PHMSA Seeks ANPR Comments

Written by William C. Vantuono, Editor-in-Chief

Association of American Railroads

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has issued an Advance Notice of Proposed Rulemaking (ANPRM) to solicit feedback on initiatives PHMSA is considering “that may modernize Hazardous Materials Regulations and improve efficiencies while maintaining or improving a current high level of safety.”

The ANPRM, published in the Federal Register as docket number PHMSA–2019–0031 (HM–265A), Hazardous Materials: Modernizing Regulations To Improve Safety and Efficiency, solicits comments and input on questions related to no fewer than 46 Topics Under Consideration. “Any comments, data and information received will be used to evaluate and potentially draft proposed amendments,” the agency said. The comment period ends Oct. 3, 2023.

Among PHMSA’s Topics Under Consideration with applicability to rail (edited for length):

Evaluation of Carrier Maintenance of Emergency Response Information: Carriers that transport hazardous material must maintain emergency response information (ERI) that meets the requirements of § 172.602 onboard their motor vehicle, train, plane, or vessel. In accordance with § 172.602, ERI must be immediately accessible to train crew personnel, drivers of motor vehicles, flight crew members, and bridge personnel on vessels for use in the event of incidents involving hazardous materials as well as emergency responders and representatives of government agencies conducting an investigation. PHMSA requests comment on the continued utility of this requirement given advancements in technology and greater availability of resources, such as the Emergency Response Guidebook (ERG), to the emergency responder community.

Sampling and Testing Program for Unrefined Petroleum-Based Products: Proper classification of a hazardous material is a cornerstone of the packaging and hazard communication requirements in the HMR (Hazardous Materials Regulations). The person who offers a hazardous material for transportation (i.e., the shipper) is responsible for properly classifying the material into one of the nine hazard classes (see § 173.22). In 2015, PHMSA published HM–251,Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains, in response to several rail incidents involving derailment of unit trains transporting millions of gallons of crude oil within the United States and Canada. As part of this rule, PHMSA created a specific requirement in the HMR for the sampling and testing of unrefined petroleum-based products to address the variability of the physical properties of these materials … PHMSA received two comments in the 2017 Regulatory Reform Notice related to the sampling and testing plan for unrefined petroleum-based products. American Fuel and Petrochemical Manufacturers (AFPM) submitted a comment requesting that PHMSA repeal § 173.41 because it is an unnecessary duplication of the shipper’s responsibility to classify (see § 173.22(a)(1)). The American Petroleum Institute (API) submitted a comment requesting that PHMSA clarify and revise the requirements of § 173.41 to simplify the requirements and encourage compliance. PHMSA believes that the requirements in § 173.41 serve an important role in ensuring the proper classification of unrefined petroleum-based products, which exhibit more variation than refined or manufactured materials. Therefore, we do not anticipate removing this section at this time. However, clarifications of the requirements in § 173.41 could encourage compliance and efficiency—and in turn reduce environmental burdens.

Aerosol Classification Alignment: Section 171.8 of the HMR define an ‘aerosol’ as an article consisting of any non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas … How much time would shippers save due to the reduced hazard communication requirements associated with limited quantity shipments by highway, rail, and [marine] vessel? What categories of employees would save time? … Do you support adoption of the IMDG Code 120-mL limit for Division 2.2 and Division 2.1 (6.1) PG II aerosols transported by highway, rail, and marine vessel? Marine vessel only?

Limited Quantity Training Exception: The HMR require hazmat employers to properly train and test all hazmat employees (§ 172.702). Hazmat employees are those who directly affect hazardous materials transportation safety by performing hazmat functions, including those who prepare shipments, manufacture packagings represented as qualified for use with hazardous materials, and transport the material … The HMR training requirements are intended to ensure that each hazmat employee has familiarity with the general provisions of the HMR, can recognize and identify hazardous materials, has knowledge of specific requirements of the HMR applicable to functions performed by the employee, and has knowledge of emergency response information, self-protection measures, and accident prevention methods and procedures. The requirements for hazmat employee training … [and] that the employer maintain records of the employee’s hazmat training, including the employee’s training certificate, training materials, and instructor information for at least three years. Hazmat employees must receive recurrent training at least once every three years … How many hazmat shippers have employees who only are involved in pre-transportation functions for LTD QTY material by highway, rail, and vessel? How many hazmat employees in the United States are only involved in pre-transportation functions for LTD QTY material by highway, rail, and vessel?

Removal of the 60-Day Renewal Requirement for Approvals and Special Permits: PHMSA issues renewals of special permits and approvals in accordance with the provisions of §§ 107.109 and 107.705, respectively. Sections 107.109(b) and 107.705(c) authorize the continued use of the special permit or approval until final administrative action is taken on the renewal application, provided that the applicant requests renewal at least 60 days before the special permit or approval expires. PHMSA understands that some stakeholders believe that the requirement to apply for renewal at least 60 days before expiration may be too burdensome on the regulated community. PHMSA is considering changing the requirement to authorize continued use of the special permit or approval until final administrative action is taken on the renewal application, provided the applicant applies for renewal before the special permit or approval expires.”

Design Certifying Engineer Experience: “Design Certifying Engineers (DCEs) are required to review and approve the design of specification cargo tanks, and PHMSA is considering whether to require that a DCE perform a similar role for tank cars. DCEs, as defined in § 171.8, are required to register with the Department and meet education and experience requirements … PHMSA would consider an alternate definition for tank car DCEs that mirrors the existing cargo tank definition, except we would not include the clause in (3) that permits individuals who do not meet the criteria in (1) and (2) to work as DCEs based on their historical status. The current definition of DCE allows professional engineers with no experience in structural or mechanical design to register as a DCE and certify the design of a cargo tank, and PHMSA is considering the same for tank cars to maintain consistency for the definition. PHMSA, FMCSA, and FRA request comment on the following questions to evaluate the current state of the DCE community:

Are there any professional engineers who had no previous experience in cargo tank structural or mechanical design currently registered with the Department as a DCE for cargo tanks? Explain.
Is a professional engineer with no experience in cargo tank structural or mechanical design capable of adequately reviewing and certifying a cargo tank design?
Is a professional engineer with no experience in tank car structural or mechanical design capable of adequately reviewing and certifying a tank car design?
Do you support adding a one-year experience requirement for professional engineers seeking to become DCEs? Explain. For example, “Is currently registered as a professional engineer by appropriate authority of a state of the United States or a province of Canada and has at least one year of work experience in cargo tank/tank car structural or mechanical design.” Why or why not?

Identification of Freight Containers in Rail Transportation: Proper emergency response to a hazardous materials incident begins with identification of the types and quantities of the hazardous material involved in the incident. The HMR require several types of hazard communication intended to communicate the hazards present in a shipment, including hazard class labels and placards that communicate the general type of hazard present, and UN identification number (UN ID) markings that communicate the specific material in the packaging, vehicle, or freight container. A shipping document that identifies the materials carried onboard must also be available for use in emergencies or inspection scenarios.

Rail transportation presents unique challenges for emergency response based on the length of a train and the potential for chaotic accident scenes after a derailment or collision. Emergency response efforts for rail incidents typically involve the Notice to Train Crew, also known as a train consist, a document carried by the train crew. This document identifies the current position in the train of each rail car containing a hazardous material and provides the hazardous material shipping paper information and emergency response information required under part 172 of the HMR. Emergency responders can use this train consist information to identify the contents of a rail car based on its position in the train and unique identifier markings on the rail car, even if the placards and UN ID markings are obscured or destroyed during the accident.

Use of train consist information in this way depends on the ability of the emergency responder to accurately identify rail cars after an accident, which may involve the scattering of the rail cars and the freight containers carried by flatcars over a wide geographical area. It is PHMSA and FRA’s understanding that current industry practice is to mark each freight container with a unique identification number to track the freight container through the shipping process. The HMR require that this unique identification number be entered on the hazmat shipping paper when such a mark is present on a freight container. However, the HMR do not require that this marking appear on the freight container in a specific location, nor does the HMR prescribe any requirements for the durability, legibility, or size of this freight car identification marking. This can hinder emergency response efforts in an accident, as emergency responders lack a consistent way to identify freight containers that have been thrown free of the rail cars that carried them. PHMSA requests comment on the following questions related to marking a unique identifier on freight containers transported by rail:

Do you support creating requirements for the specific location, size, durability, and legibility of a freight container’s unique identifier markings in rail transportation? Why or why not?
Do you support adoption of the IMO Convention on Safe Containers (CSC) marking requirements for freight containers transported by rail?
Would adoption of requirements for location, size, durability, and legibility for unique identifier markings on freight containers impose costs on the regulated community?
Would this adoption produce quantifiable or monetizable safety benefits for communities? Would it produce quantifiable or monetizable environmental benefits? Explain.
Would this adoption reduce the number of needed “response hours” and the associated public burden and costs of response for local police, firefighters, or hazmat response units? Explain.
What is the paperwork burden to include unique identifiers for freight containers on shipping papers? To what degree are freight containers used in rail transportation already marked with these unique identifiers?
How consistent are existing marking standards? How significant of a change in marking standards would it be for all offerors and carriers to adopt more rigorous identification marking requirements?

Exceptions for Rail Transport of Lithium Batteries for Purposes of Recycling and Disposal: The HMR provide exceptions for the transportation of lithium cells and batteries to recycling and disposal facilities. To date, the exceptions for transport of lithium cells and batteries for purposes of recycling or disposal have been limited to motor vehicle transport. The exceptions provide relief from testing and recordkeeping requirements and UN POP packaging requirements. Cells and batteries must be placed in packages meeting general packaging requirements and must be protected from shifting, damage, and short circuits. Damaged, defective, or recalled (DDR) cells and batteries are not eligible for this exception. Currently, lithium batteries shipped for the purposes of recycling or disposal may be transported by any mode when fully regulated; however, exceptions fare only allowed for highway transportation.

How many shipments of lithium batteries destined for recycling or disposal are made by rail annually?
How many shipments of lithium batteries for recycling or disposal would be made by rail annually if we expanded the exception in § 173.185(d) to include rail transportation?
Would more lithium batteries be shipped by rail if the exception was expanded to include rail transportation? Or would modifying the exception mainly result in existing rail shipments of lithium batteries for recycling or disposal shifting to non-UN POP packaging?
What are the cost savings, if any, of a rail shipment of lithium batteries for recycling or disposal compared to a motor vehicle shipment?
Do existing lithium battery hazard communication requirements (including for batteries granted exceptions in § 173.185(c)) adequately convey the risk inherent to the transportation of container loads of used lithium batteries?
Should a packaging size limit or shipment weight limit be implemented for transportation of lithium batteries in accordance with § 173.185(d)? If so, what should the limit be?
Are safety risks to the public and railroad employees elevated when shipping large volumes of used lithium batteries in containers by rail in accordance with this exception? If so, to what extent/magnitude?
Are there unique risks associated with shipping large volumes of lithium batteries by rail, including in containers that are not well ventilated? If so, should PHMSA consider additional safety measures and hazard communication requirements to reflect those risks, even when moving under packaging exceptions in § 173.185?
Would an exception to the provision on specification packaging requirements—but not testing and recordkeeping requirements—in § 173.185(a) enhance the transportation of larger volumes of lithium batteries for disposal and recycling while maintaining safety protocols? Please explain.
What are the safety benefits, if any, of shipping damaged, defective, and recalled (DDR) batteries by rail rather than by motor vehicle? Would there be a material impact on the number of incidents or the severity of incidents?

Tank Car Manway Inspections: Tank cars designed for the transportation of hazardous liquids are constructed with an opening large enough to permit the access of a person to the inside of the tank, known as a manway. Such openings are necessary to permit the entry of a person inside the tank car to conduct periodic inspections, repairs, and other operations requiring access to the inside of the tank. The manway opening is closed with a manway cover, and a gasket is placed between the manway nozzle and the manway cover to create a seal that prevents the release of the hazardous contents of the tank either in liquid or gaseous form and prevents the entry of air or moisture into the tank during transportation. Manways are often used (i.e., opened) during the loading and unloading of tank cars either to relieve vacuum during unloading, or to permit the placement of a hose through which product is pumped into the tank during loading. The HMR require the person who offers the tank car into transportation (i.e., the offeror) to externally visually inspect the tank car’s gasket(s) to detect any damage or other condition ( e.g., deterioration) that could make the tank car unsafe for transportation as part of the broader process of examining the tank car to make sure it is in proper condition and safe for transportation prior to shipment (i.e., pre-trip inspection). PHMSA understands [current regulations] to require that the manway gasket must be visually inspected whenever the tank car is offered into transportation regardless of whether the manway was opened or not during a loading or unloading operation.

On Nov. 14, 2016, PHMSA, in consultation with FRA, issued revised Letter of Interpretation Reference Number (Ref. No.) 15–0031R,which states, in part, “. . . without opening a hinged and bolted manway and observing the condition of the manway’s gasket, there is no way an offeror can reasonably perform a visual inspection of the gasket to meet the minimum inspection requirement of § 173.31(d)(1)(ii) or know that the gasket meets the performance requirements of either §§ 173.31(d)(2) or 173.24. This rationale applies generally to other tank car fittings designed to be opened/removed for the purposes of loading or unloading and serve as primary or secondary closures (including, for example, plugs or caps on top valves, etc.). To ensure compliance with these requirements, an offeror must remove the bottom outlet cap and open the manway cover and inspect the condition of the gasket, regardless of whether the offeror used the fitting during a particular loading/unloading event.”

PHMSA believes that it is likely that additional companies besides Phillips 66, Dow Chemical, and Kraton are capable of loading and unloading tank cars without opening the manway, and therefore may be interested in seeking similar special permits or party status to existing special permits. PHMSA anticipates evaluating future special permit requests and potential regulatory changes that would authorize pre-trip inspections of manway gaskets via a method other than external visual inspection. We seek a greater understanding of the state-of-the-art tank car loading and unloading to evaluate options to replace visual tank car manway gasket inspections.

Based on data collected by FRA, from 2018–2020, 29%of non-accident releases (NARs) occur at the manway. The root cause for a significant number of these NARs is traced to human error during manway closure, improper tool use, or another issue that could be avoided if the manway was not opened during loading or unloading. Therefore, PHMSA recognizes that it may be in the interest of safety as well as reduction of regulatory burden to encourage tank car shippers to keep manways closed during loading and unloading, and accordingly allow for an alternate method of inspecting the integrity of the manway gasket.

PHMSA requests comment on the following questions to assist our evaluation of special permit requests and potential regulatory revisions. PHMSA plans to use this information to better inform its evaluation of requests for Special Permits on this topic and, as appropriate and in keeping with its standard procedures, in its future review of special permits for suitability of their potential inclusion in the HMR:

Please present specific alternative methods for verifying the manway gasket condition, besides an external visual examination of the manway gasket during the pre-trip inspection. For each method provided, how much does it cost to implement per shipment relative to the current method of visual inspection? Provide any information available to you indicating how this method for verifying the manway gasket condition would maintain a level of safety at least equivalent to a visual inspection of the gasket during the pre-trip inspection. Are there gasket materials known to remain leak tight over multiple trips for specific ladings? If so, describe the gasket material/hazardous material lading combination, and the method by which multi-trip leak tightness has been validated. Are there gasket materials known not to remain leak tight over multiple trips with specific ladings? If so, describe the gasket material/hazardous material lading combination and how usage of such gaskets could be eliminated from service in tank cars used in an alternate leak tight inspection program.
Are you aware of any accidents or near-miss incidents that could have led to fire, explosion, or other hazardous incidents related to opening the manway cover as part of the pre-trip inspection? If so, please provide all available information relating to the incidents to PHMSA.
Please quantify the cost burden associated with product degradation caused by introduction of ambient air or moisture into the tank during the manway gasket inspection.
How many tank car shipments are made annually that require opening the manway solely for the purpose of inspecting the manway gasket ( i.e., the manway is not involved in any other inspection, loading, or unloading purpose)?
How much time is spent, per shipment, opening a manway and visually inspecting the gasket? What labor category of employee conducts this inspection?
What additional costs are associated with a visual inspection of a manway gasket besides the employee’s time ( e.g., tools, equipment, replenishing of inert atmosphere)? For example, does the manway gasket inspection requirement contribute to wear and tear on the tank car components? If yes, please describe to what extent this has a material impact. Does the manway gasket inspection requirement adversely affect the quality of the hazardous material commodity ( e.g., purity, concentrations)? If yes, please elaborate with specific examples.
Given the reliability issues that arise with hinged and bolted manway covers, should PHMSA consider phasing out hinged and bolted manway covers altogether? If hinged and bolted manways were no longer authorized on general purpose tank cars, how would loading operations need to be altered? What would be the costs of altering those loading operations? Several hazardous materials authorized in general purpose tank cars are loaded through the hinged and bolted manway cover. Are there materials that can only be loaded using the hinged and bolted manway cover? A fittings plate is an option for loading a tank car without operating the hinged and bolted manway cover. Is there other technology that would be utilized in place of hinged and bolted manway covers? If yes, please describe. What would be the associated costs of replacing hinged and bolted manway covers with a fittings plate or an alternative closure? What length of transition time would be needed to completely remove all hinged and bolted manway covers from tank cars?
A tank car requires a qualification and maintenance program per part 180, subpart F. With respect to questions presented in item #7, what would be the impact on the tank car’s qualification and maintenance program if implemented?
How many hazardous material non-accident releases would likely be prevented if hinged and bolted manway covers were replaced by a more permanent closure?
Could eliminating hinged and bolted manway cover designs remove the need to open manways and inspect the gaskets? What are the cost savings in terms of time and equipment reliability that might be recognized by tank car offerors?

Acid Resistant Manways for DOT 111A100W5 Tank Cars: Section 179.201–6(b) requires that the top, bottom, and edge of a manway cover for a DOT–111A100W5 tank car must be covered by an acid resistant material, unless the metal manway cover is made from material that is not affected by the lading. In the time since this requirement was created, DOT–111A100W5 tank cars have entered service for non-acidic materials, including sodium hypochlorite. PHMSA received a comment from the 2017 Regulatory Reform Notice from the Olin Corporation requesting that PHMSA revise § 179.201–6(b) to require that DOT–111A100W5 tank car manway covers instead be covered with a material appropriate for the commodity or product, which could include non-acidic materials. PHMSA requests comment on the following questions to evaluate this comment:

Do companies besides Olin Corporation use DOT–111A100W5 tank cars to transport materials other than acids? How many other companies?
How many DOT–111A100W5 tank cars are impacted by this issue?
If this proposal is adopted, what methods could the owner of a DOT–111A100W5 tank car use to inform potential future owners and users that the manway lining is not resistant to acids as outlined in § 179.201–6(b)? Should a new marking or delimiter be adopted to account for tank cars with manways that are not made of acid resistant material?
What benefits would adopting this proposal provide to DOT–111A100W5 owners and users? Would this provide a safety benefit by requiring the manway lining be resistant to the lading carried in the tank car?
Would there be cost savings for manufacturers or purchasers of these tank cars due to using less expensive materials for the manway covers?
Would it be best to specify the requirements for non-acidic DOT–111A100W5 tank cars in a special permit rather than the HMR? Explain.
Should a new specification delimiter be created to segregate these tank cars from original DOT–111A100W5?
How frequently are these tank cars used for acidic materials? For non-acidic materials?
Are these tank cars used for both? Do the manway covers need to be re-covered prior to each use, appropriate for the commodity or product?

Tank Car Thermal Protection Standard: DOT–117 tank cars used to transport flammable liquids, including crude oil and ethanol, must be constructed with thermal protection systems designed to protect the tank car from fire and heat (see §§ 179.18 and 179.202–6). The thermal protection standard establishes the performance requirement of a tank car and thermal protection system when exposed to a 1,600 °F pool fire for 100 minutes, and a 2,200 °F torch fire for 30 minutes (see Appendix B to part 179—Procedures for Simulated Pool and Torch-Fire Testing). To pass the Part 179, Appendix B tests, the thermal protection systems must prevent a rise in temperature above 800 °F on the non-exposed side of the test plate. This standard is designed to reduce the potential harm to human health and the environment caused from exposure to a fire resulting from an accident.

Norfolk Southern submitted a comment to the 2017 Regulatory Reform Notice, requesting modifications to this thermal protection testing. Specifically, Norfolk Southern describes research conducted by the Association of American Railroads Thermal Blanket Task Force that suggests that doubling the pool fire survivability standard is possible using currently available thermal protection systems. Norfolk Southern also states that the majority of “DOT–11[7]” tank cars are being equipped with thermal protection systems that do not meet the new Thermal Blanket Task Force proposed standard. Norfolk Southern requests that PHMSA adopt a new, more stringent thermal protection standard for DOT–117 tank cars that would replace the long-standing performance requirements. To evaluate this request, PHMSA requests comment on the following questions:

What specific change to the HMR is requested to address the issue identified by Norfolk Southern?
Task Force Activities: Has the Thermal Blanket Task Force developed a new consensus standard for thermal protection? If so, please provide a copy of the standard if possible. Has the Task Force addressed DOT–113 tank cars carrying flammable cryogenic material ( i.e., Liquified Natural Gas)? What is the status of any proposed standard currently? What is the timeline for finalization?
In general, should PHMSA consider increasing the minimum 100-minute pool fire standard to 200-minutes or longer in § 179.18(a)? Explain. Should the new standard apply only to new manufacture? Explain. If yes, what would be the appropriate timeframe to mandate compliance with the 200-minute standard for new manufacture? Should it apply retroactively? If yes, what would be the appropriate timeframe to retrofit existing tank cars that do not meet 200-minute standard? How does the implementation of the HM–251C “FAST Act Requirements for Flammable Liquids and Rail Tank Cars” final rule, August 15, 2016)factor into whether the 200-minute standard should be reserved for new manufacture or apply retroactively to include retrofitting existing tank cars?
Should PHMSA consider reducing the part 179, Appendix B back-plate temperature acceptance criteria from 800 °F to a new lower temperature? If so, what should the temperature be? What scientific data supports the new acceptance criteria? Please provide the data supporting any new acceptance criteria.
Newly constructed DOT–117 tank cars require a 1/2-inch thermal protection blanket per § 179.202–6(b). Norfolk Southern claims new DOT–117 tank cars are being equipped with thermal protection material that would not achieve their new minimum safety standard. Please provide detailed information and justification of this claim. How many DOT–117 tank cars have been or are being equipped with this allegedly insufficient thermal protection material? What is the insufficient thermal protection material and what makes it insufficient or underperform relative to the 200-minute standard?
If Norfolk Southern is proposing a new performance standard of 200 minutes for all tank cars carrying flammable liquid commodities that require a § 179.18-compliant thermal protection system, are all existing thermally-protected tank cars ( e.g., DOT–105s, DOT–112s and DOT–117s with approved 1/2 inch thermal blankets) capable of achieving the new standard? Should the new thermal protection performance standard apply to all tank cars requiring thermal protection? Is there a subset of higher-risk flammable liquid tank cars for which the 200-minute standard would be most appropriate?
Norfolk Southern references a “recently published AFFTAC” model showing the thermal protection performance can be doubled with currently available materials. PHMSA requests the AFFTAC study referenced in this comment as well as a summary of the underlying assumptions/inputs to those models. PHMSA also requests any additional information that will support the Norfolk Southern proposal and the AFFTAC study. Does the thermal model address every currently authorized thermal protection material? Does the thermal model address the various types of steel/thickness that is authorized by the HMR? Were Class 2 flammable gases modeled in addition to Class 3 flammable liquids?
How many tank cars would need to be retrofitted if PHMSA and FRA implemented a new thermal protection standard that applied retroactively? Please provide separate estimates for flammable liquids and other commodities. How many existing DOT–105, DOT–112, and DOT–117 tank cars would be affected by the proposed change?
What is the cost of a thermal blanket that meets the proposed standard, compared to thermal blankets that meet the current standard? In other words, please express the unit cost of each technology and the resulting cost differential.
How much would it cost to manufacture a new tank car to the new standard? How much would it cost to retrofit a tank car to meet the new standard? Please consider additional labor costs in the case of new manufacture vs. retrofit. Please also describe other categories of costs and the amount that may be relevant.
If the new 200-minute standard were adopted, what additional amount of incident damages could be avoided relative to the current 100-minute standard? If possible, please express this in qualitative as well as quantitative terms, including estimates of the monetary value of avoided damages. Please note, avoided damages may include avoided damages to property (both public and private), the environment, and human health and safety. Related, it could include avoided costs to society on the basis that incidents may be more severe, and the emergency response more difficult or dangerous, with the baseline standard (100 minutes) versus the proposed standard (200 minutes).
Are there specific rail incidents that would have been less severe if the 200-minute proposed standard were already achieved? Is there a documentation of challenges and impacts to the emergency response that resulted from the current 100-minute standard?
Is the proposed 200-minute standard appropriate for all hazardous materials that require thermal protection systems, or is there a specific reason to apply this standard only to flammable liquids?

Unoccupied Locomotive Train Placement: The HMR require separation between locomotives, occupied cabooses, and placarded rail cars (including tank cars) containing hazardous materials in rail transportation. This separation is accomplished by placing non-placarded rail cars, known as “buffer cars,” between the placarded rail car and the locomotive (also known as the engine or power unit) or occupied caboose. The intent of this requirement is used to protect the train crew in the engine or caboose from hazardous materials released during an accident.

On Jan. 29, 2020, PHMSA received a petition for rulemaking from the Association of American Railroads (AAR), requesting that PHMSA amend the requirements in § 174.85.PHMSA accepted this petition for rulemaking and assigned it the identifier P–1741. Specifically, AAR requests that PHMSA amend § 174.85 to no longer require the use of buffer cars to separate placarded rail cars from unoccupied locomotives, also known as unoccupied head end locomotives, distributed power units or dead in tow locomotives.

To evaluate AAR’s request, PHMSA seeks comment on the following questions:

Do railroads use distributed power units to transport employees? If so, how will railroads ensure that an occupied distributed power unit is provided the required buffer cars?
Do you support the creation of operational controls beyond the requested revision in P–1741? Why or why not? Should a distinction for buffer car requirements be drawn between unoccupied head-end locomotives, distributed power units, and dead-in-tow locomotives? What operational controls ( e.g., locked doors, door tags with a message prohibiting entry), if any, are appropriate to identify a locomotive as an unoccupied distributed power unit? Are there any hazard class or divisions that should still require compliance with buffer car requirements, even from unoccupied distributed power units? If so, how many buffer cars? If operational controls ( e.g., locked doors, door tags), and maintenance of buffer car requirements for unoccupied distributed power units for certain high hazard materials are proposed, would that impact the estimated cost savings projected in the petition? To what extent?
Does removing the requirement for buffer cars around distributed power units create any additional risks to railroad employees or the general public? Explain.
Across all railroads, how many switching moves occur annually? If unoccupied locomotives are no longer required to be separated from placarded rail cars, how many fewer switching moves would be required across all railroads? If unoccupied locomotives are no longer required to be separated from placarded rail cars, how many fewer switching moves would be required for Class I, II, and III railroads?
Would other benefits ( i.e., increased number of cars in revenue service) accrue to railroads if buffer cars are no longer required around distributed power units?
Is the estimate of annual savings of $180,000–$450,000 per railroad accurate for Class I railroads? What are the estimated savings for Class II and Class III railroads? What other costs, if any, are associated with this requirement, or is the only quantifiable financial impact the cost savings described above? Please describe all other sources of cost savings or costs.
How do railroads acquire buffer cars? What commodities or materials do buffer cars typically contain? Would eliminating the buffer car requirement disproportionally affect customers/related entities? How can the market for buffer cars be described? Who would be most affected by eliminating the demand for buffer cars?

Offering a Tank Car After Qualification Expiration: The HMR require that tank cars used to transport hazardous material by rail must be qualified to remain in hazardous material in accordance with part 180, subpart F. The maximum intervals for the required inspections and tests are listed in § 180.509(c)(3); however, a tank car owner may specify shorter test and inspection intervals in their tank car test and inspection plan. FRA, based on a high volume of requests for guidance, is aware of confusion among the tank car community about whether a tank car filled with a hazardous material before the expiration of a test or inspection can be offered into transportation after the test or inspection’s expiration date.

Section 173.31(a)(3) states: “No person may fill a tank car overdue for periodic inspection with a hazardous material and then offer it for transportation.” This language is similar to that used for other packages that require periodic requalification, including cylinders (see § 180.205(c)), cargo tanks (see §§ 173.33(a)(3) and 180.407(a)(1)), portable tanks (see § 173.32(a)(2)), and IBCs (see § 173.35(a)).

Based on § 173.31(a)(3), PHMSA and FRA have provided the guidance that a tank car may be filled prior to expiration of its qualification and offered after the qualification interval has expired. Historically, FRA has only cited violations of the HMR if an offeror loaded a car after its test date has passed and then offered that car into transportation. However, FRA still receives numerous calls and emails seeking guidance on moving a tank car that is loaded prior to the requalification date and offered after, which indicates that the current language does not adequately address this particular scenario. Additionally, PHMSA and FRA are aware that our historical guidance on this issue conflicts with current industry practice, which does not permit the transportation of a car offered to the railroad after the expiration of qualification without a One Time Movement Approval.

We are seeking comments on whether the language in this paragraph should be amended to further clarify how it applies to the scenario where tank cars are loaded prior to their requalification date and offered after the requalification date has expired. Therefore, PHMSA, in consultation with FRA, seeks comment on the following questions:

Is the current language in § 173.31(a)(3) sufficient to address the scenario of loading a tank car prior to the next required requalification date and offering it after it is overdue for requalification?
Should § 173.31(a)(3) be clarified so that it more clearly permits the movement of a car that was loaded prior to its required requalification date but is now overdue for requalification?
Permitting cars to be loaded prior to expiration of the requalification interval and offered after could allow an indefinite period of time to pass before the expired car is actually offered into transportation, particularly if it was stored on private track for months or years. Does this create a potential safety issue?
Should PHMSA consider placing a deadline on the amount of time an offeror has to transport a loaded hazmat tank car that is overdue for qualification? If so, what should that time limit be? Potential time limits to consider are three months, six months, one year, or two years. Please provide any safety data or reliability information to support the proposed deadline.
Should PHMSA forbid the offering of any loaded tank car that is overdue for requalification, regardless of when it was loaded?
Is the practice of filling tank cars prior to expiration of the qualification date and then offering the tank car after expiration of the qualification date more prevalent in certain industries? If so, please describe.

NTSB Safety Recommendations R–20–1 to R–20–4: On Feb. 14, 2020, the National Transportation Safety Board (NTSB) issued four related safety recommendations to PHMSA and FRA.Safety Recommendations R–20–1 to R–20–4 were issued after the investigation of a release of ethanol from a DOT–111A100W1 tank car in Fredericksburg, VA on November 2, 2016. The NTSB determined that the probable cause of the ethanol release was undetected cracks that resulted from overspeed high-energy coupling events, which caused tank shell deformation that led to the initiation of two fatigue cracks at the terminations of the cradle pad fillet welds. Based on the findings of the investigation, NTSB issued the following safety recommendations to PHMSA and FRA:

R–20–1—Work together to develop maximum coupling speed thresholds and impact mass limits for hazardous materials railcars.
R–20–2—Require that tank cars involved in high-energy coupling-force events undergo a structural integrity inspection by a qualified technician before returning to service.
R–20–3—Develop methods to identify tank cars that have sustained overspeed and high-energy coupling force events.
R–20–4—After the successful development of methods to identify tank cars that have sustained overspeed and high-energy coupling force events, require that rail carriers have monitoring processes in place to promptly remove damaged tank cars from hazardous materials service.

The intent of this collection of safety recommendations is to prevent releases of hazardous materials from occurring due to damage to cars from overspeed or high-energy coupling events by: (1) minimizing the opportunity for these events; and (2) discovering damage in a timely manner so that corrective measures can be taken. PHMSA and FRA concur with the NTSB’s conclusion that reducing overspeed and high-energy coupling-force events, inspecting the structural integrity of tank cars that have experienced these events, and identifying and removing tank cars damaged by these events is in the interest of improving tank car safety. In this ANPRM, we describe existing regulatory standards designed to address overspeed coupling, and seek comment from railroads, tank car shippers, tank car manufacturers, tank car owners, and any other interested parties on the best means to address this issue.

The HMR address tank car coupling speed in § 174.83(b) for certain materials:

Division 1.1 and 1.2 explosives.
Division 2.3 Hazard Zone A gas.
Division 6.1 PG I Hazard Zone A material.
Class DOT 113 tank car displaying a Division 2.1 (flammable gas) placard, including a Class DOT 113 tank car containing only a residue of a Division 2.1 material.

Section 174.83(b) requires that tank cars containing these materials may not be cut off while in motion, coupled into with more force than is necessary to complete the coupling, or struck by any car moving under its own momentum. Section 174.83(e) addresses flatcar coupling as follows: “No placarded flatcar or any flatcar carrying a placarded transport vehicle, freight container, or bulk packaging may be coupled into with more force than is necessary to complete the coupling.”

Voluntary rail industry standards also address tank car coupling speeds. AAR Circular OT–55–Q states, “Maximum reasonable efforts will be made to achieve coupling of loaded placarded tank cars at speeds not to exceed 4 mph.” The United States Hazardous Materials Instructions for Rail (US–1) states, “When rail cars are cut off in motion, the coupling speed must not exceed 4 mph.” As noted in the NTSB report, the existing regulatory requirements and voluntary industry standards did not prevent the hard-coupling event that led to the ethanol release in Fredericksburg, Va., on Nov. 2, 2016.

Transport Canada has implemented coupling speed standards and inspection requirements for tank cars that experience overspeed coupling events in Section 10.7 of the Transportation of Dangerous Goods (TDG) Regulations.The TDG Regulations’ coupling speed standards consist of a general limit of 6 mph for coupling, with allowance for 7.5 mph for a single railway vehicle moving under its own momentum at temperatures above −25 °C. Additionally, the TDG Regulations require a visual inspection of the underframe, and coupling and cushioning components of the tank car before the tank car travels 2 kilometers after one of the following overspeed coupling events occurs, as follows:

Additionally, the person in possession of the tank car when the overspeed coupling event occurs must submit a written report to the tank car’s owner within 10 days, informing the owner of the overspeed coupling event. The tank car owner must then ensure the tank car is not used in hazardous materials service, other than the lading contained in the tank car at time of coupling, until a detailed structural integrity inspection can be conducted by a tank car facility.

FRA and PHMSA note that the standards adopted by Transport Canada in the TDG Regulations align with the intent of NTSB Safety Recommendations R–20–1 and R–20–2, in that they address coupling speed thresholds and impact mass limits, as well as require a detailed structural integrity inspection for tank cars that experience coupling events beyond the coupling speed and mass thresholds. However, Safety Recommendations R–20–3 and R–20–4, for identification of cars that experience overspeed coupling events, and rail carrier monitoring procedures to remove a tank car damaged in an overspeed coupling event from service, do not currently have a direct precedent in American, Canadian, or voluntary industry standards. While there are technologies in use to monitor coupling speeds, neither PHMSA nor FRA believe that a systematic, industry-wide process has been implemented to monitor overspeed coupling. Since no systematic overspeed coupling monitoring system exists, a system for carrier identification of tank cars that have experienced overspeed coupling events would also need to be developed. With consideration of the existing coupling speed standards, and recognition of the need to gather more information to develop monitoring system standards, PHMSA and FRA request comment on the following questions:

Do you support adoption of the Transport Canada coupling speed and impact mass standards, described above, into the HMR? Why or why not? Please support your position with any data or information available to you.
Do you support requiring a visual inspection of the tank car underframe, and coupling and cushioning components immediately (within 2 km, or 1.25 miles) after an overspeed coupling event that exceeds certain speed and impact mass standards? Why or why not? Please support your position with any data or information available to you. Is requiring an immediate visual inspection of the tank car before the train moves 2 km (1.25 miles) miles a reasonable standard? What alternatives should be considered? If this requirement was adopted, who would/should conduct the inspection? Are railroad personnel trained/qualified to perform the inspection? How much time would each visual inspection require? What costs would be associated with the adoption of this requirement? Provide a quantified estimate, if possible.
Do you support requiring a detailed structural integrity inspection, conducted at a certified tank car facility, for a tank car subjected to a coupling that exceeds certain speed and impact mass standards? Why or why not? Please support your position with any data or information available to you. If this requirement was adopted, how much would inspection services cost a tank car owner? Please include estimates for time out of service, inspection labor, recordkeeping, and all other costs associated with a structural integrity inspection.
What methods or procedures are currently in use to measure tank car coupling speeds and avoid high-energy, overspeed coupling events?
What methods or procedures are currently in use to identify tank cars that have experienced high-energy, overspeed coupling events?
Describe a system that could be used to measure all tank car coupling events and identify tank cars that have experienced a high-energy, overspeed coupling event. The system should use existing methods, procedures, and available technologies to the extent practical. How much would it cost to develop and implement such a system? Estimates are acceptable. Please provide as detailed a cost breakdown as possible addressing research and development (if required), capital expenditures, employee wages, etc. associated with your estimate. How much would it cost to maintain such a system? Estimates are acceptable. Please provide as detailed a cost breakdown as possible addressing capital expenditures, employee wages, etc. associated with your estimate. Who would bear the costs for the development, implementation, and maintenance of the system you describe? If such a system was implemented, would you support a requirement that the person in possession of a tank car that experiences a high-energy, overspeed coupling event must report all such events to the tank car owner and/or the Department of Transportation, regardless of whether the event results in the release of hazardous materials? Why or why not? In your estimation, how many such reports would be filed nationwide annually, if such a requirement was adopted?
Please provide any information available to you on the rate of high-energy or overspeed coupling events that occur without causing an immediate release of hazardous materials. How often do high-energy or overspeed coupling events occur with no immediate release of hazardous materials?
In consideration of the intent of the safety recommendations, rather than imposing a speed or impact mass standard and associated procedures, what alternative measures could be implemented to arrive at the same goal of preventing incidents that result in the release of a hazardous material because of damage to a tank car from overspeed and high energy coupling events?

Placard Display on Intermediate Bulk Containers: Section 172.516 details the visibility and display of placards. Paragraph (a) specifies that each placard on a motor vehicle or rail car must be “clearly visible from the direction it faces, except from the direction of another transport vehicle or rail car to which the motor vehicle or rail car is coupled.” Furthermore, this paragraph indicates that placards displayed on a freight container or portable tank can be used to meet this visibility requirement.

PHMSA has received several requests for letters of interpretation on whether placards displayed on IBCs or shrink-wrapped pallets containing multiple non-bulk packages of hazardous materials may be used to meet the § 172.516 visibility requirement, in addition to those placards displayed on a freight container or portable tank. Examples of these letters include 20–0025and 10–0075.PHMSA has provided the guidance that such placard display is permissible, and would meet the requirements of § 172.516, provided the placards are clearly visible from the direction the placard faces. To encourage a uniform understanding of placard display requirements, PHMSA is considering a revision to § 172.516 to clearly authorize motor vehicle placard display on IBCs, shrink-wrapped pallets containing non-bulk packages, or other arrangements that permit adequate visibility of placards for each direction they face.

To evaluate the feasibility revising the placard visibility requirements in the HMR to allow motor vehicle placard display to be accomplished by displaying placards on IBCs, shrink-wrapped pallets, or other arrangements besides freight containers or portable tanks, PHSMA seeks comments on the following questions:

In your opinion, should PHMSA revise § 172.516 to clearly authorize motor vehicle placard display on IBCs, shrink-wrapped pallets containing non-bulk packages, or other arrangements that permit adequate visibility of placards for each direction they face? Why or why not?
Would placards displayed on IBCs or shrink-wrapped pallets containing non-bulk packages be as visible and recognizable in normal transportation scenarios and accident scenarios compared to placards displayed on a freight container or portable tank?
Would a revision to § 172.516 to clearly authorize motor vehicle placard display on IBCs, shrink-wrapped pallets containing non-bulk packages, or other arrangements that permit adequate visibility of placards for each direction they face create any cost savings for hazardous material shippers or transporters? Please provide a cost-savings estimate per shipment, including time savings, if applicable.