
[Federal Register Volume 80, Number 89 (Friday, May 8, 2015)]
[Rules and Regulations]
[Pages 26643-26750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10670]



[[Page 26643]]

Vol. 80

Friday,

No. 89

May 8, 2015

Part II





Department of Transportation





-----------------------------------------------------------------------





Pipeline and Hazardous Materials Safety Administration





49 CFR Parts 171, 172, 173, et al.





Hazardous Materials: Enhanced Tank Car Standards and Operational 
Controls for High-Hazard Flammable Trains; Final Rule

  Federal Register / Vol. 80 , No. 89 / Friday, May 8, 2015 / Rules and 
Regulations  

[[Page 26644]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

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

[Docket No. PHMSA-2012-0082 (HM-251)]
RIN 2137-AE91


Hazardous Materials: Enhanced Tank Car Standards and Operational 
Controls for High-Hazard Flammable Trains

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: In this final rule, the Pipeline and Hazardous Materials 
Safety Administration (PHMSA), in coordination with the Federal 
Railroad Administration (FRA), is adopting requirements designed to 
reduce the consequences and, in some instances, reduce the probability 
of accidents involving trains transporting large quantities of 
flammable liquids. The final rule defines certain trains transporting 
large volumes of flammable liquids as ``high-hazard flammable trains'' 
(HHFT) and regulates their operation in terms of speed restrictions, 
braking systems, and routing. The final rule also adopts safety 
improvements in tank car design standards, a sampling and 
classification program for unrefined petroleum-based products, and 
notification requirements. These operational and safety improvements 
are necessary to address the unique risks associated with the growing 
reliance on trains to transport large quantities of flammable liquids. 
They incorporate recommendations from the National Transportation 
Safety Board (NTSB) and from the public comments, and are supported by 
a robust economic impact analysis.

DATES: Effective Date: This final rule is effective July 7, 2015.
    Incorporation by reference Date: The incorporation by reference of 
the publication listed in this rule is approved by the Director of the 
Federal Register as of July 7, 2015.

ADDRESSES: You may find information on this rulemaking (Docket No. 
PHMSA-2012-0082) at Federal eRulmaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rob Benedict and Ben Supko, (202) 366-
8553, Standards and Rulemaking Division, Pipeline and Hazardous 
Materials Safety Administration or Karl Alexy, (202) 493-6245, Office 
of Safety Assurance and Compliance, Federal Railroad Administration, 
1200 New Jersey Ave. SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents of Supplementary Information

I. Executive Summary
II. Background and Approach to Rail Safety
    A. Braking
    B. Speed Restrictions
    C. Track Integrity, Securement, Engineer and Conductor 
Certification, Crew Size and the Safety of Freight Railroad 
Operations
    D. Routing
    E. Notification
    F. Oil Spill Response Planning
    G. Classification
    H. Packaging/Tank Car
III. Recent Regulatory Actions Addressing Rail Safety
    A. Rulemaking Actions
    B. Emergency Orders
IV. Non-Regulatory Actions Addressing Rail Safety
    A. Safety Alerts and Advisories
    B. Operation Classification
    C. Call to Action
    D. Stakeholder Outreach
V. NTSB Safety Recommendations
VI. Incorporation by Reference Discussion Under 1 CFR part 51
VII. Summary and Discussion of Public Comments
    A. Miscellaneous Relevant Comments
    1. Harmonization
    2. Definition of High-Hazard Flammable Train
    3. Crude Oil Treatment
    4. Scope of Rulemaking
    B. Tank Car Specification
    1. New Tank Car Construction
    2. Retrofit Standard
    3. Performance Standard
    4. Implementation Timeline
    C. Speed Restrictions
    D. Advanced Brake Signal Propagation Systems
    E. Classification
    F. Routing
    G. Notification
VIII. Section by Section Review
IX. Impact of Adopted Regulation on Existing Emergency Orders
X. Regulatory Review and Notices
    A. Executive Order 12866, Executive Order 13563, Executive Order 
13610, and DOT Regulatory Policies and Procedures
    B. Unfunded Mandates Reform Act
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Policies and Procedures
    F. Paperwork Reduction Act
    G. Environmental Assessment
    H. Privacy Act
    I. Executive Order 13609 and International Trade Analysis
    J. Statutory/Legal Authority for this Rulemaking
    K. Regulation Identifier Number (RIN)
    L. Executive Order 13211
XI. Regulatory Text

I. Executive Summary

    The Pipeline and Hazardous Materials Safety Administration (PHMSA), 
in coordination with the Federal Railroad Administration (FRA), is 
issuing this final rule, titled ``Hazardous Materials: Enhanced Tank 
Car Standards and Operational Controls for HHFTs,'' in order to 
increase the safety of flammable liquid shipments by rail. The final 
rule is necessary due to the expansion in United States (U.S.) energy 
production, which has led to significant challenges for the country's 
transportation system. PHMSA published a notice of proposed rulemaking 
(NPRM) on August 1, 2014. See 79 FR 45015. This final rule addresses 
comments to the NPRM and amends the existing hazardous materials 
regulations (HMR; 49 CFR parts 171-180) pertaining to tank car designs, 
speed restrictions, braking systems, routing, sampling and 
classification, and notification requirements related to certain trains 
transporting large quantities of flammable liquids.
    Expansion in oil production has resulted in a large volume of crude 
oil being transported to refineries and other transport-related 
facilities, such as transloading facilities throughout the country. 
With a growing domestic supply, rail transportation has emerged as a 
flexible alternative to transportation by pipeline or vessel, which 
have historically delivered the vast majority of crude oil to U.S. 
refineries. The volume of crude oil carried by rail increased 423 
percent between 2011 and 2012.1 2 In 2013, the number of 
rail carloads of crude oil surpassed 400,000.3 4 Further, 
based on information provided by the Association of American Railroads 
(AAR), the U.S. Energy Information Administration (U.S. EIA) asserts 
the amount of crude oil and refined petroleum products moved by U.S. 
railroads continued to increase by nine percent during the first seven 
months of 2014, when compared with the same period in 2013.
---------------------------------------------------------------------------

    \1\ See U.S. Rail Transportation of Crude Oil: Background and 
Issues for Congress; http://fas.org/sgp/crs/misc/R43390.pdf.
    \2\ See Table 9 of EIA refinery report http://www.eia.gov/petroleum/refinerycapacity/.
    \3\ http://www.stb.dot.gov/stb/industry/econ_waybill.html.
    \4\ http://www.eia.gov/todayinenergy/detail.cfm?id=17751.

---------------------------------------------------------------------------

[[Page 26645]]

[GRAPHIC] [TIFF OMITTED] TR08MY15.000

Figure 1 visually demonstrates the considerable increase in crude oil 
and petroleum shipments by rail.\5\
---------------------------------------------------------------------------

    \5\ http://www.eia.gov/todayinenergy/detail.cfm?id=17751.
---------------------------------------------------------------------------

    U.S. ethanol production has also increased considerably during the 
last 10 years and has generated similar growth in the transportation of 
ethanol by rail.\6\ Ethanol constitutes 26 percent of the total number 
of rail hazardous materials shipments, and is 1.1 percent of all 
railroad shipments.\7\
---------------------------------------------------------------------------

    \6\ Association of American Railroads. 2013. Railroads and 
Ethanol. Available online at https://www.aar.org/BackgroundPapers/Railroads%20and%20Ethanol.pdf.
    \7\ http://ethanolrfa.org/page/-/rfa-association-site/Industry%20Resources/RFA.Ethanol.Rail.Transportation.and.Safety.pdf?nocdn=1.
---------------------------------------------------------------------------

    Crude oil and ethanol comprise approximately 68 percent of the 
flammable liquids transported by rail. The inherent risk of 
flammability of these materials is compounded in the context of rail 
transportation because petroleum crude oil and ethanol are commonly 
shipped in large quantities, either as large blocks of material in a 
manifest train or as a single commodity train (commonly referred to as 
a ``unit train''). As detailed in the NPRM, in recent years, train 
accidents/incidents (train accidents) involving the release of a 
flammable liquid and resulting in fires and other severe consequences 
have occurred. See the Regulatory Impact Analysis, posted in the 
docket, for a detailed description of the accidents considered for this 
rulemaking.
    Federal hazardous materials transportation law (49 U.S.C. 5101-
5128) authorizes the Secretary of Transportation (Secretary) to 
``prescribe regulations for the safe transportation, including 
security, of hazardous material in intrastate, interstate, and foreign 
commerce.'' The Secretary delegated this authority to PHMSA. 49 CFR 
1.97(b). PHMSA is responsible for overseeing a hazardous materials 
safety program that minimizes the risks to life and property inherent 
in transportation in commerce. On a yearly basis the HMR provides 
safety and security requirements for more than 2.5 billion tons of 
hazardous materials (hazmat), valued at about $2.3 trillion, and hazmat 
was moved 307 billion miles on the nation's interconnected 
transportation network.\8\ In addition, the HMR 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, principally 49 U.S.C. chapters 201-213), 
and this authority is delegated to FRA. 49 CFR 1.89. FRA inspects and 
audits railroads, tank car facilities, and hazardous material offerors 
for compliance with both FRA and PHMSA regulations. FRA also has an 
extensive, well-established research and development program to enhance 
all elements of railroad safety, including hazardous materials 
transportation. As a result of the shared role in the safe and secure 
transportation of hazardous materials by rail, PHMSA and FRA work very 
closely when considering regulatory changes and the agencies take a 
system-wide, comprehensive approach consistent with the risks posed by 
the bulk transport of hazardous materials by rail.
---------------------------------------------------------------------------

    \8\ 2012 Commodity Flow Survey, Research and Innovative 
Technology Administration (RITA), Bureau of Transportation 
Statistics (BTS). See http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=CFS_2012_00H01&prodType=table.
---------------------------------------------------------------------------

    This rulemaking is intended to reduce the likelihood of train 
accidents involving flammable liquids, and mitigate the consequences of 
such accidents should they occur. In this final rule, PHMSA is revising 
the HMR to establish requirements for any ``high-hazard flammable 
train'' (HHFT) that is transported over the U.S. rail network. Based on 
analysis of the risk of differing train compositions, this rule defines 
an HHFT as a train comprised of 20 or more loaded tank cars of a Class 
3 flammable liquid in a continuous block or 35 or more loaded tank cars 
of a Class 3 flammable liquid across the entire train. For the purposes 
of advanced braking systems, this rule also defines a ``high-hazard 
flammable unit train'' (HHFUT) as a train comprised of 70 or more 
loaded tank cars containing Class 3 flammable liquids traveling speeds 
at greater than 30 mph. The rule ensures that the requirements are 
closely aligned with the risks posed by the operation of trains that 
are transporting large quantities of flammable liquids. As discussed 
further in this preamble and in the accompanying RIA, this rule 
primarily impacts trains transporting large quantities of ethanol and 
crude oil, because ethanol and crude oil are most frequently 
transported in high-volume shipments than when transported in a single 
train, and such trains would meet the definition of an HHFT. By 
revising the definition of HHFT from that which was proposed in the 
NPRM, we have clarified the scope of the final rule and focused on the 
highest-risk shipments, while not affecting lower-risk trains that

[[Page 26646]]

are not transporting similar bulk quantities of Class 3 flammable 
liquids.\9\
---------------------------------------------------------------------------

    \9\ In the August 1, 2014, NPRM, an HHFT was defined as a train 
comprised of 20 or more carloads of a Class 3 flammable liquid. This 
rule defines an HHFT as a train comprised of 20 or more tank car 
loads of a Class 3 flammable liquid in a continuous block or 35 tank 
car loads of a Class 3 flammable liquid across the entire train.
    \10\ As defined the Transportation Security Administration's 
regulations at 49 CFR 1580.3--High Threat Urban Area (HTUA) means an 
area comprising one or more cities and surrounding areas including a 
10-mile buffer zone, as listed in appendix A to 49 CFR Part 1580. 
The 50-mph maximum speed restriction for HHFTs is consistent with 
the speed restrictions that the AAR issued in Circular No. OT-55-N 
on August 5, 2013. The 40-mph builds on an industry imposed 
voluntary restriction that applies to any ``Key Crude Oil Train'' 
with at least one non-CPC 1232 tank car or one non-DOT specification 
tank car while that train travels within the limits of any high-
threat urban area (HTUA) as defined by 49 CFR 1580.3.
    \11\ A ``high-hazard flammable unit train'' (HHFUT) means a 
train comprised of 70 or more loaded tank cars containing Class 3 
flammable liquids traveling at greater than 30 mph.
---------------------------------------------------------------------------

    PHMSA and FRA have used a variety of regulatory and non-regulatory 
methods to address the risks of the bulk transport of flammable 
liquids, including crude oil and ethanol, by rail. These efforts 
include issuing guidance, conducting rulemakings, participating in rail 
safety committees, holding public meetings, enhancing enforcement 
efforts, and reaching out to the public. All of these efforts are 
consistent with our system-wide approach.
    PHMSA and FRA focus on prevention, mitigation and response to 
manage and reduce the risk posed to people and the environment by the 
transportation of hazardous materials by rail. When addressing these 
issues, PHMSA and FRA focus on solutions designed to reduce the 
probability of accidents occurring and to minimize the consequences of 
an accident should one occur.
    In this final rule, we are revising the HMR to establish 
requirements specific to HHFTs. As described in greater detail 
throughout this document, the final rule takes a system-wide, 
comprehensive approach consistent with the risks posed by HHFTs. 
Specifically, Table 1 describes the regulatory changes implemented in 
this final rule and identifies entities affected by this final rule.

               Table 1--Affected Entities and Requirements
------------------------------------------------------------------------
            Adopted requirement                    Affected entity
------------------------------------------------------------------------
Enhanced Standards for Both New and         Tank Car Manufacturers, Tank
 Existing Tank Cars Used in HHFTs.           Car
     New tank cars constructed       Owners, Shippers/Offerors
     after October 1, 2015 are required to   and Rail Carriers.
     meet enhanced DOT Specification 117
     design or performance criteria.
     Existing tank cars must be
     retrofitted in accordance with the
     DOT-prescribed retrofit design or
     performance standard.
     Retrofits must be completed
     based on a prescriptive retrofit
     schedule and a retrofit reporting
     requirement is triggered if initial
     milestone is not achieved.
More Accurate Classification of Unrefined   Offerors/Shippers of
 Petroleum-Based Products.                   unrefined petroleum-based
 Develop and carry out sampling      products.
 and testing program for all unrefined
 petroleum-based products, such as crude
 oil, to address:.
        (1) Frequency of sampling and
         testing that accounts for any
         appreciable variability of the
         material.
        (2) Sampling prior to the initial
         offering of the material for
         transportation and when changes
         that may affect the properties of
         the material occur;
        (3) Sampling methods that ensures
         a representative sample of the
         entire mixture, as offered, is
         collected;
        (4) Testing methods that enable
         classification of the material
         under the HMR;
        (5) Quality control measures for
         sample frequencies;
        (6) Duplicate samples or
         equivalent measures for quality
         assurance;
        (7) Criteria for modifying the
         sampling and testing program;
        (8) Testing or other appropriate
         methods used to identify
         properties of the mixture
         relevant to packaging
         requirements.
     Certify that program is in
     place, document the testing and
     sampling program outcomes, and make
     information available to DOT
     personnel upon request.
Rail routing--Risk assessment.............  Rail Carriers, Emergency
                                             Responders.
     Perform a routing analysis
     that considers, at a minimum, 27
     safety and security factors and
     select a route based on its findings.
     These planning requirements are
     prescribed in 49 CFR Sec.   172.820.
Rail routing--Notification................
     Ensures that railroads notify
     State and/or regional fusion centers
     and State, local, and tribal
     officials who contact a railroad to
     discuss routing decisions are
     provided appropriate contact
     information for the railroad in order
     to request information related to the
     routing of hazardous materials
     through their jurisdictions. This
     replaces the proposed requirements to
     notify State Emergency Response
     Commissions (SERCs) or other
     appropriate state delegated entity
     about the operation of these trains
     through their States.
Reduced Operating Speeds..................  Rail Carriers.
     Restrict all HHFTs to 50-mph
     in all areas.
     Require HHFTs that contain
     any tank cars not meeting the
     enhanced tank car standards required
     by this rule operate at a 40-mph
     speed restriction in high-threat
     urban areas \10\.
Enhanced Braking..........................  Rail Carriers.
     Require HHFTs to have in
     place a functioning two-way end-of-
     train (EOT) device or a distributed
     power (DP) braking system.
     Require trains meeting the
     definition of a ``high-hazard
     flammable unit train'' (HHFUT) \11\
     be operated with an electronically
     controlled pneumatic (ECP) braking
     system by January 1, 2021, when
     transporting one or more tank cars
     loaded with a Packing Group I
     flammable liquid.

[[Page 26647]]

 
     Require trains meeting the
     definition of a HHFUT be operated
     with an ECP braking system by May 1,
     2023, when transporting one or more
     tank cars loaded with a Packing Group
     II or III flammable liquid.
------------------------------------------------------------------------

    PHMSA and FRA received over 3,200 public comments representing over 
182,000 signatories in response to the NPRM and initial RIA. We 
carefully considered each comment and revised, as appropriate, the 
final rulemaking to reflect those comments. Table 2 below provides a 
high-level overview of what was originally proposed in the NPRM versus 
the amendments being adopted in this final rule.

                                     Table 2--NPRM vs. Final Rule Comparison
----------------------------------------------------------------------------------------------------------------
                Topic                       NPRM proposal         Final rule amendment        Justification
----------------------------------------------------------------------------------------------------------------
Scope--High-Hazard Flammable Train...  High-hazard flammable    A continuous block of    PHMSA and FRA modified
                                        train means a single     20 or more tank cars     the proposed
                                        train carrying 20 or     loaded with a            definition to capture
                                        more carloads of a       flammable liquid or 35   the higher-risk bulk
                                        Class 3 flammable        or more tank cars        quantities transported
                                        liquid.                  loaded with a            in unit trains, while
                                                                 flammable liquid         excluding lower-risk
                                                                 dispersed through a      manifest trains. This
                                                                 train.                   revision better
                                                                                          captures the intended
                                                                                          trains.
Tank Car--New Construction...........  Three options for new    A modified version of    These design
                                        tank car standards       Tank Car Option #2       enhancements will
                                        (See table 13).          from the NPRM.           reduce the
                                                                                          consequences of
                                                                                          accidents involving an
                                                                                          HHFT. These
                                                                                          enhancements will
                                                                                          improve puncture
                                                                                          resistance and thermal
                                                                                          survivability when
                                                                                          exposed to fire. There
                                                                                          will be fewer car
                                                                                          punctures, fewer
                                                                                          releases from the
                                                                                          service equipment (top
                                                                                          and bottom fittings).
                                                                                          See RIA.
Tank Car--Existing Fleet.............  Consistent with          Tank Car Option #3 from  Provides incremental
                                        proposed new tank car    the NPRM for retrofits.  safety benefit over
                                        standards, the same                               the current fleet
                                        three options for                                 while minimizing cost.
                                        retrofitted tank car                              These design
                                        standards. It was                                 enhancements will
                                        proposed that both new                            reduce the
                                        and retrofitted cars                              consequences of a
                                        would meet the same                               derailment of an HHFT.
                                        standard.                                         There will be fewer
                                                                                          car punctures, and
                                                                                          fewer releases from
                                                                                          the service equipment
                                                                                          (top and bottom
                                                                                          fittings). See RIA.
Tank Car--Retrofit Timeline..........  A five-year retrofit     A risk-based ten-year    Provides for greater
                                        schedule based solely    retrofit schedule        risk reduction by
                                        on packing group.        based on packing group   focusing on the
                                                                 and tank car. A          highest risk tank car
                                                                 retrofit reporting       designs and
                                                                 requirement is           commodities first.
                                                                 triggered if initial     Accounts for industry
                                                                 milestone is not         retrofit capacity.
                                                                 achieved.
Speed Restrictions...................  A 50 mph restriction     A 50 mph restriction     Decreases the kinetic
                                        across the board for     across the board for     energy involved in
                                        HHFTs and three          HHFTs and a 40 mph       accidents. Adopts the
                                        options for a 40 mph     restriction in HTUA.     most cost-effective
                                        restriction in                                    solution and limits
                                        specific areas.                                   the impact of rail
                                                                                          congestion.
Braking..............................  The scaling up of        (1) Requires HHFTs to    Provides a two-tiered,
                                        braking systems          have in place a          cost-effective and
                                        culminating in ECP       functioning two-way      risk-based solution to
                                        braking for HHFTs or a   EOT device or a DP       reduce the number of
                                        speed limitation for     braking system.          cars and energy
                                        those not meeting the   (2) Requires any HHFUT    associated with train
                                        braking requirements.    transporting at least    accidents. Focuses on
                                                                 one PG I flammable       the highest-risk train
                                                                 liquid be operated       sets
                                                                 with an ECP braking
                                                                 system by January 1,
                                                                 2021.
                                                                (3) Requires all other
                                                                 HHFUTs be operated
                                                                 with an ECP braking
                                                                 system by May 1, 2023.

[[Page 26648]]

 
Classification.......................  A classification plan    A classification plan    Addresses comments
                                        for mined liquids and    for unrefined            seeking clarity of
                                        gases.                   petroleum products.      requirements. We
                                                                 Clarified the            expect the
                                                                 materials subject to a   requirements would
                                                                 plan.                    reduce the expected
                                                                                          damages and ensure
                                                                                          that materials are
                                                                                          properly classified in
                                                                                          accordance with the
                                                                                          HMR.
Routing..............................  Require railroads        Require railroads        Track type, class, and
                                        operating HHFTs to       operating HHFTs to       maintenance schedule
                                        conduct a routing        conduct a routing        as well as training
                                        analysis considering,    analysis considering,    and skill level of
                                        at a minimum, 27         at a minimum, 27         crews are included in
                                        factors.                 factors.                 the 27 risk factors
                                                                                          identified that need
                                                                                          to be considered, at a
                                                                                          minimum, in a route
                                                                                          analysis. Evaluation
                                                                                          of these factors could
                                                                                          result in prevention
                                                                                          of an accident due to
                                                                                          either rail defects or
                                                                                          human factors/errors.
Notification.........................  Require trains carrying  Use the notification     Addresses concerns over
                                        1,000,000 gallons or     portion of the routing   security sensitive and
                                        more of Bakken Crude     requirements (i.e.       confidential business
                                        oil to notify SERCs.     notification to state/   information. Addresses
                                                                 regional fusion          the need for action in
                                                                 centers) to satisfy      the form of additional
                                                                 need for pertinent       communication between
                                                                 information.             railroads and
                                                                                          emergency responders
                                                                                          to ensure that the
                                                                                          emergency responders
                                                                                          are aware of the
                                                                                          appropriate contacts
                                                                                          at railroads to
                                                                                          discuss routing issues
                                                                                          with.
----------------------------------------------------------------------------------------------------------------

    With regard to the construction of new tank cars and retrofitting 
of existing tank cars for use in HHFTs, PHMSA and FRA are requiring new 
tank cars constructed after October 1, 2015 to meet the new design or 
performance standard, if those tank cars are used as part of an 
HHFT.\12\ In addition, PHMSA and FRA have revised our retrofit 
timeline. In the NPRM, the retrofit timeline was based on a single risk 
factor, the packing group. In the final rule, the retrofit timeline is 
revised to focus on two risk factors, the packing group and differing 
types of DOT-111 and CPC-1232 tank car. This revision is based on 
comments to the NPRM and the development of a model to demonstrate 
industry capacity and learning rates. The revised timeline provides an 
accelerated risk reduction that more appropriately addresses the 
overall risk. PHMSA and FRA also modified the overall length of the 
retrofit to account for issues raised by commenters that were not 
considered in the NPRM stage. In this final rule, PHMSA is adopting a 
risk-based timeline for the retrofit of existing tank cars to meet an 
enhanced CPC-1232 standard (Option #3) when used as part of an HHFT. 
The timeline is provided in the following table:
---------------------------------------------------------------------------

    \12\ Other authorized tank specification as specified in part 
173, subpart F will also be permitted however, manufacture of a DOT 
specification 111 tank car for use in an HHFT is prohibited.

 Table 3--Timeline for Continued Use of DOT Specification 111 (DOT-111)
                         Tanks for Use in HHFTs
------------------------------------------------------------------------
      Tank car type/service                  Retrofit deadline
------------------------------------------------------------------------
Non Jacketed DOT-111 tank cars in  (January 1, 2017 *).
 PG I service.                     January 1, 2018.
Jacketed DOT-111 tank cars in PG   March 1, 2018.
 I service.
Non-Jacketed CPC-1232 tank cars    April 1, 2020.
 in PG I service.
Non Jacketed DOT-111 tank cars in  May 1, 2023.
 PG II service.
Jacketed DOT-111 tank cars in PG   May 1, 2023.
 II service.
Non-Jacketed CPC-1232 tank cars    July 1, 2023.
 in PG II service.
Jacketed CPC-1232 tank cars in PG  May 1, 2025.
 I and PG II service** and all
 remaining tank cars carrying PG
 III materials in an HHFT
 (pressure relief valve and valve
 handles).
------------------------------------------------------------------------
* The January 1, 2017 date would trigger a retrofit reporting
  requirement, and tank car owners of affected cars would have to report
  to DOT the number of tank cars that they own that have been
  retrofitted, and the number that have not yet been retrofitted.
** We anticipate these will be spread out throughout the 120 months and
  the retrofits will take place during normal requalification and
  maintenance schedule, which will likely result in fleet being retrofit
  sooner.

    This final rule takes a system-wide, comprehensive approach to rail 
safety commensurate with the risks associated with HHFTs. Specifically, 
the requirements in this final rule address:

 Tank Car Specifications
 Advanced Brake Signal Propagation Systems
 Speed Restrictions
 Routing Requirements

[[Page 26649]]

 Notification Requirements
 Classification of unrefined petroleum-based products

    In this final rule, the proposals in the NPRM have been revised in 
response to the comments received and the final RIA has been revised to 
align with the changes made to the final rule. Specifically, the RIA 
explains adjustments to the methodology used to estimate the benefits 
and costs resulting from the final rule.
    The revised RIA is in the docket and supports the amendments made 
in this final rule. Table 4 shows the costs and benefits by affected 
section and rule provision over a 20-year period, discounted at a 7% 
rate. Table 4 also shows an explanation of the comprehensive benefits 
and costs (i.e., the combined effects of individual provisions), and 
the estimated benefits, costs, and net benefits of each amendment.
    Please also note that, given the uncertainty associated with the 
risks of HHFT shipments, Table 4 contains a range of benefits 
estimates. The low-end of the range of estimated benefits estimates 
risk from 2015 to 2034 based on the U.S. safety record for crude oil 
and ethanol from 2006 to 2013, adjusting for the projected increase in 
shipment volume over the next 20 years. The upper end of the range of 
estimated benefits is the 95th percentile of a Monte Carlo simulation.

             Table 4--20 Year Costs and Benefits by Stand-Alone Regulatory Amendments 2015-2034 \13\
----------------------------------------------------------------------------------------------------------------
       Affected section \14\              Provision           Benefits  (7%)               Costs  (7%)
----------------------------------------------------------------------------------------------------------------
49 CFR Sec.   172.820.............  Rail Routing +.......  Cost effective if     $8.8 million.
                                                            routing were to
                                                            reduce risk of an
                                                            incident by 0.41%.
49 CFR Sec.   173.41..............  Classification Plan..  Cost effective if     $18.9 million.
                                                            this requirement
                                                            reduces risk by
                                                            1.29%.
49 CFR Sec.   174.310.............  Speed Restriction: 40  $56 million-$242      $180 million.
                                     mph speed limit in     million **.
                                     HTUA *.
                                    Advanced Brake Signal  $470.3 million-       $492 million.
                                     Propagation Systems.   $1,114 million **.
49 CFR part 179...................  Existing Tank Car      $426 million-$1,706   $1,747 million.
                                     Retrofit/Retirement.   million **.
                                    New Car Construction.  $23.9 million-$97.4   $34.8 million.
                                                            million **.
Cumulative Total..................  .....................  $912 million-$2,905   $2,482 million.
                                                            million **.
----------------------------------------------------------------------------------------------------------------
``*'' indicates voluntary compliance regarding crude oil trains in high-threat urban areas (HTUA)
``+'' indicates voluntary actions that will be taken by shippers and railroads
``**'' Indicates that the low end of the benefits range is based solely on lower consequence events, while the
  high end of the range includes benefits from mitigating high consequence events.

II. Background and Approach to Rail Safety

    As noted above the HMR provide safety and security requirements for 
shipments valued at more than $2.3 trillion annually.\15\ The HMR 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, thus reducing the probability and quantity of a 
hazardous material release.
---------------------------------------------------------------------------

    \13\ All costs and benefits are in millions over 20 years, and 
are discounted to present value using a seven percent rate and 
rounded.
    \14\ All affected sections of the Code of Federal Regulations 
(CFR) are in Title 49.
    \15\ 2012 Commodity Flow Survey, RITA, BTS. See http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=CFS_2012_00H01&prodType=table.
---------------------------------------------------------------------------

    Under the HMR, hazardous materials are categorized by analysis and 
experience into hazard classes and, for some classes, packing groups 
based upon the risks that they present during transportation. The HMR 
specify appropriate packaging and handling requirements for hazardous 
materials based on such classification, and require an offeror to 
communicate the material's hazards through the use of shipping papers, 
package marking and labeling, and vehicle placarding. The HMR also 
require offerors to provide emergency response information applicable 
to the specific hazard or hazards of the material being transported. 
Further, the HMR (1) mandate training for persons who prepare hazardous 
materials for shipment or who transport hazardous materials in 
commerce, and (2) require the development and implementation of plans 
to address the safety and security risks related to the transportation 
of certain types and quantities of hazardous materials in commerce.
    The HMR also include operational requirements applicable to each 
mode of transportation and the FRA inspects and audits railroads, tank 
car facilities, and offerors of hazardous materials for compliance with 
PHMSA regulations as well as its own rail safety regulations. 
Additionally FRA's research and development program seeks to enhance 
all elements of railroad safety, including hazardous materials 
transportation.
    To address our shared concerns regarding the risks associated with 
rail carriage of flammable liquids, and the large volumes of flammable 
liquids transported in HHFTs, PHMSA and FRA are focusing on three 
areas: (1) Proper classification and characterization; (2) operational 
controls to lessen the likelihood and consequences of accidents; and 
(3) improvements to tank car integrity. This approach is designed to 
minimize the occurrence of train accidents and mitigate the damage 
caused should an accident occur.
    This overview section provides a general discussion of the major 
regulations currently in place that affect the safe transportation of 
hazardous materials by rail. These regulations pertain to issues such 
as: (1) Braking; (2) speed restrictions; (3) routing; (4) notification 
requirements; (5) oil spill response planning; (6) classification; and 
(7) packaging requirements.

A. Braking

    The effective use of braking on a freight train can result in 
accident avoidance. In addition, the effective use of braking on a 
freight train can potentially lessen the consequences of an accident by 
diminishing in-train forces, which can reduce the likelihood of a tank 
car being punctured and

[[Page 26650]]

decrease the likelihood of a derailment. The FRA has promulgated brake 
system safety standards for freight and other non-passenger trains and 
equipment in 49 CFR part 232. Specifically, part 232 provides 
requirements for (1) general braking, (2) inspection and testing, (3) 
periodic maintenance and testing, (4) end-of-train (EOT) devices, (5) 
introduction of new brake system technologies and (6) electronically 
controlled pneumatic braking (ECP) systems.
    FRA's brake system safety standards incorporate longstanding 
inspection and maintenance requirements related to a train's braking 
systems--air brakes and handbrakes--that have been in existence for 
well over 100 years. However, FRA's brake system safety standards also 
anticipate and allow for new technology. See 49 CFR part 232, subpart 
F. In 1996, FRA published regulations establishing requirements 
pertaining to the use and design of two-way EOT devices. 62 FR 278 
(Jan. 2, 1997). In 2008, FRA published subpart E to part 232, which 
established design, inspection, maintenance, and training standards for 
railroads implementing ECP brake system technology. 73 FR 61512 (Oct. 
16, 2008). Two-way EOT devices and ECP braking systems have the 
potential to provide enhanced braking during emergency braking and ECP 
brakes allow for enhanced braking and better train control during 
normal operational brake applications. Moreover, in recent years, 
certain railroads, particularly those in the western half of the U.S., 
have shifted to using distributed power (DP), to move longer trains. 
While DP is technically not a braking system, it can provide some 
enhanced braking during an emergency braking application over 
conventional braking systems because it provides an additional signal 
source to speed the application of air brakes.
    Three types of braking systems relevant to this rulemaking, two-way 
end-of-train (EOT) devices, distributed power (DP) systems, and 
electronically controlled pneumatic (ECP) braking systems, and briefly 
introduced below. They are discussed in greater detail in the 
``Advanced Braking Signal Systems'' section of this rulemaking.
    Two-way EOT devices include two pieces of equipment linked by radio 
that initiate an emergency brake application command from the front 
unit located in the controlling (``lead'') locomotive, which then 
activates the emergency air valve at the rear of the train within one 
second. The rear unit of the device sends an acknowledgment message to 
the front unit immediately upon receipt of an emergency brake 
application command. A two-way EOT device is slightly more effective 
than conventional air brakes because the rear cars receive the 
emergency brake command more quickly in an engineer induced emergency 
brake application.
    DP systems use multiple locomotives positioned at strategic 
locations within the train consist (often at the rear of the train) to 
provide additional power and train control in certain operations. For 
instance, a DP system may be used to provide power while climbing a 
steep incline and to control the movement of the train as it crests the 
incline and begins its downward descent. The DP system works through 
the control of the rearward locomotives by command signals originating 
at the lead locomotive and transmitted to the remote (rearward) 
locomotives. While distributed power technically is not a braking 
system, the additional power source in or at the rear of the train 
consist do provide enhanced braking for a train. The addition of a DP 
locomotive allows for the braking effort to be distributed throughout 
the train and allows for a more uniform braking effort than with a 
conventional air brake system.
    ECP brake systems simultaneously send an electronic braking command 
to all equipped cars in the train, reducing the time before a car's 
pneumatic brakes are engaged compared to conventional air brakes. They 
can be installed as an overlay to a conventional air brake system or 
replace it altogether; however, FRA regulations do require that ECP 
brake systems be interoperable pursuant to the AAR S-4200 standard, 
which allows for interchange among the Class I railroads. 49 CFR 
232.603.
    The simultaneous application of ECP brakes on all cars in a train 
also significantly improves train handling by substantially reducing 
stopping distances as well as buff and draft forces within the train, 
which under certain conditions can result in a derailment. Because ECP 
brakes do not rely on changes in air pressure passing from car to car, 
there are no delays related to the depletion and recharging of a 
train's air brake system. These factors provide railroads with the 
ability to decrease congestion or to increase volume by running longer 
trains closer together.

B. Speed Restrictions

    High speeds can increase the kinetic energy involved in and the 
associated damage caused by an accident. With respect to operating 
speeds, FRA has developed a system of classification that defines 
different track classes based on track quality. The track classes 
include Class 1 through Class 9 and ``excepted track.'' See 49 CFR 
213.9 and 213.307. Freight trains transporting hazardous materials 
currently operate at track speeds associated with Class 1 through Class 
5 track and, in certain limited instances, at or below ``excepted 
track'' speed limits. Section 213.9 of the FRA regulations on Track 
Safety Standards provides the ``maximum allowable operating speed'' for 
track Class 1 through Class 5 and ``excepted track.'' The speed limits 
range from 10 mph or less up to 80 mph; however, AAR design 
specifications effectively limit most freight equipment to a maximum 
allowable speed of 70 mph.
    In addition, the rail industry, through the AAR, implements a 
detailed protocol on recommended operating practices for the 
transportation of hazardous materials. This protocol, set forth in AAR 
Circular OT-55-N includes a 50-mph maximum speed for any ``key train,'' 
including any train with 20 car loads of ``any combination of hazardous 
material.'' In February 2014, by way of Secretary Foxx's Letter to the 
Association of American Railroads, AAR's Railroad Subscribers further 
committed to a 40-mph speed limit for certain trains carrying crude oil 
within the limits of any High-Threat Urban Area (HTUA), as defined by 
TSA regulations (49 CFR 1580.3).

C. Track Integrity, Securement, Engineer and Conductor Certification, 
Crew Size and the Safety of Freight Railroad Operations

    FRA carries out a comprehensive railroad safety program pursuant to 
its statutory authority. FRA's regulations promulgated for the safety 
of railroad operations involving the movement of freight address: (1) 
Railroad track; (2) signal and train control systems; (3) operating 
practices; (4) railroad communications; (5) rolling stock; (6) rear-end 
marking devices; (7) safety glazing; (8) railroad accident/incident 
reporting; (9) locational requirements for the dispatch of U.S. rail 
operations; (10) safety integration plans governing railroad 
consolidations, mergers, and acquisitions of control; (11) alcohol and 
drug testing; (12) locomotive engineer and conductor certification; 
(13) workplace safety; (14) highway-rail grade crossing safety; and 
other subjects.
    Train accidents are often the culmination of a sequence of events 
that are influenced by a variety of factors and conditions. Broken 
rails or welds, track geometry, and human factors such as improper use 
of switches are leading causes of derailments. Rail defects have caused 
major accidents involving HHFTs, including accidents in New

[[Page 26651]]

Brighton, PA, Arcadia, OH and Lynchburg, VA.
    While this final rule does not directly address regulations 
governing the inspection and maintenance of track, securement, and 
human factors, it does indirectly address some of these issues through 
the consideration of the 27 safety and security factors as part of the 
routing requirements. For a summary of on-going FRA related action, 
including track integrity, securement, crew size, and positive train 
control, please see the ``Recent Regulatory Actions Addressing HHFTs'' 
portion of this rulemaking.

D. Routing

    Careful consideration of a rail route with regard to a variety of 
risk factors can mitigate risk of an accident. For some time, there has 
been considerable public and Congressional interest in the safe and 
secure rail routing of security-sensitive hazardous materials (such as 
chlorine and anhydrous ammonia). The Implementing Recommendations of 
the 9/11 Commission Act of 2007 directed the Secretary, in consultation 
with the Secretary of Homeland Security, to publish a rule governing 
the rail routing of security-sensitive hazardous materials. On December 
21, 2006, PHMSA, in coordination with FRA and the Transportation 
Security Administration (TSA) of the U.S. Department of Homeland 
Security (DHS), published an NPRM proposing to require rail carriers to 
compile annual data on specified shipments of hazardous materials, use 
the data to analyze safety and security risks along rail routes where 
those materials are transported, assess alternative routing options, 
and make routing decisions based on those assessments. 71 FR 76834.
    In that NPRM, we proposed that the route analysis requirements 
would apply to certain hazardous materials that PHMSA, FRA and TSA 
believed presented the greatest transportation safety and security 
risks. Those hazardous materials included certain shipments of 
explosives, materials poisonous by inhalation (PIH materials), and 
highway-route controlled quantities of radioactive materials. We 
solicited comment on whether the proposed requirements should also 
apply to flammable gases, flammable liquids, or other materials that 
could be weaponized, as well as hazardous materials that could cause 
serious environmental damage if released into rivers or lakes. 
Commenters who addressed this issue indicated that rail shipments of 
Division 1.1, 1.2, and 1.3 explosives; Poison Inhalation Hazard (PIH) 
materials; and highway-route controlled quantities of radioactive 
materials pose significant rail safety and security risks warranting 
the enhanced security measures proposed in the NPRM and adopted in a 
November 26, 2008, final rule. 73 FR 20752. Commenters generally did 
not support enhanced security measures for a broader list of materials 
than were proposed in the NPRM.
    The City of Las Vegas, Nevada, did support expanding the list of 
materials for which enhanced security measures are required, to include 
flammable liquids, flammable gases, certain oxidizers, certain organic 
peroxides, and 5,000 pounds or greater of pyrophoric materials. While 
DOT and DHS agreed that these materials pose certain safety and 
security risks in rail transportation, the risks were not as great as 
those posed by the explosive, PIH, and radioactive materials specified 
in the NPRM, and PHMSA was not persuaded that they warranted the 
additional safety and security measures. PHMSA did note, however, that 
DOT, in consultation with DHS, would continue to evaluate the 
transportation safety and security risks posed by all types of 
hazardous materials and the effectiveness of existing regulations in 
addressing those risks and would consider revising specific 
requirements as necessary.
    In 2008 PHMSA, in consultation with FRA, issued the final route 
analysis rule. 73 FR 72182. That rule, now found at 49 CFR 172.820, 
requires rail carriers to select a practicable route posing the least 
overall safety and security risk to transport security-sensitive 
hazardous materials. The route analysis final rule requires rail 
carriers to compile annual data on certain shipments of explosive, PIH, 
and radioactive materials; use the data to analyze safety and security 
risks along rail routes where those materials are transported; assess 
alternative routing options; and make routing decisions based on those 
assessments. In accordance with Sec.  172.820(e), the carrier must 
select the route posing the least overall safety and security risk. The 
carrier must retain in writing all route review and selection decision 
documentation. Additionally, the rail carrier must identify a point of 
contact on routing issues involving the movement of covered materials 
and provide that contact information to the appropriate State, local, 
and tribal personnel.
    Rail carriers must assess available routes using, at a minimum, the 
27 factors listed in appendix D to part 172 of the HMR to determine the 
safest, most secure routes for the transportation of covered hazardous 
materials.

   Table 5--Minimum Factors To Be Considered in the Performance of the
   Safety and Security Risk Analysis Required by 49 CFR Sec.   172.820
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Volume of hazardous material      Rail traffic        Trip length for
 transported.                      density.            route.
Presence and characteristics of   Track type, class,  Track grade and
 railroad facilities.              and maintenance     curvature.
                                   schedule.
Presence or absence of signals    Presence or         Number and types
 and train control systems along   absence of          of grade
 the route (``dark'' versus        wayside hazard      crossings.
 signaled territory).              detectors.
Single versus double track        Frequency and       Proximity to
 territory.                        location of track   iconic targets.
                                   turnouts.
Environmentally sensitive or      Population density  Venues along the
 significant areas.                along the route.    route (stations,
                                                       events, places of
                                                       congregation).
Emergency response capability     Areas of high       Presence of
 along the route.                  consequence along   passenger traffic
                                   the route,          along route
                                   including high-     (shared track).
                                   consequence
                                   targets.
Speed of train operations.......  Proximity to en-    Known threats,
                                   route storage or    including any
                                   repair facilities.  threat scenarios
                                                       provided by the
                                                       DHS or the DOT
                                                       for carrier use
                                                       in the
                                                       development of
                                                       the route
                                                       assessment.
Measures in place to address      Availability of     Past accidents.
 apparent safety and security      practicable
 risks.                            alternative
                                   routes.
Overall times in transit........  Training and skill  Impact on rail
                                   level of crews.     network traffic
                                                       and congestion.
------------------------------------------------------------------------


[[Page 26652]]

The HMR require carriers to make conscientious efforts to develop 
logical and defendable systems using these factors.
    FRA enforces the routing requirements of Sec.  172.820 and is 
authorized, after consulting with PHMSA, TSA, and the Surface 
Transportation Board, to require a railroad to use an alternative route 
other than the route selected by the railroad if it is determined that 
the railroad's route selection documentation and underlying analysis 
are deficient and fail to establish that the route chosen poses the 
least overall safety and security risk based on the information 
available. 49 CFR 209.501.
    On January 23, 2014, in response to its investigation of the Lac-
M[eacute]gantic accident, the NTSB issued three recommendations to 
PHMSA and three similar recommendations to FRA. Recommendation R-14-4 
requested PHMSA work with FRA to expand hazardous materials route 
planning and selection requirements for railroads to include key trains 
transporting flammable liquids as defined by the AAR Circular No. OT-
55-N. Additionally, where technically feasible, NTSB recommended that 
rerouting be required to avoid transportation of such hazardous 
materials through populated and other sensitive areas.

E. Notification

    Notification of hazardous materials routes to appropriate 
personnel, such as emergency responders, of certain hazardous materials 
can aid in emergency preparation and in some instances emergency 
response, should an accident occur. As mentioned previously, in 
accordance with the routing requirements in Sec.  172.820 of the HMR, a 
rail carrier must identify a point of contact for routing issues that 
may arise involving the movement of covered materials and provide the 
contact information to the following:
    1. State and/or regional fusion centers that have been established 
to coordinate with state, local, and tribal officials on security 
issues within the area encompassed by the rail carrier's rail system; 
\16\ and
---------------------------------------------------------------------------

    \16\ http://www.dhs.gov/fusion-center-locations-and-contact-information.
---------------------------------------------------------------------------

    2. State, local, and tribal officials in jurisdictions that may be 
affected by a rail carrier's routing decisions and who have contacted 
the carrier regarding routing decisions.
    This serves as the current notification procedure for what have 
historically been known as the most highly hazardous materials 
transported by rail. In addition, an emergency order (Docket No. DOT-
OST-2014-0067 \17\) published on May 7, 2014, requires all railroads 
that operate trains containing one million gallons or more of Bakken 
crude oil to notify SERCs about the operation of these trains through 
their States.
---------------------------------------------------------------------------

    \17\ See http://www.dot.gov/briefing-room/emergency-order.
---------------------------------------------------------------------------

F. Oil Spill Response Planning

    PHMSA's regulations, see 49 CFR part 130, prescribe prevention, 
containment, and response planning requirements applicable to 
transportation of oil \18\ by motor vehicles and rolling stock. The 
purpose of a response plan is to ensure that personnel are trained and 
available and equipment is in place to respond to an oil spill, and 
that procedures are established before a spill occurs, so that required 
notifications and appropriate response actions will follow quickly when 
there is a spill. PHMSA and FRA are addressing the issue of oil spill 
response plans in a separate rulemaking action. For a detailed 
description of PHMSA's oil spill response plan requirements, search for 
docket ``PHMSA-2014-0105'' at www.regulations.gov.
---------------------------------------------------------------------------

    \18\ For purposes of 49 CFR part 130, oil means oil of any kind 
or in any form, including, but not limited to, petroleum, fuel oil, 
sludge, oil refuse, and oil mixed with the wastes other than dredged 
spoil. 49 CFR 130.5. This includes non-petroleum oil such as animal 
fat, vegetable oil, or other non-petroleum oil.
---------------------------------------------------------------------------

G. Classification

    An offeror's responsibility to classify and describe a hazardous 
material is a key requirement under the HMR. In accordance with Sec.  
173.22 of the HMR, it is the offeror's responsibility to properly 
``class and describe a hazardous material in accordance with parts 172 
and 173 of the HMR.'' For transportation purposes, classification is 
ensuring the proper hazard class, packing group, and shipping name are 
assigned to a particular material. The HMR do not prescribe a specific 
test frequency to classify hazardous materials. However, the HMR 
clearly intend for the frequency and type of testing to be based on an 
offeror's knowledge of the hazardous material, with specific 
consideration given to the nature of hazardous material involved, the 
variety of the sources of the hazardous material, and the processes 
used to handle and prepare the hazardous material. Section 173.22 also 
requires offerors to identify all relevant properties of the hazardous 
material to comply with complete hazard communication, packaging, and 
operational requirements in the HMR. While the HMR do not prescribe 
specific requirements to quantify properties relevant to packaging 
selection, the offeror must follow the general packaging requirements 
in part 173, subpart B. For example, as indicated in Sec.  173.24(e), 
even though certain packagings are authorized for a specific HMR entry, 
it is the responsibility of the offeror to ensure that each packaging 
is compatible with its specific lading. In addition, offerors must know 
the specific gravity of the hazardous material at certain temperatures 
to ensure that outage is considered when loading a rail tank car or 
cargo tank motor vehicle per Sec.  173.24b(a).
    Once an offeror has classified and described the material; selected 
the appropriate packaging; loaded the packaging; and marked, labeled, 
and placarded the packaging and/or transport vehicle in accordance with 
the HMR, the offeror must ``certify'' the shipment per Sec.  172.204 of 
the HMR. The certification statement indicates the HMR were followed 
and that all requirements have been met. As such, the offeror is 
responsible for certifying its material has been properly classified 
and all packaging requirements have been met. Improper classification 
can have significant negative impacts on transportation safety as a 
material may be offered for transportation in an inappropriate package.
    The physical and chemical properties of unrefined petroleum-based 
products are complex and can vary by region, time of year, and method 
of extraction. Heating, agitation, and centrifugal force are common 
methods of separation for the initial treatment of unrefined petroleum 
to reduce the range of values of the physical and chemical properties. 
These methods eliminate much of the gaseous hydrocarbons, sediments, 
and water from the bulk material. Blending crude oil from different 
sources is the most common method to achieve a uniform material. 
However, there may still be considerable variation between mixtures 
where separation or blending has occurred at different times or 
locations. While blending may generate a uniform profile for an 
individual mixture of the material, it does not eliminate the gaseous 
hydrocarbons or the related hazards. The separation and blending 
methods both create a new product or additional byproducts that may 
result in the need to transport flammable gases in addition to 
flammable liquids. Manufactured goods and refined products, by 
definition, are at the other end of the spectrum from unrefined or raw 
materials. This means that the physical and chemical

[[Page 26653]]

properties are more predictable as they are pure substances or well-
studied mixtures.
    Crude oil transported by rail is extracted from different sources 
and is most often blended in large storage tanks before being loaded 
into rail tank cars at transloading facilities. In rare cases, the 
crude oil is transferred directly from a cargo tank to a rail car which 
may result in more variability of properties among the rail tank cars. 
PHMSA and FRA completed audits of crude oil loading facilities, prior 
to the issuance of the February 26, 2014, Emergency Restriction/
Prohibition Order, indicated that the classification of crude oil being 
transported by rail was often based solely on a Safety Data Sheet 
(SDS). The information is usually generic and provides only basic data 
and offers a wide range of values for a limited number of material 
properties. The flash point and initial boiling point ranges on SDS 
referenced during the audits crossed the packaging group threshold 
values making it difficult to determine the proper packing group 
assignment. In these instances, it is likely no validation of the 
information is performed at an interval that would allow for detection 
of variability in material properties.
    In the case of a flammable liquid (excluded from being defined as a 
gas per Sec.  171.8 of the HMR), the proper classification is based on 
the flash point and initial boiling point. See Sec.  173.120 of the 
HMR. The offeror may additionally need to identify properties such as 
corrosivity, vapor pressure, specific gravity at loading and reference 
temperatures, and the presence and concentration of specific compounds 
(e.g. sulfur) to further comply with complete packaging requirements.
    In addition to the regulations detailing the offeror's 
responsibility, the rail and oil industry, along with PHMSA's input, 
have developed a recommended practice (RP) designed to improve the 
crude oil rail safety through proper classification and loading 
practices. This effort was led by the API and resulted in the 
development of American National Standards Institute (ANSI) recognized 
recommend practice, see ANSI/API RP 3000, ``Classifying and Loading of 
Crude Oil into Rail Tank Cars.'' This recommend practice, which, during 
its development, went through a public comment period in order to be 
designated as an American National Standard, addresses the proper 
classification of crude oil for rail transportation and quantity 
measurement for overfill prevention when loading crude oil into rail 
tank cars. This recommended practice was finalized in September 2014, 
after the NPRM was published. The development of this recommended 
practice demonstrates the importance of proper classification.
    The NTSB also supports routine testing for classification of 
hazardous materials, such as petroleum crude oil. On January 23, 2014, 
as a result of its investigation of the Lac-M[eacute]gantic accident, 
the NTSB issued three recommendations to PHMSA and FRA. Safety 
Recommendation R-14-6 \19\ requested that PHMSA require shippers to 
sufficiently test and document the physical and chemical 
characteristics of hazardous materials to ensure the proper 
classification, packaging, and record-keeping of products offered in 
transportation. This and other NTSB Safety Recommendations are 
discussed in further detail in the ``NTSB Safety Recommendations'' 
portion of this document.
---------------------------------------------------------------------------

    \19\ NTSB Recommendation 14-6 .http://phmsa.dot.gov/PHMSA/Key_Audiences/Hazmat_Safety_Community/Regulations/NTSB_Safety_Recommendations/Rail/ci.R-14-6,Hazmat.print.
---------------------------------------------------------------------------

H. Packaging/Tank Car

    As mentioned previously, in the classification section, proper 
classification is essential when selecting an appropriate packaging for 
the transportation of hazardous materials. The HMR provides a list of 
authorized packagings for each hazardous material. The hazardous 
materials table (HMT) of Sec.  172.101 provides the list of packagings 
authorized for use by the HMR based on the shipping name of a hazardous 
material. For each proper shipping name, bulk packaging requirements 
are provided in Column (8C) of the HMT.
    The offeror must select a packaging that is suitable for the 
properties of the material and based on the packaging authorizations 
provided by the HMR. With regard to package selection, the HMR require 
in Sec.  173.24(b) that each package used for the transportation of 
hazardous materials be ``designed, constructed, maintained, filled, its 
contents so limited, and closed, so that under conditions normally 
incident to transportation . . . there will be no identifiable (without 
the use of instruments) release of hazardous materials to the 
environment [and] . . . the effectiveness of the package will not be 
substantially reduced.'' Under this requirement, offerors must consider 
how the properties of the material (which can vary depending on 
temperature and pressure) could affect the packaging.
    The packaging authorizations are currently indicated in the HMT and 
part 173, subpart F. DOT Specification 111 tank cars are authorized for 
low, medium, and high-hazard liquids and solids (equivalent to Packing 
Groups III, II, I, respectively). Packing groups are designed to assign 
a degree of danger presented within a particular hazard class. Packing 
Group I poses the highest danger (``great danger'') and Packing Group 
III the lowest (``minor danger'').\20\ In addition, the general 
packaging requirements prescribed in Sec.  173.24 provide additional 
consideration for selecting the most appropriate packaging from the 
list of authorized packaging identified in column (8) of the HMT.
---------------------------------------------------------------------------

    \20\ Packing groups, in addition in indicating risk of the 
material, can trigger levels of varying requirements. For example, 
packing groups can indicate differing levels of testing requirements 
for a non-bulk packaging or the need for additional operational 
requirements, such as security planning requirements.
---------------------------------------------------------------------------

    For most flammable liquids, the authorized packaging requirements 
for a PG I material are provided in Sec.  173.243 and for PGs II and 
III in Sec.  173.242. The following table is provided as a general 
guide for the packaging options for rail transport provided by the HMR 
for flammable liquids.

                     Table 6--Tank Car Options \21\
------------------------------------------------------------------------
                                            Flammable liquid,  PG II and
          Flammable liquid,  PG I                        III
------------------------------------------------------------------------
DOT 103...................................  DOT 103.
DOT 104...................................  DOT 104.
DOT 105...................................  DOT 105.
DOT 109...................................  DOT 109.
DOT 111...................................  DOT 111.
DOT 112...................................  DOT 112.
DOT 114...................................  DOT 114.
DOT 115...................................  DOT 115.
DOT 120...................................  DOT 120.
                                            AAR 206W.
------------------------------------------------------------------------
Note 1. Sections 173.241, 173.242, and 173.243 authorize the use of the
  above tank cars.
Note 2. DOT 103, 104,105, 109, 112, 114, and 120 tank cars are pressure
  tank cars (HMR; Part 179, subpart C).
Note 3. DOT 111 and 115 tank cars are non-pressure tank cars (HMR; Part
  179, subpart D).
Note 4. AAR 203W, AAR 206W, and AAR 211W tank cars are non-DOT
  specification tank cars that meet AAR standards. These tank cars are
  authorized under Sec.   173.241 of the HMR (see Special Provision B1,
  as applicable).
Note 5. DOT 114 and DOT 120 pressure cars are permitted to have bottom
  outlets and, generally, would be compatible with the DOT 111.

    The DOT Specification 111 tank car is one of several cars currently 
authorized

[[Page 26654]]

by the HMR for the rail transportation of many hazardous materials, 
including ethanol, crude oil, and other flammable liquids. For a 
summary of the design requirements of the DOT Specification 111 tank 
car, see Table 13 in the tank car portion of the discussion of 
comments.
---------------------------------------------------------------------------

    \21\ Additional information on tank car specifications is 
available at the following URL: http://www.bnsfhazmat.com/refdocs/1326686674.pdf.
---------------------------------------------------------------------------

    In published findings from the June 19, 2009, incident in Cherry 
Valley, Illinois, the NTSB indicated that the DOT Specification 111 
tank car can almost always be expected to breach in the event of a 
train accident resulting in car-to-car impacts or pileups.\22\ In 
addition, PHMSA received numerous petitions encouraging rulemaking, and 
both FRA and PHMSA received letters from members of Congress urging 
prompt, responsive actions from the Department. The AAR created the 
T87.6 Task Force on July 20, 2011, to consider several enhancements to 
the DOT Specification 111 tank car design and rail carrier operations 
to enhance rail transportation safety. Simultaneously, FRA conducted 
research on long-standing safety concerns regarding the survivability 
of the DOT Specification 111 tank cars designed to current HMR 
standards and used for the transportation of ethanol and crude oil, 
focusing on issues such as puncture resistance and top fittings 
protection. The research indicated that special consideration is 
necessary for the transportation of ethanol and crude oil in DOT 
Specification 111 tank cars, especially in HHFTs.
---------------------------------------------------------------------------

    \22\ NTSB, Railroad Accident Report--Derailment of CN Freight 
Train U70691-18 With Subsequent Hazardous Materials Release and 
Fire, http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1201.pdf (February 2012).
---------------------------------------------------------------------------

    In addition, PHMSA and FRA reviewed the regulatory history 
pertaining to flammable liquids transported in tank cars. Prior to 
1990, the distinction between material properties that resulted in 
different packaging, for flammable liquids in particular, was described 
in far more detail in Sec.  173.119. Section 173.119 indicated that the 
packaging requirements for flammable liquids are based on a combination 
of flash point, boiling point, and vapor pressure. The regulations 
provided a point at which a flammable liquid had to be transported in a 
tank car suitable for compressed gases, commonly referred to as a 
``pressure car'' (e.g., DOT Specifications 105, 112, 114, 120 tank 
cars).
    In 2011, the AAR issued Casualty Prevention Circular (CPC) 1232, 
which outlines industry requirements for certain DOT Specification 111 
tanks ordered after October 1, 2011, intended for use in ethanol and 
crude oil service (construction approved by FRA on January 25, 
2011).\23\ The CPC-1232 requirements are intended to improve the 
crashworthiness of the tank cars and include a thicker shell, head 
protection, top fittings protection, and pressure relief valves with a 
greater flow capacity.
---------------------------------------------------------------------------

    \23\ See ``Background'' section of the August 2014 NPRM for 
information regarding a detailed description of PHMSA and FRA 
actions to allow construction under CPC-1232.
---------------------------------------------------------------------------

    Despite these improvements of the CPC-1232 on April 6, 2015 the 
NTSB issued additional recommendations related to legacy DOT 
Specification 111 tank cars as well as the newer CPC-1232 tank cars. 
These recommendations, R-15-14 and R-15-15, requested that PHMSA 
require that all new and existing tank cars used to transport all Class 
3 flammable liquids be equipped with thermal protection systems that 
meet or exceed the thermal performance standards outlined in Title 49 
Code of Federal Regulations 179.18(a) and be equipped with 
appropriately sized pressure relief devices that allow the release of 
pressure under fire conditions to ensure thermal performance that meets 
or exceeds the requirements of Title 49 Code of Federal Regulations 
179.18(a), and that minimizes the likelihood of energetic thermal 
ruptures.

III. Recent Regulatory Actions Addressing Rail Safety

    The August 1, 2014 NPRM extensively detailed the regulatory actions 
of PHMSA and FRA that were relevant to the transportation of large 
quantities of flammable liquids by rail. Specifically, the NPRM 
detailed regulatory actions that addressed prevention, mitigation, and 
response through risk reduction. For a description of the PHMSA and FRA 
regulatory actions that were taken prior to the August 1, 2014 NPRM 
please refer to the ``Regulatory Actions'' section of the NPRM. We 
provide a brief summary below of regulatory actions taken by PHMSA and 
FRA concurrently with, and after the August 1, 2014 NPRM. In addition 
we highlight some additional regulatory actions not discussed in the 
NPRM.

A. Rulemaking Actions

    On August 1, 2014, in conjunction with its NPRM--``Hazardous 
Materials: Enhanced Tank Car Standards and Operational Controls for 
High-Hazard Flammable Trains (2137-AE91)'', PHMSA, in consultation with 
the FRA, published an Advanced Notice of Proposed Rulemaking (ANPRM) 
that sought comment on potential revisions to its regulations that 
would expand the applicability of comprehensive oil spill response 
plans (OSRPs) to high-hazard flammable trains (HHFTs) based on 
thresholds of crude oil that apply to an entire train consist (See 
Docket PHMSA-2014-0105).
    On August 9, 2014, FRA published an NPRM that proposed amendments 
to strengthen the requirements relating to the securement of unattended 
equipment. Specifically, FRA proposed to codify many of the 
requirements already included in its Emergency Order 28, Establishing 
Additional Requirements for Attendance and Securement of Certain 
Freight Trains and Vehicles on Mainline Track or Mainline Siding 
Outside of a Yard or Terminal. FRA proposed to amend existing 
regulations to include additional securement requirements for 
unattended equipment, primarily pertaining to trains transporting PIH 
materials or large volumes of Division 2.1 (flammable gases), Class 3 
(flammable or combustible liquids, including crude oil and ethanol), 
and Division 1.1 or 1.2 (explosives) hazardous materials. For these 
trains, FRA proposed requiring attendance on all mainline and sidings 
that are outside of and not adjacent to a yard unless the railroad has 
determined it would be appropriate to leave the equipment unattended at 
the specific location and included the location in its securement plan. 
FRA also proposed requirements relating to job briefings and 
communication with qualified railroad personnel to verify equipment has 
been properly secured before leaving it unattended. Attendance would be 
required for any equipment not capable of being secured in accordance 
with the proposed and existing requirements. FRA's NPRM also proposed 
to require railroads to verify securement in instances where they have 
knowledge that emergency responders accessed unattended equipment. 
Finally, FRA proposed a new requirement that all locomotives left 
unattended outside of a yard be equipped with an operative exterior 
locking mechanism. See 75 FR 53356 (Sept. 9, 2014).
    In addition to the regulatory initiatives concerning oil spill 
response and railroad equipment securement discussed above, PHMSA and 
FRA are committed to clarifying and improving our existing regulations 
through active and future rulemakings. As a result PHMSA and FRA 
continue to work with the regulated community and general public to 
implement existing regulations and improve safety through regulatory 
action. PHMSA and FRA have many initiatives underway to address freight

[[Page 26655]]

rail safety. Key regulatory actions are outlined below:

                                    Table 7--PHMSA and FRA Safety Initiatives
----------------------------------------------------------------------------------------------------------------
           Safety initiative                         Project summary                      Current status
----------------------------------------------------------------------------------------------------------------
Risk Reduction Program (2130-AC11)....  FRA is developing an NPRM that will       ANPRM was published on
                                         consider appropriate contents for Risk    December 8, 2010, and the
                                         Reduction Programs by Class I freight     comment period ended on
                                         railroads and how they should be          February 7, 2011. Public
                                         implemented and reviewed by FRA. A Risk   hearings regarding this rule
                                         Reduction Program is a structured         were held on July 19, 2011,
                                         program with proactive processes and      in Chicago, IL on July 21,
                                         procedures developed and implemented by   2011, in Washington, DC. The
                                         a railroad to identify hazards and to     NPRM was published on
                                         mitigate, if not eliminate, the risks     February 27, 2015 and the
                                         associated with those hazards on its      comment period ended April
                                         system. A Risk Reduction Program          27, 2015.
                                         encourages a railroad and its employees
                                         to work together to proactively
                                         identify hazards and to jointly
                                         determine what action to take to
                                         mitigate or eliminate the associated
                                         risks.
Track Safety Standards: Improving Rail  FRA's final rule prescribes specific      FRA published this rule on
 Integrity (2130-AC28).                  requirements for effective rail           January 24, 2014 (79 FR
                                         inspection frequencies, rail flaw         4234). The final rule became
                                         remedial actions, minimum operator        effective on March 25, 2014.
                                         qualifications, and requirements for
                                         rail inspection records. The bulk of
                                         this regulation codifies current good
                                         practices in the industry. In addition,
                                         it removes the regulatory requirements
                                         concerning joint bar fracture
                                         reporting. Section 403(c) of the Rail
                                         Safety Improvement Act of 2008 (RSIA)
                                         (Pub. L. 110-432, 122 Stat. 4848
                                         (October 16, 2008)) (49 U.S.C. 20142
                                         note)) mandated that FRA review its
                                         existing regulations to determine if
                                         regulatory amendments should be
                                         developed that would revise, for
                                         example, rail inspection frequencies
                                         and methods and rail defect remedial
                                         actions and consider rail inspection
                                         processes and technologies.
Positive Train Control (PTC) (multiple  PTC is a processor-based/communication-   FRA published the most recent
 rulemakings).                           based train control system designed to    PTC systems final rule on
                                         prevent train accidents. The RSIA         August 22, 2014 (79 FR
                                         mandates that PTC be implemented across   49693), addressing the de
                                         a significant portion of the Nation's     minimis exception, yard
                                         rail system by December 31, 2015. See     movements, en route failures,
                                         49 U.S.C. 20157. With limited             and other issues. The final
                                         exceptions and exclusions, PTC is         rule became effective on
                                         required to be implemented on Class I     October 21, 2014.
                                         railroad main lines (i.e., lines with
                                         over 5 million gross tons annually)
                                         over which any PIH or toxic inhalation
                                         hazard (TIH) materials are transported;
                                         and, on any railroad's main lines over
                                         which regularly scheduled passenger
                                         intercity or commuter operations are
                                         conducted. It is currently estimated
                                         this will equate to approximately
                                         70,000 miles of track and will involve
                                         approximately 20,000 locomotives. PTC
                                         technology is capable of automatically
                                         controlling train speeds and movements
                                         should a train operator fail to take
                                         appropriate action for the conditions
                                         at hand. For example, PTC can force a
                                         train to a stop before it passes a
                                         signal displaying a stop indication, or
                                         before diverging on a switch improperly
                                         lined, thereby averting a potential
                                         collision. PTC systems required to
                                         comply with the requirements of Subpart
                                         I must reliably and functionally
                                         prevent: Train-to-train collisions;
                                         Overspeed derailments; Incursion into
                                         an established work zone; and Movement
                                         through a switch in the wrong position.
Securement............................  The new measures proposed in the          The NPRM was published on
                                         securement NPRM would require: (1) Crew   September 9, 2014, and the
                                         members leaving equipment carrying        comment closed on November
                                         specified hazardous materials             10, 2014.
                                         unattended in certain areas to follow
                                         certain additional procedures to ensure
                                         proper securement. (2) Railroads to
                                         develop a plan identifying such
                                         locations or circumstances. (3)
                                         Railroads to verify securement using
                                         qualified persons; and ensure that
                                         locks on locomotive cab are secure.
                                         Include securement requirements in job
                                         briefings. (4) Railroads to perform
                                         additional inspections by qualified
                                         persons when emergency responders have
                                         been on equipment. (5) Railroads to
                                         install locking mechanisms on
                                         locomotive doors and repair them in a
                                         timely manner.
                                        The proposed rule covers equipment
                                         containing poisonous by inhalation
                                         (PIH) materials and those defined as
                                         Division 2.1 (flammable gas), Class 3
                                         (flammable or combustible liquid),
                                         Class 1.1 or 1.2 (explosive)
                                         materials,\24\ or a hazardous substance
                                         listed in 49 CFR Sec.   173.31(f)(2).
                                         This includes most crude oil moved in
                                         the United States.
Crew Size.............................  FRA has initiated a rulemaking to         Developing Rulemaking.
                                         address the appropriate oversight to
                                         ensure safety related train crew size.
Retrospective Regulatory Review 49 CFR  As part of a retrospective regulatory     PHMSA and FRA have evaluated
 part 174--Carriage by Rail (78 FR       review PHMSA and FRA reviewed the part    the comments from the public
 42998).                                 174 ``Carriage by Rail'' section of our   meeting and intend to move
                                         regulations in an effort to identify      forward with revisions to
                                         areas which could be revised to improve   part 174.
                                         clarity. On August 27-28, 2013 as part
                                         of this comprehensive review of
                                         operational factors that impact the
                                         transportation of hazardous materials
                                         by rail PHMSA and FRA held a public
                                         meeting.

[[Page 26656]]

 
Oil Spill Response Plans for High-      In this ANPRM, PHMSA, in consultation     Published ANPRM on August 1,
 Hazard Flammable Trains (PHMSA-2014-    with FRA, sought comment on potential     2014 and the comment closed
 0105).                                  revisions to its regulations that would   on September 30, 2014.
                                         expand the applicability of               Developing follow-up NPRM.
                                         comprehensive oil spill response plans
                                         (OSRPs) to high-hazard flammable trains
                                         (HHFTs) based on thresholds of crude
                                         oil that apply to an entire train
                                         consist.
----------------------------------------------------------------------------------------------------------------

B. Emergency Orders

    The Department has the authority to issue emergency orders in 
certain instances and take action on safety issues that constitute an 
imminent hazard to the safe transportation of hazardous materials. 
Railroad transportation of hazardous materials in commerce is subject 
to the authority and jurisdiction of the Secretary of Transportation 
(Secretary), including the authority to impose emergency restrictions, 
prohibitions, recalls, or out-of-service orders, without notice or an 
opportunity for hearing, to the extent necessary to abate the imminent 
hazard. 49 U.S.C. 5121(d). Therefore, an emergency order can be issued 
if the Secretary has found that an unsafe condition or an unsafe 
practice is causing or otherwise constitutes an imminent hazard to the 
safe transportation of hazardous materials.
---------------------------------------------------------------------------

    \24\ Should have read ``Division'' instead of ``Class.''
---------------------------------------------------------------------------

    The NPRM extensively detailed the departmental actions taken, in 
the form of emergency orders prior to August 1, 2014. Please refer to 
the ``Emergency Orders and Non-Regulatory Actions'' section of August 
1, 2014 NPRM for a detailed description of emergency orders issued by 
the Department that are relevant to the transportation by rail of large 
quantities of flammable liquids. The table below briefly summarizes 
those orders and the additional emergency order issued since the NPRM 
publication.
---------------------------------------------------------------------------

    \25\ See http://www.gpo.gov/fdsys/pkg/FR-2013-08-07/pdf/2013-19215.pdf.
    \26\ Should have read ``Division'' instead of ``Class.''
    \27\ See http://www.dot.gov/sites/dot.gov/files/docs/Amended%20Emergency%20Order%20030614.pdf.
    \28\ See Docket No. DOT-OST-2014-0025. See also http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Amended_Emergency_Order_030614.pdf.

                 Table 8--Emergency Orders Issued Related to Rail Transport of Flammable Liquids
----------------------------------------------------------------------------------------------------------------
             Emergency order                      Date issued                         Action taken
----------------------------------------------------------------------------------------------------------------
Emergency Order 28 (78 FR 48218) \25\     August 7, 2013.............  Addressed securement and attendance
 Issued by FRA.                                                         issues related to securement of certain
                                                                        hazardous materials trains;
                                                                        specifically, trains with:
                                          ...........................  (1) Five or more tank carloads of any one
                                                                        or any combination of materials
                                                                        poisonous by inhalation as defined in
                                                                        Title 49 CFR Sec.   171.8, and including
                                                                        anhydrous ammonia (UN1005) and ammonia
                                                                        solutions (UN3318); or
                                          ...........................  (2) 20 rail carloads or intermodal
                                                                        portable tank loads of any one or any
                                                                        combination of materials listed in (1)
                                                                        above, or, any Division 2.1 flammable
                                                                        gas, Class 3 flammable liquid or
                                                                        combustible liquid, Class 1.1 or 1.2
                                                                        explosive,\26\ or hazardous substance
                                                                        listed in 49 CFR 173.31(f)(2).
Docket No. DOT-OST-2014-0025. \27\        February 25, 2014; revised   Required those who offer crude oil for
                                           and amended Order on March   transportation by rail to ensure that
                                           6, 2014.                     the product is properly tested and
                                                                        classified in accordance with Federal
                                                                        safety regulations.\28\ The March 6,
                                                                        2014 Amended Emergency Restriction/
                                                                        Prohibition Order required that all rail
                                                                        shipments of crude oil that are properly
                                                                        classed as a flammable liquid in Packing
                                                                        Group (PG) III material be treated as PG
                                                                        I or II material, until further notice.
                                                                        The amended emergency order also
                                                                        instructed that PG III materials be
                                                                        described as PG III for the purposes of
                                                                        hazard communication.
Docket No. DOT-OST-2014-0067............  May 7, 2014................  Required all railroads that operate
                                                                        trains containing one million gallons or
                                                                        more of Bakken crude oil to notify SERCs
                                                                        about the operation of these trains
                                                                        through their States. Specifically,
                                                                        identify each county, or a particular
                                                                        state or commonwealth's equivalent
                                                                        jurisdiction (e.g., Louisiana parishes,
                                                                        Alaska boroughs, Virginia independent
                                                                        cities), in the state through which the
                                                                        trains will operate.
FRA Emergency Order No. 30..............  April 27, 2015.............  Mandated that trains affected by this
                                                                        order not exceed 40 miles per hour (mph)
                                                                        in high-threat urban areas (HTUAs) as
                                                                        defined in 49 CFR Part 1580. Under the
                                                                        order, an affected train is one that
                                                                        contains: (1) 20 or more loaded tank
                                                                        cars in a continuous block, or 35 or
                                                                        more loaded tank cars, of Class 3
                                                                        flammable liquid; and, (2) at least one
                                                                        DOT Specification 111 (DOT-111) tank car
                                                                        (including those built in accordance
                                                                        with Association of American Railroads
                                                                        (AAR) Casualty Prevention Circular 1232
                                                                        (CPC-1232)) loaded with a Class 3
                                                                        flammable liquid.
----------------------------------------------------------------------------------------------------------------

    On June 30, 2014 FRA published an information collection request 
(ICR) notice in the Federal Register, 79 FR 36860 with a 60-day comment 
period soliciting comments on the May 7, 2014 emergency order.\29\
---------------------------------------------------------------------------

    \29\ See http://www.gpo.gov/fdsys/pkg/FR-2014-06-30/html/2014-15174.htm.
---------------------------------------------------------------------------

    On August 29, 2014, FRA received a joint comment from the AAR and 
the American Short Line and Regional Railroad Association (ASLRRA) 
raising three main points. First, AAR and ASLRRA asserted that the 
crude oil routing information in the May 7, 2014 emergency order 
requires railroads to provide to SERCs sensitive information from a 
security perspective and the information should only be available to 
persons with a need-to-know for the

[[Page 26657]]

information (e.g., emergency responders and emergency response 
planners). Second, AAR and ASLRRA asserted that the same information is 
commercially sensitive information that should remain confidential and 
not be publically available. Finally, AAR and ASLRRA asserted that the 
emergency order is not serving a useful purpose as the information 
required by the emergency order to be provided to the SERCs is already 
provided to emergency responders through AAR Circular OT-55-N. See AAR, 
``Circular OT-55-N: Recommended Railroad Operating Practices For 
Transportation of Hazardous Materials,'' Aug. 5, 2013 (OT-55).
    On October 3, 2014, FRA published a 30-day ICR notice in the 
Federal Register, 79 FR 59891-59893 to extend the current emergency ICR 
supporting the crude oil train routing reporting requirements of the 
May 7, 2014 emergency order. In this notice, FRA addressed the security 
sensitive claim by noting that the information does not fall under any 
of the fifteen enumerated categories of sensitive security information 
(SSI) set forth in 49 CFR 15.5 or Sec.  1520.5. The ICR goes on to 
describe the nature of the information collection and its expected 
burden.
    On April 17, 2015 FRA issued Emergency Order (80 FR 23321) to 
require that certain trains transporting large amounts of Class 3 
flammable liquid through certain highly-populated areas adhere to a 
maximum authorized operating speed limit.\30\ Under Emergency Order, an 
affected train is one that contains (1) 20 or more loaded tank cars in 
a continuous block, or 35 or more loaded tank cars, of a Class 3 
flammable liquid; and (2) at least one DOT-111 tank car (including 
those built in accordance with CPC-1232) loaded with a Class 3 
flammable liquid. Affected trains must not exceed 40 mph in HTUAs as 
defined in 49 CFR 1580.3.
---------------------------------------------------------------------------

    \30\ See http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_2DA43BA3704E57F1958957625273D89A29FF0B00/filename/EO_30_FINAL.pdf.
---------------------------------------------------------------------------

    FRA issued Emergency Order in the interest of public safety to 
dictate that an appropriate speed restriction be placed on trains 
containing large quantities of a flammable liquid, particularly in 
areas where a derailment could cause a significant hazard of death, 
personal injury, or harm to the environment until the provisions of 
this final rule were issued and become effective. Further, by limiting 
speeds for certain higher risk trains, FRA also hopes to reduce in-
train forces related to acceleration, braking, and slack action that 
are sometimes the cause of derailments.
    Emergency Order not only applies to legacy DOT-111 tank cars but 
newer tank cars built to the CPC-1232 standard. While CPC-1232 tank 
cars have more robust protections than do legacy DOT-111 tank cars, 
recent accidents have shown that those cars may still release hazardous 
material when involved in derailments. Derailments in 2015 in Mt. 
Carbon, WV, Dubuque, IA, and Galena, IL involved CPC-1232 cars and 
resulted in the release of hazardous materials from those cars.
    Analysis of certain speed restrictions below 40 mph indicated that 
such restrictions could potentially cause harmful effects on interstate 
commerce, and actually increase safety risks. Increased safety risks 
could occur if speed restrictions cause rail traffic delays resulting 
in trains stopping on main track more often and in trains moving into 
and out of sidings more often requiring more train dispatching. FRA 
believes the restrictions in Emergency Order will address an emergency 
situation while avoiding other safety impacts and harm to interstate 
commerce and the flow of necessary goods to the citizens of the United 
States. FRA and DOT will continue to evaluate whether additional action 
with regard to train speeds is appropriate.

IV. Non-Regulatory Actions Addressing Rail Safety

    The August 1, 2014, NPRM extensively detailed non-regulatory 
actions taken to address the risks associated with rail shipment of 
large quantities of flammable liquids prior to the publication of that 
document. These non-regulatory actions included but were not limited 
to: (1) Safety Alerts and Advisories, (2) Operation Classification, (3) 
the DOT Secretary's Call to Action, and (4) PHMSA and FRA outreach and 
education efforts. Please refer to the ``Emergency Orders and Non-
Regulatory Actions'' section of August 1, 2014 NPRM or the PHMSA Web 
site \31\ for a description these non-regulatory efforts that are 
relevant to rail shipment of large quantities of flammable liquids. 
Below is a brief description of PHMSA and FRA efforts since the 
publication of the August 1, 2014 NPRM.
---------------------------------------------------------------------------

    \31\ See detailed chronology of PHMSA efforts at http://phmsa.dot.gov/hazmat/osd/chronology.
---------------------------------------------------------------------------

A. Safety Alerts and Advisories

    Safety advisories are documents published in the Federal Register 
that inform the public and regulated community of a potential dangerous 
situation or issue. In addition to safety advisories, PHMSA and FRA may 
also issue other notices, such as safety alerts. Please refer to the 
``Emergency Orders and Non-Regulatory Actions'' section of the August 
1, 2014, NPRM for a description of safety alerts and advisories that 
are relevant to rail shipment of large quantities of flammable liquids 
issued prior to the publication of the NPRM.
    On April 17, 2015 PHMSA issued a notice (Notice No. 15-7; 80 FR 
22781) to remind hazardous materials shippers and carriers of their 
responsibility to ensure that current, accurate and timely emergency 
response information is immediately available to emergency response 
officials for shipments of hazardous materials, and such information is 
maintained on a regular basis.\32\ This notice outlined existing 
regulatory requirements applicable to hazardous materials shippers 
(including re-offerors) and carriers found in the HMR, specifically in 
Subpart G of Part 172.
---------------------------------------------------------------------------

    \32\ See: http://www.gpo.gov/fdsys/pkg/FR-2015-04-23/pdf/2015-09436.pdf.
---------------------------------------------------------------------------

    PHMSA Notice 15-7 emphasized that the responsibility to provide 
accurate and timely information is a shared responsibility for all 
persons involved in the transportation of hazardous materials. It is a 
shipper's responsibility to provide accurate emergency response 
information that is consistent with both the information provided on a 
shipping paper and the material being transported. Likewise, re-
offerors of hazardous materials must ensure that this information can 
be verified to be accurate, particularly if the material is altered, 
mixed or otherwise repackaged prior to being placed back into 
transportation. In addition, carriers must ensure that emergency 
response information is maintained appropriately, is accessible and can 
be communicated immediately in the event of a hazardous materials 
incident.
    Also issued on April 17, 2015 was a joint FRA and PHMSA safety 
advisory notice (FRA Safety Advisory 2015-02; PHMSA Notice No. 15-11; 
80 FR 22778). This joint safety advisory notice was published to remind 
railroads operating an HHFT, defined as a train comprised of 20 or more 
loaded tank cars of a Class 3 flammable liquid in a continuous block, 
or a train with 35 or more loaded tank cars of a Class 3 flammable 
liquid across the entire train, as well as the offerors of Class 3 
flammable liquids transported on such trains, that certain information 
may be

[[Page 26658]]

required by PHMSA and/or FRA personnel during the course of an 
investigation immediately following an accident.
    Following recent derailments involving HHFTs, FRA and PHMSA 
conducted several post-accident investigations and sought to ensure 
that stakeholders were fully aware of each agency's investigative 
authority and cooperated with agency personnel conducting such 
investigations, where time is of the essence in gathering evidence. 
Therefore, PHMSA and FRA issued the joint safety advisory notice to 
remind railroads operating HHFTs, and offerors of Class 3 flammable 
liquids being transported aboard those trains, of their obligation to 
provide PHMSA and FRA, as expeditiously as possible, with information 
agency personnel need to conduct investigations immediately following 
an accident or incident.
    FRA issued a safety advisory notice 2015-01 (80 FR 23318) on April 
17, 2015 to make recommendations to enhance mechanical safety of tank 
cars in HHFTs.\33\ Recent derailments have occurred involving trains 
transporting large quantities of petroleum crude oil and ethanol. 
Preliminary investigation of the Galena, IL derailment involving a 
crude oil train indicates that a mechanical defect involving a broken 
tank car wheel may have caused or contributed to the incident. Safety 
Advisory 2015-01 recommended that railroads use highly qualified 
individuals to conduct the brake and mechanical inspections and 
recommends a reduction to the impact threshold levels the industry 
currently uses for wayside detectors that measure wheel impacts to 
ensure the wheel integrity of tank cars in those trains.
---------------------------------------------------------------------------

    \33\ See: http://www.gpo.gov/fdsys/pkg/FR-2015-04-27/pdf/2015-09612.pdf.
---------------------------------------------------------------------------

B. Operation Classification

    As part of PHMSA and FRA's overall rail safety efforts, the 
administration launched a testing and sampling program (Operation 
Classification) in August 2013 to verify that crude oil is being 
properly classified in accordance with Federal regulations. Early 
indications from the July 6, 2013, derailment in Lac-M[eacute]gantic 
were that the crude oil involved in that accident was misclassified. 
Specifically, the product was assigned a PG III classification (lowest 
hazard), despite meeting the criteria for PG II. Therefore, its hazards 
were not correctly identified. This was later confirmed by the 
Transportation Safety Board of Canada's (TSB) in Railway Investigation 
Report R13D0054 (Aug. 19, 2014).\34\
---------------------------------------------------------------------------

    \34\ See http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054.pdf.
---------------------------------------------------------------------------

    Operation Classification continues today, and activities include 
unannounced inspections, data collection, and sampling at strategic 
terminal and loading locations for crude oil. PHMSA investigators test 
samples from various points along the crude oil transportation chain: 
From cargo tanks that deliver crude oil to rail loading facilities, 
from storage tanks at the facilities, and from pipelines connecting 
storage tanks to rail cars that would move the crude across the 
country. Concurrently, with the publication of the August 1, 2014 NPRM, 
PHMSA issued an update on the results of PHMSA's sampling and testing 
effort. See Operation Safe Delivery Update.\35\ Based upon the results 
obtained from sampling and testing, the majority of crude oil analyzed 
displayed characteristics consistent with those of a Class 3 flammable 
liquid, PG I or II, with predominance to PG I, the most dangerous 
Packing Group of Class 3 flammable liquids with lower flash points and 
initial boiling points than packing groups II and III.
---------------------------------------------------------------------------

    \35\ See http://phmsa.dot.gov/pv_obj_cache/pv_obj_id_8A422ABDC16B72E5F166FE34048CCCBFED3B0500/filename/07_23_14_Operation_Safe_Delivery_Report_final_clean.pdf.
---------------------------------------------------------------------------

    Since the issuance of PHMSA's ``Operation Safe Delivery Update,'' 
PHMSA has continued its testing and sampling activities and refined the 
collection methods. PHMSA has purchased closed syringe-style cylinders 
and is collecting all samples using these cylinders. Utilizing these 
types of cylinders minimizes the opportunity for any dissolved gases to 
be lost to the air during collection, thus providing increased 
accuracy. In addition, PHMSA has taken samples at other shale play 
locations around the United States to compare their characteristics to 
that of crude oil from the Bakken region. PHMSA plans to provide 
subsequent updates of its testing and sampling activities as we move 
forward and to work with the regulated community to ensure the safe 
transportation of crude oil across the nation.
    As mentioned previously the primary intent of PHMSA's sampling and 
analysis of crude oil is to determine if shippers are properly 
classifying crude oil for transportation. PHMSA also uses this data to 
quantify the range of physical and chemical properties of crude oil. 
While the information and data obtained from the sampling and analysis 
helped quantify the range of physical and chemical properties of crude 
oil, this data did not inform the regulatory amendments in the August 
1, 2014, NPRM or this rulemaking.

C. Call to Action

    On January 9, 2014, the Secretary issued a ``Call to Action'' to 
actively engage all the stakeholders in the crude oil industry, 
including CEOs of member companies of API and CEOs of the railroads. In 
a meeting held on January 16, 2014, the Secretary and the 
Administrators of PHMSA and FRA requested that offerors and carriers 
identify prevention and mitigation strategies that can be implemented 
quickly. As a result of this meeting, the rail and crude oil industries 
agreed to voluntarily consider or implement potential improvements, 
including speed restrictions in high consequence areas, alternative 
routing, the use of distributive power to improve braking, and 
improvements in emergency response preparedness and training. On 
January 22, 2014, the Secretary sent a letter to the attendees 
recapping the meeting and stressing the importance of this issue.\36\ 
The August 1, 2014, NPRM provided a detailed listing of all voluntary 
actions the crude oil and rail industry agreed to take. See ``Emergency 
Orders and Non-Regulatory Actions'', 79 FR at 45031. Since the 
publication of the August 1, 2014, NPRM the following items \37\ 
related to the call to action have been completed.
---------------------------------------------------------------------------

    \36\ http://phmsa.dot.gov/pv_obj_cache/pv_obj_id_AAFF3C0BBA4D0B46209E5528662AC5427B6F0700/filename/Letter_from_Secretary_Foxx_Follow_up_to_January_16.pdf.
    \37\ This is not a comprehensive list. These items simply 
highlight some of the recently completed call to action items.
---------------------------------------------------------------------------

     Recommended Practice 3000 (RP 3000)--API published a new 
set of recommended practices for testing and classifying crude oil for 
rail shipment and loading it into rail tank cars. These guidelines were 
the product of extensive work and cooperation between the oil and gas 
industry, the freight rail industry, and PHMSA to ensure crude 
shipments are packaged appropriately, and emergency responders have the 
right information. RP 3000 provides guidance on the material 
characterization, transport classification, and quantity measurement 
for overfill prevention of petroleum crude oil for the loading of rail 
tank cars. RP 3000 identifies criteria for determining the frequency of 
sampling and testing of petroleum crude oil for transport 
classification. It discusses how to establish a sampling and testing 
program, and provides an example of such a program.

[[Page 26659]]

     Transportation Technology Center Inc. (TTCI) Training--AAR 
and Railroad Subscribers committed considerable resources to develop 
and provide a hazardous material transportation training curriculum 
applicable to petroleum crude oil transport for emergency responders. 
This training was completed in the summer of 2014 and continues to be 
refined.
     Speed Reduction--Railroads began operating certain trains 
at 40 mph on July 1, 2014. This voluntary restriction applies to any 
HHFT with at least one non-CPC 1232 tank car loaded with crude oil or 
one non-DOT specification tank car loaded with crude oil while that 
train travels within the limits of any high-threat urban area (HTUA) as 
defined by 49 CFR 1580.3.

D. Stakeholder Outreach

    PHMSA and FRA are taking a focused approach to increase community 
awareness and preparedness for response to incidents involving bulk 
transport of crude oil and other high-hazard flammable shipments by 
rail such as ethanol. Specific efforts have taken place to develop 
appropriate response outreach and training tools to mitigate the impact 
of future incidents. The following are some of the actions taken to by 
PHMSA to enhance emergency response to rail crude oil incidents over 
the past year.
    In February 2014, PHMSA hosted a stakeholder meeting with 
participants from the emergency response community, the railroad 
industry, Transport Canada and Federal partners FRA, and FMCSA. The 
objective was to discuss emergency preparedness related to incidents 
involving transportation of crude oil by rail. The discussion topics 
included: Current state of crude oil risk awareness and operational 
readiness/capability; familiarity with bulk shippers of crude oil, 
emergency response plans and procedures; available training resources 
(sources, accessibility, gaps in training); and the needs of emergency 
responders/public safety agencies.
    In May 2014, in conjunction with the Virginia Department of Fire 
Programs, PHMSA hosted a ``Lessons Learned'' Roundtable forum that 
consisted of a panel of fire chiefs and emergency management officials 
from some of the jurisdictions that experienced a crude oil or ethanol 
rail transportation incident. The purpose of this forum was to share 
firsthand knowledge about their experiences responding to and managing 
these significant rail incidents. In attendance were public safety 
officials from Aliceville, AL, Cherry Valley, IL, Cass County, ND, and 
the Lynchburg, VA fire department. Based on the input received from the 
forum participants, PHMSA published a ``Crude Oil Rail Emergency 
Response Lessons Learned Roundtable Report'' outlining the key factors 
that were identified as having a direct impact on the successful 
outcome of managing a crude oil transportation incident.\38\
---------------------------------------------------------------------------

    \38\ See http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_0903D018579BF84E6914C0BB932607F5B3F50300/filename/Lessons_Learned_Roundtable_Report_FINAL_070114.pdf.
---------------------------------------------------------------------------

    In June 2014, in partnership with FRA and the U.S. Fire 
Administration (USFA), PHMSA hosted a stakeholder meeting with 
hazardous materials response subject matter experts from the public 
safety, railroads, government, and industry to discuss best practices 
for responding to a crude oil incident by rail. In coordination with 
the working group, PHMSA drafted the ``Commodity Preparedness and 
Incident Management Reference Sheet.'' This document contains incident 
management best practices for crude oil rail transportation emergency 
response operations that include a risk-based hazardous materials 
emergency response operational framework. The framework provides first 
responders with key planning, preparedness, and response principles to 
successfully manage a crude oil rail transportation incident. The 
document also assists fire and emergency services personnel in 
decision-making and developing an appropriate response strategy to an 
incident (i.e., defensive, offensive, or non-intervention).\39\ In 
partnership with the USFA's, National Fire Academy (NFA), a series of 
six coffee break training bulletins were published and widely 
distributed to the emergency response community providing reference to 
the response document.\40\
---------------------------------------------------------------------------

    \39\ This document has been widely distributed throughout the 
emergency response community and is also available on the PHMSA 
Operation Safe Delivery Web site at http://www.phmsa.dot.gov/hazmat/osd/emergencyresponse.
    \40\ See http://www.usfa.fema.gov/training/coffee_break/hazmat_index.html.
---------------------------------------------------------------------------

    In October 2014, to further promote the ``Commodity Preparedness 
and Incident Management Reference Sheet,'' PHMSA contracted with the 
Department of Energy, Mission Support Alliance-Hazardous Materials 
Management and Emergency Preparedness (MSA-HAMMER) to develop the 
Transportation Rail Incident Preparedness and Response (TRIPR) for 
Flammable Liquid Unit Trains training modules. These modules along with 
three table-top scenarios offer a flexible approach to increasing 
awareness of emergency response personnel on the best practices and 
principles related to rail incidents involving hazard class 3 flammable 
liquids. A key component of this initiative is to learn from past 
experiences and to leverage the expertise of public safety agencies, 
rail carriers, and industry subject matter experts in order to prepare 
first responders to safely manage rail incidents involving commodities 
such as crude oil and ethanol. These modules are not intended to be a 
stand alone training program, but are offered to supplement existing 
programs. Estimated delivery for this project is May 2015.
    In December 2014, PHMSA re-engaged the emergency response 
stakeholder group to allow all parties Federal government, the railroad 
industry and the response community to provide updates on the various 
emergency response related initiatives aimed to increase community 
awareness and preparedness for responding to incidents involving crude 
oil and other high-hazard flammable shipments by rail.
    In addition to PHMSA's efforts mentioned above, in January 2015, 
The National Response Team (NRT), led by Environmental Protection 
Agency (EPA), conducted a webinar titled ``Emerging Risks, Responder 
Awareness Training for Bakken Crude Oil'' to educate responders on 
Bakken Crude Oil production and transportation methods along with the 
health and safety issues facing first responders. In addition to the 
training webinar, the NRT also intends to conduct a large scale 
exercise scenario in 2015, to assess federal, state, and local response 
capabilities to a crude oil incident.
    Also in January 2015, the Environmental Protection Agency (EPA) 
along with other Federal partners including FEMA, USCG, DOE, DOT, and 
DHS hosted conference calls with state officials and representatives 
from the appropriate offices, boards, or commissions (emergency 
response and planning, environmental cleanup, energy, and 
transportation) that play a role in preparing or responding to an 
incident involving crude-by-rail. The purpose of these discussions was 
to gain better understanding of how states are preparing to respond to 
incidents involving crude oil by rail and to identify key needs from 
each state. Questions centered on what actions (planning, training, 
exercises, etc.) have been planned or conducted in the state and/or 
local communities, what communities or areas have the greatest risk, 
regional actions or activities states have participated in, and any 
other related concerns states would like to discuss.

[[Page 26660]]

    Complementing the Federal government's efforts, the railroad 
industry has also taken on the challenge to address crude oil response. 
API has built new partnerships between rail companies and oil 
producers. At the request of FRA, the API is currently developing an 
outreach program to deliver training to first responders throughout the 
U.S., particularly in states that have seen a rise in crude oil by 
rail. This includes working with oil and rail industry members to 
identify where existing training initiatives and conferences can be 
utilized to provide the training to as many responders as possible. 
Lastly, the AAR and API are working together to produce a crude oil by 
rail safety training video through their partnership with 
Transportation Community Awareness and Emergency Response (TRANSCAER).
    Moving forward, both the railroad industry and the Federal 
government will continue their efforts to increase preparedness for 
responding to not only crude oil, but all high-hazard flammable 
shipments by rail. The stakeholder group will aim to meet again in the 
spring of 2015 under the unified goal to provide first responders with 
the key information needed to effectively prepare for and manage the 
consequences incidents involving bulk shipments of energy products by 
rail.
    In the meantime, PHMSA will continue its efforts to increase 
community awareness and emergency preparedness through public outreach 
to state and local emergency responder communities, sustained 
engagement with experts from emergency response and industry 
stakeholder groups, and participating on interagency working groups.

V. NTSB Safety Recommendations

    As previously discussed, in addition to the efforts of PHMSA and 
FRA, the NTSB has taken a very active role in identifying the risks 
posed by the transportation of large quantities of flammable liquids by 
rail. The NPRM for this rulemaking detailed the actions and 
recommendations of the NTSB. Since the publication of the August 1, 
2014 NPRM, the NTSB has issued additional rail-related safety 
recommendations. The table below provides a summary of the rail-related 
NTSB Safety Recommendations and identifies the effect of this action on 
those recommendations, including those issued to PHMSA and FRA after 
the issuance of the August 1, 2014 NPRM. It should be noted that 
although some of these recommendations are not addressed in this 
rulemaking they are being addressed through other actions, for example, 
development of guidance materials, outreach to the regulated community, 
and conducting research projects. Further, some are being considered 
for other future rulemaking action.

                                Table 9--Rail-Related NTSB Safety Recommendations
----------------------------------------------------------------------------------------------------------------
           NTSB Recommendation                             Summary                     Addressed in this rule?
----------------------------------------------------------------------------------------------------------------
R-07-4, Issued April 27, 2007...........  Recommends that PHMSA, with the            No.
                                           assistance of FRA, require that
                                           railroads immediately provide to
                                           emergency responders accurate, real-time
                                           information regarding the identity and
                                           location of all hazardous materials on a
                                           train.
R-12-5, Issued March 2, 2012............  Recommends that PHMSA require all newly    Yes.
                                           manufactured and existing general
                                           service tank cars authorized for
                                           transportation of denatured fuel ethanol
                                           and crude oil in PGs I and II have
                                           enhanced tank head and shell puncture
                                           resistance systems and top fittings
                                           protection that exceed existing design
                                           requirements for DOT Specification 111
                                           (DOT-111) tank cars.
R-12-6, Issued March 2, 2012............  Recommends that PHMSA require all bottom   Yes.
                                           outlet valves used on newly manufactured
                                           and existing non-pressure tank cars are
                                           designed to remain closed during
                                           accidents in which the valve and
                                           operating handle are subjected to impact
                                           forces.
R-12-7, Issued March 2, 2012............  Recommends that PHMSA require all newly    No.*
                                           manufactured and existing tank cars
                                           authorized for transportation of
                                           hazardous materials have center sill or
                                           draft sill attachment designs that
                                           conform to the revised AAR design
                                           requirements adopted as a result of
                                           Safety Recommendation R-12-9.
R-12-8, Issued March 2, 2012............  Recommends that PHMSA inform pipeline      Closed.**
                                           operators about the circumstances of the
                                           accident and advise them of the need to
                                           inspect pipeline facilities after
                                           notification of accidents occurring in
                                           railroad rights-of-way.
R-14-1, Issued January 23, 2014.........  Recommends that FRA work with PHMSA to     Yes.
                                           expand hazardous materials route
                                           planning and selection requirements for
                                           railroads under the HMR to include key
                                           trains transporting flammable liquids as
                                           defined by the AAR Circular No. OT-55-N
                                           and, where technically feasible, require
                                           rerouting to avoid transportation of
                                           such hazardous materials through
                                           populated and other sensitive areas.
R-14-2, Issued January 23, 2014.........  Recommends that FRA develop a program to   No.***
                                           audit response plans for rail carriers
                                           of petroleum products to ensure that
                                           adequate provisions are in place to
                                           respond to and remove a worst-case
                                           discharge to the maximum extent
                                           practicable and to mitigate or prevent a
                                           substantial threat of a worst-case
                                           discharge.
R-14-3, Issued January 23, 2014.........  Recommends that FRA audit shippers and     Closed.
                                           rail carriers of crude oil to ensure
                                           they are using appropriate hazardous
                                           materials shipping classifications, have
                                           developed transportation safety and
                                           security plans, and have made adequate
                                           provision for safety and security.
R-14-4, Issued January 23, 2014.........  Recommends that PHMSA work with FRA to     Yes.
                                           expand hazardous materials route
                                           planning and selection requirements for
                                           railroads under Title 49 Code of Federal
                                           Regulations 172.820 to include key
                                           trains transporting flammable liquids as
                                           defined by the AAR Circular No. OT-55-N
                                           and, where technically feasible, require
                                           rerouting to avoid transportation of
                                           such hazardous materials through
                                           populated and other sensitive areas.
R-14-5, Issued January 23, 2014.........  Recommends that PHMSA revise the spill     No.***
                                           response planning thresholds contained
                                           in Title 49 Code of Federal Regulations
                                           Part 130 to require comprehensive
                                           response plans to effectively provide
                                           for the carriers' ability to respond to
                                           worst-case discharges resulting from
                                           accidents involving unit trains or
                                           blocks of tank cars transporting oil and
                                           petroleum products.
R-14-6, Issued January 23, 2014.........  Recommends that PHMSA require shippers to  Yes.
                                           sufficiently test and document the
                                           physical and chemical characteristics of
                                           hazardous materials to ensure the proper
                                           classification, packaging, and record-
                                           keeping of products offered in
                                           transportation.

[[Page 26661]]

 
R-14-14, Issued January 23, 2014........  Recommends that PHMSA require railroads    Partially.
                                           transporting hazardous materials through
                                           communities to provide emergency
                                           responders and local and state emergency
                                           planning committees with current
                                           commodity flow data and assist with the
                                           development of emergency operations and
                                           response plans.
R-14-18, Issued August 22, 2014.........  Recommends that PHMSA take action to       No.
                                           ensure that emergency response
                                           information carried by train crews is
                                           consistent with and is at least as
                                           protective as existing emergency
                                           response guidance provided in the
                                           Emergency Response Guidebook.
R-14-19, Issued August 22, 2014.........  Recommends that PHMSA require railroads    No.
                                           transporting hazardous materials to
                                           develop, implement, and periodically
                                           evaluate a public education program
                                           similar to Title 49 Code of Federal
                                           Regulations Parts 192.616 and 195.440
                                           for the communities along railroad
                                           hazardous materials routes.
R-14-20, Issued August 22, 2014.........  Recommends that PHMSA collaborate with     No.
                                           FRA and ASLRRA and Regional Railroad
                                           Association to develop a risk assessment
                                           tool that addresses the known
                                           limitations and shortcomings of the Rail
                                           Corridor Risk Management System software
                                           tool.
R-14-21, Issued August 22, 2014.........  Recommends that PHMSA collaborate with     No.
                                           FRA and ASLRRA and Regional Railroad
                                           Association to conduct audits of short
                                           line and regional railroads to ensure
                                           that proper route risk assessments that
                                           identify safety and security
                                           vulnerabilities are being performed and
                                           are incorporated into a safety
                                           management system program.
R-15-14, Issued April 6, 2015...........  Require that all new and existing tank     Yes.
                                           cars used to transport all Class 3
                                           flammable liquids be equipped with
                                           thermal protection systems that meet or
                                           exceed the thermal performance standards
                                           outlined in Title 49 Code of Federal
                                           Regulations 179.18(a) and are
                                           appropriately qualified for the tank car
                                           configuration and the commodity
                                           transported.
R-15-15, Issued April 6, 2015...........  Require that all new and existing tank     Yes.
                                           cars used to transport all Class 3
                                           flammable liquids be equipped with
                                           appropriately sized pressure relief
                                           devices that allow the release of
                                           pressure under fire conditions to ensure
                                           thermal performance that meets or
                                           exceeds the requirements of Title 49
                                           Code of Federal Regulations 179.18(a),
                                           and that minimizes the likelihood of
                                           energetic thermal ruptures.
R-15-16, Issued April 6, 2015...........  Require an aggressive, intermediate        Partially.
                                           progress milestone schedule, such as a
                                           20 percent yearly completion metric over
                                           a 5-year implementation period, for the
                                           replacement or retrofitting of legacy
                                           DOT-111 and CPC-1232 tank cars to
                                           appropriate tank car performance
                                           standards, that includes equipping these
                                           tank cars with jackets, thermal
                                           protection, and appropriately sized
                                           pressure relief devices.
R-15-17, Issued April 6, 2015...........  Establish a publicly available reporting   Partially.
                                           mechanism that reports at least
                                           annually, progress on retrofitting and
                                           replacing tank cars subject to thermal
                                           protection system performance standards
                                           as recommended in safety recommendation
                                           R-15-16.
----------------------------------------------------------------------------------------------------------------
* Under R-12-9, NTSB recommends that AAR: Review the design requirements in the AAR Manual of Standards and
  Recommended Practices C-III, ``Specifications for Tank Cars for Attaching Center Sills or Draft Sills,'' and
  revise those requirements as needed to ensure that appropriate distances between the welds attaching the draft
  sill to the reinforcement pads and the welds attaching the reinforcement pads to the tank are maintained in
  all directions in accidents, including the longitudinal direction. These design requirements have not yet been
  finalized by the AAR.
** On July 31, 2012, PHMSA published an advisory bulletin in the Federal Register to all pipeline operators
  alerting them to the circumstances of the Cherry Valley derailment and reminding them of the importance of
  assuring that pipeline facilities have not been damaged either during a railroad accident or other event
  occurring in the right-of-way. 77 FR 45417. This recommendation was closed by NTSB on September 20, 2012. This
  action is accessible at the following URL: http://phmsa.dot.gov/pipeline/regs/ntsb/closed.
*** On August 1, 2014, PHMSA in consultation with FRA published an ANPRM, 79 FR 45079, which was responsive to
  these recommendations.

    The Department believes this comprehensive rulemaking significantly 
improves the safety of trains carrying flammable liquids and addresses 
many on NTSB's rail related recommendations. Following the publication 
of this rulemaking, PHMSA will issue a formal response to NTSB 
regarding the recommendations above and how the provisions of this 
rulemaking address those recommendations.
    In addition to the NTSB recommendations above, the Government 
Accountability Office (GAO), in August 2014, issued a report entitled 
``Department of Transportation is Taking Actions to Address Rail 
Safety, but Additional Actions Are Needed to Improve Pipeline Safety.'' 
\41\ While the primary GAO recommendations of this report were related 
to pipeline safety, PHMSA and FRA believes this rulemaking addresses 
rail related issues raised in this report.
---------------------------------------------------------------------------

    \41\ See http://www.gao.gov/assets/670/665404.pdf.
---------------------------------------------------------------------------

VI. Incorporation by Reference Discussion Under 1 CFR Part 51

    The American Association of Railroads (AAR) Manual of Standards and 
Recommended Practices, Section C--Part III, Specifications for Tank 
Cars, Specification M-1002, (AAR Specifications for Tank Cars) 
reference is available for interested parties to purchase in either 
print or electronic versions through the parent organization Web site. 
The price charged for this standard helps to cover the cost of 
developing, maintaining, hosting, and accessing this standard. This 
specific standard is discussed in greater detail in the following 
analysis.

VII. Summary and Discussion of Public Comments

    In the August 1, 2014, NPRM, PHMSA solicited public comment on 
whether the potential amendments would enhance safety and clarify the 
HMR with regard to rail transport as well as the cost and benefit 
figures associated with these proposals. PHMSA received 3,209 
submissions representing more than 181,500 individuals. Comments were 
received from a broad array of stakeholders, including trade 
organizations, railroads, intermodal carriers, logistic companies, rail

[[Page 26662]]

customers, tank car manufacturers, parts suppliers, consultants, law 
firms, environmental groups, labor organizations, non-government or 
advocacy organizations, local government organizations or 
representatives, tribal governments, state governments, Members of 
Congress, and other interested members of the public. Several 
organizations attached the views of some of their individual members: 
Credo Action (71,900 attached comments), Forest Ethics (5,817 attached 
comments) and Center for Biological Diversity (22,981 attached 
comments), for example. Other organizations submitted a comment with 
attached membership signatures, such as: the Sierra Club (61,998 
signatures), Forest Ethics petition (8,820 signatures), Public Citizen 
(3,080 signatures), for example. All comments and corresponding 
rulemaking materials received may be viewed on the www.regulations.gov 
Web site, docket ID PHMSA-2012-0082.
    Many comments received in response to the NPRM are: (1) General 
statements of support or opposition; (2) personal anecdotes or general 
statements that do not address a specific aspect of the proposed 
changes; (3) comments that are beyond the scope or authority of the 
proposed regulations; or (4) identical or nearly identical letter 
write-in campaigns sent in response to comment initiatives sponsored by 
different organizations. The remaining comments reflect a wide variety 
of views on the merits of particular sections of the proposed 
regulations. Many include substantive analyses and arguments in support 
of or in opposition to the proposed regulations. The substantive 
comments received on the proposed regulations are organized by topic, 
and discussed in the appropriate section, together with the PHMSA's 
response to those comments.

                                   Table 10--Overall Commenter Breakdown \42\
----------------------------------------------------------------------------------------------------------------
            Commenter background               Docket IDs      Signatories   Description and example of category
----------------------------------------------------------------------------------------------------------------
Non-Government Organization................              58         171,602  Primarily environmental groups, but
                                                                              includes other Non-Governmental
                                                                              Organizations (NGOs) such as
                                                                              hobby, labor, safety organization,
                                                                              etc.
Individuals................................           2,695           9,364  Public submissions not directly
                                                                              representing a specific
                                                                              organization.
Industry stakeholders......................             286             318  Trade organizations, railroads,
                                                                              intermodal carriers, logistic
                                                                              companies, rail customers, tank
                                                                              car manufacturers, parts
                                                                              suppliers, consultants, etc.
Government organizations or representatives             170             238  Local, state, tribal governments or
                                                                              representatives, NTSB, U.S.
                                                                              Congress members, etc.
                                            --------------------------------
    Total..................................           3,209         181,522
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \42\ It should be noted that there may be some double-counting 
as individuals may have submitted comments individually and as 
signatories to NGO or industry stakeholder comments.
---------------------------------------------------------------------------

    Resolution of the comments are discussed within each appropriate 
section of the final rule (e.g. tank car, speed, braking, etc.)

A. Miscellaneous Relevant Comments

1. Harmonization
    Almost unanimously, commenters on all sides of the issues stressed 
the need to introduce harmonized standards for the rail transport of 
flammable liquids. Rail transport is a cross-border issue. Flammable 
liquids regularly cross the U.S./Canadian border using an 
interconnected rail network.\43\ It is essential to have a 
harmonization approach. In addition, as substantial capital investment 
will be required to retrofit existing cars and manufacture new cars 
both the U.S. DOT and Transport Canada have worked diligently to ensure 
our standards are compatible and do not create barriers to movement.
---------------------------------------------------------------------------

    \43\ Flammable liquids cross the U.S./Mexican border by rail to 
a considerably lesser extent than U.S./Canada shipments. 
Furthermore, the HMR requires all shipments to/from Mexico must be 
in full conformance with U.S. Regulations.
---------------------------------------------------------------------------

    Staff at Transport Canada, PHMSA, and FRA have traditionally 
interacted on a frequent basis to ensure harmonized efforts. In light 
of the significant rulemaking efforts underway in the past year in both 
countries, this interaction has expanded regarding rail safety efforts 
and the technical aspects of the rulemakings.
    In addition to informal staff level discussion, the DOT and 
Transport Canada have held more formal discussions through the 
Regulatory Cooperation Council with regard to improvements to rail 
safety. Further, leadership at both DOT and Transport Canada have met 
frequently to discuss harmonization efforts. Finally, Secretary Foxx 
and Transport Minister Lisa Riatt have met on multiple occasions to 
specifically discuss the topics addressed in this rulemaking.

Conclusion

    PHMSA and FRA believe these discussions have led to the development 
of a harmonized final rulemaking that will not create any barriers to 
cross border transportation. To the extent possible, the amendments 
proposed by PHMSA and FRA in this final rule have been harmonized with 
Canadian regulatory requirements. The table below provides a summary of 
the areas covered by this rule and corresponding Canadian efforts.

                              Table 11--United States and Canada Harmonized Efforts
----------------------------------------------------------------------------------------------------------------
                Issue                       U.S. position          Canadian position      Harmonization impacts
----------------------------------------------------------------------------------------------------------------
Scope................................  A continuous block of    Tank Car Provisions      Not Harmonized--Due to
                                        20 or more tank cars     apply to a single tank   cost implications in
                                        or 35 or more cars       car.                     using a risk-based
                                        dispersed through a                               standard of one car.
                                        train loaded with a
                                        flammable liquid.
New Tank Car Specification...........  See Table 18 as Canada   See Table 18 as Canada   Fully Harmonized.
                                        and U.S. are             and U.S. are
                                        harmonized fully on      harmonized fully on
                                        this issue.              this issue.

[[Page 26663]]

 
Existing Tank Car Specification......  See Table 19--Enhanced   See Table 19--Enhanced   Fully Harmonized.
                                        CPC-1232.                CPC-1232.
Retrofit Timeline....................  See Table 21. Requires   Except for the first     Harmonized except for
                                        a retrofitting           phase of the retrofit    first phase.
                                        progress report          schedule Transport
                                        provided initial         Canada and the U.S.
                                        milestone is not met.    have harmonized
                                                                 retrofit schedules and
                                                                 similar retrofit
                                                                 reporting
                                                                 requirements.
                                                                 Transport Canada also
                                                                 includes a
                                                                 retrofitting progress
                                                                 report.
Braking..............................  (1) Requires HHFTs to    Requires a Two-way End   Not Currently
                                        have in place a          of Train Device (EOT)    Harmonized--Transport
                                        functioning two-way      as per the Railway       Canada and the United
                                        EOT device or a DP       Freight and Passenger    States will continue
                                        braking system. (2)      Train Brake Inspection   to work towards
                                        Requires any HHFUT       and Safety Rules. A      harmonized approach on
                                        transporting at least    two-way EOT may be a     braking.
                                        one PG I flammable       Sense Braking Unit
                                        liquid be operated       (SBU) or a locomotive
                                        with an ECP braking      functioning as
                                        system by January 1,     distributive braking
                                        2021. (3) Requires all   power, as per the U.S.
                                        other HHFUTs be          definition. Transport
                                        operated with an ECP     Canada will continue
                                        braking system by May    to work with Canadian
                                        1, 2023.                 industry in order to
                                                                 determine a harmonized
                                                                 Canadian braking
                                                                 requirement.
Routing..............................  HHFT carriers must       Transport Canada         Harmonized to the
                                        perform a routing        required carriers to     extent needed--While
                                        analysis that            complete a risk          the applicability of
                                        considers a minimum of   assessment within six    the requirements and
                                        27 safety and security   months of the issuance   specifics of the risk
                                        factors. The carrier     of an emergency          analysis on both sides
                                        must select a route      directive to assess      of the border are
                                        based on findings of     the risk associated      different, they
                                        the route analysis.      with each ``Key          generally focused on
                                                                 Route'' a ``Key          the same types of
                                                                 Train'' operates.        shipments and cover
                                                                                          the same overarching
                                                                                          aspects.
Notification.........................  Notification             Transport Canada issued  Harmonized to the
                                        requirements are         a Protective Direction   extent needed--While
                                        already included in      32 directing rail        harmonization is not
                                        the routing              companies to share       essential on this
                                        requirements;            information with         issue, DOT and
                                        therefore a stand-       municipalities to help   Transport Canada are
                                        alone provision is       emergency response       fundamentally aligned
                                        unnecessary.             planning, risk           on the principles of
                                                                 assessment and first     notification.
                                                                 responder training.
Speed................................  A 50-mph maximum speed   Transport Canada issued  Harmonization not
                                        restriction for all      an Emergency Directive   essential--This
                                        HHFTs. A 40-mph speed    requiring all            operational issue can
                                        restriction for HHFTs    companies not operate    be handled separately
                                        operating in a HTUA      a Key Train at a speed   on either side of the
                                        unless all flammable     that exceeds 50 mph      border.
                                        liquid tank cars meet    and not in excess of
                                        the new or retrofitted   40 mph in Census
                                        tank car standards.      Metropolitan Areas.
Classification.......................  A classification         Transport Canada has     Harmonized to extent
                                        program for unrefined    adopted a requirements   needed--DOT and TC are
                                        petroleum-based          to: (1) Provide a        fully aligned with
                                        products.                proof of                 regard to shipper's
                                                                 classification, on       certifications. With
                                                                 reasonable notice by     regard to sampling
                                                                 the Minister for any     plans TC is
                                                                 dangerous goods; and     considering adoption
                                                                 (2) Classify petroleum   of a classification
                                                                 crude oil and            plan similar to DOT.
                                                                 petroleum products on
                                                                 the basis of sampling
                                                                 and make available to
                                                                 the Minister of
                                                                 Transport, the
                                                                 sampling procedures
                                                                 and conditions of any
                                                                 given shipment.
----------------------------------------------------------------------------------------------------------------

2. Definition of High-Hazard Flammable Train
    In the September 6, 2013, ANPRM we asked several questions 
regarding AAR Circular No. OT-55-N including if we should incorporate 
the ``key train'' requirements into the HMR, or if it should be 
expanded to include trains with fewer than 20 cars. Several commenters 
indicated that additional operational requirements should be based upon 
the definition for a ``key train'' as provided by AAR Circular No. OT-
55-N. Further, Appendix A to Emergency Order No. 28 mirrors the 
definition for a ``key train'' as provided by AAR Circular No. OT-55-N.
    While Appendix A to Emergency Order No. 28 and the revised 
definition of a ``key train'' under AAR Circular No. OT-55-N both 
include Division 2.1 (flammable gas) materials and combustible liquids, 
PHMSA did not propose to include them in the definition of a ``high-
hazard flammable train'' in the August 1, 2014, NPRM. Rather, PHMSA and 
FRA proposed to define a high-hazard flammable train to mean a single 
train carrying 20 or more carloads of a Class 3 flammable liquid. PHMSA 
and FRA asked for specific comment on this definition in the August 1, 
2014, NPRM.
    In response to the proposed amendments to routing, we received a 
variety of comments representing differing viewpoints. Specifically, we 
received comments representing 62,882 signatories regarding the 
definition of an HHFT. The definition of a ``high-hazard flammable 
train'' is a critical aspect for this rulemaking as many of the 
requirements are tied to that threshold. The table below details the 
types and amounts of commenters on the HHFT definition.

[[Page 26664]]



             Table 12--Commenter Composition: HHFT Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................          62,038
Individuals.............................................             549
Industry stakeholders...................................             200
Government organizations or representatives.............              95
                                                         ---------------
  Totals................................................          62,882
------------------------------------------------------------------------

    Below are some examples from commenters that demonstrate the range 
of opinions on the HHFT definition as it relates specifically to 
operational controls.\44\
---------------------------------------------------------------------------

    \44\ Other comments/commenters have expressed stances on the 
HHFT definition as it applies specifically to tank car enhancements 
that may differ from those discussed in reference to operational 
controls.
---------------------------------------------------------------------------

    Comments from the concerned public, local government, tribal 
communities, towns and cities voiced concern with the 20-car threshold, 
and that the 20-car threshold is an arbitrary number that is not 
justified in the NPRM. With regard to alternative scopes for this 
rulemaking, this group of commenters had varied opinions. Some even 
suggested that a train consisting of one or more tank cars carrying 
crude oil or any other hazardous material should be classified as an 
HHFT.
    Tribal communities, such as the Quinault Indian Nation and the 
Prairie Island Indian Community felt the proposed threshold was 
sufficient but could be even more stringent. Specifically, the Prairie 
Island Indian Community supported, ``designating trains carrying more 
than 20 tank cars of flammable liquids as ``high-hazard flammable train 
(HHFT).'' The Quinault Indian Nation preferred a threshold of a single 
tank car.
    Environmental Groups such as the Sierra Club, Environmental 
Advocates of New York, Earthjustice, the Natural Resources Defense 
Council, Forest Keepers, and Oil Change had strong opinions about this 
threshold and the need to be more stringent. The Sierra Club noted that 
there are known risks associated with trains transporting less than 20 
tank cars loaded with crude oil, particularly in legacy DOT-111 tank 
cars. The Environmental Advocates of New York suggested eliminating the 
combustible liquid exception for rail transportation to capture those 
materials. Finally, a joint comment from Earthjustice, Sierra Club, the 
Natural Resources Defense Council, Forest Keepers, and Oil Change 
suggested in addition to lowering the threshold for defining an HHFT, 
ensuring that diluted bitumen (``dilbit'') is included in any amount 
towards this definition. Overall environmental groups supported a 
threshold below 20 tank cars loaded with Class 3 (flammable liquid) 
materials.
    The NTSB suggested using a pre-existing industry standard for route 
planning, but does not support the use of the 20 tank car threshold for 
other purposes. Specifically, their proposal was to align the HHFT 
definition to the OT-55N ``Key Train'' definition (20 tank cars loaded 
with any combination of hazardous materials) for Routing. With regard 
to tank car specifications and retrofits, the NTSB supports a single 
tank car approach.
    Industry stakeholders took issue with the term ``high-hazard 
flammable train'' and the term's connotation. The hazmat shipping 
industry provided a variety of suggestions with most of them indicating 
that there would be difficulty in determining if a train would meet the 
proposed definition of an HHFT prior to shipment. The hazmat shipping 
industry had issues with the ambiguity of the definition for HHFT. Most 
in the hazmat shipping industry thought the definition would 
inadvertently include manifest trains that did not pose as high a risk 
as unit trains. It was also noted that in many situations it would be 
difficult to pre-determine when an HHFT would be used. The Dangerous 
Goods Advisory Council (DGAC) stated that the term ``HHFT'' is not in 
use within the industry and may be confused with other terminology such 
as ``unit train,'' ``manifest train,'' or ``key train.'' Proposed 
definitions from the hazmat shipping industry included:
     Trains consisting of 20 or more tank cars loaded with 
crude oil or ethanol originating from one consignee to one consignor 
without intermediate handling.
     A train carrying a continuous block of 20 or more cars of 
crude oil or ethanol.
     A unit or block train transporting only loaded crude oil 
and/or ethanol tank cars shipped from a single point of origin to a 
single destination without being split up or stored en route.
    Amongst the rail industry, there was wide agreement that the HHFT 
definition proposed at the NPRM stage is not a workable definition. The 
rail industry had issues with the ambiguity of the definition for HHFT. 
Like the shipping industry, most in the rail industry thought the 
definition would inadvertently include manifest trains that did not 
pose as high a risk as unit trains. The rail industry noted that in 
many situations it would be difficult to pre-determine when an HHFT 
would be used. There were many comments from the tank car construction 
and rail industries suggesting the construction of tank cars not be 
tied to the definition of an HHFT. Specifically, those comments noted 
the HHFT definition should only be applied to operational requirements. 
Some claimed this would shift the scope of the requirements to ``unit 
trains'' as opposed to capturing ``manifest trains.'' Finally, AAR 
estimated (based on Class I railroads reports) that 20 to 60 percent of 
their trains containing 20 or more tank cars of flammable liquids are 
in fact ``manifest trains.'' It was also noted that the emphasis of the 
NPRM and other voluntary agreements has been on crude oil and ethanol. 
AAR provided the following suggested definition as a prospective 
solution: ``20 or more tank cars in block or 35 tank cars across the 
train consist loaded with a flammable liquid.'' AAR claimed this 
definition would focus on the unit train risk while eliminating the 
inadvertent inclusion of manifest trains.
    PHMSA and FRA agree with many comments regarding this issue and the 
need to refine the definition. Therefore, in this final rule, PHMSA and 
FRA are adopting a revised definition for a high-hazard flammable 
train. The adopted definition of an HHFT is as follows:

    A High-Hazard Flammable Train means a single train transporting 
20 or more loaded tank cars containing Class 3 flammable liquid in a 
continuous block or a single train carrying 35 or more loaded tank 
cars of a Class 3 flammable liquid throughout the train consist.

    This revision is based on further justification of the threshold, 
the intent of the definition, and operational concerns raised by 
commenters. Each of these will be discussed further below.
    With regard to the inclusion of all hazardous materials as opposed 
to just flammable liquids in the definition of an HHFT, PHMSA and FRA 
proposed to limit the definition to Class 3 Flammable liquids in the 
August 1, 2014, NPRM. Because the NPRM limited the definition to Class 
3 Flammable liquids, we feel expanding the definition to include all 
hazardous materials is beyond the scope of the NPRM and thus we are 
unable to include all hazardous materials in this final rule. Further, 
as evidenced with the incidents detailed in the RIA, we believe the 
risk posed by the bulk shipments of flammable liquids in DOT 
specification 111 tank cars should be included in this final rule but a 
similar risk has not currently been identified with other hazardous 
materials.
    PHMSA and FRA did not intend the proposed definition in the NPRM to 
include lower risk manifest trains and

[[Page 26665]]

had crafted the definition with the idea of capturing the higher risk 
associated with bulk shipments. This rulemaking action is focused on 
the risks associated with large blocks of hazardous materials. 
Flammable liquids, specifically crude oil and ethanol, are the only 
type of commodity frequently transported in this configuration. The 
risk of flammability is compounded in the context of rail 
transportation because petroleum crude oil and ethanol are commonly 
shipped in large blocks or single commodity trains (unit trains). In 
recent years, train accidents/incidents (train accidents) involving a 
flammable liquid release and resulting fire with severe consequences 
have occurred with increasing frequency (i.e., Arcadia, OH; Plevna, MT; 
Casselton, ND; Aliceville, AL; Lac-M[eacute]gantic, Quebec; Lynchburg, 
VA, Tiskilwa, IL, Columbus, OH, New Brighton, PA, Mount Carbon, WV, 
Galena, IL, Dubuque, IA, Timmins, Ontario, and Gogama, Ontario).\45\ As 
we were focused on this particular type of risk, we will continue in 
this final rulemaking to limit our focus to Class 3 Flammable Liquids.
---------------------------------------------------------------------------

    \45\ Please note that the last five accidents listed occurred in 
2015 are not included in our supporting analysis for this rulemaking 
as the information from those incidents is preliminary and not 
finalized.
---------------------------------------------------------------------------

    One commenter suggested the 20-car threshold was arbitrary and not 
founded on data. As detailed in the August 1, 2014, NPRM the 20-car 
threshold was derived from the ``key train'' requirements contained in 
AAR Circular No. OT-55-N. The proposed definition in the August 1, 
2014, NPRM used the key train definition as a starting point because it 
is a threshold used in existing railroad practices, and served as a 
means to separate the higher-risk trains that carry large volumes of 
flammable liquids. In response to comments from both the September 6, 
2013, ANPRM and the August 1, 2014, NPRM the definition has been 
revised to focus on the specific risks which are the topic of this 
final rule. Commenters also suggested the revised threshold being 
adopted in this rulemaking, as it would eliminate the inclusion of most 
manifest trains and focus on unit trains.
    Based on FRA modeling and analysis, 20 tank cars in a continuous 
block loaded with a flammable liquid and 35 tank cars loaded with a 
flammable liquid dispersed throughout a train display consistent 
characteristics as to the number of tank cars likely to be breached in 
a derailment. The operating railroads commented that this threshold 
would exclude manifest trains and focus on higher risk unit trains. FRA 
completed an analysis of a hypothetical train set consisting of 100 
cars. The analysis assumes 20 cars derailed. The highest probable 
number of cars losing containment in a derailment involving a train 
with a 20-car block (loaded with flammable liquid) located immediately 
after the locomotive and buffer cars would be 2.78 cars. In addition, 
the most probable number of cars losing containment in a derailment 
involving a manifest train consisting of 35 cars containing flammable 
liquids spread throughout the train would be 2.59 cars. Therefore, 20 
tank cars in a block and 35 tank cars or more spread throughout a train 
display consistent characteristics. If the number of flammable liquid 
cars in a manifest train were increased from 40 or 45, the most likely 
number of cars losing containment would be 3.12 and 3.46 cars, 
respectively. This serves as one basis for the selection of the revised 
HHFT definition.
    Many commenters highlighted the potential for logistical issues 
when dealing with the proposed definition. Many called it unworkable 
and ambiguous. PHMSA and FRA have resolved the ambiguity in the 
definition by further clarifying the types of trains to be included. 
Furthermore, AAR, who represents the Class 1 railroads in the U.S., 
provided the basis for the revised definition. AAR suggested this 
definition would ``exclude manifest trains and focus on higher risk 
unit trains.'' Many commenters suggested that we apply the requirements 
of this rulemaking to a single tank car for simplicity. PHMSA and FRA 
are not doing so for numerous reasons. First, this revision would 
include single tank car shipments of flammable liquids which could have 
a significant impact on small entities that do not transport large 
amounts of flammable liquids. Second, while we acknowledge applying the 
requirements to a single tank car may resolve some logistical issues, 
such a solution would not be cost justified given the number of tank 
cars affected and the associated risk with manifest trains verses the 
risk of an HHFT. Third, we feel through fleet management the rail 
industry will be able to determine the need for cars that will be part 
of an HHFT. This could potentially limit the number of retrofitted 
cars. Lastly, as the definition of an HHFT in the August 1, 2014, NPRM 
specifically provided a 20-car threshold we feel it would be beyond the 
scope of this rulemaking to change the applicability of the 
requirements so drastically without notice and comment.

Conclusion

    Therefore, based on the above justification, PHMSA and FRA are 
adding a definition for high-hazard flammable trains in Sec.  171.8. 
Specifically a High-Hazard Flammable Train will be defined as a 
continuous block of 20 or more tank cars or 35 or more cars dispersed 
through a train loaded with a flammable liquid. This definition will 
serve as the applicable threshold of many of the requirements in this 
rulemaking.
3. Crude Oil Treatment
    In the NPRM, 79 FR 45062 PHMSA asked whether exceptions for 
combustible liquids or PG III flammable liquids would incentivize 
producers to reduce the volatility of crude oil, and what the impacts 
on costs and safety benefits for degasifying to these levels. The 
majority of commenters from all backgrounds provided general support 
for pre-treatment of crude oil prior to transportation. For example, 
Quantum Energy supported pre-treatment, but stated that the current 
exceptions for combustible liquids (see Sec.  172.102 Special 
provisions B1) are not sufficient to incentivize pre-treatment of 
petroleum crude oil. It further suggested adding a definition for 
``stabilized crude oil'' and providing several exceptions for 
``stabilized crude oil'' throughout the rule.
    Some industry stakeholders did not support incentivizing pre-
treatment of crude oil. AFPM provided results from a survey of its 
members on data regarding the characteristics of Bakken crude and cited 
other studies on the stabilization of crude oil. It stated that the 
treatment process used in the Bakken region is unlikely to result in 
Bakken crude's reclassification as a combustible liquid. AFPM stated 
treated crude should not be regulated differently than non-treated 
crude because, ``[o]nce ignited, the burning intensity of unstabilized 
and stabilized crude would not substantially differ.''
    Commenters also expressed differing views on the role of packing 
group-based exceptions. Some commenters suggested more stringent 
packing group-based requirements, such as restricting use of PG III for 
crude oil. Other commenters recommended various packing group-based 
exceptions not proposed in the rulemaking.

Conclusion

    As with any hazardous material put into transportation by any mode, 
safety is the Department's top priority, and we will continue to 
conduct inspections or bring enforcement actions to assure that

[[Page 26666]]

shippers comply with their responsibilities to properly characterize, 
classify, and package crude oil regardless of how it is treated prior 
to transport. We also continue to work with various stakeholders to 
understand best practices for testing and classifying crude oil. For 
further discussion on Crude Oil treatment see ``E. Classification'' 
section of this document.
4. Scope of Rulemaking
    Some commenters requested the proposals in the NPRM to be expanded 
beyond just flammable liquids to include all hazardous materials. This 
request covered all topics in the rulemaking. The operational controls 
addressed in this rule are aimed at reducing the risk and consequences 
of incidents involving rail shipments of Class 3 flammable liquids. The 
analyses, data, and relevant factors considered in developing this rule 
are specific to these materials. Information has not been provided to 
support expanding these restrictions to all hazardous materials or to 
justify the associated negative impacts on rail fluidity and costs.

B. Tank Car Specification

    Below is a discussion of the amendments relating to tank car 
construction and retrofitting. This topic is broken down into four 
areas: new tank car construction, retrofit standard, performance 
standard, and an implementation timeline.
1. New Tank Car Construction
    In the September 6, 2013 ANPRM, PHMSA requested comments pertaining 
to new construction requirements for DOT Specification 111 (DOT-111) 
tank cars used in flammable liquid service. See 78 FR 54849. On August 
1, 2014, PHMSA, in consultation with FRA, issued an NPRM in response to 
comments submitted to the ANPRM. See 79 FR 45015. In the NPRM, we 
proposed three options for newly manufactured tank cars that would 
address the risks associated with the rail transportation of Class 3 
flammable liquids in HHFTs. Though commenters differed on the 
applicability of new construction requirements for the rail 
transportation of Class 3 flammable liquids, all support prompt action 
to address construction standards for tank cars.
    Tank cars built to the new standards as adopted in this final rule 
will be designated ``DOT Specification 117'' (DOT-117). In addition, we 
are adopting a performance standard compliance alternative for the 
design and construction of new tank cars or retrofitting of existing 
tank cars equivalent to the prescribed DOT Specification 117 standards. 
Thus, a new or retrofitted tank car meeting the performance criteria 
will be designated as ``DOT Specification 117P'' (See ``Performance 
Standard'' section). In addition, we are adopting a retrofit standard 
for existing tank cars meeting the DOT Specification 111 or CPC-1232 
standard. Thus, a tank car meeting the retrofit standard will be 
designated as ``DOT Specification 117R'' (See ``Retrofit Standard'' 
section). In this final rule, we are adopting the requirement that new 
tank cars constructed after October 1, 2015, used to transport Class 3 
flammable liquids in an HHFT, meet either the prescriptive standards 
for the DOT Specification 117 tank car or the performance standards for 
the DOT Specification 117P tank car. Other authorized tank car 
specifications, as specified in part 173, subpart F, will also be 
permitted; however, use of a DOT specification 111 tank car in an HHFT 
is prohibited.
    The prescribed specifications and the performance standards adopted 
in this rule were developed to provide improved crashworthiness when 
compared to the legacy DOT Specification 111 tank car. In addition to 
adopting revisions to part 179 of the HMR to include the new DOT 
Specification 117, 117P and 117R tank car standards, we are adopting 
revisions to the bulk packaging authorizations in Sec. Sec.  173.241, 
173.242, and 173.243 to include the DOT Specification 117, 117P, and 
117R tank cars as an authorized packaging for those hazardous 
materials. We noted that, as stated in the introductory text to 
Sec. Sec.  173.241, 173.242, and 173.243, each person selecting a 
packaging must also consider the requirements of subparts A and B of 
part 173 of the HMR and any special provisions indicated in column (7) 
of the HMT.
    Lastly, we are incorporating by reference, in Sec.  171.7, appendix 
E 10.2.1 of the 2010 version of the AAR Manual of Standards and 
Recommended Practices, Section C--Part III, Specifications for Tank 
Cars, Specification M-1002, (AAR Specifications for Tank Cars). 
Appendix E provides requirements for top fittings protection for 
certain tank car options.
    Replacing the current standard for the DOT Specification 111 tank 
car is not a decision that the Department takes lightly. New 
construction and retrofit standards will have considerable safety and 
economic consequences. Consequently, the DOT Specification 117 tank car 
would be phased in over an aggressive but realistic timeline. We limit 
our discussion to new tank car standards in this section, but we will 
separately discuss the retrofit standard, performance standard and 
implementation timeline in the subsequent sections. We seek to ensure 
that the car selected will have the greatest net social benefits, with 
benefits primarily generated from the mitigation of accident severity. 
We are also aware of, and account for, the large economic effects 
associated with regulatory changes of this scale, as tank cars are a 
long-term investment. For these reasons, we proposed in the NPRM three 
separate DOT Specification 117 options and requested comments on each 
of them.
    The options proposed in the NPRM were designed to enhance the 
survivability of the tank car and to mitigate the damages of rail 
accidents with design features. Specifically, the tank car options 
incorporate several enhancements to increase tank head and shell 
puncture resistance; thermal protection to extend lading containment 
while in a pool fire environment; and improved top fitting and bottom 
outlet protection during a derailment. Under all options, the proposed 
system of design enhancements will reduce the consequences of a 
derailment of tank cars transporting flammable liquids in an HHFT. 
There will be fewer tank car punctures, fewer releases from service 
equipment (top and bottom fittings), and improved containment of 
flammable liquid from the tank cars through the use of pressure relief 
devices and thermal protection systems. The following table summarizes 
the tank car options proposed in the August 1, 2014, NPRM. Please note 
the shaded cells in the following table indicate design traits that are 
the same for more than one proposed option.

[[Page 26667]]

[GRAPHIC] [TIFF OMITTED] TR08MY15.001

    In support of this final action, PHMSA and FRA have revised the 
analysis to account for public comments and further research. The 
revisions resulted in modified effectiveness rates which can be viewed 
in the final RIA for this rulemaking, which has been placed into the 
docket. The final RIA also describes the baseline accidents, model 
inputs, and the assumptions that were used to develop the effectiveness 
rates for each tank car option.
    Based on the aforementioned, in this final rule, PHMSA and FRA are 
adopting Option 2 for new construction of tank cars used in a HHFT 
subject to the enhanced braking requirements addressed in the 
``Advanced Brake Propagation Systems'' section of this rulemaking. The 
following table lists the design features of the adopted DOT 
Specification 117 Tank Car:

            Table 14--Adopted DOT-117 Specification Tank Car
------------------------------------------------------------------------
           Tank car feature                       Description
------------------------------------------------------------------------
Capacity.............................  286,000 lbs. GRL tank car that is
                                        designed and constructed in
                                        accordance with AAR Standard
                                        S286.
Thickness............................  Wall thickness after forming of
                                        the tank shell and heads must be
                                        a minimum of \9/16\ inch
                                        constructed from TC-128 Grade B,
                                        normalized steel.

[[Page 26668]]

 
Thermal Protection...................  Thermal protection system in
                                        accordance with Sec.   179.18,
                                        including a reclosing pressure
                                        relief device in accordance with
                                        Sec.   173.31(b)(2).
Jacketing............................  Minimum 11-gauge jacket
                                        constructed from A1011 steel or
                                        equivalent. The jacket must be
                                        weather-tight as required in
                                        Sec.   179.200-4.
Head Shield..........................  Full-height, \1/2\-inch thick
                                        head shield meeting the
                                        requirements of Sec.
                                        179.16(c)(1).
Bottom outlet........................  Bottom outlet handle removed or
                                        designed to prevent unintended
                                        actuation during a train
                                        accident.
Braking..............................  Braking systems determined by
                                        operational conditions, see
                                        ``Advanced Brake Signal
                                        Propagation System'' section.
Top fittings.........................  Top fittings protection in
                                        accordance with AAR
                                        Specifications Tank Cars,
                                        appendix E paragraph 10.2.1. The
                                        adopted option excludes the TIH
                                        Top fittings protection system.
------------------------------------------------------------------------

    In response to tank car-related proposals in the NPRM, we received 
comments representing many differing viewpoints. In sum, we received 
comments representing approximately 172,000 signatories.

     Table 15--Commenter Composition: Tank Car Construction Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................         162,776
Individuals.............................................           9,004
Industry stakeholders...................................             119
Government organizations or representatives.............             140
                                                         ---------------
  Totals................................................         172,039
------------------------------------------------------------------------

    Overall, the vast majority of commenters support PHMSA's efforts to 
adopt enhanced standards for non-pressure tank cars used to transport 
flammable liquids. For example, there were nearly 168,700 signatories 
from the general public, NGOs, and government organizations who 
requested that PHMSA prohibit the continued use of the existing legacy 
DOT Specification 111 tank car fleets. There were, however, 1,878 
signatories that supported the proposals in the rulemaking. Moreover, 
there were approximately 159,000 signatories that felt the proposed new 
tank car standards do not go far enough, including three entities 
representing tribal communities, the Tulalip Tribes, the Prairie Island 
Indian Community, and the Quinault Indian Nation. Lastly, there were 
approximately 40 substantive comments in support of the notion that 
alignment with Canada is critical for new construction and retrofit 
designs, as well as retrofit timelines. Below, we discuss the comments 
specific to each tank car option proposed in the NPRM.
Option 1
    Proposed tank car Option 1 received the least support from the 
regulated industry (railroads, shippers, offerors, etc.) however it was 
fully supported by the NTSB, concerned public, environmental groups, 
local communities, and cities. These groups all requested the most 
robust tank car specifications be adopted but gave very little 
consideration to the costs of such standards.
    Option 1 is the most robust design proposed; it also is the most 
costly. The comments of API, Railway Supply Institute Committee on Tank 
Cars (RSI-CTC), and many others in the rail and shipping industry, do 
not support Option 1. U.S. Congressman Kurt Schrader echoed many of 
these commenters concerns when he stated that, ``Option 1 appears to 
introduce controversy, complexity, and additional expense without any 
meaningful increase in safety.'' In his comments, U.S. Congressmen 
Peter DeFazio stated ``. . . the rail industry has major concerns with 
the viability and effectiveness of ECP brakes and certain roll-over 
protections that were included in Option l. If the addition of those 
protections appears likely to significantly delay the rulemaking, I 
would encourage PHMSA to move forward with Option 2 . . .''
    While Option 1 was the most robust tank car proposed in the August 
1, 2014, NPRM, the Tulalip Tribes did not believe the design was robust 
enough. Specifically, the Tulalip Tribes noted that while, ``proposed 
new standards for rail car designs are an improvement,'' they are ``far 
from providing an acceptable risk from tank rupture allowing leakage or 
an explosion.'' The Tulalip Tribes continued stating that the:

    DOT-111 tanks are only safe from collisions for speeds up to 9 
miles per hour. Option one only improves the safe speed for 
collisions up to 12.3 miles per hour for the shell of the tank. Of 
the thirteen major crude oil/ethanol train accidents in the U.S. 
listed in the August 1, 2014 Federal Register notice that this 
letter is in response to, the proposed new tank car standard would 
have only prevented one of them from spilling contents from a 
damaged rail car. The rest of the accidents were from trains 
travelling from 23 to 48 miles per hour, well above the safe speeds 
for the new proposed tank designs.''
    The Tulalip Tribes concluded that ``[t]he rail cars need to be 
designed in a way that the damages caused by a derailment are 
minimized and speed limits are set at or below the maximum speed 
that a tanker car can survive without a spill.

    In general terms, the arguments against Option 1 typically noted 
the overall cost of the tank car, weight issues associated with 
increased safety features, the lack of a substantial increase in safety 
when compared to other options, and the inclusion of ECP braking and 
TIH top fittings protection. The typical arguments in support of Option 
1 were that it was the most robust tank car option, and the incremental 
safety benefit is justified given recent accident history.
Option 2
    The Option 2 tank car has most of the safety features as the Option 
1 tank car, including the same increase in shell thickness, jacket 
requirement, thermal protection requirement, and head shield 
requirement. However, it does not require TIH top fittings protection 
and the requirement of ECP brake equipment of Option 1. Installation of 
ECP brake equipment largely makes up the cost differential between the 
Option 1 and 2 tank cars, and the differences in estimated 
effectiveness are also largely a result of ECP brakes. Proposed tank 
car Option 2 received more support than option 1 from the regulated 
industry, albeit with a variation in shell and head thickness for newly 
constructed tank cars. Many commenters in the rail industry supported 
this option with an 8/16-inch thick shell as opposed to the proposed 9/
16-inch shell.
    In their comments, U.S. Congressman Dave Reichert and Congresswoman 
Lynn Jenkins state ``we strongly encourage PHMSA to consider Option 2 
identified in the NPRM.'' Another commenter, Bridger, LLC (Bridger) 
stated ``Bridger strongly recommends

[[Page 26669]]

that PHMSA promulgate a final rule adopting the Option 2 or the Option 
3 tank car design.'' GBW Railcar, a railcar manufacturer, asserted 
``that PHMSA adopt Option 2 as the standard for the new tank cars.''
    Amsted Rail Company, Inc. (Amsted Rail) fully supports Option 2 as 
does the State of Minnesota which stated that ``Minnesota and its 
agencies support the safety features and performance level represented 
by the Option 2.'' RSI-CTC also supports Option 2 for new tank car 
requirements but only for those tank cars transporting crude oil and 
ethanol.
    Many commenters were opposed to both Options 1 and 2. AFPM 
represented many of these sentiments when it stated that, ``numerous 
procedural and substantive flaws of PHMSA's cost-benefit analysis make 
it clear that Options 1 and 2 would cost far more and provide little in 
the way of additional safety improvements.''
    The arguments against Option 2 were primarily from the NTSB, 
concerned public, environmental groups, local communities, cities, and 
towns who, as stated above, supported Option 1. In addition some in the 
regulated industry expressed their opposition for both options 1 and 2. 
These entities typically noted the overall cost of the tank car, weight 
issues associated with increased safety features, and the lack of a 
substantial increase in safety when compared to other options.
    In summary, the arguments in support of Option 2 were provided by a 
wide range of commenters from the regulated industry. These commenters 
supported exclusion of ECP braking and TIH top fittings protection. 
Finally, it should be stressed that many in the regulated industry 
supported this option with the caveat that the shell thickness be 8/16-
inch and not 9/16-inch.
Option 3
    Proposed tank car Option 3 received the most support from the 
regulated industry for both new construction and retrofitted tank car 
requirements and the least support from the NTSB, concerned public, 
environmental groups, local communities, and cities. Option 3 is 
similar to the jacketed CPC-1232 tank car standard. The option revises 
the CPC-1232 standards by requiring improvements to the bottom outlet 
handle and pressure relief valve. It also removes options (1) to build 
a tank car with the alternative (ASTM A516-70) steel type but with 
added shell thickness or (2) to build a tank car with a thicker shell 
but no jacket.
    This tank car is a substantial safety improvement over the current 
DOT Specification 111 but does not achieve the same level of safety as 
the Option 1 or Option 2 tank cars. This tank car requirement calls for 
a \7/16\-inch shell, which is thinner than Option 1 or Option 2 tank 
cars. Similar to the Option 2 tank car, this tank car lacks TIH top 
fittings protection and ECP brake equipment. This standard is the tank 
car configuration PHMSA believes will be built for HHFT service in 
absence of regulation, based on commitments from one of the largest 
rail car manufacturers/leasers--Greenbrier, Inc. and the Railway Supply 
Institute (consisting of the majority of the tank car manufacturing 
industry).\46\ Accordingly, PHMSA assumes no costs or benefits from 
Option 3 for new tank cars. Below are a few selected comments that 
represent the larger overall support from the regulated industry.
---------------------------------------------------------------------------

    \46\ Greenbrier: http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0082-0155 RSI: http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-0082-0156
---------------------------------------------------------------------------

    In its comments, Honeywell Performance Materials and Technologies 
asserted, ``[n]ew car construction, as proposed with CPC-1232, is the 
most efficient way to enhance safety of the fleet.''
    The Dow Chemical Company (Dow) stated that ``Dow believes that 
Option 3 will be the most feasible for the crude oil and ethanol 
industries . . .'' Dow estimated ``that Option 3 will achieve a more 
optimal balance between safety features (resulting in increased tare 
weight) and lading quantity, thus reducing the extra number of cars (or 
trains) that would need to be put on the rails compared to Options 1 
and 2. The size of the Option 3 car also makes it less likely to 
negatively affect loading/unloading rack dimensions or fall protection 
systems.'' Further, Dow ``strongly encourages PHMSA to incorporate into 
the HMR enhanced specifications--as described in CPC-1232--for new DOT 
Specification 111 builds for Class 3 materials (other than those 
covered by HM-251).''
    U.S. Congressman Rep. Kevin Cramer supports the CPC-1232 standard 
because the analysis leading to its design has been ``fully 
contemplated.''
    In its comments, DGAC stated that it ``encourages Option #3 
(Enhanced CPC-1232) with jacket and full height headshield.'' The 
Independent Fuel Terminal Operators Association also supports the 
adoption of Option 3, but only for newly constructed cars built after 
October 1, 2015. Biggs Appraisal Service LLC offers mixed support for 
new tank car requirements. It believes this is the option that best 
fits their interest, but this option still has features that it thinks 
is unnecessary. It argues that \7/16\'' is sufficient thickness and 
that ``the amount of thickness strength that an additional \1/16\ of an 
inch will afford is negligible.''
    As mentioned previously, some commenters proposed an alternative 
tank car that would fall somewhere between the proposed Options 2 and 
3. Specifically, in their comments, AAR/API and Hess propose a new tank 
car design standard with an \8/16\-inch shell; jacket; insulation; 
full-height head shields; low pressure actuation/high flow pressure 
relief device; bottom valve operating handle modification; and top 
fittings protection. In their recommendations, they state, ``[t]he Hess 
and AAR/API recommendation reflects a joint oil and rail industry 
agreement that balances the enhanced safety from increasing shell 
thickness against the risk that additional carloads will be required to 
move the same volume of product due to a decrease in useable tank car 
capacity (maximum weight constraint).''

    Hess continues its support for Option 3 with a thicker shell, 
stating:
    The AAR/API endorsed standard mirrors PHMSA's Options 2 and 3 in 
all respects, except that the design would require an \8/16\-inch 
minimum shell thickness, instead of a \9/16\-inch shell (Option 2) 
or a \7/16\-inch (Option 3) shell. Adopting this standard improves 
upon the \7/16\-inch minimum shell in Option 3 by reducing the 
likelihood of a release in the event of an incident. At the same 
time, it balances the extra protection from the additional steel 
with the associated reduction in tank car capacity due to the 
increased car weight. Tank car weight and capacity limitations are a 
concern with both of PHMSA's \9/16\-inch car proposals.

    In opposition, Greenbrier does not support Option 3 and it noted a 
fear of having to again revisit this issue in the future if the correct 
tank car is not selected. Further, the NTSB asserted that the \7/16\-
inch'' shell and head thickness is too thin.
    In summary, the arguments against Option 3 were primarily from the 
NTSB, concerned public, environmental groups, local communities, 
cities, and towns and a rail car manufacturer. These arguments were 
primarily based on the desire to choose the most effective tank car 
that has the largest increase in benefit over the existing fleet. In 
addition, these commenters noted the need to adopt the most appropriate 
tank car now and avoid revisiting the issue in the future. The 
arguments in support of Option 3 were more widespread amongst the 
regulated industry. This support was primarily due to the concerns of 
the weight of tank car, and the lack of the inclusion of ECP braking 
and TIH top fittings

[[Page 26670]]

protection. Many in the regulated industry supported this option with 
the caveat that the shell thickness should be \8/16\-inch rather than 
\9/16\-inch. Lastly, the regulated community consistently supported 
either Options 2 or 3.
Tank Car Component Comments
    To address comments more effectively, we have arranged our 
discussion by tank car component. The following is an overview of the 
requirements and a discussion of the comments in support and opposed to 
certain proposed requirements.
Bottom Outlet Valve Protection
    The bottom outlet valve (BOV) protection ensures that the BOV does 
not open during a train accident. The NTSB in recommendation R-12-6 
recommends that PHMSA ``require all bottom outlet valves used on newly 
manufactured and existing non-pressure tank cars are designed to remain 
closed during accidents in which the valve and operating handle are 
subjected to impact forces.'' PHMSA and FRA see this issue as one that 
can be cost-effectively resolved and in general commenters agreed.
    Overall the comments with regard to BOV protection were supportive 
by both the regulated industry and public stakeholders. For example, 
Earthjustice, the environmental group, stated that it, ``urge[s] PHMSA 
to take further steps to reduce the risks posed by bottom outlet 
valves.'' The regulated industry also supports this proposal as is 
evident in Growth Energy's comment that it, ``support[s] CPC-1232 
design with PRD and BOV protection.'' Further, R.L. Banks & Associates, 
Inc. (RLBA) also supports the requirement to develop better lower 
product discharge valves and valve protectors and would like to see the 
development of a performance-based specification for lower discharge 
openings to ensure that the system meets minimum desired requirements.
    Although there was widespread support, some commenters were opposed 
to BOV improvements. Dow stated that, ``in trying to optimize the 
bottom outlet valve (BOV) for derailments causing the BOV to open, 
which is a somewhat rare occurrence in terms of total number of 
derailments, design features that make the valve less safe for loading/
unloading operations have the potential to be introduced . . . we 
believe it is premature to mandate such BOV enhancements.'' This was 
generally the minority opinion as most support changes to the BOV.
    PHMSA and FRA disagree with those commenters who oppose 
improvements to the current BOV designs. Protection of the BOV is 
currently a regulatory requirement and is invaluable in an accident 
scenario as it limits the likelihood of a release of lading which could 
potentially result in a pool fire. A BOV designed to prevent actuation 
or opening in a derailment is a necessary enhancement. In this final 
rule, PHMSA is requiring other design enhancements--such as improved 
puncture resistance and top fittings protection--that will reduce the 
volume of lading loss from a tank car that is involved in a derailment. 
Preventing opening of the BOV during a derailment will further reduce 
the volume lost, thereby mitigating environmental damage as well as the 
likelihood of a pool fire or the severity of the fire and environmental 
damage. We note that an AAR task force has been convened to develop a 
BOV design that would prevent opening during a derailment. We believe 
that if a car owner and/or offeror chooses not to remove the handle for 
transportation, an easy to install design will soon be readily 
available at a low cost. Therefore, in this final rule, for new 
construction of the DOT-117 tank car, we are adopting as proposed in 
the NPRM that all bottom outlet handles either be removed or be 
designed with protection safety system(s) to prevent unintended 
actuation during train accident scenarios.
Head Shields
    Currently, the HMR do not require head shields on tank cars used to 
transport Class 3 flammable liquids. Further, the CPC-1232 standard 
currently in effect only requires half-height head shields for newly 
constructed non-jacketed tank cars. In the August 1, 2014 NPRM, PHMSA 
and FRA proposed a range of tank car options, each of which included a 
full-height, \1/2\-inch thick head shield.
    Commenters who addressed the issue in their comments overwhelmingly 
support full-height head shield on jacketed tank cars subject to the 
new standard. For example, the NTSB noted in its comments, ``[t]he top 
half of tank car heads are subject to damage and punctures during train 
derailments and half height head shields fail to provide the protection 
needed.'' RLBA supports the use of full-height head shields for the 
heads. A concerned public individual, William A. Brake, urged that the 
new standard require tank cars to be ``equipped with \1/2\ full-head 
shields.''
    PHMSA and FRA agree with the commenters who support the inclusion 
of a \1/2\ inch full-head shields on new constructions of DOT-117 tank 
cars. A full-height head shield protects the entire tank car head and 
can decrease the likelihood of a puncture at the top half of a tank car 
should a train derail. In fact, half of all the punctures that occurred 
in the derailments considered in this rulemaking occurred in the head 
of the tank. Further, half of the head punctures occurred in the top 
half of the head. As the Transportation Safety Board (TSB) of Canada 
noted in its' report on the Lac-M[eacute]gantic accident ``a full-head 
shield would have been beneficial, as half-head shields protect only 
the bottom portion of the head.'' TSB continued that ``all but 4 of the 
63 derailed cars exhibited some form of impact damage (for example, 
denting or breach) in the top portion of at least one head'' and about 
``half of the tank cars (31) released product due to damage to the tank 
car head.'' \47\ This report gives further credence to the importance 
of a \1/2\ inch full-head shield. Given the overwhelming support, we 
are adopting in this final rule the proposal that all DOT Specification 
117 tank cars must include a one-half inch thick, full-height head 
shield on new construction.
---------------------------------------------------------------------------

    \47\ Railway Investigation Report R13D0054 http://www.tsb.gc.ca/eng/rapports-reports/rail/2013/r13d0054/r13d0054.asp.
---------------------------------------------------------------------------

Thermal Protection Systems/Pressure Relief Device
    Pressure relief devices (PRD) vent gases or vapors under high 
pressure in order to reduce the risk of a ruptured tank car. The HMR 
limit the allowable start-to-discharge (STD) pressure of the PRD to 
approximately one-third of the burst pressure to provide a factor of 
safety against at tank rupture. In a pool fire, a loaded tank is 
exposed to extreme heat which results in both an increase in tank 
pressure as the lading is heated and a reduction in strength of the 
tank material commensurate with the increasing material temperature. 
When a tank car is exposed to a pool fire the PRD will maintain a low 
pressure in the tank and potentially extend the time before a tank car 
would thermally rupture.
    In the Arcadia derailment there were three high-energy thermal 
failures. In two of the three cases the tank fractured into two pieces 
and those pieces were thrown from the derailment area. In the third 
case, the tank was nearly fractured around the entire circumference. 
The AAR T87.6 task force considered the possibility that the PRDs did 
not have adequate flow capacity to expel the rapidly increasing 
pressure and start to discharge pressure rating (STD). Currently, the 
PRDs on tank car used in Class 3 service have a STD pressure of 75 or 
165 psi. The PRD maintains the

[[Page 26671]]

internal pressure at or below the STD pressure. When a tank bursts as a 
result of exposure to fire conditions, the lower the STD pressure, and 
therefore internal pressure, the less energetic the failure will be. 
The PRD in combination with the thermal protection system will provide 
the appropriate sized pressure relief valve and enhance the lading 
containment of the tank car.
    A thermal protection system serves to prolong the survivability of 
a tank exposed to a pool or torch fire by limiting the heat flux into 
the tank and its lading, thereby delaying the increase in pressure in 
the tank exceeding the STD pressure of the PRD. If a PRD on a tank car 
exposed to a pool fire is under the liquid level of the tank, the 
thermal protection system will delay the release of the lading through 
the PRD. Based on the results of simulations using the Affect of Fire 
on Tank Cars (AFFTAC) model, an approved thermal protection delays 
rupture of a tank until most of the lading has been expelled through 
the PRD. This results in a lower energy available at the time of 
rupture.
    Most commenters support a redesigned PRD because they consider it 
as a cost-effective solution that provides considerable safety benefit. 
Some commenters argue that for a CPC-1232 compliant tank car, any new 
requirements should be limited to a redesigned PRD and bottom outlet 
valve protection only. Eighty-Eight Oil LLC stated in its comments, 
``Eighty-Eight supports allowing the CPC-1232 jacketed fleet to operate 
for its full useful life with a potential retrofit limited to an 
enhanced BOV handle and a larger pressure relief valve.'' Further, in 
their comments, Growth Energy and many others support the CPC-1232 
design with PRD and BOV protection.
    There are currently high flow capacity, reclosing PRD available 
that are relatively low cost and generally easy to install on new or 
retrofitted tank cars. Based on these facts and comments received in 
support of reclosing PRDs, PHMSA is adopting the installation of 
reclosing PRD as proposed on new construction of DOT-117 specification 
tank cars.
    Thermal protection is intended to limit the heat flux into the 
lading when exposed to fire. Thermal protection will extend the tank 
car lading retention for a certain period of time in pool fire 
conditions. Thermal protection will prevent rapid temperature increase 
of the lading and a commensurate increase in vapor pressure in the 
tank. The thermal protection system, by reducing the heat flow rate 
from the fire to the liquid, lowers the liquid evaporation rate, allows 
the evaporated vapor to be discharged through the pressure relieve 
valve without significant tank pressure increase and considerably 
reduces the possibility of dangerous over pressurization of the tank.
    All three DOT Specification 117 options proposed in the NPRM 
required a thermal protection system sufficient to meet the performance 
standard of Sec.  179.18 of the HMR, and must include a reclosing 
pressure release valve. Section 179.18 requires that a thermal 
protection system be capable of preventing the release of any lading 
within the tank car, except release through the pressure release 
device, when subjected to a pool fire for 100 minutes and a torch fire 
for 30 minutes. Typically, tank cars with thermal protection are 
equipped with a weather-tight 11-gauge jacket. There was general 
support for this requirement as there are existing technologies that 
can vastly improve the thermal survivability of the existing fleet. We 
have summarized a few selected comments below to provide some idea of 
the overall comments.
    In its comments, RLBA agrees that thermal insulation around the 
shell and a steel jacket over the thermal insulation will be highly 
beneficial in protecting the shell from structural thermal damage 
during a derailment fire and over pressure damage due to cargo 
expansion thanks to shell heating.
    While many commenters echoed the above comments, some commenters 
such as PBF Energy and the Renewable Fuels Association (RFA) do not 
think jacketing is necessary. In its opposition, DGAC ``believes that 
an across-the-board requirement for thermal protection and jacketing on 
all flammable liquid tank cars is not supported by incident data, and 
may also have unintended consequences detrimental to safety . . . such 
as making corrosion under the insulation more difficult to detect.''
    PHMSA and FRA disagree with commenters opposing the thermal 
protection requirements as proposed in the NPRM. Furthermore, on April 
6, 2015 NTSB issued emergency recommendations stressing the importance 
of thermal protection in light of the Mount Carbon, WV and Galena, IL 
derailments. In the train accidents previously discussed, approximately 
10 percent of tank car breaches were attributed to exposure to fire 
conditions. Consistent with current minimum industry standards and 
Federal regulations for pressure cars for Class 2 materials, the T87.6 
Task Force agreed that a survivability time of 100-minutes in a pool 
fire should be used as a benchmark for adequate performance. The 100-
minute survival time is the existing performance standard for pressure 
tank cars equipped with a thermal protection system and was established 
to provide emergency responders with adequate time to assess a 
derailment, establish perimeters, and evacuate the public as needed, 
while also giving time to vent the hazardous material from the tank and 
prevent an energetic failure of the tank car.
    With regard to the claim that addition of thermal protection and a 
jacket could have ``unintended consequences detrimental to safety . . . 
such as making corrosion under the insulation more difficult to 
detect'' PHMSA and FRA disagree. In accordance with the current 
requirements, the owner of the tank car has to develop a 
requalification program. This program would include an inspection 
method to check for corrosion to the tank. This is currently done for 
jacketed and insulated tank cars.
    The thermal protection prolongs the survivability of the tank by 
delaying the moment when pressure in the tank exceeds the start to 
discharge of the pressure relief valve, thus delaying the release of 
flammable liquid or the occurrence of an energetic rupture. Because all 
the thermal protection systems meeting the Sec.  179.18 performance 
standard that PHMSA studied performed equally well in the simulations, 
and because the simulations indicated the importance of a reclosing 
pressure relief valve, PHMSA is not requiring a particular system, but 
instead is requiring that a thermal protection system meet the 
performance standard of Sec.  179.18 and include a reclosing PRD for 
new construction of the DOT-117 specification tank car. Finally, it was 
consistently noted that there are existing technologies available that 
can vastly improve the thermal survivability of the existing fleet. 
Thus, the thermal protection requirements for new construction of the 
DOT-117 specification tank car as proposed in the NPRM are adopted in 
this final rule.
Head and Shell Thickness
    Shell and head punctures result in rapid and often complete loss of 
tank contents. Minimizing the number of cars punctured in a derailment 
is critical because ignited flammable liquids that result in a pool 
fire that can quickly affect the integrity of adjacent cars and their 
ability to contain their lading. In the August 1, 2014 NPRM, PHMSA and 
FRA proposed a range of head and shell thicknesses ranging from \7/16\-
inch to \9/16\-inch. Many commenters opposed the thicker steel but were 
willing to

[[Page 26672]]

compromise by recommending an \8/16\-inch shell thickness. More 
information regarding the relationship between puncture resistance and 
shell thickness is discussed in a subsequent section. Below are a few 
selected comments related to the topic.
    The NTSB, in support of a thicker shell commented that:

    The minimum standards for new DOT-117 tank cars should include: 
full height \1/2\-inch thick head shields; thermal protection; 
minimum 11-gauge jacket constructed from A1011 steel or equivalent 
and weather tight; reclosing and properly sized pressure relief 
valves; top fitting rollover protection equivalent to pressure tank 
car performance; \9/16\-inch minimum shell thickness TC-128 Grade B 
normalized steel or steel with minimum equivalent performance 
standards; and enhanced bottom discontinuity protection for outlet 
valves and removal of bottom valve handles during transit. The top 
half of tank car heads are subject to damage and punctures during 
train derailments and half height head shields fail to provide the 
protection needed.

    A concerned member of the public, Lynne Campbell, urged the 
Department to ``Select the most protective tank car standards, using 
the latest technology. Tank Car Option #1 would require \9/16\-inch 
steel, electronically controlled pneumatic (ECP) brakes, and rollover 
protection.''
    An environmental group, the Sierra Club, requested that ``at a 
minimum, DOT must implement the proposed Pipeline and Hazardous 
Materials Safety Administration (PHMSA) and Federal Rail Administration 
(FRA) design option [Option 1] for tank car safety improvements.'' 
Further, in its comments, the Brotherhood of Locomotive Engineers and 
Trainmen (BLET) fully support \9/16\-inch thickness.
In its comments, RLBA stated:

    RLBA believes that increasing the shell thickness from \7/16 \to 
\9/16\ is a reasonable compromise between safety and commercial 
viability of tank cars hauling High-Hazard Flammable materials. RLBA 
would not support a reduction of the proposed thickness from \9/16\ 
to \8/16\ inch but would support an increase from \9/16\ to \5/8\ or 
larger.

The Archer Daniels Midland Company in its opposition to Option 1 
stated:

    The NPRM modeling used to estimate reduction in risk for 
increased tank thickness is substantially flawed, and is 
inconsistent with real-world assumptions on which PHMSA has 
previously relied and has actually endorsed on the record in this 
proceeding. This analysis by DOT plainly shows that shell thickness 
or the effect of a jacket will not result in an appreciable increase 
in puncture velocity. In this crucial part of the NPRM analysis, by 
ignoring on the record, and established DOT puncture velocity 
methods and studies, PHMSA has clearly failed to articulate a 
satisfactory explanation for its action including a rational 
connection between the facts found and the choice made.

    Commenter Eighty-Eight Oil, LLC, used the AAR's Conditional 
Probability of Release Model (CPR) to support a claim that Option 2 and 
Option 1 (with a \9/16\th inch shell thickness) are not economically 
justified.
    Greenbrier fully supported Option 2, particularly, the \9/16\ inch 
shell. They believe if this thickness is not adopted, PHMSA and FRA 
will be forced to revisit this problem in the future. Further, 
Greenbrier believes that when adopting a thickness PHMSA and FRA should 
accommodate for a margin of safety to avoid a scenario in which the 
topic is required to be modified in the future.
    Exxon/Mobil supported Option 2, but with \8/16\-inch shell. It 
suggested that unlike \9/16\-inch, the \8/16\-inch design has been 
fully engineered and can be implemented immediately. According to Exxon 
the weight increase by shell thickening is 2% from \7/16\-inch to \8/
16\-inch and 4% from \7/16\-inch to \9/16\-inch so a lesser thickness 
would lessen wear on the rail track infrastructure and reduce weight 
penalty. It is their understanding that an \8/16\-inch car reduces risk 
by 81% over legacy DOT-111 tank car.
    API (and AAR) also supported a modified Option 2, with an \8/16\-
inch shell thickness. They state that the added weight of a \9/16\-inch 
shell thickness would be offset safety-wise by the increased number of 
trains on tracks. Another commenter, NITL, also supports an \8/16\-inch 
tank shell under Option 2.
    AFPM, quoted a 2009 study conducted by Volpe that concluded, 
``shell thickness had a relatively weak effect on preventing releases 
during derailments.'' In its comments AFPM ``supports the Option 3 
specification for new and retrofitted rail tank cars shipping crude and 
ethanol in unit trains of 75 cars or more. The Option 3 specification 
tank car is an enhanced CPC-1232 tank car with a \7/16\'' shell and 
other enhanced safety features. The Option 1 and 2 tank cars with a \9/
16\'' shell provide only negligible safety benefits at a substantial 
incremental cost.''
    The Hess Corporation stated, ``[t]he AAR/API recommendation 
supported by Hess is based on the Option 3 tank car proposed by PHMSA, 
but increases the shell thickness of the jacketed tank car from a \7/
16\-inch shell to an \8/16\-inch shell.'' In its comments, ``Phillips 
66 supports the CPC-1232 at \8/16\.''
    PHMSA and FRA disagree with those who do not support a \9/16\-inch 
thickness. Specifically, the final RIA for this rulemaking provides 
support for the effectiveness of the \9/16\-inch thickness. In 
addition, PHMSA and FRA agree with commenters like Greenbrier and the 
concerned citizens who voiced a desire for the most effective thickness 
in preventing punctures. Options 1 and 2 require DOT Specification 117 
tank car head and shells to be a minimum of \9/16\-inch thick. This 
final rule also requires an 11-gauge steel jacket. The final RIA 
contains a detailed discussion of the improvement in the puncture force 
for Options 1 and 2 relative to the current specification requirements 
for a DOT Specification 111 tank car. The RIA also discusses the 
respective effectiveness rates of various tank specifications which 
lead to PHMSA and FRA's decision on a shell and head thickness of \9/
16\-inch.
    The combination of the shell thickness and head shield of Options 1 
and 2 provide a head puncture resistance velocity of 18.4 mph. Because 
the Option 3 tank car has a \7/16\-inch shell, as opposed to the \9/
16\-inch shell in Options 1 and 2, it has a head puncture resistance 
velocity of 17.0 mph. It is for these reasons, PHMSA is adopting the 
\9/16\-inch shell thickness as proposed in the August 1, 2014, NPRM for 
new construction of the DOT-117 specification tank car. See also the 
final RIA.
Top Fittings/Rollover Protection
    The top fitting protection consists of a structure designed to 
prevent damage to the tank car service equipment under specified 
loading conditions. As adopted in this final rule, newly constructed 
tank cars will require top fittings consistent with the AAR's 
specification for Tank Cars, M-1002, appendix E, paragraph 10.2.1. In 
general, there was support for some top fittings protection, but not 
for the dynamic top fittings protections meeting a 9-mph performance 
standard required for tank cars required for the transportation of TIH 
materials.
    Further, some commenters suggested continued development of top 
fittings protection. PHMSA is aware that the AAR Tank Car Committee has 
started a working group to investigate cost effective advancements in 
existing top fittings protections. PHMSA and FRA are supportive of 
these efforts as they would apply to both new and retrofitted tank 
cars. PHMSA and FRA may conduct further testing and develop future 
regulatory requirements if appropriate. We have summarized a few 
selected comments below to provide some idea of the overall comments.

[[Page 26673]]

    RLBA recommended that the development of structures to contain and 
protect the over pressure device be continued including recessing the 
device in an inverted dome fastened to the shell.
    Earthjustice, an environmental group, strongly urged ``PHMSA to 
require existing tank cars to have additional top-fittings protections 
(which the Canadian proposed rule would do).''
    AAR's comments on top fittings protection were consistent with many 
other commenters. In particular the AAR noted the importance of top 
fittings protections yet stressed concern with overly burdensome top 
fittings standards. AAR stated it ``supports enhanced top-fittings 
protection, but not the 9 mph standard.''
    Because there was little substantive opposition to the adoption of 
enhanced top fittings protection for new construction of the DOT-117 
specification tank car, PHMSA and FRA are adopting such requirements 
consistent with the AAR's specification for Tank Cars, M-1002, appendix 
E, paragraph 10.2.1 as opposed to dynamic top fittings protections 
meeting a 9-mph performance standard.
    Under proposed Option 1, the DOT Specification 117 tank car would 
be required to be equipped with a top fittings protection system and 
nozzle capable of sustaining, without failure, a rollover accident at a 
speed of 9 mph, in which the rolling protective housing strikes a 
stationary surface assumed to be flat, level, and rigid and the speed 
is determined as a linear velocity, measured at the geometric center of 
the loaded tank car as a transverse vector. Generally this (TIH top 
fittings protection) requirement was not supported by the regulated 
community but was supported by those endorsing the most robust tank car 
possible. Below are a few selected comments to provide some idea of the 
overall comments.
    Dow stated with regard to the top fittings on Option 1 that, 
``[o]ne rail tank car manufacturer indicated at least $8,000 additional 
cost for Sec.  179.102-3 dynamic load roll-over protection . . . . The 
thicker \9/16\-inch steel tank shell indicated in the NPRM may also 
require even larger nozzle reinforcement pads at additional cost.''
    Another opposing commenter, Greenbrier, stated that it does not 
support TIH rollover protection, claiming it is an unproven technology. 
It does, however, support AAR specification M-1002, appendix E, 
Paragraph 10.2.1 Top Protection.
    ADM asserted, ``PHMSA assumes without any supporting data that top 
fittings will decrease the damage to service equipment by 50 percent.''
    PHMSA and FRA agree with commenters opposed to the TIH style 
rollover protection system proposed in Option 1 for new construction of 
the DOT-117 specification tank car. We disagree that it is ``unproven 
technology.'' Specifically, this is not a specific technology but 
rather a performance standard. Also, the standard exists and is used 
for tank car transporting PIH commodities. There are thousands of tank 
cars in operation that meet this standard. We do not believe this is a 
matter of technology but rather a matter of whether a practical design 
could be developed, one that will not introduce excessive stresses 
elsewhere in the tank in the event of a roll-over.
    Therefore, while we disagree that it is ``unproven technology,'' we 
do not feel the effectiveness of the TIH rollover protection is 
justified when considering the cost of such a system and thus, we are 
not adopting such standards in this final rule.
Braking
    For comprehensive analyses, conclusions, and regulatory 
codification on the braking proposal, see ``Advanced Brake Signal 
Propagation Systems.''
Supporting Analyses and Conclusions
    The discussion below provides some of the supporting analysis that 
shaped PHMSA and FRA's decisions on the requirements for the new 
construction of the DOT-117 specification tank cars. For further detail 
and a more comprehensive discussion of our analysis, see the final RIA 
for this rulemaking. This section highlights particular areas that were 
the focus of numerous comments.
Puncture Resistance
    Effective October 1, 2015, for new car construction, the adopted 
specification requirements are the same as proposed Option 2. See the 
``Advanced Braking Signal Propagation Systems'' section for discussion 
on ECP braking. Industry is currently building DOT-111 tank cars 
constructed to the CPC-1232 standard. The primary difference between 
Option 2 and the jacketed DOT/CPC-1232 car is that the former has a \9/
16\ inch thick shell. Additional required thickness provides improved 
shell puncture resistance ranging from 7% to 40% depending on the 
initial speed and brake system employed as indicated in the following 
table:

   Table 16--Reduction in the Number of Punctures Given Tank Car Design, Initial Speed, and Brake System, When
                      Compared to an Unjacketed Dot 111 Tank Car With a Two-Way EOT Device
----------------------------------------------------------------------------------------------------------------
                                                        Two-way EOT device                      ECP
----------------------------------------------------------------------------------------------------------------
                 Tank car option                      40 mph          50 mph          40 mph          50 mph
----------------------------------------------------------------------------------------------------------------
DOT 111 no jacket...............................               0               0             2.3             1.4
\7/16\-inch w/jacket............................             5.0             6.5             6.8             7.2
\8/16\-inch w/jacket............................             5.6             7.3             7.3             8.0
\9/16\-inch w/jacket............................             6.2             8.1             7.8             8.7
----------------------------------------------------------------------------------------------------------------
Tank cars with a jacket are equipped with a one-half inch thick full height head shield. A two-way EOT device is
  applied to the end of the last car in a train to monitor functions such as brake line pressure and accidental
  separation of the train using a motion sensor. The two-way EOT device also is able to receive a signal from
  the lead locomotive of the train to initiate emergency braking from the rear of the train. ECP brakes are
  electronically controlled from the locomotive and can be used to initiate braking on all ECP-equipped cars in
  a train at substantially the same time. See ``Advanced Brake Signal Propagation Systems,'' below, for
  additional discussion.

    Based on these effectiveness and the associated incremental cost, 
PHMSA and FRA have chosen the 9/16 thickness due to its increased 
puncture resistance. See the RIA for this final rule for further 
analysis.
Conditional Probability of Release
    Many commenters who provided data and analysis in an effort to 
refute PHMSA and FRA modeling data did so with the use of the 
Conditional Probability of Release (CPR) modeling. In addition, some 
commenters challenged PHMSA and FRA modeling as a weakness in our 
analysis. In July 2014, FRA released a study conducted by Sharma and 
Associates entitled

[[Page 26674]]

``Objective Evaluation of Risk Reduction from Tank Car Design & 
Operations Improvements'' that describes a novel and objective 
methodology for quantifying and characterizing the reductions in risk 
(or reductions in puncture probabilities) that resulted from changes to 
tank car designs or the tank car operating environment. This approach 
can be used as an alternative to CPR when describing tank car 
performance. The report is placed in the docket for this proceeding at 
PHMSA-2012-0082-0209 which can be accessed online at 
www.regulations.gov. The following is an excerpt from the study 
relevant to this discussion:

    The methodology captures several parameters that are relevant to 
tank car derailment performance, including multiple derailment 
scenarios, derailment dynamics, impact load distributions, impactor 
sizes, operating conditions, tank car designs, etc., and combines 
them into a consistent probabilistic framework to estimate the 
relative merit of proposed mitigation strategies.
    The industry's approach (CPR) to addressing these questions has 
been to rely on past statistical data from accidents. RA-05-02, a 
report published by industry, and its more recent derivatives, have 
been used by the Association of American Railroads (AAR) and other 
industry partners as a means to address the above questions, in so 
far, as it relates to thickness changes. This approach has 
shortcomings, such as:
     Limited applicability--cannot be applied to innovative 
designs or alternate operating conditions
     Inconsistency--risk numbers seem to change with the 
version of the data/model being used
     Based on a limited dataset, that may not have good 
representation from all potential hazards, particularly low 
probability-high consequence hazards, and car designs/features 
present only in limited quantities in the general population of tank 
cars.
    While the statistical data may be useful as a general gauge for 
safety, it does not make a valuable tool for future engineering 
decisions, or, for setting standards. Therefore, there is a distinct 
need to develop an objective, analytical approach to evaluate the 
overall safety performance and the relative risk reduction, 
resulting from changes to tank car design or railroad operating 
practices. The research effort described here addresses this need 
through a methodology that ties together the load environment under 
impact conditions with analytical/test based measures of tank car 
puncture resistance capacity, further adapted for expected operating 
conditions, to calculate resultant puncture probabilities and risk 
reduction in an objective manner. While not intended to predict the 
precise results of a given accident, this methodology provides a 
basis for comparing the relative benefits or risk reduction 
resulting from various mitigation strategies.

    In addition, some commenters challenged PHMSA and FRA modeling as a 
weakness in our analysis. For example, Dr. Steven Kirkpatrick of 
Applied Research Associates, Inc., in his September 29, 2014, comments 
to the NPRM, entitled ``Review of Analyses Supporting the Pipeline and 
Hazardous Materials Safety Administration HM-251 Notice of Proposed 
Rulemaking, Technical Report,'' challenged the methodology used in the 
July 2014 Sharma & Associates study. These comments were combined with 
the AAR and its TTCI comments under docket reference number PHMSA-2012-
0082-3378 of this proceeding.
    PHMSA and FRA stand behind the assumptions, conclusions, and 
methodology used in the Sharma Associates study on puncture resistance. 
In addition, based on the comments received this methodology was 
modified, where appropriate, to provide better results. Specific 
modifications are discussed below. For a more comprehensive discussion, 
see the RIA.
     The effect of derailment occurring at different locations 
throughout the train was included in the calculations.
     In the NPRM, 12 scenarios were used for each calculated 
most probable number of cars punctured. The scenarios have been 
expanded to 18, based on 3 track stiffness values, 3 friction 
coefficients, and 2 derailment initiating force values.
     Multiple analyses have been conducted in which the 
impactor distribution was varied towards either larger or smaller 
impactors.
    In addition, the Review of Analyses Supporting the Pipeline and 
Hazardous Materials Safety Administration HM-251 Notice of Proposed 
Rulemaking, Technical Report offered some analysis PHMSA and FRA do not 
agree with. Below, PHMSA and FRA explain why they do not agree with 
some of the critiques put for the in that technical report. For a more 
comprehensive discussion see the RIA.
     PHMSA and FRA believe that the ``ground friction 
coefficient values'' used in the Sharma modeling analysis are 
methodical, reasonable, and adequate for the purposes of evaluating the 
relative performance of alternative tank car designs and determining 
the effectiveness rates of the proposed tank car design standards.
     PHMSA and FRA disagree with the Review of Analyses' 
critique of the Sharma modeling's ``assumed impactor distribution'' and 
reiterate that the Sharma modeling's assumptions are generally 
consistent with ``real life observations.'' In his critique, Dr. 
Kirkpatrick states that a larger impactor size should have been used 
for the analysis. However, in his report, ``Detailed Puncture Analyses 
Tank Cars: Analysis of Different Impactor Threats and Impact 
Conditions'', file name:TR_Detailed Puncture Analyses Tank 
Cars_20130321_final.pdf, page 2 (page 20 of PDF file) Dr. Kirkpatrick 
indicates smaller impactors sizes are appropriate.\48\
---------------------------------------------------------------------------

    \48\ Detailed Puncture Analyses Tank Cars: Analysis of Different 
Impactor Threats and Impact Conditions'' can be found at: http://www.fra.dot.gov/eLib/details/L04420.
---------------------------------------------------------------------------

    ``A significant finding from the first phases of the study is that 
there are many potential impact threats with a relatively small 
characteristic size. When the combinations of complex impactor shapes 
and off-axis impactor orientations are considered, many objects will 
have the puncture potential of an impactor with a characteristic size 
equal to or smaller than the 6-inch impactor used in previous tank car 
tests.''
     PHMSA and FRA are confident that the findings for the 
number of tank cars derailed in derailment simulations are largely 
consistent with the ``spread seen in actual derailment data.''
    The methodology used for calculating the effectiveness of the 
enhanced tank car design features, is covered in detail in the RIA. By 
combining well-established and new research with recent, directly 
applicable derailment data, this method appropriately considers the 
unique risks associated with the operation of HHFTs. The table below 
provides the calculated effectiveness rates of the proposed new car 
specification and retrofit specification relative to existing tank 
cars.

  Table 17--Effectiveness of Newly Constructed and Retrofitted Tank Car
                                 Options
------------------------------------------------------------------------
 
------------------------------------------------------------------------
  Effectiveness rates of the PHMSA/FRA (NPRM Option 1) relative to the
                                following
------------------------------------------------------------------------
DOT-111 non-jacketed.....................................        * 0.504
CPC-1232 non-jacketed....................................          0.368
DOT-111 jacketed.........................................          0.428
CPC-1232 jacketed........................................          0.162
------------------------------------------------------------------------
  Effectiveness Rates of the Enhanced Jacketed CPC-1232 (NPRM Option 3)
                        relative to the Following
------------------------------------------------------------------------
DOT-111 non-jacketed.....................................          0.459
CPC-1232 non-jacketed....................................          0.31
DOT-111 jacketed.........................................          0.376
CPC-1232 jacketed........................................          0.01
------------------------------------------------------------------------
* These figures represent the percent effectiveness when comparing the
  DOT-117 and DOT-117R against the existing fleet in the first column.
  For example a DOT-117 is 50% more effective than a DOT-111 non-
  jacketed


[[Page 26675]]

Weight Penalty
    Some commenters raised concerns about potential loss of lading 
capacity due to the increased weight of the new tank cars. Concerns 
were raised about the loss of capacity of new or retrofitted tank cars 
because of the increased weight of the tank car resulting from the 
added safety features. The additional features that will affect the 
tare weight of the tank car include an 11-gauge jacket, thicker shell 
and full height, \1/2\-inch thick head shield.
    The majority of commenters in the rail and shipping industries 
cited the potential loss of lading capacity due to the increased weight 
of the new tank cars as a central concern related to the selection of a 
tank car specification. While most comments from the rail and shipping 
industries were concerned with potential loss of lading capacity, one 
commenter, Greenbrier, actually refuted the claims of weight issues 
made by a larger portion of the regulated community. It noted that 
there are those:

who suggest that a \9/16\ inch shell thickness will significantly 
lower the volume capacity of the tank car. The legacy DOT-111 tank 
cars were limited to 263,000 pounds total weight on rail. Recently, 
the AAR and FRA increased that limit to 286,000 pounds, or a 23,000 
pound increase. Greenbrier's legacy 263,000 pounds, 30,000 gallon, 
tank cars weigh 68,000 pounds (light weight) and have a load limit 
of 195,000 pounds. Greenbrier's proposed tank car of the future with 
a \9/16\ inch shell weighs 90,500 pounds, has a volume capacity of 
30,000 gallons and a load limit of 195,500 pounds. In other words, 
while the weight of the proposed car increases by 22,500 pounds, the 
volume capacity actually increases by 100 gallons and the weight 
capacity increases by 500 pounds.

    PHMSA and FRA disagree with commenters' claims that the rule will 
necessarily reduce the load limit (i.e. the weight of the lading) of 
current and future crude and ethanol tank cars in the absence of this 
rule, and consequently disagrees with the claim that the increased tare 
weight will necessitate an increase in the number of carloads required 
to move a given amount of product. The maximum allowable GRL is 286,000 
pounds. PHMSA and FRA believe that, for all but an inconsequentially 
small number of such tank car loads, the difference between the current 
weight of a loaded car using standard operating practices and 286,000 
lbs. is more than the weight that will need to be added to comply with 
this rule. This is true for both the current crude and ethanol fleet 
and new tank cars (including jacketed and non-jacketed CPC-1232 cars) 
as they would have been placed into this service over the next 20 years 
in the absence of this rule. Therefore, the vast majority of tank cars 
will be able to comply with this rule without realizing any meaningful 
loss in capacity. Consequently we have not accounted for any capacity 
losses in our analysis. The issue of a weight and capacity limitations 
is addressed in-depth in the RIA.
Conclusion
    Based on the previous discussion as well as the RIA, in this final 
rule, PHMSA and FRA are adopting Option 2 (see braking section of this 
rulemaking for discussion of braking systems to be included on tank 
cars) as the DOT Specification 117 tank car standard for new 
construction. The table below further summarizes details of the adopted 
enhanced tank car design standard (DOT specification 117) compared with 
the DOT 111A100W1 Specification currently authorized.

                                                                   Table 18--Safety Features of DOT Specification 117 Tank Car
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                    Thermal
           Tank car             Bottom  outlet     GRL      Head shield        Pressure     Shell thickness       Jacket       Tank  material    Top fittings      protection        Braking
                                    handle        (lbs.)        type         relief valve                                                         protection         system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Selected Option: DOT           Bottom outlet        286K  Full-height, \1/ Reclosing        \9/16\-inch      Minimum 11-      TC-128 Grade B,  Must be          Thermal          Dependent on
 Specification 117 Tank Car.    handle removed             2\ inch thick    pressure         Minimum.         gauge jacket     normalized       equipped per     protection       service
                                or designed to             head shield.     relief device.                    constructed      steel.           AAR              system in
                                prevent                                                                       from A1011                        Specifications   accordance
                                unintended                                                                    steel or                          for Tank Cars,   with Sec.
                                actuation                                                                     equivalent.                       appendix E       179.18.
                                during a train                                                                The jacket                        paragraph
                                accident.                                                                     must be                           10.2.1.
                                                                                                              weather-tight.
DOT 111A100W1................  Bottom Outlets       263K  Optional; Bare   Reclosing        \7/16\-inch      Jackets are      TC-128 Grade B,  Not required,    Optional.......  EOT device (See
Specification (Currently        are Optional.              Tanks half       pressure         Minimum.         optional.        normalized       when equipped                     49 CFR part
 Authorized).                                              height; Jacket   relief valve.                                      steel *.         per AAR                           232)
                                                           Tanks full                                                                           Specifications
                                                           height.                                                                              for Tank Cars,
                                                                                                                                                appendix E
                                                                                                                                                paragraph
                                                                                                                                                10.2.1.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* For the purposes of this figure, TC-128 Grade B normalized steel is used to provide a consistent comparison to the proposed options. Section 179.200-7 provides alternative materials, which
  are authorized for the DOT Specification 111.

2. Retrofit Standard
    In the August 1, 2014 NPRM, we proposed to require that existing 
tank cars meet the same DOT Specification 117 standard as new tank 
cars, except for the requirement to include top fittings protection. In 
this final rule, we are adopting retrofit requirements for existing 
tank cars in accordance with Option 3 from the NPRM (excluding top 
fittings protection and steel grade). If existing cars do not meet the 
retrofit standard by the adopted implementation timeline, they will not 
be authorized for use in HHFT service. See the ``Advanced Brake Signal 
Propagation Systems'' section of this rulemaking for discussion of 
braking systems to be included on tank cars.
    In Safety Recommendation R-12-5, the NTSB recommended that new and 
existing tank cars authorized for transportation of ethanol and crude 
oil in PG I and II be equipped with enhanced tank head and shell 
puncture resistance systems and top fittings protection. However, PHMSA 
chose not to include top fitting protections and changes in steel grade 
as part of any retrofit requirement, as the costliness of such retrofit 
is not supported with a corresponding appropriate safety

[[Page 26676]]

benefit.\49\ We do apply the retrofit standard to tank cars carrying 
all flammable liquids in HHFTs, and not just ethanol and crude oil in 
PG I and II. Retrofitted legacy DOT-111 tank cars will be designated as 
``DOT-117R.''
---------------------------------------------------------------------------

    \49\ The cost to retrofitting a tank car with the proposed top 
fitting protection is estimated to be $24,500 per tank car, while 
the comparable effectiveness rates are low. However, the 
effectiveness rates were calculated assuming cars punctured would 
release all lading through the breach regardless of top fittings 
damage. With improved puncture resistance, lading loss through 
damaged top fittings will become a more significant point of 
release.
---------------------------------------------------------------------------

    In consideration of adopting a retrofit standard, two aspects were 
considered thoroughly: (1) The technical specifications of the retrofit 
standard compared to the current fleet composition and (2) the 
corresponding retrofit schedule timeline. The timeline for retrofits 
will be discussed in greater detail in the upcoming section of this 
document entitled ``Implementation Timeline.'' In this section, we will 
focus on the technical specifications of the retrofit standard when 
compared with the current fleet composition.
    PHMSA firmly believes that reliance on HHFTs to transport millions 
of gallons of flammable liquids is a risk that must be addressed. For 
the purposes of flammable liquids, under the proposals in the August 1, 
2014 NPRM, the legacy DOT Specification 111 tank car would no longer be 
authorized for use in an HHFT after the dates specified in the proposed 
retrofit schedule. In recent derailments of HHFTs, the DOT 
Specification 111 and CPC-1232 tank car has been identified as 
providing insufficient puncture resistance, being vulnerable to fire 
and top-fittings damage, and they have bottom outlet valves that are 
can be inadvertently opened in accident scenarios. These risks have 
been demonstrated by recent accidents of HHFTs transporting flammable 
liquids.
    In the August 1, 2014, NPRM, we proposed to limit continued use of 
the DOT Specification 111 tank car to non-HHFTs. In addition, we 
proposed to authorize the continued use of legacy DOT Specification 111 
tank cars in combustible liquid service. The risks associated with 
flammable liquids, such as crude oil and ethanol, are greater than 
those of combustible liquids. The requirements proposed in the NPRM 
were not applicable to HHFTs of materials that are classed or reclassed 
as a combustible liquid. Existing HMR requirements for combustible 
liquids will not change as a result of this final rule. Thus, except 
for those tank cars intended for combustible liquid service, after the 
established implementation timeline, any tank car used in a HHFT must 
meet or exceed the DOT Specification 117, 117P, or the 117R standard. 
Those tank cars not retrofitted would be retired or repurposed. 
Further, if it can be demonstrated that an existing tank car can meet 
the new performance standards, it will be authorized for use in a HHFT 
as a DOT Specification117P.
General Retrofit Comments
    We received a variety of comments representing differing viewpoints 
in response to the proposed tank car retrofit standard. Overall, 45 
commenters supported the retrofit of existing fleets; 56 commenters 
opposed the retrofit of the existing fleets and 41 commenters asserted 
the retrofit standards as proposed in the NPRM did not go far enough. 
We have summarized a few selected comments below to provide some idea 
of the overall comments.
    E.I. du Pont de Nemours and Company requests that PHMSA, 
``authorize the continued use of existing DOT 111 tank cars for non-
crude and non-ethanol Class 3 flammable service for the remainder of 
their useful life. Non-HHFT shipments of crude oil and ethanol also 
should be permitted in DOT 111 tank cars for the remainder of their 
useful life.''
    Eighty-Eight Oil, LLC asserted its belief that ``the CPC-1232 
jacketed fleet [should be permitted] to operate for its full useful 
life with a potential retrofit limited to an enhanced BOV handle and a 
larger pressure relief valve.''
    PHMSA sought to limit the unnecessary retirement or repurposing of 
tank cars while implementing meaningful safety improvements on the 
existing fleet. This final rule requires the tank cars used in an HHFT 
to be retrofitted to specifications equivalent to Option 3 in the NPRM. 
This enables tank car owners to realize the full useful life of an 
asset. The final rule does not impact existing DOT-111 tank cars used 
in Class 3 flammable service that are not a part of an HHFT.
    In support of retrofitting existing fleets, GBW noted that:

    GBW will be making substantial capital investments and will 
hire, train, and certify 400 new employees over the next year, 
creating jobs throughout the United States. Moreover, GBW is making 
its capital investments now to expand retrofit capacity and 
conducting hiring activity in advance of a final rule.

    In its comments, Bridger noted their economic concerns over an 
overly burdensome retrofit standard, noting ``the economics of 
retrofitting the older and cheaper DOT-111 tank cars is considerably 
different from the economics of retrofitting the newer and costlier 
CPC-1232 tank cars.'' Bridger's main concern is that the price of tank 
cars has increased significantly, with a CPC-1232 costing 80% more (in 
2014) than the DOT-111 (in 2008); and it noted this is very important 
because it is not equitable, as its competitors have less costs per 
tank car and undergo the same operations (using a retrofitted DOT-111).
    The comments of Edward D. Biggs III question whether any other 
modifications (including jacketing) for DOT 111 tank cars built with 
normalized steel shells are necessary.
    Cargill estimated that it would cost in excess of $45 million to 
retrofit its existing fleet of tank cars. Cargill expects that 
retrofitting costs will be $60,000 per tank car, more than twice the 
figure assumed by PHMSA.
    In its comments, AFPM stated that it supports ``the Option 3 
specification for new and retrofitted rail tank cars shipping crude and 
ethanol in unit trains of 75 cars or more. The Option 3 specification 
tank car is an enhanced CPC-1232 tank car with a 7/16'' shell and other 
enhanced safety features. The Option 1 and 2 tank cars with a 9/16'' 
shell provide only negligible safety benefits at a substantial 
incremental cost.''
    The RSI-CTC supported retrofits in accordance with Option 3 for all 
PG I and PG II flammable liquid tank cars. But it supports only the 
addition of PRV and BOV protection at requalification for Class 3, PG 
III tank cars. RLBA echoes RSI-CTC with its recommendation that 
existing cars be retrofitted with the latest design of self-closing 
high capacity over pressure devices that meet the same standards as new 
car construction.
    In addition to the previous general comments on the retrofitting of 
existing tank cars, the following notable issues were frequently cited 
when discussing the topic. In the following, we discuss comments on 
each issue, concerns raised and our response to the comments.

Shop Capacity

    Numerous commenters asserted that shop capacity is insufficient to 
retrofit existing fleets in a timely and cost-effective manner or in 
accordance with the schedule proposed in the NPRM. Specifically, RSI-
CTC noted that there are tiers of retrofitting that vary based on 
complexity. For example, retrofitting a legacy non-jacketed DOT-111 is 
a much more intensive process than retrofitting the most recent 
jacketed CPC-1232. RSI-CTC asked in their

[[Page 26677]]

comments that PHMSA and FRA consider the complexity of these retrofits 
and the shop capacity to complete them in our analysis. We agree and 
have since revised our analysis accordingly. See RIA. Below are some 
additional comments that represent issues related to shop capacity.
    In its comments, Eighty-Eight Oil, LLC stated, ``[a]ccording to the 
regulatory impact analysis in the NPRM (page 89), PHMSA suggests that 
66,185 cars can be retrofitted over 3 years, or 22,061 cars per year. 
This estimate is considerably higher than the AllTranstek study 
estimate of 3,000 per year or RSI's estimate of 5,700 per year (after a 
one year ramp up period).'' \50\ Eighty-Eight Oil, LLC continues, 
``during this timeframe, thousands of new cars were manufactured to 
handle the growing business but there has not been a repair facility of 
any significant size put into service. The costs of retrofitting 
existing cars will cause many cars to be retired rather than retrofit 
thus adding to the shortage of cars in the network.''
---------------------------------------------------------------------------

    \50\ It should be noted that this estimate was later revised to 
6,400 units per year by RSI-CTC.
---------------------------------------------------------------------------

    Honeywell Performance Materials and Technologies stated that the 
``backlog for present mechanical needs and requalification on all tank 
cars will be increased.'' In addition a report commissioned by RSI and 
authored by Brattle noted that shop capacity could be a considerable 
issue when determining a retrofit standard.\51\ A similar report 
commissioned by API and authored by IFC international noted similar 
concerns.\52\ API also expressed implementation concerns about shop 
capacity, the current backlog of car orders, and engineering capacity. 
Both these reports are discussed in the final RIA but it should be 
noted both these reports based their findings on the 5 year retrofit 
schedule which has since be revised.
---------------------------------------------------------------------------

    \51\ See http://www.regulations.gov/#!documentDetail;D=PHMSA-
2012-0082-3415.
    \52\ See http://www.regulations.gov/#!documentDetail;D=PHMSA-
2012-0082-3418.
---------------------------------------------------------------------------

    In general, commenters expressed concern about the availability of 
materials, the availability of skilled labor, and facilities to conduct 
the needed procedures involved in a retrofit. PHMSA and FRA considered 
these and other concerns when determining a retrofit standard.
    PHMSA and FRA understand the concerns with regard to shop 
capacities. Specifically, concerns about the time that will be required 
to acquire additional resources needed to build and ramp up facilitates 
to conduct retrofits, as well as the manufacturing and supply of the 
materials needed for the components of the tank cars (i.e., steel 
plates and sheets, new valves, etc.). PHMSA and FRA also understand the 
limitations of the existing labor force. For example, a skilled labor 
force (welders, metal workers, machinists, etc.) must be hired and 
trained to perform the necessary retrofit work correctly and safely. We 
agree with many of the issues raised by commenters and have revised our 
analysis with regard to the retrofit standard.
Trucks
    Many public commenters raised technical issues and potential 
implementation problems from an industry-wide retrofit for HHFTs. For 
example, the API public comment noted issues with the extra weight on 
stub sills and tank car structures, and issues with head shields and 
brake wheels/end platforms, and issues with truck replacement. Below is 
a list of comments that represent concerns over how the retrofit 
standard will affect the existing trucks of tank cars.
    Amsted Rail believes PHMSA underestimated the cost of a new car 
and, in its comments, lists the prices for several components, 
suggesting $20,000 for complete car set of new trucks versus the 
$16,000 amount used by PHMSA.
    It is RSI-CTC's understanding that modifications will add 13,000 
pounds to cars; that trucks will require modification from 263,000 to 
286,000; and that new wheel sets will cost $10,000 per car; and that 
new roller bearings, axles, and adaptor possibly will be added to the 
car. In its comments, Amsted Rail Company, Inc. also asserted that 
trucks will need replacement on 29,302 ethanol tank cars (pre 2011), 
28,300 crude oil tank cars (pre CPC-1232), and 36,000 tank cars in 
``other'' Class 3 flammable liquid service.
    PHMSA and FRA believe that the majority of tank cars constructed in 
the last decade are equipped with trucks, save a particular sized 
bearing and bearing adaptor, that are rated for 286,000 pound gross 
rail load service. Further, the AAR's Engineering and Equipment 
Committee rules require replacement of trucks (bolster and side frames) 
and wheel sets when the gross rail load of a rail car is increased from 
263,000 to 286,000 pounds. As a result, what would otherwise be a 
relatively small cost of approximately $2,000 to replace the bearing 
and adaptor, car owners are required to replace the trucks and wheel 
sets at the cost of $24,000/truck. The paucity of data distinguishing 
the cars that need a major versus minor retrofit leads PHMSA to 
conservatively assume all DOT legacy tank cars will require the 
replacement of the trucks and wheel sets.
Repurpose/Retirement
    In the August 1, 2014 NPRM, we proposed, except for top fittings 
protection, to require existing tank cars that are used to transport 
flammable liquids as part of a HHFT to be retrofitted to meet the 
selected option. Those not retrofitted would be retired, repurposed, or 
operated under speed restrictions for up to five years, based on the 
packing group assignment of the lading being transported. The following 
commenters had varying opinions about this assumed strategy.
    The RSI-CTC asserted that the minimum early retired tank cars 
rather than retrofit will be approximately 28% (25,600 tank cars). 
However, the AAR supports the repurposing of legacy tank cars to 
Canadian oil sands service. Eastman Chemical Company ``. . . also 
agrees with PHMSA's proposal to retain the exception that permits 
flammable liquids with a flash point at or above 38 [deg]C 
(100[emsp14][deg]F) to be reclassified as combustible liquids and allow 
existing DOT Specification 111 tank cars to continue to be authorized 
for these materials.''
    The Massachusetts Water Resources Authority, ``supports the 
requirement of Packing Group III in the enhanced car standards as this 
provides consistency in providing packaging appropriate to handle all 
flammable liquids. These flammable liquids pose a safety and 
environmental risk regardless of the packing group.''
    Bridger, does not agree with PHMSA's assumption that DOT-111 
jacketed and CPC-1232 jacketed cars would be repurposed for use in 
Canadian oil sands service, as it requires heating coils and insulation 
in the tank car.
    The Independent Petroleum Association of America (IPAA) stated in 
its comments, ``PHMSA's timeline for DOT-111 railcars is predicated on 
the assumption that DOT-111s now in use for PG I or PG II hazmat will 
be moved into PG III service. Even heavy Canadian crudes once mixed 
with diluents and shipped as ``dilbit'' or ``railbit'' are not expected 
to qualify as PG III materials, and therefore will not qualify as a 
home for the displaced DOT-111 railcars.''
    DGAC asserted, ``[t]here is an assumption that all Legacy DOT 111 
Jacketed and CPC-1232 Jacketed tank cars would be assigned to Canadian 
oil sands; however, under Transport Canada, these cars may also have to 
be retrofitted based on regulations.''

[[Page 26678]]

    Growth Energy suggests the shift to Canadian oil sands service is 
greatly overestimated, and underestimates the costs of doing so 
(requires retrofit for heating coils), costs of moving cars, and the 
costs of moving leases. According to Exxon Mobil Corporation, ``[t]he 
DOT proposal to move DOT-111 tank cars to oil sands service is not 
feasible as the diluted bitumen to be shipped is PG I or II and carried 
predominantly in unit trains. There is limited projected growth in 
other, non-flammable products moved by rail.''
    In their comments, Earthjustice, Forest Ethics, Sierra Club, NRDC, 
and Oil Change International asserted, ``the proposed rule would allow 
the DOT-111 and other unsafe tank cars to be shifted to tar sands 
service. The rule is thin on analysis to support this shift. However, 
on its face, it would be indefensible to allow unsafe tank cars to be 
used to ship tar sands bitumen diluted with chemicals that contain 
volatile components. Accidents involving diluted bitumen are notorious 
for being impossible to clean up.''
    Based on these and other comments, PHMSA and FRA acknowledge that 
the assumption of no retirements and the level of repurposing needed to 
be revisited. In response to these comments, PHMSA and FRA have made 
adjustments to their analysis, and the final RIA to account for 
retirements as opposed to shifting of tank cars to tar sand service.
    Many of the comments with regard to new construction also apply to 
the retrofit specifications. Below PHMSA and FRA discuss the various 
components of a retrofit tank car specification (see also new 
construction as many of those comments apply to both new and existing 
tank cars). The below discussion highlight those comments that were 
focused on the retrofit standard.
Shell Thickness
    Many commenters posed a concern that a retrofit standard that 
called for an increased thickness would be technically infeasible and 
result in the scrapping of existing tank cars. For instance, in its 
comments, Cargill asserted that it is not feasible to retrofit an 
existing tank car built with a \7/16\-inch steel shell to conform to a 
\9/16\-inch shell requirement. RSI-CTC also stated that Option 1 is not 
feasible for retrofits. Further, GBW ``does not believe it is practical 
or economically feasible to bring existing tank cars fully up to the 
proposed standards for new tank cars particularly with respect to the 
\9/16\ inch shell thickness proposed for the Option 1 and Option 2 tank 
car.''
    PHMSA and FRA understand the concerns of the commenters and note 
the intent of the rule was not to require adding thickness to existing 
tank cars, but rather to improve the puncture resistance to the 
existing cars to be equivalent to a tank with a thicker shell. As it 
would not be technically feasible to add \1/8\th of an inch of steel to 
a \7/16\-inch shell and head when retrofitting a tank car, PHMSA will 
permit existing DOT-111 fleets to be retrofitted at currently 
authorized shell thicknesses (\7/16\-inch).
Top Fittings Protection
    The NTSB believes that any retrofits should have top fittings 
protection, citing incidents in Cherry Valley, IL and Tiskilwa, IL due 
to where those tank cars breached. NSTB stated they will not consider 
Safety Recommendation R-12-5 as ``acceptable'' unless top fittings 
protection is included in the retrofitting requirements.
    PHMSA is aware that the AAR Tank Car Committee has started a task 
force to evaluate potential advancements in existing top fittings 
protections. PHMSA and FRA urge industry to consider enhancements that 
will apply to both new and retrofitted tank cars. PHMSA and FRA are not 
requiring such protection in a tank car retrofit in this final rule. 
While we do believe this is an important safety feature, it is not cost 
justified.
Thermal Protection Systems/Pressure Relief Device
    In its comments, the Dow stated, ``[it] does support thermal 
protection for crude oil and ethanol . . . Dow suggests that PHMSA 
consider non-CPC-1232 cars to be a higher retrofitting priority.'' Dow 
continues, ``[h]owever, addition of insulation and a jacket to existing 
DOT Specification 111 cars may introduce Plate clearance issues, so not 
all existing cars will be able to be retrofitted. Additionally, methods 
for attaching heavier jackets to prevent shifting during train handling 
will require engineering analysis; finite element analysis of the stub 
sill design may also be necessary to determine if existing designs are 
capable of handling the increased weight. Estimated cost for all the 
engineering and AAR approval application fees is $85,000 per 
certificate of construction, as per a major rail supplier.''
    PHMSA and FRA do not agree. As stated above, in the Arcadia 
derailment, there were three high-energy thermal failures. In two of 
the three cases, the tank fractured into two pieces and those pieces 
were thrown from the derailment area. In the third case, the tank was 
nearly fractured around the entire circumference. In addition, NTSB 
restated the importance of thermal protection in their April 6, 2015 
Recommendations. These recommendations, R-15-14 and 15, requested that 
PHMSA require that all new and existing tank cars used to transport all 
Class 3 flammable liquids be equipped with thermal protection systems 
that meet or exceed the thermal performance standards outlined in Title 
49 Code of Federal Regulations 179.18(a) and be equipped with 
appropriately sized pressure relief devices that allow the release of 
pressure under fire conditions to ensure thermal performance that meets 
or exceeds the requirements of Title 49 Code of Federal Regulations 
179.18(a), and that minimizes the likelihood of energetic thermal 
ruptures.
    Jackets and thermal protection are critical in the survival of a 
tank car experiencing a thermal event. Thus, thermal protection is 
adopted as proposed. However, we do note that the new regulation 
provides flexibility for innovation to meet the performance standard.
Steel Retrofit
    Much like the argument against requiring added thickness to 
retrofitted cars, many posed the relevant concern that a retrofit 
standard that called for a change in the type of steel used would be 
technically infeasible and result in the scrapping of existing tank 
cars. The RSI-CTC requests that non-normalized steel tank cars should 
be authorized for retrofit as there are 47,300 DOT-111 tank cars 
currently in service. Normalizing the steel after the tank car has been 
constructed is impractical. The requirements to this would create 
considerable cost which would not increase the ultimate strength of the 
steel.
    Normalization does change the mechanical properties of the steel; 
specifically, a slight improvement in upper shelf toughness and a shift 
to a lower ductile-brittle transition temperature. PHMSA and FRA 
understand the concerns of the commenters and note the intent of the 
rule was not to require a change to the materials specification to 
existing tank cars, but rather to improve the puncture resistance to 
the existing cars to be equivalent to a tank constructed of the 
referenced steel. PHMSA and FRA believe that should a car owner decide 
to retrofit a tank car, the owner must consider the material properties 
of normalized steel on the design of the retrofit.

[[Page 26679]]

However, tank cars otherwise conforming to the HMR and manufactured of 
non-normalized steel may remain in service when retrofitted.
Conclusion
    Except for top fittings protection and steel retrofit, retrofits 
will conform to Option 3, subject to brake requirements that depend on 
the tank car's service, and will be designated ``DOT Specification 
117R.'' The retrofit requirements include the addition of an 11-gauge 
jacket, full height head shield, and a modified bottom outlet 
configuration.

                                                            Table 19--Safety Features of Retrofitted DOT Specification 117R Tank Car
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                                    Thermal
           Tank car              Bottom outlet     GRL      Head shield    Pressure relief  Shell thickness       Jacket       Tank material     Top fittings      protection        Braking
                                    handle        (lbs.)        type            valve                                                             protection         system
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Selected option: DOT           Bottom outlet        286K  Full-height, \1/ Reclosing        \7/16\-inch      Minimum 11-      Authorized       Not required,    Thermal          Dependent on
 Specification 117R             handle removed             2\-inch thick    pressure         minimum.         gauge jacket     steel at the     but when         protection       service.
 retrofitted tank car.          or designed to             head shield.     relief valve.                     constructed      time of          equipped per     system in
                                prevent                                                                       from A1011       construction.    AAR              accordance
                                unintended                                                                    steel or                          Specifications   with Sec.
                                actuation                                                                     equivalent.                       for Tank Cars,   179.18.
                                during a train                                                                The jacket                        appendix E
                                accident.                                                                     must be                           paragraph
                                                                                                              weather-tight.                    10.2.1.
DOT 111A100W1 Specification    Bottom outlets       263K  Optional; bare   Reclosing        \7/16\-inch-     Jackets are      TC-128 Grade B,  Not required,    Optional.......  EOT device (See
 (currently authorized).        are optional.              tanks half       pressure         minimum.         optional.        normalized       but when                          49 CFR part
                                                           height; jacket   relief valve.                                      steel *.         equipped per                      232).
                                                           tanks full                                                                           AAR
                                                           height.                                                                              Specifications
                                                                                                                                                for Tank Cars,
                                                                                                                                                appendix E
                                                                                                                                                paragraph
                                                                                                                                                10.2.1.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* For the purposes of this figure, TC-128 Grade B normalized steel is used to provide a consistent comparison to the proposed options. Section 179.200-7 provides alternative materials which
  are authorized for the DOT Specification 111.

3. Performance Standard
    The prescribed performance standards adopted in this rule were 
developed to provide improved crashworthiness when compared to the 
legacy DOT-111 tank car and to foster innovation in the development of 
tank cars. In the NPRM, PHMSA and FRA proposed a performance standard 
in which the design, modeling and testing results would be approved by 
the Associate Administrator for Railroad Safety/Chief Safety Officer at 
FRA.
    Accordingly, the final rule requires that the tank car design must 
be approved, and the tank car must be constructed to the conditions of 
an approval issued by the Associate Administrator for Railroad Safety/
Chief Safety Officer, FRA. The performance of the tank car is subject 
to the following:
Puncture Resistance
    The tank car must be able to withstand a minimum side impact speed 
of 12 mph when impacted at the longitudinal and vertical center of the 
shell by a rigid 12-inch by 12-inch indenter with a weight of 286,000 
pounds. Further, the tank car must be able to withstand a minimum head 
impact speed of 18 mph when impacted at the center of the head by a 
rigid 12-inch by 12-inch indenter with a weight of 286,000 pounds.
Thermal Protection Systems/Pressure Relief Device
    The tank car must be equipped with a thermal protection system. The 
thermal protection system must be designed in accordance with Sec.  
179.18 and include a reclosing PRD in accordance with Sec.  173.31 of 
this subchapter.
Bottom Outlet
    If the tank car is equipped with a bottom outlet, the handle must 
be removed prior to train movement or be designed with a protection 
safety system to prevent unintended actuation during train accident 
scenarios.
Top Fittings Protection
    Tank cars tanks meeting the performance standard must be equipped 
per AAR Specifications Tank Cars, appendix E paragraph 10.2.1 (IBR, see 
Sec.  171.7 of this subchapter). A tank car that meets the performance 
requirements will be assigned to ``DOT Specification 117P.'' Builders 
must be able to demonstrate compliance with the performance standards 
and receive FRA approval prior to building the cars.
4. Implementation Timeline
    In the August 1, 2014 NPRM, we proposed a risk-based timeline for 
continued use of the DOT-111 tank car used in HHFTs in Sec. Sec.  
173.241, 173.242, and 173.243. This timeline was based on the packing 
group requirements in the HMR. The HMR require both the proper 
classification of hazardous materials and the selection and use of an 
authorized packaging. Packing groups assign a degree of danger posed 
within a particular hazard class. Packing Group I poses the highest 
danger (``great danger'') and Packing Group III the lowest (``minor 
danger''). In the NPRM, PHMSA proposed a timeline in accordance with 
the following table:

 Table 20--Timeline for Continued Use of DOT Specification 111 Tank Cars
                             in HHFT Service
------------------------------------------------------------------------
               Packing group                DOT-111 not authorized after
------------------------------------------------------------------------
I.........................................  October 1, 2017.
II........................................  October 1, 2018.
III.......................................  October 1, 2020.
------------------------------------------------------------------------

    As discussed in the August 1, 2014 NPRM, PHMSA and FRA were 
confident the risk-based approach proposed provided sufficient time for 
car owners to update existing fleets while still prioritizing the 
highest danger material. Specifically, given the estimates of the 
current fleet size, composition, and production capacity of tank car 
manufacturers expressed by

[[Page 26680]]

comments submitted in response to the ANPRM, we were confident that a 
two year phase-in of packing group I flammable liquids would not result 
in a shortage of available tank cars intended for HHFTs. This strategy 
would have also provided additional time for tank cars to meet the DOT 
Specification 117 performance standard if offerors were to take steps 
to reduce the volatility of the material. Nevertheless, we did seek 
comment as to whether the proposed phase-out period provided sufficient 
time to increase production capacity and retrofit existing fleets.
    As proposed in the August 1, 2014 NPRM, DOT Specification 111 tank 
cars may be retrofitted to DOT Specification 117 standards (as a DOT 
Specification 117R), retired, repurposed, or operated under speed 
restrictions. Further, we proposed limiting the future use of DOT 
Specification 111 tank cars only if these tank cars are used in a HHFT. 
Under the proposal, DOT Specification 111 tank cars would be able to 
continue to be used to transport other commodities, including flammable 
liquids, provided they are not in a HHFT. In addition, all retrofitted 
tank cars (including the DOT-111 tank cars meeting the CPC-1232 
standards) are authorized for use for their full service life. This 
proposal provided tank car owners and rail carriers with the 
opportunity to make operational changes that focus on the greatest 
risks and minimize the associated cost impacts. In response to the 
proposed amendments regarding the retrofit timeline, we received a 
variety of comments representing differing viewpoints.
Harmonization
    Commenters state that it is essential that the U.S. position on 
retrofit timelines is consistent with Canada's. PHMSA has been in close 
coordination with Transport Canada to ensure the seamless transition 
with regard to the retrofit of the existing North American DOT 
Specification 111 fleets. To that end, PHMSA recognizes the importance 
of harmonization and does not foresee any issues at this time with 
cross-border retrofit implementation timelines.
Retrofit Capacity
    The capability of the industry to handle retrofit tasks and 
requirements within the proposed timeline was a topic of great interest 
among commenters. Many questioned PHMSA and FRA's assumptions regarding 
the retrofit capacity of the industry. The comments summarized and 
discussed below provide an indication as to the commenters' main 
concerns on this topic.
    The Grain Processing Corporation requests that, ``when setting the 
timeline for compliance, please work closely with car builders to have 
an accurate understanding of when new cars can reasonably be made 
available to the market.'' This commenter further stated, ``current 
conditions indicate that it will take much more than three to five 
years to replace non-compliant cars in the market.''
    The American Chemistry Council (ACC) stated that tank car shop 
capacity will not support PHMSA's regulatory timeline and some ACC 
members have reported waits of approximately two years from when a tank 
car is ordered until the time it was delivered. The ACC also relayed 
RSI information stating that the current order backlog is about 53,000 
cars.''
    The Dakota Gasification Company asserts that:

    PHMSA should consider how an influx of a very large number of 
DOT 111 cars for retrofit in a market already seeing backlogs for 
routine maintenance work will permit shippers to meet the proposed 
timelines in the rule. The rulemaking states there are 80,500 DOT 
111 cars and 17,300 CPC 1232 cars in Flammable Service or a total of 
97,800 cars potentially in need of some form of retrofit. A record 
number of tank cars have been produced the past few years. 
Retrofitting this number of cars while keeping up with yearly 
maintenance and standard repairs will be unattainable within the 
proposed timeframe given the current shop system.

    In addition a report commissioned by RSI and authored by The 
Brattle Group noted that there could be considerable issues with a five 
year retrofit standard when considering production levels, fleet size 
and the predicted growth of both.\53\ A similar report commissioned by 
API and authored by ICF International noted similar concerns.\54\ API 
also expressed concerns about shop capacity, the current backlog of car 
orders, and engineering capacity. Both the RSI and the API reports are 
extensively discussed in the final RIA but it should be noted that both 
these reports based their findings on the NPRM's five-year retrofit 
schedule which has since been revised. Regardless, based on the 
comments received, PHMSA and FRA have modified our analysis and revised 
the final RIA to account for changes in retrofit capacity.
---------------------------------------------------------------------------

    \53\ See http://www.regulations.gov/#!documentDetail;D=PHMSA-
2012-0082-3415
    \54\ See http://www.regulations.gov/#!documentDetail;D=PHMSA-
2012-0082-3418
---------------------------------------------------------------------------

Retrofit Timeline (Length and Approach)
    Overall, commenters agree that retrofits must occur, but the 
suggested timelines range from zero to ten years. In addition, RSI and 
API commissioned separate reports that evaluated the NPRM's proposed 
timeline and demonstrated the potential detrimental effects of an 
overly aggressive timeline. PHMSA has summarized and discussed the 
differing viewpoints on the retrofit schedule.
    Generally, the comments of citizens, environmental groups, tribal 
communities and local government either supported the timeline as 
proposed in the NPRM or focused on an even more aggressive timeline 
than proposed. Some commenters even suggested the immediate ban of DOT 
111 Specification tank cars. For example, two tribal communities, the 
Quinault Indian Nation and the Prairie Island Indian Community, 
represented the views of many citizens, environmental groups when they 
stressed the need for an immediate and ``total phase-out of the DOT 
111.'' Amtrak encourages PHMSA to require the use of the selected 
option on as aggressive a schedule as manufacturing and retrofit 
capabilities permit.
    As demonstrated in the final RIA, PHMSA and FRA do not believe a 
more aggressive timeline than what was proposed in the NPRM is 
achievable or prudent. In fact, an overly aggressive timeline could 
have a negative impact on safety or the environment. See the 
environmental assessment for this rulemaking.
    The comments of the regulated industry regarding the implementation 
timeline varied, but a general consensus for a ten-year time frame 
emerged. The regulated community was generally consistent in noting 
that the timeline should account for both the tank car type and the 
packing group of the material.
    In addition to comments on the timeline, PHMSA and FRA received 
many comments on our packing group based approach. Specifically, many 
in the regulated community noted that while the proposed method is risk 
based, it only accounts for the risk of the material itself and not the 
risks posed by the various types of tank cars used in HHFTs. The 
general consensus was that a retrofit timeline that accounted for the 
type of tank car would provide the greatest risk reduction in the 
shortest amount of time. Below are some relevant comments regarding the 
proposed timeline.

[[Page 26681]]

    GBW suggested that, ``[w]hile the timeline [for retrofitting] is 
aggressive, the tank car repair industry, by expanded [sic] capacity at 
existing facilities and through new entrants into the industry, should 
be able to meet PHMSA's proposed timeline.''
    Further, RSI-CTC stated that PHMSA and FRA should retrofit crude 
oil and ethanol tank cars first then other Class 3 tank cars. It noted 
that retrofit capacity is only 6,400 units per year whereas PHMSA 
assumes 22,061 units per year. RSI-CTC continues, ``there are 50K non-
jacketed tank cars in service (23K crude and 27K ethanol/legacy and CPC 
1232) that cannot be retrofitted by 10/01/2017--only 15K can be 
retrofitted by that time.''
    Growth Energy requested a 3- to 10-year retrofit schedule. Arkema 
Inc., ``agrees with the RSI-CTC's December 5, 2013 recommendation to 
adopt, at a minimum, a 10-year program allowing compliance to be 
achieved in phases through modification, re-purposing or retirement of 
unmodified tank cars in Class 3, flammable liquid service.''
    Quantum Energy, Inc. stated, if PHMSA elects not to adopt this 
exclusion for treated crude oil that they support ``at minimum 
establishing a phase-out date of October 1, 2022 for the use of DOT-111 
tank cars in transporting stabilized crude oil.''
    The Washington Utilities and Transportation Commission (WUTC) 
stated that tank cars that meet the AAR CPC-1232 standards and were 
built after October 1, 2011, should be allowed to continue in service 
for their economic life, except for the transportation of Packing Group 
I materials past October 1, 2016. Further, WUTU recommends that the 
proposed timeline for phasing out DOT Specification 111 tank cars 
should be expedited for Packing Group I and II materials by a year, and 
that all existing tank cars more than 10 years old have a thorough tank 
shell thickness inspection to ensure the tank is suitable for PG II and 
PG III, Class 3 flammable liquids. Any tank that shows significant 
signs of corrosion should be taken out of crude, ethanol, and any other 
Packing Group I or II service immediately.
    Suggesting an alternate retrofit strategy, Eighty-Eight Oil, LLC 
stated, ``Eighty-Eight supports a 7 year retrofit schedule.'' According 
to Eighty Eight, the requirements for retrofitting cars will 
necessitate a longer time frame than proposed in the NPRM, given: the 
``car cleaning'' process and preparation for ``hot work'' or 
retrofitting; training workers for tank car repair work; approval (via 
the AAR) of high-flow pressure relief valve technology; and the 
enabling of the production of full height head shields within repair 
shops.
    In addition to these comments, RSI-CTC, API, Exxon, APFM and many 
others in the regulated industry provided specific alternative retrofit 
timelines which can be viewed in the docket for this rulemaking. PHMSA 
and FRA reviewed comments, alternative timelines, and data regarding 
the retrofit timeline and revised our implementation schedule 
accordingly. PHMSA is confident that retrofits can be accomplished in 
the revised timeline adopted in this final rule.
    In developing the retrofit schedule, PHMSA and FRA examined the 
available shop capacity, the comments received, historical performance 
of the rail industry dealing with retrofit requirements, and the 
potential impacts associated with the retrofit schedule.
    PHMSA has accepted feedback regarding its assumption of no 
retirements and the impracticality of transferring jacketed tank cars 
to tar sands service. This final rule and the RIA now consider the 
number of cars that could be retired early as a result of the rule and 
the associated costs of doing so. PHMSA believes that rail cars will be 
retired early when their owners have weighed the cost of meeting 
retrofit requirements against the marginal cost of acquiring a 
replacement rail car early.
    Further, to aid in the analysis of an appropriate retrofit 
timeline, FRA developed a model to project the tank car retrofit 
capacity over time. The model is based on Wright's learning curve 
theory, which suggests that every time the total number of units that 
have been produced doubles, productivity will increase by a given 
percentage. This percentage is known as the learning rate.
    The starting point of the analysis was to analyze the rail 
industry's forecast, as represented in the Brattle Group Report 
commissioned by RSI-CTC. Using the Brattle reports figure of 6,400 
retrofits per year the FRA model was able to determine that the Brattle 
report would have to assume 40 facilities would be required to dedicate 
one crew to retrofits. After making this determination on the number of 
facilities, FRA sought to include other variables to model additional 
potential scenarios. The intent being to depict the extent to which the 
``heavy retrofit'' \55\ capacity will increase to a degree over time. 
The variables for the FRA model included the learning rate, number of 
crews, and number of facilities. In the model, the values for these 
variables are: a learning rate of .95 (which is relatively low for 
similar industries) \56\, one crew (initially) per facility, and 40 
facilities.\57\ Using these values as the starting point, a parametric 
analysis was performed to show the values required to meet the industry 
forecasted production.
---------------------------------------------------------------------------

    \55\ Heavy retrofits include those that go beyond simply adding 
a valve and bottom outlet to the jacketed CPC-1232 cars.
    \56\ Represents a 5 percent rate of improvement. See http://www.fas.org/news/reference/calc/learn.htm.
    \57\ The variable of 40 facilities is a result of a parametric 
analysis. FRA also ran the model with 80, 60, and 40 facilities and 
40 enabled us to recreate industry's production forecast.
---------------------------------------------------------------------------

    To determine the capacity of the industry, FRA used facility 
registration data to identify 60 current tank car facilities capable of 
performing heavy retrofits. Further, FRA identified 160 tank car 
facilities capable of performing light modifications, which include 
adding a valve and bottom outlet to the jacketed CPC-1232 cars. FRA 
also accounts for industry concerns regarding the readiness of current 
tank car facilities to perform retrofit services by maintaining the 
ramp-up period provided by commenters. In addition to the existing 
capacity, FRA's model assumes that capacity will increase to a degree 
over time.
    FRA's model indicates the 6,400 retrofits per year would require 40 
facilities to dedicate one crew to these retrofits. As a result, the 
remaining capacity (60 total facilities identified by FRA) would focus 
on the normal workload including requalifications, bad order repairs, 
and reassignments. As a result, FRA's model assumes:
     40 facilities capable of heavy retrofits. FRA selected 
this number as a conservative estimate--in reality the number of 
facilities dedicated to heavy retrofits may be higher. It accounts for 
industry concerns regarding the readiness of current tank car 
facilities to perform retrofit services;
     A new crew (2 employees) will be added to each facility 
every 3 months, beginning in month 4;
     After 24 months, no additional resources are added; the 
only changes in capacity are based on the Wrights learning curve 
theory,\58\
---------------------------------------------------------------------------

    \58\ Every time production doubles the required resources and 
time, decrease by a given percentage, known as the learning rate. 
The learning rate for repetitive welding operations is 95 percent, 
meaning that when production doubles, the required resources and 
time are multiplied by 0.95.
---------------------------------------------------------------------------

     The learning rate is 0.95; and
     The learning rate is for the facility, not individuals. It 
is assumed the crew members all have the required skill set to perform 
the work.
    In support of these assumptions, Figure 2 indicates the cumulative

[[Page 26682]]

production schedule for industry's model (based on The Brattle Group 
report), as well as FRA's model. Based on these assumptions, the FRA 
model indicates that a heavy retrofit capacity exceeding the industry's 
projection is achievable.
[GRAPHIC] [TIFF OMITTED] TR08MY15.002

    The most extensive retrofits (the ``heavy retrofits'') would need 
to take place in the initial phases of the implementation timeline, 
thus making these stages critical to the overall implementation 
timeline. Stakeholders generally agree that a 120-month timeline for 
light retrofits is acceptable.
Conclusion
    In the NPRM the retrofit timeline was based on a single risk 
factor, the packing group. The packing group is a characteristic of the 
hazardous material. In the final rule the retrofit timeline was revised 
to focus on two risk factors, the packing group of the material and 
differing types of DOT-111 and CPC-1232 tank cars. By adding the 
additional risk factor, tank car type, we were able to not only account 
for the characteristics of the hazardous material but also those of the 
means of containment of that material. This revision as well as the 
outputs of FRA model discussed above provided an accelerated risk 
reduction that more appropriately addresses the overall risk. PHMSA and 
FRA also modified the overall length of the retrofit to account for 
issues raised by commenters. The rationale for the change in retrofit 
schedule is discussed in further detail in the RIA for this final rule.
    Based on the commenters' input and additional analysis, in this 
final rule, PHMSA and FRA are adopting a packing group- and tank car-
based implementation timeline for the retrofit of existing tank cars to 
the NPRM's Option 3 standard when used as part of HHFT. This risk-based 
retrofit schedule will be codified in authorized packaging section in 
part 173, subpart F of HMR and the prescriptive retrofit standard is 
detailed in Sec.  179.202-13. This timeline is based on public comment, 
the FRA modeling output and historical performance of the rail industry 
dealing with retrofit requirements. This timeline accounts for an 
initial ramp-up period as well as incremental improvements based on a 
learning curve throughout the implementation timeline. The 
implementation timeline adopted is outlined in the following table:

                     Table 21--Timeline for Continued Use of DOT Specification 111 (DOT-111)
                                            [Tanks for Use in HHFTs]
----------------------------------------------------------------------------------------------------------------
               Tank car type/service                                      Retrofit deadline
----------------------------------------------------------------------------------------------------------------
Non Jacketed DOT-111 tank cars in PG I service....  (January 1, 2017 *) January 1, 2018.
Jacketed DOT-111 tank cars in PG I service........  March 1, 2018.
Non-Jacketed CPC-1232 tank cars in PG I service...  April 1, 2020.
Non Jacketed DOT-111 tank cars in PG II service...  May 1, 2023.

[[Page 26683]]

 
Jacketed DOT-111 tank cars in PG II service.......  May 1, 2023.
Non-Jacketed CPC-1232 tank cars in PG II service..  July 1, 2023.
Jacketed CPC-1232 tank cars in PG I and PG II       May 1, 2025.
 service ** and all remaining tank cars carrying
 PG III materials in an HHFT (pressure relief
 valve and valve handles).
----------------------------------------------------------------------------------------------------------------
* The January 1, 2017 date would trigger a retrofit reporting requirement, and tank car owners of affected cars
  would have to report to DOT the number of tank cars that they own that have been retrofitted, and the number
  that have not yet been retrofitted.
** We anticipate these will be spread out throughout the 120 months and the retrofits will take place during
  normal requalification and maintenance schedule, which will likely result in fleet being retrofit sooner.

    Executive Orders 12866, 13563, and 13610 require agencies to 
provide a meaningful opportunity for public participation. Accordingly, 
PHMSA invited public comment twice (the September 6, 2013, ANPRM and 
August 1, 2014, NPRM) on retrofit timeline considerations, including 
any cost or benefit figures or other factors, alternative approaches, 
and relevant scientific, technical and economic data. Such comments 
aided PHMSA and FRA in the evaluation of the proposed requirements. 
PHMSA and FRA have since revised our proposed retrofit timelines to 
address the public comments received.
    PHMSA and FRA have made regulatory decisions within this final rule 
based upon the best currently available data and information. PHMSA and 
FRA are confident that retrofits can be accomplished in the revised 
timeline adopted in this final rule. However, PHMSA and FRA will 
continue to gather and analyze additional data. Executive Order 13610 
urges agencies to conduct retrospective analyses of existing rules to 
examine whether they remain justified and whether they should be 
modified or streamlined in light of changed circumstances, including 
the rise of new technologies. Consistent with its obligations under 
E.O. 13610, Identifying and Reducing Regulatory Burdens, PHMSA and FRA 
will retrospectively review all relevant provisions in this final rule, 
including industry progress toward meeting the established retrofit 
timeline.
    To this end, the first phase of the timeline includes a January 1, 
2017 deadline for retrofitting non-jacketed DOT-111 tank cars in PG I 
service. If the affected industry is unable to meet the January 1, 2017 
retrofit deadline a mandatory reporting requirement would be triggered. 
This reporting requirement would require owners of non-jacketed DOT-111 
tank cars in PG I service to report to Department of Transportation the 
following information regarding the retrofitting progress:
     The total number of tank cars retrofitted to meet the DOT-
117R specification;
     The total number of tank cars built or retrofitted to meet 
the DOT-117P specification;
     The total number of DOT-111 tank cars (including those 
built to CPC-1232 industry standard) that have not been modified;
     The total number of tank cars built to meet the DOT-117 
specification; and
     The total number of tank cars built or retrofitted to a 
DOT-117, 117R or 117P specification that are ECP brake ready or ECP 
brake equipped.
    While this requirement applies to any owner of non-jacketed DOT-111 
tank cars in PG I service, the Department of Transportation would 
accept a consolidated report from a group representing the affected 
industries. Furthermore, while not adhering to the January 1, 2017 
retrofit deadline triggers an initial reporting requirement, it would 
also trigger a requirement which would allow the Secretary of 
Transportation to request additional reports of the above information 
with reasonable notice.

C. Speed Restrictions

    Speed is a factor that contributes to derailments. Speed can 
influence the probability of an accident, as it may allow for a brake 
application to stop the train before a collision. Speed also increases 
the kinetic energy of a train resulting in a greater possibility of the 
tank cars being punctured in the event of a derailment. The kinetic 
energy of an object is the energy that it possesses due to its motion. 
It is defined as the work needed to accelerate or decelerate a body of 
a given mass.

    Kinetic Energy = \1/2\ (Mass) x (Velocity)2

    Based on this calculation, given a fixed mass, if an accident 
occurred at 40 mph instead of 50 mph, we should expect a reduction of 
kinetic energy of 36 percent. After consultations with engineers and 
subject matter experts, we can assume that this would translate to the 
severity of an accident being reduced by 36%. A slower speed may also 
allow a locomotive engineer to identify a safety problem ahead and stop 
the train before an accident occurs, which could lead to accident 
prevention.
    A purpose built model developed for FRA by Sharma and Associates, 
Inc. was used to simulate a number of derailment scenarios to evaluate 
the survivability of the tank cars proposed in the NPRM equipped with 
different brake systems and operating a range of speeds. The results of 
the simulations were the most probable number of tank cars derailed and 
punctured. The results were used to calculate the effectiveness of the 
tank car enhancements, speed reduction and brake systems individually 
in in combination with one or both of the other parameters. The model 
and simulation are discussed in detail in the March 2015 letter report 
prepared by Sharma and Associates, Inc. This letter report is available 
in the docket for this rulemaking.
    As tank car enhancements, brake systems, and speed are interrelated 
aspects of this rulemaking and can have an effect on each other, 
various combinations of these variables were evaluated by FRA modeling. 
For example, by modifying the variables of speed (30 mph-50 mph), tank 
car enhancements (shell thickness, steel type, jacketing and head 
shielding), and braking (TWEOT, DP and ECP), FRA was able to create a 
matrix which could compare the effectiveness and benefits of numerous 
combinations of these variables. The table below describes the speeds 
that were evaluated with the various combinations of tank car 
enhancements and braking systems.

       Table 22--Speeds Evaluated in the FRA's Purpose Built Model
------------------------------------------------------------------------
             Speeds evaluated                       Description
------------------------------------------------------------------------
50 mph...................................  Proposed maximum speed.
40 mph...................................  Proposed maximum speed in
                                            High-Threat Urban Areas.

[[Page 26684]]

 
30 mph...................................  Speed in the range at which
                                            most of derailments under
                                            consideration in this
                                            rulemaking occurred.
------------------------------------------------------------------------

    Given the data from FRA and Sharma & Associates, PHMSA anticipates 
the reductions in the speed of trains that employ less safe tank cars, 
such as the non-jacketed DOT-111 tank car, will prevent fatalities and 
injuries and limit the amount of damages to property and the 
environment in an accident. Simulation results indicate that limited 
safety benefits would be realized from a reduction in speed as the tank 
car fleet is enhanced as proposed in this NPRM. Please refer to the RIA 
for a detailed analysis of the impact of speed on the number of cars 
derailed and punctured when paired with a range of tank car 
enhancements and braking options.
    In response to the Secretary Foxx's Call to Action, the rail and 
crude oil industries agreed to consider voluntary operational 
improvements, including speed restrictions in high consequence areas. 
As a result of those efforts, railroads began operating certain trains 
at 40 mph on July 1, 2014. This voluntary restriction applies to any 
``Key Crude Oil Train'' with at least one non-CPC 1232 tank car or one 
non-DOT specification tank car while that train travels within the 
limits of any high-threat urban area (HTUA) as defined by 49 CFR 
1580.3.
    In the August 1, 2014, NPRM, PHMSA and FRA proposed to add a new 
Sec.  174.310 to include certain operational requirements for a HHFT. 
Among those operational requirements was a proposal to limit the speed 
of an HHFT. Specifically, the NPRM proposed to add a new Sec.  174.310 
to Part 174--Carriage by Rail that would establish a 50-mph maximum 
speed restriction for HHFTs. This 50-mph maximum speed restriction for 
HHFTs was generally consistent with the speed restrictions that the AAR 
issued in Circular No. OT-55-N on August 5, 2013.
    In Sec.  174.310(a)(3), PHMSA also proposed three options for a 40-
mph speed restriction for any HHFT unless all tank cars containing 
Class 3 flammable liquids meet or exceed the proposed standards for the 
DOT Specification 117 tank car. The three 40-mph speed limit options 
are as follows:
Option 1: 40-mph Speed Limit in All Areas
    All HHFTs are limited to a maximum speed of 40 mph, unless all tank 
cars containing flammable liquids meet or exceed the proposed 
performance standards for the DOT Specification 117 tank car.
Option 2: 40-mph Speed Limit in Areas With More Than 100,000 People
    All HHFTs--unless all tank cars containing flammable liquids meet 
or exceed the proposed standards for the DOT Specification 117 tank 
car--are limited to a maximum speed of 40 mph while operating in an 
area that has a population of more than 100,000 people.
Option 3: 40-mph Speed Limit in High-Threat Urban Areas (HTUAs)
    All HHFTs--unless all tank cars containing flammable liquids meet 
or exceed the proposed standards for the DOT Specification 117 tank 
car--are limited to a maximum speed of 40 mph while the train travels 
within the geographical limits of HTUAs.
    In addition, PHMSA proposed to add a new Sec.  174.310(a)(3)(iv) to 
Part 174--Carriage by Rail that would prohibit a rail carrier from 
operating HHFTs at speeds exceeding 30 mph if the rail carrier does not 
comply with the proposed braking requirements set forth in the Advanced 
Brake Signal Propagation Systems section of the NPRM. The intention of 
this requirement was to further reduce risks through speed restrictions 
and encourage adoption of newer braking technology while simultaneously 
reducing the burden on small rail carriers that may not have the 
capital available to install new braking systems.
    On the issue of speed restrictions, PHMSA received public comments 
representing approximately 90,821 signatories. Comments in response to 
the NPRM's speed restrictions were wide ranging, with comments both 
supporting and opposing speed restrictions. Some commenters supported 
the speed restrictions explicitly as they were proposed in the NPRM. 
Other commenters opposed the NPRM's speed restrictions and proposed 
alternatives, such as different speed limits or different geographical 
standards for use in determining where a speed limit is applicable. 
Further, many commenters did not directly support or oppose any of the 
proposed speed restrictions, but rather chose to comment generally. 
Below is a table detailing the types and amounts of commenters on the 
speed proposals.

             Table 23--Commenter Composition: Speed Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................          85,023
Individuals.............................................           5,475
Industry stakeholders...................................             265
Government organizations or representatives.............              58
                                                         ---------------
  Totals................................................          90,821
------------------------------------------------------------------------

    Overall, the comments of citizens, environmental groups, tribal 
communities and local government representatives supported more 
restrictive speed limits. These comments were essentially focused on 
how speed restrictions would provide safety benefits to local 
communities or the environment. Referencing data from the NPRM, these 
groups expressed concerns that derailments and releases of crude oil 
and ethanol present public safety risks and have occurred at lower 
speeds than the speed limits proposed in NPRM. Environmental groups and 
affiliated signatories, in particular, voiced concerns that releases of 
hazardous materials in derailments could have far-reaching adverse 
impacts on environmental quality, including water quality and 
biological diversity. Some commenters asked PHMSA to consider making 
the proposed speed restrictions applicable to specific environmental 
areas, such as in the vicinity of water resources or national parks. In 
illustration of these viewpoints, Clean Water Action has stated:

    The agencies' promotion of a 40 miles per hour speed, when in 
fact nine of the major 13 train accidents (Table 3 of the NPRM) 
occurred with speeds under 40 miles per hour does not seem justified 
nor is it in the public interest. Fire resulted in 10 of the 13 
accidents, three of which were involved in speeds over 40 miles per 
hour and five of which were between 30 miles per hour and 40 miles 
per hour. The 6 accidents involving crude oil resulted in over 1.2 
million gallons of oil being spilled [. . .] Clean Water Action 
encourages the agency to analyze reducing travel speeds to 30 mph 
and lower. [. . .] Clean Water Action respectfully encourages the 
agency to examine additional speed restrictions in areas near public 
drinking water supplies and sensitive environments.

    Three entities representing tribal communities, the Tulalip Tribes, 
the Prairie Island Indian Community and the Quinault Indian Nation, 
expressed specific concerns with regard to the speed restrictions 
proposed in the August 1, 2014, NPRM. The Tulalip Tribes noted that 
``[t]he maximum speed limit for the trains should not be higher than 
the maximum speed the rail cars

[[Page 26685]]

can survive in the case of an accident. Only lowering the speeds to 40 
miles per hour is inadequate to protect life and property.'' The 
Prairie Island Indian Community supported this viewpoint and expressed 
concern noting the proximity of a crude oil route to their primary 
residential area and gaming enterprise. They continued that they 
``would like to see the non-enhanced HHFT trains slowed down even 
further, to 30 miles per hour through residential areas or through 
areas with critical or sensitive infrastructure (like nuclear power 
plants).'' Finally, the Quinault Indian Nation conveyed their support 
of a 40-mph restriction in all areas with further research being 
completed on the benefits of a 30-mph restriction in all areas.
    In addition, some individual citizens, environmental groups, and 
local communities expressed concern that speed restrictions might 
protect some cities and towns while potentially leaving others exposed 
to safety risks. Consequently, many individual citizens, environmental 
groups, and local government representatives supported Option 1, the 
40-mph speed limit for HHFTs in all areas, or proposed an alternative 
lower speed limit to be applied as a nation-wide speed limit. These 
commenters did not address for the costs of implementing Option 1; 
rather, they emphasized that Option 1's geographical standard (``all 
areas'') is the most protective, and most beneficial, of the three 
speed options proposed and would benefit all communities, large and 
small. As Earthjustice, Forest Ethics, Sierra Club, et al. have 
expressed:

    Imposing a 40 m.p.h. speed limit only in the largest cities or 
`high-threat urban areas' would be far less protective of the public 
than requiring safer speed limits in all populated and sensitive 
areas. First, the option that would focus speed restrictions on 
areas with more than 100,000 people excludes far too many populated 
areas that [are] in harm's way. For example, many U.S. cities that 
have experienced dangerous and potentially deadly HHFT derailments 
would not be covered by safer speed limits using this threshold, 
including Lynchburg, Virginia (78,000 people); Painesville, Ohio 
(20,000 people); and Vandergrift, PA (5,000 people).

    Comments from rail network users and operators generally supported 
less restrictive speed limits. They were essentially concerned with the 
cost impacts of the proposed speed restrictions. In illustration of 
these potential cost impacts, the rail network users and operators 
provided some industry-specific data and analysis on the detrimental 
effects to network fluidity and the additional costs that would result 
from the proposed speed restrictions. Overall, these commenters and 
other stakeholders stated that speed restrictions would lead to: (1) 
Increased congestion; (2) slower or less predictable delivery times for 
various products, including crude oil, ethanol, and agricultural 
commodities; (3) increases in the number of tank cars required to 
ensure consistent timely delivery service due to increases in transit 
times; (4) increased costs to shippers and carriers; (5) constrained 
investments in the rail network's infrastructure and capacity due to 
reduced rail carrier revenues; (6) diversions of crude oil and ethanol 
transport to other modes of transport; and (7) slower passenger or 
commuter rail service.
    Several commenters stated that the proposed speed restrictions 
would result in additional congestion. These commenters emphasized that 
the rail network is already congested and has ``fluidity'' issues. Dow 
and the DGAC suggested that the proposed speed restrictions could 
inadvertently increase the risk of incidents due to congestion. 
According to multiple commenters, increased congestion and subsequent 
reductions in network fluidity could ``ripple'' across the rail network 
and would affect various commodities that are transported by rail, not 
just crude oil and ethanol.
    PHMSA received comments from a coalition of agri-business 
organizations that have been affected by ``service disruptions'' and 
``severe backlogs,'' including the Agricultural Retailers Association, 
National Corn Growers Association, U.S. Dry Bean Council, and various 
state associations. According to these commenters, the agricultural 
sector has succeeded at producing agricultural commodities, such as 
grain and oilseed, at ``record or near-record'' levels, but faces 
difficulty in making timely deliveries due to increased demand for 
freight rail service. This increased demand is due in part to ``non-
agricultural segments of the U.S. economy,'' such as crude oil 
production, and has caused a relative scarcity of rail service supply 
and competition among shippers seeking to use rail transport. These 
commenters have stated that the NPRM's proposed speed restrictions 
would further strain the transport of commodities.
    Affirming these commenters' concerns, the Energy Information 
Administration (EIA) has stated that rail traffic has increased by 4.5 
percent from January through October 2014 compared to the same period 
in 2013. Over the same period, carloads of crude oil and petroleum 
products have increased 13 percent, and these shipments of crude oil 
and petroleum are occurring in the parts of the U.S. where there is 
also strong demand to move coal and grain by rail.\59\ Along with crude 
oil shippers, shippers of coal, grain, ethanol, and propane have 
expressed concerns that rail service has been slow.
---------------------------------------------------------------------------

    \59\ https://www.aar.org/newsandevents/Freight-Rail-Traffic/Documents/2014-11-06-railtraffic.pdf
---------------------------------------------------------------------------

    In response to these congestion issues, the Surface Transportation 
Board (STB) called hearings in April and September 2014 to address rail 
``service problems,'' and in October, STB required ``weekly data 
reports'' from all Class I railroads.60 61 The EIA 
information and the STB's actions appear to reflect the commenters' 
concerns regarding the current rail transportation environment, 
characterized by increased demand, rail service issues, and competition 
among shippers of different commodities for the available rail service 
supply.
---------------------------------------------------------------------------

    \60\ STB News Releases. Available online at: http://www.stb.dot.gov/newsrels.nsf/13c1d2f25165911f8525687a00678fa7/b9b95d1200b9d81985257cad006a133a?OpenDocument and http://www.stb.dot.gov/newsrels.nsf/13c1d2f25165911f8525687a00678fa7/037f6ab62281bba985257d380068208a?OpenDocument
    \61\ STB Decision Document. Available online at: http://www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/43850?OpenDocument
---------------------------------------------------------------------------

    Among the proposed speed restrictions, many rail users and 
operators and other stakeholders have expressed that Option 1--a 40-mph 
speed limit for HHFTs in all areas--would have the greatest negative 
impact on network fluidity. The Independent Petroleum Association of 
America (IPAA) and the North Dakota Petroleum Council (NDPC) delineated 
how Option 1, in particular, would create a chain of effects in the 
rail network and increase costs to shippers or carriers:


    The consequences of the proposed 40-mph speed restriction in all 
areas would be significantly longer turnaround times for unit 
trains, thus necessitating the need to have more railcars in the 
shipping fleet. Longer turnaround times alone will make railcars in 
short supply on the first day the new rule takes effect. A 10-mph 
reduction in speed equates to a twenty percent increase in 
turnaround time (assuming 50 mph average train speed), requiring a 
twenty percent increase in fleet size.

    Other commenters have described how transit times and costs to 
shippers and carriers would increase. The Alaska Railroad Corporation 
stated that a common route from Anchorage to Fairbanks, Alaska, would 
``take an extra 69 minutes'' with a maximum speed of 40 mph. Bridger 
has stated that ``an increase in round-trip transit time for Bridger's 
unit trains from North Dakota to the East Coast from 15 days to 20

[[Page 26686]]

days will increase the cost per barrel [. . .] by 33%.'' In addition to 
impacting rail carriers and oil and gas producers, the proposed speed 
restrictions could impact a wide variety of shippers. The Council on 
Safe Transportation of Hazardous Articles (COSTHA) relayed that one of 
its members, a large manufacturer and distributor of consumer products, 
estimated increased costs of $80 million annually to its operations 
alone due to the proposed speed restrictions.
    Rail users and operators predicted that the proposed speed 
restrictions would constrain their ability to invest in the rail 
network's infrastructure (i.e. add capacity) at a time when capacity is 
already stressed. Adding capacity would be one way in which the 
railroads might seek to counteract the potential network fluidity 
impacts resulting from the proposed speed restrictions. Union Pacific 
Railroad Company has stated that investments to expand capacity are 
risky, expansions require 2-3 years or more to complete, and the 
decision to invest depends significantly on the ``ability to generate 
returns at reinvestible levels.'' Thus, if the proposed speed 
restrictions have a significant impact on revenues or returns, 
railroads have implied that they might not be capable of investing in 
the rail network's infrastructure at a rate that sufficiently addresses 
recently increased demand for rail transport. Railroads have also 
stated that they have been investing greatly in the rail network's 
infrastructure, but the costs of adding capacity have increased in 
recent years. Thus, according to the railroads, the proposed speed 
limits would increase costs in a business environment that is already 
characterized by increasing costs, which stresses the railroad's 
ability to make new capital investments and add capacity.
    Rail users and operators and other stakeholders have projected that 
reduced network fluidity due to speed restrictions could result in 
rail-to-highway diversions or other modal shifts. As the American 
Association of Private Rail Car Owners (AAPRCO) commented, ``Since the 
railroad network is already near or over capacity in many places, and 
consists overwhelmingly of single and double-track lines, widespread, 
new speed restrictions would have a major impact [...]. The impact in 
some cases could be diversion of freight to less-safe highways.'' 
Commenters have stated, if the proposed speed restrictions were to 
negatively influence rail network fluidity, some crude oil and ethanol 
transport by rail would be diverted to highway transport, and this 
would expose users of the nation's highways to increased flammable 
cargos transported by trucks.
    Rail users and operators have stated that the proposed speed 
restrictions and subsequent reductions in network fluidity would have 
adverse effects on passenger or commuter rail, and they state that 
network fluidity is already stressed for these types of rail. The 
National Railroad Passenger Corporation (Amtrak) has commented:

    Amtrak believes that any significant slowing of the general 
railroad system could have an adverse effect on the performance of 
intercity passenger rail service, which has already been slowed by 
the recent increase of freight traffic, including the increase in 
the number of Key Crude Oil Trains.

Similarly, the Sao Joaquin Partnership has contextualized this effect 
for commuters, stating:

    Overly restrictive speeds will reduce the fluidity of the rail 
network and may reduce rail capacity for both people and freight. 
Passenger rail service via ACE Train carries over 1 million riders 
from Stockton to San Jose each year servicing major technology 
employers in Silicon Valley providing high wage opportunities for 
San Joaquin residents. Slowing freight will delay transit along this 
important trade rail corridor.

Thus, if the proposed speed restrictions affect the performance of 
commuter trains, adverse impacts on labor output might also occur.
    Regarding industry data or projections, PHMSA often times could not 
corroborate the data provided by industry stakeholders. Some commenters 
did not supply data, while others supplied only limited data. PHMSA 
made efforts to acquire and analyze different data that was required 
for the RIA and the rulemaking's decision-making process.
    Despite having voiced some cautions about speed restrictions, some 
rail network users and operators expressed their support for the 
voluntary speed restrictions that were agreed upon by industry members 
as a result of Secretary Foxx's Call to Action and subsequent Letter to 
the Association of American Railroads published on February 21, 
2014.\62\ These voluntary speed restrictions are generally consistent 
with the proposed 50-mph maximum speed limit and Option 3, the 40-mph 
speed limit in HTUAs. Notably, Option 3 had substantial support among 
the rail network users and operators and related trade associations. 
Some commenters concluded that all proposed speed restrictions would 
have negative impacts on industry, but, if a speed restriction were to 
be implemented, Option 3 should be implemented as it would minimize 
these negative impacts.
---------------------------------------------------------------------------

    \62\ Available online at: http://www.dot.gov/briefing-room/letter-association-american-railroads
---------------------------------------------------------------------------

    Regarding Option 2, the 40-mph speed limit in areas with a 
population of 100,000 or more, commenters raised additional concerns. 
One commenter stated that the risk to a population from a train 
accident depends less on the size of the population in a given area 
than on the proximity of that population to the railway. Thus, Option 2 
might not accurately address the true number of people threatened by 
railway accidents. The Kansas City Southern Railway Company stated that 
the term ``area'' is ``unacceptably vague,'' and Option 2 is therefore 
``unworkable.'' This concern was echoed by other commenters.
    Some commenters expressed that Option 2 would also adversely impact 
network fluidity. While significantly less restrictive in a 
geographical sense than Option 1, some commenters, such as Amsted Rail 
and the National Shippers Strategic Transportation Council, still 
considered Option 2 to be overly restrictive or costly.
    Some commenters considered Option 2 to be an acceptable 
``compromise'' between competing concerns for the efficiency of the 
rail transportation system and enhanced safety. According to the State 
of Minnesota:

    Option 1, a 40 MPH speed limit in all areas, would have 
extensive negative effects on the shipment capacity, reliability, 
cost, and overall system velocity for Minnesota and its market 
connections. Option 2, a 40 MPH limit in areas with more than 
100,000 people, would be an acceptable limit for trains using tank 
cars not conforming with the improved performance specifications, 
and would put relatively limited strain on system velocity and 
capacity compared to Option 1. The cost benefit analysis supports 
this compromise order.

    Nevertheless, relatively few commenters expressed support for 
Option 2 as proposed in the NPRM. Comparatively, there was much wider 
support for Option 1 and Option 3 as proposed in the NPRM, with 
different groups of commenters expressing their respective support for 
each.
    Regarding the NPRM's 30-mph speed limit, some commenters were in 
support, echoing the rationale that reduced speeds enhance the safety 
profile of conventional braking systems. Other commenters thought that 
the 30-mph speed limit should be adopted, but asserted that it would be 
more appropriate to make it a requirement for all tank cars that did 
not meet or exceed the standards of Specification DOT-117. Different 
commenters asked that the

[[Page 26687]]

tank cars without enhanced braking systems be required to travel at 
speeds under 30 mph, such as 20 mph or 18 mph. Multiple concerned 
citizens asked that a 30-mph speed limit be required for all HHFTs, 
irrespective of their braking systems.
    Some commenters were opposed to the 30-mph speed limit. These 
commenters either opposed speed restrictions in general or they 
supported higher or less restrictive speed limits. For many rail users 
and operators and other stakeholders, the 30-mph speed limit appeared 
to be unnecessary in light of the 50-mph maximum speed limit and the 
40-mph speed limit in HTUAs, which have already gained support as 
voluntary speed restrictions for certain tank cars transporting crude 
oil. Further, multiple commenters pointed out that some of the enhanced 
braking systems proposed in the NPRM--namely, two-way EOT devices and 
DP braking systems--are already widely adopted by industry. If two-way 
EOT devices and DP braking systems are already widely adopted, the 30-
mph speed limit would not be generally applicable to HHFTs, unless the 
30-mph speed limit also required HHFTs to equip and/or operate ECP 
braking systems. For more information regarding ECP braking systems, 
please see the Braking Section of the final rule.
    In addition to the aforementioned comments, PHMSA received other 
comments in relation to speed restrictions. These comments have been 
grouped together where appropriate and paraphrased.
Response to Comments Related to Speed Restrictions
    As a safety organization, PHMSA works to reduce the safety risks 
inherent in the transportation of hazardous materials in commerce by 
all modes of transportation, and in this rulemaking, has focused its 
efforts on the safety of the transportation of large quantities of 
Class 3 flammable liquids by rail. To demonstrate that speed 
restrictions relate directly to safety risks, PHMSA has provided data 
to demonstrate the relationship between speeds, kinetic energy, tank 
car punctures in a derailment, and subsequent releases of hazardous 
material into the environment (See RIA). As a result of the Sharma 
modeling, PHMSA agrees with the commenters' concerns that derailments 
and releases of hazardous material could have adverse impacts on public 
safety and the environment and has proposed to reduce safety risks 
through the implementation of speed restrictions.
    In addition to demonstrating that its proposed speed restrictions 
will benefit public safety, PHMSA must evaluate the impact of its 
regulations on diverse stakeholders. In some cases, PHMSA is required 
by law to conduct and publish a cost/benefit analysis, among other 
legal requirements. Therefore, while some of the proposed speed 
restrictions are more restrictive and may lead to greater safety 
benefits than others, PHMSA must consider concurrently the cost of 
implementing each proposed speed restriction and evaluate the net 
effect on a diverse set of stakeholders. PHMSA must also consider the 
costs and benefits to the various stakeholders of alternatives. As 
such, the costs imposed on industry and society at large by the 
proposed speed restrictions are an important factor in our regulatory 
analysis and decision-making.
    PHMSA believes that an overly restrictive speed limit would present 
costs that outweigh benefits, and this was echoed by many commenters. 
These commenters expressed the outlook that the proposed speed 
restrictions would present significant new costs, caused primarily by 
substantial negative effects on rail network fluidity. As a result of 
its understanding of commodity flows and rail network fluidity, PHMSA 
agrees that speed restrictions could result in: An increase in the 
number of tank cars needed to ensure consistent delivery service due to 
increases in transit or ``turn'' times; increased congestion; slower or 
less predictable delivery times for some products transported by rail, 
including crude oil, ethanol, and agricultural commodities; slower 
passenger or commuter rail service; and increased costs to shippers and 
carriers. Moreover, if an overly restrictive speed limit were codified 
in the final rule, the negative effect on network fluidity could become 
an indefinite burden on carriers, shippers, rail passengers, and other 
stakeholders, since adding capacity to the rail network would likely be 
costly, time-intensive, and in some cases not feasible.
    Therefore, if the proposed speed restrictions were to significantly 
hinder rail network fluidity, PHMSA believes that some diversion of 
crude oil and ethanol transport to highways could occur. Given 
substantial rail-to-truck diversions, the proposed speed restrictions 
might also lead to increased safety risks in the wider transportation 
system, especially the highway transportation system, which could in 
turn result in increased highway accidents involving Class 3 flammable 
liquids and increased costs related to responding to or mitigating 
highway accidents. In other words, the proposed speed restrictions 
could shift safety risks from rail transportation to highway 
transportation. PHMSA has taken this into consideration and generally 
agrees with this line of reasoning as presented by commenters.
    Many concerned citizens and local communities stated that rural 
areas or small towns should have the same speed restrictions and safety 
protections as highly populated areas. This is a valid statement, which 
PHMSA considered. However, in terms of potential injuries and 
fatalities, PHMSA believes that the damages from a derailment in a 
densely populated area are more likely to be catastrophic, than damages 
from a derailment in a less densely populated area. Further, the 
application of speed restrictions to densely populated areas is less 
costly because only a small portion of the rail network is located 
within the limits of these areas and railroad operating practices 
already account for other kinds of restrictions, e.g., railway 
crossings and signals, in urban areas.
    PHMSA determined that there is a trade-off between the safety 
benefits of the proposed speed restrictions and the costs incurred by 
rail network operators and users, including offerors, tank car 
manufacturers, tank car-related businesses, rail carriers, rail 
passengers, and consumers of products transported by rail. PHMSA found 
that the proposed speed restriction that offers the greatest safety 
benefits is also the most costly; conversely, the least costly speed 
restriction offers the least safety benefits.
    To further refine this analysis, PHMSA has focused its attention on 
identifying the proposed speed restriction that confers the greatest 
amount of benefit per dollar of cost. PHMSA has determined that Option 
3 confers the greatest amount of benefits per dollar of costs, which 
lends support for the implementation of a 40-mph speed limit in HTUAs. 
See the Final RIA for detailed cost and benefit figures.
    Accordingly, PHMSA has decided not to apply the 40-mph speed limit 
to all areas (Option 1) because this would be overly restrictive and 
highly costly to a variety of stakeholders, and it confers the least 
benefits per dollar of costs. PHMSA has also taken into consideration 
the fact that Option 2 has a lower benefit-cost ratio than Option 3, 
which lends further support for Option 3 and raises concerns about 
Option 2.
    Regarding Option 2, PHMSA agrees with some of the commenters' 
concerns and acknowledges some of the potential problems presented by 
Option 2's geographical standard, ``an area [. . .]

[[Page 26688]]

that has a population of more than 100,000 people.'' Specifically, 
PHMSA recognizes that the size of a population does not always relate 
to the proximity of a population to a potential railway accident. 
Proximity may be a better indicator of potential damages or harm in the 
event of a derailment. PHMSA also recognizes that the threshold of 
100,000 people may present difficulties for purposes of compliance and 
enforcement. Further, PHMSA reiterates that the implementation of 
Option 2 would be more costly and confers fewer benefits per unit of 
costs than Option 3. This cost/benefit analysis, the problems presented 
regarding the geographical standard of Option 2, and the general lack 
of commenter support for Option 2 as proposed, have led PHMSA to not 
elect to codify Option 2 in the Final Rule.
    Regarding Option 3, PHMSA believes that the implementation of 
Option 3 would yield significant safety benefits, especially in the 
nation's most populated areas where derailments are more likely to be 
catastrophic. PHMSA also believes that the costs of implementing Option 
3 are justified. PHMSA is confident that the geographical standard, 
HTUAs, is practical and well-defined and thus, would be understood for 
compliance and enforcement purposes. Namely, the HTUA designation has 
been codified since 2008 in 49 CFR Section 1580.3. In addition, PHMSA 
recognizes the importance of industry cooperation to date on the issue 
of a 40-mph speed limit in HTUAs. For these reasons, PHMSA is electing 
to adopt Option 3, a 40-mph speed limit for HHFTs in HTUAs.
    PHMSA must also conduct its final rulemaking with due consideration 
to the scope of its proposed rulemaking. Some of the commenters 
suggested alternative, more restrictive speed limits that were 
significantly lower than the speed limits proposed in the NPRM. These 
speed limits cannot be adopted because PHMSA must codify regulations in 
its Final Rule that are reasonably aligned with what PHMSA has proposed 
in previous stages of the rulemaking in order to afford the public and 
interested parties an opportunity to comment on the agency's proposed 
actions.
    Other commenters suggested alternative lower speed limits that are 
approximate or comparable to the proposed speed restrictions. For 
example, the City of Chicago suggested a 35-mph speed limit in HTUAs. 
These alternative lower speed limits that were approximate or 
comparable to the speed restrictions proposed in the NPRM were duly 
considered, but PHMSA is not electing to adopt them. PHMSA was not 
provided with sufficient data to demonstrate concretely that any one 
alternative lower speed limit would be superior to the speed 
restrictions proposed in the NPRM. These commenters either did not 
disclose how a given damage reduction estimate was formulated, or their 
suggestion for an alternative speed limit lacked an empirical basis.
    The BLET and other commenters have stated that additional accident 
modeling could be conducted at different speeds, such as 30 mph. PHMSA 
believes additional accident modeling could help determine if 
alternative lower speed limits would reduce the severity of an accident 
more effectively than the proposed speed restrictions. In response to 
this and other comments about the costs and benefit calculations 
related to speed, further modeling was conducted from speeds of 30 mph 
through 50 mph (See table 22).
    In contrast to alternative lower or more restrictive speed limits, 
some commenters suggested a different, less restrictive alternative: 
PHMSA should not impose new speed restrictions at all. For example, 
Biggs Appraisal Service has stated, ``The railroads have speed limits 
on every section of track that they operate. [. . .] Why put additional 
restrictions on the railroads when they already have systems in place 
that work?'' Regarding this point, PHMSA recognizes that there are FRA 
regulations in place pertaining to speed restrictions and track 
classes, and some railroads have voluntarily chosen to implement speed 
restrictions. However, the FRA regulations relate to track classes and 
do not address the specific risks of HHFTs, and the voluntary speed 
restrictions in place do not carry the weight of law. PHMSA believes 
that the increased number of derailments and accidents in recent years 
has demonstrated that the speed limit systems in place require 
enhancements, such as the proposed speed restrictions. Accident 
modeling data has shown that reducing speeds from 50 mph to 40 mph is 
an effective way to reduce safety risks, namely the number of punctures 
that occur in a derailment. To implement no speed restriction at all 
would require a deliberate decision to forego certain safety benefits.
    In the NPRM, PHMSA proposed an additional speed restriction of 30 
mph for tank cars that are not equipped and operated with either a two-
way EOT device or a DP system. Furthermore, the NPRM proposed 
requirements for certain tank cars to be equipped with ECP braking 
systems. These proposals and related comments are discussed in the 
``Advanced Brake Signal Propagation'' section below.
    Various commenters expressed concerns for the environment and 
thought speed restrictions should be applicable in environmentally 
sensitive areas, such as in the vicinity of water resources or 
navigable waterways. In response, PHMSA affirms that our organizational 
mission includes protecting the environment from the risks of 
transporting hazardous materials in commerce. PHMSA acknowledges the 
importance of environmental concerns and that speed restrictions may be 
an effective way to protect the environment from releases of hazardous 
material. Releases of hazardous materials in a derailment could have 
significant adverse impacts in these areas. Further, these areas might 
not be highly populated or part of a designated HTUA and consequently, 
might not be protected by the proposed speed restrictions.
    Citizens Acting for Rail Safety (CARS) suggested using the 
Environmental Protection Agency (EPA)'s definition of ``environmentally 
sensitive areas'' or using a pipeline safety definition, which pertains 
to ``areas that are unusually sensitive to environmental damage.'' 
PHMSA believes these sources might provide a sound basis for defining 
an environmentally sensitive area, or similar areas, in order to extend 
the use of speed restrictions and offer specific protections to the 
environment. However, under 49 CFR 172.820, routing analyses are 
required of railroads carrying certain hazardous materials. The final 
rule will codify these same routing requirements for railroads 
transporting Class 3 flammable liquids in a HHFT. By performing a 
routing analysis, railroads transporting flammable liquids in a HHFT 
will be required by the HMR to consider, among other things, 
``environmentally sensitive or significant areas,'' and they must base 
their routing selection on the analysis. PHMSA believes this is 
ultimately a more effective approach to reducing risks to 
environmentally sensitive areas than the promulgation of speed 
restrictions that are specific to those areas. Further, in the NPRM, 
PHMSA did not propose a definition for the designation of 
environmentally sensitive areas nor did it propose to base speed 
restrictions on environmental criteria. PHMSA believes it would be 
outside the scope of this rulemaking to require lower speeds in these 
areas.
    PHMSA would like to respond to other comments related to speed 
restrictions enumerated below.

[[Page 26689]]

1. Speed Restrictions Should Be Harmonized
    PHMSA has cooperated and will continue to cooperate with Transport 
Canada and other appropriate international bodies. PHMSA seeks to 
harmonize the proposed operational controls whenever it is feasible and 
justified. As of April 23, 2014, Canada issued an Emergency Directive 
that established a 50-mph maximum speed limit for certain trains 
carrying ``Dangerous Goods,'' which is comparable to the 50-mph maximum 
speed limit established through the cooperation of the Department and 
AAR. These actions demonstrate that PHMSA and Transport Canada have 
already achieved harmonization in some respects.
    Nevertheless, speed restrictions do not necessarily need to be 
harmonized between Canada and the U.S. In the final rule, PHMSA is 
implementing a geographical standard for speed restrictions that is 
specific to U.S. geography. Also, train speeds can be adjusted fairly 
easily, and differences in speed limits between localities in the U.S. 
and Canada would not present an undue burden on locomotive operators. 
Harmonization of speed restrictions is not essential.
2. Speed Restrictions Should Only Apply to Tank Cars Carrying Certain 
Hazardous Material(s); or Alternatively, to the Rail Transport of All 
Hazardous Materials
    PHMSA typically uses the hazardous materials classes (Hazard 
Classes 1 through 9) to distinguish the risks of different hazardous 
materials. In recent years, increased crude oil and ethanol production 
have presented increased risks to the rail transportation system, but 
other types of flammable liquids could present similar risks. By 
defining a HHFT as a train with a continuous block of 20 or more tank 
cars or a total of 35 or more tank cars containing a Class 3 flammable 
liquid, we address the specific risks of increasing crude oil and 
ethanol production while also anticipating the potential for future 
risks presented by the increased production or transport of other Class 
3 flammable liquids.
    PHMSA disagrees with commenters who suggested that the proposed 
speed restrictions only apply to crude oil, or alternatively, only to 
crude oil and ethanol. PHMSA believes that Class 3 flammable liquids 
present similar risks and as such, basing the proposed speed 
restrictions on a given hazardous material's classification as Class 3 
would be a comprehensive and responsive approach to mitigate these 
risks.
    Comments suggesting that proposed speed restrictions should apply 
to the transport of all hazardous materials by rail were considered. 
However, PHMSA did not propose this in the NPRM, and this suggestion 
cannot be adopted in the Final Rule due to concerns that it is not 
reasonably aligned with what has been proposed. Moreover, the 
operational controls addressed in this rule, including speed 
restrictions, are aimed at reducing the risk and consequences of 
incidents involving rail shipments of Class 3 flammable liquids. The 
analyses, data, and relevant factors considered in developing this rule 
are specific to these materials. Information has not been provided to 
support expanding these restrictions to all hazardous materials or to 
justify the associated negative impacts on rail fluidity and costs.
3. PHMSA Lacked Important Data That Could Be Used To Estimate Costs or 
Benefits Pertinent to Speed Restrictions and/or More Cost/Benefit 
Analysis Should Be Conducted
    Various commenters have identified factors that contribute to costs 
or benefits that PHMSA has not included in its cost/benefit analysis. 
PHMSA published a Draft RIA alongside the proposed rule to address the 
requirements of Executive Order 12866, to explain the basis of its 
cost/benefit analysis, and also to encourage stakeholder discussion of 
cost/benefit analyses pertinent to this rulemaking. Since the NPRM, 
PHMSA has improved upon its cost/benefit analyses and has published a 
final regulatory impact analysis in conjunction with the final rule 
based on comments received and data provided.
4. Speed Limits Should Apply to Trains Consisting of ``Enhanced'' Tank 
Cars, as Well as to Trains With One or More Tank Cars That Are Not 
``Enhanced''
    An ``enhanced'' tank car is one that meets or exceeds the retrofit 
standards or the standards set forth by Specification DOT-117. 
Specification DOT-117 tank cars and retrofitted tank cars have advanced 
technology and present less safety risks to the rail transportation 
system, the public, and the environment than ``legacy'' Specification 
DOT 111 tank cars. In addition, PHMSA believes that there should be 
incentives for tank car owners and lessors to retrofit or upgrade their 
fleet of tank cars. By retrofitting or upgrading their tank cars, a 
carrier can transport their tank cars at speeds above the proposed 
speed restrictions, and this could advantageously shorten transit times 
for offerors and carriers with retrofitted tank cars.
5. Speed Restrictions Could Be Lessened Over Time If Technology 
Improves
    Technological improvements are oftentimes the ``triggering'' or 
``initiating'' event for a new rulemaking or some other regulatory 
action. PHMSA agrees that there is a possibility that speed 
restrictions could be reduced or eliminated amid significant 
technological improvements in the rail transportation industry.
6. Speed Limits Should Apply Only to Specific Configurations and/or a 
Specific Number of Tank Cars, Such as a Continuous Block of 20 or More 
Tank Cars
    PHMSA agrees with this point of view. Based on commenter feedback, 
we have revised the NPRM's proposed HHFT definition to comprise trains 
with a continuous block of 20 or more tank cars or trains with a total 
of 35 or more tank cars carrying Class 3 flammable liquids. In doing 
so, PHMSA seeks to address higher risk unit train configurations. In 
other words, PHMSA seeks to regulate trains that transport a 
substantial number of Class 3 flammable liquid-carrying tank cars while 
avoiding unwarranted regulation of trains that transport smaller 
quantities of flammable liquids in a ``manifest'' train. For additional 
information regarding the scope of the Final Rule, please refer to the 
section describing the definition of an HHFT.
7. Speed Limits Should Be Based on Track Conditions, Classes, or 
Quality/Integrity.
    While track conditions and quality are an important part of rail 
safety, PHMSA believes that creating a system of speed restrictions 
based on these track factors is not warranted at this time. PHMSA did 
not propose in the NPRM to base speed limits on these factors. The 
commenters did not provide sufficient data to show how and to what 
degree new speed restrictions would relate to track conditions or 
quality. The commenters did not propose any specific system for the 
implementation of speed restrictions based on track conditions or 
quality.
    Further, FRA regulations codified in 49 CFR part 213--Track Safety 
Standards already enforce a system of speed limits based on track 
classes. One commenter stated that the aforementioned FRA regulations 
render the NPRM's speed restrictions ``redundant.'' On this point, 
PHMSA disagrees because the proposed speed restrictions are specific to 
the risks of

[[Page 26690]]

Class 3 flammable liquids and the type, number, and configuration of 
tank cars in a train. The proposed speed restrictions offer additional 
safety benefits.
    Also, the Final Rule extends the routing requirements of Sec.  
172.820 to the transport of Class 3 flammable liquids by rail in HHFTs. 
Under these routing requirements, railroads transporting HHFTs will be 
required to consider ``track type, class, and maintenance schedule'' 
and ``track grade and curvature,'' among other factors, in their choice 
of routes. Railroads moving HHFTs must base their routing decision on 
this analysis, effectively taking into consideration the potential 
problems presented by track conditions, classes, or quality.
    One commenter stated that a 30-mph speed limit should be in place 
for the segments of track that are in use for passenger service. Trains 
in freight rail service and passenger rail service share significant 
portions of the nation's rail infrastructure, so implementing this 
suggestion would be overly restrictive.
8. The Proposed Speed Limits Are Based on Inadequate Geographical 
Standards
    PHMSA considered different geographical standards in its 
development of the proposed speed restrictions, and commenters offered 
various alternative geographical standards, including references to 
Bureau of the Census criteria or data for urban areas. However, the 
commenters did not submit an accompanying cost/benefit analysis of the 
alternative geographical standards, and these alternatives in many 
cases were not adequately elaborated so that PHMSA could analyze 
whether or not they would be superior to the proposed speed 
restrictions.
    The NTSB proposed the ``potential impact radius'' (PIR) model as an 
alternative geographical standard. NTSB likened PIR to an approach used 
by PHMSA's gas pipeline regulations. PIR might be an effective 
geographical standard for pipeline safety, but it is not clear if this 
standard would also be suitable for rail transportation safety. Rail 
transport involves a wider variety of commodities and amounts 
transported, which presents a wider variety of risks that are mode-
specific. On this basis, PHMSA does not believe that PIR would be 
better than the geographical standards proposed in the NPRM. 
Furthermore, PHMSA believes that the HTUA designation is in fact 
responsive to the need for greater protections in the areas that 
present the greatest risks or ``potential impact.''
    One commenter stated that the HTUA designation is ``irrelevant'' in 
the context of reducing rail safety risks, as it was designed for the 
identification of terrorist targets. PHMSA disagrees. The HTUA 
designation is also applicable to the reduction of rail safety risks 
because it encompasses many areas that, if they were involved in a 
derailment, could result in widespread damages. The likelihood that a 
derailment would result in catastrophic damages is greater in HTUAs 
than most other areas. A different commenter criticized Option 3 and 
the HTUA designation because it was seen as overly restrictive and 
includes ``dozens of areas.'' PHMSA disagrees on the basis that only 
approximately 7% of the rail network is located within the limits of 
HTUAs.
    Regarding alternative geographical standards, PHMSA affirms that 
there are costs involved in creating new regulatory standards, 
potential issues with implementation and clarity, and benefits involved 
in consistencies between federal regulations. In this respect, the HTUA 
designation would be easier, more effective, and clearer to implement 
in accordance with a 40-mph speed limit because it has been codified 
since 2008 in Title 49, CFR. Accordingly, rail network users and 
operators already have a compliance history with this regulation. 
Conversely, rail network operators are not familiar with PIR and other 
alternative geographical criteria, and there would be a particular cost 
attached to introducing novel geographical criteria.
9. Slow Rail Operations Have Already Affected U.S. Ethanol Production 
by Limiting the Amount of Ethanol That Can Be Transported by Rail, and 
the Proposed Speed Restrictions Will Negatively Impact Ethanol 
Transport
    According to the Michigan Agri-Business Association, the Michigan 
Farm Bureau, and businesses in the ethanol industry, slow rail service 
has already impacted the ability of ethanol producers to effectively 
ship and deliver ethanol to consumers. To that effect, Homeland Energy 
Solutions has stated that the presently slow rail service has been 
difficult to overcome and additional speed restrictions applicable to 
ethanol transport will further hinder the industry, potentially causing 
some producers to shut down.
    In response, PHMSA asserts there are many factors that might be 
slowing existing rail operations. Reduced speed is only one factor that 
might result in slow rail service. For example, the contributing 
factors of poor rail service might include the rapid increase in the 
production and transport of crude oil and subsequent displacement of 
other commodities in the rail system. In such a case, poor service 
could not necessarily be attributed to PHMSA's proposed speed 
restrictions. Nevertheless, PHMSA is also concerned with the impact of 
the proposed speed restrictions on rail network fluidity, and seeks to 
limit their potential negative effects.
    The AAR proposed and implemented voluntary speed restrictions to 
mitigate the risks of crude oil transport. Thus far, these voluntary 
speed restrictions have not been applicable to ethanol transport by 
rail. When considering additional speed restrictions, PHMSA looks at 
cost/benefit analysis from a holistic perspective and does not give any 
one industry or stakeholder a preference in its analysis. PHMSA seeks 
to extend the safety benefits of the proposed speed restrictions to the 
transport of all Class 3 flammable liquids, including ethanol, as well 
as limit the negative effect of these speed restrictions on overall 
rail network fluidity and the costs borne by all industry participants, 
including ethanol producers.
    PHMSA acknowledges that, after the final rule takes effect, the 
adopted speed restrictions will have a direct impact on ethanol 
producers and carriers. There will be an increase in burden or costs to 
shippers and carriers of ethanol if, prior to the rulemaking, they had 
moved ethanol above 50 mph. Union Pacific has stated, ``Freight trains 
often operate at speeds between 50 mph and 70 mph.'' Thus, freight 
trains could have moved ethanol above 50 mph prior to the rulemaking.
    Nevertheless, commenters did not adequately relate to what degree 
the 50-mph maximum speed limit would decrease the actual operating 
speeds of HHFTs carrying ethanol. Overall, fewer commenters expressed 
concerns about the 50-mph speed limit than about the three 40-mph speed 
limits. In addition, industry cooperation with the Department has 
already established 50 mph as a maximum speed limit for certain trains. 
In Canada, Transport Canada issued an Emergency Directive in April 2014 
requiring all companies to not operate a ``Key Train'' at speeds that 
exceed 50 mph. For these reasons, it is PHMSA's understanding that the 
50-mph maximum speed limit is a common industry practice and 
implementing this speed limit would not drastically change the maximum 
speeds at which most trains carrying hazardous materials, including 
ethanol, operate.
    In addition to the 50-mph maximum speed limit, ethanol shippers and 
carriers are directly affected by the 40-mph speed limit in HTUAs as a 
result

[[Page 26691]]

of the final rule. As with the 50-mph maximum speed limit, however, it 
is not clear to what extent HHFTs carrying ethanol would be affected. 
BNSF has indicated that rail speeds through population centers of 
100,000 or more, which would also include all HTUAs, are already ``at 
or below 40 mph.'' This suggests the costs impacts of the 40-mph speed 
limit in HTUAs would be minimal.
    For other carriers or entities within the ethanol industry, Option 
3 might introduce new costs to them, but PHMSA believes the costs are 
justified by additional safety benefits. Since Option 3 refers to a 40-
mph speed limit in HTUAs, only a small portion of the rail network--
around 7% of the nation's track--will be affected by this new speed 
restriction. On balance, Option 3 is the least costly of the three 
speed options proposed and concentrates its protections in the areas 
where a derailment is most likely to be catastrophic and safety 
benefits are greatest. The ability to limit the cost impacts of the 
proposed speed restrictions on industry, including ethanol shippers, 
carriers, and others, has lent support to PHMSA's decision to implement 
Option 3. PHMSA believes the new costs to ethanol industry participants 
are limited and justifiable.
    PHMSA does not intend to unjustifiably introduce costs into the 
operations of stakeholders, especially those who qualify as small 
businesses or small entities. For this reason, and in compliance with 
the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), PHMSA must 
conduct a regulatory flexibility analysis addressing the rulemaking's 
economic impact given that the rulemaking is likely to ``have a 
significant economic impact on a substantial number of small 
entities.'' The rulemaking's RFA demonstrates that the impact to small 
entities as a result of this rulemaking will be limited and should not 
cause any small entities to cease operations. Please refer to the RFA 
section for additional explanation of the final rule's impact on small 
entities.
10. Voluntary Speed Restrictions Are Sufficient and Should Not Be 
Codified; or Voluntary Speed Restrictions Are Insufficient and Should 
Be Codified
    PHMSA believes the speed restrictions should be codified. 
Recommended practices, such as voluntary speed restrictions, do not 
carry the weight of law. Recommended practices do not provide legal 
recourse in the event a railroad moves an HHFT at speeds exceeding 
voluntary speed restrictions thus increasing the likelihood of 
catastrophic damage in a train accident. Further, without the 
codification of these requirements, the speed restrictions could be 
lifted altogether in a premature manner, increasing safety risks. 
Codifying the speed restrictions will ensure that the safety benefits 
of speed restrictions are realized indefinitely and cannot be 
prematurely lifted without the appropriate procedural requirements. 
Further, this codification allows PHMSA and FRA to ensure compliance by 
exercising oversight and taking appropriate enforcement actions.
11. Speed Restrictions Could Have Unintended Consequences, Such as 
Increased Delays to Vehicles Stopped at Railroad Crossings or Carriers 
Choosing Not To Configure a 20th Tank Car in Order To Avoid Speed 
Restrictions
    Regarding increased delays to vehicles stopped at railroad 
crossings, commenters did not provide specific data regarding the time 
or cost burden of this kind of delay. PHMSA recognizes this could be a 
consequence of the proposed speed restrictions, but is unable at this 
time to quantify the time burden or cost of increased vehicle delays at 
railroad crossings. PHMSA expects the cost of these delays would not be 
substantial.
    Regarding train configurations and the proposed speed restrictions, 
PHMSA seeks to limit the implementation of speed restrictions to train 
consists with a substantial number of tank cars carrying Class 3 
flammable liquids. In practical terms, PHMSA seeks to limit the effect 
of the proposed speed restrictions so that ``manifest'' trains would 
not be regulated to the same degree as a unit train of Class 3 
flammable liquid.
    PHMSA has revised its definition of an HHFT in response to 
commenter feedback on typical train configurations involving Class 3 
flammable liquids, including crude oil and ethanol. The revised 
definition would allow rail carriers to configure up to 34 tank cars 
carrying flammable liquids so long as there are not 20 or more tank 
cars in a continuous block. A train that distributes hazmat-carrying 
tank cars (i.e., configures them to limit the size of continuous 
blocks) in a consist would most likely pose a lower risk than a train 
with continuous blocks of cars containing hazmat. Moreover, the 
threshold of 35 or more total tank cars prevents a rail carrier from 
being able to transport an essentially unrestrained quantity of Class 3 
flammable liquid tank cars by continually and purposefully avoiding the 
configuration of a 20th tank car in a continuous block. As such, the 
revised HHFT definition will limit the impact of the proposed speed 
restrictions on ``manifest'' trains.
12. Speed Restrictions Will Influence Externalities, Such as Noise 
Disturbances
    PHMSA agrees that the proposed speed restrictions might result in 
externalities, such as reduced noise disturbances. PHMSA has taken into 
consideration the most significant externalities that would result from 
this rulemaking. PHMSA's review of the comments, analysis of costs and 
benefits, and coordination between regulatory, economic, and technical 
subject matter experts has facilitated a critical evaluation of the 
NPRM's proposed speed restrictions.
    The following table summarizes the NPRM's proposed speed 
restrictions and presents some of PHMSA's analysis as to whether or not 
a given speed restriction would be an effective regulation.

                Table 24--Analysis of Speed Restrictions
------------------------------------------------------------------------
    The NPRM's proposed  speed
           restrictions                           Analysis
------------------------------------------------------------------------
Option 1: 40-mph speed limit in     Option 1 was the most restrictive of
 all areas.                          the three 40-mph speed limits
                                     proposed. Option 1 was the most
                                     costly and confers the least
                                     benefits per dollar of costs. Also,
                                     the costs presented by Option 1
                                     significantly outweighed the
                                     benefits of Option 1 in PHMSA's
                                     cost/benefit analysis, even when
                                     using the highest value in the
                                     benefit range to evaluate Option
                                     1's net effect. Further, PHMSA
                                     believes the effect of Option 1 on
                                     rail network fluidity could be
                                     substantial.
Option 2: 40-mph speed limit in     Commenters stated that Option 2's
 areas with more than 100,000        geographical standard is inadequate
 people.                             and unworkable. There was
                                     relatively little explicit support
                                     for Option 2 among commenters.
                                     Option 2 confers significantly less
                                     benefits per unit of costs than
                                     Option 3.

[[Page 26692]]

 
Option 3: 40-mph speed limit in     Option 3 would yield significant
 High-Threat Urban Areas (HTUAs).    safety benefits, particularly in
                                     the nation's densely populated
                                     areas, which present an increased
                                     likelihood of the occurrence of a
                                     catastrophic event. Likewise,
                                     Option 3 confers the most safety
                                     benefits per unit of costs. In
                                     addition, the geographical
                                     designation of High-Threat Urban
                                     Area (HTUA) is workable, defined,
                                     and codified in Part 1580 in Title
                                     49 CFR.
50-mph maximum speed limit for      The 50-mph maximum speed limit for
 HHFTs.                              HHFTs does not introduce new costs
                                     to stakeholders that offer or ship
                                     crude oil. A 50-mph speed limit for
                                     HHFTs is in line with widely
                                     adopted practices due to trade
                                     association and industry
                                     cooperation with regulatory bodies.
                                     It is also considerably harmonized
                                     with Transport Canada's April 2014
                                     Emergency Directive.
30-mph speed limit for HHFTs        The 30-mph speed limit for HHFTs
 without enhanced braking systems.   without a two-way EOT device or DP
                                     braking systems would not be
                                     generally applicable, provided that
                                     HHFTs are in compliance with the
                                     requirements for the use of these
                                     enhanced braking systems in the
                                     Final Rule. Speed limits pertinent
                                     to the use of ECP braking systems
                                     are discussed in the Braking
                                     Section of the Final Rule.
------------------------------------------------------------------------

Conclusion
    In the final rule, PHMSA and FRA are adopting requirements for 
speed restrictions for HHFTs. Specifically, this rulemaking adds a new 
Sec.  174.310 to Part 174--Carriage by Rail. Section 174.310(a)(2) 
establishes a 50-mph maximum speed restriction for HHFTs. In addition, 
Sec.  174.310(a)(2) establishes a 40-mph speed limit for HHFTs within 
the limits of high-threat urban areas (HTUAs) as defined in 49 CFR 
1580.3, unless all tank cars containing a Class 3 flammable liquid meet 
or exceed the retrofit standards, the performance standard, or the 
standards for the DOT Specification 117 tank car provided in Part 179, 
Subpart D of the Hazardous Materials Regulations (HMR). The 40-mph 
speed limit for HHFTs within the limits of HTUAs is in line with Option 
3 proposed in the NPRM.
    In addition as discussed previously on April 17, 2015 FRA issued 
Emergency Order 30 to require that certain trains transporting large 
amounts of Class 3 flammable liquid through certain highly-populated 
areas adhere to a maximum authorized operating speed limit.\63\ Under 
Emergency Order 30, an HHFT with at least one DOT-111 tank car 
(including those built in accordance with CPC-1232 loaded with a Class 
3 flammable liquid) must not exceed 40 mph in HTUAs as defined in 49 
CFR 1580.3. As this final rulemaking does not become effective for 60 
days from publication FRA believes the restrictions in Emergency Order 
30 will address an emergency situation while avoiding other safety 
impacts and harm to interstate commerce and the flow of necessary goods 
to the citizens of the United States. FRA and DOT will continue to 
evaluate whether additional action with regard to train speeds is 
appropriate.
---------------------------------------------------------------------------

    \63\ See http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_2DA43BA3704E57F1958957625273D89A29FF0B00/filename/EO_30_FINAL.pdf.
---------------------------------------------------------------------------

D. Advanced Brake Signal Propagation Systems

    Since the passage of the First Safety Appliance Act of March 2, 
1893, freight train operations in the U.S. have traditionally relied on 
air brakes to slow and stop a train.\64\ This conventional air brake 
system has proven to be reliable, but it has drawbacks. When a train is 
long and heavy, as is typically the case in the context of an HHFT, a 
conventional air brake system can easily take over one-half mile to 
bring a train to a stop, even with the emergency brakes applied. 
Moreover, the length of a train will significantly affect the time it 
takes for the conventional air brakes to apply to the entire consist. 
It can take a number of seconds for the air brake system to function as 
air is removed from the system to engage the brakes, beginning with the 
cars nearest to the locomotive and working towards the rear of the 
train. For example, in a 100-car train it could take up to 16 seconds 
as the brakes fully apply sequentially from front-to-back. This lag in 
air brake application time from the front to the back of the train also 
can result in significant in-train buff and draft forces. These in-
train forces can lead to wheel damage (e.g. slid flat spots) and can 
negatively impact rail integrity as these flat spots create a vertical 
impact force (``pounding'') on the rails. These are major contributing 
factors to derailments. In-train forces resulting from the application 
of conventional air brakes also can directly contribute to derailments, 
particularly in emergency situations, as freight cars can be forcefully 
bunched together when the train is brought to a stop quickly. These 
forces may also be amplified by the longitudinal slosh effect of a 
liquid lading, such as crude oil or ethanol. Such factors have led 
PHMSA and FRA to consider advanced brake signal propagation systems as 
a way to improve safety in the transportation of Class 3 flammable 
liquids by rail, particularly with respect to longer trains 
transporting 70 or more tank cars loaded with Class 3 flammable 
liquids. These more advanced systems have the capability to stop trains 
more quickly and reduce the number of braking induced derailments.
---------------------------------------------------------------------------

    \64\ The conventional air brake system was invented by George 
Westinghouse in approximately 1869. It relies on air pressure to 
apply and release the air brakes on each car in a train's consist. 
There is an air brake line that connects each car to an air source 
provided by the locomotive. When the air brakes are in the release 
position, the locomotive is providing air pressure to prevent the 
air brakes from applying. When air pressure is reduced in the system 
during a service application, the air brakes will apply. (Note: 
There are also handbrakes on each car and each locomotive and an 
independent brake on each locomotive. Handbrakes are not activated 
by a train's air brakes system. Independent brakes may be applied 
and released separately from the train's air brake system.)
---------------------------------------------------------------------------

Types of Brake Signal Propagation Systems Considered in the NPRM
    Brake signal propagation systems are interconnected arrangements of 
braking components that operate together to slow or stop a train. 
Compared to conventional air brakes, these systems can reduce the 
number of cars impacted (e.g., derailed or punctured), can dissipate 
the kinetic energy associated with train accidents, and in some 
instances can prevent an accident from occurring through accident 
avoidance. In the NPRM, PHMSA and FRA considered three advanced brake 
signal propagation systems that would contribute to the safe 
transportation of Class 3 flammable liquids when transported in bulk by 
rail: Two-way end-of-train (EOT) devices, distributed power (DP) 
systems, and electronically controlled pneumatic (ECP) braking systems.
    Two-way EOT devices include two pieces of equipment linked by radio 
that initiate an emergency brake application

[[Page 26693]]

command from the front unit located in the controlling (``lead'') 
locomotive, which then activates the emergency air valve at the rear of 
the train within one second. The rear unit of the device sends an 
acknowledgment message to the front unit immediately upon receipt of an 
emergency brake application command. A two-way EOT device is slightly 
more effective than conventional air brakes because the rear cars 
receive the emergency brake command more quickly in an engineer induced 
emergency brake application.
    DP systems use multiple locomotives positioned at strategic 
locations within the train consist (often at the rear of the train) to 
provide additional power and train control in certain operations. For 
instance, a DP system may be used to provide power while climbing a 
steep incline and to control the movement of the train as it crests the 
incline and begins its downward descent. The DP system works through 
the control of the rearward locomotives by command signals originating 
at the lead locomotive and transmitted to the remote (rearward) 
locomotives. DP systems are a mature technology and are in widespread 
use on Class I railroads, particularly those operating west of the 
Mississippi River. While distributed power technically is not a braking 
system, the additional power source in or at the rear of the train 
consist can provide enhanced braking for a train.
    ECP brake systems simultaneously send an electronic braking command 
to all equipped cars in the train, reducing the time before a car's 
pneumatic brakes are engaged compared to conventional air brakes. They 
can be installed as an overlay to a conventional air brake system or 
replace it altogether; however, FRA regulations do require that ECP 
brake systems be interoperable pursuant to the AAR S-4200 standard, 
which allows for interchange among the Class I railroads. 49 CFR 
232.603. The modeling performed for the NPRM by Sharma & Associates 
suggested that ECP brakes could reduce the severity of an accident when 
emergency braking is applied by 36 percent (meaning that 36 percent 
fewer cars would be expected to puncture in the event of a derailment 
of a 100 car train) compared to conventional air brakes.\65\ Additional 
modeling (discussed in detail below) conducted after the NPRM, supports 
the finding that ECP brakes reduce the probability of punctures in the 
event of a derailment, although the updated modeling determined that 
ECP brakes provide an approximate safety benefit of 26-30 percent in 
terms of reduced probability of tank car punctures. PHMSA and FRA 
conducted additional analysis of the results provided in the updated 
analysis and determined that ECP brakes were almost 20 percent more 
effective than a two-way EOT device or DP unit when weighted based on 
the quantity of product spilled in a derailment.
---------------------------------------------------------------------------

    \65\ The estimates for ECP braking systems in the NPRM have been 
revised based on updated modeling from Sharma & Associates. See 
``Letter Report: Objective Evaluation of Risk Reduction from Tank 
Car Design & Operations Improvement--Extended Study,'' Sharma & 
Associates, March 2015. The final rule relies on the updated 
modeling.
---------------------------------------------------------------------------

    The simultaneous application of ECP brakes on all cars in a train 
also significantly improves train handling by substantially reducing 
stopping distances as well as buff and draft forces within the train, 
which under certain conditions can result in a derailment. Because ECP 
brakes do not rely on changes in air pressure passing from car to car, 
there are no delays related to the depletion and recharging of a 
train's air brake system. These factors provide railroads with the 
ability to decrease congestion or to increase volume by running longer 
trains closer together.\66\ Further, under current FRA regulations, 
trains relying on ECP brakes are allowed to run for longer distances 
between brake inspections (up to 3,500 miles), which decreases the time 
equipment spends out of service. See ``ECP Efficiencies'' discussion in 
the RIA. FRA's existing regulations also permit significant flexibility 
related to the handling of cars with inoperative brakes due to the fact 
that ECP braking systems allow train crews to electronically monitor 
the effectiveness of the brakes on each individual car in a train and 
provide real-time information on the performance of the entire braking 
system of the train.\67\ ECP braking system technology also reduces the 
wear and tear on brake system components and can reduce fuel 
consumption. The combination of all these factors allows for more 
efficient operations, which results in ECP-equipped trains having 
higher utilization rates. These efficiencies are addressed in detail in 
the RIA, which is included in the docket.
---------------------------------------------------------------------------

    \66\ PHMSA and FRA recognize that the outer length of trains 
will ultimately governed by structural factors, such as the length 
sidings.
    \67\ A train equipped with ECP brakes may depart its initial 
terminal with 95 percent operative brakes, whereas a train equipped 
with conventional air brakes must have 100 percent operative brakes 
at departure.
---------------------------------------------------------------------------

    Because U.S. railroads have traditionally relied on conventional 
air brakes, existing tank cars and locomotives (to a lesser extent) 
have not been built with ECP brake technology installed. All cars in a 
train, as well as locomotives, must be equipped with wiring to allow 
the brake system to be relayed through the entire train before the 
train can operate in ECP brake mode.\68\ As a result, an ECP brake 
system is not efficient in a situation where a substantial number of 
cars are not equipped to handle ECP brakes. This aligns with the 
experiences learned from the operation of ECP-equipped trains by BNSF 
Railway (BNSF) and Norfolk Southern Railway (NS), which indicate that 
ECP braking technology can be implemented most effectively on unit 
trains that tend to be kept in dedicated service (i.e. primarily used 
in unit trains that are essentially transporting a single commodity, 
such as crude oil). Applying ECP brake systems in this manner has been 
demonstrated to be successful both domestically and internationally as 
discussed in further detail below.
---------------------------------------------------------------------------

    \68\ This wiring could be used to by-pass a car or locomotive if 
it were not equipped with ECP brakes. However, the train must have a 
minimum of 95 percent effective brakes. See 49 CFR 232.609.
---------------------------------------------------------------------------

Public Comments to the Brake System Proposal in the NPRM
    Given the increased risks associated with an accident involving 
HHFTs, we specifically requested comments in the September 6, 2013, 
ANPRM on the use of advanced brake signal propagation systems to reduce 
the number of cars and energy associated with derailments. Based on 
comments to the ANPRM and the FRA simulation data described above, in 
the August 1, 2014, NPRM we proposed to require that each HHFT be 
equipped with an enhanced brake signal propagation system (i.e., 
equipped with more than just conventional air brakes) along with an 
implementation schedule that would minimize the impacts on rail 
carriers. Specifically, subject to one exception, we proposed to 
require the following:
     HHFTs are to be equipped with a two-way EOT device as 
defined in 49 CFR 232.5 or a DP system as defined in 49 CFR 229.5, by 
October 1, 2015.
     After October 1, 2015, a tank car manufactured in 
accordance with proposed Sec.  179.202 or Sec.  179.202-11 for use in a 
HHFT must be equipped with ECP brakes.
     After October 1, 2015, HHFTs comprised entirely of tank 
cars manufactured in accordance with proposed Sec.  179.202 and Sec.  
179.202-11 (for Tank Car Option 1, the PHMSA and FRA Designed Car, 
only), except for required buffer cars, must be operated in ECP brake 
mode as defined by 49 CFR 232.5.

[[Page 26694]]

    To reduce the burden on small carriers that may not have the 
capital available to install new braking systems, we proposed an 
exception. If a rail carrier does not comply with the proposed braking 
requirements above, we proposed that the carrier may continue to 
operate HHFTs at speeds not to exceed 30 mph. Additionally, we sought 
specific comment on the capacity of tank car and locomotive 
manufacturing and retrofit facilities to install advanced brake signal 
propagation systems, estimated costs of ECP braking systems, 
alternative simulations or modeling data to validate the results of the 
FRA commissioned analysis, and the interaction of safety and 
environmental benefits when coupled with speed restrictions or enhanced 
tank car standards. The table below details the types and amounts of 
commenters on the braking proposals.

            Table 25--Commenter Composition: Braking Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................         100,738
Individuals.............................................           8,622
Industry stakeholders...................................             217
Government organizations or representatives.............              19
                                                         ---------------
  Totals................................................         109,596
------------------------------------------------------------------------

    Most of the commenters support the proposed requirements for 
enhanced braking systems beyond conventional air brakes on HHFTs. Of 
those commenters who identified the braking issue in their response, 
approximately 98 percent of signatories specifically supported 
mandating ECP brakes for HHFTs. Whereas, two percent of signatories 
opposed specifically mandating ECP brakes for HHFTs in favor of two-way 
EOT devices, DP systems, any enhanced braking, or no enhanced braking.
    Environmental groups, concerned public, other governmental 
organizations, Indian tribes, local governments, towns and cities, NGOs 
and trade associations were among the main groups supporting the 
mandating of ECP brakes for HHFTs. It should be noted that while 98 
percent of signatories supported ECP brakes, these commenters largely 
did not provide additional data supporting the proposal in the NPRM. 
Some concerned public commenters supported expanding the braking 
proposal to require that all tank cars transporting hazardous materials 
be equipped with ECP brakes. In an online write-in campaign, over 3,000 
public commenters state: ``[t]hree levels of brakes for tank car 
standards are offered but ALL tank cars carrying hazardous materials 
should be equipped with the highest level of brakes and brake signaling 
systems.''
    Other concerned public, Congressional, Indian tribes and 
environmental group commenters expressed support for ECP brakes as 
proposed in the NPRM. Most stated generally that they were in favor of 
the most stringent and advanced brakes available for HHFTs. The 
Regional Tribal Operations Committee commented that the final rule must 
``require state-of-the art braking systems for crude-by-rail trains to 
protect the public in the face of what the [NTSB] has called 
`unacceptable public risks.'' Cost was not generally discussed by those 
commenters who supported ECP brakes, and cost did not appear to be a 
deciding factor in selection of a braking option for the commenters who 
supported use of ECP braking systems. Specifically, these commenters 
desired the tank car braking enhancements that would result in the 
greatest improvements in safety for those in proximity to the rail 
network as well as for environmentally sensitive areas along such 
routes.
    Commenters such as environmental groups and state agencies 
supported ECP braking based on the modeling data provided by PHMSA and 
FRA. The Center for Biological Diversity, in its comment with almost 
23,000 signatories, stated:

    Given that the ECP system would only reduce the potential for 
tank car punctures by 36%, it is unconscionable to allow the option 
of a potentially cheaper distributed power system, which would only 
reduce accident severity by 18%. . . . Given the imminent hazard 
that HHFTs pose to human health and the environment, the most 
effective brake system that has been shown to be readily available 
for these trains must be employed, and PHMSA must not offer a choice 
that would drastically increase the severity of accidents.

    Clean Water Action supports ECP brakes in their comment stating 
``[t]o slow HHFTs[,] all rail cars should be equipped with the [ECP] 
brake system whose effectiveness has been shown to be 36%.'' It also 
comments that, ``[e]ven though industry believes the ECP adds 
significant time and cost investment and the benefits will not be 
realized for months or years in the future, the technology seems to 
offer significant benefits such as real time monitoring, reduced wear 
and tear on the brake system, and fuel savings.'' Clean Water Action 
further noted that, ``[i]t would have been encouraging for the industry 
to embrace a proven technology rather than to suggest ECP offers 
marginal benefits,'' particularly when the increased effectiveness of 
DP systems is only 18 percent. The California Public Utilities 
Commission and California Governor's Office of Emergency Services in 
their joint comment also noted that the 2006 study, ``ECP Brake System 
for Freight Service: Final Report,'' \69\ identifies a number of 
benefits related to the implementation of ECP braking including: 
reduced stopping distances up to 70 percent, reduction in undesired 
emergency brake applications, improved train handling, and reduced fuel 
consumption.
---------------------------------------------------------------------------

    \69\ FRA, ``ECP Brake System for Freight Service: Final 
Report,'' Booz Allen Hamilton, 2006, http://www.fra.dot.gov/eLib/Details/L02964.
---------------------------------------------------------------------------

    Additionally, some commenters noted that EOT devices or DP systems 
are already the base standard for industry and expressed concerns that 
codifying the requirement to equip one of those two systems would not 
increase safety in any significant manner. The BLET stated in its 
comment that, ``. . . the EOT requirement already exists in 49 CFR 
232.407.'' As a result, it contended that the proposed EOT device 
``requirement was picked simply to have no economic impact on railroads 
because they were already complying with this rule.'' The BLET noted 
that, ``achieving cost savings is a worthy goal,'' but urged that ``it 
cannot be a goal that comes at the risk of providing no additional 
safety benefits by preservation of the status quo.'' Further, the BLET 
contended that, ``[t]he use of distributed power is also currently 
being done for business purposes of being able to run longer, heavier 
trains due to more locomotive tractive effort provided at the rear or 
within a train.''
    The Brotherhood of Maintenance of Way Employees Division (BMWED) 
and the Brotherhood of Railroad Signalmen (BRS) in their joint comment 
support ECP braking if the requirement also includes a restoration of 
the 1,000-1,500 mile interval for brake and mechanical inspections to 
be performed by a qualified inspector.
    Concerned public, shippers, trade associations, other governmental 
organizations, and rail carriers were the main groups commenting in 
opposition to ECP brakes for HHFTs in favor of two-way EOT devices, DP 
systems, any enhanced braking or no enhanced braking. While these 
commenters represented a small minority of the overall number of 
signatories who identified braking systems in their response, several 
of these commenters provided cost analyses or brake system 
effectiveness data to compare against

[[Page 26695]]

the data presented by PHMSA and FRA under the NPRM.
Comments on ECP Effectiveness
    Prior to publication of the August 1, 2014, NPRM, FRA conducted 
simulations using the Train Energy & Dynamics Simulator (TEDS) program 
developed by Sharma & Associates to demonstrate the increased 
effectiveness of ECP brakes compared to conventional brakes, EOT 
devices, and DP systems. The simulations were conducted to better 
understand the effect on energy dissipation and stopping distance of 
different brake signal propagation systems. The results of these 
simulations suggested that advanced brake signal propagation systems, 
especially ECP brake systems, decrease brake signal propagation time(s) 
and decreased kinetic energy of a train in a derailment compared to the 
conventional air brake system. Many commenters in opposition to ECP 
brakes challenged PHMSA and FRA's effectiveness claims in the NPRM.
    AAR challenged the modeling done by Sharma & Associates based on 
several factors. It states that the number of simulations was too 
limited and conducted on trains of 80 cars or less.\70\ AAR's 
Transportation Technology Center, Inc. (TTCI) undertook its own 
modeling of the effect of ECP brakes, with an independent review by 
Applied Research Associates. According to AAR, the TTCI modeling 
considered additional factors that are not in the Sharma & Associates 
modeling. These include the force applied to cars past the point of 
derailment, potential for derailment to occur at different points on a 
train, and the variability in a train's response to different types of 
derailment. Using the Aliceville, AL, derailment as a proxy, TTCI 
concludes that the energy of the derailment would have been decreased 
by 12 percent had ECP brakes been used instead of the distributed power 
in use on that train. Utilizing simulated speeds of 30, 35, 40, 45, and 
50 mph, respectively, as well as multiple advanced brake systems--such 
as conventional brakes with two-way EOT and head-end devices \71\ and 
distributed power (rear, middle of the train, and buried 2/3)--TTCI's 
modeling suggests that a train using ECP brakes is 10.5-13.3 percent 
more effective as measured by the decrease in kinetic energy during the 
derailment, with a decrease in the number of cars expected to be 
derailed at 1.2-1.6 cars.
---------------------------------------------------------------------------

    \70\ The initial round of simulations were, in fact, 80 car 
trains. For the final rule 100, 80, 50 and 20 car trains were 
modeled.
    \71\ A head-end device (also known as front-of-train unit or 
front unit) is placed in the locomotive. It receives data from the 
EOT device that is placed on the rear car of the train. In two-way 
EOT systems, the head-end device is able to initiate emergency 
braking at the rear of the train within one second. See 49 CFR 
232.403 and 405.
---------------------------------------------------------------------------

    While these figures do tend to show that ECP brakes are more 
effective than DP systems, the figures developed by TTCI are indeed 
lower than those presented in the Sharma & Associates modeling. 
However, it is unclear what brake ratio TTCI used in its modeling.\72\ 
The current maximum allowable brake ratio for conventional braking is 
10-11 percent, depending on the car. The modeling for conventional 
braking that was done by Sharma & Associates used a simulated brake 
ratio of ten percent. Because the in-train forces are greatly reduced 
when using ECP brakes, AAR guidelines allow for a higher brake ratio 
for ECP brakes than conventional brakes. The maximum brake ratio for 
ECP brakes is about 13 percent. This should translate into shorter 
stopping distances and decreased energy in the event of a derailment 
for trains equipped with ECP braking systems, but it is not evident 
from the information provided by AAR whether TTCI accounted for the 
higher allowable brake ratio in its modeling.
---------------------------------------------------------------------------

    \72\ The braking ratio is the relation of the braking force to 
the weight of the car or locomotive.
---------------------------------------------------------------------------

    Additionally, while TTCI ``reproduces'' certain recorded stopping 
distances in derailments, it does not actually simulate a derailment. 
Instead, the TTCI model simply calculates the energy dissipation as a 
train is slowed to stop when a blocking force is applied. The blocking 
force is intended to act as a surrogate for the force applied by the 
cars in a derailment, but this is a poor corollary to a derailment 
outcome because energy dissipation by itself is insufficient to 
quantify damages. It does not take into account other factors, such as 
location of impact and size of impactors that are of equal importance 
to energy. Therefore, we question the exactness of TTCI's results with 
respect to modeling the effectiveness of ECP brakes.
    AAR also suggests that the conditional probability of release (CPR; 
the probability of a release if a tank car is in an accident), will 
also depend on the specific tank car specification selected by PHMSA. 
For example, if the CPR is five percent that means there will only be a 
five percent chance of a release from the 1.2 to 1.6 cars derailing due 
to the absence of ECP brakes, everything else being equal.
    Union Pacific concluded that multiple remote trains (i.e. DP 
systems) have essentially the same stopping performance as ECP brakes, 
and that it makes little difference whether the brake commands are 
delivered within 2.5 seconds (using ECP) or within four seconds (using 
DP). Even though the delay in braking commands with ECP and DP can be 
as much as 4-5 seconds (a result of the difference in build-up time for 
the brake cylinder pressure), the difference in stop distance is 
``virtually unnoticeable.'' Based on its 2009 testing, Union Pacific 
concluded that braking and train handling were virtually as good with 
DP systems as the ECP test train. Moreover, Union Pacific found that 
increasing its use of distributed power resulted in benefits nearly 
identical to using ECP braking, without the significant operating 
issues created by ECP brake systems. Specifically, it states that there 
are considerable compatibility and reliability issues with ECP brakes 
that make them a less effective option, such as power failures as well 
as hardware and software issues.
    Honeywell Performance Materials and Technologies commented in 
opposition of ECP braking based on how ECP brake systems operate 
stating, ``the new design is not compatible with present fleet braking 
systems'' and ``[i]t is our understanding that all cars, including the 
locomotive, in a train would need to be equipped with the ECP brakes to 
be effective.'' Concerns that all cars in a train must be equipped with 
ECP brakes in order for the system to function was echoed by other 
commenters in opposition of ECP brakes. Bridger commented that ``cars 
equipped with ECP brakes cannot be intermixed with cars equipped with 
conventional airbrakes. Thus, any tank cars set out en-route for 
defects will be difficult to move to destination. This will slow the 
cycle times on the cars and may also add operational costs for the 
railroads in having to make special movements to `rescue' stranded ECP 
equipped cars.''
    BNSF submitted that the benefits of ECP brakes--in the context of 
avoiding the spillage or ignition of flammable liquids moved by rail--
do not come close to justifying the costs, complexity and lost 
productivity that would result from an ECP brake requirement, 
especially when compared to realizing the benefits from a DP system, 
which is proven technology. BNSF goes on to state that a train equipped 
with ECP brakes, on average, would have approximately two fewer cars 
per train derail than a similar train equipped with DP. BNSF has 
experience with ECP brakes on unit trains in a captive, closed-loop 
environment. What BNSF has found is that the ECP braking equipment is 
more expensive to maintain, requires specialized skills and

[[Page 26696]]

shopping capabilities, and has not ever, in BNSF's experience, been 
successfully applied outside of a limited, closed-loop environment. 
BNSF goes on to say that while crude and ethanol make up five percent 
of its shipments they travel on 70 percent of the BNSF network. This 
will result in training and repair needs across a majority of their 
network for a commodity that is only a small fraction of their freight 
shipments.
Comments on Availability and Cost
    The Independent Petroleum Association of America (IPAA), BNSF and 
Plains Marketing, LP opposed ECP brakes noting that there are only two 
known manufacturers of ECP brakes, and that all current sales are 
overseas. BNSF noted that the systems of the two manufacturers (New 
York Air Brake and Wabtec) are not believed to be interoperable. In 
addition, these manufacturers do not currently produce ECP brake 
components in sufficient volumes to handle this regulatory requirement. 
Amsted Rail stated that there are only six trains currently operating 
with ECP brakes in the United States.
    AAR, Greenbrier, Amsted Rail, the National Grain & Feed 
Association, RSI and AFPM provided cost estimates per tank car for ECP 
brakes ranging from $5,300 to $15,000--above the PHMSA estimate of 
$3,000 for new construction and $5,000 for retrofits.
    AAR, Bridger and AFPM provided cost estimates per locomotive for 
ECP brakes ranging from $20,000 to $88,000--in contrast to the PHMSA 
estimate of $79,000. These commenters also indicated that PHMSA 
underestimated the size of the affected locomotive fleet.
    AAR commented that 9,849 carmen, 27,143 engineers, and 41,015 
conductors would need training--above the PHMSA estimate of 4,500 
engineers and 4,500 conductors. The majority of commenters in 
opposition to ECP brakes stated that the cost of equipping the system 
is too high. Additionally, many were concerned that the installation 
process and overlay of these braking systems is too complex. PHMSA and 
FRA discuss the cost-benefit analysis of ECP braking in further depth 
in the RIA.
Comments on Integration of ECP Brake Systems with Positive Train 
Control
    Many commenters both in support of and opposition to ECP brakes 
mentioned positive train control (PTC) in their comments. PTC is a set 
of highly advanced technologies designed to automatically stop or slow 
a train before certain types of accidents occur. PTC is designed to 
prevent train-to-train collisions, derailments caused by excessive 
speed, unauthorized incursions by trains onto sections of track where 
maintenance activities are taking place, and movement of a train 
through a track switch left in the wrong position.\73\ The Rail Safety 
Improvement Act (RSIA) of 2008 mandated an end of 2015 deadline to 
implement PTC across 70,000 miles of the rail network.\74\ See 
``Positive Train Control Systems,'' 75 FR 2598 (January 15, 2010), FRA 
Docket No. FRA-2008-0132; for further information.\75\
---------------------------------------------------------------------------

    \73\ https://www.aar.org/policy/positive-train-control.
    \74\ Public Law 110-432--Rail Safety Improvement Act of 2008, 
https://www.fra.dot.gov/eLib/Details/L03588.
    \75\ http://www.gpo.gov/fdsys/pkg/FR-2010-01-15/pdf/E9-31362.pdf.
---------------------------------------------------------------------------

    BNSF commented that ECP brake implementation would require a re-
write of the PTC algorithm, which would then need to go through the FRA 
approval process. Furthermore, physical and logical interfaces between 
ECP brake and PTC equipment would have to be designed and tested. BNSF 
is not currently aware of any adverse interactions between the two 
systems. Additionally, it commented that rail shop capacity is already 
strained due to the PTC mandate, and would be further congested by a 
requirement for ECP brakes.
Analysis of the Final Rule Requirements Related to Advanced Brake 
Propagation Systems
    This final rule requires all HHFTs operating in excess of 30 mph to 
have enhanced braking systems. The type of enhanced brake system that a 
railroad will be required to use is based on a refined approach that 
allows PHMSA and FRA to implement real brake system safety improvements 
by taking into consideration the amount of Class 3 flammable liquids 
being transported by a train as well as the type of operation that the 
train uses to transport Class 3 flammable liquids. At a baseline level, 
any train that contains a continuous block of 20 or more loaded tank 
cars or a total of at least 35 loaded tank cars throughout the train 
consist containing Class 3 flammable liquids must have in place, at a 
minimum, a functioning two-way EOT device or a DP system to assist in 
braking. Based on FRA analysis and modeling by Sharma & Associates 
conducted in March 2015, it is expected that a two-way EOT device or DP 
locomotive at the rear of a train can reduce the number of cars 
punctured by 13-16 percent compared to conventional air brakes. 
However, with longer, heavier trains it is necessary to factor in train 
control issues. Therefore, PHMSA and FRA have specific braking 
requirements for trains that are transporting 70 or more loaded tank 
cars of Class 3 flammable liquids at speeds in excess of 30 mph. These 
requirements are intended to further enhance safety based on the 
operations conducted for longer, heavier trains.
    Any high-hazard flammable unit train (HHFUT) operating in excess of 
30 mph must have a functioning ECP brake system that complies with the 
requirements of 49 CFR part 232, subpart G. PHMSA and FRA define an 
HHFUT as a single train consisting 70 or more tank cars loaded with 
Class 3 flammable liquids. This definition is intended to capture those 
operations where tank cars and locomotives are primarily used in 
captive service trains that are transporting large quantities of Class 
3 flammable liquids (such as crude oil and ethanol) and are running in 
a continuous loop. The ECP braking requirement goes into effect as of 
January 1, 2021 for any HHFUT transporting one or more loaded tank car 
of a Packing Group I flammable liquid, and goes into effect as of May 
1, 2023 for all other HHFUTs.
    While PHMSA and FRA are establishing a requirement to implement ECP 
brake systems for certain operations, we recognize that the railroad 
industry may develop a new brake system technology or an upgrade to 
existing technology that is not addressed in 49 CFR part 232, subparts 
E (for two-way EOTs) and G (for ECP braking systems). This rulemaking 
is not intended to ``lock in'' the status quo with respect to ECP brake 
systems as the only form of brake system that can be used on unit 
trains operating in excess of 30 mph while transporting 70 or more 
loaded tank cars of flammable liquids. In the event that a new 
technology is developed, railroads should apply to FRA to obtain 
special approval for the technology pursuant to part 232, subpart F.
    Finally, PHMSA and FRA believe that it makes practical sense to 
except trains operating at speeds not exceeding 30 mph from the 
requirements related to HHFUTs. This enables shortline and regional 
railroads and railroads without the capital necessary to equip unit 
trains with ECP brakes or that choose not to equip their trains with 
these systems to continue transporting Class 3 flammable liquids, 
albeit at slower speeds in order to protect public safety and the 
environment. It also is important to note that such railroads will be 
required to transport Class 3 flammable liquids in

[[Page 26697]]

tank cars that comply with the new standards.
Effectiveness of ECP Brake Systems
    ECP braking is a proven technology that is a reliable and effective 
way to slow and stop a train, and to prevent accidents from occurring, 
while also allowing for more efficient operations. ECP brakes have been 
used in North American railroad operations since at least 1998. PHMSA 
and FRA recognize that there have been hurdles in the deployment of ECP 
brakes. However, the technology has continued to improve since 1998 and 
carriers are in a better position now to ensure that ECP brakes are 
successfully implemented. The railroad industry has effectively 
addressed crosstalk and interoperability issues and has updated AAR 
Standard S-4200 accordingly. We expect that concerns related to 
maintenance and repair issues that arise during normal operations will 
be resolved through adequate training of operating crews and 
maintenance personnel, which has been factored into the cost of this 
rule.\76\ These issues are discussed in detail in the ``Reliability and 
Technological Readiness'' section of the RIA, which has been added to 
the docket.
---------------------------------------------------------------------------

    \76\ PHMSA and FRA estimates that railroads will need to train 
approximately 51,500 employees.
---------------------------------------------------------------------------

    There are currently six unit coal trains being operated with ECP 
brake systems in the U.S. These began as waiver test trains; however, 
all but one are now in regular revenue service. NS began operating unit 
coal trains using ECP braking systems in 2007,\77\ and it is currently 
operating five ECP-equipped unit coal trains. These trains presently 
make trips from coal mines in Southwestern Pennsylvania to the Keystone 
Generating Station near Shelocta, PA (two 100-car or more trains; 
approximately 350 miles round-trip) and to a generating station near 
Blairsville, PA. NS also operates unit coal trains originating in the 
mines of Southwest Virginia that transport coal to a power plant in 
Clover, VA (approximately 700 miles round-trip).\78\ Additionally, in 
2014, NS began operating a unit coal train with BNSF providing 
operating crews while the train operates over BNSF's rail line that 
travels between the Powder River Basin and Macon, GA. BNSF, 
independently, has operated a 135-car ECP-equipped unit coal train 
since 2008 that travels approximately 3,060 miles round-trip from the 
Powder River Basin to Palos, AL.\79\ PHMSA and FRA are unaware of any 
accidents or incidents (such as a derailment) along these routes to 
date that could be attributed to operational issues with ECP brakes.
---------------------------------------------------------------------------

    \77\ ECP Brake Implementation on Norfolk Southern, presentation 
to RSAC, October 25, 2007, https://rsac.fra.dot.gov/meetings/20071025.php.
    \78\ Electronically Controlled Pneumatic Brake Rulemaking, 
presentation to RSAC, February 20, 2008, https://rsac.fra.dot.gov/meetings/20080220.php.
    \79\ BNSF Operates Southern Company Coal Train Equipped with 
New-Generation Braking System, 25 January, 2008, https://www.bnsf.com/media/news/articles/2008/01/2008-01-25a.html.
---------------------------------------------------------------------------

    Some commenters have noted that there has not been widespread 
adoption of ECP brakes in the U.S. There are a number of factors that 
contribute to this. First, the positive train control (PTC) requirement 
diverted significant capital (financial and human) toward signal 
systems at a time when those resources might have otherwise been 
directed at ECP brakes. Second, it has been difficult to implement ECP 
brakes outside of a limited type of service in part because they are 
not compatible with the conventional air brakes (this is particularly 
true stand-alone systems, which are less expensive). This means that 
ECP brakes would only be used on unit trains that are in captured 
service and both the car owner and the railroad agree on its use. 
Further, the limited usage contributes to unfamiliarity with the 
technology and likely contributes to many of the operational and 
maintenance difficulties expressed by railroads in their comments. 
Third, there are market inefficiencies that have limited implementation 
of ECP brakes. ECP brakes are most likely to be implemented on a 
voluntary basis where owner of ECP-equipped cars has control over a 
seamless operation of unit trains from the originating location to the 
delivery location, such as what is found in Australia or South Africa. 
In the U.S. most cars owners have little incentive install ECP brakes 
because they tend to bear most of the upfront cost of installing the 
braking system, while most of the benefits (such as decreased fuel 
consumption) are realized by a separate entity, the operating railroad. 
Notwithstanding, car owners might still have an incentive to install 
ECP brakes if they were to realize greater utilization due to less 
inspections. However, FRA understands that railroads effectively 
eliminated the incentive to install ECP brakes by treating such cars as 
being in premium service, resulting in higher cost per use.
    AAR contends that most of the benefits from ECP brakes, such as 
more efficient fuel consumption and reduced wheel wear, are currently 
realized through the widespread use of dynamic braking. PHMSA and FRA 
did not address this issue in the NPRM and it was not raised until 
after the close of the comment period.\80\ While dynamic braking does 
provide an alternative to pneumatic brakes for slowing a train in non-
emergency situation and allows a train to operate more efficiently, 
trains that use dynamic braking and not ECP brakes do not get business 
benefits from ECP brakes. AAR analyzed data from a small number of 
trips of ECP-equipped trains and found that 89 percent of the time that 
the train was braking, it was not using ECP brakes in whole or in part. 
AAR, therefore, estimated that 85 percent of the fuel and wheel savings 
benefits are currently realized through use of dynamic brakes. PHMSA 
and FRA accept that the fuel and wheel savings should be reduced to 
account for the use of dynamic braking, but the reduction should be 
smaller than 85 percent. The ability to use ECP brakes in conjunction 
with dynamic brakes further improves fuel efficiency by as much as five 
percent above dynamic braking alone, depending on the routes and 
railroad practices. For instance, Canadian Pacific achieved a fuel 
savings of 5.4 percent when ECP brakes were used along with dynamic 
brakes during testing in Golden, British Columbia, on a route that has 
particularly advantageous terrain for maximizing the fuel benefits 
associated with ECP braking.\81\ Because not all terrain will be as 
advantageous as this test region, PHMSA and FRA have reduced the 
estimated fuel efficiency benefits by 50 percent, corresponding to a 
fuel improvement rate of 2.5 percent on top of dynamic braking. 
However, this estimate is conservative and likely understates the fuel 
efficiency benefits.
---------------------------------------------------------------------------

    \80\ AAR gave a presentation on dynamic braking during meetings 
with the Office of Information and Regulatory Affairs of the Office 
of Management and Budget held under Executive Order 12,866.
    \81\ Wachs, K., Aronian, A., Bell, S. Electronically-Controlled 
Pneumatic (ECP) Brake Experience at Canadian Pacific. Proceedings 
from the 2011 International Heavy Haul Conference, Calgary AB, 2011, 
available at http://www.ihha.net/IHA/uploads/assets/fin00258.pdf.
---------------------------------------------------------------------------

    PHMSA and FRA also accept that benefits related to wheel savings 
should be reduced to account for the use of dynamic braking, but that 
they should be reduced by less than 85 percent suggested by AAR. 
Railroads will continue to experience brake induced wheel wear where 
pneumatic brakes are used, but if the railroads rely on dynamic braking 
they will face a cost not considered in other parts of the analysis, 
increased rail wear, with an attendant increased risk of broken rail 
accidents and increased track maintenance costs. PHMSA and FRA estimate 
that the use of dynamic braking

[[Page 26698]]

in conjunction with ECP brakes would reduce the dynamic brake induced 
rail wear by at least 25 percent based on Canadian Pacific's 
experience.\82\ Further, in spite of initial increases in thermal 
mechanical shelling due to heavy ``experimenting'' by train crews 
during the familiarization phase, Canadian Pacific found a four percent 
improvement in average wheel life.\83\ Once operations ``settle in,'' 
improvements in wheel life may reach ten percent, thus reducing the 
estimated wheel wear benefit by 75 percent instead of the 85 percent 
estimated by AAR.
---------------------------------------------------------------------------

    \82\ Wachs, K., p. 4
    \83\ Wachs, K., p 6
---------------------------------------------------------------------------

    Although PHMSA and FRA agree with those commenters who support ECP 
braking on unit trains, we disagree with the suggestion from the BMWED 
and BRS that FRA should restore the 1,000-1,500 mile interval 
requirement for brake/mechanical inspections. The 3,500 mile interval 
has a proven record of safety in the seven years of operations on the 
NS and BNSF railroads. The use of real-time equipment health monitoring 
capabilities on ECP-equipped trains is an effective safety tool that 
justifies the extended inspection intervals. Allowing for longer 
distances between inspection stoppages provides a benefit to railroads 
without decreasing safety by keeping safe equipment in-service for 
longer periods of time (each brake test and mechanical inspection can 
take from two to eight hours to complete and may delay a train even 
longer depending on available personnel and scheduling). As of October 
2014, NS initiated train operations under a 5,000 mile inspection 
waiver to test the effectiveness of a longer inspection interval on the 
unit coal train that it runs with BNSF in a loop between the Powder 
River Basin and Macon, GA.
    ECP brake systems based on the AAR S-4200 standard also have been 
exported successfully for use in Canada, Australia, and South Africa. 
As an example, the Quebec Cartier Mining Railway (QCM) in Quebec, 
Canada began using ECP-equipped trains in 1998.\84\ The use of ECP 
brake systems has allowed QCM to experience a 5.7 percent reduction in 
fuel usage and a 15 percent increase in throughput capacity.\85\ As 
noted above, a report on an ECP-equipped Canadian Pacific train found 
that the railroad achieved a fuel savings of 5.4 percent from ECP 
brakes during testing in Golden, British Columbia. The Australian 
experience also is instructive because, in contrast to the experience 
in the U.S., a number of railroads in that country have voluntarily 
invested heavily in ECP brakes.\86\ Australian railroads have been 
using ECP brakes on a portion of its fleet for over a decade,\87\ and 
they currently operate more than 28,000 cars in ECP brake mode. The 
types of trains that Australian railroads have equipped with ECP brakes 
share many similarities to HHFUTs in the U.S. Both fleets operate in 
heavy haul service, stay in extend blocks, and transport commodities 
that are a substantial source of revenue for the railroad. These 
Australia railroads have adopted ECP brakes based on expected business 
benefits (e.g. heavier, longer trains), but have found that ECP brakes 
allow for shorter stopping distances and real time monitoring, which 
makes them safer than conventional brakes. These issues are discussed 
in detail in the ``Australian Experience'' section of the RIA, which is 
part of the docket.
---------------------------------------------------------------------------

    \84\ ``Stop that train!'' March 1, 2009, http://spectrum.ieee.org/transportation/mass-transit/stop-that-train.
    \85\ ``Quebec Cartier pioneers safer, more efficient railroad 
brakes,'' Canadian Mining Journal, December 12, 2006, accessed 12-
22-2004 at http://www.canadianminingjournal.com/news/quebec-cartier-pioneers-safer-more-efficient-railroad-brakes/1000208809/?&er=NAhttp://www.fra.dot.gov/us/content/1713).
    \86\ South Africa is another strong adopter of ECP brakes, with 
about 7,000 railcars equipped with ECP brake technology. It is 
similar to Australia in that ECP brakes are being used in heavy haul 
coal service where the trains operate in a continuous loop and the 
railroads own their own railcars for this service.
    \87\ ``The ECP Brake--Now it's Arrived, What's the Consensus?,'' 
Sismey, B. and Day, L., Presented to the Conference on Railway 
Excellence, 2014, Adelaide, Australia.
---------------------------------------------------------------------------

    By setting the HHFUT threshold at 70 tank cars of flammable 
liquids, we expect to maximize the benefits of ECP brakes on the higher 
risk trains whose tank cars are primarily in dedicated service, while 
reducing the implementation challenges that would be caused by 
requiring ECP brakes for any train meeting the definition of an HHFT. 
By focusing the ECP brake system requirements on trains over the 70-car 
threshold that travel in excess of 30 mph, we ensure that trains with 
the greatest associated risk (based on volume of product) will be 
equipped with the advanced brake signal propagation system that has the 
highest known effectiveness in reducing the kinetic energy of a train 
during a derailment. This will reduce the number of cars derailed and 
punctured. We base our decision on estimates related to an average 100-
car unit train transporting Class 3 flammable liquids. FRA and PHMSA's 
modeling shows the risk posed by a 100-car ECP-equipped unit train made 
up of DOT-117 tank cars, traveling at 50 mph is approximately the same 
as a 64-car train of the same cars traveling at the same speed 
operating with a two-way EOT device. We have established a baseline 
cut-off at 70 cars in an effort to maximize the return on investment 
for ECP brakes, by capturing only those trains transporting Class 3 
flammable liquids in dedicated service.
    In the NPRM, PHMSA and FRA relied on data produced by Sharma & 
Associates that showed a 36 percent effectiveness rate of ECP brakes 
over conventional air brakes, as expressed in the probable number of 
cars punctured. In March 2015, Sharma & Associates performed additional 
modeling that takes into account the comments received after 
publication of the NPRM and additional accident information provided by 
FRA. See ``Letter Report: Objective Evaluation of Risk Reduction from 
Tank Car Design & Operations Improvement--Extended Study,'' Sharma & 
Associates, March 2015. This updated, purpose-built model from Sharma & 
Associates supports the view that ECP brakes provide a substantial 
safety benefit in emergency braking situations compared to conventional 
air brakes, two-way EOT devices, and DP systems. While a comprehensive 
discussion of effectiveness rates is provided in the March 2015 Letter 
Report (which has been added to the docket) and the RIA, some 
highlights are provided below.
    Puncture hazards result from a variety of factors, including 
operating conditions, speed of the train, and the type of tank car 
involved, which can make it difficult to objectively quantify the 
overall safety improvement that ECP brakes provide. The updated model 
provided by Sharma & Associates encapsulates a variety of factors in an 
effort to assess the real-world impact of the various braking 
alternatives considered in the NPRM. The Sharma model is validated by 
the general agreement between the actual number of tank cars punctured 
in 22 hazardous material derailments provided by FRA and those 
predicted by the model.
    The March 2015 Letter Report from Sharma & Associates used the most 
probable number of tank cars punctured to evaluate the benefits of the 
tank car enhancements, brake systems, and speed. The derailment 
scenarios were simulated for a 100-car train at different speeds with 
the first car subjected to a brief lateral force to initiate the 
derailment. At the point of derailment, Sharma & Associates applied a 
retarding force to all of the cars in the train that was equivalent to 
an emergency brake application. For a train with

[[Page 26699]]

conventional air brakes, Sharma & Associates modeled a brake initiation 
propagated from the front (point of derailment or ``POD'') to the rear 
of the train. For a train with a two-way EOT device or a DP locomotive 
at the rear of the train, the emergency brake signal propagation was 
initiated at both ends of the train. For a train with ECP brakes, the 
model had all cars simultaneously receiving the braking signal with a 
brake ratio of 12 percent. As reflected in the table below, for DOT-117 
and DOT-117R type tank cars, the ECP braking system was consistently 
the top performer in terms of the most likely number of cars punctured, 
while two-way EOT devices and DP systems with a locomotive at the rear 
consistently out-performed conventional air brake systems.

                 Table 26--Most Likely Number of Punctures: 100-Car Train, With POD at Head End
----------------------------------------------------------------------------------------------------------------
                                                                   Conventional   2-way EOT (DP:
                    Tank type                       Speed,  mph       brakes       lead + rear)     ECP Brakes
----------------------------------------------------------------------------------------------------------------
\7/16\-inch TC128, 11 gauge jacket, \1/2\-inch                30             4.7             3.9             3.3
 full-height head shield........................
                                                              40             8.0             7.1             5.3
                                                              50            12.2             9.8             9.1
\9/16\-inch TC128, 11 gauge jacket, \1/2\-inch                30             3.8             3.2             2.6
 full-height head shield........................
                                                              40             6.6             5.9             4.3
                                                              50            10.2             8.2             7.6
----------------------------------------------------------------------------------------------------------------

    Based on the analysis in the 2015 Letter Report from Sharma & 
Associates, PHMSA and FRA believe that ECP brakes, in isolation, can be 
expected to reduce the number of cars punctured by up to 30 percent 
when compared to conventional air brake systems (with a minimal 
variation based on train speed), while a two-way EOT device or DP 
locomotive at the rear of the train is projected to reduce the number 
of cars punctured by up to 16 percent. These numbers are reflected in 
the table below, for DOT-117 and DOT-117R type tank cars.

                                             Table 27--Risk Improvement Due to Braking With POD at Head End
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           100 Cars behind POD                                Most likely number of punctures        % Improvement due to brakes only
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         2-way EOT                               2-way EOT
                         Tank type                           Speed,  mph  Conventional  (DP: lead +   ECP brakes  Conventional  (DP: lead +   ECP brakes
                                                                             brakes        rear)                     brakes        rear)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\7/16\-inch TC128, 11 gauge jacket, \1/2\-inch full-height            30           4.7          3.9          3.3             0           17           30
 head shield...............................................           40           8.0          7.1          5.3             0           11           34
                                                                      50          12.2          9.8          9.1             0           20           25
\9/16\-inch TC128, 11 gauge jacket, \1/2\-inch full-height            30           3.8          3.2          2.6             0           16           32
 head shield...............................................           40           6.6          5.9          4.3             0           11           35
                                                                      50          10.2          8.2          7.6             0           20           25
                                                            --------------------------------------------------------------------------------------------
    Average................................................  ...........  ............  ...........  ...........  ............           16           30
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Sharma modeling indicates the ECP brake system always provides an 
advantage over the conventional air brake system in terms of likely 
number of tank cars punctured. This is true regardless of the location 
of the derailment within the train because the brakes are being applied 
to each car in the train at the same time. However, a number of 
commenters suggested that the scenarios modeled by Sharma & Associates 
may overstate the effectiveness of ECP brake systems because its model 
focused on measuring derailments at the front of a train. As a result, 
FRA conducted further analysis based on the simulations of derailments 
at different points in the train. FRA's simulations considered 
derailments at locations with 100, 80, 50, and 20 cars trailing the 
point of derailment. A polynomial fit of the resulting derailment and 
puncture results data from the simulations enabled FRA to evaluate the 
results of a derailment at any location in the train through 
interpolation and extrapolation. The results of the evaluation 
indicated that POD does impact the estimated number of cars punctured 
for any of the simulated brake systems, including a reduction in the 
estimated number of cars punctured for trains operated in ECP brake 
mode. This is expected given that if a derailment occurs at the 50th 
car in a train rather than the first car in the train, there are fewer 
cars to derail after the POD. However, in every simulation, the likely 
number of cars punctured on a train that uses ECP braking to effectuate 
an emergency stop was lower than the likely number of cars punctured on 
a train that uses a two-way EOT device or DP system with the locomotive 
at the rear to effectuate the same emergency stop. See Tables 29 and 
30.

         Table 28--Most Likely Number of Punctures: 100-Car Train, With POD Distributed Throughout Train
----------------------------------------------------------------------------------------------------------------
                                                                   Conventional   2-way EOT (DP:
                    Tank type                       Speed, mph        brakes       lead + rear)     ECP brakes
----------------------------------------------------------------------------------------------------------------
\7/16\-inch TC128, 11 gauge jacket, \1/2\-inch                30             3.4             2.8             2.6
 full-height head shield........................

[[Page 26700]]

 
                                                              40             6.8             6.2            4.65
                                                              50             9.3            7.92             7.2
\9/16\-inch TC128, 11 gauge jacket, \1/2\-inch                30             2.8             2.4             2.2
 full-height head shield........................              40             5.6             5.1             3.8
                                                              50             7.8             6.6             6.0
----------------------------------------------------------------------------------------------------------------


                                  Table 29--Risk Improvement Due to Braking, With POD Distributed Throughout the Train
--------------------------------------------------------------------------------------------------------------------------------------------------------
                           100 Cars behind POD                                Most likely number of punctures        % Improvement due to brakes only
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         2-way EOT                               2-way EOT
                         Tank type                            Speed, mph  Conventional  (DP: lead +   ECP brakes  Conventional  (DP: lead +   ECP brakes
                                                                             brakes        rear)                     brakes        rear)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\7/16\-inch TC128, 11 gauge jacket, \1/2\-inch full-height            30           3.4          2.8          2.6             0           18           24
 head shield...............................................  ...........           6.8          6.2         4.65             0            9           31
                                                                      50           9.3         7.92          7.2             0           15           23
\9/16\-inch TC128, 11 gauge jacket, \1/2\-inch full-height            30           2.8          2.4          2.2             0           14           21
 head shield...............................................           40           5.6          5.1          3.8             0            9           32
                                                                      50           7.8          6.6          6.0             0           15           23
                                                            --------------------------------------------------------------------------------------------
    Average................................................  ...........  ............  ...........  ...........  ............           13           26
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Using this information, PHMSA and FRA conducted further analysis of 
the data. We estimated effectiveness at 30, 40, and 50 mph, and took a 
weighted average of those results based on severity, using information 
about the quantity of product released that is in the historical 
record. PHMSA and FRA assigned historical derailments under 35 mph to 
the 30 mph effectiveness rate, assigning derailments between 35 and 45 
mph to the 40 mph effectiveness rate, and assigning derailments over 45 
mph to the 50 mph effectiveness rate. This analysis is reflected in 
Table 30, below.

        Table 30--Effectiveness Rate of ECP Brakes Weighted by Volume of Product Spilled in a Derailment
----------------------------------------------------------------------------------------------------------------
                                                                                         ECP
                                                                         Share of   effectiveness    Cumulative
                                              Number of   Total spill     total      rate at 30,   effectiveness
                                              incidents      volume     volume (%)    40, 50 mph      rate (%)
                                                                                         (%)
----------------------------------------------------------------------------------------------------------------
Below 34 mph...............................           33      798,433         22.8         20.10            4.6
35-44 mph..................................            8      1488350         49.2         25.80           12.7
45 mph and above...........................            5       980180           28          8.60            2.4
                                            --------------------------------------------------------------------
    Total..................................           46      3499656          100  .............          19.7
----------------------------------------------------------------------------------------------------------------

Because the effectiveness rates are lower at 30 mph and at 50 mph than 
they are at 40 mph, this process would result in an effectiveness rate 
of about 20 percent, which signifies the benefit of ECP brakes compared 
to two-way EOT devices or DP systems, when weighted by severity using 
the amount of product spilled in a derailment.

    As there were comments related to placing a DP locomotive in the 
middle of the train, approximately two-thirds from the front (i.e. DP 
\2/3\), PHMSA and FRA also looked into this configuration. It found 
that ECP brakes also outperformed the DP \2/3\ option. See Figure 3. 
This analysis is addressed more fully in the RIA.

[[Page 26701]]

[GRAPHIC] [TIFF OMITTED] TR08MY15.003

    The results of the simulations in the March 2015 Letter Report from 
Sharma & Associates and the FRA analysis of the data show that advanced 
brake signal propagation systems reduce the rates of puncture in 
derailing tank cars relative to a conventional air brake system, with 
ECP brake systems demonstrating the best overall performance. The risk 
reduction benefits for ECP brake systems are most pronounced for long 
trains. As trains become shorter, the differences in puncture rates 
become diminished between ECP brakes and two-EOT devices or DP systems 
with a locomotive at the rear because of the limited time needed to 
initiate emergency braking. Thus, additional requirements for advanced 
brake signal propagation systems are feasible for addressing risks 
related to HHFTs, and ECP brake systems are particularly appropriate 
for HHFUTs. A full explanation of the benefits calculation can be found 
in the RIA.
Availability and Costs of ECP Brake Systems
    In the RIA for this final rule, PHMSA and FRA revised the 
assumptions made for the August 1, 2014, NPRM, including the following: 
Increased the estimate on the per car cost of installing ECP brakes, 
reduced the number of tank cars required to be equipped with ECP 
brakes, increased the number of locomotives required to be equipped 
with ECP brakes, and reduced the per locomotive cost for ECP-equipped 
locomotives.
    Many of the commenters noted that our estimate for retrofitting a 
tank car with ECP brakes was low. In the NPRM, we estimated that the 
cost to implement the ECP brake system requirements would range between 
$3,000 and $5,000 per car. PHMSA and FRA now believe that the 
appropriate cost estimate is between $7,000 and $8,000. For our 
analysis we used $7,633 per car, which is based on the estimated number 
of new and retrofit cars that will need to have ECP brakes applied. Our 
updated cost estimate is for an overlay system and includes the cost of 
maintenance for the system.
    For the NPRM, PHMSA and FRA determined that all of the tank cars in 
the fleet would need to be equipped with ECP brakes. To reduce the 
costs and for the purposes of this final rule, we have assumed that 
only tank cars that are part of unit trains carrying Class 3 flammable 
liquids would need ECP brakes, as they are the only train consists that 
would be required to operate with an ECP braking system. Thus, over a 
calculated 20-year period, we reduced the number of tank cars needing 
ECP brakes from more than 130,000 to 60,231.
    Many of the commenters also noted that we were not equipping enough 
locomotives with ECP brakes in our cost estimates. In the NPRM, we 
estimated that 900 locomotives would need to be equipped with ECP 
brakes. For the purposes of the final rule, this number was increased 
to 2,532. This number was derived based on the determination that there 
would be approximately 633 HHFUTs on the U.S. rail network at peak 
crude oil production. PHMSA and FRA estimated that there would be an 
average of three locomotives per unit train and included a 25 percent 
spare ratio to account for locomotives that are out-of-service or 
potentially diverted to other uses. AAR suggested that the entire Class 
I locomotive fleet would need to be ECP-equipped, but with our revised 
estimates, which consider the number of locomotives needed operate 633 
HHFUTs, we feel that AAR significantly overstates the number of 
locomotives that need to be ECP-equipped.
    In the NPRM, we also assumed that all of the locomotives would be 
retrofitted with ECP brakes at a cost of $80,000 per locomotive. The 
rail industry currently purchases around 1,000 new locomotives every 
year due to retirements of older locomotives and growth in rail 
transport demand. PHMSA and FRA assume that new locomotives will be 
ordered with ECP

[[Page 26702]]

brakes, which reduces the costs to an incremental amount of to $40,000 
per locomotive, after the base cost of electronic brake equipment (such 
as CCB-II or Fastbrake).\88\ We also include additional costs such as 
battery replacement, cable replacement, and additional jumper cables to 
allow a locomotive not equipped with ECP brakes to assist in operating 
an ECP-equipped train.
---------------------------------------------------------------------------

    \88\ CCB II and Fastbrake are the commercially available base 
brake equipment offered by New York Air Brake and Wabtec 
respectively.
---------------------------------------------------------------------------

    Regarding the availability of ECP brakes, both known manufacturers 
of ECP systems (New York Air Brake and Wabtec) provided comments to the 
NPRM. Neither expressed the concern that they would be unable to 
manufacture the amount of components necessary to meet any regulatory 
requirements as other commenters claim. Regarding comments raising 
concerns about the interoperability of ECP braking systems from the two 
manufacturers, PHMSA and FRA believe that newly built systems will be 
built to the updated industry standard, AAR S-4200, which requires full 
compatibility (interoperability) of ECP braking systems in accordance 
with 49 CFR 232.603.
Implementation Schedule
    Railroads are required to operate an HHFT with either a two-way EOT 
device or a DP system immediately once the final rule becomes 
effective. There are two deadlines for the implementation of the 
requirements pertaining to HHFUTs. The first requires that trains 
meeting the definition of an HHFUT comprised of at least one tank car 
loaded with a Packing Group I flammable liquid be operated with an ECP 
braking system by January 1, 2021, when traveling in excess of 30 mph. 
The second requires that all other trains meeting the definition of an 
HHFUT (i.e. those trains not transporting one or more tank car loaded 
with a Packing Group I flammable liquid) be operated with an ECP 
braking system by May 1, 2023, when traveling in excess of 30 mph. We 
believe a dual phase-in period is a practical timeline for effective 
implementation of the ECP braking system requirement, and it ensures 
that ECP braking systems will be installed to cover the expected peak 
year of crude oil production. This schedule takes into account feedback 
received during the comment period and estimates related to the 
retrofit schedule for DOT-117R tank cars.
    ECP brake systems have not been installed on a widespread basis 
throughout the U.S. fleet of locomotives and rail cars. As discussed 
above, NS and BNSF have used ECP brakes on six unit coal trains, but 
U.S. railroads have not used ECP brake systems in conjunction with unit 
trains transporting flammable liquids, such as crude oil and ethanol. 
FRA and PHMSA estimate that there will be 633 HHFUTs on the U.S. rail 
network at peak crude oil production, and the railroad industry will 
need 2,532 locomotives and 60,231 tank cars to be ECP-equipped in order 
to comply with the ECP braking requirements. We revised our estimates 
from the NPRM based on comments received that manufacturers will 
produce approximately new 1,000 locomotives per year and more than 
11,000 tank cars per year could be fitted with ECP brakes (with 
approximately one third of those being new car construction and two 
thirds of those being retrofits on existing tank cars). By establishing 
the dual implementation schedule for ECP brake systems, we are 
providing the railroads and manufacturers of locomotives and tank cars 
with the ability to establish a realistic schedule to equip the 
locomotives and tank cars with ECP brake systems in a timely and 
efficient manner. However, there is a possibility that as railroads 
amass ECP-equipped trains, some trains will be run in ECP brake mode in 
advance of the deadline. The expectation is that railroads will have 
incentives to put ECP-equipped trains in service once acquired to take 
advantage of the business benefits related to operating in ECP brake 
mode (e.g., reduced fuel consumption, longer inspection intervals, 
etc.).
Training for ECP Brake Systems
    Although there is not a specific training requirement in this final 
rule, FRA and PHMSA recognize that the implementation of ECP brake 
systems will require training for operating employees and inspection 
personnel that perform service on trains equipped with ECP brakes. The 
substantive training requirements for each railroad employee or 
contractor are addressed in 49 CFR 232.605. We expect that railroads 
will comply with the ECP braking system training requirements in Sec.  
232.605 to ensure that applicable railroad personnel have the knowledge 
and skill necessary to perform service related to ECP braking systems.
    In the NPRM, we assumed that 9,000 employees would need to be 
trained on ECP brake systems. After a review of comments, we increased 
the estimate of additional people that need to be trained on ECP brake 
systems to about 51,500 employees based on a percentage of ton mileage. 
This includes carmen who had not been considered in the training 
calculations in the NPRM. Also, in the NPRM, we assumed a two-week 
training period; however, based on FRA participation in ECP brake 
training experience, we determined that the number of hours needed to 
trains these employees would be substantially less. Carmen that are not 
involved in performing single car tests can be trained in a one-day 
formal training session and a week of intermittent on the job training. 
Single car test users will need an additional half-day of formal 
training and an additional week of on the job training.
Implementing ECP Brake Systems With PTC Technology
    ECP brake technology provides separate safety benefits not captured 
in FRA's PTC regulations. PTC-preventable overspeed derailments may 
occur because of an inadequate or improperly functioning brake system, 
but accidents involving brake failure were never counted among PTC-
preventable accidents. Only one accident in the group of accidents 
reviewed by PHMSA and FRA for this rulemaking, at Rockford, IL, had the 
potential to have been prevented by PTC technology, and then only if 
ancillary features were adopted. In that accident, a flash flood caused 
the track's base to wash away. Railroad procedures require trains be 
warned of flash flood threats, which usually leads to a speed 
restriction. It is not a requirement of the PTC regulations, but if a 
railroad had its PTC system in place and the speed restriction warning 
was automated, it would have restricted the train's speed, making it 
likely the crew would have been able to stop in half the range of 
vision.
    Although ECP braking systems typically are directed at different 
types of incidents than those that are PTC-preventable, PHMSA and FRA 
do believe that the use of ECP brakes coupled with the implementation 
of PTC technology could result in significant safety benefits. Trains 
equipped with electronics throughout the train consist will be able to 
use that electronic network as a platform for future safety 
innovations, such as hand brake and hatch sensors.
    While commenters such as BNSF raised concerns, PHMSA and FRA do not 
believe that the implementation of the ECP brake system requirement 
will necessitate a rewrite of braking algorithms on HHFUTs operating 
over PTC routes. We do recognize that using ECP brakes systems will 
allow for real-time equipment health monitoring and

[[Page 26703]]

higher permitted braking ratios. A railroad may find it beneficial to 
create a more efficient algorithm than is possible with conventionally 
braked trains in order to implement some of these ECP brake system 
benefits into its PTC system. The more efficient algorithm could allow 
for increased fluidity and more throughputs over railroad routes on 
ECP-equipped trains. If a railroad decided to edit its braking 
algorithms to account for the advanced braking capabilities of ECP 
brake systems on PTC routes, such changes likely would be considered 
``safety critical'' modifications requiring FRA approval. See 49 CFR 
236.1021. However, given that the ECP brake requirements for HHFUTs do 
not go into effect until January 1, 2021 at the earliest, railroads 
will have sufficient time to make desired edits to braking algorithms 
and submit any necessary requests for approval to FRA. Therefore, PHMSA 
and FRA do not view the editing of braking algorithms as an impediment 
to accomplishing the requirements of this rulemaking or complying with 
FRA's PTC regulations.
Conclusion
    Based on the above discussion, a new section Sec.  174.310(a)(3) is 
being created to adopt new braking requirements for HHFTs. 
Specifically, this provision requires that a HHFT (as defined in Sec.  
171.8) must be equipped and operated with a two-way EOT device or DP 
system. Heightened braking requirements are being adopted to cover 
trains that transport 70 or more tank cars of flammable liquids while 
operating over 30 mph. Unit trains that meet this threshold must be 
equipped with ECP brakes and must be operated in ECP brake mode based 
on a dual implementation schedule. The first requires that trains 
meeting the definition of an HHFUT comprised of at least one tank car 
loaded with a Packing Group I material be operated with an 
electronically controlled pneumatic (ECP) braking system after January 
1, 2021. The second requires that all other trains meeting the 
definition of an HHFUT be operated with an ECP braking system after May 
1, 2023.
    PHMSA and FRA have made regulatory decisions within this final rule 
based upon the best currently available data and information. PHMSA and 
FRA are confident that ECP implementation can be accomplished by the 
compliance date adopted in this final rule. However, PHMSA and FRA will 
continue to gather and analyze additional data. Executive Order 13610 
urges agencies to conduct retrospective analyses of existing rules to 
examine whether they remain justified and whether they should be 
modified or streamlined in light of changed circumstances, including 
the rise of new technologies. Consistent with its obligations under 
E.O. 13610, Identifying and Reducing Regulatory Burdens, PHMSA and FRA 
will retrospectively review all relevant provisions in this final rule, 
including industry progress toward ECP implementation.

E. Classification

    In its recommendation, R-14-6, the NTSB recognized the importance 
of requiring ``shippers to sufficiently test and document the physical 
and chemical characteristics of hazardous materials to ensure the 
proper classification, packaging, and record-keeping of products 
offered in transportation.'' PHMSA supports NTSB's recommendation. As 
discussed previously, PHMSA and FRA audits of crude oil facilities 
indicated the classification of crude oil transported by rail was often 
based solely on a generic Safety Data Sheet (SDS). PHMSA believes that 
establishing documentation and criteria for classification sampling and 
testing frequency will increase consistency and accuracy of the data 
and improve confidence in package selection, hazard communication, and 
ultimately safety in the transportation of hazardous materials. 
Considering the challenges posed by materials with variable composition 
and potentially variable properties, such as crude oil, providing 
criteria for sampling and testing a critical first-step in safe 
transportation.
    Given the responsibility on the offeror to properly classify 
materials,\89\ PHMSA proposed a new regulatory requirement in this 
area. The NPRM proposed to add a new Sec.  173.41 that would explicitly 
require a sampling and testing program for mined gases and liquids, 
including crude oil. Under the proposed new Sec.  173.41(a), this 
program would be required to address the following key elements that 
are designed to ensure proper classification and characterization of 
crude oil:
---------------------------------------------------------------------------

    \89\ Under 49 CFR 173.22.
---------------------------------------------------------------------------

     Frequency of sampling and testing to account for 
appreciable variability of the material, including the time, 
temperature, means of extraction (including any use of a chemical),\90\ 
and location of extraction;
---------------------------------------------------------------------------

    \90\ This accounting for the method of extraction would not 
require disclosure of confidential information.
---------------------------------------------------------------------------

     Sampling at various points along the supply chain to 
understand the variability of the material during transportation;
     Sampling methods that ensure a representative sample of 
the entire mixture, as packaged, is collected;
     Testing methods to enable complete analysis, 
classification, and characterization of the material under the HMR;
     Statistical justification for sample frequencies;
     Duplicate samples for quality assurance purposes; and
     Criteria for modifying the sampling and testing program.
    This proposal would also add a Sec.  173.41(b), linking the 
shipper's certification requirements, as prescribed in Sec.  172.204, 
to this sampling and testing program for mined gases and liquids.
    In addition, the proposed Sec.  173.41(c) would require that the 
sampling and testing program be documented in writing and retained 
while the program remains in effect. The proposed section requires the 
sampling and testing program must be reviewed and revised and/or 
updated as necessary to reflect changing circumstances. The most recent 
version of the sampling and testing program, must be made available to 
the employees who are responsible for implementing it. When the 
sampling and testing program is updated or revised, all employees 
responsible for implementing it must be notified and all copies of the 
sampling and testing program must be maintained as of the date of the 
most recent version.
    PHMSA further proposed to add a new Sec.  173.41(d) that would 
mandate that each person required to develop and implement a sampling 
and testing program maintain a copy of the sampling and testing program 
documentation (or an electronic file thereof) that is accessible at, or 
through, its principal place of business and must make the 
documentation available upon request, at a reasonable time and 
location, to an authorized official of DOT.
    In response to the proposed requirements for a sampling and testing 
program, we received a number of comments representing approximately 
65,200 signatories. The majority of these signatories were part of 
write-in campaigns for environmental groups. Below is a table detailing 
the types and amounts of commenters on the classification plan 
proposal.

[[Page 26704]]



        Table 31--Commenter Composition: Classification Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................          62,045
Individuals.............................................           3,098
Industry stakeholders...................................              23
Government organizations or representatives.............              29
                                                         ---------------
    Totals..............................................          65,195
------------------------------------------------------------------------

    Most industry stakeholders were either content with the measures 
currently in place to classify mined gases or liquids or supported use 
of API RP 3000.\91\ However, other commenters believed both the current 
and proposed regulations were insufficient. Environmental groups, the 
NTSB, local, tribal or state government organizations, and individuals 
felt that the DOT should clarify and expand the proposed requirements. 
Specifically, commenters addressed: The need for enhanced 
classification; use of the term ``characterization;'' inclusion of 
specific materials in the testing and sampling program; variability of 
mined liquids and gases; applicability and ``sampling along the supply 
chain''; sampling methodology and documentation; incorporation and use 
of API RP 3000 standards; specific testing methodology; and 
applicability of testing requirements.
---------------------------------------------------------------------------

    \91\ This recommend practice went through a public comment 
period in order to be designated as an American National Standard. 
The standard addresses the proper classification of crude oil for 
rail transportation and quantity measurement for overfill prevention 
when loading crude oil into rail tank cars.
---------------------------------------------------------------------------

    Industry stakeholders questioned the need for regulatory amendments 
expanding the existing classification requirements. Several industry 
stakeholders stated that there is no justification for creating 
additional classification requirements because misclassification has 
had no role in the derailments or impact on safety. Specifically Exxon 
Mobil stated that Bakken crude oil is not different from other light 
crudes and is correctly classified. It referenced API modeling, which 
has indicated that Bakken crude will behave similarly to other crudes 
in a fire. AFPM further stated that the ``only misclassification'' 
PHMSA found during investigations was incorrect packing group on 
shipping papers for cargo tank motor vehicles, but crude oil was 
otherwise communicated and packaged appropriately. PHMSA received 
support for implementing an enhanced classification and 
characterization from a wide range of commenters including local 
governments, safety organizations, and individual citizens among 
others. Many comments in support of the rulemaking highlighted the 
importance of proper classification for emergency responders.
    Although the classification of crude oil has not caused 
derailments, we disagree that expanding existing classification 
requirements will not impact transportation safety. In this rulemaking, 
PHMSA is proposing new or amended requirements as part of a 
comprehensive approach to improving the safe transportation of 
flammable liquids by rail. This includes ensuring that proper 
packaging, operational controls, and hazard communication requirements 
are met, all of which are important to mitigate the negative effects of 
derailment, and are determined by classification. As discussed 
previously, PHMSA and FRA audits of crude oil facilities indicated the 
classification of crude oil transported by rail was often based solely 
on a Safety Data Sheet (SDS). While the classification of manufactured 
products is generally well understood and consistent, unrefined 
petroleum-based products potentially have significant variability in 
their properties as a function of time, location, method of extraction, 
temperature at time of extraction, and the type and extent of 
conditioning or processing of the material. Unrefined petroleum-based 
products refers to hazardous hydrocarbons that are extracted from the 
earth and have not yet been refined. These products may undergo initial 
processing such as for the removal of water and light gases, and which 
may undergo further processing, but have not gone through a quality 
assurance/quality control process such that the properties of the 
product being offered for transportation are known and consistent. As 
such, we believe it is necessary to require development and adherence 
to a consistent and comprehensive sampling and testing program, and to 
provide oversight for such a program.
    Several commenters indicated that the term ``characterization'' was 
not defined, unnecessary, or requires clarification. This term was used 
in the March 6, 2014 Emergency Order regarding classification to 
highlight the comprehensive nature of the existing requirements. DGAC, 
API and other commenters stated that the term ``characterization'' is 
not used elsewhere in the regulations and is confusing. Industry 
stakeholders also expressed concern that the types of testing required 
for characterization was unclear. Local and other government 
representatives, environmental groups, individuals, and others 
supported use of the term ``characterization.''
    As used in the NPRM and March 6, 2014 Emergency Order, the term 
characterization was intended to convey the comprehensive nature of the 
offeror's responsibility to fully classify and describe their material 
in accordance with Parts 172 and 173. This includes identifying 
additional properties of the hazardous material which are not specified 
by the proper shipping name, but are necessary to meet packaging 
requirements in Part 173. We agree that the current classification 
requirements as required by Sec.  173.22 encompasses the requirement to 
fully describe the material, including considering all appropriate 
hazard classes, selecting the correct packing group, selecting the most 
appropriate proper shipping name, and obtaining complete information to 
follow all packaging instructions. However, we disagree that hazard 
class testing is sufficient to provide the information necessary to 
comply with Sec.  173.22. Therefore, we are clarifying the sampling and 
testing program to include a requirement to ``identify properties 
relevant to the selection of packaging through testing or other 
appropriate means,'' in place of using the term ``characterization.'' 
This provides greater specificity and clarity to the purpose and type 
of testing required.
    Several commenters addressed the inclusion of specific materials in 
the sampling and testing program requirements, with some commenters 
preferring broader applicability and some narrower. Comments ranged 
from supporting expanding the applicability of classification sampling 
and documentation requirement to all hazardous materials, clarifying 
the definition of ``mined liquids and gases'' to specify inclusion of 
hazardous byproducts and wastes or materials derived from hydraulic 
fracking or other methods of extraction, and limiting the applicability 
of the definition to only include petroleum crude oil. Commenters on 
both sides were concerned that the phrase ``mined liquids and gases'' 
did not clearly specify which materials were covered by the rulemaking. 
Trade Associations such as API, AFPM and DGAC stated that the term 
``mined liquids and gases'' is ``not used by the petroleum industry.'' 
Other commenters questioned which specific materials met the definition 
of ``mined liquids and gases.''
    We disagree with NTSB's request to expand the sampling and testing 
program to all hazardous materials.

[[Page 26705]]

PHMSA does not believe there is sufficient justification to expand the 
rule to all hazardous materials or manufactured liquids such as 
ethanol. The intent of the sampling and testing plan is to address 
materials that have inherent variability of properties. Further, we did 
not propose to expand the applicability beyond mined liquids and gases.
    We disagree with commenters who suggested the sampling and testing 
program should be expanded to address all other byproducts or wastes 
created by the extraction process of all mined liquids and gases, 
including byproducts or wastes created by the hydraulic fracturing of 
natural gas. The HMR already requires classification of all hazardous 
materials before transportation and compliance with all packaging 
requirements. Commenters did not provide sufficient data to justify 
expanding costs and recordkeeping for a sampling and testing program to 
these additional materials.
    We also disagree with commenters who suggested the testing and 
sampling requirements should be limited to only petroleum crude oil. As 
stated previously, the extraction process and initial conditioning of 
petroleum crude oil may include the production of other unrefined 
petroleum-based products, which may have variable properties that must 
be identified.
    We agree with commenters that state the phrase `mined liquids and 
gases' needs further clarification. As proposed, the term ``mined 
liquids and gases'' referred to liquids and gases extracted from the 
earth through methods such as wells, drilling, or hydraulic fracturing. 
While the term ``mined liquids and gases'' was proposed in the 
rulemaking, the RIA only included offerors related to the production 
and extraction of petroleum liquids, liquefied petroleum gases 
(including propane), and natural gases when measuring affected 
entities. No data was provided by commenters to justify benefits from 
expanding the definition beyond petroleum liquids, liquefied petroleum 
gases, and natural gases extracted from the earth. This list includes 
both unrefined and refined petroleum-based products. However, unrefined 
products have the greatest potential for variability of chemical and 
physical properties. The properties of refined petroleum-based products 
shipped from extraction sites are consistent. Therefore, we are 
clarifying the scope of this section to apply to unrefined petroleum 
based products. Specifying ``unrefined petroleum-based products'' 
refers to hazardous hydrocarbons that are extracted from the earth and 
have not yet been refined. This includes petroleum-based liquid and gas 
wastes and byproducts, such as condensates, which exhibit variability. 
Furthermore, use of the term ``unrefined'' provides greater 
clarification to the other requirements of the testing and sampling 
program. Therefore, specifying unrefined petroleum-based products 
clarifies the identification of mined liquids and gases with variable 
properties intended by the NPRM, without creating an undue burden.
    Some commenters addressed the question in the NPRM asking for 
information on the variability within a region. API identified several 
factors that affect variability, not addressed in the NPRM, such as, 
``stability of petroleum crude oil to be loaded, single source vs. 
multiple sources, type of tank car loading facility, changes in crude 
oil production characteristics.'' It further stated that the 
requirement to include factors affecting variability in Sec.  
173.41(a)(1) describe the materials in the form they are extracted from 
the ground, but not the form they are shipped. Similarly, API and other 
commenters express concern that the requirement in Sec.  173.41(a)(3) 
to sample material ``as packaged'' suggests that sampling may only be 
performed after the crude oil has been loaded into a transport vehicle.
    We agree with API, that the intent of these requirements is to 
capture factors that may contribute to variability of the material as 
offered for transportation. We are clarifying Sec.  173.41(a)(1) to 
specify that the program must account for ``any appreciable variability 
of the material'' with a list of recommended factors. This provides 
offerors the flexibility to identify the factors contributing to 
variability in their specific operation. We are also amending Sec.  
173.41(a)(3) to replace ``as packaged'' with ``as offered'' to clarify 
that the sampling may occur before the crude oil has been loaded into a 
transport vehicle.
    Commenters expressed interest in clarifying the responsibility for 
development and execution of the sampling and testing program. For 
example, one consultant stated, ``the term `offeror' and sampling 
program requirements are too broad to effectively determine who is 
ultimately responsible for compliance.'' Individuals and environmental 
groups suggested specifying that ``each operator'' or ``custody 
transfer point'' should be responsible for complying with the sampling 
and testing program. Industry stakeholders, including AFPM, recommended 
``less prescriptive mandates'' for the sampling program and suggested 
duplicate sampling provided an undue burden. Commenters also suggested 
providing statistical justification for sample frequencies was an undue 
burden, or that the provision should be delayed to allow time for 
compliance. Public and environmental groups supported more detailed 
mandates to ensure uniformity, thoroughness, and clarity. While some 
commenters supported certification requirements, others recommended 
removing the requirement or modifying the language. Commenters on both 
sides agreed the requirement to sample ``along the supply chain'' is 
not sufficiently clear, and should be clarified.
    The one area where the concerned public, environmental groups, and 
industry stakeholders agreed was that API RP 3000 should be adopted or 
permitted as a method of compliance with the proposed requirements. API 
further described that many requirements in the proposed paragraph 
Sec.  173.41(a)(1) would align with API RP 3000 requirements, if 
clarifications were made. API provided detailed recommendations for 
amending the requirements in Sec.  173.41. In addition to areas 
mentioned elsewhere in the comment summary, API recommended changing 
the requirement for ``statistical justification'' to ``quality control 
justification'' to allow other equivalent methods for quality control, 
changing the requirement for duplicate sampling to allow other 
equivalent methods, and removing the requirement to specify criteria 
for changing the program.
    We disagree that the responsibility for compliance with the program 
is unclear. It is the responsibility of the offeror to certify 
compliance with the sampling and testing program. The term ``offeror'' 
is used throughout the regulations to specify applicability for 
transportation functions and is defined under ``person who offers'' in 
Sec.  171.8. In response to comments stating that ``sampling along the 
supply chain'' is unclear, we are clarifying this language. The intent 
of this provision is to require sampling both before the product is 
initially offered and when changes that may affect the properties of 
the material occur (i.e., mixing of the material from multiple 
sources).
    We disagree the other requirements of the program are unnecessary, 
unclear, or overly burdensome, as each provision is designed to ensure 
adequate sampling and testing to address the unique characteristics and 
variability of the properties of these materials. Moreover, these 
requirements align with and provide greater specificity regarding 
existing regulations requiring proper classification. However, we also 
agree

[[Page 26706]]

with API that an equivalent level of safety and quality control 
intended by the requirements for ``duplicate sampling'' and 
``statistical justification'' can be reached through other measures. 
Therefore, we are adopting ``quality control measures for sampling 
frequencies,'' in place of ``statistical justification.'' We are also 
adding ``or equivalent measures for quality assurance'' to the 
requirement for ``duplicate sampling.''
    Finally, we are not adopting API RP 3000 as a requirement at this 
time. As indicated in the NPRM, we did not contemplate or propose 
adopting API RP 3000 in the NPRM, as it had not yet been finalized. 
Furthermore, the boiling point test specified in the API RP 3000 does 
not align with the requirements currently authorized in the HMR. 
Shippers must continue to use the testing methods for classification of 
flammable liquids outlined in Sec.  173.120 and flammable gases in 
Sec.  173.115. However, API RP 3000 is otherwise consistent with the 
sampling program requirements in paragraph 173.41(a)(1)-(6) and may be 
used to satisfy these adopted sampling provisions. Furthermore, 
voluntary use of API RP 3000 provides guidance for compliance with 
these provisions, but still allows flexibility for meeting requirements 
through other methods.
    Comments regarding the specific testing methodology ranged from 
specifying more limited sampling and testing program requirements to 
mandating a more robust, detailed sampling and testing program. Local 
and state governments, environmental groups, and individuals 
recommended mandating who performs testing (e.g., requiring third-party 
oversight of testing program or specifying tests could only be 
performed by third party without financial interest in company). 
Commenters also recommended requiring dissemination of test results to 
third parties such as DOT, local governments, emergency responders, or 
the public. Industry stakeholders recommended limiting testing to 
flashpoint and boiling point determination. Other commenters 
recommended mandating specific, additional tests. Commenters expressed 
particular interest in either mandating that vapor pressure be tested 
or clarifying that it is never required for flammable liquids.
    Requiring third-party oversight of testing program or specifying 
tests could only be performed by third party without financial interest 
in company is not necessary as PHMSA and FRA will already have 
oversight of the sampling and testing program requirements for 
unrefined petroleum-based products. As part of the requirements adopted 
in this rule, each person required to develop a sampling and testing 
program make the documentation available upon request to an authorized 
official of the Department of Transportation. This provides sufficient 
oversight and will ensure that offerors are complying with the 
requirements. Should an offeror not comply, PHMSA and FRA officials 
will be able to take enforcement action. In addition, requiring 
dissemination of test results to third parties is not necessary as the 
emergency response guidebook already provides information on the 
hazards of specific materials and through the routing requirements, 
fusion centers can provide a mechanism for authorized individuals to 
acquire information about the amount of those materials transported.
    PHMSA did not propose requiring third-party involvement with 
testing or submitting test results to a third party in the NPRM and, as 
such, is not adopting any such requirements. PHMSA did not propose 
regulatory changes to classification test procedures, and as such, is 
not adopting any such requirements. Furthermore, in the NPRM, PHMSA 
stated that we are not proposing a requirement for the retention of 
test results.
    PHMSA requested comments on the role of vapor pressure in 
classifying flammable liquids and selecting packagings, as well as 
whether vapor pressure thresholds should be established. Under existing 
requirements and those proposed in this final rule, shippers must 
select all appropriate tests for the changing factors appropriate to 
the location and nature of their activities, and follow requirements 
under Sec.  173.115 relating to vapor pressure when applicable. 
Individuals, government organizations, and environmental groups such as 
Delaware Riverkeeper Network supported mandating vapor pressure testing 
to increase safety and accuracy. Environmental groups and offeror 
Quantum Energy also suggested packaging selection should be based on 
vapor pressure. Industry stakeholders, such as the Dangerous Goods 
Advisory Council (DGAC) and AFPM stated vapor pressure testing was 
unnecessary.
    PHMSA did not propose any other specific changes related to vapor 
pressure in the NPRM and, as such, is not adopting any such 
requirements. We appreciate the comments received on this issue and 
will consider them in any future action.
    PHMSA has continued its testing and sampling activities and refined 
the collection methods. As mentioned previously, PHMSA has purchased 
closed syringe-style cylinders and is collecting samples using these 
cylinders. Utilizing these types of cylinders minimizes the opportunity 
for any dissolved gases to be lost during collection, thus providing 
increased accuracy. In addition, PHMSA has taken samples at other shale 
play locations around the United States to compare their 
characteristics to that of crude oil from the Bakken region. PHMSA 
continues to examine the role of vapor pressure in the proper 
classification of crude oils and other flammable liquids. Further we 
continue to explore collaborative research opportunities examining the 
classification of flammable liquids. Any specific regulatory changes 
related to vapor pressure would consider further research and be 
handled in a future rulemaking.
    Furthermore, since the publication of the NPRM, the North Dakota 
Industrial Commission issued Oil Conditioning Order No. 25417, which 
requires operators of Bakken crude oil produced in the state of North 
Dakota to separate the gaseous and light hydrocarbons from all Bakken 
crude oil that is to be transported. The order also prohibits blending 
of Bakken crude oil with specific materials.\92\
---------------------------------------------------------------------------

    \92\ https://www.dmr.nd.gov/oilgas/Approved-or25417.pdf.
---------------------------------------------------------------------------

    PHMSA appreciates any action that improves the safe transportation 
of crude oil or other hazardous material. As with any hazardous 
material put into transportation by any mode, safety is our top 
priority, and we will continue to conduct inspections or bring 
enforcement actions to assure that shippers comply with their 
responsibilities to properly characterize, classify, and package crude 
oil regardless of how it is treated prior to transport. We also 
continue to work with various stakeholders, including other government 
agencies such as the Department of Energy, to understand best practices 
for testing and classifying crude oil. See also Section VI ``Crude Oil 
Treatment'' for additional discussion on this issue.
    This comprehensive rule seeks to improve the safety of bulk 
shipment of all flammable liquids across all packing groups, and is not 
limited to Bakken crude. The enhanced tank car standards and 
operational controls for high-hazard flammable trains are not directly 
impacted by the order recently imposed in North Dakota. Any specific 
regulatory changes related to treatment of crude oil would consider 
further research and be handled in a separate action.

[[Page 26707]]

    Commenters suggested other changes affecting the applicability of 
the sampling and testing program. AFPM recommended addressing 
``exemptions'' or ``less prescriptive alternatives.'' Some trade 
associations suggested exempting materials from requirements for the 
classification program when transported in DOT-117s. Other commenters 
suggested exempting petroleum crude oil from the sampling requirements 
when assigned to packing group I or when crude oil is pre-treated. 
Commenters also recommended changes to the packing group assignment and 
classification process for Class 3. Environmental groups recommended 
requiring either Bakken crude oil or all petroleum crude oil to be 
classified as Packing Group I. Industry stakeholders agreed that crude 
oil should be permitted to be classified as packing group III. AAR 
recommended prohibiting use of the combustible liquid reclassification 
criteria for petroleum crude oil. Government representatives, 
environmental groups and individuals suggested prohibiting the use of 
Packing Group III for Class 3 flammable liquids.
    In the NPRM, PHMSA asked how to provide flexibility and relax the 
sampling and testing requirements for offerors who voluntarily use the 
safest packaging and equipment replacement standards. However, we did 
not propose exemptions from the sampling and testing program or changes 
to the assignment of packing groups for petroleum crude oil or in the 
NPRM and, as such, is not adopting any such requirements. The current 
hazard classification criteria are sufficient for assigning packing 
group when proper sampling and testing occurs. We disagree that pre-
treatment of crude oil, use of DOT-117 tank cars, or other exemptions 
discussed by commenters adequately ensures the safest packaging and 
equipment replacement standards to justify opting out of the sampling 
and testing requirements for the materials adopted by this rulemaking. 
Furthermore, these exemptions do not provide an equivalent level of 
safety for identifying properties to ensure compliance with packaging 
requirements in Part 173. The sampling and testing program is important 
to accurately classify these materials for transportation and fully 
comply with the packaging and operational controls in the HMR. 
Therefore, we are not limiting the assignment of packaging group for 
petroleum crude oil, or providing exceptions to the sampling and 
testing program for applicable materials.
Conclusion
    Based on the justification above, PHMSA is adopting the proposed 
standardized sampling and testing program requirements for unrefined 
petroleum-based products with changes intended to clarify the intent of 
requirements. This sampling and testing program requirements for 
unrefined petroleum-based products will be codified in the new Sec.  
173.41. We are not incorporating API RP 3000 by reference. However, 
shippers may still use API RP 3000 as a voluntary way to comply with 
the newly adopted sampling requirements. It should be noted that all of 
the testing provisions of API RP 3000 do not align with the 
requirements in the HMR. As the testing provisions were not proposed to 
be modified, shippers must continue to use the testing methods for 
classification of flammable liquids outlined in Sec.  173.120 and 
flammable gases in Sec.  173.115. It should be noted that PHMSA may 
consider the adoption of the non-codified testing provisions of API RP 
3000 in a future rulemaking.

F. Routing

    PHMSA proposed in the August 1, 2014 NPRM, in Sec.  174.310(a)(1), 
to modify the rail routing requirements specified in Sec.  172.820 to 
apply to any HHFT. The routing requirements discussed in the NPRM 
reflect the practices recommended by the NTSB in recommendation R-14-4, 
and are in widespread use across the rail industry for security-
sensitive hazardous materials (such as chlorine and anhydrous ammonia). 
As a result, rail carriers would be required to assess available routes 
using, at a minimum, the 27 factors listed in Appendix D to Part 172 
(hereafter referred to as Appendix D) of the HMR to determine the 
safest, most secure routes for security-sensitive hazardous materials. 
Additionally, the requirements of Sec.  172.820(g) require rail 
carriers to establish a point of contact with state and/or regional 
fusion centers who coordinate with state, local, and tribal officials 
on security issues as well as state, local, and tribal officials that 
may be affected by a rail carrier's routing decisions and who directly 
contact the railroad to discuss routing decisions. This requirement 
will in essence capture threshold notification requirements for HHFTs 
as discussed in further detail in the next section.
    In response to the proposed amendments to routing, we received 
comments representing approximately 87,359 signatories. An overwhelming 
majority of commenters expressed support for additional routing 
requirements for HHFTs. The majority of commenters supported the 
amendment as proposed in the NPRM; however, some commenters supported 
the expansion of the routing requirements beyond what was in the NPRM. 
Some industry commenters expressed opposition to additional routing 
requirements for HHFTs. Commenters also took the opportunity to 
identify other issues related to routing beyond the proposal to require 
rail carriers who transport HHFTs to perform routing assessments. Below 
is a table detailing the types and amounts of commenters on the routing 
proposal.

            Table 32--Commenter Composition: Routing Comments
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................          85,017
Individuals.............................................           2,292
Industry stakeholders...................................              20
Government organizations or representatives.............              30
                                                         ---------------
  Totals................................................          87,359
------------------------------------------------------------------------

    Commenters who either supported the proposal in the NPRM or the 
expansion of the proposal in the NPRM were primarily concerned members 
of the public, environmental groups, tribal communities, local 
governments, and Congressional representatives. Commenters in support, 
such as Congressman Michael E. Capuano, recognized the value of 
expanding the scope of the route planning regulations to include 
routing HHFTs away from dense population centers and environmentally 
sensitive areas, stating, ``I fully support requiring HHFT carriers to 
perform a routing risk analysis and then select their route based on 
the findings of that analysis.''
    Additionally, the NTSB commented, ``we believe that the proposed 
rule, if implemented, would satisfy the intent of Safety Recommendation 
R-14-4,'' which urges an expansion of the route planning requirements 
to include trains transporting flammable liquids.
    The Prairie Island Indian Community provided a specific example of 
a community that could be directly affected by the implementation of 
the routing requirements. They noted that their community is home to 
``hundreds of tribal member residents, potentially thousands of 
visitors and employees at the Treasure Island Resort and Casino, a dry 
cask storage facility currently hosting 988 metric tons of spent 
nuclear fuel, an operating nuclear power plant with two reactors and 
approximately

[[Page 26708]]

635 metric tons of spent nuclear fuel in the fuel pool.'' They noted 
that ``if ever there was a case for rail routing risk assessment, this 
is it.'' With this, the Prairie Island Indian Community provided their 
support for implementing routing requirements for HHFTs.
    Some commenters proposed expanding upon the existing risk factors 
listed in appendix D. Recommended expansions to appendix D included a 
factor to avoid routes that pass through areas that experience a high 
density of commuters at peak times. Additionally, environmental groups 
and concerned public urged considering a route's proximity to 
watersheds and water supplies. Environmental advocate Scenic Hudson, 
Inc. commented that the route assessment should include avoiding 
National Parks and other historical landmarks, such as those identified 
by the National Trust for Historic Preservation or designated as 
National Heritage Areas by Congress.
    PHMSA and FRA recognize the assertion by some commenters that the 
list of 27 risk factors in appendix D should be expanded to address 
various additional specific risk factors. These comments are beyond the 
scope of this rulemaking. In the NPRM, PHMSA and FRA did not propose 
revisions to appendix D, nor did we solicit comments on revising the 
current list of risk factors in appendix D. However, given the number 
of concerns raised by commenters on this particular issue, PHMSA and 
FRA believe it is important to clarify that the 27 factors currently 
listed in appendix D are inclusive of the more specific factors that 
several commenters suggested adding to the list. For example, 
``watersheds'' are expected to be considered under risk factor number 
13 in appendix D entitled ``environmentally sensitive or significant 
areas'', and ``national landmarks'' are expected to be considered in 
risk factor number 12 entitled ``proximity to iconic targets.'' Also, 
it is important to emphasize that, in addition to numerous other 
factors, a route assessment must address venues along a route 
(stations, events, places of congregation), areas of high consequence, 
population density, and the presence of passenger traffic along a 
route. Hence, the concerns raised by commenters, while beyond the scope 
of this rulemaking, are generally already addressed by the risk factors 
in appendix D.
    Commenters also expressed concerns regarding the risk analysis done 
by rail carriers and how that information is used, shared or evaluated. 
Many commenters shared concern that routing choices by carriers are not 
disclosed to the public and are kept secret. Some commenters also 
supported increased oversight of routing analyses, either through 
evaluation by a third party or governmental entities.
    These route analysis and selection requirements exist for the 
transportation of security-sensitive materials, such as poisonous-by-
inhalation materials, certain explosives and certain radioactive 
materials. As such, information about the analyses and routes of 
shipments should only be released to those with a need-to-know, in 
order to maintain confidentiality for both business and security 
purposes. In accordance with voluntary practices and existing 
requirements, including the Secretary's May 7, 2014 Emergency Order 
(Docket No. DOT-OST-2014-0067), routing information is shared with 
appropriate state, local, and Tribal authorities.
    Furthermore, as Sec.  172.820(e) states, rail carriers must 
restrict the distribution, disclosure, and availability of information 
contained in all route review and selection decision documentation 
(including, but not limited to, comparative analyses, charts, graphics 
or rail system maps) to covered persons with a need-to-know, as 
described in 49 U.S.C. Parts 15 and 1520, which govern the protection 
of sensitive security information. DOT provides oversight for route 
analysis, selection and updating. As Sec.  172.820(e) provides, rail 
carriers must maintain all route review and selection documentation, 
which DOT may review in the course of its regulatory and enforcement 
authority. Specifically, FRA personnel oversee compliance with routing 
regulations by completion of regular security audits of Class I and 
shortline railroads (Class II and III). Part of the security audit 
involves review of route selection documentation to ensure that the 
selection was completed, documented, and considered the appropriate 
risk factors specified in appendix D to part 172.
    Additionally, PHMSA and FRA received comments that supported 
allowing an ``opt out'' for communities to choose not to allow HHFTs to 
be transported through their areas. Additionally, King County, WA 
voiced support for the proposed requirements, but urged the use of the 
information gathered from the route analyses to identify critical 
infrastructure needs along a route such as additional crossing gates, 
signals and track integrity to avoid collision and derailment.
    PHMSA believes these comments are outside the scope of the 
requirements proposed in the NPRM. PHMSA did not propose any provisions 
for communities to make unilateral decisions to disallow HHFT 
shipments, and such a requirement may call into question issues of 
preemption. Also, local government crude by rail prohibitions could 
have detrimental impacts on the fluidity of the entire national rail 
network, including passenger service. With respect to the use of route 
analysis information for the purpose of improving infrastructure, PHMSA 
and FRA believe that by expanding the routing requirements to HHFTs, 
more routes will be analyzed, and infrastructure needs will be 
identified by the railroads as an indirect benefit. However, codifying 
the use of this information for purposes beyond route analysis and 
selection was not proposed and is outside the scope of this rulemaking.
    Commenters who opposed additional routing requirements for HHFTs 
include trade associations, rail carriers and rail-carrier related 
businesses. While these commenters represented a minority of those who 
responded to routing proposals from the NPRM, concerns and issues were 
raised. The AAR, the Institute for Policy Integrity and the Illinois 
Commerce Commission (ICC) state that PHMSA needs to be aware of the 
implications of expanding the additional routing requirements to HHFTs. 
These commenters assert that such an expansion will narrow the routes 
over which HHFTs may operate and will force HHFTs to travel the same 
lines thus causing distributional effects on the network. AAR stated 
that network fluidity would be negatively impacted by clogging certain 
routes. In addition, the ICC stated that the AAR and ASLRRA have put in 
place voluntary agreements with the Department to mitigate the 
consequences of an incident, should one occur, and that those are 
sufficient. A concerned public commenter noted that the number of 
factors a route analysis should be narrowed from 27 to 5-7.
    PHMSA and FRA disagree with comments in opposition to expanding 
routing requirements to rail carriers transporting HHFTs. We believe 
that any effects on the network that negatively impact fluidity or 
distributional effects will be minor compared to the safety benefits of 
the proposed requirements. Commenters who expressed concern regarding 
the negative impact that applying routing requirements to HHFTs would 
have on the rail network did not provide data to support their claims. 
Additionally, comments implying a strain on the network caused by 
increased operational requirements focused on

[[Page 26709]]

speed restrictions proposed in the NPRM. A route selection performed in 
accordance with Sec.  172.820(e) does not expressly prohibit a carrier 
from selecting a particular route. Instead, carriers must use their 
analysis to select the practicable route posing the least overall 
safety and security risk. Carriers may also choose to install or 
activate mitigating measures to address any of the safety and security 
risks found. Additionally, rail carriers must identify and analyze 
practicable alternative routes over which it has authority to operate 
if such an alternate route exists. Furthermore, in accordance with 
Appendix D, carriers are required to assess a number of factors that 
would generally be representative of potential network strains or 
congestion, including assessment of ``rail traffic density'' and ``trip 
length for route.''
    Also, as required by Sec.  172.820(g), a carrier transporting an 
HHFT will be required to establish a point of contact with a State or 
regional fusion center, which have been established to coordinate with 
state, local and tribal officials on security issues. Additionally, a 
carrier transporting an HHFT will be required to establish a point of 
contact with state, local, and tribal officials in jurisdictions that 
may be affected by a rail carrier's routing decisions and who directly 
contact the railroad to discuss routing decisions. In turn, state, 
local, and tribal officials can use this to inform local emergency 
responders along routes traveled by HHFTs. By limiting the routes HHFTs 
travel on, it will allow resources for emergency response capabilities 
to be focused on heavily trafficked routes while minimizing risk to 
vulnerabilities adjacent to the rail network. PHMSA and FRA believe 
that this will further bolster the ability for state and local 
officials to respond to rail related incidents while furthering 
communication between the railroads and state and local governments and 
the availability of this information to first responders through 
established emergency communication networks, such as fusion centers.
Conclusion
    Based on the above justification, PHMSA and FRA are modifying the 
rail routing requirements specified in Sec.  172.820 to apply to any 
HHFT, as the term is defined in this final rule (Sec.  171.8; See 
discussion in HHFT section). We estimate the cost impact to be 
approximately $15 million, as Class 1 railroads have already been 
required to perform these analyses for materials already subject to 
routing requirements (poisonous-by-inhalation, certain explosives, and 
certain radioactive materials). Therefore, the cost impact is primarily 
limited to shortline and regional railroads (Class 2 and Class 3). We 
anticipate this to be a minimal burden on shortline railroads, as they 
typically operate a single route and therefore would lack alternative 
routes to analyze. It should be noted that ASLRRA did not comment on 
this specific proposal.
    The amendments in this final rulemaking relating to rail routing 
will require rail carriers transporting an HHFT to: (1) Conduct an 
annual route analysis considering, at a minimum, 27 risk factors listed 
in Appendix D prior to route selection; and (2) identify a point of 
contact for routing issues, and who to directly contact the railroad to 
discuss routing decisions, and provide this information to state and/or 
regional fusion centers and state, local, and tribal officials in 
jurisdictions that may be affected by a rail carrier's routing 
decisions. In addition, PHMSA and FRA believe that the requirement for 
rail carriers to establish fusion center contacts will address the need 
for notification requirements, as discussed in further detail in the 
``Notification'' section below. By not adopting the separate 
notification requirements proposed in the NPRM and instead relying on 
the expansion of the existing route analysis and consultation 
requirements of Sec.  172.820, to include HHFTs, we are focusing on the 
overall hazardous materials regulatory scheme.

G. Notification

    On May 7, 2014, DOT issued an Emergency Order (``the Order'') 
requiring each railroad transporting one million gallons or more of 
Bakken crude oil in a single train in commerce within the U.S. to 
provide certain information in writing to the State Emergency Response 
Commissions (SERCs) for each state in which it operates such a train. 
The notification made under the Order must include estimated 
frequencies of affected trains transporting Bakken crude oil through 
each county in the state, the routes over which it is transported, a 
description of the petroleum crude oil and applicable emergency 
response information, and contact information for at least one 
responsible party at the host railroads. In addition, the Order 
required that railroads provide copies of notifications made to each 
SERC to FRA upon request and to update the notifications when Bakken 
crude oil traffic materially changes within a particular county or 
state (a material change consists of 25 percent or greater difference 
from the estimate conveyed to a state in the current notification). DOT 
issued the Order under the Secretary's authority to stop imminent 
hazards at 49 U.S.C. 5121(d). The Order was issued in response to the 
crude oil railroad accidents previously described, and it is in effect 
until DOT rescinds the Order or a final rule codifies requirements and 
supplants the requirements in the Order.
    In the August 1, 2014, NPRM, PHMSA proposed to codify and clarify 
the requirements of the Order and requested public comment on the 
various parts of the proposal. As also previously discussed, there have 
been several significant train accidents involving crude oil in the 
U.S. and Canada over the past several years, resulting in deaths, 
injuries, and property and environmental damage. These accidents have 
demonstrated the need for improved awareness of communities and first 
responders of train movements carrying large quantities of hazardous 
materials through their communities, and thus being prepared for any 
necessary emergency response.
    In the August 1, 2014, NPRM, PHMSA specifically proposed to add a 
new section (Sec.  174.310), ``Requirements for the operation of high-
hazard flammable trains,'' to subpart G of part 174. We proposed 
notification requirements in paragraph (a)(2) of this section. Unlike 
many other requirements in the August 1, 2014 NPRM the notification 
requirements were specific to a single train that contains one million 
gallons or more of UN 1267, Petroleum crude oil, Class 3, as described 
by Sec.  172.101 of this subchapter and sourced from the Bakken shale 
formation in the Williston Basin (North Dakota, South Dakota, and 
Montana in the United States, or Saskatchewan or Manitoba in Canada). 
As proposed rail carriers operating trains that transport these 
materials in this amount would be required to within 30 days of the 
effective date of the final rule to provide notification to the SERC or 
other appropriate state delegated entities in which it operates within 
30 days of the effective date of the final rule. Information required 
to be shared with SERCs or other appropriate state delegated entity 
would include the following:
     A reasonable estimate of the number of affected trains 
that are expected to travel, per week, through each county within the 
State;
     The routes over which the affected trains will be 
transported;
     A description of the petroleum crude oil and applicable 
emergency response information required by subparts C and G of part 172 
of this subchapter; and,

[[Page 26710]]

     At least one point of contact at the railroad (including 
name, title, phone number and address) responsible for serving as the 
point of contact for the State Emergency Response Commission and 
relevant emergency responders related to the railroad's transportation 
of affected trains.
    In addition, as proposed in the August 1, 2014 NPRM, railroads 
would be required to update notifications prior to making any material 
changes in the estimated volumes or frequencies of trains traveling 
through a county and provide copies to FRA upon request. In response to 
the proposed notification requirement for rail shipments of crude oil, 
we received a number of comments representing approximately 99,856 
signatories.

              Table 33--Commenter Composition: Notification
------------------------------------------------------------------------
                     Commenter type                         Signatories
------------------------------------------------------------------------
Non-Government Organization.............................          90,869
Individuals.............................................           8,888
Industry stakeholders...................................              22
Government organizations or representatives.............              77
                                                         ---------------
  Totals................................................          99,856
------------------------------------------------------------------------

    Overall, the vast majority of commenters support PHMSA's efforts to 
establish some level of notification requirements for the operation of 
trains carrying crude oil as proposed in 49 CFR 174.310(a)(2). However, 
they are divided on certain aspects of the proposed notification to 
SERCs of petroleum crude oil train transportation. The overwhelming 
majority of commenters suggested a lower threshold to trigger the 
notification requirements. In the NPRM, PHMSA proposed a threshold of 
one million gallons for a single train containing UN1267, Petroleum 
crude oil, Class III, sourced from the Bakken region. With near 
unanimity, commenters believe the one million gallons threshold is too 
high and the idea of limiting it to just Bakken crude oil was too 
narrow (e.g., include all crude oils from all areas, or include all 
Class III flammable liquids). In general, comments fell into one of 
four categories related to proposed notification requirements: (1) 
Defining threshold requirements that trigger notification; (2) 
notification applicability and emergency response; (3) public 
dissemination/sensitive information; and 4) defining commodity type for 
notification purposes. These comments are discussed in further detail 
below.
    In the NPRM, PHMSA proposed regulations consistent with the Order 
(i.e., trains transporting one million gallons or more of Bakken crude 
oil). Assuming that 29,000-gallons of crude oil are contained in each 
tank car, approximately 35 tank cars in a train would trigger the 
notification requirement. For purposes of the Order, DOT had previously 
assumed that this was a reasonable threshold when considering that the 
major incidents described in the NPRM all involved trains consisting of 
more than 70 tank car tanks carrying petroleum crude oil, or well above 
the threshold of one million gallons. The threshold in the Order was 
based on a Federal Water Pollution Control Act mandate for regulations 
requiring a comprehensive spill response plan to be prepared by an 
owner or operator of an onshore facility.\93\
---------------------------------------------------------------------------

    \93\ See 40 CFR 112.20. The Federal Water Pollution Control Act, 
as amended by the Oil Pollution Act of 1990, directs the President, 
at section 311(j)(1)(C) (33 U.S.C. 1321(j)(1)(C)) and section 
311(j)(5) (33 U.S.C. 1321(j)(5)), respectively, to issue regulations 
``establishing procedures, methods, and equipment and other 
requirements for equipment to prevent discharges of oil and 
hazardous substances from vessels and from onshore facilities and 
offshore facilities, and to contain such discharges.''
---------------------------------------------------------------------------

    Again, the majority of commenters who expressed their viewpoints 
regarding the proposed notification requirements asked for PHMSA to 
lower the threshold and therefore expand the applicability of 
notification requirements. For example, the NTSB commented that ``[a] 
threshold of one million gallons (approximately 35 tank car loads) is 
significantly above a reasonable risk threshold and should be lower. At 
a minimum the threshold should be set no higher than the value of an 
HHFT (20 cars).'' These proposals were echoed by the environmental 
groups, congressional interest, the concerned public, and in particular 
the Massachusetts Water Resources Authority and Division of Emergency 
Management. Other commenters such as Flat Head Lakers suggested an even 
lower threshold; for example, ``[t]he threshold for this reporting 
requirement should be 35,000 gallons per train; the amount carried by 
one tank car, rather than one million gallons.'' To further illustrate 
the point, some commenters such as Powder River Basin wanted the 
notification threshold reduced even more by stating ``[w]e ask DOT to 
broaden its advance notification requirements to include all trains 
transporting any quantity of Class III (flammable liquid) material.'' 
Finally, the Wasatch Clean Air Coalition suggested the lowest threshold 
possible, stating ``SERCs should be notified of residue'' when crude 
oil trains are passing through their States. We received only one 
opposing comment that the requirements were too strict from AFPM, which 
said ``SERC notifications should be tied to shipments of crude oil or 
ethanol in `unit trains,' meaning trains that have 75 cars or more 
shipping crude oil or ethanol.'' This viewpoint is significantly 
greater than the one million gallons trigger proposed in the NPRM.
    DOT agrees with the majority of commenters who believe the one 
million gallons threshold for triggering the notification requirements 
is too lenient. As previously noted, the order required ``each railroad 
transporting one million gallons or more of Bakken crude oil in a 
single train in commerce within the U.S. provide certain information in 
writing to SERCs for each state in which it operates such a train.'' 
After careful consideration of the comments and after discussions 
within PHMSA and FRA, we believe that using the definition of the HHFT 
for notification applicability is a more conservative approach for 
affecting safer rail transportation of flammable liquid material, and 
it is a more consistent approach because it aligns with the proposed 
changes to other operational requirements, including routing. 
Furthermore, the routing requirements adopted in this final rule 
reflect the substance of NTSB Safety Recommendation R-14-4, and are in 
widespread use across the rail industry for security-sensitive 
hazardous materials (such as chlorine and anhydrous ammonia).
    Each state is required to have a SERC under the Emergency Planning 
and Community Right-to-Know Act of 1986 (EPCRA). 42 U.S.C. 11001(a). 
The EPCRA is intended to help local entities plan for emergencies 
involving hazardous substances.\94\ Generally, SERCs are responsible 
for supervising and coordinating with the local emergency planning 
committees (LEPC) in states, and are best situated to convey 
information regarding hazardous materials shipments to LEPCs and state 
and local emergency response agencies. At the time of the issuance of 
the Order, DOT determined that SERCs were the most appropriate 
recipient of written notifications regarding the trains transporting 
large quantities of Bakken crude oil. After issuance of the Order, the 
railroads requested that the fusion centers be permitted as an 
appropriate point of contact to satisfy notification requirements. 
Railroads already share information with fusion centers under

[[Page 26711]]

existing Sec.  172.820 of the HMR, PHMSA's regulation governing 
additional planning requirements for transportation by rail of certain 
hazardous materials and thus many have an established relationship with 
these entities. DOT had also received inquiries regarding the Order's 
implications for Tribal Emergency Response Commissions (TERCs). TERCs 
have the same responsibilities as SERCs, with the Chief Executive 
Office of the Tribe appointing the TERC.\95\
---------------------------------------------------------------------------

    \94\ http://www2.epa.gov/epcra.
    \95\ http://www2.epa.gov/sites/production/files/2013-08/documents/epcra_fact_sheet.pdf.
---------------------------------------------------------------------------

    In response to this request and other questions regarding the 
order, DOT issued a Frequently Asked Questions (FAQs) guidance document 
to address these inquiries.\96\ In that document, DOT explained that if 
a State agrees it would be advantageous for the information required by 
the Order to be shared with a fusion center or other State agency 
involved with emergency response planning and/or preparedness, as 
opposed to the SERC, a railroad may share the required information with 
that agency instead of the SERC. DOT also explained that railroads were 
not required to make notification under the Order to TERCs, but, 
rather, that DOT would be reaching out to Tribal leaders to inform them 
that TERCs could coordinate with the appropriate SERC in a state for 
access to data supplied under the Order.
---------------------------------------------------------------------------

    \96\ http://www.fra.dot.gov/eLib/Details/L05237.
---------------------------------------------------------------------------

    In the NPRM, PHMSA proposed requirements for notification to SERCs 
consistent with the notification language of the Order (i.e., trains 
transporting one million gallons or more of Bakken crude oil). 
Notification made under the Order had to include estimated frequencies 
of affected trains in each county in the state, their routes, a product 
description and emergency response information, and contact 
information.
    Commenters had varied opinions regarding who the appropriate 
recipient of this information should be (e.g. SERCs, fusion centers, 
emergency responders, etc.). For example, the NTSB stated that DOT 
should ``codify Safety Recommendation R-14-14, which recommends that 
PHMSA require railroads transporting hazardous materials through 
communities to provide emergency responders and local and state 
emergency planning committees with current commodity flow data and 
assist with development of emergency operations and response plans.'' 
The NTSB further stated that DOT should ``codify Safety Recommendation 
R-14-19, which recommends that PHMSA require railroads transporting 
hazardous materials to develop, implement, and periodically evaluate a 
public education program similar to 49 CFR 192.616 and 195.440 for the 
communities along railroad hazardous materials routes.''
    Environmental groups such as the Sierra Club commented that ``rail 
operators carrying volatile crude in any amount must be required to 
notify states and emergency responders of the crude compositions, 
quantities, and frequency of transport; and that this information must 
be made available to the public.'' Some commenters wanted the 
notification applicability expanded greatly, and Delaware Riverkeeper 
Network noted that SERCs should be ``notified of sampling and testing 
results, and that those results should be made available to the general 
public, SERCs, the DOT, fusion centers, Tribal emergency responders, 
and local [emergency responders] ERs.'' Numerous commenters also stated 
that they believed ``local emergency responders should be provided with 
information about all hazmat traveling through their jurisdictions,'' 
including villages, towns, and cities. Some commenters also provided 
general support for notification requirements described in AAR Circular 
No. OT-55-N,\97\ which contains the recommended railroad operating 
practices for transportation of hazardous materials. Finally, the 
Prairie Island Indian Community touched on the issue of including TERCs 
in that ``unfortunately there was no mention of notifying Tribal 
Emergency Response Commissions (TERC). Indian tribes have the same 
responsibilities and obligations under the Emergency Preparedness and 
Community Right-to-Know Act (EPCRA) passed by Congress in 1986. EPCRA 
established requirements for federal, state and local governments, 
Indian tribes, and industry regarding emergency planning and Community 
Right-to-Know reporting on hazardous and toxic chemicals. The Community 
Right-to-Know provisions were meant to increase public knowledge and 
access to information on chemicals at individual facilities, their 
uses, and releases into the environment.''
---------------------------------------------------------------------------

    \97\ http://www.regulations.gov/#!documentDetail;D=PHMSA-2012-
0082-0009.
---------------------------------------------------------------------------

    DOT agrees with the general scope of the commenters who suggested 
making more information available for first responders and emergency 
planners, but we disagree on the best method to disseminate the 
information to the members of this community. As previously noted, the 
Order required ``each railroad transporting one million gallons or more 
of Bakken crude oil in a single train in commerce within the U.S. 
provide certain information in writing to the SERCs for each state in 
which it operates such a train.'' While we proposed the same language 
in the NPRM as it related to setting up the notification requirements 
and the SERCs, after careful review of the comments and discussions 
within PHMSA and FRA, we believe that using the definition of the HHFT 
for notification applicability and emergency response is appropriate. 
This will align it with the proposed changes to the Sec.  172.820 
requirements, and since those will be expanded to apply to HHFTs, the 
notification requirements in paragraph (g) of Sec.  172.820 will now 
cover all flammable liquids transported in an HHFT, including crude oil 
and ethanol. The expansion of the routing requirements and deferring to 
the reporting requirements therein, as adopted in this final rule, 
reflect the NTSB recommendation R-14-4, and enable industry to make use 
of current practices for security-sensitive hazardous materials (such 
as chlorine and anhydrous ammonia).
    After issuance of the Order, railroads were concerned that certain 
routing and traffic information about crude oil transport required to 
be provided to SERCs would be made available to the public under 
individual states' ``Sunshine'' laws. DOT engaged in discussions with 
railroads and invited states to participate to address this valid 
concern, and the FAQ document was the outcome of those discussions. As 
is explained in the aforementioned FAQ document, DOT preferred that 
this information be kept confidential, and acknowledged that railroads 
may have an appropriate claim that this information constitutes 
confidential business information, but that such claims may differ by 
state depending on each state's applicable laws. DOT also encouraged 
the railroads to work with states to find the most appropriate means 
for sharing this information (including fusion centers or other 
mechanisms that may have established confidentiality protocols). 
However, the Order and DOT's subsequent guidance did not require nor 
clarify that states sign confidentiality agreements to receive this 
information, and did not designate or clarify that the information 
could be considered Sensitive Security Information (SSI) under the 
procedures governing such information at 49 CFR part 15. DOT 
understands that despite confidentiality concerns, railroads are 
complying with the requirements of the

[[Page 26712]]

Order and have provided the required information to States.
    In the NPRM, PHMSA proposed notification requirements consistent 
with the Order. However, we did not include any specific language 
regarding public access to sensitive information requirements, but we 
did ask readers to comment on two questions: (1) Whether PHMSA should 
place restrictions in the HMR on the disclosure of the notification 
information provided to SERCs or to another state or local government 
entity; and (2) Whether such information should be deemed SSI, and the 
reasons indicating why such a determination is appropriate, considering 
safety, security, and the public's interest in this information.
    Commenters had varying opinions on this issue. A concerned member 
of the public indicated, ``I do NOT recommend that the public be 
informed of train schedules due to terrorism concerns,'' while others 
asserted, ``I support the community's right to know,'' and ``residents 
within the zone around train routes that could be affected need to know 
what's going through their communities and over their water supplies, 
where it will pass and when, in order to make decisions about personal 
exposure.'' Environmental groups including Earthjustice, Forest Ethics, 
Sierra Club, NRDC, and Oil Change International commented, ``[t]here 
should be no restrictions on the disclosure of information provided to 
SERCs or other emergency responders.'' The NTSB stated, ``[c]lassifying 
route information about hazardous materials as SSI would unreasonably 
restrict the public's access to information that is important to 
safety. While the general public may not require detailed information 
such as: Numbers, dates, and times -- people should know if they live 
or work near a hazardous materials route.''
    Certain industry groups, like the AFPM, suggested that ``PHMSA 
should clarify that SERC notifications are sensitive security 
information exempt from state Freedom of Information Acts and sunshine 
laws.'' As for rail carriers, many of them supported Great Northern 
Midstream's assertion that ``disclosing private information in the 
public domain with respect to origination and destination, shipper 
designation or otherwise, introduces the potential for act of terrorism 
with no corresponding benefit from such disclosure.'' It went on to say 
that PHMSA must ``mandate to preempt state law requiring notification 
to any party other than emergency response (i.e., no public 
dissemination).'' Petroleum storage and distribution services companies 
like Plains Marketing said that while it ``recognize[s] that providing 
this information allows local first responders to better prepare to 
respond to accidents, we do caution PHMSA that providing this 
information could be in conflict with confidentiality requirements, and 
that PHMSA should ensure that the disclosure is limited to only 
emergency responders and related agencies.'' Other government groups, 
like the National Association of SARA Title III said, ``rail carriers 
may designate the information being provided as a trade secret or as 
security sensitive, but may not demand that the SERCs or other 
recipients sign nondisclosure agreements.'' However, concerned public 
commenter K. Denise Rucker Krepp, former MARAD Chief Counsel and former 
Senior Counsel, U.S. House of Representatives Homeland Security 
Committee, said:

    The Department of Transportation cannot limit the sharing of 
information to State Emergency Response Commissions to trains 
containing more than one million gallons of Bakken crude oil. 
Railroad carriers are required by the Implementing Recommendations 
of the 9/11 Commission Act of 2007 (9/11 Act, Public Law 110-53) to 
share all routing and cargo shipment information with state, local, 
and tribal authorities. Section 1512 of the 9/11 Act requires 
railroad carriers to conduct vulnerability assessments and draft 
security plans. The Department of Homeland Security (DHS) is 
required to review these assessments and plans in consultation with 
public safety and law enforcement officials. DHS can't properly 
consult with these officials if they don't know what is being 
transported through their jurisdiction. Similarly, DHS can't seek 
input from state and local officials if they don't know the routes 
by which the goods are being transported.

    Finally, Senators Wyden, Merkley, Boxer, and Feinstein stated, 
``[b]ecause railroads provide crude oil routes online, reporting 
information to emergency responders (with no limits on `information 
sharing') should not pose additional security concern.''
    DOT agrees with the commenters that this is a difficult and complex 
issue, and widespread access to security sensitive information could be 
used for criminal purposes when it comes to crude oil by rail 
transportation. For example, the FBI and the federal Bureau of Alcohol, 
Tobacco, Firearms and Explosives are participating in a vandalism 
investigation of a November 2014 incident in Vivian, S.D., where a two-
foot piece of the rail line was blown up using the explosive 
tannerite.\98\ As discussed before, DOT prefers that this information 
be kept confidential for security reasons, and acknowledges that 
railroads may have an appropriate claim that this information 
constitutes confidential business information, but that such claims may 
differ by state depending on each state's applicable laws. DOT has also 
encouraged the railroads to work with states to find the most 
appropriate means for sharing this information (including fusion 
centers or other mechanisms that may have established confidentiality 
protocols). After careful review of the comments and after discussions 
within PHMSA and FRA, we believe that adopting the notification (and 
information sharing) process associated with the additional planning 
requirements under Sec.  172.820 is the best approach. Under this 
approach, the transportation of crude oil by rail (or any other 
flammable liquid carried as part of a HHFT) can: (1) Avoid the negative 
security and business implications of widespread public disclosure of 
routing and volume data; and (2) preserve the intent of the Order to 
enhance information sharing with emergency responders by utilizing 
fusion centers as they have established protocols for communicating 
with emergency responders on hazmat rail issues as indicated in the 
following passage from the Frequently Asked Questions on DOT's May 7, 
2014 Emergency Order Regarding Notification to Communities of Bakken 
Crude Oil Shipments: \99\
---------------------------------------------------------------------------

    \98\ ``Railroad Vandalism in South Dakota Under Investigation,'' 
http://www.ksfy.com/home/headlines/Railroad-vandalism-in-South-Dakota-under-investigation-285018691.html.
    \99\ http://www.fra.dot.gov/Elib/Document/3873.

    Fusion Centers are established on a State and regional basis, 
with one of their purposes being to share emergency response 
information. Railroads currently routinely share data on their 
shipments with Fusion Centers. Given that railroads and Fusion 
Centers have already established protocols for sharing information 
under existing confidentiality agreements, in some situations, there 
might be advantages to States and railroads in utilizing Fusion 
Centers instead of SERCs for the sharing of information required by 
this EO. DOT also noted that there is an existing mechanism for 
Tribal Nations to interact with the Fusion Centers through the 
State, Local, Tribal and Territorial Government Coordinating 
Council. Similarly, DOT recognizes that individual States may have 
an agency other than the SERC or Fusion Center that is more directly 
involved in emergency response planning and preparedness than either 
the SERC or Fusion Center.\100\
---------------------------------------------------------------------------

    \100\ http://www.fra.dot.gov/Elib/Document/3873.

    Expansion of the routing requirements in this final rule addresses 
the NTSB's recommendation R-14-4 and are in widespread use across the 
rail industry

[[Page 26713]]

for security-sensitive hazardous materials (such as chlorine and 
anhydrous ammonia). Additionally, AAR Circular OT-55-N outlines a 
procedure whereby a community may request a list of the types and 
volumes of hazardous materials that are transported through the 
community so that emergency responders can plan and prepare.
    In addition, on January 27, 2015, AAR's Safety and Operations 
Management Committee approved changes to OT-55 (AAR Circular No. OT-55-
O), and those changes became effective January 27, 2015, and superseded 
OT-55-N, which was previously issued August 5, 2013. AAR's OT-55-O 
revised the Transportation Community Awareness and Emergency Response 
Implementation (TRANSCAER[supreg]) program listed in Section V. Section 
V states that ``railroads will assist in implementing TRANSCAER, a 
system-wide community outreach program to improve community awareness, 
emergency planning and incident response for the transportation of 
hazardous materials.'' Specifically, the key revised text of OT-55-O 
``[u]pon written request, AAR members will provide bona fide emergency 
response agencies or planning groups with specific commodity flow 
information covering all hazardous commodities transported through the 
community for a 12 month period in rank order.''
    The request must be made using the form included as Appendix 3 by 
an official emergency response or planning group with a cover letter on 
appropriate letterhead bearing an authorized signature. The form 
reflects the fact that the railroad industry considers this information 
to be restricted information of a security sensitive nature and that 
the recipient of the information must agree to release the information 
only to bona fide emergency response planning and response 
organizations and not distribute the information publicly in whole or 
in part without the individual railroad's express written permission. 
It should be noted that commercial requirements change over time, and 
it is possible that a hazardous materials transported tomorrow might 
not be included in the specific commodity flow information provided 
upon request, since that information was not available at the time the 
list was provided.
    In summary, Section V is now revised to require ``all hazardous 
commodities transported through the community for a 12 month period in 
rank order'' instead of just the top 25 commodities. In addition, 
Section V was inserted with a 12 month period, which will help 
emergency response agencies or planning groups in planning for a whole 
year.
    In the NPRM, PHMSA proposed regulatory text consistent with the 
Order which specified notification of information regarding the 
transportation specific to Bakken crude oil. With regard to singling 
out Bakken crude oil from crude oil extracted from other geographic 
locations, DOT acknowledges that under the current shipping paper 
requirements there is no distinction between Bakken crude oil and crude 
oil sourced from other locations. This may present compliance and 
enforcement difficulties, particularly with regard to downstream 
transportation of Bakken crude oil by railroads after interchange(s) 
with an originating or subsequent rail carrier. Previously, DOT 
explained in the FAQs document that railroads and offerors should work 
together to develop a means for identifying Bakken crude oil prior to 
transport, such as a designating a Standard Transportation Commodity 
Code (STCC) that would identify crude oil by its geographic source. DOT 
also stated that for purposes of compliance with the Order, crude oil 
tendered to railroads for transportation from any facility directly 
located within the Williston Basin (North Dakota, South Dakota, and 
Montana in the United States, or Saskatchewan or Manitoba in Canada) is 
Bakken crude oil.
    In the NPRM, PHMSA solicited comments surrounding commodity type, 
and if the applicability of notification requirements should be 
expanded to include threshold quantities of all petroleum crude oils or 
all HHFTs (versus only trains transporting threshold quantities of 
Bakken crude oil), and even commodity types (e.g., ethanol, etc.).
    Commenters generally stated that crude oil sourced from the Bakken 
shale formation should not be the only determining factor of commodity 
type for notification purposes. Congressman Michael Capuano stated that 
he ``supports carrier notification for both Bakken crude oil and 
ethanol shipments.'' Environmental groups, like Powder River Basin, 
have the view that ``any quantity of Class III (flammable liquid) 
material, including combustible liquids'' should be included, ``not 
just Bakken crude oil.'' Trade associations, like the Independent 
Petroleum Association of America (IPAA), assert that it ``do[es] not 
support any distinction between Bakken crude and other oil types.'' The 
NTSB echoed these opinions and said, ``SERC notification requirements 
should extend to ethanol due to similar risks in a pool fire to crude 
oil,'' and that ``SERC notification requirements should extend to crude 
oil sourced from other regions, not just the Bakken formation, since 
Bakken crude is not significantly different from other crude oil or 
flammable liquids.'' Local communities, cities, and towns were 
consistent in their belief as expressed by the City and County of 
Denver that ``notification requirement should be extended to apply to 
all HHFTs, not only those transporting Bakken petroleum crude oil.'' 
NGO's like the National Fire Protection Association (NFPA) thought that 
``all crude oil and ethanol should be included'' and that ``NFPA has 
not found any reference to similar requirements on notification of 
SERCs regarding ethanol train transportation. This seems to be an 
omission in this proposed rulemaking and NFPA questions whether there 
should be a companion requirement that applies specifically to 
ethanol.'' Rail carriers believe, as expressed by Continental 
Resources, Inc., that ``all petroleum crude oil'' should be included, 
and that there is ``no significant difference between Bakken and other 
crude. Also, [we] do not support a separate STC code for Bakken.''
    DOT agrees with comments that Bakken crude oil should not be the 
determining factor (with respect to a commodity type) for notification 
requirements. As previously noted, the Order required ``each railroad 
transporting one million gallons or more of Bakken crude oil in a 
single train in commerce within the U.S. provide certain information in 
writing to the SERCs for each state in which it operates such a 
train.'' Although we were consistent with this instruction in the NPRM, 
we now agree with the vast majority of commenters that applicability 
should be broadened to include more commodity types and/or source 
locations of crude oil. This final rule invokes the notification 
requirements for HHFT. This aligns it with the proposed changes to the 
Sec.  172.820 requirements which also will now apply to HHFTs, and 
thus, the associated notification requirements in paragraph (g) of 
Sec.  172.820 will now cover more than crude oil sourced from the 
Bakken formation and more commodity types (e.g., ethanol).
Conclusion
    Based on the above discussion, PHMSA and FRA are removing the 
notification requirement language proposed in the NPRM under Sec.  
174.310(a)(2) and is instead using as a substitute the contact 
information

[[Page 26714]]

language requirement that is already part of the additional planning 
requirements for transportation by rail found in Sec.  172.820 of the 
HMR that now applies to HHFTs. As provided in Sec.  172.820(g), each 
HHFT must identify a point of contact (including the name, title, phone 
number and email address) related to routing of materials identified in 
Sec.  172.820 in its security plan and provide this information to: (1) 
State and/or regional fusion centers (established to coordinate with 
state, local and tribal officials on security issues and which are 
located within the area encompassed by the rail carrier's system); and 
(2) State, local, and tribal officials in jurisdictions that may be 
affected by a rail carrier's routing decisions and who directly contact 
the railroad to discuss routing decisions.
    Not adopting the separate notification requirements proposed in the 
NPRM and instead relying on the expansion of the existing route 
analysis and consultation requirements of Sec.  172.820 to include 
HHFTs would allow this change to function within the overall hazardous 
materials regulatory scheme. This provides for consistency of 
notification requirements for rail carriers transporting material 
subject to routing requirements, i.e., trains carrying: (1) More than 
2,268 kg (5,000 lbs.) in a single carload of a Division 1.1, 1.2 or 1.3 
explosive; (2) a quantity of a material poisonous by inhalation in a 
single bulk packaging; (3) a highway route-controlled quantity of a 
Class 7 (radioactive) material; and now (4) Class 3 flammable liquid as 
part of a high-hazard flammable train (as defined in Sec.  171.8). 
Specifically, a single train carrying 20 or more carloads of a Class 
III flammable liquid in a continuous block or a single train carrying 
35 or more tank cars of a Class III flammable liquid across the train 
consist will have to comply with the additional planning requirements 
for transportation by rail in Sec.  172.820.

VIII. Section by Section Review

Section 171.7

    The National Technology Transfer and Advancement Act of 1995 (15 
U.S.C. 272) directs agencies to use voluntary consensus standards in 
lieu of government-unique standards except where inconsistent with law 
or otherwise impractical. Section 171.7 lists all standards 
incorporated by reference into the HMR and informational materials not 
requiring incorporation by reference. The informational materials not 
requiring incorporation by reference are noted throughout the HMR and 
provide best practices and additional safety measures that while not 
mandatory, may enhance safety and compliance. In this final rule, we 
are redesignating paragraphs (k)(2) through (k)(4) as (k)(3) through 
(k)(5) and adding a new paragraph (k)(2) to incorporate by reference 
the AAR Manual of Standards and Recommended Practices, Section C--III, 
Specifications for Tank Cars, Specification M-1002 (AAR Specifications 
for Tank Cars), Appendix E, Design Details implemented April 2010.

Section 171.8

    Section 171.8 provides definitions and abbreviations used within 
the HMR. In this final rule, we are adding a new definition for high-
hazard flammable train meaning, a single train transporting 20 or more 
loaded tank cars of a Class 3 flammable liquid in a continuous block or 
a single train carrying 35 or more loaded tank cars of a Class 3 
flammable liquid throughout the train consist. In addition, in this 
final rule, we are adding a new definition for high-hazard flammable 
unit train meaning a single train transporting 70 or more loaded tank 
cars containing Class 3 flammable liquid.

Section 172.820

    Section 172.820 prescribes additional safety and security planning 
requirements for transportation by rail. Paragraph (a) of this section 
provides the applicability for when a rail carrier must comply with the 
requirements of this section. In this final rule, we are revising Sec.  
172.820(a) to add a new applicability requiring that any rail carrier 
transporting an HHFT (as defined in Sec.  171.8) must comply with the 
additional safety and security planning requirements for transportation 
by rail.
    Paragraph (b) of this section requires rail carriers compile 
commodity data to inform their route analyses. PHMSA is revising this 
paragraph to account for rail carriers' initial analysis and require 
that commodity data be compiled no later than 90 days after the end of 
the calendar year; and that in 2016, the data must be compiled by March 
31. In addition, this section requires the initial data cover six 
months, from July 1, 2015 to December 31, 2015. For their initial 
analysis, rail carriers are only required to collect data from the six-
month period described in this section, additional data may be 
included, but is not required by this final rule. In this final rule we 
are providing rail carriers the option to use data for all of 2015 in 
conducting their initial route analyses. Regardless if six or 12 months 
of data are used, a rail carrier's initial route analysis and selection 
process must be completed by March 31, 2016. For subsequent route 
analyses, commodity data from the entire previous calendar year (i.e. 
12 months) must be used. PHMSA will amend the HMR in a future action to 
remove the transitional provision.

Section 173.41

    In this final rule, we are adding a new section 173.41 prescribing 
a sampling and testing program for unrefined petroleum-based products. 
This section specifies what must be included in a sampling and testing 
program in paragraph (a). Paragraph (b) of this section requires 
shippers to certify that unrefined petroleum-based products are offered 
in accordance with this subchapter, to include the requirements 
prescribed in paragraph (a). Paragraph (c) provides the requirements 
for documentation, retention, review and dissemination of the sampling 
and testing program. Finally, paragraph (d) of this section states that 
each person required to develop a sampling and testing program make the 
documentation available upon request to an authorized official of the 
Department of Transportation.

Section 173.241

    Section 173.241 prescribes the bulk packaging requirements for 
certain low hazard liquids and solid materials which pose a moderate 
risk. Paragraph (a) provides which specifications of rail tank cars may 
be used to transport hazardous materials when directed to this section 
by Column (8C) of the Sec.  172.101 HMT. In this final rule, we are 
revising paragraph (a) to add an authorization for DOT Specification 
117 tank cars and to prohibit the use of DOT Specification 111 tank 
cars for Class 3 (flammable liquids) in Packing Group III in HHFT 
service, after May 2025. Additionally, we are authorizing the 
retrofitting of DOT Specification 111 tank cars to allow their use 
after May 2025 provided they meet the requirements of the DOT-117R 
specification or the DOT-117P performance standard as specified. 
Finally, the section notes that conforming retrofitted tank cars are to 
be marked ``DOT-117R'' and conforming performance standard tank cars 
are to be marked ``DOT-117P.''

Section 173.242

    Section 173.242 prescribes the bulk packaging requirements for 
certain medium hazard liquids and solids, including solids with dual 
hazards. Paragraph (a) provides which specifications of rail tank cars 
may be

[[Page 26715]]

used to transport hazardous materials when directed to this section by 
Column (8C) of the Sec.  172.101 HMT. In this final rule, we are 
revising paragraph (a) to add an authorization for DOT Specification 
117 tank cars and to prohibit the use of DOT Specification 111 tank 
cars for Class 3 (flammable liquids) in Packing Group II and III, in 
HHFT service, after the dates in the following table unless they meet 
the performance standard DOT-117P or are retrofitted to meet the 
requirements of the DOT-117R specification as specified:

------------------------------------------------------------------------
                                                    DOT 111 built to the
                                   DOT 111 not        CPC-1232 industry
        Packing group           authorized after        standard not
                                                      authorized after
------------------------------------------------------------------------
II..........................  May 1, 2023 (non-     July 1, 2023 (non-
                               jacketed and          jacketed) May 1,
                               jacketed).            2025 (jacketed).
III.........................  May 1, 2025.........  May 1, 2025.
------------------------------------------------------------------------

Finally, the section notes that conforming retrofitted tank cars are to 
be marked ``DOT-117R'' and conforming performance standard tank cars 
are to be marked ``DOT-117P.''

Section 173.243

    Section 173.243 prescribes the bulk packaging requirements for 
certain high-hazard liquids and dual hazard materials which pose a 
moderate risk. Paragraph (a) provides which specifications of rail cars 
may be used to transport hazardous materials when directed to this 
section by Column (8C) of the Sec.  172.101 HMT. In this final rule, we 
are revising paragraph (a) to add an authorization for DOT 
Specification 117 tank cars and to prohibit the use of DOT 
Specification 111 tank cars for Class 3 (flammable liquids) in Packing 
Group I, in HHFT service, after the dates in the following table unless 
they are retrofitted to meet the performance standard DOT-117P or the 
requirements of the DOT-117R specification as specified:

------------------------------------------------------------------------
                                                    DOT 111 built to the
                                   DOT 111 not        CPC-1232 industry
        Packing group           authorized after        standard not
                                                      authorized after
------------------------------------------------------------------------
I...........................  January 1, 2017 (non- April 1, 2020 (non-
                               jacketed report       jacketed).
                               trigger).            May 1, 2025
                              January 1, 2018 (non-  (jacketed).
                               jacketed).
                              March 1, 2018
                               (jacketed).
------------------------------------------------------------------------

Finally, the section notes that conforming retrofitted tank cars are to 
be marked ``DOT-117R'' and conforming performance standard tank cars 
are to be marked ``DOT-117P.''

Section 174.310

    In this final rule, we are adding a new section 174.310 prescribing 
requirements for the operation of HHFTs. A rail carrier must comply 
with these additional requirements if they operate an HHFT (as defined 
in Sec.  171.8). Paragraph (a)(1) requires that any rail carrier 
operating an HHFT is subject to the additional safety and security 
planning requirements in Sec.  172.820 (i.e. routing). Additionally, 
Paragraph (a)(2) requires that all trains are limited to a maximum 
speed of 50 mph. The train is further limited to a maximum speed of 40 
mph while that train travels within the limits of high-threat urban 
areas (HTUAs) as defined in Sec.  1580.3 of this title, unless all tank 
cars containing a Class 3 flammable liquid meet or exceed the retrofit 
standard DOT Specification 117R, the DOT Specification 117P performance 
standards, or the standard for the DOT Specification 117 tank car. 
Paragraph (a)(3) requires HHFTs and HHFUTs must also be equipped with 
advanced brake signal propagation systems as specified. Paragraph 
(a)(4) states this new section also requires that a tank car 
manufactured for use in a HHFT must meet DOT Specification 117, or 117P 
in part 179, subpart D of this subchapter or an authorized tank 
specification as specified in part 173, subpart F of this subchapter. 
Finally, Paragraph (a)(5) requires owners of Non-Jacketed DOT-111 tank 
cars in PG I service in an HHFT, who are unable to meet the January 1, 
2017 retrofit deadline specified in Sec.  173.243 (a)(1) to submit a 
report by March 1, 2017 to Department of Transportation. The report 
must include information regarding the retrofitting progress.

Section 179.200

    The heading for Sec.  179.200 is revised to include the DOT-117 
specification.

Section 179.200-1

    The heading for Sec.  179.200-1 is revised by stating that tank 
cars built under the DOT-117 specification must meet the applicable 
requirements of Sec. Sec.  179.200, 179.201, and 179.202.

Section 179.202-1

    Section 179.202-1 prescribes the applicability of the DOT-117 tank 
car standards and specifies that each tank built under such 
specification must conform to the general requirements of Sec.  179.200 
and the prescriptive standards in Sec. Sec.  179.202-1 through 179.202-
11, or the performance standard requirements of Sec.  179.202-12.

Section 179.202-3

    Section 179.202-3 authorizes a DOT-117 tank car to be loaded to a 
gross weight on rail of up to 286,000 pounds (129,727 kg) upon approval 
by the Associate Administrator for Safety, Federal Railroad 
Administration (FRA). This section also provides a reference to Sec.  
179.13 which provides authorization for a gross weight on rail of up to 
286,000 pounds (129,727 kg).

Section 179.202-4

    Section 179.202-4 specifies that the wall thickness after forming 
of the tank shell and heads on a DOT-117 tank car must be, at a 
minimum, \9/16\ of an inch of AAR TC-128 Grade B normalized steel. 
Although not proposed in the NPRM, in this final rule, we are also 
authorizing \5/8\ of an inch of ASTM A 516-70 in accordance with Sec.  
179.200-7(b) that is currently allowed by the HMR. Both grades of steel 
must be normalized.

Section 179.202-5

    Section 179.202-5 specifies that the DOT-117 specification tank car 
must have a tank head puncture resistance system constructed in 
conformance with the requirements in Sec.  179.16(c). Additionally, the 
section specifies the tank car must be equipped with full height head 
shields with a minimum thickness of \1/2\ inch.

Section 179.202-6

    Section 179.202-6 specifies that the DOT-117 specification tank car 
must be equipped with a thermal protection system. The thermal 
protection system

[[Page 26716]]

must conform to the performance standard in Sec.  179.18 and include a 
reclosing PRD in accordance with Sec.  173.31 of this subchapter.

Section 179.202-7

    Section 179.202-7 specifies that the thermal protection system on a 
DOT-117 specification tank car must be covered with a metal jacket of a 
thickness not less than 11 gauge A 1011 steel or equivalent and flashed 
around all openings to be weather tight. It also requires that a 
protective coating be applied to the exterior surface of a carbon steel 
tank and the inside surface of a carbon steel jacket.

Section 179.202-8

    Section 179.202-8 prescribes minimum standards for bottom outlet 
handle protection on a DOT-117 specification tank car. In this final 
rule, we are requiring that if the tank car is equipped with a bottom 
outlet, the handle must be removed prior to train movement or be 
designed with protection safety system(s) to prevent unintended 
actuation during train accident scenarios.

Section 179.202-9

    Section 179.202-9 prescribes the top fittings protection standard 
for DOT-117 specification tank cars. In this final rule, we are 
adopting as proposed, to incorporate by reference in Sec.  171.7, 
Appendix E 10.2.1 of the 2010 version of the AAR Manual of Standards 
and Recommended Practices, Section C--Part III, Specifications for Tank 
Cars, Specification M-1002, (AAR Specifications for Tank Cars). Thus, a 
DOT-117 specification tank car must be equipped with top fittings 
protection in accordance with the incorporated standard.

Section 179.102-10

    Section 179.102-10 prescribes ECP braking construction standards 
for DOT-117 specification tank cars. Specifically, paragraph (a) 
requires by January 1, 2021, each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, comprised of at least 
one tank car loaded with a Packing Group I material must ensure the 
train meets the ECP braking capability requirements. In addition 
paragraph (b) requires by May 1, 2023, each rail carrier operating a 
high-hazard flammable unit train as defined in Sec.  171.8, and not 
described in paragraph (a) of this section, must ensure the train meets 
the ECP braking capability requirements. Finally, paragraph (c) permits 
alternate brake systems to be submitted for approval through the 
processes and procedures outlined in 49 CFR part 232, subpart F.

Section 179.202-11

    A table is provided in Sec.  179.202-11 to indicate the individual 
specification requirements for a DOT-117 specification tank car.

Section 179.202-12

    Section 179.202-12 provides an optional performance standard that a 
DOT-117 specification tank car may be manufactured to and is designated 
and marked as ``DOT-117P.'' Paragraph (a) describes the approval 
process for the design, testing, and modeling results that must be 
reviewed and approved by the Associate Administrator for Railroad 
Safety/Chief Safety Officer of the FRA. Paragraph (b) describes the 
approval process to operate at 286,000 gross rail load (GRL). Paragraph 
(c) specifies that a DOT-117P specification tank car must be equipped 
with a tank-head puncture-resistance system in accordance with the 
performance standard in Sec.  179.18. Paragraph (d) specifies that a 
DOT-117P specification tank car must be equipped with a thermal 
protection system. The thermal protection system must be designed in 
accordance with the performance standard in Sec.  179.18 and include a 
reclosing PRD conforming to Sec.  173.31 of this subchapter. Paragraph 
(e) specifies that if the tank car is equipped with a bottom outlet, 
the handle must be removed prior to train movement or be designed with 
protection safety system(s) to prevent unintended actuation during 
train accident scenarios. Paragraph (f) specifies that the tank car 
tank must be equipped with top fittings protection conforming to AAR 
Specifications Tank Cars, appendix E paragraph 10.2.1. Paragraph (g) 
prescribes ECP braking construction standards for DOT-117P 
specification tank cars. Specifically, paragraph (g)(1) requires by 
January 1, 2021, each rail carrier operating a high-hazard flammable 
unit train as defined in Sec.  171.8, comprised of at least one tank 
car loaded with a Packing Group I material must ensure the train meets 
the ECP braking capability requirements. In addition paragraph (g)(2) 
requires by May 1, 2023 each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, not described in 
paragraph (g)(1) of this section must ensure the train meets the ECP 
braking capability requirements. Finally, paragraph (g)(3) permits 
alternate brake systems to be submitted for approval through the 
processes and procedures outlined in 49 CFR part 232, subpart F.

Section 179.202-13

    Section 179.202-13 prescribes the retrofit standards for existing 
non-pressure tank cars. Non-pressure tank cars retrofitted to meet the 
standards prescribed in this section are designated and marked ``DOT-
117R.'' Paragraph (a) prescribes the applicability of the DOT-117R tank 
car standards and specifies that each tank retrofitted under such 
specification must conform to the general requirements of Sec.  179.200 
and the retrofit standards in this section, or the performance standard 
requirements of Sec.  179.202-12. Paragraph (b) authorizes a DOT-117 
tank car to be loaded to a gross weight on rail of up to 286,000 pounds 
(129,727 kg) upon approval by the Associate Administrator for Safety, 
Federal Railroad Administration (FRA). Paragraph (c) requires that the 
original construction provided a wall thickness after forming of the 
tank shell and heads at a minimum of \7/16\ of an inch, and constructed 
with steel authorized by the HMR at the time of construction. Paragraph 
(d) specifies that the DOT-117R specification tank car must have a tank 
head puncture resistance system constructed in conformance with Sec.  
179.16(c). Additionally, the section specifies the tank car must be 
equipped with full height head shields with a minimum thickness of \1/
2\ inch. Paragraph (e) specifies that the DOT-117R specification tank 
car must be equipped with a thermal protection system. The thermal 
protection system must conform to the performance standard in Sec.  
179.18 and include a reclosing PRD in accordance with Sec.  173.31 of 
this subchapter. Paragraph (f) specifies that the DOT-117R 
specification tank car must be covered with a metal jacket of a 
thickness not less than 11 gauge A 1011 steel or equivalent and flashed 
around all openings to be weather tight. It also requires that a 
protective coating be applied to the exterior surface of a carbon steel 
tank and the inside surface of a carbon steel jacket. Paragraph (g) 
prescribes minimum standards for bottom outlet handle protection on a 
DOT-117R specification tank car. In this final rule, we are requiring 
that if the tank car is equipped with a bottom outlet, the handle must 
be removed prior to train movement or be designed with protection 
safety system(s) to prevent unintended actuation during train accident 
scenarios. Paragraph (h) authorizes existing tank car tanks to rely on 
any top fittings protection installed at the time of original 
manufacture. Paragraph (i) prescribes ECP braking construction 
standards for DOT-117R

[[Page 26717]]

specification tank cars. Specifically, paragraph (i)(1) requires by 
January 1, 2021, each rail carrier operating a high-hazard flammable 
unit train as defined in Sec.  171.8, comprised of at least one tank 
car loaded with a Packing Group I material must ensure the train meets 
the ECP braking capability requirements. In addition paragraph (i)(2) 
requires by May 1, 2023 each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, not described in 
paragraph (i)(1) of this section must ensure the train meets the ECP 
braking capability requirements. Finally, paragraph (i)(3) permits 
alternate brake systems to be submitted for approval through the 
processes and procedures outlined in 49 CFR part 232, subpart F.

IX. Impact of Adopted Regulation on Existing Emergency Orders

    As previously mentioned Emergency Order authority is granted to the 
Department and permits the Department to take action on safety issues 
that constitute an imminent hazard to the safe transportation of 
hazardous materials. Railroad transportation of hazardous materials in 
commerce is subject to the authority and jurisdiction of the Secretary 
of Transportation (Secretary), including the authority to impose 
emergency restrictions, prohibitions, recalls, or out-of-service 
orders, without notice or an opportunity for hearing, to the extent 
necessary to abate the imminent hazard. 49 U.S.C. 5121(d). Therefore an 
emergency order can be issued if the Secretary has found that an unsafe 
condition or an unsafe practice is causing or otherwise constitutes an 
imminent hazard to the safe transportation of hazardous materials.
    Currently the Department has four emergency orders in affect that 
are relevant to rail shipment of large quantities of flammable liquids. 
Below we will discuss those orders and how the amendments adopted in 
this rulemaking affect those Emergency Orders. Emergency Orders remain 
in effect until the Secretary determines that an imminent hazard no 
longer exits or a change in applicable statute or Federal regulation 
occurs that supersedes the requirements of the Order, in which case the 
Secretary will issue a Rescission Order.

Emergency Order 28

    Emergency Order 28 was issued on August 7, 2013 and addressed 
safety issues related to securement of certain hazardous materials 
trains. Specifically, this order requires trains with (1) Five or more 
tank carloads of any one or any combination of materials poisonous by 
inhalation as defined in Title 49 CFR 171.8, and including anhydrous 
ammonia (UN1005) and ammonia solutions (UN3318); or (2) 20 rail 
carloads or intermodal portable tank loads of any one or any 
combination of materials listed in (1) above, or, any Division 2.1 
flammable gas, Class 3 flammable liquid or combustible liquid, Class 
1.1 or 1.2 explosive,\101\ or hazardous substance listed in 49 CFR 
173.31(f)(2). To see the specific provisions of this emergency order 
see the August 7, 2013, Federal Register (78 FR 48218).\102\
---------------------------------------------------------------------------

    \101\ Should have read ``Division'' instead of ``Class.''
    \102\ See http://www.gpo.gov/fdsys/pkg/FR-2013-08-07/pdf/2013-19215.pdf.
---------------------------------------------------------------------------

    While this final rulemaking does not address train securement, on 
August 9, 2014, FRA published an NPRM that proposed amendments to the 
brake system safety standards for freight and other non-passenger 
trains and equipment to strengthen the requirements relating to the 
securement of unattended equipment. Specifically, FRA proposed to 
codify many of the requirements already included in emergency order 28. 
FRA proposed to amend existing regulations to include additional 
securement requirements for unattended equipment, primarily for trains 
transporting poisonous by inhalation hazardous materials or large 
volumes of Division 2.1 (flammable gases), Class 3 (flammable or 
combustible liquids, including crude oil and ethanol), and Class 1.1 or 
1.2 (explosives) hazardous materials. For these trains, FRA also 
proposed additional communication requirements relating to job 
briefings and securement verification. Finally, FRA proposed to require 
all locomotives left unattended outside of a yard to be equipped with 
an operative exterior locking mechanism. Attendance on trains would be 
required on equipment not capable of being secured in accordance with 
the proposed and existing requirements.
    As this final rulemaking does not address train securement 
emergency order 28 remains currently unaffected. The upcoming final 
rule in response to comments from FRA's August 9, 2014 NPRM that 
proposed amendments to the brake system safety standards for freight 
and other non-passenger trains and equipment to strengthen the 
requirements relating to the securement of unattended equipment will 
address the status of emergency order 28 upon adoption.

DOT-OST-2014-0025

    This emergency order was published on February 25, 2014. 
Subsequently a revised and amended emergency order was published on 
March 6, 2014. This emergency order required those who offer crude oil 
for transportation by rail to ensure that the product is properly 
tested and classified in accordance with Federal safety regulations. 
Further the EO required that all rail shipments of crude oil are 
properly classed as a flammable liquid in Packing Group (PG) III 
material be treated as a PG I or II material, until further notice. The 
Amended Emergency Order also authorized PG III materials to be 
described as PG III for the purposes of hazard communication.
    The primary intent of this emergency order was to address unsafe 
practices related to the classification and packaging of petroleum 
crude oil. Misclassification is one of the most dangerous mistakes to 
be made when dealing with hazardous materials because proper 
classification is the critical first step in determining how to 
package, handle, communicate about, and safely transport hazardous 
materials. Misclassification may indicate larger problems with company 
management, oversight, and quality control. Petroleum crude oil may 
contain dissolved gases or other unanticipated hazardous constituents, 
may exhibit corrosive properties and also may exhibit toxic properties.
    In this rulemaking we have adopted requirements for a testing and 
sampling program to ensure better classification and characterization 
of unrefined petroleum-based products. As part of this requirement the 
HMR now require an offeror to prepare a written sampling and testing 
program for unrefined petroleum-based products. This program must 
address: (1) A frequency of sampling and testing that accounts for any 
appreciable variability of the material (2) Sampling prior to the 
initial offering of the material for transportation and when changes 
that may affect the properties of the material occur; (3) Sampling 
methods that ensures a representative sample of the entire mixture, as 
offered, is collected; (4) Testing methods that enable classification 
of the material under the HMR; (5) Quality control measures for sample 
frequencies; (6) Duplicate samples or equivalent measures for quality 
assurance; (7) Criteria for modifying the sampling and testing program; 
(8) Testing or other appropriate methods used to identify properties of 
the mixture relevant to packaging requirements.

[[Page 26718]]

    Furthermore the offeror is required to certify that program is in 
place, document the testing and sampling program, and make program 
information available to DOT personnel, upon request. The primary 
intent of this requirement is of address unsafe practices related to 
the classification and packaging of mined products.
    As the March 6, 2014 emergency order and the requirements adopted 
in this rulemaking related to classification and characterization 
address the same safety issue the March 6, 2014 emergency order is no 
longer necessary. Therefore the requirements adopted in this rule 
supersede the March 6, 2014 emergency order and make it no longer 
necessary once the rule becomes effective.

DOT-OST-2014-0067

    This emergency order was published on May 7, 2014. This emergency 
order required all railroads that operate trains containing one million 
gallons of Bakken crude oil to notify SERCs about the operation of 
these trains through their States. Specifically, this notification 
should identify each county, or a particular state or commonwealth's 
equivalent jurisdiction (e.g., Louisiana parishes, Alaska boroughs, 
Virginia independent cities), in the state through which the trains 
will operate.
    The primary intent of this emergency order was to eliminate unsafe 
conditions and practices that create an imminent hazard to public 
health and safety and the environment. Specifically, this emergency 
order was designed to inform communities of large volumes of crude oil 
transported by rail through their areas and to provide information to 
better prepare emergency responders for accidents involving large 
volumes of crude oil.
    In this rulemaking we have adopted notification requirements for 
large volumes of crude oil transported by rail. These requirements were 
designed to codify the requirements of the May 7, 2014 EO. While some 
amendments to the original proposal are made, the requirements adopted 
in this rulemaking align with the intent of the May 7, 2014 emergency 
order.
    As the May 7, 2014 emergency order and the requirements adopted in 
this rulemaking related to notification address the same safety issue, 
the May 7, 2014 emergency order is no longer necessary. Therefore the 
requirements adopted in this rule supersede the May 7, 2014 emergency 
order and make it no longer necessary once the information sharing 
portion of the routing requirements come into full force. Therefore 
this emergency order will remain in effect until March 31, 2016.
FRA Emergency Order No. 30
    FRA Emergency Order No. 30 (``Emergency Order 30'' or ``order'') 
was issued on April 27, 2015 and mandated that trains affected by this 
order not exceed 40 miles per hour (mph) in high-threat urban areas 
(HTUAs) as defined in 49 CFR part 1580. Under the order, an affected 
train is one that contains: 1) 20 or more loaded tank cars in a 
continuous block, or 35 or more loaded tank cars, of Class 3 flammable 
liquid; and, 2) at least one DOT Specification 111 (DOT-111) tank car 
(including those built in accordance with Association of American 
Railroads (AAR) Casualty Prevention Circular 1232 (CPC-1232)) loaded 
with a Class 3 flammable liquid. FRA determined at that time that 
public safety compelled the issuance of Emergency Order 30 due to the 
recent railroad accidents involving trains transporting petroleum crude 
oil and ethanol and the increasing reliance on railroads to transport 
voluminous amounts of these flammable liquids in recent years. For more 
information regarding this order, see the April 27, 2015, publication 
in the Federal Register (80 FR 23321).
    The final rule will implement speed restrictions for HHFTs, 
including a maximum operating speed of 40 mph for HHFTs in HTUAs, with 
an effective date of July 7, 2015. As such, the final rule affects the 
same population of tank cars as defined above and codifies the same 
speed restriction that was implemented through Emergency Order 30. 
Thus, the final rule replaces Emergency Order 30 upon the effective 
date of the final rule.

X. Regulatory Review and Notices

A. Executive Order 12866, Executive Order 13563, Executive Order 13610 
and DOT Regulatory Policies and Procedures

    This final rule is considered an economically significant 
regulatory action under section 3(f) of Executive Order 12866 and was 
reviewed by the Office of Management and Budget (OMB), because it has 
an expected annual impact of more than $100 million. The final rule is 
considered a significant regulatory action under the Regulatory 
Policies and Procedures order issued by the Department of 
Transportation (DOT) (44 FR 11034, February 26, 1979). PHMSA prepared a 
Regulatory Impact Analysis addressing the economic impact of this final 
rule, and placed it in the docket for this rulemaking.
    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.'' Executive Order 13610, issued May 10, 2012, urges agencies 
to conduct retrospective analyses of existing rules to examine whether 
they remain justified and whether they should be modified or 
streamlined in light of changed circumstances, including the rise of 
new technologies. DOT believes that streamlined and clear regulations 
are important to ensure compliance with important safety regulations. 
As such DOT has developed a plan detailing how such reviews are 
conducted.\103\
---------------------------------------------------------------------------

    \103\ Department of Transportation's plan for retrospective 
regulatory reviews is available: http://www.dot.gov/regulations/dot-retrospective-reviews-rules.
---------------------------------------------------------------------------

    Additionally, Executive Orders 12866, 13563, and 13610 require 
agencies to provide a meaningful opportunity for public participation. 
Accordingly, PHMSA invited public comment twice (the September 6, 2013, 
ANPRM and August 1, 2014, NPRM) on these considerations, including any 
cost or benefit figures or factors, alternative approaches, and 
relevant scientific, technical and economic data. These comments aided 
PHMSA and FRA in the evaluation of the proposed requirements. PHMSA and 
FRA have since revised our evaluation and analysis to address the 
public comments received.
    Flammable liquids include a wide variety of chemical products. In 
accordance with this action, Class 3 (Flammable liquids) are subject to 
the provisions contained in this final rule when shipped in a HHFT. 
Class 3 (Combustible liquids) are not subject to the provisions of the 
final rule (e.g., diesel fuel). Some materials like crude oil display a 
wide range of flash points and as such may not be subject to the 
provisions in all cases. In other cases, a flammable liquid may be 
mixed with a non-hazardous material to the point that the flash point 
is within the range of a Combustible liquid and would not be subject to 
the provisions of this final rule (e.g., dilute solutions of alcohol). 
Approximately 68% of the flammable liquids transported by rail are 
comprised of crude oil, ethanol, and petrochemical or petroleum 
refinery products. Further, ethanol and crude oil

[[Page 26719]]

comprise approximately 65% of the flammable liquids transported by 
rail.
Crude Oil Transport by Rail
    The U.S. is now the global leader in crude oil production growth. 
With a growing domestic supply, rail transportation, in particular, has 
emerged as a flexible alternative to transportation by pipeline or 
vessel. The volume of crude oil carried by rail increased 423 percent 
between 2011 and 2012.104 105 In 2013, as the number of rail 
carloads of crude oil surpassed 400,000.\106\
---------------------------------------------------------------------------

    \104\ See U.S. Rail Transportation of Crude Oil: Background and 
Issues for Congress; http://fas.org/sgp/crs/misc/R43390.pdf.
    \105\ See Table 9 of EIA refinery report http://www.eia.gov/petroleum/refinerycapacity/.
    \106\ http://www.stb.dot.gov/stb/industry/econ_waybill.html.
---------------------------------------------------------------------------

    The Bakken region of the Williston basin is now producing over one 
million barrels of oil per day \107\, most of which is transported by 
rail. The U.S. Energy Information Administration's ``Annual Survey of 
Domestic Oil and Gas Reserves'' reports that in addition to North 
Dakota's Bakken region, the shale plays in reserves in North America 
are extensive.\108\
---------------------------------------------------------------------------

    \107\ Information regarding oil and gas production is available 
at the following URL: http://www.eia.gov/petroleum/drilling/#tabs-summary-2.
    \108\ EIA ``U.S. Crude Oil and Natural Gas Proved Reserves, 
2013,'' available at: http://www.eia.gov/naturalgas/crudeoilreserves/pdf/uscrudeoil.pdf.
---------------------------------------------------------------------------

    Expansion in oil production has led to increasing volumes of 
product transported to refineries. Traditionally, pipelines and 
oceangoing tankers have delivered the vast majority of crude oil to 
U.S. refineries, accounting for approximately 93 percent of total 
receipts (in barrels) in 2012. Although other modes of transportation--
rail, barge, and truck--have accounted for a relatively minor portion 
of crude oil shipments, volumes have been rising very rapidly. With a 
growing domestic supply, rail transportation, in particular, has 
emerged as a flexible alternative to transportation by pipeline or 
vessel. The transportation of large volumes of flammable liquids by 
poses a risk to life, property, and the environment. The volume of 
flammable liquids shipped by rail unit trains has been increasing 
rapidly since 2006, representing a growing risk. Figure 1 (restated 
here) provides the Average weekly U.S. rail carloads of crude oil and 
petroleum products from 2006 through 2014. The figure below visually 
demonstrates the considerable increase in crude oil and petroleum 
shipments by rail.\109\
---------------------------------------------------------------------------

    \109\ U.S. Energy Information Administration, Rail deliveries of 
U.S. oil continue to increase in 2014, (August 28, 2014) available 
at http://www.eia.gov/todayinenergy/detail.cfm?id=17751.
[GRAPHIC] [TIFF OMITTED] TR08MY15.004


[[Page 26720]]


    Figure 4 shows the recent strong growth in crude oil production in 
the U.S., as well as growth in the number of rail carloads shipped. 
Figure 4 also shows forecasted domestic crude oil production from the 
Energy Information Administration (EIA) and PHMSA's projected strong 
demand for the rail shipment of crude oil.
[GRAPHIC] [TIFF OMITTED] TR08MY15.005


 
 
 
Sources and Notes: Originating Carloads for 2000-2013 obtained from the
 Surface Transportation Board waybill sample. Forecasts of overall
 domestic crude oil production and carload figures from 2014-2034 are
 taken from the report prepared by the Brattle Group on behalf of RSI
 [Table 14]. Production figures were derived from the EIA domestic crude
 production from 2014 Annual Energy Outlook then converted to carloads.
 


[[Page 26721]]

    Rail accidents involving crude oil have risen along with the 
increase in crude oil production and rail shipments of crude oil. 
Figure 5 shows this rise.
[GRAPHIC] [TIFF OMITTED] TR08MY15.006


 
 
 
 Sources and Notes: Originating Carloads for 2000-2013 obtained from the
Surface Transportation Board waybill sample 2014 originating carloads is
 an estimate based on EIA production forecast. Incident counts are from
              the PHMSA and FRA Incident Report Databases.
 

    Based on these train accidents, the projected continued growth of 
domestic crude oil production, and the growing number of train 
accidents involving crude oil, PHMSA concludes that the potential for a 
train accident involving crude oil has increased, which has raised the 
likelihood of a catastrophic train accident that would cause 
substantial damage to life, property, and the environment.

[[Page 26722]]

Ethanol Transport by Rail
    In the last ten years, the production of ethanol has increased 
dramatically due to the demand for ethanol-blend fuels. U.S. production 
of ethanol was 14.3 billion gallons in 2014.\110\ Ethanol is largely 
shipped from production facilities by rail and is now the largest 
volume hazardous material shipped by rail. Large volumes of ethanol are 
commonly shipped by unit trains, up to 3.2 million gallons, and the 
larger barges can transport up to 2.5 million gallons.
---------------------------------------------------------------------------

    \110\ Source: U.S. Energy Information Administration : ``January 
2015 Monthly Energy Review. U.S. Energy Information Administration 
``January 2015 Monthly Energy Review'' Annual Data: www.eia.gov/totalenergy/data/browser/xls.cfm?tbl=T10.03&freq=m.
---------------------------------------------------------------------------

    Ethanol is a flammable colorless liquid; a polar solvent that is 
completely miscible in water. It is heavier than air, and has a wider 
flammable range than gasoline, with a Lower Explosive Limit (LEL) to an 
Upper Explosive Limit (UEL) range of 3.3% to 19%. The flash point for 
pure ethanol is 55 [deg]F, and for denatured ethanol it can be much 
lower depending on the amount of denaturant used. Ethanol is still 
considered a flammable liquid in solutions as dilute as 20%, with a 
flash point of 97 [deg]F. At colder temperatures (below about 51 
[deg]F), the vapor pressure of ethanol is outside the flammable range. 
Ethanol is shipped with a flammable liquids placard and North American 
1987 designation.\111\ As shown in the Figure 6, EIA projects strong 
demand for ethanol in the future.
---------------------------------------------------------------------------

    \111\ Large Volume Ethanol Spills--Environmental Impacts and 
Response Options, MassDEP, http://www.mass.gov/eopss/docs/dfs/emergencyresponse/special-ops/ethanol-spill-impacts-and-response-7-11.pdf.
[GRAPHIC] [TIFF OMITTED] TR08MY15.007


 
 
 
Sources and Notes: Originating Carloads for 2000-2013 were obtained from
  the Surface Transportation Board Waybill sample. Forecasts of overall
   domestic ethanol production are obtained from the EIA. The carload
  forecast from 2014-2034 is based on production using Excel's Forecast
  function using an estimated linear trend of historic ethanol carloads
                      based on historic production.
 

    According to a June 2012 white paper by the AAR, U.S. ethanol 
production has increased considerably during the last 10 years and has 
generated similar growth in the transportation of ethanol by rail. 
Between 2001 and 2012, the number of rail carloads of ethanol increased 
by 650 percent. Similarly the number of rail carloads of crude oil has 
also exponentially increased. Unfortunately, this growth in rail 
traffic has been accompanied by an increase in the number of rail 
accidents involving ethanol and crude oil. Figure 7 below plots the 
total number of rail accidents involving ethanol during the last 13 
years compared to the total carloads of ethanol. The left axis shows 
the total number of rail derailments and the right axis shows total 
carloads shipped.

[[Page 26723]]

[GRAPHIC] [TIFF OMITTED] TR08MY15.008


 
 
 
 Sources and Notes: Originating Carloads for 2000-2013 obtained from the
Surface Transportation Board waybill sample 2014 originating carloads is
 an estimate based on EIA production forecast. Incident counts are from
              the PHMSA and FRA Incident Report Databases.
 

Summary of Regulatory Changes
    In the final RIA PHMSA and FRA analyzed the impacts associated with 
a system-wide, comprehensive final rule that addresses the risk 
associated with the transportation of flammable liquids in HHFTs. Final 
rule provisions include:
     Routing Requirements
     Tank Car Specifications;
     Speed Restrictions;
     Advanced Brake Signal Propagation Systems; and
     Classification of Unrefined Petroleum-based Products.
    This approach is designed to mitigate damages of rail accidents 
involving flammable materials, though some provisions could also 
prevent accidents. The RIA discusses, consistent with this final rule, 
five requirement areas. Although we analyze the effects of individual 
requirements separately, this final rule is a system-wide approach 
covering all requirement areas.
    PHMSA received over 3,200 public comments representing over 182,000 
signatories in response to the August 1, 2014 NPRM and initial RIA. 
This final rule has been revised in response to the comments received 
and the final RIA has been revised to align with the changes made to 
the final rule. Specifically, the RIA explains adjustments to the 
methodology used to estimate the benefits and costs resulting from the 
final rule.
    The analysis shows that expected damages based on the historical 
safety record are expected to exceed $4.1 billion (undiscounted) and 
that damages from high-consequence events could reach $12.6 billion 
(undiscounted) over a 20-year period in the absence of the rule.
    The revised RIA is in the docket and supports the amendments made 
in this final rule. Table 4 (restated here) shows the costs and 
benefits by affected section and rule provision over a 20-year period, 
discounted at a 7% rate. Table 4 (restated here) also shows an 
explanation of the comprehensive benefits and costs (i.e., the combined 
effects of individual provisions), and the estimated benefits, costs, 
and net benefits of each amendment.
    Please also note that, given the uncertainty associated with the 
risks of HHFT shipments, Table 4 (restated here) contains a range of 
benefits estimates. The low-end of the range of estimated benefits 
estimates risk from 2015 to 2034 based on the U.S. safety record for 
crude oil and ethanol from 2006 to 2013, adjusting for the projected 
increase in shipment volume over the next 20 years. The upper end of 
the range of estimated benefits is the 95th percentile from a Monte 
Carlo simulation.

            Table 4--20 Year Costs and Benefits by Stand-Alone Regulatory Amendments 2015-2034 \112\
----------------------------------------------------------------------------------------------------------------
        Affected section \113\                Provision              Benefits (7%)              Costs (7%)
----------------------------------------------------------------------------------------------------------------
49 CFR 172.820.......................  Rail Routing +.........  Cost effective if        $8.8 million.
                                                                 routing were to reduce
                                                                 risk of an incident by
                                                                 0.41%.
49 CFR 173.41........................  Classification Plan....  Cost effective if this   $18.9 million.
                                                                 requirement reduces
                                                                 risk by 1.29%.

[[Page 26724]]

 
49 CFR 174.310.......................  Speed Restriction: 40    $56 million-$242         $180 million.
                                        mph speed limit in       million **.
                                        HTUA *.
                                       Advanced Brake Signal    $470.3 million-$1,114    $492 million.
                                        Propagation Systems.     million **.
49 CFR part 179......................  Existing Tank Car        $426 million--$1,706     $1,747 million.
                                        Retrofit/Retirement.     million **.
                                       New Car Construction...  $23.9 million-$97.4      $34.8 million.
                                                                 million **.
                                                               -------------------------------------------------
    Cumulative Total.................  .......................  $912 million-$2,905      $2,482 million.
                                                                 million **.
----------------------------------------------------------------------------------------------------------------
``*'' indicates voluntary compliance regarding crude oil trains in high-threat urban areas (HTUA).
``+'' indicates voluntary actions that will be taken by shippers and railroads.
``**'' Indicates that the low end of the benefits range is based solely on lower consequence events, while the
  high end of the range includes benefits from mitigating high consequence events.

B. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Public Law 104-4, 2 
U.S.C. 1531) (UMRA) requires each agency to prepare a written statement 
for any proposed or final rule that includes a ``Federal mandate that 
may result in the expenditure by State, local, and Native American 
Indian tribal governments, in the aggregate, or by the private sector, 
of $100,000,000 or more (adjusted annually for inflation) in any one 
year.'' The value equivalent of $100 million in 1995, adjusted for 
inflation to 2012 levels, is $151 million. This final rule will not 
impose enforceable duties on State, local, or Native American Indian 
tribal governments. UMRA was designed to ensure that Congress and 
Executive Branch agencies consider the impact of legislation and 
regulations on States, local governments, and tribal governments, and 
the private sector. With respect to States and localities, UMRA was an 
important step in recognizing State and local governments as partners 
in our intergovernmental system, rather than mere entities to be 
regulated or extensions of the Federal government.
---------------------------------------------------------------------------

    \112\ All costs and benefits are in millions over 20 years, and 
are discounted to present value using a seven percent rate and 
rounded.
    \113\ All affected sections of the Code of Federal Regulations 
(CFR) are in Title 49.
---------------------------------------------------------------------------

    As described in greater detail throughout this document, the final 
rule is a system-wide, comprehensive approach consistent with the risks 
posed by high-hazard flammable materials transported by rail. 
Specifically, requirements address: (1) Proper classification and 
characterization, (2) operational controls to lessen the likelihood and 
consequences of train accidents and (3) tank car integrity. The RIA 
discusses, consistent with this final rule, five requirement areas: 
Rail Routing, Enhanced Tank Car Standards, Speed Restrictions, Braking, 
and Classification of unrefined petroleum-based products.
    The final rule would result in costs to the private sector that 
exceed $151 million in any one year and those costs and benefits 
associated with this rulemaking have been discussed under paragraph A, 
Executive Order 12866, Executive Order 13563, Executive Order 13610 and 
DOT Regulatory Policies and Procedures, of this section. In addition, 
the RIA provides a detailed analysis of the public sector costs 
associated with the proposed requirements. The RIA is available in the 
public docket for this rulemaking. PHMSA invites comments on these 
considerations, including any unfunded mandates related to this 
rulemaking.

C. Executive Order 13132: Federalism

    Executive Order 13132 requires agencies to assure meaningful and 
timely input by state and local officials in the development of 
regulatory policies that may have ``substantial direct effects on the 
states, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Orders 13132 (``Federalism''). The 
amendments in the final rule will not have any direct effect on the 
states, or their political subdivisions; it will not impose any 
compliance costs; and it will not affect the relationships between the 
national government and the states, or political subdivisions, or the 
distribution of power and responsibilities among the various levels of 
government.
    Several of the issues addressed in this final rule are subject to 
our preemption authority, i.e., classification, packaging, and rail 
routing. In regard to rail routing, for example, in a March 25, 2003 
final rule (68 FR 14509), we concluded that the specifics of routing 
rail shipments of hazardous materials preempts all states, their 
political subdivisions, and Indian tribes from prescribing or 
restricting routes for rail shipments of hazardous materials, under 
Federal hazardous material transportation law (49 U.S.C. 5125) and the 
Federal Rail Safety Act (49 U.S.C. 20106). We would expect the same 
preemptive effect as a result of this rulemaking, and thus, the 
consultation and funding requirements of Executive Orders 13132 and 
13175 do not apply. Nonetheless, we invited state and local governments 
with an interest in this rulemaking to comment on any effect that 
proposed requirements could have on them, if adopted.
    We received comments from state and local governments representing 
approximately 200 signatories. State and local governments unanimously 
supported the goal of this rulemaking to enhance safety of rail 
transportation for flammable liquids. Many local and state governments 
acknowledged the preemption authority of the federal government. Local 
and state governments also provided comments on specific proposals in 
the NPRM, which are discussed in the ``Summary and Discussion of 
Comments'' portion of this rulemaking. Therefore, the amendments in the 
final rule will not have any direct effect on the states, or their 
political subdivisions; it will not impose any compliance costs; and it 
will not affect the relationships between the national government and 
the states, or political subdivisions, or the distribution of power and 
responsibilities among the various levels of government.

D. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order (E.O.) 13175 (``Consultation and Coordination with 
Indian Tribal Governments'') requires

[[Page 26725]]

agencies to assure meaningful and timely input from Indian tribal 
government representatives in the development of rules that 
significantly or uniquely affect Indian communities. In complying with 
this E.O., agencies must determine whether a proposed rulemaking has 
tribal implications, which include any rulemaking that imposes 
``substantial direct effects'' on one or more Indian communities, on 
the relationship between the federal government and Indian tribes, or 
on the distribution of power between the Federal Government and Indian 
tribes. Further, to the extent practicable and permitted by law, 
agencies cannot promulgate two types of rules unless they meet certain 
conditions. The two types of rules are: (1) Rules with tribal 
implications, substantial direct compliance costs on Indian tribal 
governments that are not required by statute; and (2) rules with tribal 
implications that preempt tribal law.
    PHMSA analyzed this final rule in accordance with the principles 
and criteria prescribed in E.O. 13175. As a result, PHMSA has 
determined that this rulemaking does not significantly or uniquely 
affect tribes, and does not impose substantial direct effects or 
compliance costs on such governments. Moreover, under Federal hazardous 
material transportation law (49 U.S.C. 5125) and the Federal Rail 
Safety Act (49 U.S.C. 20106), the federal government has a superseding 
preemption with regard to hazardous materials regulation and railroad 
safety. Therefore, the funding and consultation requirements of E.O. 
13175 do not apply, and a tribal summary impact statement is not 
required.
    We received approximately 6 comments from tribal governments 
addressing the NPRM. All the comments from Indian tribal governments 
addressed concerns about the environmental, economic, and safety 
impacts of crude oil train derailments in tribal lands. In general, 
comments from Indian tribal governments provided support for specific 
proposals in the NPRM or suggested stricter measures than proposed. For 
example, multiple tribal governments supported the 40-mph speed limit 
in all areas or recommended that speed restrictions be slower than 
proposed. Some comments submitted by Indian tribal governments provided 
recommendations that were beyond the scope of this rulemaking.
    In the August 1, 2014 NPRM preceding this rulemaking, PHMSA asked 
for comment on the possible impacts of the notification requirements on 
Tribal Emergency Response Commissions (TERCs) or other tribal 
institutions. Overall, Indian tribal governments supported enhanced 
notification requirements on the basis that tribal governments or local 
communities have the right-to-know about hazardous materials shipments 
within their jurisdictions. We also received several comments from 
environmental groups and individuals that supported notification to 
TERCS or other tribal authorities. However, as stated in the ``Summary 
and Discussion of Comments'' PHMSA believes adopting the notification 
(and information sharing) requirements under Sec.  172.820 for HHFTs 
constitutes a better approach than adopting the notification 
requirements proposed in the NPRM. Section 172.820 requires 
notification to Fusion Centers, which includes an existing mechanism 
for Tribal Nations to interact with the Fusion Centers through the 
State, Local, Tribal and Territorial Government Coordinating Council. 
Please refer to the aforementioned ``Summary and Discussion of 
Comments'' section for additional summary and discussion related to the 
notification issue.
    Based upon on the discussion of comments throughout this rule, 
including those of Indian Tribal Governments, and the corresponding 
analysis of those comments, PHMSA and FRA are confident we have been 
responsive to the concerns of all our stakeholders including Indian 
Tribal Governments. As previously stated, we expect that several issues 
addressed in this final rule are subject to federal preemption 
authority, i.e., classification, packaging, and rail routing. 
Furthermore, this rulemaking does not significantly or uniquely affect 
Indian tribal governments, and it does not impose substantial direct 
effects or compliance costs on such governments.
    Other NPRM proposals that were discussed within the comments 
submitted by Indian tribal governments do not uniquely affect Indian 
tribal governments and were addressed by a wide variety of commenters. 
PHMSA has discussed these proposals in the appropriate comment 
summaries found in other sections of this rulemaking.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT Policies 
and Procedures
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and Executive 
Order 13272 require a review of proposed and final rules to assess 
their impacts on small entities. An agency must prepare an initial 
regulatory flexibility analysis (IRFA) unless it determines and 
certifies that a rule, if promulgated, would not have a significant 
impact on a substantial number of small entities. During the Notice of 
Proposed Rulemaking (NPRM) stage, PHMSA and FRA had not determined 
whether the proposed rule would have a significant economic impact on a 
substantial number of small entities. Therefore, PHMSA published an 
IRFA to aid the public in commenting on the potential small business 
impacts of the proposals in the NPRM. All interested parties were 
invited to submit data and information regarding the potential economic 
impact that would result from adoption of the proposals in the NPRM.
    The Regulatory Flexibility Act also requires an agency to conduct a 
final regulatory flexibility assessment (FRFA) unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities. PHMSA is not able to certify that 
the final rule will not have a significant economic impact on a 
substantial number of small entities. PHMSA and FRA received comments 
and data from several commenters on the IRFA, and that information was 
used to make this determination. Therefore, PHMSA is publishing this 
FRFA that discusses the requirement areas of this final rule and 
provides the rationale the agencies used for assessing what impacts 
will be borne by small entities. PHMSA considered comments received in 
the public comment process when making a determination in the FRFA.
    This FRFA was developed in accordance with the Regulatory 
Flexibility Act.
    (1) A succinct statement of the need for and objectives of the 
rule.
    PHMSA and FRA are promulgating the final rule in response to recent 
train accidents involving the derailment of HHFTs. Shipments of large 
volumes of flammable liquids pose a significant risk to life, property, 
and the environment. For example, on December 30, 2013, a train 
carrying crude oil derailed and ignited near Casselton, North Dakota, 
prompting authorities to issue a voluntary evacuation of the city and 
surrounding area. On November 8, 2013, a train carrying crude oil to 
the Gulf Coast from North Dakota derailed in Alabama, spilling crude 
oil in a nearby wetland and igniting into flames. On July 6, 2013, a 
catastrophic railroad accident occurred in Lac-M[eacute]gantic, Quebec, 
Canada when an unattended freight train containing hazardous materials 
rolled down a descending grade and subsequently derailed. The 
derailment resulted in a fire and multiple energetic ruptures of tank 
cars, which, along with other effects of the accident, caused the 
confirmed death of 47 people. In addition, this derailment

[[Page 26726]]

caused extensive damage to the town center, clean-up costs, and the 
evacuation of approximately 2,000 people from the surrounding area. 
Although this regulatory action would not prevent such accidents 
involving unattended trains, the Lac-M[eacute]gantic incident 
demonstrates that very large economic losses occur with catastrophic 
derailments. PHMSA is taking this regulatory action to minimize the 
risks the damages of catastrophic accidents in the United States.
    In this final rule, PHMSA and FRA are adopting revisions to the HMR 
to ensure that the rail requirements address the risks posed by the 
transportation on railroads of HHFTs. This rulemaking addresses risks 
in three areas: (1) Proper classification and characterization of the 
product being transported, (2) operational controls to decrease the 
likelihood and consequences of train accidents, and (3) tank car 
integrity to decrease the consequences of train accidents. Promulgating 
this rulemaking in these areas is consistent with the goals of the HMR: 
(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 
hazardous materials being transferred; and (3) to minimize the 
consequences of an incident should one occur.
    (2) A summary of the significant issues raised by the public 
comments in response to the IRFA, a summary of the assessment of the 
agency of such issues, and a statement of any changes made to the 
proposed rule as a result of such comments.
    For an extensive review of the comments raised please see the 
preamble discussion for this rule. The only issue raised in direct 
response to the IRFA itself was the number of entities that would be 
affected. Bridger, LLC expressed the concern that the use of 
``offerors'' and ``railroads'' excluded entities such as bulk 
terminals. The following section provides a detailed estimate of the 
number of entities affected. Commenters also questioned the number of 
small railroads that would be affected. ASLRRA commented that 160 small 
railroads would be affected, not 64 as estimated in the IRFA. To the 
extent those railroads would be affected, as discussed below, the only 
impact would be the cost of conducting the required routing analysis 
and some rerouting.
    (3) A description and an estimate of the number of small entities 
to which the rule will apply or an explanation of why no such estimate 
is available.
    The universe of the entities considered in an FRFA generally 
includes only those small entities that can reasonably expect to be 
directly regulated by the regulatory action. Small railroads and 
offerors are the types of small entities potentially affected by this 
final rule.
    A ``small entity'' is defined in 5 U.S.C. 601(3) as having the same 
meaning as ``small business concern'' under section 3 of the Small 
Business Act. This includes any small business concern that is 
independently owned and operated, and is not dominant in its field of 
operation. Title 49 U.S.C. 601(4) likewise includes within the 
definition of small entities non-profit enterprises that are 
independently owned and operated, and are not dominant in their field 
of operation.
    The U.S. Small Business Administration (SBA) stipulates in its size 
standards that the largest a ``for-profit'' railroad business firm may 
be, and still be classified as a small entity, is 1,500 employees for 
``line haul operating railroads'' and 500 employees for ``switching and 
terminal establishments.'' Additionally, 5 U.S.C. 601(5) defines as 
small entities governments of cities, counties, towns, townships, 
villages, school districts, or special districts with populations less 
than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority, FRA has published a final 
Statement of Agency Policy that formally establishes small entities or 
small businesses as being railroads, contractors, and hazardous 
materials offerors that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891 (May 9, 2003) (codified as appendix C to 49 CFR part 
209). The $20 million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. This definition is what PHMSA is using 
for the rulemaking.
Railroads
    Not all small railroads would be required to comply with the 
provisions of this rule. Most of the approximately 738 small railroads 
that operate in the United States do not transport hazardous materials. 
Based on comments from ASLRRA, the rule could potentially affect 160 
small railroads because they transport flammable liquids in HHFTs. 
Therefore, this final rule would impact 22 percent of the universe of 
738 small railroads.
Offerors
    Almost all hazardous materials tank cars, including those cars that 
transport crude oil, ethanol, and other flammable liquids, are owned or 
leased by offerors. The adopted requirements for a testing and sampling 
program will directly affect shippers as they will now be required to 
create a document with a sampling and testing program for unrefined 
petroleum-based products. In addition, some of the other provisions in 
this rulemaking may indirectly affect offerors. DOT believes that a 
majority, if not all, of these offerors are large entities. DOT used 
data from the DOT/PHMSA Hazardous Materials Information System (HMIS) 
database to screen for offerors that may be small entities.
    In analyzing the NPRM, from the DOT/PHMSA HMIS database and from 
industry sources, DOT found 731 small offerors that might be impacted. 
Based on further information available on the companies' Web sites, all 
other offerors appeared to be subsidiaries of large businesses. Also, 
in analyzing the NPRM, PHMSA found that out of these 731, only 297 
owned tank cars that would be affected. All the other 434 offerors 
either did not own tank cars or have tank cars that would not be 
affected by the final rule. Additionally, no small offerors commented 
on PHMSA's ANPRM or NPRM for this proceeding. In both the ANPRM and the 
NPRM, PHMSA invited commenters to bring forth information that might 
assist it in assessing the number of small offerors that may be 
economically impacted by the requirement set forth in the proposed rule 
for development of the FRFA, but received no comments.
    In reviewing SBA guidance for compliance with the Regulatory 
Flexibility Act, PHMSA determined that the appropriate standard for 
determining whether a small entity is impacted by the final rule is not 
whether the entity owns an affected tank car, but whether the entity is 
required to provide a tank car that conforms to the final rule when it 
loads the product. No entity, other the shipper loading the product, is 
required to provide a tank car that conforms to the final rule. Thus an 
entity leasing a tank car to load it is impacted as much as an entity 
owning a tank car to load it.

[[Page 26727]]

    In addition, offerors of unrefined petroleum-based products may be 
subject to the newly adopted sampling and testing plan for all modes of 
transportation. The DOT/PHMSA HMIS database lists 1,568 entities 
described using NAICS 424710 for ``Petroleum Bulk Stations and 
Terminals.'' Of these, 1,444, or 92.09 percent are small entities. In 
addition, offerors of unrefined petroleum-based products may also 
include additional entities. The DOT/PHMSA HMIS database lists 186 
entities described using NAICS 211111 for ``Crude Petroleum and Natural 
Gas Extraction.'' Of these, 122 are small entities. The DOT/PHMSA HMIS 
database lists 58 entities described using NAICS 211112 for ``Natural 
Gas Liquid Extraction.'' Of these, 34 are small entities. It is 
impossible to tell from the database if an entity has been recorded 
multiple times because of a name change or other corporate 
reorganization, such as a merger or acquisition. Likewise, entities 
that have ceased business may remain on the list. The important number 
is the percentage of entities, as both small entities and large 
entities may either have multiple listings or have ceased business. For 
purposes of this analysis, PHMSA assumes that half of the 1,444 small 
entities recorded in the database, or 722 small entities, are actually 
in business and affected by the final rule. In the analysis below, 
assuming a smaller number of entities results in a larger impact per 
entity, and is therefore more conservative.
    (4) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities that will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    For a thorough presentation of cost estimates, please refer to the 
RIA, which has been placed in the docket for this rulemaking.
    This rulemaking has requirements in three areas that address the 
potential risks: (1) Proper classification and characterization of the 
product being transported, (2) operational controls to decrease the 
likelihood of accidents, and (3) tank car integrity. Requirements for 
braking, speed restrictions, and tank car production would not impact 
any small entities. Most small railroads affected by this rule do not 
operate at speeds higher than those imposed for speed restrictions or 
travel long distances over which the reduced speed would cause a 
significant economic impact. Any small railroad that operates at speeds 
30 mph or less would also not be impacted by the braking requirement. 
Additionally, in a February 12, 2014, letter to the Secretary, ASLRRA 
announced that it recommended to its members to voluntarily operate 
unit trains of crude oil at a top speed of no more than 25 mph on all 
routes.
    PHMSA and FRA believe that offerors may see modest increases in 
their lease rates as a result of enhanced tank car standards. PHMSA and 
FRA recognize that new tank car standards could potentially increase 
the rate charged to lessees since tank cars will cost more to construct 
and tank cars owners will seek similar returns on their investments. 
Given competition among suppliers of tank cars, the rates charged will 
be the prevailing market rate, and there will be a tendency for this 
rate to decrease as the supply of enhanced tank cars increases over 
time due to new manufacturing and effective retrofitting practices. To 
that effect, the implementation timeline has been specifically designed 
to incorporate industry data on the current manufacturing and retrofit 
capacity and to minimize short run supply impacts that may increase 
rates before the supply of enhanced tank cars expands.
    Further, commenters have noted that lease rates have gone up in 
recent years. PHMSA and FRA believe, and commenters have confirmed, 
that the primary driver of recent increases in lease rates is due to 
the growth of the transport of crude oil by rail. In other words, 
increased demand for tank cars capable of carrying crude oil, relative 
to their supply, is responsible for most of the increase in lease 
rates. Once this regulation is promulgated and the industry has 
certainty on the new car standard for moving high volume flammable 
liquid shipments, we believe the industry will ramp up construction and 
lease rates will decrease. Additionally, also in the February 12th 
letter to the Secretary, the ASLRRA noted that it will support and 
encourage the development of new tank car standards including, but not 
limited to, adoption of a 9/16-inch tank car shell.
    Section 174.310(a)(3) would expand hazardous materials route 
planning and selection requirements for railroads. This would include 
HHFTs transporting flammable materials and, where technically feasible, 
require rerouting to avoid transportation of such hazardous materials 
through populated and other sensitive areas. Approximately 160 short 
line and regional railroads carry crude oil and ethanol in train 
consists large enough that they would potentially be affected by this 
rule. While PHMSA and FRA believe this number may be an overestimation 
of the number of affected small entities affected this figure was used 
in the FRFA as a conservative estimate.
    The NPRM stated that the affected Class III railroads are already 
compliant with the routing requirements established by HM-232E (71 FR 
76834), and there were no comments on this statement. In general, at 
the time that rule was promulgated, it was assumed that the small 
railroads impacted, due to their limited size, would, on average, have 
no more than two primary routes to analyze. Thus, the potential lack of 
an alternative route to consider would minimize the impact of this 
requirement. Because the distance covered by the small railroads' 
routes is likely contained within a limited geographic region, the 
hours estimated for analyses are fewer than those estimated for the 
larger railroads. Further, because the industry associations have 
developed simplified forms for the routing analysis for use by small 
railroads, and because small railroads usually have a very limited 
number of routing choices, the level of skill required to complete the 
routing analysis for a small railroad is much lower than would be 
required on a larger railroad.
    Finally, this final rule will also require any offeror who offers a 
hazardous material for transportation to develop, implement, and update 
its sampling and testing programs related to classification and 
characterization of the hazardous material if it is an unrefined 
petroleum-based product. PHMSA believes that there would be an initial 
cost for each offeror of approximately $3,200 for the first year, and 
additional costs of $800 annually thereafter. PHMSA believes that this 
section would not significantly burden any of these small entities.
    PHMSA estimates the total cost to each small railroad to be $8,715 
in the first year and $3,637 for subsequent years, with costs growing 
with increases in real wages.\114\ Based on small railroads' annual 
operating revenues, these costs are not significant. Small railroads' 
annual operating revenues range from $3 million to $20 million. 
Previously, FRA sampled small railroads and found that revenue averaged 
approximately $4.7 million (not discounted) in 2006. One percent of 
average annual revenue per small railroad is $47,000. Thus, the costs 
associated with this rule amount to

[[Page 26728]]

significantly less than one percent of the railroad's annual operating 
revenue. PHMSA realizes that some small railroads will have lower 
annual revenue than $4.7 million. However, PHMSA is confident that this 
estimate of total cost per small railroad provides a good 
representation of the cost applicable to small railroads, in general.
---------------------------------------------------------------------------

    \114\ Costs per railroad are derived in the RIA, with line costs 
for all Class III railroads divided by the 160 railroads affected. 
Those costs were $1,394,476 for Year 1, and $581,991 for Year 2. 
Values for subsequent years are increased for anticipated increases 
in real wages.
---------------------------------------------------------------------------

    In conclusion, PHMSA believes that although some small railroads 
will be directly impacted, they will not be impacted significantly as 
the impact will amount to significantly less than one percent of an 
average small railroad's annual operating revenue. Information 
available indicates that none of the offerors will be significantly 
affected by the burdens of the rule. Therefore, these requirements will 
likely not have a significant economic impact on any small entities' 
operations. In the NPRM, PHMSA had sought information and comments from 
the industry that might assist in quantifying the number of small 
offerors who may be economically impacted by the requirements set forth 
in the proposed rule, but did not receive any comments.
    (5) A description of the steps the agency has taken to minimize the 
significant adverse economic impact on small entities consistent with 
the objectives of applicable statutes, including a statement of 
factual, policy, and legal reasons for selecting the alternative 
adopted in the final rule, and why each of the other significant 
alternatives to the rule considered by the agency was rejected.
    PHMSA re-evaluated and re-defined ``High-Hazard Flammable Train'' 
to minimize the significant adverse economic impact on small entities. 
This definition served as the basis for many of the requirements in the 
NPRM and in this final rule. Be revising this definition we have 
narrowed the scope of the rulemaking to more appropriately focus on the 
risks of the transport of large volumes of flammable liquids by rail. 
This narrowing of the scope also limits the impact on small entities. 
We believe the new definition excludes the inclusion of manifest trains 
(which could represent a larger portion of smaller railroads) from the 
requirements of this rule.
    Specifically, PHMSA and FRA revised the definition from ``20 or 
more tank cars in a train loaded with a flammable liquid'' to ``a 
continuous block of 20 or more tank cars or 35 or more cars dispersed 
through a train loaded with a flammable liquid'' based on public 
comment.
    PHMSA and FRA did not intend the NPRM proposed definition to 
include lower risk manifest trains and had crafted the definition with 
the idea of capturing the higher risk bulk shipments seen in unit 
trains. Based on FRA modeling and analysis, 20 tank cars in a 
continuous block loaded with a flammable liquid and 35 tank cars or 
more total dispersed throughout a train loaded with a flammable liquid 
display consistent characteristics as to the number of tank cars likely 
to be breached in a derailment. See ``Definition of High-Hazard 
Flammable Train'' section of this rule for a description of the 
modeling. The operating railroads commented that this threshold will 
exclude lower risk manifest trains and focus on higher risk unit 
trains. It should be noted that commenters also suggested this 
threshold, as it would eliminate the inclusion of most manifest trains 
and focus on unit trains.
    In addition to the above change that effects the entire rulemaking 
action, PHMSA is addressing six requirements areas in this final rule, 
and believes it is appropriate to address the impacts on small entities 
separately for each requirement area.
1. Requirement Area 1--Rail Routing
Adopted Action
    PHMSA and FRA are requiring rail carriers develop and implement a 
plan that will result in the use of a safer and more secure route for 
certain trains transporting an HHFT. This may appear more burdensome 
than it will be, because FRA has helped to develop tools to facilitate 
analysis of routing, working with both the AAR and ASLRRA, ensuring 
that the tool will be readily available to small railroads. To assist 
railroads with evaluating primary and alternative routes for origin-
destination pairs, the U.S. Department of Transportation awarded the 
Railroad Research Foundation (RRF), a non-profit affiliate of AAR, a 
Railroad Safety Technology Grant for a risk management tool that will 
help with the analysis of the 27 factors required in analyzing rail 
routing. The grant provided $1.54 million for enhancement and ongoing 
implementation of the Rail Corridor Risk Management System (RCRMS). 
RCRMS was developed for railroads with alternative routing and is 
therefore not effective for smaller or Class II/III railroads with 
limited route or no alternative routes. These railroads were 
responsible for developing their own analysis and documentation. 
Accordingly the Hazmat Transportation Analytical Risk Model (H-TRAM) 
model was developed as a result of an FRA Grant provided to RRF on 
behalf of ASLRRA. More recently, FRA funded an independent verification 
and validation of the model.
    The rail routing requirements specified in Sec.  172.820 are being 
modified to apply to any HHFT, as the term is defined in this final 
rule (Sec.  171.8; See discussion in HHFT section). Rail carriers would 
be required to assess available routes using, at a minimum, the 27 
factors listed in Appendix D to Part 172 of the HMR to determine the 
safest, most secure routes for security-sensitive hazardous materials. 
Additionally, the requirements of Sec.  172.820(g) require rail 
carriers to establish a point of contact with state and/or regional 
Fusion Centers who coordinate with state, local and tribal officials on 
security issues as well as state, local, and tribal officials that may 
be affected by a rail carrier's routing decisions and who directly 
contact the railroad to discuss routing decisions.
    To assist railroads with evaluating primary and alternative routes 
for origin-destination (OD) pairs, the U.S. Department of 
Transportation awarded the Railroad Research Foundation (RRF), a non-
profit affiliate of the AAR, a Railroad Safety Technology Grant for a 
risk management tool that will help with the analysis of the 27 minimum 
factors to consider. The grant provided $1.54 million for enhancement 
and ongoing implementation of the Rail Corridor Risk Management System 
(RCRMS). RCRMS was developed for railroads with alternative routing and 
is, therefore, not effective for smaller or Class II or Class III 
railroads with limited or no alternative routes. These railroads were 
responsible for developing their own analysis and documentation. 
Accordingly, the Hazmat Transportation Analytical Risk Model (H-TRAM) 
was developed through an FRA Grant provided to RRF on behalf of the 
ASLRRA. Most recently, FRA funded an independent verification and 
validation of the model.
Determination of Need
    There has long been considerable public and Congressional interest 
in the safe and secure rail routing of security-sensitive hazardous 
materials. In 2008, PHMSA, in coordination with FRA and the 
Transportation Security Administration (TSA), issued a final rule 
requiring, among other things, that rail carriers compile annual data 
on certain shipments of explosive, toxic by inhalation (TIH or PIH), 
and Class 7 (radioactive) materials; use the data to analyze safety and 
security risks along rail routes where those materials are transported; 
assess alternative routing options; and make routing decisions

[[Page 26729]]

based on those assessments, 73 FR 20752. These requirements were 
codified at 49 CFR 172.820.
    The 2008 rule also requires rail carriers transporting ``security 
sensitive materials'' to select the safest and most secure route to be 
used in transporting those materials, based on the carrier's analysis 
of the safety and security risks on primary and alternate 
transportation routes over which the carrier has authority to operate.
    The NTSB report of January 23, 2014, stated that at a minimum, the 
route assessments, alternative route analysis, and route selection 
requirements should be extended to key trains transporting large 
volumes of flammable liquid (NTSB Recommendation R-14-4). Additionally, 
in their comment on the NPRM, NTSB stated that the proposal to subject 
carriers transporting HHFTs to the routing requirements in 172.820 
would satisfy the intent of R-14-4.
    Although Class I rail carriers committed to voluntarily apply 
routing requirements to trains carrying 20 carloads or more of crude 
oil as a result of the Secretary's Call-to-Action:
     The voluntary actions do not extend beyond Class I 
railroads;
     The voluntary actions do not apply to all HHFTs;
     The proposed routing requirements would have provided a 
check on higher risk routes or companies; and
     The routing requirements would ensure that rail carriers 
continue their voluntary actions in the future.

Alternatives Considered

Alternative 1: No Action Alternative--Status Quo
    Route planning and route selection provisions currently required 
for explosive, PIH, or Class 7 (radioactive) materials are not required 
for HHFTs. If the rule is not adopted, railroads would not be required 
to conduct route risk analysis nor are they required to reroute 
shipments over lower-risk routes. Specific identified criteria for the 
route and alternate route analyses may not be uniformly considered by 
all railroads, and written analyses of primary and alternate routes 
including safety and security risks would not be required. While the 
railroads are expected to continue voluntarily implementing these 
measures for crude oil, they have not made a similar commitment for 
ethanol trains (though PHMSA believes some of them may do so). The 
costs to society, the government, and the rail industry of an accident 
involving large shipments of flammable liquid are high. If no action is 
taken, the threat of catastrophic accidents in large populated areas or 
other sensitive environments will continue. This option would not 
result in any modification of Sec.  172.820 to include HHFTs. PHMSA and 
FRA are not considering this alternative.
Alternative 2: Apply Routing to HHFTs
    This alternative, adopted in the final rule, applies safety and 
security routing assessments and rerouting to HHFTs. Railroads would be 
required to assess current routing of these trains as well as practical 
alternative routes. Railroads would have to choose the lowest risk 
practical route to move HHFTs. This alternative focuses the routing 
requirements on the flammable liquid shipments that pose the greatest 
risk to public safety. Additionally, the final rule requires rail 
carriers to establish a point of contact with (1) state and/or regional 
Fusion Centers who coordinate with state, local and tribal officials on 
security issues and (2) state, local, and tribal officials that may be 
affected by a rail carrier's routing decisions and who directly contact 
the railroad to discuss routing decisions.
    This alternative requires railroads to balance these factors to 
identify the route that poses the lower risk. As such, they may, in 
certain cases, choose a route that eliminates exposure in areas with 
high population densities but poses a risk for more frequent events in 
areas with very low densities. In other cases the risk of derailment 
may be so low along a section of track that, even though it runs 
through a densely populated area, it poses the lowest total risk when 
severity and likelihood are considered. Glickman's estimate of safety 
improvements achievable by routing changes is based on an examination 
of how routing might vary as a rail carrier applies progressively 
heavier weights on various safety factors.\115\ In practice, it is 
impossible to know how much weight rail carriers will give to safety 
when making routing decisions. As noted above, based on past routing 
plans submitted by rail carriers to FRA for approval, application of 
the routing requirements resulted in modest changes to company routing 
decisions. It is therefore unclear to what extent these requirements 
would improve safety. However, PHMSA believes applying these routing 
requirements to HHFTs would result in a net positive safety benefit.
---------------------------------------------------------------------------

    \115\ Glickman, Theodore S. Erkut, Efhan, and Zschocke, Mark S. 
2007. The cost and risk impacts of rerouting railroad shipments of 
hazardous materials. Accident Analysis and Prevention. 39. 1015-
1025.
---------------------------------------------------------------------------

    Based on the determination of need, minimal cost of implementation 
and a vast majority of commenters supporting the proposal, PHMSA and 
FRA have chosen this alternative. It should be noted that the 
definition of HHFT has been narrowed to a train carrying 20 or more 
loaded tank cars in a continuous block or 35 or more loaded tank cars 
throughout the train consist loaded with flammable liquids (see above 
for discussion on HHFTs). PHMSA and FRA anticipate that this will 
lessen the impact on small businesses such as short line and regional 
railroads by eliminating a large percentage of manifest or mixed 
freight trains.
Impact on Small Entities
    The costs of this alternative are discussed in great detail in the 
RIA. The total burden on small railroads over 20 years, for 160 small 
railroads affected, the cost, discounted at 7 percent. will be 
$7,236,778. The average cost per small railroad will be $45,230 over 20 
years, discounted at 7 percent.
2. Requirement Area 2--Tank Car
Adopted Action
    In this final rule, we are adopting requirements for new tank cars 
constructed after October 1, 2015, used to transport Class 3 flammable 
liquids in an HHFT to meet either the prescriptive standards for the 
DOT Specification 117 tank car (consistent with Option 2 of the NPRM 
except for the braking component) or the performance standards for the 
DOT Specification 117P tank car. Other authorized tank specification as 
specified in part 173, subpart F will also be permitted however, 
manufacture of a DOT specification 111 tank car for use in an HHFT is 
prohibited. In this final rule, we are also adopting retrofit 
requirements for existing tank cars in accordance with proposed Option 
3 from the NPRM (excluding top fittings protection and steel grade). If 
existing cars do not meet the retrofit standard, they will not be 
authorized use in HHFT service after a packing group and tank car 
specification-based implementation timeline. This in effect would adopt 
different constructions standards for new and retrofitted cars used in 
an HHFT.
    Tank cars built to the new standards as adopted in this final rule 
will be designated ``DOT Specification 117.'' In addition, we are 
adopting a performance standard for the design and construction of new 
tank cars or retrofitting of existing tank cars equivalent to the 
prescriptive DOT Specification 117 standards. Thus, a new or 
retrofitted tank car meeting the performance criteria will be 
designated as ``DOT

[[Page 26730]]

Specification 117P.'' Additionally, we are adopting a retrofit standard 
for existing tank cars meeting the DOT Specification 111 or CPC-1232 
standard. A retrofitted tank car meeting the prescriptive standard will 
be designated as ``DOT Specification 117R.'' Please see ``Tank Car 
Specification'' portion of this rulemaking for further detail.
Determination of Need
    Under the HMR, the offeror (shipper) must select a packaging that 
is suitable for the properties of the material. The DOT Specification 
111 tank car is one of several cars authorized by the HMR for the rail 
transportation of many hazardous materials. The DOT Specification 111 
tank car, which can be jacketed or unjacketed, is used for the almost 
all of crude oil and ethanol service by rail.
    The alternatives proposed in the August 1, 2014 NPRM were intended 
to address the survivability of a tank car and to mitigate the damages 
of rail accidents far superior to those of the current DOT 
Specification 111 tank car. Specifically, the alternatives incorporate 
several enhancements to increase tank head and shell puncture 
resistance; thermal protection to survive a pool fire environment; and 
improved top fitting and bottom outlet protection during a derailment. 
These improvements are consistent with several NTSB safety 
recommendations. Under all alternatives, the proposed system of design 
enhancements would reduce the consequences of a derailment of tank cars 
transporting flammable liquids in an HHFT. There will be fewer tank car 
punctures, fewer releases from service equipment (top and bottom 
fittings), and delayed release of flammable liquid from the tank cars 
through pressure relief devices and thermal protection systems.
Alternatives Considered
    On August 1, 2014, PHMSA, in consultation with the FRA, issued an 
NPRM in response to comments submitted as a result of an ANPRM. In the 
NPRM, we proposed three alternatives for newly manufactured tank cars 
to address the risks associated with the rail transportation of Class 3 
flammable liquids in HHFTs. In this final rule, PHMSA considered the 
three tank car options and the status quo to address this emerging risk 
and they are as follows:
No-Action Alternative
    This alternative would continue to authorize the use of the non-
jacketed and jacketed DOT Specification 111 tank cars, including 
upgraded CPC-1232 non-jacketed and jacketed tank cars, for the 
transportation of crude oil and ethanol. This alternative imposes no 
benefits or costs to society as it would require no change to the 
current crude oil and ethanol tank car packaging.
Option 1: PHMSA and FRA Designed Tank Car
    This alternative would mandate that newly manufactured and existing 
tank cars used for flammable liquids in a HHFT meet the Option 1 
prescriptive or performance standard after a certain date in accordance 
with the following:
     286,000 lb. GRL tank car that is designed and constructed 
in accordance with AAR Standard 286;
     Wall thickness after forming of the tank shell and heads 
must be a minimum of \9/16\-inch constructed from TC-128 Grade B, 
normalized steel;
     Thermal protection system in accordance with Sec.  179.18, 
including a reclosing pressure relief device;
     Minimum 11-gauge jacket constructed from A1011 steel or 
equivalent. The jacket must be weather-tight as required in Sec.  
179.200-4;
     Full-height, \1/2\-inch thick head shield meeting the 
requirements of Sec.  179.16(c)(1);
     Bottom outlet handle removed or designed to prevent 
unintended actuation during a train accident;
     ECP brakes; and
     Roll-over protection (i.e., tank car would be equipped 
with a top fittings protection system and nozzle capable of sustaining, 
without failure, a rollover accident at a speed of 9 mph, in which the 
rolling protective housing strikes a stationary surface assumed to be 
flat, level, and rigid and the speed is determined as a linear 
velocity, measured at the geometric center of the loaded tank car as a 
transverse vector) (not applicable to existing tank cars).
    This alternative achieves the highest safety enhancements of any of 
the options considered, and thus is expected to yield the highest 
benefit to safety and the environment. It also has the highest cost of 
any of the three tank car alternatives.
Option 2: AAR 2014 Tank Car (Selected for New Tank Car Construction)
    The second alternative considered is described as the AAR 2014 car. 
This proposed standard was based on the AAR's updated new tank car 
standard, and approximately 5,000 of these new cars have been ordered 
by BNSF Rail Corporation.
    As proposed in the NPRM, the Option 2 car would be required for 
both newly manufactured tank cars and existing tank cars used for 
flammable liquids in a HHFT. Tank cars could meet either the 
prescriptive or an equivalent performance standard. Under this 
alternative, tank cars have most of the safety features as the Option 1 
tank car, including the same increase in shell thickness, but lack TIH 
top fittings protection and ECP brake equipment. In essence, examining 
these cars side by side in the following analysis provides a de facto 
comparison of the costs and benefits of equipping HHFTs with ECP 
braking.
    This alternative provides the second highest benefits and the 
second highest costs of the three tank car options. This option was 
selected for new constructions (See braking section for discussion on 
braking required).
Option 3: Enhanced Jacketed CPC-1232 Tank Car (Selected as Retrofit 
Standard)
    The third alternative considered is an enhanced, jacketed CPC-1232 
tank car. It also has the same improvements made to the bottom outlet 
handle and pressure relieve valve as the Option 1 and Option 2 tank 
cars. This standard is the new tank car configuration PHMSA believes 
would have been built for HHFT service in the absence of regulation, 
based on commitments from two of the largest rail car manufacturers/
leasers.
    As proposed, the Option 3 car would be required for both newly 
manufactured tank cars and existing tank cars used for flammable 
liquids in a HHFT. Tank cars must meet either the prescriptive or 
performance standard in accordance with the proposed phase-out 
schedule. Because the industry has committed to building Enhanced 
Jacketed CPC-1232 standard tank cars for HHFT service, this alternative 
would not impose higher costs for newly manufactured tank cars. It 
would, however, impose costs associated with retrofitting older DOT 
Specification 111 tank cars to the new prescriptive or performance 
standard.
    This alternative tank car design car has all of the safety features 
of the Option 2 car, except that it has \1/8\-inch less shell 
thickness. Additionally, this tank car has most of the safety features 
of the Option 1 tank car, but it also has \1/8\-inch less shell 
thickness, does not have ECP brakes, and does not have TIH top fittings 
protection.
    Although this tank car design is a substantial safety improvement 
over the current DOT Specification 111 tank car, it does not achieve 
the same level of safety as the first two mandated alternatives 
considered. It is, however, the least costly alternative considered. 
This option was selected for retrofitting

[[Page 26731]]

existing tank cars (See braking section for discussion on braking 
required).
Impact on Small Entities
    All small shippers will be directly impacted by this requirement, 
as the shipper is the regulated entity that must provide the packaging 
for shipping, in this case, the tank cars. It does not matter whether 
the small shipper owns the tank cars or leases them. The burden of the 
rulemaking and therefore the cost of tank cars will be imposed on the 
shippers, either through purchase costs, retrofit costs, or through 
higher lease payments. The estimated cost per tank car is a good 
estimate of the final cost to the shippers. A lease transaction only 
changes the method by which a shipper pays for the tank cars.
    As noted above, small shippers are about 92 percent of all 
shippers. PHMSA assumes that small shippers on average ship half as 
much as the average shipper. Therefore, for this analysis, PHMSA 
estimates that small shippers ship 46 percent, half of 92 percent of 
the affected hazardous materials, and PHMSA assumes that they use the 
same percentage of tank cars, and therefore incur as a group, the same 
percentage of the total costs estimated in the economic analysis for 
retrofit of all tank cars. PHMSA's RIA cost estimate for the Final Rule 
tank car mandate is $1.78 billion discounted at 7 percent, and $2.27 
billion discounted at 3 percent. The total burden on small shippers 
will therefore be 46 percent of that, or $0.819 billion discounted at 7 
percent, and $1.04 billion discounted at 3 percent. The average cost 
per small shipper would be $0.819 billion discounted at 7 percent, and 
$1.04 billion discounted at 3 percent divided by 722 shippers, which 
yields costs per small shipper of $1.134 million discounted at 7 
percent, and $1.672 million discounted at 3 percent. However, PHMSA 
believes that small shippers can pass on those costs to other parties 
in the supply chain, because all shippers face the same cost 
constraints. PHMSA believes this is not a substantial burden on any 
affected entity.
3. Requirement Area 3--Speed Restrictions
Adopted Action
    PHMSA is requiring a 50-mph maximum speed limit for HHFTs in all 
areas. This action aligns with existing operational requirements 
imposed by AAR Circular No. OT-55-N. PHMSA expects there will be no 
costs associated with a speed restriction of 50 mph, as this action 
codifies current industry best practices. As such, PHMSA does not 
believe the 50-mph maximum speed limit for HHFTs will affect small 
entities, including small offerors and small railroads that qualify as 
small businesses. Small railroads (Class II and Class III railroads) 
customarily do not operate at speeds in excess of 50 mph, so the impact 
of reducing the maximum speed of HHFTs to 50 mph is expected to be 
minimal and potentially costless.
    In further support of this view, PHMSA refers to a February 12, 
2014 letter to the Secretary from the American Short Line and Regional 
Railroad Association (ASLRRA). In this letter, ASLRRA announced that 
they would recommend a 25-mph speed limit for unit trains carrying 
crude oil on all routes. Thus, small railroads will not be burdened by 
the 50-mph speed limit provided they are adhering to ASLRRA's 
recommended speed restriction.
    PHMSA is also requiring a 40-mph speed limit for HHFTs within the 
limits of a High Threat Urban Area (HTUA), unless all tank cars 
containing flammable liquids meet or exceed the retrofit standards or 
the standards for the DOT Specification 117 tank car. Similar to the 
aforementioned 50-mph speed limit, the 40-mph speed limit for HHFTs in 
HTUAs is also generally consistent with voluntary commitments made by 
AAR ``Railroad Subscribers'' as a result of recent cooperation with the 
Department. Further, given ASLRRA's additional recommendation of a 25-
mph speed limit for certain short line and regional trains carrying 
crude oil, small railroads should not be burdened by the 40-mph speed 
limit in HTUAs. PHMSA believes that most small railroads are adhering 
to ASLRRA's recommendation.
Determination of Need
    Speed is a factor that contributes to derailments. Speed can 
influence the probability of an accident, as it may allow for a brake 
application to stop the train before a collision. Speed also increases 
the kinetic energy of a train resulting in a greater possibility of the 
tank cars being punctured in the event of a derailment. As more tank 
cars are punctured in a derailment, the likelihood and severity of 
releases of hazardous materials into the environment increases. 
Conversely, lower speeds reduce kinetic energy, reducing the 
possibility of puncture in a derailment, which in turn reduces the 
severity of hazardous material releases into the environment.
    The growth in the production and transport of crude oil and ethanol 
in recent years has been accompanied by an increase in the number of 
rail derailments involving crude oil and ethanol. Given the projected 
continued growth of domestic crude oil and ethanol production and 
transport, and the growing number of train accidents involving crude 
oil and ethanol, PHMSA concludes that the potential for future severe 
train accidents involving HHFTs has increased substantially. As our 
organizational mission, PHMSA seeks to improve the safety of the 
transportation of hazardous materials in commerce, which includes 
reducing the incidence and severity of train derailments involving 
hazardous materials. Therefore, PHMSA has adopted certain speed 
restrictions as a way to lessen damages that would occur in the event 
of a derailment and to improve the overall safety of rail 
transportation of large quantities of Class 3 flammable liquids.
Alternatives Considered
    PHMSA considered a range of alternatives relative to the adopted 
speed restrictions. Namely, PHMSA considered; the ``no action'' 
alternative, the various speed restrictions proposed in the NPRM, and 
different speed restrictions proposed by commenters.
Alternative 1: No Action Alternative--Status Quo
    The ``no action'' alternative is the choice to uphold the status 
quo and forego new regulation related to speed restrictions. It is 
equivalent to the current regulatory environment absent this 
rulemaking. There is reason to believe that the ``no action'' 
alternative has some merit. Chiefly, trade associations and the 
industry at-large have made significant efforts to improve railroad 
safety, including the issuance of voluntary or recommended speed 
restrictions. If voluntary speed restrictions were indistinguishable to 
the adopted speed restrictions, and small railroads perfectly and 
uniformly adhered to these voluntary speed restrictions, PHMSA might 
not need to codify the adopted speed restrictions. However, these 
voluntary or recommended speed restrictions are inferior to the 
codified adopted speed restrictions in that they do not carry the 
weight of law. Further, PHMSA was not provided with sufficient evidence 
to show that 100 percent of small railroads were adhering to the 
voluntary or recommended speed restrictions. PHMSA has assumed that 
this kind of adherence is occurring, but cannot certify it. Moreover, 
the adopted speed restrictions are not indistinguishable to the 
voluntary ones. The voluntary speed restrictions apply to ``Key Crude 
Oil Trains,'' or similar trains, whereas PHMSA has expanded the scope 
of the

[[Page 26732]]

rule to include different Class 3 flammable liquids and different high-
risk train configurations. Thus, the ``no action'' alternative is not 
the best course of action.
Alternative 2: 40-mph Speed Limits for HHFTs in all Areas
    The 40-mph speed limits for HHFTs in all areas. This is option 1 in 
the NPRM. In this alternative, all HHFTs are limited to a maximum speed 
of 40 mph, unless all tank cars meet or exceed the performance 
standards for the DOT Specification 117 tank car.
Alternative 3: 40-mph Speed Limit for HHFTs in Populations of More Than 
100,000 People
    The 40-mph speed limits for areas with populations of more than 
100,000 people alternative is option 2 in the NPRM. In this 
alternative, all HHFTs--unless all tank cars containing flammable 
liquids meet or exceed the standards for the DOT Specification 117 tank 
car--are limited to a maximum speed of 40 mph while operating in an 
area that has a population of more than 100,000 people.
Alternative 4: 40-mph Speed Limits for HHFTs in HTUAs
    The 40-mph speed limits for HHFTs in HTUA. This is option 3 in the 
NPRM. In this alternative, all HHFTs--unless all tank cars containing 
flammable liquids meet or exceed the standards for the DOT 
Specification 117 tank car--are limited to a maximum speed of 40 mph 
while the train travels within the geographical limits of HTUAs. This 
was the most cost effective option proposed in the rulemaking.
    In the NPRM, PHMSA proposed three 40-mph speed limits, including 
the adopted 40-mph speed limit in HTUAs, as well as two other 40-mph 
speed limits applicable to all areas and to areas with ``a population 
of more than 100,000 people.'' Thus, PHMSA's consideration of 
alternatives was publicly stated at the NPRM stage, and PHMSA afforded 
the public an opportunity to comment on the validity and expected 
impacts of these proposed speed limits. In the NPRM, the 40-mph speed 
limit in HTUAs was cited as Option 3, and the 40-mph speed limit in all 
areas and the 40-mph speed limit in any area with a population of more 
than 100,000 people were cited as Option 1 and Option 2, respectively.
    Option 1 and Option 2 were not adopted for a variety of reasons 
that affect small and large entities alike. Option 1 and Option 2 are 
not as cost-effective and would be burdensome and overly restrictive 
relative to the 40-mph speed limit in HTUAs (Option 3). This sentiment 
was echoed by many commenters, including ASLRRA. According to PHMSA's 
cost/benefit analysis and commenter input, PHMSA has reason to believe 
that the implementation of Option 1 and Option 2 would create an 
unjustifiable burden on small entities, as well as on large railroads 
and offerors, and thus are not practical alternatives for small 
entities. Please refer to the Final RIA, as well as other sections of 
the rulemaking, for further summary and discussion of the NPRM's 
proposed 40-mph speed limits.
    PHMSA is confident that the adopted speed restrictions--a 40-mph 
speed limit in HTUAs and a 50-mph speed limit for all HHFTs--constitute 
the best course of action and small carriers will be able to comply 
without undue burden. In fact, PHMSA expects that the adopted speed 
restrictions will impose only limited costs on small entities and will 
yield more safety benefits per unit of cost than other alternatives 
over time. ASLRRA's recommendation of a 25-mph speed limit to member 
railroads lends concrete support to this outlook.
Alternative 5--Speed Restrictions Based on Other Geographical Criteria
    In addition to the alternatives proposed in the NPRM, various 
commenters offered alternatives that could be applied to small 
entities, such as small rail carriers. Various commenters suggested 
that PHMSA align the speed restrictions with different geographical 
criteria. Nevertheless, ASLRRA and AAR did not suggest that different 
geographical criteria be applied specifically to small rail carriers. 
On the contrary, ASLRRA's recommended 25-mph speed restriction 
specifically applied to short lines and regional rail lines carrying 
crude oil as a ``unit'' on all routes. Thus, PHMSA does not believe 
that different geographical criteria would be a practical alternative 
for small entities.
Impact on Small Entities
    Most small railroads affected by this rule do not operate at speeds 
higher than the speed restrictions required or travel long distances 
over which the reduced speed would cause a significant impact. 
Additionally, in a February 12, 2014, letter to the Secretary, ASLRRA 
announced that they recommend to their members to voluntarily operate 
unit trains of crude oil at a top speed of no more than 25 mph on all 
routes.
    The only small railroads that are likely to be affected by the 
speed restrictions are those that have relatively short mileage 
connecting two or more larger railroads, and that may operate at speeds 
higher than 30 mph. Those railroads do not originate HHFT, but let the 
larger railroads operate HHFTs over their track. Therefore there will 
be no speed restrictions imposed on these small railroads, only larger 
railroads operating over the small railroads' track.
    The only Class III railroad which both has Class 4 or higher track 
(speeds above 40 mph) and also hauls crude oil or ethanol is also a 
commuter railroad serving a large city, and therefore not a small 
entity. Thus, the speed restrictions will not result in any net impact 
on small entities.
4. Requirement Area 4--Braking
Adopted Action
    PHMSA and FRA are requiring that rail carriers transporting certain 
quantities of flammable liquids to equip trains with advanced braking 
systems. Specifically, this final rule requires all HHFTs operating in 
excess of 30 mph to have enhanced braking systems. At a baseline level, 
any train that contains a continuous block of 20 or more loaded tank 
cars or a total of at least 35 loaded tank cars throughout the train 
consist containing Class 3 flammable liquids (an HHFT) must have in 
place, at a minimum, a functioning two-way EOT device or a DP system to 
assist in braking.
    With longer, heavier trains it is necessary to factor in train 
control issues. Therefore, PHMSA and FRA have specific braking 
requirements for trains that are transporting 70 or more loaded tank 
cars of Class 3 flammable liquids (referred to as high-hazard flammable 
trains or ``HHFUTs'') at speeds in excess of 30 mph. By January 1, 
2021, any HHFUT transporting one or more tank car loaded with a Packing 
Group I flammable liquid will be required operate using an ECP brake 
system that complies with the requirements of 49 CFR part 232, subpart 
G. All other HHFUTs must be equipped with operative ECP brake systems 
by May 1, 2023, when traveling in excess of 30 mph.
Determination of Need
    Braking systems reduce kinetic energy and therefore help prevent 
and mitigate the effects of train accidents. Since the First Safety 
Appliance Act of March 2, 1893, freight train operations in the U.S. 
have traditionally relied on air brakes to slow and stop a train. This 
conventional air brake system has proven to be reliable, but it has 
drawbacks. When a train is long and heavy, as is typically the case in 
the context of an HHFT, a conventional air brake system can easily take 
over one-half mile to bring a train

[[Page 26733]]

to a stop, even with the emergency brakes applied. Moreover, the length 
of a train will significantly affect the time it takes for the 
conventional air brakes to apply to the entire consist. It can take a 
number of seconds for the air brake system to function as air is 
removed from the system to engage the brakes, beginning with the cars 
nearest to the locomotive and working towards the rear of the train. 
For example, in a 100-car train it could take up to 16 seconds as the 
brakes fully apply sequentially from front-to-back. This lag in air 
brake application time from the front to the back of the train also can 
result in significant in-train buff and draft forces. These in-train 
forces can lead to wheel damage (e.g. slid flat spots) and can 
negatively impact rail integrity as these flat spots create a vertical 
impact force (``pounding'') on the rails. These are major contributing 
factors to derailments. In-train forces resulting from the application 
of conventional air brakes also can directly contribute to derailments, 
particularly in emergency situations, as freight cars can be forcefully 
bunched together when the train is brought to a stop quickly. These 
forces may also be amplified by the longitudinal slosh effect of a 
liquid lading, such as crude oil or ethanol. Such factors have led 
PHMSA and FRA to consider advanced brake signal propagation systems as 
a way to improve safety in the transportation of Class 3 flammable 
liquids by rail, particularly with respect to longer trains 
transporting 70 or more tank cars loaded with Class 3 flammable 
liquids. These more advanced systems have the capability to stop trains 
more quickly and reduce the number of braking-induced derailments.
Alternatives Considered
Alternative 1: No Action Alternative--Status Quo
    If the braking requirements were not adopted, the damages estimated 
in the absence of this rulemaking would not be reduced, where possible, 
by advanced braking options. This alternative would also impose no 
costs. This alternative would also not codify voluntary agreements 
between the Class I railroads and the Department for Key Crude Oil 
trains. While those voluntary agreements would remain in place, it 
would not expand the requirements for advanced braking to other trains 
transporting flammable liquids that have been identified as high risk, 
nor would it include a requirement for ECP braking systems. PHMSA and 
FRA have not chosen this alternative.
Alternative 2: Two-Way End of Train Devices or Distributed Power
    Alternative 2 would require each HHFT to be equipped and operated 
with either a two-way EOT device, as defined in 49 CFR 232.5 of this 
title, or DP, as defined in 49 CFR 229.5 of this title. This 
alternative would not mandate a requirement for ECP braking systems. 
Additionally, this alternative is closest to the voluntary agreements 
differing in that it applies to HHFTs and not a Key Crude Oil train. 
PHMSA and FRA believe this alternative would result in decrease in the 
number of tank cars punctured in a derailment by 13-16% compared to 
conventional braking systems. This alternative was considered but was 
not chosen.
Alternative 3 (Applicable to Tank Car Option 1 Only): Alternative 2, 
Plus ECP on All Newly Constructed and Retrofitted DOT Specification 117 
Cars
    This is the alternative proposed in the NPRM. Alternative 3 would 
require an HHFT to be equipped and operated with either a two-way EOT 
device, as defined in 49 CFR 232.5 of this title, or DP, as defined in 
49 CFR 229.5 of this title. Additionally, a tank car manufactured in 
accordance with proposed Sec.  179.202 or Sec.  179.202-11 for use in a 
HHFT would be equipped with ECP brakes. HHFTs comprised entirely of 
tank cars manufactured in accordance with proposed Sec.  179.202 and 
Sec.  179.202-11 (for Tank Car Option 1 the PHMSA and FRA Designed Car, 
only), except for required buffer cars, would be operated in ECP brake 
mode as defined by 49 CFR 232.5. To reduce the burden on small carriers 
that may not have the capital available to install new braking systems, 
we proposed an exception. If a rail carrier does not comply with the 
proposed braking requirements above, we proposed that the carrier may 
continue to operate HHFTs at speeds not to exceed 30 mph.
Alternative 4: Tiered Braking Requirements Based on HHFTs and HHFUTs 
(Selected Alternative)
    This alternative would require that rail carriers transporting 
certain quantities of flammable liquids to equip trains with advanced 
braking systems. Specifically, this alternative would require all HHFTs 
operating in excess of 30 mph to have enhanced braking systems. At a 
baseline level, any train that contains a continuous block of 20 or 
more loaded tank cars or a total of at least 35 loaded tank cars 
throughout the train consist containing Class 3 flammable liquids (an 
HHFT) must have in place, at a minimum, a functioning two-way EOT 
device or a DP system to assist in braking.
    With longer, heavier trains it is necessary to factor in train 
control issues. Therefore, this alternative would require specific 
braking requirements for trains that are transporting 70 or more loaded 
tank cars of Class 3 flammable liquids at speeds in excess of 30 mph. 
Under this alternative, by January 1, 2021, any high-hazard flammable 
unit train (HHFUT) containing one or more tank cars loaded with a 
Packing Group I flammable liquid, operating in excess of 30 mph must 
have a functioning ECP brake system that complies with the requirements 
of 49 CFR part 232, subpart G. Whereas all other HHFUTs must be 
equipped with operative ECP brake systems by May 1, 2023, when 
traveling in excess of 30 mph. This was the selected option.
Impacts on Small Entities
    Most small railroads affected by this rule do not operate at speeds 
higher than the speed restrictions required or travel long distances 
over which the reduced speed would cause a significant impact. Any 
small railroad that operates at speeds 30 mph or less would also not be 
impacted by the braking requirement. Additionally, in a February 12, 
2014, letter to the Secretary, ASLRRA announced that they recommend to 
their members to voluntarily operate unit trains of crude oil at a top 
speed of no more than 25 mph on all routes.
    ASLRRA commented to the docket that small railroads often operate 
older locomotives, and that retrofitting those locomotives to work with 
ECP brakes would be cost-prohibitive. PHMSA believes that the railroads 
that have the older locomotives hauling HHFTs are the same railroads 
that would not be adversely impacted by operating trains at speeds of 
30 mph or less.
    The only small railroads that are likely to be affected by the 
braking requirements are those that have relatively short mileage 
connecting two or more larger railroads, and that may operate at speeds 
higher than 30 mph. Those railroads do not originate HHFT, but let the 
larger railroads operate HHFTs over their track. PHMSA believes that 
all HHFTs from larger railroads will be assembled so that locomotives 
and cars with ECP brakes are kept together, so there will be no speed 
restrictions imposed. Thus, the speed restrictions will not result in 
any net impact on small entities.

[[Page 26734]]

5. Requirement Area 5--Classification of Unrefined Petroleum-Based 
Products
Adopted Action
    The final rule requires any offeror of unrefined petroleum-based 
products for transportation to develop, implement, and update a 
sampling and testing program related to the classification and 
identification of properties for packaging selection of these materials 
(see ``Summary and Discussion of Public Comments'' for plan details). 
PHMSA believes that there would be an initial cost for each offeror of 
approximately $3,002 for the first year, and additional costs of $810 
annually thereafter, for a total value, discounted at 7 percent over 20 
years, of $10,514. PHMSA believes that this adopted section will not 
significantly burden any of these small entities.
Determination of Need
    The offeror's responsibility to classify and describe a hazardous 
material is a key requirement under the HMR. Improper classification 
and failure to identify applicable material properties can have 
significant negative impacts on transportation safety. Proper 
classification is necessary ensure proper packaging, operational 
controls, and hazard communication requirements are met, all of which 
are important to mitigate the negative effects of a train derailment or 
other hazardous materials incident.
    While the classification of manufactured products is generally well 
understood and consistent, unrefined petroleum-based products 
potentially have significant variability in their properties as a 
function of history, location, method of extraction, temperature at 
time of extraction, and the type and extent of conditioning or 
processing of the material. Manufactured goods and refined products, by 
definition, are at the other end of the spectrum from unrefined or raw 
materials. This means that the physical and chemical properties are 
more predictable as they are pure substances or well-studied mixtures. 
PHMSA and FRA audits of crude oil loading facilities, prior to the 
issuance of the February 26, 2014. Emergency Restriction/Prohibition 
Order, indicated that the classification of crude oil being transported 
by rail was often based solely on a Safety Data Sheet (SDS). The 
information is generic, providing basic data and ranges of values for a 
limited number of material properties. In these instances, it is likely 
no validation of the information is performed at an interval that would 
allow for detection of variability in material properties.
Alternatives Considered
Alternative 1: No Action Alternative--Status Quo
    The industry would continue the status quo and sample the material 
based on the existing classification and characterization methods. Rail 
derailment and other accidents involving shipments of crude oil or 
other unrefined petroleum-based products that have been improperly 
classified may create potential risks for emergency responders. If 
PHMSA had adopted alternative 1, then there would be no added costs or 
benefits to the rule.
Alternative 2: Require Sampling and Testing Program for Mined Liquids 
and Gases as Proposed in NPRM
    Under this alternative, PHMSA would require a documented sampling 
and testing plan for shippers of these mined gases and liquids in 
transportation. This plan would enable PHMSA and shippers of this 
commodity to more easily ascertain the specific classification and 
characteristics of the commodity and help to minimize potential risks 
when responding to a derailment and accident. Offerors would also 
certify that program is in place, document the testing and sampling 
program, and make program information available to DOT personnel, upon 
request.
    This option was proposed in rulemaking, but only offerors 
petroleum-based products (i.e. petroleum crude oil, liquefied petroleum 
gas, and natural gas) were analyzed for the IRFA and in the draft RIA. 
Commenters did not provide sufficient data to justify expanding the 
definition beyond petroleum-based products. A detailed analysis of this 
option is provided in the final RIA,, but it is not adopted in this 
final rule.
Alternative 3: Require Sampling and Testing Program for Unrefined 
Petroleum Based Products.
    This is the alternative adopted in this rulemaking. Under this 
alternative, PHMSA requires a documented sampling and testing plan for 
offerors of unrefined petroleum-based products in transportation. This 
plan will enable PHMSA and shippers of this commodity to more easily 
ascertain the specific classification and properties of the commodity 
and help to minimize potential risks when responding to a derailment or 
other accident. Offerors must also certify that program is in place, 
document the testing and sampling program, and make program information 
available to DOT personnel, upon request.
    This revised definition narrows the scope of affected offerors from 
those offering all ``mined liquids and gases'' to only ``unrefined 
petroleum-based products.'' While the savings from the proposed 
definitions are not quantified, the clarification ensures that 
additional offerors will not be inadvertently impacted.
Impact on Small Entities
    PHMSA believes that there would be an initial cost for each offeror 
of approximately $3,002 for the first year, and additional costs of 
$810 annually thereafter, for a total value, discounted at 7 percent 
over 20 years, of $10,514. PHMSA believes that this adopted section 
will not significantly burden any of these small entities.
6. Requirement Area 6--Notification
Adopted Action
    On May 7, 2014, DOT issued an Emergency Order \116\ (``the Order'') 
requiring each railroad transporting one million gallons or more of 
Bakken crude oil in a single train in commerce within the U.S. to 
provide certain information in writing to the SERCs for each state in 
which it operates such a train. The notification made under the Order 
included estimated frequencies of affected trains transporting Bakken 
crude oil through each county in the state, the routes over which it is 
transported, a description of the petroleum crude oil and applicable 
emergency response information, and contact information for at least 
one responsible party at the host railroads. In addition, the Order 
required that railroads provide copies of notifications made to each 
SERC to FRA upon request and to update the notifications when Bakken 
crude oil traffic materially changes within a particular county or 
state (a material change consists of 25 percent or greater difference 
from the estimate conveyed to a state in the current notification). In 
the August 1, 2014 NPRM, PHMSA proposed to codify and clarify the 
requirements of the Order and requested public comment on the various 
parts of the proposal.
---------------------------------------------------------------------------

    \116\ Docket No. DOT-OST-2014-0067 (Order).
---------------------------------------------------------------------------

    After careful consideration of the comments and after discussions 
within PHMSA and FRA, we believe that for the final rule using the 
definition of the HHFT for notification applicability is a more 
conservative approach for affecting safer rail transportation of 
flammable liquid material; and is a more consistent approach because it 
aligns with the changes to other operational requirements, including 
routing.

[[Page 26735]]

    The primary intent of the Order was to eliminate unsafe conditions 
and practices that create an imminent hazard to public health and 
safety and the environment. Specifically, the Order was designed to 
inform communities of large volumes of crude oil transported by rail 
through their areas and to provide information to better prepare 
emergency responders for accidents involving large volumes of crude 
oil. DOT issued the Order under the Secretary's authority to stop 
imminent hazards at 49 U.S.C. 5121(d). The Order was issued in response 
to the crude oil railroad accidents previously described, and it is in 
effect until DOT rescinds the Order or a final rule codifies 
requirements and supplants the requirements in the Order.
    The adopted action is that DOT is removing the notification 
requirement language proposed in the NPRM and is instead using as a 
substitute the contact information language requirement that is already 
part of the additional planning requirements for transportation by rail 
found in Sec.  172.820 of the HMR that now applies to HHFTs. As 
provided in Sec.  172.820(g), each HHFT must identify a point of 
contact (including the name, title, phone number and email address) 
related to routing of materials identified in Sec.  172.820 in its 
security plan and provide this information to: (1) State and/or 
regional Fusion Centers (established to coordinate with state, local 
and tribal officials on security issues and which are located within 
the area encompassed by the rail carrier's system); and (2) State, 
local, and tribal officials in jurisdictions that may be affected by a 
rail carrier's routing decisions and who directly contact the railroad 
to discuss routing decisions.
Determination of Need
    Recent accidents have demonstrated the need for action in the form 
of additional communication between railroads and emergency responders 
to ensure that the emergency responders are aware of train movements 
carrying large quantities of flammable liquid through their communities 
in order to better prepare emergency responders for accident response.
Alternatives Considered
Alternative 1: No Action Alternative--Status Quo
    This alternative would maintain implementation of the Order issued 
on May 7, 2014. PHMSA estimated there are essentially no new costs 
associated with this alternative, and thus no burdens on small 
entities, because rail carriers are already subject to the Order.
Alternative 2: Utilizing Rail Routing POC for HHFTs
    This alternative utilizes the contact information language 
requirement that is already part of the additional planning 
requirements for transportation by rail found in Sec.  172.820 of the 
HMR. As provided in Sec.  172.820(g), each HHFT must identify a point 
of contact (including the name, title, phone number and email address) 
related to routing of materials identified in Sec.  172.820 in its 
security plan and provide this information to: (1) State and/or 
regional Fusion Centers (established to coordinate with state, local 
and tribal officials on security issues and which are located within 
the area encompassed by the rail carrier's system); and (2) State, 
local, and tribal officials in jurisdictions that may be affected by a 
rail carrier's routing decisions and who directly contact the railroad 
to discuss routing decisions.
    This is the favored alternative since it adds no additional cost 
and provides for consistency of notification requirements for rail 
carriers transporting material subject to routing requirements, i.e. 
trains carrying: (1) More than 2,268 kg (5,000 lbs.) in a single 
carload of a Division 1.1, 1.2 or 1.3 explosive; (2) a quantity of a 
material poisonous by inhalation in a single bulk packaging; (3) a 
highway route-controlled quantity of a Class 7 (radioactive) material; 
and now (4) Class 3 flammable liquid as part of a high-hazard flammable 
train (as defined in Sec.  171.8). This option also addresses security 
sensitive and business related confidentiality issues that many 
comments addressed.
Alternative 3: Rescinding Emergency Order With No Corresponding 
Regulatory Change
    This alternative effectively would return to the status quo prior 
to the publication of the emergency order. This EO was designed to 
inform communities of large volumes of crude oil transported by rail 
through their areas and to provide information to better prepare 
emergency responders for accidents involving large volumes of crude 
oil. As the primary intent of this EO was to eliminate unsafe 
conditions and practices that created an imminent hazard to public 
health and safety and the environment removal of this order without a 
corresponding action to reduce the risk is not acceptable and thus not 
selected.
Impacted on Small Entities
    Small entities affected by this provision have been providing 
notification for crude oil shipments under the Emergency Order. As the 
notification utilizes the contact information language requirement that 
is already part of the additional planning requirements for 
transportation by rail found in Sec.  172.820 of the HMR the impact on 
the small entities is included in the routing impacts. For a discussion 
of those impacts see the routing section of the FRFA.
7. Total Burden on Small Entities
Small Offerors Other Than Shippers
    There will be no burden on small offerors that are not shippers, 
except those who must classify mined liquids and gases. Those small 
entities will face a total cost, discounted at 7 percent over 20 years, 
of $10,514 per small entity.
Small Shippers
    The total impact per small shipper, before considering market 
forces, discounted at 7 percent over twenty years, will be $1.134 
million discounted at 7 percent, and $1.672 million discounted at 3 
percent, the costs of upgrading tank cars. However, PHMSA believes that 
small shippers can pass on those costs to other parties in the supply 
chain, because all shippers face the same cost constraints.
Small Railroads
    The total impact per small railroad, discounted at 7 percent over 
twenty years, will be $45,230, the cost of routing analysis.
    PHMSA has identified no additional significant alternative to this 
final rule that meets the agency's objective in promulgating this rule, 
and that would further reduce the economic impact of the rulemaking on 
small entities.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d) of Title 5 
of the CFR requires that PHMSA provide interested members of the public 
and affected agencies an opportunity to comment on information and 
recordkeeping requests. In the August 1, 2014 NPRM, PHMSA requested a 
new information collection from the Office of Management and Budget 
(OMB) under OMB Control No. 2137-0628 entitled ``Flammable Hazardous 
Materials by Rail Transportation.'' PHMSA stated

[[Page 26736]]

that the NPRM may result in an increase in annual burden and costs 
under OMB Control No. 2137-0628 due to proposed requirements pertaining 
to the creation of a sampling and testing program for mined gas or 
liquid and rail routing for HHFTs, routing requirements for rail 
operators, and the reporting of incidents that may occur from HFFTs.
    In the NPRM, we requested comment on whether PHMSA should require 
reporting of data on the total damages that occur as a result of train 
accidents involving releases of hazardous material, including damages 
related to fatalities, injuries, property damage, environmental damage 
and clean-up costs, loss of business and other economic activity, and 
evacuation-related costs. Currently, PHMSA only collects some of this 
information, and data verification is inconsistent. Further, we 
requested comments on whether PHMSA should require reporting on every 
car carrying hazardous material that derails, whether that car loses 
product or not. Such reporting would assist PHMSA in assessing the 
effectiveness of different kinds of cars in containing the hazardous 
materials that they carry. In response to the NPRM, PHMSA received 
general comments from the following individuals related to information 
collection:
American Fuel & Petrochemical Manufacturers (AFPM)
    The AFPM commented that the criteria for modifying the sampling and 
testing program and what it seeks to address is vague. It adds that 
this will be another unnecessary paperwork requirement with no 
corresponding benefit. The AFPM survey and other studies confirm that 
Bakken Crude oils are correctly classified. They maintain that 
identification of flammable liquids by geographic, regional, or even a 
particular country of origin serves no known purpose except to impose 
unnecessary paperwork requirements.
    We disagree that expanding existing classification requirements 
will not impact transportation safety. PHMSA and FRA audits of crude 
oil facilities indicated the classification of crude oil transported by 
rail was often based solely on a SDS. While the classification of 
manufactured products is generally well-understood and consistent, 
unrefined petroleum-based products potentially have significant 
variability in their properties as a function of time, location, method 
of extraction, temperature at time of extraction, and the type and 
extent of conditioning or processing of the material. As such, we feel 
it is necessary to require development and adherence to a consistent 
and comprehensive sampling and testing program, and to provide 
oversight for such a program.
Waterkeeper Alliance
    The Waterkeeper Alliance noted that according to the proposed 
regulations, the new sampling and testing program must be ``documented 
in writing and retained while it remains in effect.'' Specifically, 
PHMSA is requiring that offerors keep on hand the most recent versions 
of the program documentation, provide that version to employees 
responsible for conducting the testing, and provide documentation to 
the DOT upon request. Waterkeeper recommended that PHMSA should, at a 
minimum, require that this information be submitted to FRA (and the 
public, upon request) and be kept on hand with the railroad or offeror 
so that responsible packaging decisions can be made based on that data.
    PHMSA did not propose requiring third-party involvement with 
testing or submitting test results to a third party in the NPRM and, as 
such, is not adopting any such requirements. PHMSA did not propose 
regulatory changes to classification test procedures, and as such, is 
not adopting any such requirements. Furthermore, in the NPRM, PHMSA 
stated that we are not proposing a requirement for the retention of 
test results.
Bridger LLC
    In the August 1, 2014 NPRM, PHMSA posed the question, ``PHMSA 
assumes no unjacketed tank cars would be in PG I service in 2015 and 
2016, in the absence of this rule. Does this assumption match the 
expected service of unjacketed tank cars?'' Bridger firmly answered no, 
and in its comments asserted, ``Bridger note[d] that PHMSA assumes no 
non-jacketed tank cars would be in PG I service in 2015 and 2016, in 
the absence of this rule. Bridger adds that, ``PHMSA is under a 
mistaken belief that railcar manufacturers have stopped marketing 
railcars that are not Enhanced CPC-1232 railcars.'' Further, Bridger 
LLC stated that ``before PHMSA makes this key assumption regarding the 
rule, it should require the railcar manufacturers to provide accurate 
data and information regarding its marketing and manufacturing 
activities, issuing an information collection notice if necessary.'' 
Based on the substantive public comment received in response to the 
NPRM, in this final rule, PHMSA is confident its revised assumptions 
regarding fleet composition and new and existing outstanding tank car 
order configurations precludes the need to prepare an information 
collection notice.
George Washington University
    The George Washington University urged PHMSA to be consistent with 
the requirements of the Paperwork Reduction Act, and with the text of 
its proposal. The George Washington University added PHMSA should 
commit to collecting the information needed to measure the rule's 
success.
Sampling and Testing Plans
    In the NPRM PHMSA used data from the Hazmat Intelligence Portal 
from June 2014. For the Final Rule PHMSA pulled updated data from 
November 2014 and now estimates that there will be approximately 1,804 
respondents up from 1,538, based on a review of relevant active 
registrations on the PHMSA Hazmat Intelligence Portal, each developing 
an average of one sampling and testing plan each year. First year 
hourly burden is estimated at 40 hours per response, or 72,160 burden 
hours; hourly burden for each subsequent year is estimated at 10 hours 
per response, or 18,040 burden hours. PHMSA assumes a Chemical Engineer 
is the labor category most appropriate to describe sampling 
methodologies, testing protocols, and present test results. The mean 
hourly wage for a Chemical Engineer was $45.56 in 2014, according to 
the Bureau of Labor Statistics. We inflate this wage by 60 percent to 
account for fringe benefits and overhead of $27.94 per hour, for a 
total weighted hourly wage of $75.05. At an average hourly cost of 
$75.05 per hour, first year burden cost for this proposed requirement 
is estimated at $5,415,605.00; burden cost for each subsequent year is 
estimated at $1,353,902.00.
Routing--Collection by Line Segment
    PHMSA estimates that there will be approximately 170 respondents 
(10 for Class II Railroads; 160 for Class III Railroads) each 
submitting an average of one routing collection response each year, and 
each subsequent year. Hourly burden is assumed to be 40 hours per 
response, or 6,800 burden hours each year. PHMSA used a labor rate that 
combines two employee groups listed in the Bureau of Labor Statistics 
May 2012 Industry-Specific Occupational Employment and Wage Estimates: 
NAICS 482000--Rail Transportation occupational code 11-0000 
``Management Occupations'' and occupation code 43-6011 ``Executive 
Secretaries and Executive Administrative Assistants.'' A combination of 
these two groups will

[[Page 26737]]

probably be utilized to perform the requirements in this proposed rule. 
The average annual wages for these groups are $100,820 and $54,520 
respectively. The resulting average hourly wage rate, including a 60 
percent increase to account for overhead and fringe benefits, is 
$62.25. At an average hourly cost of $62.25 per hour, burden cost for 
the first year and each subsequent year is estimated at $423,300.00.
Routing Security Analysis
    For the first year, PHMSA estimates that there will be 
approximately 170 respondents (10 for Class II Railroads; 160 for Class 
III Railroads). Class II Railroads are expected to submit 170 routing 
security analysis responses per year, based on the number of feasible 
alternate routes to consider after future possible network changes, 
with each response taking approximately 80 hours each, or 4,000 hours. 
At an average hourly cost of $62.25 per hour, first year burden cost 
for Class II Railroads is estimated at $249,000.00. Class III Railroads 
are expected to submit 320 routing security analysis responses per 
year, with each response taking approximately 40 hours, or 12,800 
hours. At an average hourly cost of $62.25 per hour, first year burden 
cost for Class III Railroads is estimated at $796,800.00. Railroads 
will also be required to provide an alternate routing security 
analysis. Class II Railroads are expected to submit 40 routing security 
analysis responses per year, based on the number of feasible alternate 
routes to consider after future possible network changes, with each 
response taking approximately 120 hours each, or 4,800 hours. At an 
average hourly cost of $62.25 per hour, first year burden cost for 
Class II Railroads is estimated at $298,800.00. Class III Railroads are 
expected to submit 160 alternate routing security analysis responses 
per year, with each response taking approximately 20 hours, or 3,200 
hours. At an average hourly cost of $62.25 per hour, first year burden 
cost for Class III Railroads is estimated at $199,200.00.
    PHMSA assumes that new route analyses are necessary each year based 
on changes in commodity flow, but that after the first year's route 
analyses are completed, analyses performed on the same routes in 
subsequent years will take less time. For each subsequent year, PHMSA 
estimates that there will be approximately 170 respondents (10 for 
Class II Railroads; 160 for Class III Railroads). Class II Railroads 
are expected to submit 50 routing security analysis responses per year, 
with each response taking approximately 16 hours each, or 800 hours. At 
an average hourly cost of $62.95 per hour, subsequent year burden cost 
for Class II Railroads is estimated at $49,800.00. Class III Railroads 
are expected to submit 320 routing security analysis responses per 
year, with each response taking approximately 8 hours, or 2,560 hours. 
At an average hourly cost of $62.95 per hour, first year burden cost 
for Class III Railroads is estimated at $159,360.00. Railroads will 
also be required to provide an alternate routing security analysis. For 
each subsequent year, PHMSA estimates that there will be approximately 
170 respondents (10 for Class II Railroads; 160 for Class III 
Railroads). Class II Railroads are expected to submit 40 routing 
alternate security analysis responses per year, with each response 
taking approximately 12 hours each, or 480 hours. At an average hourly 
cost of $62.95 per hour, subsequent year burden cost for Class II 
Railroads is estimated at $29,800.00. Class III Railroads are expected 
to submit 160 alternate routing security analysis responses per year, 
with each response taking approximately 2 hours, or 320 hours. At an 
average hourly cost of $62.95 per hour, first year burden cost for 
Class III Railroads is estimated at $19,920.00.
Incident Reporting
    PHMSA estimates there will be 289 incidents over 20 years, for an 
average of 15 incidents per year, involving the derailment and release 
of crude oil/ethanol. Each report would be submitted by a single 
respondent and would take approximately 2 additional hours to submit 
per response, compared to the current requirements. At an average 
hourly cost of $62.95 per hour, burden cost is estimated at $1,825.55. 
We do not currently have sufficient data to estimate the number of 
respondents and responses that would be required if PHMSA extended 
incident reporting requirements to derailments not involving a product 
release.
Total
    We estimate that the total information collection and recordkeeping 
burden for the requirements as specified in this final rule will be as 
follows:
    OMB No. 2137-0628, ``Flammable Hazardous Materials by Rail 
Transportation'' First Year Annual Burden:
    Total Annual Number of Respondents: 1,989.
    Total Annual Responses: 2,559.
    Total Annual Burden Hours: 103,789.
    Total Annual Burden Cost: $7,384,533.55.
    Subsequent Year Burden:
    Total Annual Number of Respondents: 1,989.
    Total Annual Responses: 2,559.
    Total Annual Burden Hours: 29,029.
    Total Annual Burden Cost: $2,037,988.
    Requests for a copy of this information collection should be 
directed to Steven Andrews or T. Glenn Foster, Office of Hazardous 
Materials Standards (PHH-12), Pipeline and Hazardous Materials Safety 
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001, 
Telephone (202) 366-8553.

G. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 
4321-4375), requires that Federal agencies analyze the environmental 
impacts of proposed actions. If an agency does not anticipate that a 
proposed action will have a significant impact on the environment, the 
Council on Environmental Quality (CEQ) regulations provide for the 
preparation of an environmental assessment (EA) to determine whether a 
proposed action has significant effects and therefore requires an 
environmental impact statement or finding of no significant impact 
(FONSI). The EA must include discussions of (1) the need for the 
proposed action, (2) alternatives to the proposed action as required by 
NEPA section 102(2)(E), (3) the environmental impacts of the proposed 
action and alternatives, and (4) the agencies and persons consulted (40 
CFR 1508.9(b)).
    This Final EA includes responses to public comments received on the 
EA in the NPRM. One change in the Final EA is the addition of an 
alternative in response to various comments for expedited DOT 
Specification 111 (DOT-111) tank car usage discontinuance, 
``Alternative of 2018 Removal of DOT-111 Tank Cars from Service.'' 
PHMSA has likewise not carried the ``ANPRM Alternative,'' found in the 
NPRM draft EA, forward in this Final EA. This is because the ANPRM 
included several actions that are not within the scope of this 
rulemaking. As discussed below, PHMSA considered, but eliminated from 
detailed consideration, an immediate removal of DOT-111 tank cars. 
Lastly, this Final EA now also includes additional data and 
calculations to support discussions.
1. Need for the Proposal
    The purpose of this rulemaking is to address serious safety and 
environmental concerns revealed by recent train accidents involving 
high-hazard flammable trains (HHFTs). This final rule is designed to 
lessen the

[[Page 26738]]

frequency and consequences of train accidents involving the 
unintentional release flammable liquids from HHFTs. The purpose of the 
regulations for enhanced tank car standards and operational controls 
for high-hazard flammable trains is to prevent spills by keeping 
flammable liquids, including crude oil and ethanol, in rail tank cars 
and mitigating the severity of incidents should they occur.
    U.S. crude oil production has risen sharply in recent years, with 
much of the increased output moving by rail. In 2008, U.S. Class I 
railroads originated 9,500 carloads of crude oil. In 2013, the number 
of rail carloads of crude oil surpassed 400,000. The Association of 
American Railroads (AAR) reported 229,798 carloads in the first half of 
2014. In 2013, there were over 290,000 carloads of ethanol originated 
in the United States. This data suggests an increasing need to 
transport flammable liquids by rail.
    The growing reliance on trains to transport large volumes of 
flammable liquids, particularly crude oil and ethanol, under the 
current regulatory framework, poses a risk to life, property, and the 
environment. These risks of HHFTs have been highlighted by the recent 
derailments of trains carrying crude oil in Casselton, North Dakota; 
Aliceville, Alabama; Lac-M[eacute]gantic, Quebec, Canada and Mount 
Carbon, West Virginia and recent derailments of trains carrying ethanol 
in Arcadia, Ohio and Cherry Valley, Illinois. This rule also addresses 
the National Transportation Safety Board (NTSB) recommendations 
regarding accurate classification, enhanced tank car integrity, rail 
routing, and oversight.
2. Alternatives
    In developing this rule, PHMSA considered the following 
alternatives:
No Action Alternative
    In the no action alternative, PHMSA would not issue a final rule, 
and the current regulatory standards would remain in effect. This would 
allow for the indefinite continued use of the DOT-111 tank cars to 
transport crude oil and ethanol.
    In addition, the no action alternative would result in no new 
operational controls. Specifically, a classification and sampling plan 
would not be adopted. Selection of the no action alternative would not 
include mandates to sample and test materials, and carriers/offerors 
might engage or continue to engage in the practice of using inaccurate 
safety data sheets (SDSs) to classify their products. HHFT carriers 
also would not be required to consider the 27 safety and security 
factors to determine routing. Moreover, if PHMSA selected the no action 
alternative, the requirement to communicate with state and/or regional 
fusion centers about routing decisions would not take effect, and 
information would not be as easily available to authorized 
personnel.\117\ If PHMSA selected the no action alternative, no new 
speed restrictions would take effect.
---------------------------------------------------------------------------

    \117\ Fusion centers serve as first responder emergency 
communication networks.
---------------------------------------------------------------------------

    Finally, no action would continue the status quo with regard to 
braking systems. The final rule proposes a two-tiered, cost-effective 
and risk-based solution to reduce the number of cars and energy 
associated with train accidents. Without action, the current braking 
systems would continue to be used and the highest-risk train sets 
(larger HHFTs) would continue using the same braking systems.
Selected Alternative
    The selected alternative, which was originally discussed in the 
draft EA, and is more fully discussed in the preamble has a phase-out 
schedule depicted in Table EA1 below. The amendments included in this 
alternative are more fully addressed in the preamble and regulatory 
text sections of this final rule. However, they generally include:
     New defined term of ``High-hazard flammable train;''
     Rail routing requirements as specified in Part 172, 
Subpart I of the HMR;
     Sampling and testing program designed to ensure proper 
classification and characterization of unrefined petroleum-based 
products;
     Phase in requirements for updated braking devices and 
braking systems;
     Speed restrictions for rail cars that do not meet the 
safer DOT-117 standard; and
     Phase-out DOT-111 cars in HHFTs and require DOT-117 for 
such HHFTs, as follows.\118\
---------------------------------------------------------------------------

    \118\ The preferred alternative in the NPRM included a 
compliance deadline of October 1, 2017, for PG I service, October 1, 
2018, for PG I service, and October 1, 2020, for PG III service.

Table EA1--Timeline for Continued Use of DOT Specification 111 (DOT-111)
                         Tanks for Use in HHFTs
------------------------------------------------------------------------
       Tank car type/service                  Retrofit deadline
------------------------------------------------------------------------
Non Jacketed DOT-111 tank cars in    (January 1, 2017 *).
 PG I service.                       January 1, 2018.
Jacketed DOT-111 tank cars in PG I   March 1, 2018.
 service.
Non-Jacketed CPC-1232 tank cars in   April 1, 2020.
 PG I service.
Non Jacketed DOT-111 tank cars in    May 1, 2023.
 PG II service.
Jacketed DOT-111 tank cars in PG II  May 1, 2023.
 service.
Non-Jacketed CPC-1232 tank cars in   July 1, 2023.
 PG II service.
Jacketed CPC-1232 tank cars in PG I  May 1, 2025.
 and PG II service ** and all
 remaining tank cars carrying PG
 III materials in an HHFT (pressure
 relief valve and valve handles).
------------------------------------------------------------------------
* The January 1, 2017 date would trigger a retrofit reporting
  requirement, and tank car owners of affected cars would have to report
  to DOT the number of tank cars that they own that have been
  retrofitted, and the number that have not yet been retrofitted.
** We anticipate these will be spread out throughout the 120 months and
  the retrofits will take place during normal requalification and
  maintenance schedule, which will likely result in fleet being retrofit
  sooner.

Alternative of 2018 Removal of DOT-111 Tank Cars From Service
    This alternative includes the same amendments as the selected 
alternative above, but would discontinue the use DOT-111 cars in HHFTs 
on a more accelerated schedule than the selected alternative. 
Specifically, for the purposes of analyzing this alternative in the 
environmental assessment, the retrofit deadlines for Non Jacketed DOT-
111 tank cars in PG I service, Non Jacketed DOT-111 tank cars in PG II 
service, and Jacketed DOT-111 tank cars in PG I and PG II service would 
all be expedited to meet a deadline of October 1, 2018 (41 months). In 
this environmental assessment and its

[[Page 26739]]

analysis, all references to an expedited phase-out of DOT-111 tank cars 
by 2018 refer to this specific population of DOT-111 tank cars in PG I 
and PG II service only.
Alternatives Considered but Not Carried Forward
    PHMSA received a range of comments asking that it consider an 
immediate ban or other expedited discontinuance of all DOT-111 tank 
cars for crude and ethanol transport. PHMSA considered the impacts of 
immediately banning the use of the DOT-111 tank car in HHFTs. However, 
PHMSA concluded in the regulatory impact analysis (RIA) included in 
this rulemaking that an immediate ban of the DOT-111 tank car is not a 
reasonable alternative because the rail industry could not replace rail 
cars immediately and would not be able to immediately switch to other 
transportation modes. This would cause supply chain disruptions, 
increased shipping costs, and increased reliance on trucks to make up 
for lost transport capacity. This increased reliance on trucks could 
have detrimental environmental and safety implications. As such, PHMSA 
concluded that a ban by 2016 would be impractical. Therefore, PHMSA 
more fully examined the impacts of a schedule that would phase out the 
use of all DOT-111 tank cars in PG I and PG II service by 2018, which 
is more aggressive than the selected alternative.
3. Environmental Impacts of the Selected Action and Alternatives No-
Action Alternative:
    If PHMSA were to select the no-action alternative, current 
regulations would remain in place, and no new provisions would be 
added. However, the safety and environmental threats that result from 
the increasing use of HHFTs would not be addressed. The existing threat 
of derailment and resulting fire, as exhibited in serious accidents 
like Lac-M[eacute]gantic, Quebec, which resulted in 47 fatalities, and 
Aliceville, Alabama, where we estimate that 630,000 gallons of crude 
oil entered navigable waters, destroying a several acres of wetlands 
and forest, would continue. Clean-up is ongoing for both of these 
accidents. For more information on safety and environmental risks, 
please see the RIA.
    As noted in the Final Rule, NTSB has identified these tank cars as 
vulnerable to puncture. No action would allow for the long term 
continuation of transportation of flammable liquids by rail in large 
volumes in the DOT-111 tank car. In addition, if no action were taken 
PHMSA would not adopt the DOT-117 tank car standard for new 
construction. This would lead to market uncertainty and leave important 
safety benefits unrealized.
    If PHMSA selected the no action alternative, the safety benefits of 
the sampling program would not be realized. These requirements are 
intended to ensure the proper safety precautions are applied to each 
carload. Without these protections, first responders could face greater 
challenges in responding to incidents, and their efforts could be less 
effective at mitigating the impacts of a release.
    Selection of the no action alternative would also not include 
requirements to share routing selection information with state 
authorities and/or fusion centers. This requirement is intended to aid 
first responders to best respond to incidents to mitigate the effects 
of a release.
    If PHMSA selected the no action alternative, speed restrictions 
would not take effect. Speed restrictions decrease the kinetic energy 
involved in accidents and are intended to decrease the amount of 
hazardous materials released when a derailment or incident occurs. 
Similarly, the no action alternative would not include the safety 
benefits of more advanced braking systems to reduce the likelihood or 
severity of derailments.
Selected Alternative
    In considering the various alternatives, PHMSA analyzed the 
following potential environmental impacts of each amendment in the 
selected alternative.
    The extension of the existing rail routing requirements in 49 CFR 
172.820 to include HHFTs will require that rail carriers consider 
safety and security risk factors such as population density along the 
route; environmentally-sensitive or significant areas; venues along the 
route (stations, events, places of congregation); emergency response 
capability along the route; etc., when analyzing and selecting routes 
for those trains. Use of routes that are less sensitive could mitigate 
the safety and environmental consequences of a train accident and 
release, were one to occur. It is possible that this requirement and 
consideration of the listed risk factors could cause rail carriers to 
choose routes that are less direct, potentially increasing the emission 
of greenhouse gases and other air pollutants. PHMSA, however, concluded 
that the reduction in risk to sensitive areas outweighs a slight 
increase in greenhouse gases. Furthermore, consideration of emergency 
response capabilities along the route could result in better 
environmental mitigation in the event of a release. The purpose of 
environmental mitigation is to decrease impacts to environmental media 
such as air and water.
    Next, the requirement for offerors to develop sampling and testing 
plans is intended to ensure that unrefined petroleum products are 
properly characterized to ensure that: (1) The proper regulatory 
requirements are applied to each shipment to minimize the risk of 
incident, (2) first responders have accurate information in the event 
of a train accident, and (3) the characteristics of the material are 
known and fully considered so that offerers and carriers are aware of 
and can mitigate potential threats to the integrity of rail tank cars. 
PHMSA believes that this provision will reduce the risk of release of 
these materials.
    PHMSA has calculated in the RIA that braking and speed 
restrictions, especially for older DOT-111 tank cars, will reduce the 
likelihood of train accidents that result in the release of flammable 
liquids. PHMSA has also shown that the braking requirements could 
improve fuel efficiency, thereby reducing greenhouse gas emissions. The 
effective use of braking on a freight train can result in some accident 
avoidance. In addition, the effective use of braking on a freight train 
can potentially lessen the consequences of an accident by diminishing 
in-train forces, kinetic energy, etc., which can reduce the likelihood 
of a tank car being punctured and decrease the likelihood of a 
derailment. Lessening the likelihood of derailments translates into a 
reduction in the probability of releases into the environment.
    These benefits are amplified when a train operates in ECP brake 
mode, particularly as train length increases to 70 or more cars. The 
system-wide implementation of ECP brakes on high-hazard flammable unit 
trains also will potentially improve the efficiency of the rail system 
by permitting trains to run closer together because of the improved 
performance of the brake system. The final rule cites business benefits 
related to operating in ECP brake mode (e.g., reduced fuel consumption, 
longer inspection intervals, real time diagnostics, greater control 
stopping and starting etc.) Additionally, system-wide implementation of 
ECP brakes will improve the efficiency of the rail system by permitting 
trains to run closer together because of the improved performance of 
the brake system.
    PHMSA concluded that the phasing-out of DOT-111 tank cars in HHFTs 
will reduce risk of release because of the improved integrity and 
safety features of the DOT-117. The DOT-117 will provide bottom outlet 
protection and a

[[Page 26740]]

high capacity pressure relief valve. To improve integrity and puncture 
resistance of the tank, DOT-117 has a full-height \1/2\ inch minimum 
thickness head shield, an 11-gauge jacket, and a \9/16\ inch shell. 
This is a significant improvement compared to the existing DOT-111, 
which has no head shield, or jacket requirement and is constructed with 
a \7/16\ inch thick shell.
    The DOT-117 tank car must have a thermal protection system, capable 
of surviving a 100-minute pool fire after a train accident. The 100-
minute survivability period is intended to provide emergency responders 
time to assess an accident, establish perimeters, and evacuate the 
public as needed. This thermal protection is critical in limiting human 
health risks to the public and first responders and limiting 
environmental damage in the event of a train accident. The introduction 
of the new DOT-117, along with the phase-out of the DOT-111 used in 
HHFTs will result in the manufacturing of some new tank cars to replace 
retirements and to accommodate new investment. PHMSA recognizes that 
performed a quantitative analysis the newer tank cars are heavier such 
that their transport will result in somewhat greater use of fuel and in 
turn greater release of air pollutants, including carbon dioxide. 
However, PHMSA has discussed in the RIA that the increased integrity of 
the tank cars, designed to reduce the risk of release of high-hazard 
flammable materials to the environment, causing air and likely water 
pollution, positively outweighs a relatively small increase in air 
pollution.
    While the nature of the phase-out is intended to minimize the 
unintended impacts of an accelerated phase-out, increased manufacture 
of replacement rail tank cars could nevertheless result in greater 
short-term release of greenhouse gases and use of resources needed to 
make the new tank cars, such as steel. PHMSA, however, concluded that 
these possible temporary increases are far outweighed by the increased 
safety and integrity of each railcar and each train and the decreased 
risk of release of crude oil and ethanol to the environment. The phase 
out of older tank cars will not create a solid waste burden on the 
environment because they will be recycled. Any environmental burdens 
will be limited to energy inputs and pollutants from the recycling and 
manufacture processes, which we do not expect to be significant since 
in the absence of this rule, the same number of tank cars would 
eventually be built. The only difference under this rule is that the 
same number of tank cars will be built to the new standard.
Alternative of 2018 Removal of DOT-111 Tank Cars From Crude Oil and 
Ethanol Service
    If PHMSA were to select the provisions of this additional Final EA 
alternative, we recognize that some safety and environmental risks 
could be reduced in the short-term. For example, due to improved 
integrity of new tank cars, such as puncture resistance and thermal 
protection, rail incidents would be less likely to result in release of 
crude oil or ethanol to the environment. Also, the releases that still 
occurred would likely be smaller in volume. These avoided or decreased 
release amounts would avoid increased water, soil, and air pollution. 
PHMSA recognizes that derailment of HHFTs has resulted in water, soil, 
and air pollution. Such releases also pose risk to human health and 
public safety.
    PHMSA examined and performed a quantitative analysis of a 2018 
phase-out alternative in this Final EA, which includes an expedited 
phase out of all DOT-111s in PG I and PG II service. PHMSA used this 
alternative, which requires removal from service of all DOT-111 tank 
cars for transport of crude oil and ethanol by the end of 2018, as a 
quantitative baseline. In its analysis of the full impacts of removal 
of DOT-111 tank cars by the end of 2018, PHMSA found disadvantages to 
this alternative. As explained more specifically in Appendix A, the 
transportation capacity lost to the retirement of the DOT-111 tank cars 
would likely cause crude and ethanol transportation to be shifted to 
truck/highway transportation (i.e. ``modal shift''). Trucks already 
figure prominently into the supply chains for both crude \119\ and 
ethanol,\120\ although so far there has been limited evidence of large 
scale long-haul shipments of crude oil from wells to refineries.\121\ A 
shortage of rail tank cars would make highway transportation a more 
viable option for long-haul transportation. Highway transportation is 
more polluting both in terms of air pollutants and hazardous materials 
released due to incidents. Furthermore, highway transportation has 
higher fatality and injury rates. PHMSA's analysis concluded that a 
2018 removal of the DOT-111s would cause increased air pollutant 
emissions in 2019, for both rail and truck modes of transportation.
---------------------------------------------------------------------------

    \119\ See: Davies, Phil (2013). ``Busting bottlenecks in the 
Bakken.'' Federal Reserve Bank of Minneapolis. https://www.minneapolisfed.org/publications/fedgazette/busting-bottlenecks-in-the-bakken. Over 70 percent of crude oil in North Dakota is 
shipped to a pipeline or rail terminal by truck.
    \120\ See: Bevil, Kris (2011). ``By Train, By Truck, or By Boat: 
How Ethanol Moves and Where it's Going.'' Ethanol Producer Magazine. 
The percentage of ethanol moved by long-haul truck is believed to be 
20 percent.
    \121\ See: Sheppard, David, and Nichols, Bruce (2011). 
``Insight: Oil Convoy Blues: Trucking Game Foils Crude Traders.'' 
New York: Reuters. http://www.reuters.com/article/2011/10/14/us-cushing-trucks-idUSTRE 79D0OP 20111014.
---------------------------------------------------------------------------

    Furthermore, PHMSA had to consider the costs of such a drastic 
regulatory change to industry, energy production, and the public. 
Comments submitted by industry indicated that costs imposed by a 2018 
complete removal of the entire DOT 111 fleet would be prohibitive and 
that such an action would potentially disrupt supply, which could 
affect the public in the form of higher energy prices. Further, such a 
sudden removal would greatly constrain the capacity of manufacture and 
repair required for other tank cars, potentially resulting in shortages 
for transport of other commodities.
    PHMSA weighed the benefit of reductions in releases from rail 
accidents that would result from the 2018 removal of DOT-111 tank cars 
against increased air pollution and highway accidents, often resulting 
in releases, that would result from a temporary modal shift, along with 
extremely high cost to industry and the public, and the other 
regulatory provisions in this rulemaking that are also aimed at 
reducing derailments and releases. Upon consideration of all these 
factors, PHMSA recognizes the need to upgrade the rail car fleet, but 
found that a targeted phase-out of the DOT-111 tank cars was the most 
prudent and protective approach.
4. Discussion of Environmental Impacts in Response to Comments
    PHMSA received various comments on this rulemaking. Some commented 
directly on the NPRM EA, while others commented more generally on the 
rule while focusing their comments on environmental matters. We have 
tried to address both types of comments here.
Rail Capacity/Modal Shift/Rail Tank Car Phase-Out
    The RSI's comments suggested that PHMSA's proposed retrofit 
schedule could result in modal shift. RSI suggested that from 2015-
2025, over-the-road trucks needed to replace railcar capacity would 
emit 6.41 million more tons of carbon dioxide (CO2) than the 
railcars would have had they been permitted to remain in service. PHMSA 
received similar comments from Archer Daniels Midland (ADM).

[[Page 26741]]

    The selected alternative considers comments submitted by the RSI 
with regard to the retrofit capacity of rail yards and the build 
capacity of tank car manufacturers. PHMSA has carefully considered 
retrofit and build capacity, and concluded that its selected 
alternative will not result in any shift to highway transportation due 
to shortages of compliant tank cars. PHMSA agrees that shifting 
transportation to highway would increase emissions and the risk of 
incidents due to higher rates of highway traffic incidents than rail 
incidents. However, under this final rule, as explained in more detail 
below, PHMSA concluded that there will not be any losses of capacity 
from retrofits or excessive retirements of tank cars that will lead to 
a backlog of new tank car orders (such a backlog would represent lost 
rail car capacity that would require more shipments by truck), and thus 
no modal shift will occur under the final rule; the final rule was 
carefully drafted to avoid modal shift.
    Nonetheless, in order to better address comments received in 
response to the NPRM (relating to environmental matters) and NPRM EA, 
PHMSA simulated the impact of a schedule in which DOT-111 tank cars in 
PG I and PG II service would be phased out by 2018, which was proposed 
in the NPRM and supported by some environmental organizations. The full 
details of this analysis are provided in Appendix A. Such a scenario 
would lead to increased retirements and unplanned new orders of tank 
cars. Initially, these new orders plus existing planned orders would 
exceed the build capacity of rail car manufacturers. Because crude oil 
and ethanol producers would still need to move their products, the lack 
of suitable tank cars would likely result in modal shift from rail 
transportation to highway transportation, which would result in greater 
air pollution. The backlog of orders would be eliminated after 2019, 
which would result in a shift back to rail, eliminating related 
increased emissions. Under the selected alternative, a mode shift does 
not occur. Table EA2 provides PHMSA's analysis of increased emissions 
resulting from a 2018 phase-out of DOT-111 tank cars. As stated 
previously, due to increased modal shifts that would be necessitated, 
we expect magnified pollution and negative safety effects for phase-
outs prior to 2018.

 Table EA2--Excess Emissions of Criteria Air Pollutants and Carbon Dioxide Under 2018 Phase-Out Schedule of DOT-
                                                  111 Tank Cars
----------------------------------------------------------------------------------------------------------------
                                  Hydrocarbons
                                 (HC, including       Carbon         Oxides of      Particulate       Carbon
          Year/tons               volatile for     monoxide (CO)     nitrogen      matter  (PM)   dioxide  (CO2)
                                     truck)                            (NOX)
----------------------------------------------------------------------------------------------------------------
2015.........................                  0               0               0               0               0
2016.........................                  0               0               0               0               0
2017.........................                  0               0               0               0               0
2018.........................                  0               0               0               0               0
2019.........................              2,584           9,931          34,633           1,571       4,759,930
----------------------------------------------------------------------------------------------------------------

    RSI cites analyses prepared for them by the Brattle Group (a 
consulting firm specializing in economic analysis) estimating that 
replacing lost rail capacity in 2017 with truck transportation for 
crude oil and ethanol shipments in North America would require 
approximately 20,000 trucks carrying over 370,000 truckloads on North 
American highways. In 2018, the year in which the loss of capacity 
would be fully felt, RSI further cites the Brattle Group, indicating 
that replacement transportation would require approximately 70,000 
trucks carrying almost 1.6 million loads and that over the road (OTR) 
truckers spilled 58 percent more total liquid hazardous material from 
2002-2009 than railroads per year and per billion ton-miles. AAR has 
also expressed concern that, ``[t]he result would be the diversion of 
traffic off the rail network and onto less safe and less 
environmentally friendly modes of transportation.'' AAR also commented 
that rail is an environmentally superior form of transportation.
    PHMSA's calculations for increased emissions were lower than those 
provided by RSI. In particular, PHMSA's selected alternative would 
result in no shift to highway transportation. PHMSA's analysis also 
does not concur with RSI that the less stringent phase-out schedule in 
the selected alternative would lead to 6.41 million additional tons of 
CO2 emissions. PHMSA disagrees with RSI's projections for 
the number of additional trucks needed to account for lost DOT-111 
capacity. PHMSA's analysis indicates that 20,000 additional trucks 
(i.e., the amount cited by RSI as required to replace lost rail 
capacity in 2017) would be capable of handling about half of all the 
crude and ethanol shipped in DOT-111 tank cars in a given year.\122\ 
Moreover 70,000 trucks (i.e., the amount cited by RSI as required to 
replace lost rail capacity in 2018) could handle 123,375 ton miles of 
crude and ethanol, or almost all of the total crude and ethanol ton 
miles Brattle provided for 2014.\123\ Given these facts, PHMSA 
calculates that RSI overestimates the number of additional trucks 
needed.
---------------------------------------------------------------------------

    \122\ If one assumes that a semi-truck/tank-trailer and semi-
truck/trailer combinations are both able to haul about 47,000 pounds 
of cargo 150,000 miles per year, divided by 2 to account for empty 
return trips, or 1.76 million ton-miles per year. Currently, about 
96.5 percent (just over 40,000 million ton miles) of ethanol 
transported by rail is in DOT-111 tank cars, and 29 percent of crude 
oil (or about 30,000 million ton miles) by rail is in DOT-111 tanks 
cars. An additional 20,000 trucks could handle 35,250 million ton 
miles (1.76 million x 20,000) of hazardous material, and 70,000 
trucks could handle 123,375 million ton miles (1.76 million x 
70,000) of hazardous material.
    \123\ Brattle concludes 85,062 million ton miles of crude oil in 
2014 and 46,243 million ton miles of ethanol. PHMSA concludes that 
70,000 trucks would be able to transport 94 percent of that volume.
---------------------------------------------------------------------------

    The Center for Biological Diversity (CBD), Clean Water Action, 
Delaware River Keeper, Earthjustice, Environment New Jersey, and Powder 
River Basin Resource Council have all expressed concern about the 
integrity of the DOT-111 tank cars and propose that these cars be 
removed from service immediately, as opposed to PHMSA's planned phase-
out.\124\ As discussed above, PHMSA recognizes commenters' concerns 
regarding DOT-111 phase-out schedule, but PHMSA deemed this option to 
be impractical because of negative impacts from modal shift, including 
increased incidents resulting in release of hazardous materials and 
increased fatalities, as illustrated in Tables EA3 and EA4.
---------------------------------------------------------------------------

    \124\ The Friends of the Gorge and the Adirondack Mountain Club 
were co-commenters with CBD.

[[Page 26742]]



  Table EA3--Additional Hazardous Material Incidents and Releases From
                               Modal Shift
               [2018 DOT-111 Tank Car Phase-Out Scenario]
------------------------------------------------------------------------
                     Year                           Year         Year
------------------------------------------------------------------------
2015..........................................         2015         2015
2016..........................................         2016         2016
2017..........................................         2017         2017
2018..........................................         2018         2018
2019..........................................         2019         2019
------------------------------------------------------------------------


      Table EA4--Additional Fatalities and Injuries From Mode Shift
               [2018 DOT-111 Tank Car Phase-Out Scenario]
------------------------------------------------------------------------
                     Year                        Fatalities    Injuries
------------------------------------------------------------------------
2015..........................................         0.00         0.00
2016..........................................         0.00         0.00
2017..........................................         0.00         0.00
2018..........................................         0.00         0.00
2019..........................................        94.68     2,359.83
------------------------------------------------------------------------

    PHMSA expects additional air emissions, spills and fatalities in 
2019 as a result of the shift to highway transportation. Our analyses 
indicate that the amendments in this final rule will actually realize 
much greater savings in these areas over the long-term. The RIA 
prepared for this final rule examines a period from 2015 to 2034, but 
benefits would continue to accrue beyond this analysis period. We have 
therefore decided that it is not prudent to modify the regulation in 
response to these comments.
NEPA Requirements
    The CBD and ADM commented that an Environmental Impact Statement 
(EIS), as opposed to an EA, is required under NEPA. PHMSA determined 
that an EA was appropriate to determine whether to prepare an EIS or a 
FONSI. An EIS is necessary when a proposed action will have significant 
environmental impacts. At the outset, PHMSA performed a NEPA best 
practice environmental checklist analysis for this rulemaking, 
examining all facets of the environment that could potentially be 
impacted. This rulemaking does not authorize and will not result in new 
construction of rail infrastructure or new transportation of hazardous 
materials. These factors, which impact the environment, are already in 
existence and are ongoing. Since the primary purpose and function of 
the rulemaking is to decrease the already existing risk of releases of 
crude oil and ethanol, the rulemaking does not result in any 
significant new environmental impacts. Based on the analysis completed 
for this EA, PHMSA does not agree that this rulemaking could result in 
significant environmental impacts that would require the preparation of 
an EIS, and therefore PHMSA intends to issue a FONSI.
    The CBD noted in its comments that PHMSA should initiate an 
Endangered Species Act consultation with FWS/NMFS in order to fully 
assess areas where HHFTs have the potential to impact listed species 
and critical habitat. As stated above, the intent of this rule is to 
prevent releases of hazardous chemicals to the environment. This 
rulemaking is not authorizing any new impacts to protected species or 
habitats, as rail transportation of hazardous materials and high-hazard 
flammable material is ongoing and rail infrastructure already exists. 
Increased regulation of ongoing transportation of hazardous materials 
will not jeopardize continued existence of any species and will not 
result in the destruction of habitat. Therefore, no consultation is 
required. While the routing provisions included in this rulemaking 
could alter the routes HHFTs take, the ``Rail Risk Analysis Factors'' 
that rail operators must consider in selecting routes include the 
consideration of ``environmentally sensitive and significant areas.'' 
See Appendix D to Part 172. Therefore, PHMSA concluded that improved 
routing selection and the eventual universal use of safer tank cars 
will result in a reduction in risk to endangered species.
    Riverkeeper 2266 stated its concerns regarding potential oil spills 
entering the Hudson River. Riverkeeper asserted that the 
characteristics of the River would make cleanup especially difficult 
and complicated. Riverkeeper 2266 also commented that spills could hurt 
the tourist-based economy, wildlife, and riverfront communities. 
Lastly, Riverkeeper 2266 and others expressed concerns that PHMSA's new 
safety standards only apply to trains of 20 cars or more with Class 3 
flammable liquids, even though devastating effects to the environment 
could also occur for trains with 19 or fewer cars.
    In the NPRM, PHMSA proposed to define HHFT to mean a single train 
carrying 20 or more carloads of a Class 3 flammable liquid. This 
definition aligns with the definition of ``Key Train'' in OT-55N. Many 
commenters raised concerns regarding the ambiguity of this definition 
as it would be applied to crude oil and ethanol trains and suggested 
that this definition would inadvertently include manifest trains that 
did not pose as high a risk as unit trains. PHMSA subsequently revised 
the definition of HHFT to ``20 or more loaded tank cars of a Class 3 
flammable liquid in a continuous block or a single train carrying 35 or 
more loaded tank cars of a Class 3 flammable liquid throughout the 
train.'' While the point regarding the potential environmental impacts 
associated the transport 19 or less tank cars of flammable liquid cars 
is valid, the focus of the final rule is on trains in which the 
flammable liquid cars are concentrated in large blocks.
Environmental Justice and Other Environmental Factors
    Commenters, such as ADM, Clean Water Action Pennsylvania, and 
Earthjustice commented that an Environmental Justice (EJ) assessment 
should be included in the EA. Earthjustice's \125\ comments alleged 
that low income and minority communities would face double the impact 
of other communities because many occur within one-mile blast zones of 
train tracks subject to this rulemaking. Both Earthjustice and Clean 
Water Action (Pennsylvania) also commented that PHMSA should have 
performed a complete EJ assessment for this rulemaking.
---------------------------------------------------------------------------

    \125\ Forest Ethics, Sierra Club, NRDC and Oil Change 
International were co-commenters with Earthjustice.
---------------------------------------------------------------------------

    This rulemaking has no role in the siting of already existing 
railroad lines. This rulemaking also does not authorize new hazardous 
materials transportation; these activities are ongoing. The purpose of 
the rulemaking is to decrease the risk of release of crude oil and 
ethanol. PHMSA has calculated in the RIA that consideration of the Rail 
Risk Analysis Factors will reduce risk of release in general, 
especially in densely populated areas, as railroad operators will now 
be required to consider population density, places of congregation, and 
presence of passenger traffic, among other factors to encourage 
selection of the most prudent routes. PHMSA, therefore, does not agree 
that there is potential for this rulemaking to have a disparate impact 
on low income or minority populations. Consideration of the Rail Risk 
Analysis Factors will reduce risk of release in densely populated areas 
where low income and minority populations are likely to be located.
    This rulemaking also has no impact on historic preservation or 
wetlands and floodplains because it does not authorize any new 
construction. It is also not reasonable that this rulemaking would 
indirectly or cumulatively result in new construction. It simply 
attempts to make existing hazardous materials

[[Page 26743]]

transportation safer for the environment and public safety.
5. Agencies Consulted
    PHMSA worked closely with the FRA, EPA, and DHS/TSA in the 
development of this final rulemaking for technical and policy guidance. 
PHMSA also considered the views expressed in comments to the ANPRM and 
NPRM submitted by members of the public, state and local governments, 
and industry.
6. Conclusion
    The provisions of this rule build on current regulatory 
requirements to enhance the transportation safety and security of 
shipments of hazardous materials transported by rail, thereby reducing 
the risks of release of crude oil and ethanol and consequent 
environmental damage. PHMSA has calculated that this rulemaking will 
decrease current risk of release of crude oil and ethanol to the 
environment. Therefore, PHMSA finds that there are no significant 
environmental impacts associated with this final rule.

Appendix A

Environmental Assessment Supporting Calculations

    PHMSA performed calculations to analyze the additional air 
emissions, hazardous materials incidents, quantity of hazardous 
material spilled, fatalities, and injuries from two options to 
phase-out DOT-111 rail tanks cars. As discussed, PHMSA calculated 
these impacts to be minimal for the selected alternative because no 
shift to highway transportation is anticipated.

Selected Alternative

    The schedule for retrofitting DOT-111 and CPC-1232 tank cars and 
mandating use of tank cars that comply with the new standards is not 
expected to reduce tank car capacity for shipping crude and ethanol. 
Consequently, the deleterious effects of shipments being shifted to 
highway transportation on trucks will be avoided. The new tank car 
standards and other provisions of the rule are expected to reduce 
the risk of hazardous materials incidents, and the severity of those 
incidents that do occur. As discussed under ``Selected alternative'' 
in Section 3 of the Final EA, this alternative is anticipated to 
provide positive benefits for the environment and safety.

2018 Phase-Out of DOT-111 Tank Cars Alternative

    The alternative of prohibiting use of all DOT-111 tank cars in 
2018 is the scenario that PHMSA staff could envision as physically 
possible that would both (a) negatively impact railroads and 
shippers' ability to continue transport of crude oil and ethanol by 
rail and (b) have the greatest chance of resulting in modal shift. 
PHMSA calculates that a modal shift resulting from a decrease in the 
number of tank cars authorized to transport flammable liquids, 
notably crude oil and ethanol, would have significant deleterious 
effects on safety and the environment. The evaluation of this 
scenario assumes that there will be a sufficient number of trucks 
and drivers to handle the additional volume of crude oil and 
ethanol. Because it is unclear whether this additional trucking 
capacity would actually be available, these results can be 
considered an upper limit on potential environmental impacts.
    Per ton-mile of transportation, cargo tank motor vehicles 
(CTMVs) emit significantly higher levels of volatile organic 
compounds, non-volatile hydrocarbons, carbon monoxide, oxides of 
nitrogen, carbon dioxide, and particulate matter than freight rail. 
In addition, the fatality and injury rate per ton-mile from 
accidents is significantly higher than from freight rail. In 
estimating the size of this modal shift, PHMSA employs several key 
assumptions.
    1. There are approximately 33,000 DOT-111 tank cars in service 
that transport high-hazard flammable material.
    2. Rail tank car manufacturers have an annual build capacity of 
roughly 24,000 cars.\126\ Manufacturers will not permanently 
increase capacity to deal with short-run spikes in demand.
---------------------------------------------------------------------------

    \126\ RSI concluded that over 21,000 new deliveries of CPC-1232 
tank cars will occur in 2014. In addition, over 600 new jacketed 
DOT-111s were delivered in the first quarter of 2014. Based on these 
two figures, PHMSA has concluded that build capacity is at least 
24,000 cars per year.
---------------------------------------------------------------------------

    3. Under this alternative, a total phase-out of DOT-111s would 
occur by the end of 2018. Shippers would find alternative methods to 
transport their products to account for any of the 33,000 DOT-111s 
not replaced by this time.
    4. Shippers or carriers will spread out replacing/removing from 
service DOT-111 tank cars over time.
    Please see the RIA prepared for this rule for additional 
information on these assumptions.
    Based on these assumptions, PHMSA estimated that at the end of 
2018, there would be a backlog of 12,239 DOT-111 tank cars that 
would not meet the retrofit deadline, but that these would be 
replaced by new, compliant tank cars by the end of 2019. In the 
meantime, their carrying capacity would shift to CTMVs. The capacity 
and backlog of tank cars is presented in the table below.

                  Table EA5--DOT-111 Replacement Schedule, 2018 Phase-Out of DOT-111 Tank Cars
----------------------------------------------------------------------------------------------------------------
                                                                                                Backlog of  DOT-
                           Year                               Initial  DOT-   Actual  DOT-111s   111s  replaced
                                                                  111s             replaced
----------------------------------------------------------------------------------------------------------------
2015......................................................            32,831                 0            32,831
2016......................................................                 0             4,413            28,418
2017......................................................                 0             7,941            20,477
2018......................................................                 0             8,238            12,239
----------------------------------------------------------------------------------------------------------------

Table EA 6 below shows the relative amounts of emissions in grams 
per ton-mile for freight rail and CTMV.
---------------------------------------------------------------------------

    \127\ Kruse, C. J., Protopapas, A., and Olson, L. (2012). A 
Modal Comparison of Domestic Freight Transportation Effects on the 
General Public: 2001-2009. Arlington, VA: National Waterways 
Foundation. Retrieved from http://nationalwaterwaysfoundation.org/study/FinalReportTTI.pdf.

    Table EA6--Emission Rates by Mode, Grams per Million Ton Miles,\127\ 2018 Phase-Out of DOT-111 Tank Cars
----------------------------------------------------------------------------------------------------------------
                                    HC (VOC for
         Mode/Pollutant               truck)            CO              NOX             PM              CO2
----------------------------------------------------------------------------------------------------------------
Railroad*.......................        0.018201        0.055600        0.353600        0.010251       21.140000
Truck*..........................        0.100000        0.370000        1.450000        0.060000      171.830000
----------------------------------------------------------------------------------------------------------------


[[Page 26744]]

    PHMSA concluded that 47,000 million ton miles of ethanol would 
be transported per year by rail between 2015 and 2018, and that 
about 108,000 million ton miles of crude oil will be transported on 
average per year. PHMSA concluded that about 96 percent of ethanol 
transported by rail is currently shipped in DOT-111 tank cars, and 
that about 29 percent of crude oil transported by rail is shipped in 
these tank cars. Assuming these proportions in the hypothetical 
scenario, DOT-111s would be used to transport about 45,300 million 
ton miles of ethanol (96% x 47,000) and 31,500 million ton miles of 
crude oil (29% x 108,000). All told, about 76,869 million ton miles 
of crude and ethanol would be shipped in DOT-111 tank cars on 
average per year, and each of the 32,831 DOT-111 tank cars in crude 
and ethanol service would handle on average 1.7 million ton miles 
per year. That is, the loss of each individual DOT-111 tank car 
would require a shift of 1.7 million ton miles of crude or ethanol 
per rail tank car to another mode.
    Rail car manufacturers have excess capacity for replacing some, 
but not all, of older DOT-111s. The backlog presented by a complete 
DOT-111 phase out by 2018 translates into lost DOT-111 rail-car 
capacity that would have to be handled by CTMVs. Table EA7 equates 
the lost capacity to ton-miles shifted to CTMV. It is important to 
note that these are the maximum amounts of ton-miles that could be 
shifted to truck. These amounts will be constrained by the 
availability of trucks and drivers to handle these additional 
loads.\128\
---------------------------------------------------------------------------

    \128\ An estimate of the number of trucks needed can be 
calculated using the following assumptions and parameters:
    1. A standard semi-truck weighs 20,000 pounds, a tank trailer 
weighs about 13,000 pounds, and the maximum gross vehicle weight 
rating for a tractor-trailer is 80,000 pounds. Each truck can 
transport up to 47,000 pounds of ethanol or crude oil.
    2. A fully utilized tractor trailer travels up to 500 miles per 
day for up to 300 days per year, or a total of 150,000 miles per 
year.
    3. Trucks will make return trips empty, so their maximum annual 
transport capacity is halved.
    A typical semi-truck/tank-trailer combination can transport up 
to 1.7652 million ((((47,000 x 150,000) / 2,000) / 2) / 1,000,000) 
ton miles of crude or ethanol per year. A mode shift of 15,200 
million ton miles would require an additional 8,861 trucks. This is 
a relatively small addition to the current number of such vehicle 
combinations currently operating. PHMSA concluded that the 
availability of trucks is unlikely to constrain the amount of crude 
oil and ethanol that could be shifted to highway transportation.

         Table EA7--Ton-Miles of Crude and Ethanol Shifted to CTMV, 2018 Phase-Out of DOT-111 Tank Cars
----------------------------------------------------------------------------------------------------------------
                                                                   Percent DOT-
                                                                   111 ton miles   Total DOT-111   DOT-111 ton-
                              Year                                  shifted to       ton miles     miles shifted
                                                                       CTMV                           to CTMV
----------------------------------------------------------------------------------------------------------------
2016............................................................            0.0           76,869            0
2017............................................................            0.0           76,869            0
2018............................................................            0.0           76,869            0
2019............................................................           37.28          76,869       28,655.75
----------------------------------------------------------------------------------------------------------------

    PHMSA applied the ton-miles shifted to CTMV presented in Table 
EA7 to the emissions per ton-mile presented in Table EA6 to 
calculate the additional emissions that result from constraining 
rail car capacity by an expedited 2018 retirement schedule for DOT-
111s.

          Table EA8--Additional Tons of Emissions From Mode Shift, 2018 Phase-Out of DOT-111 Tank Cars
----------------------------------------------------------------------------------------------------------------
                                    HC (VOC for
            Year/Tons                 truck)            CO              NOX             PM              CO2
----------------------------------------------------------------------------------------------------------------
2015............................               0               0               0               0               0
2016............................               0               0               0               0               0
2017............................               0               0               0               0               0
2018............................               0               0               0               0               0
2019............................           2,584           9,931          34,633           1,571       4,759,930
----------------------------------------------------------------------------------------------------------------

    PHMSA examined the additional hazardous material incidents and 
quantities of hazardous material released that could occur from a 
mode shift to CTMVs. Table EA9 below presents the spill rates and 
gallons of hazardous material released per million ton miles by rail 
and highway modes.

Table EA9--Hazardous Materials Incident and Spill Rates per Million Ton-
               Miles, 2018 Phase-Out of DOT-111 Tank Cars
------------------------------------------------------------------------
                                                          Number gallons
                                          Number spills/     spilled/
                  Mode                     million ton-    million ton-
                                               miles           miles
------------------------------------------------------------------------
Railroad................................        0.000339        4.889386
Truck...................................        0.001371       10.411803
Difference..............................        0.001032        5.522417
------------------------------------------------------------------------

    Multiplying the annual the ton-miles (the ``Percent DOT-111 Ton-
Miles Shifted to CTMV'' column) presented in Table EA7 by the 
``difference'' row for hazardous material incident and release rates 
in Table EA9 yields the additional number of hazardous material 
incidents and quantity of hazardous material incident released, 
which are presented in Table EA10. PHMSA concluded that a shift to 
truck for transporting crude oil and ethanol that would have been 
transported in DOT-111 tank cars would lead to nearly 30 additional 
hazardous material incidents and over 158,000 additional gallons of 
hazardous material per incident released in 2019.

[[Page 26745]]



   Table EA10--Anticipated Additional Hazardous Material Incidents and
      Releases From Mode Shift, 2018 Phase-Out of DOT-111 Tank Cars
------------------------------------------------------------------------
                  Year                        Spills          Gallons
------------------------------------------------------------------------
2015....................................            0                  0
2016....................................            0                  0
2017....................................            0                  0
2018....................................            0                  0
2019....................................           29.57         158,249
------------------------------------------------------------------------

    Lastly, PHMSA examined the additional transportation fatalities, 
and injuries that could occur from a mode shift to CTMVs. Table EA11 
presents accident, fatality, and injury rates per million ton mile 
for rail and CTMV.

 Table EA11--Additional Accident, Injury, and Fatality Rates per Million
       Ton Miles by Mode,\129\ 2018 Phase-Out of DOT-111 Tank Cars
------------------------------------------------------------------------
                                            Additional      Additional
                  Mode                      fatalities       injuries
------------------------------------------------------------------------
Railroad................................        0.000525        0.005183
Truck...................................        0.003829        0.087534
Difference..............................        0.003304        0.082351
------------------------------------------------------------------------

    Multiplying the ton-miles presented in Table EA7 (the ``Percent 
DOT-111 Ton-Miles Shifted to CTMV'' column) by the ``difference'' 
row for fatality and injury rates in Table EA11 yields the 
anticipated additional number of fatalities and injuries from truck 
transportation instead of rail transportation, which are presented 
in Table EA12. PHMSA concluded that a shift to truck for 
transporting crude oil and ethanol that would have been transported 
in DOT-111 tank cars would lead to nearly 95 additional deaths and 
about 2,300 additional injuries in 2019.
---------------------------------------------------------------------------

    \129\ Kruse, C. J., Protopapas, A., and Olson, L. (2012). A 
Modal Comparison of Domestic Freight Transportation Effects on the 
General Public: 2001-2009. Arlington, VA: National Waterways 
Foundation. Retrieved from http://nationalwaterwaysfoundation.org/study/FinalReportTTI.pdf

  Table EA12--Additional Fatalities and Injuries From Modal Shift, 2018
                     Phase-Out of DOT-111 Tank Cars
------------------------------------------------------------------------
                  Year                      Fatalities       Injuries
------------------------------------------------------------------------
2015....................................            0               0
2016....................................            0               0
2017....................................            0               0
2018....................................            0               0
2019....................................           94.68        2,359.83
------------------------------------------------------------------------

H. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

I. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609, agencies must consider whether the 
impacts associated with significant variations between domestic and 
international regulatory approaches are unnecessary or may impair the 
ability of American businesses to export and compete internationally. 
In meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, regulatory approaches developed 
through international cooperation can provide equivalent protection to 
standards developed independently while also minimizing unnecessary 
differences.
    Similarly, the Trade Agreements Act of 1979 (Public Law 96-39), as 
amended by the Uruguay Round Agreements Act (Public Law 103-465), 
prohibits Federal agencies from establishing any standards or engaging 
in related activities that create unnecessary obstacles to the foreign 
commerce of the United States. For purposes of these requirements, 
Federal agencies may participate in the establishment of international 
standards, so long as the standards have a legitimate domestic 
objective, such as providing for safety, and do not operate to exclude 
imports that meet this objective. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards.
    PHMSA participates in the establishment of international standards 
in order to protect the safety of the American public, and we have 
assessed the effects of the proposed rule to ensure that it does not 
cause unnecessary obstacles to foreign trade. Accordingly, this 
rulemaking is consistent with Executive Order 13609 and PHMSA's 
obligations under the Trade Agreement Act, as amended.
    For further discussion on the impacts of harmonization see the 
``Harmonization'' portion of ``Miscellaneous Relevant Comments'' 
Section of this rulemaking.

J. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 
5103(b), which authorizes the Secretary of

[[Page 26746]]

Transportation to ``prescribe regulations for the safe transportation, 
including security, of hazardous materials in intrastate, interstate, 
and foreign commerce.'' The amendments in this rule address safety and 
security vulnerabilities regarding the transportation of hazardous 
materials in commerce.

K. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this action with the 
Unified Agenda.

L. Executive Order 13211

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates, or is expected to 
lead to the promulgation of, a final rule or regulation (including a 
notice of inquiry, advance NPRM, and NPRM) that (1)(i) is a significant 
regulatory action under Executive Order 12866 or any successor order 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (2) is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action.
    PHMSA has evaluated this action in accordance with Executive Order 
13211. See the environmental assessment section for a more thorough 
discussion of environmental impacts and the supply, distribution, or 
use of energy. PHMSA has determined that this action will not have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, PHMSA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

XI. Regulatory Text

List of Subjects

49 CFR Part 171

    Exports, Hazardous materials transportation, Hazardous waste, 
Imports, Incorporation by reference, Reporting and recordkeeping 
requirements.

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Packaging and containers, Reporting and recordkeeping requirements, 
Security measures.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Radioactive materials, Reporting and recordkeeping requirements, 
Uranium.

49 CFR part 174

    Hazardous materials transportation, Rail carriers, Reporting and 
recordkeeping requirements, Security measures.

49 CFR Part 179

    Hazardous materials transportation, Incorporation by reference, 
Railroad safety, Reporting and recordkeeping requirements.

The Final Rule

    In consideration of the foregoing, we are amending title 49, 
chapter I, subchapter C, as follows:

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
1. The authority citation for part 171 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 
4 (28 U.S.C. 2461 note); Pub. L. 104-121, sections 212-213; Pub. L. 
104-134, section 31001; 49 CFR 1.81 and 1.97.


0
2. In 171.7, redesignate paragraphs (k)(2) through (4) as (k)(3) 
through (5) and add new paragraph (k)(2) to read as follows:


Sec.  171.7  Reference material.

* * * * *
    (k) * * *
    (2) AAR Manual of Standards and Recommended Practices, Section C--
III, Specifications for Tank Cars, Specification M-1002 (AAR 
Specifications for Tank Cars), Appendix E, Design Details, implemented 
April 2010; into Sec. Sec.  179.202-9, and 179.202-12(f).
* * * * *

0
3. In Sec.  171.8 definitions of ``High-hazard flammable train'' and 
``High-hazard flammable unit train'' are added in alphabetical order to 
read as follows:


Sec.  171.8  Definitions.

* * * * *
    High-hazard flammable train (HHFT) means a single train 
transporting 20 or more loaded tank cars of a Class 3 flammable liquid 
in a continuous block or a single train carrying 35 or more loaded tank 
cars of a Class 3 flammable liquid throughout the train consist.
    High-hazard flammable unit train (HHFUT) means a single train 
transporting 70 or more loaded tank cars containing Class 3 flammable 
liquid.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING 
REQUIREMENTS, AND SECURITY PLANS

0
4. The authority citation for part 172 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 44701; 49 CFR 1.81 and 1.97.


0
5. In Sec.  172.820:
0
a. In paragraph (a)(2), remove the word ``or'' from the end;
0
b. In paragraph (a)(3), remove the period and add ``; or'' to the end; 
and
0
c. Add paragraphs (a)(4) and (b)(1)(i) and (ii).
    The additions read as follows:


Sec.  172.820  Additional planning requirements for transportation by 
rail.

    (a) * * *
    (4) A high-hazard flammable train (HHFT) as defined in Sec.  171.8 
of this subchapter.
    (b) * * *
    (1) * * *
    (i) A rail carrier subject to additional planning requirements of 
this section based on paragraph (a)(4) of this section, must complete 
the initial process by March 31, 2016, using data for the six month 
period from July 1, 2015 to December 31, 2015; or
    (ii) A rail carrier subject to additional planning requirements of 
this section based on paragraph (a)(4) of this section, must complete 
the initial process by March 31, 2016, using data for all of 2015, 
provided the rail carrier indicates in their initial analysis that it 
has chosen this option.
* * * * *

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

0
6. The authority citation for part 173 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.81 and 1.97.


0
7. Section 173.41 is added to subpart B to read as follows:


Sec.  173.41  Sampling and testing program for unrefined petroleum-
based products.

    (a) General. Unrefined petroleum-based products offered for

[[Page 26747]]

transportation must be properly classed and described as prescribed in 
Sec.  173.22, in accordance with a sampling and testing program, which 
specifies at a minimum:
    (1) A frequency of sampling and testing that accounts for any 
appreciable variability of the material (e.g., history, temperature, 
method of extraction [including chemical use], location of extraction, 
time of year, length of time between shipments);
    (2) Sampling prior to the initial offering of the material for 
transportation and when changes that may affect the properties of the 
material occur (i.e., mixing of the material from multiple sources, or 
further processing and then subsequent transportation);
    (3) Sampling methods that ensure a representative sample of the 
entire mixture, as offered, is collected;
    (4) Testing methods that enable classification of the material 
under the HMR;
    (5) Quality control measures for sample frequencies;
    (6) Duplicate sampling methods or equivalent measures for quality 
assurance;
    (7) Criteria for modifying the sampling and testing program; and
    (8) Testing or other appropriate methods used to identify 
properties of the mixture relevant to packaging requirements (e.g., 
compatibility with packaging, identifying specific gravity for filling 
packages).
    (b) Certification. Each person who offers a hazardous material for 
transportation shall certify, as prescribed by Sec.  172.204 of this 
subchapter, that the material is offered for transportation in 
accordance with this subchapter, including the requirements prescribed 
by paragraph (a) of this section.
    (c) Documentation, retention, review, and dissemination of program. 
The sampling and testing program must be documented in writing (i.e. 
hardcopy or electronic file thereof) and must be retained for as long 
as the sampling and testing program remains in effect, or a minimum of 
one year. The sampling and testing program must be reviewed at least 
annually and revised and/or updated as necessary to reflect changed 
circumstances. The most recent version of the sampling and testing 
program must be available to the employees who are responsible for 
implementing it. When the sampling and testing program is updated or 
revised, all employees responsible for implementing it must be 
notified, and the most recent version must be made available.
    (d) Access by DOT to program documentation. Each person required to 
develop and implement a sampling and testing program must maintain a 
copy of the sampling and testing program documentation (or an 
electronic file thereof) that is accessible at, or through, its 
principal place of business, and must make the documentation available 
upon request at a reasonable time and location to an authorized 
official of the Department of Transportation.

0
8. In Sec.  173.241, paragraph (a) is revised to read as follows:


Sec.  173.241  Bulk packagings for certain low-hazard liquid and solid 
materials.

* * * * *
    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 112, 114, 115, 
117, or 120 tank car tanks; Class 106 or 110 multi-unit tank car tanks; 
and AAR Class 203W, 206W, and 211W tank car tanks. Additional 
operational requirements apply to high-hazard flammable trains (see 
Sec.  171.8 of this subchapter) as prescribed in Sec.  174.310 of this 
subchapter. Except as otherwise provided in this section, DOT 
Specification 111 tank cars and DOT Specification 111 tank cars built 
to the CPC-1232 industry standard are no longer authorized to transport 
Class 3 (flammable liquids) in Packing Group III, for use in high-
hazard flammable train service, unless retrofitted to the DOT 
Specification 117R retrofit standards or the DOT Specification 117P 
performance standards provided in part 179, subpart D of this 
subchapter.
    (1) DOT Specification 111 tank cars and DOT Specification 111 tank 
cars built to the CPC-1232 industry standard are no longer authorized 
for use in high-hazard flammable train service unless retrofitted prior 
to the dates in the following table:

------------------------------------------------------------------------
                                                    DOT 111 built to the
                                   DOT 111 not          CPC-1232 not
        Packing group           authorized on or      authorized on or
                                      after                 after
------------------------------------------------------------------------
III.........................  May 1, 2025.........  May 1, 2025.
------------------------------------------------------------------------

    (2) Conforming retrofitted tank cars are to be marked ``DOT-117R.''
    (3) Conforming performance standard tank cars are to be marked 
``DOT-117P.''
* * * * *
0
9. In Sec.  173.242, paragraph (a) is revised to read as follows:


Sec.  173.242  Bulk packagings for certain medium hazard liquids and 
solids, including solids with dual hazards.

* * * * *
    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 111, 112, 114, 
115, 117, or 120 tank car tanks; Class 106 or 110 multi-unit tank car 
tanks and AAR Class 206W tank car tanks. Additional operational 
requirements apply to high-hazard flammable trains (see Sec.  171.8 of 
this subchapter) as prescribed in Sec.  174.310 of this subchapter. 
Except as otherwise provided in this section, DOT Specification 111 
tank cars and DOT Specification 111 tank cars built to the CPC-1232 
industry standard are no longer authorized to transport Class 3 
(flammable liquids) in Packing Group II and III, for use in high-hazard 
flammable train service, unless retrofitted to the DOT Specification 
117R retrofit standards, or the DOT Specification 117P performance 
standards provided in part 179, subpart D of this subchapter.
    (1) DOT Specification 111 tank cars and DOT Specification 111 tank 
cars built to the CPC-1232 industry standard are no longer authorized 
for use in high-hazard flammable train service unless retrofitted prior 
to the dates in the following table:

------------------------------------------------------------------------
                                                    DOT 111 built to the
                                   DOT 111 not        CPC-1232 industry
        Packing group           authorized on or        standard not
                                      after           authorized on or
                                                            after
------------------------------------------------------------------------
II..........................  May 1, 2023           July, 1 2023 (non-
                               (jacketed and non-    jacketed).
                               jacketed).           May 1, 2025
                                                     (jacketed).
III.........................  May 1, 2025.........  May 1, 2025.
------------------------------------------------------------------------


[[Page 26748]]

    (2) Conforming retrofitted tank cars are to be marked ``DOT-117R.''
    (3) Conforming performance standard tank cars are to be marked 
``DOT-117P.''
* * * * *
0
10. In Sec.  173.243, paragraph (a) is revised to read as follows:


Sec.  173.243  Bulk packaging for certain high-hazard liquids and dual-
hazard materials that pose a moderate hazard.

* * * * *
    (a) Rail cars: Class DOT 103, 104, 105, 109, 111, 112, 114, 115, 
117, or 120 fusion-welded tank car tanks; and Class 106 or 110 multi-
unit tank car tanks. Additional operational requirements apply to high-
hazard flammable trains (see Sec.  171.8 of this subchapter) as 
prescribed in Sec.  174.310 of this subchapter. Except as otherwise 
provided in this section, DOT Specification 111 tank cars and DOT 
Specification 111 tank cars built to the CPC-1232 industry standard are 
no longer authorized to transport Class 3 (flammable liquids) in 
Packing Group I, for use in high-hazard flammable train service, unless 
retrofitted to the DOT Specification 117R retrofit standards or the DOT 
Specification 117P performance standards provided in part 179, subpart 
D of this subchapter.
    (1) DOT Specification 111 tank cars and DOT Specification 111 tank 
cars built to the CPC-1232 industry standard are no longer authorized 
for use in high-hazard flammable train service unless retrofitted prior 
to the dates in the following table:

------------------------------------------------------------------------
                                                    DOT 111 built to the
                                   DOT 111 not        CPC-1232 industry
        Packing group           authorized on or        standard not
                                      after           authorized on or
                                                            after
------------------------------------------------------------------------
I...........................  January 1, 2017 (non- April 1, 2020 (non-
                               jacketed report       jacketed).
                               trigger).            May 1, 2025
                                                     (jacketed).
                              January 1, 2018 (non-
                               jacketed).
                              March 1, 2018
                               (jacketed).
------------------------------------------------------------------------

    (2) Conforming retrofitted tank cars are to be marked ``DOT-117R.''
    (3) Conforming performance standard tank cars are to be marked 
``DOT-117P.''
* * * * *

PART 174--CARRIAGE BY RAIL

0
11. The authority citation for part 174 continues to read as follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.


0
12. Section 174.310 is added to subpart G to read as follows:


Sec.  174.310  Requirements for the operation of high-hazard flammable 
trains.

    (a) Applicability. Each rail carrier operating a high-hazard 
flammable train (as defined in Sec.  171.8 of this subchapter) must 
comply with each of the following additional safety requirements with 
respect to each high-hazard flammable train that it operates:
    (1) Routing. The additional planning requirements for 
transportation by rail in accordance with part 172, subpart I of this 
subchapter;
    (2) Speed restrictions. All trains are limited to a maximum speed 
of 50 mph. The train is further limited to a maximum speed of 40 mph 
while that train travels within the limits of high-threat urban areas 
(HTUAs) as defined in Sec.  1580.3 of this title, unless all tank cars 
containing a Class 3 flammable liquid meet or exceed the DOT 
Specification 117 standards, the DOT Specification 117P performance 
standards, or the DOT Specification 117R retrofit standards provided in 
part 179, subpart D of this subchapter.
    (3) Braking. (i) Each rail carrier operating a high-hazard 
flammable train (as defined in Sec.  171.8 of this subchapter) 
operating at a speed in excess of 30 mph must ensure the train is 
equipped and operated with either a two-way end-of-train (EOT) device, 
as defined in 49 CFR 232.5, or a distributed power (DP) system, as 
defined in 49 CFR 229.5.
    (ii) By January 1, 2021, each rail carrier operating a high-hazard 
flammable unit train (HHFUT) comprised of at least one tank car loaded 
with a Packing Group I material, at a speed exceeding 30 mph must 
ensure the train is equipped with ECP brakes that meet the requirements 
of 49 CFR part 232, subpart G, except for buffer cars, and must be 
operated in ECP brake mode as established in 49 CFR part 232, subpart 
G.
    (iii) By May 1, 2023, each rail carrier operating a high-hazard 
flammable unit train (HHFUT) not described in paragraph (a)(3)(ii) of 
this section, at a speed exceeding 30 mph must ensure the train is 
equipped with ECP brakes that meet the requirements of 49 CFR part 232, 
subpart G, except for buffer cars, and must be operated in ECP brake 
mode as established in 49 CFR part 232, subpart G.
    (iv) Each buffer car in an high-hazard flammable unit train that is 
not equipped with ECP brakes will be counted in determining the 
percentage of cars with effective and operative brakes during the 
operation of the train, as required under 49 CFR 232.609.
    (v) Alternate brake systems may be submitted for approval through 
the processes and procedures outlined in 49 CFR part 232, subpart F.
    (4) New tank cars. After October 1, 2015, tank cars manufactured 
for use in a HHFT must meet:
    (i) DOT Specification 117, or 117P performance standard in part 
179, subpart D of this subchapter; or
    (ii) An authorized tank specification as specified in part 173, 
subpart F of this subchapter.
    (5) Retrofit reporting Owners of non-jacketed DOT-111 tank cars in 
PG I service in an HHFT, who are unable to meet the January 1, 2017, 
retrofit deadline specified in Sec.  173.243 (a)(1) are required to 
submit a report by March 1, 2017, to Department of Transportation. A 
group representing owners may submit a consolidated report to the 
Department of Transportation in lieu of individual reports from each 
tank car owner. The report must include the following information 
regarding the retrofitting progress:
    (i) The total number of tank cars retrofitted to meet the DOT-117R 
specification;
    (ii) The total number of tank cars built or retrofitted to meet the 
DOT-117P specification;
    (iii) The total number of DOT-111 tank cars (including those built 
to CPC-1232 industry standard) that have not been modified;
    (iv) The total number of tank cars built to meet the DOT-117 
specification; and
    (v) The total number of tank cars built or retrofitted to a DOT-
117, 117R or 117P specification that are ECP brake ready or ECP brake 
equipped.
    (vi) Entities required to submit a report under this paragraph 
shall submit subsequent follow-up reports containing the information 
identified in this paragraph within 60 days of being notified by PHMSA 
and FRA.
    (b) [Reserved]

[[Page 26749]]

PART 179--SPECIFICATIONS FOR TANK CARS

0
13. The authority citation for part 179 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128; 49 CFR 1.81 and 1.97.

Subpart D-Specifications for Non-Pressure Tank Car Tanks (Classes 
DOT-111AW, 115AW, and 117AW)

0
14. The heading for subpart D is revised to read as set forth above.

0
15. The heading for Sec.  179.200 is revised to read as follows:


Sec.  179.200  General specifications applicable to non-pressure tank 
car tanks (Class DOT-111, DOT-117).

* * * * *
0
16. The heading for Sec.  179.200-1 is revised to read as follows:


Sec.  179.200-1  Tank built under these specifications must meet the 
applicable requirements in this part.

* * * * *

0
17. Sections 179.202 and 179.202-1 are added to read as follows:


Sec.  179.202  Individual specification requirements applicable to DOT-
117 tank car tanks.


Sec.  179.202-1  Applicability.

    Each tank built under these specifications must conform to the 
general requirements of Sec.  179.200 and the prescriptive standards in 
Sec. Sec.  179.202-1 through 179.202-11, or the performance standard 
requirements of Sec.  179.202-12.

0
18. Sections 179.202-3 through Sec.  179.202-13 are added to read as 
follows:


Sec.  179.202-3  Approval to operate at 286,000 gross rail load (GRL).

    A tank car may be loaded to a gross weight on rail of up to 286,000 
pounds (129,727 kg) upon approval by the Associate Administrator for 
Safety, Federal Railroad Administration (FRA). See Sec.  179.13.


Sec.  179.202-4  Thickness of plates.

    The wall thickness after the forming of the tank shell and heads 
must be, at a minimum, 9/16 of an inch AAR TC-128 Grade B, normalized 
steel, in accordance with Sec.  179.200-7(b).


Sec.  179.202-5  Tank head puncture resistance system.

    The DOT-117 specification tank car must have a tank head puncture 
resistance system in conformance with Sec.  179.16(c). The full height 
head shields must have a minimum thickness of \1/2\ inch.


Sec.  179.202-6  Thermal protection system.

    The DOT-117 specification tank car must have a thermal protection 
system. The thermal protection system must conform to Sec.  179.18 and 
include a reclosing pressure relief device in accordance with Sec.  
173.31 of this subchapter.


Sec.  179.202-7  Jackets.

    The entire thermal protection system must be covered with a metal 
jacket of a thickness not less than 11 gauge A1011 steel or equivalent; 
and flashed around all openings so as to be weather tight. A protective 
coating must be applied to the exterior surface of a carbon steel tank 
and the inside surface of a carbon steel jacket.


Sec.  179.202-8  Bottom outlets.

    If the tank car is equipped with a bottom outlet, the handle must 
be removed prior to train movement or be designed with protection 
safety system(s) to prevent unintended actuation during train accident 
scenarios.


Sec.  179.202-9  Top fittings protection.

    The tank car tank must be equipped with top fittings protection 
conforming to AAR Specifications for Tank Cars, appendix E paragraph 
10.2.1 (IBR, see Sec.  171.7 of this subchapter).


Sec.  179.102-10  ECP brakes.

    (a) By January 1, 2021, each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, comprised of at least 
one tank car loaded with a Packing Group I material must ensure the 
train meets the ECP braking capability requirements as prescribed in 
Sec.  174.310 of this subchapter.
    (b) By May 1, 2023, each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, not described in 
paragraph (a) of this section must ensure the train meets the ECP 
braking capability requirements as prescribed in Sec.  174.310 of this 
subchapter.
    (c) Alternate brake systems may be submitted for approval through 
the processes and procedures outlined in 49 CFR part 232, subpart F.


Sec.  179.202-11  Individual specification requirements.

    In addition to Sec.  179.200, the individual specification 
requirements are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Minimum plate
            DOT specification                       Insulation               Bursting        thickness      Test pressure           Bottom outlet
                                                                         pressure (psig)      (Inches)          (psig)
--------------------------------------------------------------------------------------------------------------------------------------------------------
117A100W.................................  Optional....................             500             9/16              100   Optional.
--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec.  179.202-12  Performance standard requirements.

    (a) Approval. Design, testing, and modeling results must be 
reviewed and approved by the Associate Administrator for Railroad 
Safety/Chief Safety Officer, Federal Railroad Administration (FRA), 
1200 New Jersey Ave. SE., Washington, DC 20590.
    (b) Approval to operate at 286,000 gross rail load (GRL). In 
addition to the requirements of paragraph (a) of this section, a tank 
car may be loaded to a gross weight on rail of up to 286,000 pounds 
(129,727 kg) upon approval by the Associate Administrator for Safety, 
Federal Railroad Administration (FRA). See Sec.  179.13.
    (c) Puncture resistance. (1) Minimum side impact speed: 12 mph when 
impacted at the longitudinal and vertical center of the shell by a 
rigid 12-inch by 12-inch indenter with a weight of 286,000 pounds.
    (2) Minimum head impact speed: 18 mph when impacted at the center 
of the head by a rigid 12-inch by 12-inch indenter with a weight of 
286,000 pounds.
    (d) Thermal protection systems. The tank car must be equipped with 
a thermal protection system. The thermal protection system must be 
equivalent to the performance standard prescribed in Sec.  179.18 and 
include a reclosing pressure relief device in accordance with Sec.  
173.31 of this subchapter.
    (e) Bottom outlet. If the tank car is equipped with a bottom 
outlet, the handle must be removed prior to train movement or be 
designed with protection safety system(s) to prevent unintended 
actuation during train accident scenarios.
    (f) Top fittings protection. The tank car tank must be equipped 
with top fittings protection conforming to AAR Specifications for Tank 
Cars, appendix E paragraph 10.2.1 (IBR, see Sec.  171.7 of this 
subchapter).

[[Page 26750]]

    (g) ECP brakes. (1) By January 1, 2021, each rail carrier operating 
a high-hazard flammable unit train as defined in Sec.  171.8, comprised 
of at least one tank car loaded with a Packing Group I material must 
ensure the train meets the ECP braking capability requirements as 
prescribed in Sec.  174.310 of this subchapter.
    (2) By May 1, 2023, each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, not described in 
paragraph (g)(1) of this section must ensure the train meets the ECP 
braking capability requirements as prescribed in Sec.  174.310 of this 
subchapter.
    (3) Alternate brake systems may be submitted for approval through 
the processes and procedures outlined in 49 CFR part 232, subpart F.


Sec.  179.202-13  Retrofit standard requirements (DOT-117R).

    (a) Applicability. Each tank retrofit under these specifications 
must conform to the general requirements of Sec.  179.200 and the 
prescriptive standards in Sec.  179.202-13, or the performance standard 
requirements of Sec.  179.202-12.
    (b) Approval to operate at 286,000 gross rail load (GRL). A tank 
car may be loaded to a gross weight on rail of up to 286,000 pounds 
(129,727 kg) upon approval by the Associate Administrator for Safety, 
Federal Railroad Administration (FRA). See Sec.  179.13.
    (c) Thickness of plates. The wall thickness after forming of the 
tank shell and heads must be, at a minimum, 7/16 of an inch, and 
constructed with steel authorized by the HMR at the time of 
construction.
    (d) Tank head puncture resistance system. The DOT-117R 
specification tank car must have a tank head puncture resistance system 
in conformance with Sec.  179.16(c). The full height head shields must 
have a minimum thickness of \1/2\ inch.
    (e) Thermal protection system. The DOT-117R specification tank car 
must have a thermal protection system. The thermal protection system 
must conform to Sec.  179.18 and include a reclosing pressure relief 
device in accordance with Sec.  173.31 of this subchapter.
    (f) Jackets. The entire thermal protection system must be covered 
with a metal jacket of a thickness not less than 11 gauge A1011 steel 
or equivalent; and flashed around all openings so as to be weather 
tight. The exterior surface of a carbon steel tank and the inside 
surface of a carbon steel jacket must be given a protective coating.
    (g) Bottom outlets. If the tank car is equipped with a bottom 
outlet, the handle must be removed prior to train movement or be 
designed with protection safety system(s) to prevent unintended 
actuation during train accident scenarios.
    (h) Top fittings protection. Existing tank car tanks may continue 
to rely on the equipment installed at the time of manufacture.
    (i) ECP brakes. (1) By January 1, 2021, each rail carrier operating 
a high-hazard flammable unit train as defined in Sec.  171.8, comprised 
of at least one tank car loaded with a Packing Group I material must 
ensure the train meets the ECP braking capability requirements as 
prescribed in Sec.  174.310 of this subchapter.
    (2) By May 1, 2023, each rail carrier operating a high-hazard 
flammable unit train as defined in Sec.  171.8, not described in 
paragraph (i)(1) of this section must ensure the train meets the ECP 
braking capability requirements as prescribed in Sec.  174.310 of this 
subchapter.
    (3) Alternate brake systems may be submitted for approval through 
the processes and procedures outlined in 49 CFR part 232, subpart F.

    Issued in Washington, DC on May 1, 2015, under the authority of 
49 U.S.C. 5103(b).
Anthony R. Foxx,
Secretary of Transportation.
[FR Doc. 2015-10670 Filed 5-7-15; 8:45 am]
 BILLING CODE 4910-60-P


