33250 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION

Research and Special Programs

Administration

49 CFR Parts 171, 173, 179, and 180

[Docket Nos. HM–175A and HM–201; Amdt.

Nos. 171–137, 173–245, 179–50, and 180–

8]

RIN 2137–AC85

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; Corrections and Response to

Petitions for Reconsideration

AGENCY: Research and Special Programs

Administration (RSPA), DOT.

ACTION: Final rule; corrections and

response to petitions for

reconsideration.

SUMMARY: This final rule revises certain

requirements in the Hazardous

Materials Regulations to improve the

crashworthiness of tank cars and to

increase the probability of detecting

critical tank car defects. In response to

two petitions for reconsideration and

other comments, RSPA is allowing an

analysis using independent

mathematical or computer modeling

procedures to verify compliance with

the thermal protection standard for

certain tank cars. In addition, RSPA is

clarifying the head-puncture resistance

requirements and thermal protection

requirements, and is making other

minor editorial and technical changes

for clarity. The changes made in this

document are intended to ease certain

regulatory requirements where there

will be no adverse effect on safety.

DATES: Effective date: The effective date

of this final rule is July 1, 1996.

Compliance date: Compliance with

the regulations, as amended herein, is

authorized as of June 26, 1996.

FOR FURTHER INFORMATION CONTACT:

James H. Rader (telephone 202-366-

0510), Office of Safety Assurance and

Compliance; or Thomas A. Phemister

(telephone 202-366-0635), Office of

Chief Counsel, Federal Railroad

Administration, 400 Seventh Street

S.W., Washington, D.C., 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

On September 21, 1995, RSPA, with

the assistance of the Federal Railroad

Administration (FRA), published a final

rule under Docket Nos. HM–175A and

HM–201 (60 FR 49048) that addressed

the safe performance of tank cars used

to transport hazardous materials. The

final rule amended the Hazardous

Materials Regulations (HMR) to, among

other changes, expand the use of

thermal protection and head protection

systems on tank cars.

FRA gave presentations providing an

overview of the final rule at numerous

outreach meetings that were attended by

over 750 representatives from trade

associations, rail carriers, shippers, and

manufacturers and repairers of tank

cars. In addition, RSPA received two

petitions for reconsideration of certain

aspects of the final rule. One petition

was filed by The Sulphur Institute (TSI)

and the other was filed jointly by The

Fertilizer Institute (TFI) and CF

Industries, Incorporated (CF). The

Railway Progress Institute (RPI) wrote to

RSPA requesting an editorial correction

in § 173.31(b)(6)(ii) to eliminate the

need for listing each tank car’s reporting

mark and number to FRA for each car

modified, reassigned, retired, or

removed from service. Finally, the

Chemical Manufacturers Association

(CMA), joined later by TFI, petitioned

the United States Court of Appeals to

review the provision in § 173.31(d)(2)

that the discovery of a loose closure on

a tank car would give rise to a

‘‘rebuttable presumption’’ that a proper

inspection had not been performed.

Based on the merits of the comments,

questions and suggestions received and

the petitions, RSPA is revising the final

rule as discussed below. Editorial

corrections and minor revisions based

on suggestions from commenters or

RSPA’s own initiative are discussed in

the summary of regulatory changes by

section.

Because the amendments adopted

herein clarify and relax certain

provisions of the September 21, 1995

final rule, and impose no new

regulatory burden on any person, notice

and public procedure are unnecessary.

For these same reasons, these

amendments are being made effective

on the same effective date of the

September 21, 1995 final rule, without

the usual 30-day delay following

publication.

II. Discussion

Head protection: In § 173.31(b)(3)(ii)

of the final rule, RSPA required fullhead protection for tank cars carrying a

Class 2 material and tank cars

constructed from aluminum or nickel

plate when they are used to transport

hazardous material. Section

173.31(b)(3)(iii) requires full compliance

with this requirement by July 1, 2006.

TSI stated that the preamble discussion

in the final rule indicated that the head

protection applied only to tank cars

used to transport Class 2 materials and

to aluminum and nickel plate tank cars

used to transport any hazardous

material. However, the wording in

paragraph (b)(3)(iii) could imply that all

tank cars must have head protection by

the July 1, 2006 compliance date. TSI

petitioned RSPA to revise the provision.

RSPA agrees with TSI that the

wording in § 173.31(b)(3)(iii) could be

misunderstood. RSPA notes that similar

wording is used in § 173.31(b)(4)(ii),

(e)(2), and (f), which specify the

compliance period for other

requirements adopted in the final rule

relating to thermal protection, tank cars

used to transport certain poisonous-byinhalation (PIH) materials, and

hazardous substances. Therefore, in this

document, RSPA is revising paragraphs

(b)(3)(iii), (b)(4)(ii), (e)(2), and (f)(1) to

clarify that these requirements apply to

only certain tank cars.

One commenter asked RSPA to clarify

the requirements for the head protection

system required in the September 21

final rule. The commenter asked

whether the head on the tank car could

be considered a ‘‘head protection

system’’ if it had adequate thickness.

The commenter requested that § 173.31

be modified to ‘‘clearly state that the

head itself may serve as the tank head

protection system.’’ The commenter also

asked if ‘‘cars with a configuration

essentially equal to the cars tested by

DOT (DOT/FRA/ORD–92/11) be deemed

* * * acceptable without further

testing’’? RSPA and FRA agree that the

heads on a tank car can be considered

a head protection system provided it

met the appropriate performance

criteria; however, RSPA believes placing

this revision in the testing requirements

in Appendix A would be more

appropriate. Therefore, RSPA is

clarifying in Appendix A to Part 179,

paragraph 1, that a tank-head punctureresistance system is a function of head

thickness, jacket thickness, insulation

thickness, or the material of

construction, or a combination of any of

these factors. Further, RSPA and FRA

will accept testing of a specific head

protection design to qualify like designs.

Progress reporting: In a letter dated

October 19, 1995, RPI asked RSPA to

revise § 173.31(b)(6)(ii); RPI asserted

that reporting the mark of each modified

car would be an administrative burden

and stated that what was important was

providing information on the number

and percent of in-service tank cars

modified, reassigned, retired, or

removed to meet the requirement in

§ 173.31(b)(6). RSPA agrees with RPI

and has amended paragraph (b)(6)(ii).

The provision that each owner modify,

reassign, retire, or remove at least 50%
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 33251

of its in-service tank car fleet used to

transport these specified hazardous

materials within the first half of the

compliance period (i.e., by July 1, 2001)

is retained.

Thermal protection: In the final rule,

the thermal protection requirements

formerly found in § 179.105-4(a), (b),

and (c) were moved to new § 179.18. In

§ 179.18, paragraph (a) specifies that

thermal protection, when required, must

be sufficient to prevent a release of the

lading, except through the pressure

relief device, when the tank car is

subjected to (1) a pool fire for 100

minutes, and (2) a torch fire for 30

minutes. The overall thermal

performance of the tank and its cargo is

influenced by the heat capacity and

volatility of the cargo, the flow capacity

of the pressure relief device, the heat

transfer characteristics of the tank, and

the type of thermal protection material

used. Paragraph (b)(1) requires

verification of compliance with this

standard by modeling the fire effects on

the entire surface of the tank car

according to the procedures outlined in

a FRA contract report entitled

‘‘Temperatures, Pressures and Liquid

Levels of Tank Cars Engulfed in Fires,’’

DOT/FRA/OR&D–84/08.11 (1984)

(hereinafter referred to as ‘‘1984 thermal

model’’). Prior to adoption of the final

rule, the regulations did not specify any

particular method to conduct such an

analysis. The final rule also broadened

the thermal protection requirements to

apply to all tank cars used to transport

Class 2 materials, with certain limited

exceptions.

TFI and CF petitioned RSPA to delay

the use of implementation of the

thermal protection standard and

asserted that adoption of the 1984

thermal model violated the

Administrative Procedure Act, 5 U.S.C.

553.

In the preamble to the final rule,

RSPA and FRA discussed in detail the

objections of TFI and others to

extending thermal protection to tank

cars transporting anhydrous ammonia

(and other Division 2.2 materials), and

indicated their agreement with the

views of one commenter who stated that

‘‘there can be little basis for exempting

anhydrous ammonia from the thermal

protection requirements because it is

not likely to catch fire once released. Its

material poisonous by inhalation (PIH)

characteristic remains, and the potential

for rupturing in a non-insulated tank car

is high.’’ (60 FR 49053) RSPA and FRA

believe that the NPRM provided

adequate notice that they might adopt

the 1984 thermal model if, as it

occurred, that model had not been

updated by the time the final rule was

issued.

RSPA and FRA are aware of industry

support for the 1984 thermal model and

ongoing research by the FRA will

address specific concerns about the use

of the model. RSPA and FRA believe the

1984 thermal model produces

supportable results at reasonable cost,

but also understand that certain persons

may wish to continue to perform an

analysis using independent

mathematical or computer modeling

procedures to verify compliance with

the thermal protection standard.

Accordingly, in this final rule,

§ 179.18(b)(1) is revised to allow any

method of verifying compliance with

the thermal protection standard;

however, RSPA and FRA reserve the

right to require evidence of a model’s

effectiveness. In addition, RSPA and

FRA will accept, without the need to

‘‘prove’’ the method, the procedures

outlined in the 1984 thermal model.

III. Summary of Regulatory Changes by

Section

The following review-by-section

summarizes the revisions resulting from

the petitions and comments received in

response to the September 21 final rule.

Part 171

Section 171.6. In the table in

paragraph (b)(2), column 3, under the

entry for OMB Control Number 2137–

0559, the sections identified in the

collection of information are updated to

reflect recent changes.

Part 173

Section 173.31. Paragraph (b)(2)(ii) is

amended by revising the phrase ‘‘in

class DOT 115 tank cars, tank cars’’ to

read ‘‘in class DOT 115 tank cars, singleunit tank cars’’ to correct a

typographical error.

Based on the TSI petition for

reconsideration, paragraph (b)(3)(iii) is

revised to clarify that existing tank cars

being used to transport a Class 2

material and tank cars manufactured

from aluminum or nickel plate that

currently have no head protection must

have full-head protection installed by

July 1, 2006.

Paragraph (b)(4)(i) is revised to clarify

that tank cars having a thermal

protection system and tank cars that

have an insulation system that has a

heat flux 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) are considered

to meet the thermal protection standard.

For example, tank cars currently marked

‘‘J’’ or ‘‘T,’’ tank cars currently marked

‘‘A’’ but having a thermal protection

material applied (e.g., 2-inches of

ceramic fiber and 2-inches of glass fiber

found on chlorine tank cars), and tank

cars that have superior thermal

resistance, such as tank cars used for

carbon dioxide (refrigerated liquid) and

nitrous oxide (refrigerated liquid), are

considered to conform to the thermal

protection standard. Paragraph (b)(4)(ii)

is revised to clarify that only tank cars

transporting Class 2 materials require

thermal protection.

Paragraph (b)(6)(ii) is revised to

remove the requirement to include the

reporting mark of each tank car and to

clarify the reporting period and due date

of the progress report.

Paragraph (d)(1)(viii) is revised to

clarify that ‘‘other safety systems’’

means ‘‘bottom discontinuity

protection.’’ Paragraph (d)(2) of the final

rule contained a rebuttable presumption

standard aimed specifically at loose

closures on tank cars. The ‘‘secure and

leakproof’’ standard presently contained

in 49 CFR 173.24(f), coupled with the

requirement that closures be ‘‘tool tight’’

(formerly at 49 CFR 173.31(b)(3)), are

not new requirements, and (d)(2) made

clear the standard that had always

applied. The reasoning behind the new

language was amply discussed in the

preamble to the final rule (60 FR at

49064–49066). Simply stated, if a

hazardous materials package is

discovered with loose closures, the

closures were not designed properly, or

they were not tightened properly, or

they were loosened in transit. Neither

RSPA nor FRA are aware of hazardous

material packaging designs that allow

closures to loosen in transit by

themselves, even when subjected to

overspeed impacts, as noted in the

preamble to the final rule, and no

commenter offered evidence to disprove

this. This does not mean that every time

closures are discovered loose, the

offeror is at fault. The preamble in the

September 21 final rule listed a number

of examples where the presumption has

been rebutted, taken from FRA’s actual

enforcement of the HMR against

railroads and their shippers. (60 FR

49065)

CMA, joined later by TFI, petitioned

the United States Court of Appeals to

review the ‘‘rebuttable presumption’’

created in relation to the discovery of

loose closures on tank cars. CMA’s

primary contention, as set forth in its

Statement of Issues to be Raised filed

with the court, is that the presumption

as stated shifts the burden of proof in

civil penalty cases from the government

to the respondents and, accordingly, is

contrary to Rule 301 of the Federal
33252 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

Rules of Evidence. Neither RSPA nor

FRA agree that the presumption shifts

the burden of proof to respondents.

Rather, consistent with Rule 301, the

presumption simply imposes on

respondents the burden of going

forward with evidence to rebut or meet

the presumption. It is not intended to

shift to respondents the burden of proof

in the sense of the risk of

nonpersuasion, which remains with

FRA. However, for the sake of clarity

and consistency with the original

preamble, RSPA and FRA have revised

the rule. Section 173.31(d)(2) is

amended to read:

Closures on tank cars are required, in

accordance with this subchapter, to be

designed and closed so that under conditions

normally incident to transportation,

including the effects of temperature and

vibration, there will be no identifiable release

of a hazardous material to the environment.

In any action brought to enforce this section,

the lack of securement of any closure to a

tool-tight condition, detected at any point,

will establish a rebuttable presumption that

a proper inspection was not performed by the

offeror of the car. This presumption may be

rebutted by any evidence indicating that the

lack of securement resulted from a specific

cause not within the control of the offeror.

Neither the original rebuttable

presumption nor this amendment is in

any way intended to abrogate the

protections or the burdens of Rule 301.

FRA accepts, and always has, the

burden of proof inherent in the taking

of an action for a civil penalty. The

revised language makes FRA’s position

clear by removing any suggestion that

the rule limits the types of evidence that

respondents may offer and that the fact

finder may consider in a rebuttal case.

This clarification harmonizes the

language of § 173.31(d)(2) with the

description of the provision in the

original preamble, which noted that

examples of rebuttal evidence stated in

the rule were not meant to be exclusive.

What is sought in § 173.31(d)(2) is a

recognition of the obligation placed on

those who offer hazardous materials for

transportation—closures on tank cars

must be tool tight when the car is

offered and they must be designed and

closed so that they remain tool tight

‘‘under conditions normally incident to

transportation.’’ When FRA initiates a

civil penalty action for a violation of

this section of the HMR, and presents

evidence of a loose closure, it expects

the respondent to come forward with

rebuttal evidence, which may include

evidence indicating that the loose

closures resulted from a specific cause

not within the control of the offeror.

After all the evidence is presented,

however, FRA still bears the burden of

proof.

Paragraph (e)(2) is revised to specify

the tank test pressure and other safety

provisions required for tank cars

transporting a PIH material in place of

the list of authorized tank car

specifications. Lastly, paragraph (f)(1) is

revised to specify the tank test pressure

and component requirements for tank

cars transporting a hazardous substance,

listed in § 173.31(f)(2), in place of the

list of authorized tank car specifications.

Section 173.314. In response to

suggestions made by commenters, Note

1 in paragraph (c) is clarified by placing

the English and metric units in a

separate sentence from the definition. In

paragraph (n), the paragraph heading is

amended by removing the word

‘‘chloride’’ because the paragraph

applies only to ‘‘hydrogen’’ and not

‘‘hydrogen chloride.’’

Part 179

Section 179.2. In paragraph (a)(10),

the definition for ‘‘tank car facility’’ is

revised to include an entity that

‘‘qualifies’’ or ‘‘maintains’’ tank cars to

clarify the definition and its

relationship to the qualification

requirements in Part 180.

Section 179.7. The introductory text

in paragraph (a)(2) is revised to clarify

that this provision also applies to

qualification and maintenance

programs.

Paragraph (b)(5) is revised to ensure

that the tank car owner’s qualification

and maintenance program is included in

the quality assurance program that tank

car facilities will use to identify the

characteristics of and elements on each

tank car design to be inspected and

tested. This change will make clear the

relationship between the written

procedures, prescribed in paragraph (d)

of this section, and the manufacturing,

inspection, testing, and maintenance

programs.

Paragraph (b)(7) is amended by

replacing the word ‘‘imperfections’’

with ‘‘nonconformities’’ for consistency

with the wording used in paragraph

(a)(3). A ‘‘nonconformity’’ means that

the area under observation does not

conform to the acceptance criteria;

whereas an ‘‘imperfection’’ implies

there is a defect, regardless of whether

the defect conforms to the pass/fail

acceptance criteria.

Paragraph (b)(9) is amended by

removing the list of specific nondestructive inspection and test methods

because authorized methods for nondestructive testing (NDT) are now listed

in § 180.509(e). Paragraph (b)(10) is

removed because it is no longer

necessary to list the qualification

requirements for examiners performing

specific types of visual inspections

based on the changes made to paragraph

(b)(9). Paragraph (b)(11) is renumbered

as paragraph (b)(10) and is revised by

adding the word ‘‘reliability’’ to ensure

the adequacy and repeatability of the

non-destructive inspection test

technique. Paragraphs (b) (12) and (13)

are renumbered as paragraphs (b) (11)

and (12), respectively.

In paragraph (d), the word ‘‘establish’’

is corrected to read ‘‘provide’’ because

the owner of the tank car generally will

provide the written procedures for

inspecting the tank to the tank car

facility. In the September 21 final rule,

RSPA stated that these procedures

belong in the tank car owner’s written

maintenance plan or Association of

American Railroads (AAR)

Specifications for Tank Cars. Further,

the approach adopted by RSPA and FRA

allows each tank car owner the

flexibility to develop inspection and test

procedures appropriate for each unique

tank car or series of tank cars based on

operating and maintenance experience

(see 60 FR 49063).

In paragraph (f), the words ‘‘inspect,

or test’’ are revised to read ‘‘inspect,

test, qualify or maintain’’ for

consistency with § 179.2.

Section 179.16. Paragraph (b) is

revised to clarify that two methods may

be used to achieve compliance with the

performance standard prescribed for the

tank-head puncture-resistance system.

The method prescribing that the tankhead resistance system must be verified

by testing in accordance with Appendix

A to Part 179 is retained in paragraph

(b). The method allowing the

installation of full-head protection

(shields) or full tank head jackets, as an

alternative to verification by testing, is

moved to new paragraph (c). In

addition, in new paragraphs (c)(1) and

(c)(2), the phrase ‘‘tank-head punctureresistance system’’ is corrected to read

‘‘full tank-head protection (shields) or

full tank-head jackets.’’

Section 179.18. In paragraph (a), the

phrase ‘‘safety relief valve’’ is revised to

read ‘‘pressure relief device’’ for

consistency with existing regulations.

Paragraph (b)(1) is amended to specify

that FRA’s 1984 thermal model is an

optional pre-approved procedure for

verifying compliance with the thermal

protection standard in paragraph (a). In

paragraph (b)(2), the words ‘‘an

unlisted’’ are revised to read ‘‘a new or

untried’’, for consistency with language

used in the opening paragraphs of

Appendix B to Part 179.

Section 179.22. In paragraphs (b), (c),

and (d), the phrase ‘‘is equipped with’’

is revised to read ‘‘requires’’. This
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 33253

change will allow the optional marking

of a tank car ‘‘S,’’ ‘‘J,’’ or ‘‘T’’ when such

car has, but does not require, head or

thermal protection. Tank cars requiring

such protection must be marked to show

the appropriate tank specification.

Appendix A to Part 179. In Appendix

A to Part 179, a second sentence is

added to paragraph 1, based on

comments received, to clarify that tankhead puncture-resistance is a function

of one or more of the following: head

thickness, jacket thickness, insulation

thickness, and the material of

construction.

Part 180

Section 180.501. Paragraph (a) is

amended by removing the phrase ‘‘that

the tank cars are in proper condition for

transportation’’ and by inserting in its

place ‘‘continuing qualification’’. This

change will help clarify that the tank

cars must continue to conform to the

qualification requirements of subpart F

of Part 180.

Section 180.509. Paragraph (b)(1) is

revised to replace the requirement to

inspect all ‘‘tank cars showing any

evidence of a condition....that would

make them unsafe for transportation’’

with a requirement to perform a leakage

pressure test after reassembly of the tank

car or service equipment. This revision

will clarify that repairs or maintenance

will not subject the tank to the full

inspection and test program because

repairs and maintenance must be done

in accordance with Appendix R of the

AAR’s Specifications for Tank Cars (see

also 60 FR 49060). It also clarifies that

a leakage pressure test, as prescribed in

paragraph (j), must be performed after

reassembly of the tank car. Paragraph

(b)(2) is amended to clarify that leaking

tank cars or tank cars showing evidence

of structural damage are required to be

inspected and tested without regard to

any other periodic inspection or test

requirement. This change will clarify

that the entire tank structure is subject

to an inspection and test only when the

structural integrity of the tank may have

been compromised.

RSPA is removing the 10-year limit in

paragraph (c)(3)(iii) for requalification of

inner linings and coatings of tank cars.

Paragraph (c)(3)(iii)(A) is revised to

require that supporting documentation

used to make inspection and test

interval determinations for linings or

coatings for materials corrosive to the

tank be made available to FRA

personnel upon request. This

requirement was in paragraph

(c)(3)(iii)(B). In addition, in paragraph

(c)(3)(iii)(A), the phrase ‘‘, and

acceptance criteria’’ is added to the first

and second sentence to clarify that an

owner must determine not only the

inspection interval and test technique,

but also the acceptance criteria for

linings and coatings. Paragraph

(c)(3)(iii)(B) is revised to require the

owner of a lining or coating to provide

the periodic inspection interval, test

technique, and acceptance criteria to the

person requalifying the lining or

coating. This provision was added in

response to a National Transportation

Safety Board (NTSB) recommendation

(NTSB R–95–10/R–95–11) that

inspectors have sufficient access to an

owner’s acceptance criteria. Section

180.511(e) of the final rule defines the

lining and coating acceptance criteria as

‘‘no evidence of holes or degraded

areas.’’ Several commenters stated all

linings and coatings have holes or

degraded areas and, therefore, all linings

and coatings will fail the test. They

suggested that the owner of the lining or

coating should determine the

acceptance criteria (i.e., the allowable

number of discontinuities [e.g., a film

defect characterized by small pore-like

or pin-hole type flaws]), because the

number of discontinuities will depend

on the film-coating or rubber-lining

material, thickness, design, and surface

conditions. RSPA and FRA agree that

the owner’s knowledge of the lining or

coating will assist in determining with

greater accuracy safe acceptance criteria

for linings and coatings.

The table in paragraph (g)(1)(ii) is

revised to convert the fractions in

column two (‘‘DOT 103 * * *, Top

shell’’) to their decimal equivalent and

the second and fourth column headings

are revised from ‘‘Top shell’’ to read

‘‘Top shell and head’’ to allow limited

reductions in the tank head thickness.

In paragraph (i), requirements for

inspecting and testing the lining and

coating based on the owner’s acceptance

criteria are added as discussed earlier in

this preamble.

Paragraph (j) is revised to clarify that

the tank must have a leakage test after

reassembly of a tank car or its service

equipment. One commenter supplied

information on leak testing that shows

acceptable results at much lower

pressures. Another commenter provided

information showing that, for bubble

film testing, the rate of bubble

formation, the size of bubbles formed,

and the rate that individual bubbles

increase in size are means for estimating

the size of a leak (the rate of gas flow

through a leak). At lower pressures,

such as 10–15 psi, a leak can be

detected with acceptable test

techniques. Based on the comments, the

leak test requirement is amended by

removing the pressure references and by

allowing any accepted NDT practices,

such as bubble emission testing

(solution film tests) and ultrasonic leak

detection. This revision provides

additional relief from the requirement

without compromising safety by

authorizing lower test pressures and

reducing the potential danger of a

pneumatic high-pressure test on an

empty tank car.

In paragraph (l), the paragraph

heading is amended by removing the

phrase ‘‘with metal jackets or thermal

protection systems.’’ This change will

clarify that requirements in the

paragraph also apply to non-jacketed

tank cars.

Section 180.511. Paragraph (e) is

amended by replacing the phrase

‘‘shows no evidence of holes or

degraded areas’’ with ‘‘conforms to the

owner’s acceptance criteria.’’ This

change will clarify that the acceptance

criteria are based on the owner’s

determinations.

Section 180.515. Paragraph (a) is

amended by replacing the phrase

‘‘paragraph (b) of this section’’ with

‘‘Appendix C of the AAR Specifications

for Tank Cars.’’ This change removes the

cross-reference to paragraph (b) and

simplifies the regulation.

Paragraph (b) is removed based on the

change above. Paragraphs (c) and (d) are

renumbered (b) and (c) respectively.

Section 180.519. The first sentence in

paragraph (b)(6) is amended by

replacing the reference ‘‘paragraph

(d)(8)’’ with ‘‘paragraph (c)’’ to correct a

typographical error, and by replacing

the phrase ‘‘1–60 for January 1960’’ with

‘‘01–90 for January 1990’’ to update the

reference date in the example. In

paragraph (b)(5), in Retest Table 1, the

last entry ‘‘BE–275’’ is revised to read

‘‘BE–27’’ to correct a typographical

error.

In paragraph (c), the phrase ‘‘DOT

110A–Z’’ is revised to read ‘‘DOT 110A–

W’’ to correct a typographical error.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT

Regulatory Policies and Procedures

This final rule is considered a nonsignificant regulatory action under

section 3(f) of Executive Order 12866

and was not reviewed by the Office of

Management and Budget (OMB).

Although the underlying rule was

considered significant under the

Regulatory policies and Procedures of

the Department of Transportation (44 FR

11034), because it affects a significant

segment of the tank car industry, this

document is considered ‘‘nonsignificant’’ because it clarifies and

corrects provisions of the final rule and

provides consistency. This final rule
33254 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

does not impose additional

requirements and, in fact, provides

relief in some areas. The net result is

that costs imposed under the final rule

published in the Federal Register on

September 21, 1995 are reduced, but

without a reduction in safety. The

original regulatory evaluation of the

final rule was reexamined but not

modified because changes made under

this rule provide limited relief and thus

will result in minimal economic impact

on the industry.

B. Executive Order 12612

This final rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612 (‘‘Federalism’’). Federal law

expressly preempts State, local, and

Indian tribe requirements applicable to

the transportation of hazardous material

that cover certain subjects and are not

‘‘substantively the same’’ as the Federal

requirements, 49 U.S.C. 5125(b)(1).

These covered subjects are:

(A) The designation, description, and

classification of hazardous material;

(B) The packing, repacking, handling,

labeling, marking, and placarding of

hazardous material;

(C) The preparation, execution, and

use of shipping documents related to

hazardous material and requirements

respecting the number, contents, and

placement of those documents;

(D) The written notification,

recording, and reporting of the

unintentional release in transportation

of hazardous material; or

(E) The design, manufacturing,

fabricating, marking, maintenance,

reconditioning, repairing, or testing of a

packaging or a container which is

represented, marked, certified, or sold

as qualified for use in transporting

hazardous material.

This final rule addresses the design,

manufacture, repair, and other

requirements for packages represented

as qualified for the use in the

transportation of hazardous material.

Therefore, this final rule preempts State,

local, or Indian tribe requirements that

are not ‘‘substantively the same’’ as

Federal requirements on these subjects.

Section 5125(b)(2) of Title 49 U.S.C.

provides that when DOT issues a

regulation concerning any of the

covered subjects after November 16,

1990, DOT must determine and publish

in the Federal Register the effective date

of Federal preemption. The effective

date may not be earlier than the 90th

day following the date of issuance of the

final rule and no later than two years

after the date of issuance. RSPA has

determined that the effective date of

Federal preemption of this final rule

will be September 24, 1996.

Because RSPA lacks discretion in this

area, preparation of a federalism

assessment is not warranted.

C. Regulatory Flexibility Act

I certify that this final rule will not

have a significant economic impact on

a substantial number of small entities.

The entities affected by the rule are

involved in tank car leasing,

maintenance, repair and use. There are

no direct or indirect adverse economic

impacts for small units of government,

businesses, or other organizations.

D. Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995, no person is required to

respond to a collection of information

unless it displays a valid OMB control

number. Information collection

requirements in 49 CFR 173.31, 179.7,

and 180.517 are currently approved

under OMB control number 2137-0559.

A provision adopted in this final rule,

to eliminate a requirement to show the

reporting mark of each tank car in an

annual progress report, will result in a

minor reduction in the amount of

burden imposed by this collection.

RSPA believes that this change in

burden is not sufficient to warrant

revision of the currently approved

information collection.

E. Regulation Identifier Number (RIN)

A regulation identifier number (RIN)

is assigned to each regulatory action

listed in the Unified Agenda of Federal

Regulations. The Regulatory Information

Service Center publishes the Unified

Agenda in April and October of each

year. The RIN numbers contained in the

heading of this document can be used

to cross-reference this action with the

Unified Agenda.

List of Subjects

49 CFR Part 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 record keeping

requirements, Uranium.

49 CFR Part 179

Hazardous materials transportation,

Railroad safety, Reporting and record

keeping requirements.

49 CFR Part 180

Hazardous materials transportation,

Motor carriers, Motor vehicle safety,

Packaging and containers, Railroad

safety, Reporting and record keeping

requirements.

ln consideration of the foregoing, 49

CFR Chapter I is amended as follows:

PART 171—GENERAL INFORMATION,

REGULATIONS, AND DEFINITION

1. The authority citation for part 171

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 171.6 [Amended]

2. In § 171.6, in paragraph (b)(2),

column 3 of the table, for the entry

‘‘2137–0559’’ the references ‘‘173.31

(a)(4), (c)(8), (d)(8), Table Footnote (i)’’

are removed and the references

‘‘173.31(b)(6)(ii),’’ and ‘‘179.7 (b)(2), (5),

(d), 180.517 (a), (b)’’ are added in

numerical order.

PART 173—SHIPPERS—GENERAL

REQUIREMENTS FOR SHIPMENTS

3. The authority citation of Part 173

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 173.31 [Amended]

4. In § 173.31, the following changes

are made:

a. In paragraph (b)(2)(ii), the phrase

‘‘in class DOT 115 tank cars, tank cars

used’’ is revised to read ‘‘in class DOT

115 tank cars, single-unit tank cars

used’’.

5. ln § 173.31, paragraphs (b)(3)(iii),

(b)(4)(i), (b)(4)(ii), (b)(6)(ii), (d)(1)(viii),

(d)(2), (e)(2) and (f)(1) are revised to read

as follows:

§ 173.31 Use of tank cars.

* * * * *

(b) * * *

(3) * * *

(iii) Except as provided in paragraph

(b)(3)(iv) of this section, those tank cars

specified in paragraphs (b)(3)(i) and (ii)

of this section not requiring a tank-head

puncture resistance system prior to July

1, 1996, must have a tank-head puncture

resistance system installed no later than

July 1, 2006.

* * * * *

(4) * * *

(i) Tank cars transporting a Class 2

material, except for a class 106, 107A,

110, and 113 tank car. A tank car

equipped with a thermal protection

system conforming to § 179.18 of this

subchapter, or that has an insulation

system having an overall thermal
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 33255

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), conforms to

this requirement.

(ii) A tank car transporting a Class 2

material that was not required to have

thermal protection prior to July 1, 1996,

must be equipped with thermal

protection no later than July 1, 2006.

* * * * *

(6) * * *

(ii) By October 1 of each year, each

owner of a tank car subject to this

paragraph (b)(6) shall submit to the

Hazardous Materials Division (RRS–12),

Office of Safety Assurance and

Compliance, Federal Railroad

Administration, 400 7th Street, SW.,

Washington, DC 20590–0001, a progress

report that shows the total number of inservice tank cars that need head

protection, thermal protection, or

bottom-discontinuity protection; the

number of new or different tank cars

acquired to replace those tank cars

required to be upgraded to a higher

service pressure; and the total number

of tank cars modified, reassigned,

acquired, retired, or removed from

service the previous year.

* * * * *

(d) * * *

(1) * * *

(viii) The external thermal protection

system, tank-head puncture resistance

system, coupler vertical restraint

system, and bottom discontinuity

protection for conditions that make the

tank car unsafe for transportation.

* * * * *

(2) Closures on tank cars are required,

in accordance with this subchapter, to

be designed and closed so that under

conditions normally incident to

transportation, including the effects of

temperature and vibration, there will be

no identifiable release of a hazardous

material to the environment. ln any

action brought to enforce this section,

the lack of securement of any closure to

a tool-tight condition, detected at any

point, will establish a rebuttable

presumption that a proper inspection

was not performed by the offeror of the

car. That presumption may be rebutted

by any evidence indicating that the lack

of securement resulted from a specific

cause not within the control of the

offeror.

(e) * * *

(2) Tank car specifications. A tank car

used for a material poisonous by

inhalation must have a tank test

pressure of 20.7 Bar (300 psi) or greater,

head protection, and a metal jacket (e.g.,

DOT 105S300W), except that—

(i) A higher test pressure is required

if otherwise specified in this

subchapter; and

(ii) Other than as provided in

paragraph (b)(6) of this section, a tank

car which does not conform to the

requirements of this paragraph (e)(2),

and was authorized for the material

poisonous by inhalation under the

regulations in effect on June 30, 1996,

may continue in use until July 1, 2006.

(f) * * *

(1) A tank car used for a hazardous

substance listed in paragraph (f)(2) of

this section must have a tank test

pressure of at least 13.8 Bar (200 psi),

head protection and a metal jacket,

except that—

(i) No metal jacket is required if—

(A) The tank test pressure is 23.4 Bar

(340 psi) or higher; or

(B) The tank shell and heads are

manufactured from AAR steel

specification TC–128, normalized;

(ii) A higher test pressure is required

if otherwise specified in this

subchapter; and

(iii) Other than as provided in

paragraph (b)(6) of this section, a tank

car which does not conform to the

requirements of this paragraph (f)(1),

and was authorized for a hazardous

substance under the regulations in effect

on June 30, 1996, may continue in use

until July 1, 2006.

* * * * *

6. In § 173.314, Note 1 following

paragraph (c) table and the heading of

paragraph (n) are revised to read as

follows:

§ 173.314 Compressed gases in tank cars

and multi-unit tank cars.

* * * * *

(c) * * *

NOTES:

1. The percent filling density for liquefied

gases is hereby defined as the percent ratio

of the mass of gas in the tank to the mass of

water that the tank will hold. For

determining the water capacity of the tank in

kilograms, the mass of one liter of water at

15.5°C in air is 1 kg. (the mass of one gallon

of water at 60°F in air is 8.32828 pounds).

* * * * *

(n) Special requirements for hydrogen.

* * *

* * * * *

PART 179—SPECIFICATIONS FOR

TANK CARS

7. The authority citation for Part 179

continues to read as follows:

Authority: 49 App. U.S.C. 5101–5127; 49

CFR 1.53.

§ 179.2 [Amended]

8. In § 179.2, in paragraph (a)(10), the

words ‘‘inspects, or tests’’ are revised to

read ‘‘inspects, tests, qualifies, or

maintains’’.

9. In § 179.7, paragraph (b)(10) is

removed, and paragraphs (b)(11),

(b)(12), and (b)(13) are redesignated as

paragraphs (b)(10), (b)(11), and (b)(12),

respectively, and paragraphs (a)(2),

(b)(5), (b)(9), and (d) are revised to read

as follows:

§ 179.7 Quality assurance program.

(a) * * *

(2) Has the means to detect any

nonconformity in the manufacturing,

repair, inspection, testing, and

qualification or maintenance program of

the tank car; and

* * * * *

(b) * * *

(5) A description of the

manufacturing, repair, inspection,

testing, and qualification or

maintenance program, including the

acceptance criteria, so that an inspector

can identify the characteristics of the

tank car and the elements to inspect,

examine, and test at each point.

* * * * *

(9) Qualification requirements of

personnel performing non-destructive

inspections and tests.

* * * * *

(d) Each tank car facility shall provide

written procedures to its employees to

ensure that the work on the tank car

conforms to the specification, AAR

approval, and owner’s acceptance

criteria.

* * * * *

§ 179. 7 [Amended]

10. In addition, in § 179.7, the

following changes are made:

a. In paragraph (b)(7) the word

‘‘imperfections’’ is revised to read

‘‘nonconformities’’.

b. In newly designated paragraph

(b)(10), the phrase ‘‘and reliability’’ is

added after the word ‘‘sensitivity’’.

c. In paragraph (f), the words

‘‘inspect, or test’’ are revised to read

‘‘inspect, test, qualify or maintain’’.

11. In § 179.16, paragraph (b) is

revised and a new paragraph (c) is

added, to read as follows:

§ 179.16 Tank-head puncture-resistance

systems.

* * * * *

(b) Verification by testing. Compliance

with the requirements of paragraph (a)

of this section shall be verified by fullscale testing according to Appendix A of

this part.

(c) Alternative compliance by other

than testing. As an alternative to
33256 Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations

requirements prescribed in paragraph

(b) of this section, compliance with the

requirements of paragraph (a) of this

section may be met by installing fullhead protection (shields) or full tankhead jackets on each end of the tank car

conforming to the following:

(1) 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/mm2 (55,000 psi).

(2) The design and test requirements

of the full-head protection (shields) or

full tank-head jackets must meet the

impact test requirements of Section 5.3

of the AAR Specifications for Tank Cars.

(3) The workmanship must meet the

requirements of Section C, Part II,

Chapter 5 of the AAR Specifications for

Design, Fabrication, and Construction of

Freight Cars.

12. In § 179.18, paragraph (b)(1) is

revised to read as follows:

§ 179.18 Thermal protection systems.

* * * * *

(b) * * * (1) Compliance with the

requirements of paragraph (a) of this

section shall be verified by analyzing

the fire effects on the entire surface of

the tank car. The analysis must consider

the fire effects on and heat flux through

tank discontinuities, protective

housings, underframes, metal jackets,

insulation, and thermal protection. A

complete record of each analysis shall

be made, retained, and upon request,

made available for inspection and

copying by an authorized representative

of the Department. The procedures

outlined in ‘‘Temperatures, Pressures,

and Liquid Levels of Tank Cars

Engulfed in Fires,’’ DOT/FRA/OR&D–

84/08.11, (1984), Federal Railroad

Administration, Washington, DC

(available from the National Technical

Information Service, Springfield, VA)

shall be deemed acceptable for

analyzing the fire effects on the entire

surface of the tank car.

* * * * *

§ 179.18 [Amended]

13. In addition, in § 179.18, in

paragraph (a) introductory text, the

phrase ‘‘safety relief valve’’ is revised to

read ‘‘pressure relief device’’ and in

paragraph (b)(2) the phrase ‘‘an

unlisted’’ is revised to read ‘‘a new or

untried’’.

§ 179.22 [Amended]

14. In § 179.22, in paragraphs (b), (c)

and (d), the wording ‘‘is equipped with’’

is revised to read ‘‘requires’’ each place

it appears.

15. In appendix A to part 179,

paragraph 1 is amended by adding a

sentence at the end of the paragraph to

read as follows:

Appendix A to Part 179—Procedures

for Tank-Head Puncture-Resistance

Test

1. * * * Tank-head puncture-resistance is

a function of one or more of the following:

Head thickness, jacket thickness, insulation

thickness, and material of construction.

* * * * *

PART 180—CONTINUING

QUALIFICATION AND MAINTENANCE

OF PACKAGINGS

16. The authority citation for Part 180

continues to read as follows:

Authority: 49 U.S.C. 5101–5127; 49 CFR

1.53.

§ 180.501 [Amended]

17. In § 180.501, paragraph (a) is

amended by removing the phrase ‘‘that

the tank cars are in proper condition for

transportation’’ and adding in its place,

the phrase,‘‘continuing qualification’’.

18. In § 180.509, a sentence is added

at the end of paragraph (b)(1); the

introductory text of paragraph (b), and

paragraphs (c)(3)(iii) (A) and (B), (j), and

the heading of paragraph (l) are revised

to read as follows:

§ 180.509 Requirements for inspection and

test of specification tank cars.

* * * * *

(b) * * *. Without regard to any other

periodic inspection and test

requirements, a tank car must have an

appropriate inspection and test

according to the type of defect and the

type of maintenance or repair performed

if:

(1) * * *. An example is if

maintenance is performed to replace a

fitting, then only a leakage pressure test

needs to be performed.

* * * * *

(c) * * *

(3) * * *

(iii) * * *

(A) When a lining or coating is

applied to protect the tank shell from

the lading, the owner of the lining or

coating shall determine the periodic

inspection interval, test technique, and

acceptance criteria for the lining or

coating. The owner must maintain at its

principal place of business all

supporting documentation used to make

such a determination, such as the lining

or coating manufacturer’s recommended

inspection interval, test technique, and

acceptance criteria. The supporting

documentation must be made available

to FRA upon request.

(B) The owner of the lining or coating

shall provide the periodic inspection

interval, test technique, and acceptance

criteria for the lining or coating to the

person responsible for qualifying the

lining and coating.

* * * * *

(j) Leakage pressure test. After

reassembly of a tank car or service

equipment, a tank car facility must

perform a leak test on the tank or service

equipment to detect leakage, if any,

between manway covers, cover plates,

and service equipment. The test may be

conducted with the hazardous material

in the tank. When the test pressure

exceeds the start-to-discharge or burst

pressure of a pressure relief device, the

device must be rendered inoperative.

The written procedures and test method

for leak testing must ensure for the

sensitivity and reliability of the test

method and for the serviceability of

components to prevent premature

failure.

* * * * *

(l) Inspection and test compliance

date for tank cars. * * *

* * * * *

§ 180.509 [Amended]

19. In addition, in § 180.509, the

following changes are made:

a. Paragraph (c)(3)(iii) introductory

text is amended by removing the phrase

‘‘, and when a lining or coating is

applied to protect the tank shell from

the lading, an interval based on the

owner’s determination for the lining or

coating, but not greater than every 10

years’’.

b. In paragraph (g)(1)(ii) introductory

text, the phrase ‘‘reduction in

thickness’’ is revised to read ‘‘reduction

in the required minimum thickness’’.

c. In the paragraph (g)(1)(ii) table, in

the second column, for the third and

fifth entries, the parenthetical ‘‘(3⁄16

inch)’’ is revised to read ‘‘(0.188 inch)’’

each place it appears; and in the second

and fourth columns, the column

heading ‘‘Top shell’’ is revised to read

‘‘Top shell and tank head’’ for each

column.

d. In paragraph (i), the phrase ‘‘and

test technique’’ is revised to read ‘‘, test

technique, and acceptance criteria’’.

§ 180.511 [Amended]

20. ln § 180.511, in paragraph (e), the

phrase ‘‘shows no evidence of holes or

degraded areas’’ is revised to read

‘‘conforms to the owner’s acceptance

criteria’’.

§ 180.515 [Amended]

21. ln § 180.515, the following

changes are made:
Federal Register / Vol. 61, No. 124 / Wednesday, June 26, 1996 / Rules and Regulations 33257

a. In the first sentence in paragraph

(a), the phrase ‘‘paragraph (b) of this

section’’ is revised to read ‘‘Appendix C

of the AAR Specifications for Tank

Cars’’.

b. Paragraph (b) is removed and

paragraphs (c) and (d) are redesignated

as paragraphs (b) and (c) respectively.

§ 180.519 [Amended]

22. In § 180.519, the following

changes are made:

a. In paragraph (b)(5), in the first

column of Retest Table 1, the last entry

‘‘BE–275’’ is revised to read ‘‘BE–27’’.

b. The first sentence of paragraph

(b)(6) is amended by revising the

reference paragraph ‘‘(d)(8)’’ to read

‘‘(c)’’, and revising the phrase ‘‘1–60 for

January 1960’’ to read ‘‘01–90 for

January 1990’’.

c. In paragraph (c), the phrase ‘‘DOT

110A–Z’’ is revised to read ‘‘DOT 110A–

W’’.

Issued in Washington, DC, on June 10,

1996, under authority delegated in 49 CFR

Part 1.

Kelley S. Coyner,

Deputy Administrator.

[FR Doc. 96–15273 Filed 6–25–96; 8:45 am]

BILLING CODE 4910–60–P