[Federal Register Volume 73, Number 63 (Tuesday, April 1, 2008)]
[Proposed Rules]
[Pages 17818-17865]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6563]



[[Page 17817]]

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Part V





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Parts 171, 173, 174 and 179



Hazardous Materials: Improving the Safety of Railroad Tank Car 
Transportation of Hazardous Materials; Proposed Rule

Federal Register / Vol. 73, No. 63 / Tuesday, April 1, 2008 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 173, 174 and 179

[Docket No. FRA-2006-25169]
RIN 2130-AB69


Hazardous Materials: Improving the Safety of Railroad Tank Car 
Transportation of Hazardous Materials

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration and 
the Federal Railroad Administration are proposing revisions to the 
Federal Hazardous Materials Regulations to improve the crashworthiness 
protection of railroad tank cars designed to transport poison 
inhalation hazard materials. Specifically, we are proposing enhanced 
tank car performance standards for head and shell impacts; operational 
restrictions for trains hauling tank cars containing PIH materials; 
interim operational restrictions for trains hauling tank cars not 
meeting the enhanced performance standards; and an allowance to 
increase the gross weight of tank cars that meet the enhanced tank-head 
and shell puncture-resistance systems.

DATES: Submit comments by June 2, 2008. To the extent possible, late-
filed comments will be considered as we develop a final rule.

ADDRESSES: You may submit comments identified by the docket number FRA-
2006-25169 by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 1-202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    Instructions: All submissions must include the agency name and 
docket number (FRA-2006-25169) for this rulemaking. Note that all 
comments received will be posted without change to http://
www.regulations.gov including any personal information. Please see the 
Privacy Act heading in the ``Regulatory Analyses and Notices'' section 
of this document for Privacy Act information related to any submitted 
comments or materials. Internet users may access comments received by 
DOT at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, 
Office of Safety Assurance and Compliance, Federal Railroad 
Administration; Lucinda Henriksen, (202) 493-1345, Office of Chief 
Counsel, Federal Railroad Administration; or Michael Stevens, (202) 
366-8553, Office of Hazardous Materials Standards, Pipeline and 
Hazardous Materials Safety Administration.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
ABS--Automatic Block Signal
Action Plan--National Rail Safety Action Plan
ADAMS--Automated Dynamic Analysis of Mechanical Systems
ARI--American Railway Car Institute
ATIP--Automated Track Geometry Program
BNSF--BNSF Railway Company
BTS--Bureau of Transportation Statistics
C3RS--Confidential Close Call Reporting System
CEQ--Council on Environmental Quality
CPC--Casualty Prevention Circular
CI--Chlorine Institute
CP--Canadian Pacific
CPR--Conditional Probability of Release
CSXT--CSX Transportation
Department--U.S. Department of Transportation
DOW--Dow Chemical Company
DOT--U.S. Department of Transportation
ECP--Electronically Controlled Pneumatic Brake Systems
ETMS--Electronic Train Management System
Federal hazmat law--Federal hazardous materials transportation law 
(40 U.S.C. 5101 et seq.)
FRA--Federal Railroad Administration
HMR--Hazardous Materials Regulations
NGRTCP--Next Generation Rail Tank Car Project
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
OMB--Office of Management and Budget
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Poison Inhalation Hazard
PTC--Positive Train Control
PV--Present Value
QA--Quality Assurance
R&D--Research and Development
RSAC--Railroad Safety Advisory Committee
RSI--Railway Supply Institute
SAFETEA-LU--Safe, Accountable, Flexible, Efficient, Transportation 
Equity Act: A Legacy for Users, Pub. L. 109-59
SBA--Small Business Administration
SOMC--Association of American Railroads Safety and Operations 
Management Committee
SRT--Structural Reliability Technologies
Tank Car Manual--Association of American Railroads Tank Car 
Committee Tank Car Manual
TCC--Association of American Railroads Tank Car Committee
TFI--The Fertilizer Institute
TIH--Toxic Inhalation Hazard
TRANSCAER[supreg]--Transportation Community Awareness and Emergency 
Response
TSA--Department of Homeland Security, Transportation Security 
Administration
Trinity--Trinity Industries, Inc.
Union Tank--Union Tank Car Company
UP--Union Pacific Railroad Company
Volpe--Volpe National Transportation Systems Center

Table of Contents for Supplementary Information

I. Background
II. Summary of Proposals in this NPRM
III. Statutory Authority, Congressional Mandate, and NTSB 
Recommendations
IV. Brief Overview of FRA Programs to Continuously Improve Rail 
Safety Outside of Tank Car-Specific Efforts
V. Relevant Regulatory Framework
VI. Railroad Accidents Involving Hazardous Materials Releases and 
Accompanying NTSB Recommendations
    A. Minot
    B. FRA's Responses to the NTSB Tank Car Recommendations for 
Minot
    C. Macdona
    D. Graniteville
    E. FRA's Responses to the NTSB Tank Car Recommendations for 
Graniteville
VII. Evaluating the Risk Related to Potential Catastrophic Releases 
from PIH Tank Cars in the Future
    A. Graniteville
    B. Minot
VIII. The Railroad Industry's Liability and the Impact of Accidents 
Involving the Shipment of PIH Materials on Insurance Costs and 
Shipping Rates
IX. Industry Efforts to Improve Railroad Hazardous Materials 
Transportation Safety
    A. General Industry Efforts
    B. Trinity Industries, Inc.'s Special Permit Chlorine Car
    C. AAR Proposals for Enhanced Chlorine and Anhydrous Ammonia 
Tank Cars
    D. Dow/UP Safety Initiative and the Next Generation Rail Tank 
Car Project
    E. The Chlorine Institute Study
X. Discussion of Relevant Tank Car Research
XI. Discussion of Public Comments
    A. May 31-June 1, 2006 Public Meeting
    B. December 14, 2006 Public Meeting
    C. March 30, 2007 Public Meeting
XII. Proposed Rule and Alternatives
XIII. Section-by-Section Analysis
XIV. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act and Executive Order 13272

[[Page 17819]]

    F. Paperwork Reduction Act
    G. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act

I. Background

    Hazardous materials are essential to the economy of the United 
States and to the well being of its people. These materials are used in 
water purification, farming, manufacturing, and other industrial 
applications. Railroads carry over 1.7 million shipments of hazardous 
materials annually, including millions of tons of explosive, poisonous, 
corrosive, flammable, and radioactive materials. The need for hazardous 
materials to support essential services means that the transportation 
of highly hazardous materials is unavoidable.
    Rail transportation of hazardous materials is a safe method for 
moving large quantities of hazardous materials over long distances. The 
vast majority of hazardous materials shipped by railroad tank car each 
year arrive at their destinations safely and without incident. In the 
year 2004 (most recent data available), for example, out of the 
approximately 1.7 million shipments of hazardous materials transported 
by rail, there were 29 accidents in which a hazardous material was 
released. In these accidents, a total of 47 hazardous material cars 
released some amount of product; thus, the risk of a release was a tiny 
fraction of a percent (0.0028 percent or 47/1,700,000). The DOT 
Hazardous Materials Information System's ten-year incident data for 
1997 through 2006 identifies a total of 17 fatalities resulting from 
rail hazardous materials incidents. While even one death is too many, 
these statistics show that train accidents involving a release of 
hazardous materials that causes death are rare. We recognize, however, 
that rail shipments of hazardous materials frequently move through 
densely populated or environmentally-sensitive areas where the 
consequences of an incident could be loss of life, serious injury, or 
significant environmental damage.
    Historically, the Pipeline and Hazardous Materials Safety 
Administration (PHMSA), working closely with the Federal Railroad 
Administration (FRA), has issued a number of regulations to improve the 
survivability of rail tank cars in accidents.\1\ Among other things, 
these regulations require hazardous material tank cars to be equipped 
with tank-head puncture resistance systems (head protection), coupler 
vertical restraint systems (shelf couplers), insulation, and for 
certain high-hazard materials, thermal protection systems. The 
historical safety record of railroad tank car hazardous material 
transportation demonstrates that these systems, working in combination, 
have been successful in greatly reducing the potential harm to human 
health and the environment when tank cars are involved in accidents.
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    \1\Crashworthiness Protection Requirements for Tank Cars; 
Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, 
Thermal Protection Flaws and Other Defects of Tank Car Tanks, 60 FR 
49048 (Sept. 21, 1995); Performance-Oriented Packaging Standards; 
Miscellaneous Amendments, 58 FR 50224 (Sept. 24, 1993); Performance 
Oriented Packaging: Changes to Classification, Hazard Communication, 
Packaging and Handling Requirements Based on UN Standards and Agency 
Initiative, 55 FR 52402 (Dec. 21, 1990); Transportation of Hazardous 
Materials, Miscellaneous Amendments, 54 FR 38790 (Sept. 20, 1989); 
Specifications for Railroad Tank Cars Used to Transport Hazardous 
Materials, 49 FR 3468 (Jan. 27, 1984); Shippers, Specifications for 
Tank Cars, 49 FR 3473 (Jan. 27, 1984); Interlocking Couplers and 
Restrictions of Capacity of Tank Cars, 35 FR 14215 (Sept. 9, 1970); 
Shippers; Specifications for Pressure Tank Cars, 42 FR 46306 (Sept. 
15, 1977); Tank Car Tank-head Protection, 41 FR 21475 (May 26, 
1976).
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    In the last several years, however, there have been a number of 
rail tank car accidents in which the car was breached and product lost 
on the ground or into the atmosphere. Of particular concern have been 
accidents involving materials that are poisonous, or toxic, by 
inhalation (referred to as PIH or TIH materials). For example, on 
January 18, 2002, a Canadian Pacific Railway Company (CP) train 
derailed in Minot, North Dakota, resulting in one death and 11 serious 
injuries due to the release of anhydrous ammonia when five tank cars 
carrying the product catastrophically ruptured, and a vapor plume 
covered the derailment site and surrounding area. On June 28, 2004, a 
Union Pacific Railroad Company (UP) train collided with a Burlington 
Northern and Santa Fe Railway Company (now known as BNSF Railway 
Company) (BNSF) train in Macdona, Texas, breaching a loaded tank car 
containing chlorine and causing the deaths of three people and 
seriously injuring 30 others. On January 6, 2005, a Norfolk Southern 
Railway Company train collided with a standing train on a siding in 
Graniteville, South Carolina. The accident resulted in the breach of a 
tank car containing chlorine, and nine people died from the inhalation 
of chlorine vapors. Although none of these accidents was caused by 
hazardous material tank cars, the failure of the tank cars involved led 
to fatalities, injuries, evacuations, property and environmental 
damage.
    On August 10, 2005, Congress passed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. 
L. 109-59 (SAFETEA-LU). SAFETEA-LU added section 20155 to the Federal 
hazmat law. 49 U.S.C. Sec.  20155. As discussed below, section 20155, 
in part, required FRA to (1) validate a predictive model quantifying 
the relevant dynamic forces acting on railroad tank cars under accident 
conditions, and (2) initiate a rulemaking to develop and implement 
appropriate design standards for pressurized tank cars.
    In response to these recent accidents and in light of Congress's 
mandate in SAFETEA-LU to develop and implement appropriate design 
standards for pressurized tank cars, PHMSA and FRA, the two operating 
administrations within DOT responsible for overseeing the safe 
transportation of hazardous materials by rail, initiated a 
comprehensive review of design and operational factors that affect rail 
tank car safety. DOT's approach to enhancing the safety of rail tank 
cars and transportation of hazardous materials by rail tank cars is on-
going and multi-faceted. For example, DOT is utilizing a risk 
management approach to identify ways to enhance the safe transportation 
of hazardous materials in tank cars, including: (1) Tank car design, 
manufacture, and requalification; (2) railroad operational issues such 
as human factors, track conditions and maintenance, wayside hazard 
detectors, signals and train control systems; and (3) improved planning 
and training for emergency response.
    Recognizing the need for public input into this review of hazardous 
material tank car safety, on May 31 and June 1, 2006, PHMSA and FRA 
hosted a public meeting to discuss the initiation of this comprehensive 
review and to invite interested parties to participate in the agencies' 
efforts to surface and prioritize issues relating to the safe 
transportation of hazardous materials by railroad tank car. Subsequent 
to the meeting, FRA established a public docket (Docket No. FRA-2006-
25169) to provide interested parties with a central location to both 
send and review relevant information concerning the safety of railroad 
tank car transportation of hazardous materials and a venue to gather 
and disseminate information and views on the issues. See 71 FR 37974 
(July 3, 2006).
    Building on the initial public meeting, FRA and PHMSA held a second 
public meeting on December 14, 2006. At this second meeting, FRA 
announced DOT's commitment to develop an enhanced tank car standard by 
2008. In addition,

[[Page 17820]]

at this meeting, the agencies solicited input and comments in response 
to nine specific questions pertaining to potential methods and goals of 
tank car improvements. On March 30, 2007, PHMSA and FRA held a third 
public meeting at which FRA shared the preliminary results of its 
research related to tank car survivability and provided an update on 
DOT's progress towards developing enhanced tank car safety standards.
    As discussed in Section XI below, meeting participants from both 
the railroad and shipping industries expressed agreement on the need 
for continuous improvement in the safe transportation of hazardous 
materials by railroad tank car, particularly in light of the Minot, 
Macdona, and Graniteville accidents. Accordingly, after careful review 
and consideration of all of the relevant research and data, oral 
comments at the public meetings, and comments submitted to the docket, 
PHMSA and FRA are proposing enhanced tank car performance standards and 
operating limitations designed to minimize the loss of lading from tank 
cars transporting PIH materials in the event of an accident.
    Issuance of this NPRM does not mean that FRA and PHMSA's efforts to 
improve tank car safety will end. Improving the safety and security of 
hazardous materials transportation via railroad tank car is an on-going 
process. Going forward, FRA's hazardous materials research and 
development (R&D) program will continue to focus on reducing the rate 
and severity of hazardous materials releases by optimizing the 
manufacture, operation, inspection, and maintenance procedures for the 
hazardous materials tank car fleet. FRA's overall R&D program will also 
continue to examine railroad operating practices and the use of 
technologies designed to increase overall railroad safety.

II. Summary of Proposals in this NPRM

    As discussed in detail in Section X below, DOT's tank car research 
has shown that the rupture of tank cars and loss of lading are 
principally associated with the car-to-car impacts that occur as a 
result of derailments and train-to-train collisions. Conditions during 
an accident can be such that a coupler of one car impacts the head or 
the shell of a tank car. With sufficient speed, such impacts can lead 
to rupture and loss of lading. When a tank car is transporting PIH 
materials, the consequences of that loss of lading can be significant. 
Based on the information currently available, DOT believes that a 
significant opportunity exists to enhance the safe transportation of 
PIH materials by railroad tank car. Accordingly, in order to enhance 
the safety of hazardous materials transportation, and in direct 
response to the Congressional directive of 49 U.S.C. 20155, DOT is 
proposing revisions to the Hazardous Materials Regulations (HMR; 49 CFR 
Parts 171-180) that would improve the accident survivability of 
railroad tank cars used to transport PIH materials. Specifically, in 
this NPRM, we are proposing to require:
     A maximum speed limit of 50 mph for all railroad tank cars 
used to transport PIH materials;
     A maximum speed limit of 30 mph in non-signaled (i.e., 
dark) territory for all railroad tank cars transporting PIH materials, 
unless the material is transported in a tank car meeting the enhanced 
tank-head and shell puncture-resistance systems performance standards 
of this proposal;
     As an alternative to the maximum speed limit of 30 mph in 
dark territory, submission for FRA approval of a complete risk 
assessment and risk mitigation strategy establishing that operating 
conditions over the subject track provide at least an equivalent level 
of safety as that provided by signaled track;
     Railroad tank cars used to transport PIH materials to be 
manufactured to meet enhanced performance standards for tank-head and 
shell puncture-resistance systems;
     The expedited replacement of tank cars used for the 
transportation of PIH materials manufactured before 1989 with non-
normalized steel \2\ head or shell construction; and
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    \2\ Non-normalized steel is steel that has not been subjected to 
a specific heat treatment procedure that improves the steel's 
ability to resist fracture.
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     An allowance to increase the gross weight on rail for tank 
cars designed to meet the proposed enhanced tank-head and shell 
puncture-resistance systems performance standards.
    In drafting this proposed rule, DOT has carefully considered the 
results of all of its research regarding tank car accident 
survivability, all comments received through the series of public 
meetings held in the course of DOT's comprehensive review of tank car 
safety, as well as all written comments submitted to the docket of this 
proceeding. DOT believes that its two-pronged approach to enhancing the 
accident survivability of tank cars--that is, limiting the operating 
conditions of the tank cars transporting PIH materials and enhancing 
the tank-head and shell puncture-resistance performance--represents the 
most efficient and cost-effective method of improving the accident 
survivability of these cars. DOT invites comments on all aspects of 
this proposed rule.
    First, with regard to the proposed speed and operating 
restrictions, we have reviewed the results of research on the current 
tank car fleet used for the transportation of PIH materials. We have 
also reviewed recent accidents and subsequent recommendations of the 
National Transportation Safety Board (NTSB). As discussed in Section X 
below, FRA's research demonstrates that the speed at which a train is 
traveling has the greatest effect on the closing velocity between cars 
involved in a derailment or other accident situation. Specifically, the 
research indicates that, in general, the secondary car-to-car impact 
speed is approximately one-half that of the initial train speed--the 
speed of the train at the time of the collision or derailment. Limiting 
the operating speed of tank cars transporting PIH materials is one 
method to impose a control on the forces experienced by these tank 
cars.
    The rail industry, through the Association of American Railroads 
(AAR), has developed a detailed protocol on recommended operating 
practices for the transportation of hazardous materials. These 
recommended practices were originally implemented in 1990 by all of the 
Class 1 rail carriers operating in the United States. In 2006, AAR 
issued a revised version of this protocol, known as Circular OT-55-I, 
with short-line railroads also participating in the implementation. 
Among other requirements, OT-55-I restricts the operating speeds to a 
maximum of 50 mph for key trains, which are defined to include trains 
containing five or more tank car loads of PIH materials. Pursuant to 
OT-55-I, most trains with tank cars containing PIH materials are 
transported under this speed restriction. The period in which these 
tank cars are picked up or delivered is the most likely time when a 
train might not contain a sufficient quantity of hazardous materials to 
meet the definition of a key train and thus not operate under the 50 
mph speed restriction. However, it is likely that the class of track 
into the facility may already limit the speed below 50 mph. Under FRA's 
Track Safety Standards,\3\ there are minimum safety requirements that a 
track must meet, and the condition of the track is directly tied to the 
maximum allowable operating speed for the track. Only the two highest 
categories of track typically used for freight service, Classes 4 and 
5,

[[Page 17821]]

have a maximum allowable operating speed above 50 mph. In addition, 50% 
of track in the United States is non-signaled and restricted by the 
Track Safety Standards to a speed limit of 49 mph. We therefore believe 
that the proposed restrictions in this NPRM represent an effective way 
to control the forces experienced by the tank car during most 
derailment or accident conditions without imposing an undue burden on 
the industry. We invite commenters to address whether our assumption 
that most tank cars transporting PIH materials are transported in 
accordance with the speed restrictions in OT-55-I is accurate, 
particularly for smaller and short-line carriers. In addition, we 
invite commenters to address whether there are alternative approaches 
to reduce the consequences of a train derailment or accident involving 
PIH materials, including data and information in support of suggested 
alternative approaches or strategies.
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    \3\ See 49 CFR part 213.
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    FRA analyzed data from chlorine incidents between 1965 and 2005, 
and anhydrous ammonia incidents between 1981 and 2005, to study those 
incidents resulting in loss of product from head and shell punctures, 
cracks, and tears.\4\ This analysis suggests that a disproportionate 
number of those incidents occurred in non-signaled (dark) territory, as 
compared to the percentage of total train miles in dark territory. 
Additionally, this analysis showed that at the time of these accidents, 
the median train speed was 40 mph and the average speed was 38 mph. 
This analysis also demonstrates that approximately 80% of the losses 
occurred at speeds greater than 30 mph. Notably, no catastrophic losses 
of chlorine occurred at speeds below 30 mph. Based on this data, we are 
proposing an interim measure to limit the speed of the existing fleet 
of tank cars used to transport PIH materials when traversing non-
signaled territory. Specifically, we propose to limit the maximum 
allowable operating speed to 30 mph for tank cars transporting PIH 
materials over non-signaled territory unless the tank cars meet the 
enhanced tank-head and shell puncture-resistance systems performance 
standards of this proposal. We are also proposing alternate provisions 
that a railroad may choose to follow in lieu of the speed restriction.
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    \4\ See document no. 30 in docket no. FRA-2006-25169, ``Loss of 
TIH Product in Head and Shell Punctures, Cracks & Tears.''
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    Second, we are proposing enhanced tank-head and shell puncture-
resistance performance standards that are designed to enhance the 
accident survivability of tank cars. One critical aspect of this 
enhancement is improved tank-head and shell puncture-resistance 
standards. The enhanced standards would require tank cars that 
transport PIH materials in the United States to be designed and 
manufactured with a shell puncture-resistance system capable of 
withstanding impact at 25 mph and with a tank-head puncture-resistance 
system capable of withstanding impact at 30 mph. As noted above, we are 
proposing these enhanced performance standards in tandem with an 
operational speed restriction of 50 mph. Because the secondary car-to-
car impact speed in a derailment or collision scenario is approximately 
one-half of the initial train speed, designing and constructing tank 
cars to withstand shell impacts of at least 25 mph and limiting the 
speed of those tank cars to 50 mph will ensure that in most instances, 
the car will not be breached if it is involved in a derailment or other 
type of accident. Designing and constructing tank cars to withstand 
tank-head impacts of at least 30 mph would take advantage of the 
greater available space for impact-attenuating structures in front of 
the tank-head and would help mitigate possible differences between the 
generalized tank-head impact scenarios and the actual tank-head impacts 
that occur in collisions or derailments.
    Empirical evidence from recent accidents and the derailment 
dynamics research prepared by the Volpe National Transportation Systems 
Center (Volpe) show that impacts happen to both tank car heads and 
shells. Tank car heads have historically been provided more protection 
than tank shells because the majority of tank car punctures occurred in 
rail yards to the heads of tank cars as a result of overspeed impacts. 
However, given the recent PIH releases in train accidents, we believe 
that it is time to enhance the accident survivability of the tank car, 
increasing the level of protection to both the tank-head and the shell.
    To support the enhanced tank-head and shell puncture-resistance 
standards, we are proposing performance criteria, including impact test 
requirements. The proposed tests reflect generalized impact scenarios 
as a means to evaluate the performance of alternative designs. In the 
shell impact scenario, a rigid ram car with a punch impacts the shell 
of the tank car. Similarly, in the head impact scenario, a rigid ram 
car with a punch impacts the head of the tank car. The test procedures 
are based on the modeling developed by Volpe and the baseline tank car 
testing performed in cooperation with the Next Generation Rail Tank Car 
Project (NGRTCP), as discussed in Section IX below.
    As proposed in this NPRM, compliance with the proposed standards 
can be shown by computer simulation, by simulation in conjunction with 
substructure testing, by full-scale impact testing, or a combination 
thereof. The highest level of confidence, although at the greatest 
cost, is provided by full-scale impact testing. The least costly and 
lowest level of confidence is provided by simulation alone. 
Substructure testing significantly increases the confidence in 
simulation modeling, potentially with relatively modest costs, 
depending on the details of the substructure test. Economic analysis 
indicates that freight rail industry economics should allow the 
development of several new tank car designs, through compliance shown 
with simulations and substructure testing. The performance criteria 
proposed in this NPRM provide for full-scale testing, scale model or 
component testing, simulation, or comparative analysis to an approved 
design. We are proposing to require designs for which no full-scale 
testing is performed to be submitted to FRA for review. FRA's review is 
necessary to ensure that modeling parameters and scale or substructure 
testing are sufficient to ensure that the necessary level of safety has 
been achieved. In evaluating a design, FRA will consider appropriate 
data and analysis showing how the proposed design meets the enhanced 
performance standards for head and shell impacts. FRA will consider 
proper documentation of competent engineering analysis or practical 
demonstrations, or both, which may include validated computer modeling, 
structural crush analysis, component testing, or any combination 
thereof. This approach is consistent with FRA's practice in determining 
compliance with equipment performance standards promulgated in other 
areas of railroad safety. See, e.g., 49 CFR 229.211 (Locomotive 
Crashworthiness). We request comments on this proposal.
    Third, to ensure timely replacement of the PIH tank car fleet, we 
are proposing an implementation schedule that allows for design 
development and manufacturing ramp-up in the first two years after the 
final rule becomes effective. We are also proposing that in the next 
three years, one-half of the existing fleet will be replaced, with the 
remaining fleet replacement taking place in the following three years. 
This schedule will allow for replacement of the current PIH tank car 
fleet within eight years from the effective date of the final rule.

[[Page 17822]]

    One of the factors we have taken into consideration in developing 
this proposal is the NTSB's recommendations related to pre-1989 tank 
cars manufactured with non-normalized steel. The NTSB, in its report on 
the Minot, North Dakota accident,\5\ concluded that low fracture 
toughness of non-normalized steels used for tank shells contributed to 
the complete fracture and separation of the derailed cars. While we 
believe that low fracture toughness of non-normalized steels is only 
one of many material and design characteristics that can contribute to 
tank car releases, the pre-1989 tank cars are reaching the upper limits 
of their useful life. Therefore, we believe that these pre-1989 cars, 
which were manufactured with non-normalized steel, should be replaced 
in an expedited fashion. To accomplish this safety goal, we propose to 
prohibit the use of tank cars manufactured with non-normalized steel 
heads or shells beginning five years after the effective date of the 
final rule. We want to emphasize that this requirement is focused on 
the expedited removal of the pre-1989 tank cars that were manufactured 
using non-normalized steel. We recognize the efforts of the AAR to 
incorporate requirements for normalized steel for cars manufactured 
after 1988. We also recognize that some tank car manufacturers began 
using normalized steel prior to 1988; those tank cars would not be 
affected by this proposal.
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    \5\ See infra Section VI for a detailed discussion of the Minot, 
North Dakota accident.
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    Finally, we are proposing to allow an increase in the gross weight 
of tank cars allowed on rail. Improvements in tank car performance have 
historically relied in large part on thicker and/or stronger steel, 
which brings with it a corresponding addition to the empty weight of 
the tank car. Therefore, a potential consequence of the proposed 
enhanced tank-head and shell puncture-resistance performance standards 
in this NPRM could be a measurable increase in the total number of PIH 
rail shipments to convey the same quantity of product to the customer 
since a heavier tank car means must contain less lading to keep within 
the gross weight limit. As noted above, however, there is a long 
history of safe shipment of hazardous materials via railroad tank car, 
and the enhancements proposed in this NPRM will further increase the 
accident survivability of the tank cars used to transport PIH 
materials. Accordingly, we are proposing to allow an increase in the 
gross weight allowed on rail (up to 286,000 pounds) for tank cars that 
transport PIH materials to offset the potentially increased weight of 
the enhanced tank car.
    This measure should enable shippers to continue meeting customer 
demands without significantly increasing the total number of PIH 
shipments. In proposing to allow tank cars meeting the enhanced tank-
head and shell puncture-resistance system requirements to weigh up to 
286,000 pounds gross weight on rail, we recognize that there are 
mechanical and structural concerns that must be addressed to ensure the 
safety of these cars during transportation. To ensure that tank cars 
exceeding the existing 263,000 pound limitation and weighing up to 
286,000 pounds gross weight on rail are mechanically and structurally 
sound, we propose to require that such cars conform to AAR Standard S-
286-2002, SPECIFICATION FOR 286,000 LBS. GROSS RAIL LOAD CARS FOR FREE/
UNRESTRICTED INTERCHANGE SERVICE (adopted November 2002 and revised 
September 1, 2005), which we propose to incorporate by reference into 
the HMR. AAR Standard S-286-2002 is the existing industry standard for 
designing, building, and operating rail cars at gross weights between 
263,000 pounds and 286,000 pounds. A copy of AAR Standard S-286-2002 
has been placed in the docket.
    We recognize that some facilities and railroads do not currently 
have infrastructure sufficient to support the use of a 286,000 pound 
tank car. We anticipate tank car designers, working with the end users, 
will develop tank cars that will meet the enhanced tank-head and shell 
performance standards while minimizing the addition of weight to the 
empty car. The existing tank car specifications provide flexibility 
that will allow some use of new technologies and materials to provide 
the improved accident survivability required by this proposal. DOT 
encourages the development of innovative engineering design changes to 
meet the proposed enhanced accident survivability standard while 
minimizing added weight to the empty tank car. We also anticipate that 
the growing use of rail cars with gross weight on rail exceeding 
263,000 lbs. for non-hazardous commodities, such as coal and grain, 
will minimize the track infrastructure barriers to the use of the 
heavier cars over time. For these reasons, we believe that the number 
of PIH shipments will not be significantly increased by the proposed 
enhanced accident survivability standards. As in all aspects of this 
proposed rule, we request comments on this proposal. We are 
particularly interested in data and information concerning the extent 
to which track infrastructure has already been modified to accommodate 
heavier rail cars, including how those modifications were accomplished 
and at what cost. We also invite comments concerning additional 
infrastructure modifications that may be required to accommodate the 
heavier cars that would be permitted in accordance with the proposals 
in this NPRM and the extent to which PIH shipments along certain rail 
lines may increase because existing infrastructure may not accommodate 
heavier cars.
    The specific proposals in this rule are explained in more detail in 
Section XIII, the Section-by-Section Analysis, which is set forth 
below.

III. Statutory Authority, Congressional Mandate, and NTSB 
Recommendations

    The Federal hazardous material transportation law (Federal hazmat 
law, 49 U.S.C. 5101 et seq.) authorizes the Secretary of DOT 
(Secretary) to ``prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce.'' The Secretary has delegated this authority to 
PHMSA. 49 CFR 1.53(b). The HMR, promulgated by PHMSA, are designed to 
achieve three goals: (1) To ensure that hazardous materials are 
packaged and handled safely and securely during transportation; (2) to 
provide effective communication to transportation workers and emergency 
responders of the hazards of the materials being transported; and (3) 
to minimize the consequences of an incident should one occur. The 
hazardous material regulatory system is a risk management system that 
is prevention-oriented and focused on identifying a safety or security 
hazard and reducing the probability and quantity of a hazardous 
material release.
    Under the HMR, hazardous materials are categorized by analysis and 
experience into hazard classes and packing groups based upon the risks 
that they present during transportation. The HMR specify appropriate 
packaging and handling requirements for hazardous materials, and 
require a shipper to communicate the material's hazards through the use 
of shipping papers, package marking and labeling, and vehicle 
placarding. The HMR also require shippers to provide emergency response 
information applicable to the specific hazard or hazards of the 
material being transported. Finally, the HMR mandate training 
requirements for persons who prepare hazardous materials for shipment 
or who transport hazardous materials in commerce. The HMR also include 
operational

[[Page 17823]]

requirements applicable to each mode of transportation.
    The Secretary also has authority over all areas of railroad 
transportation safety (Federal railroad safety laws, 49 U.S.C. 20101 et 
seq.), and has delegated this authority to FRA. 49 CFR 1.49. Pursuant 
to its statutory authority, FRA promulgates and enforces a 
comprehensive regulatory program (49 CFR parts 200-244) to address 
railroad track, signal systems, railroad communications, rolling stock, 
rear-end marking devices, safety glazing, railroad accident/incident 
reporting, locational requirements for the dispatch of U.S. rail 
operations, safety integration plans governing railroad consolidations, 
merger and acquisitions of control, operating practices, passenger 
train emergency preparedness, alcohol and drug testing, locomotive 
engineer certification, and workplace safety. FRA inspects railroads 
and shippers for compliance with both FRA and PHMSA regulations. FRA 
also conducts research and development to enhance railroad safety. In 
addition, both PHMSA and FRA are working with the emergency response 
community to enhance its ability to respond quickly and effectively to 
rail transportation accidents involving hazardous materials.
    As noted above, on August 10, 2005, Congress passed SAFETEA-LU, 
which added section 20155 to the Federal hazmat law. 49 U.S.C. 20155. 
In part, section 20155 required FRA to (1) validate a predictive model 
quantifying the relevant dynamic forces acting on railroad tank cars 
under accident conditions, and (2) initiate a rulemaking to develop and 
implement appropriate design standards for pressurized tank cars.
    Prior to the Minot accident and the enactment of SAFETEA-LU, FRA 
had initiated tank car structural integrity research. In response to 
the Minot accident, the NTSB made four safety recommendations to FRA 
specific to the structural integrity of hazardous material tank cars. 
The NTSB recommended that FRA analyze the impact resistance of steels 
in the shells of pressure tank cars constructed before 1989 and 
establish a program to rank those cars according to their risk of 
catastrophic failure and implement measures to eliminate or mitigate 
this risk. The NTSB also recommended that FRA validate the predictive 
model being developed to quantify the maximum dynamic forces acting on 
railroad tank cars under accident conditions and develop and implement 
tank car design-specific fracture toughness standards for tank cars 
used for the transportation of materials designated as Class 2 
hazardous materials under the HMR. In response to the Graniteville 
accident, the NTSB recommended, in part, that FRA ``require railroads 
to implement operating measures such as * * * reducing speeds through 
populated areas to minimize impact forces from accidents and reduce the 
vulnerability of tank cars transporting'' certain highly-hazardous 
materials. Each of these NTSB recommendations is discussed in more 
detail in Section VI below.
    The Department considers this NPRM responsive to section 20155's 
mandate, as well as to the NTSB recommendations.

IV. Brief Overview of FRA Programs To Continuously Improve Rail Safety 
Outside of Tank Car-Specific Efforts

    FRA implements a broad and extensive safety program directed at 
reducing accidents, casualties, loss of property and threats to the 
human environment. Through the Railroad Accident/Incident Reporting 
System, FRA gathers data that are employed in crafting responsive 
measures. See 49 CFR part 225. FRA safety standards address track, 
equipment, signal and train control systems, motive power and 
equipment, and operating practices. These regulations set out detailed 
requirements for design or system performance, inspection and testing, 
and training. With respect to rail equipment accident/incidents 
(``train accidents''), the regulations seek to reduce the risk of 
derailments, collisions, and other losses such as fires involving on-
track equipment. FRA employs the Railroad Safety Advisory Committee 
(RSAC), a group comprised of all of FRA's stakeholders, to help 
identify safety needs and to fashion responsive regulations.
    FRA also conducts R&D, both independently and in concert with the 
railroad industry, to identify new ways to enhance safety. R&D products 
are as diverse as the Track Quality Index, which can help guide 
investments in program maintenance before safety limits are 
encountered, and a human-machine interface evaluation tool that can 
help evaluate control systems and display designs.
    On May 16, 2005, DOT and FRA launched the National Rail Safety 
Action Plan (Action Plan) to address further the safety issues that 
face the nation's rail industry. The Action Plan targeted the most 
frequent, highest risk causes of accidents; focused federal oversight 
and inspection resources; and accelerated research into new 
technologies that can improve safety.
    The Action Plan elements focused heavily on preventing train 
accidents caused by human factors and track--the two major categories 
of train accident causes. In the area of human factors, FRA has issued 
a proposed rule that seeks to ensure better management of railroad 
operational tests and inspections. The proposed rule is also intended 
to establish greater accountability for compliance with operating 
rules, particularly those that are involved in human factors train 
accidents, such as the handling of switches. FRA is now completing 
consultations within the RSAC regarding resolution of public comments 
on the proposed rule, and a final rule will be issued this year.
    In November 2006, FRA fulfilled an Action Plan objective by 
releasing a study report entitled Validation and Calibration of a 
Fatigue Assessment Tool for Railroad Work Schedules. That report, and 
an accompanying White Paper, confirmed the impact of fatigue on human 
factor train accidents and announced the availability of an analytical 
model that can be used to evaluate crew scheduling. On February 13, 
2007, DOT delivered proposed railroad safety reauthorization 
legislation to the Congress (introduced by request as H.R. 1516 and S. 
918) that would replace the 100-year-old Hours of Service Law with 
science-based regulations addressing fatigue.
    Because the genesis of human factors accidents is often unclear, 
FRA joined with a national coalition of employee organizations and 
railroads to launch the Confidential Close Call Reporting System 
(C3RS). The Bureau of Transportation Statistics (BTS) supports this 
effort by collecting the data and ensuring the anonymity of the persons 
providing reports. Local labor/management/FRA teams use the data to 
identify safety needs before a serious accident occurs. An initial C3RS 
project is presently underway at a major UP facility, and additional 
pilots are being planned. Other human factors initiatives include 
projects on ``behavior-based safety'' that seek peer involvement in 
workplace safety, initiatives to promote crew resource management, and 
extensive research to support further program development. In FY 2008, 
FRA will be seeking to integrate many of these efforts into a larger 
Risk Reduction Program intended to advance safety beyond what can be 
accomplished with traditional command and control approaches.
    Recognizing that the best answer to human factor risks is sometimes 
technology that can ``backstop'' the person in cases when errors have 
high

[[Page 17824]]

consequences, FRA continues to work actively to promote Positive Train 
Control (PTC) systems and similar technology. For instance, FRA R&D 
provided funding and technical support for the BNSF's deployment of a 
new Switch Position Monitoring System on the railroad's Avard 
Subdivision. This system can detect a misaligned main track switch in 
non-signal territory and provide notification to the dispatcher for 
appropriate action. BNSF is also demonstrating track integrity circuit 
technology that can help identify broken rails without the full expense 
of a signal system. These technologies, which are forward compatible 
with the railroad's PTC system, known as the Electronic Train 
Management System (ETMS), are already being installed on additional 
rail lines. FRA approved the Product Safety Plan for ETMS Configuration 
I in December 2006, under a performance-based regulation issued with 
RSAC input in March of 2005. The Product Safety Plan was submitted 
under subpart H of 49 CFR part 236 and described in detail the train 
control technology, concept of operations, and results of safety 
analysis for the system (which in this configuration is designed for 
single track territory either with a traffic control system or without 
any signal system).
    In the field of track safety, FRA is taking concrete steps in both 
research and enforcement. FRA research has provided a new tool to 
detect cracks in joint bars. This optical recognition technology can 
capture and analyze images for very small cracks while mounted on a hi-
rail truck or other on-track vehicle. The system is already in initial 
use by two major railroads.
    In order to ensure compliance with track geometry limits under 
load, FRA acquired two additional Automated Track Geometry Program 
(ATIP) cars instrumented for measurement of geometry at track speed, 
supplementing an existing Office of Safety car (and use of FRA's 
research cars for geometry surveys when available). This expanded ATIP 
capability will permit FRA to survey the core of the national rail 
system on an annual basis, returning to problem areas, as appropriate, 
without sacrificing coverage. These two additional cars were in service 
as of April 30, 2007.
    One of the most vexing areas of track safety work is rail 
integrity. The concentration of rail traffic on a smaller, post-merger 
system together with growth in traffic, increasing gross weight of 
cars, and a slow pace of rail replacement has led to heavy reliance on 
internal rail inspections to detect rail flaws before they become 
service failures and pose the imminent risk of an accident. The 
President's Budget for the current fiscal year requested nine positions 
for rail integrity specialists to build a better organized and 
aggressive approach to oversight of railroad rail integrity programs. 
The Congress authorized funding sufficient to support this staffing in 
February, and FRA is recruiting for these positions.
    Over time, strengthened oversight of compliance with railroad 
safety regulations, introduction of new technology such as PTC, better 
management of fatigue affecting safety critical employees, and other 
steps should yield a reduction in the risk of train accidents that 
could affect the transportation of hazardous materials. FRA is 
encouraged that, after over a decade of gradual increases in train 
accidents associated with the growth of rail traffic and other factors, 
both the train accident rate and total train accidents declined in 
2006. This decline likely reflects improved compliance with regulatory 
requirements, reduced stress from fatigue associated with service 
disruptions, and other factors. However, history suggests that the 
underlying factors that create safety challenges, such as growing rail 
service demands that strain capacity, aging infrastructure, and factors 
beyond the effective control of the railroads (e.g., natural disasters, 
impacts with heavy vehicles at highway-rail crossings) will continue to 
introduce substantial risk even as train accident rates decline. 
Accordingly, it is necessary for PHMSA and FRA to take the additional 
actions proposed in this NPRM to reduce the probability that future 
train accidents will involve catastrophic releases of PIH materials. 
Thus, the Action Plan provided for acceleration of the research 
underlying this proposed rule, which is intended to make tank cars used 
for PIH service more resistant to product loss when a train accident 
occurs.
    The Action Plan also noted with approval the action of major 
railroads to make available to emergency responders information 
concerning the top 25 commodities transported through their 
jurisdictions and called on the railroads to make additional efforts to 
provide emergency responders with hazardous materials information, 
including the location of cars hauling hazardous materials on specific 
trains. CSX Transportation and CHEMTREC--the 24-hour emergency 
assistance hotline provided as a service by chemical manufacturers--
have partnered to provide a demonstration of technology that can 
readily provide consistent information to emergency responders. PHMSA 
and FRA encourage other railroads to join in this effort.

V. Relevant Regulatory Framework

    Today railroad tank cars in the United States are designed, built, 
maintained, and operated under four primary sets of regulations and 
guidelines: (1) Regulations and orders issued under the Federal 
railroad safety laws; (2) regulations and orders issued under the 
Federal hazmat law; (3) the AAR's Interchange Rules; \6\ and (4) the 
AAR Tank Car Committee's Tank Car Manual (Tank Car Manual).\7\
---------------------------------------------------------------------------

    \6\ AAR, Interchange Rules, Washington, DC, published annually 
in a ``Field Manual'' and an ``Office Manual.''
    \7\ AAR, Operations and Maintenance Dep't, Mechanical Div., 
Manual of Standards and Recommended Practices; Section C-Part III, 
``Specifications for Tank Cars, Specification M-1002'' (revised 
annually).
---------------------------------------------------------------------------

    FRA's freight car, safety appliance, and power brake regulations in 
49 CFR parts 215, 231, and 232 apply to tank cars as they do every 
other type of railroad freight car. Parts 215 and 232 establish minimum 
safety standards; railroads are free to supplement these standards with 
additional or more stringent safety standards that are not inconsistent 
with the Federal standards. 49 CFR 215.1 and 232.1.
    The HMR treat the tank car as a packaging and mandate safety 
features, permissible materials and methods of construction, as well as 
inspection and maintenance standards. A material identified as a 
hazardous material by the HMR may not be shipped by railroad tank car 
unless the tank car meets the requirements of the HMR. 49 CFR 
173.31(a).
    A separate set of standards--the AAR Interchange Rules, issued by 
AAR's standing Tank Car Committee (TCC) \8\--govern the tender and 
acceptance of rail cars among carriers within the general system of 
railroad transportation. The AAR Interchange Rules address a range of 
design and operational requirements intended to promote uniformity and 
reciprocity in car handling, including the obligation of rail carriers 
to perform running repairs on equipment received in interchange. 
Historically, the AAR Interchange Rules also have addressed certain 
subjects, such as rail tank car standards, now covered comprehensively 
by the HMR. Most recently, as discussed below, the TCC has issued an 
interchange requirement (Casualty Prevention Circular 1175, as

[[Page 17825]]

amended by Casualty Prevention Circular 1178) that would require tank 
cars transporting anhydrous ammonia and chlorine to meet tank car 
design standards that are more stringent than those specified in the 
HMR.
---------------------------------------------------------------------------

    \8\ The Mechanical Division of AAR's Operations and Maintenance 
Department is responsible for industry freight car standards and for 
administering the Interchange Rules, a body of private law that 
governs the acceptance and use by railroads of equipment which they 
do not own. See fn. 8, supra.
---------------------------------------------------------------------------

    Railroads, as common carriers, are generally required to provide 
transportation services in a reasonable manner, and they may not impose 
unreasonable requirements as a condition precedent to providing rail 
transportation services. Accordingly, interchange requirements, such as 
Casualty Prevention Circular 1178, that restrict the movement of 
railroad tank cars that meet DOT standards must be reasonable, and, if 
challenged, the burden is on the railroad to establish the 
reasonableness of the restriction. See Akron, Canton & Youngstown R.R. 
v. ICC, 611 F.2d 1162, 1169 (6th Cir. 1979); see also Consolidated Rail 
Corp. v. ICC, 646 F.2d 642, 650 (D.C. Cir. 1981), cert denied, 454 U.S. 
1047 (1981). Two of the factors that the Surface Transportation Board 
and the courts consider in determining the reasonableness of 
interchange requirements are whether there are Federal safety standards 
on point and whether a railroad has the ability to seek changes to 
these standards to meet the safety concerns of the railroad. See 
Consolidated Rail, 646 F.2d at 651. In fact, DOT has established safety 
standards for tank cars carrying PIH commodities and, pursuant to this 
rulemaking, is proposing enhanced standards for tank-head and shell 
puncture resistance systems for these cars. Through participation in 
this rulemaking, railroads and other interested parties have the 
ability to influence the enhanced safety standards ultimately adopted 
by DOT. As discussed below, DOT has concluded that it is inappropriate 
at this time to establish new standards for top fittings protection, 
but DOT will continue to work with interested parties on research and 
ongoing discussions aimed at establishing enhanced consensus standards. 
There is, therefore, no reasonable basis for the railroads to implement 
Casualty Prevention Circular 1178 at this time. Railroads are free at 
any time to seek stricter tank car safety standards through a DOT 
rulemaking (49 CFR 106.95); to date, no rail carrier has petitioned 
PHMSA to adopt the tank car standards embodied in Casualty Prevention 
Circular 1178. FRA has notified the AAR that before the TCC can 
implement the proposed requirements in Circular 1178, the proposal must 
be submitted to DOT for approval.
    The AAR TCC is a standing committee of the Mechanical Division of 
AAR's Operations and Maintenance Department. Voting members of the TCC 
include representatives of AAR member railroads, as well as tank car 
shipper and owner organizations, tank car builders, and chemical and 
industry associations. In addition, the Bureau of Explosives and the 
Railway Supply Institute have non-voting membership on the TCC. FRA and 
PHMSA, as the Federal agencies responsible for oversight of the safety 
of hazardous materials transportation by railroad, also participate in 
the TCC as nonvoting members.
    Under the HMR, certain functions related to hazardous material tank 
cars are delegated to the TCC, including: (1) Approvals for 
construction of tank cars meeting DOT specifications; (2) procedures 
for repairs or alterations; and (3) recommending changes in tank car 
specifications.\9\ First, the HMR require tank car manufacturers to 
obtain TCC approval for specific tank car designs and construction 
methods and materials and procedures for repairs and alterations to 
tank cars. The HMR authorize the TCC to make the determination that the 
proposed design, construction, or repair procedures conform to the 
applicable DOT specification requirements and to issue the approval. 49 
CFR 179.3. This authority is primarily a ministerial function, designed 
to ensure that plans to construct, alter, or convert tank car tanks 
conform to DOT regulations. In accordance with 49 CFR 179.3(b), the TCC 
must approve construction of a tank car that meets all Federal 
requirements.
---------------------------------------------------------------------------

    \9\ Federal regulations also require tank car facilities to have 
quality assurance programs that are approved by AAR. These programs 
relate to construction, life-cycle maintenance, and continuing 
qualification for service.
---------------------------------------------------------------------------

    When a party seeks to construct a railroad tank car to be used in 
hazardous materials service that does not meet a current DOT 
specification (see 49 CFR 179.10-179.500-18), the HMR authorize the TCC 
to review the proposed specification and report its recommendations on 
the proposal to DOT. 49 CFR 179.4. In this capacity, DOT benefits 
greatly from the technical expertise of the TCC members. However, final 
policy judgment lies with DOT, and only DOT is authorized to approve a 
new tank car specification, or, through issuance of a special permit in 
accordance with 49 CFR 107.101-.127, the construction and use of a tank 
car not meeting an existing DOT specification. DOT does not construe 
the procedures established in 49 CFR 179.4 as limitations on its 
rulemaking authority.
    In addition to the approval authority noted above, in several 
subsections of Part 179 of the HMR, the TCC is authorized to approve 
fittings, attachments, materials, designs, methods, and procedures 
relevant to tank car design, construction, maintenance, repair, and 
inspection. For example, 49 CFR 179.103-2(a) provides that manway 
covers ``shall be of approved design.'' Similarly, 49 CFR 179.201-9 
states that ``a gauging device of an approved design must be applied to 
permit determining the liquid level of the lading.'' In addition, 49 
CFR 179.10 states that ``[t]he manner in which tanks are attached to 
the car structure shall be approved.'' In each instance, the term 
``approved'' refers to approval by the TCC. See 49 CFR 179.2.
    The primary document containing the standards governing these 
approvals of the TCC is the Tank Car Manual. The December 2000 version 
of the Tank Car Manual is incorporated by reference into the HMR at 49 
CFR 171.7; thus, compliance with the Tank Car Manual's standards is 
required under the HMR. Chapter 2 of the Tank Car Manual contains the 
AAR requirements for DOT tank cars. As noted above, the TCC, subject to 
certain limitations, may establish standards for tank cars that go 
beyond the standards set by DOT. For example, the Tank Car Manual 
requires that the heads and shells of pressure tank cars constructed of 
certain types of steel must be normalized; although DOT participated in 
the discussions leading to these standards and approves of them, the 
tank car specifications contained in the HMR do not contain comparable 
requirements.\10\ However, as indicated above, because the December 
2000 version of the Tank Car Manual is incorporated by reference into 
the HMR, compliance with the tank car standards specified in that 
version of the Tank Car Manual is required under the HMR. Under the 
Administrative Procedure Act, compliance with any other version of the 
Tank Car Manual would be required under the HMR only upon the 
incorporation of that version into the HMR by reference through 
rulemaking.
---------------------------------------------------------------------------

    \10\ Chapter 2 of the Tank Car Manual also includes additional 
commodity specific tank car requirements relevant to certain PIH 
materials which are not included in the HMR. See Sec. Sec.  2.1.2 
(hydrogen sulfide tank cars) and 2.1.4 (hydrogen fluoride tank 
cars).

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[[Page 17826]]

VI. Railroad Accidents Involving Hazardous Materials Releases and 
Accompanying NTSB Recommendations

    The NTSB investigated three recent accidents involving tank cars 
transporting PIH materials, which occurred between 2002 and 2005 in 
Minot, North Dakota; Macdona, Texas; and Graniteville, South Carolina. 
In all three accidents, the NTSB recommended that FRA study improving 
the safety and structural integrity of tank cars and develop necessary 
operational measures to minimize the vulnerability of tank cars 
involved in accidents.

A. Minot

    The accident occurred at approximately 1:30 a.m. on January 18, 
2002, near Minot, North Dakota, and resulted in the derailment of 31 
cars of a 112-car train. Eleven of the 31 derailed cars were 
pressurized tank cars transporting anhydrous ammonia, a toxic liquefied 
compressed gas. Five of those tank cars (DOT 105J300W cars) received 
sidewall impacts to their shells, causing the cars to catastrophically 
rupture and instantaneously release their contents. Approximately 
146,700 gallons of anhydrous ammonia were released from those five 
cars. As a result, a toxic vapor plume covered the derailment site and 
the surrounding area. The plume rose approximately 300 feet and 
gradually expanded five miles downwind of the accident site. The 
remaining six pressurized tank cars transporting anhydrous ammonia that 
derailed also suffered from shell impacts. Those cars, DOT 105J300W, 
112J340W, and 105S300W cars, gradually released 74,000 gallons of 
anhydrous ammonia due to damage to the cars' fittings or small 
punctures and/or tears to the shells. One resident was fatally injured, 
and 333 people suffered other injuries (11 serious). According to the 
NTSB, early in the emergency response effort, the Chief of the Minot 
Rural Fire Department ordered residents in the affected area to 
shelter-in-place (i.e., remain inside their homes with the windows 
shut). NTSB concluded that sheltering-in-place was an effective 
emergency response and credited this action with the relatively low 
number of injuries, as compared to the number of persons affected by 
the vapor plume (333 injuries in 11,600 persons affected).
    The NTSB determined that the probable cause of the accident was an 
undetected defective rail. Damages to rolling stock and track, as well 
as monetary loss from the damaged or destroyed lading, exceeded $2.6 
million. As of March 15, 2004, over $8 million has been spent on 
environmental remediation. Other significant costs include: evacuation 
costs, truck delay, rerouting and associated out of service expenses, 
expenses for disruption to non-railroad businesses, and expenses 
incurred in settling claims arising from the accident.\11\
---------------------------------------------------------------------------

    \11\ On October 9, 2007, a Federal judge approved a $7 million 
settlement in a class-action lawsuit between Canadian Pacific 
Railroad and individuals affected by the accident.
---------------------------------------------------------------------------

    On March 15, 2004, the NTSB released Safety Recommendations R-04-01 
through R-04-07 as a result of the Minot accident. The first three 
recommendations (R-04-01, R-04-02, and R-04-03) pertain to FRA's 
oversight of continuous welded rail maintenance programs and are not 
relevant to this rulemaking. The four remaining recommendations (R-04-
04, R-04-05, R-04-06, and R-04-07) concern tank car structural 
integrity and are relevant to this rulemaking. In fact, these four 
recommendations served as the basis for the reformulation of FRA's tank 
car research program.\12\ Recommendations R-04-04 through R-04-07 read 
as follows:

    \12\ See Section X, infra, for a more detailed discussion of 
FRA's tank car research program.

    (R-04-04). Conduct a comprehensive analysis to determine the 
impact resistance of the steels in the shells of pressure tank cars 
constructed before 1989. At a minimum, the safety analysis should 
include the results of dynamic fracture toughness tests and/or the 
results of nondestructive testing techniques that provide 
information on material ductility and fracture toughness. The data 
should come from samples of steel from the tank shells from original 
manufacturing or from a statistically representative sampling of the 
shells of the pre-1989 pressure tank car fleet.
    (R-04-05). Based on the results of the Federal Railroad 
Administration's comprehensive analysis to determine the impact 
resistance of the steels in the shells of pressure tank cars 
constructed before 1989, as addressed in Safety Recommendation R-04-
04, establish a program to rank those cars according to their risk 
of catastrophic fracture and separation and implement measures to 
eliminate or mitigate this risk. This ranking should take into 
consideration operating temperatures, pressures, and maximum train 
speeds.
    (R-04-06). Validate the predictive model the Federal Railroad 
Administration is developing to quantify the maximum dynamic forces 
acting on railroad tank cars under accident conditions.
    (R-04-07). Develop and implement tank car design-specific 
fracture toughness standards, such as a minimum average Charpy 
value, for steels and other materials of construction for pressure 
tank cars used for the transportation of U.S. Department of 
Transportation class 2 hazardous materials, including those in 
``low-temperature'' service. The performance criteria must apply to 
the material orientation with the minimum impact resistance and take 
into account the entire range of operating temperatures of the tank 
car.

B. FRA's Responses to the NTSB Tank Car Recommendations for Minot

    In August 2004, the FRA responded to NTSB Safety Recommendations R-
04-04 through R-04-07, which arose from the Minot accident. As for NTSB 
Recommendation R-04-04 and R-04-05, which recommended that FRA analyze 
the impact resistance of steels in the shells of pressure tank cars 
constructed before 1989 and establish a program to rank the cars 
according to their risk of fracture, FRA advised the NTSB that the TCC 
had developed a plan to sample steels from pre-1989 pressure tank cars 
and that a program to rank those cars would be established. Because of 
FRA's commitment to ranking the pre-1989 fleet, the NTSB classified 
Safety Recommendation R-04-05 as ``Open--Acceptable Response.'' The 
NTSB, however, classified Safety Recommendation R-04-04 as ``Open--
Unacceptable Response'' because the Board did not believe that the 
necessary analysis would be completed in a timely manner. After FRA 
provided additional information to the NTSB about the sampling, 
including preliminary fracture toughness data relating to the samples 
from the pre-1989 tank cars, the NTSB reclassified Safety 
Recommendation R-04-04 as ``Open--Acceptable Response.''
    As for NTSB Recommendation R-04-06, which recommended that FRA 
validate its model to quantify the dynamic forces acting on tank cars 
in accident conditions, the FRA advised the NTSB that it had initiated 
modeling programs at Volpe and the University of Illinois at Chicago to 
determine in-train forces on tank cars involved in train derailments. 
Based on FRA's response to Safety Recommendation R-04-06, the NTSB 
classified the Recommendation as ``Open--Acceptable Response.''
    Finally, as for NTSB Recommendation R-04-07, which recommended that 
FRA develop tank car design-specific fracture toughness standards for 
steels used in pressure tank cars, the FRA responded by stating that 
more research was needed (approximately three years) to address tank 
car design-specific fracture toughness standards. Because the NTSB 
believed there were existing solutions and accident findings from which 
to gauge fracture toughness values, such as Charpy impact, in June 
2005, the NTSB

[[Page 17827]]

classified the FRA response to Safety Recommendation R-04-07 as 
``Open--Unacceptable Response.'' Since June 2005, AAR, in cooperation 
with FRA, has developed standards that ensure a minimum level of impact 
resistance for normalized steel and that require that Charpy tests be 
performed in the orientation of the sample material with the lowest 
impact property. In July 2006, the NTSB determined that FRA had made 
progress on the development of fracture toughness standards, and it 
reclassified Safety Recommendation R-04-07 ``Open--Acceptable 
Response.''

C. Macdona

    The accident occurred at approximately 5 a.m. on June 28, 2004, in 
Macdona, Texas, and resulted in the derailment of four locomotives and 
36 cars belonging to two trains that collided while traveling on the 
same track in opposing directions. As the eastbound 123-car train was 
attempting to leave the main line to enter a parallel siding, it was 
struck midpoint by a westbound train traveling on the same main line 
track. The 16th car of the westbound train was a pressurized tank car 
transporting chlorine, a toxic liquefied compressed gas. This tank car, 
a DOT 105A500W car, was punctured in the lower quadrant of the tank car 
head and the puncture terminated one inch beyond the seam joining the 
tank-head to the tank shell. The tank car instantaneously released 
approximately 9,400 gallons of chlorine, and a toxic vapor plume 
engulfed the accident area to a radius of at least 700 feet before 
drifting away from the site. The NTSB noted that the vapor cloud 
drifted with the wind from the accident site and traveled in a 
northwesterly direction toward several residential areas within the 
city of San Antonio. NTSB further noted that Sea-World, a large 
commercial entertainment venue, was about 10 miles northwest of Macdona 
in the path of the chlorine vapor cloud.
    The NTSB determined that the probable cause of the accident was UP 
train crew fatigue that resulted in the failure of the engineer and 
conductor to appropriately respond to wayside signals governing the 
movement of their train. Thirty-three persons were injured, three 
fatally (including the UP train conductor and two occupants of a 
residence located near the accident site).\13\ Damages to rolling 
stock, track and signal equipment were estimated at $6.3 million. As of 
July 20, 2006, $150,000 was spent to clean-up environmental 
consequences. Other significant costs include: Evacuation costs, truck 
delay, rerouting and associated out of service expenses, expenses for 
disruption to non-railroad businesses, and expenses incurred in 
settling claims arising from the accident.
---------------------------------------------------------------------------

    \13\ The crew of the striking train survived the collision and 
exited the locomotive unassisted, but could not escape the chlorine 
gas. The conductor and engineer were able to walk some distance from 
the collision where they were transported to hospitals. The engineer 
was treated and released, the conductor died several hours later 
from inhalation of the toxic gas. Given that both crew members 
survived the collision, no fatalities or serious injuries would have 
resulted from the accident had a tank car of chlorine not been 
punctured.
---------------------------------------------------------------------------

    On July 20, 2006, the NTSB released Safety Recommendations R-06-14 
and R-06-15 as a result of the Macdona accident. Although neither 
recommendation specifically addressed the vulnerability of tank cars 
involved in an accident, the NTSB stated that the successful and timely 
implementation of Safety Recommendations R-04-04 through R-04-07 
(recommendations from the Minot accident) and R-05-16 through R-05-17 
(recommendations from the Graniteville accident discussed below) may 
have prevented/mitigated the Macdona accident and any future 
catastrophic releases of hazardous materials from pressurized tank cars 
involved in an accident.

D. Graniteville

    The accident occurred at approximately 2:30 a.m. on January 6, 
2005, in Graniteville, South Carolina, when a freight train was 
improperly switched from a main line track onto an industry track and 
struck an unoccupied, parked train head-on, on a rail spur leading to a 
textile manufacturing facility. The collision resulted in the 
derailment of three locomotives and 17 cars belonging to the two 
trains. Three of the 17 derailed cars were pressurized tank cars 
transporting chlorine. One tank car, a DOT 105J500W car, was punctured 
in the shell by the coupler of another car, and instantaneously 
released approximately 9,220 gallons of chlorine, creating a toxic 
vapor plume that engulfed the surrounding area.
    The NTSB concluded that the probable cause of the accident was the 
failure of a train crew to return a main line switch to the normal 
position after the crew completed work at the Avondale Mills' industry 
track. As a result of the chlorine release, 5,400 people within a 1-
mile radius of the derailment site were evacuated for several days. 
Nine persons were fatally injured and 554 sustained other injuries (75 
requiring hospitalization). The nine persons fatally injured included 
the train engineer, six employees of the textile manufacturing 
facility, Avondale Mills, a truck driver at one of Avondale Mills' 
facilities, and an individual in a residence south of the accident 
site.\14\ Noting that emergency responders were enroute to the scene 
within two minutes of the accident occurring and that emergency 
responders used a ``particularly efficient and expeditious means'' of 
evacuating affected persons, the NTSB concluded that the emergency 
response efforts were ``timely, appropriate, and effective.''\15\ The 
Board noted, however, that despite these emergency response efforts, 
the eight civilian fatalities were determined to have resulted from 
asphyxia that occurred within minutes of exposure to chlorine gas. In 
other words, the fatalities occurred within the minutes that passed 
before emergency responders arrived on the scene or were able, because 
of the toxic fumes, to begin a safe search and rescue effort.\16\
---------------------------------------------------------------------------

    \14\As was the case in the Macdona accident, both train crew 
members survived the collision (the engineer died later from 
exposure to the gas). Given that both crew members survived the 
collision, no fatalities or serious injuries would have resulted 
from the accident had a tank car of chlorine not been punctured.
    \15\NTSB, Railroad Accident Report, NTSB/RAR-05/04, Collision of 
Norfolk Southern Freight Train 192 With Standing Norfolk Southern 
Local Train P22 with Subsequent Hazardous Materials Release at 
Graniteville, South Carolina, (Jan. 6, 2005), at p. 40, Available at 
http://www.regulations.gov in docket no. FRA-2006-25169 and at 
http://www.ntsb.gov (Graniteville Report).
    \16\Id.
---------------------------------------------------------------------------

    The property damage, including damages to the rolling stock and 
track, exceeded $6.9 million. Other significant costs include: 
evacuation costs, truck delay, rerouting and associated out of service 
expenses, expenses for disruption to non-railroad businesses, costs to 
affected local governments and residents, as well as expenses incurred 
in settling claims arising from the accident. According to financial 
documents produced by NS, the railroad recorded $41 million of expenses 
related to the accident in 2005 and it is estimated that the costs of 
the Graniteville accident were approximately $138 million, excluding 
chlorine cleanup costs.\17\ This cost estimate likely greatly 
underestimates the actual costs incurred by those affected by the 
accident. For example, according to various South Carolina State 
Emergency Operations Center and U.S. Environmental Protection Agency 
Situation Reports,\18\ schools were closed for several days, mail 
service for the

[[Page 17828]]

evacuated areas had to be forwarded to a neighboring post office, and 
preliminary estimates of costs to Aiken County were in the millions due 
to potential damage to electrical systems and equipment within homes 
and businesses, the cost of the first response and recovery operations, 
damage to fire and EMS response vehicles, and the treatment of the 
victims.
---------------------------------------------------------------------------

    \17\ Norfolk Southern Corporation, Quarterly Financial Review, 
Fourth Quarter 2006, at p. 4. (downloaded at http://www.nscorp.com/
nscportal/nscorp/pdf/financial_q4_06.pdf).
    \18\Available at http://www.epa.osc.org.
---------------------------------------------------------------------------

    The fate of Avondale Mills, the textile manufacturing company with 
four facilities within the vicinity of the accident, illustrates the 
significant long-term economic impacts that may result from 
catastrophic hazardous materials transportation accidents. In July 
2006, after spending $140 million on cleaning, re-cleaning, repairs, 
and damage mitigation as a result of the derailment, Avondale Mills 
reported that it was unable to recover financially from the derailment 
and closed its 10 mills in South Carolina and Georgia. The company 
cited irrevocable damage to its core facilities, as well as market and 
production losses caused by the derailment. For example, the Company 
was unable to identify cleaning and restoration protocols that would 
successfully or economically halt the chlorine's corrosive effects, 
repair the damage caused by the chlorine exposure, and return the 
affected facilities and equipment to their pre-derailment condition. As 
a result, the Company was faced with the expensive replacement of 
damaged assets in addition to the lost business, higher manufacturing 
costs, and lower profits related to the reduction in productive 
capacities resulting from the derailment.\19\ At the time of its 
closure, Avondale Mills employed approximately 4,000 people.
---------------------------------------------------------------------------

    \19\See Avondale Incorporated, Notes to Consolidated Financial 
Statements (Unaudited), at note 1 (Aug. 25, 2006). Available at 
http://www.sec.gov.
---------------------------------------------------------------------------

    Although the costs of associated legal claims resulting from the 
derailment are still accumulating, in May 2006, Avondale Mills reached 
a $215 million settlement with its primary property and casualty 
insurer for all claims related to the derailment. Even with this multi-
million dollar settlement, Avondale Mills' management believed that the 
amount was substantially less than the full value of the losses 
incurred as a result of the derailment.\20\ In June 2006, a Federal 
judge approved a class-action settlement in excess of $10.5 million 
between Norfolk Southern and almost 500 individuals who claimed they 
suffered serious injuries after the derailment. In May 2005, Norfolk 
Southern announced that it had reached agreement on settlements for 
Graniteville residents and businesses that were evacuated as a result 
of the derailment, but did not seek medical attention. Under the terms 
of this settlement, Norfolk Southern offered each resident who was 
evacuated, but did not seek medical attention within 72 hours of the 
accident a flat amount of $2,000 for the evacuation plus $200 per 
person per day of the evacuation. These amounts are separate from any 
property damage claims. Norfolk Southern settled separately with the 
families of the nine people killed as a result of the accident.
---------------------------------------------------------------------------

    \20\Id.
---------------------------------------------------------------------------

    On December 12, 2005, the NTSB released Safety Recommendations R-
05-14 through R-05-17 as a result of the Graniteville accident. The 
first recommendation (R-05-14) pertains to railroad switching devices 
and is not directly relevant to this rulemaking. The three remaining 
Safety Recommendations (R-05-15, R-05-16, and R-05-17) relate to 
operating speeds in non-signaled territory, as well as the 
transportation of PIH materials and other hazardous materials that may 
pose inhalation hazards in the event of unintentional release. 
Recommendations R-05-15 through R-05-17 read as follows:

    (R-05-15). Require railroads, in non-signaled territory and in 
the absence of switch position indicator lights or other automated 
systems that provide train crews with advance notice of switch 
positions, to operate those trains at speeds that will allow them to 
be safely stopped in advance of misaligned switches.
    (R-05-16). Require railroads to implement operating measures, 
such as positioning tank cars toward the rear of trains and reducing 
speeds through populated areas, to minimize impact forces from 
accidents and reduce the vulnerability of tank cars transporting 
chlorine, anhydrous ammonia, and other liquefied gases designated as 
poisonous by inhalation.
    (R-05-17). Determine the most effective methods of providing 
emergency escape breathing apparatus for all crewmembers on freight 
trains carrying hazardous materials that would pose an inhalation 
hazard in the event of unintentional release, and then require 
railroads to provide these breathing apparatus to their crewmembers 
along with appropriate training.

    In addition, noting that the punctured car was among the strongest 
tank cars in service, the NTSB concluded that even the ``strongest tank 
cars in service can be punctured in accidents involving trains 
operating at moderate speeds.'' \21\ The NTSB then repeated its concern 
for crashworthiness integrity of railroad tank cars by restating what 
it said, in part, in response to the Minot accident:

    \21\Graniteville Report at p. 51.

    Improvements in the crashworthiness of pressure tank cars can be 
realized through the evaluation of alternative steels and tank car 
performance standards. The ultimate goal of this effort should be 
the construction of railroad tank cars that have sufficient impact 
resistance and that eliminate the risk of catastrophic brittle 
failures under all operating conditions and in all environments. 
Achieving such a goal does not necessarily require the construction 
of a tank car that is puncture-proof; it may only require 
construction of a car that will remain intact and slowly leak its 
contents if it is punctured.\22\
---------------------------------------------------------------------------

    \22\Id.
---------------------------------------------------------------------------

E. FRA's Responses to the NTSB Tank Car Recommendations for 
Graniteville.

    On June 30, 2006, the FRA responded to NTSB Safety Recommendations 
R-05-15 through R-05-17, which arose from the Graniteville accident. As 
for NTSB Recommendation R-05-15, which recommended that railroads be 
required, under certain conditions, to operate trains at lower speeds 
in non-signaled territory, the FRA informed the NTSB that the 
Recommendation was not feasible for operational and economic reasons. 
From an operational standpoint, depending on the terrain at the 
switches and the train make-up, train braking could prove difficult, 
generating excessive in-train forces that could cause derailments. From 
an economic standpoint, Recommendation R-05-15 would impede the 
movement of trains, especially on tracks where many switches exist, 
thereby causing train delays and an increase in running time. The FRA 
also explained that Recommendation R-05-15 was overly broad in that it 
would apply to all trains, regardless of lading. The NTSB classified 
Safety Recommendation R-05-15 as ``Open--Response Received.''
    As for NTSB Recommendation R-05-16, which suggested that FRA 
require railroads to position tank cars towards the rear of trains and 
reduce their speeds through populated areas, the FRA advised the NTSB 
that it would be imprudent to require the placement of tank cars 
carrying PIH materials at the rear of trains for several reasons. 
First, the placement of tank cars carrying PIH materials at the rear of 
trains could expose the cars to the consequences of rear-end 
collisions. Second, FRA's research demonstrates that the preferred 
location for loaded cars is towards the front of trains because, upon 
braking, heavy cars decelerate more slowly than empty cars. If loaded 
cars are placed towards the rear of trains, they would push the more 
rapidly decelerating cars

[[Page 17829]]

in front of them and generate higher buff forces. Finally, the 
switching of railroad cars to position tank cars containing PIH 
materials at the rear of trains involves the risk of increased yard 
accidents and employee injuries resulting from additional switching. In 
its response to NTSB Recommendation R-05-16, the FRA also noted several 
practical difficulties with slowing trains on a location-by-location 
basis (including the dangers of introducing additional train handling 
challenges, the impact of such a speed restriction on the efficiency 
and capacity of the rail network, as well as the potential negative 
effect that slowing operations could have on communities located along 
the track). Nonetheless, in its response, FRA stated that it would 
review the potential costs and benefits of slowing trains carrying 
certain toxic commodities. The NTSB classified Safety Recommendation R-
05-16 as ``Open--Response Received.''
    As for NTSB Recommendation R-05-17, which recommended that FRA 
examine the most effective methods of providing emergency escape 
breathing apparatus for crewmembers on trains carrying PIH materials, 
FRA explained to the NTSB that it would initiate a study of potential 
breathing apparatus for use by crewmembers of freight trains carrying 
TIH materials. Based on FRA's response to Safety Recommendation R-05-
17, the NTSB classified the Recommendation as ``Open--Acceptable 
Response.''
    The NTSB Safety Recommendations referenced in this section above 
and the publicly available responses to them may be found on the http:/
/www.regulations.gov Web site under docket number FRA-2006-25169.

VII. Evaluating the Risk Related to Potential Catastrophic Releases 
From PIH Tank Cars in the Future

    Although it is not possible to accurately determine the probability 
of future occurrences of railroad accidents that would result in the 
catastrophic release of hazardous materials, it is unrealistic to 
assume that absent the improvements proposed, consequences from future 
accidents involving hazardous materials tank cars would be of the same 
order of frequency and severity as in the past. In fact, absent the 
improvements proposed, one or more events could be significantly more 
severe than experienced thus far. All that would be required would be 
the necessary environmental conditions (concentrating and channeling a 
gas plume at ground level), an exposed population of scores or hundreds 
within the path of the plume, and an ineffective or delayed emergency 
response (either due to deficiencies in the emergency response process 
or because of safety risks posed to emergency responders prohibiting 
emergency responders from entering an accident area).
    Each of the three accidents discussed in section VI above share 
certain similarities that effectively minimized the catastrophic 
results of the accidents. Each accident occurred in a relatively rural 
area, thereby limiting the population exposed to the hazardous 
materials release. Each accident occurred during the early morning 
hours, while most of the surrounding populations were in their homes 
and not in the immediate accident vicinity. The meteorological 
conditions at the time of each accident effectively limited the speed 
at which the resulting toxic plumes expanded and the distance over 
which the plumes expanded. Had any of the accidents occurred in a more 
densely populated area or later in the day, it is likely that many more 
people would have been exposed to the toxic plumes. Had the 
meteorological conditions at the time of any of the accidents been 
different (e.g., wind speed or direction, temperature, barometric 
pressure, or humidity) it is possible that the plumes could have 
expanded more than what actually occurred, again, exposing many more 
people to the toxic chemicals. To demonstrate the potential affects of 
different accident conditions, such as location, time of day, or the 
weather, the circumstances surrounding the Graniteville and Minot 
accidents are discussed below.

A. Graniteville

    Graniteville is a mixed rural and suburban area of Aiken County, 
South Carolina, with a population of approximately 7,000.\23\ 
Graniteville lies in a relatively shallow valley, approximately 200 
feet above sea level. The terrain surrounding the accident site is 
approximately 225 feet above sea level, with the elevation of the 
industry track where the accident occurred moderately decreasing as the 
track extends north and west towards the Avondale Mills plant. The 
January 6, 2005, accident occurred at 2:30 in the morning, a time at 
which most individuals were asleep in their homes and very few 
individuals were on the premises of the Avondale Mills plant. At the 
time of the accident, a light wind was blowing in a south-southwest 
direction, the temperature was approximately 55[deg] F, and humidity 
was high.
---------------------------------------------------------------------------

    \23\As of 2006, the approximate population of Aiken County was 
152,000. U.S. Census Bureau, State & County QuickFacts (available at 
http://quickfacts.census.gov).
---------------------------------------------------------------------------

    The NTSB concluded that approximately 120,000 pounds (9,218 
gallons) of liquefied chlorine was released before emergency responders 
arrived on the scene.\24\ The chlorine settled in low areas around the 
railroad tracks and the plume expanded to the west of the accident site 
and into the Avondale Mills plant, generally following the local 
topography, running downhill to the south and west,\25\ before being 
blown to the north by light winds where it hovered. The NTSB concluded 
that based on emergency responder observations and the locations of 
those receiving fatal injuries, the cloud extended at least 2,500 feet 
to the north; 1,000 feet to the east; 900 feet to the south; and 1,000 
feet to the west.
---------------------------------------------------------------------------

    \24\ Note: The vaporization of liquefied chlorine at 32 [deg]F 
at atmospheric pressure can generate a gaseous cloud with a volume 
450 times greater than the volume of the liquid released. See 
Graniteville NTSB Report at 49 (citation omitted).
    \25\ Because chlorine gas is heavier than air with a vapor 
density of 2.5 at 32 [deg]F, it will seek the lowest point in the 
immediate area.
---------------------------------------------------------------------------

    The area to the east of the accident site and extending in a 
southerly direction is primarily a residential area. To the west and 
extending in a northerly direction are several moderate- to large-sized 
industrial plant facilities, some of which operate continuously. A 
small commercial/retail district is just north of the accident site.
    Given the demographics and topography surrounding the accident 
site, had the accident occurred at a different time of day, or had any 
of the meteorological variables been different (e.g., wind speed or 
direction, temperature, barometric pressure, or humidity), it is likely 
that many more people would have been exposed to the chlorine plume. 
For instance, if the accident had occurred while the Avondale Mills 
plant was fully staffed, or during an afternoon shift change, hundreds 
of individuals could have been exposed. In addition, a middle school is 
located approximately 1,000 feet north of the accident site (well 
within the area of the plume that did occur). Had the accident happened 
while school was in session, approximately 500 students and scores more 
school personnel could have been exposed to the toxic plume.
    Similarly, had any meteorological variables been different (e.g., 
wind speed or direction, temperature, barometric pressure, or 
humidity), it is likely that the chlorine plume could have expanded 
more rapidly and affected a greater area than it did. For instance, at 
the time of the accident, a

[[Page 17830]]

light wind was blowing in a south-southwest direction. If the wind had 
been blowing at the same intensity, but in a south-southeast direction, 
the chlorine plume could have hovered over the southeasterly side of 
the accident site, rather than the northwesterly side. Southeast of the 
accident site is primarily a residential area and given the size of the 
plume that did result, the plume could have endangered approximately 
185 homes. Given the average household size of 2.68 in Aiken 
County,\26\ almost 500 people to the southeast of the accident site 
could have been exposed to vapors above the ERPG-3 level causing 
significantly more casualties and fatalities.\27\ We note as well that 
the high humidity at the time of the accident limited the plume's rate 
of expansion because the chlorine reacted with the moisture in the area 
(effectively diluting the chlorine) to form a weak hydrochloric acid. 
This weak hydrochloric acid, a highly corrosive liquid, then 
accumulated in low lying areas and on the abundant vegetation 
surrounding the accident site, limiting the expansion of the plume. At 
the time of the accident the outside temperate was approximately 55 
[deg]F. As the NTSB noted, the liquefied chlorine rapidly vaporized and 
expanded when it spilled from the tank car, but the sudden release of 
the gas caused the product remaining in the tank car to auto-
refrigerate and remain in a liquid state, slowing the release of 
additional gas.\28\ Had it been warmer, the higher temperature could 
have provided additional energy for the chlorine to expand, and it is 
likely that the chlorine plume would have expanded faster.
---------------------------------------------------------------------------

    \26\ U.S. Census Bureau, American FactFinder (available at 
http://factfinder.census.gov).
    \27\ ``ERGP-3 level'' refers to the American Industrial Hygiene 
Association's (AIHA) Emergency Response Planning Guideline level 3 
which means ``[t]he maximum airborne concentration below which it is 
believed that nearly all individuals could be exposed for up to one 
hour without experiencing or developing life-threatening health 
effects.'' See AIHA, Emergency Response Planning Committee, 
Procedures and Responsibilities, at 1 (Nov. 1, 2006) (downloaded 
from http://www.aiha.org). According to AIHA the ERGP levels are 
intended as health based guideline concentrations for single 
exposures to chemicals and the levels are commonly used in the 
emergency response planning industry for assessing the adequacy of 
accident prevention and emergency response plans. Id.
    \28\ Graniteville Report at 11, 49.
---------------------------------------------------------------------------

B. Minot

    The Minot accident occurred at approximately 1:30 in the morning, a 
time at which most individuals were sleeping inside their homes with 
their windows closed. Almost instantaneously, approximately 146,700 
gallons of anhydrous ammonia were released as five tank cars 
catastrophically ruptured. A toxic vapor plume formed almost 
immediately. The plume rose approximately 300 feet and gradually 
expanded five miles downwind of the accident site and over a population 
of about 11,600 people (approximately one-third the population of the 
City of Minot). The outside temperature at the time of the accident was 
-6 [deg]F, a light snow had fallen earlier in the day and a large 
amount of residual snow was on the ground.
    Recognizing the smell of the chemical, the responsible fire chief 
immediately determined that the leaking material was anhydrous ammonia. 
Because of the large amount of anhydrous ammonia released, emergency 
responders were unable to enter the accident area for approximately 
three hours. Within 15 minutes of the accident, however, 911 operators 
were advising residents in the affected area to shelter-in-place (i.e., 
remain inside their homes with the windows shut) and the emergency room 
of a local hospital was notified of the derailment.
    Upon notification of the derailment, the hospital activated its 
disaster plan and staff secured the facility against the hazardous 
vapors by shutting down air handlers, setting up a portable air-
handling unit in the emergency room, and establishing an alternate 
emergency room entrance away from the vapor cloud. Within three hours 
of the accident, the ammonia cloud had drifted to and encompassed the 
hospital. Nevertheless, throughout the incident, the hospital treated 
approximately 300 people.
    Ultimately, one resident of the neighborhood nearest the derailment 
site was fatally injured, two residents were seriously injured, and 60-
65 residents were rescued hours after the derailment. All three 
residents that were seriously injured left the protective confines of 
their homes and were directly exposed to the anhydrous ammonia cloud 
for a prolonged period of time (given the time of day and widespread 
power outages as a result of the accident, it is unknown whether these 
individuals had heard or seen any of the emergency directives to 
shelter-in-place). As a result of the accident, nine other people 
sustained serious injuries, and 322 people, including the two train 
crew members, sustained minor injuries.
    The NTSB concluded that sheltering-in-place was an effective 
emergency response and credited this action with the relatively low 
number of injuries, as compared to the number of persons affected by 
the vapor plume (approximately 330 injuries in 11,600 persons 
affected). However, had this accident happened at another time of day, 
possibly during the morning commuting hours when people are generally 
not at home, or if emergency responders did not promptly direct 
residents to shelter-in-place, or if the local hospital had not taken 
appropriate measures to protect itself from the plume, the consequences 
of the release could have been much worse than what occurred on January 
18, 2002.
    Similar to the meteorological circumstances surrounding the 
Graniteville accident, had the atmospheric variables been different 
(particularly, the temperature at the time of the accident), it is 
likely that many more people could have been at risk of exposure to the 
toxic plume. The low atmospheric temperature at the time of the 
accident helped to keep the ammonia plume close to ground level as it 
traveled downwind and also minimized the chemical's vaporization, 
accordingly limiting the spreading of the plume. Had this accident 
happened in the spring or summer, or any other time of warmer 
temperatures, windows in the homes may have been open and it is likely 
that the ammonia plume would have expanded more rapidly, thus exposing 
a greater population to the chemical.
    Although the Minot, Macdona, and Graniteville accidents each 
occurred during the early morning hours, while most of the surrounding 
populations were in their homes and not in the immediate accident 
vicinity, because hazardous material transportation is not limited to 
early morning transportation, any of the accidents could have occurred 
later in the day, when neighboring factories were fully staffed, 
schools were in session, and unsuspecting individuals were otherwise 
outside of the protective confines of their homes and workplaces going 
about their daily routines. As an example, at approximately 11 a.m. on 
October 10, 2007, a CSX train transporting mixed freight of grain, 
lumber, and tank cars of various hazardous materials, derailed in 
Painesville, Ohio,\29\ resulting in an explosion and subsequent fire as 
hazardous materials were released to the environment. Although the 
train was reportedly not carrying any toxic inhalation hazard 
materials, and no injuries were reported, 600 people

[[Page 17831]]

(including over 300 children from a nearby elementary school) within a 
half mile radius of the train derailment were evacuated.
---------------------------------------------------------------------------

    \29\ Painesville is located approximately 30 miles from 
Cleveland and has an estimated population of 20,000.
---------------------------------------------------------------------------

    Although the Minot, Macdona, and Graniteville accidents each 
occurred in a relatively rural area, the accidents could have occurred 
anywhere, including in the midst of major metropolitan areas. The Minot 
accident was caused by an undetected defective rail. A crew's failure 
to appropriately respond to wayside signals governing movement of their 
train led to the Macdona accident. The Graniteville accident was caused 
by a train crew's failure to correctly align a switch. Each of these 
``causes'' could have occurred in close proximity to a metropolitan 
area, thus potentially impacting a much larger population of people. 
The Painesville, Ohio, incident, although not an accident with 
catastrophic results, illustrates this point. As a Cleveland City 
Councilman noted, had the derailment occurred closer to Cleveland, more 
than 8,000 people could have been affected.\30\
---------------------------------------------------------------------------

    \30\ David Summers, WKYZ-TV (Cleveland, Oh), Hazardous Cargo 
Legislation Stalled on the Tracks (Oct. 14, 2007).
---------------------------------------------------------------------------

VIII. The Railroad Industry's Liability and the Impact of Accidents 
Involving the Shipment of PIH Materials on Insurance Costs and Shipping 
Rates

    In 2005, railroads moved just over 100,000 carloads of PIH 
materials and nearly 37 million total carloads.\31\ The 100,000 
carloads of PIH materials equate to approximately 0.3 percent of all 
rail carloads. Despite the small fraction of the railroad industry's 
business constituted by PIH materials (and the limited revenue it 
generates), railroad industry representatives, citing the Minot, 
Macdona, and Graniteville accidents, have noted that transporting PIH 
materials has led to the imposition of ``hundreds of millions of 
dollars of liability.'' \32\ Further, noting that ``railroads can 
suffer multi-billion dollar judgments'' from accidents involving 
highly-hazardous materials, in 2007 the President and CEO of AAR 
testified before a Congressional committee that ``every time a railroad 
moves [a highly-hazardous shipment] it faces potentially ruinous 
liability'' and that the ``insurance industry is unwilling to insure 
railroads against the multi-billion dollar risks associated with 
highly-hazardous shipments.'' \33\ In support of this assertion, a 
representative of the railroad industry noted that as a result of the 
Minot, Macdona, and Graniteville accidents, insurance costs for the 
entire railroad industry have gone up by 100 percent.\34\
---------------------------------------------------------------------------

    \31\ Written Statement of Edward R. Hamberger, President & CEO, 
AAR , before the U.S. House of Representatives Committee on 
Transportation and Infrastructure, Subcommittee on Railroads, 
Pipelines, and Hazardous Materials (Jan. 31, 2007) at 7 (Hamberger 
Statement).
    \32\ Statement of Bob Fronczak, Assistant Vice President, 
Environment and Hazardous Materials, AAR, at the Dec. 14, 2006 
public meeting (Fronczak Statement). See document no. 19 in the 
docket.
    \33\ Hamberger Statement at 7-8. An example of such a judgment 
is In re New Orleans Train Car Leakage Fire Litigation, 795 So. 2d 
364 (La. Ct. App. 2001). In that case, the Louisiana Court of 
Appeals upheld a class-action judgment of $850,000,000 in punitive 
damages and $2,100,000 in compensatory damages against CSX 
Transportation, Inc. Railroads, as common carriers, are generally 
required to provide transportation services in a reasonable manner 
and may not refuse to transport a material that the government has 
deemed safe for transportation.
    \34\ Fronczak Statement.
---------------------------------------------------------------------------

    This increase in railroad insurance rates, coupled with the actual 
costs of the accidents, has resulted in increased shipping rates for 
the shippers of hazardous materials. Minimally, shipping rates for PIH 
materials have doubled; however, many shippers report larger increases 
(including at least one shipper which has had its rates increased over 
4.8 times in a two-year period).

IX. Industry Efforts To Improve Railroad Hazardous Materials 
Transportation Safety

A. General Industry Efforts

    The rail industry, through the AAR, has developed a detailed 
protocol on recommended railroad operating practices for the 
transportation of hazardous materials. Although in early 1990 this 
protocol was implemented by only the Class 1 rail carriers operating in 
the United States, on July 17, 2006, AAR issued a revised version of 
this protocol, known as Circular OT-55-I, with short-line railroads 
also participating in the implementation. The Circular details 
recommended railroad operating practices for, among other things: (1) 
Designating certain trains hauling hazardous materials as ``key 
trains,'' defined as trains containing five or more tank car loads of 
PIH materials; (2) designating operating speed and equipment 
restrictions for key trains; (3) designating ``key routes'' \35\ for 
key trains and setting standards for track inspection and wayside 
detectors on these ``key routes''; (4) yard operating practices for 
handling placarded tank cars; (5) storage, loading, unloading and 
handling of loaded tank cars; (6) assisting communities with emergency 
response training and information; (7) shipper notification procedures; 
and (8) the handling of time-sensitive materials. The Circular also (1) 
Restricts key trains to a maximum speed of 50 mph; (2) requires, as 
practicable, that unless a siding or auxiliary track meets FRA Class 2 
standards, a key train will hold main track at meeting or passing 
points; (3) requires all cars in key trains to be equipped with roller 
bearings; and (4) imposes a further speed restriction of 30 mph in the 
event a defect in a key train bearing is reported by a wayside 
detector, but is not able to be confirmed visually. A copy of the most 
recent version of Circular OT-55-I has been placed in the docket.
---------------------------------------------------------------------------

    \35\ Circular OT-55-I defines the term ``key routes'' as ``[a]ny 
track with a combination of 10,000 car loads or intermodal portable 
tank loads of hazardous materials, or a combination of 4,000 car 
loadings of PIH or TIH (Hazard zone A, B,C, or D), anhydrous 
ammonia, flammable gas, Class 1.1 or 1.2 explosives, 
environmentally-sensitive chemicals, Spent Nuclear Fuel (SNF), and 
High Level Radioactive Waste (HLRW) over a period of one year.''
---------------------------------------------------------------------------

    In addition, FRA is aware that some carriers have individually 
taken voluntary steps to reduce the occurrence of accidents that can 
lead to hazardous material releases. For example, BNSF has implemented 
a derailment prevention program that includes, among other efforts, 
implementing advanced train control technology; utilizing various 
freight car condition monitoring technologies; and installing and 
maintaining switch point position indicators and broken rail protection 
in non-signaled territory. Specific to the transportation of hazardous 
materials through non-signaled territory, BNSF has also revised its 
operating practices at certain locations in its system through which a 
significant amount of PIH materials are transported in an effort to 
decrease the probability of an accident or incident involving a train 
hauling PIH material. A more detailed discussion of BNSF's efforts in 
this regard is found in the ``Discussion of Public Comments'' section 
below.

B. Trinity Industries, Inc.'s Special Permit Chlorine Car

    In accordance with 49 CFR 107.105, in early 2005, Trinity 
Industries, Inc. (Trinity) applied for a Special Permit to manufacture, 
mark, and sell DOT 105J600W specification tank cars, for use in 
chlorine service, with a variation in design and construction of the 
protective housing (the ``Trinity car'').\36\ Specifically, as noted in 
Trinity's

[[Page 17832]]

application, the Trinity car varies from Federal standards because it 
has a protective housing welded, rather than bolted, to the tank nozzle 
and its maximum gross weight on rail is 286,000 pounds (due in part to 
a thicker head and shell than current chlorine cars).\37\ In response 
to Trinity's application, several members of the hazardous materials 
shipping industry expressed concern with certain aspects of the 
proposed Trinity car. For example, commenters expressed concern 
regarding the proposed manway arrangement, noting that the modified 
pressure plate and protective housing may present difficulties for 
emergency responders because it was unclear whether the standard 
Emergency Kit C, which is used to contain leaks in and around the 
pressure relief device and angle valves, was compatible with the 
arrangement. Further, commenters expressed concern regarding the 
increased car pressure and corresponding pressure rating of the valves 
and fittings. Commenters also questioned the efficacy of increasing the 
thickness of the car's steel, but utilizing steel with a lower tensile 
strength than current chlorine cars. Furthermore, commenters expressed 
concern that given the increased weight of the car, some shipping and 
receiving facilities may not be able to handle the heavier car.
---------------------------------------------------------------------------

    \36\ See 70 FR 12782, 12783 (Mar. 15, 2005) (Research and 
Special Programs Administration, List of Applications for 
Exemption). 49 U.S.C. Sec.  5117 authorizes the DOT to issue special 
permits (previously referred to as ``exemptions'') authorizing a 
variance from the HMR if the proposed variance is equivalent to the 
level of safety required by the HMR.
    \37\ The HMR require bolted top fittings and provide for a tank 
car maximum gross weight on rail of 263,000 pounds. See 49 CFR 
179.100-12 and 179.13.
---------------------------------------------------------------------------

    After careful review of Trinity's application, the comments 
received, and DOT's own analysis of the Trinity car, PHMSA issued the 
requested Special Permit on April 20, 2006, authorizing Trinity to 
manufacture, mark, and sell the car for use in chlorine service, 
subject to certain operational restrictions and inspection 
requirements.\38\ Specifically, the terms of the Special Permit 
prohibit the Trinity car from being used in free interchange and 
require the manway nozzle welds to be requalified annually. The Special 
Permit was issued based on the finding that the Trinity car used under 
the specified conditions would provide an equivalent level of safety to 
current DOT specification cars and additionally would provide a way to 
gather data about an alternative to a regulatory standard over a 
relatively short time-span.
---------------------------------------------------------------------------

    \38\ See 71 FR 47288, 47301 (Aug. 16, 2006) (PHMSA Special 
Permit number DOT-SP 14167). Subsequently, the Special Permit was 
revised on August 10, 2006 to clarify the outage and filling density 
requirements and specify requirements for filing agreements between 
carriers and filing non-destructive testing procedures. More 
recently, Trinity requested that the Special Permit be revised to 
amend the manway protective housing design.
---------------------------------------------------------------------------

C. AAR Proposals for Enhanced Chlorine and Anhydrous Ammonia Tank Cars

    In early 2006, the Safety and Operations Management Committee 
(SOMC) of the AAR directed the AAR's TCC to consider improved packaging 
for the shipment of chlorine and anhydrous ammonia. Specifically, SOMC 
directed the TCC to present a plan for developing performance standards 
for chlorine and anhydrous ammonia tank cars that would reduce the 
conditional probability of a release, given an accident, by a target of 
65% from the current values, as well as a plan to phase in the new 
improved cars within a target time frame of five to seven years. The 
goal of a 65% reduction was based on the findings of researchers at the 
University of Illinois at Urbana-Champaign's Railroad Engineering 
Program, which concluded that utilizing existing technology, the 
probability of a release of anhydrous ammonia and chlorine from a tank 
car involved in an accident could be reduced by 65% or more by 
substituting enhanced tank cars for the cars currently used to 
transport these materials.\39\ The enhanced tank car contemplated in 
the University of Illinois research is the thicker, heavier Trinity car 
designed for chlorine service and subject to PHMSA Special Permit 
14167. As noted in the AAR Risk Analysis, the finding of a potential 
65% improvement is premised on replacing the current 263,000 pound cars 
for anhydrous ammonia and chlorine with 286,000 pound cars equipped 
with additional head protection, thicker shells, and modified top 
fittings protection.
---------------------------------------------------------------------------

    \39\ Christopher P.L. Barkan, Ph.D., M. Rapik Saat, M.S., 
Railroad Engineering Program, Department of Civil and Environmental 
Engineering, University of Illinois at Urbana-Champaign, Risk 
Analysis of Rail Transport of Chlorine and Ammonia on U.S. Railroad 
Mainlines (Feb. 27, 2006) (AAR Risk Analysis).
---------------------------------------------------------------------------

    In response to this directive, the TCC established a task force to 
develop the requested plan. The task force consisted of a wide spectrum 
of interested parties, including hazardous material shippers, 
railroads, the Railway Supply Institute (RSI), and railroad industry 
consultants. The task force, however, was unable to reach consensus on 
a recommendation to the TCC.
    In July 2006, the AAR TCC considered proposals for improved tank 
cars in light of its mandate from SOMC to make the cars transporting 
chlorine and anhydrous ammonia 65% safer. At the July TCC meeting, all 
member railroads, supported by Trinity, proposed that anhydrous ammonia 
be transported in DOT 112J500W tank cars, equipped with full-height 
half-inch thick or equivalent head shields and top fittings protection 
designed to withstand a rollover with a minimum linear velocity of nine 
miles per hour. Similarly, the same parties proposed that chlorine be 
transported in tank cars built to the 105J600W specification, equipped 
with full-height half-inch thick or equivalent head shields and top 
fittings protection designed to withstand a rollover with a minimum 
linear velocity of nine mph. Alternatively, cars for each commodity 
could be designed in accordance with a formula derived from the 
statistical analysis in the RSI-AAR Tank Car Safety Project Report RA 
05-02.\40\ For anhydrous ammonia, this statistical formula required 
shell and head protection to reduce the conditional probability of 
release (CPR) by 32% given that the car is derailed in an accident; for 
chlorine, the statistical formula required shell and head protection to 
reduce the CPR by at least 45%.\41\ This railroad/Trinity proposal 
contemplated that 50% of a car owner's fleet of anhydrous ammonia and 
chlorine cars would be replaced with these ``enhanced cars'' within 
approximately six years, with their entire fleets being replaced within 
approximately eleven years.
---------------------------------------------------------------------------

    \40\ RSI-AAR Railroad Tank Car Safety Research and Test Project, 
Safety Performance of Tank Cars in Accidents: Probabilities of 
Lading Loss, RA-05-02 (Jan. 2006).
    \41\ While this statistical analysis sought to advance the 
safety of tank cars, it does not foster new technology because the 
CPR was derived from empirical data.
---------------------------------------------------------------------------

    At the same TCC meeting, all shipper members of the TCC, as well as 
every rail tank car builder other than Trinity, supported a proposal 
submitted jointly by The Fertilizer Institute (TFI) and the Chlorine 
Institute (CI). The TFI/CI proposal for cars constructed after a 
proposed effective date incorporated the Federal standard for head 
protection (49 CFR 179.16), with the ram car adjusted to reflect the 
increasing presence of cars with a gross rail load of 286,000 pounds. 
The TFI/CI proposal contemplated grandfathering existing cars in 
anhydrous ammonia and chlorine service prior to the effective date as 
compliant.
    The initial result of this deliberation was the TCC's issuance of 
Casualty Prevention Circular 1175 (CPC-1175) on July 28, 2006. CPC-1175 
proposed to implement the railroad/Trinity proposal introduced at the 
July TCC meeting. In response to CPC-1175, several members of the 
hazardous materials shipping

[[Page 17833]]

industry submitted comments to the AAR expressing concern with certain 
aspects of the proposal. For example, commenters expressed concern with 
the proposed implementation schedule, the proposed top fittings 
arrangement, and the scientific basis utilized for development of the 
standard. Commenters also questioned the efficacy of moving forward 
with the proposal without the benefit of the results of the FRA's Volpe 
research designed to quantify tank car survival conditions.
    FRA also corresponded with the AAR in response to CPC-1175. In its 
letters, FRA first noted that the Circular contained two proposed, 
amended tank car specifications and two proposed, new specifications. 
Accordingly, FRA noted that before the TCC could implement the proposed 
requirements in CPC-1175, in accordance with 49 CFR 179.4, the 
proposals would have to be submitted to the Department. The FRA also 
expressed concern regarding the engineering analysis underlying the 
proposal, specifically related to the analysis of the top fittings, 
tank-head and shell, as well as the tank car's capacity.
    In response to comments received from FRA and the industry, on 
October 18, 2006, the TCC issued Casualty Prevention Circular 1176 
(CPC-1176), which adopted as a final TCC action the proposals set forth 
in CPC-1175 with minor modifications to the implementation period 
initially proposed. Specifically, the intermediate implementation goal 
of CPC-1175 (50% of the fleet by December 31, 2012) was eliminated and 
replaced by a requirement that the tank car owners' plans for 
implementation be submitted to AAR by December 31, 2007. Subsequently, 
on December 18, 2006, AAR issued Casualty Prevention Circular 1178 
(CPC-1178) in response to appeals to CPC-1176. Although various aspects 
of CPC-1176 were appealed (e.g., the proposed implementation schedule, 
top fittings arrangement, and the scientific basis of the proposed 
design), CPC-1178 is substantially the same as CPC-1176, except the 
target implementation dates were delayed by one year (i.e., tank car 
owners' plans for implementation were required to be submitted by 
December 31, 2008 and tank cars were required to be 100% fleet 
compliant by December 31, 2018).\42\
---------------------------------------------------------------------------

    \42\ On August 28, 2007, the TCC issued Casualty Prevention 
Circular 1180 (CPC-1180) for public comment. CPC-1180 addresses 
certain high-hazard materials (including chlorine and anhydrous 
ammonia). CPC-1180 proposes an implementation period for a top 
fittings requirement consistent with that of CPC-1178, but also 
includes requirements for commodity specific tank improvement 
factors. The tank improvement factor requirements are new 
requirements for chlorine and anhydrous ammonia.
---------------------------------------------------------------------------

D. Dow/UP Safety Initiative and the Next Generation Rail Tank Car 
Project

    In October 2005, the Dow Chemical Company (Dow) and UP, Dow's 
largest rail service provider, formed a partnership to address rail 
safety and security improvements for the transportation of hazardous 
materials. Specific goals of the agreement between UP and Dow include: 
(1) Reducing idle times for hazmat shipments by 50 percent in high-
threat urban areas; (2) redesigning Dow's customer supply chains to cut 
in half the amount of ``highly hazardous chemicals'' shipped by 2015; 
(3) eliminating all nonaccidental leaks of certain hazardous materials 
in three years; and (4) having hazardous material shipments monitored 
by satellite tracking tags and other sensors.\43\ As Dow noted at the 
May 31-June 1, 2006, PHMSA/FRA public meeting, the companies' joint 
effort focuses on six areas for improvement: (1) Supply chain redesign; 
(2) next generation rail tank car design; (3) improved shipment 
visibility; (4) a strengthened commitment to TRANSCAER[supreg]; \44\ 
(5) improved rail operations safety; and (6) hazardous material 
shipment routing.
---------------------------------------------------------------------------

    \43\ John D. Boyd, UP, Dow Sign Safety Pact, Traffic World (Mar. 
19, 2007).
    \44\ TRANSCAER[supreg] (Transportation Community Awareness and 
Emergency Response) is a voluntary national outreach effort that 
focuses on assisting communities to prepare for and respond to a 
possible hazardous materials transportation incident. 
TRANSCAER[supreg] members consist of volunteer representatives from 
the chemical manufacturing, transportation, distributor, and 
emergency response industries, as well as the government. For more 
information on TRANSCAER[supreg] see http://www.transcaer.com/
public/about.cfm.
---------------------------------------------------------------------------

    With regard to supply chain redesign, Dow is evaluating potential 
ways to reduce the number and distance of shipments involving high-
hazard materials. In this connection, Dow is evaluating the potential 
for co-location of production and consuming facilities; the use of 
pipelines instead of rail in some instances; and the conversion of 
highly hazardous products to less hazardous derivatives before 
shipping.\45\ At the same public meeting, Dow noted that since 1999, 
the company has reduced the amount of chlorine it ships in the United 
States by 80%. Dow also noted that the company's current commitment is 
to have further reduced by 50 percent the number of shipments of highly 
hazardous materials (i.e., PIH materials and flammable gases) and 
container miles traveled by those shipments by 2015. Recognizing that 
the temperature, pressure, and other characteristics of the material 
being shipped affects the consequences of any hazardous materials 
release, Dow is also focusing its efforts on improving shipment 
visibility and tracking. Specifically, by the end of 2007, Dow's stated 
goal is to have implemented shipment tracking via GPS technology to 
know, in real time, exactly where its tank cars containing PIH 
materials are located and what condition they are in. Through 
TRANSCAER(r), Dow has also publicly committed to ``touch every 
community'' through which its highly hazardous materials travel within 
the next five years. Through this initiative, Dow's stated intent is to 
provide community awareness and emergency responder training to help 
ensure that the communities through which their highly hazardous 
materials travel are better prepared for potential chemical 
transportation emergencies.
---------------------------------------------------------------------------

    \45\ See Transcript of May 31-June 1, 2006, public meeting in 
docket no. FRA-2006-25169.
---------------------------------------------------------------------------

    We invite commenters to provide data and information concerning the 
extent to which other companies are voluntarily implementing measures 
to reduce the transportation safety risks associated with the 
transportation of PIH materials in tank cars. We are particularly 
interested in efforts planned or underway to modify or redesign supply 
chains, reduce the number of shipments and the time-in-transit of 
shipments, or enhance shipment visibility and tracking. We ask 
commenters to consider whether implementation of these and similar 
risk-reduction measures industry-wide would militate against the need 
to improve the accident survivability of the current PIH tank car 
fleet, as proposed in this NPRM.
    With regard to improving rail tank car design, Dow, UP, and the 
Union Tank Car Company (Union Tank), which had joined the Dow/UP 
Partnership specifically to participate in the NGRTCP, initiated the 
NGRTCP for the stated purpose of collaborating on the design of a next 
generation railcar for the transportation of certain hazardous 
materials. The project is multi-generational with the first generation 
focusing on designing a breakthrough next generation tank car for the 
transport of PIH materials that will meet or exceed the AAR TCC 
performance requirements and provide a five- to ten-fold improvement in 
the safety and security performance of existing rail tank cars in PIH 
service. Subsequent generations of the project would build on the first 
generation to leverage the process, methodology, and criteria used in 
designing the next generation PIH tank car to design a tank car 
appropriate

[[Page 17834]]

for other hazardous materials, such as flammable gases or chemicals 
that pose a significant risk to the environment if released. Dow's 
stated goal is full implementation within the company of a next 
generation PIH tank car by the end of 2014, and full implementation of 
further generations of tank cars for flammable gases and 
environmentally-sensitive chemicals by the end of 2029.
    The NGRTCP team includes industry leaders and representatives from 
Dow, UP, Union Tank, as well as an external advisory panel of academic, 
industry, and former regulatory leaders to help guide the development 
of the next generation rail tank car design. Recognizing the 
significant opportunities to leverage government and industry resources 
in designing this next generation rail tank car, in January 2007, FRA 
signed a Memorandum of Cooperation (MOC) with the companies involved in 
the NGRTCP. This MOC provides for extensive information sharing and 
cooperation between ongoing FRA and industry research programs to 
improve the safety of rail shipments of hazardous commodities such as 
PIH materials. FRA hazardous materials safety and R&D personnel are 
actively involved in the project.\46\
---------------------------------------------------------------------------

    \46\ The MOC was amended in early 2007 when Transport Canada 
joined the project.
---------------------------------------------------------------------------

    The NGRTCP is following a six sigma approach (i.e., a data driven 
approach and methodology for eliminating defects) to tank car design, 
evaluating such issues as: (1) Coupler penetration to tank sides and 
heads; (2) hydrostatic failure; (3) ability of tanks to withstand 
ballistic impacts; (4) fittings protection; (5) operational efficiency 
(including payload, infrastructure, maintenance and re-qualification); 
as well as (6) fire and thermal protection. Recognizing that the 
traditional method of enhancing tank car survivability (i.e., utilizing 
thicker, stronger steel) is limited, the project is evaluating the use 
of alternative technologies and design concepts from other industry 
sectors (e.g., automotive and aerospace). The general framework for the 
modeling and testing contemplated by the NGRTCP consists of the use of 
quantitative analysis (computer simulation using finite element 
analysis), component testing, quarter- to half-scale model testing, and 
limited full-scale testing. The project also involves a comparison of 
any potential new design with existing designs (e.g., the DOT 105A500W 
base car, the DOT 105J600W tank car with full head shields and top 
fittings protection).\47\
---------------------------------------------------------------------------

    \47\ Additional discussion of the NGRTCP may be found in the 
``Discussion of Public Comments'' section below and in the 
transcript to the December 14, 2006, public meeting (document no. 22 
in FRA docket no. FRA-2006-25169).
---------------------------------------------------------------------------

E. The Chlorine Institute (CI) Study

    In late 2005, CI established a research program to investigate tank 
car puncture resistance and the potential development of alternative 
materials tests (e.g., un-notched Charpy test) to develop and validate 
alternative fracture criteria. The CI study recognizes that 
considerable advances have been made in the design of tank car steels 
to improve and increase the ductile-to-brittle transition temperature 
and that these improvements have resulted in recent tank car failures 
occurring in a ductile fashion due to an overload of the tank. The CI 
research is looking at several alternative strategies to increase the 
ductile performance of tank car design, including the development of 
novel material tests to better establish a relationship between 
overloading and material failure from specimens that do not include a 
pre-existing crack. This information will be used to refine how 
modeling of tank car failures occurs and to help with the evaluation of 
the alternative strategies being reviewed.

X. Discussion of Relevant Tank Car Research

    The process of improving the safety of railroad tank cars has been 
ongoing for decades. It involves railroads, tank car builders, chemical 
companies, and government regulators. Historically, FRA has conducted, 
and continues to fund and co-fund, a substantial amount of tank car 
safety research and development projects with Transport Canada, as well 
as with RSI and AAR, through their cooperatively funded RSI-AAR 
Railroad Tank Car Safety Research and Test Project. The RSI-AAR 
Railroad Tank Car Safety Research and Test Project conducts tank car 
safety research in two principal ways: (1) By maintaining a 
comprehensive database on the details of the damage suffered by tank 
cars in accidents, to enable better understanding of tank car design 
strengths and weaknesses, and (2) by conducting engineering analyses of 
specific problems. The FRA further collaborates with industry through 
the TCC to develop standards for designing, constructing, maintaining, 
and safely operating railroad tank cars in North America.
    Historically, the Department's research has focused on developing 
information on damage tolerance for tailoring inspection intervals for 
specific tank car designs; developing non-destructive evaluation and 
testing techniques and methodologies; improving fittings protection and 
gaskets; reviewing tank car operating environments; and developing new 
linings, coatings, and tank car steels. Since the 1970s, based on the 
combined research efforts of the Department and industry, DOT has 
issued a number of regulations to improve the survivability of tank 
cars in accidents. For example, DOT has promulgated regulations 
requiring the installation of tank-head puncture-resistance systems 
(head protection), coupler vertical restraint systems (shelf couplers), 
insulation, and thermal protection systems on tank cars used to 
transport certain hazardous materials.
    Despite these safety improvements, as noted above, in the last 
several years there have been a number of rail tank car accidents in 
which the tank car was breached and product was lost on the ground or 
into the atmosphere. FRA's research focus changed after the tragic 
occurrence of these accidents. Specifically, as discussed in Section VI 
above, the NTSB issued seven safety recommendations to FRA as a result 
of the Minot derailment. Four of these recommendations concern tank car 
structural integrity (R-04-04, R-04-05, R-04-06, and R-04-07), and 
these four recommendations served as the basis for the reformulation of 
FRA's tank car research and development program. The current FRA tank 
car research program objective is the development of effective 
strategies to maintain tank integrity during train derailments or 
accidents. The key metric identified for this research is the maximum 
speed for which tank integrity is maintained. This metric has been 
identified because of the comparable ability for other researchers to 
perform large deformation analysis. Ascertaining the specifics of 
material failure through analysis is still extremely challenging. The 
ability to model tank car integrity with confidence will be critical to 
the ability of tank car manufacturers to develop new designs that 
conform to the performance standards proposed in this NPRM.
    Specifically, in response to NTSB's Minot recommendation R-04-07, 
work was conducted on the testing of tank car steels to examine the 
dynamic fracture toughness of such steels as a function of service 
temperature. This work included standardized fracture mechanics tests 
and the comparison of results from these tests with Charpy V-notch 
impact energies at different temperatures. Due to inherent material 
variability, the results from the fracture toughness tests are 
scattered by a factor of four, which would require a safety factor of 
at least 2 in a quality assurance (QA)

[[Page 17835]]

specification. This means, for example, the samples taken from a 
production heat of steel would have to average at least twice the 
toughness needed for service.
    Tightening the QA on steel products can result in inordinately 
expensive steel costs and most likely would be cost prohibitive. 
Alternatively, an unacceptable gain in structure weight may be required 
to sufficiently decrease the applied stresses to meet the safety factor 
with achievable material performance. Additionally, a specification 
will not provide an absolute guarantee of safety because, despite the 
implementation of any QA specification, some materials released from 
production may not meet the minimum fracture toughness standard. 
Accordingly, although FRA is in the process of completing the dynamic 
fracture toughness testing, it does not appear that a workable steel 
specification could be developed based on the results. Instead, in this 
NPRM, the Department has chosen to explore advances in tank car safety 
through engineering redesign of tank car structures to increase the 
amount of energy absorption a tank car experiences prior to a breach. 
The Department will continue to examine the dynamic fracture toughness 
of steels used in the construction of pressure tank cars in hazardous 
materials service and will incorporate any workable tank car design-
specific fracture toughness standards into the HMR as appropriate in 
future rulemakings.
    Also in response to NTSB's Minot recommendations, a risk model 
framework was developed to provide the technical basis to rank the 
factors affecting catastrophic failure of tank cars in derailments or 
collisions. The risk model framework focuses on determining whether the 
risk of lading loss in an accident situation could be minimized by 
specifying a particular material, e.g., normalized versus non-
normalized steel. A hierarchal approach (i.e., Level 1, Level 2, and 
Level 3) was applied and as research results become available they will 
be incorporated.
    In Level 1, a qualitative ranking is conducted by identifying the 
factors that are perceived to affect risk. These factors are then 
grossly sorted in terms of their expected impact on risk (e.g., high, 
medium, or low impacts). A simple Level 1 risk ranking has been 
completed. In Level 2, a systematic framework will be developed to 
provide a technical basis for ranking the risk factors. In this semi-
quantitative method, a probabilistic approach will be used to account 
for uncertainties due to physical randomness and/or limited 
information. Different probability distributions (e.g., normal, 
Weibull, triangular, etc.) have been used to assess various 
uncertainties in the model. In Level 3, a quantitative risk ranking, 
the information obtained from other research programs will be 
incorporated with the goal of ranking tank cars that are perceived to 
be the most vulnerable to catastrophic failure. Although material 
properties play an important role in the performance of a tank car 
subjected to fatigue type loading, for overload conditions such as 
those experienced in collisions or derailments, the ranking developed 
is not expected to provide a tool for improving tank car performance. 
Instead, as noted above, in the NPRM, the Department has chosen to 
examine the potential redesign of the tank car structure to minimize 
the effect of the overload conditions, e.g., to absorb more energy 
prior to incipient rupture and spread the load over as large an area as 
possible.
    Currently, FRA's research focusing on the accident survivability of 
railroad tank cars involves a three-step process to assess the effects 
of various types of train accidents (e.g., derailments or collisions) 
on tank cars. Each phase involves the development of computational 
models with different objectives. The first phase involved the 
development of a physics-based model to analyze the gross motions of 
rail cars in a derailment (i.e., a derailment dynamics model). This 
derailment dynamics model was then used to estimate the closing speeds, 
peak impact forces, and angles of incidence between an impactor (e.g., 
the coupler of another car) and the tank car head or shell. The second 
phase involved the development of structural finite element analysis 
models to simulate the structural response of the tank car head or 
shell to an assumed scenario (i.e., penetrator shape, initial closing 
velocity, and effective collision mass). The third phase is an 
assessment of the damage created by the impacting loads, which entails 
the application of fracture mechanics testing and analysis methods. The 
research is being conducted by Volpe and is summarized below. In 
addition, a more detailed discussion of the research can be found in 
the transcript to the March 30, 2007, public meeting (document no. 29 
in docket no. FRA-2006-25169) and in FRA's ``Research Results'' 
(document no. 24 in docket no. FRA-2006-25169).
    The first phase of FRA's current research program developed 
information about the performance of a train consist after a derailment 
occurs. Initially, this phase of the research was aimed at developing a 
derailment model effectively recreating the Minot derailment. However, 
due to the chaotic events and inherent complexities (e.g., track layout 
and condition; the three dimensional topography of the local terrain; 
car types in a train; and the location of each car in a train) of 
derailment situations, the initial and boundary conditions that lead up 
to specific derailment scenarios are very poorly understood. Early in 
its research effort, FRA realized that the exact circumstances and 
boundary conditions of the Minot derailment could not be accurately 
reproduced.
    Accordingly, FRA revised its objective in this first phase of 
research from trying to replicate the conditions of the Minot accident, 
to identifying all of the salient features of derailment situations 
based on historical accident consequence review, as well as active 
accident investigations, thereby creating a generalized accident 
scenario with well-defined initial and boundary conditions. This 
information was then used to establish more easily analyzed impact 
scenarios. Specifically, the derailment dynamics model was used to 
estimate the post-derailment car-to-car interactions; that is, the 
gross motions of the cars as they come off the track after a 
derailment, the closing impact speeds, and the orientations at which 
the derailed cars come together in a generalized derailment scenario.
    Sensitivity studies were then performed to assess the relative 
effect of various factors on derailment severity. The factors analyzed 
included: (1) The number of cars derailed; (2) the secondary car-to-car 
closing speed; (3) the peak forces that the couplers experience; and 
(4) the lateral displacement of the derailed cars from the point of 
derailment. Although there are several potential alternative analysis 
techniques that could be employed, FRA used two different types of 
models to calculate the gross motions of rail cars during a derailment 
scenario. One model was a purpose-built model using an explicit 
derivation of the equations of motions for a two-dimensional lumped-
parameter representation. The second model involved a commercially-
available, general-purpose model for rigid-body dynamics, commonly 
accepted within the rail industry. The inputs for the models included: 
(1) Operational factors such as the number of cars in the train and the 
masses of the cars; (2) descriptions of the initial conditions such as 
the longitudinal speed of the train just prior to derailment and the 
initial angular velocity used to perturb the train set and cause the 
derailment; (3) the coefficients

[[Page 17836]]

of friction between the tank car trucks (i.e., the swiveling frames of 
wheels under each end of the tank car) and the rail or the ground; (4) 
specific coupler characteristics such as length, dead band, stiffness, 
and maximum swing angles; and (5) higher-level model assumptions such 
as how the couplers break, the car-to-car contact forces, and lumped 
mass simplification.
    The input parameters were varied by as much as +/-fifty percent. 
The models consistently demonstrated that significant sensitivities are 
associated with initial train speed and ground friction. The higher the 
initial train speed, the higher the post-derailment car-to-car impact 
closing speed and the greater the number of derailed cars. However, the 
results indicate that, in general, the secondary car-to-car impact 
speed is one-half that of the initial train speed across the variation 
in input parameters. Additionally, the resulting car-to-car impact 
speeds are negatively affected by increases in ground friction. That 
is, for higher ground friction, the resulting car-to-car closing speeds 
are lower and fewer cars derail. Of interest was the finding that 
within the parameters of the modeling, the mass of the cars was not a 
significant factor on post-derailment car-to-car closing speeds or on 
the number of cars derailed.
    Results of the derailment dynamics modeling also demonstrated 
similar car-to-car interactions as observed in real world accident 
situations. For example, one type of impact occurs when two cars come 
together and the second car impacts the head of the first car (e.g., 
the Macdona accident). A second type of impact is associated with side/
shell impacts (e.g., the Minot accident). Both the derailment dynamics 
models, as well as real world incidents documented in the RSI-AAR Tank 
Car Accident Damage Database, demonstrate that these head/shell impacts 
occur both at the centerline of the car as well as at the ends of the 
cars above the trucks/bogies. By combining this information, simple 
impact scenarios were developed that could be readily analyzed to 
compare the performance of different types of tank car designs (whether 
from the existing fleet or newer proposed designs).
    The second phase of FRA's current research program utilized the 
information generated from the derailment dynamics modeling to assess 
the forces to which cars can be subjected in the event of a collision 
or derailment. This work required the development of large deformation 
finite element models capable of analyzing post buckling/plastic 
deformations. Both head and shell impacts were analyzed, but emphasis 
was placed on head impacts because there is a greater body of knowledge 
available on head performance.
    In cooperation with FRA, extensive head puncture testing was 
conducted by the RSI-AAR Test Project throughout the 1970's and 1980's. 
This research, conducted on both empty, non-pressurized and loaded, 
pressurized tank cars, led to the HMR's current specification for head 
protection. It is important when developing such complicated models to 
start simply and build up in levels of complexity. Because head impacts 
are better understood, as is the deformation of a tank car unloaded and 
unpressurized, FRA initially modeled an empty, unpressurized tank car. 
There is greater uncertainty associated with pressurized fully-loaded 
cars, as well as understanding the stress states the cars experience 
prior to rupture. Results from the RSI-AAR head impact data, empirical 
puncture models, and three-dimensional laser mapping of the damage from 
the cars in Graniteville were used to help establish the validity and 
fidelity of the models. FRA intends to continue its modeling efforts to 
increase the level of complexity to analyze a loaded, pressurized car.
    The third phase of the FRA's current research program is an 
extension of the model development and assessment of damage to tank 
cars from prescribed impact loading conditions that may lead to 
catastrophic failure. The results from full-scale tests will be used to 
validate the second and third phases of the research.
    The FRA and the NGRTCP group are conducting a series of shell 
impact tests to provide information about the performance of 
conventional PIH tank cars under the collision conditions defined from 
the previous research program. In addition to providing baseline 
performance data, the test conditions developed are intended to aid in 
the development of a testing process that can be used to assess the 
relative performance of different designs, as well as to qualify a 
design. The full-scale testing approach involves a generalized impact 
condition based upon the scenarios defined previously and is designed 
to be simple to set-up, safe to conduct, and readily analyzed. It is 
also designed to provide consistent and repeatable results. The test 
conditions developed are not intended to replicate any specific 
accident conditions but are rather intended to result in similar 
failure and deformation modes as observed in accidents. This is a very 
similar approach that parallels the automotive 30 mph barrier test.
    Three full-scale tests have been conducted to date, on April 11, 
2007, April 26, 2007, and July 11, 2007. These tests involved a side 
impact between a rigid ram car with a stylized punch striking a 
standing pressurized DOT specification 105 tank car broadside at the 
centerline of the tank, both horizontally and vertically. The ram car 
was ballasted to a weight of 286,000 pounds. The standing tank car was 
pressurized to 100 psig and was loaded with clay slurry with a density 
equal to liquid chlorine with an outage of 10.6%. The ram car was 
pulled back to a predetermined position on the slightly graded tangent 
track and released to achieve the desired impact speed. Just prior to 
impact with the standing tank car, the air brakes on the ram car were 
activated, such that upon rebound, a second impact would not occur. In 
the first two tests, the punch face size was approximately 23 inches by 
17 inches; in the third test, the punch face size was approximately 6 
inches by 6 inches.
    The first test was a limited instrumented assurance test designed 
to develop information about how the colliding equipment interact and 
to better understand the gross motions of the two cars. Because the 
test was designed to develop more detailed information about the 
interacting cars' behavior, and puncturing the standing car would have 
unnecessarily complicated the analysis and test set-up, the test speed 
was defined such that no puncture would occur. Specifically, the first 
test was conducted at 9.6 mph, and as predicted, no puncture occurred. 
The limited instrumentation on both the ram car and the standing tank 
car were analyzed and the force-time histories measured and predicted. 
The measured force-time histories from the collected data were within 
the standard deviation of the predicted test results.
    The second test that was conducted had a fully-instrumented 
standing tank car. The additional instrumentation helped to define load 
path into the tank car, the evolution of the plastic dent growth, and 
recovery. It also refined the measurements of the gross motions of the 
colliding cars' interaction. The test was conducted at 14.0 mph. As 
with the first test, this test speed was chosen so that puncture would 
not occur. The ram car was again released from a pre-defined location 
and allowed to roll freely under gravity and the grade to impact the 
standing tank car. The analysis of the test data are on-going, but 
preliminary review suggests that again the force-time histories of the 
ram car and the struck tank car are within

[[Page 17837]]

the standard deviation of the predicted test results.
    After the second test, a careful inspection of the ram car showed 
that a modest amount of damage was inflicted on the lead truck and its 
carbody attachment. This damage was attributed to the off-axis vertical 
motions resulting from the difference in the centerline of the impactor 
and the height of the center-of-gravity of the ram car.
    In order to safely run a test to puncture the baseline car, either 
a smaller punch would be needed and the test speed maintained at 14 
mph, or the center-of-gravity of the ram car would have to be raised to 
be more in line with the centerline of the punch, to minimize ram car 
vertical motions for impact speeds greater than 14 mph. The option 
selected was to reduce the punch size to 6 inches by 6 inches. There 
was equal confidence in simulating the influence of punch size and 
impact speed on tank rupture. DOT is seeking to significantly increase 
the impact speed at which tank cars carrying PIH materials can protect 
their lading. For a wide range of sizes, this goal is independent of 
punch size. In order to allow for safer test procedures and lower test 
speeds, it was decided to use the smaller punch size in the regulation.
    Because of the results of the second test, in the third test, the 
punch face size was approximately 6 inches by 6 inches. The standing 
tank car that was used during the third test was fully-instrumented. 
The test was conducted at 15.1 mph, and this test speed was chosen so 
that puncture would occur. The third test was designed to confirm that 
material failure of the tank car and puncture would occur at 15 mph 
with a smaller impactor. The test also provides a comparative baseline 
reference for the enhanced tank car designs. As with the second test, 
the ram car was again released from a pre-defined location and allowed 
to roll freely under gravity and the grade to impact the standing tank 
car. The analysis of the test data are on-going, but preliminary review 
suggests that again the force-time histories of the ram car and the 
struck tank car are within the standard deviation of the predicted test 
results.
    Additional tank car testing is planned. The further testing will 
provide additional insight and validation to the modeling. The 
additional tests include material, full-scale sub-assembly, and full-
scale prototype car tests. Materials tests improve the constitutive 
models applicable to the specific sub-components used in alternative 
designs, such as behavior of composites, foams, and multi-layered metal 
structures. The full-scale sub-assembly tests build confidence in the 
fidelity of the models used as they capture both material and geometric 
nonlinear behavior exhibited by larger scale components. Finally, in 
conjunction with the NGRTC program, full-scale prototype cars will be 
subjected to side and head impact and over-the-road testing. Each 
additional test enhances the modelers' ability to predict and capture 
increasingly complicated behavior under extreme accident loading 
conditions. As noted in the discussion of the proposed rule text, the 
proposed head and shell performance standard is based on the model that 
has been developed by Volpe. As more testing is completed, any new 
information or refinements to the test procedure will be considered for 
incorporation in this proposed rule.
    For the reasons outlined above, FRA's research has focused on ways 
to enhance the accident survivability of tank cars through 
implementation of an enhanced performance standard for head shields and 
tank shells. We recognize that there may be a number of different ways 
for tank car manufacturers to meet this performance standard, including 
different design-types, variations in materials of construction, and 
the like. We invite commenters to suggest specific measures that would 
be utilized to meet the proposed performance standard. In addition, 
commenters may wish to provide data and information that would support 
alternative strategies for achieving the goal of improved tank car 
accident survivability.

XI. Discussion of Public Comments

    As noted above, recognizing the need for public input as part of 
DOT's comprehensive review of design and operational factors affecting 
rail tank car safety, PHMSA and FRA held three public meetings inviting 
interested parties to comment on relevant aspects of tank car safety. 
As part of the public comment process, FRA established a public docket 
(Docket No. FRA-2006-25169), providing interested parties with a 
central location to both send and review relevant information 
concerning the safety of railroad tank car transportation of hazardous 
materials. The FRA docket contains several submissions from FRA (e.g., 
transcripts of the three public meetings, relevant Congressional 
testimony, research reports), as well as comments from numerous members 
of the regulated community. Specifically, written comments were 
received from the following organizations: BASF Corporation, the 
Institute of Makers of Explosives, Dow, TFI, Trinity, Applied 
Solutions, Inc., the Brotherhood of Railroad Signalmen, Agrium U.S. 
Inc., CI, and PPG Industries (PPG). Many of these same organizations 
attended the public meetings and provided oral comments at those 
meetings. The following discussion provides an overview of the written 
and verbal comments that were received. Where appropriate, a more 
detailed discussion of specific comments and how DOT has chosen to 
address those comments in this proposed rule can be found in Section 
XIII below, the Section-by-Section analysis portion of this preamble.

A. May 31-June 1, 2006 Public Meeting

    The primary purpose of the first public meeting, held on May 31-
June 1, 2006, was to surface and prioritize issues relating to the safe 
transportation of hazardous materials in railroad tank cars. Attendees 
included representatives from the railroad industry, shipping industry, 
railroad tank car manufacturing and repair companies, labor 
organizations, the NTSB, Transport Canada, and the Transportation 
Security Administration (TSA). At this meeting, commenters from both 
the railroad industry and the hazardous materials shipping industry 
expressed the view that rail is the safest mode of transportation for 
hazardous materials over land. For example, the AAR explained that 
since 1980, the rate of rail accidents with a hazardous materials 
release per thousand rail carload has dropped by 89%. RSI noted that 
approximately 1.7 million carloads of hazardous materials are 
transported by rail throughout the United States each year and 99.98% 
of those shipments reach their destinations without incident. 
Similarly, RSI commented that statistics demonstrate that it is 16 
times safer to move hazardous materials by rail, as compared to 
highway. Noting that it would take approximately four cargo tank trucks 
to deliver the amount of hazardous materials that can be carried in one 
rail tank car, several shippers expressed concern that if shippers were 
forced to transport hazardous materials via highway, the overall safety 
risk would increase because of the increased number of shipments on the 
nation's roads. Several representatives of the hazardous materials 
shipping industry expressed the view that rail transportation of 
hazardous materials is essential to the competitiveness of the U.S. 
chemical and agricultural industries, to the public health, safety and 
welfare, as well as to the economy of the United States. Dow, the 
largest chemical company in the world,

[[Page 17838]]

indicated that its North American business model is based on the belief 
that the rail transportation of hazardous materials is the safest, most 
efficient, most economical, and most socially acceptable way of 
shipping hazardous materials over land.
    Despite these safety statistics, meeting participants from both the 
railroad and shipping industries expressed agreement on the need for 
continuous improvement in the safe transportation of hazardous 
materials by railroad tank car, particularly in light of the Minot, 
Macdona, and Graniteville accidents. However, participants expressed 
differing views on how to accomplish that goal. Many representatives of 
organizations that depend on railroads for shipping hazardous materials 
stated that improvements in the safe transportation of hazardous 
materials by railroad tank car should be made only after a ``holistic'' 
consideration of the rail transportation system. For instance, several 
commenters expressed the view that not only should tank car design 
improvements be considered, but safety improvements should also address 
railroad operating and maintenance practices; railroad routing 
practices and how to reduce ton miles PIH materials travel due to 
inefficient routes; shipper commodity handling practices; and emergency 
response procedures. Both the Brotherhood of Locomotive Engineers and 
Trainmen (BLET) and the United Transportation Union (UTU) echoed 
several of these same concerns, particularly noting human factors 
issues, the prevalence of non-signalized territory, the training of 
crews to handle hazardous materials, and crews' access to personal 
protective equipment in the event of an incident. One commenter 
specifically suggested that DOT adopt AAR Circular OT-55-I as a 
regulation. Several commenters noted that the tank car is only one 
component of the rail transportation system, and no single component of 
the system can provide the entire means to improving tank car safety. 
Accordingly, many commenters expressed a desire for DOT to take a 
leadership role in addressing the safe transportation of hazardous 
materials by railroad tank car on a system-wide basis.
    FRA and PHMSA generally agree with these commenters. Although this 
NPRM focuses on enhancing the tank car packaging, it also proposes 
certain operational restrictions specific to tank cars transporting PIH 
materials, and DOT's comprehensive review of design and operational 
factors affecting rail tank car safety is not so limited. As noted 
above, DOT's rail safety efforts are multi-faceted, and DOT is 
addressing operational issues such as human factors, track conditions, 
and signal and train control systems designed to prevent accidents in 
the first place, as well as emergency response issues intended to 
ensure that in the event of an incident, emergency responders are able 
to respond appropriately. In addition, PHMSA has issued a proposed rule 
that would require railroads to gather traffic and commodity data on 
certain explosive, radioactive, and PIH materials they transport; 
analyze safety and security vulnerabilities of current and alternative 
routes used for these materials; and select the routes that pose the 
least safety and security risks after considering any mitigation 
measures that could be implemented. See 71 FR 76834 (Dec. 21, 2006).
    Other commenters noted the voluntary efforts already underway by 
many hazardous materials shippers to improve the safe transportation of 
their materials by rail. One example of an industry effort to address 
the safe transportation of hazardous materials in tank cars is the 
partnering of Dow and UP in a series of initiatives to improve rail 
safety and security, including the NGRTCP. These initiatives are 
discussed in more detail in Section IX above.
    Railroad participants, including the AAR, CP, and BNSF, expressed 
the view that the railroad industry itself has taken many voluntary 
steps to reduce the occurrence of accidents that can lead to hazardous 
materials releases. For instance, a representative from BNSF presented 
information on the carrier's derailment prevention efforts aimed at 
track caused derailments, equipment caused derailments, as well as 
derailments relating to operating practices. BNSF's efforts include 
implementing advanced train control technology; utilizing various 
freight car condition monitoring technologies; installing and 
maintaining switch point position indicators and broken rail protection 
in non-signalized dark territory; as well as modifying the carrier's 
operating practices when transporting a significant amount of PIH 
materials over non-signalized territory. Specifically, noting that 
nearly 50% of BNSF's PIH movement is over non-signaled territory, BNSF 
explained changes in its operating practices aimed at ensuring the safe 
transport of PIH materials over this type of territory. BNSF noted the 
following changes in operating practices when transporting PIH 
materials over dark territory: (1) Inspecting the route prior to 
operating trains carrying PIH materials; (2) restricting the speed of 
trains carrying PIH materials to 35 miles per hour; (3) requiring that 
trains hauling PIH materials hold the main line during meets; and (4) 
requiring trains on sidings to stop before PIH trains pass. 
Additionally, a representative from CP presented information on the 
carrier's efforts, dating back to 1995, to address human factors issues 
in the railroad environment, including efforts directed at crew 
resource management, and fatigue risk management.
    Noting member railroads' efforts to reduce the occurrence of 
accidents that can lead to hazardous materials releases, the AAR 
expressed the view that ``[r]esponsible planning must consider that 
accidents can occur'' and ``in addition to the efforts to prevent 
accidents, industry must also do everything it can to reduce the 
probability of a release of TIH [materials], such as anhydrous ammonia 
and chlorine, should an incident occur.'' Based on its research through 
the University of Illinois, AAR noted that there appears to be a 
significant opportunity to reduce the probability of a release of 
anhydrous ammonia and chlorine in the event of an accident.
    AAR indicated that the University of Illinois research concluded 
that, utilizing existing technology, the probability of a release of 
anhydrous ammonia and chlorine from a tank car involved in an accident 
could be reduced by 65 percent or more by substituting enhanced tank 
cars for the cars currently used to transport these materials. AAR 
explained that this conclusion was premised on replacing the current 
263,000 pound tank cars used for transporting anhydrous ammonia and 
chlorine with 286,000 pound tank cars equipped with additional head 
protection, thicker shells, and enhanced top fittings protection (i.e., 
the Trinity car).
    Most commenters representing members of the hazardous materials 
shipping industry generally expressed support for the efforts of the 
AAR TCC to improve the transportation of hazardous materials by rail. 
However, those commenters expressed concerns with several aspects of 
the TCC's recent proposals. First, commenters stated that the 
implementation period proposed by AAR (i.e., replacing the entire 
chlorine and anhydrous tank car fleet within five to seven years) was 
unrealistic, particularly given tank car manufacturing capacity. One 
commenter, Terra Industries (Terra), a shipper of anhydrous ammonia, 
objected to AAR's proposal noting that the estimated costs to build 
cars to the standard would be approximately 160% higher than new 
ammonia cars being built today. In addition, Terra noted that because 
the cars would hold

[[Page 17839]]

approximately 80% as much product as compared to current ammonia cars 
due to infrastructure restrictions, shippers would need more cars in 
order to make shipments at current levels. This, in turn, according to 
Terra, would increase the costs of shipping by approximately 75% before 
rail freight and fuel charges. Several other shippers and chemical 
manufacturers echoed Terra's concern regarding reduced capacity, noting 
that infrastructure restrictions of many facilities and some shortline 
railroads would prohibit utilizing a car weighing 286,000 pounds. These 
commenters also noted that this reduced car capacity could lead to an 
increased number of railroad tank car shipments, and in the case of 
anhydrous ammonia, a shift from rail transportation to highway 
transportation.
    Terra also noted that AAR's approach was inconsistent with the 
NTSB's recommendations in response to the Minot accident. Specifically, 
Terra stated that the NTSB's report for the Minot accident indicated 
that the construction of tank cars with sufficient impact resistance to 
eliminate or reduce leaks would require an evaluation of the dynamic 
forces acting on the tank cars in an accident situation, as well as an 
integrated analysis of the response of the tank's structure and the 
tank material to these forces. Terra noted that AAR's proposed approach 
considered none of these factors.
    Similarly, noting FRA's on-going research with Volpe, several 
commenters stated that any potential tank car design improvements 
should take into consideration the results of the Volpe research. 
Commenters generally noted that improved tank car design is dependent 
on understanding and defining the environment in which the tank car is 
expected to perform. FRA and PHMSA agree that in order to design an 
enhanced tank car with increased accident survivability, an 
understanding of the forces acting upon a tank car in a typical 
derailment or collision scenario is necessary. Accordingly, FRA has 
aggressively accelerated its research efforts related to tank car 
integrity and, as discussed above, FRA is working cooperatively with 
industry to leverage R&D resources. We will continue to update this 
docket to reflect the results of our ongoing research efforts and, as 
indicated above, may incorporate research results in a final rule 
developed as a result of this NPRM.
    Several commenters further expressed the view that the overriding 
goal of any effort must be to prevent accidents from occurring in the 
first place and that AAR's proposal does not address the root causes of 
accidents (e.g., operating factors). Again, FRA and PHMSA agree with 
commenters in this respect. As described above, FRA is aggressively 
working through a comprehensive action plan to not only improve the 
integrity of tank cars used to transport hazardous materials, but to 
address the root causes of such accidents as well.

B. December 14, 2006 Public Meeting

    Although commenters at the second public meeting, which was held on 
December 14, 2006, raised many of the same issues discussed at the 
prior public meeting, discussion at the meeting focused on a series of 
nine questions posed by PHMSA and FRA in the meeting notice 
publication. See 71 FR 67015 (Nov. 17, 2006). Attendees again included 
representatives from the railroad industry, shipping industry, railroad 
tank car manufacturing and repair companies, Transport Canada, and TSA.
    First, PHMSA and FRA asked what new designs, materials, or 
structures DOT should be investigating for improved accident/derailment 
survivability of hazardous materials tank cars. In response to this 
question, CI expressed the view that advances in material science 
present an opportunity to investigate new materials for the 
construction and protection of tank cars. For example, CI noted 
advances in steelmaking practices, composites used for insulation, 
materials used for thermal protection, as well as crash energy 
management materials. Similarly, Trinity explained that the AAR TCC has 
an ongoing program evaluating non-traditional steels for tank car 
construction (i.e., steels not typically used in the construction of 
railroad tank cars) and suggested that DOT should actively participate 
in, and fund, this activity. FRA notes that it is an active participant 
in the AAR task force evaluating these steels, and FRA looks forward to 
continuing to work with industry on this research. CI commented 
further, however, that prior to the use of any of these new materials, 
DOT and industry would need to conduct appropriate research, utilizing 
real world accident data. To that end, CI noted its ongoing research 
through Structural Reliability Technologies, which preliminarily 
identified certain materials as having the potential to improve 
accident survivability of hazardous material rail cars.
    ARI stated that in order to accommodate material advances, certain 
existing DOT regulatory requirements may need to be revised. For 
example, ARI noted that the J-type tank car requires a metal external 
jacket for fire protection purposes, but because fire protection is now 
provided through layers of insulation, the metal jacket is not 
necessarily needed any longer. Instead, ARI explained that certain 
carbon fibers may better serve the purpose of the metal jacket. As 
discussed in more detail in the Section-by-Section analysis below, this 
NPRM proposes to retain the requirement that tank cars used to 
transport PIH materials be equipped with metal jackets. DOT, however, 
invites further comments on the efficacy of maintaining this 
requirement or suggestions for effective, feasible alternatives.
    On behalf of the NGRTCP, a representative of Dow generally 
explained the new designs, materials, and structures being explored by 
the project. The commenter noted that the current rail car design for 
the typical jacketed pressure car relies on the inner tank to serve 
three functions: (1) Contain the commodity; (2) carry all train 
stresses and loads; and (3) protect the commodity from external forces. 
The NGRTCP is evaluating the potential to separate these tank 
functions, so that the inner tank's primary purpose is to contain the 
commodity and then effectively add layers of functionality to address 
train stresses and loads and protect the inner tank from external 
forces. This commenter also noted that the current jacketed pressure 
car is made up of three components: (1) An outer shell or jacket, (2) 
an interstitial space (typically 10-12 inches for a chlorine tank car), 
and (3) the inner tank and that the NGRTCP is analyzing what can be 
done to improve tank car survivability by utilizing the interstitial 
space.
    Dow further explained that the NGRTCP was evaluating two high-level 
tank car designs. The first design under evaluation is how a typical 
jacketed pressure car could be improved by adding layers of 
functionality and incorporating alternative technologies, particularly 
in the interstitial space. The second design under evaluation by the 
NGRTCP is similar to a DOT 113/115 tank-within-a-tank design. The 
primary purpose of the inner tank in this design is to contain the 
commodity. The interstitial space and outer structure of the tank is 
then used to bear trainload stresses and protect the inner tank from 
external forces. A tank-within-a-tank approach allows the inner tank to 
be designed around the physical and chemical properties of the material 
being transported and allows for several different alternatives for 
designing the interstitial space and the outer tank structure to bear 
trainloads and protect the inner tank. For example, Dow

[[Page 17840]]

explained that the inner tank could potentially be made of a thinner 
steel than that used in current cars and wrapped in a composite 
material. Additionally, deformable materials could be used to create 
``crumple zones'' in the interstitial space; the outer structure of the 
tank could be constructed of a different type of steel, not necessarily 
suitable for use in a typical pressure car; and potentially an impact 
resistant coating could be applied to the outer structure. Dow noted 
that this could possibly result in a stronger tank, which weighs less 
than the current design.
    The Department encourages industry to continue evaluating the 
potential use of the new materials, new types of steel, and alternative 
designs discussed at the meeting. FRA believes that, by utilizing 
existing technology, a significant improvement can be made to enhance 
railroad tank car accident survivability. Accordingly, the performance 
standards for enhanced head and shell protection set forth in this NPRM 
are technology-neutral and are intended to allow for the most design, 
material, and manufacturing flexibility, while significantly improving 
the accident survivability of railroad tank cars. We ask commenters to 
submit data and information concerning alternative strategies for 
enhancing accident survivability that may be as effective as, or more 
effective than, the enhanced head and shell protection measures 
proposed in this NPRM.
    Second, PHMSA and FRA solicited information regarding tank car top 
fittings. Specifically, the agencies asked whether there were any 
design changes that would enhance the survivability of tank car top 
fittings (e.g., modifications to height or placement of valves or 
modifications to the protective structure that surrounds the valves). 
In response to this question, commenters generally agreed that two of 
the most important factors for top fitting survivability in an accident 
are lowering the profile of the fittings to reduce vulnerability and 
strengthening the protection surrounding the fittings. Along those 
lines, a few commenters representing the railroad industry suggested 
that the ultimate goal of enhancing top fittings protection should be a 
tank car with only a flange on the pressure plate that could be skid- 
or roll bar-protected, or a tank car that could be shipped with no 
fittings, requiring that the fittings be installed at the point of 
unloading. In response to the idea of a tank car being shipped with no 
fittings, however, shippers generally expressed concern with the safety 
and compatibility of such a system given existing plant infrastructure 
and the regulatory scheme surrounding tank car unloading. Trinity 
suggested that DOT could facilitate improvements in top fittings 
protection by modifying the regulations to require lower profiles and 
by replacing the current hardware-specific requirements with a 
performance standard. As noted in Section IX above, CPC-1178 would 
require anhydrous ammonia and chlorine tank cars constructed after 
January 1, 2008 and used in interchange to have top fittings designed 
to withstand a rollover with a minimum linear velocity of nine mph. See 
discussion in Section V above on interchange requirements.
    Although DOT is aware that incidents involving tank car top 
fittings do occur, historical accident data demonstrates that top 
fittings are not a significant factor in attempting to reduce the risk 
associated with large product losses. For example, considering the more 
than 2 million chlorine shipments between 1965 and 2005, only 1 of the 
14 losses in accidents from top fittings was reasonably deemed 
substantial, with 1,000 gallons lost. During the same time frame, the 
next largest chlorine release from top fittings in an accident involved 
100 gallons, while the remaining 12 top fitting losses in accidents 
were small amounts, many of them 10 gallons or less, with an average 
loss of approximately 13 gallons. None of these incidents resulted in 
injuries. At the same time, catastrophic losses from tank-head or shell 
punctures averaged approximately 10,000 gallons per accident. These 
data demonstrate that failures or breaches of tank car heads or shells 
tend to lead to large quantities of chemicals released, and 
accordingly, pose the greatest safety risk.
    Despite the minimal risk of substantial releases from tank car top 
fittings in accidents, FRA and industry are actively researching 
methods for enhancing tank car safety through modifications to top 
fittings. FRA has an ongoing research program focused on improving the 
performance of tank car top fittings in the event of roll-over 
incidents. Additionally, both the TCC and the NGRTCP are investigating 
potential improvements to top fittings. The TCC is examining the 
effectiveness of various fitting protection devices and the feasibility 
of using recessed fittings. The TCC has indicated that initial 
simulations of these concepts demonstrate potential for providing 
significant protection, particularly at higher speeds. The NGRTCP is 
examining potential improvements including (1) Lowering the profile of 
the fittings; (2) reducing the number of valves; (3) the use of 
internal closures; and (4) redesign of the pressure relief valve. We 
expect that modified top fittings will be ready for service trials in 
early 2008.
    Although the research appears promising, at this time it is 
inappropriate to propose new standards (by rulemaking or otherwise) for 
top fittings protection because it is not yet clear what modifications 
would provide a substantial improvement in the ability of top fittings 
to:
    (1) Withstand accident conditions, while providing at least the 
same level of protection from non-accident releases,
    (2) Continue to work with industry's existing loading and unloading 
infrastructure, and
    (3) Maintain compatibility with current emergency response 
requirements (e.g., compatibility with Emergency Kit C, which is used 
to contain leaks in and around the pressure relief device and valves in 
the case of chlorine tank cars).
    We expect that FRA's research, together with the findings of the 
TCC and NGRTCP, will lead to a consensus-based industry standard for 
enhanced tank car top fittings protection. Provided that the design 
does not deviate from Federal regulations, the Department will evaluate 
implementation. If the consensus design does deviate from Federal 
standards or if the Department deems that the industry actions are not 
sufficient, we will propose revised Federal standards for top fittings 
in a separate rulemaking proceeding as early as next year. To support 
these efforts, the Department intends to hold a public meeting early 
next year to discuss the need for revised top fittings standards. 
Parties wishing the Department to consider proposed revised top 
fittings standards may, of course, petition the Department at any time 
for a rulemaking to change the existing Federal standards. 49 CFR 
106.55.
    As discussed in Section I above, improving the safety and security 
of hazardous materials transportation via railroad tank car is an 
ongoing process. As we continue our comprehensive review of tank car 
safety, we anticipate holding additional public meetings to address 
relevant issues other than those contained in this NPRM. At this time, 
however, because the loss of lading from side or head impacts in 
accident scenarios presents the greatest risk, FRA is concentrating its 
efforts on those areas for purposes of this rulemaking. We do, however, 
invite commenters to provide any data or other information relative to 
potential modifications to tank car top fittings or potential enhanced 
safety standards for fittings, including the

[[Page 17841]]

design of fittings utilized on the Trinity tank car. Commenters may 
also wish to provide data and information concerning the costs that 
would be incurred to modify tank cars built to the performance standard 
proposed in this NPRM to incorporate enhanced fitting designs. We also 
remind interested parties that any person may petition the Department 
to initiate a rulemaking proceeding regarding issues relevant to the 
transportation of hazardous materials by rail. 49 CFR 106.55.
    The third question posed by PHMSA and FRA pertained to tank car 
puncture-resistance (including the puncture-resistance of the head and 
shell), and specifically whether there are any design, material, or 
manufacturing changes that could lead to improved tank car puncture-
resistance. In response to this question, a representative of the NTSB 
suggested that the relevant issue should not be limited to what PHMSA 
and FRA termed ``puncture-resistance.'' Instead, the NTSB noted that 
low-speed impacts by large objects lead to structural deformation and 
possible puncture, and accordingly, any structural deformation and 
puncture must be looked at together as an issue of structural impact 
and response.
    DOT recognizes NTSB's point with regard to the specific term 
``puncture resistance.'' However, DOT's research efforts are aimed at 
improving the accident survivability of railroad tank cars, and in 
examining this issue, DOT is considering not just the ability of a tank 
car to resist puncture, but as noted in Section X above, the agency has 
analyzed the equipment's overall structural response to head or shell 
impacts. DOT believes that an understanding of a tank car's overall 
structural response to impacts is necessary in any effort to improve 
the ability of a tank car to maintain its integrity under accident 
conditions. However, DOT believes that for purposes of regulatory 
language setting forth a performance standard regarding a tank car's 
ability to maintain its integrity under accident conditions, the term 
``puncture resistance'' is an accurate representation of the 
performance that needs to be achieved (i.e., the tank car maintains its 
integrity such that no lading is released as a result of the impact). 
Accordingly, in this NPRM, DOT has maintained the term ``puncture 
resistance.''
    The NTSB also stated that any new tank car design should take 
advantage of the large increase in structural stiffness and strength 
that results from coupling two rigid shells together, as opposed to a 
floating tank-within-a-tank design. The NTSB further suggested that the 
materials utilized between the inner and outer shells should be 
designed so that they can serve as a local impact energy dissipation 
momentum transfer mechanism, effectively spreading out the impacting 
force. Following the NTSB's line of reasoning and noting that pressure 
within a tank is a ``pushback'' against external forces, ARI expressed 
the view that consideration needs to be given to lowering the internal 
pressure of tank cars (depending on the vapor pressure of the commodity 
contained in the car), so that impact forces result in deformation to 
the tank shell, rather than a puncture of the shell.
    Commenters generally noted that several concepts aimed at improving 
tank car puncture-resistance are currently being explored in the 
industry, or could be explored. For example, Trinity suggested that 
tank-head protection could be provided by ultra-high strength, non-
formable, flat plates such as armor plating, thereby permitting tank-
head thickness to be reduced to that required to contain the internal 
pressure. CI commented that improving puncture resistance is the single 
most important design factor in enhancing accident survivability. To 
this end, CI noted that through its ongoing research with Structural 
Reliability Technologies (SRT), it is looking at potential improvements 
through a combination of new material for tank and/or jacket 
construction (e.g., high strength/low alloy steels) and the 
incorporation of energy-absorbing materials into the configuration of 
tank cars and tank car jackets. Commenters also suggested that DOT 
consider technologies utilized in other industries. For example, one 
commenter noted antiterrorism industry projects regarding self-sealing 
technologies. DOT, together with TSA and industry, are currently 
investigating the potential of utilizing self-sealing technologies on 
hazardous material tank cars to aid in the quick repair of the tank in 
the event of a breach. DOT believes that this research is promising, 
particularly in the context of ballistic impacts. However, the 
technologies appear to be of limited utility in the repair of tank 
breaches resulting from derailments and other collision scenarios where 
the area breached tends to be larger than what results from ballistic 
impacts.
    Dow, on behalf of the NGRTCP, explained that in connection with 
improved puncture-resistance, the project is examining different types 
of steels (e.g., the current TC-128 with varying sulfur contents, as 
well as other types of steels not currently used in railroad tank car 
construction). In addition, the NGRTCP is considering structural foams 
as energy absorbing and diffusing materials, as well as crash energy 
management systems, impact limiters, the use of deformable materials 
(particularly based on experience in the automobile racing industry), 
and impact resistant coatings.
    In the fourth question, PHMSA and FRA solicited information 
pertaining to whether there were measures, other than accident 
survivability, such as improved security of operating fittings, or an 
ability to locate cars beyond current car movement reporting systems, 
that could improve the overall safety and security of hazardous 
material shipments via railroad tank car. In response to this question, 
commenters generally noted the many voluntary efforts, which are 
already underway in both the shipping and railroad industries, designed 
to detect hazardous materials leaks, monitor the temperature and other 
conditions of materials being transported in railroad tank cars, and 
track the locations of railroad tank car hazardous material shipments. 
Although commenters generally expressed the view that the existing car 
movement reporting system, including the automatic equipment 
identification system, is sufficient for purposes of locating shipments 
in a timely fashion, most commenters expressed support for utilizing 
additional location monitoring and other shipment monitoring 
technologies (e.g., car securement sensors, temperature sensors) 
depending on the commercial viability of the technologies and the risk 
presented by the product being shipped.
    The fifth question PHMSA and FRA posed at the public meeting 
pertained to whether, in addition to accident survivability, tank cars 
should be designed to withstand other types of extraordinary events 
(e.g., ballistic attack or unauthorized access to tank car valving). In 
response to this question, one shipper commented that tank cars should 
not be designed to withstand extraordinary events. Instead, the 
environment in which tank cars operate needs to be modified to prevent 
such extraordinary events as derailments. Other commenters suggested 
that tank car design changes should be made to prevent unauthorized 
access to the cars' contents and to potentially withstand ballistic 
attack. Generally, however, commenters recognized the need to examine 
any such potential changes on a risk basis, taking into consideration 
whether such requirements would be cost effective in particular 
situations given the risk presented by a particular commodity.

[[Page 17842]]

    Noting that the HMR currently include performance standards for 
coupler vertical restraint systems, pressure relief devices, tank-head 
puncture-resistance systems, thermal protection systems, and service 
equipment protection, the sixth question PHMSA and FRA posed at the 
public meeting pertained to whether those standards are adequate for 
future tank cars, and if not, what areas and aspects of railroad tank 
cars need to be improved. In response to this question, Trinity 
suggested that the current requirement in the HMR for top fittings 
protection on pressure cars (49 CFR 179.100-12) is not a performance 
standard and should be made one. In addition, Trinity suggested that 
the HMR should be updated in other areas, such as bottom outlet 
protection and requiring normalized steel for pressure cars, to make 
the regulations consistent with industry standards. Echoing comments 
raised at the initial public meeting, CI suggested that all railroad 
freight cars be equipped with double shelf couplers to avoid couplers 
on non-hazardous materials cars from becoming disengaged and breaching 
a tank car containing hazardous materials. FRA is actively researching 
the potential benefits of modifying freight car couplers (e.g., the use 
of push-back couplers or other coupler technology advancements) to 
potentially reduce the likelihood of a tank car being punctured by the 
coupler of another car during an accident. If the results of FRA's 
research demonstrates that such coupler modifications would increase 
safety cost-effectively, FRA will consider such a requirement in a 
future rulemaking proceeding.
    Commenters generally expressed a preference for the development of 
performance standards, as opposed to hardware-specific requirements. 
Commenters noted, however, that there is not uniform agreement on what 
constitutes a performance standard. For example, CI stated that a 
performance standard is something that is physically verifiable, that 
can be tested to, considers risks and benefits, and that can be applied 
to new technologies and new designs. However, CI noted that the 
probability of release is not something that can be tested to. Trinity 
also expressed support for utilizing performance standards in the tank 
car regulations. Trinity suggested that any performance standard should 
also include at least one default hardware-specific standard that can 
be applied by those who do not have the time or resources to develop 
their own performance-based design. As an example, Trinity cited AAR's 
CPC-1176, which contains both a performance standard and a default 
design standard conforming to the performance standard. Expressing the 
view that CPC-1176 is a true performance standard, AAR encouraged the 
Department to use the work already done by the TCC.
    We agree with an approach that specifies a performance standard. In 
fact, in the final rule relating to Crashworthiness Protection 
Requirements for Tank Cars,\48\ we agreed with commenters that a 
performance-based standard for shell-puncture resistance could have 
merit over a specification-based standard. At that time, however, we 
did not have the data to support a performance-based standard. Since 
then, we have assembled enough research and data to allow for the 
promulgation of a performance-based standard, which will foster new 
technology and provide design, material, and manufacturing flexibility.
---------------------------------------------------------------------------

    \48\ Crashworthiness Protection Requirements for Tank Cars; 
Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, 
Thermal Protection Flaws and Other Defects of Tank Car Tanks, 60 FR 
49048 (Sept. 21, 1995).
---------------------------------------------------------------------------

    The seventh question on which PHMSA and FRA solicited information 
pertained to how the agencies should consider risk factors in 
determining whether to require tank car safety and security 
enhancements. For example, the agencies asked whether the risk of the 
car/commodity pair should be considered so that improvements would 
first apply to the car/commodity pairs considered to have the greatest 
risk or for which the car/commodity pair would benefit most from the 
improvement. In addition, the agencies solicited information on what 
other risk factors should be considered.
    In response to this question, commenters generally maintained that 
tank car safety and security enhancements should be based on the hazard 
of the commodity involved, as well as the existing tank car safety 
features, materials, and methods of construction. For example, CI 
stated that the appropriate way to prioritize tank car safety 
enhancements is to start with those commodities that have the greatest 
consequence and greatest likelihood of causing consequences if 
released. Accordingly, CI concluded that starting with PIH materials 
was logical. Similarly, citing its efforts at developing an enhanced 
tank car standard, AAR commented that tank car safety improvements 
should first focus on the cars carrying commodities that are hazardous 
to human health (i.e., PIH materials). Even more specifically, AAR 
suggested that those PIH materials with the highest hazards and those 
shipped most often, should be addressed first. With regard to the tank 
car itself, ARI noted that the better protected a tank car is at the 
present time, it should be one of the last cars retrofitted or taken 
out of service. In addition, ARI expressed the view that the order in 
which cars are retrofitted or taken out of service should be left to 
car owners.
    We agree that car owners need a certain amount of flexibility in 
managing improvements to their tank car fleets. Accordingly, this NPRM 
proposes an implementation period spread over eight years during which 
car owners are free to manage the implementation of the proposed 
enhancements within their fleets, provided certain milestones are met. 
The NPRM does provide, however, that five years after the effective 
date of the final rule, tank cars manufactured using non-normalized 
steel for head or shell construction would no longer be authorized for 
the transportation of PIH materials.
    The eighth question posed by PHMSA and FRA pertained to whether the 
installation of bearing sensors or other on-board tracking/monitoring 
systems capable of monitoring, for example, tank car pressure, 
temperature, and safety conditions, would improve the safety and 
security of hazardous materials shipments by railroad tank car and, if 
so, whether implementing such a system is feasible.
    In response to this question, commenters generally noted that many 
hazardous materials shippers have already implemented onboard tracking 
and monitoring systems for a variety of reasons. A representative of 
the NGRTCP noted that it was expected that certain on-board tracking/
monitoring systems would be included in the Next Generation Rail Car 
design, but that many detailed practicalities of such a system would 
need to be addressed (e.g., monitors attached to individual cars or 
through a system of wayside detectors, the utilization of data 
collected and communication of that data to affected parties).
    The final question posed by PHMSA and FRA pertained to whether the 
installation of electronically controlled pneumatic (ECP) brake systems 
on tank cars would improve the safety of hazardous materials shipments 
by railroad tank car. Only Trinity and a representative of the NGRTCP 
responded to this question. Expressing the view that for ECP brakes to 
be effective, all equipment in a train would have to be equipped with 
such brakes,

[[Page 17843]]

Trinity commented that ECP brakes would be of little or no benefit to 
improving hazardous material safety. A representative of the NGRTCP, 
however, noted that the Next Generation Rail Car will probably 
incorporate a duality of systems--a traditional brake system with the 
anticipation of ECP brakes. This commenter further noted that the 
implementation of ECP brakes is a long-term issue. Although FRA 
encourages industry to pursue implementation of ECP brake technology as 
expeditiously as possible, and is encouraged by NGRTCP's representation 
that a new tank car design may incorporate the duality of brake 
systems, FRA recognizes that this is a long-term issue affecting the 
entire railroad industry, and accordingly, such a requirement is 
outside the scope of this rulemaking.

C. March 30, 2007 Public Meeting

    The third public meeting was held on March 30, 2007. At this 
meeting, FRA explained that DOT is aggressively working to develop a 
performance standard for an enhanced tank car design, which will allow 
innovation and foster new technology in the tank car design process. 
FRA, through representatives of Volpe, presented its preliminary 
research results regarding tank car survivability, and solicited 
comments from meeting participants on several specific ideas regarding 
how DOT was considering moving forward with the development and 
implementation of a performance standard based on that research. In 
addition, on behalf of the AAR, Christopher P.L. Barkan, Ph.D., of the 
University of Illinois at Urbana-Champaign, Railroad Engineering 
Program, presented the results of a risk analysis performed by the 
University on behalf of AAR pertaining to PIH materials transported by 
railroad tank car.
    First, FRA noted that, in light of the NTSB recommendations in 
response to the Minot accident and the mandates of SAFETEA-LU, the 
agency's current research efforts regarding tank car survivability are 
primarily focused on tank-head and shell performance. In response, 
commenters stated that DOT should also consider enhancements to top 
fittings protection in any rulemaking designed to improve tank car 
accident survivability. As discussed previously in this section, 
although we believe that improvements to tank car top fittings may be 
one method of enhancing tank car safety, we are not proposing new 
standards for top fittings protection at this time because the research 
demonstrating the efficacy and feasibility of such enhanced standards 
is not yet complete. Additionally, based on historical accident data, 
the greatest likelihood of a catastrophic release of material from a 
tank car is through the tank-head or shell, not the fittings. 
Accordingly, this NPRM focuses on enhancing tank-head and shell impact 
resistance. FRA will, however, continue to investigate potential 
improvements to tank car top fittings and if appropriate, will pursue 
such improvements in a separate rulemaking proceeding.
    Second, Volpe made presentations relating to FRA's tank car 
research program. Volpe's presentations focused on three aspects of 
FRA's ongoing tank car research program: (1) Derailment dynamics 
analysis (designed to calculate ranges of closing speeds and incidence 
angles between cars involved in pile-ups); (2) dynamic structural 
analysis (designed to estimate the forces corresponding to closing 
speeds for head and shell impacts); and (3) damage assessment (designed 
to estimate deformations to tank-heads and shells and the force at 
which puncture is expected to occur). Volpe explained that the key 
results of the derailment dynamics study are that (1) train speed has 
the most significant effect on the number of cars that derail, and (2) 
closing speed (that is, the car-to-car impact speed) is approximately 
one-half the train speed at which the derailment occurs.
    In response to Volpe's presentations, meeting participants posed 
several questions. A few participants questioned why FRA did not 
explicitly model the Minot or Graniteville derailments and what efforts 
have been made to relate the modeling results to real world scenarios. 
Similarly, noting that Volpe's derailment dynamics models were 
``straightforward'' models that consider just one force acting against 
a car, one commenter noted that real life derailment situations are 
generally more complicated. As noted in Section X, above, FRA's 
research was initially aimed at developing a derailment model specific 
to the Minot accident. However, due to the inherent complexities and 
variables surrounding any derailment situation (e.g. track layout and 
condition, three dimensional topography of the local terrain, car type 
and location within train consist), the initial and boundary conditions 
of particular accident scenarios cannot be reasonably ascertained. 
Additionally, the initial perturbation (i.e., the train speed and track 
location) resulting in derailments is not precisely known. Accordingly, 
FRA revised its research objective to define a generalized derailment 
situation identifying the salient features of derailment situations 
based on historical accident consequences. This information was then 
used to establish more easily analyzed impact scenarios (i.e., post 
derailment car-to-car interactions; and the speeds, orientations and 
trajectories of the cars as a function of location in the train).
    Commenters also noted that although Volpe apparently used two 
different models in its derailment dynamics study, only the results of 
one model were presented in detail. As noted at the public meeting, 
although Volpe utilized two models to investigate the derailment 
kinematics, each of the models predicted the same trends. Accordingly, 
for ease of presentation, only the results of the ADAMS (Automatic 
Dynamic Analysis of Mechanical Systems) model were presented in any 
detail at the meeting because of the ability of the ADAMS software to 
provide animations of the results.
    Noting that Volpe's presentation showed that the highest closing 
speed occurs for the last car that allows the coupler to break, one 
commenter questioned what would happen if more couplers were allowed to 
break and whether it was expected that the highest closing speed would 
always occur at the point. FRA explained that the highest closing speed 
may occur at the point of the last coupler break, but again noted that 
the average closing speed between cars is approximately one-half the 
initial train speed. In addition, because software limitations only 
allowed the modeling of up to ten coupler breaks in a particular 
scenario, FRA stated that before any more concrete conclusions can be 
drawn, further research would be necessary.
    Another commenter inquired as to how much variation in force the 
derailment model could predict and whether Monte Carlo techniques 
(i.e., a type of computational algorithm utilizing random numbers and 
probability statistics to simulate the behavior of physical or 
mathematical systems) should be applied to try to develop a more 
statistical understanding of the potential variability. FRA noted that 
although Monte Carlo techniques could be applied, FRA's first and 
foremost focus is on predicting the salient car-to-car interactions 
that take place during derailments. FRA intends to analyze the forces 
achieved in other modeling programs using non-linear large deformation 
crush calculations and validate the models by full scale testing.
    Commenters also questioned why the baseline car mass utilized in 
the derailment dynamics study was 150,000

[[Page 17844]]

pounds (which does not represent a typical light car or a typical 
loaded car) and whether the initial angular velocity used to cause a 
derailment has a large effect on the number of cars derailed and/or the 
secondary car-to-car impact speeds. In response, FRA explained that the 
baseline values utilized in the study were varied +/-20% to +/-50%. 
Further, FRA noted that a sensitivity analysis of the results from 
generalized derailment scenarios demonstrated that both car mass and 
initial angular speed causing a derailment are very weakly correlated 
to the number of cars that derail. Instead, the highest sensitivities 
are associated with initial train speed and the ground friction 
experienced.
    Stating that, in most real-world accident scenarios, tank cars are 
impacted by ``coupler like'' objects, one commenter questioned the use 
of a square flat-surface ram in Volpe's modeling to impact the tank-
heads and shells while another commenter questioned why the collision 
dynamic model of a car is shaped like a cube. Specifically, Trinity 
noted that in its own crashworthiness analysis performed on the newly 
designed Trinity car, a rigid coupler head was used as the impacting 
object. Further, Trinity noted that after the crashworthiness analysis 
was completed, the results were compared with real-world accidents, as 
well as the type of punctures and tank deformations that occurred. 
Trinity further reported finding a good correlation between their 
crashworthiness analysis and the shape of punctures and deformations 
found in real-world accident vehicles.
    FRA responded that the collision dynamics model is a lumped mass 
model connected by non-linear springs and that the masses are treated 
as rigid objects. Further, the collision dynamics model uses as an 
input the force-crush characteristics predicted or measured from 
analysis and testing. This input is derived through the application of 
the simplified collision scenarios defined for the performance 
standards. The shape of the force crush characteristic is weakly 
affected by the impactor size for a range within +/-50 percent of that 
prescribed in the testing program. If the impactor size was 
sufficiently small, then the mode of material failure initiation would 
change. The impactor size chosen for the baseline testing captures the 
salient deformation and failure modes observed in accidents and 
testing. Accordingly, neither the shape of the impactor or the car is 
determinative. FRA further explained that in accident scenarios, a tank 
car may be impacted by a variety of different objects (e.g., couplers, 
pieces of rail, rail car trucks, other car draft sills, side sills) and 
accordingly, the goal of FRA's current research is to develop a 
standardized method for comparing the relative performance between 
different tank car designs, regardless of what the impactor is in a 
particular scenario. Additionally, as Volpe noted at the meeting, the 
simulations have resulted in modes of deformation that are similar to 
the deformations found in accident vehicles.
    Another commenter also noted that the modeling presented by Volpe 
at the meeting addressed main line derailments only and questioned 
whether FRA intended to expand the analysis to collision scenarios. In 
response to this comment, FRA explained that generally, collisions 
degenerate into derailment-like situations. Accordingly, the secondary 
car-to-car interactions obtained through Volpe's modeling and review of 
historical accident consequences provided a methodology to simplify the 
impact conditions such that a generalized performance standard for two 
cars interacting could be identified. Utilization of this performance 
standard compares the relative performance between different tank car 
designs, and FRA further plans to investigate the use of pushback 
couplers and deformable anti-climbing systems to decrease the 
aggressivity between new and older tank car designs in the future.
    With regard to the dynamic structural analysis, noting the apparent 
ductile properties of the model materials (i.e., that the elliptical 
head almost turns itself inside out), one commenter questioned what 
type of material model was being used. At the meeting, Volpe explained 
that the tensile strength of the material being modeled is the minimum 
required for TC-128 steel. Further, DOT noted that the results 
presented were of an empty tank, where material failure was not 
allowed. The results represented the first step in a series of models 
that gradually build in complexity--starting with an empty tank and 
applying first elastic, then elastic with plastic loadings, and finally 
building up to material failure. After the model results are checked 
against analytical solutions available in literature, pressurized fluid 
tanks will be evaluated in the same manner.
    At the meeting, Volpe also addressed the full-scale impact tests 
being performed on existing DOT 105A500W cars in an effort to develop a 
methodology for assuring a minimum level of tank integrity, defining 
the conditions for which a tank car is capable of maintaining its 
contents, and identifying the maximum speed at which a tank car can 
survive the generalized impact scenarios developed in the derailment 
dynamics study. In response to this portion of Volpe's presentation, 
commenters raised two main concerns. First, commenters questioned how 
the pressure and outage requirements used in the tests to establish the 
baseline performance of current tank cars were chosen. DOT explained 
that although a pressure and outage that could be expected in everyday 
transport were utilized (i.e., 10.6 percent outage, 100 psi pressure), 
because the goal is to establish the relative performance of different 
tank car designs, such parameters are ultimately irrelevant, provided 
the same pressure and outage is used for all cars analyzed. In other 
words, in order to establish the relative performance of different tank 
car designs, all designs must be tested under the same initial and 
boundary conditions (including weights, pressure, and outage).
    Second, commenters again questioned why DOT was performing 
``simplified tests'' and not examining the effect of applying multiple 
forces simultaneously in different locations on tank cars. DOT 
responded that its goal is to establish the relative performance of 
different tank car designs by developing a safe and simple test that is 
relatively easy to set up and conduct, easy to analyze, and provides 
repeatable results. FRA reiterated that it did not intend to conduct a 
test that represents any particular accident situation. Instead, FRA's 
goal is to establish a test that provides the salient and predominant 
failure modes observed from historical accident consequences in a 
consistent manner.
    At the March 30, 2007 meeting, FRA also presented several specific 
ideas regarding how DOT was considering moving forward, given the 
results of Volpe's research. FRA noted that it was considering imposing 
a 50 mph speed restriction on all tank cars carrying PIH materials. 
Assuming a 50 mph speed restriction, based on Volpe's research 
anticipating a closing speed of 25 mph in the event of a derailment or 
collision, FRA stated that it was also considering setting a 
performance standard requiring tank cars to be constructed such that 
tank-heads and shells would resist puncture or other catastrophic loss 
from impacts at speeds around 25 mph. Because any necessary tank car 
fleet change out would require a reasonable implementation period, as 
an interim measure, FRA noted its consideration of imposing an interim 
30 mph speed restriction in dark territory for trains transporting PIH 
tank cars of current designs, based on the higher train mile

[[Page 17845]]

collision risk and the increased derailment risk present in dark 
territory.
    In response to FRA's ideas, one commenter noted that FRA's proposal 
presented a ``one-size-fits-all'' approach to enhancing PIH 
transportation via railroad tank car. This commenter noted that there 
are many PIH materials that do not pose the same dangers as materials 
such as chlorine and anhydrous ammonia. This commenter expressed the 
view that FRA's proposal would be ``extremely penalizing'' to those 
other materials.
    For uniformity purposes, in its regulations, DOT has historically 
addressed hazardous materials as a class. Employing this rationale, DOT 
decided that, for the purposes of the present rulemaking, it would 
similarly address PIH materials as a class. Moreover, while some PIH 
materials may not pose as great a threat to the public and the 
environment as other PIH materials, it is in the public's best interest 
that all PIH materials are transported in the safest manner possible. 
Additionally, in this proposed rule, DOT has identified a performance 
standard rather than a specific standard, which provides the regulated 
community with the flexibility to design an enhanced tank car with 
features that are appropriate for the type of PIH materials that the 
car will transport.
    Other commenters questioned whether risk would be considered and 
how benefits of implementing such new requirements would be quantified. 
Lastly, one commenter expressed the view that given current tank car 
manufacturing capacity, a five- to ten-year implementation period would 
be reasonable. This commenter further noted that existing tank cars 
designed to carry anhydrous ammonia could be retrofitted and utilized 
to transport materials other than PIH materials, but existing chlorine 
cars, however, would probably need to be replaced.

XII. Proposed Rule and Alternatives

    The proposed rule would seek to control destructive forces brought 
to bear on tank cars in the course of derailments and collisions by 
establishing a maximum speed limit and by enhancing the ability of the 
package to withstand those forces by making it more crashworthy. 
Although the proposed rule would establish a performance standard for 
head and shell puncture-resistance, this is most likely to be achieved 
by a strategy to absorb energy short of breaching the tank. The 
proposed rule would also impose a more stringent limit on train speed 
during the period tank cars of current design remain in use. There may 
be other means of achieving the same end results (e.g., protecting 
persons from the effects of PIH materials released into the 
atmosphere), and DOT invites comments that might identify such means 
and describe how their effectiveness might be verified.
    Mitigation of harm from accidental releases is a major component of 
any effort to improve the safety of hazardous materials transportation. 
DOT engages in significant actions to help prepare emergency responders 
for hazardous materials releases. For instance, PHMSA periodically 
publishes an Emergency Response Guidebook, which provides information 
on initial steps to take to respond to hazardous materials accidents, 
with the objective of ensuring that it is present at every command 
center and on every emergency vehicle. As noted above, the railroad and 
chemical industries conduct outreach to local authorities through the 
TRANSCAER[reg] program. In March 2005, the AAR, with FRA encouragement, 
adopted an amendment to its Circular No. OT-55, which established 
procedures for providing information to local emergency response 
agencies concerning the top 25 hazardous materials transported through 
their communities.
    Ensuring the availability of detailed hazardous materials 
information, when an event does occur, is also a critical means of 
mitigating the consequences of a release. The HMR require that 
railroads maintain hazardous materials information on-board trains 
reflecting the position of cars in the train, and hazard information 
regarding the commodities transported in specific rail cars.\49\ FRA 
actively enforces these requirements through periodic audits of 
railroad information systems and through review of documentation on-
board trains.
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    \49\ 49 CFR part 172, subpart G; 49 CFR Sec.  174.26.
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    In response to the accidents detailed in this notice, FRA 
approached the AAR and requested consideration of additional action to 
ensure that detailed and specific hazardous materials information, 
including the position of cars in the train, is readily available to 
emergency responders even when crew members are disabled or otherwise 
unable to contact responders at the scene. FRA conducted two meetings 
with the AAR, various railroads, and emergency response organizations 
to discuss enhancements to the emergency response system that would 
ensure emergency responders have access to necessary information during 
incidents and accidents. As a result of the discussions, and in 
response to the positive comments from the emergency response 
community, CSX Transportation (CSXT) and Chemtrec, the chemical 
industry's 24-hour hotline, entered into a pilot project in August of 
2005, to test improvements. The pilot project consists of providing 
access to the Chemtrec watchstanders, who have direct communications 
with emergency responders, to CSXT's information network where they can 
obtain virtually real-time information, either verbally or via 
electronic means, almost immediately after receiving notification of an 
incident or accident. This system relies in part on train position 
information from CSXT locomotives equipped with Global Positioning 
System receivers and means for communicating the position to the CSXT 
operations center, together with a geographic information system on 
which the information is displayed. This is a capability not yet fully 
available elsewhere in the industry, but it could be acquired. PHMSA 
and FRA request that commenters address the following questions: (1) 
Are other rail carriers considering the implementation of emergency 
response communications systems similar to that currently being tested 
by CSXT? (2) Are there impediments to more widespread implementation of 
such communication systems? If so, how should these impediments be 
addressed? (3) Should the Federal government promote more widespread 
adoption of such communication systems? If so, how could this be 
accomplished?
    More generally, we ask commenters to consider the relationship 
between effective emergency response actions and risk reduction. As 
indicated above, the HMR address risk in two ways--that is, the 
regulations are intended to reduce the risk of an accident occurring 
and to minimize the consequences of an accident should one occur. 
Commenters may wish to provide comments concerning the extent to which 
effective emergency response, including proactive measures such as 
alert warnings, evacuations, and shelter-in-place directives, affects 
the basic risk equation (risk = the probability of an accident 
multiplied by the consequences of an accident) and whether there are 
ways to combine more effective emergency response with accident 
prevention measures to enhance overall safety.
    Similarly, Dow's safety program for these products is exploring 
more effective tracking and remote monitoring of tank cars so that, in 
the case of an incident or accident, critical parameters such as 
geographic location, internal pressure, or product

[[Page 17846]]

temperature might be determined and provided to emergency responders. 
PHMSA and FRA invite commenters to address the extent to which this 
strategy promises advances in safety that might substitute, in whole or 
in part, for the proposals contained in this NPRM. We also ask 
commenters to discuss whether there are additional regulatory options 
that should be considered.

XIII. Section-by-Section Analysis

Part 171

Section 171.7--Reference Material
    Existing Sec.  171.7 addresses reference materials that are not 
specifically set forth in the HMR, but that are incorporated by 
reference into the HMR. We propose to amend Sec.  171.7(a)(3), the 
table of material incorporated by reference, to add the entry for AAR 
Standard S-286-2002, Specification for 286,000 lbs. Gross Rail Load 
Cars for Free/Unrestricted Interchange Service, revised as of September 
1, 2005. AAR Standard S-286-2002 is the existing industry standard for 
designing, building, and operating rail cars at gross weights between 
263,000 pounds and 286,000 pounds. By incorporating AAR Standard S-286-
2002 into the HMR, we will ensure that tank cars exceeding the existing 
263,000 pound limitation and weighing up to 286,000 pounds gross weight 
on rail are mechanically and structurally sound.

Part 173

Section 173.31--Use of Tank Cars
    Existing Sec.  173.31 addresses the use of tank cars to transport 
hazardous materials and contains various safety system and marking 
requirements. This NPRM proposes to revise existing paragraphs (a)(6), 
(b)(3), (b)(6) and (e)(2)(ii), as well as add new paragraphs (b)(7) and 
(b)(8). Existing paragraph (a)(6) explains that any tank car of the 
same class with a higher tank test pressure than the tank car 
authorized in the HMR may be used. It also specifies the hierarchy of 
the letters in the specification marking that indicate special 
protective systems (e.g., ``J'' for thermally protected, jacketed cars; 
``T'' for thermally protected, non-jacketed cars; ``S'' for cars with 
head shields but without thermal protection; and ``A'' for cars without 
protective systems) for which cars are equipped. We are proposing to 
add the letter ``M'' to represent tank cars with the enhanced tank-head 
and shell puncture-resistance systems of this proposed rule, but that 
do not meet the HMR's thermal protection requirement. For tank cars 
that meet the thermal protection requirement and are equipped with the 
enhanced tank-head and shell puncture-resistance systems proposed, we 
are proposing the use of the letter ``N'' in the specification marking. 
Additionally, we are proposing to modify the hierarchy of use to 
incorporate these two new delimiters in a manner consistent with the 
current hierarchy. In other words, tank cars with the delimiter ``M'' 
may be used when ``A'' or ``S'' is authorized. Tank cars with the 
delimiter ``N'' may be used when tank cars with an ``A,'' ``S,'' ``T,'' 
``J,'' or ``M'' are authorized.
    We are proposing the use of two different delimiters for tank cars 
meeting the enhanced head and shell protection requirements of this 
proposal because there are some PIH materials for which the HMR do not 
require use of a tank car with a thermal protection system (e.g., 
hydrogen fluoride, anhydrous ammonia). Therefore, we have proposed to 
allow a tank car to be constructed that would meet the enhanced tank-
head and shell puncture-resistance system requirements, but not be 
equipped with a thermal protection system.
    Existing paragraph (b)(3) requires head protection for all tank 
cars transporting Class 2 materials and tank cars constructed from 
aluminum or nickel plate. We are proposing to revise this paragraph to 
remove outdated compliance dates, and require tank cars used to 
transport PIH materials to be equipped with an enhanced tank-head 
puncture-resistance system. Specifically, proposed paragraph (b)(3)(i) 
reiterates the existing head protection requirements for tank cars used 
to transport Class 2 materials, other than PIH materials, and tank cars 
constructed from aluminum or nickel plate used to transport hazardous 
materials.
    New paragraph (b)(3)(ii) would require all tank cars used to 
transport PIH materials to be equipped with the enhanced tank-head 
puncture-resistance system of proposed 179.16(b). Specifically, 
beginning two years after the effective date of the final rule, new 
paragraph (b)(3)(ii)(A) would require all new tank cars used for the 
transportation of PIH materials to conform to the enhanced head 
protection requirements of 179.16(b). Within eight years of the 
effective date of the final rule, new paragraph (b)(3)(ii)(B) would 
require all tank cars used to transport PIH materials to conform to the 
enhanced head protection standard. This proposed implementation period 
would allow one year for the design of tank cars meeting the proposed 
performance standard, a second year for tank car manufacturers to 
modify their manufacturing process as necessary to construct the 
improved tank cars, and a further six-year period to bring the entire 
North American fleet of PIH tank cars into compliance with the enhanced 
standards. The Department has developed this proposed implementation 
schedule after careful consideration of the number of tank cars in PIH 
service and tank car manufacturing capacity. After the implementation 
period, any tank car that transports PIH materials in the United 
States, including PIH-carrying tank cars that originate in countries 
outside of the United States, must conform to the enhanced tank-head 
puncture-resistance standard. As in all aspects of this proposal, 
however, the Department requests comments as to the feasibility and 
costs of this proposed implementation schedule, as well as suggestions 
for any alternatives. We are particularly interested in data and 
information concerning current tank car manufacturing capacity and 
whether capacity limitations will affect the implementation period 
proposed in this NPRM.
    Existing paragraph (b)(6) requires tank car owners to implement 
measures to ensure the phased-in completion of modifications previously 
required by the Department and to annually report progress on such 
phased-in implementation. This NPRM proposes to modify paragraph (b)(6) 
by deleting the references to paragraphs (b)(3) (head protection) and 
(e)(2) (special requirements for tank cars used to transport PIH 
materials) because the existing compliance dates in each section have 
now passed and this NPRM proposes new modifications, with new 
compliance dates set forth in proposed Sec. Sec.  173.31(b)(3) (head 
protection), (b)(7) (shell protection), and (b)(8) (implementation 
schedule).
    New paragraph (b)(7) would require tank cars used to transport PIH 
material to be equipped with an enhanced tank shell puncture-resistance 
system. Specifically, proposed paragraph (b)(7)(i) would require that 
beginning two years after the effective date of the final rule, all new 
tank cars to be used for the transportation of PIH materials must 
comply with the shell protection requirements of 179.24. Furthermore, 
new paragraph (b)(7)(ii) would require that within eight years of the 
effective date of the final rule, all tank cars used to transport PIH 
materials must comply with the enhanced shell protection standard. This 
proposed implementation schedule is consistent with that proposed for 
the enhanced tank-head protection system. It would

[[Page 17847]]

allow one year for the design of tank cars meeting the proposed 
performance standard, a second year for tank car manufacturers to 
modify their manufacturing process as necessary to construct the 
improved tank cars, and a further six year period to bring the entire 
North American fleet of PIH tank cars into compliance with the enhanced 
standard. Again, after the implementation period, any tank car that 
transports PIH materials in the United States, including PIH-carrying 
tank cars that originate in countries outside of the United States, 
must conform to the enhanced tank shell puncture-resistance standard. 
The Department requests comments as to the feasibility and costs of 
this proposed implementation schedule, as well as suggestions for any 
alternatives.
    New paragraph (b)(8) is added to set forth the phased-in 
implementation schedule for the enhanced head- and shell-protection 
requirements of proposed 179.16(b) and 179.24. Specifically, new 
paragraph (b)(8)(i) would require owners of tank cars subject to these 
enhanced requirements to have brought at least 50 percent of their 
affected fleet into compliance with the new requirements within five 
years of the final rule's effective date. The Department believes that 
allowing a full five years to replace half of the PIH tank car fleet is 
reasonable and will ensure the phased-in construction and use of tank 
cars meeting the enhanced standards. Further, this implementation 
period again contemplates an initial one-year design period, a second 
year for manufacturers to modify their manufacturing process as 
necessary to construct the improved tank cars, three years to replace 
half of the fleet, and a final three-year period to complete fleet 
replacement.
    New paragraph (b)(8)(ii) prohibits the use of tank cars 
manufactured using non-normalized steel for head or shell construction 
for the transportation of PIH material five years after the final 
rule's effective date. In other words, the Department expects that tank 
cars constructed of non-normalized steel in the head or shell will be 
phased out within the first half of the fleet replacement period (i.e., 
no later than five years after the effective date of the final rule). 
This section is intended to ensure that tank cars constructed prior to 
1989 that utilize non-normalized steel in the head or shell are the 
first cars phased out in the course of implementing the proposed 
enhanced standards. The Department understands that pre-1989 tank cars 
constructed of non-normalized steel comprise almost 50 percent of the 
current chlorine tank car fleet and approximately 20 percent of the 
current anhydrous ammonia tank car fleet. Significantly, a large 
portion of chlorine cars with non-normalized steel are approaching 
retirement age. Because chlorine and anhydrous ammonia account for over 
80 percent of the annual PIH shipments in the United States, the 
Department believes that requiring the phase out of these cars within 
the first half of the fleet replacement period is reasonable.
    Finally, proposed paragraph (b)(8)(iii) requires the submission of 
a progress report to FRA two months after the initial five years of the 
implementation period has passed. Specifically, this section would 
require tank car owners to report to FRA the total number of in-service 
tank cars in PIH service and the number of those cars in compliance 
with the enhanced head and shell protection requirements of proposed 
Sec. Sec.  179.16(b) and 179.24. In addition, this paragraph would 
require that tank car owners certify that their fleets do not contain 
any pre-1989 tank cars in PIH service utilizing non-normalized steel in 
the head or shell construction.
    Existing paragraph (e)(2) requires that tank cars used to transport 
PIH materials must have a minimum tank test pressure of 20.7 Bar (300 
psig), head protection, and a metal jacket. We are proposing to revise 
this paragraph to remove the outdated compliance date in (e)(2)(ii), 
and cross reference the proposed requirements for enhanced head- and 
shell protection contained in proposed Sec. Sec.  179.16(b) and 179.24 
to make it clear that tank cars used to transport PIH materials must 
meet the enhanced head- and shell-protection requirements of this 
proposal. We are also proposing to cross reference the proposed 
implementation schedule for the tank-head and shell puncture-resistance 
systems in paragraph (b)(8). This will make it clear that five years 
after the final rule's effective date, at least 50 percent of each tank 
car owner's fleet of tank cars that transport PIH materials must comply 
with the enhanced tank-head and shell requirements and that five years 
after the final rule's effective date, tank cars manufactured with non-
normalized steel for tank-heads or shells are no longer authorized for 
the transport of PIH materials. Finally, we are proposing to maintain 
the requirement that tank cars used to transport PIH materials be 
equipped with metal jackets because as noted in an earlier rulemaking 
proceeding, the purpose of the metal jacket is to provide ``both 
accident damage and fire protection'' for certain PIH materials.\50\ As 
in all aspects of this proposal, DOT invites comments on the proposed 
revisions to this section.
---------------------------------------------------------------------------

    \50\ Crashworthiness Protection Requirements for Tank Cars; 
Detection and Repair of Cracks, Pits, Corrosion, Lining Flaws, 
Thermal Protection Flaws and Other Defects of Tank Car Tanks; Final 
Rule, 60 FR 49048, 49054 (Sept. 21, 1995) (citing final rule on 
Performance-Oriented Packaging Standards; Miscellaneous Amendments, 
58 FR 50224 (Sept. 24, 1993) and the NPRM, 58 FR 37612 (July 12, 
1993)).
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Section 173.249--Bromine
    Existing Sec.  173.249 sets forth specific packaging requirements, 
including specific tank car requirements, for bromine, a PIH material. 
This NPRM proposes to add new paragraph (g) to the section, clarifying 
that railroad tank cars transporting bromine must comply with the 
enhanced tank-head and shell puncture-resistance requirements of 
proposed Sec. Sec.  179.16(b) and 179.24.
Section 173.314--Compressed Gases in Tank Cars and Multi-Unit Tank Cars
    Existing Sec.  173.314 sets forth specific filling limits and tank 
car packaging requirements for various compressed gases, including 
chlorine, a PIH material. As relevant to this NPRM, existing paragraph 
(c) prohibits the transportation of more than 90 tons of chlorine in a 
single unit-tank car and paragraph (k) contains specific tank car 
packaging requirements relevant to chlorine. We propose to revise 
paragraph (k) to make clear that railroad tank cars transporting 
chlorine must comply with the enhanced tank-head and shell puncture-
resistance requirements of proposed Sec. Sec.  179.16(b) and 179.24.
    We are also proposing to replace the current insulation system of 
2-inches glass fiber over 2-inches ceramic fiber with a requirement to 
meet the existing thermal protection requirements of Sec.  179.18, or 
with a system that has an overall thermal conductance of no more than 
0.613 kilojoules per hour, per square meter, per degree Celsius 
temperature differential. This proposal does not impose a new 
requirement for the chlorine cars. Based on research conducted by 
FRA,\51\ the 2+2 glass and ceramic fiber insulation used for chlorine 
cars provides an equivalent level of thermal protection as the 
requirements of Sec.  179.18. We are replacing the specific requirement 
for

[[Page 17848]]

the insulation system with the more generic requirements to allow 
flexibility in the use of the interstitial space between the tank shell 
and jacket. Use of this space for crush energy management is integral 
to improving the accident survivability of the PIH tank cars.
---------------------------------------------------------------------------

    \51\ W. Wright, W. Slack, and W. Jackson, Thermal Insulation 
Systems Study for the Chlorine Tank Car, FRA-ORD-85-10, April 1985, 
Federal Railroad Administration, Washington, DC 20590; and W. 
Wright, W. Slack, and W. Jackson, Evaluation of the Thermal 
Effectiveness of Urethane Foam and Fiberglass as Insulation Systems 
for Tank Cars, FRA-ORD-87-11, July 1987, Federal Railroad 
Administration, Washington, DC 20590.
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    We are not proposing any change to the 90-ton single-unit tank car 
commodity limit. However, we believe tank car manufacturers could 
employ innovative engineering design changes to meet the proposed 
enhanced accident survivability standard, and it may be possible, using 
new technology and materials, to actually increase the volume capacity 
of the tank car and meet the new performance standards. It is not 
clear, however, that increasing the quantity of chlorine transported in 
the tank car is advantageous--to the shipper, the receiver, or the 
emergency response community. If the 90-ton limit were changed, we 
could rely solely on the normal lading and filling density limits; we 
could increase the limit from 90 tons to a slightly higher amount 
(e.g., 94 tons); or we could incorporate a process for application to 
FRA for approval to increase the limit above the 90 tons, either by the 
manufacturer for a specific design or by the shipper for specified tank 
cars. We are asking commenters to consider these alternatives and 
provide input on potentially changing the 90-ton limit. In particular, 
we are interested in the potential positive or negative ramifications 
of allowing an increase in the quantity of chlorine in a tank car.
    We recognize that chlorine is regularly transported between the 
United States and Canada. The Canadian requirements for transporting 
chlorine do not include the 90-ton capacity limit; however there is a 
requirement for use of tank cars with a minimum 500 psi tank test 
pressure.
Section 173.323--Ethylene Oxide
    Existing Sec.  173.323 sets forth specific packaging requirements, 
including specific tank car requirements, for ethylene oxide, a PIH 
material. Relevant to this proposal, paragraph (c)(1) contains specific 
requirements for transporting ethylene oxide in railroad tank cars. 
Accordingly, we propose to revise paragraph (c)(1) to make clear that 
railroad tank cars transporting ethylene oxide must comply with the 
enhanced tank-head and shell puncture-resistance requirements of 
proposed Sec. Sec.  179.16(b) and 179.24.

Part 174

Section 174.86--Maximum Allowable Operating Speed
    Existing Sec.  174.86 addresses the maximum allowable operating 
speed for molten metals and molten glass. We propose to amend this 
section to (1) limit the operating speed of all railroad tank cars 
transporting PIH materials to 50 mph, and (2) in non-signaled territory 
limit the operating speed of railroad tank cars transporting PIH 
materials to 30 mph, unless alternative measures providing an 
equivalent level of safety are provided, or the material is being 
transported in a tank car conforming to the enhanced requirements of 
proposed Sec. Sec.  179.16(b) and 179.24. Specifically, new paragraph 
(b) would restrict all tank cars containing PIH materials to a maximum 
operating speed of 50 mph. As discussed above, the current industry 
standard, OT-55-I, currently restricts the operating speed of trains 
containing five or more tank car loads of PIH materials to a maximum of 
50 mph and we believe that extending this restriction to all tank cars 
transporting PIH materials is a reasonable way to control the forces 
experienced by the tank car during most derailment or accident 
conditions, without unduly burdening industry. Moreover, this 50 mph 
speed restriction in conjunction with the 25 mph enhanced shell and the 
30 mph enhanced tank-head puncture-resistance performance standards, 
should ensure that tank integrity will be maintained in most 
derailments or other accidents.
    New paragraph (c)(1) provides that if a tank car not meeting the 
enhanced performance standards of proposed Sec. Sec.  179.16(b) and 
179.24 is used to transport PIH material over non-signaled territory, 
its maximum operating speed is limited to 30 mph. For purposes of this 
section, non-signaled territory is defined to mean ``a rail line not 
equipped with a traffic control system or automatic block signal 
system'' compliant with 49 CFR part 236. As discussed above, this 30 
mph speed restriction is based on FRA's finding that a disproportionate 
number of incidents occurring between 1965 and 2005, which resulted in 
loss of product from head and shell punctures, cracks, and tears, 
occurred in non-signaled territory.
    New paragraph (c)(2) proposes an alternative to complying with the 
speed restriction of paragraph (c)(1) in non-signaled territory. 
Specifically, paragraph (c)(2) proposes to allow railroads to implement 
alternative safety measures in lieu of complying with the 30 mph speed 
restriction, so long as those alternative safety measures provide an 
equivalent level of safety as a traffic control system complying with 
49 CFR part 236 (Part 236). A traffic control system is a block signal 
system \52\ under which train movements are authorized by block signals 
whose indications supersede the superiority of trains for both opposing 
and following movements on the same track. Part 236 sets forth 
standards governing the use of traffic control systems. Typically, 
railroads utilize a centralized traffic control system, governed by a 
series of signal arrangements and capable of detecting the presence of 
trains and the positions of switches. Although the vital circuitry for 
a typical centralized traffic control system is in the field, the 
dispatcher can request movement authority.
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    \52\ A block signal system is a method of governing the movement 
of trains into or within one or more blocks by block signals (i.e., 
roadway signals operated either automatically or manually at the 
entrance to a block) or cab signals (i.e., a signal located in the 
engineer's compartment or cab, indicating a condition affecting the 
movement of a train).
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    Potential mitigation measures which could provide an equivalent (or 
better) level of safety as a traffic control system, depending on the 
particular circumstances of a location, include an automatic block 
signal (ABS) system, an interlocking arrangement, or a positive train 
control system. Part 236 again sets forth standards governing the 
implementation and use of ABS systems, interlockings, and certain types 
of PTC systems. See 49 CFR part 236, subparts B, C and H. Track 
circuits, which are integral to any Part 236 traffic control system or 
ABS system, are electrical devices designed to detect the presence or 
absence of a train on a certain segment of track, but also serve to 
detect broken rails due to electrical discontinuity. Any potential 
alternative risk mitigation measures designed to comply with paragraph 
(c)(2), must take into consideration the alternative's ability to 
detect broken rails.
    A railroad might also be able to establish equivalent safety by 
implementing a combination of measures that together address the 
relevant risks, but without installing a full signal or train control 
system on the line. For instance, by installing a switch position 
monitoring system, track integrity circuits, and additional safety 
procedures (e.g., patrolling ahead of PIH trains or reducing PIH train 
speeds to something less than 49 mph), a railroad might be able to 
demonstrate that reducing PIH train speeds to 30 mph is not warranted. 
The proposed rule would

[[Page 17849]]

permit any combination of technologies or procedures that could be 
shown to be effective.
    Paragraph (c)(2) further provides that once a railroad completes a 
risk assessment demonstrating that certain identified alternative 
measures provide an equivalent level of safety to a Part 236 traffic 
control system, and FRA approves this risk assessment, the railroad may 
operate tank cars containing PIH materials at up to 50 mph. Because, in 
this proposal, we are providing for specific markings to delineate tank 
cars complying with the enhanced head and shell protection standards 
proposed, railroad personnel should be able to easily identify tank 
cars that are not subject to the non-signaled territory speed 
restriction.
    DOT believes that the proposed operating restrictions in this 
section are responsive to NTSB Safety Recommendations R-05-15 and R-05-
16 stemming from the Graniteville accident. We recognize that this 
proposal does not directly adopt the NTSB's recommendations to reduce 
speeds of tank cars transporting certain highly-hazardous materials 
through populated areas or reduce speeds of all trains in non-signaled 
territory in the absence of advance notice of switch positions. 
However, we believe that this proposal will achieve the goal of the 
recommendation, i.e., to minimize impact forces from accidents and 
reduce the vulnerability of tank cars transporting certain hazardous 
materials. At the same time, the proposal will adequately take into 
consideration the practical issues related to any reduction in train 
speed, such as higher crew costs and longer trip time.
    Comment is requested on means to further limit any burdens 
associated with the 30 mph speed restriction in dark territory, and the 
proposed rule may be changed based on the comments received. For 
instance, because it is desirable from a safety standpoint and from the 
point of view of fuel conservation to maintain constant train speed, 
because most affected rail lines intersect scores of small towns and 
suburban areas, and because even very small populations present the 
potential for serious consequences, this proposal would apply 
regardless of the population size along the line. Major hazardous 
material accidents have historically occurred in small-to mid-sized 
communities away from major terminals, in part because of the elevated 
actual speeds that can be attained in these areas. However, there may 
be lines that traverse wilderness areas or extensive farm lands over 
distances that would permit increases in train speed without the threat 
of serious consequences should a release occur. We ask commenters to 
address the following questions: (1) Should an exception be made for 
those line segments? (2) How should any such exception be defined? (3) 
Do railroads have sufficient information regarding abutting land use, 
and changes in land use over time, so that such an exception could be 
implemented practicably? (4) If an exception is provided, should it 
extend to all PIH materials, or are there materials whose potential 
impacts on the environment are so great that the exception should not 
apply?

Part 179

Section 179.13--Tank Car Capacity and Gross Weight Limitation
    Existing Sec.  179.13 sets forth tank car capacity and gross weight 
limitations. Specifically, this section provides that tank cars may not 
exceed a capacity of 34,500 gallons or 263,000 pounds gross weight on 
rail. These limitations date back to 1970 and were based on DOT's 
findings that weight related stress failures in track and car parts 
accounted for approximately 50 percent of all rail accidents at the 
time. 35 FR 14216, 14217 (Sept. 9, 1970). Accordingly, DOT reasoned 
that imposing capacity and gross weight limitations on tank cars would 
limit the impact forces in a derailment and therefore lessen the 
likelihood that a tank car would be breached in the event of a 
derailment or other accident. Id. at 14217. Since the promulgation of 
this section in 1970, however, rail infrastructure has changed, and 
through industry and regulatory efforts, tank car accident 
survivability has improved.\53\
---------------------------------------------------------------------------

    \53\ DOT has also issued several Special Permits allowing the 
use of tank cars weighing up to 286,000 pounds. For example, on 
April 20, 2006, Trinity was issued Special Permit number DOT-SP 
14167, authorizing it to manufacture, mark, and sell the Trinity 
Cart, which has a maximum gross weight on rail of 286,000 pounds. 
See 71 FR 47288, 47301 (Aug. 16, 2001).
---------------------------------------------------------------------------

    To ensure that tank cars that transport PIH materials and that 
exceed the existing 263,000 pound limitation and weigh up to 286,000 
pounds gross weight on rail are mechanically and structurally sound, we 
propose to require that such cars comply with AAR Standard S-286-2002, 
SPECIFICATION FOR 286,000 LBS. GROSS RAIL LOAD CARS FOR FREE/
UNRESTRICTED INTERCHANGE SERVICE (adopted November 2002 and revised 
September 1, 2005). AAR Standard S-286-2002 is the existing industry 
standard for designing, building, and operating rail cars at gross 
weights between 263,000 pounds and 286,000 pounds. This standard sets 
forth industry-tested practices for designing, building and operating 
rail cars at gross weights between 263,000 pounds and 286,000 pounds.
Section 179.16--Tank-Head Puncture-Resistance Systems
    Existing Sec.  179.16 contains the tank-head puncture resistance 
requirements applicable to tank cars currently required under the HMR 
to have tank-head puncture-resistance systems. We propose to amend this 
section to specify an enhanced tank-head puncture-resistance 
performance standard for tank cars used to transport PIH materials.
    As discussed above, research prepared by Volpe was relied upon to 
develop this performance standard. Specifically, the speed chosen for 
this performance standard, a 30 mph impact, is related to the maximum 
allowable operating speed of 50 mph, which is also proposed in this 
NPRM. FRA is cognizant that while the proposed 25 mph closing speed, 
which is based on the maximum allowable operating speed of 50 mph, 
protects well against derailment-like events in which the secondary 
car-to-car impact speeds are approximately half the original train 
speed, impacts can occur in rail yards, at switches or turnouts, and in 
mainline tracks where a tank car can be involved in the primary 
collision. In this situation, it is desirable to have better protection 
strategies available to help alleviate the risk of loss of lading. The 
proposed tank-head puncture resistance system can accommodate the 
proposed 30 mph impact speed because there is more space available in 
the front of the tank-head to place energy absorbing material between 
the head shield or jacket and the inner commodity tank when compared 
with tank shell protection systems, which have more limited expansion 
space due to design constraints.
Section 179.22--Marking
    Existing Sec.  179.22 contains marking requirements applicable to 
railroad tank cars. Specifically, this section provides that tank cars 
must be marked in accordance with the Tank Car Manual and assigns 
meaning to each of the delimiters used in tank car specification 
markings (e.g., a tank car with a tank-head puncture-resistance system 
must include the letter ``S'' in its specification marking, a car with 
a tank-head puncture-resistance system, a thermal protection system, 
and a metal jacket, must be marked with the letter ``J'' in its 
specification marking). Proposed new

[[Page 17850]]

paragraphs (e) and (f) of this section would define the delimiters to 
be used to mark tank cars conforming to the enhanced head- and shell-
protection requirements of this proposal. Specifically, new paragraph 
(e) provides that each tank car that requires a tank-head puncture-
resistance system prescribed in proposed Sec.  179.16(b), a shell 
puncture-resistance system prescribed in Sec.  179.24, and without a 
thermal protection, must be marked with the delimiter ``M'' in its 
specification marking. Similarly, new paragraph (f) provides that each 
tank car that requires a tank-head puncture-resistance system 
prescribed in proposed Sec.  179.16(b), a shell puncture-resistance 
system prescribed in Sec.  179.24, and a thermal protection system, 
must be marked with the delimiter ``N'' in its specification marking.
Section 179.24--Tank Shell Puncture-Resistance Systems
    Proposed new Sec.  179.24 specifies an enhanced tank shell 
puncture-resistance performance standard for tank cars used to 
transport PIH materials. Previous rulemakings have not focused on shell 
protection, but the statutory mandate, recent accidents, and Volpe's 
derailment dynamics research together indicate the need to extend a 
higher level of protection to the tank car body, including both the 
tank-head and the shell. As discussed above, research prepared by Volpe 
was relied upon to develop the performance standard proposed, a 25 mph 
impact test, which is directly tied to the proposed speed restriction 
of 50 mph. It is important to note, the impact test proposed in 
Appendix C is to resist puncture at a particular point on the shell. 
The performance standard requirement for tank car shell protection is 
intended to apply to the entire tank shell.
Section 179.102-17--Hydrogen Chloride, Refrigerated Liquid
    Existing Sec.  179.102-17 sets forth specific tank car packaging 
requirements for hydrogen chloride, refrigerated liquid, a PIH 
material. We propose to revise this section by adding a new paragraph 
(m) to make clear that railroad tank cars transporting hydrogen 
chloride must comply with the enhanced tank-head and shell puncture-
resistance requirements of proposed Sec. Sec.  179.16(b) and 179.24.

XIV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under authority of the Federal hazmat law. 
Section 5103(b) of Federal hazmat law authorizes the Secretary of 
Transportation to prescribe regulations for the safe transportation, 
including security, of hazardous materials in intrastate, interstate, 
and foreign commerce. SAFETEA-LU, which added section 20155 to the 
Federal hazmat law, requires, in part, that FRA (1) validate a 
predictive model quantifying the relevant dynamic forces acting on 
railroad tank cars under accident conditions and (2) initiate a 
rulemaking to develop and implement appropriate design standards for 
pressurized tank cars. Additionally, the Federal Railroad Safety Act, 
49 U.S.C. 20101 et seq., authorizes the Secretary to issue regulations 
over all areas of railroad transportation safety.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures, and determined to be significant under both 
Executive Order 12866 and DOT policies and procedures (44 FR 11034; 
Feb. 26, 1979). We have prepared and placed in the docket a regulatory 
impact analysis (RIA) addressing the economic impact of this proposed 
rule. PHMSA and FRA invite comments on this RIA.
    The costs anticipated to accrue from adopting this proposed rule 
would include: (1) The labor and material costs for incorporating 
enhanced crashworthiness features into tank cars that transport PIH 
materials, (2) the design and re-engineering costs required to 
implement the proposed enhanced tank-head and shell puncture-resistance 
systems, (3) the costs for transferring existing PIH tank cars to other 
commodity services, and (4) the maintenance and inspection costs for 
the new more crashworthy tank cars. Additionally, there would be costs 
incurred as a result of the operational restrictions for tank cars that 
transport PIH materials, including: (1) The cost of restricting 
railroad tank cars used to transport PIH materials to 50 mph, and (2) 
the cost of temporarily restricting existing railroad tank cars used to 
transport PIH materials in non-signaled territory to 30 mph. Finally, 
there would be a cost for the increased traffic or volume of tank cars 
that transport PIH materials due to the increased weight, and thus 
lower commodity capacity, of those cars.
    The primary potential benefits or savings expected to accrue from 
the implementation of this proposed rule would be the reduction in the 
number and severity of casualties arising from train accidents and 
derailments involving tank cars that transport PIH materials. In 
addition, benefits would accrue from a decrease in property damages, 
including damages to locomotives, railroad cars, and track; 
environmental damage; track closures; road closures; and evacuations. 
Moreover, there would also be a benefit in fuel savings (which may 
offset some of the operational costs) due to limiting train operating 
speeds.
    This document presents a 30-year analysis of the costs and benefits 
associated with DOT's proposed rule, using both 7 percent and 3 percent 
discount rates. It also presents an analysis of a regulatory 
alternative considered, and sensitivity analyses associated with 
varying assumptions used for estimating PIH release-related benefits.
    A baseline cost estimate is particularly important for the conduct 
of these analyses. The railroad industry has expressed its intention to 
proceed with a standard of its own absent issuance of a DOT rule 
requiring enhanced crashworthiness of PIH tank cars. In general, 
industry participants appear to recognize the need to improve the 
design of tank cars transporting PIH materials. In fact, the AAR has 
mandated (but temporarily suspended to permit issuance of this notice 
of proposed rulemaking) use of heavier cars with top fittings that meet 
specified requirements such as the new tank cars built by Trinity for 
the transportation of PIH materials. Accordingly the baseline for the 
analyses conducted reflects compliance with the AAR standard by 
replacing the existing fleet of PIH tank cars with AAR compliant 
Trinity-like tank cars. This baseline includes incremental costs 
associated with the design, construction, and operation of new Trinity-
like tank cars to replace existing cars and the transfer of existing 
PIH tank cars to other commodity services. The 30-year cost estimates 
associated with this baseline are $476.6 million (PV, 7%) and $718.7 
million (PV, 3%). Annualized costs are $38.4 million (PV, 7%) and $36.7 
million (PV, 3%).
    The analysis of the proposed rule takes into account the 
incremental impacts that would be incurred with meeting the proposed 
requirements (i.e., the design, construction, and operation costs for 
the new DOT-compliant cars in excess of the baseline impacts that would 
be incurred absent this rulemaking with the introduction of the AAR-
mandated cars). In addition, the proposed rule analyzes full impacts 
related to the proposed operating speed restrictions). Thus, this 
analysis takes into account the fact that the AAR and

[[Page 17851]]

shippers have active plans to make major changes in the tank car fleet 
that moves PIH commodities. The 30-year cost estimates associated with 
implementation of the proposed rule are $350.6 million (PV, 7%) and 
$431.6 million (PV, 3%). Annualized costs are $28.3 million (PV, 7%) 
and $22.0 million (PV, 3%).
    The benefits of the proposed rule fall into two sub-groups. The 
first group consists of benefits that would accrue from avoidance of 
collision- and derailment-related PIH releases resulting from a 
combination of the enhanced tank car crashworthiness standards and 
operating speed restrictions. This group of benefits includes 
reductions in casualties; property damage, including damage to 
locomotives, rail cars and track; environmental damage; evacuation and 
shelter-in-place costs; track closures; road closures; and electric 
power disruptions. Casualty mitigation estimates are based on a value 
of statistical life of $5.8 million. This group of benefits also 
includes more difficult to monetize benefits such as the avoidance of 
hazmat accident related costs incurred by Federal, state, and local 
governments and impacts to local businesses. As with costs, the 
benefits associated with introducing DOT-compliant tank cars are 
reduced by the level of benefits that DOT estimates would accrue from 
replacing existing cars with AAR-mandated cars absent this rulemaking. 
This analysis includes a scenario which DOT believes is the most 
realistic projection of benefits that would be realized, including the 
possibility of an event with moderately more severe consequences than 
has occurred in the past 10 years. This approach recognizes the 
significant probability that, given the quantity of product released 
and the proximity of potentially affected populations to accident 
sites, in one or more events the consequences known to be possible will 
be realized, with loss of life on a scale not previously encountered.
    The second group of benefits consists of business benefits that 
would accrue in response to the operating speed restrictions (which may 
partially offset the operating costs imposed by these restrictions) and 
the enhanced tank car design. This group includes fuel savings from 
economic efficiencies resulting from operating speed restrictions and 
repair savings from more salvageable tank cars. DOT believes that the 
useful life of compliant tank cars introduced during the 30-year 
analysis period will extend well beyond that period. Moreover, the 
residual value at year 30 of tank cars constructed to meet the enhanced 
standards proposed will be greater than the residual value of 
conventional tank cars and Trinity-like tank cars contemplated by AAR's 
new standard. Thus, the analysis includes a benefit reflecting the 
higher residual value for the new tank cars at year 30.
    FRA then added up both of these groups of benefits over the next 30 
years. Taking both of these groups of benefits, relative to the state 
of the world where the AAR would enforce it's interchange standard, the 
30-year benefit estimates associated with implementation of the 
proposed rule are $666 million (PV, 7%) and $1.089 billion (PV, 3%). 
Annualized benefits are $53.7 million (PV, 7%) and $55.6 million (PV, 
3%).
    An evaluation of a ``status quo'' alternative is also included. In 
general, industry parties appear to recognize the need to improve the 
design of tank cars transporting PIH materials. In fact, as previously 
noted, the AAR has mandated the use of Trinity-like cars for the 
transportation of PIH materials in interchange. Accordingly, the 
``status quo'' alternative would be to allow the AAR to enforce its 
interchange standard. The costs associated with such an alternative 
would still be represented by the baseline cost scenario; however, they 
would be equivalent to the costs the railroad industry is willing to 
incur voluntarily, and thus, would not be considered true regulatory 
costs. In addition, this alternative would not include costs from any 
operating speed restrictions. The benefits from this alternative would 
be those resulting from the use of a heavier car of the same basic 
design currently in place and can be estimated as approximately 15% of 
the benefits that would be expected to result from implementation of 
the crashworthiness requirements of the proposed rule. As with the 
costs, this alternative would not offer any of the business benefits 
associated with the DOT proposal due to the operating speed 
restrictions. The 30-year cost estimates associated with this 
alternative are $476.6 million (PV, 7%) and $718.7 million (PV, 3%).
    Finally, three sensitivity analyses varying assumptions used to 
estimate the benefits of the proposed rule are included. The first 
addresses the uncertainty regarding the consequences from release of 
PIH materials resulting from train accidents. This analysis is based on 
the assumption that the consequences of projected incidents will be of 
the same average severity as those in the past ten years. It does not 
recognize how fortunate the circumstances surrounding recent past 
incidents have been. Given the rarity of the occurrence of rail 
accidents resulting in the release of PIH materials from tank cars, and 
the high variability in the circumstances and consequences of such 
events, this sensitivity analysis is useful. The 30-year benefit 
estimates associated with this scenario are $786,073,251 (PV, 7%) and 
$866,616,695 (PV, 3%). The second and third sensitivity analyses 
address the imprecision of assumptions regarding the value of a life, 
which affect the level of safety benefits (i.e., casualty mitigation) 
that would result from promulgation of the proposed rule. This analysis 
presents benefit levels associated with values of a statistical life of 
$3.2 million and $8.4 million. The 30-year benefit estimates associated 
with these scenario are $562,100,371 (PV, 7%, VSL: $3.2M), $857,952,000 
(PV, 7%, VSL: $8.4M).
    This rulemaking would fulfill the mandate of SAFETEA-LU and respond 
to NTSB's recommendations pertaining to tank car structural integrity 
and operational measures, by specifying performance standards and 
operational restrictions sufficient to reduce the likely frequency of 
catastrophic releases to a level as low as reasonably possible, given 
the need to transport the products in question, and based on analysis 
of the forces that result from serious train accidents. PHMSA and FRA 
note that, while the proposed actions are based exclusively on railroad 
safety considerations, strengthening the protective systems on PIH tank 
cars may also reduce the likelihood of a catastrophic release caused by 
criminal acts, such as deliberately throwing a switch in the face of an 
oncoming train or taking other action that could result in a derailment 
or collision.
    The proposed actions would not reduce to zero the probability of a 
catastrophic release. However, achieving that goal is likely 
inconsistent with the purpose of the transportation service provided 
and beyond design practice that presently can be conceived. The 
proposed actions would substantially reduce the risk presently 
attending transportation of the subject products, and these reductions 
can be achieved within a time certain. Providing reassurance to the 
communities through which these trains travel, that every feasible 
action has been taken to safeguard those potentially affected, itself 
provides societal benefits. Included among these benefits are peace of 
mind of residents and others within the potential zones of danger, and 
likely avoidance of more costly and less effective public responses 
(such as prohibiting transportation of the products outright

[[Page 17852]]

or establishing burdensome conditions of transportation that are 
perceived to benefit individual communities while driving up total 
public exposure).

C. Executive Order 13132

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). If 
adopted in a final rule, the proposals in this NPRM would amend PHMSA's 
existing regulations on the design and manufacturing of rail tank cars 
authorized for the transportation of PIH materials and the handling of 
rail shipments of PIH materials in these rail tank cars. As discussed 
below, State and local requirements on the same subject matters covered 
by PHMSA's existing regulations and the amendments proposed in this 
NPRM, including certain State common law tort actions, are preempted by 
49 U.S.C. 5125 and 20106. At the same time, this NPRM does not propose 
any regulation that would have direct effects on the States, the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Additionally, it would not impose any direct compliance 
costs on State and local governments. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply.
    The Federal Railroad Safety Act (49 U.S.C. 20101 et seq.) provides 
that all regulations prescribed by the Secretary related to railroad 
safety (such as the rule proposed in this NPRM) preempt any State law, 
regulation, or order covering the same subject matter, except a 
provision necessary to eliminate or reduce an essentially local safety 
or security hazard that is not incompatible with a Federal law, 
regulation, or order and that does not unreasonably burden interstate 
commerce. An amendment to Section 20106 enacted in 2007 alters the 
preemption of certain tort actions by this section that arise from 
events or activities occurring on or after January 18, 2002, to the 
extent that a tort action seeks damages for personal injury, death, or 
property damage and alleges: (1) A violation of the Federal standard of 
care established by regulation or order issued by the Secretary of 
Transportation (with respect to railroad safety) or the Secretary of 
Homeland Security (with respect to railroad security); (2) a party's 
violation of, or failure to comply with, its own plan, rule, or 
standard that it created pursuant to a regulation or order issued by 
either of the two Secretaries; or (3) a party's violation of a State 
standard that is necessary to eliminate or reduce an essentially local 
safety or security hazard, is not incompatible with a law, regulation, 
or order of the United States Government, and does not unreasonably 
burden interstate commerce.
    While this recent amendment has altered the preemptive reach of 
Section 20106, it is important to note that there are limits to this 
exception. For example, Congress provided an exception only for an 
action in State court seeking damages for personal injury, death, or 
property damage. The statute does not provide for the recovery of 
punitive damages in the permitted common law tort actions. In addition, 
the statue permits actions for violation of an internal plan, rule, or 
standard only when such are created pursuant to a Federal regulation or 
order issued by DOT or DHS to the minimum required by the Federal 
regulation or order. While parties are encouraged to go beyond the 
minimum regulatory standard in establishing safety and security 
standards, these requirements are not created pursuant to Federal 
regulation or order. Accordingly, there is no clear authorization of a 
common law tort action alleging a violation of those aspects of such an 
internal plan, rule, or standard related to the subject matter of this 
regulation that exceeds the minimum required by the Federal regulation 
or order.
    Separately, the Federal hazardous materials transportation law, 49 
U.S.C. 5101 et seq., contains an express provision (49 U.S.C. 5125(b)) 
preempting State, local, and Indian tribe requirements on certain 
covered subjects. Covered 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 
related to hazardous material and requirements related to the number, 
contents, and placement of those documents;
    (4) the written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; and
    (5) the design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This proposed rule addresses both items 2 and 5 of the HMR and 
would therefore preempt any State, local, or Indian tribe requirement 
that is not substantively the same as PHMSA's regulations on these 
subject matters, as those regulations would be amended as proposed in 
this NPRM. The agency welcomes comments about the extent to which the 
preemptive effect under this statutory authority differs from that 
discussed above.
    Pursuant to 49 U.S.C. 5125(b)(2) of the Federal hazmat law, if the 
Secretary of Transportation issues a regulation concerning any of the 
covered subjects, the Secretary 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. PHMSA has determined that the effective date of 
Federal preemption for these requirements under the Federal hazmat law 
would be one year from the date of publication of a final rule in the 
Federal Register.

D. Executive Order 13175

    We analyzed this proposed rule in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not significantly or uniquely affect tribes and does not 
impose substantial and direct compliance costs on Indian tribal 
governments, the funding and consultation requirements of Executive 
Order 13175 do not apply, and a tribal summary impact statement is not 
required.

E. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impacts on small entities. An agency must prepare an initial 
regulatory flexibility analysis (IRFA) unless it determines and 
certifies that a rule, if promulgated, would not have a significant 
impact on a substantial number of small entities. DOT has not 
determined whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. Therefore, we are 
publishing this IRFA to aid the public in commenting on the potential 
small business impacts of the proposals in this NPRM. We invite all 
interested parties to submit data and information regarding the 
potential economic impact that would result from adoption of the 
proposals in this NPRM. We will consider all comments received in the 
public comment process when making a

[[Page 17853]]

determination in the final Regulatory Flexibility Assessment (RFA).
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) A succinct statement of the objectives of, and the legal basis 
for, the proposed rule;
    (3) A description of, and where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) A description of the projected reporting, recordkeeping and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record;
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule; and
    (6) A description of any significant alternatives to the proposed 
rule that accomplish the state objectives of applicable statutes and 
which minimize any significant economic impact of the proposed rule on 
small entities. 5 U.S.C. 603(b), (c).
I. Reasons for Considering Agency Action
    As discussed in earlier sections of this preamble, in the last 
several years there have been a number of serious rail tank car 
accidents involving catastrophic releases of PIH materials causing the 
attention of the rail industry, PIH shippers and other members of the 
public, press, NTSB and the Congress to focus on the serious 
consequences of these events. In 2005 SAFETEA-LU directed the Secretary 
of Transportation to ``initiate a rulemaking to develop and implement 
appropriate design standards for pressurized tank cars.'' This proposed 
rulemaking is responsive to SAFETEA-LU's mandate, as well as 
recommendations of the NTSB.
II. Objectives and Legal Basis for Proposed Rule
A. Legal Basis for Proposed Rule
    As discussed in more detail in section III of this preamble, 
Federal hazmat law authorizes the Secretary of Transportation to 
``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' The Secretary has delegated this authority to PHMSA. The 
Secretary also has authority over all areas of railroad transportation 
safety (Federal Railroad Safety laws, 49 U.S.C. 20101 et seq.) and has 
delegated this authority to FRA. 49 CFR 1.49.
    A primary safety and security concern in the rail transportation of 
hazardous materials is the prevention of a catastrophic release in 
proximity to places such as populated areas, events or venues with 
large numbers of people in attendance, iconic buildings, landmarks, or 
environmentally sensitive areas. Over the past several years, several 
very serious accidents involving catastrophic releases of PIH materials 
from railroad tank cars have focused the attention of the public, 
press, NTSB, and the Congress on the serious consequences of these 
events. Since 2002, NTSB investigated three accidents involving tank 
cars transporting PIH materials. (See section VI of the preamble for a 
more detailed discussion of the relevant accidents). In response to all 
three accidents, the NTSB recommended that FRA study improving the 
safety and structural integrity of tank cars and develop necessary 
operational measures to minimize the vulnerability of tank cars 
involved in accidents. In particular, in response to a January 18, 
2002, freight train derailment in Minot, North Dakota, which resulted 
in one death and 11 serious injuries due to the release of anhydrous 
ammonia when five tank cars carrying the product catastrophically 
ruptured and a vapor plume covered the derailment site and surrounding 
area, the NTSB made four safety recommendations to FRA specific to the 
structural integrity of hazardous material tank cars. Subsequently, in 
2005, section 20155 of SAFETEA-LU reiterated NTSB's recommendations in 
part and further directed the Secretary of Transportation to ``initiate 
a rulemaking to develop and implement appropriate design standards for 
pressurized tank cars.''
B. Objective of Proposed Rule
    The objective of this proposed rule is to improve the 
crashworthiness protection of railroad tank cars designed to transport 
PIH materials by (1) requiring enhanced tank-head and shell protection, 
and (2) limiting the operating speed of the tank cars. See sections II 
and XII of the preamble for a more detailed discussion regarding the 
objective of this proposed rule.
III. Description and Estimate of Small Entities Affected
    The ``universe'' of the entities to be considered in an IRFA 
generally includes only those small entities that can reasonably be 
expected to be directly regulated by the proposed action. Five types of 
small entities are potentially affected by this proposed rule: (1) PIH 
material shippers and tank car owners; (2) governmental jurisdictions 
of small communities; (3) small railroads; (4) small farms; and (5) 
small explosives manufacturers.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) includes not-
for-profit enterprises that are independently owned and operated, and 
are not dominant in their field of operations within the definition of 
``small entities.'' Additionally, section 601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    The U.S. Small Business Administration (SBA) stipulates ``size 
standards'' for small entities. It provides that the largest a for-
profit railroad business firm may be (and still classify as a ``small 
entity'') is 1,500 employees for ``Line-Haul Operating'' railroads, and 
500 employees for ``Short-Line Operating'' railroads.\54\ For PIH 
material shippers potentially impacted by this rule, SBA's size 
standard is 750 or 1,000 employees, depending on the industry the 
shipper is in as determined by its North American Industry 
Classification System (NAICS) Code. SBA size standards also stipulate 
in NAICS Code Subsector 111 that the average annual receipt for ``crop 
production'' agriculture is $750,000 per year. Thus, any farm that 
produces crops is not considered to be a small entity unless its annual 
revenue is less than $750,000. For explosives manufacturers, NAICS Code 
325920, the size standard is 750 employees.
---------------------------------------------------------------------------

    \54\ ``Table of Size Standards,'' U.S. Small Business 
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS 
Codes 482111 and 482112.
---------------------------------------------------------------------------

    SBA size standards may be altered by Federal agencies in 
consultation with SBA, and in conjunction with public comment. Pursuant 
to the authority provided to it by SBA, FRA has published a final 
policy, which formally establishes small entities as railroads that 
meet the line haulage revenue requirements of a Class III railroad.\55\ 
Currently, the revenue requirements are $20 million or less in annual 
operating revenue, adjusted annually for inflation. The $20 million 
limit (adjusted

[[Page 17854]]

annually for inflation) is based on the Surface Transportation Board's 
threshold of a Class III railroad carrier, which is adjusted by 
applying the railroad revenue deflator adjustment.\56\ The same dollar 
limit on revenues is established to determine whether a railroad 
shipper or contractor is a small entity. DOT proposes to use this 
definition for this rulemaking.
---------------------------------------------------------------------------

    \55\ See 68 FR 24891 (May 9, 2003).
    \56\ For further information on the calculation of the specific 
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------

A. Shippers
    Almost all hazardous materials tank cars, including those cars that 
transport PIH materials, are owned or leased by shippers. DOT believes 
that a majority, if not all, of these shippers are large entities. DOT 
used data from the DOT/PHMSA Hazardous Materials Information System 
(HMIS) database to screen for PIH material shippers that may be small 
entities. The HMIS uses the SBA size standards as the basis for 
determining if a company qualifies as a small business. DOT also 
gathered data from industry trade groups such as the American Chemistry 
Council and The Fertilizer Institute (TFI) to help identify the number 
of small shippers that might be affected. After identifying the set of 
small businesses that could potentially be impacted, DOT cross-
referenced this group with The Official Railway Equipment Register 
(October, 2007) to determine if any of these actually own tank cars 
subject to this rule.
    From the DOT/PHMSA HMIS database, and industry sources, DOT found 
eight small shippers that might be impacted. By further checking 
information available on the companies' Web sites, all eight shippers 
are noted as being subsidiaries of larger businesses. Out of these 
eight, however, only one owns tank cars that would be affected. The 
remaining seven shippers either do not own tank cars or own tank cars 
that would not be affected by this rule. The one remaining small 
shipper potentially impacted has annual revenues that exceed by 20 
times the FRA size standard for a small entity. Further, although this 
shipper is for-profit, the parent company is a non-profit. Thus, DOT 
believes that there are none or very few PIH material shippers that are 
small businesses affected by this rule. Additionally, no small shippers 
commented during the public meeting process. DOT invites commenters to 
submit information that might assist it in assessing the quantity of 
small shippers that may be affected by the requirements set forth in 
the proposed rule, as well as the potential impact on any such 
entities.
B. Governmental Jurisdictions of Small Communities
    Small entities that are classified as governmental jurisdictions of 
small communities may also be affected by the proposals in this NPRM. 
As stated above, and defined by SBA, this term refers to governments of 
cities, counties, towns, townships, villages, school districts, or 
special districts with populations of less than 50,000. The potential 
impact of this rulemaking to these entities is related to chlorine and 
the use of it in the water purification process for community water 
districts. DOT does not know how many community water systems are owned 
by governmental jurisdictions that meet SBA's definition of a small 
entity, how many community water systems use chlorine at their 
facilities, or how many could easily substitute a nondangerous or less 
lethal material, i.e., bleach, for chlorine.
    DOT understands that most water plants for small communities 
receive their chlorine via 1-ton tanks, which are transported in 
highway vehicles. These facilities might be impacted indirectly by 
increasing prices for chlorine due to higher shipping rates. Also, in 
recent years, the shipping rates for chlorine have been increased due 
to the PIH accidents that have occurred over the past 10 years. With 
the introduction of this proposed regulation, DOT expects that the 
rates will flatten or will increase at a slower pace because the safety 
features of the rule will reduce the chance of an accident that 
releases PIH materials, and therefore result in lower accident and 
associated costs.
    DOT notes that many existing chlorine tank cars are nearing the end 
of their useful lives. Even in the absence of the proposed rulemaking, 
the affected entities would have to replace these older chlorine tank 
cars in the next few years. The industry, through AAR, has also been 
working to improve tank car safety. As discussed in section IX of this 
preamble, absent this regulation, new AAR chlorine tank car standards 
will also result in existing tank cars being replaced and entities 
impacted through higher shipping rates.
    Accordingly, DOT cannot accurately assess the number of 
governmental jurisdictions of small communities that would be directly 
impacted by this proposed regulation and what the impact would be. DOT 
requests comment from affected governmental jurisdictions as to the 
impact the proposed rule will have on them.
C. Railroads
    DOT estimates that approximately 46 railroads meeting the 
definition of ``small entity'' as described above transport PIH 
materials via railroad tank car.\57\ Because the proposed rule would 
apply to all 46 of these small railroads, we have concluded that a 
substantial number of such entities would be impacted.
---------------------------------------------------------------------------

    \57\ Data provided by Railinc, Corp. (a subsidiary of AAR) 
indicates that approximately 80 short-line and regional railroads 
transport PIH materials via railroad tank car. Of these 80 
railroads, 34 are regional railroads that meet the Surface 
Transportation Board's definition of a Class II railroad, and thus, 
are not considered ``small entities'' for the purposes of this IRFA.
---------------------------------------------------------------------------

    It is important to note, however, that absent this rulemaking, all 
railroads that transport PIH materials via railroad tank car, including 
the 46 railroads identified as small entities, would still have to 
incur the additional expense to accommodate 286,000-pound tank cars to 
comply with the new AAR PIH tank car standard (i.e., a 286,000-pound 
tank car equipped with additional head protection, thicker shell, and 
modified top fittings). (See section IX of this preamble for a more 
detailed discussion of the new AAR PIH tank car standard).
    As noted in section I of this preamble, however, DOT anticipates 
that tank car designers, working with end users, will develop tank cars 
that will meet the proposed enhanced tank-head and shell performance 
standards of this NPRM while minimizing the addition of weight to the 
empty cars. Recognizing the growing use of rail cars with gross weight 
on rail exceeding 263,000 pounds for non-hazardous commodities, such as 
grain, this NPRM provides the flexibility to design a tank car for the 
transportation of PIH materials weighing up to 286,000 pounds, in line 
with AAR's existing standard S-286-2002. Accordingly, the actual impact 
of the general increase in gross weight on rail of products in this 
commodity group in relation to the overall transition now being 
completed within the industry (which has been eased by tax incentives 
and, in some cases, government-guaranteed loan arrangements) should not 
be substantial. While we recognize that some small railroads will not 
be able to accommodate the additional weight on some of their bridges 
and track, we believe that railroads that handle PIH cars have, in 
general, already made or are making the transition to track structures 
and bridges capable of handling 286,000-pound cars in line with the 
general movement in the industry toward these heavier freight cars. 
These railroads include many switching and terminal railroads

[[Page 17855]]

that are partially or totally owned by Class 1 railroads as interline 
connections. These connections have previously mandated upgrading to 
286,000-pound capability.
    For example, in 2005, the Texas Transportation Institute reported 
that 42 percent of the short-line railroad miles that were operated in 
Texas that year had already been upgraded, nine percent would not need 
an upgrade, and 47 percent needed upgrading if they wanted to transport 
any type of 286,000-pound shipments.\58\ In addition, the results of a 
1998-1999 survey conducted by the ASLRRA indicated that 41 percent of 
respondent short-line railroads could handle 286,000-pound rail cars 
and 87 percent of the respondent short-line railroads indicated that 
they would need to accommodate 286,000-pound railcars in the 
future.\59\ More current data from the ASLRRA suggests that many of the 
railroads needing future capability to handle 286,000-pound rail loads 
for this rule have been upgraded within the past two years.\60\
---------------------------------------------------------------------------

    \58\ Jeffrey E. Warner & Manuel Solari Terra, ``Assessment of 
Texas Short Line Railroads, `` Texas Transportation Institute (Nov. 
15, 2005).
    \59\ The Ten-Year Needs of Short Line and Regional Railroads, 
Standing Committee on Rail Transportation, American Association of 
State Highway and Transportation Officials, Washington, DC (Dec. 
1999). This report was based on a survey conducted by the ASLRRA in 
1998 and 1999 with data from 1997.
    \60\ John Gallagher, ``Tank Car Tensions,'' Traffic World (June 
19, 2006).
---------------------------------------------------------------------------

    Nevertheless, we believe that some new 263,000-pound cars will be 
built for anhydrous ammonia service to address rail line and facility 
compatibility concerns thus minimizing the burden of the rule on small 
railroads.
    In general, most of the impacts will not burden the 46 small 
railroads potentially affected by this proposed rule. Any costs 
incurred by railroads most likely will be passed to shippers and end 
users through higher transportation costs. Thus, DOT does not expect 
this regulation to impose a significant burden on the affected small 
railroads. We invite commenters to submit information that might assist 
us in assessing the cost impacts on small railroads of the proposals in 
this NPRM.
D. Farms
    Anhydrous ammonia is an important source of nitrogen fertilizer for 
crops. It is used in farming because it is one of the most efficient 
and widely used sources of nitrogen for plant growth. Its use has 
increased because it is relatively easy to apply and readily available. 
Nonetheless, it does carry disadvantages to the farming environment 
because it must be stored and handled under high pressure. Urea, urea 
ammonium nitrate, or ammonium nitrate could be used for anhydrous 
ammonia as substitutes for agricultural purposes. Anhydrous ammonia has 
a free ammonia percentage of 86 percent, while the substitutes have a 
free ammonia percentage of 46, 28-32, and 34 percent, respectively.
    Shippers of anhydrous ammonia do not own tank cars; rather they are 
leased from larger entities. According to TFI, a switch to a redesigned 
heavier tank car would increase monthly car lease rates from the 
current level of $800-$850 per car to $1,300-$1,400 per car. TFI's 
members lease about 6,000 tank cars and ship about 52,000 cars per 
year. If these increased lease costs are passed through to customers, 
then any agricultural or farming operation that utilizes anhydrous 
ammonia as part of its fertilizing program could be negatively 
impacted.
    It is important to note, however, that not all crops utilize 
anhydrous ammonia, nor in the same quantities. Agriculture crops that 
require greater leaf development, such as corn and wheat, utilize 
anhydrous ammonia as a fertilizer more than crops that require a 
greater root development, e.g., carrots, potatoes, and beets, which 
utilize phosphorus more as a fertilizer. Therefore, not all small farms 
will be impacted in the same way by an increase in the shipping rates 
for anhydrous ammonia. DOT invites commenters to submit information 
that might assist it in assessing the quantity of small agricultural 
operations that may be affected by the requirements set forth in the 
proposed rule.
    During DOT's public meetings, one commenter noted that the survival 
of family farms in the Northwest is tied to retaining a cheap source of 
nitrogen via anhydrous ammonia which is transported via rail.\61\ Other 
commenters noted that NH3 costs 40 to 50 percent less per pound of 
nitrogen than less concentrated forms of nitrogen.\62\ For example, one 
commenter noted that anhydrous ammonia costs 24 cents per pound of 
nitrogen, compared to 34 cents per pound for ammonium nitrate.\63\
---------------------------------------------------------------------------

    \61\ U.S. DOT Public Meeting Transcripts, Testimony of Fred 
Morscheck from the McGregor Company, May 31, 2006, p. 168.
    \62\ Id. p. 169.
    \63\ U.S. DOT Public Meeting Transcripts, Testimony of William 
Wolf from The Andersons, Inc. (a shipper), May 31, 2006, p. 190.
---------------------------------------------------------------------------

    Anhydrous ammonia is dependent on natural gas for its production. 
In North America, anhydrous ammonia production plants are typically 
built near a dedicated supply of natural gas, and the price and demand 
for the product are also dependent and responsive to the price of 
natural gas. Thus, the production at some plants is currently down due 
to the increase in price of natural gas. On the demand side of the 
economic equation there is an increase in the demand and use of 
anhydrous ammonia due to the recent increase in ethanol demand. Ethanol 
is typically produced in the United States from corn, and the 
production of corn requires substantial amounts of nitrogen, much of 
which comes from anhydrous ammonia.
    Because there are a number of factors contributing to increased 
costs for anhydrous ammonia, it is difficult to determine how much of 
any increase in the price of the PIH material would be a product of 
this proposed regulation and shipping via rail. We note as well that 
increased costs may well make substitute produces more attractive.
    Currently PIH shippers are experiencing rapidly increasing rate 
increases as a result of the railroads' concern over possible train 
accidents involving the release of PIH materials. The use of the more 
crashworthy tank cars coupled with the operating restrictions DOT is 
proposing should significantly reduce the risk of catastrophic PIH 
releases and ultimately translate into relief from these escalating 
rail transportation costs. (These rate escalations would likely 
continue were DOT not to issue its proposed rule since the car mandated 
by AAR's new standard (i.e., a Trinity-type car) would probably not 
prevent PIH tank car releases in even moderate speed train accidents). 
Shippers would be able to make the case that higher rates would no 
longer be ``reasonable'' given the significantly reduced probability of 
a catastrophic release. This ``cost-savings'' would allow shippers to 
offset new-car costs to a large extent. Given that new car expenses are 
typically financed over several years, we believe that the increased 
costs passed on by shippers to small farmers would not be significant. 
The farmers, in turn, would be expected to pass shipping cost increases 
to end consumers in the form of higher agricultural product prices.
    We request comment from affected agricultural operations as to the 
impact that the proposed rule would have on them.
E. Explosives Manufacturers
    Anhydrous ammonia is also used in producing explosives. The 
Institute of Makers of Explosives (IME), an industry trade group, 
reports that there are 22 explosives manufacturers in the United

[[Page 17856]]

States. Of these 22 manufacturers, eight actually produce explosives 
material while the remaining 14 are associated manufacturers making 
components or assemblies. Finally, three manufacturers consume 
anhydrous ammonia to produce explosives. None of these three 
potentially impacted manufactures, however, is considered a small 
business.
IV. Description of Reporting, Recordkeeping, and Other Compliance 
Requirements and Impacts on Small Entities Resulting From Specific 
Proposed Requirements
A. Reporting Requirement of Proposed Sec.  173.31(b)(8)(iii)
    Proposed Sec.  173.31(b)(8)(iii) requires that after the initial 5-
year implementation period has passed, owners of PIH tank cars submit a 
progress report to FRA identifying the total number of in-service tank 
cars in PIH service owned and the number of those cars in compliance 
with the enhanced head and shell protection requirements of the 
proposed rule. This paragraph would also require that tank car owners 
certify in their progress reports that their fleet does not contain any 
pre-1989 tank cars in PIH service subject to paragraph (b)(8)(ii).\64\
---------------------------------------------------------------------------

    \64\ This proposed requirement restricts the use of PIH tank 
cars that were manufactured using non-normalized steel for tank-head 
or shell construction. Under it, tank cars manufactured using non-
normalized steel for the tank-head or shell are not authorized to 
transport PIH materials five years after the effective date of the 
final rule.
---------------------------------------------------------------------------

    DOT estimates that the burden for this reporting would be 5 minutes 
per pertinent tank car.\65\ In the Regulatory Impact Analysis (RIA), 
DOT estimated that this requirement will cost $19,200 in the beginning 
of the 6th year of the analysis, and this cost is for each tank car. In 
addition, DOT has provided postage, envelopes, and handling charges of 
$1 per tank car report. This cost would total $7,650, which would also 
be incurred in the beginning of the 6th year of the analysis. The total 
cost for this requirement is $26,800 for all PIH tank car owners. DOT 
does not expect many of these tank cars to be owned by small entities. 
Therefore, this reporting requirement would have very little, if any, 
impact on small entities.
---------------------------------------------------------------------------

    \65\ CALCULATION: ($30.05 wage rate) * (5 minutes/60 minutes) * 
(15,300 *.5) = $19,157.
---------------------------------------------------------------------------

B. Filing Requirement for Alternative Compliance With Proposed Sec.  
174.86(c)(1)
    Proposed Sec.  174.86(c)(1) provides that if a tank car not meeting 
the enhanced tank-head and shell puncture resistance standards of the 
proposed rule is used to transport PIH material over non-signaled 
territory, its maximum operating speed is limited to 30 mph. 
Alternatively, paragraph (c)(2) provides that railroads may implement 
alternative safety measures in lieu of complying with the 30 mph speed 
restriction, so long as those alternative safety measures provides an 
equivalent level of safety as a traffic control system complying with 
49 CFR Part 236 and the railroad completes a risk assessment 
demonstrating this equivalent level of safety. The rule proposes that 
this risk assessment be submitted to FRA for review and approval.
    DOT does not expect a great number of these applications. A typical 
submission might consist of a commitment to install a switch position 
monitoring system, track integrity circuits (except in areas where new 
rail is prevalent), and a temporary speed reduction to 40 mph during 
the period a positive train control system is installed on the wayside. 
DOT expects that the average submission would consist of between 20 and 
30 pages. DOT does not expect any of these applications to be by small 
railroads.
C. Demonstration of Compliance With Proposed Enhanced Tank-Head and 
Shell Puncture Resistance System Tests
    Proposed Appendix C to 49 CFR Part 179 provides that compliance 
with the proposed enhanced tank head and shell puncture-resistance 
standards can be shown by computer simulation, by simulation in 
conjunction with substructure testing, by full-scale impact testing, or 
a combination thereof. The lowest cost and lowest level of confidence 
is provided by simulation alone. Substructure testing increases the 
confidence in simulation modeling, potentially with relatively modest 
costs, depending on the details of the substructure test. The highest 
level of confidence is provided by full-scale impact testing, along 
with the greatest cost. The cost of such compliance is not important to 
this assessment. DOT firmly believes that no small entities will be 
impacted by this requirement.
D. Impacts on Small Entities Resulting From Specific Proposed 
Requirements
    The impacts from this proposed rulemaking would primarily result 
from complying with the requirements for building enhanced PIH tank 
cars. The proposed rule provides affected entities an 8-year period of 
time in which to accomplish this goal.
1. Additional Cost for Enhanced PIH Tank Cars
    One of the impacts from this proposed regulation would be an 
increase in the cost of new PIH tank cars. The enhanced crashworthiness 
features, while increasing safety, would cause the average PIH tank car 
to increase in cost and also increase in weight. DOT believes that the 
impact from this increased cost in the tank cars would be substantially 
passed from the manufacturer to the tank car owners. Since most tank 
cars are owned by the shippers, much of this cost would be passed on to 
them. These shippers would most likely pass this cost on to the end 
users in the form of higher shipping costs. The capacity constraints in 
the railroad system give shippers some market power to pass on a 
substantial portion of the costs (i.e., shippers do not need to cut 
costs to attract customers). However, the flexibility provided by the 
long phase in period of the rulemaking, and the ability of some 
customers to use substitute products or purchase from shippers that 
rely on other modes of transportation if costs rise beyond their 
willingness to pay, may temper passing through of costs. If any of the 
additional or marginal increases in a PIH tank car's cost are absorbed 
by shippers, then few, if any, PIH material shippers that are 
considered to be small entities would be negatively affected. Based on 
information from the DOT/PHMSA HMIS registry of shippers, and industry 
trade groups, DOT believes no small PIH material shippers would be 
impacted. If the higher cost of cars meeting the proposed performance 
standard are not absorbed by shippers and are not offset by reductions 
in shipping rates attributable to reduce potential liability for 
catastrophic releases, small farmers using anhydrous ammonia for 
fertilizer might be impacted. The degree to which they might be 
impacted depends, among other things, on their ability to pass costs on 
to consumers of agricultural products. This may, in turn, be affected 
by Federal government agricultural policy. FRA specifically requests 
comments on this issue.
2. Transferring Current PIH Tank Cars to Other Services
    A second impact from this proposed rulemaking is the cost for 
transferring the current PIH tank car fleet into service for other 
products. This cost would only be incurred for those PIH tank cars that 
still have a useful life left. DOT has estimated a cost of $2,500 per 
PIH tank car for this impact. This cost would only be incurred to the 
extent that such an investment is believed to yield a positive return 
to the investor. As noted above, very few, if any, PIH material 
shippers are considered to be small entities. Thus, DOT does not

[[Page 17857]]

believe that a substantial number of PIH material shippers would be 
impacted, nor by a significant economic amount.
3. Maintenance, Inspections, and Training Related to the New PIH Tank 
Cars
    Another proposed requirement that could impact small entities is 
the maintenance, inspection, and training costs related to the new PIH 
tank cars. This impact will be borne by the shippers. This impact would 
be temporary and would occur as the first new PIH tank cars are placed 
into service because DOT expects that initially it may be necessary to 
inspect the new tank cars more often than conventional tank cars to 
ensure conformance with the enhanced performance standards.
4. Fuel Cost: Impact of the Additional Weight in New PIH Tank Cars
    One of the impacts from this proposed regulation would be an 
increased fuel usage by trains resulting from the additional 23,000 lbs 
that the new PIH tank cars will carry due to the enhanced 
crashworthiness features. (This increased fuel cost would also be 
incurred under the new AAR PIH tank car standard.) Initially, this is a 
cost that would be borne by the railroads. However, the railroads would 
likely pass much of that cost on to the PIH material shippers through 
higher shipping rates. This cost would in turn be passed on to the end 
users, depending on the product's price elasticity of demand, and the 
factors noted in the ``Additional Cost for Enhanced PIH Tank Cars'' 
section above. Thus, this impact should not affect any of the small 
railroads. Any shippers that qualify as a small entity will most likely 
pass the cost on to an end user. Small farms and governmental 
jurisdictions of small communities are end users of PIH materials. They 
could potentially be impacted by this cost. However, the cost would be 
reflected in the shipping rates of these materials. The shipping rates 
of these products should also decrease or stop increasing due to the 
insurance costs related to the PIH materials. This is because the 
proposed enhanced features for the future PIH tank cars would serve to 
reduce the likelihood of a PIH material release. Therefore, the risk of 
an accident or derailment occurring where a PIH tank car is ruptured 
and releases its contents would have decreased, and therefore serve to 
lower the insurance costs associated with the shipment of these 
materials.
5. Cost of Restricting Traffic Speed to 50 mph
    One of the proposed requirements of this rulemaking is that PIH 
tank cars be limited to speeds of 50 mph on signaled territory or 
track. This requirement is not expected to impact any small railroads, 
because none of them travel at speeds greater than 50 mph.
6. Increased Traffic/Volume of PIH Tank Cars
    Due to several of the proposed requirements in this rulemaking, it 
is anticipated that the actual volume of PIH tank car traffic would 
increase. In general, this could affect railroads. However, most small 
railroads transport PIH tank cars from the manufacturing facility to 
the connection point with the Class I railroad. The traffic of these 
types of shipments, for the short time they are handled by small 
railroads, is not expected to impact these railroads. The number of 
cars will be few at that point, and small railroads usually only run 
one or two trains a day.
7. Cost of Restricting Speed to 30 mph in Dark Territory
    In proposed Sec.  174.86(c), PIH tank cars that do not meet the new 
performance requirements would not be allowed to travel at speeds in 
excess of 30 mph when that tank car travels in non-signaled territory. 
Railroads could exceed the 30 mph limit, provided equivalent safety 
criteria are met. This proposed requirement should not impact small 
railroads since most do not operate at speeds greater than 30 mph. This 
proposed requirement could serve to delay deliveries for PIH material 
shippers and contribute to higher shipping rates. However, DOT does not 
believe that there are any small PIH material shippers. DOT would 
encourage any entities that do meet these criteria and would be 
negatively impacted to provide comment to this rulemaking. Governmental 
jurisdictions of small communities that own a water system that uses 
chlorine could be impacted. Most chlorine that is transported to these 
facilities is transported to the end destination via a truck in 1-ton 
tanks. This requirement will serve to slow down some rail traffic and 
increase the cost to ship via rail. Therefore, small farms that use 
anhydrous ammonia as a fertilizer could also be impacted.
V. Identification of Relevant Duplicative, Overlapping, or Conflicting 
Federal Rules
    There are no Federal rules that would duplicate, overlap, or 
conflict with this proposed rule.
VI. Alternatives Considered
    DOT has identified no significant alternative to the proposed rule 
which satisfies the mandate of SAFETEA-LU, related provisions of the 
Federal hazmat law, or meets the agency's objective in promulgating 
this rule, and that would minimize the economic impact of the proposed 
rule on small entities. As in all aspects of this IRFA, DOT requests 
comments on this finding of no significant alternative related to small 
entities.
    The process by which this proposed rule was developed provided 
outreach to small entities. DOT held three public meetings (May 31-June 
1, 2006, December 14, 2006, and March 30, 2007).\66\ At each of the 
public meetings, DOT sought comment and input from small entities on 
issues related to the safe transportation of hazardous materials by 
railroad tank car and how the proposed concepts would impact small 
entities, as well as potential alternatives that might mitigate such 
impacts. Subsequent to publication of this notice of proposed 
rulemaking, DOT expects to hold additional public meetings to discuss 
all aspects of the proposed rule, including its potential impact on 
small entities, and DOT encourages the active participation of any 
small entity potentially affected.
---------------------------------------------------------------------------

    \66\ See 71 FR 30019, 71 FR 67015, 72 FR 12259.
---------------------------------------------------------------------------

F. Paperwork Reduction Act

    This proposed rule may result in an increase in the information 
collection and recordkeeping burden due to the enhanced performance 
standards and operational restrictions for railroad tank cars that 
transport PIH materials. PHMSA currently has an approved information 
collection under OMB Control Number 2137-0559, ``(Rail Carriers and 
Tank Car Tanks Requirements) Requirements for Rail Tank Car Tanks--
Transportation of Hazardous Materials by Rail,'' with 2,689 annual 
burden hours and an expiration date of May 31, 2008.
    Pursuant to 5 CFR 1320.8(d), PHMSA is required to provide 
interested members of the public and affected agencies with an 
opportunity to comment on information collection and recordkeeping 
requests. This notice identifies a revised information collection 
request that PHMSA will submit to the Office of Management and Budget 
(OMB) for approval based on the requirements in this proposed rule.
    PHMSA has developed burden estimates to reflect proposals in this 
NPRM. PHMSA estimates that the proposals in this rulemaking will result

[[Page 17858]]

in approximately 2,255 additional burden hours and $67,650.00 
additional burden costs. PHMSA estimates that the total information 
collection and recordkeeping burdens for OMB Control Number 2137-0559, 
``(Rail Carriers and Tank Car Tank Requirements) Requirements for Rail 
Tank Car Tanks-Transportation of Hazardous Materials by Rail,'' would 
be as follows:
    Total Annual Number of Respondents: 400.
    Total Annual Responses: 16,781.
    Total Annual Burden Hours: 4,944.
    Total Annual Burden Cost: $170,236.25.
    Requests for a copy of the information collection should be 
directed to Deborah Boothe or T. Glenn Foster, U.S. Department of 
Transportation, Office of Hazardous Materials Standards (PHH-11), 
Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey 
Avenue, SE., East Building, 2nd Floor, Washington, DC 20590-0001, 
Telephone (202) 366-8553.
    All comments should be addressed to the Dockets Unit as identified 
in the ADDRESSES section of this rulemaking, and received prior to the 
close of the comment period identified in the DATES section of this 
rulemaking. In addition, you may submit comments specifically related 
to the information collection burden to the PHMSA Desk Officer, OMB, at 
fax number 202-395-6974. Under the Paperwork Reduction Act of 1995, no 
person is required to respond to an information collection unless it 
displays a valid OMB control number. If these proposed requirements are 
adopted in a final rule with any revisions, we will resubmit any 
revised information collection and recordkeeping requirements to OMB 
for re-approval.
    We specifically request comments on the information collection and 
recordkeeping burden associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.

G. Regulation Identifier Number (RIN)

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN number contained in the heading of this document can be used to 
cross-reference this action with the Unified Agenda.

H. Unfunded Mandates Reform Act

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $120,700,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector.
    The proposed rule may result in the expenditure of more than 
$120,700,000 (adjusted annually for inflation) by the public sector in 
any one year. The analytical requirements under Executive Order 12866 
are similar to the analytical requirements under the Unfunded Mandates 
Reform Act of 1995, and, thus, the same analysis complies with both 
analytical requirements.

I. Environmental Assessment

1. Background
    The National Environmental Policy Act, 42 U.S.C. 4321-4375, 
requires that federal agencies analyze proposed actions to determine 
whether the action will have a significant impact on the human 
environment. The Council on Environmental Quality (CEQ) regulations 
order federal agencies to conduct an environmental review considering: 
(1) The need for the proposed action, (2) alternatives to the proposed 
action, (3) probable environmental impacts of the proposed action and 
the alternatives, and (4) the agencies and persons consulted during the 
consideration process. 40 CFR 1508.9(b). We are proposing regulations 
to enhance the safety of the transportation by rail of certain 
hazardous materials. We developed this assessment to determine the 
effects of this proposed rule on the environment and whether a more 
comprehensive environmental impact statement may be required.
2. Purpose and Need
    Hazardous materials are transported by aircraft, vessel, rail, 
pipeline, and highway. The need for hazardous materials to support 
essential services means that the transportation of hazardous materials 
is unavoidable. However, these shipments frequently move through 
heavily-populated or environmentally-sensitive areas where the 
consequences of an incident could be loss of life, serious injury, or 
significant environmental damage. To address the safety and 
environmental risks associated with the transportation of hazardous 
materials by rail, rail tank cars must conform to rigorous design, 
manufacturing, and requalification requirements. The result is that 
tank cars are robust packagings, equipped with features such as shelf 
couplers, head shields, thermal insulation, and bottom discontinuity 
protection that are designed to ensure that a tank car involved in an 
accident will survive the accident intact.
    In the last several years, however, there have been a number of 
rail tank car accidents in which the tank car was breached and product 
was lost on the ground or into the atmosphere. Of particular concern 
have been accidents involving PIH materials. The purpose of this NPRM 
is to adopt regulations to enhance the safety of transporting PIH 
materials by tank car. A primary safety concern is the prevention of a 
catastrophic release in proximity to populated areas, including urban 
areas and events or venues with large numbers of people in attendance. 
Also of major concern is the release of PIH materials in proximity to 
iconic buildings, landmarks, or environmentally-sensitive areas. Such a 
catastrophic event could be the result of an accident--such as the 
January 18, 2002 derailment near Minot, North Dakota, that resulted in 
the derailment of 31 cars of a 112-car train. Approximately 146,700 
gallons of anhydrous ammonia were immediately released from five cars 
in the train set. As a result, a toxic vapor plume covered the 
derailment site and the surrounding area. As of March 15, 2004, over $8 
million had been spent on environmental remediation from this one 
incident.
3. Alternatives Considered
    The goal of this proposed rule is to enhance the safety of 
transporting PIH materials by rail. In developing this proposed rule, 
we considered three alternatives:
    Alternative 1: Do nothing.
    This alternative continues the status quo. In this alternative, we 
would not issue a proposed rule to enhance the accident survivability 
of tank cars (i.e., limiting the operating conditions of the tank cars 
transporting PIH materials and enhancing the tank-head and shell

[[Page 17859]]

puncture-resistance systems), which represents the most efficient and 
cost-effective method of improving the accident survivability of these 
cars.
    This is not an acceptable alternative. The transportation of PIH 
materials poses unique and significant safety threats that warrant 
careful consideration of measures to address safety vulnerabilities in 
existing authorized packagings. The January 6, 2005 derailment and 
release of chlorine in Graniteville, South Carolina, is an example of 
the serious consequences that can result from the unintentional release 
of a PIH material. Selection of this alternative could have a negative 
impact on the environment because it does not reduce safety 
vulnerabilities related to the transportation of PIH materials.
    Alternative 2: Impose enhanced safety requirements for a limited 
list of PIH materials transported by rail.
    Under this alternative, we would propose enhanced tank-head and 
shell-puncture resistance standards for tank cars used to transport a 
subset of PIH materials that pose the most significant safety risks, 
such as chlorine, but not for tank cars used to transport less 
hazardous materials, such as bromine or acrolein.
    The HMR define hazardous materials by class. Any material, 
including a mixture or solution, that meets the definition of one of 
the nine defined hazard classes is considered a hazardous material and 
subject to the applicable regulatory requirements. This ensures that 
the regulations comprehensively address the hazards posed by many 
different types and formulations of materials. Employing this 
rationale, we determined that, for the purposes of this rulemaking, we 
would similarly address PIH materials as a class. Moreover, while some 
PIH materials may not pose as great a threat to the public or the 
environment as other PIH materials, it is in the public's best interest 
for all PIH materials to be transported in the safest manner possible. 
Nonetheless, selection of this alternative could have a positive impact 
on the environment because it would reduce safety vulnerabilities 
related to the transportation of certain PIH materials.
    Alternative 3: Impose enhanced safety requirements for all PIH 
materials transported by rail.
    Under this alternative, we would propose enhanced tank-head and 
shell-puncture resistance standards for tank cars used to transport all 
materials meeting the definition of a PIH material. This approach is 
consistent with the overall regulatory philosophy underlying the HMR in 
that it addresses the safety risks posed by all materials classed as 
PIH materials. This alternative represents the most efficient and cost-
effective method of improving the accident survivability of tank cars 
transporting PIH materials. This alternative should have a positive 
impact on the environment because it would enhance the accident 
survivability of all rail tank cars used to transport PIHmaterials, 
thereby minimizing the possibility that PIH materials would be 
released.
4. Analysis of Environmental Impacts
    The potential for environmental damage or contamination exists when 
packages of hazardous materials are involved in transportation 
accidents. The ecosystems that could be affected by a hazardous 
materials release during transportation include air, water, soil, and 
ecological resources (i.e.,wildlife habitats). The adverse 
environmental impacts associated with releases of most hazardous 
materials are short-term impacts that can be greatly reduced or 
eliminated through prompt clean-up of the accident scene.
    Releases of PIH materials, such as chlorine and anhydrous ammonia, 
may result in serious health effects. High concentrations of ammonia 
(greater than 1,700 parts per million (ppm)) in the atmosphere cause 
compulsive coughing and death, while lower concentrations (lower than 
700 ppm) cause eye and throat irritation. Ammonia is lighter than air 
so that it dissipates into the atmosphere, the rate of dissipation 
depending on the weather. Chlorine gas is more than twice as heavy as 
air. Therefore, it can settle in low lying areas in the absence of 
wind. Humans detect the presence of chlorine at concentrations as low 
as 1 to 3 ppm. At 30 ppm, coughing and pain result; at 430 ppm death 
results in as little as 30 minutes. Higher concentrations of chlorine 
can cause rapid fatality. Chlorine gas reacts with water in the air to 
form vapors of hydrochloric acid and liberate nascent oxygen, both of 
which cause massive tissue damage.
    Releases of PIH materials may also result in adverse environmental 
impacts to soil and ground water. For example, when anhydrous ammonia 
is released into water, it floats on the surface, rapidly dissolving 
into the water as ammonium hydroxide while simultaneously boiling into 
the atmosphere as gaseous ammonia. In an aquatic or wetland 
environment, ammonium hydroxide can cause fish, planktonic, and benthic 
organism mortality in the vicinity of the release--the size depending 
on the volume of anhydrous ammonia that is released. The chemical can 
also strip protective oils from the feathers of shore birds, causing 
drowning or infection. Such die offs could spur high nutrient levels 
that could stimulate noxious blooms of algae. Terrestrial vegetation 
can also be either damaged or killed, depending on atmospheric 
concentrations.
    Similarly, in an aquatic environment, chlorine gas reacts with 
water to form hypochlorous acid and hydrochloric acid. The breakdown of 
hydrochloric acid causes a decrease in the pH of the water, making it 
more acidic. These changes in water chemistry can cause widespread 
damage to aquatic environments, including fish kills. If chlorine gas 
is released into soil, chlorine will react with moisture, forming 
hypochlorous acid and hydrochloric acid, which can contaminate ground 
water.
    If adopted, we expect that the tank car performance standards and 
operating limitations will minimize the loss of lading in the event of 
a derailment or train-to-train collision. Therefore, we have 
preliminarily determined that there are no significant adverse 
environmental impacts associated with the proposals in this NPRM and 
that to the extent there might be any environmental impacts, they would 
be beneficial given the reduced likelihood of a hazardous materials 
release.
5. Locomotive Emissions
    The U.S. Environmental Protection Agency (EPA) finalized locomotive 
emissions standards in 1997, which became effective in 2000.\67\ Three 
separate sets of emission standards were established, with 
applicability of the standards dependent on the date a locomotive is 
first manufactured. The first set of standards (Tier 0) apply to 
locomotives and locomotive engines originally manufactured from 1973 
through 2001, at any time they are remanufactured. The second set of 
standards (Tier 1) apply to locomotives and locomotive engines 
originally manufactured from 2002 through 2004. The final, and most 
stringent, set of standards (Tier 2) apply to locomotives and 
locomotive engines manufactured in or after 2005. Tier 2 locomotives 
and locomotive engines will be required to meet the applicable 
standards at the time of original manufacture and at each subsequent 
manufacture.
---------------------------------------------------------------------------

    \67\ 40 CFR 92.8.
---------------------------------------------------------------------------

    As noted in the RIA to this NPRM, we expect the speed restrictions 
proposed in this rule to produce a net cost savings in the area of 
fuel. Accordingly, the use of less fuel, combined with the

[[Page 17860]]

increasingly stringent locomotive emissions standards of the EPA will 
further reduce the emissions from railroad freight transportation for 
movements subject to the requirements of this proposal.
6. Consultations and Public Comment
    As of March 2007, FRA and PHMSA have conducted three public 
meetings intended to solicit public, private, and government comments 
on alternatives (regulatory or otherwise) to address this serious 
issue. We invite commenters to address the possible beneficial and/or 
adverse environmental impacts of the proposals in this NPRM. We will 
consider comments received in response to this NPRM in our assessment 
of the environmental impacts of a final rule on this issue.

J. Privacy Act

    Anyone is able to search the electronic form of any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or at 
http://www.dot.gov/privacy.html.

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

49 CFR Part 174

    Hazardous materials transportation, Radioactive materials, Rail 
carriers, Railroad safety, Reporting and recordkeeping requirements.

49 CFR Part 179

    Hazardous materials transportation, Railroad safety, Reporting and 
recordkeeping requirements.

The Proposed Rule

    On the basis of the foregoing, PHMSA proposes to amend title 49, 
Chapter I, Subchapter C, as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

    1. The authority citation for part 171 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

    2. In Sec.  171.7, in paragraph (a)(3), in the Table of Material 
Incorporated by Reference, under the entry ``Association of American 
Railroads,'' add the entry ``AAR Standard S-286-2002, Specification for 
286,000 lbs. Gross Rail Load Cars for Free/Unrestricted Interchange 
Service, revised as of September 1, 2005,'' to read as follows:


Sec.  171.7  Reference material.

    (a) * * *
    (3) Table of material incorporated by reference. * * *

------------------------------------------------------------------------
           Source and name of material                49 CFR reference
------------------------------------------------------------------------
 
                              * * * * * * *
Association of American Railroads
 
                              * * * * * * *
    AAR Standard S-286-2002, Specification for     179.13
     286,000 lbs. Gross Rail Load Cars for Free/
     Unrestricted Interchange Service, revised as
     of September 1, 2005.
 
                              * * * * * * *
------------------------------------------------------------------------

* * * * *

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

    3. The authority citation for part 173 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
    4. Amend Sec.  173.31 as follows:
    a. Revise paragraphs (a)(6) and (b)(3);
    b. Revise paragraph (b)(6) introductory text;
    c. Add paragraphs (b)(7) and (b)(8); and
    d. Revise paragraph (e)(2)(ii).
    The revisions and additions read as follows:


Sec.  173.31  Use of Tank Cars.

    (a) * * *
    (6) Unless otherwise specifically provided in this part:
    (i) When the tank car delimiter is an ``A,'' offerors may also use 
tank cars with a delimiter ``S,'' ``J,'' ``M,'' ``N'' or ``T.''
    (ii) When the tank car delimiter is an ``S,'' offerors may also use 
tank cars with a delimiter ``J,'' ``M,'' ``N'' or ``T.''
    (iii) When the tank car delimiter is a ``T,'' offerors may also use 
tank cars with a delimiter of ``J'' or ``N.''
    (iv) When the tank car delimiter is a ``J,'' offerors may also use 
tank cars with a delimiter of ``N.''
    (v) When a tank car delimiter is an ``M,'' offerors may also use 
tank cars with delimiter of ``N.''
    (vi) When a tank car delimiter is an ``N,'' offerors may not use a 
tank car with any other delimiter.
* * * * *
    (b) * * *
    (3) Tank-head puncture-resistance requirements. (i) Tank cars used 
to transport a Class 2 material, other than a material poisonous by 
inhalation, and tank cars constructed from aluminum or nickel plate 
used to transport any hazardous material must have a tank-head 
puncture-resistance system that conforms to the requirements of Sec.  
179.16(a) of this subchapter.
    (ii) Tank cars used to transport material poisonous by inhalation 
must have a tank-head puncture-resistance system that conforms to the 
requirements of Sec.  179.16(b) of this subchapter, as follows:
    (A) Tank cars built after [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE 
OF FINAL RULE] must have a tank-head puncture-resistance system 
conforming to the requirements of Sec.  179.16(b) of this subchapter.
    (B) Tank cars built on or before [INSERT DATE 2 YEARS AFTER 
EFFECTIVE DATE OF FINAL RULE] must have a tank-head puncture-resistance 
system conforming to the

[[Page 17861]]

requirements of Sec.  179.16(b) by [INSERT DATE 8 YEARS AFTER EFFECTIVE 
DATE OF FINAL RULE].
* * * * *
    (6) Scheduling of modifications and progress reporting. The date of 
conformance for the continued use of tank cars subject to paragraphs 
(b)(4), (b)(5), and (f) of this section and Sec.  173.314(j) is subject 
to the following conditions and limitations.
* * * * *
    (7) Tank shell puncture-resistance system. Tank cars used to 
transport material poisonous by inhalation must have a tank shell 
puncture-resistance system that conforms to the requirements of Sec.  
179.24 of this subchapter, as follows:
    (i) Tank cars built after [INSERT DATE 2 YEARS AFTER EFFECTIVE DATE 
OF FINAL RULE] must have a tank shell puncture-resistance system 
conforming to the requirements of Sec.  179.24 of this subchapter.
    (ii) Tank cars built on or before [INSERT DATE 2 YEARS AFTER 
EFFECTIVE DATE OF FINAL RULE] must have a tank shell puncture-
resistance system conforming to the requirements of Sec.  179.24 by 
[INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
    (8) Tank-head and shell puncture-resistance systems implementation 
schedule and reporting requirement. Each owner of a tank car subject to 
paragraphs (b)(3)(ii) and (b)(7) of this section must comply with the 
following implementation schedule and reporting requirements:
    (i) No later than [INSERT DATE 5 YEARS FROM THE EFFECTIVE DATE OF 
THE FINAL RULE], each owner must have brought at least 50 percent of 
its tank car fleet used to transport material poisonous by inhalation 
into compliance with the requirements of Sec. Sec.  179.16(b) and 
179.24 of this subchapter.
    (ii) After [INSERT DATE 5 YEARS AFTER EFFECTIVE DATE OF FINAL 
RULE], tank cars manufactured using non-normalized steel for head or 
shell construction may not be used for the transportation of material 
poisonous by inhalation.
    (iii) No later than [INSERT DATE 5 YEARS AND TWO MONTHS FROM THE 
EFFECTIVE DATE OF FINAL RULE], each tank car owner must submit to the 
Federal Railroad Administration, Hazardous Materials Division, Office 
of Safety Assurance and Compliance, 1200 New Jersey Avenue, SE., 
Washington, DC, 20590, a progress report that shows the total number of 
in-service tank cars subject to paragraphs (b)(3)(ii) and (b)(7) of 
this section and of those tank cars, the number of cars in compliance 
with Sec. Sec.  179.16(b) and 179.24 of this subchapter. In this 
report, the tank car owner must also certify that its fleet does not 
include any tank car subject to paragraph (b)(8)(ii).
* * * * *
    (e) * * *
    (2) * * *
    (ii) Tank-head and shell puncture-resistance systems. As provided 
in paragraphs (b)(3)(ii) and (b)(7) of this section, each tank car 
transporting a material poisonous by inhalation must meet the tank-head 
and shell puncture-resistance system requirements of Sec. Sec.  
179.16(b) and 179.24 of this subchapter. Except as provided in 
paragraph (b)(8) of this section, a tank car that does not conform to 
these requirements may not be used to transport any material poisonous 
by inhalation after [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL 
RULE].
* * * * *
    5. Amend Sec.  173.249 as follows:
    a. Revise the last sentence of paragraph (a); and
    b. Add new paragraph (g).
    The revisions and additions read as follows:


Sec.  173.249  Bromine.

    (a) * * * Tank cars must conform to the requirements in paragraphs 
(a) through (g) of this section.
* * * * *
    (g) Except as provided in Sec.  173.31(b)(8), for shipments offered 
for transportation or transported after [INSERT DATE 8 YEARS AFTER 
EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-head 
and shell puncture-resistance system requirements of Sec. Sec.  
179.16(b) and 179.24 of this subchapter.
    6. In Sec.  173.314, revise paragraph (k) to read as follows:


Sec.  173.314  Compressed gases in tank cars and multi-unit tank cars.

* * * * *
    (k) Special requirements for chlorine. (1) Tank cars built after 
September 30, 1991, and before [INSERT 2 YEARS AFTER EFFECTIVE DATE OF 
THE FINAL RULE] must have an insulation system consisting of 5.08 cm (2 
inches) glass fiber placed over 5.08 (2 inches) of ceramic fiber. Tank 
cars built after [INSERT 2 YEARS AFTER EFFECTIVE DATE OF THE FINAL 
RULE] must have a thermal protection system conforming to Sec.  179.18 
of this subchapter, or have an insulation system with an overall 
thermal conductance of no more than 0.613 kilojoules per hour, per 
square meter, per degree Celsius temperature differential (0.03 B.t.u. 
per square foot, per hour per degree Fahrenheit temperature 
differential).
    (2) Tank cars must have excess flow valves on the interior pipes of 
liquid discharge valves.
    (3) Tank cars constructed to a DOT 105A500W specification may be 
marked as a DOT 105A300W specification with the size and type of 
reclosing pressure relief valves required by the marked specification.
    (4) Except as provided in Sec.  173.31(b)(8), for shipments offered 
for transportation or transported after [INSERT DATE 8 YEARS AFTER 
EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-head 
and shell puncture-resistance system requirements of Sec. Sec.  
179.16(b) and 179.24 of this subchapter.
* * * * *
    7. In Sec.  173.323, revise paragraph (c)(1) to read as follows.


Sec.  173.323  Ethylene Oxide.

* * * * *
    (c) * * *
    (1) Tank cars. Class DOT 105 tank cars:
    (i) Each tank car must have a tank test pressure of at least 20.7 
Bar (300 psig); and
    (ii) Except as provided in Sec.  173.31(b)(8), for shipments 
offered for transportation or transported after [INSERT DATE 8 YEARS 
AFTER EFFECTIVE DATE OF FINAL RULE], each tank car must meet the tank-
head and shell puncture-resistance system requirements of Sec. Sec.  
179.16(b) and 179.24 of this subchapter.
* * * * *

PART 174--CARRIAGE BY RAIL

    8. The authority citation for part 174 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53

    9. Add new Sec.  174.2 to read as follows:


Sec.  174.2  Limitation on actions by states, local governments, and 
Indian tribes.

    Sections 5125 and 20106 of Title 49, United States Code, limit the 
authority of states, political subdivisions of states, and Indian 
tribes to impose requirements on the transportation of hazardous 
materials in commerce. A state, local, or Indian tribe requirement on 
the transportation of hazardous materials by rail may be preempted 
under either 49 U.S.C. 5125 or 20106, or both.
    (a) Section 171.1(f) of this subchapter describes the circumstances 
under which 49 U.S.C. 5125 preempts a

[[Page 17862]]

requirement of a state, political subdivision of a state, or Indian 
tribe.
    (b) Under the Federal Railroad Safety Act (49 U.S.C. 20106), 
administered by the Federal Railroad Administration (see 49 CFR parts 
200-268), laws, regulations and orders related to railroad safety, 
including security, shall be nationally uniform to the extent 
practicable. A state may adopt, or continue in force, a law, 
regulation, or order covering the same subject matter as a DOT 
regulation or order applicable to railroad safety and security 
(including the requirements in this subpart) only when an additional or 
more stringent state law, regulation, or order is necessary to 
eliminate or reduce an essentially local safety or security hazard; is 
not incompatible with a law, regulation, or order of the United States 
Government; and does not unreasonably burden interstate commerce.
    10. Revise Sec.  174.86 to read as follows:


Sec.  174.86  Maximum allowable operating speed.

    (a) For molten metals and molten glass shipped in packagings other 
than those prescribed in Sec.  173.247 of this subchapter, the maximum 
allowable operating speed may not exceed 24 km/hour (15 mph) for 
shipments by rail.
    (b) For trains transporting tank cars containing a material 
poisonous by inhalation, the maximum allowable operating speed may not 
exceed 80.5 km/hour (50 mph) for shipments by rail.
    (c) (1) Prior to [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL 
RULE], if a tank car that does not meet the tank-head and shell 
puncture-resistance system requirements of Sec.  179.16(b) and Sec.  
179.24 of this subchapter is used to transport by rail a material 
poisonous by inhalation, the maximum allowable operating speed of the 
train may not exceed 48.3 km/hour (30 mph) for that tank car when 
transported over non-signaled territory. For purposes of this section, 
non-signaled territory means a rail line not equipped with a traffic 
control system or automatic block signal system that conforms to the 
requirements in part 236 of this chapter.
    (2) As an alternative to complying with paragraph (c)(1) of this 
section, a railroad may provide for alternative risk mitigations and 
complete a risk assessment that includes appropriate data and analysis 
establishing that the operating conditions over the subject trackage 
provide at least an equivalent level of safety as a traffic control 
system that conforms to the requirements in part 236 of this chapter, 
including consideration of the contribution of the traffic control 
system to broken rail detection, provided:
    (i) The risk assessment is submitted to FRA's Associate 
Administrator for Safety, for review; and
    (ii) The Associate Administrator determines in writing that the 
risk assessment establishes that the requirement of paragraph (c)(2) is 
met.

PART 179--SPECIFICATIONS FOR TANK CARS.

    11. The authority citation for part 179 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR part 1.53.

    12. Add a new Sec.  179.8 to read as follows:


Sec.  179.8  Limitation on actions by states, local governments, and 
Indian tribes.

    Sections 5125 and 20106 of Title 49, United States Code, limit the 
authority of states, political subdivisions of states, and Indian 
tribes to impose requirements on the transportation of hazardous 
materials in commerce. A state, local, or Indian tribe requirement on 
the transportation of hazardous materials by rail may be preempted 
under either 49 U.S.C. 5125 or 20106, or both.
    (a) Section 171.1(f) of this subchapter describes the circumstances 
under which 49 U.S.C. 5125 preempts a requirement of a state, political 
subdivision of a state, or Indian tribe.
    (b) Under the Federal Railroad Safety Act (49 U.S.C. 20106), 
administered by the Federal Railroad Administration (see 49 CFR parts 
200-268), laws, regulations and orders related to railroad safety, 
including security, shall be nationally uniform to the extent 
practicable. A state may adopt, or continue in force, a law, 
regulation, or order covering the same subject matter as a DOT 
regulation or order applicable to railroad safety and security 
(including the requirements in this subpart) only when an additional or 
more stringent state law, regulation, or order is necessary to 
eliminate or reduce an essentially local safety or security hazard; is 
not incompatible with a law, regulation, or order of the United States 
Government; and does not unreasonably burden interstate commerce.
    13. Revise Sec.  179.13 to read as follows:


Sec.  179.13  Tank car capacity and gross weight limitation.

    (a) Except as provided in paragraph (b) of this section, tank cars 
built after November 30, 1970, may not exceed 34,500 gallons (130,597 
L) capacity or 263,000 pounds gross weight on rail. Existing tank cars 
may not be converted to exceed 34,500 gallons capacity or 263,000 
pounds gross weight on rail.
    (b) Tank cars meeting the tank-head and shell puncture-resistance 
requirements of Sec.  179.16(b) and Sec.  179.24 of this subchapter, 
may not exceed 34,500 gallons (130,597 L) capacity or 286,000 pounds 
(129,727 kg) gross weight on rail. Tank cars exceeding 263,000 pounds 
and up to 286,000 pounds gross weight on rail must meet the 
requirements of AAR Standard S-286-2002, SPECIFICATION FOR 286,000 LBS. 
GROSS RAIL LOAD CARS FOR FREE/UNRESTRICTED INTERCHANGE SERVICE (adopted 
November, 2002 and revised September 1, 2005) (IBR; see Sec.  171.7 of 
this subchapter).
    14. Revise Sec.  179.16 to read as follows:


Sec.  179.16  Tank-head puncture-resistance systems.

    When the regulations in this subchapter require a tank-head 
puncture-resistance system, the system must meet the following 
requirements:
    (a) Performance standard for tank cars transporting a hazardous 
material other than a material poisonous by inhalation. (1) For rail 
tank cars required to have tank-head puncture-resistance systems 
pursuant to Sec.  173.31(b)(3)(i) of this subchapter, the tank-head 
puncture-resistance system must be capable of sustaining, without any 
loss of lading, coupler-to tank-head impacts at relative car speeds of 
29 km/hour (18 mph) when:
    (i) The weight of the impact car is at least 119,295 kg (263,000 
pounds);
    (ii) The impacted tank car is coupled to one or more backup cars 
that have a total weight of at least 217,724 kg (480,000 pounds) and 
the hand brake is applied on the last ``backup'' car; and
    (iii) The impacted tank car is pressurized to at least 6.9 Bar (100 
psig).
    (2) Compliance with the requirements of paragraph (a)(1) of this 
section must be verified by full-scale testing according to appendix A 
of this part.
    (3) As an alternative to requirements prescribed in paragraph 
(a)(2) of this section, compliance with the requirements of paragraph 
(a)(1) of this section may be met by installing full-head protection 
(shields) or full tank-head jackets on each end of the tank car 
conforming to the following:
    (i) The full-head protection (shields) or full tank-head jackets 
must be at least 1.27 cm (0.5 inch) thick, shaped to the contour of the 
tank head and made from steel having a tensile strength greater than 
379.21 N/mm\2\ (55,000 psi);
    (ii) The design and test requirements of the full-head protection 
(shields) or full tank-head jackets must meet the

[[Page 17863]]

impact test requirements in Section 5.3 of the AAR Specifications for 
Tank Cars (IBR, see Sec.  171.7 of this subchapter); and
    (iii) The workmanship must meet the requirements in Section C, Part 
II, Chapter 5, of the AAR Specifications for Design, Fabrication, and 
Construction of Freight Cars (IBR, see Sec.  171.7 of this subchapter).
    (b) Performance standard for tank cars transporting material 
poisonous by inhalation. For rail tank cars required to have a tank-
head puncture-resistance system pursuant to Sec.  173.31(b)(3)(ii) of 
this subchapter, the tank-head puncture-resistance system must be 
capable of sustaining an impact at 48.3 km/hour (30 mph) without loss 
of lading, as demonstrated by any of the methods of compliance 
specified in Appendix C of this part.
    15. In Sec.  179.22, add paragraphs (e) and (f) to read as follows:


Sec.  179.22  Marking.

* * * * *
    (e) Each tank car conforming to the tank-head puncture-resistance 
system requirements prescribed in Sec.  179.16(b) and the shell 
puncture-resistance system requirements prescribed in Sec.  179.24, but 
with no thermal protection system, must have the letter ``M'' 
substituted for the letter ``A'' or ``S'' in the specification marking.
    (f) Each tank car conforming to the tank-head puncture-resistance 
system requirements prescribed in Sec.  179.16(b), the shell puncture-
resistance system requirements prescribed in Sec.  179.24, and with a 
thermal protection system, must have the letter ``N'' substituted for 
the letter ``A,'' ``J,'' ``M,'' ``S,'' or ``T'' in the specification 
marking.
    16. Add a new Sec.  179.24 to read as follows:


Sec.  179.24  Tank shell puncture-resistance systems; performance 
standard.

    When the regulations in this subchapter require a tank shell 
puncture-resistance system, the tank shell puncture-resistance system 
must be capable of sustaining an impact at 40.3 km/hour (25 mph) 
without loss of lading, as demonstrated by any of the methods of 
compliance specified in Appendix C of this part.
    17. In Sec.  179.102-17, add a new paragraph (m) to read as 
follows:


Sec.  179.102-17  Hydrogen chloride, refrigerated liquid.

* * * * *
    (m) Except as provided in Sec.  173.31(b)(8) of this subchapter, 
each tank car must meet the tank-head and shell puncture-resistance 
system requirements of Sec. Sec.  179.16(b) and 179.24 of this 
subchapter by [INSERT DATE 8 YEARS AFTER EFFECTIVE DATE OF FINAL RULE].
    18. Add Appendix C to Part 179 to read as follows:

APPENDIX C TO PART 179--PROCEDURES FOR ENHANCED TANK-HEAD AND SHELL 
PUNCTURE-RESISTANCE SYSTEMS TESTS

    This Appendix provides performance criteria for the impact 
evaluation of tank cars designed to carry material poisonous by 
inhalation. Each of the following criteria describes a collision 
scenario in which the integrity of the tank must be maintained. 
These performance criteria are intended to prevent loss of lading 
during train collisions and derailments.
    (a) Tank Heads.
     (1) Objective. The end structures of the tank car must 
withstand a frontal impact with a proxy object which is intended to 
approximate a loaded freight car, including the coupler with the 
knuckle removed. (see figure 1).
    (2) Fixed rigid punch characteristics and orientation. The fixed 
rigid punch must have the following characteristics: It shall 
protrude at least 1.5 meters (60 inches) from its base and it shall 
be 0.5 meters (21 inches) above the lowest edge of the commodity 
tank. The fixed rigid punch must have cross-section of 15.2 
centimeters (6 inches) high by 15.2 centimeters (6 inches) wide, 
with 1.3 centimeter (\1/2\ inch) radii on the edges of the impact 
face.
    (3) Tank car characteristics. The tank car must be filled with 
no more than 10% outage with lading of the same density as the 
commodity the car type is intended to carry, and pressurized to at 
least 100 psi.
    (4) Impact. The end structure of the tank car must withstand a 
48.3 km/hour (30 mph) impact with the fixed rigid punch, resulting 
in the tank maintaining its integrity. At the instant of contact, 
the longitudinal centerline of the punch must be aligned with the 
longitudinal centerline of the tank.
    (5) Result. There must be no loss of lading due to this impact. 
A test is successful if there is no visible leak from the standing 
tank car for at least one hour after the impact.

[[Page 17864]]

[GRAPHIC] [TIFF OMITTED] TP01AP08.357

    (b) Tank Shell.
    (1) Objective. The shell structure of the tank car must 
withstand a side impact with a proxy object which is intended to 
approximate a loaded freight car, including the coupler with the 
knuckle removed (see figure 2).
    (2) Proxy object characteristics and orientation. The proxy 
object must have the following characteristics: 286,000 pound 
minimum weight and rigid punch protruding at least 1.5 meters (60 
inches). The rigid punch must have cross-section of 15.2 centimeters 
(6 inches) high by 15.2 centimeters (6 inches) wide, with 1.3 
centimeter (\1/2\ inch) radii on the edges of the impact face.
    (3) Tank car characteristics. The tank car must be filled with 
no more than 10% outage with lading of the same density as the 
commodity the car type is intended to carry, and pressurized to at 
least 100 psi. The tank car must be restrained in the direction of 
impact.
    (4) Impact. The end structure of the tank car must withstand a 
40.3 km/hour (25 mph) impact with the proxy object resulting in the 
tank maintaining its integrity. At the instant of contact, the 
longitudinal centerline of the punch must be aligned with the 
lateral centerline of the tank.
    (5) Result. There must be no loss of lading due to this impact. 
A test is successful if there is no visible leak from the standing 
tank car for at least one hour after the impact.

[[Page 17865]]

[GRAPHIC] [TIFF OMITTED] TP01AP08.358

    (c) Demonstration of Compliance.--
    Compliance with the tank-head and shell puncture-resistance 
system requirement tests above must be demonstrated by any of the 
methods prescribed in this paragraph, or by a combination of these 
methods. Before a design is implemented based on the methods in (2) 
through (5) below, the party seeking to comply must submit all 
relevant documentation and analysis to FRA and FRA will acknowledge 
in writing that compliance with the requirements has been met.
    (1) Full-scale testing.
    (2) Performance of the test with substructures or models of 
appropriate scale incorporating those features that are significant 
with respect to the item under investigation, when engineering 
experience has shown results of those tests to be suitable for 
design purposes. When a scale model is used, the need for adjusting 
certain test parameters must be taken into account.
    (3) Calculations, computer simulation, or substructure testing 
using reliable and conservative procedures and parameters;
    (4) Reference to a previous satisfactory design of a 
sufficiently similar nature; or
    (5) A combination of any of the methods set forth in paragraphs 
(2) through (4) above.

    Issued in Washington, DC on March 26, 2008, under the authority 
delegated in 49 CFR Part 106.
Theodore L. Willke,
Associate Administrator for Hazardous Materials Safety.

 [FR Doc. E8-6563 Filed 3-31-08; 8:45 am]
BILLING CODE 4910-60-P