains operate for responding to the release of large amounts of petroleum crude oil in the event of an incident. This inventory will include locations for the staging of emergency response equipment and, where appropriate, contacts for the notification of communities. Upon completion of the inventory, the railroads will provide DOT with access to information regarding the inventory and will make relevant information from the inventory available to appropriate emergency responders upon request. 7. Railroads will commit in the aggregate a total of approximately $5 million to develop and provide a hazardous material transportation training curriculum applicable to petroleum crude oil transport for emergency responders and to fund a portion of the cost of this training through the end of 2014. One part of the curriculum will be for local emergency responders in the field; and more comprehensive training will be conducted at the Transportation Technology Center, Inc., (TTCI) training facility in Pueblo, Colorado. AAR will work with emergency responders in developing, by July 1, 2014, the training program that meets the needs of emergency responders. 8. Railroads will continue to work with communities through which Key Crude Oil Trains move to address on a location-specific basis concerns that the communities may raise regarding the transportation of petroleum crude oil through those communities and take such action as the railroads deem appropriate. The American Short Line and Regional Railroad Association (ASLRRA) offered the following: 1. ASLRRA will recommend to its members that unit trains of crude oil (20 cars or more) operate at a top speed of no more than 25 mph on all routes. 2. ASLRRA will work with its member railroads and the Class I railroads to develop a program of best practices to assure a seamless system of timely and effective emergency response to crude oil spills no matter where on the national rail system an incident may occur. 3. ASLRRA will recommend that its member railroads sign master service agreements with qualified environmental cleanup providers to ensure prompt and effective remediation in all areas subjected to unintentional discharge of crude oil. In addition, ASLRRA will work with the AAR and Class I railroads to eliminate any gaps in coordination or response systems when both large and small railroads are involved. 4. ASLRRA will support and encourage the development of new tank car standards including but not limited to adoption of the 9/16 inch tank car wall that will meet the needs of all stakeholders and enhance the safety of the transportation of crude oil by rail. 5. Contingent upon securing a six to twelve month pilot-project grant from the FRA, the ASLRRA plans to expedite the most significant project in its 100 year history to reduce the risks of accidents, incidents, and regulatory noncompliance in the small railroad industry. If grant funding is provided, ASLRRA will create the Short Line Safety Institute which will: a. Work jointly with the FRA to develop and implement a pilot safety inspection and evaluation project for short line railroads. b. Work with the FRA Office of Research and Development Human Factors Division (1) to create an assessment process to evaluate the current safety and compliance attainment levels on small railroads, (2) to contract and train expert qualified inspectors, and (3) to develop training, assessment and reporting document systems. c. Work with FRA to create benchmarks and objectives to measure the progress and effectiveness of the Short Line Safety Institute safety inspection programs. d. Begin with a focus on the transportation of crude oil by small railroads and thereafter expand to the transportation of all commodities for Class III railroads. The Railway Supply Institute Committee on Tank Cars (RSICTC), although not part of the Call [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2014-17764. Public record. Not legal advice.