Transportation of Hazardous Materials by Rail; Miscellaneous Amendments; Response to Petitions for Reconsideration

DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 172, 173, 174 and 179

[Docket No. HM-216; Amdt Nos. 172-148, 173-252, 174-83, 179-52 ]

RIN 2137-AC66

Transportation of Hazardous Materials by Rail; Miscellaneous

Amendments; Response to Petitions for Reconsideration

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Final rule; editorial revisions and response to petitions for

reconsideration.

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SUMMARY: On June 5, 1996, RSPA published a final rule which amended the

Hazardous Materials Regulations to incorporate a number of changes to

rail requirements based on rulemaking petitions from industry and RSPA

initiatives. The intended effect of the June 5, 1996 rule is to improve

safety and reduce costs to offerors and transporters of hazardous

materials. This final rule corrects errors in that final rule and

responds to petitions for reconsideration.

DATES: Effective date. This final rule is effective October 1, 1996.

The effective date for the final rule published under Docket HM-216 on

June 5, 1996 (61 FR 28666) remains October 1, 1996.

Compliance date. However, compliance with the regulations is

authorized from June 30, 1996.

FOR FURTHER INFORMATION CONTACT: Beth Romo, telephone (202) 366-8553,

Office of Hazardous Materials Standards, Research and Special Programs

Administration, Washington DC, 20590-0001, or James H. Rader, telephone

(202) 632-3339, Office of Safety Assurance and Compliance, Federal

Railroad Administration, Washington DC, 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On June 5, 1996, RSPA issued a final rule under Docket HM-216 [61

FR 28666]. The final rule made changes to the HMR, applicable to rail

carriers, shippers, and tank car owners and lessors, based on petitions

for rulemaking submitted in accordance with 49 CFR 106.31 or agency

initiative. RSPA received several petitions for reconsideration to the

final rule concerning the voluntary compliance date of June 30, 1996,

which allowed rail shippers and carriers to discontinue use of the

RESIDUE placard. In a June 28, 1996 letter, RSPA denied these petitions

for reconsideration. This letter of denial was published in the Federal

Register on July 25, 1996 [61 FR 38643] and included a statement of

enforcement policy by the Federal Railroad Administration (FRA).

In addition, RSPA received several other petitions for

reconsideration, as well as other correspondence identifying errors or

requesting clarification. This document incorporates editorial and

technical revisions RSPA has determined are necessary to correct or

clarify the final rule.

Because the amendments adopted herein clarify and relax certain

provisions of the June 5, 1996 final rule, and impose no new regulatory

burden on any person, notice and public procedure are unnecessary. For

these same reasons, these amendments are being made effective on the

same effective date of the June 5, 1996 final rule, without the usual

30-day delay following publication.

II. Summary of Regulatory Changes Made by Section

Listed below is a section-by-section summary of the changes.

Part 172

Section 172.102. Special Provision B65 is revised by correcting two

typographical errors. The ``Class DOT 105J'' reference should read

``Class DOT 105A'' and the wording ``safety relief device'' should read

``pressure relief device''.

Section 172.330. On July 3, 1996, The Chemical Manufacturers

Association's Vinyl Chloride Panel Transportation Committee (CMA-VCC)

filed a petition for reconsideration concerning the marking of tank

cars containing vinyl chloride. CMA-VCC claimed that revised marking

requirements adopted under Docket HM-216 are unduly burdensome because

they require addition of the word ``stabilized'' or ``inhibited'' as

part of the proper shipping name marked on the tank without a

corresponding increase in safety. Further, CMA-VCC states that the

remarking process is costly, primarily because the cars must be removed

from service. In some cases, entire fleets will have to be removed from

service over the next three months in order to achieve compliance. To

reduce the burden on the industry, CMA-VCC requests a five-year period

to comply with the rule. This five-year period coincides with the

regular service schedule for these cars.

In a final rule issued December 29, 1994 under Docket HM-215A [59

FR 67390], the proper shipping name for ``Vinyl chloride'' was amended

to add the word ``stabilized.'' A delayed compliance period provided

under Docket HM-215A authorizes use of either proper shipping name

(``Vinyl chloride'' or ``Vinyl chloride, stabilized'') until October 1,

1996. On or after that date, the word ``stabilized'' must appear as

part of the proper shipping name. Based on pre-Docket HM-216 marking

requirements in Sec. 173.314, after October 1, 1996, the word

``stabilized'' would have been required to appear as part of the proper

shipping name marking (provided such cars were marked after October 1,

1991; see Sec. 172.302(f)).

The Docket HM-216 notice of proposed rulemaking proposed a

reduction in the number of proper shipping names required to be marked

on tank cars and also proposed that only the ``key words'' of the

proper shipping name must be marked. Based on numerous comments,

including those from the emergency response community, opposing these

proposed changes in marking requirements, RSPA did not reduce the

number of proper shipping names required to be marked on tank cars, but

consolidated existing marking requirements into Sec. 172.330. Limited

relief was provided by adopting the proposal to require only key words

of the proper shipping name to be marked; however, the final rule

indicated that qualifying words, such as ``compressed,'' ``liquefied,''

``stabilized'' and ``inhibited'' were considered to be ``key words.''

After further consideration, RSPA believes that certain qualifying

words do not sufficiently enhance the effectiveness of this marking,

and the parenthetical example in paragraph (a)(1)(ii) creates confusion

as to which qualifying words in a proper shipping name must be

considered ``key words.'' Consequently, RSPA is amending paragraph

(a)(1)(ii) by removing the parenthetical wording ``(including words

such as `stabilized', `inhibited', `compressed', or `liquefied')''.

This change does not limit or prohibit the marking of additional words

on a tank car. A tank car may be marked with words such as

``liquefied'' or ``stabilized''.

Section 172.514. In the section heading and paragraphs (a) and (b),

the phrase ``other than a tank car'' is removed. Based on the removal

of the ``RESIDUE'' placard in the June 5, 1996 final rule, this phrase

is no longer necessary because placarding requirements for tank cars

are the same as for other bulk packagings.

[[Page 50253]]

Part 173

Section 173.314. In the paragraph (c) table, in Column (3), the

wording ``120A'' is corrected to read ``120'' for each commodity

authorized in this tank car class.

Part 174

Section 174.24. In Sec. 174.24, the first two sentences are revised

to clarify that no person may accept or transport a hazardous material

unless that person receives a shipping paper that contains the

information required by part 172 (i.e., the proper shipping

description, emergency response telephone number, and the shipper's

certification). The paragraph is further clarified to state that only

the initial carrier within the United States must receive and retain a

copy of the offeror's certified shipping paper.

Section 174.85. In paragraph (c), a separation requirement is

revised to clarify that a placarded tank car may not be used to

separate a tank car containing a residue of a hazardous material from a

locomotive or occupied caboose. This change makes consistent the

requirements of paragraph (c) with those contained in paragraph (d).

(Also see the preamble discussion in the final rule [61 FR 28666,

28670].)

Part 179

Section 179.15. In Sec. 179.15, several editorial changes are made,

and in paragraph (f)(1) a sentence is added to clarify that until

October 1, 1998, a tank car must have a nonreclosing pressure relief

device incorporating a rupture disc designed to burst at a pressure

corresponding to the new requirements in this final rule or to the old

requirements in effect on September 30, 1996.

A manufacturer of safety valves and safety vents for tank cars

opposed the pressure relief device amendment that would allow for an

increase in the start-to-discharge pressure from 30 percent to 33

percent of the tank burst pressure. This petitioner claimed that the

change would reduce the level of safety by 10 percent, and that the

change did not correspond to the ASME code as purported by RSPA. The

petitioner further stated that the ASME code primarily deals with

stationary pressure vessels where ``plants have maintenance departments

that give their stationary valves tender loving care,'' and that

``[t]ank cars, on the other hand, are frequently looked upon as someone

else's problem and their valves and fittings are given minimum

attention.''

RSPA and FRA disagree. Prior to adoption of the HM-216 amendment,

the HMR and several exemptions authorized an increase in the start-to-

discharge pressure setting on the pressure relief device for several

commodities, such as liquefied petroleum gas and anhydrous ammonia.

This change simply expands the requirement to all commodities,

including those that pose less risk in transportation. Further, the

start-to-discharge pressure setting on the pressure relief device in

the ASME code is partly based on the physical properties of the lading

at a reference temperature, static head, and gas padding pressure in

the tank. Because of the ASME code's wide use in stationary storage

tanks, cargo tanks, and IM portable tanks, RSPA proposed and adopted

the principal code for tank cars in Docket HM-216. Accordingly, the

start-to-discharge pressure of a pressure relief device on a tank car

is now based on the physical properties of the lading and not solely on

the tank specification. Since the lading, and not the tank

specification, ``drives'' the start-to-discharge pressure setting of

the pressure relief device, this provision is now in harmony with the

ASME code. Furthermore, the design of a tank car must account for the

dynamic train-action loads that are transmitted into the tank shell

(axial compression and bending moments). As such, tank wall thickness

is more of a function of the train-action loads as opposed to simply

lading retention. Therefore, a direct comparison between tank cars and

the ASME code is not totally possible, especially when comparing levels

of safety.

This petitioner also disagreed with RSPA and FRA's position that it

was better to remove the disc from the vent in order to examine the

disc for corrosion and damage. The petitioner explained that the

construction of the disc does not allow an inspector to determine the

condition of the disc and that removal of the disc can allow water and

vapor to enter the tank or for pollutants to escape from the tank.

Further, in order to disassemble the nonreclosing pressure relief

device an offeror would have to step outside of the loading platform

area, thus ``workers will be disinclined to take the discs out of the

vents to look at the vacuum support side, so no inspection of the disc

will take place.''

RSPA and FRA disagree. The preamble discussion in Docket HM-216

simply makes clear an offeror's responsibility--that each person who

offers a hazardous material for transportation in a tank car must

ensure that the ``tank car is in proper condition and safe for

transportation.'' The provision also requires a ``careful inspection of

the frangible [rupture] disc in non-reclosing pressure relief

devices.'' A rupture disc failure in transportation poses a potential

threat to human health and the environment. This threat is best

mitigated by the careful inspection of the disc to ensure its integrity

prior to transportation. A careful inspection does not simply mean a

cursory look at the top of the disc; defects can and do arise in any

material and on any surface, including the bottom side of the disc.

Since non-reclosing pressure relief devices account for a large number

of non-accident releases and railroad worker injuries, it simply cannot

be argued that a partial inspection of the disc will qualify the whole

disc for further use and help prevent such releases. Offerors must

acknowledge that the cost of using a non-reclosing pressure relief

device includes not just the purchase price, but also the cost of

inspection, maintenance, and repair prior to each shipment. In cases

where there is a concern about air and water vapors entering the tank

or pollutants discharged from the tank, it is RSPA and FRA's opinion

that the offeror should use a reclosing pressure relief device, as

opposed to a nonreclosing pressure relief device that allows for the

movement of unwanted vapors and pollutants into or out of the tank

after disc rupture.

Section 179.100-7. In Sec. 179.100-7, the minimum elongation

requirements for AAR TC 128, Gr. B and ASTM A 302, Gr. B are corrected

to read ``19'' and ``20'' respectively.

Section 179.201-4. A manufacturer of safety valves and safety vents

for tank cars asked RSPA to amend Sec. 179.201-4 to authorize the

finishing of as cast internal surfaces of stainless castings prior to

testing. Section 179.201-4 requires the use of a standard practice,

ASTM-262, for detecting the susceptibility to intergranular attack in

austenic stainless steels. ASTM-262 requires the surface of a test

specimen to conform to the actual surface of the casting used in

service. The standard further authorizes the finishing of the test

specimen surface to remove foreign material and to obtain a standard,

uniform finish, by polishing. As to the removal of surface

carburization, caused by carbonaceous binders in the sand, the ASTM-262

standard prohibits grinding and machining to remove the carburized

surface, except in tests undertaken to demonstrate such effects.

In 1988, this petitioner and the Association of American Railroads

(AAR) reviewed the ASTM-262 standard as it applies to carburized

surfaces. The review resulted in a 1988

[[Page 50254]]

amendment to Appendix M of the AAR Tank Car Manual that now allows for

the finishing, by grinding and machining, on all surfaces prior to

testing. Based on the recognized industry standard practice for

detecting the susceptibility to intergranular attack in austenic

stainless steel and these comments, RSPA is amending Sec. 179.201-4 to

authorize finishing, by machining or grinding, prior to testing.

Section 179.300-7. RSPA received one petition for reconsideration

relating to the use of steels for the construction of multi-unit tank

car tanks. The petitioner stated that the removal of steel

specifications A285 and A515 will cause an enormous disruption to users

of multi-unit tank car tanks and in particular to the chlorine

industry, which uses A285 for forge welding Class DOT 106A multi-unit

tank car tanks. The petitioner also asked RSPA to consider adding ASTM

A516 Gr 70 to the table, since this material is often used in the

construction of multi-unit tank car tanks under exemption (DOT-E 9157

and DOT-E 3216). RSPA agrees that the steel specifications in

Sec. 179.300-7 were inadvertently removed in the final rule. RSPA also

is adding ASTM A516 Gr. 70 to the table based on comments received.

III. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action

under section 3(f) of Executive Order 12866 and therefore, was not

reviewed by the Office of Management and Budget. The rule is not

considered a significant rule under the Regulatory Policies and

Procedures of the Department of Transportation [44 FR 11034].

The economic impact of this rule is expected to result in only

minimal costs to certain persons subject to the HMR and may result in

modest cost savings to a small number of persons subject to the HMR and

to the agency. Because of the minimal economic impact of this rule,

preparation of a regulatory impact analysis or a regulatory evaluation

is not warranted.

B. Executive Order 12612

The June 5, 1996 final rule, as amended herein, was analyzed in

accordance with the principles and criteria contained in Executive

Order 12612 (``Federalism''). Federal law expressly preempts State,

local, and Indian tribe requirements applicable to the transportation

of hazardous material that cover certain subjects and are not

substantively the same as Federal requirements. 49 U.S.C. 5125(b)(1).

These subjects are:

(1) The designation, description, and classification of hazardous

material;

(2) The packing, repacking, handling, labeling, marking, and

placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents

pertaining to hazardous material, and requirements respecting the

number, content, and placement of such documents;

(4) The written notification, recording, and reporting of the

unintentional release in transportation of hazardous material; or

(5) The design, manufacturing, fabrication, marking, maintenance,

reconditioning, repairing, or testing of a package or container which

is represented, marked, certified, or sold as qualified for use in the

transportation of hazardous material.

This final rule preempts State, local, or Indian tribe requirements

concerning these subjects unless the non-Federal requirements are

``substantively the same'' (see 49 CFR 107.202(d)) as the Federal

requirements. RSPA lacks discretion in this area, and preparation of a

federalism assessment is not warranted.

Federal law (49 U.S.C. 5125(b)(2)) provides that if DOT issues a

regulation concerning any of the covered subjects, DOT must determine

and publish in the Federal Register the effective date of Federal

preemption. The effective date may not be earlier than the 90th day

following the date of issuance of the final rule and not later than two

years after the date of issuance. RSPA determined that the effective

date of Federal preemption for these requirements in the June 5, 1996

final rule would be October 1, 1996. The effective date of Federal

preemption for the changes made in this final rule will be December 24,

1996.

C. Regulatory Flexibility Act

This final rule responds to petitions for reconsideration and

agency review. It is intended to make editorial and technical

corrections, provide clarification of the regulations and relax certain

requirements. Therefore, I certify that this final rule will not have a

significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

There are no new information collection requirements in this final

rule.

E. Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory

action listed in the Unified Agenda of Federal Regulations. The

Regulatory Information Service Center publishes the Unified Agenda in

April and October of each year. The RIN number contained in the heading

of this document can be used to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 172

Hazardous materials transportation, Hazardous waste, Labels,

Markings, Packaging and containers, Reporting and recordkeeping

requirements.

49 CFR Part 173

Hazardous materials transportation, Packaging and containers,

Radioactive materials, Reporting and recordkeeping requirements,

Uranium.

49 CFR Part 174

Hazardous materials transportation, Radioactive materials, Railroad

safety.

49 CFR Part 179

Hazardous materials transportation, Incorporation by reference,

Railroad safety, Reporting and recordkeeping requirements.

In consideration of the foregoing, 49 CFR parts 172, 173, 174 and

179 are amended as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS

MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND

TRAINING REQUIREMENTS

1. The authority citation for Part 172 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

Sec. 172.102 [Amended]

2. In Sec. 172.102, in paragraph (c)(3), for Special Provision B65,

as amended at 61 FR 28675, effective October 1, 1996, the wording

``Class 105J'' is revised to read ``Class 105A'' and the wording

``safety relief device'' is revised to read ``pressure relief device''.

Sec. 172.330 [Amended]

3. In Sec. 172.330, in paragraph (a)(1)(ii), as revised at 61 FR

28676, effective October 1, 1996, the wording ``(including words such

as `stabilized', `inhibited', `compressed', or `liquefied')'' is

removed.

Sec. 172.514 [Amended]

4. In Sec. 172.514, the following changes are made:

a. In the section heading, the wording ``other than tank cars'' is

removed.

[[Page 50255]]

b. In paragraph (a) and paragraph (b) introductory text, the

wording ``, other than a tank car,'' is removed each place it appears.

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND

PACKAGINGS

5. The authority citation for Part 173 continues to read as

follows:

Authority: 49 U.S.C. 5102-5127; 49 CFR 1.53.

Sec. 173.314 [Amended]

6. In Sec. 173.314, in the paragraph (c) table, as amended at 61 FR

28677, effective October 1, 1996, in Column 3, the wording ``120A'' is

revised to read ``120'' each place it appears.

PART 174--CARRIAGE BY RAIL

7. The authority citation for Part 174 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

8. In Sec. 174.24, as revised at 61 FR 28677, effective October 1,

1996, the first two sentences are revised to read as follows:

Sec. 174.24 Shipping papers.

A person may not accept or transport a hazardous material by rail

unless that person receives a shipping paper that properly conveys the

information required by part 172 of this subchapter. Only an initial

carrier within the United States must receive and retain a copy of the

shipper's certification as required by Sec. 172.204 of this subchapter.

* * *

Sec. 174.85 [Amended]

9. In Sec. 174.85, in paragraph (c), as revised at 61 FR 28678,

effective October 1, 1996, the wording ``non-placarded rail car'' is

revised to read ``rail car other than a placarded tank car''.

PART 179--SPECIFICATIONS FOR TANK CARS

10. The authority citation for Part 179 continues to read as

follows:

Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

11. In Sec. 179.15, as added at 61 FR 28678, effective October 1,

1996, paragraph (f)(1) is revised to read as follows:

Sec. 179.15 Pressure relief devices.

* * * * *

(f) * * *

(1) Until October 1, 1998, a nonreclosing pressure relief device

must incorporate a rupture disc designed to burst at a pressure no less

than 100% of the tank test pressure but no more than 33% of the tank

burst pressure. After that date, a nonreclosing pressure relief device

must incorporate a rupture disc designed to burst at 33% of the tank

burst pressure.

* * * * *

Sec. 179.15 [Amended]

12. In addition, in Sec. 179.15, the following changes are made:

a. In the introductory text, the wording ``pressure relief system''

is revised to read ``pressure relief device, made of material

compatible with the lading,''.

b. In the paragraph (b) heading, the word ``valves'' is revised to

read ``devices''.

c. In paragraph (b)(2)(i), the wording ``start-to-discharge

pressure'' is revised to read ``start-to-discharge pressure of a

pressure relief device''.

d. In the paragraph (c) heading, the word ``systems'' is revised to

read ``devices''.

e. In paragraph (e) introductory text, at the end of the first

sentence, the wording ``nonreclosing pressure relief valve'' is revised

to read ``reclosing pressure relief valve''.

Sec. 179.100-7 [Amended]

13. In Sec. 179.100-7, in the paragraph (a) table, as revised at 61

FR 28679, effective October 1, 1996, the following changes are made:

a. In the first entry, ``AAR TC128, Gr. B'', in the third column,

the entry ``20'' is revised to read ``19''.

b. In the second entry, ``ASTM A 302, Gr. B'', in the third column,

the entry ``19'' is revised to read ``20''.

Sec. 179.201-4 [Amended]

14. In Sec. 179.201-4, as amended at 61 FR 28681, effective October

1, 1996, at the end of the paragraph, the wording ``ASTM Specification

A 262'' is revised to read ``ASTM Specification A 262, except that when

preparing the specimen for testing the carburized surface may be

finished by grinding or machining''.

15. In Sec. 179.300-7, as amended at 61 FR 28682, effective October

1, 1996, in the paragraph (a) table, the following entries are added in

numerical order to read as follows:

Sec. 179.300-7 Materials.

(a) * * *

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

Elongation in

Tensile 2 inches

strength (percent)

Specifications (psi) welded welded

condition condition \1\

\1\ (longitudinal)

(minimum) (minimum)

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

* * * * *

ASTM A285 Gr. A........................... 45,000 29

ASTM A285 Gr. B........................... 50,000 20

ASTM A285 Gr. C........................... 55,000 20

ASTM A515 Gr. 65.......................... 65,000 20

ASTM A515 Gr. 70.......................... 70,000 20

ASTM A516 Gr. 70.......................... 70,000 20

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

\1\ Maximum stresses to be used in calculations.

* * * * *

Issued in Washington, DC on September 16, 1996, under authority

delegated in 49 CFR part 1.

Kelley S. Coyner,

Deputy Administrator, Research and Special Programs Administration.

[FR Doc. 96-24124 Filed 9-24-96; 8:45 am]

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