# Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars

- **operation:** document
- **citation:** 81 FR 53935
- **title:** Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** historical
- **official:** true
- **published on:** 2016-08-15
- **effective on:** 2016-08-15
- **summary:** The Pipeline and Hazardous Materials Safety Administration is issuing this final rule to codify in the Hazardous Materials Regulations certain mandates and minimum requirements of the FAST Act. Specifically, the FAST Act mandates a revised phase-out schedule for all DOT Specification 111 tank cars used to transport unrefined petroleum products (e.g., petroleum crude oil), ethanol, and other Class 3 flammable liquids. The FAST Act also requires that each tank car built to meet the DOT Specification 117 and each non-jacketed tank car retrofitted to meet the DOT Specification 117R be equipped with a thermal protection blanket that is at least \1/2\-inch thick and meets existing thermal protection standards. Further, the FAST Act mandates minimum top fittings protection requirements for tank cars retrofitted to meet the DOT Specification 117R.
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Federal Register, Volume 81 Issue 157 (Monday, August 15, 2016) [Federal Register Volume 81, Number 157 (Monday, August 15, 2016)] [Rules and Regulations] [Pages 53935-53957] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2016-19406] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 173 and 179 [Docket No. PHMSA-2016-0011 (HM-251C)] RIN 2137-AF17 Hazardous Materials: FAST Act Requirements for Flammable Liquids and Rail Tank Cars AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Pipeline and Hazardous Materials Safety Administration is issuing this final rule to codify in the Hazardous Materials Regulations certain mandates and minimum requirements of the FAST Act. Specifically, the FAST Act mandates a revised phase-out schedule for all DOT Specification 111 tank cars used to transport unrefined petroleum products (e.g., petroleum crude oil), ethanol, and other Class 3 flammable liquids. The FAST Act also requires that each tank car built to meet the DOT Specification 117 and each non-jacketed tank car retrofitted to meet the DOT Specification 117R be equipped with a thermal protection blanket that is at least \1/2\-inch thick and meets existing thermal protection standards. Further, the FAST Act mandates minimum top fittings protection requirements for tank cars retrofitted to meet the DOT Specification 117R. DATES: Effective: August 15, 2016. ADDRESSES: Docket: You may view the public docket online at http://www.regulations.gov or in person at Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590- 0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Michael Ciccarone, (202) 366-8553, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: The FAST Act instructs the Secretary of Transportation to issue conforming regulatory amendments immediately or soon after the FAST Act's date of enactment (December 4, 2015). Because the actions taken in this final rule simply codify these non- discretionary statutory mandates, PHMSA finds that timely execution of agency functions would be impeded by the procedures of public notice that are normally required by the Administrative Procedure Act. Further, PHMSA sees no reason to delay regulatory action, as we are simply implementing the non-discretionary provisions contained in Sections 7304, 7305, and 7306 of the FAST Act. PHMSA finds that public notice is impracticable and is implementing these changes under the ``good cause'' exemption of the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), thus amending the regulations without advance notice and opportunity for public comment. Abbreviations and Terms AAR Association of American Railroads APA Administrative Procedure Act CFR Code of Federal Regulations CPC Casualty Prevention Circular DOT Department of Transportation EA Environmental Assessment FAST Act Fixing America's Surface Transportation Act of 2015 FR Federal Register FRA Federal Railroad Administration HHFT High-Hazard Flammable Train HMR Hazardous Materials Regulations HMT Hazardous Materials Table [[Page 53936]] NEPA National Environmental Policy Act NPRM Notice of Proposed Rulemaking NPV Net Present Value NTSB National Transportation Safety Board OMB Office of Management and Budget PG Packing Group PHMSA Pipeline and Hazardous Materials Safety Administration RFA Regulatory Flexibility Act RIA Regulatory Impact Analysis RIN Regulation Identifier Number RSI Railway Supply Institute TDG Transportation of Dangerous Goods U.S.C. United States Code Table of Contents I. Background II. Good Cause Justification III. Section-by-Section Review IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Unfunded Mandates Reform Act of 1995 G. Paperwork Reduction Act H. Regulation Identifier Number (RIN) I. Environmental Assessment J. Privacy Act K. Executive Order 13609 and International Trade Analysis L. Executive Order 13211 I. Background On May 8, 2015, PHMSA (also ``we'' or ``us''), in consultation with the Federal Railroad Administration (FRA), published the final rule ``Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains'' (hereafter ``HM-251 final rule''). The HM-251 final rule was an integral part of the Department's comprehensive approach to ensure the safe transportation of energy products. Specifically, the HM-251 final rule amended the Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) by defining certain trains transporting large volumes of Class 3 flammable liquids as ``high-hazard flammable trains'' (HHFT) and imposing certain operational restrictions, such as speed restrictions, braking systems, and routing.\1\ The HM-251 final rule also adopted requirements into the HMR for sampling and testing programs to ensure the proper classification of unrefined petroleum-based products transported under the HMR. Furthermore, the rule codified new tank car design standards-- namely the DOT Specification 117 (DOT-117), DOT Specification 117P (DOT-117P), and DOT Specification 117R (DOT-117R)--and established a phase-out schedule for existing DOT Specification 111 (DOT-111) tank cars by requiring use of either a DOT-117, DOT-117P, or DOT-117R tank car by certain dates for the transport of Class 3 flammable liquids in an HHFT.\2\ For more information on the HM-251 final rule, please refer to its publication in the Federal Register [80 FR 26643; May 8, 2015], as well as the information under Docket No. PHMSA-2012-0082 at the Federal eRulemaking Portal, www.regulations.gov . --------------------------------------------------------------------------- \1\ The HM-251 final rule defined an HHFT as a train comprised of 20 or more loaded tank cars of a Class 3 flammable liquid in a continuous block or 35 or more loaded tank cars of a Class 3 flammable liquid across the entire train. \2\ ``DOT-117P'' tank cars are newly manufactured tank cars or tank cars retrofitted to meet the performance criteria in Sec. 179.202-12. ``DOT-117R'' tank cars are tank cars retrofitted to meet the retrofit standard in Sec. 179.202-13. --------------------------------------------------------------------------- On December 4, 2015, President Barack Obama signed legislation entitled ``Fixing America's Surface Transportation Act of 2015,'' or the ``FAST Act.'' See Public Law 114-94. The FAST Act includes the ``Hazardous Materials Transportation Safety Improvement Act of 2015'' (see Sections 7001 through 7311) and instructs the Secretary of Transportation (hereafter ``Secretary'') to make specific regulatory amendments to the tank car design standards and phase-out schedule codified in the HM-251 final rule. A. Retrofit Schedule (FAST Act Section 7304) Section 7304 of the FAST Act mandates a commodity-specific phase- out of all DOT-111 tank cars used to transport Class 3 flammable liquids. Specifically, paragraph (a) mandates the phase-out regardless of train composition and requires that, by the dates specified in paragraph (b), all tank cars used to transport Class 3 flammable liquids meet the DOT-117, DOT-117P, or DOT-117R requirements. Paragraph (b) of Section 7304 mandates a commodity-specific phase-out schedule for DOT-111 tank cars used to transport unrefined petroleum products and ethanol--irrespective of the Packing Group (PG) \3\ assigned--as well as other Class 3 flammable liquids based on their PGs. --------------------------------------------------------------------------- \3\ Packing Group (as defined in 49 CFR 171.8) is a grouping according to the degree of danger presented by hazardous materials. Packing Group I indicates great danger; Packing Group II, medium danger; Packing Group III, minor danger. --------------------------------------------------------------------------- The phase-out schedule mandated in paragraph (b) outlines various compliance end-dates, on or after which the DOT-111 tank car (including DOT-111 tank cars built to the Association of American Railroads' (AAR) Casualty Prevention Circular 1232 standard (CPC-1232)) is no longer authorized to transport Class 3 flammable liquids. Please refer to Section III, ``Section-by-Section Review,'' in this rule for more information on the applicable end-dates of the new phase-out schedule. See Table 1 below for a comparison of the retrofit schedule of the HM- 251 final rule with the schedule imposed by the FAST Act: --------------------------------------------------------------------------- \4\ Applies only to tank cars in an HHFT configuration. \5\ Applies to a single tank car containing the denoted commodity. \6\ If these cars are not retrofitted by January 1, 2017 the owners must file a report with the Department on the number of tank cars that they own that have been retrofitted and the number that have not yet been retrofitted. \7\ The FAST Act is applicable to ``unrefined petroleum products in Class 3 flammable service, including crude oil.'' For the purposes of this phase out table, we use ``Crude'' for these materials. Table 1--Comparison of HM-251 Tank Car Phase-out Schedule vs. FAST Act Phase-out Schedule [Tank cars in Class 3 flammable liquid service] ------------------------------------------------------------------------ HM-251 phase-out FAST Act phase-out Tank car type/service deadline \4\ deadline \5\ ------------------------------------------------------------------------ Non-jacketed DOT-111s........... PG I--January 1, Crude \7\--January 2018 \6\. 1, 2018 PG II--May 1, 2023 Ethanol--May 1, 2023 PG III--May 1, Flammable PG I-- 2025. May 1, 2025 ** Flammable PG II/ III--May 1, 2029 * Jacketed DOT-111s............... PG I--March 1, Crude--March 1, 2018. 2018 PG II--May 1, 2023 Ethanol--May 1, 2023 PG III--May 1, Flammable PG I-- 2025. May 1, 2025 ** Flammable PG II/ III--May 1, 2029 * Non-jacketed CPC-1232s.......... PG I--April 1, Crude--April 1, 2020. 2020 [[Page 53937]] PG II--July 1, Ethanol--July 1, 2023. 2023 PG III--May 1, Flammable PG I-- 2025. May 1, 2025 ** Flammable PG II/ III--May 1, 2029 * Jacketed CPC-1232s.............. May 1, 2025....... Crude oil--May 1, 2025 Ethanol--May 1, 2025 Flammable PG I-- May 1, 2025 ** Flammable PG II/ III--May 1, 2029 * ------------------------------------------------------------------------ ** Extendable up to May 1, 2027, if the Secretary finds that insufficient retrofitting shop capacity will prevent the phase-out of tank cars not meeting the DOT-117, DOT-117P, or DOT-117R by the deadline. * Extendable up to May 1, 2031, if the Secretary finds that insufficient retrofitting shop capacity will prevent the phase-out of tank cars not meeting the DOT-117, DOT-117P, or DOT-117R by the deadline. The requirements of Section 7304 of the FAST Act differ from the HM-251 final rule in two ways. First, the HM-251 final rule required Class 3 flammable liquids to be transported in DOT-117, DOT-117P, or DOT-117R tank cars only if these tank cars are used in an HHFT, whereas the FAST Act removed the linkage between tank car specification and train composition, instead mandating that any Class 3 flammable liquid be transported in a DOT-117, DOT-117P, or DOT-117R tank car by the dates specified. (The FAST Act does not change the HM-251 final rule's definition of HHFT as it applies to the operational controls specified in the rule.) Second, the phase-out schedule in the HM-251 final rule was based on the PG of the Class 3 flammable liquid, among other factors, whereas the phase-out schedule imposed by the FAST Act is commodity-specific for unrefined petroleum products (including crude oil) and ethanol and based on a commodity's PG only for other Class 3 flammable liquids. Paragraph (d)(1)(A) of Section 7304 requires the Secretary to take immediate action to revise the date-specific deadlines in the HMR to align with those in the FAST Act. This rule responds to that mandate. B. Thermal Protection Blanket (FAST Act Section 7305) Section 7305 of the FAST Act requires tank cars built to meet the DOT-117 specification and each non-jacketed tank car retrofitted to meet the DOT-117R specification be equipped with an ``insulating blanket'' at least half inch thick and approved by the Secretary in accordance with 49 CFR 179.18(c). Paragraph (a) of Sec. 179.18 requires tank cars required to be equipped with thermal protection to be equipped with a thermal protection system meeting a certain performance standard (i.e., a pool fire for 100 minutes; and a torch fire for 30 minutes) and paragraph (b) contains the technical requirements for conducting a thermal analysis to verify a system's compliance with paragraph (a)'s performance standard. As paragraph (c) of Sec. 179.18 indicates, the Department maintains a list of thermal protection systems already verified to meet the performance standard and for which completion of a thermal analysis is not required. PHMSA maintains the list and for a thermal protection system to be added to the list, a manufacturer must first conduct the qualification tests in Appendix B to Part 179 of the HMR. The manufacturer must then provide the test procedures and results to PHMSA, which in consultation with FRA reviews the submitted test procedures and results. If the agencies find that the tests and results demonstrate that the system meets the performance standard of paragraph (a), the thermal protection system is added to the referenced list of tank car thermal protection systems that do not require test verification. PHMSA notes, that while the FAST Act refers to the blanket as an ``insulating blanket,'' for the purposes of clarity within the HMR, PHMSA is using the term ``thermal protection blanket.'' The FAST Act intends for the blanket to be designed and approved to withstand fire conditions as opposed to being ``insulating material'' that is designed solely to maintain the temperature of the lading during transportation and neither designed nor approved to withstand fire conditions. The HM-251 final rule did not specifically require that these tank car specifications include a thermal protection blanket as part of the thermal protection system; rather, it required that the specification tank cars meet the performance standard specified in Sec. 179.18 of the HMR, which requires that a tank car have sufficient thermal resistance so that there will be no release of tank car lading, except through the pressure relief device, when subjected to a pool fire for 100 minutes and a torch fire for 30 minutes. Section 179.18 does not require the use of a thermal protection blanket for a tank car that is required to be equipped with thermal protection, nor does it prohibit their usage, provided the thermal protection blanket meets the section's performance requirement. In drafting the HM-251 final rule, PHMSA and FRA projected that a thermal protection blanket would be the likely option chosen for a DOT-117 tank car to comply with the thermal protection requirement, and the use of thermal protection blankets is consistent with the HM-251 Regulatory Impact Analysis (RIA), which assumed the thermal blanket would be the method used to achieve the thermal protection requirements in 179.18.\8\ Although PHMSA and FRA acknowledged that new alternate technologies to thermal protection blankets may become available for meeting the performance requirement of that rule, the analysis projected that thermal protection blankets would be the technology of choice and included their cost, along with the removal and replacement of jackets (for jacketed DOT-111 cars), in the retrofit costs. --------------------------------------------------------------------------- \8\ See HM-251 Final Rule RIA, p. 172-173. --------------------------------------------------------------------------- The FAST Act takes a slightly different approach and instructs the Secretary to require a thermal protection blanket of at least \1/2\- inch-thick material on both cars built to meet the DOT-117 standard and non-jacketed DOT-117R cars. This constitutes a prescriptive standard for a thermal protection blanket that meets the performance standard specified in Sec. 179.18. This rule implements this statutory requirement in conformance with the FAST Act; therefore, a thermal protection blanket meeting Sec. 179.18(c) is now a [[Page 53938]] requirement for the DOT-117, as well as for the DOT-117R if the tank car undergoing retrofitting is non-jacketed. Paragraph (a) of Section 7305 requires the Secretary to amend the HMR to reflect these thermal protection requirements within 180 days of the FAST Act's enactment. This rule responds to that mandate. C. Top Fittings Protection (FAST Act Section 7306) Section 7306(a) of the FAST Act specifies minimum requirements for top fittings protection on tank cars built to meet the DOT-117R. The HM-251 final rule did not require top fittings protection as part of the DOT-117R retrofit requirement because the costs involved appeared to be greater than the expected safety benefits.\9\ PHMSA noted in the preamble to the HM-251 final rule that a task force of the AAR Tank Car Committee was evaluating potential advancements in existing top fittings protections that could prove cost effective and, along with the FRA, urged industry to consider enhancements that would apply to both new and retrofitted tank cars. --------------------------------------------------------------------------- \9\ See HM-251 Final Rule, 80 FR at 26676. --------------------------------------------------------------------------- The FAST Act outlines self-executing performance standards for protective housings and pressure relief valves and does not mandate a rulemaking for these requirements. However, the statutory language mandates minimum requirements for top fittings protections for the DOT- 117R tank car not currently in the HMR. Codifying these statutorily- mandated minimum requirements in the HMR provides greater clarity for the regulated community and ensures that the HMR is consistent with the FAST Act. D. International Harmonization As a result of the FAST Act, the U.S. retrofit schedule for DOT-111 tank cars is more closely aligned with the schedule that Transport Canada has set.\10\ Prior to the FAST Act, certain differences existed between the tank car provisions of the HMR and Transport Canada's corresponding Transportation of Dangerous Goods (TDG) Regulations. Specifically, in the HM-251 final rule, the U.S. retrofit schedule was based on several factors, including the Class 3 flammable liquid's PG assignment and tank car construction (e.g., whether the tank car is jacketed or non-jacketed). However, the HM-251 final rule was not commodity-specific; the applicable phase-out date for DOT-111 tank cars transporting crude oil or ethanol in an HHFT could vary significantly depending on the material's PG assignment. For example, under the HM- 251 final rule, tank cars transporting PG I crude oil in an HHFT would need to be retrofitted or newly manufactured DOT-117R, DOT-117P, or DOT-117 tank cars at an earlier date than tank cars in an HHFT transporting crude oil assigned to PG II or PG III. Moreover, per the HM-251 final rule, a train transporting crude oil or ethanol but not meeting the definition of an HHFT is not required to utilize retrofitted or newly manufactured tank cars conforming to the DOT-117R, DOT-117P, or DOT-117. --------------------------------------------------------------------------- \10\ Transport Canada is the Canadian equivalent of DOT, with broad oversight authority for all modes of transportation, including the rail transportation of hazardous materials. --------------------------------------------------------------------------- Conversely, Transport Canada implemented a phase-out schedule that was commodity-specific (in addition to consideration of tank car design factors). The TDG Regulations mandate that flammable liquid commodities identified as crude oil or ethanol cannot be transported in a TC/DOT- 111 in accordance with Canada's phase-out schedule, irrespective of PG assignment. For example, in order to be used to transport crude oil, TDG Regulations require retrofit of a non-jacketed TC/DOT-111 tank car by Canada's first compliance date (May 1, 2017), regardless of the crude oil's PG assignment. Furthermore, under the TDG Regulations, the TC/DOT-117 applies to a single tank car. Transport Canada's TDG Regulations do not include a definition for an HHFT. As mandated by the FAST Act, in this final rule, PHMSA is implementing a commodity-specific phase-out schedule for the transport of unrefined petroleum products and ethanol in DOT-111 tanks cars, irrespective of the PG assigned. Moreover, the FAST Act mandates the complete phase out of DOT-111 cars for flammable liquids, as opposed to just tank cars transported in HHFTs. Therefore, with respect to being commodity-specific and the applicability of the new standards to a single tank car, this final rule amends the HMR to further align with Transport Canada's corresponding TDG Regulations. There are, however, still some differences between the HMR and TDG Regulations related to tank car standards and the retrofit schedule. For additional discussion of international harmonization issues, please refer to Subsection K, ``Executive Order 13609 and International Trade Analysis.'' II. Good Cause Justification PHMSA is issuing this final rule without an opportunity for public notice and comment as is normally provided under the Administrative Procedure Act (APA), 5 U.S.C. 553. The APA authorizes agencies to dispense with certain notice and comment procedures if the agency finds good cause that they are impracticable, unnecessary, or contrary to the public interest. See 5 U.S.C. 553(b)(3)(B). In this instance, PHMSA finds that there is good cause to dispense with notice and comment because it would be impracticable and unnecessary. ``Good cause'' exists in impracticable situations when notice unavoidably prevents due and required execution of agency functions or when an agency finds that due and timely execution of its functions would be impeded by the notice otherwise required by the APA. The FAST Act requirements covered in this rulemaking are all non-discretionary, and two of the three FAST Act sections addressed in this rulemaking are self-executing (see Sections 7304 and 7306). PHMSA's actions in this final rule merely codify in the HMR these FAST Act requirements based on the authority of the Secretary to implement the statute.\11\ This final rule addresses congressional mandates that lay out specific requirements or instruct the Secretary to issue conforming regulatory amendments immediately or soon after the FAST Act's date of enactment. Given the statute's timeline for issuing conforming regulations, PHMSA finds that due and timely execution of agency functions would be impeded by the process of public notice and comment. As such, notice and comment procedures are ``impracticable'' within the meaning of the APA, 5 U.S.C. 553(b)(3)(B). Furthermore, in making these ministerial and technical amendments PHMSA is not exercising discretion in a way that could be informed by public comment. The FAST Act does not provide PHMSA the flexibility to withdraw, change or revise this rule in response to adverse public comment. As such, notice and comment procedures are ``unnecessary'' within the meaning of the APA, 5 U.S.C. 553(b)(3)(B). --------------------------------------------------------------------------- \11\ The Secretary has delegated this authority to PHMSA. See 49 CFR 1.97. --------------------------------------------------------------------------- This final rule is effective on the day of publication in the Federal Register. The APA requires agencies to delay the effective date of regulations for 30 days after publication, unless the agency finds good cause to make the regulations effective sooner. See 5 U.S.C. 553(d). In addition to the previously discussed good cause to publish this rulemaking without advance notice and opportunity for public comment to implement the specific and non-discretionary mandates [[Page 53939]] of the FAST Act, PHMSA finds good cause to make the regulations effective prior to 30 days. The DOT Regulatory Policies and Procedures [44 FR 11034; February 26, 1979] provide that, to the maximum extent possible, DOT operating administrations should provide an opportunity for public comment on regulations issued without prior notice. Per the criteria specified in this policy, PHMSA finds that providing an opportunity for public comment cannot reasonably be anticipated to result in the receipt of useful information. This rule simply implements certain non- discretionary measures of the FAST Act; therefore, PHMSA is unable to adjust the text of the rule to account for any public comment. Section 7304 (expanding the tank car requirements to all flammable liquids) and Section 7306 (requiring top fittings protection) are self-executing and do not technically require regulatory action; Section 7304 (adjusting the retrofit timeline) is non-discretionary and required immediately; and Section 7305 (requiring \1/2\ inch thermal protection) is non- discretionary and required no later than 180 days from the FAST Act's enactment. Further, due to the non-discretionary nature of Sections 7304, 7305, and 7306 of the FAST Act, PHMSA is without authority to withdraw, change or revise this rule in response to adverse public comment. For these reasons, PHMSA is not providing an opportunity for public comment. III. Section-by-Section Review Part 173 Section 173.241 Section 173.241 provides the bulk packaging requirements for certain low hazard (i.e., PG III) liquid and solid materials. Specifically, paragraph (a) provides the specifications of rail tank cars that may be used to transport hazardous materials when directed to this section by Column (8C) of the Sec. 172.101 Hazardous Materials Table (HMT). To execute the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars (including CPC-1232 tank cars) for Class 3 (flammable liquid) material in PG III, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT- 117R retrofit standard. The phase-out must occur by the date in Table 2: Table 2--Phase-Out Schedule for DOT-111 Tank Cars in Class 3, PG III Service * ---------------------------------------------------------------------------------------------------------------- DOT-111 (including cars built to the CPC- Material Jacketed or non-jacketed 1232 standard) not authorized on or after tank car ---------------------------------------------------------------------------------------------------------------- Class 3, PG III (flammable liquid) Jacketed and Non-jacketed. May 1, 2029. material. ---------------------------------------------------------------------------------------------------------------- * Note: For unrefined petroleum products and ethanol, see Tables 3 and 4 below, as applicable. Section 173.242 Section 173.242 provides the bulk packaging requirements for certain medium hazard (i.e., PG II and III) liquid and solid materials. Specifically, paragraph (a) provides which specifications of rail tank cars may be used to transport hazardous materials when directed to this section by Column (8C) of the Sec. 172.101 HMT. Consistent with the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars for Class 3 (flammable liquids) in PG II and III, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT-117R retrofit standard. The phase-out must occur by the dates in Table 3 according to material type and tank car design factors: Table 3--Phase-Out Schedule for DOT-111 Tank Cars in Class 3, PG II and III Service -------------------------------------------------------------------------------------------------------------------------------------------------------- Jacketed or non-jacketed DOT-111 Built to CPC-1232 not Material tank car DOT-111 Not authorized on or after authorized on or after -------------------------------------------------------------------------------------------------------------------------------------------------------- Unrefined petroleum products (e.g., Non-jacketed............. January 1, 2018........................... April 1, 2020. crude oil) \12\. Jacketed................. March 1, 2018............................. May 1, 2025. Ethanol............................... Non-jacketed............. May 1, 2023............................... July 1, 2023. Jacketed................. May 1, 2023............................... May 1, 2025. Other Class 3, PG II and III Jacketed and Non-jacketed May 1, 2029............................... May 1, 2029. (flammable liquid) material (other than unrefined petroleum products or ethanol). -------------------------------------------------------------------------------------------------------------------------------------------------------- Section 173.243 Section 173.243 provides the bulk packaging requirements for certain high hazard (i.e., PG I) liquids and dual hazard materials. Specifically, paragraph (a) provides which specifications of rail tank cars may be used to transport hazardous materials when directed to this section by Column (8C) of the Sec. 172.101 HMT. Consistent with the mandate in Section 7304 of the FAST Act, in this final rule we are revising paragraph (a) to prohibit the use of DOT-111 tank cars for Class 3 (flammable liquids) in PG I, regardless of whether the cars are in HHFT service, unless they meet the DOT-117P performance standard or the DOT-117R retrofit standard. The phase-out must occur by the dates in Table 4 according to material type and tank car design factors: --------------------------------------------------------------------------- \12\ Unrefined petroleum products refers to hazardous hydrocarbons that are extracted from the earth and have not yet been processed to such an extent that the properties of the product are known and consistent. [[Page 53940]] Table 4--Phase-out Schedule for DOT-111 Tank Cars in Class 3, PG I Service -------------------------------------------------------------------------------------------------------------------------------------------------------- Jacketed or non-jacketed DOT-111 Built to CPC-1232 not Material tank car DOT-111 Not authorized on or after authorized on or after -------------------------------------------------------------------------------------------------------------------------------------------------------- Unrefined petroleum products (e.g., Non-jacketed............. January 1, 2018........................... April 1, 2020. crude oil). Jacketed................. March 1, 2018............................. May 1, 2025. Class 3, PG I (flammable liquid) Jacketed and Non-jacketed May 1, 2025............................... May 1, 2025. (other than unrefined petroleum products). -------------------------------------------------------------------------------------------------------------------------------------------------------- Part 179 Section 179.202-6 Section 179.202-6 requires a tank car built to meet the DOT-117 to have a thermal protection system. Consistent with the mandate in Section 7305 of the FAST Act, in this final rule we are revising this section to require that the thermal protection system include a thermal protection blanket with at least a \1/2\-inch-thick material that meets Sec. 179.18(c). Section 179.202-11 Section 179.202-11 provides a table of specification requirements for the DOT-117 tank car. Consistent with the mandate in Section 7305 of the FAST Act, in this final rule we are revising the table to make clear that a thermal protection blanket (in accordance with Sec. 179.202-6) is a requirement of the DOT-117 tank car. Section 179.202-12 Section 179.202-12 provides the performance standards for a DOT- 117P tank car. For greater understanding by the regulated community, in this final rule we are revising the heading of Sec. 179.202-12 to more clearly indicate that the performance standard requirements apply to the DOT-117P tank car. Section 179.202-13 Section 179.202-13 provides performance standards for retrofit of DOT-111 tank cars (i.e., standards for a DOT-117R tank car). Consistent with the mandate in Section 7306 of the FAST Act, in this final rule we are revising the top fittings protection requirements in paragraph (h) to include minimum standards for the protection of pressure relief devices, valves, or fittings. IV. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under the authority of Federal Hazardous Materials Transportation Law (49 U.S.C. 5101 et seq.). Section 5103(b) of Federal Hazmat Law authorizes the Secretary to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. B. Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures 1. Background As previously discussed, the HM-251 final rule amended the HMR by defining certain trains transporting large volumes of Class 3 flammable liquids as HHFTs and setting forth regulations (i.e., speed restrictions, braking systems, and routing) for their operation. The HM-251 final rule also adopted into the HMR requirements for sampling and testing programs to ensure the proper classification of unrefined petroleum-based products. Furthermore, it codified new tank car design standards and established a phase-out schedule of legacy tank cars (e.g., DOT-111 tank cars) by requiring use of either a DOT-117, DOT- 117P, or DOT-117R specification tank car by certain dates for the transport of Class 3 flammable liquids in HHFTs. The FAST Act instructs the Secretary to make specific regulatory amendments to the aforementioned tank car design standards and phase- out schedule codified in the HM-251 final rule. The FAST Act requirements addressed in this final rule are non-discretionary. This final rule revises the newly adopted regulations in the HM-251 final rule to align with the FAST Act. The specific amendments in this final rule are identified in Table 5 below and discussed briefly in the text that follows. Table 5 summarizes the affected population, costs, and benefits: Table 5--Summary of Affected Population, Costs, and Benefits ------------------------------------------------------------------------ ------------------------------------------------------------------------ Need and Basis for the Rule............ Congressional Mandate: FAST Act provisions. Applicability.......................... Rail tank car manufacturers; tank car owners and lessors; railroad operators; shippers, offerors, and rail carriers. Affected Population.................... 19,757 Flammable Liquid Tank Cars. 73,374 Crude and Ethanol Tank Cars. Total Costs (7% Discount).............. $520 million. Annualized Costs (7% Discount)......... $49 million. Costs (Qualitative).................... Out-of-Service Time. Benefits (Qualitative)................. Improved puncture resistance. Increased thermal survivability. Enhanced protection of top fittings. ------------------------------------------------------------------------ Retrofit Schedule The FAST Act instructs the Secretary to make specific regulatory amendments to the tank car design standards and phase-out schedule established by the HM-251 final rule. Section 7304 of the FAST Act mandates a phase-out of all DOT-111 tank cars used to transport flammable liquids, thereby requiring that these tank cars meet the DOT- 117, DOT-117P, or DOT-117R in part 179 of title 49, regardless of train composition. This differs from the HM-251 final rule, which required flammable liquids previously transported in a DOT-111 tank car to be transported in a DOT-117, DOT-117P, or DOT-117R tank car only when these tank cars were configured as part of an HHFT. [[Page 53941]] Thermal Protection Blankets Section 7305 of the FAST Act mandates that each tank car built to meet the DOT-117 and each non-jacketed tank car retrofitted to meet the DOT-117R be equipped with a thermal protection blanket of at least \1/ 2\-inch-thick material that meets Sec. 179.18(c) of the HMR.\13\ Under the HM-251 final rule, a thermal protection blanket was not required, but it was an authorized means of providing the required thermal protection for a DOT-117 tank car and in the regulatory impact analysis it was assumed to be the means of compliance that likely would be used by manufacturers. --------------------------------------------------------------------------- \13\ The HM-251 final rule did not require that these tank car specifications include a thermal protection blanket as part of the thermal protection system, but rather required that the specification tank cars meet the performance standard specified in Sec. 179.18. --------------------------------------------------------------------------- Top Fittings Protections Section 7306 of the FAST Act specifies minimum requirements for top fittings protection on tank cars built to meet the DOT-117R--including a protective housing for the top fittings and the pressure relief device--and allows for an alternative protection system. The FAST Act outlines self-executing performance standards for top fittings protection requirements. Codifying these minimum requirements in the HMR provides clarity for the regulated community on the statutory requirements for top fittings. Executive Orders Executive Orders 12866 (``Regulatory Planning and Review'') and 13563 (``Improving Regulation and Regulatory Review'') require agencies to regulate in the ``most cost-effective manner,'' to make a ``reasoned determination that the benefits of the intended regulation justify its costs,'' and to develop regulations that ``impose the least burden on society.'' This final rule was mandated by congressional action, and the provisions in this action are non-discretionary. Executive Order 13610 (``Identifying and Reducing Regulatory Burden''), issued May 10, 2012, urges agencies to conduct retrospective analyses of existing rules to examine whether they remain justified and whether they should be modified or streamlined in light of changed circumstances, including the rise of new technologies. DOT believes that streamlined and clear regulations are important to ensure compliance with important safety regulations. As such, DOT has developed a plan detailing how such reviews are conducted.\14\ --------------------------------------------------------------------------- \14\ Department of Transportation's plan for retrospective regulatory reviews is available online at: http://www.dot.gov/regulations/dot-retrospective-reviews-rules . --------------------------------------------------------------------------- This final rule is designated as economically significant, and was reviewed by the Office of Management and Budget (OMB). The final rule is considered a s
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