# Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation

- **operation:** document
- **citation:** 89 FR 85590
- **title:** Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation
- **source type:** rulemaking
- **agency:** Pipeline and Hazardous Materials Safety Administration
- **status:** proposed
- **official:** true
- **published on:** 2024-10-28
- **effective on:** Not available
- **summary:** PHMSA proposes to revise the Hazardous Materials Regulations to adopt several modal-specific amendments that would enhance the safe transportation of hazardous materials in commerce. PHMSA, in consultation with the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the United States Coast Guard, proposes amendments identified during Departmental review and from industry petitions for rulemaking.
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- **source url:** https://www.federalregister.gov/documents/2024/10/28/2024-23421/hazardous-materials-advancing-safety-of-highway-rail-and-vessel-transportation
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Federal Register, Volume 89 Issue 208 (Monday, October 28, 2024) [Federal Register Volume 89, Number 208 (Monday, October 28, 2024)] [Proposed Rules] [Pages 85590-85683] From the Federal Register Online via the Government Publishing Office [ www.gpo.gov ] [FR Doc No: 2024-23421] [[Page 85589]] Vol. 89 Monday, No. 208 October 28, 2024 Part II Department of Transportation ----------------------------------------------------------------------- Pipeline and Hazardous Materials Safety Administration ----------------------------------------------------------------------- 49 CFR Parts 107, 171, 172, et al. Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation; Proposed Rule Federal Register / Vol. 89, No. 208 / Monday, October 28, 2024 / Proposed Rules [[Page 85590]] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 107, 171, 172, 173, 174, 176, 177, 178, 179, and 180 [Docket No. PHMSA-2018-0080 (HM-265)] RIN 2137-AF41 Hazardous Materials: Advancing Safety of Highway, Rail, and Vessel Transportation AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation. ACTION: Notice of proposed rulemaking (NPRM). ----------------------------------------------------------------------- SUMMARY: PHMSA proposes to revise the Hazardous Materials Regulations to adopt several modal-specific amendments that would enhance the safe transportation of hazardous materials in commerce. PHMSA, in consultation with the Federal Motor Carrier Safety Administration, the Federal Railroad Administration, and the United States Coast Guard, proposes amendments identified during Departmental review and from industry petitions for rulemaking. DATES: Comments must be received by January 27, 2025. To the extent possible, PHMSA will consider late-filed comments as a final rule is developed. ADDRESSES: You may submit comments identified by the Docket Number PHMSA-2018-0080 (HM-265) by any of the following methods: Federal eRulemaking Portal: https://www.regulations.gov . Follow the instructions for submitting comments. Fax: 1-202-493-2251. Mail: Docket Management System; U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New Jersey Avenue SE, Washington, DC 20590. Hand Delivery: Docket Management System; Room W12-140 on the ground floor of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. Instructions: All submissions must include the agency name and Docket Number (PHMSA-2018-0080) or Regulation Identifier Number (RIN) (2137-AF41) for this rulemaking at the beginning of the comment. To avoid duplication, please use only one of these four methods. All comments received will be posted without change to the Federal Docket Management System (FDMS) and will include any personal information you provide. Docket: For access to the dockets to read background documents or comments received, go to http://www.regulations.gov or DOT's Docket Operations Office (see ADDRESSES). Confidential Business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as ``PROPIN.'' Submissions containing CBI should be sent to Eamonn Patrick, Office of Hazardous Materials Safety, Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Ave. SE, Washington, DC 20590-0001. Any commentary that PHMSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking. Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to http://www.regulations.gov , as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at http://www.dot.gov/privacy . FOR FURTHER INFORMATION CONTACT: Eamonn Patrick, Standards and Rulemaking Division, 202-366-8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background A. Railroad Safety Advisory Committee B. AAR Authority To Approve the Design of Tank Cars and Quality Assurance Programs 1. Introduction 2. Tank Car Design Approval 3. Tank Car Facility Quality Assurance Program 4. Tank Car Facility Definition 5. Tank Car Facility and Design Certifying Engineer Registration 6. AAR Specifications for Tank Cars Incorporation by Reference 7. Tank Car Linings and Coatings 8. Editorial Revision to Sec. Sec. 180.501 and 180.513 C. Cargo Tank Regulatory Amendments D. Cargo Tank Marking for Petroleum Distillate Fuels E. P-1712 F. P-1724 G. P-1735 III. Overview A. Rail B. Highway C. Vessel D. Multi-Modal IV. Section-by-Section Review V. Regulatory Analyses and Notices A. Statutory/Legal Authority B. Executive Order 12866, 14094, and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act and Executive Order 13272 F. Paperwork Reduction Act G. Unfunded Mandates Reform Act of 1995 H. Draft Environmental Assessment I. Privacy Act J. Executive Order 13609 and International Trade Analysis K. National Technology Transfer and Advancement Act L. Executive Order 13211 M. Cybersecurity and Executive Order 14082 N. Severability I. Executive Summary The Pipeline and Hazardous Materials Safety Administration (PHMSA) proposes to amend the requirements for the transportation of hazardous materials set out in the Hazardous Materials Regulations (HMR) (49 Code of Federal Regulations (CFR) parts 171 to 180) and 49 CFR part 107. This rulemaking aims to amend provisions specific to the highway, rail, and vessel transportation of hazardous materials. In this notice of proposed rulemaking (NPRM), PHMSA proposes to reform modal specific requirements in the HMR. PHMSA expects that the adoption of these proposals will maintain or enhance the safe transportation of hazardous materials while increasing the clarity of the HMR, and therefore decreasing compliance burdens. The proposed amendments also reflect changing conditions and trends that affect the safe transportation of hazardous materials while still maintaining or enhancing safety. The following are some of the more noteworthy subjects covered by proposed revisions: Rail tank car use requirements as recommended by the Rail Safety Advisory Committee (RSAC); [[Page 85591]] Rail tank car and service equipment design approval requirements; Highway cargo tank specifications and requalification requirements; and Marking requirements for cargo tanks that contain multiple petroleum distillate fuels. In this rulemaking, PHMSA solicits comment from the public and regulated community on these proposed amendments, specifically pertaining to the need for, benefits, and costs of the proposed amendments; impact on safety; public interest; and any other relevant concerns. In its preliminary regulatory impact analysis (PRIA), PHMSA concluded that the aggregate benefits of the proposed amendments justify their aggregate costs. PHMSA estimates annualized net benefits at a two percent discount rate of approximately $97.3 million per year. Details on the estimated cost savings and benefits of this rulemakings can be found in the PRIA, which is available in the public docket for this rulemaking. II. Background The Federal Hazardous Materials Transportation Act (HMTA; 49 U.S.C. 5101 et seq.) at 49 U.S.C. 5103 gives the Secretary general authority to issue regulations for the safe transportation of hazardous materials in commerce. The Secretary delegates the above statutory authorities to PHMSA at 49 CFR 1.97. A. Railroad Safety Advisory Committee RSAC is a Federal Advisory Committee established by the U.S. Secretary of Transportation in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2) to provide information, advice, and recommendations to the Federal Railroad Administration (FRA) Administrator on matters relating to railroad safety. In 1996, FRA established RSAC to develop new regulatory standards, through a collaborative process, with all segments of the rail community working together to fashion mutually satisfactory solutions on safety regulatory issues. PHMSA participates in RSAC when issues related to hazardous material transportation are discussed, and participated in the development of the proposed recommendations in this rulemaking. On November 5, 2015, the RSAC accepted Task No. 15-04: ``Hazardous Materials Issues,'' which assigned the Hazardous Materials Issues Working Group (HMIWG) to consider several revisions to the HMR to enhance the safety of hazardous materials transported by rail.\1\ Consensus-approved regulatory change proposals were developed by the HMIWG and forwarded to the RSAC for consideration. On May 25, 2017, the RSAC voted and approved HMIWG's consensus recommendations of changes to the HMR (hereafter referred to as the consensus recommendations) and submitted the suggested revisions to FRA. FRA subsequently recommended that PHMSA initiate a rulemaking to propose and adopt the consensus recommendations. In this rulemaking, PHMSA proposes to adopt the RSAC consensus recommendations with some modifications. Note that not all of the consensus recommendations are proposed as received. Rather, this rulemaking includes some revisions to the recommendations to better fit the construction of the HMR; to provide more appropriate amendatory instruction to the Office of the Federal Register; and to address some technical issues discovered during detailed review of the proposed regulatory text that was provided in the recommendation. --------------------------------------------------------------------------- \1\ More information about the RSAC, including HMIWG meeting minutes and other supporting documents can be found at: https://rsac.fra.dot.gov/ . --------------------------------------------------------------------------- The consensus recommendations propose to make amendments to update, clarify, or remove existing requirements that are outdated or unnecessary. They propose the following changes, among others: (1) require tank car facilities to apply for and receive a DOT registration letter from PHMSA assigning a registration number prior to qualifying tank cars for service; (2) incorporate by reference updated versions of certain industry standards, including the Association of American Railroads (AAR) Manual of Standards and Recommended Practices Section C-III Specifications for Tank Cars (M-1002); and (3) revise the requirements for One-Time Movement Approvals (OTMAs). These changes are discussed in greater detail later in ``Section IV. Section-by-Section Review.'' On August 27 and 28, 2013, FRA held a public meeting \2\ to invite stakeholders and the public to participate in a comprehensive review of part 174 of the HMR, to improve the safety of railroad transportation of hazardous materials. Specifically, FRA sought comment on identifying provisions of part 174--Carriage by Rail--that are outdated, unclear, no longer necessary, present an undue economic burden on the regulated community, are inconsistent with other North American standards and regulations (such as those issued by the AAR and Transport Canada), do not sufficiently address modern safety concerns, or do not sufficiently address technological advancements and procedural changes in the railroad operating environment. FRA included specific requests for comment on the public meeting agenda for a review of definitions and abbreviations (Sec. 171.8); notice to train crews (Sec. 174.24); nonconforming or leaking packages (Sec. 174.50); packagings, cargo tanks, and multi-unit tank car tanks in Tank-on-Flatcar (TOFC) and Container-on-Flatcar (COFC) service (Sec. Sec. 174.61 and 174.63), tank car unloading (Sec. 174.67); switching placarded railcars, transport vehicles, freight containers and bulk packagings (Sec. 174.83); position of railcars (Sec. 174.85); as well as an open discussion on part 174. In its consensus recommendations, the RSAC addressed many of the issues identified and discussed during this public meeting. See ``Section IV. Section-by-Section Review'' for discussion of specific proposed changes because of the public meeting comments and RSAC deliberations. --------------------------------------------------------------------------- \2\ Comments from various associations and members of the public can be found at: https://www.regulations.gov/docket?D=FRA-2013-0067 . --------------------------------------------------------------------------- B. AAR Authority To Approve the Design of Tank Cars and Quality Assurance Programs 1. Introduction The design, construction, maintenance, and qualification of tank cars used to transport hazardous materials are complex regulatory topics. Tank cars are the largest type of hazardous materials packaging in use in surface transportation, and the consequence of failure during transportation can be--and has been--catastrophic. The HMR currently delegate tank car and service equipment design approval and tank car facility Quality Assurance Program (QAP) approval to the AAR Tank Car Committee (TCC). The AAR TCC is a body of representatives drawn from the railroads, tank car shippers, and the tank car manufacturing, maintenance, and repair industry. The AAR TCC approves tank car designs and manages QAP approval, as well as develops its own standards for the design and operation of tank cars. PHMSA and FRA provide regulatory oversight to the AAR TCC approval process to ensure the committee is operating within the HMR's purview. The process by which the AAR TCC approves tank car and service equipment designs, materials, and construction, and conversion or alteration, is not specified in Sec. 179.3; however, typically the committee votes on the proposed designs, materials, and [[Page 85592]] construction, and conversion or alteration based on AAR TCC staff review of design drawings and/or service trial results. The approval of QAPs is handled similarly via a vote of the AAR TCC after the facility has been audited by AAR Bureau of Explosives auditors. Audit scheduling, procedure, and recommendation for approval or denial is conducted wholly at the discretion of the AAR. The HMR require each tank car facility to maintain a QAP that meets the requirements of Sec. 179.7, with the intent that a properly implemented QAP will: Ensure the qualified tank car conforms to the requirements of the applicable specification and regulations; Identify any defects in the tank car manufacturing, repair, inspection, testing, and qualification or maintenance program; and Prevent any non-conformity from recurring. Specifically, tank car facility QAPs must--at a minimum--address the elements in Sec. 179.7(b)-(e), including verification of construction materials, monitoring and control of processes, and qualification of personnel. PHMSA and FRA initiated a review of the current regulations in part 179--Specifications for Tank Cars--that require both tank car design and tank car facility QAPs to be approved by the AAR TCC. Additionally, PHMSA and FRA recognize that the scope of the definition of tank car facility has created confusion among tank car shippers and in the tank car manufacturing and maintenance industry. In this rulemaking, PHMSA proposes to revise the definition of tank car facility to reduce confusion and uncertainty in the regulated community. In conjunction with the other rail-specific changes proposed in this rule, this change will improve safety of rail transportation through increased awareness of who qualifies as a tank car facility and who specifically must comply with the HMR requirements for that facility (see ``Section II.B.4 Tank Car Facility Definition'' for further discussion on this issue). PHMSA and FRA have determined that the current system requiring AAR approval for tank car facility QAPs and tank car designs creates a regulatory bottleneck without commensurate safety benefits for the regulated industry. As such, PHMSA proposes revisions to the current system to relieve confusion and increase the efficiency of the approval process (see ``Section II.B.2 Tank Car Design Approval'' and ``Section II.B.3 Tank Car Facility Quality Assurance Program'' for further discussion of these issues). The proposed revisions are intended to increase the efficiency of the tank car design and QAP approval process, without compromising safety, by increasing governmental oversight of regulated entities through a registration program. The following is a brief summary of proposed changes to the approval processes and the definition of tank car facility which PHMSA discusses in greater detail later in this section: A. Remove the requirement for tank car and service equipment designs to be approved solely by the AAR TCC and replace it with a requirement for tank car designs to be approved by a tank car Design Certifying Engineer (DCE) registered with PHMSA. This proposed requirement closely mirrors the process for highway cargo tank design review and approval. B. Remove the requirement for tank car facilities to have a QAP approved by the AAR and replace it with a requirement for tank car facilities to register with PHMSA, maintain a QAP, and certify that it meets the Sec. 179.7 quality assurance program requirements. C. Revise the definition of tank car facility to clarify that the definition applies to facilities that qualify a tank car for service, and to clarify what activities require qualification of a tank car. D. Add a registration program for tank car DCEs and tank car facilities. E. Revise the incorporation by reference (IBR) of specific chapters and appendices of the 2014 edition of the AAR Manual of Standards and Recommended Practices, Section C--III, Specifications for Tank Cars, Specification M-1002 (i.e., AAR Specifications for Tank Cars) to correspond to the above proposals (i.e., removing the requirement to comply with the specific sections of M-1002 that require AAR approval). F. Revise the requirements for coating and lining inspection of tank cars to clarify what is expected. G. Revise Sec. 180.513--Repairs, alterations, conversions, and modifications--to clarify that tank car facilities must include the tank car owner's qualification and maintenance program into their QAP to correct an incorrect reference to including the tank car owner's QAP. Generally, a tank car owner is not subject to QAP requirements. 2. Tank Car Design Approval Federal hazardous material transportation regulations have delegated the authority to approve tank car and service equipment designs to the AAR--and various predecessor organizations--since at least 1927. As provided in Sec. 179.3, the AAR TCC has authority to approve tank car designs, materials and construction, conversion, or alteration of tank car tanks under the specifications of part 179. By way of example, Sec. 179.100-12(a) requires that manway nozzles must be of approved design of forged or rolled steel for steel tanks. In this context, pursuant to the definition in Sec. 179.2, ``approved'' refers to approval by the AAR TCC. Although PHMSA has delegated the authority to approve tank car designs, the current state of the AAR's autonomous approval process presents inefficiencies when insufficient resources are available to process approval applications, resulting in unnecessary delays and increased costs for the tank car design and manufacturing community. As such, PHMSA and FRA propose to remove the requirement that tank car and service equipment designs receive approval solely through the AAR TCC before they are used in hazardous materials (hazmat) service. PHMSA and FRA propose to replace AAR TCC design approval with alternative approval by a tank car DCE, similar to the design approval structure for highway cargo tanks. The proposed tank car DCE requirement will include registration with PHMSA, and registrations will be subject to termination for cause, with the intent to create a more transparent, accountable tank car design approval system without any impact on the safety of such approved tank cars. ``Design certifying engineer'' is a defined term in the HMR in Sec. 171.8, and currently only applies to engineers who can determine that a cargo tank design meets applicable DOT specification standards. PHMSA and FRA propose to revise the definition of DCE to include persons able to determine that a tank car meets applicable DOT specification standards. PHMSA and FRA propose that a tank car DCE must: Have an engineering degree and at least one year of work experience in tank car structural or mechanical design; or Be registered currently as a professional engineer by an appropriate authority of a state of the United States or a province of Canada. As proposed, a tank car DCE may not use their experience in cargo tank structural or mechanical design to meet the experience requirement for tank car design, and vice versa for a cargo tank DCE. Based on our knowledge of the cargo tank and tank car industries, PHMSA believes it is unlikely that a company would attempt to register a [[Page 85593]] single engineer as both a tank car and cargo tank DCE. In the event this does occur, PHMSA would allow a single engineer to be registered as both a tank car and cargo tank DCE; however, they will need to acquire separate registrations: a cargo tank DCE registration as specified in subpart F of part 107, and a tank car DCE registration as specified in the proposed new subpart J of part 107. PHMSA has determined that maintaining separate registrations in the event that a single person holds both will simplify recordkeeping and enforcement by preventing unintended administrative hang-ups if one registration is allowed to lapse or termination proceedings are initiated. PHMSA requests comments on this proposed registration process. Currently, the tank car design approval process is managed by the AAR TCC (see Sec. 179.3). PHMSA and FRA attend AAR TCC meetings and participate in AAR TCC working groups on specific issues; however, the agencies do not manage the day-to-day operations of the AAR TCC. PHMSA and FRA have no voting power in the committee and little involvement in the day-to-day process by which the AAR TCC reviews and approves tank car designs. PHMSA and FRA retain full authority to set tank car safety standards through the adoption of tank car design specification requirements in part 179, and tank car use requirements in part 173. To provide additional context, there are approximately 130 instances in part 179 where the HMR requires that a tank car design feature (e.g., the manner in which a tank car tank is attached to the car structure) \3\ or item of service equipment (e.g., a valve) \4\ be ``approved.'' This approval is issued by the AAR TCC when the Committee determines that tank car tank or equipment is in compliance with the requirements of the HMR.\5\ The AAR TCC is the only entity granted the authority to issue such approvals for tank car tanks and service equipment in the HMR. --------------------------------------------------------------------------- \3\ See Sec. 179.10. \4\ See Sec. 179.200-16(b). \5\ See Sec. 179.3. --------------------------------------------------------------------------- PHMSA and FRA have determined that--based on experience participating in the current AAR TCC process--the process for tank car design approval is conducted in such a way that increases costs and delays to the regulated community, without a commensurate increase in safety that would justify these delays. The HMR create a single-source, prescriptive system, because only AAR TCC has the authority to approve an application for a tank car design, material of construction, conversion, or alteration under part 179 specifications. The HMR requirements for the review of a tank car design are well understood and include compliance with part 179 and other considerations that a tank car design must take into account (e.g., lading properties, material compatibility, operating temperatures, etc.). There is little doubt that there are many engineers in the United States with tank car structural or mechanical design experience who could review and certify that a tank car's design meets the HMR requirements. Replacing AAR TCC approval with DCE approval as proposed will create a system that increases efficiency in the tank car design approval market by expanding the pool of authorized tank car design approval sources without impacting the safety of tank cars used to transport hazardous materials. The proposed system also includes documentation requirements for DCEs that will facilitate improved government oversight of the design approval process via periodic audits, and it would allow DCE registrations to be terminated for cause as further discussed below. PHMSA and FRA expect that an individual with an engineering degree and tank car design experience or a registered professional engineer-- thus meeting the Sec. 171.8 definition of a tank car DCE--will be able to review the design of a tank car or service equipment and determine whether the design complies with the tank car specification requirements. This proposal will improve government oversight of the tank car approval process. Currently, PHMSA and FRA have limited ability to take enforcement action against the TCC for failures to comply with the requirements of the HMR. The current TCC design review procedures have allowed non-compliant tank cars to enter transportation, posing risks to lives and the environment. When non- compliant cars are discovered in transportation, FRA takes immediate action to protect rail workers and the public. This can include issuing a railworthiness directive to address the non-compliance. Audits of the TCC tank car design review process conducted by the Department have revealed systemic operational and processing issues within the TCC-- specifically--that the TCC utilizes, approves, and certifies Independent Third Party (ITP) individuals for reviewing and verifying that the application meets all AAR and DOT design requirements. These audit findings still have not been addressed to date. Additionally, in the recent past, the TCC elected not to review and approve new designs for DOT-106 and DOT-110 multi-unit tank car tanks (commonly known as ``ton tanks''). The TCC's decision not to review and approve DOT-106 and DOT-110 designs created significant disruption for a packaging manufacturer and their customers. As a result, PHMSA expended resources to develop and issue a Special Permit \6\ to allow the construction and use of these packagings to avoid disruption to commercial activities caused by the TCC's decision not to complete the role assigned to them in Sec. 179.3. PHMSA and FRA are also concerned that the current system allows TCC to regulate entry to the market by controlling the approval process. Major tank car and service equipment (e.g., valve) manufacturers are represented on the TCC. This creates a potential conflict of interest for the TCC when considering approval applications from firms that compete with companies its members represent. PHMSA and FRA have determined that due to unaddressed issues in the AAR TCC approval process, a recent history of a decision not to perform the role assigned in the HMR, and the potential for incumbent tank car industrial concerns to impact entry of competitors into the marketplace, we can no longer justify delegating authority for tank car design approval to the AAR TCC. --------------------------------------------------------------------------- \6\ https://www.phmsa.dot.gov/hazmat/documents/offer/SP14437.pdf/offerserver/SP14437 . --------------------------------------------------------------------------- PHMSA and FRA expect that costs for reviewing and approving tank car designs will decrease by removing the single-source approval and the barriers of entry to the business of tank car design approval. The implementation of the proposed tank car DCE program will maintain at least an equivalent level of safety of tank car design by ensuring tank car DCEs maintain and adhere to a detailed written procedure to evaluate the compliance of a tank car design with the HMR's tank car specification and usage requirements. PHMSA and FRA will be able to exert substantially greater oversight over tank car DCEs than the AAR TCC, both through the modification, suspension, and termination procedures proposed in this NPRM, as well as through the civil and criminal penalty procedures applicable to all persons who perform activities subject to the HMR through 49 CFR parts 107, 109, and 49 U.S.C. 5123-5124. PHMSA, in conjunction with our highway modal partner FMCSA, has experience overseeing a DCE program for the design approval of bulk [[Page 85594]] hazardous materials packages intended for highway transportation through the existing cargo tank DCE program. This experience makes us confident that private sector engineers, operating under governmental oversight through a registration program, can safely and effectively review a package (i.e., a tank) design and ensure it complies in all respects with the relevant design requirements of the HMR. PHMSA and FRA intend to maintain direct oversight on the tank car design process through regular audits of tank car DCEs and reserve the right to terminate a tank car DCE registration for cause. Causes for registration termination include: (1) because of a change in circumstances the registration is no longer needed or would no longer be granted if applied for; (2) the application contained inaccurate or incomplete information and it would not have been granted had accurate and complete information been provided; (3) the application contained deliberately inaccurate or incomplete information; or (4) the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. PHMSA emphasizes that criteria (4) can be used to bring enforcement action and potential modification, suspension, or termination proceedings against a tank car DCE who fails to maintain and follow an adequate written procedure that is used to verify conformance with the requirements of the HMR. See ``Section IV. Section 107.911'' for additional information on the termination of a tank car DCE registration. By clearly describing the processes and procedures that the DCE must follow to approve a tank car design, PHMSA and FRA expect a high level of safety for tank car designs will be maintained. PHMSA proposes to require the DCE to review the same information and drawings currently required in the AAR Form 4-2. This commonality with existing design records is intended to minimize disruption during the transitional period and maximize tank car and service equipment manufacturer and DCE familiarity with the required documentation. The requirements proposed in Sec. Sec. 179.3 and 179.5 are intended to create an accountable, auditable, criteria-based tank car design approval system that is more transparent to government oversight than the current system. The proposed requirements in Sec. Sec. 179.3 and 179.5 are primarily based on the requirement for a tank car DCE to develop, maintain, and adhere to a written procedure describing the process used to verify a tank car or service equipment's design with the requirements of the HMR. This detailed procedure must include acceptance and rejection criteria for each tank car or service equipment design element approved by the DCE, which demonstrate the tank car or service equipment will meet the requirements of part 179 and retain the hazardous contents of the packaging in all normal conditions of transportation for the designed life of the packaging. PHMSA and FRA investigators and engineers will evaluate the detailed procedures during periodic audits to ensure the procedures adequately maintain compliance with part 179, and that the DCE is following the procedures. These general procedural requirements proposed in Sec. Sec. 179.3 and 179.5 will allow tank car DCEs to determine the most efficient workflow for their business needs, while providing a clear basis for evaluation of a tank car DCE's procedures. These standards also provide a clear framework for PHMSA and FRA to conduct audits and determine whether lapses in a tank car DCE's performance warrant the issuance of a Notice of Probable Violation, or, in serious cases, initiation of modification, suspension, or termination proceedings. The DCE registration program also may facilitate greater technological advancements in tank car and service equipment designs by facilitating greater access to tank car and service equipment design certification services. The proposed rule would enable other entities to approve tank car designs, potentially leading to more processing of innovative designs that meet the existing performance standards and their subsequent use in the transportation arena. In addition, opening these services up to other entities--rather than maintain the design approval process solely with AAR TCC--may increase competition within the industry as additional DCEs are registered and begin to provide tank car design approvals. This competition is expected to result in potential cost reductions for the regulated community. To adequately oversee tank car DCEs, PHMSA and FRA propose to require that each DCE register with PHMSA and provide information on the types of design reviews the DCE will conduct. This will allow PHMSA and FRA to audit DCEs to ensure they are properly reviewing each tank car or service equipment design and only issuing approvals to those designs that meet the requirements of part 179. Each DCE must develop procedures, including acceptance and rejection criteria for the approval process, which demonstrate that the tank car or service equipment will meet the requirements of part 179 and the design level of reliability and safety for the hazardous materials service for which the tank car is intended. The registration requirement is necessary to assist PHMSA and FRA in performance of their oversight responsibilities to ensure all tank car DCEs are performing their design reviews with appropriate rigor, and thus that tank car designs are suitable for hazmat transportation. See discussion in section ``Section II.B.5 Tank Car Facility and Design Certifying Engineer Registration'' for additional details on the proposed registration program. Therefore, PHMSA proposes to remove reference to AAR approval for tank car designs wherever it appears in the subchapter. A DCE registered with PHMSA would fill the tank car design approval role currently delegated to the AAR. Authorizing qualified individuals, registered with PHMSA, to review and certify tank car designs under PHMSA and FRA oversight will increase the level of safety provided by the HMR while increasing design review efficiency for the tank car design and manufacturing community. Finally, PHMSA notes this would not exclude the AAR staff or TCC members from registering as DCEs to continue to perform these approvals; however, it removes exclusive delegation and opens the market to all those who are qualified. AAR TCC may continue to provide approval services commercially, provided they register with PHMSA and follow the same requirements proposed in this NPRM that other tank car DCEs must follow. 3. Tank Car Facility Quality Assurance Program Tank car facilities, as defined in Sec. 179.2, are required to have a QAP that--among other items--has the means to detect non- conformities in the tank car manufacturing, repair, inspection, testing, and qualification or maintenance processes. Currently, each tank car facility's QAP must meet the requirements of Sec. 179.7, which requires that the QAP be approved by the AAR. In this rulemaking, PHMSA proposes to remove the requirement that AAR approve a tank car facility's QAP. As a substitute, we propose to replace this requirement with a requirement that tank car facilities must register with PHMSA, certify that they maintain a QAP that meets the requirements of Sec. 179.7, and include an executive summary of their QAP with their [[Page 85595]] registration statement. As proposed, the registration program will improve safety through increased PHMSA and FRA situational awareness of tank car facility activities and provide mechanisms to address non- compliance. PHMSA proposes to allow modification, suspension, or termination of a tank car facility registration for the following causes: (1) because of a change in circumstances, that the registration is no longer needed or would no longer be granted if applied for; (2) the application contained inaccurate or incomplete information and it would not have been granted had accurate and complete information been provided; (3) the application contained deliberately inaccurate or incomplete information; or (4) the registration holder knowingly violated the terms of the registration or an applicable requirement of 49 CFR Chapter I in a manner demonstrating lack of fitness to conduct the activity for which the registration is required. PHMSA emphasizes that criteria (4) above can be used to bring enforcement action and initiate modification, suspension, and termination proceedings against a tank car facility that fails to adhere to their QAP. A tank car facility's failure to adhere to a QAP could create unacceptable risks in the rail system and may cause unsafe tank cars to enter transportation. The creation of the QAP requirement for tank car facilities was initiated based on a National Transportation Safety Board (NTSB) safety recommendation (R-88-63) \7\ issued in response to a September 8, 1987, incident involving the release of butadiene from a tank car in New Orleans, Louisiana. In 1993, the Research and Special Programs Administration (RSPA)--PHMSA's predecessor agency--proposed the creation of the QAP requirement and definition of tank car facility in an NPRM (HM-201).\8\ The primary intent of this requirement--as discussed in the preamble of HM-201--is to ensure each tank car manufacturing or repair facility has procedures in place to detect any nonconformity in the tank car manufacturing, maintenance, or repair process and has the means to prevent its recurrence. --------------------------------------------------------------------------- \7\ See NTSB Safety Recommendation R-88-063: https://www.ntsb.gov/investigations/AccidentReports/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=R-88-063 . \8\ 58 FR 48485 (Sep. 16, 1993). --------------------------------------------------------------------------- In 1995, RSPA created the definition for the term ``tank car facility'' and a requirement for each tank car facility to maintain a QAP meeting the requirements of Sec. 179.7 in final rule HM-175A and HM-201,\9\ and made minor revisions to the requirements in a 1996 HM- 175A and HM-201 corrections final rule.\10
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