Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation

Federal RegisterOct 28, 2024

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107, 171, 172, 173, 174, 176, 177, 178, 179, and 180

[Docket No. PHMSA-2018-0080 (HM-265)]

RIN 2137-AF41

Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

PHMSA proposes to revise the Hazardous Materials Regulations to adopt several modal-specific amendments that would enhance the safe transportation of hazardous materials in commerce. PHMSA, in consultation with the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the United States Coast Guard, proposes amendments identified during Departmental review and from industry petitions for rulemaking.

DATES:

Comments must be received by January 27, 2025. To the extent possible, PHMSA will consider late-filed comments as a final rule is developed.

ADDRESSES:

You may submit comments identified by the Docket Number PHMSA-2018-0080 (HM-265) by any of the following methods:

•

Federal eRulemaking Portal: https://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:

Docket Management System; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays.

Instructions:

All submissions must include the agency name and Docket Number (PHMSA-2018-0080) or Regulation Identifier Number (RIN) (2137-AF41) for this rulemaking at the beginning of the comment. To avoid duplication, please use only one of these four methods. All comments received will be posted without change to the Federal Docket Management System (FDMS) and will include any personal information you provide.

Docket:

For access to the dockets to read background documents or comments received, go to

http://www.regulations.gov

or DOT's Docket Operations Office (

see

ADDRESSES

Confidential Business Information:

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” Submissions containing CBI should be sent to Eamonn Patrick, Office of Hazardous Materials Safety, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590-0001. Any commentary that PHMSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Privacy Act:

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to

http://www.regulations.gov,

as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at

http://www.dot.gov/privacy.

FOR FURTHER INFORMATION CONTACT:

Eamonn Patrick, Standards and Rulemaking Division, 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. Railroad Safety Advisory Committee

B. AAR Authority To Approve the Design of Tank Cars and Quality Assurance Programs

1. Introduction

2. Tank Car Design Approval

3. Tank Car Facility Quality Assurance Program

4. Tank Car Facility Definition

5. Tank Car Facility and Design Certifying Engineer Registration

6. AAR Specifications for Tank Cars Incorporation by Reference

7. Tank Car Linings and Coatings

8. Editorial Revision to §§ 180.501 and 180.513

C. Cargo Tank Regulatory Amendments

D. Cargo Tank Marking for Petroleum Distillate Fuels

E. P-1712

F. P-1724

G. P-1735

III. Overview

A. Rail

B. Highway

C. Vessel

D. Multi-Modal

IV. Section-by-Section Review

V. Regulatory Analyses and Notices

A. Statutory/Legal Authority

B. Executive Order 12866, 14094, and DOT Regulatory Policies and Procedures

C. Executive Order 13132

D. Executive Order 13175

E. Regulatory Flexibility Act and Executive Order 13272

F. Paperwork Reduction Act

G. Unfunded Mandates Reform Act of 1995

H. Draft Environmental Assessment

I. Privacy Act

J. Executive Order 13609 and International Trade Analysis

K. National Technology Transfer and Advancement Act

L. Executive Order 13211

M. Cybersecurity and Executive Order 14082

N. Severability

I. Executive Summary

The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the requirements for the transportation of hazardous materials set out in the Hazardous Materials Regulations (HMR) (49 Code of Federal Regulations (CFR) parts 171 to 180) and 49 CFR part 107. This rulemaking aims to amend provisions specific to the highway, rail, and vessel transportation of hazardous materials.

In this notice of proposed rulemaking (NPRM), PHMSA proposes to reform modal specific requirements in the HMR. PHMSA expects that the adoption of these proposals will maintain or enhance the safe transportation of hazardous materials while increasing the clarity of the HMR, and therefore decreasing compliance burdens. The proposed amendments also reflect changing conditions and trends that affect the safe transportation of hazardous materials while still maintaining or enhancing safety. The following are some of the more noteworthy subjects covered by proposed revisions:

• Rail tank car use requirements as recommended by the Rail Safety Advisory Committee (RSAC);

• Rail tank car and service equipment design approval requirements;

• Highway cargo tank specifications and requalification requirements; and

• Marking requirements for cargo tanks that contain multiple petroleum distillate fuels.

In this rulemaking, PHMSA solicits comment from the public and regulated community on these proposed amendments, specifically pertaining to the need for, benefits, and costs of the proposed amendments; impact on safety; public interest; and any other relevant concerns. In its preliminary regulatory impact analysis (PRIA), PHMSA concluded that the aggregate benefits of the proposed amendments justify their aggregate costs. PHMSA estimates annualized net benefits at a two percent discount rate of approximately $97.3 million per year. Details on the estimated cost savings and benefits of this rulemakings can be found in the PRIA, which is available in the public docket for this rulemaking.

II. Background

The Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101

et seq.

) at 49 U.S.C. 5103 gives the Secretary general authority to issue regulations for the safe transportation of hazardous materials in commerce. The Secretary delegates the above statutory authorities to PHMSA at 49 CFR 1.97.

A. Railroad Safety Advisory Committee

RSAC is a Federal Advisory Committee established by the U.S. Secretary of Transportation in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2) to provide information, advice, and recommendations to the Federal Railroad Administration (FRA) Administrator on matters relating to railroad safety. In 1996, FRA established RSAC to develop new regulatory standards, through a collaborative process, with all segments of the rail community working together to fashion mutually satisfactory solutions on safety regulatory issues. PHMSA participates in RSAC when issues related to hazardous material transportation are discussed, and participated in the development of the proposed recommendations in this rulemaking. On November 5, 2015, the RSAC accepted Task No. 15-04: “Hazardous Materials Issues,” which assigned the Hazardous Materials Issues Working Group (HMIWG) to consider several revisions to the HMR to enhance the safety of hazardous materials transported by rail.

Consensus-approved regulatory change proposals were developed by the HMIWG and forwarded to the RSAC for consideration. On May 25, 2017, the RSAC voted and approved HMIWG's consensus recommendations of changes to the HMR (hereafter referred to as the consensus recommendations) and submitted the suggested revisions to FRA. FRA subsequently recommended that PHMSA initiate a rulemaking to propose and adopt the consensus recommendations. In this rulemaking, PHMSA proposes to adopt the RSAC consensus recommendations with some modifications. Note that not all of the consensus recommendations are proposed as received. Rather, this rulemaking includes some revisions to the recommendations to better fit the construction of the HMR; to provide more appropriate amendatory instruction to the Office of the Federal Register; and to address some technical issues discovered during detailed review of the proposed regulatory text that was provided in the recommendation.

More information about the RSAC, including HMIWG meeting minutes and other supporting documents can be found at:

https://rsac.fra.dot.gov/

The consensus recommendations propose to make amendments to update, clarify, or remove existing requirements that are outdated or unnecessary. They propose the following changes, among others: (1) require tank car facilities to apply for and receive a DOT registration letter from PHMSA assigning a registration number prior to qualifying tank cars for service; (2) incorporate by reference updated versions of certain industry standards, including the Association of American Railroads (AAR) Manual of Standards and Recommended Practices Section C-III Specifications for Tank Cars (M-1002); and (3) revise the requirements for One-Time Movement Approvals (OTMAs). These changes are discussed in greater detail later in “Section IV. Section-by-Section Review.”

On August 27 and 28, 2013, FRA held a public meeting

to invite stakeholders and the public to participate in a comprehensive review of part 174 of the HMR, to improve the safety of railroad transportation of hazardous materials. Specifically, FRA sought comment on identifying provisions of part 174—Carriage by Rail—that are outdated, unclear, no longer necessary, present an undue economic burden on the regulated community, are inconsistent with other North American standards and regulations (such as those issued by the AAR and Transport Canada), do not sufficiently address modern safety concerns, or do not sufficiently address technological advancements and procedural changes in the railroad operating environment. FRA included specific requests for comment on the public meeting agenda for a review of definitions and abbreviations (§ 171.8); notice to train crews (§ 174.24); nonconforming or leaking packages (§ 174.50); packagings, cargo tanks, and multi-unit tank car tanks in Tank-on-Flatcar (TOFC) and Container-on-Flatcar (COFC) service (§§ 174.61 and 174.63), tank car unloading (§ 174.67); switching placarded railcars, transport vehicles, freight containers and bulk packagings (§ 174.83); position of railcars (§ 174.85); as well as an open discussion on part 174. In its consensus recommendations, the RSAC addressed many of the issues identified and discussed during this public meeting. See “Section IV. Section-by-Section Review” for discussion of specific proposed changes because of the public meeting comments and RSAC deliberations.

Comments from various associations and members of the public can be found at:

https://www.regulations.gov/docket?D=FRA-2013-0067

B. AAR Authority To Approve the Design of Tank Cars and Quality Assurance Programs

1. Introduction

The design, construction, maintenance, and qualification of tank cars used to transport hazardous materials are complex regulatory topics. Tank cars are the largest type of hazardous materials packaging in use in surface transportation, and the consequence of failure during transportation can be—and has been—catastrophic. The HMR currently delegate tank car and service equipment design approval and tank car facility Quality Assurance Program (QAP) approval to the AAR Tank Car Committee (TCC). The AAR TCC is a body of representatives drawn from the railroads, tank car shippers, and the tank car manufacturing, maintenance, and repair industry. The AAR TCC approves tank car designs and manages QAP approval, as well as develops its own standards for the design and operation of tank cars. PHMSA and FRA provide regulatory oversight to the AAR TCC approval process to ensure the committee is operating within the HMR's purview. The process by which the AAR TCC approves tank car and service equipment designs, materials, and construction, and conversion or alteration, is not specified in § 179.3; however, typically the committee votes on the proposed designs, materials, and

construction, and conversion or alteration based on AAR TCC staff review of design drawings and/or service trial results. The approval of QAPs is handled similarly via a vote of the AAR TCC after the facility has been audited by AAR Bureau of Explosives auditors. Audit scheduling, procedure, and recommendation for approval or denial is conducted wholly at the discretion of the AAR.

The HMR require each tank car facility to maintain a QAP that meets the requirements of § 179.7, with the intent that a properly implemented QAP will:

• Ensure the qualified tank car conforms to the requirements of the applicable specification and regulations;

• Identify any defects in the tank car manufacturing, repair, inspection, testing, and qualification or maintenance program; and

• Prevent any non-conformity from recurring.

Specifically, tank car facility QAPs must—at a minimum—address the elements in § 179.7(b)-(e), including verification of construction materials, monitoring and control of processes, and qualification of personnel.

PHMSA and FRA initiated a review of the current regulations in part 179—Specifications for Tank Cars—that require both tank car design and tank car facility QAPs to be approved by the AAR TCC. Additionally, PHMSA and FRA recognize that the scope of the definition of

tank car facility

has created confusion among tank car shippers and in the tank car manufacturing and maintenance industry. In this rulemaking, PHMSA proposes to revise the definition of

tank car facility

to reduce confusion and uncertainty in the regulated community. In conjunction with the other rail-specific changes proposed in this rule, this change will improve safety of rail transportation through increased awareness of who qualifies as a tank car facility and who specifically must comply with the HMR requirements for that facility (

see

“Section II.B.4 Tank Car Facility Definition” for further discussion on this issue).

PHMSA and FRA have determined that the current system requiring AAR approval for tank car facility QAPs and tank car designs creates a regulatory bottleneck without commensurate safety benefits for the regulated industry. As such, PHMSA proposes revisions to the current system to relieve confusion and increase the efficiency of the approval process (

see

“Section II.B.2 Tank Car Design Approval” and “Section II.B.3 Tank Car Facility Quality Assurance Program” for further discussion of these issues). The proposed revisions are intended to increase the efficiency of the tank car design and QAP approval process, without compromising safety, by increasing governmental oversight of regulated entities through a registration program. The following is a brief summary of proposed changes to the approval processes and the definition of

tank car facility

which PHMSA discusses in greater detail later in this section:

A. Remove the requirement for tank car and service equipment designs to be approved solely by the AAR TCC and replace it with a requirement for tank car designs to be approved by a tank car Design Certifying Engineer (DCE) registered with PHMSA. This proposed requirement closely mirrors the process for highway cargo tank design review and approval.

B. Remove the requirement for tank car facilities to have a QAP approved by the AAR and replace it with a requirement for tank car facilities to register with PHMSA, maintain a QAP, and certify that it meets the § 179.7 quality assurance program requirements.

C. Revise the definition of

tank car facility

to clarify that the definition applies to facilities that qualify a tank car for service, and to clarify what activities require qualification of a tank car.

D. Add a registration program for tank car DCEs and tank car facilities.

E. Revise the incorporation by reference (IBR) of specific chapters and appendices of the 2014 edition of the AAR

Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002

(

i.e., AAR Specifications for Tank Cars

) to correspond to the above proposals (

i.e.,

removing the requirement to comply with the specific sections of M-1002 that require AAR approval).

F. Revise the requirements for coating and lining inspection of tank cars to clarify what is expected.

G. Revise § 180.513—Repairs, alterations, conversions, and modifications—to clarify that tank car facilities must include the tank car owner's qualification and maintenance program into their QAP to correct an incorrect reference to including the tank car owner's QAP. Generally, a tank car owner is not subject to QAP requirements.

2. Tank Car Design Approval

Federal hazardous material transportation regulations have delegated the authority to approve tank car and service equipment designs to the AAR—and various predecessor organizations—since at least 1927. As provided in § 179.3, the AAR TCC has authority to approve tank car designs, materials and construction, conversion, or alteration of tank car tanks under the specifications of part 179. By way of example, § 179.100-12(a) requires that manway nozzles must be of approved design of forged or rolled steel for steel tanks. In this context, pursuant to the definition in § 179.2, “approved” refers to approval by the AAR TCC.

Although PHMSA has delegated the authority to approve tank car designs, the current state of the AAR's autonomous approval process presents inefficiencies when insufficient resources are available to process approval applications, resulting in unnecessary delays and increased costs for the tank car design and manufacturing community. As such, PHMSA and FRA propose to remove the requirement that tank car and service equipment designs receive approval solely through the AAR TCC before they are used in hazardous materials (hazmat) service. PHMSA and FRA propose to replace AAR TCC design approval with alternative approval by a tank car DCE, similar to the design approval structure for highway cargo tanks. The proposed tank car DCE requirement will include registration with PHMSA, and registrations will be subject to termination for cause, with the intent to create a more transparent, accountable tank car design approval system without any impact on the safety of such approved tank cars. “Design certifying engineer” is a defined term in the HMR in § 171.8, and currently only applies to engineers who can determine that a cargo tank design meets applicable DOT specification standards. PHMSA and FRA propose to revise the definition of DCE to include persons able to determine that a tank car meets applicable DOT specification standards. PHMSA and FRA propose that a tank car DCE must:

• Have an engineering degree and at least one year of work experience in tank car structural or mechanical design; or

• Be registered currently as a professional engineer by an appropriate authority of a state of the United States or a province of Canada.

As proposed, a tank car DCE may not use their experience in cargo tank structural or mechanical design to meet the experience requirement for tank car design, and vice versa for a cargo tank DCE. Based on our knowledge of the cargo tank and tank car industries, PHMSA believes it is unlikely that a company would attempt to register a

single engineer as both a tank car and cargo tank DCE. In the event this does occur, PHMSA would allow a single engineer to be registered as both a tank car and cargo tank DCE; however, they will need to acquire separate registrations: a cargo tank DCE registration as specified in subpart F of part 107, and a tank car DCE registration as specified in the proposed new subpart J of part 107. PHMSA has determined that maintaining separate registrations in the event that a single person holds both will simplify recordkeeping and enforcement by preventing unintended administrative hang-ups if one registration is allowed to lapse or termination proceedings are initiated. PHMSA requests comments on this proposed registration process.

Currently, the tank car design approval process is managed by the AAR TCC (see § 179.3). PHMSA and FRA attend AAR TCC meetings and participate in AAR TCC working groups on specific issues; however, the agencies do not manage the day-to-day operations of the AAR TCC. PHMSA and FRA have no voting power in the committee and little involvement in the day-to-day process by which the AAR TCC reviews and approves tank car designs. PHMSA and FRA retain full authority to set tank car safety standards through the adoption of tank car design specification requirements in part 179, and tank car use requirements in part 173. To provide additional context, there are approximately 130 instances in part 179 where the HMR requires that a tank car design feature (

e.g.,

the manner in which a tank car tank is attached to the car structure)

or item of service equipment (

e.g.,

a valve)

be “approved.” This approval is issued by the AAR TCC when the Committee determines that tank car tank or equipment is in compliance with the requirements of the HMR.

The AAR TCC is the only entity granted the authority to issue such approvals for tank car tanks and service equipment in the HMR.

See § 179.10.

See § 179.200-16(b).

See § 179.3.

PHMSA and FRA have determined that—based on experience participating in the current AAR TCC process—the process for tank car design approval is conducted in such a way that increases costs and delays to the regulated community, without a commensurate increase in safety that would justify these delays. The HMR create a single-source, prescriptive system, because only AAR TCC has the authority to approve an application for a tank car design, material of construction, conversion, or alteration under part 179 specifications. The HMR requirements for the review of a tank car design are well understood and include compliance with part 179 and other considerations that a tank car design must take into account (

e.g.,

lading properties, material compatibility, operating temperatures, etc.). There is little doubt that there are many engineers in the United States with tank car structural or mechanical design experience who could review and certify that a tank car's design meets the HMR requirements. Replacing AAR TCC approval with DCE approval as proposed will create a system that increases efficiency in the tank car design approval market by expanding the pool of authorized tank car design approval sources without impacting the safety of tank cars used to transport hazardous materials. The proposed system also includes documentation requirements for DCEs that will facilitate improved government oversight of the design approval process via periodic audits, and it would allow DCE registrations to be terminated for cause as further discussed below.

PHMSA and FRA expect that an individual with an engineering degree and tank car design experience or a registered professional engineer—thus meeting the § 171.8 definition of a tank car DCE—will be able to review the design of a tank car or service equipment and determine whether the design complies with the tank car specification requirements. This proposal will improve government oversight of the tank car approval process. Currently, PHMSA and FRA have limited ability to take enforcement action against the TCC for failures to comply with the requirements of the HMR. The current TCC design review procedures have allowed non-compliant tank cars to enter transportation, posing risks to lives and the environment. When non-compliant cars are discovered in transportation, FRA takes immediate action to protect rail workers and the public. This can include issuing a railworthiness directive to address the non-compliance. Audits of the TCC tank car design review process conducted by the Department have revealed systemic operational and processing issues within the TCC—specifically—that the TCC utilizes, approves, and certifies Independent Third Party (ITP) individuals for reviewing and verifying that the application meets all AAR and DOT design requirements. These audit findings still have not been addressed to date. Additionally, in the recent past, the TCC elected not to review and approve new designs for DOT-106 and DOT-110 multi-unit tank car tanks (commonly known as “ton tanks”). The TCC's decision not to review and approve DOT-106 and DOT-110 designs created significant disruption for a packaging manufacturer and their customers. As a result, PHMSA expended resources to develop and issue a Special Permit

to allow the construction and use of these packagings to avoid disruption to commercial activities caused by the TCC's decision not to complete the role assigned to them in § 179.3. PHMSA and FRA are also concerned that the current system allows TCC to regulate entry to the market by controlling the approval process. Major tank car and service equipment (

e.g.,

valve) manufacturers are represented on the TCC. This creates a potential conflict of interest for the TCC when considering approval applications from firms that compete with companies its members represent. PHMSA and FRA have determined that due to unaddressed issues in the AAR TCC approval process, a recent history of a decision not to perform the role assigned in the HMR, and the potential for incumbent tank car industrial concerns to impact entry of competitors into the marketplace, we can no longer justify delegating authority for tank car design approval to the AAR TCC.

https://www.phmsa.dot.gov/hazmat/documents/offer/SP14437.pdf/offerserver/SP14437

PHMSA and FRA expect that costs for reviewing and approving tank car designs will decrease by removing the single-source approval and the barriers of entry to the business of tank car design approval. The implementation of the proposed tank car DCE program will maintain at least an equivalent level of safety of tank car design by ensuring tank car DCEs maintain and adhere to a detailed written procedure to evaluate the compliance of a tank car design with the HMR's tank car specification and usage requirements. PHMSA and FRA will be able to exert substantially greater oversight over tank car DCEs than the AAR TCC, both through the modification, suspension, and termination procedures proposed in this NPRM, as well as through the civil and criminal penalty procedures applicable to all persons who perform activities subject to the HMR through 49 CFR parts 107, 109, and 49 U.S.C. 5123-5124.

PHMSA, in conjunction with our highway modal partner FMCSA, has experience overseeing a DCE program for the design approval of bulk

hazardous materials packages intended for highway transportation through the existing cargo tank DCE program. This experience makes us confident that private sector engineers, operating under governmental oversight through a registration program, can safely and effectively review a package (

i.e.,

a tank) design and ensure it complies in all respects with the relevant design requirements of the HMR. PHMSA and FRA intend to maintain direct oversight on the tank car design process through regular audits of tank car DCEs and reserve the right to terminate a tank car DCE registration for cause. Causes for registration termination include: (1) because of a change in circumstances the registration is no longer needed or would no longer be granted if applied for; (2) the application contained inaccurate or incomplete information and it would not have been granted had accurate and complete information been provided; (3) the application contained deliberately inaccurate or incomplete information; or (4) the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. PHMSA emphasizes that criteria (4) can be used to bring enforcement action and potential modification, suspension, or termination proceedings against a tank car DCE who fails to maintain and follow an adequate written procedure that is used to verify conformance with the requirements of the HMR.

See

“Section IV. Section 107.911” for additional information on the termination of a tank car DCE registration.

By clearly describing the processes and procedures that the DCE must follow to approve a tank car design, PHMSA and FRA expect a high level of safety for tank car designs will be maintained. PHMSA proposes to require the DCE to review the same information and drawings currently required in the AAR Form 4-2. This commonality with existing design records is intended to minimize disruption during the transitional period and maximize tank car and service equipment manufacturer and DCE familiarity with the required documentation. The requirements proposed in §§ 179.3 and 179.5 are intended to create an accountable, auditable, criteria-based tank car design approval system that is more transparent to government oversight than the current system. The proposed requirements in §§ 179.3 and 179.5 are primarily based on the requirement for a tank car DCE to develop, maintain, and adhere to a written procedure describing the process used to verify a tank car or service equipment's design with the requirements of the HMR. This detailed procedure must include acceptance and rejection criteria for each tank car or service equipment design element approved by the DCE, which demonstrate the tank car or service equipment will meet the requirements of part 179 and retain the hazardous contents of the packaging in all normal conditions of transportation for the designed life of the packaging. PHMSA and FRA investigators and engineers will evaluate the detailed procedures during periodic audits to ensure the procedures adequately maintain compliance with part 179, and that the DCE is following the procedures. These general procedural requirements proposed in §§ 179.3 and 179.5 will allow tank car DCEs to determine the most efficient workflow for their business needs, while providing a clear basis for evaluation of a tank car DCE's procedures. These standards also provide a clear framework for PHMSA and FRA to conduct audits and determine whether lapses in a tank car DCE's performance warrant the issuance of a Notice of Probable Violation, or, in serious cases, initiation of modification, suspension, or termination proceedings.

The DCE registration program also may facilitate greater technological advancements in tank car and service equipment designs by facilitating greater access to tank car and service equipment design certification services. The proposed rule would enable other entities to approve tank car designs, potentially leading to more processing of innovative designs that meet the existing performance standards and their subsequent use in the transportation arena. In addition, opening these services up to other entities—rather than maintain the design approval process solely with AAR TCC—may increase competition within the industry as additional DCEs are registered and begin to provide tank car design approvals. This competition is expected to result in potential cost reductions for the regulated community.

To adequately oversee tank car DCEs, PHMSA and FRA propose to require that each DCE register with PHMSA and provide information on the types of design reviews the DCE will conduct. This will allow PHMSA and FRA to audit DCEs to ensure they are properly reviewing each tank car or service equipment design and only issuing approvals to those designs that meet the requirements of part 179. Each DCE must develop procedures, including acceptance and rejection criteria for the approval process, which demonstrate that the tank car or service equipment will meet the requirements of part 179 and the design level of reliability and safety for the hazardous materials service for which the tank car is intended. The registration requirement is necessary to assist PHMSA and FRA in performance of their oversight responsibilities to ensure all tank car DCEs are performing their design reviews with appropriate rigor, and thus that tank car designs are suitable for hazmat transportation. See discussion in section “Section II.B.5 Tank Car Facility and Design Certifying Engineer Registration” for additional details on the proposed registration program.

Therefore, PHMSA proposes to remove reference to AAR approval for tank car designs wherever it appears in the subchapter. A DCE registered with PHMSA would fill the tank car design approval role currently delegated to the AAR. Authorizing qualified individuals, registered with PHMSA, to review and certify tank car designs under PHMSA and FRA oversight will increase the level of safety provided by the HMR while increasing design review efficiency for the tank car design and manufacturing community. Finally, PHMSA notes this would not exclude the AAR staff or TCC members from registering as DCEs to continue to perform these approvals; however, it removes exclusive delegation and opens the market to all those who are qualified. AAR TCC may continue to provide approval services commercially, provided they register with PHMSA and follow the same requirements proposed in this NPRM that other tank car DCEs must follow.

3. Tank Car Facility Quality Assurance Program

Tank car facilities, as defined in § 179.2, are required to have a QAP that—among other items—has the means to detect non-conformities in the tank car manufacturing, repair, inspection, testing, and qualification or maintenance processes. Currently, each tank car facility's QAP must meet the requirements of § 179.7, which requires that the QAP be approved by the AAR. In this rulemaking, PHMSA proposes to remove the requirement that AAR approve a tank car facility's QAP. As a substitute, we propose to replace this requirement with a requirement that tank car facilities must register with PHMSA, certify that they maintain a QAP that meets the requirements of § 179.7, and include an executive summary of their QAP with their

registration statement. As proposed, the registration program will improve safety through increased PHMSA and FRA situational awareness of tank car facility activities and provide mechanisms to address non-compliance. PHMSA proposes to allow modification, suspension, or termination of a tank car facility registration for the following causes: (1) because of a change in circumstances, that the registration is no longer needed or would no longer be granted if applied for; (2) the application contained inaccurate or incomplete information and it would not have been granted had accurate and complete information been provided; (3) the application contained deliberately inaccurate or incomplete information; or (4) the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. PHMSA emphasizes that criteria (4) above can be used to bring enforcement action and initiate modification, suspension, and termination proceedings against a tank car facility that fails to adhere to their QAP. A tank car facility's failure to adhere to a QAP could create unacceptable risks in the rail system and may cause unsafe tank cars to enter transportation.

The creation of the QAP requirement for tank car facilities was initiated based on a National Transportation Safety Board (NTSB) safety recommendation (R-88-63)

issued in response to a September 8, 1987, incident involving the release of butadiene from a tank car in New Orleans, Louisiana. In 1993, the Research and Special Programs Administration (RSPA)—PHMSA's predecessor agency—proposed the creation of the QAP requirement and definition of

tank car facility

in an NPRM (HM-201).

The primary intent of this requirement—as discussed in the preamble of HM-201—is to ensure each tank car manufacturing or repair facility has procedures in place to detect any nonconformity in the tank car manufacturing, maintenance, or repair process and has the means to prevent its recurrence.

See NTSB Safety Recommendation R-88-063:

https://www.ntsb.gov/investigations/AccidentReports/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-88-063

58 FR 48485 (Sep. 16, 1993).

In 1995, RSPA created the definition for the term “tank car facility” and a requirement for each tank car facility to maintain a QAP meeting the requirements of § 179.7 in final rule HM-175A and HM-201,

and made minor revisions to the requirements in a 1996 HM-175A and HM-201 corrections final rule.

The requirements of § 179.7 have not been modified substantively since.

60 FR 49048 (Sep. 21, 1995).

61 FR 33250 (Jun. 26, 1996).

PHMSA and FRA have found that the requirement for only AAR to review and approve each tank car facility's QAP creates an undue cost burden on the facility and creates delays in approving facility operation that hinder commerce. Additionally, PHMSA and FRA's experience auditing tank car facilities with QAPs approved by AAR TCC have revealed significant compliance issues with the current QAP approval process. For example, PHMSA and FRA have knowledge that on at least one occasion—over the course of many months—AAR did not take action on a facility that failed AAR Bureau of Explosives QAP audits. These negative findings demonstrated the facility's failure to maintain an effective QAP and, therefore, the company's inability to safely perform their tank car qualification functions as required by the HMR. Specifically, AAR did not take action to remove the certification of a tank car facility in Shoshone, Wyoming, (Wasatch Railroad Contractors) that had failed multiple QAP audits. This inaction allowed the facility to continue to operate without an effective QAP. FRA and PHMSA raised concerns that AAR has not adopted procedural changes to prevent this type of failure (

e.g.,

by immediately addressing findings) from recurring. Subsequently, on April 22, 2021, two employees were killed in an explosion while working inside a tank car.

FRA and PHMSA believe corrective action by AAR and the facility may have prevented such an incident by not allowing continued work on tank cars. In 2022, the owner of Wasatch Railroad Contractors was found guilty of five counts of wire fraud and one count of knowing endangerment for knowingly exposing employees to asbestos and placing them in imminent danger of death or serious bodily injury.

https://apnews.com/article/explosions-business-1aa330c562c393a74421e4a90b9394db

https://www.justice.gov/usao-wy/pr/wasatch-railroad-contractors-and-its-chief-executive-officer-sentenced-wire-fraud-and

Additionally, as part of AAR TCC's current QAP approval process, AAR requires that tank car facilities bear the expense on an initial certification audit and annual recertification audits thereafter. The initial certification process often takes several months, and the tank car facility has no recourse under the current HMR requirements but to accept AAR's timeline and fees. Additionally, the audit process does not increase the level of safety commensurate with the costs and delays it imposes. FRA inspectors regularly find violations of the HMR at facilities that AAR authorizes to operate through the current QAP approval process. FRA issues findings, tickets, and notices of probable violation to tank car facilities when it discovers non-compliance. When violations are systemic or significant, FRA uses its railworthiness authority to address similarly situated cars or fleets of cars.

Therefore, PHMSA and FRA propose to remove the requirement that tank car facilities submit their QAPs for approval to AAR and replace it with a requirement that each tank car facility register with PHMSA and certify that it has created and is maintaining a QAP that meets the requirements of § 179.7. As part of the registration requirement, PHMSA and FRA propose that the registrant must submit an executive summary of its QAP, demonstrating compliance with the elements required in § 179.7(b). Facilities may submit certifications from outside organizations, such as an external auditor, to serve as the executive summary or submit their own executive summary documents. PHMSA will administer the registration program for facilities, and FRA—in conjunction with PHMSA—will oversee tank car facility QAPs through regular facility compliance audits. PHMSA and FRA have limited oversight and control over the current AAR approval process for tank car facility QAPs. However, the observations that have been conducted, coupled with our enforcement oversight of the tank car fleet, provide PHMSA and FRA with significant concerns that the current system of AAR audits provides limited safety benefits compared to the burdens imposed. PHMSA and FRA expect the registration program combined with regular compliance audits by government personnel will maintain an equivalent or greater level of safety to the current requirements while reducing administrative delays caused by the AAR process. PHMSA and FRA emphasize that adhering to a rigorous QAP is critical for a tank car facility to ensure that the tank cars qualified for service at the facility meet the requirements of the tank car's specification and regulations. See “Section II.B.5. Tank Car Facility and Design Certifying Engineer Registration” for additional details on the proposed registration program.

PHMSA recognizes that this topic is the subject of an open petition P-1770

submitted by AAR on October 21, 2022. This petition requests the removal of the AAR approval requirement for QAPs in accordance with § 179.7. The AAR petition requests that PHMSA replace AAR approval of QAPs with a requirement for tank car facilities to comply with an industry standard known as “AAR M-1003—Specification for Quality Assurance.” As described above, PHMSA believes that a performance-based approach to QAPs—along with registration with the Department and self-certification—is the best option. Our proposal allows for the use of accepted industry standards for quality assurance programs to meet the proposed safety requirements, but does not mandate one standard over another. This allows tank car facilities to implement the performance elements in the most appropriate manner for their operations. Therefore, in this NPRM, PHMSA is not proposing to incorporate by reference AAR M-1003 into § 179.7. PHMSA will consider any comments on this topic with respect to this NPRM as it evaluates petition P-1770.

https://www.regulations.gov/document/PHMSA-2022-0130-0001

4. Tank Car Facility Definition

PHMSA and FRA are aware that there is uncertainty in the tank car community related to the scope of the definition of “tank car facility.” This uncertainty impacts both tank car shippers and tank car manufacturers (including service equipment manufacturers). On October 8, 2019, PHMSA, in conjunction with FRA, issued Letter of Interpretation Reference No. 19-0117

addressing the definition of “tank car facility.” PHMSA proposes to revise the definition of “tank car facility” consistent with Letter of Interpretation Reference No. 19-0117 so that the definition applies only to the facility that qualifies the tank car for service. That is, for example, an equipment manufacturer of a pressure valve used in the construction of a tank car is not a tank car facility solely on the basis of manufacturing a component part of a specification tank car. The determining factor on the applicability of the “tank car facility” definition is whether the facility qualifies a tank car for service. The tank car facility that qualifies the tank car for service is responsible for ensuring the conformity of the entire tank car, including service equipment, with the approved specification. Additionally, PHMSA proposes to revise the definition of “service equipment” in § 180.503 to clarify what constitutes “service equipment” consistent with our expectations in revising the definition of a tank car facility. Service equipment is pressure or lading retaining equipment. Examples include pressure relief devices, valves, manway covers, devices used for loading and unloading, interior heating coils, and vents.

See Letter of Interpretation Reference No. 19-0117:

https://www.phmsa.dot.gov/regulations/title49/interp/19-0117

To address the community of tank car shippers: PHMSA's and FRA's position, as reflected in the proposed definition, is that the removal of service equipment from the tank car and replacement or re-installation of the service equipment is a qualification event and triggers the need for a leakage pressure test (

see

§ 180.509(j)) to verify the tank car is leak tight at the connection. These functions must be conducted by a tank car facility, as defined in part 179, because the service equipment requires a leakage pressure test to ensure the connection to the tank car is qualified for its intended service. A leakage pressure test is a qualification event and must be performed by a tank car facility. Any action that triggers a qualification event requires a tank car facility to perform the qualification prior to placing the tank car into transportation. However, to be clear, a facility that only operates service equipment for loading and unloading purposes is not a tank car facility.

To address the community of tank car component manufacturers, repair facilities and manufacturers: PHMSA's and FRA's position, as reflected in the proposed definition, is that a facility that only manufactures, maintains, or repairs service equipment is not a tank car facility. The facility that qualifies the completed tank car for service after installation of the service equipment is the tank car facility. The facility that qualifies the tank car for service is responsible for ensuring the compliance of the packaging with the requirements of part 179, even those functions that they did not directly perform (

e.g.,

manufacturing a valve). The tank car facility's QAP must encompass all work done on the tank car and its components prior to qualification of the tank car.

Tank car facilities that meet the proposed revised definition of tank car facility in § 179.2 must have the knowledge and skill to ensure appropriate conformance with the requirements of parts 179 and 180. As qualification is the final step in the tank car manufacturing or maintenance process, only requiring the facilities that qualify tank cars (

i.e.,

facilities that have the “last touch”) to have a QAP reduces this requirement to a small subset of the total number of facilities that perform work related to tank cars, while still maintaining the high level of safety under the HMR. PHMSA and FRA emphasize the scope of the definition of “qualification” remains unchanged. Therefore, as proposed, tank car shippers and component suppliers are not subject to the administrative burdens associated with the creation and maintenance of QAPs, unless they perform qualification activities (

e.g.,

removal and replacement of a valve or other service equipment on a tank car). PHMSA and FRA emphasize that all facilities that perform a function subject to the HMR are responsible for performing it correctly and in conformance with all applicable requirements, regardless of whether they meet the definition of a “tank car facility.”

Tank car facilities are responsible for ensuring all material installed onto the tank car meets the requirements of the specification and the regulations at the time the tank car is qualified for service. PHMSA and FRA understand that long-standing policy in the tank car industry had required tank car component manufacturers to maintain AAR-approved QAPs. This policy was confirmed in previously issued (and since revoked) PHMSA Letters of Interpretation Reference Nos. 15-0124 and 18-0029. While these letters are no longer valid, and have not been valid since 2019, at the time they were written they aligned with generally accepted industry practice and addressed a safety issue created by production of valves and other tank car service equipment by unapproved sub-contractors without adequate oversight. As proposed in this NPRM, the facility that qualifies the tank car for service is responsible for ensuring the tank car and all equipment necessary for the tank car's operation meets the applicable requirements of the HMR and any other applicable standards.

5. Tank Car Facility and Design Certifying Engineer Registration

As previously discussed, PHMSA and FRA propose to require that tank car facilities and tank car DCEs register with PHMSA prior to conducting regulated activities. PHMSA and FRA expect that a registration program for both tank car facilities and tank car DCEs is a more efficient alternative for the tank car industry while providing at least an equivalent level of safety. Direct monitoring of registered tank car facilities and tank car DCEs through site visits and audits will maintain the

existing safety standards established in the HMR.

Therefore, PHMSA, in conjunction with FRA, proposes to create subpart J in part 107 for tank car facility and tank car DCE registration. The creation of a tank car facility registration program was agreed to in the RSAC process; however, PHMSA proposes to implement the tank car facility registration program in a format different than what appears in the RSAC consensus recommendations. In the RSAC proposal, the tank car facility registration was added to the existing cargo tank facility registration subpart (

i.e.,

part 107, subpart F). After reviewing the RSAC proposal, PHMSA and FRA have determined that it would be confusing to both the cargo tank and tank car communities to attempt to insert tank car-specific facility and DCE registration language into part 107, subpart F. PHMSA proposes to place the tank car facility and tank car DCE registration requirements in a new subpart to reduce confusion and highlight the tank car-specific nature of these programs. However, some of the proposed language is similar to the part 107, subpart F requirements for cargo tanks and cargo tank motor vehicles.

For tank car facilities, PHMSA proposes to require that each facility,

i.e.

each separate physical location with a unique street address, submit a separate registration. This will allow PHMSA and FRA to oversee each facility that qualifies tank cars more effectively by establishing the physical addresses and activities of each facility. Each registration statement must be signed by a principal, officer, partner, or employee of the facility responsible for compliance with the applicable requirements of the HMR, certifying knowledge of those requirements. In their registration statement, each tank car facility must list the qualification functions the tank car facility will perform and identify the types of DOT specification or special permit tank cars they intend to qualify.

For DCEs, PHMSA proposes to require each person, as defined in § 171.8, who conducts review of a tank car or service equipment design must register with PHMSA. Each engineer employed to conduct the design reviews must be individually named in the registration and will receive a unique, separate identifier associated with the company's DCE registration. If an engineer is employed as a DCE to conduct design reviews of tank cars or service equipment and begins operating as a DCE for another company, or as self-employed, then the engineer must inform PHMSA and will then receive a new registration number.

PHMSA also proposes the ability to modify, suspend, or terminate both tank car facility and tank car DCE registrations for cause in new § 107.911. Further, procedures for a tank car facility or DCE to follow to request reconsideration and appeal a decision to modify, suspend, or terminate a registration are proposed in new §§ 107.913 and 107.915, respectively. Modification, suspension, and termination determinations for tank car facility and DCE registrations will be made by the Associate Administrator for Safety, FRA. Similarly, requests for reconsideration must also be submitted to the Associate Administrator for Safety, FRA, and appeal of the reconsideration decision to the FRA Administrator.

6. AAR Specifications for Tank Cars Incorporation by Reference

The AAR has developed a comprehensive industry standard for the construction and maintenance of tank cars, the AAR

Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification,

M-1002 (AAR Specifications for Tank Cars). Currently, § 171.7 incorporates by reference the December 2000 edition of the AAR Specifications for Tank Cars throughout parts 173 (Shippers-General Requirements for Shipments and Packagings), 179 (Specifications for Tank Cars), and 180 (Continuing Qualification and Maintenance of Packagings). In many sections, especially in part 179, the HMR only references a specific section, such as an appendix, of the document. To clarify the IBR structure of M-1002, the RSAC agreed to separately list the individual chapters and appendices of the of AAR Specifications for Tank Cars in the HMR's consolidated IBR section (§ 171.7). This will clearly denote to the reader the relevant chapter or appendix of the document that applies in a particular section of the HMR. This change will also provide PHMSA and FRA greater flexibility when incorporating by reference future editions of the standard. For example, if PHMSA and FRA do not concur on the content of a particular chapter or appendix, it would not prevent other chapters or appendices from being incorporated by reference.

The RSAC also agreed to update the standard from the December 2000 edition to the November 2014 edition. The 2014 edition of the AAR Specifications for Tank Cars also addresses NTSB Safety Recommendation R-12-007,

issued on March 2, 2012. R-12-007 recommends that PHMSA adopt AAR's revised design standards for center sill and draft sill attachments. AAR redesigned center and draft sill attachments in response to NTSB Safety Recommendation R-12-009.

Chapter 6 of the 2014 edition of the AAR Specifications for Tank Cars, which is proposed for adoption into § 179.10, includes the new sill attachment standards for newly built tank cars. Therefore, the proposed IBR update helps PHMSA address NTSB Safety Recommendation R-12-007.

See NTSB Safety Recommendation R-12-007:

https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-007

See NTSB Safety Recommendation R-12-009:

https://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-12-009

This NPRM proposes to update the IBR of the AAR Specifications for Tank Cars to the 2014 edition and to incorporate by reference separately each relevant chapter and appendix, as agreed to in the RSAC process. Due to the proposed removal of AAR's sole process for review and approval of tank car designs, certain appendices and sections are no longer necessary to IBR. Several appendices and sections that require designs and QAPs to be sent to AAR for approval would no longer be relevant (

see

“Section II.B.2. Tank Car Design Approval). Therefore, PHMSA does not propose to IBR Appendix B, Appendix L, and Appendix U of the AAR Specifications for Tank Cars into the HMR.

Additionally, PHMSA proposes to update the edition of the AAR Manual of Standards and Recommended Practices, Section C—II Specifications for Design, Fabrication and Construction of Freight Cars, Chapter 5 to the 2011 edition from the 1988 edition, as agreed in RSAC.

PHMSA proposes to IBR the 2014 edition of the AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) Chapter 2, section 2.2.1.2 into § 179.102-3. This proposed amendment creates an HMR requirement for shell and head material Charpy impact testing at time of manufacture for pressure tank cars that transport poisonous-by-inhalation material. Because this requirement has been in place through AAR interchange standards since 2005, PHMSA expects there will be no additional burden placed on tank car manufacturers. This proposed IBR also addresses NTSB Safety Recommendation R-19-001, which requests that PHMSA promulgate a final standard for pressure tank cars used to transport poison inhalation hazard/toxic inhalation hazard materials that includes enhanced fracture toughness requirements for tank heads and shells.

PHMSA proposes to incorporate by reference the 2014 edition of the AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) Chapter 3, into §§ 173.241, 173.242, and 173.247. Chapter 3 contains the requirements for manufacturing AAR specification tank cars. Sections 173.241, 173.242, and 173.247 are the packaging sections that authorize the use of AAR specification tank cars. Currently, these sections reference specific AAR specification tank cars, but provide no information as to how these cars are constructed, or what version of the AAR Specifications for Tank Cars they must meet. Incorporating by reference only Chapter 3 into these sections ensures that AAR specification tank cars are manufactured to a standard that PHMSA and FRA have reviewed and determined is acceptable for hazardous materials transportation. If the specifications of the AAR tank cars referenced in §§ 173.241, 173.242, and 173.247 are ever changed in a future edition of the AAR Specifications for Tank Cars, PHMSA and FRA will need to review the revised specifications before authorizing the tank cars for hazardous material service. Incorporation by reference of a specific edition of the AAR Specifications for Tank Cars in §§ 173.241, 173.242, and 173.247 ensures PHMSA will be able to review any future changes to the construction specification prior to authorizing the new specification for hazardous materials transportation.

Finally, PHMSA proposes to correct an error in the HMR and RSAC's proposed IBR text. Currently, the HMR incorporates by reference the AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars), Chapter 6, November 2014 in § 179.400-6. This citation is incorrect; the correct IBR document for design loads of outer jackets is AAR Manual of Standards and Recommended Practices, Section C—II Specifications for Design, Fabrication and Construction of Freight Cars, Chapter 6. Therefore, PHMSA proposes to IBR Section C—II, Chapter 6 into § 179.400-6.

7. Tank Car Linings and Coatings

The HMR prescribes requirements for the inspection of tank car linings in § 180.509(i). On May 22, 2019, the Railway Supply Institute (RSI) requested a Letter of Interpretation on the applicability of the inspection requirements of § 180.509(i). Specifically, RSI asked whether linings and coatings solely used to protect product purity (

i.e.,

the lining or coating plays no role in protecting the tank from corrosion or reactivity) are subject to the inspection requirements of § 180.509(i).

In Letter of Interpretation Reference No. 19-0117,

PHMSA and FRA provided clarification on inspection requirements for linings and coatings. Specifically, the requirements of § 180.509(i) apply only to internal tank car linings and coatings that are applied to protect the tank from a material that is corrosive or reactive to the tank. As noted in the preamble of the final rule HM-216B,

PHMSA and FRA are aware of incidents where a material was loaded into a tank car with a defective or incompatible lining which caused a reaction with the tank car. In these instances, the tank lining owners expected the lining was there to protect product purity when in fact it served to protect the tank. It is the responsibility of the tank lining owner to determine whether the internal lining or coating is solely for product purity purposes.

See Letter of Interpretation Reference No. 19-0117:

https://www.phmsa.dot.gov/regulations/title49/interp/19-0117

77 FR 37962 (Jun. 25, 2012).

To address confusion on the applicability of tank car lining and coating inspections, PHMSA proposes an editorial revision of the requirements of § 180.509(i)(1), adding the phrase “used to transport hazardous materials corrosive or reactive to the tank” to the second sentence of (i)(1). The proposed revision clearly indicates that tank car linings and coatings are only subject to the inspection requirements of part 180 if they are used to protect the tank from material corrosive or reactive to the tank. PHMSA expects that this clarification will improve compliance with this inspection requirement and therefore improve safety. PHMSA requests comment on this proposal.

8. Editorial Revisions to §§ 180.501 and 180.513

Section 180.501 contains the general requirements for the qualification and maintenance of tank cars. In this NPRM, PHMSA proposes to replace the phrase “owner's qualification program” with “owner's qualification and maintenance program” to maintain alignment with the scope of part 180, subpart F, and the existing references to “qualification and maintenance program” in §§ 179.7 and 180.513.

Section 180.513 provides the requirements to repair, alter, convert, and modify tank cars. PHMSA, in conjunction with FRA, adopted this section into the HMR in HM-216B. Section 180.513(b) outlines responsibilities of a tank car facility. The last sentence in § 180.513(b) contains wording that does not communicate the requirement accurately. Specifically, at the end of paragraph (b), it currently states, “a tank car facility must incorporate the owner's Quality Assurance Program into their own Quality Assurance Program.” The sentence contains an incorrect reference to an equipment owner's QAP. Tank car owners are not subject to the part 179 QAP requirements unless they also operate a tank car facility. The last sentence should make a general reference to a tank car owner's qualification and maintenance program and not a QAP that is required of tank car facilities. The requirement should read, “a tank car facility must incorporate the owner's qualification and maintenance program into their own Quality Assurance Program.” Therefore, PHMSA proposes to replace the first appearance of the phrase “Quality Assurance Program” in the last sentence of § 180.513(b) with the phrase “qualification and maintenance program.”

C. Cargo Tank Regulatory Amendments

PHMSA, in conjunction with the Federal Motor Carrier Safety Administration (FMCSA), developed proposed amendments specific to enhancing safe highway transportation of hazardous materials. A portion of the proposed items were initially identified during two technical information sessions sponsored by National Tank Truck Carriers, Inc. (NTTC) and Truck Trailer Manufacturer's Association

(TTMA) in 2005. During these meetings, PHMSA and FMCSA began developing a list of issues, concerns, and requests for clarifications to be considered in a future rulemaking. Moreover, PHMSA and FMCSA have identified numerous advancements in industry practice, as well as potential safety incidents, over the course of the past 17 years. This rulemaking aims to address the safety concerns raised by industry stakeholders.

Additionally, PHMSA and FMCSA continue to review enforcement actions, letters of interpretation, and information received from cargo tank manufacturers and testing facilities, in efforts to identify appropriate revisions to the HMR.

D. Cargo Tank Marking for Petroleum Distillate Fuels

In an advance notice of proposed rulemaking (ANPRM) HM-213E,

PHMSA addressed United Nations identification number (UN ID number) marking of cargo tank motor vehicles containing petroleum distillate fuels in response to a

Protecting our Infrastructure of Pipelines and Enhancing Safety Act of 2016 (PIPES Act of 2016)

Congressional mandate and two petitions for rulemaking (P-1667

and P-1668

). The PIPES Act of 2016 mandate stated that “[n]ot later than 90 days after the date of enactment of this Act, the Secretary of Transportation shall issue an [ANPRM] to take public comment on the petition for rulemaking dated October 28, 2015, titled `Corrections to Title 49 CFR 172.336 Identification numbers; special provisions' (P-1667).”

81 FR 83190 (Nov. 21, 2016).

See petition for rulemaking P-1667:

https://www.regulations.gov/document?D=PHMSA-2015-0219-0001

See petition for rulemaking P-1668:

https://www.regulations.gov/document?D=PHMSA-2015-0251-0001

The central issue addressed in the HM-213E ANPRM was whether a cargo tank motor vehicle transporting different types of petroleum distillate fuels (

e.g.,

gasoline, diesel fuel, kerosene, and fuel oil) over the course of multiple trips should be permitted to display the UN ID number of the fuel with the lowest flash point, even when that fuel is not being transported (

e.g.,

display “1203”—the UN ID number for gasoline—when the cargo tank contains only diesel fuel).

As detailed in table 1, PHMSA received 14 sets of comments to the HM-213E ANPRM.

Table 1—HM-213E Commenters and Associated Comment Docket Numbers

Commenter

Docket ID number

American Trucking Association (ATA)

PHMSA-2016-0079-0012

Anonymous

PHMSA-2016-0079-0003

Commercial Vehicle Safety Alliance (CVSA)

PHMSA-2016-0079-0009

Dangerous Goods Advisory Council (DGAC)

PHMSA-2016-0079-0010

International Association of Fire Chiefs (IAFC)

PHMSA-2016-0079-0008

International Association of Fire Fighters (IAFF)

PHMSA-2016-0079-0011

Josh Torrez

PHMSA-2016-0079-0002

Kansas Highway Patrol

PHMSA-2016-0079-0005

NTTC

PHMSA-2016-0079-0006

Patriot Tank Lines, Inc.

PHMSA-2016-0079-0004

Petroleum Marketers Association of America (PMAA)

PHMSA-2016-0079-0013; PHMSA-2016-0079-0014

Public Utilities Commission of Ohio

PHMSA-2016-0079-0007

Transportation Trades Department, American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)

PHMSA-2016-0079-0015

ATA, CVSA, DGAC, Kansas Highway Patrol, Patriot Tank Lines, Inc., NTTC, and PMAA support allowing cargo tank motor vehicles that deliver multiple types of petroleum distillate fuels to display the UN ID number of the fuel with the lowest flash point, even when that fuel is not being transported. These organizations note that materials with a lower flash point generally have a higher flammability hazard, and therefore, conclude that marking the UN ID number of a lower flash point material would not increase risks in transportation. Additionally, these commenters note that the Emergency Response Guidebook (ERG) emergency response procedures are nearly identical for UN1203 (gasoline) and UN1202/NA1993 (diesel fuel, fuel oil), and marking of a cargo tank with “1203” even when it only contains diesel fuel has been a safe industry practice for decades. PHMSA also notes that for other petroleum distillate fuels—such as UN1223 (kerosene)—the ERG also directs the reader to the same response procedures for UN1203 and UN1202/NA1993. Lastly, the commenters note that switching the UN ID number before every trip to reflect the material transported in the cargo tank at the time would increase the time per trip and costs for fuel distributors.

The IAFC, IAFF, Public Utilities Commission of Ohio, and Transportation Trades Department of the AFL-CIO do not support allowing cargo tank motor vehicles that deliver multiple types of petroleum distillate fuels to display the UN ID number of the fuel with the lowest flash point, even when that fuel is not being transported. These commenters state that emergency responders would treat an incident—including clean-up and spill mitigation—involving diesel fuel differently from gasoline, and the use of the gasoline “1203” marking in place of the diesel fuel “1202” or “1993” increases confusion and decreases response effectiveness. Specifically, first responders may use the presence (or lack) of a fire and communicated hazard to determine the potential dangers of the fuel in the immediate aftermath of an accident. Because “1203” signifies a material with a lower flashpoint than “1202” or “1993” is present on the vehicle, the absence of a fire signifies that there may not be a fire hazard. However, when the higher flashpoint material is present, but only the lower flash point material is communicated on the vehicle, the absence of a fire may create a false sense of security for emergency responders, as they would be unaware that the fuel in the tank or spilled on the ground had not yet reached the higher flash temperature for diesel fuel.

PHMSA conducted a thorough review of the regulatory history related to the UN ID number marking requirements for petroleum distillate fuels in cargo tanks

and concludes the origin of the confusion on this issue dates to final rule HM-118.

In HM-118, RSPA added new hazard marking sections including § 172.332 for requirements on the display of UN ID numbers, § 172.334 for the prohibited display of UN ID numbers, and § 172.336 for special provisions and exceptions of UN ID numbers. In § 172.336, RSPA added two exceptions for the marking of UN ID numbers for a cargo tank transporting liquid distillate fuels, which read as follows:

45 FR 74640 (Nov. 10, 1980).

(4) For different liquid distillate fuels, including gasoline, in a compartmented cargo tank or tank car, if the identification number is displayed for the distillate fuel having the lowest flash point.

(5) For each of the different liquid distillate fuels, including gasoline, transported in a cargo tank, if the identification number displayed is for the liquid distillate fuel having the lowest flash point.

In the final rule preamble,

RSPA described the intent of the exception in § 172.336(c)(5) as:

45 FR 74647 (Nov. 10, 1980).

Paragraph (c)(5) provides for display of the identification number of the liquid distillate fuel having the lowest flash point of any liquid distillate fuel carried in a cargo tank. This provision will eliminate the need for continuous changes in identification numbers in many operations where gasoline and fuel oil are transported in the same cargo tank on different trips during the same day.

While RSPA stated that the intent of this exception would address moving gasoline and other petroleum distillate fuels in the same cargo tank on different trips on the same day, this was not reflected in the regulatory text. Although the time frame for use of this exception was not explicitly written in the regulatory text, the preamble language makes it is clear that the exception in § 172.336(c)(5) was not limited to multi-compartmented tanks carrying multiple petroleum distillate fuels at the same time. Specifically, if § 172.336(c)(5) only applied to compartmented cargo tanks that transported multiple liquid distillate fuels at the same time, § 172.336(c)(4) would be duplicative. Therefore, PHMSA concludes that RSPA intended § 172.336(c)(5) to authorize a cargo tank to display the UN ID number of the petroleum distillate fuel with the lowest flash point transported in that cargo tank on different trips within the same day, and not based on each individual trip.

Furthermore, RSPA's intent of this regulatory exception was reiterated in 1996 and 2000, with Letter of Interpretation Reference Nos. 96-0079 and 00-0208. In these interpretation letters, RSPA clearly stated that the exception in § 172.336(c)(5) allowed cargo tanks that previously transported gasoline (UN1203) and were subsequently transporting only diesel fuel (NA1993/UN1202) to be marked with “1203.”

As discussed in the HM-213E ANPRM, § 172.336(c)(5) was updated in 1987 and 2008 to address specific concerns related to increased ethanol content in certain fuels that required different emergency response procedures, but the basic structure of the paragraph was not changed. Further, in 2013, PHMSA published final rule HM-219,

which amended the HMR in response to various petitions for rulemaking. In HM-219, PHMSA removed the reference to “gasohol” in § 172.336, as the Hazardous Materials Table (HMT) entry for this material was removed in 2008. In addition, PHMSA replaced §§ 172.336(c)(1)-(6) with a table to “more clearly indicate hazard communication requirements.” In this new table, PHMSA added paragraphs (c)(1)-(3) and (c)(6) as individual entries but combined the language in paragraphs (c)(4) and (5) into a single entry. The impact of combining the provisions of paragraphs (c)(4) and (5) was that the historical context for the original meaning of paragraph (c)(5) was lost. As this revision in HM-219 was an attempt at clarification, it was not PHMSA's intent to change the exceptions substantively for marking of UN ID numbers on cargo tanks.

78 FR 14702 (Mar. 7, 2013).

On June 26, 2015, PHMSA published an additional Letter of Interpretation Reference No. 14-0178.

In the incoming letter, the requester asserted that § 172.336(c) stated clearly that if a cargo tank is transporting multiple liquid petroleum distillate fuels, it may be marked with the UN ID number of the fuel with the lowest flash point. The requester asked if a cargo tank is transporting only diesel fuel (NA1993), is it authorized to continue displaying the UN ID number for gasoline (UN1203) even though gasoline was no longer present. As the regulations no longer clearly indicated that this continued to be an acceptable practice, in the response, PHMSA stated that a cargo tank transporting only diesel fuel could not be marked with the UN ID number for gasoline because the gasoline was no longer present.

See Letter of Interpretation Reference No. 14-0178:

https://www.phmsa.dot.gov/regulations/title49/interp/14-0178.

As previously discussed, in HM-219, it was not PHMSA's intent to remove the longstanding exception that allowed a cargo tank transporting more than one petroleum distillate fuel in different trips to display the UN ID number for the petroleum distillate fuel with the lowest flash point. Although, PHMSA recognizes that there may be safety concerns associated with this practice, as noted by commenters to the HM-213E ANPRM, PHMSA has not received specific information describing instances in which this marking exception has increased risks in transportation. Therefore, PHMSA proposes to revise the § 172.336(c) table, to authorize display of the UN ID number of the petroleum distillate fuel with the lowest flash point transported in a cargo tank in different trips on the previous or current business day. This proposal aligns with the original intent of § 172.336(c)(5), and addresses the operational concerns identified by commenters to the HM-213E ANPRM. In addition, this proposal generally aligns with the requirements of DOT-SP 21104,

which was issued on November 11, 2020, and further modified on February 26, 2021. DOT-SP 21104 currently allows for the transportation of gasoline, diesel fuel, kerosene, and fuel oil in a cargo tank motor vehicle marked with the UN ID number “1203” as long as gasoline had been transported in the cargo tank during the previous or current business day. PHMSA is unaware of any safety issues associated with DOT-SP 21104.

See DOT-SP 21104:

https://www.phmsa.dot.gov/hazmat/documents/offer/SP21104.pdf/2021014464/SP21104.

Although “different trips on the same day” was not defined in HM-118, PHMSA proposes that this provision apply when the petroleum distillate fuel with the lowest flash point is transported on the cargo tank motor vehicle during the previous or current business day. As previously mentioned, this proposal aligns with the time frame currently authorized in accordance with DOT-SP 21104. As proposed, PHMSA considers a “business day” to mean a day that the operator of the cargo tank motor vehicle is open and operating in commerce. Therefore, if a cargo tank carrying gasoline is unloaded and subsequently filled with a fuel with a higher flash point, “1203” may only continue to be displayed on the cargo tank for that day and the following day that the operator is open and operating.

To ensure compliance with this requirement, PHMSA anticipates the use of shipping paper records (

see

§ 177.817(f)) to verify which petroleum distillates were transported in the cargo tank during the previous or current business day. PHMSA requests comment on the functionality of this proposed exception for the previous or current business day of petroleum distillate fuels.

In this new entry in the § 172.336(c) table, PHMSA also proposes to include specific requirements when transporting gasoline and alcohol fuel blends consisting of more than 10% ethanol. Specifically, due to different emergency response procedures for liquid petroleum distillate fuels containing more than 10% ethanol and as currently required in the fifth row in the § 172.336(c) table, PHMSA proposes that if the cargo tank contains gasoline and alcohol fuel blends consisting of more than 10% ethanol, the UN ID number “3475” or “1987,” as appropriate, must be displayed. Additionally, the UN ID numbers “3475” or “1987” may only be displayed if a gasoline and alcohol fuel blend consisting of more than 10% ethanol is present in the cargo tank during transportation. This means that “3475” or “1987” may not be displayed even if it is the lowest flash point petroleum distillate fuel and the cargo tank transported the fuel in a different trip on the previous or current business day. Therefore, if the lowest flash point liquid petroleum distillate fuel transported in the cargo tank in different trips on the previous or current business day is a gasoline and alcohol fuel blend consisting of more than 10% ethanol—and this material is not present in the cargo tank for that trip—the carrier must display the UN ID number of either the next lowest flash point liquid petroleum distillate fuel carried in a different trip on the previous or current business day or the liquid petroleum distillate fuel currently being transported in the cargo tank.

Additionally, as an accompanying amendment, PHMSA proposes to revise the fifth row of the § 172.336 table to specify that the exception provided in that row only apply to compartmented cargo tanks or compartmented tank cars. This proposed change distinguishes a compartmented cargo tank (or tank car) transporting more than one petroleum distillate fuel in the same trip (fifth row) from a cargo tank transporting more than one petroleum distillate fuel in different trips on the current or previous business day (sixth row). This clearly distinguishes the marking exception that applies to a compartmented tank that transport multiple fuels of differing flashpoints at one time, and the exception that applies to a cargo tank (single or multi-compartment) that is used to transport fuels of differing flashing points during the course of business on current or previous business day.

PHMSA requests comments related to specific, articulable safety or cost concerns associated with this proposed amendment. PHMSA notes that for NA1993, UN1202, UN1203, UN1223, and other petroleum distillate fuels, the ERG directs the reader to the same guide page for initial emergency response measures, and PHMSA further requests information from emergency responders describing how emergency response would differ for an accident involving a cargo tank motor vehicle marked “1993,” “1202,” “1203,” “1223,” or another UN ID number associated with a petroleum distillate fuel. Finally, PHMSA requests information on any known incidents where emergency response was impacted negatively due to a cargo tank motor vehicle displaying “1203” when it was transporting a petroleum distillate fuel with a higher flash point.

E. P-1712

In petition for rulemaking P-1712,

the Chlorine Institute (CI) requested PHMSA delete § 173.315(i)(13) from the HMR. This change would remove the requirement to install Crosby pressure relief devices (PRDs) on chlorine cargo tanks, thus providing flexibility by authorizing the use of alternative PRDs meeting the requirements of § 173.315(i). The petition for rulemaking also outlined the current use of the Midland PRD on chlorine cargo tanks under the authority of DOT-SPs 9694 and SP-10457. CI noted that the Midland PRD meets the requirements in § 173.315(i) and is incorporated in CI's Pamphlet 49, “

Recommendation Practices for Handling Chlorine Bulk Highway Transporters.”

Furthermore, in their petition for rulemaking, CI notes that since the requirement was established in § 173.315(i), Midland Manufacturing entered the chlorine PRD market. This expanded market was reflected in CI Pamphlet 49, but it was not reciprocated in the HMR, except by special permit.

See petition for rulemaking P-1712:

https://www.regulations.gov/docket?D=PHMSA-2018-0022.

After reviewing this petition for rulemaking, PHMSA proposes to allow use of the Midland PRD under § 173.315(i) but does not propose to delete the specific limitations on the type of PRD authorized. PHMSA will continue to work with CI to develop generally applicable specifications for PRDs used on cargo tanks transporting inhalation hazards. Therefore, for the purpose of this rulemaking, PHMSA only considered the inclusion of the PRD specifications that are already outlined in CI Pamphlet 49 and we do not propose the deletion of § 173.315(i)(13) in its entirety. Instead, PHMSA proposes to revise § 173.315(i) to specify that the PRD on a chlorine cargo tank must conform to one of the drawings in CI Pamphlet 49, which would allow for the use of the Midland PRD in addition to the Crosby PRD. PHMSA expects that this will provide for additional regulatory flexibility in selection of a PRD while maintaining the current level of safety.

F. P-1724

In petition for rulemaking P-1724,

the Greenbrier Companies requested PHMSA revise § 179.100-12 to allow for an alternative means of connecting the manway protection housing to the tank car. Currently, the HMR require the protective housing that shields the valves and fittings on top of pressure cars to be bolted to the manway cover. The petition for rulemaking asks that the connection be alternatively made between the protective housing and the manway reinforcing pad. This alternative allows the protective housing to be bolted to a flange connected to the manway reinforcing pad with not less than twenty

3/4

-inch studs. After reviewing the petition for rulemaking, PHMSA agrees there is merit in making this proposed revision as it will provide regulatory flexibility without reducing the safety of attaching the manway protection housing to a tank car. This alternative method is currently only authorized in DOT-SPs 14832 and 20607. Therefore, PHMSA proposes to revise § 179.100-12 to permit the use of an alternative means of connecting the manway protection housing to the tank car.

See petition for rulemaking P-1724:

https://www.regulations.gov/docket?D=PHMSA-2018-0111.

G. P-1735

In petition for rulemaking P-1735,

TTMA requested PHMSA amend §§ 173.33(d)(3) and 180.405(h)(3) to remove requirements referring to the venting capacity of the original specification for the MC cargo tank motor vehicles with upgraded pressure relief valves.

See petition for rulemaking P-1735:

https://www.regulations.gov/docket?D=PHMSA-2019-0132.

After reviewing this petition for rulemaking, PHMSA agrees with the

position of the petitioner regarding the error made in the preamble in final rule HM-218H,

but does not agree that a regulatory change to §§ 173.33(d)(3) and 180.405(h)(3) is necessary. In final rule HM-218H, PHMSA responded to a number of appeals to the final rule. In the preamble, PHMSA incorrectly stated that the PRD set pressure must be to the original specification when upgrading or modifying the PRDs on a MC 300 series cargo tank motor vehicle. PHMSA has previously and subsequently addressed this issue via letters of interpretation and clarified that the upgraded or modified PRD on a MC 300 series cargo tank motor vehicle must meet all requirements of § 178.345-10, including set pressure (

see

Letters of Interpretation Reference Nos. 16-0183 and 18-0118). As such, while PHMSA agrees with the position of the petitioner, PHMSA finds that no amendments are necessary as the petition for rulemaking was predicated on the incorrect language included in the preamble to HM-218H.

83 FR 28162 (Jun. 18, 2018).

III. Overview

A. Rail

PHMSA, in conjunction with FRA, proposes numerous revisions to the HMR related to transportation of hazardous materials by rail. These proposed revisions will provide greater clarity for hazardous materials rail carriage requirements and remove regulatory barriers to efficient operation without diminishing safety. PHMSA proposes the following amendments:

Related to the proposed amendments offered by RSAC (

see

“Section II.A. RSAC” for additional discussion), PHMSA proposes:

• In § 171.7, update the IBR of the AAR Manual of Standards and Recommended Practices, Section C—Part III, Specifications for Tank Cars, Specification M-1002, (AAR Specifications for Tank Cars), to the November 2014 edition from the 2000 edition;

• In § 171.7, separate the IBR of the AAR Manual of Standards and Recommended Practices, Section C—Part III, Specifications for Tank Cars, Specification M-1002 into its component chapters and appendices, except for Appendix B, Appendix L, and Appendix U, as discussed in “Section II.B.6. AAR Specifications for Tank Cars Incorporation by Reference”;

• In § 171.7, update the edition of the AAR Manual of Standards and Recommended Practices, Section C—II Specifications for Design, Fabrication and Construction of Freight Cars, Chapter 5 to the 2011 edition from the 1988 edition;

• In § 172.101, editorially revise the description of Column 9A “Passenger aircraft/rail” to clarify the meaning for rail transportation;

• In § 172.820, add an exception for route planning for circumstances where no practicable alternative route exists;

• In § 173.31(d), add requirements for tank car closure instructions;

• In § 173.31(g), clarify securement requirements for tank car loading and unloading;

• In § 174.9, revise the safety and security inspection requirements;

• In § 174.14, add exceptions to the requirement for tank car movements to be expedited for certain unavoidable delays;

• Remove and reserve § 174.16, because the requirements for removal and disposition of certain explosives are obsolete;

• Remove and reserve § 174.20 because the reporting to the Bureau of Explosives for local and carrier restrictions is unnecessary;

• In § 174.24, clarify requirements for providing shipping papers to an authorized official;

• In § 174.50, revise the OTMA requirements to align with current FRA policy;

• In a new § 174.58, clarify the meaning of “extent practicable” as used in the § 171.8 definition of

residue;

• In § 174.59, revise requirements for replacing lost placards;

• In § 174.63, make editorial revisions and expand the types of packages and materials eligible for COFC and TOFC service without an approval from FRA;

• In § 174.67, revise the transloading requirements to create a performance-based system, rather than the current prescriptive requirements;

• In Appendix B to part 179, revise the torch and pool fire testing provisions to improve industry understanding of the requirements; and

• In § 180.503, revise the definitions of

tank car owner, coating/lining owner,

and

service equipment owner

to more accurately reflect the complex business arrangements commonly in use.

Related to AAR delegated authority amendments (

see

“Section II.B. AAR Authority to Approve the Design of Tank Cars and Approve Quality Assurance Programs” for additional discussion), PHMSA proposes:

• In a new subpart J in part 107, add tank car facility and tank car DCE registration, with the ability to modify, suspend, or terminate the registration for cause;

• In §§ 107.1, 107.105, and 107.701, revise procedural requirements to accommodate the proposed new subpart J;

• In § 171.7, incorporate by reference AAR Manual of Standards and Recommended Practices, Section C—Part III, Specifications for Tank Cars, Specification M-1002 Chapter 3 into §§ 173.241, 173.242, and 173.247;

• In § 171.8, revise the definition of

Design Certifying Engineer

to create a parallel definition for tank car DCEs;

• In § 179.2, revise the definitions for

approved

and

tank car facility

and add definitions for

component

and

tank car;

• In § 179.2, add introductory text to indicate that terms defined in § 180.503 also apply to part 179 to address confusion with defined terms in these related regulatory parts;

• In § 179.3, remove the requirement for AAR TCC approval of tank car and service equipment designs, and replace it with approval by a DCE;

• In § 179.4, revise the process for designing and seeking approval of a design of a new tank car specification;

• In § 179.5, remove the tank car certification of construction requirement and replace it with a Design Approval Certificate (DAC). PHMSA also proposes to describe the information that must be included in a DAC for both tank cars and service equipment;

• In § 179.6, indicate that AAR approval is no longer required for repairs;

• In § 179.7, remove the requirement for AAR approval of the QAP and make revisions intended to clarify the intent of the applicability of the QAP requirement;

• In § 179.11, add a reference to AAR Specifications for Tank Cars in Appendix W, except section 1.2, for welding requirements;

• In § 179.24, remove reference to AAR Form 4-2 in conformance with the replacement of the certificate of construction with the DAC;

• Throughout the HMR, including §§ 172.102, 173.31, and 173.314, and parts 179-180, remove all references to approval by AAR and replace with a reference to an approval by a DCE;

• In part 179, indicate that compliance with paragraph 1.2 of Appendix W of the AAR Specifications for Tank Cars is not required;

• In §§ 179.100-9, 179.200-10, and 179.220-10, remove the sentence requiring that welding procedures, welders, and fabricators be approved;

• In §§ 179.220-15 and 179.400-13, remove the requirement for design approval for tank cushioning systems;

• In § 179.400-6, correct an editorial reference to the incorrect IBR material;

• In §§ 179.500-17 and 179.500-18, revise recordkeeping requirements to

remove obsolete references to the Bureau of Explosives;

• In § 180.501, replace “owner's qualification program” with “owner's qualification and maintenance program” to maintain alignment with the scope of part 180, subpart F, and the other references to “qualification and maintenance program” in §§ 179.7 and 180.513;

• In § 180.503, revise the definitions for

maintenance, modification, qualification,

and

service equipment;

• In § 180.509(i), clarify the inspection requirements for linings and coatings;

• In § 180.513, revise the responsibilities of tank car owners; and

• In § 180.517, revise the section to reflect the removal of the certificate of construction and its replacement with the DAC.

Related to PHMSA initiated editorial clarification, PHMSA proposes to:

• In § 174.81, revise explosive segregation requirements to align with current highway and vessel requirements.

Related to NTSB Safety Recommendation R-19-001, PHMSA proposes to:

• In § 171.7, incorporate by reference AAR Specifications for Tank Cars Chapter 2, section 2.2.1.2 into § 179.102-3 to require Charpy impact testing for shell and head material of pressure tank cars used for poisonous-by-inhalation material.

Related to NTSB Safety Recommendation R-12-007, PHMSA proposes to:

• In § 179.10, incorporate by reference AAR Specifications for Tank Cars Chapter 6, to require compliance with AAR's redesigned center and draft sill attachment requirements.

B. Highway

PHMSA, in conjunction with FMCSA, proposes numerous revisions to the HMR related to transportation of hazardous materials by highway (

i.e.,

motor vehicle). PHMSA expects these proposed revisions to enhance the safe transportation of hazardous materials by highway while providing greater clarity and regulatory flexibility. In addition to various other revisions to the HMR, PHMSA proposes the following amendments:

• In part 107, subpart F, revise the registration requirements to allow for electronic submission procedures;

• In part 107 subpart F, create cargo tank facility modification, suspension, and termination procedures; reconsideration of modification, suspension, and termination procedures; and appeal of modification, suspension, and termination procedures;

• In § 171.7, revise editorially the ASTM D 1838-64 IBR document to include reference to the 1968 reapproval date;

• In § 171.7, update the Compressed Gas Association (CGA) Technical Bulletin P-26 (formerly TB-2) IBR document to the 1997 edition;

• In § 171.7, replace current incorporation by reference of CI drawings with the entire CI Pamphlet 49, which would include the use of the Midland Type PRD for chlorine cargo tank in § 173.315;

• In the § 172.336(c) table, add a sixth row to specify that a cargo tank may display the UN ID number of the petroleum distillate fuel with the lowest flash point transported in different trips on the previous or current business day, except for gasoline and alcohol fuel blends with more than 10% ethanol;

• In §§ 173.150(f)(3)(viii) and 177.837(c), require bonding and grounding when preparing to transfer or transferring a combustible liquid, or a flammable liquid reclassified as a combustible liquid, from a cargo tank motor vehicle, in addition to the current requirements for flammable liquids;

• In § 177.816(c) and (d), clarify the use of tank vehicle endorsement or hazardous materials endorsement training to fulfill the hazardous materials training requirements of §§ 172.704 and 177.816;

• In § 177.835, clarify that a multipurpose bulk truck may not be used in combination with any cargo tank that is required to be marked or placarded under § 177.823;

• In § 177.840, clarify that the requirements apply to external self-closing stop valves in addition to the current requirement of internal self-closing stop valves;

• In § 178.320, revise definitions for

cargo tank, cargo tank motor vehicle,

and

minimum thickness

and add definitions for:

cargo tank motor vehicle certification date, component, flexible connector, lading retention system, lining, name plate, original test date, sacrificial device, shear section,

and

specification plate;

• In § 178.337-1(d), allow the use of other external coverings besides paint;

• In §§ 178.337-8, 178.338-11, and 178.345-11, specify that mechanical means of remote closure for manual operation must not be obstructed to prevent access to or operation of remote means of closure in an emergency;

• In §§ 178.337-10 and 178.338-10, clarify that the exception in § 393.86 for wheels back vehicles does not apply;

• In §§ 178.337-17 and 178.338-18, revise the specification plate attachment requirement so that the specification plate must be permanently attached to the cargo tank or its integral supporting structure, instead of the cargo tank motor vehicle chassis rail;

• In §§ 178.337-18 and 178.338-19, specify that when the cargo tank motor vehicle is brought into full compliance, the specification plate is marked with the cargo tank motor vehicle certification date;

• In § 178.338-19, revise the certification language so that it more closely mirrors certification language for other DOT specification cargo tank motor vehicles;

• In § 178.345-1, remove definitions that are also defined in § 178.320;

• In § 178.345-14, clarify that when there is no limit for the maximum loading or unloading rate in gallons per minute, the specification mark may be marked “NONE” or “OPEN MH”;

• In § 180.403, add definitions for

cargo tank maintenance, certification plate, objectively reasonable and articulable belief,

and

set pressure,

and revise the definition of

repair;

• In a new paragraph in § 180.405(b)(3), provide instruction on the replacement of cargo tank and cargo motor vehicle specification plates;

• In a new § 180.407(a)(7), specify that all equipment and instruments used to test cargo tanks must be calibrated, with appropriate documentation, in accordance with the manufacturer's instructions;

• In a new § 180.407(a)(8), allow for the use of video cameras or video optics equipment for any inspection or test;

• In a new § 180.407(a)(9), require that cargo tank motor vehicle pressure tests conducted tested at a pressure higher than 50 psi be done with the hydrostatic method, except for DOT Specification MC 338 cargo tanks used to transport cryogenic liquid;

• In a new § 180.407(a)(10), require that the Registered Inspector consult with the owner or motor carrier, as appropriate, to determine if materials corrosive or reactive to the cargo tank or its components were transported in the cargo tank motor vehicle since the last test or inspection, and ensure that the proper tests and inspections, along with suitable safeguards, are used;

• In a new § 180.407(a)(11), require that all sources of spark, flame, or glowing heat within the area in which the tests and inspections are conducted are extinguished, made inoperable, or rendered explosion-proof prior to all functions that are performed;

• In § 180.407(b), include “bulges” in the list of conditions that may render a

cargo tank unsafe for hazardous materials service;

• In § 180.407(b)(5), replace “reasonable doubt” with “objectively reasonable and articulable belief” to create a more consistent standard describing those circumstances in which a cargo tank—or series of cargo tanks—may be required to be tested and inspected outside of the normal test and inspection interval;

• In § 180.407(d)(2)(i), specify that the tank shell and head must be evaluated in accordance with § 180.411 and that during inspection of the cargo tank shell and heads, all pad attachments on either the cargo tank shell or head shell shall be inspected for method of attachments;

• In §§ 180.407(d)(2)(ix) and (g)(1)(iii), add an exception that the upper coupler must be removed if there are obstructions immediately above the cargo tank shell that prevent the upper coupler from being directly inspected;

• In a new paragraph § 180.407(d)(7), add inspection and maintenance requirements for external ring stiffeners installed on a cargo tank motor vehicle constructed of metal other than mild steel or high-strength low-alloy steel;

• In a new paragraph § 180.407(d)(8), clarify inspection and verification requirements for welded repairs;

• In § 180.407(f)(2), add documentation requirements for linings from the lining manufacturer or installer;

• In § 180.407(f)(3), add a requirement that when the degraded or defective areas of the cargo tank lining are repaired or if the lining is replaced, it must comply with lining manufacturer or installer procedures;

• In § 180.407(h)(4), specify that the test pressure of the delivery hose assembly must be at least 80 percent of the Maximum Allowable Working Pressure (MAWP) of the cargo tank;

• In § 180.407(i)(4)(v), specify that thickness testing must be performed on areas around shell reinforcements, including evenly distributed areas around all ring stiffeners and those areas in the bottom half of the cargo tank;

• In § 180.407(i)(6)(i), specify that the supplemental Certificate of Compliance that includes the minimum thickness issued by the DCE must be provided to the CTMV owner;

• In a new § 180.409(a)(4), clarify that the person performing or witnessing the inspections and tests must meet the training requirements of part 172 subpart H;

• In the § 180.411(b) list, include bulges as an additional condition requiring evaluation;

• In new § 180.411(h), specify conditions requiring removal from service and methods in which a cargo tank motor vehicle can be returned to service;

• In new § 180.411(i), specify that when required, emergency discharge control systems on a DOT Specification MC 330, MC 331, or a non-specification cargo tank motor vehicle operating under the provisions of § 173.315(k) must be present and functioning before passing any test or inspection; and

• In § 180.415(b), require that, unless already marked, the cargo tank registration number of the cargo tank facility performing the test or inspection must be marked on the cargo tank.

C. Vessel

PHMSA proposes several revisions to the requirements for transporting hazardous materials by vessel. These proposals are intended to increase transportation efficiency, increase harmonization with the International Maritime Dangerous Goods (IMDG) Code, and editorially revise the HMR while maintaining the high level of safety of vessel transport. The following proposals were developed in conjunction with the United States Coast Guard (USCG):

• In § 171.23(b)(5) and (b)(5)(iii), revise requirements for communicating the presence of hazardous substances by clarifying that only non-bulk packages are required to be marked with the letters “RQ” (to signify a reportable quantity), and the name of the hazardous substance, consistent with § 172.324;

• In new § 172.504(b)(2), remove the authorization to use the “DANGEROUS” placard for vessel transportation to reduce confusion and delays;

• In part 176, editorially revise the office identifier of the Coast Guard Commandant for Operating and Environmental Standards to the identifier for the Office of Design and Engineering Standards;

• In § 176.84(a), clarify editorially that hazardous materials transported in accordance with a limited quantity exception are not subject to the stowage codes assigned by Column (10B) of the § 172.101 Table; and

• In § 176.905, add an exception for vehicles stored onshore incidental to vessel transportation to align with similar exceptions offered to highway and rail transportation of vehicles.

D. Multi-Modal

PHMSA proposes several revisions that affect multiple modes of transportation. These proposals enhance safe transportation of hazardous materials and were developed in conjunction with the FRA, FMCSA, and USCG. Proposals include:

• In § 171.22(f)(4), clarify requirements for providing hazardous material shipping paper information during inspections;

• In § 172.102, revise special provision 13 to identify more clearly that security plan requirements apply;

• In the § 172.336(c) table, more clearly identify that the exception in the fifth row of the table applies only to compartmented cargo tanks or tank cars carrying more than one petroleum distillate fuel;

• In § 172.704(e)(1), provide an exception (including an editorial correction) for hazmat employees who manufacture, repair, modify, recondition, or test packagings, and who do not perform any other function, from security awareness training requirements;

• In Appendix C to part 172, revise the recommended placard holder dimensions to be consistent with the current placard size requirements, and in § 172.516(d), clarify that the current placard holder is an authorized placard holder; and

• In § 173.159(e), clarify that wet batteries must be loaded or braced to secure the batteries against shifting while in transportation and require that the offeror ensure that persons loading the batteries have knowledge of the conditional provisions for exceptions from the general requirements of the HMR.

IV. Section-by-Section Review

The following table identifies the sections and mode(s) of transportation affected by the proposed changes in this NPRM.

Table 2—Sections Affected by This NPRM

Section affected

Mode of

transportation

§ 107.1

Rail.

§ 107.105

Rail.

§ 107.502

Highway.

§ 107.503

Highway.

§ 107.505

Highway.

§ 107.506

Highway.

§ 107.507

Highway.

§ 107.701

Rail.

§ 107.901

Rail.

§ 107.903

Rail.

§ 107.905

Rail.

§ 107.907

Rail.

§ 107.909

Rail.

§ 107.911

Rail.

§ 107.913

Rail.

§ 107.915

Rail.

§ 171.6

Multi-modal.

§ 171.7

Multi-modal.

§ 171.8

Multi-modal.

§ 171.22

Vessel.

§ 171.23

Vessel.

§ 172.101

Rail.

§ 172.102

Multi-modal.

§ 172.303

Multi-modal.

§ 172.328

Highway.

§ 172.336

Multi-modal.

§ 172.504

Vessel.

§ 172.516

Multi-modal.

§ 172.704

Multi-modal.

§ 172.820

Rail.

Appendix C to Part 172

Multi-modal.

§ 173.31

Rail.

§ 173.150

Highway.

§ 173.159

Multi-modal.

§ 173.241

Rail.

§ 173.242

Rail.

§ 173.247

Rail.

§ 173.314

Rail.

§ 173.315

Highway.

§ 173.320

Multi-modal.

§ 174.9

Rail.

§ 174.14

Rail.

§ 174.16

Rail.

§ 174.20

Rail.

§ 174.24

Rail.

§ 174.50

Rail.

§ 174.58

Rail.

§ 174.59

Rail.

§ 174.63

Rail.

§ 174.67

Rail.

§ 174.81

Rail.

§ 176.2

Vessel.

§ 176.84

Vessel.

§ 176.340

Vessel.

§ 176.905

Vessel.

§ 177.801

Highway.

§ 177.804

Highway.

§ 177.816

Highway.

§ 177.835

Highway.

§ 177.837

Highway.

§ 177.840

Highway.

§ 177.841

Highway.

§ 178.320

Highway.

§ 178.337-1

Highway.

§ 178.337-2

Highway.

§ 178.337-3

Highway.

§ 178.337-8

Highway.

§ 178.337-9

Highway.

§ 178.337-10

Highway.

§ 178.337-17

Highway.

§ 178.337-18

Highway.

§ 178.338-3

Highway.

§ 178.338-10

Highway.

§ 178.338-11

Highway.

§ 178.338-18

Highway.

§ 178.338-19

Highway.

§ 178.345-1

Highway.

§ 178.345-3

Highway.

§ 178.345-8

Highway.

§ 178.345-11

Highway.

§ 178.345-13

Highway.

§ 178.345-14

Highway.

§ 178.345-15

Highway.

§ 178.348-1

Highway.

§ 179.2

Rail.

§ 179.3

Rail.

§ 179.4

Rail.

§ 179.5

Rail.

§ 179.6

Rail.

§ 179.7

Rail.

§ 179.10

Rail.

§ 179.11

Rail.

§ 179.24

Rail.

§ 179.100-9

Rail.

§ 179.100-10

Rail.

§ 179.100-12

Rail.

§ 179.100-18

Rail.

§ 179.102-3

Rail.

§ 179.103-5

Rail.

§ 179.200-7

Rail.

§ 179.200-10

Rail.

§ 179.200-11

Rail.

§ 179.200-17

Rail.

§ 179.200-22

Rail.

§ 179.220-10

Rail.

§ 179.220-11

Rail.

§ 179.220-15

Rail.

§ 179.220-18

Rail.

§ 179.300-9

Rail.

§ 179.300-10

Rail.

§ 179.400-5

Rail.

§ 179.400-6

Rail.

§ 179.400-11

Rail.

§ 179.400-12

Rail.

§ 179.400-13

Rail.

§ 179.400-15

Rail.

§ 179.400-18

Rail.

§ 179.400-19

Rail.

§ 179.500-17

Rail.

§ 179.500-18

Rail.

Appendix B to Part 179

Rail.

§ 180.3

Multi-modal.

§ 180.403

Highway.

§ 180.405

Highway.

§ 180.407

Highway.

§ 180.409

Highway.

§ 180.411

Highway.

§ 180.413

Highway.

§ 180.415

Highway.

§ 180.416

Highway.

§ 180.501

Rail.

§ 180.503

Rail.

§ 180.509

Rail.

§ 180.513

Rail.

§ 180.517

Rail.

Appendix D to Part 180

Rail.

The following is a section-by-section review of the proposed amendments:

Part 107

Section 107.1

Section 107.1 is the definition section for Part 107—“Hazardous Materials Programs Procedures.” The definition of “registration” currently states that, “For purposes of subparts A through E, “registration” does not include registration under subpart F or G of this part.” In this NPRM, we propose to add a reference to the new subpart J for tank car facility and tank car DCE registration to the existing references to subpart F or G. This will ensure that the registration requirements of subpart J for tank car facilities and DCEs are not confused or conflated with other registration requirements in Part 107. See also our discussion in “Section II.B.5 Tank Car Facility and Design Certifying Engineer Registration” for additional information.

Section 107.105

Section 107.105 contains the general information and supporting documentation requirements for special permit applications. Paragraph (a)(5) requires that special permit applicants who hold a registration under subparts F or G of Part 107 must include their registration number in their special permit application. PHMSA proposes to add a reference to the new subpart J to paragraph (a)(5), to require that tank car facilities or tank car DCEs who submit a special permit application to PHMSA include their registration number. This will allow PHMSA to more easily cross-reference tank car facility or DCE registration records with the special permit request. See also our discussion in “Section II.B.5 Tank Car Facility and Design Certifying Engineer Registration” for additional information.

Section 107.502

Section 107.502 details general registration requirements for persons who are engaged in the manufacture, assembly, inspection and testing, certification, or repair of a cargo tank or a cargo tank motor vehicle manufactured in accordance with a DOT specification or a special permit. Paragraph (a)(3) specifies reference citations to certain terms used in the HMR. PHMSA proposes to add a reference to the definition of

modification,

which is currently found in § 180.403. In addition—and as detailed later in this rulemaking—PHMSA proposes to add a definition of

component

to § 178.320(a) and a definition of

maintenance

to § 180.403, and PHMSA proposes to reference these

terms in paragraph (a)(3). Additionally, PHMSA proposes to add references to these definitions as they are all related to the cargo tank registration program and the references will provide greater understanding of the registration requirements. See “Section IV. Section-by-Section Review; Part 178; Section 178.320” and “Section IV. Section-by-Section Review; Part 180; Section 180.403” for further discussion of the proposed definitions.

PHMSA also proposes to add paragraphs (a)(4) through (a)(9) to specify definitions for

fixed test and inspection facility, FMCSA Agency Decisionmaker, FMCSA Agency Official, mobile tester, mobile testing

and

mobile test and inspection unit.

The definitions of

fixed test and inspection facility, mobile tester, mobile testing,

and

mobile test and inspection unit

are proposed to provide additional clarity and to help distinguish between fixed facilities and mobile testing units. As currently required, the registration statement must specify “whether the facility uses mobile testing/inspection equipment” (

see

§ 107.503(a)(3)). However, the HMR does not include definitions to help distinguish these types of operations.

Furthermore,

the definitions for

FMCSA Agency Decisionmaker

and

FMCSA Agency Official

are being proposed as they are referenced in new §§ 107.505, 107.506, and 107.507, and they align with FMCSA's organizational structure.

Paragraph (b) specifies that a person who is employed as a Registered Inspector or DCE is considered to be registered if the person's employer is registered. PHMSA proposes minor editorial changes to specify that the “inspector” is a “Registered Inspector” and capitalize the term “Design Certifying Engineer.”

Paragraph (d) specifies submission information for registration statements. PHMSA proposes to revise this paragraph to include an electronic method for submitting registration statements. In addition, PHMSA proposes to make editorial revisions of an administrative nature to this paragraph, including revising the mailing address for FMCSA.

Paragraph (e) details the applicant's receipt of registration statement. The first sentence specifies that a letter will be sent to the registrant and will assign the registrant with a registration number. The second sentence specifies that a separate registration number will be assigned for each cargo tank manufacturing, assembly, repair facility or other place of business identified by the registrant. PHMSA proposes to revise the first sentence of paragraph (e) to allow for the registrant letter to be sent electronically instead of only in a hard copy. This will promote electronic correspondence with FMCSA, which is faster and more efficient for all parties. PHMSA also proposes to move the second sentence of paragraph (e) to a new paragraph (f), but the regulatory text within the second sentence will remain unchanged. The proposed change provides increased visibility and emphasis that a separate registration number will be assigned for each cargo tank manufacturing, assembly, or repair facility, or other place of business identified by the registrant.

Section 107.503

This section specifies the requirements pertaining to the registration statement for persons who are engaged in the manufacture, assembly, inspection and testing, certification, or repair of a cargo tank or a cargo tank motor vehicle manufactured in accordance with a DOT specification or a special permit. PHMSA proposes to revise paragraph (a)(2) to include an email address for the facility or place of business, if applicable (

i.e.,

if they have an email address). This will promote electronic correspondence with FMCSA which is faster and more efficient for all parties.

PHMSA proposes to revise the statement for compliance in paragraph (a)(4) to ensure that the person responsible for compliance certifies that hazmat employees meet the minimum qualification requirements set forth in § 171.8 for Registered Inspectors or DCEs, and that they are appropriately trained and knowledgeable of all the functions they are registered to perform. FMCSA notes that one of the top violations of employers is a lack of hazmat training of hazmat employees, including Registered Inspectors or DCEs. Therefore, the certification statement is revised to include reference to training to emphasize the requirement.

In paragraph (c), PHMSA proposes to remove the last sentence, as June 30, 1992, has passed and thus, this is an outdated requirement.

Lastly, PHMSA proposes to add paragraph (d) to require that each person who performs the wet fluorescent magnetic particle exam submit a copy of their ASME Code compliant training certificate. The training is required in both Section V (Non-Destructive Examinations) and Section VIII, Division 1 of the ASME Code. Requiring the certificate will ensure that FMCSA can verify that each person who performs the wet fluorescent magnetic particle exam has received the appropriate training.

Section 107.505

This proposed new section provides for the modification, suspension, or termination of a cargo tank facility registration. During 2019, FMCSA investigations of cargo tank facilities discovered 254 instances where the facilities had not been in compliance with the regulatory requirements, yet the Department does not have a codified process to modify, suspend, or terminate registrations to address lack of compliance. The proposal to allow the modification, suspension or termination of cargo tank facility registrations also addresses NTSB Safety Recommendation H-18-005,

issued on January 30, 2018. This recommends that PHMSA revise the HMR to permit the suspension or termination of highway cargo tank registrations for failing to meet the requirements of the HMR. The safety recommendation was made after a March 11, 2016, incident where a cargo tank semitrailer separated from its truck-tractor and struck a rock. The impact with the rock breached the front head of the cargo tank, causing the lading to spill and a fire to occur. Although the investigation determined that the condition of the cargo tank was acceptable and its performance was consistent with its design, the investigation also discovered safety issues with inspection and testing of DOT Specification MC330 and MC331 cargo tanks and certification and training of cargo tank inspectors. The NTSB concluded that DOT needs to be able to suspend or terminate a cargo tank registration to ensure that when cargo tank facilities perform inadequate inspections, their authorization to do so can be terminated. Based on this safety recommendation, and additional recognition by FMCSA for the need of the ability to modify, suspend, or terminate a cargo tank registration, PHMSA proposes to add § 107.505 (along with § 107.506 for reconsideration and § 107.507 for appeal) to provide this authority. PHMSA proposes that this modification, suspension, or termination process in § 107.505 be consistent with existing FMCSA procedures for adjudicating motor carrier violations.

See NTSB Safety Recommendation H-18-005:

https://ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-18-005.

As proposed in paragraph (a), reasons for modification, suspension, or termination include: (1) that because of a change in circumstance, the registration is no longer needed or would not be granted if applied for; (2) that the application contained

inaccurate or incomplete information and it would not have been granted had it included accurate and complete information; (3) that the application contained deliberately inaccurate or incomplete information; or (4) that the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. Upon determination of this modification, suspension, or termination, and as proposed in paragraph (b), FMCSA will notify the registrant in writing or by electronic means of the proposed action and allow opportunity to show cause as to why the proposed action should not be taken. The registrant will then have 30 days from service of the notice to file a response to the notice. After consideration of the response, or after 30 days if no response has been filed, the FMCSA Agency Official will notify the registrant of a final decision with a brief statement of reasons and effective date of the action.

However, as proposed in paragraph (d), if a condition of imminent hazard exists, the FMCSA Agency Official may issue an immediately effective emergency order to the registration holder in accordance with § 109.17 of this subchapter.

As proposed in paragraph (c), the rules of practice for FMCSA proceedings for service and computation of time in §§ 386.6 and 386.8 of this title apply to this section, except that electronic service is permitted.

Section 107.506

This proposed new section provides for reconsideration of a registration that was modified, suspended, or terminated in accordance with proposed § 107.505. This proposed process is similar to existing FMCSA procedures. As proposed in paragraph (a), this request would be: (1) in writing or by electronic means and served within 20 days of service of the original decision; (2) state in detail any alleged errors of fact, law, or procedure; (3) state corrective actions taken, (4) enclose any additional information needed to support the request to reconsider; and (5) state in detail the modification of the final decision.

As proposed in paragraph (b), the decision issued under § 107.505 of this part remains effective pending a decision on reconsideration. The FMCSA Agency Official will consider requests to stay the decision using the criteria laid out in proposed § 107.507(b)(1)-(4). As proposed in paragraph (c), the FMCSA Agency Official request may request additional information or documents and, to ensure that the deficiencies identified as the basis for the action have been corrected, may conduct additional investigation. Furthermore, paragraph (d) specifies that the FMCSA Agency Official will grant or deny, in whole or in part, the relief requested, and the notification will be made in writing or by electronic means. As proposed in paragraph (e), the rules for FMCSA proceedings for service and computation of time in §§ 386.6 and 386.8 of this title apply to this section, except that electronic service is permitted.

Section 107.507

This proposed new section provides for an appeal process for a cargo tank facility that has had its registration modified, suspended, or terminated by the Department in accordance with proposed § 107.505 and has been denied reconsideration in accordance with proposed § 107.506. This ensures that the registrant has been provided due process. As proposed, the appeal of the FMCSA Agency Official's decision is adjudicated by the FMCSA Agency Decisionmaker. Similar to §§ 107.505 and 107.506, the language in proposed § 107.507 is intended to reflect existing FMCSA procedures.

As proposed in paragraph (a), the appeal will be submitted to the FMCSA Agency Decisionmaker and must: (1) be in writing and served within 30 days of receipt of the FMCSA Agency Official's decision on the FMCSA Agency Decisionmaker at the mailing or email address provided and on all parties to the proceeding; (2) state in detail any alleged errors of fact, law, or procedure; (3) enclose any additional information needed to support the appeal; and (4) state in detail the modification of the final decision sought. Furthermore, as detailed in paragraph (b), the FMCSA Agency Official's action remains effective pending a decision on appeal, unless a stay is requested and the FMCSA Agency Decisionmaker determines:

(1) There is a substantial likelihood that the requesting party will prevail on the merits;

(2) The requesting party will suffer irreparable injury absent the stay;

(3) The threatened injury outweighs whatever damage the stay may cause the opposing party; and

(4) The stay will not harm the public interest.

As proposed in paragraph (c) the FMCSA Agency Official, who bears the burden of proof, will respond to the appeal within 30 days of service of the appeal. Lastly, as proposed in paragraph (d), the FMCSA Agency Decisionmaker will grant or deny, in whole or in part, the relief requested. This decision is the final agency action.

As proposed, the rules for FMCSA proceedings for service and computation of time in §§ 386.6 and 386.8 of this title apply to this section, except that electronic service is permitted. This decision is the final administrative action.

Section 107.701

Section 107.701 contains the procedural requirements for the submission of registrations. PHMSA proposes to add an exception to paragraph (c) for the new subpart J. This exception will be applicable to tank car facilities and tank car DCE registrations. This aligns with the exception currently provided in paragraph (c) for subpart F, for cargo tank facilities and cargo tank DCEs. It allows tank car facility and tank car DCE registrations to be handled in the separate procedural manner outlined in the proposed subpart J, in which the registrations will be submitted to PHMSA, but subject to termination by FRA. See also our discussion in “Section II.B.5 Tank Car Facility and Design Certifying Engineer Registration” for additional information.

Part 107, Subpart J—“REGISTRATION OF TANK CAR FACILITIES AND DESIGN CERTIFYING ENGINEERS”

PHMSA proposes to create subpart J in part 107 (§§ 107.901-107.915) for tank car facility and tank car DCE registrations. The subpart includes definitions for terms used in the subpart, instructions for applying for registration for both tank car facilities and DCEs, and means of appeal if a registration is modified, suspended, or terminated. See also “Section II.B.5. Tank Car Facility and Design Certifying Engineer Registration” for additional details on the creation of this subpart.

Section 107.901

This proposed new section § 107.901 details the purpose and scope of new part 107 subpart J. Part 107 subpart J addresses the registration of tank car facilities and DCEs. Paragraph (b) details the threshold requirement that applicants for registration must be familiar with the HMR's requirements regarding specifications for tank cars (part 179) and the qualification and maintenance of tank cars (part 180, subpart F).

Section 107.903

This proposed new section § 107.903 details terms used in part 107, subpart

J and includes references to the location of their definition. The terms that PHMSA proposes to include in this section are

Design Certifying Engineer

(defined in § 171.8),

Qualification

(defined in § 180.503),

Tank car

(defined in § 179.2),

Tank car facility

(defined in § 179.2), and

Tank car tank

(defined in § 180.503). Additionally, PHMSA proposes to define

FRA Associate Administrator for Safety

and

FRA Administrator

as used in this subpart.

Section 107.905

This proposed new § 107.905 details the requirements for submitting a tank car facility registration, including the information required in the registration statement and where to send the information. This section requires all tank car facilities to register with PHMSA in order to legally qualify a DOT specification or special permit tank car.

In order to register with PHMSA, each tank car facility is required to provide a list of the qualification functions the tank car facility will perform, and identify the types of DOT specification or special permit tank cars that they intend to qualify. Paragraph (b) of this section prohibits tank car facilities from performing qualification functions that have not been identified in the registration. Each facility must also submit an executive summary of its current quality assurance program that is sufficient to demonstrate compliance with the requirements set out in § 179.7 in order to complete the registration process. PHMSA anticipates that this information will allow for effective oversight of registered tank car facilities.

Section 107.907

This proposed new § 107.907 details the requirements for submitting a tank car DCE registration. This section requires a DCE to be registered with PHMSA in order to legally approve the design of a DOT specification or DOT special permit tank car, as well as service equipment, and details the required information in the registration statement and where to send the information. Each registrant is required to provide a list of the specific design approval functions that the DCE will perform and identify the types of DOT specification and special permit tank cars and service equipment that the DCE will review. Paragraph (b) of this section prohibits design certifying engineers from performing design approval functions that have not been identified in the registration application. The registrant must also provide the name of each DCE, and a description of each DCE's experience that shows that they meet the requirements set out in § 171.8. PHMSA anticipates that this information will allow for effective oversight of registered tank car facilities.

Section 107.909

This proposed new § 107.909 details the proposed administrative details of the tank car facility and tank car DCE registration, including renewal requirements, requirements to update PHMSA on changes in activity and personnel, and record retention. As proposed, DCE registrations must be renewed every six years, and registrants must keep PHMSA updated on changes in company name, address, ownership, personnel employed as tank car DCEs, and design approval activities performed by the registrant. PHMSA will inform FRA of these changes. PHMSA and FRA intend that this communication will increase our level of oversight on the activities of engineers who review and approve tank car and service equipment designs compared the existing AAR TCC closed system. Additionally, non-compliance with these requirements may create the basis for revocation of the registration. This will allow PHMSA and FRA greater enforcement ability than the current system, which will lead to an increased level of safety.

Section 107.911

This proposed new § 107.911 details the reasons for which FRA may modify, suspend, or terminate a tank car facility or DCE registration. As proposed in paragraph (a), reasons for modification, suspension, or termination include: (1) because of a change in circumstances, the registration is no longer needed or would no longer be granted if applied for; (2) that the application contained inaccurate or incomplete information and it would not have been granted if complete or accurate information was provided; (3) that the application contained deliberately inaccurate or incomplete information; or (4) that the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. Upon determination of this modification, suspension, or termination, and as proposed in paragraph (b), FRA will notify the registrant in writing or by electronic means of the proposed action and allow opportunity to show cause as to why the proposed action should not be taken. The registrant will then have 30 days to file a response to the notice. After consideration of the response, or after 30 days have elapsed with no response from the registrant, the Associate Administrator for Safety, FRA will notify the registrant of a final decision with a brief statement of reasons.

However, as proposed in paragraph (c), if it is necessary to avoid a risk of significant harm to persons or property, then the Associate Administrator for Safety, FRA may declare the proposed corrective action immediately effective.

Section 107.913

This proposed new § 107.913 details the proposed process for requesting reconsideration of FRA's decision to modify, suspend, or terminate a tank car facility or DCE registration. This proposed process is similar to the current special permit and approval reconsideration procedures in §§ 107.123 and 107.715, respectively. As proposed in paragraph (a), this request would be: (1) by electronic means and filed within 20 days of receipt of the decision; (2) state in detail any alleged errors of fact and law; (3) enclose any additional information needed to support the request to reconsider; and (4) state in detail the modification of the final decision.

As proposed in paragraph (b), newly submitted information will be considered if the registration holder can show that the information could have not been submitted when the application was processed. Furthermore, paragraph (c) specifies that the Associate Administrator for Safety, FRA will grant or deny, in whole or in part, the relief requested, and allows the Associate Administrator for Safety, FRA to notify the requesting party of the decision in writing or by electronic means.

Section 107.915

This proposed new § 107.915 details the process for requesting an appeal of FRA's decision on reconsideration regarding a modified, suspended, or terminated tank car facility or DCE registration. This will ensure that the registrant has been provided due process. The appeal of the Associate Administrator for Safety, FRA's decision will be adjudicated by the FRA Administrator. Similar to §§ 107.911 and 107.913, the language in § 107.915 mirrors the current appeal process for DOT special permits and approvals in §§ 107.125 and 107.717, respectively, except that the appeal is directed to FRA, rather than PHMSA.

As proposed in paragraph (a), the appeal will be submitted to the FRA Administrator and must: (1) be by electronic means and filed within 30

days of receipt of the Associate Administrator for Safety, FRA's decision; (2) state in detail any alleged errors of fact and law; (3) enclose any additional information needed to support the appeal; and (4) state in detail the modification of the final decision sought. Furthermore, as detailed in paragraph (b), the FRA Administrator may declare the Associate Administrator for Safety, FRA's action remain effective pending a decision on appeal, if it is necessary to avoid a risk of significant harm to persons or property. Lastly, as proposed in paragraph (c), the FRA Administrator will grant or deny, in whole or in part, the relief requested. This decision is the final administrative action.

Part 171

Section 171.6

Section 171.6 provides information on the Office of Management and Budget (OMB) control numbers assigned to information collection in the HMR under the Paperwork Reduction Act of 1995. The paragraph (b)(2) table lists all of the HMR sections associated with each OMB control number. As this NPRM proposes to add new information collection to the regulations, PHMSA proposes to revise the table to include the section references where this information collection request is specified. In addition, PHMSA proposes minor editorial revisions for grammatical consistency. For details on the affected OMB control numbers, see “Section V.G. Paperwork Reduction Act.”

Section 171.7

This section details the IBR documents in the HMR. Paragraph (h) details IBR documents of the American Society of Testing and Materials (ASTM). In paragraph (h)(39), PHMSA proposes an editorial revision for standard method “ASTM D 1838-64 Copper Strip Corrosion by Liquefied Petroleum (LP) Gases, 1964” by adding the date “Reapproved 1968.” The current IBR document for the 1964 edition of ASTM 1838-64 has a reapproved date of 1968, but it is not specified in § 171.7. Therefore, PHMSA proposes this editorial amendment to add this date to provide regulatory clarity without amending the actual IBR standard. This standard is available for purchase at the following online location:

https://webstore.ansi.org/.

Paragraph (k) details IBR documents of the AAR. In paragraph (k), PHMSA proposes to revise editorially the AAR mailing address and website. As discussed in “Section II.A. Railroad Safety Advisory Committee,” PHMSA proposes to update the edition of and revise how the AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) is incorporated by reference in the HMR. Specifically, PHMSA proposes to update the 2014 edition of the AAR Specifications for Tank Cars, divide it into its component chapters and appendices and incorporate by reference each chapter and appendix in the relevant section of the HMR, as agreed to by the RSAC. This revision provides more specificity on the relevant AAR chapters and appendices that are incorporated by reference throughout the HMR, instead of generally indicating the entire manual. Additionally, PHMSA proposes to update the edition of the AAR Manual of Standards and Recommended Practices, Section C—II, Specifications for Design, Fabrication and Construction of Freight Cars, Chapter 5 to the 2011 edition from the 1988 edition, as agreed by the RSAC. This update also requires updating the title of the standard from “AAR Specifications for Design, Fabrication and Construction of Freight Cars,” to “AAR Manual of Standards and Recommended Practices, Section C—II Specifications for Design, Fabrication and Construction of Freight Cars” and moving the IBR from § 171.7(k)(4) to paragraph (k)(1) to align with the numerical organization of this paragraph. PHMSA also proposes to incorporate by reference the updated 2016 edition of the AAR Manual of Standards and Recommended Practices, Section C, Car Construction Fundamentals and Details, Standard S-286, Free/Unrestricted Interchange for 286,000 lb Gross Rail Load Cars for rail cars weighing up to 286,000 lbs., as agreed in RSAC into § 179.13, and move the current S-286 IBR reference to § 171.7(k)(20). These revisions are intended to update the incorporated by reference versions of these industry standards to reflect the current state of the art.

There are several sections and appendices from the AAR Specifications for Tank Cars that were recommended by the RSAC but are not proposed. This is because, based on the proposal to remove AAR as the sole approval for tank car designs, the incorporation by reference of these sections and appendices is not needed in the HMR at this time. As such, PHMSA does not propose to IBR Appendix B, Appendix L, and Appendix U of the AAR Specifications for Tank Cars into the HMR. As a matter of amendatory instructions, in § 171.7(k), PHMSA proposes to reserve where the omitted chapters and appendices would traditionally be located for future regulatory flexibility. See “Section II.B.6. AAR Specifications for Tank Cars Incorporation by Reference” for additional details.

PHMSA also proposes to incorporate by reference the following AAR documents:

• AAR Manual of Standards and Recommended Practices, Section C—II Specifications for Design, Fabrication and Construction of Freight Cars, Chapter 6 into § 179.400-6;

• AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) Chapter 2 in § 179.102-3;

• AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) Chapter 3 into §§ 173.241, 173.242, and 173.247; and

• AAR Manual of Standards and Recommended Practices, Section C—III, Specifications for Tank Cars, Specification M-1002 (AAR Specifications for Tank Cars) Appendix W into § 179.11.

Additional information on the purpose and intent of these IBRs can be found in their respective section-by-section discussions. These standards are available for purchase at the following online location:

https://aarpublications.com/msrp.html.

Paragraph (l) details IBR documents of the CI. Currently, paragraphs (l)(3) and (l)(4) include the IBR drawings for authorized PRDs for cargo tanks transporting chlorine. As discussed in “Section II.E. P-1712,” instead of adding the third drawing found in CI Pamphlet 49 to § 171.7, PHMSA proposes to remove the references to the PRD drawings and incorporate by reference CI Pamphlet 49 in total. Thus, PHMSA proposes to revise paragraph (l)(3) to read “Pamphlet 49, Recommended Practices for Handling Chlorine Bulk Highway Transports, Edition 10, December 2016, into § 173.315” and reserving paragraph (l)(4). This standard is available for purchase at the following online location:

https://www.chlorineinstitute.org/products.

Paragraph (n) details IBR documents of the CGA. In paragraph (n)(21), PHMSA proposes to update “CGA Technical Bulletin TB-2, Guidelines for Inspection and Repair of MC-330 and

MC-331 Cargo Tanks, 1980” to the 1997 edition, reaffirmed in 2015. The Technical Bulletin is now titled “P-26: Guidelines for Inspection and Repair of MC-330 and MC-331 Anhydrous Ammonia Cargo Tanks (formerly TB-2).” PHMSA proposes to incorporate by reference this newer version because it directs readers to the correct, relevant HMR citations and provides clearer instruction on the guidelines provided in the standard. For example, many of the HMR references in the 1980 edition (

i.e.,

the current IBR) point to part 173; however, the requirements are now found in part 180. PHMSA has reorganized the HMR and, thus, the citations in the 1980 edition are inaccurate, and updating to the 1997 edition will provide correct citations. These standards are available for purchase at the following online location:

https://www.cganet.com/standards/.

Section 171.8

Section 171.8 defines terms in the HMR. PHMSA proposes to amend the following definitions:

•

Cargo tank:

PHMSA proposes several minor editorial revisions to paragraph (1), which currently defines the materials a cargo tank is intended to hold, the encompassing parts of a cargo tank, and the HMR citations that detail cargo tank specifications. PHMSA proposed revisions include:

○ Add “solids” and “semi-solids” to the list of materials transported in cargo tanks, consistent with the § 178.320(a) definition of

cargo tank;

○ Consistent with the proposal to add a definition for

component,

which includes “fittings” as a type of component, replace the term “fittings” with the term “components.” See “Section IV. Section-by-Section Review; Part 178; Section 178.320”;

○ Alphabetize the list of parts of a cargo tank encompassed in the definition;

○ Revise the phrase “the definition of a tank” to read as “cargo tank specifications” in the parenthetical introductory language as this more accurately describes the section references list in paragraph (1);

○ Add a reference to § 178.345-1, as it is currently not included in the citation list, but should be included, as this section details cargo tank specifications for DOT Specification 406, 407, and 412 cargo tanks.

•

Design Certifying Engineer:

PHMSA proposes to make an editorial amendment to the current cargo tank DCE definition and add provisions to account for a tank car DCE. To accommodate the new criteria for a tank car DCE, PHMSA proposes to reorganize the current cargo tank DCE requirements from paragraphs (1)-(3) to paragraphs (1)(i)-(iii). PHMSA also proposes an editorial amendment in proposed paragraph (1)(i) to clarify that the one year of work experience requirement is a minimum requirement. The definition currently specifies a person must have exactly one year of experience in cargo tank structural or mechanical design with an engineering degree; however, it is not PHMSA's intent to limit this to only one year of experience. Instead, a person with at least one year of work experience in cargo tank structural or mechanical design, in addition to an engineering degree, meets the definition of a DCE for cargo tanks.

Additionally, and as previously discussed, PHMSA proposes to add criteria for a tank car DCE. As such, PHMSA proposes to revise the introductory paragraph and add paragraphs (2)(i) and (ii). The proposed criteria in paragraphs (2)(i) and (ii) mirror the current cargo tank DCE criteria in paragraphs (1)(i) and (ii). Specifically, as proposed, a

Design Certifying Engineer

for a tank car is “a person registered in accordance with subpart . . . J of part 107 . . . who has the knowledge and ability to perform stress analysis of pressure vessels and otherwise determine whether a . . . tank car design and construction meets the applicable DOT specification.” In addition, a tank car DCE is a person who either: “(i) has an engineering degree and at least one year of work experience in tank car structural or mechanical design or (ii) is currently registered as a professional engineer by an appropriate authority of a State of the United States or a province of Canada.” See “Section II.B.2. Tank Car Design Approval” for additional information on the proposed creation of tank car DCEs and “Section II.B.5. Tank Car Facility and Design Certifying Engineer Registration” for additional details on proposed registration requirements for DCEs.

Section 171.22

Section 171.22 authorizes the use of international dangerous goods transportation standards in place of the HMR, subject to the conditions and restrictions of §§ 171.22 to 171.26, including use of the International Civil Aviation Organization's (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air (Technical Instructions), the IMDG Code, Transport Canada's Transportation of Dangerous Goods (TDG) Regulations, and the International Atomic Energy Agency (IAEA) Regulations. PHMSA proposes to revise paragraph (f)(4) to specify that in addition to retaining a copy of the shipping paper, a person who provides for transportation or receives for transportation a shipping paper must make the shipping paper readily accessible for inspection. PHMSA and its modal partners have determined that the current shipping paper accessibility requirements in § 171.22(f)(4) create unnecessary delays during routine inspections because these forms are often made available several hours or days after the inspections are conducted. Therefore, PHMSA proposes to revise paragraph (f)(4) to indicate more clearly the expectation that shipping paper information must be made readily accessible to inspectors or other authorized individuals during inspections. This change is intended to increase safety by improving the ability of inspectors to conduct their reviews of hazardous materials shipments and increase efficiency by facilitating a quicker return to commerce for hazardous materials delayed by inspection. The intent of this revision is to ensure timely provision of shipping paper information for inspection of shipments in transportation (

e.g.,

container inspections in port areas). Access to historic shipping paper information after transportation has ended is a separate scenario, and may have other standards for reasonable provision of shipping paper information (

e.g.,

close of business the following business day for historic rail shipping paper information). See “Section IV. Section-by-Section Review; Part 174; Section 174.24” for further discussion of historic shipping paper availability in rail transportation.

Section 171.23

Section 171.23 establishes HMR requirements for specific materials and packagings transported under the ICAO Technical Instructions, IMDG Code, Transport Canada's TDG Regulations, and the IAEA Regulations. PHMSA proposes to revise the introductory text of paragraph (b)(5) and paragraph (b)(5)(iii) to clarify that the letters “RQ” and the name of the hazardous substance must be marked only on non-bulk packages that contain reportable quantities of a hazardous substance. The HMR do not currently require this marking on bulk packages because § 172.324, which requires the “RQ” marking, only applies to non-bulk packages. However, PHMSA and USCG understand that international shippers occasionally misinterpret § 171.23(b) as requiring this marking on bulk packagings. This proposed revision is

intended to decrease burdens on shippers by clarifying which markings are required and to avoid confusion in port areas. Shippers may apply the letters “RQ” and the name of the hazardous substance on a bulk packaging, but PHMSA and USCG discourage this practice as it might be unnecessarily confusing and burdensome.

Part 172

Section 172.101

Section 172.101 lists the HMT and provides explanatory text on the use of the table. Paragraph (j) provides explanatory text about Columns (9A) and (9B) of the HMT, including an indication that Column (9A) of the HMT identifies the maximum quantity of hazardous materials that may be offered in one package when transported by passenger-carrying aircraft or passenger-carrying rail car. However, as defined in § 171.8, a

rail car

means a car designed to carry freight or non-passenger personnel by rail. Therefore, a “passenger-carrying rail car” is inconsistent with the definition of a

rail car.

PHMSA proposes to revise editorially § 172.101(j) to indicate instead that Column (9A) is for the quantity limitation of passenger-carrying aircraft and passenger-carrying rail. This proposal decreases potential regulatory confusion without impacting safety. The proposed language was approved by consensus vote at the May 25, 2017, RSAC meeting and offered to PHMSA and FRA for consideration.

Section 172.102

This section details the meaning and requirements of the special provisions listed in Column (7) of the HMT. Special provision 13 is assigned to “UN1005, Ammonia, anhydrous, 2.2” and “UN3318, Ammonia solution,

relative density less than 0.880 at 15 degrees C in water, with more than 50 percent ammonia,

2.2.” PHMSA proposes to clarify that these materials are subject to security plan requirements. In final rule HM-232F,

PHMSA specified this stance:

75 FR 10973 (Mar. 9, 2010).

While anhydrous ammonia is classed for domestic transportation as a Division 2.2 material, it does pose a significant inhalation hazard and, thus, should be subjected to safety and security requirements that address that hazard. [PHMSA] note[s] further that by requiring security plans for materials that meet the definition for a material poisonous by inhalation, all materials that exhibit PIH characteristics are covered even if they are not specifically identified in column 3 of the § 172.101 table as Division 2.3 or 6.1 materials.

However, as currently written, it is not clear that security plan requirements apply to these shipments. Therefore, to ensure safe transportation of these hazardous materials, to facilitate compliance with the HMR, and to provide additional clarity, PHMSA proposes to specify that security plan requirements apply to materials assigned to special provision 13. This does not affect the classification of UN1005 and UN3318, and they may continue to be placarded with the Division 2.2 placard for domestic transportation. Additionally, this proposed change does not mean that persons who transport UN1005 or UN3318 are subject to FMCSA safety permit requirements; rather, the change is an explicit reminder that security plan requirements apply to this material.

PHMSA also proposes to revise special provision B45. This special provision, which is currently assigned to “UN1067, Dinitrogen tetroxide, 2.3 (5.1, 8),” requires that, “each tank must have a reclosing combination pressure relief device equipped with stainless steel or platinum rupture discs approved by the AAR Tank Car Committee.” In conformance with other proposals throughout this NPRM regarding AAR TCC approval requirements, PHMSA proposes to replace the reference to AAR TCC approval with a reference to a tank car DCE approval.

Section 172.303

This section identifies that no person may offer for transportation or transport a package marked as a hazardous material, unless the package contains that hazardous material, its residue, or it is excepted in accordance with paragraph (b) of the section. PHMSA proposes to add paragraph (b)(4) to permit the continued display of the “BIOHAZARD”, “HOT”, or sour crude oil markings when the hazardous material is no longer present. Section 172.502(b)(2) currently authorizes this continued display, as the section specifies that the display of a “BIOHAZARD”, “HOT”, or sour crude oil marking is not a prohibited placard. However, because § 172.303 does not include a matching provision to allow for the continued display of the “BIOHAZARD”, “HOT”, or sour crude oil markings, there may be potential confusion. Therefore, to provide regulatory clarity and to reinforce the current authorization, PHMSA proposes the editorial revision in § 172.303 to mirror the allowance in § 172.502.

Section 172.328

Section 172.328 details cargo tank marking requirements. Paragraph (d) requires that after October 3, 2005, each on-vehicle manually activated remote shutoff device for closure of the internal self-closing stop valve must have “Emergency Shutoff” marked on the cargo tank.

PHMSA proposes to add a paragraph title of “Emergency shutoff marking” to paragraph (d) to clarify that the paragraph relates to emergency shutoff markings. The Office of

Federal Register

Document Drafting Handbook provides instruction that when one section paragraph has a heading, all of the other paragraphs in the section should as well. As the other paragraphs in § 172.328 have headings, this editorial proposal ensures conformity with the Office of

Federal Register

Drafting Document Handbook.

PHMSA proposes to further revise paragraph (d) editorially. First, PHMSA proposes to remove the compliance date of October 3, 2005, from paragraph (d). As this date has passed, there is no need for the compliance date to remain in the paragraph. PHMSA also proposes to add introductory language to this paragraph to specify that the emergency shutoff marking is only required for cargo tank motor vehicles subject to emergency remote shutoff device requirements under the HMR. This is not intended to add any new regulatory requirements; instead, it is added to clarify editorially the applicability of the paragraph.

Lastly, PHMSA proposes to require that the emergency shutoff marking requirement applies to both internal and external self-closing stop valves, instead of just internal self-closing stop valves. This proposal addresses a potential safety gap where an external self-closing stop valve is on the cargo tank, but it is not appropriately marked. Thus, both internal and external self-closing stop valves can be appropriately identified and activated during a hazardous material incident, which leads to an increase in safety.

Section 172.336

Section 172.336 outlines special provisions for the display of UN ID numbers. PHMSA proposes to revise the § 172.336(c) table, which provides scenarios where UN ID numbers are either not required or an exception applies. As discussed in “Section II.D. Cargo Tank Marking for Petroleum Distillate Fuels,” PHMSA proposes to add a sixth row to the table to authorize display of the UN ID number representing the petroleum distillate fuel with the lowest flash point that is

transported in a cargo tank in different trips on the previous or current business day. However, due to different emergency response procedures, PHMSA also proposes that the exception is not applicable when the cargo tank transports gasoline and alcohol fuel blends consisting of more than 10% ethanol. This is consistent with the current requirements in the fifth row of the table. Specifically, PHMSA proposes that in this circumstance, the UN ID numbers “3475” or “1987” must also be displayed, as appropriate, and the cargo tank may only display “3475” or “1987” when the material is in the cargo tank. Therefore, if the liquid petroleum distillate fuel with the lowest flash point transported in the cargo tank in different trips on the previous or current business day is a gasoline and alcohol fuel blend consisting of more than 10% ethanol, and it is not being transported in the cargo tank, “3475” or “1987” may not be displayed on the cargo tank. In this scenario, the cargo tank should display either the UN ID number of the liquid petroleum distillate fuel with the next lowest flash point transported in different trips on the previous or current business day or the liquid petroleum distillate fuel that is being transported.

Lastly, PHMSA proposes to specify that the exception in the fifth row only applies to compartmented cargo tanks and compartmented tank cars. This will distinguish clearly the fifth and sixth row exceptions. The fifth row authorizes the display of the UN ID number of the petroleum distillate fuel with the lowest flash point when the cargo tank or tank car contains more than one petroleum distillate fuel. The fifth-row exception is only possible when the cargo tank or the tank car is compartmented (

i.e.,

it has multiple compartments each with a different petroleum distillate fuel). Therefore, PHMSA proposes to remove the term “cargo tank” to indicate clearly the exception only applies to “compartmented cargo tanks or compartmented tank cars.”

Section 172.504

Section 172.504 prescribes the general requirements for placarding. Paragraph (b) authorizes the use of the “DANGEROUS” placard when transporting two or more categories of hazardous materials that require a different placard specified in table 2 of § 172.504(e). PHMSA proposes to prohibit the use of the “DANGEROUS” placard to describe multiple categories of hazardous materials being transported by vessel. PHMSA and USCG identified vessel operator confusion with the display of the “DANGEROUS” placard because the “DANGEROUS” placard is not authorized in the IMDG Code. It is advantageous to harmonize the HMR with the IMDG Code to promote efficient vessel transportation by removing the authorization to use this placard. Furthermore, the “DANGEROUS” placard may not provide adequate information on the hazardous materials inside the container for emergency response onboard vessels. PHMSA and USCG experience is that it is also very rare for the “DANGEROUS” placard to be displayed on a freight container for vessel transportation. Therefore, PHMSA proposes to add this limitation in a new paragraph (b)(2), while also moving the existing usage limitation for the “DANGEROUS” placard (over 2,205 lbs. aggregate gross weight or more of one category of material is loaded at one loading facility) to a new paragraph (b)(1). Please note that “DANGEROUS” placards may continue to be appropriately used for highway or rail transportation, when applicable, prior to, or after, the portion of transportation by vessel.

Section 172.516

Section 172.516 details the visibility and display of placards, including paragraph (d), which specifies that the recommended placard holder specifications are set forth in Appendix C. PHMSA proposes to revise the size of the recommended placard holder dimensions in Appendix C to part 172. As de

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