{"operation":"document","citation":"19-0094","title":"Wells Fargo Rail — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2019-12-06","effective_on":null,"summary":"19-0094 response to Wells Fargo Rail concerning 180.509, 180.511.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0094.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0094.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-19-0094","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/docs/standards-rulemaking/hazmat/interpretations/72976/190094.pdf","body":"<<>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nDEC O 6 2019\nRobert Sech\nWells Fargo Rail\n93 77 West Higgins Road\nSuite 600\nRosemont, IL 60018\nReference No. 19-0094\nDear Mr. Sech:\nThis letter is in response to your July 22, 2019, email requesting clarification of the Hazardous\nMaterials Regulations (HMR; 49 CFR Parts 171-180) applicable to the inspection and testing\nrequirements for tank car internal linings and coatings.\nWe have paraphrased and answered your questions as follows:\nQ 1. You ask whether the tank car owner or the internal lining/ coating owner must maintain at\nits principal place of business a written procedure for collecting and documenting the\nperformance of the coating or lining applied within the tank car for its service life, in\naccordance with§ 180.509(i)(2).\nAl . The requirement applies to the internal lining/coating owner.\nQ2. You note that§ 180.509(i)(3) states that the owner of the internal lining/coating is only\nrequired to provide the test method and acceptance criteria to the tank car owner and\nperson responsible for the qualification of that internal lining/coating. You ask why the\nfrequency of inspection was not included and whether the internal lining/coating owner is\nresponsible for providing the full qualification and maintenance plan to the tank car\nowner or person responsible for qualification and maintenance of the internal\nlining/ coating.\nA2. Section 180.509(i)(3) is specific to persons performing inspection and testing of the\ninternal lining/coating and the criteria therein. The requirement ensures that the tank car\nfacility performing the test and inspection of the internal lining/coating is doing so in\naccordance with the internal lining/coating owner's determined requirements for service\nlife, inspection and testing requirements.\nQ3. You ask whether the requirement in§ 180.51 l(e) applies to the tank car owner or the\ninternal lining/coating owner.\n\n<<>>\n\nA3. Q4. A4. The requirement applies to the internal lining/coating owner.\nYou ask who is required to audit the person responsible for the qualification of the\ninternal lining/coating.\nIn accordance with § 180.509(a), each tank car owner must ensure that a tank car facility\nevaluates each item according to the acceptable results of inspections and test specified in\n§ 180.511. Section 180.511 includes inspection and testing requirements for an internal\nlining/coating, if applicable. Therefore, a tank car owner must ensure that a tank car\nfacility is performing the inspection and test requirements specified by the internal\nlining/coating owner.\nI hope this information is helpful. Please contact us if we can be of further assistance.\n~i#\n~~~\nChief, Standards Development Branch\nStandards and Rulemaking Division\n\n<<>>\n\nDodd, Alice (PHMSA)\nTo:\nSubject:\nBaker, Yul (PHMSA)\nRE: Lining Plans\nFrom: Baker, Yul (PHMSA) \nSent: Monday, July 22, 2019 4:31 PM\nTo: Dodd, Alice (PHMSA) ; January, lkeya CTR (PHMSA) \nCc: DerKinderen, Dirk (PHMSA) ; Foster, Glenn (PHMSA) \nSubject: FW: Lining Plans\nAlice/ lkeya,\nPlease submit this e-mail as a request for interpretation.\n1//r\n:Mr. rt\"u{ \nSent: Monday, July 22, 2019 4:20 PM\nTo: Baker, Yul (PHMSA) \nCc: Strouse, Larry (FRA) ; Loman@Alltranstek.com\nSubject: FW: Lining Plans\nYul,\nWells Fargo Rail (WFR) is urgently requesting a PHMSA official interpretation regarding tank car owner and tank car\nlining owner regulatory requirements. Please provide interpretations on the following items:\n1. 2. In 49 CFR Part 180.509(i)(2), the fourth sentence states 'The owner must maintain at its principal place of\nbusiness a written procedure for collecting and documenting the performance of the coating or lining applied\nwith the tank car for its service life.' In section (2), the preceding three sentences clearly state the owner of\nthe coating or lining; however, the following fourth sentence omits the whether the subject is the owner of\nthe tank car or the owner of the coating or lining (or both). Please advise if WFR is interpreting this section\ncorrectly. Currently, WFR's interpretation of the Federal Regulations do not require the owner of the coating\nor lining to provide a controlled copy of their coating or lining Qualification and Maintenance Plan to the tank\ncar owner. Therefore, the tank car owner and tank car facility must obtain a new copy of the owner of the\ncoating and lining's qualification and maintenance plan every time a tank car is shopped to ensure the correct\nrevision level of that document has been provided. Similar to shipper's gasket/o-ring material specifications\nand their commodity SOS (Safety Data Sheet), these documents are typically provided at time of shopping due\nto this document control issue.\nIn 49 CFR Part 180.509(i)(3), the owner of the coating or lining is required only to provide the test method and\nacceptance criteria to the tank car owner and the person responsible for the qualification of that\ncoating/lining. This sentence eludes that this information is only a portion of the owner of the coating or\n1\n\n<<>>\n\n3. 4. lining's qualification and maintenance plan? Why was the frequency of inspection not included? Do the tank\ncar owner and the person responsible for the qualification of that coating/lining require to have the owner of\nthe coating or lining's full qualification and maintenance plan? If so, does that plan required to be a controlled\ndocument? I have included the PHMSA letter to Ken Dorsey as section X provides some previous PHMSA\ninterpretations.\nIn 49CFR Part 180.511(e), 'A tank car successfully passes the fining and coating inspection and test when the\nlining or coating conforms to the owner's acceptance criteria.' Is the regulation referring to the owner of the\ncoating or lining, the owner of the tank car or both? WFR is current interpreting this as the owner of the\ncoating or lining only.\nWho has the responsibility to audit the person responsible for the qualification of that coating/lining? Is it the\nowner of the coating/lining, the tank car owner, or both? 49 CFR Part 180.509(a) states the tank car\nowner. However, this would require that the owner of the coating or lining must ensure both the tank car\nowner and the tank car facilities have controlled lining qualification and m~intenance plans.\nRobert Sech\nAVP - Engineering\nWells Fargo Rail I 9377 W. Higgins Road, Suite 600 I Rosemont, IL 60018\nOffice: (847) 384-5366 I Cell (219) 617-7930 I Fax (847) 318-7588\nrob.sech@wellsfargo.com\n2\n\n<<>>\n\n(i) lnternat.cioilting end lining inspection and tesr. (1} At a minitnun., the owner of . an internal coa'trng or linjng\napplied to protec:t a tan'k used to · transport a material that 1s corros1ve or reactive to 01, e ta, nk rnusl ensure J'\"'\ninspecHon ade- quate enougi1 to detect d, erects or other conditions that could reduce the design level or reliabHi\nand safety or che tank is performed. In addttion, th~ owner or a coating or hn,ng or tank cars used co trans.oo\nhazardous mater~als must ensure tl1e lining compt~es with § 173.24Cb){2) and (b}i(3) of this · subchapte ..\n(2) The owner o'f the i1 nternal coaUng or lining must eslablish and maintain a record of the serv;ce fife oft\ncoati1 ng or lining and commodi, t. y con1: binattre,n, that is, tne specific hazardous materials lha't wer, e loa.d, ect into a\ntank and 'the coat1 ing or lining ~n place at the tim1e '°r loading . . The ov~n, er of the internal coaung or Jining must us.e\nrts knowledge of the service life or eac~, coating or Hnmg and con1modity combination to establjsh an\nappropriate mspection interval for that coa't1ng or lining and crnnrnrn:hty cornbinat•on. This interval 1 1nust no\nexceed eight (8) ye· ars, unless the coating or lining owner can establish. docun1ent. and shoi,v that 'the service\nhistory or scierni• fic anaiy-sis of the c.oating or lining and cornmodity pai,ing supports c1 longer inspection interval.\nowner must maintain at its principal 1 place 1 of business a written procedure tor coilecbng, and documenttn.\n~he performance of the• coa• ting or 1 l~ni1 ng ia1 ppl' ied wf, thin the tank car 'for i(· s service Ufe. Tt1e ~nterna1 coating o\nlining owner must provide th1s d· ocurnentation. including inspection .and 'test repair. rernoval. and application\nprocedures, to the FRA or c.ar , owner upon request. Further. the oneror n11 ust provide , c, orrunod~tv information to\nthe car , owner and the owner of the interna. l coating or tining upon request\n(3) The O • wner of the interna1 I coating or lirnng must provid, e the test method and acceptan,c, e criteria to ch~\ntain k car owner im d to the p, erso n responsible Jo r qua I IJyi ng the coaling or ~ining. lhe tank car t.a, i lity inspect ~ng\nand testing tl,e intit.~rnal coaiting or hn~ng fTllJS't 'folt low the ,nspfe;ction and test procedure, including the acceptanc ·\ne· quiren,ents. , esta.bltshed by tt1e internal coating or iinin2 o·\n\n<<>>\n\nU.S. Department\nof Transportation\nFederal Railroad\nAdministration\n1200 New Jersey Avenue, SE\nWashington, DC 20590\nMr. Ken Dorsey\nExecutive Director, Tank Car Safety\nAssociation of American Railroads\n425 Third Street SW\nWashington, DC 20024\nDear Mr. Dorsey:\nOn June 25, 2012, the Pipeline and Hazardous Materials Safety Administration (PHMSA),\nin close consultation with the Federal Railroad Administration (FRA), published a fmal rule,\n\"Hazardous Materials: Incorporating Rail Special Permits into the Hazardous Materials\nRegulations,\" under Docket Number PHMSA-2010-0018 (HM-216B; 77 FR ~7962). The\nrule amended the Hazardous Materials Regulations to incorporate provisions contained in\ncertain widely used or longstanding rail Special Permits that have general applicability and\nestablished safety records.\nFRA and PHMSA received questions, comments, and requests for clarification about this\nfinal rule from Watco Compliance Services, GE Capital, Trinity Rail, Union Tank Car\nCompany, and American Railcar Industries. In the enclosure to this letter, PHMSA and FRA\naddress these questions, requests for clarification, and suggestions for editorial change.\nThe questions have been summarized to the extent possible. We ask that you distribute the\nletter and enclosure to interested industry parties in a Casualty Prevention Circular.\nPHMSA and FRA appreciate and welcome feedback from the regulated community to ensure\nthat new regulations are effective in practice and in principle. If you have additional\nquestions or comments, please contact Mr. Karl Alexy, Staff Director, FRA Hazardous\nMaterials Division, at (202) 493-6245 or KarLAlexy@dot.gov.\n~cere,Aly:...;..t:'\\..Do--,.--\"li..-,;;,y,-.,_,-+_-,\nMich . ogue\nActing Associate Administrator .. .,...........,.·troad Safety/Chief Safety Officer\nEnclosure\n\n<<>>\n\nEnclosure\nResponses to Questions, Comments, and Requests for Clarification Regarding the\nFinal Rule Published June 25, 2012 (77 FR 37962; HM-216B)\nIncorporating Rail Special Permits into the Hazardous Materials Regulations1\nI. § 173.314 (Compressed gases in tank cars and multi-unit tank cars)\nComment: In§ 173.314, PHMSA should consider consolidating Paragraphs (e)(2)(i)\nand (e)(2)(ii) to remove the discrepancy with respect to the number of tank cars that\nrequire measurement by a magnetic gauging device. Paragraph (e)(2)(i) could be\nread as requiring every tank car tank; whereas, Paragraph ( e )(2)(ii) is one out of every\n10 tank car tanks.\nResponse: Per Paragraph ( e )(2)(i) of this Section, the outage of each tank car tank\nloaded through a metering device can be measured using a magnetic gauging device\nto ensure that the minimum outage is not exceeded. Paragraph ( e )(2)(ii) requires that\nfor one of every 10 tank car tanks loaded with a magnetic gauging device per\nParagraph ( e )(2)(i), the outage measurement must be used to calculate the volume of\ncommodity in the tank car tank, and to verify the volume indicated by the metering\ndevice. These measurements are needed so that the volume will not exceed the\nminimum outage at the appropriate reference temperature for the commodity. In\nother words, the calculations required by Paragraph (e)(2)(ii) are intended to verify\nthe actual outage the tank car tank was loaded with and must be maintained as a part\nof recordkeeping (See§ 173.314(e)(2)(iii)).\nII. § 180.503 (Definitions)\nA. Tank Car Tank (defined as \"the shell, heads, tank shell, and head weld joints,\nattachment welds, sumps, nozzles, flanges, and all other components welded\nthereto that are either in contact with the lading or contain the lading\").\nComment: Some commenters expressed concern about the inclusion of the\ndefinition of \"tank car tank\" adopted in the final rule. Commenters noted that the\ndefinition was not explicitly included in the Notice of Proposed Rulemaking\n(NPRM), and questioned the implications of the new definition on the\nmanufacturing, maintenance, and qualification of tank car tanks. They also cite\nthe definition of ''tank car tank\" in the Association of American Rw.roads' (AAR)\n\"Tank Car Manual\" (TCM), and proposed revisions to the definition.\nResponse: As discussed in the preamble to the final rule, in response to the\nNPRM, PHMSA received a request to change the term ''tank car\" as it was used\nin the NPRM to ''tank and components subject to this subchapter\" throughout the\nregulatory text of Part 180. The stated rationale for this request was to ensure\n1AII \"Part\" and \"Section\" references in this document refer to Title 49 of the Code of Federal Regulations\n(CFR).\n\n<<>>\n\nconsistency with the scope of existing regulatory provisions and clarify that\ncertain components of a tank car are subject to FRA's rail safety regulations\n(e.g., safety appliances and running gear), but not the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180).\nAs explained in the preamble to the final rule (77 FR 37976), PHMSA and FRA\nagreed in principle with the commenters' concerns regarding consistency and\nclarity within the HMR, but we concluded that the specific regulatory language\nsuggested would be misleading and not consistent with safety. Accordingly, in\nresponse to the commenters' concerns, we added a definition of \"tank car tank\" in\nthe final rule to provide clarity and promote consistency within the-HMR.\nThe definition of ''tank car tank\" in the final rule was intended to include all\nfeatures on the tank car tank that contain the lading and/or pressure, including\nnozzles and flanges, and the welds attaching these features to the remaining\nportion of the tank. In other words, the term \"attachment welds\" as used in the\nfinal rule's definition of''tank car tank\" is limited to welds associated with lading-\ncontainment features.\nPHMSA and FRA's intent in including the tank car tank definition is twofold: to\nensure adequate inspection of all lading-containing features (including nozzles\nand flanges, as well as welds associated with lading-containment features) on a\ntank car tank, and to provide clarity in response to concerns expressed by\ncomments to the NPRM. This definition was not intended to require modification\nof current, generally accepted industry practices regarding the welding of the\nfollowing lading-containment features:\n• Visual gauge bar welded to the nozzle.\n• Jacket flashing welded to the nozzle.\n• Hinged and bolted manway cover hinge and eyebolt tabs welded to the nozzle.\n• Siphon pipe guide pad welded to the tank interior.\nYears of successful manufacturing, repair, and inspection have demonstrated the\neffectiveness of these current practices. Therefore, PHMSA and FRA believe that\nthe industry should modify the language in the AAR TCM to address any\ninconsistencies that the new definition in the HMR may have caused between\ncurrent practices and the industry requirements ( e.g., Appendix W requirements\nfor post-weld heat treatment). FRA and PHMSA believe that inclusion of the\nobjective and accurate definition of a tank car tank in the HMR is necessary to\nensure a thorough and effective inspection of all lading-containment welds on\ntank car tanks.\nB. Corrosive to Tank or Service Equipment (defined as \"a material identified in\nAppendix D to [Part 180] or a material that, when in contact with the inner shell\n2\n\n<<>>\n\nof the tank or service equipment, has a corrosion rate on steel greater than\n2.5 mpy (0.0025 inch per year)).\n1. Question: Industry questioned whether such variables as temperature of the\ncommodity and concentration, for example, will affect the rate of corrosion\nand whether it is FRA's expectation that the car owner will make reasonable\nassumptions regarding these variables and create a list of commodities that\nmeet the new definition based on a tank car tank's service history and internal\ninspection data.\nAnswer: Yes, such variables as commodity temperature and concentration\nmay affect a commodity's corrosion rate. Accordingly, it is imperative that a\ntank car owner and/or interior coating/lining owner understand the service\nconditions to which any tank car and/or coating/lining that they own may be\nexposed, and how such conditions affect the commodity's corrosiveness. If\nthere is a range of conditions that affect the corrosivity of a material, the tank\ncar and/or coating/lining owner must select the appropriate interior\ncoating/lining based on factors that pose the greatest risk to the reliability of\nthe coating/lining and tank.\n2. Question: Citing caustic soda as an example, industry noted that certain\ncommodities may have a corrosion rate between 2 mpy and 3 mpy. Tank car\ntanks used to transport these commodities are lined for product purity\npurposes and have no service history to show that the corrosion rate may be\nclose to 2.5 mpy. Industry questioned what kind of burden there is to\ndetermine, if the corrosion rate is actually greater than 2.5 mpy, who bears\nthat burden, and whether shippers of these commodities need to develop\ncoating/lining plans.\nAnswer: Shippers need to develop coating/lining plans only if they are the\nowner of a particular coating/lining. See § 180.509(i)(2). Although there is\nno absolute requirement to test a commodity to determine if if meets the\ndefinition of corrosive or reactive, in accordance with § 180.509(i),\ncoating/lining owners have a duty to ensure inservice reliability of all owned\ninterior coating/linings based on the service history of the coating/lining. In\nother words, if appropriate industry literature or analysis indicates that a\ncommodity meets ( or may be close to meeting) the definition of corrosive, but\na coating/lining owner has a history of transporting the material without issue,\nin accordance with § 180.509(1), the owner has the option to request approval\nof alternative inspection and test procedures or intervals related to that\ncoating/lining. Data, along with analysis of the data demonstrating the\nreliability of the interior coating/lining when in immersion service of a\ncommodity that exceeds ( or is thought to potentially exceed) the minimum\ncorrosion rate can be used to justify an alternative inspection procedure or\ninterval.\n3\n\n<<>>\n\nC. Railworthy, Railworthiness (defined for a tank car to mean \"that the tank,\nservice equipment, safety systems, and all other components [subject to the HMR]\nconform to the HMR, are otherwise suitable for continued service, and capable of\nperforming their intended function until their next qualification\").\n1. Question: What does a tank car owner need to do to comply with the broad\ndefinition of \"rail worthy\" and the broad acceptance criteria set forth in\n§ § 180.509( d) and 180.511 ( d) and (h) ( e.g., \"shows no indication of a defect\nthat may reduce reliability\" before the next qualification interval) to avoid\nbeing in violation of Part 180 every time a tank car tank, component, service\nequipment, or safety system requires repair prior to the next qualification\ndeadline?\nAnswer: Pursuant to§ 180.501, a tank car owner must develo~ a\nqualification program that identifies where to inspect, how to inspect, and the\nacceptance criteria. The focus of a qualification program must be areas of a\ntank car tank or its appurtenances that, if found to be defective, may reduce\nthe reliability of the tank car and, in turn, could render the tank car unsafe for\ntransportation. It is expected that a qualified tank car will perform to the\ndesign level of reliability and safety throughout the inspection interval.\nTherefore, if maintenance is required to repair a feature that is qualified\nduring the inspection interval, the owner must determine the cause of the\nfailure and adjust the qualification program accordingly. This may consist of\ndecreasing the inspection interval per § 180.509(b ), requiring a more sensitive\ninspection and test method to promote earlier detection of a defect, and/or\nmodifying the acceptance criteria to be commensurate with the new inspection\nmethod.\n2. Question: Can a tank car owner delegate to a lessee the owner's obligation\nunder Part 180 to determine the railworthiness of a car on lease?\nAnswer: Yes, as a private business decision, a tank car owner may delegate\nto a lessee the responsibility to determine the railworthiness of a tank car\nbeing leased. In such circumstances, however, for purposes of'compliance\nand enforcement of the HMR, the Department may hold either the tank car\nowner or lessee, or both, liable if the car is subsequently found to not be\nrailworthy. As explained above, in developing a qualification program, in\naddition to the minimum requirements of the HMR, a tank car owner must\nidentify the conditions that could potentially reduce the reliability of a tank car\n(i.e., an owner's qualification program must clearly identify the areas/features\nof the car that require regular inspection and testing, the methods of inspection\nand test, the interval on which the inspection and test is to be performed, and\nthe acceptance criteria, such that the party the owner delegates the\nqualification and maintenance of the tank car to is clearly informed of the\nconditions that affect the tank car's railworthiness.\n4\n\n<<>>\n\nD. Qualification (defined to mean \"the car and its components conform to the\nspecification to which it was designed, manufactured, or modified to the\nrequirements of [the HMR], to the applicable requirement of the AAR Tank Car\nManual ... , and to the owner's acceptance criteria. Qualification is accomplished\nby careful and critical examination that verifies conformance using inspections\nand tests based on a written program approved by the tank car owner followed by\na written representation of that conformance. A tank car that passes the\nappropriate tests for its specification, has a signed test report, is marked to denote\nthis passage, and is considered qualified for hazardous materials transportation\")\nunder the HMR. ·\nComment: Industry suggested that in § 180.503, PHMSA should consider\namending the definition \"qualification\" to define the term \"components,\"\nincluding the tank car tank, safety systems, and service equipment, and by\nremoving the term \"hazardous materials,\" since a tank car marked \"DOT'' must\nconform to the specification regardless of whether the tank car is used to transport\nhazardous materials. In addition, industry suggested that the table following the\nterm \"qualification\" should be removed as suggested in the June 25, 2012,\npreamble (77 FR 37961, 37975).\nResponse: PHMSA and FRA disagree with the suggested amendment to the\ndefinition of the term \"qualification.\" To define the term \"components\" would\nlimit the applicability of the requirements for qualification. The term\n\"components\" is defined by the standards guiding qualification (i.e., the HMR and\nthe AAR TCM), including a tank car owner's acceptance criteria. Defining\n\"components\" to include only the tank car tank, safety systems, and service\nequipment would preclude a tank car owner from defining other features of tank\ncars, such as those outside of the tank, safety systems, and service equipment that\nhave been identified as areas requiring inspection as part of the qualification\nprogram (e.g., stub sills or reinforcement pads for various attachments to the tank\ncar tank). The agencies agree that when a tank car is marked \"DOT'' it is a\nrepresentation that the car conforms to the specification regardless of the\ncommodity, but disagree with the suggestion to remove the term \"hazardous\nmaterials.\" A tank car marked \"DOT\" is permitted to transport certain hazardous\nmaterials, depending on the specification, but may also be used to transport\nmaterials that are not regulated hazardous materials under the HMR. However,\nincluding the term \"hazardous materials\" in the definition reinforces the intent of\nthe specification requirements-that a car marked with a DOT specification must\nmeet that specification that is specifically intended for purposes of transporting a\nregulated hazardous material.\nIn response to a comment requesting either removal of the table or removal of the\nleakage pressure test from the table since the leakage test is required to be\nperformed after service equipment is applied to the tank, in the preamble to the\nHM-216B final rule, PHMSA and FRA expressed agreement and indicated that\nthe table would be removed. However, the statement that the table would be\n5\n\n<<>>\n\nremoved was errant in that we believe that the table provides a useful reference to\nthe various regulatory provisions applicable to a tank car tank's qualification, but\nagree that the reference to the pressure test should have been removed. PHMSA ·\nand FRA removed the leakage pressure test from this table in the HM-216B final\nrule (See 77 FR 37974-37975).\nE. Representation ( defined as \"attesting through documenting, in writing, or by\nmarking on the tank (or jacket) that a tank car is qualified and railworthy. See\nalso§§ 180.511 and 180.517(b)).\nComment: Comm.enters suggested that PHMSA consider revising the definition\nof\"representation\" for consistency with Part 180. Specifically, commenters\nsuggested that the revised definition reference the specific components of tank\ncars ( e.g., safety systems or service equipment) that are railworthy and qualified\nfor continued use.\nResponse: Although PHMSA and FRA agree that the definition of\n\"representation\" should be clarified for consistency with Part 180, we do not\nbelieve that referencing specific components of a tank car in the definition\naccurately reflects the intent of the definition. The qualification of a tank car is\nnot limited to the qualification and condition of individual components of the car.\nInstead, the qualification of a car should reflect the overall status and\nrail worthiness of the car as a whole.\nHowever, PHMSA and FRA do note a technical drafting error in the definition of\n\"representation\" in the final rule. Specifically, we did not intend that a tank car's\nqualification status could be either attested to in writing or marked on the car.\nInstead, as the plain language of§§ 180.511 and 180.517(b) requires, it is\nPHMSA and FRA's intent that a car's qualification status be recorded both in\nwriting in report form, and marked on the car's tank or jacket. We will consider\namending the specific regulatory language noted to make this editorial change in a\nfuture rulemaking.\nF. Service Equipment Owner (defined to mean ''the party responsible for bearing\nthe cost of the maintenance of the service equipment\").\nComment: In§ 180.503, PHMSA should consider amending the definition of\n\"service equipment owner\" to be consistent with the term \"coating/lining owner.\"\nResponse: PHMSA and FRA agree that there is an inconsistency between the\ndefinition of \"service equipment owner\" and \"coating/lining owner.\" However,\nwe believe that the definition of \"coating/lining owner\" should be amended for\nconsistency with industry practice, as opposed to the definition of\"service\nequipment owner.\" PHMSA and FRA will consider amending the specific\nregulatory language noted to make this change in a future rulemaking proceeding.\n6\n\n<<>>\n\nIII. G. Train Consist (defined to mean \"a written record of the contents and location of\neach rail car in a train\").\nComment: The definition of \"train consist\" should be removed from the\nregulation because it is not used in Part 180 and is already defined in § 171.8\n(Definitions and abbreviations).\nResponse: PHMSA and FRA agree that this definition is not necessary in\nPart 180. We will consider removal of the definition in a future ru:emaking\nproceeding.\n§ 180.509 (Requirements for qualif,cation of specification tank cars)\nA. Question: How can a tank car owner establish its compliance with qualification\nrequirements in a situation where a tank, component, service equipment, or safety\nsystem needs repair prior to its next qualification deadline?\nAnswer: A tank car owner can establish compliance with the qualification\nrequirements when a tank car or a component of a tank car subject to the HMR or\nthe owner's qualification program needs repair prior to its next qualification date\nby authorizing a qualified repair facility to perform the necessary repairs, ensuring\nthat the repairs are completed per the tank car owner's written instructions,\nmeeting the owner's acceptance criteria, and requalifying and testing the ~ or\ncomponent in accordance with§ 180.513, ifrequired. In this regard,§ 180.513(b)\nrequires a repair facility to obtain permission of the equipment owner before\nperforming work that affects the qualification of the owner's equipment, or have\nwritten confirmation that the owner is allowing them to use the instructions\nfurnished by another party. Tank car facilities performing work affecting the\nqualification of the equipment without the owner's procedures or without\nexpressed permission to do otherwise could face civil penalties.\nB. Question: What is the standard of predictability that tank car owners should\nmeasure in order to determine how likely it is that a component will require\nrepairs prior to the next qualification interval?\nAnswer: A standard of predictability is \"reliability,\" which is defined in\n§ 180.503 as ''the quantified ability of an item or structure to operate without\nfailure for a specified period of its design life or until its next qualification.\"\nReliability is calculated using data from the population for which you wish to\ndetermine reliability. As such, historical experience (service history) is necessary.\nIn this case, failure is the point at which maintenance is required. In§ 180.503,\nmaintenance is defined as the \"upkeep, or preservation, including repairs\nnecessary and proper to ensure an in-operation tank car's specification until its\nnext qualification.\" Accordingly, if the tank car tank or its appurtenances require\nrepair between qualification events, the reliability of that item is reduced.\n''Normal wear and tear\" must not reduce reliability . . It is up to the tank car,\n7\n\n<<>>\n\n. i\ni\nj\nservice equipment; and/or interior coating/lining owner to adjust qualification\nprograms to account for the effects of normal wear and tear, so that the tank and\nits appurtenances maintain reliability throughout the inspection interval.\nC. Question: What types of behavior and standards will PHMSA and FRA rely\nupon to define \"compliance\" with§ 180.509, and how will FRA enforce these\nstandards?\nAnswer: PHMSA and FRA will consider how data, such as nonaccidental\nreleases (NAR), one-time movement approvals, repair records, etc., have been\ncollected, analyzed, and accounted for in the current inspection intervals. For\nexample, if an owner has tank cars in the same service involved in five NARs in\n1 year, FRA would request the root cause analysis for these events, as well as\nservice reliability data for the remaining tank cars in the fleet, to understand how\nthe owner has modified its qualification program ( e.g., inspection methods,\nintervals, acceptance criteria) to prevent recurrences.\nD. Question: What is the obligation of a repair facility, shipper, or railroad to\nidentify \"unsafe\" conditions?\nAnswer: A tank car repair facility, shipper, and carrier all have obligations under\nthe HMR to identify unsafe conditions. The following list is an illustrative, but\nnot exhaustive, list of major responsibilities of tank car repair facilities, shippers,\nand railroads related to tank cars under the HMR:\n• A repair facility is required to adhere to the owner's qualification program in\nwhich the identified conditions that may make the tank car unsafe are\nidentified, along with the methods to detect them. The repair facility may, if\napproved in writing by the tank car owner, use its own procedures. If a tank\ncar owner approves a facility's use of its own procedures, the tank car owner\nis responsible for reviewing the procedures to ensure that they will identify all\nidentified unsafe conditions.\n• A shipper is required to properly select and inspect a hazardous materials tank\ncar before shipping. Section 173.3l(d) requires, at a minimum, that a shipper\nconduct an external visual inspection of the car before shipping, and to tighten\nall closures to ensure that no hazardous materials are released during\ntransportation. The HMR lists the features that must, at a minimum, be\nexamined, but it is also incumbent upon the shipper to develop acceptance\ncriteria for inspections required by § 173 .31 that are at least as stringent as the\nowner' s criteria in the qualification program.\n• Section 174.3 prohibits carriers from accepting for transport\npackages/packagings (including railroad tank cars) that do not conform to the\nHMR. Section 174.9 requires carriers to conduct ground-level visual\ninspections of hazardous materials packages, including tank cars, to ensure\n8\n\n<<>>\n\nIV. compliance with the HMR. Section 174.50 prohibits carriers from forwarding\nnonconforming or leaking packages. Carriers are also held to the AAR\ninterchange rules that cover features of the tank car outside the scope of the\nHMR.\n§ 180.509(b) (Conditions requiring qualification of tank cars)\nA. Question: Section l80.509(b)(l) requires the qualification of a tank car, without\nregard to the compliance date, \"if the tank car shows evidence of abrasion,\ncorrosion, cracks, dents, distortions, defects in welds, or any other condition that\nmay make the tank car unsafe for transportation.\" What does \"may make the tank\ncar unsafe for transportation\" mean?\nAnswer: As used in§ 180.509(b)(l), the phrase \"ot\\ler condition that may make\nthe tank car unsafe for transportation\" means any condition that could potentially\nreduce or has been demonstrated to reduce the design level of reliability of the\ntank car. It is the responsibility of tank car owners to identify all such conditions\n(through damage tolerance analysis, service reliability data, or any other\nscientifically accepted test or inspection method) and to appropriately address the\nidentified conditions during each qualification event. The list of conditions may\nincrease with the collection of inservice data, and a problem or defect that is not\noriginally anticipated may be discovered after years of service. This defect must\nthen be accounted for in the owner's qualification program.\nB. Question: Often tank cars are leased and the car owner is not in possession of the\ncar or in a position to identify evidence of abrasion, corrosion, cracks, dents,\ndistortions, defects in welds, or other conditions that may make the tank car\nunsafe for transportation. How can a tank car owner identify the need for\nqualification inspections in accordance with§ 180.509(b)(l) when it does not\nhave possession of the car? Can this obligation be delegated to the-shippers or\nlessees? Is an \"unsafe condition\" based on the car owner's service history?\nAnswer: An unsafe condition can be based on the car's service history, but as\nnoted in the immediately preceding answer, it does not have to be. Damage\ntolerance analysis or any other scientifically accepted test or inspection method,\nor even real-world observations of the effect of operating conditions or other\nfactors on a tank car, can be an indicator of an unsafe condition. As noted above,\na tank car owner is responsible for identifying all conditions that could potentially\nreduce or that have been demonstrated to reduce the design level of reliability of a\ntank car. Assuming that the owner's qualification program addresses these issues\nand includes processes and procedures to ensure that the qualification program is\nappropriately updated and revised in response to service reliability data, and the\ntank car owner ensures that repair facilities are given adequate instruction on its\nqualification program, the owner should be well aware of the condition of the car\nat all times. As a private business decision, a tank car owner may delegate the\nresponsibility to determine whether a car is required to be qualified because of a\n9\n\n<<>>\n\ncondition identified in § 180.509(b) ( or any other condition that may make the car\nunsafe for transportation) to a lessee or a shipper. However, for purposes of\ncompliance and enforcement of the HMR, the Department may hold either the\ntank car owner or lessee, or both, liable if either or both parties are found to have\nknown or should have known about an unsafe condition of the car necessitating\nthe car's qualification under§ 180.509(b).\nV. § 180.509(c) (Frequency of inspection and tests)\nComment: In § 180.509( c )(3 ), PHMSA should amend the table by removing the\nmaximum interval note \"see § 180.509(k)\" with respect to service equipment, and\nreplacing the term with \"10 years.\" The IO-year interval stated in§ 180.509(k), with\nrespect to service equipment, should be revised accordingly.\nResponse: As a matter of clarity and technical drafting, PHMSA and FRA agree\nwith this comment. For consistency with the remainder of§ 180.509, we will\nconsider in a future rulemaking removing the existing note, replacing it with the\nphrase \"10 years,\" and deleting the first sentence of§ 180.509(k) that would become\nredundant with the table.\nVI. § 180.509(d) (Visual inspection)\nA. Comment: In § 180.509( d), PHMSA should amend the introductory paragraph\nto align the responsibility from tank car facility to tank car owner for consistency\nwith other paragraphs. In addition, Paragraphs (d)(l), (2), (3), and (5) of this\nsection should be revised to use the term \"defects\" as defined in § 180.503.\nResponse: PHMSA and FRA agree with the.substance of this suggestion. We\nwill consider appropriate revisions in a future rulemaking proceeding.\nVII. § 180.509(e) (Structural integrity inspections and tests)\nA. Comment: In the preamble to the final rule (77 FR 3 7977), PHMSA and FRA\nexpressed agreement with Union Tank Car Company's (UTLX) recommendation\nto change the reference in§ 180.509(e)(4)(v) to list visual testing as \"VT\" and\nremote vislJ,al testing as \"RVT\" to agree with AAR's TCM, which defines these\nterms separately. In the final rule, however, PHMSA did not revise the regulatory\nlanguage consistent with this statement in the preamble.\nResponse: PHMSA and FRA agree that a technical drafting error occurred and\nthat the regulatory language of§ 180.509(e)(4)(v) was not revised as we intended.\nWe will consider amending the specific regulatory language noted to make this\neditorial change in a future rulemaking.\nB. Comment: For consistency with other paragraphs, in§ 180.509(e), PHMSA\nshould consider revising the introductory text of Paragraph ( e )(1) to specify that\n10\n\n<<>>\n\nt","truncated":true,"body_characters":56983}