[Federal Register Volume 83, Number 186 (Tuesday, September 25, 2018)]
[Rules and Regulations]
[Pages 48393-48401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20647]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 174 and 179

[Docket No. PHMSA-2017-0102 (HM-251F)]
RIN 2137-AF35


Hazardous Materials: Removal of Electronically Controlled 
Pneumatic Brake System Requirements for High Hazard Flammable Unit 
Trains

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

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration, in 
coordination with the Federal Railroad Administration, is issuing this 
final rule to remove requirements pertaining to electronically 
controlled pneumatic brake systems on high-hazard flammable unit 
trains. This final action is based on the Department of 
Transportation's determination that the requirements are not 
economically justified.

DATES: Effective Date: This rule is effective September 25, 2018.

ADDRESSES: Docket: You may view the public docket online at http://www.regulations.gov or in person at Dockets Operations, M-30, Ground 
Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001 between 9 a.m. and 5 p.m. Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: For regulatory impact analysis-related 
questions, please contact Mark Johnson, Senior Economist, PHMSA, by 
telephone at 202-366-4495 or by email at [email protected], or Marc 
Fuller, Staff Director, RRS-21, FRA, by telephone at 202-366-9335 or by 
email at [email protected]. For rulemaking related questions, please 
contact Candace Casey, Transportation Specialist, PHMSA, by telephone 
at 202-366-8579 or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

Abbreviations and Terms

AAR Association of American Railroads
APA Administrative Procedure Act
CFR Code of Federal Regulations
CPC Casualty Prevention Circular
DOT Department of Transportation
DP system Distributive Power
EA Environmental Assessment
ECP Electronically Controlled Pneumatic
EOT End-of-Train
FAST Act Fixing America's Surface Transportation Act of 2015
FR Federal Register
FRA Federal Railroad Administration
GAO Government Accountability Office
HHFT High-Hazard Flammable Train
HHFUT High-Hazard Flammable Unit Train
HMR Hazardous Materials Regulations
HMT Hazardous Materials Table
NEPA National Environmental Policy Act
NPRM Notice of Proposed Rulemaking
NPV Net Present Value
NTSB National Transportation Safety Board
OMB Office of Management and Budget
PG Packing Group
PV Present Value
PHMSA Pipeline and Hazardous Materials Safety Administration
RFA Regulatory Flexibility Act
RIA Regulatory Impact Analysis
RIN Regulation Identifier Number
RSAC Railroad Safety Advisory Council
RSI Railway Supply Institute
TDG Transportation of Dangerous Goods
U.S.C. United States Code

[[Page 48394]]

Table of Contents

I. Background
II. Good Cause Justification
III. Section-by-Section Review
IV. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866, Executive Order 13563, Executive Order 
13610, and DOT Regulatory Policies and Procedures
    C. Executive Order 13771
    D. Executive Order 13132
    E. Executive Order 13175
    F. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    G. Unfunded Mandates Reform Act of 1995
    H. Paperwork Reduction Act
    I. Regulation Identifier Number (RIN)
    J. Environmental Assessment
    K. Privacy Act
    L. Executive Order 13609 and International Trade Analysis
    M. National Technology Transfer and Advancement Act
List of Subjects

I. Background

    On May 8, 2015, in collaboration with the Federal Railroad 
Administration (FRA), PHMSA published the final rule ``Hazardous 
Materials: Enhanced Tank Car Standards and Operational Controls for 
High-Hazard Flammable Trains'' (hereafter referred to as ``HM-251 final 
rule''). The HM-251 final rule was an integral part of the Department's 
comprehensive approach to ensuring the safe transportation of energy 
products by rail. Many provisions in HM-251, including those pertaining 
to advanced brake systems, were the culmination of industry-led efforts 
to improve tank car safety in anticipation of increased crude oil 
shipments by rail, which began in 2008.
    In September of 2007, FRA published a notice of proposed rulemaking 
(NPRM) proposing to revise FRA power brake regulations ``to provide for 
and encourage the safe implementation and use of ECP brake system 
technologies'' (72 FR 50820). The rulemaking was initiated following a 
joint petition by BNSF Railway (BNSF) and Norfolk Southern (NS) to FRA 
for a waiver from existing brake power requirements to allow those 
railroads to operate ECP brake pilot trains.\1\ The NPRM proposed 
incorporating by reference the Association of American Railroad's (AAR) 
existing ECP brake system standards. In December of 2008, FRA published 
a final rule adopting updated AAR ECP brake standards and granting 
regulatory relief from certain requirements tied to traditional power 
brakes (e.g. extended the distance between brake inspections for train 
operations using ECP brakes), which added regulatory flexibility by 
allowing the use of ECP brakes without the need to apply for a waiver.
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    \1\ The joint waiver petition was handled in a separate 
proceeding than FRA's ECP brake rulemaking. See Docket No. FRA-2006-
26435 at https://www.regulations.gov/docket?D=FRA-2006-26435.
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    In 2011, FRA and the Railway Supply Institute (RSI) met to discuss 
improvements to tank cars used for the transportation of crude oil in 
unit trains. The main intent of the meeting was to spur discussion 
about innovative ways to improve tank car safety for potential future 
changes in the hazardous materials transportation supply chain. The 
meeting resulted in the RSI members offering to develop an industry 
standard (non-regulatory in nature) in collaboration with the AAR, the 
Renewable Fuels Association (RFA), Growth Energy, and the American 
Petroleum Institute (API). This collaborative effort was conducted 
through AAR's Tank Car Committee Task Force, T87.6.\2\ The T87.6 Task 
Force carried out technical analyses and generated information for tank 
car safety improvements, including findings on alternative brake signal 
propagation systems (i.e., ``brake systems''). The advanced brake 
systems considered in the T87.6 Task Force meetings included 
conventional air brake systems, ECP brake systems, distributive power 
(DP) systems, and two-way end-of-train (EOT) devices.
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    \2\ On July 20, 2011, at the summer AAR Tank Car Committee 
meeting, Docket T87.6 was created with a dual charge: (1) To develop 
an industry standard for tank cars used to transport crude oil, 
denatured alcohol, and ethanol/gasoline mixtures; and (2) to 
consider operating requirements to reduce the risk of derailment of 
tank cars carrying crude oil classified as Packing Group I and II, 
and ethanol.
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    On September 6, 2013, PHMSA published an Advance Notice of Proposed 
Rulemaking (ANPRM) titled, ``Hazardous Materials: Rail Petitions and 
Recommendations To Improve the Safety of Railroad Tank Car 
Transportation'' (78 FR 54849), specifically requesting comments 
pertaining to the use of these advanced brake propagation systems to 
reduce the kinetic energy associated with a derailment based on the 
understanding that a reduction in kinetic energy would, on average, 
reduce the number of tank cars involved in the derailment. Similarly, 
FRA and the Railroad Safety Advisory Committee (RSAC) considered and 
evaluated the usefulness of advanced brake systems. On August 1, 2014, 
PHMSA issued an NPRM titled ``Hazardous Materials: Enhanced Tank Car 
Standards and Operational Controls for High-Hazard Flammable Trains'' 
(79 FR 45016). In the NPRM, PHMSA and FRA considered comments submitted 
to the ANPRM and, where relevant, proposed to adopt revisions based on 
the comments. Additionally, in the NPRM, PHMSA requested additional 
comments pertaining to advanced brake systems.
    On May 8, 2015, PHMSA issued the HM-251 final rule (80 FR 26644). 
In the final rule, PHMSA amended the Hazardous Materials Regulations 
(HMR; 49 CFR parts 171 through 180) by codifying new definitions for 
trains carrying large volumes of flammable liquids, ``high-hazard 
flammable trains'' (HHFTs) and ``high-hazard flammable unit trains'' 
(HHFUTs),\3\ and by implementing additional operational restrictions 
(e.g., requirements related to speed, braking systems, and routing) for 
such trains. Specifically, as it relates to this final rule, HM-251 
included amendments requiring all tank cars in HHFUTs operating under 
certain conditions to be equipped with ECP brake systems.
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    \3\ A high-hazard flammable train is a single train comprised of 
20 or more loaded tank cars containing a Class 3 flammable liquid in 
a continuous block, or 35 or more loaded tank cars containing a 
Class 3 flammable liquid across the entire train. A high-hazard 
flammable unit train is a train comprised of 70 or more loaded tank 
cars containing Class 3 flammable liquids.
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    On December 4, 2015, President Barack Obama signed the Fixing 
America's Surface Transportation Act of 2015 (FAST Act) into law. Title 
VII of the FAST Act, called the Hazardous Materials Transportation 
Safety Improvement Act of 2015, outlines several requirements 
pertaining to the HMR. Section 7311 specifically mandates the study and 
testing of ECP brake systems, focusing on requirements that were 
promulgated under the HM-251 final rule. Furthermore, the FAST Act 
instructs the Department of Transportation to incorporate the results 
of the Government Accountability Office's (GAO) evaluations and the 
testing of ECP brake systems by the National Academy of Sciences into 
an updated regulatory impact analysis (RIA) of the ECP brake system 
requirements, and to solicit public comment on the updated RIA. 
Additionally, the FAST Act required that within two years of the 
mandate, the DOT must determine, based on the updated RIA, whether the 
ECP brake system requirements in the HM-251 final rule were justified.
    In October 2016, GAO submitted a report \4\ with four major 
recommendations concerning the ECP

[[Page 48395]]

brake system requirements. GAO recommended that DOT: (1) When updating 
the RIA, take into account potential uncertainty in key variables and 
assumptions (e.g., fuel prices and future rail traffic of crude oil and 
ethanol), discuss this uncertainty, and present ranges of possible 
scenarios; (2) create a plan to collect data from railroads' ongoing 
and future operational experiences using ECP brake systems; (3) require 
freight railroads to collect and provide data to FRA on their ongoing 
operational experience with ECP brake systems if a new requirement were 
adopted; and (4) publish information that would allow a third party to 
fully assess and replicate the analysis used in support of the HM-251 
final rule. In May 2017, GAO produced a separate report \5\ in response 
to a congressional inquiry, which further indicated that DOT's 
forecasted values for some of the variables associated with the 
transportation by rail of crude oil and ethanol (such as the forecasted 
number of tank cars used to ship crude oil and ethanol, derailment 
rate, average amount of product lost per derailment, and number of 
injuries and deaths) may be higher than values realized in 2015 and 
2016 based on preliminary data.
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    \4\ DOT's Rulemaking on Electronically Controlled Pneumatic 
Brakes Could Benefit from Additional Data and Transparency, GAO-17-
122, Oct. 12, 2016.
    \5\ 2015 Electronically Controlled Pneumatic Brake Rule: 
Comparison of DOT Forecasts for Selected Data Points for 2015 and 
2016 to Preliminary Data for Those Years, GAO-17-567R, May 31, 2017.
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    In October 2017, PHMSA and FRA published a notice of availability 
and request for comments (82 FR 48006) on a revised RIA updating the 
original RIA associated with the ECP brake provisions. As mandated by 
the FAST Act, DOT updated the RIA and made a determination regarding 
whether the applicable ECP brake system requirements are economically 
justified. Based on that revised analysis, the Department determined 
that the expected benefits, including safety benefits, of implementing 
ECP brake system requirements do not exceed the associated costs of 
equipping tank cars with ECP brake systems, and therefore are not 
economically justified. For this reason, PHMSA is issuing this final 
rule to remove the ECP brake system requirements from the HMR.
    The estimated costs and benefits for the 20-year analysis used in 
the final revised RIA are presented in Table 1 (below) in three 
different scenarios labeled ``high,'' ``low,'' and ``sensitivity.'' The 
three scenarios are based on various levels of future crude oil shipped 
by rail, to reflect uncertainty regarding those future volumes and to 
evaluate the ECP brake system requirements over a reasonably wide range 
of scenarios to determine whether the cost-benefit ratio would be 
affected by varying levels of crude oil transportation by rail.
    The scenario labeled ``high'' describes a projection in which the 
highest crude oil by rail volumes of the three scenarios were produced. 
The ``high'' scenario was derived from an analysis by linear regression 
of crude oil carloads on crude oil production volumes using data from 
2010 through 2016. A similar model was run comparing volumes of ethanol 
shipped by rail to ethanol production volumes. The forecasted streams 
of rail carloads from both models were then added to obtain the total 
forecast carload volume as presented in Table 8.2a of the docketed RIA.
    The ``low'' scenario presents a crude oil volume forecast that is 
essentially flat at the 5-year average at a lower volume than that 
produced by the linear forecast described above. The ``low'' scenario 
used the linear forecast model for ethanol as described above to 
forecast ethanol carload volumes and used an average of the most recent 
5 years for which data is complete (2012-2016) to forecast crude oil 
volumes into the future. These years coincide with the emergence of 
high crude oil by rail volumes (volumes in excess of 100,000 carloads 
per year). The carload figures for this forecast are also presented in 
Table 8.2a of the docketed RIA.
    Finally, DOT examined a third scenario which forecast crude oil by 
rail volumes to continue their recent decline for a few more years and 
bottom out at 120,000 carloads per year, which were added to the linear 
ethanol forecast volumes as described above in the ``high'' scenario 
description. This scenario was presented in the sensitivity analysis 
section, and hence was labeled ``sensitivity'' in the table. It 
produced the lowest volume crude oil by rail forecast of the three 
scenarios, and was intended to capture the potential impacts of 
increased pipeline capacity or other factors that might lead to further 
declines in crude oil by rail volumes. These scenarios capture a wide 
range of future flammable liquids by rail volumes, over which the ECP 
brake requirements were evaluated. As can be seen below, and as 
reflected in the final updated RIA, the ECP brake system requirements 
are not expected to be cost-beneficial under any scenario assessed.

                                                        Table 1--Costs and Benefits Over 20 Years
                                                                  [Millions of dollars]
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                                                                             7 Percent                                       3 Percent
                                                         -----------------------------------------------------------------------------------------------
                                                                Low            High         Sensitivity         Low            High         Sensitivity
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Tank Cars...............................................         $237.76         $318.49         $165.00         $256.18         $341.52         $178.39
Locomotives.............................................          105.03          140.42           77.13          110.79          147.39           81.84
Asset Management........................................            0.52            0.52            0.52            0.52            0.52            0.52
Training................................................           32.29           32.29           32.29           34.62           34.62           34.62
    Total Costs.........................................          375.60          491.72          274.95          402.11          524.05          295.37
Damage Mitigation.......................................           48.16           78.19           37.36           67.19          109.44           52.41
Set Out Reliefs.........................................            5.87            7.46            3.56            8.24           10.55            4.97
Class IA Brake Test.....................................           27.54           46.04           21.68           45.07           65.12           30.24
Wheel Savings...........................................           26.77           37.40           17.87           36.08           52.90           24.93
Fuel Savings............................................           22.70           28.85           13.79           31.90           40.81           19.23
    Total Benefits......................................          131.03          197.95           94.27          188.49          278.81          131.78
        Net Benefits....................................         -244.57         -293.78         -180.68         -213.63         -245.24         -163.59
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[[Page 48396]]

II. Good Cause Justification

    PHMSA is issuing this final rule without providing an opportunity 
for public notice and comment as is normally provided under the 
Administrative Procedure Act (APA; 5 U.S.C. 553). The APA authorizes 
agencies to dispense with certain notice and comment procedures if the 
agency finds good cause that notice and public procedures thereon are 
impracticable, unnecessary, or contrary to the public interest. See 5 
U.S.C. 553(b)(3)(B). Good cause exists because PHMSA and FRA are 
following the procedures established in section 7311 of the FAST Act, 
which requires DOT to prepare a draft updated RIA, seek public comment 
on the draft updated RIA, prepare a final updated RIA, and make a 
determination whether the ECP brake system provisions for HHFUTs were 
justified, based on the costs and the benefits. On December 4, 2017, 
the Department determined that the ECP brake system provisions in the 
HM-251 final rule were not justified. This rulemaking action codifies 
that determination. The public was afforded an opportunity to comment 
on the revised RIA that formed the basis for determination of whether 
the ECP brake system requirements would be removed from the HMR. (See 
Section I of this revised final rule.) In this sense, the public has 
had an opportunity to provide useful information related to this 
regulatory action. However, having come to its determination that the 
ECP brake system requirement is not economically justified, PHMSA's 
adoption of this rule is non-discretionary.
    This final rule addresses a Congressional mandate instructing the 
Department to make a determination on whether the ECP brake provisions 
in the HM-251 final rule were justified by December 4, 2017. Section 
7311 of the FAST Act established a clearly defined procedure for making 
that determination. PHMSA's actions in this final rule merely codify 
the Department's determination in the HMR.\6\ Publishing a notice of 
proposed rulemaking and seeking comment on the proposal would 
unnecessarily impede the due and timely execution of PHMSA's regulatory 
functions by delaying the codification of a non-discretionary 
regulatory action. In making these ministerial amendments to give 
effect to the Deparment's determination, PHMSA is not exercising 
discretion in a way that could be informed by public comment. As such, 
notice and comment procedures are ``impracticable, unnecessary, or 
contrary to the public interest'' within the meaning of the APA (5 
U.S.C. 553(b)(3)(B)).
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    \6\ The Secretary has delegated this authority to PHMSA. See 49 
CFR 1.97.
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    Furthermore, this final rule is effective on the day of publication 
in the Federal Register. The APA requires agencies to delay the 
effective date of regulations for 30 days after publication, unless the 
agency finds good cause to make the regulations effective sooner. See 5 
U.S.C. 553(d). As previously discussed, PHMSA finds that good cause 
exists to publish this rulemaking without a notice of proposed 
rulemaking and opportunity for public comment and to make the 
regulations effective prior to 30 days after publication. This rule 
simply implements the determination of the Department, which was made 
in accordance with the specific process designated in section 7311 of 
the FAST Act; therefore, PHMSA would be unable to adjust the text of 
the rule to account for any public comment.

III. Section-by-Section Review

Part 174

Section 174.310

    Section 174.310 outlines additional safety requirements, such as 
routing, speed restrictions, and brake system requirements specific to 
HHFTs and HHFUTs. A rail carrier must comply with these additional 
requirements if they operate an HHFT or HHFUT as defined in Sec.  
171.8. Section 174.310(a)(3) requires advanced brake systems (e.g., 
two-way end-of-train devices, distributive power, and ECP brake 
systems) for HHFTs and HHFUTs transporting hazardous materials under 
certain conditions. Specifically, Sec.  174.310(a)(3)(ii) requires that 
HHFUTs comprised of at least one tank car that is loaded with a Packing 
Group (PG) I material and operating at speeds exceeding 30 mph be 
equipped with ECP brakes after January 1, 2021. Similarly, paragraph 
(a)(3)(iii) requires that all other HHFUTs not described in paragraph 
(a)(3)(ii) be equipped with ECP brakes after May 1, 2023, if operating 
at speeds exceeding 30 mph. Paragraph (a)(3)(iv) states that each 
buffer car in an HHFUT that is not equipped with ECP brakes will be 
counted in determining the percentage of cars with effective and 
operative brakes, as required under 49 CFR 232.609, which requires that 
a train have a minimum percentage of operative brakes. Since the ECP 
brake system requirements are being removed, we are removing this 
accounting provision as it no longer applies. Lastly, paragraph 
(a)(3)(v) allows the use of an alternative brake system with approval 
from FRA in accordance with the processes and procedures outlined in 49 
CFR part 232, subpart F. The approval provision is also being removed, 
as we have determined that restating this option is superfluous, given 
that approval provisions for new rail brake system technology are 
outlined in 49 CFR part 232, subpart F.
    Further, Sec.  174.310(a)(5) outlines requirements for retrofit 
reporting by owners of non-jacketed DOT-111 tank cars in PG I service 
in an HHFUT. Specifically, paragraph (a)(5)(v) requires owners to 
report the number of tank cars built or retrofitted to a DOT-117, 117R, 
or 117P specification that are ECP brake-ready or ECP brake-equipped. 
Because we are removing the ECP brake system requirements, we are also 
deleting the requirement to report those tank cars that are ECP brake 
system ready or equipped.
    Therefore, as mandated by section 7311 of the FAST Act and based on 
our determination that ECP brake system requirements are not justified, 
PHMSA is removing the requirements in Sec.  174.310 for high-hazard 
flammable unit trains to be equipped with ECP brake systems, for 
approval of the use of alternative brake systems, and for retrofit 
status reports on ECP brake system readiness and use.

Part 179

    Subpart D of title 49, part 179 outlines DOT specification 
requirements for non-pressure tank cars including DOT-117s added under 
the HM-251 final rule.

Section 179.102-10

    Section 179.102-10 outlines ECP brake system capability 
requirements consistent with Sec.  174.310 for DOT-117 specification 
tank cars. Paragraph (a) requires each rail carrier operating an HHFUT 
that is comprised of at least one tank car loaded with a PG I material 
must ensure that the train meets the ECP braking capability 
requirements by January 1, 2021. Paragraph (b) requires each rail 
carrier operating an HHFUT that is not described in paragraph (a) to 
ensure that the train meets the ECP braking capability requirements by 
May 1, 2023. Paragraph (c) allows the use of an alternative brake 
system with approval from FRA. As mandated by the FAST Act and based on 
the Departments determination that ECP brake system requirements are 
not justified, PHMSA is removing the requirements to ensure that HHFUTs 
meet the ECP braking capability requirements. Additionally, the 
provision for approval of alternate brake

[[Page 48397]]

systems is being removed, as reference to 49 CFR part 232, subpart F, 
is superfluous in the absence of the ECP brake system requirements.

Section 179.202-12

    Section 179.202-12 prescribes the performance standard requirements 
for DOT-117P tank cars. Paragraph (g)(1) requires rail carriers 
operating an HHFUT that is comprised of at least one tank car loaded 
with a PG I material to ensure that the train meets the ECP braking 
capability requirements by January 1, 2021. Paragraph (g)(2) requires 
rail carriers operating an HHFUT not described in paragraph (g)(1) to 
ensure that the train meets the ECP braking capability requirements by 
May 1, 2023. Paragraph (g)(3) allows the use of an alternative brake 
system with approval from FRA. Therefore, as mandated by the FAST Act 
and based on the Department's determination that ECP brake system 
requirements are not justified, PHMSA is removing the requirements to 
ensure that HHFUTs meet the ECP braking capability requirements. 
Additionally, the approval provision for alternate brake systems is 
being removed, as reference to 49 CFR part 232, subpart F, is 
superfluous in the absence of the ECP brake system requirements.

Section 179.202-13

    Section 179.202-13 prescribes retrofit standards for existing non-
pressure DOT-117 tank cars. Paragraph (i)(1) requires rail carriers 
operating an HHFUT that is comprised of at least one tank car loaded 
with a PG I material to ensure the train meets the ECP braking 
capability requirements specified in Sec.  174.310 by January 1, 2021. 
Paragraph (i)(2) requires rail carriers operating HHFUTs not described 
in paragraph (i)(1) to ensure the train meets the ECP braking 
capability requirements in Sec.  174.310 by May 1, 2023. Paragraph 
(i)(3) allows the use of an alternative brake system with approval from 
FRA.
    As mandated by the FAST Act and based on the Department's 
determination that ECP brake system requirements are not justified, 
PHMSA is deleting the requirements to ensure that HHFUTs meet the ECP 
braking capability requirements. Additionally, the approval provision 
for alternative brake systems is being removed, as reference to 49 CFR 
part 232, subpart F, is superfluous in the absence of the ECP brake 
system requirements.

IV. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of Federal 
Hazardous Materials Transportation Law (Federal Hazmat Law; 49 U.S.C. 
5101 et seq.), and the Federal Railroad Safety Laws (49 U.S.C. ch. 201-
213). Section 5103(b) of the Federal Hazmat Law authorizes the 
Secretary to prescribe regulations for the safe transportation, 
including security, of hazardous material in intrastate, interstate, 
and foreign commerce. Section 20103 of the Federal Railroad Safety 
Laws, authorizes the Secretary to prescribe regulations and issue 
orders for every area of railroad safety.

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

1. Background
    As previously discussed, the HM-251 final rule amended the HMR by 
adopting heightened brake system requirements for HHFUTs. Specifically, 
it required an HHFUT meeting certain operational and train makeup 
conditions to be equipped with and operate an ECP brake system. These 
trains were subject to a two-staged implementation schedule. The first 
stage required that certain HHFUTs be equipped and operate an ECP brake 
system by January 1, 2021. The second stage required remaining trains 
be equipped and operate an ECP brake system by May 1, 2023.
    The FAST Act instructed GAO to conduct an independent evaluation of 
ECP brake systems and DOT to contract with the National Academy of 
Sciences (NAS) to conduct testing and analysis on ECP brake systems to 
help assess the costs and benefits of the ECP brake system requirements 
adopted in the HM-251 final rule. Based on the updated regulatory 
impact analysis, which incorporates the findings of GAO and NAS, PHMSA 
is removing the ECP brake system requirements for HHFUTs in this final 
rule.
2. Executive Orders
    This final rule is not a significant regulatory action within the 
meaning of Executive Order 12866 (E.O. 12866) and DOT policies and 
procedures. See 44 FR 11034 (Feb. 26, 1979). DOT made this 
determination by finding that the economic effects of this regulatory 
action will not have an effect on the economy that exceeds the $100 
million annual threshold defined by E.O. 12866 and that the regulatory 
action is not otherwise significant.
    In December 2017, DOT prepared and placed an updated Regulatory 
Impact Analysis (RIA) in the docket (Docket no. PHMSA-2017-0102-0035) 
updating the economic impact of the ECP brake system provisions in the 
May 8, 2015, final rule titled ``Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains.'' (See 80 FR 
26644; HM-251.) The RIA estimated the costs and benefits of the ECP 
provisions that were likely to be incurred over a twenty-year period. 
DOT estimated the costs and benefits of the final rule using discount 
rates of 3 percent and 7 percent.
    PHMSA is eliminating the requirement that rail carriers install ECP 
brake systems on trains transporting Class 3 flammable liquid hazardous 
materials. The FAST Act required DOT to enter into an agreement with 
NAS to test ECP brakes and reevaluate the economic analysis supporting 
the ECP brake system requirements of the HM-251 final rule. Using the 
2017 Final RIA, DOT estimated the net cost savings that will be 
realized by removing the ECP brake system requirements. For the 20-year 
period analyzed, the estimated net cost savings are between $280.8 
million and $354.7 million, discounted at 3 percent, and between $292.7 
million and $372.0 million, discounted at 7 percent.
    Cost savings of this final rule will be realized in several 
categories. First, tank cars would no longer need to be equipped with 
ECP brakes. The cost savings projections assume that a large portion of 
the existing tank car fleet would have been retrofitted with ECP brake 
systems. Second, railroads would not be required to install ECP brake 
systems on locomotives. The 2017 RIA assumed that any locomotive 
required to be equipped with ECP brakes would have incurred certain 
costs to be retrofitted. Third, cost savings will now be realized as 
rail carriers will no longer be required to train employees on the use 
of ECP brakes. Current employees would have been trained on ECP brakes 
within the first three years. Additionally, when new employees started, 
they would have been trained on ECP brakes.
    In the HM-251 final rule and the updated RIA, DOT estimated that 
rail carriers would realize business benefits in several categories 
with the implementation of ECP brake systems. First, rail carriers 
would receive relief from fewer set-outs (i.e., cars taken out of 
service due to a defect). When a car with defective conventional brakes 
must be removed from the train, a ``set-out''

[[Page 48398]]

occurs. ECP brake systems would have removed the need for some set-outs 
as the train could have traveled to the nearest forward repair location 
with a car with defective brakes. Second, trains would be allowed to 
travel farther between required brake tests. Third, due to the reduced 
wear on wheels, wheelsets would not be replaced as frequently. The 
final business benefit was reduced fuel usage. DOT estimated a one 
percent reduction in fuel usage due to ECP brake systems.
    Since the 2015 ECP brake system requirements are being removed from 
the hazmat regulations, rail carriers will no longer receive the 
business benefits cited in the 2015 final rule. This offsets some of 
the cost savings. Table 2, below, shows the costs savings and 
offsetting business benefits by category, and the total net cost 
savings.

                             Table 2--Cost Savings and Offsetting Business Benefits
                                              [Millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                             7 Percent                       3 Percent
                                                 ---------------------------------------------------------------
                                                        Low            High             Low            High
----------------------------------------------------------------------------------------------------------------
Tank Cars.......................................         $237.76         $318.49         $256.18         $341.52
Locomotives.....................................          105.03          140.42          110.79          147.39
Asset Management................................            0.52            0.52            0.52            0.52
Training........................................           32.29           32.29           34.62           34.62
    Total Cost Savings..........................          375.60          491.72          402.11          524.05
Set Out Reliefs.................................            5.87            7.46            8.24           10.55
Class IA Brake Test.............................           27.54           46.04           45.07           65.12
Wheel Savings...................................           26.77           37.40           36.08           52.90
Fuel Savings....................................           22.70           28.85           31.90           40.81
    Total Offsetting Business Benefits..........           82.87          119.75          121.29          169.37
    Total Net Cost Savings......................          292.73          371.97          280.82          354.68
    Annualized Net Cost Savings.................           27.63           35.11           18.88           23.84
----------------------------------------------------------------------------------------------------------------

    Using low and high ranges, for the 20-year period of analysis, the 
cost savings are between $280.8 million and $354.7 million, discounted 
at 3 percent, and between $292.7 million and $372.0 million, discounted 
at 7 percent. The annualized net cost savings are between $27.6 million 
and $35.1 million, discounted at 7 percent.
    Our analysis in response to the FAST Act mandate also assessed the 
safety effects of ECP brake systems. Although the tests of ECP brake 
system effectiveness mandated by the FAST Act resulted in a lower 
safety improvement factor than was used in promulgating the 2015 final 
rule, they continued to demonstrate that ECP brake systems are more 
effective than conventional brake systems. As a result, deletion of the 
ECP brake system requirements from the HMR is forecast to modestly 
reduce future safety performance, which may result in larger spill 
sizes and associated damages for future derailments than would be the 
case if they were maintained.
    With the removal of the ECP brake systems requirements from the 
2015 rule, the predicted future safety benefits will be foregone. 
Estimated discounted values were between $48.2 million and $78.2 
million over 20 years at 7 percent, and between $67.2 million and 
$109.4 million at 3 percent. Annualized safety benefits were estimated 
at between $4.5 million and $7.4 million at both 3 percent and 7 
percent discount rates. Table 3, below, shows the safety benefits 
estimated for the ECP brake system requirements of the 2015 final rule.

                                       Table 3--2015 Rule Safety Benefits
                                              [Millions of dollars]
----------------------------------------------------------------------------------------------------------------
                                                             7 Percent                       3 Percent
                                                 ---------------------------------------------------------------
                                                        Low            High             Low            High
----------------------------------------------------------------------------------------------------------------
Safety Benefits.................................          $48.16          $78.19          $67.19         $109.44
Annualized......................................            4.55            7.38            4.52            7.36
----------------------------------------------------------------------------------------------------------------

    In the intervening years since the HM-251 final rule, the rail 
industry attained significant safety improvements transporting 
flammable liquids, with declines in both incident rates and spill size.

C. Executive Order 13771

    This final rule is considered an E.O. 13771 deregulatory analysis. 
Details on the estimated cost savings of this final rule can be found 
above.

D. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria in Executive Order 13132 (``Federalism''). This final rule 
does not impose any regulation that has substantial direct effects on 
States, the relationship between the National Government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. While the final rule could act to preempt 
State, local, and Indian tribe requirements by operation of law, PHMSA 
is not aware of any such requirements that are substantively different 
than what is required by the final rule. Therefore, the consultation 
and funding requirements of Executive Order 13132 do not apply.
    The Federal Hazardous Materials Transportation Law, 49 U.S.C. 5101-
5128, contains express preemption provisions (49 U.S.C. 5125) that 
preempt inconsistent State, local, and

[[Page 48399]]

Indian tribe requirements, including requirements on the following 
subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This rule addresses item (5) described above and, accordingly, 
State, local, and Indian tribe requirements on this subject that do not 
meet the ``substantively the same'' standard will be preempted. Federal 
preemption also may exist pursuant to Section 20106 of the former 
Federal Railroad Safety Act of 1970 (FRSA), repealed, revised, 
reenacted, and recodified at 49 U.S.C. 20106, and the former Safety 
Appliance Acts (SAA), repealed revised, reenacted, and recodified at 49 
U.S.C. 20301-20304, 20306. Section 20106 of the former FRSA provides 
that States may not adopt or continue in effect any law, regulation, or 
order related to railroad safety or security that covers the subject 
matter of a regulation prescribed or order issued by the Secretary of 
Transportation (with respect to railroad safety matters) or the 
Secretary of Homeland Security (with respect to railroad security 
matters), except when the State law, regulation, or order qualifies 
under the section's ``essentially local safety or security hazard.'' 
The former SAA has been interpreted by the Supreme Court as preempting 
the field ``of equipping cars with appliances intended for the 
protection of employees.'' Southern Ry. Co. v. R.R. Comm'n of Ind., 236 
U.S. 439, 446 (1915). The train's power braking system is considered a 
safety appliance within the terms of the former SAA. 49 U.S.C. 
20302(a)(5).
    The Federal Hazardous Materials Transportation Law provides at 
Section 5125(b)(2) that, if DOT issues a regulation concerning any of 
the covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
a final rule and not later than two years after the date of issuance. 
The effective date of Federal preemption is December 24, 2018. This 
effective date for preemptive effect should not conflict with the 
overall effective date for this final rule because the regulation of 
hazardous materials transport in commerce generally preempts State and 
local requirements. Historically, the States and localities are aware 
of this preemptive effect and do not regulate in conflict with Federal 
requirements in these situations.

D. Executive Order 13175

    This final rule has been analyzed in accordance with the principles 
and criteria in Executive Order 13175 (``Consultation and Coordination 
with Indian Tribal Governments''). Executive Order 13175 requires 
agencies to assure meaningful and timely input from Indian tribal 
government representatives in the development of rules that have tribal 
implications. Because this final rule does not have tribal 
implications, the funding and consultation requirements of Executive 
Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    Section 603 of the Regulatory Flexibility Act (RFA) requires an 
agency to prepare an initial regulatory flexibility analysis describing 
effects on small entities whenever an agency is required by 5 U.S.C. 
553 to publish a general notice of proposed rulemaking for any proposed 
rule. Similarly, section 604 of the RFA requires an agency to prepare a 
final regulatory flexibility analysis when an agency issues a final 
rule under 5 U.S.C. 553 after being required to publish a general 
notice of proposed rulemaking.
    This action is a non-discretionary final rule addressing 
congressional mandates under the FAST Act of 2015. As prior notice and 
opportunity for comment under 5 U.S.C. 553 are not required in this 
situation, a regulatory flexibility analysis--as would otherwise be 
required per 5 U.S.C. 603-604--was not performed. However, as mandated 
by the FAST Act, PHMSA reviewed and updated the RIA supporting the HM-
251 final rule, which initially adopted the ECP brake system 
requirements. The original RIA found that, while the ECP brake system 
requirements from that final rule would have a direct effect on some 
small railroads, this effect would not have a significant impact. 
Therefore, the repeal of the ECP brake system requirement will create a 
limited benefit for a small number of small entities. PHMSA's rationale 
is as follows.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for-profit ``linehaul railroad'' 
that has fewer than 1,500 employees, a ``short line railroad'' with 
fewer than 500 employees, or a ``commuter rail system'' with annual 
receipts of less than $15 million. See ``Size Eligibility Provisions 
and Standards,'' 13 CFR part 121, subpart A. 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 
published a final statement of agency policy that formally defines 
``small entities'' or ``small businesses'' as being railroads, 
contractors, and hazardous materials shippers that meet the revenue 
requirements of a Class III railroad as set forth in 49 CFR 1201.1-1 
(i.e., $20 million or less in inflation-adjusted annual revenues) or 
commuter railroads or small governmental jurisdictions that serve 
populations of 50,000 or less. See 68 FR 24891 (May 9, 2003), codified 
at 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. DOT is 
using this definition for this rulemaking.
    Under the 2015 final rule, any railroad that operates at speeds 30 
mph or less, as is the case for most small railroads, would not have 
been affected by the ECP brake system requirements. Additionally, as 
most small railroads do not travel long distances, this requirement for 
reduced speed did not cause any significant impact. Therefore, of the 
approximately 690 Class III railroads, most were not affected by the 
2015 final rule, and consequently, will not be affected by this final 
rule.
    Those affected would be small rail carriers that have relatively 
short mileage connecting two or more larger rail carriers and that may 
operate trains at speeds higher than 30 mph. The impact would not be 
significant,

[[Page 48400]]

however, as these entities do not originate HHFUTs, but may serve as a 
connecting line between larger railroads or allow the larger rail 
carriers to operate HHFUTs over their track. All HHFUTs from larger 
rail carriers would be assembled such that locomotives and cars with 
ECP brake systems are kept together, precluding speed restrictions 
under the 2015 final rule. Furthermore, as this final rule is a 
deregulatory action, this small impact would also be beneficial for 
small railroads.

F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $155 
million or more, adjusted for inflation, to either State, local, or 
tribal governments, in the aggregate, or to the private sector in any 
one year.

G. Paperwork Reduction Act

    PHMSA currently has an approved information collection under OMB 
Control Number 2137-0628 titled, ``Flammable Hazardous Materials by 
Rail Transportation,'' with an expiration date of March 31, 2019. This 
final rule will result in a minor decrease in the time spent to submit 
reports pertaining to ECP brake-ready or ECP brake-equipped tank cars, 
but does not necessitate the revision of this information collection 
package in either the annual burden or cost for changes under part 110.

H. Regulation Identifier Number (RIN)

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

I. National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
environmental impacts of proposed actions in their decision-making. 
However, the FAST Act mandates that the results of the updated 
regulatory impact analysis determine whether the ECP brake requirements 
remain in place. If the regulatory impact analysis shows that the 
benefits exceed the costs of the ECP braking requirements, the FAST Act 
requires the Secretary to publish a ``determination,'' in the Federal 
Register. If the Secretary is unable to support such a 
``determination,'' the FAST Act requires the repeal of the ECP brake 
system requirements. Because the final updated regulatory impact 
analysis showed that the expected costs of ECP brake system 
requirements are greater than the expected benefits, the Department is 
required to promulgate this repeal.
    The FAST Act removed the Secretary's discretion to consider 
anything other than the costs and benefits outlined in the RIA. 
Although PHMSA performed a NEPA analysis with respect to the broader 
rulemaking, the FAST Act precludes consideration of alternatives and 
their environmental effects under NEPA for this repeal.

J. Privacy Act

    Anyone may search the electronic form of any written communications 
and comments received into any of our dockets by the name of the 
individual submitting the document (or signing the document, if 
submitted on behalf of an association, business, labor union, etc.). 
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.

K. Executive Order 13609 and International Trade Analysis

    Under Executive Order 13609 (``Promoting International Regulatory 
Cooperation''), 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 (Pub. L. 96-39), as 
amended by the Uruguay Round Agreements Act (Pub. L. 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 
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.

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.
    Although this is a non-significant regulatory action under 
Executive Order 12866, PHMSA has evaluated this action in accordance 
with Executive Order 13211 and has determined this action will not have 
a significant adverse effect on the supply, distribution, or use of 
energy. Consequently, PHMSA has determined this regulatory action is 
not a ``significant energy action'' within the meaning of Executive 
Order 13211.

List of Subjects

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.

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

[[Page 48401]]

PART 174--CARRIAGE BY RAIL

0
1. 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
2. In Sec.  174.310, paragraphs (a)(3) and (5) are revised to read as 
follows:


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

    (a) * * *
    (3) Braking. 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.
* * * * *
    (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) of this subchapter 
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) 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.
* * * * *

PART 179--SPECIFICATIONS FOR TANK CARS

0
3. 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.

Sec.  179.102-10   [Removed]

0
4. In subpart D, Sec.  179.102-10 is removed.


Sec.  179.202-12  [Amended]

0
5. In Sec.  179.202-12, paragraph (g) is removed.


Sec.  179.202-13  [Amended]

0
6. In Sec.  179.202-13, paragraph (i) is removed.

    Issued in Washington, DC, on September 18, 2018, under authority 
delegated in 49 CFR 1.97.
Howard McMillan,
Executive Director, Pipeline and Hazardous Materials Safety 
Administration.
[FR Doc. 2018-20647 Filed 9-24-18; 8:45 am]
 BILLING CODE 4910-60-P


