Hazardous Materials: Improving the Safety of Railroad Tank Car Transportation of Hazardous Materials, 1770-1802 [E8-31056]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 74, Number 8 (Tuesday, January 13, 2009)]
[Rules and Regulations]
[Pages 1770-1802]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-31056]



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Part II





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration



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49 CFR Parts 171, 172, et al.



Hazardous Materials: Improving the Safety of Railroad Tank Car 
Transportation of Hazardous Materials; Final Rule

Federal Register / Vol. 74, No. 8 / Tuesday, January 13, 2009 / Rules 
and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174 and 179

[Docket No. FRA-2006-25169]
RIN 2130-AB69


Hazardous Materials: Improving the Safety of Railroad Tank Car 
Transportation of Hazardous Materials

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration 
(PHMSA), in coordination with the Federal Railroad Administration 
(FRA), is amending the Hazardous Materials Regulations to prescribe 
enhanced safety measures for rail transportation of poison inhalation 
hazard (PIH) materials, including interim design standards for railroad 
tank cars. Pending validation and implementation of the crashworthiness 
performance standard proposed in the NPRM issued under this docket on 
April 1, 2008, the rule mandates commodity-specific improvements in 
safety features and design standards for newly manufactured DOT 
specification tank cars. The rule also adopts a 50 mph speed 
restriction for loaded rail tank cars transporting PIH materials; an 
improved top fittings performance standard; an allowance to increase 
the gross weight of tank cars that meet the enhanced standards; and 
adoption of the industry standard for normalized steel in certain tank 
cars. The interim standards established in this rule will enhance the 
accident survivability of PIH tank cars when compared to existing 
regulations while providing tank car owners continued flexibility in 
car selection. Adoption of this interim standard will ensure the 
ongoing availability of tank cars while PHMSA and FRA complete research 
and testing on advanced tank car design to validate and implement a 
more stringent performance standard.

DATES: Effective Date: March 16, 2009. The incorporation by reference 
of the publication listed in the rule is approved by the Director of 
the Federal Register as of March 16, 2009.
    Incorporation by Reference Date: The incorporation by reference of 
the publications adopted in Sec.  171.7 of this final rule has been 
approved by the Director of the Federal Register as of March 16, 2009.

FOR FURTHER INFORMATION CONTACT: William Schoonover, (202) 493-6229, 
Office of Safety Assurance and Compliance, Federal Railroad 
Administration; Lucinda Henriksen, (202) 493-1345, Office of Chief 
Counsel, Federal Railroad Administration; or Michael Stevens, (202) 
366-8553, Office of Hazardous Materials Standards, Pipeline and 
Hazardous Materials Safety Administration.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AAR--Association of American Railroads
ASLRRA--American Short Line and Regional Railroad Association
BNSF--BNSF Railway Company
BLET--Brotherhood of Locomotive Engineers and Trainmen
CPC--Casualty Prevention Circular
CI--Chlorine Institute
CP--Canadian Pacific
CPR--Conditional Probability of Release
CSXT--CSXT Transportation
Department--U.S. Department of Transportation
DOW--Dow Chemical Company
DOT--U.S. Department of Transportation
Federal Hazmat Law--Federal hazardous materials transportation law 
(49 U.S.C. 5101 et seq.)
FRA--Federal Railroad Administration
HMR--Hazardous Materials Regulations
NGRTCP--Next Generation Rail Tank Car Project
NPRM--Notice of Proposed Rulemaking
NTSB--National Transportation Safety Board
OMB--Office of Management and Budget
PHMSA--Pipeline and Hazardous Materials Safety Administration
PIH--Poison Inhalation Hazard
R&D--Research and Development
RSAC--Railroad Safety Advisory Committee
RSI--Railway Supply Institute
SAFETEA-LU--Safe, Accountable, Flexible, Efficient, Transportation 
Equity Act: A Legacy for Users, Public Law 109-59
SBA--Small Business Administration
Tank Car Manual--Association of American Railroads Tank Car 
Committee Tank Car Manual
TCC--Association of American Railroads Tank Car Committee
TFI--The Fertilizer Institute
TIH--Toxic Inhalation Hazard
TSA--Department of Homeland Security, Transportation Security 
Administration
Trinity--Trinity Industries, Inc.
UTU--United Transportation Union
Union Tank--Union Tank Car Company
UP--Union Pacific Railroad Company
Volpe--Volpe National Transportation Systems Center

Table of Contents for Supplementary Information

I. Background
II. Statutory Authority, Congressional Mandate, and NTSB 
Recommendations
III. The Proposed Rule
IV. Discussion of Comments on the Proposed Rule
V. Discussion of Comments on Petitions for Interim Tank Car 
Standards
VI. Summary of Rule
VII. Section-by-Section Analysis
VIII. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 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. Regulation Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act

I. Background

    On April 1, 2008, PHMSA published a notice of proposed rulemaking 
(NPRM) proposing revisions to the Hazardous Materials Regulations (HMR; 
49 CFR Parts 171-180) to improve the crashworthiness protection of 
railroad tank cars designed to transport materials that are poisonous, 
or toxic, by inhalation (referred to as PIH or TIH materials). 73 FR 
17818. The NPRM proposed enhanced tank car performance standards for 
head and shell impacts; operational restrictions for trains hauling 
tank cars containing PIH materials; interim operational restrictions 
for trains hauling tank cars used to transport PIH materials, but not 
meeting the enhanced performance standards; and an allowance to 
increase the gross weight on rail of tank cars that meet the enhanced 
tank-head and shell puncture-resistance systems.
    The NPRM provided detailed background information on the need to 
enhance the crashworthiness protection of railroad tank cars, 
government and industry efforts to improve the safety of hazardous 
materials transportation via railroad tank car, and the Department's 
research efforts focused on tank car safety. As we explained in the 
NPRM, although rail transportation of hazardous materials is a safe 
method for moving large quantities of hazardous materials over long 
distances, rail tank cars used to contain these materials have not been 
designed to withstand the force of high-speed derailments and 
collisions. In the last several years, rail tank cars have been 
breached in numerous accidents, resulting in large releases of 
hazardous materials. Of particular concern, three of these accidents 
involved PIH materials: (1) The January 18, 2002, derailment of a 
Canadian Pacific (CP) train in Minot, North Dakota which resulted in a 
catastrophic release of anhydrous ammonia; (2) the June 28, 2004 
collision

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between trains operated by Union Pacific Railroad Company (UP) 
Burlington Northern and Santa Fe Railway Company (now known as BNSF 
Railway Company) in Macdona, Texas, involving a breach of a loaded tank 
car containing chlorine; and (3) the January 6, 2005 collision between 
two Norfolk Southern Railway Company (NS) trains in Graniteville, South 
Carolina, also involving the catastrophic rupture of a loaded chlorine 
tank car. As noted in the NPRM, although none of these accidents was 
caused by the hazardous materials tank cars, the failure of the tank 
cars involved led to fatalities, injuries, evacuations, and property 
and environmental damage.
    In response to these accidents, related NTSB recommendations, and 
the Congressional mandate for tank car safety improvements in the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users, Public Law 109-59 (SAFETEA-LU), PHMSA and FRA initiated a 
comprehensive review of design and operational factors that affect rail 
tank car safety. As noted in the NPRM, DOT's on-going and multi-faceted 
strategy to enhance the safety of rail tank cars and transportation of 
hazardous materials by rail tank cars utilizes a risk-based, system-
wide approach that addresses: (1) Tank car design and manufacturing; 
(2) railroad operational issues such as human factors, track conditions 
and maintenance, wayside hazardous detectors, signals and train control 
systems; and (3) improved planning and training for emergency response.
    Subsequent to publication of the NPRM, DOT hosted a two-day 
technical symposium on tank car crashworthiness and held a series of 
public meetings to solicit feedback on the NPRM. Although participants 
at both the technical symposium and public meetings generally agreed 
with DOT's goal of improving the accident survivability of tank cars, 
commenters expressed practical concerns regarding DOT's specific 
proposals.
    Also subsequent to publication of the NPRM, the Association of 
American Railroads (AAR) renewed the effectiveness of its previously 
suspended interchange standard for tank cars transporting PIH materials 
(Casualty Prevention Circular 1187 or CPC-1187). AAR's CPC-1187 
implements interchange standards for the shell, head, and top fittings 
of PIH tank cars. Specifically, AAR's CPC-1187 interchange standard 
contains tank car head and shell design standards and an alternate 
performance standard based on the metric AAR terms ``conditional 
probability of release.'' The head and shell requirements of CPC-1187 
can be met by using DOT specification tank cars of higher tank classes 
than required by DOT standards; however, tank cars built to meet the 
CPC-1187 standard would not meet the standards DOT proposed in the 
NPRM. CPC-1187 also requires tank cars used to transport PIH materials 
be equipped with top fittings protection systems designed to withstand, 
without loss of lading, a rollover with a linear velocity of 9 mph and 
that the top fittings protection system to be attached to the tank by 
welding.
    In addition, in response to the NPRM, the overwhelming majority of 
industry commenters have expressed the view that the standards proposed 
in the NPRM are ``technology-forcing'' and that the tank car industry 
currently lacks the technological and engineering ability to 
manufacture tank cars meeting the proposed standards. According to 
commenters, the net effect of these ``competing'' standards in CPC-1187 
and the NPRM has been that shippers and tank car purchasers (e.g., tank 
car lessors) cannot currently purchase PIH tank cars with any assurance 
that the cars will have a reasonable economic life.\1\ Accordingly, 
commenters indicate that shippers and tank car owners are being forced 
to forego the phasing out of aging tank cars that they would normally 
retire and replace with new cars, potentially resulting in a shortage 
of cars needed for the transportation of PIH materials in the short 
term. While commenters generally express support for the development of 
a performance standard related to tank car puncture resistance, they 
recommend that DOT provide an interim solution to ensure the 
availability of PIH tank cars in the time period before DOT's proposed 
performance standards are finalized and tank cars can be built to meet 
those standards.
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    \1\ The NPRM proposed the complete phase-out within eight years 
of all PIH tank cars not meeting the proposed performance standards. 
As noted above, cars built to meet the requirements of CPC-1187 
would not meet the standards proposed in the NPRM and because of 
weight restrictions, it is possible that cars built to meet CPC-1187 
might not be retrofitable to meet any portion of the final 
performance standard promulgated in this rulemaking.
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    In this connection, in a petition dated July 3, 2008 (Joint 
Petition), the American Chemistry Council (ACC), American Short Line 
and Regional Railroad Association (ASLRRA), the Association of American 
Railroads (AAR), Chlorine Institute (CI), and Railway Supply Institute 
requested that the Department authorize interim standards for tank cars 
transporting PIH materials. In a separate petition filed on July 7, 
2008, The Fertilizer Institute (TFI) made a similar request.\2\ Each of 
these petitions is discussed in more detail below.
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    \2\ PHMSA assigned petition numbers P-1525 and P-1524 to the 
Joint Petition and TFI petition, respectively. On July 23, 2008, 
PHMSA published a notice soliciting public comment on the petitions 
under docket number PHMSA-2008-0182. 73 FR 42765.
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    Based on comments received in response to the NPRM and the two 
petitions for rulemaking, in this rule FRA and PHMSA are adopting 
interim standards for tank cars used to transport PIH materials. This 
rule is an interim response based on current engineering judgments 
within the affected market sector. DOT intends to continue working with 
the industry to complete research and testing on advanced tank car 
design. Accordingly, we anticipate additional regulatory proceedings as 
the results of continuing government and private sector research and 
development are validated and the resulting technology is successfully 
implemented by industry. DOT intends that the standards set forth in 
this rule shall apply in the meantime, pending the development and 
commercialization of more stringent performance standards.

II. Statutory Authority, Congressional Mandate, and NTSB 
Recommendations

    Federal hazmat law authorizes the Secretary of DOT (Secretary) to 
``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' The Secretary has delegated this authority to PHMSA. 49 CFR 
1.53(b). The HMR, promulgated by PHMSA under the authority provided in 
Federal hazmat law, are designed to achieve three goals: (1) To ensure 
that hazardous materials are packaged and handled safely and securely 
during transportation; (2) to provide effective communication to 
transportation workers and emergency responders of the hazards of the 
materials being transported; and (3) to minimize the consequences of an 
incident should one occur. The hazardous material regulatory system is 
a risk management system that is prevention-oriented and focused on 
identifying a safety or security hazard and reducing the probability 
and quantity of a hazardous material release.
    Under the HMR, hazardous materials are categorized by analysis and 
experience into hazard classes and packing groups based upon the risks 
that they present during transportation. The HMR specify appropriate 
packaging and handling requirements for hazardous materials, and 
require a

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shipper to communicate the material's hazards through the use of 
shipping papers, package marking and labeling, and vehicle placarding. 
The HMR also require shippers to provide emergency response information 
applicable to the specific hazard or hazards of the material being 
transported. Finally, the HMR mandate training requirements for persons 
who prepare hazardous materials for shipment or who transport hazardous 
materials in commerce. The HMR also include operational requirements 
applicable to each mode of transportation.
    The Secretary also has authority over all areas of railroad 
transportation safety (Federal railroad safety laws, 49 U.S.C. 20101 et 
seq.), and has delegated this authority to FRA. 49 CFR 1.49. Pursuant 
to its statutory authority, FRA promulgates and enforces a 
comprehensive regulatory program (49 CFR parts 200-244) to address 
railroad track; signal systems; railroad communications; rolling stock; 
rear-end marking devices; safety glazing; railroad accident/incident 
reporting; locational requirements for the dispatch of U.S. rail 
operations; safety integration plans governing railroad consolidations; 
merger and acquisitions of control; operating practices; passenger 
train emergency preparedness; alcohol and drug testing; locomotive 
engineer certification; and workplace safety. FRA inspects railroads 
and shippers for compliance with both FRA and PHMSA regulations. FRA 
also conducts research and development to enhance railroad safety. In 
addition, both PHMSA and FRA are working with the emergency response 
community to enhance its ability to respond quickly and effectively to 
rail transportation accidents involving hazardous materials.
    As noted above, on August 10, 2005, Congress passed SAFETEA-LU, 
which added section 20155 to the Federal hazmat law. 49 U.S.C. 20155. 
In part, section 20155 required FRA to (1) validate a predictive model 
quantifying the relevant dynamic forces acting on railroad tank cars 
under accident conditions, and (2) initiate a rulemaking to develop and 
implement appropriate design standards for pressurized tank cars.
    In response to the accident in Minot, North Dakota, on January 18, 
2002, in which a train derailment resulted in the catastrophic release 
of anhydrous ammonia leading to one death and 11 serious injuries, the 
NTSB made four safety recommendations to FRA specific to the structural 
integrity of hazardous material tank cars. The NTSB recommended that 
FRA analyze the impact resistance of steels in the shells of pressure 
tank cars constructed before 1989 and establish a program to rank those 
cars according to their risk of catastrophic failure and implement 
measures to eliminate or mitigate this risk. The NTSB also recommended 
that FRA validate the predictive model being developed to quantify the 
maximum dynamic forces acting on railroad tank cars under accident 
conditions and develop and implement tank car design-specific fracture 
toughness standards for tank cars used for the transportation of 
materials designated as Class 2 hazardous materials under the HMR. In 
response to the accident in Graniteville, South Carolina, on January 6, 
2005, in which a train collision resulted in the breach of a tank car 
containing chlorine and nine people died from inhalation of chlorine 
vapors, the NTSB recommended, in part, that FRA ``require railroads to 
implement operating measures such as * * * reducing speeds through 
populated areas to minimize impact forces from accidents and reduce the 
vulnerability of tank cars transporting'' certain highly-hazardous 
materials. Each of these NTSB recommendations is discussed in the 
NPRM.\3\
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    \3\ See 73 FR 17818, 17826-28. The NPRM indicated that NTSB 
classified FRA's responses to Safety Recommendations R-05-15 and R-
05-16 stemming from the Graniteville accident as ``Open-Response 
Received.'' Subsequently, in a letter dated June 7, 2007, however, 
NTSB classified these recommendations as ``Closed-Unacceptable 
Action'' and ``Open-Unacceptable Response.'' A copy of NTSB's June 
7, 2007, letter is available in the docket.
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    The Department considers this rule responsive to section 20155's 
mandate, as well as to the NTSB recommendations. As discussed in more 
detail in section IV below, however, we recognize that this rule does 
not directly implement each of the relevant NTSB recommendations. 
Instead, the interim standards we are adopting in this rule are only 
the first part of a longer-term strategy to enhance the safety of rail 
shipments of PIH materials. Improving the safety and security of 
hazardous materials transportation via railroad tank car is an on-going 
process. We plan to continue to develop and validate a performance 
standard to further improve the crashworthiness of PIH tank cars, with 
a view towards incorporating the improved performance standard into the 
HMR. Going forward, FRA's hazardous materials research and development 
program will continue to focus on reducing the rate and severity of 
hazardous materials releases by optimizing the manufacture, operation, 
inspection, and maintenance procedures for the hazardous materials tank 
car fleet. In addition, we plan to continue our holistic approach to 
rail safety, as discussed in detail in the NPRM, including railroad 
operating and maintenance practices; railroad routing practices; 
shipper commodity handling practices; and emergency response 
procedures.

III. The Proposed Rule

    Generally, the NPRM proposed a two-pronged approach to enhancing 
the accident survivability of tank cars. First, the NPRM proposed to 
limit the operating conditions of tank cars transporting PIH materials. 
Second, the NPRM proposed enhanced tank-head and shell puncture 
resistance standards.
    The NPRM described FRA's research demonstrating that the speed at 
which a train is traveling has the greatest effect on the closing 
velocity between cars involved in a derailment or accident situation 
and that the secondary car-to-car impact speed in such situations is 
approximately one-half the initial train speed (the speed of the train 
at the time of the collision or derailment). Based on this research, 
the Department recognized that limiting the operating speed of tank 
cars transporting PIH materials is one potential method to impose a 
control on the forces experienced by railroad tank cars. Accordingly, 
we proposed two operational speed restrictions:
    (1) A maximum speed limit of 50 mph for all trains transporting 
railroad tank cars containing PIH materials; and
    (2) A maximum speed limit of 30 mph in non-signaled (i.e., dark) 
territory for all trains transporting railroad tank cars containing PIH 
materials, unless the material is transported in a tank car meeting the 
enhanced tank-head and shell puncture-resistance systems performance 
standards of this proposal.
    As an alternative to the maximum speed limit of 30 mph in dark 
territory, we proposed submission for FRA approval of a complete risk 
assessment and risk mitigation strategy establishing that operating 
conditions over the subject track provide at least an equivalent level 
of safety as that provided by signaled track.
    In conjunction with these speed restrictions, we also proposed 
improved tank-head and shell puncture-resistance standards. The 
enhanced standards proposed to require tank cars that transport PIH 
materials in the United States to be designed and manufactured with a 
shell puncture-resistance system capable of withstanding impact at 25 
mph and with a tank-head puncture resistance system capable of

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withstanding impact at 30 mph. To ensure timely replacement of the PIH 
tank car fleet, we proposed an eight-year implementation schedule, 
contemplating design, development, and manufacturing ramp-up in the 
first two years, replacement of 50% of the fleet within the next three 
years, and replacement of the remaining 50% of the fleet in the 
following three years. As part of this implementation plan, we proposed 
the expedited replacement of tank cars used for the transportation of 
PIH materials manufactured before 1989 with non-normalized steel head 
or shell construction.\4\ Recognizing that improvements in tank car 
performance have historically relied in large part on thicker and/or 
stronger steel, which brings with it a corresponding addition to the 
empty weight of the tank car, we also proposed an allowance to increase 
the gross weight on rail for tank cars designed to meet the proposed 
enhanced tank-head and shell puncture-resistance systems performance 
standards (up to 286,000 pounds).
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    \4\ Non-normalized steel is steel that has not been subjected to 
a specific heat treatment procedure that improves the steel's 
ability to resist fracture.
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IV. Discussion of Comments on the Proposed Rule

    Subsequent to publication of the NPRM, DOT hosted a technical 
symposium on tank car crashworthiness and conducted four public 
meetings to solicit comment on the proposed rule. The intent of the 
technology symposium was to provide a forum for FRA and PHMSA to share 
with the tank car industry the agencies' collective knowledge and 
experience in the testing and design of rail tank cars significantly 
more crashworthy than conventional tank cars, as well as to provide 
parties involved in the manufacturing, repairing, and testing of tank 
cars an opportunity to openly discuss issues related to the 
manufacturing of such tank cars.
    We received approximately 50 written comments in response to the 
NPRM, including comments from members of the railroad and PIH shipping 
industry, trade organizations, local governments, tank car 
manufacturing and repair companies, members of Congress, as well as 
members of the general public. Several of these commenters also 
provided verbal comments at the public meetings held during the 
subsequent comment period. The following discussion provides an 
overview of the written and verbal comments DOT received in response to 
the NPRM and how DOT has chosen to address those comments in this rule. 
As previously noted, two petitions were filed requesting DOT to 
establish interim tank car standards; comments on these petitions are 
set forth in Section V. More detailed discussions of specific comments 
on the NPRM and the petitions for interim standards, as well as DOT's 
responses, can be found in the relevant Section-by-Section analysis 
portion of the preamble.
    Generally, commenters recognize the need to improve the 
crashworthiness of PIH tank cars and express support for DOT's efforts 
in the NPRM. For example, the NTSB supports the stated goals of the 
NPRM and states that many aspects of the proposal, when implemented, 
will significantly improve the safety of the transportation of PIH 
materials in railroad tank cars. The AAR applauds DOT's issuance of the 
NPRM as a ``truly innovative approach'' to tank car design and CI 
indicates that the organization ``fully supports the major step 
forward'' DOT took in issuing the proposed rule. Although commenters 
also generally support the development of a performance standard 
focused on tank car puncture resistance such as that proposed \5\ 
commenters also raise important practical concerns regarding DOT's 
specific proposals. The majority of commenters' concerns are focused on 
(1) the technical basis for and feasibility of achieving, in the short 
term, the proposed tank-head and shell puncture resistance performance 
standards; (2) the proposed eight-year implementation period, including 
the proposed accelerated replacement of cars constructed with non-
normalized steel; (3) the proposed allowance to increase the gross 
weight on rail of PIH tank cars; (4) the proposed speed restrictions, 
particularly the interim 30 mph speed restriction in dark territory for 
tank cars not meeting the proposed enhanced performance standards, but 
used to transport PIH materials; (5) the lack of proposed enhancements 
to PIH tank car top fittings; (6) the need for an interim standard for 
tank cars used to transport PIH materials; and (7) the costs associated 
with implementing the proposed rule.
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    \5\ Trinity Industries, Inc. (Trinity), a tank car builder, 
comments that issuance of the proposed puncture resistance 
performance standard is inconsistent with SAFETEA-LU's mandate to 
develop ``appropriate design standards'' for pressurized rail tank 
cars. Although we respectfully disagree with Trinity's comment, we 
note that the issue would not appear to be relevant to this rule in 
that we are adopting tank car design standards.
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A. Proposed Performance Standards

    The majority of commenters express the view that although the 25 
and 30 mph shell and head-impact puncture resistance standards are 
laudable goals, such proposed standards are ``technology forcing'' and 
achieving such impact resistance utilizing existing technology and 
currently accepted tank car engineering practices is not possible in 
the short term. For example, Dow, a driving force behind the Next 
Generation Rail Tank Car Project (NGRTCP),\6\ suggests that although 
the 25 mph shell-impact puncture resistance system standard (which 
represents a six-fold performance improvement over existing chlorine 
tank cars) may be obtainable based upon the design concepts and 
technologies developed by the NGRTCP, the proposed 30 mph head impact 
standard (which represents a ten to twelve-fold improvement over 
existing chlorine cars) is outside the range of solutions contemplated 
by the Project. Noting that no existing tank car designs under review 
as part of the NGRTCP would meet the proposed head and shell-impact 
standards, tank car builders estimate that it will take up to ten years 
until a design proven to meet the proposed performance standards (both 
25 mph shell-impact and 30 mph head-impact puncture resistance 
standards) could be ready for full-scale implementation. Other 
commenters indicate that it may take approximately three years until a 
design proven to meet the proposed 25 mph puncture resistance standard 
will be ready for full-scale implementation. These commenters' concerns 
regarding the time required until the tank car industry can meet the 
proposed performance standards are discussed in more detail below with 
other comments related to the proposed implementation period.
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    \6\ The NGRTCP is discussed in detail in the preamble to the 
NPRM. See 73 FR 17833-34.
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    Some commenters, noting the synergy between the proposed 50 mph 
speed limit for PIH tank cars and the 25 mph shell impact puncture 
resistance performance standard, question the efficacy of the proposed 
30 mph head-impact standard. As explained in the NPRM and by FRA staff 
at the May 28, 2008, public meeting, the 30 mph head impact standard 
was intended to protect against impacts when a tank car is involved in 
the primary collision (i.e., impacts other than the secondary car-to-
car impacts upon which the proposed 50 mph speed limit was based). FRA 
believes that in such instances, it is desirable to have additional 
head-impact protection strategies available to help reduce the risk of 
loss of lading and that the available space in front of the tank-head 
will accommodate sufficient energy absorbing material

[[Page 1774]]

between the head shield or jacket and the inner commodity tank. See 73 
FR 17849.
    NTSB acknowledges that establishing tank car puncture resistance at 
25 mph would be an improvement that would enhance tank car safety. NTSB 
suggests, however, that such standard does not represent a standard for 
ensuring safety in 50-mph collisions because the general premise upon 
which the standard is based (i.e., the finding by the Volpe National 
Transportation Systems Center (Volpe) that the secondary car-to-car 
impact speed is one-half that of the initial train speed) is not 
applicable to all derailment conditions. Specifically, noting the two-
dimensional, linear model utilized in Volpe's research, NTSB recommends 
the development and validation of more technically rigorous models that 
include consideration of the many three-dimensional, highly nonlinear 
dynamic responses that occur in derailment situations. Noting that its 
Safety Recommendation R-04-06 contemplates the consideration of 
different types of critical-loading conditions observed in derailments, 
NTSB suggests that although improving the puncture-resistance of tank 
cars is an important safety enhancement, by itself, it does not fully 
respond to Safety Recommendation R-04-06. Accordingly, NTSB suggests 
that additional modeling and validation is necessary to understand the 
full range of dynamic responses that occur in derailments. We 
appreciate NTSB's comments in this regard and as we pursue continued 
research and development on advanced car design, we will continue to 
further refine our quantification of the dynamic forces acting on 
railroad tank cars in accident conditions.
    CI notes that the proposed 30 mph head-impact standard represents 
an ``exponential increase in severity over the existing head protection 
requirement'' and questions whether the proposed standard goes beyond 
what is necessary to protect the integrity of the tank in real world 
accident scenarios. Noting its own efforts to address tank car puncture 
resistance, CI explains that its research demonstrates that a 
significant improvement (2x) in puncture resistance is possible if tank 
cars are constructed of steels with higher fracture toughness than AAR 
TC 128B steel (the steel typically used in tank car construction). 
Consistent with its Safety Recommendation R-04-07, NTSB similarly 
recommends that a standard for the fracture toughness of tank car 
construction materials be included in any final DOT tank car standard. 
NTSB suggests that the inherent material variability identified through 
FRA's research is common to the class of steel utilized and has been 
used in other applications to define fracture-based criteria. Although 
DOT believes that material properties play an important role in the 
performance of a tank car subjected to fatigue type loading, FRA's 
research has clearly demonstrated that for the impact conditions 
typical of accidents that result in a release, a holistic approach is 
required to prevent a breach of the commodity tank. As noted in the 
NPRM, however, DOT will continue to examine the dynamic fracture 
toughness of steels used in the construction of pressure tank cars in 
hazardous materials service and we will incorporate any workable tank 
car design-specific fracture toughness standards into the final 
performance standards.
    Other commenters note that the Volpe concept work (described in 
detail at the technology symposium) \7\ does not establish the 
feasibility of the proposed performance standards. Several commenters 
express the view that because the Volpe concept car differs 
significantly from traditional rail car designs and manufacturing 
methods, questions regarding the sill design, movement of the tank 
during yard impacts, how the car will be constructed, and other 
technical details need to be fully evaluated before the car can be 
manufactured and put into service. Commenters note that the proposed 
performance standards are based on impacts of 25 (shell) and 30 mph 
(head) from a 286,000 pound mass concentrated through a 6'' x 6'' 
impactor. Citing a recent head impact test by the NGRTCP, one tank car 
builder, American Railcar Industries (ARI), concludes that even meeting 
the 25 mph shell-impact puncture resistance standard requires a larger 
impactor, or less impacting weight. Another manufacturer suggests that 
it may be possible to achieve the 25 mph standard with the 6'' x 6'' 
impactor due to the deformations that are likely to occur, but the 30 
mph standard probably would not be achievable.
---------------------------------------------------------------------------

    \7\ Copies of technical presentations from the symposium, as 
well as a summary of the symposium is available in the docket.
---------------------------------------------------------------------------

    Noting that current research has focused on development of a 
chlorine car (the Volpe ``concept car'') to meet the proposed 
performance standards, commenters express the view that other PIH 
materials (e.g., anhydrous ammonia, ethylene oxide, methyl mercaptan, 
anhydrous hydrogen fluoride) have significantly different physical and 
chemical properties that must be accommodated in tank car designs. For 
example, product density affects how much product can be loaded into a 
car. Arkema, a shipper of methyl mercaptan, a raw material used in the 
production of animal feeds for the poultry and swine industry, notes 
that chlorine weighs approximately 12 pounds per gallon, while methyl 
mercaptan weighs only about 7.8 pounds per gallon. Because chlorine is 
a rather dense material as compared to other PIH materials, the typical 
chlorine car has smaller tank dimensions than tank cars designed to 
transport other PIH materials. As Dow notes, these smaller tank 
dimensions have allowed the NGRTCP to design a chlorine car with 
greater thickness and greater standoff distances (i.e., the distance 
between the tank and the tank's outer protection) than may be possible 
for tank cars designed to carry other PIH commodities.
    Commenters also suggest that the differing physicochemical 
properties and severity of hazards presented by various PIH materials 
need to be considered when designing tank cars to handle particular PIH 
materials. DGAC notes that many PIH materials are highly flammable and 
will ignite prior to the formation of a toxic cloud. As an example, 
BASF notes that ethylene oxide has flammability ranges between 3% and 
100% in air and therefore, that an ethylene oxide release would result 
in a fire before there was an opportunity to affect the general 
population from a toxicity hazard. BASF further notes that there is a 
significant difference in the danger posed by a Zone B PIH material 
(e.g., chlorine) versus a Zone D PIH material (e.g., ethylene oxide).
    Commenters further state that the disparate physicochemical 
properties of the various PIH materials shipped via railroad tank car 
have historically led to very specific car designs for certain 
materials. For example, DuPont notes that oleum and sulfur trioxide 
have relatively high freezing points. Accordingly, rail cars intended 
for the transportation of oleum and sulfur trioxide must be equipped 
with sufficient insulation capable of maintaining the temperature of 
the chemicals above their respective freezing points. Similarly, tank 
cars used to transport chlorosulfonic acid are constructed of stainless 
steel tanks to prevent discoloring of the acid. According to DuPont, 
there is no feasible alternative to stainless steel and the properties 
of the stainless steel inner tanks relative to the puncture resistance 
requirements of the proposed performance standards would have to be 
considered. Similarly, shippers of

[[Page 1775]]

anhydrous hydrogen fluoride and hydrofluoric acid note that the 
corrosive properties of these chemicals have led to non-jacketed tank 
car designs for these particular commodities and that the non-jacketed 
cars allow for visual detection of any corrosive product on the outside 
of the commodity tank before it can compromise the integrity of the 
tank. Noting the Volpe concept car presented at the technology 
symposium and the NGRTCP car design rely on a ``sandwich'' (i.e., 
layered design with a jacket encompassing supporting foam or other 
energy absorbing material surrounding and isolating the commodity tank 
from the structural forces of the moving train), these commenters 
suggest that such a design concept would introduce new maintenance and 
inspection challenges that could lead to a detriment in safety in that 
the inner tank could not be inspected as readily as is currently 
possible.
    Although DOT recognizes commenters' concerns with commodity 
specific tank car design issues, as noted at the May 28, 2008 public 
meeting, the NPRM was not intended as a ``one size fits all'' approach. 
Specifically, as described at the technical symposium, the Volpe 
concept car is intended to demonstrate DOT's proposed approach to 
meeting the performance standards. DOT's approach, focusing on the 
energy absorbing capability of the tank car, is applicable to any type 
of tank car. DOT recognizes, however, that specific design elements 
would necessarily have to be modified for specific commodities.
    Other commenters, including AAR and BNSF Railway Company (BNSF) 
suggest that the 6'' x 6'' impactor contemplated in the proposed rule 
is not representative of real world objects impacting tank cars and 
that any proposed standard needs to consider impacts other than 
carbody-to-carbody impacts, such as impacts by smaller, sharper 
objects; the crushing or tearing away of the shell; and oblique 
punctures or punctures away from the centerline of the tank. In support 
of this position, BNSF references five accidents on its railroad that 
resulted in releases from eight pressure tank cars over the last 12 
years. Five of those eight releases did not involve carbody-to-carbody 
impacts. Instead those tank car releases involved: (1) Stub still 
failure due to a large vertical force on the draft gear which caused 
the sill to tear away a section of the tank shell, (2) puncture by 
pieces of broken rail, (3) the shearing off of liquid and vapor valves; 
(4) puncture by being struck by the corner of a flat car; and (5) 
puncture when the corner of an I-beam (which fell from a previous car) 
struck a tank car. Similarly, AAR expresses the view that the proposed 
performance standard is flawed because it focuses exclusively on the 
ability of tank car designs to absorb energy without releasing product 
and does not consider other possible modes of failure. Specifically, 
AAR suggests that DOT's focus on energy absorption effectively 
addresses punctures from ``large, blunt objects coming into contact 
with the tank head or shell from a perpendicular direction,'' but 
ignores other accident scenarios prevalent in railroad operations, 
including: (1) Punctures from smaller, sharper objects; (2) releases 
due to the tearing away of attachments to the shell; (3) cracking of 
the shell; and (4) oblique punctures and punctures away from the center 
of the head or the centerline of the shell. On the other hand, the 
Railway Supply Institute, Inc. (RSI) suggests that basing the proposed 
performance standard on a test utilizing a 6'' x 6'' impactor is not 
appropriate because the size of the impactor does not correlate to 
anything expected to be seen in the field. RSI suggests that the size 
of the impactor should be increased to more accurately reflect the face 
surface of a standard non-shelf coupler.
    In response to the BNSF and AAR comments regarding the NPRM's focus 
on the energy absorption of impacts to tank cars, we note that the 
proposed head and shell impact standards were based on a series of 
complementary measures, including: (1) Blunting the load impacting the 
tank, (2) absorbing energy, (3) reinforcing the commodity tank, and (5) 
removal of in-train forces from the commodity tank. Although DOT 
continues to believe that this approach addresses each of the failure 
modes cited by commenters, as explained at the technology symposium, 
DOT recognizes that this approach is most effective in addressing 
carbody-to-carbody impacts that result in the bulk crushing and 
deformation of tank cars, and what DOT believes to be the most likely 
failure mode to result in a catastrophic release of hazardous 
materials, that is, the puncture of the head or shell by some 
intermediate size piece of railroad equipment (e.g., coupler, drawbar, 
side or draft sill).
    Commenters suggest that DOT should not promulgate final head and 
shell puncture-resistance standards until the NGRTCP has completed its 
work and compliant tank car designs have been developed, and cars have 
been built and tested for each PIH commodity. Dow indicates that the 
NGRTCP expects to have a prototype tank car built by the end of 2008 
that would meet a 25 mph head and shell impact puncture resistance 
standard. Dow cautions, as do other commenters, that such a prototype 
car should be subjected to an additional period of in-service testing 
prior to being approved for use. Further, noting the ``evolutionary 
process'' of tank car safety enhancements, Dow concludes that the 
proposed performance standards are two to three generations ahead of 
what is currently achievable. Accordingly, in its comments, Dow urges 
the Department to adopt regulatory standards based on ``practical, 
proven, real world solutions.'' Similarly, commenters express the view 
that current generation PIH tank cars (i.e., existing PIH rail car 
designs) are not inherently flawed or unsafe. Accordingly, these 
commenters suggest that DOT pursue a design that utilizes current car 
designs as a ``platform'' for safety and security enhancements.
    Although DOT believes that the proposed performance standards can 
be met utilizing currently available materials and innovative 
engineering approaches to tank car design, as discussed above, we 
recognize the need to further model and validate any final performance 
standard. We also recognize the need to assist industry in developing 
the requisite technical expertise to accurately model and analyze the 
large deformation with material failure problems required to develop a 
significantly better tank car design (whether that final design is one, 
two, or three generations ahead of existing DOT specification cars). We 
will continue to work with the tank car manufacturing and shipping 
industries through a series of technical meetings to share the ongoing 
findings of FRA's tank car research program (including Volpe's modeling 
and testing efforts). The goal of this work will be to develop an 
improved performance standard for adoption into the HMR. Meanwhile, in 
order to ensure the ongoing availability of PIH tank cars, this rule 
establishes interim standards for tank cars that may be built prior to 
the development and commercialization of the final performance 
standard. This rule responds to commenters' recommendations that in the 
time period before the development and commercialization of a final 
performance standard, we adopt a design that utilizes current car 
designs as a basis for improvements. As discussed in more detail in 
sections VI and VII below, this rule adopts enhanced commodity-specific 
design standards for PIH tank cars based on existing DOT specification 
cars.
    AAR urges DOT to adopt its ``conditional probability of release''

[[Page 1776]]

(CPR) metric in ascertaining the safety afforded by various tank car 
designs (i.e., the probability of a release in the event of an 
accident). This request was reiterated in the Joint Petition for an 
interim standard in which the ACC, ASLRRA, AAR, CI, and RSI requested 
that DOT approve interim rail tank car standards that would incorporate 
design specifications as well as an alternative performance standard 
based on the CPR metric. The Joint Petition is discussed in more detail 
in section IV.F below. Although FRA believes that the analysis 
underlying the CPR metric is technically sound from the standpoint of 
implementation of standard statistical mathematics, FRA does not 
believe that the design of a tank car can rationally be based on 
statistical analysis alone. Instead, consideration of the physics that 
tank cars experience during accidents, derailments, and other types of 
rail incidents must be considered. FRA is also concerned that many of 
the issues raised by commenters concerning validation of the 
performance standard proposed in the NPRM apply equally to the 
``improvement factor'' utilized in the Joint Petition. We note in this 
regard that the ``improvement factor'' was, in effect, reverse 
engineered from existing, available tank car specifications. The Joint 
Petition asks DOT to allow for alternative proofs that the tank car 
improvement factor for the commodity is met, even though different 
designs are employed than those specified as meeting the requirement. 
FRA does not believe that alternative proofs could be utilized in this 
context without reliance on broad assumptions that may not be supported 
by actual experience. Additionally, going through the exercise of 
attempting to prove an outcome that was tied to an available DOT 
specification in the first instance would be both awkward and likely 
fruitless, because the basis of the regression results rely on 
evaluation of traditional DOT specification cars. DOT is aware that 
this approach is built around an expectation that protective structures 
may be distributed between the tank and jacket or head shield as 
described in the petition for chlorine cars. Accordingly, this rule 
does not adopt the CPR metric as proposed by both AAR and the 
additional parties to the Joint Petition. However, DOT does accept the 
basic framework of specifications that the parties contemplate for use 
and provides a more direct and less cumbersome means to demonstrate the 
performance of alternative designs of the sort the petitioners 
sought.\8\ The Department's rationale is discussed in more detail in 
section VI below.
---------------------------------------------------------------------------

    \8\ Both the petition and this rule rely upon an assumption 
that, within reasonable bounds, distribution of protective structure 
between an exterior layer and the tank itself will produce the same 
results from the point of view of tank puncture resistance as using 
all of the material thickness in constructing the tank. Petitioners 
have not established that this is the case; however, engineers 
directing and conducting FRA-sponsored research are satisfied that 
the effects are likely commutative (additive), at least in the 
classic puncture scenarios described in the NPRM.
---------------------------------------------------------------------------

B. Proposed Implementation Period

    The majority of commenters also express the view that the proposed 
eight-year implementation period is overly-aggressive and not 
realistic. Specifically, commenters contend that design, development, 
and manufacturing ramp-up cannot be completed within the two-year 
period contemplated by the proposed rule. Commenters also state that 
the six-year fleet replacement period contemplated in the NPRM is too 
short, given the capital expenditures that would be required by 
individual fleet owners to replace their entire fleets in six years, 
the capacity of tank car manufacturers to manufacture new cars, and 
other market forces (e.g., demand for ethanol tank cars). Further, 
several commenters express the opinion that the proposed rule's 
requirements that 50% of each owner's fleet be replaced with cars 
conforming to the proposed performance standards within five years of a 
final rule's effective date and the requirement that all PIH tank cars 
constructed of non-normalized steel in the head or shell be replaced 
within the same time frame are unjustified, and in some instances, 
impossible to meet.
    With regard to the two-year design and manufacturing ramp-up period 
contemplated in the proposed rule,\9\ commenters assert that it will 
take up to ten years until a proven design is ready for full-scale 
implementation.\10\ Specifically, in written comments, as well as at 
the technical symposium, tank car builders explain that the time 
required to take a new tank car design from the conceptual research and 
development point to full-scale production is highly dependent on 
several competing factors. First, the extent to which a new design 
differs from traditional rail car design will affect the time required 
to finalize, test, and implement that design. Second, builders 
indicated that the time necessary to move from design to full-scale 
production will also be dependent on the extent of manufacturer re-
tooling required, the extent of changes in fabrication protocols and 
welding protocols required, the extent of training and recertification 
of skilled workers in those new protocols and welding techniques 
required, the need to obtain potentially new materials, as well as the 
need for Chapter 11 \11\ service testing. Commenters suggest that a 
service trial period ranging from between 12 to 18 months to two years 
should be required for any new car with a design substantially 
different from current cars.
---------------------------------------------------------------------------

    \9\ See 73 FR 17846-47.
    \10\ Some commenters indicated that it would take at least three 
years to develop a compliant design (at least to the 25 mph puncture 
resistance standard) and some said it would take two years to get a 
design to market, provided a bigger impactor was used. These 
commenters, however, also noted that an additional service trial 
period would be necessary before the cars could reasonably be put 
into full service.
    \11\ Chapter 11 of the AAR's Manual of Standards and Recommended 
Practices, CII, M-1001, entitled ``Service-Worthiness Tests and 
Analyses for New Freight Cars.''
---------------------------------------------------------------------------

    RSI asserts that the typical regulatory lead time for ``other 
federal performance standards that require new designs and engineering 
breakthroughs'' (i.e., technology forcing regulations) is substantially 
longer than the two-year period contemplated by the proposed rule. 
According to RSI, new performance regulations in other transportation 
industries with ``significantly more resources allocated to research 
and development'' have allowed from three to six years for design 
development to the commencement of production. In support of this 
assertion, RSI cites a recent U.S. Environmental Protection Agency rule 
on locomotive emission standards, which allows seven years for 
compliance with performance standards requiring the development of new 
technology, while allowing one year for compliance with performance 
standards that can be met with existing technology.
    Further, as discussed above, several commenters note that to date, 
research has focused on a chlorine car (the Volpe ``concept car'') 
designed to meet the proposed performance standards. Citing practical 
experience, commenters involved in the shipment of PIH materials other 
than chlorine (e.g., anhydrous ammonia, ethylene oxide, methyl 
mercaptan, anhydrous hydrogen fluoride) express the view that any final 
tank car standards will need to take into consideration the 
physicochemical properties of specific PIH materials, as well as the 
differing hazards presented by each material. These commenters assert 
that this commodity-specific analysis will necessitate more time than

[[Page 1777]]

the two-year design and manufacturing ramp-up period proposed.
    Asserting that a six-year replacement period for existing bulk 
packages is ``unprecedented,'' DGAC states that the proposed rule's 
six-year replacement period is ``unjustifiable from a cost benefit 
perspective.'' Arkema, a methyl mercaptan shipper, notes that there are 
a limited number of engineers and rail car manufacturers to meet the 
mandates of any new railcar design. Accordingly, Arkema expresses 
concern that first priorities for designing and building enhanced rail 
cars for PIH materials will focus on cars designed to transport those 
substances that make up the bulk of the PIH railcar fleet (i.e., 
chlorine and anhydrous ammonia).
    With regard to the proposed rule's requirement that all PIH tank 
cars constructed of non-normalized steel in the head or shell be 
replaced within five years after the final rule's effective date, 
(effectively, half-way through the six year proposed fleet replacement 
period), several commenters note the PIH shipping industry's voluntary 
efforts already underway to phase-out these tank cars. TFI, the 
national trade association that represents fertilizer producers, 
importers, wholesalers and retailers (i.e., shippers of anhydrous 
ammonia), notes that its members are already voluntarily phasing-out 
the use of non-normalized steel cars for the transportation of 
anhydrous ammonia. Specifically, TFI states that its members utilize 
approximately 4,600 tank cars to ship anhydrous ammonia and only about 
340 of those cars are pre-1989 non-normalized steel cars. Further, TFI 
notes that its members anticipate that these 340 non-normalized steel 
cars will be completely removed from their anhydrous ammonia fleets 
earlier than the five years proposed in the NPRM. For example, one 
member, CF Industries, Inc. (CF), states that, beginning in 2005, it 
began voluntarily to modernize its fleet of anhydrous ammonia tank cars 
by phasing out 313 of its pre-1989 non-normalized steel cars. CF 
indicates that it plans to remove the remaining 24 non-normalized steel 
cars from its fleet of anhydrous ammonia cars by the end of 2008.
    Several commenters, citing present difficulties obtaining new PIH 
tank cars, raise the concern that if such difficulties are not resolved 
in the short term, shippers may be forced to keep these older cars 
longer or reduce the size of their fleets. These concerns are discussed 
in more detail below with other comments pertaining to the need for an 
interim standard for PIH tank cars.
    CI comments that although it does not object to prioritizing the 
removal of pre-1989 tank cars constructed with non-normalized steel in 
any fleet replacement program, the accelerated retirement of these cars 
as proposed is not justified because there is not sufficient evidence 
demonstrating that such accelerated replacement will significantly 
enhance rail safety. Similarly, other chlorine shippers (PPG & U.S. 
Magnesium) say that early replacement of non-normalized steel cars as 
proposed is not justified since the performance of non-normalized cars 
has not differed significantly from that of normalized cars, and the 
cars show similar puncture resistance to normalized steel cars. 
Further, PPG notes that as proposed, the accelerated phase out of non-
normalized PIH tank cars would require PPG to change out 75% of its 
fleet in three years, having a significant impact on PPG's earnings and 
putting PPG at a significant disadvantage relative to its competition. 
On the other hand, another chlorine shipper, Olin Corporation (Olin), 
does not object to the accelerated phase out of the pre-1989 non-
normalized steel cars so long as the ``accelerated transition'' 
(presumably referring to the proposed requirement that one-half the 
fleet be replaced with cars meeting the enhanced performance standards 
within five years) is limited to non-normalized cars.
    As an alternative to the overall eight-year implementation period 
proposed, both CI and TFI suggest that any final implementation period 
should be developed as part of a joint government/industry effort. PPG, 
which has a fleet of almost 2,600 owned and leased tank cars used for 
shipping chlor-alkali products, suggests that instead of specifying an 
implementation period in terms of a date certain, DOT incorporate a 
``test plan'' into any final rule establishing enhanced tank car 
performance standards. Specifically, PPG suggests that such ``test 
plan'' include a statistically significant test fleet, a service trial 
period, and process for intermediate inspections. Dow recommends that 
DOT consider a longer transition period based upon the age, safety, and 
performance features of tank cars or to phase in new tank car standards 
for different PIH commodities over successive periods of time, allowing 
shippers to cascade cars down in service from higher to lower risk PIH 
materials. DOT appreciates the alternatives recommended by these 
commenters. Because the rule is limited to standards for new tank car 
construction in the time prior to the development, adoption, 
implementation and commercialization of a final performance standard, 
incorporation into this final rule of any of the recommendations is not 
appropriate at this time. We will, however, consider the specific 
recommendations as we develop regulatory requirements to implement a 
final performance standard.
    With regard to the time period allowed for individual car owners to 
replace their existing PIH tank car fleets with tank cars meeting any 
final DOT standard, commenters suggest that consideration must be given 
to several competing factors on a fleet-by-fleet basis.\12\ For 
example, several shippers have voluntarily upgraded their fleets over 
the last few years, and have purposefully ``over-built'' their tank 
cars with additional safety features not mandated by the HMR. These 
shippers express the view that unless consideration is given to these 
additional safety features already in place, they are effectively being 
penalized for voluntarily investing in those upgrades in the first 
place. Commenters also express the view that individual fleet size and 
age, annual shipment volumes, product characteristics, quantities of 
cars available for purchase or lease, and manufacturing delivery 
schedules are other factors that need to be considered on an individual 
fleet-by-fleet basis when determining an appropriate fleet replacement 
period.
---------------------------------------------------------------------------

    \12\ See Transcript of comments of PPG at May 14, 2008 meeting 
(available in the docket) and; written comments of U.S. Magnesium 
and ACC in the docket (document numbers 57 and 86).
---------------------------------------------------------------------------

    We appreciate the comments regarding the need to consider adequate 
time for developing car designs, validating compliance with the 
performance standards, and ensuring the car is dynamically suitable and 
serviceable. DOT will consider these issues as we work to validate and 
finalize a performance standard for PIH tank cars and incorporate that 
standard into the HMR. We note that issues related to a delayed 
effective date would not appear to be relevant to this final rule, 
since builders can adapt existing tank car designs within a short time 
to meet the interim requirements. We also are modifying our proposal 
for phasing out cars constructed prior to 1989 with non-normalized 
steel in the head or shell. Although we continue to believe that an 
accelerated phase out of these cars is justified, we recognize the 
voluntary efforts already underway by many fleet owners to phase out 
these cars, in many cases on schedules more

[[Page 1778]]

aggressive than the five-year deadline proposed in the NPRM. Rather 
than imposing a fixed deadline, this rule requires rail car owners that 
elect to retire or remove rail tank cars from PIH service, other than 
because of damage to the cars, to prioritize the retirement or removal 
of pre-1989 non-normalized steel cars.

C. Proposed Allowance To Increase the Gross Weight on Rail of PIH Tank 
Cars

    Although commenters raise practical concerns related to an increase 
to 286,000 pounds in the maximum gross weight on rail of hazardous 
materials tank cars, most generally support this aspect of DOT's 
proposal. Specifically, AAR indicates that the infrastructure of Class 
I carriers can generally accommodate the heavier cars and that short 
line railroads should generally be able to transport the heavier cars, 
with a few isolated weight restrictions (e.g., bridges).\13\ TFI 
expresses support for this aspect of DOT's proposal, but noting the 
practical issue that some anhydrous ammonia shipment origin and 
destination points cannot handle the heavier cars, TFI expresses 
concern that light loading (loading a tank car with less than its full 
capacity of product) and diversion to other modes of transportation 
(e.g., highway) could occur. Similarly, CI indicates that although the 
proposed allowance to increase the maximum gross weight on rail would 
be a ``positive move removing regulatory burden on shippers using the 
heavier car,'' CI expresses the same concerns as TFI. Individual 
shippers and the DGAC commented similarly, with one shipper (U.S. 
Magnesium) noting that it expects to upgrade its own track this year to 
accommodate 286,000 pound cars. At the May 14, 2008 public meeting, a 
representative of Olin Corporation,