Hazardous Materials: Incorporating Rail Special Permits Into the Hazardous Materials Regulations, 51324-51342 [2011-20863]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 160 (Thursday, August 18, 2011)]
[Proposed Rules]
[Pages 51324-51342]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20863]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171, 172, 173, 174, 179, and 180

[Docket No. PHMSA-2010-0018 (HM-216B)]
RIN 2137-AE55


Hazardous Materials: Incorporating Rail Special Permits Into the 
Hazardous Materials Regulations

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
proposing to amend the Hazardous Materials Regulations to incorporate 
provisions contained in certain widely used or longstanding special 
permits that have general applicability and established safety records. 
Special permits allow a company or individual to package or ship a 
hazardous material in a manner that varies from the regulations 
provided that an equivalent level of safety is maintained. The 
revisions in this proposed rule are intended to provide wider access to 
the regulatory flexibility offered in special permits and eliminate the 
need for numerous renewal requests, thus reducing paperwork burdens and 
facilitating commerce while maintaining an appropriate level of safety. 
This rulemaking also proposes to respond to two petitions for 
rulemaking, P-1497 concerning the use of electronic shipping papers, 
and P-1567 concerning the removal of the Association of American 
Railroad's (AAR's) AAR-600 portable tank program for previously adopted 
standards that meet or exceed the AAR-600 requirements.

DATES: Written comments should be submitted on or before October 17, 
2011.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2010-0018 (HM-216B)) by any of the following methods:
    Federal eRulemaking Portal: Go to https://www.regulations.gov. 
Follow the online instructions for submitting comments.
    Fax: 1-202-493-2251.
    Mail: Docket Operations, U.S. Department of Transportation, West 
Building, Ground Floor, Room W12-140, Routing Symbol M-30, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
    Hand Delivery: To Docket Operations, Room W12-140 on the ground 
floor of the West Building, 1200 New Jersey Avenue, SE., Washington, DC 
20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. All 
comments received will be posted without change to the Federal Docket 
Management System (FDMS), including any personal information.
    Docket: For access to the dockets to read background documents or 
comments received, go to https://www.regulations.gov or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: Eileen Edmonson or Steven Andrews, 
Standards and Rulemaking Division, Office of Hazardous Materials 
Safety, (202) 366-8553, Pipeline and Hazardous Materials Safety 
Administration (PHMSA), or Karl Alexy, Office of Safety Assurance and 
Compliance, (202) 493-6247, Federal Railroad Administration (FRA), 1200 
New Jersey Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 
I. Background
II. Overview of Proposed Amendments
III. Regulatory Analyses and Notices

I. Background

Special Permits

    The Pipeline and Hazardous Materials Safety Administration (PHMSA) 
is proposing to amend the Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) to incorporate certain requirements based on existing 
special permits for transportation by railroad issued by PHMSA under 49 
CFR part 107, subpart B (Sec. Sec.  107.101 to 107.127). A special 
permit sets forth alternative requirements (variances) to the 
requirements in the HMR by means that achieve a safety level that at a 
minimum corresponds to the safety level required under the regulations 
and is consistent with the public interest. Congress expressly 
authorized DOT to issue these variances in the Hazardous Materials 
Transportation Act of 1975.
    The HMR generally are performance-oriented regulations that provide 
the regulated community a certain amount of flexibility in meeting 
safety requirements. Even so, not every transportation situation can be 
anticipated and built into the regulations. Innovation is a strength of 
our economy, and the hazardous materials community is particularly 
strong at developing new materials and technologies as well as 
innovative ways of transporting materials. Special permits enable the 
hazardous materials industry to quickly, effectively, and safely 
integrate new products and technologies into the production and 
transportation streams. Thus, special permits provide a mechanism for 
testing new technologies, promoting increased transportation efficiency 
and productivity, and ensuring global competitiveness.
    A special permit must achieve at least an equivalent level of 
safety to that specified in the HMR. Implementation of new technologies 
and operational techniques can enhance safety because the authorized 
operations or activities may achieve a greater level of safety than 
currently required under the regulations. Special permits also reduce 
the volume and complexity of the HMR by addressing unique or infrequent 
transportation situations that would be difficult to accommodate in 
regulations intended for use by a wide range of shippers and carriers.
    PHMSA conducts ongoing reviews of special permits to identify 
widely used and longstanding special permits having general 
applicability with established safety records for adoption into 
regulations for broader applicability. To

[[Page 51325]]

obtain a special permit, interested parties must prepare and submit a 
detailed application that PHMSA reviews extensively. If granted and its 
use is needed after the expiration date assigned, the person authorized 
to use the special permit must submit an application to continue their 
use of it and undergo an extensive PHMSA renewal process. Converting 
these special permits into regulations reduces paperwork burdens and 
facilitates commerce while maintaining an acceptable level of safety. 
Additionally, adoption of special permits as rules of general 
applicability provides wider access to the benefits and regulatory 
flexibility of the provisions granted in the special permits. Factors 
that influence whether a specific special permit is a candidate for 
regulatory action include: the safety record for hazardous materials 
transported, or the transport operations conducted, under a special 
permit; the potential for broad application of a special permit; 
suitability of provisions in the special permit for incorporation into 
the HMR; rulemaking activity in related areas; and agency priorities. 
Special permits involving packaging used by a large number of persons--
such as those issued to many persons with party status or issued to a 
manufacturer as a ``manufacture, mark, and sell''--are potentially 
among the most suitable types of special permits for adoption into the 
HMR. Such special permits have broad applicability; moreover, many of 
them have been in effect for a number of years and have demonstrated 
safety records.
    Further, although we make every effort to stay as true as possible 
to the conditions prescribed in each special permit when converting it 
to proposed regulatory text, PHMSA recognizes that sometimes, due to 
existing regulations or historical interpretations, provisions in a 
special permit may require revision to convert them into regulations of 
general applicability. In addition, when converting special permits we 
often have to modify the language to describe documents and procedures 
that are authorized under the special permit but not specifically 
described in it or to modify the language to comply with requirements 
for proposed regulatory text prescribed by this agency, the Department 
of Transportation, and the Federal Register.
    This notice of proposed rulemaking (NPRM) proposes to incorporate 
seven (7) special permits that authorize tank car transportation 
operations not specifically permitted under the HMR. These special 
permits were initially issued to members of industry associations or 
similar organizations. They are DOT-SP:
    1. 7616
    2. 9388
    3. 11184
    4. 12095
    5. 12905
    6. 14333
    7. 14622
    These special permits have well-established safety records and, 
thus, are candidates for incorporation into the HMR. A few of the 
special permits in this NPRM have expired for various reasons, such as 
from delays that occur during the renewal process, or as a result of 
modifications to the HMR, packagings, processes, or other technologies 
that eliminate the need for the special permit. PHMSA has included them 
in this NPRM because both PHMSA and the Federal Railroad Administration 
(FRA) have determined these special permits also have well-established 
safety records and would benefit the regulated industry if incorporated 
into the HMR. Incorporating these special permits into the HMR would 
eliminate the need for over 250 current grantees to reapply for the 
renewal of these special permits every four years and for PHMSA to 
process the renewal applications.
    Incorporation of these special permits into the HMR also eliminates 
a significant paperwork burden for the recipient. Unless otherwise 
excepted by this agency, a copy of each special permit must be: 
maintained at each facility where a packaging is manufactured under a 
special permit, maintained at each facility where a package is offered 
or re-offered for transportation under a special permit, carried on 
board each cargo vessel or aircraft, and, in some cases, carried on 
board each transport vehicle when used to transport a hazardous 
material under a special permit.

Petitions for Rulemaking

    Two proposals PHMSA is addressing in this proposed rulemaking were 
also presented to PHMSA in petitions for rulemaking. A more detailed 
description of each is provided below.

Petition No. P-1497

    The petition from the International Vessel Operators Hazardous 
Materials Association, Inc. (IVOHMA) (P-1497), dated March 15, 2007, is 
similar to relief authorized under DOT-SP 7616 in that it requests 
PHMSA allow shipping paper information required under 49 CFR Part 172, 
Subpart C (shipping papers) to be transmitted electronically by 
computer through use of electronic data interchange (EDI). The IVOHMA 
states ``differences in hazard communication or the interpretation of 
their application are a principle[sic] source of disharmony in 
intermodal and/or international transportation of [hazardous 
materials].'' The IVOHMA also states ``electronic data interchange has 
become a recognized method of efficient and accurate communication 
currently being used successfully throughout the industrialized world'' 
that permits ``immediate access to hazard communication by all those 
involved in the transportation infrastructure as well as by emergency 
responders equipped'' with this technology. Further, the IVOHMA states 
in its petition that the proposals it submitted were vetted with its 
staff and members and determined to be opportunities for regulatory 
amendment to promote efficiencies in the modal interchange of these 
containers in both domestic and international transportation.
    PHMSA and the FRA met with the IVOHMA, on January 17, 2007, to 
discuss several issues concerning the HMR and containerized hazardous 
materials cargo that the association and its members believe may be 
presenting operational difficulties, impediments, and obstacles to 
efficient and safe intermodal transportation. These issues included 
inconsistencies between the shipping paper requirements for each mode 
for documents that can be construed as meeting the HMR shipping paper 
requirements, ``such as work orders, dock receipts or train consists,'' 
and determining which shipping document is considered legally in 
control of the shipment. The IVOHMA also identified two problems 
associated with the train consist. The first problem is Sec. Sec.  
174.24 and 174.26 do not require that the agency or person be 
identified that corresponds to the emergency response information 
telephone number on the document. The HMR requires this information on 
a shipping paper document under Sec.  172.604(b). The IVOHMA states 
``valuable time is often lost'' while emergency responders using these 
telephone numbers or inspectors checking their validity track down the 
correct individual and/or organization associated with a specific 
telephone number. The IVOHMA also states a similar problem occurs when 
international telephone numbers are offered as the emergency response 
telephone number that provides access from the United States to the 
emergency responder, and includes delays that occur obtaining a 
telephonic connection while using the international access codes. The 
second problem is the

[[Page 51326]]

emergency response telephone number needs to be accessible by all the 
persons associated with the transport of the shipment, such as those 
carriers trying to obtain information to respond to a shipboard 
emergency.
    To address these concerns, the IVOHMA submitted proposed regulatory 
language that would define the term ``interlining carrier'' in Sec.  
171.8, establish requirements for ``interlining carrier documents'' in 
a new Sec.  172.206, and make several additional related revisions 
concerning shipping papers and emergency response information in 
Sec. Sec.  172.204(d), 172.604(a), and 174.26(b). Although the petition 
the IVOHMA submitted primarily concerned the transportation of 
containerized hazardous materials between railcars and vessels, the 
regulatory language the IVOHMA proposed would apply to interlining 
carriers in all modes. This rulemaking applies to rail transportation 
only. Therefore, PHMSA determined proposing regulations that apply to 
carriers in all modes would exceed the scope of this rulemaking. PHMSA 
considered revising the IVOHMA's proposals to limit them to rail 
transport only with the possibility of considering their application to 
other modes of transport in a future rulemaking. However, FRA 
determined the IVOHMA's proposals are not needed because the language 
in existing Sec.  174.24(a) applies to the transfer of all interlining 
documents. This section requires that each person accept a hazardous 
material for rail transportation or transport a hazardous material by 
rail only if that person has received a shipping paper for that 
material. If the material is excepted from the shipping paper 
requirements under the HMR, this section does not apply. PHMSA requests 
public comment not only on the proposals in this rulemaking, but on 
IVOHMA's suggestions not included in this rulemaking and on the 
possible effects EDI may have on distributing hazardous materials 
shipping paper information if its use is permitted in all modes of 
transport. Based on the comments received, PHMSA may consider the use 
of EDI in other modes of transport in a future rulemaking.

Petition No. P-1567

    PHMSA adopted standards for portable tanks in container-on-flat-car 
(COFC) or trailer-on-flat-car (TOFC) service under Sec.  174.63 and 
other sections of the HMR that meet or exceed the AAR-600 requirements. 
The petition from the Gold Tank Inspection Service, Inc. (P-1567), 
requests that PHMSA discontinue the AAR-600 program and amend Sec.  
174.63(c) to remove the requirement that portable tanks in COFC or TOFC 
service comply with the standard ``AAR-600'' of the Association of 
American Railroad's (AAR's) Specification for Tank Cars, entitled 
``Specifications for the Acceptability of Tank Containers,'' because: 
(1) The current HMR regulations exceed the AAR 600 requirements; (2) 
after January 1, 2003, all the specifications for original portable 
tank construction listed in the AAR 600 standard are not allowed to be 
built except DOT Specification 60 and International standard 1496-3 
portable tanks, which are already covered under Sec. Sec.  178.255 and 
178.274, respectively, of the HMR; and (3) after January 1, 2010, the 
AAR 600 standard will no longer be needed since, in accordance with 
Sec.  171.14, all portable tanks will have to meet or exceed the AAR 
600 requirements and AAR 600 does not cover portable tank requirements. 
In a May 20, 2009 letter of clarification PHMSA issued to Robert E. 
Fronczak, Assistant Vice President, Environment and Hazardous 
Materials, Association of American Railroads, under Reference No. 09-
0125, PHMSA states ``most of the portable tanks listed in the AAR-600 
standard are prohibited from new construction, although they may remain 
in service provided they continue to meet the applicable standard,'' 
and that ``we intend to propose a revision to Sec.  174.63(c) as soon 
as practicable.'' The changes Mr. Fronczak described have effectively 
made the HMR's reference to the AAR-600 standard outdated. Therefore, 
PHMSA proposes to revise Sec.  173.63(c) to remove its reference to the 
AAR 600 standard and to require that portable tanks transported in COFC 
or TOFC service must conform to all HMR requirements applicable to 
portable tanks in this type of service.

II. Overview of Proposed Amendments

    In this NPRM, PHMSA is proposing to incorporate into the HMR 
provisions that: (a) Establish an alternative tank car qualification 
program; (b) permit the electronic transmission of shipping paper 
information; (c) permit straight threads in the clean out and/or 
inspection port openings of a DOT Specification 110A500W multi-unit 
tank car tank; (d) permit alternative start-to-discharge pressure 
requirements for certain DOT Specification 105J500W tank cars 
containing chlorine; (e) permit alternative pressure relief 
requirements for pressure relief devices for DOT Specification 105J300W 
tank cars containing certain flammable liquids; (f) permit certain DOT 
and AAR specification tank cars with stainless steel identification 
plates to have their specification and other required information 
stamped on the identification plate instead of the tank car head 
provided certain requirements are met; (g) permit liquefied anhydrous 
ammonia gas to be measured by a metering device when loaded into a tank 
car as an alternative to measuring the cars by weight; (h) revise Sec.  
179.13(b) to require that rail tank cars with a gross weight that 
exceeds 263,000 but not 286,000 pounds containing poisonous-by-
inhalation (PIH) materials must be approved for use by the Federal 
Railroad Administration's (FRA's) Associate Administrator for Railroad 
Safety; and (i) eliminate use of the AAR 600 program concerning the 
FRA's approval of bulk packagings in COFC and TOFC service that is 
incorporated into Sec.  174.63(c)(2). PHMSA invites comment on the 
potential costs and safety benefits associated with the proposals in 
this NPRM, including any information that may be used in a cost-benefit 
safety analysis. Each proposal is discussed in greater detail in the 
following preamble sections.

A. Alternative Tank Car Qualification Program

    The FRA established the Alternative Tank Car Qualification Program, 
also known as TCQ-1, in 1998 in collaboration with the railroad 
industry and PHMSA under Special Permit DOT-SP 12095. The TCQ-1 program 
serves as a minimally acceptable framework for owners to qualify their 
DOT specification and non-specification tank cars and components using 
requirements in place of those prescribed in 49 CFR Part 180. The TCQ-1 
program permits owners to develop tank car inspection requirements 
specific to their construction and use, provided the FRA has determined 
the new methods are as safe or safer than those prescribed in the HMR. 
FRA determined the new program is successful and its use has 
dramatically increased since its inception. In fact, FRA and PHMSA have 
determined the industry's use of the TCQ-1 program is so complete that 
it essentially is the only tank car inspection standard used today. 
Currently, 559 parties are operating under TCQ-1. PHMSA and FRA are not 
aware of any incidents that have occurred as a result of the issuance 
of special permits for the tank car qualification program.
    PHMSA and FRA believe incorporating Special Permit DOT-SP 12095 
into the HMR will provide an equivalent level of safety for the 
qualification of both specification and

[[Page 51327]]

non-specification rail tank cars, and will reduce the administrative 
burden of reapplying for this special permit. Therefore, in this NPRM, 
PHMSA and FRA are proposing to incorporate Special Permit DOT-SP 12095 
into the HMR. This proposal pertains to: marking and stamping; adding 
new definitions pertaining to tank cars; adding qualifications for tank 
car inspections and tests; revising the requirements for tank car 
repairs, alterations, conversions, and modifications; clarifying 
recordkeeping requirements; and listing hazardous and other materials 
corrosive to tanks or service equipment. The following table summarizes 
the proposed changes:

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                                            Proposed change to 49
    Number             Section No.              CFR part 180              Proposed change from DOT-SP 12095
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1.............  180.501.................  Applicability...........  Existing paragraph (b) is now paragraph (c),
                                                                     and new paragraph (b) and (d) are added to
                                                                     clarify, respectively, the minimally
                                                                     acceptable framework each owner's tank car
                                                                     qualification program must have, and
                                                                     specifies that documents must be made
                                                                     available upon request to FRA or an
                                                                     authorized representative of the U.S.
                                                                     Department of Transportation.
2.............  180.503 (Definitions)...  Bottom shell............  Not added. This definition already exists in
                                                                     Sec.   171.8.
                                          Corrosive to the tank or  No change.
                                           service equipment.
                                          Defects.................  Added to eliminate industry confusion.
                                          Design level of           Minor edits.
                                           reliability and safety.
                                          Interior heating system.  No change.
                                          Lining/Coating owner....  No change.
                                          Maintenance.............  Minor edits.
                                          Modification............  Added to aid industry compliance.
                                          Objectively reasonable    Added to explain the use of this term in
                                           and articulable belief.   Sec.   180.509(b)(4).
                                          Qualification...........  First sentence states what the term means
                                                                     instead of how to achieve it. Second
                                                                     sentence (essentially unchanged) states how
                                                                     to achieve qualification and emphasizes
                                                                     that ``qualification'' requires a
                                                                     representation that the process has been
                                                                     completed successfully.
                                          Railworthy,               Explains the term. When FRA requires a
                                           Railworthiness.           recall of a tank car or series of tank cars
                                                                     it issues a ``Railworthiness Directive.''
                                          Reactive to the tank or   Adds reactivity language based on Sec.
                                           service equipment.        173.24(b)(2) and (3).
                                          Reinforced tank shell     No change.
                                           butt weld.
                                          Reinforcing plate.......  No change.
                                          Reliability.............  No change.
                                          Representation..........  Reworded.
                                          Safety system...........  No change.
                                          Service equipment.......  Minor edits.
                                          Service equipment owner.  Added to clarify the party responsible and
                                                                     to accommodate a growing trend in the
                                                                     industry that the owner of the car may or
                                                                     may not own the service equipment.
                                          Tank car owner..........  This is a codification of previous FRA
                                                                     interpretations and statements.
                                          Top shell...............  Not added. This definition already exists in
                                                                     Sec.   171.8.
3.............  180.507.................  Paragraph (b)(2)........  ``Marked'' replaces ``stamped'' to allow for
                                                                     flexibility with regulatory compliance.
                                          Paragraph (b)(5)........  This TCQ-1 paragraph is omitted but language
                                                                     is used from existing Sec.   180.507(b)(5).
4.............  180.509.................  Paragraph (a)(4)........  Added last sentence to ameliorate a concern
                                                                     from tank car owners that modifications
                                                                     have been made to their cars without their
                                                                     knowledge; minor edits.
                                          Paragraph (b)(4)........  Replaced ``probable cause'' with the wording
                                                                     ``objectively reasonable and articulable
                                                                     belief'' because the former is a term of
                                                                     art in criminal law and is also used in FRA
                                                                     drug and alcohol regulations. The intent of
                                                                     Sec.   180.509(b)(4) is to create a
                                                                     standard less strict than that of an
                                                                     emergency order, but rigorous enough to
                                                                     compel a tank car owner to reinspect and
                                                                     repair, if necessary, tank cars considered
                                                                     potential hazards irrespective of their
                                                                     periodic test and inspection requirements.
                                          Paragraph (c)(1)........  Minor edits.
                                          Paragraph (d)...........  Minor edits.
                                          Paragraph (d)(2)........  Added last sentence for clarity.
                                          Paragraph (d)(3)........  Added ``Corrosion'' as specific element for
                                                                     inspection.
                                          Paragraph (d)(5)........  To insure inclusiveness, added ``all
                                                                     closures'' as substitute for specific item
                                                                     names.
                                          Paragraph (d)(6)........  Dropped ``operability'' test of excess flow
                                                                     valves because it is not a practical test
                                                                     and a successful result might damage the
                                                                     excess valve seat and preclude seating in a
                                                                     future event.
                                          Paragraph (e)(1)........  Replace ``high-stressed structural
                                                                     elements'' with the simpler words
                                                                     ``structural elements.''

[[Page 51328]]

 
                                          Paragraph (f)(1)........  Added the responsibility of the tank car
                                                                     owner for clarity.
                                          Paragraph (f)(4)........  Added a general prohibition against
                                                                     operating overly thin tank cars; this
                                                                     responsibility is changed from putting it
                                                                     solely on tank car owners who often have no
                                                                     control over the day to day movements of
                                                                     their tank cars.
                                          Paragraph (g)...........  Minor edits; removes the language that
                                                                     implies only a ``qualified individual''
                                                                     could find a thin tank car and invoke the
                                                                     restrictions in this paragraph.
                                          Paragraph (h)...........  No change.
                                          Paragraph (i)...........  Minor edits.
                                          Paragraph (j)...........  Minor edits; Replaced the wording ``after
                                                                     reassembly of a tank car'' from Part 180,
                                                                     Subpart F, and ``installed on the tank
                                                                     car'' with ``installed, replaced, or
                                                                     reinstalled on the tank car.''
                                          Paragraph (l)...........  Minor edits.
                                          Paragraph (m)...........  After 12/2010 the requirements of paragraph
                                                                     (m) should have been fulfilled. There may
                                                                     be late tank cars or tank cars with
                                                                     extended alternate inspection intervals;
                                                                     therefore, this provision will be retained
                                                                     for an additional 5-10 years.
5.............  180.511.................  ........................  Added minor edits; included those in Part
                                                                     180, Subpart F, to capture requirements for
                                                                     qualifying service equipment.
6.............  180.513.................  Paragraph (a)...........  Reworded to encompass the entire AAR Tank
                                                                     Car Manual rather than certain appendices.
                                          Paragraph (b)...........  Added for clarification and as a reminder
                                                                     that tank car or component owners are
                                                                     responsible for verifying compliance with
                                                                     the owner's maintenance instructions.
                                          Paragraph (c)...........  Is the same language as existing paragraph
                                                                     (b) from DOT-SP 12095. The last sentence
                                                                     was added for clarification.
7.............  180.515.................  Paragraph (a)...........  Added last sentence to clarify the primacy
                                                                     of dates marked in Appendix C of the AAR
                                                                     Tank Car Manual.
8.............  180.517.................  ........................  Revised to clarify that marking or retaining
                                                                     the specification on the tank, either after
                                                                     initial construction in paragraph (a) or
                                                                     subsequent qualification in paragraph (b),
                                                                     is the ``representation'' of
                                                                     ``qualification'' defined in Sec.
                                                                     180.503.
----------------------------------------------------------------------------------------------------------------

    Additional provisions from Special Permit DOT-SP 12095 as proposed 
will be in Sec. Sec.  179.201-10, 179.220-25, and 180.501, and 180.503, 
180.507, 180.509, 180.511, 180.513, 180.515, 180.517, and Appendix D of 
part 180.

B. Telephone and Electronic Data Interchange Shipping Papers

    Special Permit DOT-SP 7616 permits the transmission of shipping 
paper information by telephone and electronic data interchange (EDI). 
Special Permit DOT-SP 7616 is currently used by 626 parties. Prior to 
this special permit, shippers entered information on shipping papers by 
hand, typewriter, or with the use of a computer and then transmitted 
these documents by hand, railroad agent, facsimile, or postal system to 
a train crew or rail yard. These methods were very time consuming. This 
shipping information would then be entered into the receiver's tracking 
system, a process that resulted in a large number of key entry errors 
for hazardous materials shipments.
    Starting in the 1960s, many companies began using in-house computer 
systems and networks to assist with preparing and tracking shipping 
information, but technological limitations often prevented or 
restricted one company's system from communicating with another's. Rail 
companies and shippers attempting to address these issues and find 
solutions formed the Transportation Data Coordination Committee (TDCC) 
in 1968, and started publishing standards on EDI in 1975. In the mid-
1970's, the U.S. Department of Transportation (USDOT) issued Exemption 
DOT-E 7616 to permit railroad companies to ``certify'' their shipping 
papers for hazardous materials by permitting the shipper to leave a 
``voice'' message stating that a hazardous materials shipment loaded on 
a railcar was being offered for transportation. Eventually, the 
exemption was revised to allow an ``electronic'' shipping document to 
be faxed and later transmitted electronically from computer to 
computer. Today, EDI standards are used worldwide for most industries 
that rely on electronic data transfer of information, such as banks, 
medical institutions, and shipping companies outside of railroad-
related businesses.
    In consultation with USDOT, the TDCC evolved, and the EDI standards 
were published as guidelines on electronic data standards for the 
transportation industry. These guidelines established format codes and 
protocols for communicating and verifying the accuracy of electronic 
information, including hazardous materials information on a shipping 
paper, for hazardous materials shippers and carriers. Currently, the 
Accredited Standards ``X12'' Committee (ACS) of the American National 
Standards Institute (ANSI) creates standards specifically for EDI. 
Industry organizations take these standards and modify them to fit the 
types of electronic transmissions and/or transactions needed by each 
industry. This is what is done in the railway industry. As a result, 
there is no one specific standard that includes all the electronic 
transmissions permitted as EDI.
    Special Permit DOT-SP 7616 allows a carrier to accept shipping 
paper information via telephone (i.e., voice communications) for 
hazardous material shipments that have been transported by railroad, 
and authorizes several variations in the certification requirement when 
this information is transmitted telephonically or through EDI. The 
Federal Aviation Administration and Federal Motor Carrier Safety 
Administration have informed PHMSA and FRA that some

[[Page 51329]]

inconsistencies exist when these standards are applied between the 
different transportation modes. Therefore, in this NPRM, PHMSA and FRA 
are proposing to incorporate into the HMR the provisions for EDI 
prescribed in Special Permit DOT-SP 7616 and requested in Petition No. 
P-1497 for any hazardous materials shipment transported by rail only. 
This will exclude, for example, the use of voice communications as an 
authorized method for carriers to accept hazardous materials shipping 
paper information for transporting these shipments by aircraft or motor 
vehicle. Further, PHMSA and FRA are proposing to allow a signature in 
the signature block of an EDI form to represent completion of the 
shipper's certification prescribed under Sec.  172.204. Users of EDI 
may wish to consult the ANSI's ACS X12 Committee for guidance on EDI 
transmissions and transactions for electronic shipping documents, along 
with any other guidance developed on this subject by the Department's 
agencies, such as the FRA.
    PHMSA and FRA are not aware of any incidents that have occurred as 
a result of the issuance of Special Permit DOT-SP 7616. PHMSA and FRA 
have also determined the overall effect of the special permit has 
improved the timely and accurate receipt of hazardous materials 
information, thereby improving safety. As mentioned earlier in this 
preamble, the IVOHMA also requested through a petition for rulemaking 
(P-1497) that PHMSA revise the HMR to include the transmission of 
shipping documents through EDI. PHMSA and FRA acknowledge that 
hazardous materials shipping document information is routinely 
transmitted by computer but no provision in the HMR specifically 
addresses this. PHMSA and FRA also note that the use of EDI to transmit 
this information does not eliminate the requirement for the printed 
copy of a shipping paper to accompany a hazardous materials shipment. 
PHMSA and FRA specifically request comments on the costs and safety 
benefits associated with these proposals, as well as the possible 
effects and/or modifications needed to permit EDI to transmit 
successfully the shipping paper information for hazardous materials in 
all transportation modes.
    The provisions for Special Permit DOT-SP 7616 and Petition No. P-
1497 are proposed in Sec. Sec.  172.201, 172.202, 172.204, and 172.604. 
The changes that IVOHMA proposed for Sec.  174.24 are also located in 
Sec.  172.202; therefore, they are not needed in Sec.  174.24 and we 
are not proposing to revise that section.

C. Straight Threads on Multi-Unit Tank Cars

    Special Permit DOT-SP 14333 authorizes the manufacture, marking, 
sale and use of a non-DOT specification tank car conforming to all the 
regulations applicable to the DOT Specification 110A500W multi-unit 
tank car tank, except that the tank must be equipped with straight 
threads in the clean-out/inspection port openings instead of the 
National Gas Taper Threads. Four parties currently use this special 
permit.
    This special permit also permits retrofitting. Section 179.300-
13(b) requires that taper threads must be used on the valve opening. In 
the safety equivalency evaluation for Special Permit DOT-SP 14333, 
PHMSA and FRA determined that straight threads on the clean-out/
inspection port opening would provide an equivalent level of safety. 
Tapered threads are designed to provide a seal when torqued. The seal 
is a result of the compression of the male and female threads. Because 
they compress, there is an inevitable degree of deformation. This 
deformation decreases the likelihood that a proper seal can be obtained 
upon subsequent applications. Straight threads are used on connections 
where a gasket is compressed to create a seal. Therefore, a seal can be 
obtained by repeated application as long as the gasket has not 
degraded. The clean-out/inspection port openings are used repeatedly 
and introduce an opportunity for leaks. The straight threads on these 
openings help to minimize leaking. Special Permit DOT-SP 14333 limits 
the use of the straight threads opening to certain high-hazard Division 
2.3 (poisonous gas), Division 6.1 (poisonous), and Class 8 (corrosive) 
hazardous materials, as well as those materials authorized to be 
transported in DOT Specification 110A500W multi-unit tank car tanks. 
However, PHMSA and FRA believe straight threads in inspection ports can 
be used for all hazardous materials authorized to be transported in DOT 
Specification 110A multi-unit tank car tanks and are proposing this 
action in this NPRM.
    PHMSA and FRA are not aware of any incidents that have occurred as 
a result of the issuance of this special permit, and believe these 
provisions, if adopted, will provide an adequate level of safety. 
Therefore, PHMSA and FRA are proposing to incorporate Special Permit 
DOT-SP 14333 into the HMR and further allowing straight threads in 
inspection ports to be used for all hazardous materials authorized to 
be transported in DOT Specification 110A multi-unit tank car tanks. The 
provisions for this special permit are proposed in Sec.  179.300-13(b) 
for DOT Specification 110A multi-unit tank cars only.

D. Alternative Start-to-Discharge Pressure Requirements for Tank Cars 
Containing Chlorine

    Special Permit DOT-SP 14622 authorizes the transportation of 
certain DOT Specification 105J500W tank cars containing chlorine that 
have start-to-discharge settings that do not meet the regulatory 
requirements for pressure relief devices. Three parties currently use 
this special permit.
    In its original application for this special permit, Occidental 
Chemical Corporation (OxyChem) requested relief from Sec.  179.15(b) to 
allow tank cars in chlorine service to be equipped with combination 
pressure relief valves (PRV) with a set pressure of 360 pounds per 
square inch (psi) rather than the required set pressure of 356 psi. 
OxyChem justified its request based on its history of operating tank 
cars safely in a manner similar to what it was requesting. OxyChem also 
based its request on the HMR's regulatory history prior to the final 
rule issued under Docket No. HM-216, effective on October 1, 1996 (61 
FR 28666; 61 FR 38642; 61 FR 50252), which permitted DOT Specification 
105J500W tank cars used to transport chlorine to be equipped with a PRV 
with a set pressure of 356 psi.
    The FRA conducted an evaluation of the level of safety provided by 
the terms and allowances of Special Permit DOT-SP 14622. As part of 
this evaluation, FRA staff contacted the Chlorine Institute, which 
represents all of the companies that are a party to this special 
permit. The Chlorine Institute reported it has not received a report of 
any incident related to the conditions allowed under Special Permit 
DOT-SP 14622. In addition, the Chlorine Institute found the PRV setting 
does not affect the standard start-to-discharge pressure that is the 
basis for the flow rating pressure. The flow rating pressure, in turn, 
is used to calculate the required PRV flow capacity. Therefore, the FRA 
finds the valve is sized appropriately for the required design 
conditions.
    The FRA has one safety concern related to Special Permit DOT-SP 
14622. If the relief discs or pins burst or break within their 
tolerances, there is the potential that the valve will be exposed to 
the lading and its vapor for an extended period of time. A rupture disc 
or breaking pin is used in conjunction with a reclosing PRV to

[[Page 51330]]

provide a barrier between the valve and its components from the lading 
and the vapor of the lading, as exposure to these can lead to corrosion 
and ultimately the malfunctioning of the valve. Furthermore, the FRA 
believes it is important that combination PRVs are equipped with 
``tell-tale devices'' located outboard (outside) of the rupture disc 
(or breaking pin) and inboard (inside) of the valve. When the disc or 
breaking pin is intact, the valve indicates no pressure. If the disc or 
pin has been compromised, the valve will show an elevated pressure. An 
operator inspecting the condition of the tell-tale device can determine 
if the rupture disc or breaking pin has been compromised.
    A rupture disc has a rated pressure burst-pressure tolerance of +/- 
5 percent. A breaking pin has a rated pressure burst-pressure tolerance 
of +/- 10 percent (see ASME Section VIII, UG-126 Pressure Relief 
Valves). An evaluation of the special permit relative to both the 
rupture disc and breaking pin is provided in the following paragraph.
    Special Permit DOT-SP 14622 allows for the PRV to have a set 
pressure of 360 psi. The special permit allows the burst pressure of 
the relief device to be 96 percent of the start-to-discharge pressure 
rather than the required maximum of 95 percent. As stated earlier, the 
set pressure in SP-14622 is within the rated pressure burst tolerance 
of the rupture disc and rated pressure burst tolerance of the breaking 
pin described earlier in this paragraph. However, it is possible that a 
rupture disc could burst at the limit of its negative tolerance at 356 
psi. In this case, the valve with a set pressure of 360 psi would be 
undetected and exposed to the lading or the vapor of the lading. While 
this sequence is possible, the negative effects to the valve are very 
limited. This can be demonstrated by reviewing the thermodynamic 
properties of chlorine and the time needed to increase the vapor 
pressure of the chlorine to the set pressure of the PRV. Based on the 
vapor pressure-temperature relationship of chlorine, the temperature of 
chlorine at a vapor pressure of 356 psi is approximately 165 [deg]F and 
its temperature at 360 psi is approximately 170 [deg]F. It is evident 
that as the temperature of chlorine increases, the vapor pressure of 
the chlorine also increases at a slightly faster rate.
    A pool fire represents the only scenario in which the temperature 
of chlorine in a tank could reach 165 [deg]F. In this scenario, the 
heat input is so great that the specific heat and heat of vaporization 
requirements would be met quickly and raise the temperature and the 
respective vapor pressure of the chlorine in the tank car to a level 
that would actuate the PRV, causing the PRV to function and vent the 
pressure in the tank. Under these hazardous conditions, corrosion of 
the PRV body and components are very minor considerations.
    Regarding the breaking pin, as stated earlier, the rated pressure 
tolerance is +/- 10 percent. Both the start-to-discharge pressure 
requested in Special Permit DOT-SP 14622 and required in the HMR are 
within the design tolerance of the breaking pin. As a result, neither 
poses a greater risk to the safe operation of the relief valve and tank 
car.
    Based on this analysis, PHMSA and FRA believe operation of a tank 
car under the terms of Special Permit DOT-SP 14622 provides a level of 
safety that is equivalent to that of a similar tank car operated under 
the HMR. Therefore, we propose to adopt this requirement into the HMR. 
The provisions for this special permit are proposed in Sec.  
173.314(k)(2).

E. Alternative Pressure Relief Requirements for Pressure Relief Devices 
for Tank Cars Containing Certain Flammable Liquid Materials

    Special Permit DOT-SP 11184 authorized the transportation in 
commerce of certain Class 3 materials in DOT Specification 105J300W 
tank cars with a pressure relief device rated at 25 percent of tank 
test pressure. The commodities authorized under this special permit 
were typically shipped in general purpose (GP) tank cars (e.g., DOT 
Specification 111A100W). In 1996, PHMSA, then known as the Research and 
Special Programs Administration, added Sec.  179.15 to the HMR in a 
final rule it issued on June 5, 1996, under Docket No. HM-216 (61 FR 
28666). In paragraph (b)(2)(i) of that section, the agency added the 
requirement that reclosing pressure relief devices in tank cars, other 
than DOT Class 106, 107, 110, and 113 tank cars, may not have a start-
to-discharge pressure setting lower than 5.17 Bar (75 psig) or higher 
than 33 percent of the minimum tank burst pressure, a range that 
included the 25 percent of tank test pressure relief device rating 
required in paragraph 2.a of DOT-SP 11184. As a result, DOT-SP 11184 
was no longer needed and PHMSA let it expire. When it was active, 21 
parties used this special permit.
    PHMSA and FRA are discussing DOT-SP 11184 in this NPRM to clarify 
that the rulemaking action issued under Docket No. HM-216 eliminated 
the need for this special permit, and to emphasize that this revision 
improved safety in two ways. First, it lowered the start-to-discharge 
pressure for the PRV, which allowed the car to vent at lower pressures 
when in an overheated condition--such as a pool fire. Commodities 
listed in this special permit when exposed to extreme heat and pressure 
will undergo rapid polymerization that could result in an energetic and 
catastrophic failure of the tank car. Second, the DOT Specification 
105J300W tank car's thicker shell and head will result in the tank car 
having a significantly greater survivability than its GP tank car 
counterparts. PHMSA and FRA have determined these revisions to the HMR 
are performing satisfactorily; therefore, we are expiring this special 
permit. PHMSA and FRA are not aware of any incidents that have occurred 
as a result of the issuance of Special Permit DOT-SP 11184.

F. Transportation in Commerce of Certain Tank Cars With Identification 
Plates in Lieu of Stamping the Tank Car Heads

    Special Permit DOT-SP 12905 permits certain DOT and AAR 
specification tank cars with stainless steel identification plates to 
have their specification and other required information stamped on the 
identification plate instead of the tank car heads if certain 
requirements are met. The AAR requires all cars built after December 
31, 2003, to be equipped with identification plates as specified in 
Appendix C, paragraph 4.0. Additionally, for several years 
manufacturers have built portable tanks and cargo tanks with a data 
plate containing all pertinent information related to the construction 
of the tank. Incorporating Special Permit DOT-SP 12905 into the HMR 
will bring the railcar data identification in line with the AAR 
standards and the portable tank and cargo tank industries. Also, FRA 
acknowledges that stamping this information into the tank car wall may 
introduce a defect into its steel. Although minimal, stamping results 
in a stress concentration in the area of the stamp. Use of a data plate 
would eliminate this defect. Currently, 22 parties use this special 
permit.
    PHMSA and FRA are not aware of any incidents that have occurred as 
a result of the issuance of Special Permit DOT-SP 12905. PHMSA and FRA 
believe that incorporating this special permit into the HMR will 
provide an equivalent level of safety for the qualification of both 
specification and non-specification rail tank cars. AAR tank cars are 
required to have an identification plate after December 31, 2011. 
Therefore, PHMSA and FRA are proposing to amend the HMR to require tank 
cars to

[[Page 51331]]

have a stamped identification plate one year after the publication date 
of the final rule issued as a result of this proposed rulemaking. We 
propose to adopt this requirement into new section Sec.  179.24 and 
existing sections Sec. Sec.  179.100-20, 179.200-24, 179.201-10, and 
179.220-25 of the HMR.

G. Measuring Liquefied Gases Loaded into a Tank Car With Metering 
Devices as an Alternative to Measuring These Cars by Weight

    Special Permit DOT-SP 9388 authorizes the transportation in 
commerce of DOT specification tank cars that have ``UN 1005, Ammonia, 
anhydrous, 2.2 (non-flammable gas)'' liquefied gas measured by a 
metering device when loaded into the tank. Although anhydrous ammonia 
is defined as meeting both a Division 2.3 (poisonous gas) and Class 8 
(corrosive) hazard class under the United Nations Recommendations on 
the Transport of Dangerous Goods, International Civil Aviation 
Organization Technical Instructions on the Transport of Dangerous Goods 
by Air, and International Maritime Dangerous Goods Code, the HMR 
permits anhydrous ammonia to be defined as meeting the Division 2.2 
hazard class in domestic transportation only. For increased safety, 
DOT-SP 9388 requires that each of these tank cars must be loaded and 
unloaded using procedures that specify at a minimum: Employee safety 
equipment; proper signage; set brakes and installed wheel blocks; an 
examination of the tank and/or jacket, its undercarriage assembly, 
hoses, connections, valves, and accessories inside the loading dome for 
damage; recording of defects; certification of inspection and 
completion of loading and/or unloading procedures, as well as other 
recordkeeping requirements. PHMSA and FRA propose to incorporate these 
requirements in new Sec.  173.314(e)(2)(i). Also, DOT-SP 9388 requires 
that one out of every 10 tanks cars must have the metered gauge 
verified with the tank car gauge in accordance with certain procedures 
to determine the current capacity of the car. PHMSA and FRA propose to 
incorporate these procedures in new Sec.  173.314(e)(2)(ii). Although 
Special Permit DOT-SP 9388 is currently expired, 28 parties previously 
used it. Since the original issuance of DOT-SP 9388, flow meter 
technology is much more accurate and reliable.
    PHMSA and FRA are not aware of any incidents that have occurred as 
a result of the issuance of this special permit. PHMSA and FRA believe 
that incorporating this special permit into the HMR will provide an 
equivalent level of safety for the qualification of both specification 
and non-specification rail tank cars. Therefore, we propose to adopt 
this requirement, with the additions noted above, into Sec.  173.314(e) 
of the HMR.

H. Approval for Gross Weight on Rail Tank Cars

    Special Permits DOT-SP 11241, 11654, 11803, 12423, 12561, 12613, 
12768, 12858, 12903, 13856, 13936, 14004, 14038, 14442, 14505, 14520, 
14570, and 14619, allowed rail tank cars with a gross weight on rail 
that exceeded 263,000 pounds but not exceeding 286,000 pounds to be 
used to transport certain hazardous materials provided the tank car is 
approved by the FRA's Associate Administrator for Railroad Safety. 
PHMSA adopted these special permits, along with several others, in a 
final rule issued under Docket No. PHMSA-2009-0289 (HM-233A; 75 FR 
27205, 5/14/2010) because they were widely used and had established 
safety records. However, the final rule erroneously omitted from Sec.  
179.13(b) a provision to require FRA approval for those gross-weight-
on-rail tank cars authorized to contain materials that are poisonous-
by-inhalation. PHMSA is proposing to correct this omission in this 
rulemaking by revising Sec.  179.13(b) to add the FRA approval 
statement.

I. Reference to the Association of American Railroads AAR 600 Program

    The AAR Tank Car Committee and the AAR Hazardous Materials 
Committee have recommended the discontinuance of the AAR 600 program as 
incorporated in Sec.  174.63(c)(2). Currently, this program requires 
that a bulk packaging, including a portable tank, transported in COFC 
or TOFC service must conform to the conditions specified in Sec.  
174.63 of the HMR. These regulations require approval by FRA's 
Associate Administrator for Railroad Safety, unless, among other 
things, the tank conforms to requirements in AAR 600 of the AAR 
Specifications for Tank Cars, ``Specifications for Acceptability of 
Tank Containers.'' In accordance with AAR 600, approval and 
registration of compliant portable tanks is required based on a 
determination that the tank meets all applicable standards and payment 
of a registration fee.
    Since incorporation of the AAR 600 standard into the HMR, PHMSA has 
adopted standards for portable tanks that meet or exceed the AAR 600 
requirements. The AAR committees believe that the current HMR portable 
tank regulations have now exceeded the AAR 600 requirements and that 
all of the specifications for original construction listed in the AAR 
600 Standard were not allowed to be built after January 1, 2003, except 
for the DOT Specification 60 and other United Nations (UN) portable 
tanks that are authorized in the HMR. As stated earlier in this 
rulemaking, PHMSA agreed with the AAR proposal in a letter dated May 
20, 2009 and stated we would propose a revision to Sec.  174.63(c). As 
also discussed earlier in this preamble, PHMSA received a petition (P-
1567) dated July 9, 2010, from Gold Tank Inspection Services, Inc., 
requesting the removal of the reference to the AAR 600 program in Sec.  
174.63 because the HMR now includes standards for portable tanks that 
meet or exceed AAR 600 requirements. Accordingly, in this NPRM, PHMSA 
is proposing to require that portable tanks transported in COFC or TOFC 
service must conform to all HMR requirements applicable to portable 
tanks. Consistent with this proposed revision, PHMSA is proposing to 
remove the reference in Sec.  171.7(a)(3) to Sec.  173.63 under the 
listing ``AAR Manual of Standards and Recommended Practices, Section C-
Part III, Specifications for Tank Cars, Specification M-1002, (AAR 
Specifications for Tank Cars), December 2000.''

III. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM is published under the authority of 49 U.S.C. 5103(b) 
which authorizes the Secretary to prescribe regulations for the safe 
transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) 
authorizes the Secretary of Transportation to issue a special permit 
from a regulation prescribed in sections 5103(b), 5104, 5110, or 5112 
of the Federal Hazardous Materials Transportation Law to a person 
transporting, or causing to be transported, hazardous material in a way 
that achieves a safety level at least equal to the safety level 
required under the law, or consistent with the public interest, if a 
required safety level does not exist. If adopted as proposed, the final 
rule would amend the regulations incorporating provisions from certain 
widely used and longstanding special permits that have established a 
history of safety and which may, therefore, be converted into the 
regulations for general use.

[[Page 51332]]

B. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under section 3(f) and was not reviewed by the Office of 
Management and Budget (OMB). The proposed rule is not considered a 
significant rule under the Regulatory Policies and Procedures order 
issued by the Department of Transportation [44 FR 11034].
    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') require agencies 
to regulate in the ``most cost-effective manner,'' to make a ``reasoned 
determination that the benefits of the intended regulation justify its 
costs,'' and to develop regulations that ``impose the least burden on 
society.'' In this notice, PHMSA proposes to amend the HMR by 
incorporating alternatives this agency has permitted under widely used 
and longstanding special permits with established safety records that 
we have determined meet the safety criteria for inclusion in the HMR. 
Incorporation of these special permits into regulations of general 
applicability will provide shippers and carriers with additional 
flexibility to comply with established safety requirements, thereby 
reducing transportation costs and increasing productivity. In addition, 
the proposals in this NPRM will reduce the paperwork burden on industry 
and this agency caused by continued renewals of special permits. The 
provisions of this proposed rule will promote the continued safe 
transportation of hazardous materials while reducing transportation 
costs for the industry and administrative costs for the agency. 
Therefore, the requirements of Executive Orders 12866 and 13563, and 
the DOT policies and procedures concerning these orders have been 
satisfied.

C. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
proposed rule would preempt state, local and Indian Tribe requirements 
but does not propose any regulation that has substantial direct effects 
on the states, the relationship between the national government and the 
states, or the distribution of power and responsibilities among the 
various levels of governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply. Federal hazardous 
material transportation law, 49 U.S.C. 5101, et seq., contains an 
express preemption provision (49 U.S.C. 5125(b)) preempting state, 
local and Indian Tribe requirements on certain covered subjects. 
Covered subjects are:
    (1) The designation, description, and classification of hazardous 
material;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The designing, manufacturing, fabricating, marki