securement of tank cars on          practice document. Securement and
 private track.                      security of loaded hazardous
                                     materials cars on private track:
                                    ``It has come to FRA's attention
                                     that cuts of loaded hazardous
                                     materials cars are being stored on
                                     track that is exclusively leased,
                                     and meets the definition of private
                                     track, but that may not be adjacent
                                     to a shipper or consignee facility.
                                     These stored cars are of great
                                     concern to the general public
                                     living in nearby communities. The
                                     cars are being stored in other
                                     locations simply for available
                                     space reasons--there isn't
                                     available storage space closer to a
                                     consignee facility. If the cars are
                                     stored on track that meets the
                                     definition of ``private track''
                                     they are considered to be no longer
                                     in transportation, and the
                                     hazardous materials regulations do
                                     not apply. Nonetheless, FRA
                                     strongly recommends the following
                                     as best practices that may enhance
                                     the safety and security of stored
                                     hazardous materials cars.''
                                    ``FRA recommends that companies
                                     (party in control of private track
                                     as defined in Sec.   171.8) review
                                     the private track locations where
                                     cuts of hazardous materials cars
                                     (20 or more cars) are regularly
                                     stored to determine the following:
                                    1. Whether additional attendance,
                                     monitoring, or other security
                                     measures may be appropriate;
                                    2. Whether an adequate and
                                     appropriate number of handbrakes
                                     are set on the cuts of cars that
                                     will ensure that there is no
                                     unintended movement of the cars;
                                    3. Whether all of the hazard
                                     communication information
                                     (placards, emergency response
                                     information) be maintained as they
                                     would if the cars were in
                                     transportation, and that this
                                     information may be available to
                                     emergency responders if
                                     requested.''
PHMSA re-engage their regulatory    In 2003, the Research and Special
 authority over certain aspects of   Programs Administration (RSPA), the
 loading, unloading and storage of   predecessor agency to PHMSA,
 tank cars containing hazardous      clarified its regulatory
 materials.                          jurisdiction over the loading,
                                     unloading, and storage of hazardous
                                     materials. 68 Fed. Reg. 61906
                                     (October 30, 2003). The intent was
                                     to clarify where transportation
                                     began and ended, and thus, where
                                     PHMSA jurisdiction began and ended.
                                     In the rail mode, certain aspects
                                     of the storage, loading, and
                                     unloading of hazardous materials to
                                     and from rail tank cars were no
                                     longer regulated, and those
                                     requirements were removed from the
                                     CFR. The thought was that the
                                     loading, unloading, and storage
                                     were more appropriately workplace
                                     issues better addressed by an
                                     agency such as OSHA. PHMSA
                                     continued to regulate certain ``pre-
                                     transportation functions'' that it
                                     believed were clearly tied to
                                     transportation safety, such as the
                                     securement of closures on rail tank
                                     cars after loading but before
                                     offering the package to a carrier.
                                     This proposal is not intended to
                                     change the current regulation of
                                     OSHA over workplace safety issues
                                     related to loading, unloading, and
                                     storage of railroad tank cars.
                                    As certain industries that ship
                                     hazardous materials by rail have
                                     evolved, and as some loading,
                                     unloading, storage, and
                                     transportation practices have
                                     changed, DOT believes it may be
                                     appropriate to re-engage on these
                                     subjects. DOT believes that there
                                     may be aspects of these procedures
                                     that directly affect transportation
                                     safety, and that it would be
                                     appropriate for to regulate them.
Align definition of Appendix A      Appendix A to Emergency Order 28
 train with ``Key Train'' from OT-  Any train transporting:
 55-N.                              1. One or more tank car loads of
                                     materials poisonous by inhalation
                                     as defined in 49 CFR 171.8, and
                                     including anhydrous ammonia (UN
                                     1005) and ammonia solutions (UN
                                     3318); or
                                    2. 20 or more rail car loads or
                                     intermodal portable tank loads of
                                     any material listed in (1) above,
                                     or bulk car loads Division 2.1
                                     flammable gases, Class 3 flammable
                                     liquids, or hazardous substances
                                     listed in 49 CFR 173.31(f)(2); or
                                     rail car loads of packages of
                                     Division 1.1 or 1.2 explosives.
------------------------------------------------------------------------

    PHMSA solicits information and comment on any alternate approaches
that may be contained in or considered as part of any recommendation
from the RSAC to FRA regarding the proposals in this NPRM.
    FRA and PHMSA are active participants and observers of the AAR Tank
Car Committee. This committee is comprised of the AAR, railroads, tank
car owners, manufacturers, and shippers, with active participation from
U.S. and Canadian regulators. The AAR Tank Car Committee works together
to develop technical standards for how tank cars, including those used
to transport hazardous materials, are designed and constructed. PHMSA
also participates as a working member in API's Classification and
Loading of Crude Oil Standard Development Working Group.
    On November 20, 2013, PHMSA and FRA issued a follow-up Joint Safety
Advisory to reinforce the importance of proper characterization,
classification, and selection of a packing group for Class 3 (flammable
liquid) materials, and the corresponding regulations for safety and
security planning. The Advisory reinforced the Department's position
that we expect rail offerors and rail carriers to revise their safety
and security plans required by the HMR, including the required risk
assessments, to address the safety and security issues identified in
FRA's Emergency Order No. 28 and the August 7, 2013, joint Safety
Advisory (78 FR 69745). The Advisory was supplemented with enhanced
enforcement operations by FRA to ensure compliance with the applicable
requirements.
    On January 2, 2014, PHMSA issued a Safety Alert warning of crude
oil variability and emphasized proper and sufficient testing to ensure
accurate characterization and classification of this hazardous
material. Proper characterization and classification of a hazardous
material are integral for the HMR to accomplish its safety purpose.
Characterization and classification ultimately determine the
appropriate and permitted packagings for a given hazardous material.
This alert addressed the initial findings of Operation Classification,
a compliance initiative involving unannounced inspections and testing
of crude oil samples to verify

that offerors of the materials have properly classified and described
the hazardous materials. The alert expressed PHMSA's concern that
unprocessed crude oil may affect the integrity of the packaging or
present additional hazards, related to corrosivity, sulfur content, and
dissolved gas content. It also noted that preliminary testing, focused
on the classification and packing group assignments that have been
selected and certified by offerors of crude oil and PHMSA, had found it
necessary to expand the scope of their sampling and analyses to measure
other factors that would affect the proper characterization and
classification of the materials.
    PHMSA and FRA launched Operation Classification in August 2013 to
verify that crude oil is being properly classified in accordance with
Federal regulations. Activities included unannounced inspections, data
collection and sampling at strategic terminal and loading locations for
crude oil. PHMSA investigators tested 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. On February 4, 2014, PHMSA announced
the first results from Operation Classification, which indicated that
some crude oil taken from cargo tanks en route to rail loading
facilities was not properly classified. Based on some of the test
results, 11 of the 18 samples taken from cargo tanks delivering crude
oil to the rail loading facilities were assigned to packing groups that
incorrectly indicated a lower risk than what was actually being
transported. PHMSA issued three Notices of Probable Violations to the
companies involved as a result, proposing civil penalties totaling
$93,000. Operation Classification is part of a larger Department-wide
effort named Operation Safe Delivery. Operation Safe Delivery is an
effort to ensure the safe transportation of crude oil moving by rail
using a comprehensive approach, including prevention, mitigation and
response.
    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 the American Petroleum Institute
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.
    Specifically, the Call to Action discussed issues including proper
classification and characterization of hazardous materials, operational
controls and track maintenance that could prevent accidents, and tank
car integrity improvements that could mitigate the effect of accidents
should one occur. The meeting was an open and constructive dialogue on
how, collaboratively, industry and government can make America's
railways safer.
    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.\38\
---------------------------------------------------------------------------

    \38\ See Call to Action Follow-up letter http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Files/Letter_from_Secretary_Foxx_Follow_up_to_January_16.pdf.
---------------------------------------------------------------------------

    The rail and crude oil industries committed to consider and address
several issues and, within 30 days, provide details regarding the
specific actions that shippers and carriers will take immediately to
improve safety in the transportation of petroleum crude oil.
Specifically, the AAR agreed to consider, and provide additional
details about, the following:
     The use of existing Federal protocols for routing
hazardous materials, such as Toxic-by-Inhalation hazardous materials
(TIH), for petroleum crude oil unit train shipments;
     The use of speed restrictions where appropriate on crude
oil unit trains traveling through high consequence areas;
     The use of distributed power on unit petroleum crude oil
trains; and
     Increasing and improving track, mechanical, and other rail
safety inspections.
    The API recommended and agreed to consider the following:
     Share expertise and testing information with DOT, notably
PHMSA, regarding the characteristics of petroleum crude oil in the
Bakken region;
     Work on identifying best practices to ensure that
appropriate and comprehensive testing and classification of petroleum
crude oil being transported by rail is performed; and
     Collaborate with PHMSA on improving its analysis of
petroleum crude oil characteristics.
    Both AAR and API agreed to consider the following:
     Improve emergency responder capabilities and training to
address petroleum crude oil train accidents; and
     Recommission the AAR's Rail Tank Car Standards Committee
to reach consensus on additional changes proposed to the AAR rail tank
car standard CPC 1232s, to be considered by DOT, as appropriate, in the
rulemaking process.
    On January 17, 2014, PHMSA launched a Web page entitled Operation
Safe Delivery: Enhancing the Safe Transport of Flammable Liquids.\39\
This site describes the Department's efforts to enhance the safe
transport of flammable liquids by rail and acts as a valuable resource
for shippers and transporters of those materials. The site will be
continuously updated to provide progress reports on industry
commitments as part of the Call to Action and additional Departmental
activities related to the rail safety initiative. The page also
displays PHMSA's rail safety action plan. The site has already received
considerable traffic, and seems to be an educational resource for the
regulated community.
---------------------------------------------------------------------------

    \39\ http://www.phmsa.dot.gov/hazmat/osd/calltoaction.
---------------------------------------------------------------------------

    On February 21, 2014, in response to the Secretary's Call to
Action:
    API committed to the following:
    1. To assemble top experts to develop a comprehensive industry
standard for testing, characterizing, classifying, and loading and
unloading crude oil in rail tank cars. API is moving as quickly as
possible with the goal of publishing this standard in six months. Its
standards process is open, transparent and accredited by the American
National Standards Institute, the same organization that accredits
similar programs at several U.S. national laboratories. All
stakeholders are invited to participate, including PHMSA.
    2. Work with PHMSA, the railroad industry, and emergency responders
to enhance emergency response communications and training. API recently
joined Transportation Community Awareness and Emergency Response, known
as TRANSCAER\R\, which is a voluntary national outreach effort that
assists communities in preparing for and responding to incidents.
    API continues to work with PHMSA and other representatives from the
Department of Transportation to share information and expertise on
crude oil

characteristics. They have also offered to help PHMSA review the data
collected through Operation Classification.
    3. API continues to work with the railroad industry, railcar
manufacturers, and other stakeholders to address tank car design. Their
industry has been building next generation tank cars since 2011 that
exceed federal standards. These new cars make up nearly 40 percent of
the crude oil tank car fleet and will be 60 percent by the end of 2015.
They are currently engaged in a holistic and data-driven examination to
determine whether additional design changes would measurably improve
safety without inadvertently shifting risk to other areas.
    AAR and its member railroads committed to the following:
    1. By no later than July 1, 2014, railroads will apply any
protocols developed by the rail industry to comply with the existing
route analysis requirements of 49 CFR 172.820(c)-(f) and (i) to the
movement of trains transporting 20 or more loaded railroad tank cars
containing petroleum crude oil (Key Crude Oil Train).
    2. Rail carriers will continue to adhere to a speed restriction of
50 mph for any Key Crude Oil Trains. By no later than July 1, 2014,
railroads will adhere to a speed restriction of 40 mph for any Key
Crude Oil Train with at least one `DOT Specification 111' 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 as defined by 49 CFR 1580.3. For purposes of AAR's
commitments, `DOT Specification 111' tank cars are those cars that meet
DOT Specification 111 standards but do not meet the requirements of
CPC-1232 or any new standards adopted by DOT after the date of this
letter.
    3. By April, 2014, railroads will equip all Key Crude Oil Trains,
operating on main track with either distributed power locomotives or an
operative two-way telemetry end of train device as defined by 49 CFR
232.5.
    4. Effective March 25, 2014, railroads will perform at least one
additional internal rail inspection than is required by 49 CFR
213.237(c) each calendar year on main line routes it owns or has been
assigned responsibility for maintaining under 49 CFR 213.5 over which
Key Crude Oil Trains are operated. Railroads will also conduct at least
two track geometry inspections each calendar year on main line routes
it owns or is responsible for maintaining under 49 CFR 213.5 over which
Key Crude Oil Trains are operated.
    5. By no later than July 1, 2014, railroads will commence
installation and will complete such installations as soon as
practicable, of wayside defective bearing detectors at least every 40
miles along main line routes it owns or has been assigned
responsibility or maintaining under 49 CFR 213.5 over which Key Crude
Oil Trains are operated, unless track configuration or other safety
considerations dictate otherwise.
    6. AAR and the railroads will create an inventory of emergency
response resources along routes over which Key Crude Oil Trains operate
for responding to the release of large amounts of petroleum crude oil
in the event of an incident. This inventory will include locations for
the staging of emergency response equipment and, where appropriate,
contacts for the notification of communities. Upon completion of the
inventory, the railroads will provide DOT with access to information
regarding the inventory and will make relevant information from the
inventory available to appropriate emergency responders upon request.
    7. Railroads will commit in the aggregate a total of approximately
$5 million to develop and provide a hazardous material transportation
training curriculum applicable to petroleum crude oil transport for
emergency responders and to fund a portion of the cost of this training
through the end of 2014. One part of the curriculum will be for local
emergency responders in the field; and more comprehensive training will
be conducted at the Transportation Technology Center, Inc., (TTCI)
training facility in Pueblo, Colorado. AAR will work with emergency
responders in developing, by July 1, 2014, the training program that
meets the needs of emergency responders.
    8. Railroads will continue to work with communities through which
Key Crude Oil Trains move to address on a location-specific basis
concerns that the communities may raise regarding the transportation of
petroleum crude oil through those communities and take such action as
the railroads deem appropriate.
    The American Short Line and Regional Railroad Association (ASLRRA)
offered the following:
    1. ASLRRA will recommend to its members that unit trains of crude
oil (20 cars or more) operate at a top speed of no more than 25 mph on
all routes.
    2. ASLRRA will work with its member railroads and the Class I
railroads to develop a program of best practices to assure a seamless
system of timely and effective emergency response to crude oil spills
no matter where on the national rail system an incident may occur.
    3. ASLRRA will recommend that its member railroads sign master
service agreements with qualified environmental cleanup providers to
ensure prompt and effective remediation in all areas subjected to
unintentional discharge of crude oil. In addition, ASLRRA will work
with the AAR and Class I railroads to eliminate any gaps in
coordination or response systems when both large and small railroads
are involved.
    4. ASLRRA will support and encourage the development of new tank
car standards including but not limited to adoption of the \9/16\ inch
tank car wall that will meet the needs of all stakeholders and enhance
the safety of the transportation of crude oil by rail.
    5. Contingent upon securing a six to twelve month pilot-project
grant from the FRA, the ASLRRA plans to expedite the most significant
project in its 100 year history to reduce the risks of accidents,
incidents, and regulatory noncompliance in the small railroad industry.
If grant funding is provided, ASLRRA will create the Short Line Safety
Institute which will:
    a. Work jointly with the FRA to develop and implement a pilot
safety inspection and evaluation project for short line railroads.
    b. Work with the FRA Office of Research and Development Human
Factors Division (1) to create an assessment process to evaluate the
current safety and compliance attainment levels on small railroads, (2)
to contract and train expert qualified inspectors, and (3) to develop
training, assessment and reporting document systems.
    c. Work with FRA to create benchmarks and objectives to measure the
progress and effectiveness of the Short Line Safety Institute safety
inspection programs.
    d. Begin with a focus on the transportation of crude oil by small
railroads and thereafter expand to the transportation of all
commodities for Class III railroads.
    The Railway Supply Institute Committee on Tank Cars (RSICTC),
although not part of the Call to Action plan, committed to the
following:
    In response to the Secretary's Call to Action, RSICTC states:

    Although RSICTC was not included in the January 16, 2014
meeting, the issue of tank car safety cannot be resolved without
input from the owners and manufacturers of the tank cars. The RSICTC
members and other AAR task force stakeholders have met repeatedly to
review this issue with only

limited forward progress. As key stakeholders, RSICTC members have
reviewed the follow-up letter, and reached consensus on a set of
guiding principles to respond to your request. On February 5, 2014,
the RSICTC wrote AAR to provide a written copy of these principles
in advance of the first meeting of the reconvened AAR Tank Car
Committee Task Force T87.6 (`T87.6 Task Force').

    RSICTC continued:

    In order to provide a timely response to your January 22, 2014
follow-up letter, we recommend the reconvened T87.6 Task Force focus
on and adopt the following principles, for ultimate submission to
the Pipeline and Hazardous Materials Safety Administration
(``PHMSA''), which represent the consensus of the tank car
manufacturing and leasing industry:
    1. Newly ordered tank cars, ordered after a date certain agreed
upon by PHMSA and the industry, to be used to transport crude oil or
ethanol must have a jacket, full height head shield and thermal
protection.
    2. Tank cars built to the CPC-1232 standard (both jacketed and
non-jacketed) will be allowed to remain in unrestricted service for
their full statutory life, with possible modification to those
existing tank cars limited to pressure relief valves and bottom
outlet valve handles, based on future regulatory requirements or
industry standards.
    3. Legacy tank cars (non-CPC-1232 compliant) used for Class 3,
PG III materials will be allowed to remain in unrestricted service
for their full statutory life, with possible modification to those
existing tank cars limited to pressure relief valves and bottom
outlet valve handles, based on future regulatory requirements or
industry standards.
    4. Until such a time when standards applicable to legacy tank
cars are developed, non-CPC-1232 compliant tank cars may not be
newly assigned into crude oil or ethanol service.
    5. Modification requirements for legacy tank cars used for Class
3, PG I and II service (including crude oil and ethanol) need to be
developed based on the nature of the risks associated with various
products.
    6. Priority should be placed on modifying legacy tank cars used
for crude oil and ethanol. Timelines for modifying legacy tank cars
used for other Class 3, PG I and II service should be based on a
risk assessment.
    7. It is possible that some types of crude oil may require
packaging in a DOT tank car class other than a DOT Specification 111
and RSI wishes to participate in that evaluation process.

    The voluntary actions taken by industry as a result of the Call to
Action are necessary steps to improve safety. In this NPRM we are
proposing to adopt and expand on the key voluntary actions taken with
regard to speed restrictions, braking, and routing for HHFTs, in
addition to, classification verification requirements.
    On February 25, 2014, DOT issued an Emergency Restriction/
Prohibition Order requiring 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, which was
superseded by a revised and amended Order on March 6, 2014, clarifying
the requirement.\40\ The March 6th Amended Emergency Restriction/
Prohibition Order requires that all rail shipments of crude oil that is
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.
---------------------------------------------------------------------------

    \40\ See Docket No. DOT-OST-2014-0025. See also http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Amended_Emergency_Order_030614.pdf.
---------------------------------------------------------------------------

    On May 7, 2014, DOT published another Emergency Restriction/
Prohibition Order requiring 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.\41\
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. On the same day, FRA
and PHMSA issued a safety advisory recommending that offerors and
carriers of Bakken crude oil use tank car designs with the highest
level of integrity available in their fleets.\42\
---------------------------------------------------------------------------

    \41\ http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_D9E224C13963CAF0AE4F15A8B3C4465BAEAF0100/filename/Final_EO_on_Transport_of_Bakken_Crude_Oi_05_07_2014.pdf.
    \42\ http://www.phmsa.dot.gov/pv_obj_cache/pv_obj_id_9084EF057B3D4E74A2DEB5CC86006951BE1D0200/filename/Final_FRA_PHMSA_Safety_Advisory_tank_cars_May_2014.pdf.
---------------------------------------------------------------------------

C. NTSB Safety Recommendations

    As previously discussed, in addition to the efforts of PHMSA and
FRA, the NTSB has taken a very active role in addressing the risks
posed by the transportation of large quantities of flammable liquids by
rail. On January 23, 2014 the NTSB issued to PHMSA Safety
Recommendations R-14-4 through R-14-6. These recommendations are
derived from the NTSB's participation in the Transportation Safety
Board of Canada's (TSB) investigation of the July 6, 2013 Lac-
M[eacute]gantic derailment. In the letter, NTSB urges PHMSA and FRA to
take action to address routing, oil spill response plans, and
identification and classification of flammable liquids by rail. In
these recommendations, the NTSB recognizes that rail shipments of
flammable liquids have sharply increased in recent years as the United
States experiences unprecedented growth in oil production. The letter
is available for review in the public docket for this rulemaking.
    As noted below, NTSB has issued recommendation R-14-5, for PHMSA to
revise spill 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. PHMSA is not
addressing this recommendation through this NPRM. However, we are
concurrently issuing an Advance Notice of Proposed Rulemaking in PHMSA
Docket Number PHMSA-2014-0105 to gather more information on this topic
from railroads, first responders, state and local jurisdictions, and
all other interested parties.
    Previously, on March 2, 2012, the NTSB issued Railroad Accident
Report RAR-12-01, available for review in the public docket for this
rulemaking. In that report, NTSB determined that one of the probable
causes of the June 19, 2009 train accident in Cherry Valley, Illinois,
in which several derailed cars released ethanol and caught fire,
fatally injuring a passenger in a stopped automobile at the grade
crossing where the derailment occurred and seriously injuring two other
passengers in the automobile, was the washout of the track structure at
the grade crossing and failure to notify the train crew of the known
washout. NTSB also determined that inadequate design features of a DOT
Specification 111 rail tank car made it susceptible to damage and
catastrophic loss of hazardous material during the train accident and,
thus, contributed to the severity of the incident. On March 2, 2012,
the NTSB issued Safety Recommendations R-12-5 thru R-12-8, which
recommended that PHMSA take action to enhance newly manufactured and
existing tank cars used for the transportation for ethanol and crude
oil in PG I and II. (Safety Recommendation R-12-8 was closed by the
NTSB on September 20, 2012).\43\ In addition, NTSB reiterated Safety
Recommendation R-07-4 and urged PHMSA to require that railroads
immediately provide to emergency responders accurate, real-time

information regarding the identity and location of all hazardous
materials on a train.
---------------------------------------------------------------------------

    \43\ See: http://www.phmsa.dot.gov/staticfiles/PHMSA/DownloadableFiles/Files/NTSB%20Files/R-12-8-Acceptable-Response.pdf.
---------------------------------------------------------------------------

    These accidents demonstrate that major loss of life, property
damage, and environmental consequences can occur when large volumes of
crude oil or other flammable liquids are transported in a HHFT involved
in an accident. Table 12 provides a summary of the NTSB Safety
Recommendations and identifies the effect of this action on those
recommendations:

                               Table 12--Rail-related NTSB Safety Recommendations
----------------------------------------------------------------------------------------------------------------
          NTSB  recommendation                              Summary                     Addressed in this rule?
----------------------------------------------------------------------------------------------------------------
R-07-4..................................  Recommends that PHMSA, with the assistance  No.
                                           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..................................  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 tank cars.
R-12-6..................................  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..................................  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..................................  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..................................  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 Association of American Railroads
                                           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..................................  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..................................  Recommends that FRA audit shippers and      Yes.
                                           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..................................  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..................................  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..................................  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.
----------------------------------------------------------------------------------------------------------------
* 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 in the Federal Register (77 FR 45417) an advisory bulletin 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. 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.
*** PHMSA in consultation with FRA is concurrently publishing an ANPRM (Docket Number PHMSA-2014-0105) that will
  address these recommendations.

IV. Comments on the ANPRM

    A. Commenter Key. As of June 2014, Table 13 provides a list of
comments posted to the docket.

                         Table 13--Commenter Key
------------------------------------------------------------------------

------------------------------------------------------------------------
(017) Allen Maty.......................  (018) Emanuel Guerreiro.
(019) Brant Olson......................  (021) Eugene Matzan/Commercial
                                          Wheel System.
(022) City of Loves Park...............  (023) Senator Charles Schumer.
(024) Village Board of Iverness, IL....  (025) City of Wood Dale, IL.
(026) Barrington Township, IL..........  (027) Village of Mt. Prospect,
                                          IL.
(028) Carol Stream, IL.................  (029) Village of Schiller Park,
                                          IL.
(030) City of Plano, IL................  (031) City of Frankfort, IL.
(032) Village of Hainesville, IL.......  (033) City of Crest City
                                          Council, IL.
(034) Village of Vernon Hills,.........  (035) Village of Glendale
                                          Heights.
(036) Village of South Barrington, IL..  (037) Volpe National
                                          Transportation Systems Center
                                          (Volpe), Research and
                                          Innovative Technology
                                          Administration, DOT.
(038) Volpe National Transportation      (039) Village of Gilberts, IL.
 Systems Center (Volpe).
(040) Village of Wadsworth, IL.........  (041) City of Braidwood, IL.
(042) Bartlett Fire Protection           (043) Rolling Meadows, IL.
 District, IL.
(044) Compressed Gas Association (CGA):  (045) City of Warrenville, IL.
 P-1519.
(046) City of Highland Park, IL........  Village of Oswego, IL.
(048) Anonymous........................  (049) Trudy McDaniel.
(050) Village of Mokena, IL............  (052) Village of North Aurora,
                                          IL.
(053) Metro West Council of Government,  (054) Village of Elburn, IL.
 Aurora, IL.
(055) Village of Hampshire, IL.........  (056) Village of Wayne, IL.
(057) Village of Green Oaks, IL........  (058) Village of Western
                                          Springs, IL.
(059) Village of Hinckley, IL..........  (060) Village of Diamond, IL.
(061) Village of Lake Barrington, IL...  (062) Vermont League of Cities
                                          and Towns, Montpelier,
                                          Vermont.
(063) City of Prospect, IL.............  (064) Fred Millar.
(065) Megan Joyce......................  (066) Christopher Lish.
(067) Village of Kaneville, IL.........  (068) Village of North
                                          Barrington, IL.
(069) Village of Tower Lakes, IL.......  (070) Barrington Area Council
                                          of Governments (BACOG),
                                          Barrington, IL.
(072) Rail Users Network (RUN).........  (074) Village of Deer Park, IL.
(075) Robert Hodge.....................  (076) Skagit Audubon, Mount
                                          Vernon, WA.
(077) Sheet Metal, Air, Rail,            (078) Anonymous.
 Transportation Union (SMART).
(079) Growth Energy, Washington, DC....  (080) Village of Burlington,
                                          IL.
(081) City of St. Charles, IL..........  (082) Village of Hoffman
                                          Estates, IL.
(083) Village of Hawthorn Woods, IL....  (084) Village of Hanover Park,
                                          IL.
(085) Village of Maple Park, Kane and    (086) City of Carbondale, IL.
 Dekalb Counties, IL.
(087) Village of Campton Hills, IL.....  (089) CREDO Action (CREDO).
(090) Association of American Railroads  (091) James Jackson.
 (AAR) and the American Short Line and
 Regional Railroad Association (ASLRRA).
(092) Eldon Jacobson...................  (093) The Regional Answer to
                                          Canadian National (TRAC).
(094) Eva Lee..........................  (095) Cuba Township, IL.
(096) Village of Chicago Ridge, IL.....  (098) Railway Supply Institute
                                          (RSI).
(099) Solvay USA (Solvay)..............  (100) U.S. Chemical Safety
                                          Board (USCSB).
(101) Sierra Club: 23,200 commenters...  (102) Mary Ruth Holder.
(103) Michael Bailey...................  (104) Phyllis Dolph.
(105) Nathan Luke......................  (106) Russell Pesko.
(107) Michael Reich....................  (108) David C. Breidenbach.
(109) The Fertilizer Institute (TFI)...  (110) Village of Barrington, IL
                                          and the TRAC Coalition.
(111) David C. Breidenbach.............  (112) Montana Department of
                                          Environmental Quality (MTDEQ).
(113) City of Lake Forest, IL..........  (114) Maine Municipal
                                          Association, Augusta, ME
                                          (MMA).
(115) City of Northlake, IL............  (116) Village of Minoa, NY.
(117) City of Coon Rapids, MN..........  (118) Village of Grayslake, IL.
(119) Eastman Chemical Company (ECC)...  (120) City of Fort Collins, CO.
(121) CREDO Action (CREDO; replaces      (122) Oil Change International
 089): 66,064 commenters.                 (OCI): 8,727 commenters.
(123) The Chlorine Institute (CI)......  (124) Renewable Fuels
                                          Association (RFA).
(125) Village of Berkeley, IL..........  (126) Watco Companies L.L.C.
                                          (Watco).
(127) The National Industrial            (128) Institute of Makers of
 Transportation League (NITL).            Explosives (IME).
(129) Hess Corporation (Hess)..........  (130) North American Freight
                                          Car Association (NAFCA).
(131) New Progressive Alliance (NPA)...  (132) The Greenbrier Companies,
                                          Inc. (Greenbrier).
(133) The Railway Supply Institute       (134) GLNX Corporation (GLNX).
 Committee on Tank Cars (RSICTC).
(135.1) Dow Chemical Company (Dow).....  (135.2) Dow Chemical Company
                                          and Union Pacific Railroad
                                          (DCCUPR).
(136) American Chemistry Council (ACC).  (137) Dangerous Goods Advisory
                                          Council (DGAC).
(138) Forest Ethics: 1,489 commenters..  (139) American Petroleum
                                          Institute (API).
(140) National Transportation Safety     (141) Petroleum Association of
 Board (NTSB).                            Wyoming (PAW).
(142) Anonymous........................  (143) Rein Attemann.
(144) Natural Resources Defense Council  (145) Lloyd Burton, PHD.
 (NRDC).

(146) City of Madison, WI..............  (147) City of Northlake, IL.
(148) Shell Chemical LP (Shell)........  (149) The Accurate Tank Advisor
                                          (ATA).
(150) Senator Charles E. Schumer.......  (151) Call to Action Meeting
                                          Documentation.
(152) City of Elmhurst, IL.............  (153) The Sierra Club: 52,615
                                          commenters.
(154) Leif Jorgensen...................  (155) U.S. DOT/PHMSA Meeting
                                          Record.
(156) Railway Supply Institute Comments  (157) BNSF Meeting Record.
(158) Department of Law City of Chicago  (159) City of Chicago Comments.
(160) Irv Balto Comments...............  (161) Irv Balto Comments.
(162) EO 12866 Meeting w/API 05.19.14..  (163) Meeting w/American
                                          Chemistry Council 05.12.14.
(164) Meeting w/Growth Energy and RFA    (165) Meeting w/North Dakota
 05.12.14.                                Petroleum Council 05.12.14.
(166) Meeting w/Quantum Energy 05.21.14  (176) Meeting w/Statoil
                                          05.12.14.
------------------------------------------------------------------------

B. Summary of Comments Relevant to the Proposed Amendments in this NPRM

    In response to the September 6, 2013 ANPRM, PHMSA received 113
comments representing over 152,000 signatories related to the eight
petitions for rulemaking and four NTSB recommendations referenced in
the ANPRM and applicable to the transportation of hazardous materials
in commerce. PHMSA solicited public comment on whether the potential
amendments would enhance safety and clarify the HMR with regard to rail
transport. Specifically, these potential amendments, if adopted, would
do the following: (1) Relax regulatory requirements to afford FRA
greater discretion to authorize the movement of non-conforming tank
cars; (2) impose additional requirements that would correct an unsafe
condition associated with pressure relief valves (PRV) on rail cars
transporting carbon dioxide, refrigerated liquid; (3) relax regulatory
requirements applicable to the repair and maintenance of DOT
Specification 110, DOT Specification 106, and ICC 27 tank car tanks
(ton tanks); (4) relax regulatory requirement for the removal of
rupture discs for inspection if the removal process would damage,
change, or alter the intended operation of the device; and (5) impose
additional requirements that would enhance the standards for DOT
Specification 111 tank cars used to transport PG I and II hazardous
materials. This NPRM addresses the four petitions for rulemaking that
are related to the DOT Specification 111 tank car (P-1577, P-1587, P-
1595, and P-1612). The NTSB recommendations directly relate to the
enhancement of DOT Specification 111 tank cars.
    We received comment submissions from local communities, cities, and
towns; rail carriers; offerors; suppliers of equipment; tank car
manufacturers; environmental groups; NTSB; and members of the U.S.
Congress. The comments provide many potential solutions to the risks
associated with HHFTs. A common theme among the commenters is that they
support changes that will prevent another catastrophic train accident.
Table 14 provides a brief summary based on key concerns of groups of
commenters:

                       Table 14--General Overview of Comments Received on the HM-251 ANPRM
----------------------------------------------------------------------------------------------------------------
          Group of  commenters                Number of  comments                   Comment summary
----------------------------------------------------------------------------------------------------------------
Local communities, cities, towns........  61 municipal and state       Provided overwhelming support for:
                                           government entities.         Higher integrity tank car
                                                                        construction standards;
                                                                        Revised operational procedures;
                                                                        and
                                                                        Standards applicable to newly
                                                                        constructed and existing DOT 111 tank
                                                                        cars transporting any Packing Group I
                                                                        and II materials.
Concerned public........................  223 individual commenters..  Provided overwhelming support for:
                                                                        Petition P-1587 (Barrington,
                                                                        IL); and
                                                                        NTSB Safety Recommendations that
                                                                        requires higher integrity construction
                                                                        and operational standards for new and
                                                                        existing DOT-111 tank cars.
Rail carriers...........................  AAR, American Short Line     In their comments AAR and ASLRRA proposed
                                           and Regional Railroad        additional enhancements to its original
                                           Association, GNLX            petition for rulemaking (P-1577) such
                                           Corporation.                 as:
                                                                        Mandating the jacketed version
                                                                        of the specifications discussed in the
                                                                        petition for flammable liquids;
                                                                        For flammable liquids, requiring
                                                                        high-flow capacity pressure relief
                                                                        devices;
                                                                        Requiring thermal blankets or
                                                                        thermal coatings when constructing or
                                                                        modifying tank cars used to transport
                                                                        all packing group I and II materials and
                                                                        flammable liquids in packing group III;
                                                                        and
                                                                        The employment of designs that
                                                                        ensure bottom outlet valves will remain
                                                                        closed when the operating handles are
                                                                        subject to impact forces.
Offerors................................  Multiple...................  Commenters solicit PHMSA and FRA to:
                                                                        Address accident root causes and
                                                                        to keep tank cars on the track;
                                                                        Conduct suggested initiatives,
                                                                        including improvements in inspection and
                                                                        track maintenance protocols;
                                                                        Utilize available technology to
                                                                        assist in reducing human error (e.g.,
                                                                        Positive Train Control); and
                                                                        Improve communication systems
                                                                        for rail operations.

Tank Car manufacturers..................  Watco, Railway Supply        The consensus among manufacturers of tank
                                           Institute, SMART,            cars is as follows:
                                           Greenbrier Companies,        The increase of tank shell
                                           North American Freight Car   thickness and application of tank head
                                           Association.                 protection will substantially improve
                                                                        the puncture resistance of DOT-111 tank
                                                                        cars and provide better protection in
                                                                        the event of a derailment;
                                                                        Improved puncture resistance
                                                                        will result in less product release and,
                                                                        thus, smaller fires in the event of a
                                                                        train accident;
                                                                        The P-1577 (Petition) tank car's
                                                                        enhancements include a pressure relief
                                                                        device with a higher exit flow and lower
                                                                        trigger point. This change to the
                                                                        pressure relief device will improve the
                                                                        potential for this equipment to operate
                                                                        as intended in a fire situation; and
                                                                        Enhancement is consistent with
                                                                        the T87.6 Task Force's recommendation.
                                                                        If any fire exposure should occur, the
                                                                        enhanced pressure relief system will
                                                                        serve to reduce the probability of a
                                                                        high-energy release event.
                                                                        Tank car requirements for new
                                                                        cars should be more extensive than the
                                                                        retrofit requirements for existing cars.
Environmental groups....................  Over 152,000 signatories...  Support of NTSB Safety Recommendations
                                                                        by:
                                                                        Expressing concern over the
                                                                        responsibility of local governments
                                                                        having to provide emergency response
                                                                        units to manage the impact of
                                                                        derailments in communities across the
                                                                        country; and
                                                                        Expressing concern over the
                                                                        significant costs to society associated
                                                                        with clean-up and environmental
                                                                        remediation.
NTSB....................................  ...........................  Urges PHMSA to:
                                                                        Take immediate action to require
                                                                        a safer package for transporting
                                                                        flammable hazardous materials by rail;
                                                                        and
                                                                        Take regulatory action that
                                                                        applies to new construction and the
                                                                        existing tank car fleet
                                                                        With FRA, take action to address
                                                                        routing, oil spill response plans, and
                                                                        identification and classification of
                                                                        flammable liquids by rail.
Congressional interest..................  13 U.S. House and Senate     Urges PHMSA to:
                                           members.                     Take immediate action to require
                                                                        a safer package for transporting
                                                                        flammable hazardous materials by rail.
----------------------------------------------------------------------------------------------------------------

    The most frequent comments received in response to the ANPRM
follow. These issues included operational controls that could be
implemented to address rail safety issues and how the existing fleet of
cars would be affected in the event of the adoption of a new tank car
standard (e.g., retrofitting). These specific issues and some of the
comments received are summarized below.
    Operational issues--RSICTC commented that, ``[t]he overall safety
of hazardous material transportation by rail cannot be achieved by
placing the sole burden of that goal on the designs of tank cars.
Therefore while the industry supports safety-enhancing improvements to
the designs of tank cars, it also supports operational enhancements
that will address these root causes.'' Similarly, equipment suppliers
encouraged FRA to publish its final rule on rail integrity. Further,
the API states in its comments that, ``broken rails or welds caused
more major derailments than any other factor. According to task force
87.6, broken rails or welds resulted in approximately 670 derailments
between 2001 and 2010.'' Further, it states, ``RSICTC also supports the
work of the task force to examine additional operational enhancements
such as the alternative brake signal propagations systems, speed
restrictions for ``Key Trains''--unit trains containing 20 or more
loaded tank cars of PG I and II hazardous materials, enhanced track
inspection programs and improvements to the emergency response
system.''
    Retrofits--While the P-1577 tank car enhancements will
significantly improve safety for newly manufactured tank cars, RSICTC
strongly urges PHMSA to promulgate a separate rulemaking for existing
tank cars that is uniquely tailored to the needs of the existing DOT-
111 tank car fleet. Further, it states, ``Should modifications be made
to the existing jacketed DOT-111s, we again urge PHMSA to allow these
modified cars to remain in active service for the duration of their
regulatory life.'' RSICTC also submits that PHMSA adopt a ten-year
program allowing compliance to be achieved in phases through
modification, re-purposing or retirement of unmodified tank cars in
Class 3, PG I and II flammable liquid service. Tank car modifications
supported by RSICTC include adding head shields, protecting top and
bottom fittings and adding pressure release valves or enhancing
existing pressure release valves. Greenbrier, a tank car manufacturer,
commented that, ``the most vital of these modifications is addition of
a trapezoidal or conforming half-height head shield to prevent
penetration of tank cars by loose rails. Together with the top and
bottom fittings protections and enhanced release valves, the
improvements can significantly limit the likelihood of breaching the
tank car.'' Further, Greenbrier is of the opinion that the ten-year
timeline suggested by RSICTC is excessive and unmodified tank cars
could and should be removed from hazardous materials service much
sooner. API and other commenters state in their comments that they are
strongly opposed to mandating any retrofits beyond the higher-flow
pressure relief device recommended by the T87.6 Task Force for thermal
protection due to the lack of economic and logistical feasibility.

V. Discussion of Comments and Section-by-Section Review

    The vast majority of commenters request prompt action by PHMSA to
address the risk associated with HHFTs. PHMSA agrees that in light of
the recent accidents involving HHFTs prompt action must be taken to
address these trains. Therefore, we limit our

discussion of the comments received in response to the ANPRM to those
issues related to HHFTs. The remaining comments to the ANPRM and our
August 27-28, 2013 public meeting will be addressed in a future
rulemaking. Comments are available in the public docket for this NPRM,
viewable at http://www.regulations.gov or DOT's Docket Operations
Office (see ADDRESSES section above).

A. High-Hazard Flammable Train

    In the ANPRM we asked several questions regarding AAR Circular No.
OT-55-N. Specifically, we asked if it adequately addressed the concerns
of the T87.6 Task Force, especially regarding speed restrictions. We
also asked if we should incorporate the ``key train'' requirements
contained in AAR Circular No. OT-55-N into the HMR, or if it should be
expanded to include trains with fewer than 20 cars.
    Several commenters indicate that additional operational
requirements should be based upon the definition for a ``key train'' as
provided by AAR Circular No. OT-55-N. In addition, NTSB Recommendation
R-14-4 states,

    Work with the Federal Railroad Administration to 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
Association of American Railroads Circular No. OT-55-N and, where
technically feasible, require rerouting to avoid transportation of
such hazardous materials through populated and other sensitive
areas.

    Based on the Appendix A to Emergency Order No. 28 and the revised
definition of a ``key train'' under AAR Circular No. OT-55-N, PHMSA is
proposing to add a definition of ``high-hazard flammable train'' to
Sec.  171.8. Under the proposed definition, the term would mean a
single train containing 20 or more tank carloads of Class 3 (flammable
liquid) material.
    Section 173.120 of the HMR defines a flammable liquid as a liquid
having a flash point of not more than 60 [deg]C (140[emsp14][deg]F), or
any material in a liquid phase with a flash point at or above 37.8
[deg]C (100[emsp14][deg]F) that is intentionally heated and offered for
transportation or transported at or above its flash point in a bulk
packaging, with certain exceptions. For transportation purposes,
examples of commodities that typically meet this definition are
acetone, crude oil, ethanol gasoline, and ethyl methyl ketone. A Class
3 (flammable liquid) material is further assigned to Packing Group I,
II, or III, based on its degree of danger, that is, great, medium, or
minor, respectively.
    Because crude oil is a mined liquid, its flash point and initial
boiling point are variable and, as such, can be assigned to Packing
Groups I, II, or III. Because ethanol is not a mined liquid, its
initial boiling point and flash point are known (78 [deg]C and 9 [deg]C
respectively). Thus, ethanol is assigned to Packing Group II. That
said, our analysis finds that only crude oil and ethanol shipments
would be affected by the limitations of this rule as they are the only
known Class 3 (flammable liquid) materials transported in trains
consisting of 20 cars or more.
    While both the Appendix A to Emergency Order No. 28 and the revised
definition of a ``key train'' under AAR Circular No. OT-55-N include
Division 2.1 (flammable gas) material and combustible liquids, PHMSA is
not proposing to include them in the definition of ``high-hazard
flammable train'' in this NPRM. By doing so, the existing fleet of DOT
Specification 111 tank cars can be repurposed and continue to be used
for flammable liquids when not being transported in a HHFT and
combustible liquids which pose a lower risk than other flammable
liquids. PHMSA and FRA seek comment on the definition of a ``high-
hazard flammable train'', PHMSA and FRA seek public comment on the
following discussions and questions. When commenting, please reference
the specific portion of the proposal, explain the reason for any
recommended change, and include the source, methodology, and key
assumptions of any supporting evidence.
    1. PHMSA expects that the definition of HHFT would change the
operating practices and tank car packaging primarily for trains that
carry crude oil and ethanol. To what extent would definition of HHFT
affect the operating practices and tank car packaging trains carrying
other Class 3 flammable liquids?
    2. Within the definition of HHFT, to what extent would adding or
removing hazardous materials or packing groups within a hazardous
material class affect the benefits and costs of this rule? In
particular, what are the benefits and costs of including Division 2.1
(flammable gas) material and combustible liquids within the definition
of HHFT?[bond]
    3. To what extent do the covered hazardous materials, including
crude oil and ethanol, have differing risks when they are in HHFTs?
    As described in the Overview section of this preamble, above, we
believe that most, if not all, of the rail community transporting oil,
including crude oil transported as a hazardous material, is subject to
the basic response plan requirement of 49 CFR 130.31(a), based on the
understanding that most, if not all, rail tank cars being used to
transport crude oil have a capacity greater than 3,500 gallons.
However, a comprehensive response plan for shipment of oil is only
required when the oil is in a quantity greater than 42,000 gallons per
package. Accordingly, the number of railroads required to have a
comprehensive response plan is much less, or possibly non-existent,
because a very limited number of rail tank cars in use would be able to
transport a volume of 42,000 gallons in a single package.\44\
---------------------------------------------------------------------------

    \44\ The 2014 AAR's Universal Machine Language Equipment
Register (UMLER) numbers showed 5 tank cars listed with a capacity
equal to or greater than 42,000 gallons, and none of these cars were
being used to transport oil or petroleum products.
---------------------------------------------------------------------------

    Based on this difference in plans and the recent occurrence of
high-profile accidents involving crude oil, the NTSB and TSB have
recommended in Safety Recommendation R-14-5 that the Department and
PHMSA reconsider the threshold quantity for requiring the development
of a comprehensive response plan for the shipment of oil.
    While PHMSA will not be specifically addressing Oil Spill Response
Plans in this rulemaking, we will be addressing this topic in this
advance notice of proposed rulemaking under docket number PHMSA-2014-
0105 (RIN 2137-AF08). In this ANPRM we will be seeking comment on the
Oil Spill Prevention and Response Plans as they relate to the rail
transport of large quantities of oil. Specifically, we seek comment on
threshold quantity for a comprehensive plan to Sec.  130.31 and other
issues related to the Oil Spill Prevention and Response Plans as they
relate to rail transport.

B. Notification to State Emergency Response Commissions of Petroleum
Crude Oil Train Transportation

    As previously discussed, on May 7, 2014, DOT issued an Emergency
Restriction/Prohibition Order in Docket No. DOT-OST-2014-0067
(Order).\45\ That Order required each railroad transporting 1,000,000
gallons or more of Bakken crude oil in a single train in commerce
within the U.S. provide certain information in writing to the SERC for
each state in which it operates such a train. The notifications 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 Emergency
Order requires that railroads provide copies of notifications made to
each SERC to FRA upon request and, make updated notifications when
Bakken crude oil traffic materially changes within a particular county
or state (a change of 25 percent or greater from the estimate conveyed
to a state in the current notification). DOT issued the Order under the
Secretary's authority to abate imminent hazards at 49 U.S.C. 5121(d).
The Order was issued in response to the crude oil railroad accidents
previously described, and is in effect until DOT rescinds the Order.
This proposal, if adopted in a final rule in this rulemaking
proceeding, would supplant the requirements in the Order.
---------------------------------------------------------------------------

    \45\ http://www.dot.gov/briefing-room/emergency-order.
---------------------------------------------------------------------------

    In this NPRM, PHMSA is proposing to codify and clarify the
requirements of the Order in the HMR, and is requesting public comment
on the various facets of this proposal. As previously discussed, the
amount of crude oil shipments via railroad tank car is increasing
rapidly. The transportation of any hazardous materials is inherently
dangerous, and transporting crude oil can be dangerous if the crude oil
is released into the environment because of its flammability. This risk
of ignition is compounded in the context of rail transportation of
crude oil. It is commonly shipped in HHFTs that may consist of over 100
loaded tank cars, and there appear to be uniquely hazardous
characteristics of crude oil, as previously discussed in this preamble.
With the rising demand for rail carriage of crude oil throughout the
U.S., the risk of rail accidents and incidents increases with the
increase in the volume and the length of haul of the crude oil shipped.
Based on a waybill sample, the total distance field was used to
estimate the average length of haul crude oil. PHMSA found that crude
oil travels over 1,000 miles on the rail network. As also previously
discussed, there have been several significant train accidents in the
U.S. and Canada over the last year resulting in deaths, injuries,
property and environmental damage that involved crude oil shipments.
These 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 crude oil through their communities.
    For purposes of this NPRM, PHMSA is proposing regulatory text that
would address the same trains as affected by the Emergency Order (i.e.,
trains transporting 1,000,000 gallons or more of Bakken crude oil).
Considering the typical 30,000-gallon capacity railroad tank car used
for the transport of crude oil, a 1,000,000-gallon threshold for a unit
train would require notification to SERC's or other appropriate state
delegated entities for unit trains composed of approximately 35 cars of
crude oil.\46\ For purposes of the Emergency Order, DOT assumed this
was a reasonable threshold when considering that the major incidents
described above all involved trains consisting of more than 70 railroad
tank cars carrying petroleum crude oil, or well above the Order's
threshold of 1,000,000 gallons or more of petroleum crude oil being
transported in a single train. In setting this threshold quantity of
1,000,000 gallons in the Order, DOT also relied 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.\47\
---------------------------------------------------------------------------

    \46\ This approximation assumes that the tank cars would not be
entirely filled to capacity.
    \47\ 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.''
---------------------------------------------------------------------------

    In the Order, DOT determined that SERCs were the most appropriate
point of contact to convey written notifications regarding the
transportation of trains transporting large quantities of Bakken crude
oil. 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.\48\ 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.
---------------------------------------------------------------------------

    \48\ http://www2.epa.gov/epcra.
---------------------------------------------------------------------------

    After issuance of the Order, DOT received questions from railroads
regarding whether Fusion Centers could be utilized to make the
notifications required by the Emergency Order. Railroads share
information with Fusion Centers under existing Sec.  172.820 of the
HMR, PHMSA's regulation governing additional planning requirements for
transportation by rail of certain hazardous materials. DOT 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.\49\ In response, DOT issued a Frequently Asked
Questions (FAQs) guidance document to address these inquiries.\50\ In
that FAQs document, DOT explained that if a State agrees that it would
be advantageous for the information required by this Emergency 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 Emergency Order.
---------------------------------------------------------------------------

    \49\ http://www2.epa.gov/sites/production/files/2013-08/documents/epcra_fact_sheet.pdf.
    \50\ http://www.fra.dot.gov/eLib/Details/L05237.
---------------------------------------------------------------------------

    After issuance of the Order, railroads were concerned that routing
and traffic information required to be provided to SERCs regarding
affected crude oil would be made public under individual states' open
records laws. DOT has since engaged in discussions with railroads and
states to address this concern. As explained in the FAQs document, DOT
prefers 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
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 EO and DOT's subsequent guidance did not
require that states sign confidentiality agreements to receive this
information, and DOT did not designate the information as Sensitive
Security Information (SSI) under the procedures governing such at 49
CFR Part 15. PHMSA understands that despite confidentiality concerns,
railroads are complying with the

requirements of the Order and have provided the required information to
States.
    With regard to the identification of Bakken crude oil versus crude
oil extracted from other geographic locations, DOT acknowledges that
the HMR's current shipping paper requirements do not distinguish Bakken
crude oil from crude oil sourced in other locations. This may present
compliance and enforcement difficulties, particularly with regard to
subsequent railroads transporting petroleum crude after interchange(s)
with an originating or subsequent carrier. 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
Standard Transportation Commodity Code number, that identifies the
crude oil by its geographic source. DOT also stated that for purposes
of compliance with the Emergency 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.
PHMSA notes it may be possible in any final rule action that this
proposed new Sec.  174.310 could be expanded to include threshold
quantities of all petroleum crude oils or all HHFTs (versus only trains
transporting threshold quantities of Bakken crude oil).
    PHMSA therefore seeks public comment on the following discussions
and questions. When commenting, please reference the specific portion
of the proposal, explain the reason for any recommended change, and
include the source, methodology, and key assumptions of any supporting
evidence.
    1. Whether codifying the requirements of the Order in the HMR is
the best approach for the notification requirements, and whether
particular public safety improvements could be achieved by requiring
the notifications be made by railroads directly to emergency
responders, or to emergency responders as well as SERCs or other
appropriate state delegated entities.
    2. Whether the 1,000,000-gallon threshold is appropriate, or
whether another threshold such as the 20-car HHFT threshold utilized in
this NPRM's other proposals is more appropriate. If you believe that a
threshold other than 1,000,000 gallons is appropriate, please provide
any information on benefits or costs of the change, including for small
railroads.
    3. Comments regarding parallel notification requirements for any
affected TERCs.
    4. Comments regarding the other topics addressed in the FAQ's
document. In particular, PHMSA seeks comments on the confidential
treatment of data contained in the notifications to SERCs, and the
adoption of a means for identifying Bakken crude oil prior to rail
transportation.
    5. 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.
    6. 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 information.
    7. What burden reduction would result from not having to
distinguish the source of the crude oil? What increase in burden would
result from the expanded applicability?

C. Rail Routing

    We did not solicit comments on routing requirements for HHFTs in
the September 6, 2013 ANPRM. However, many government agencies and
citizens alike expressed concerns regarding the risks posed by such
rail traffic through their communities. Further, the issue was raised
during the RSAC hazardous materials working group meetings and the
Secretary's Call to Action. As a result of those efforts, the industry
has taken steps to extend the routing requirements in Sec.  172.820 of
the HMR to certain HHFTs transporting crude oil. AAR indicates that
railroads will focus on the risks related to population density along
routes by reducing train speed. Based on AAR's response to the Call to
Action, railroads will operate trains at 40 mph by July 1, 2014, for
any HHFT with at least one non-CPC 1232 DOT Specification 111 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 as defined by 49 CFR 1580.3.
    We note that under AAR Circular No. OT-55-N, any train that meets
the ``key train'' definition is subject to a 50-mph speed restriction.
Further, any route defined by a railroad as a key route shall meet
certain standards described in OT-55-N. Wayside defective wheel bearing
detectors shall be placed at a maximum of 40 miles apart, or an
equivalent level of protection may be installed based on improvements
in technology. Main track on key routes shall be inspected by rail
defect detection and track geometry inspection cars or by any
equivalent level of inspection at least twice each year. Sidings on key
routes shall be inspected at least once a year, and main track and
sidings shall have periodic track inspections to identify cracks or
breaks in joint bars. Further, any track used for meeting and passing
key trains shall be FRA Class 2 track or higher. If a meet or pass must
occur on less than Class 2 track due to an emergency, one of the trains
shall be stopped before the other train passes. PHMSA and FRA request
comments on the requirements of AAR Circular No. OT-55-N specifically
in regard to track inspection. These comments may be considered for
future regulatory action.
    This NPRM proposes to modify Sec.  172.820 to apply to any HHFT, as
PHMSA proposes to define this term in Sec.  171.8 (See discussion in
HHFT section.). The routing requirements discussed in this 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 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 security-sensitive hazardous
materials. See the Section (D) ``Overview of Current Regulations
Relevant to this Proposal'' of this preamble for more information on
routing.
    PHMSA seeks public comment on the following discussions and
questions. When commenting, please reference the specific portion of
the proposal, explain the reason for any recommended change, and
include the source, methodology, and key assumptions of any supporting
evidence.
    1. To what extent would the routing requirements change the
operational practices for small railroads, which PHMSA expects to have
limited routing options? What are the benefits and costs of applying
these requirements to small railroads?
    2. How has the voluntary compliance with the routing requirements
in response to the Call to Action changed the operational practices for
crude oil shipments?

D. Classification and Characterization of Mined Liquids and Gases

    As previously discussed, the proper classification and
characterization of a hazardous material is critical under the HMR, as
it dictates which additional requirements apply, such as the proper

operational controls and proper packaging selection.
    Under the HMR, it is critical that the offeror of a material ensure
that a hazardous material has been classified and characterized
correctly. The classification of a hazardous material triggers the
corresponding packaging and hazard communication. Under Sec.  173.22 of
the HMR, it is the offeror's responsibility to properly ``class and
describe the hazardous material in accordance with parts 172 and 173 of
this subchapter.'' When a single material meets more than one hazard
class the shipping name must be selected based on the hazard precedence
table in Sec.  173.2a. Once an offeror has determined the hazard class
of the material, the offeror must select the most appropriate proper
shipping name from the HMT.
    In the case of crude oil, relevant properties to properly classify
a flammable liquid include: flash point, and boiling point (See section
173.120). The HMR do not specifically provide requirements for
characterization tests however; relevant properties that may affect the
characterization of crude oil include corrosivity, vapor pressure,
specific gravity at loading and reference temperatures, and the
presence and concentration of specific compounds such as sulfur.
Characterization of certain properties enables an offeror to select the
most appropriate shipping name, and identify key packaging
considerations. Based on the shipping name the HMT provides the list of
packagings authorized for use by the HMR. As indicated in Sec.
173.24(e), even though certain packagings are authorized, it is the
responsibility of the offeror to ensure that such packagings are
compatible with their lading. Such information and determination of the
authorized packaging also ensure that the appropriate outage is
maintained in accordance with Sec.  173.24(a).
    In the September 6, 2013 ANPRM, we did not request comments on the
classification of crude oil. Nonetheless, one commenter, David C.
Breidenbach, provided several comments regarding the volatility of
``gassy'' crude oil. Mr. Breidenbach's comments suggested the need to
conduct pre-movement sampling and safety certification, require
pressurized DOT Specification 112 tank cars for certain PG I crude oil,
and ensure that field operators adjust well head separators to remove
gas and develop gas processing infrastructure.
    Classification and characterization were raised during an RSAC
hazardous materials working group meeting, in the Secretary's Call to
Action, under Operation Classification, in the agencies' Joint Safety
Advisories, and in the amended and restated March 6, 2014 DOT Emergency
Order. PHMSA's January 2, 2014 Safety Alert warns of crude oil
variability and emphasizes proper and sufficient testing to ensure
accurate characterization and classification. The Safety Alert
expresses PHMSA's concern that unprocessed crude oil may affect the
integrity of packaging or present additional hazards related to
corrosivity, sulfur content, and dissolved gas content. Proper
classification of crude oil has been a major focus of the PHMSA and FRA
initiative referred to as Operation Classification and the Secretary's
Call to Action. Further, the Department's February 25, 2014 Emergency
Order, as revised on March 6, 2014, requires 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. As
a result of comments, concerns, and government and industry emphasis on
proper classification, in this NPRM, PHMSA proposes changes to the HMR
that clarify and enhance the current classification requirements for
mined gases and liquids.
    The HMR require both the proper classification of hazardous
materials and the selection and use of proper packaging. Packaging
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'').
PHMSA is proposing to revise the bulk packaging sections Sec. Sec.
173.241, 173.242, and 173.243 to provide the timeline for continued use
of existing DOT Specification 111 tank cars in HHFT service in
accordance with the following table:

 Table 15--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.
------------------------------------------------------------------------

    Based on the RSI's presentation to the NTSB on tank car production
capacity, it is anticipated that 33,800 tank cars could be manufactured
per year. In addition, PHMSA assumes that the current fleet size in
HHFT service is 72,000. PHMSA used this data to provide a phase out
period for DOT Specification 111 tank cars in certain HHFT service that
would ensure that sufficient time was provided to avoid a fleet
shortage in HHFT service. PHMSA requests comments on the proposed
timelines for discontinuing use of DOT Specification 111 tank cars in
HHFT service.
    In Recommendation R-14-6 the NTSB recognized the importance of
sufficient testing and documentation of the physical and chemical
characteristics of hazardous materials to ensure the proper
classification, packaging, and record-keeping of products offered in
transportation. We agree with NTSB. Classification decisions are
essential for the selection of proper equipment (tank, service
equipment, interior lining or coating) and the use, maintenance, and
qualification of the equipment when shipping hazardous materials.
Proper classification is also essential for accommodating the risk-
based implementation schedule for increased tank car requirements
described below. The statement on a shipping paper is the offeror's
certification that a hazardous material is properly classified,
described, packaged, marked and labeled, and in proper condition for
transportation according to applicable DOT regulations. Packaging
decisions are based on the information provided by the offeror.
Incorrect classification and characterization of hazardous material may
lead to failures throughout the transportation system.
    Examples where improper information from an offeror may result in
unsafe transportation conditions are found throughout the HMR.
     Section 180.509(i) requires an owner of the interior
lining or coating of a tank car transporting a material that is
corrosive or reactive to the tank to ensure an inspection adequate to
detect defects or other conditions that could reduce the design level
of reliability and safety of the tank.
     Section 180.509(i) also requires the owner of a tank car
used to transport a hazardous material to ensure the lining conforms to
Sec. Sec.  173.24(b)(2) and (b)(3) of the HMR. Further, the owner
``must use its knowledge of the service life of each coating or lining
and commodity combination to establish an appropriate inspection
interval for that coating or lining and commodity combination.''
     Under Sec.  180.509(k) an owner of service equipment
``must analyze the service equipment inspection and test results for
any given lading and, based on the analysis, adjust the inspection and
test frequency to ensure that the design level of reliability and
safety of the equipment is met.''

     Appendix D to Part 180 identifies hazardous materials
corrosive to tanks or service equipment, stating ``While every effort
was made to identify materials deemed corrosive to the tank or service
equipment, owners and operators are cautioned that this list may not be
inclusive.'' Tank car owners and operators are reminded of their duty
to ensure that no in-service tank will deteriorate below the specified
minimum thickness requirements in this subchapter. See Sec.
180.509(f)(3).
    The properties of mined gases and liquids, including crude oil, are
variable based on time, method, and location of extraction. Whereas
manufactured goods often undergo a strict quality assurance process to
ensure characteristics are within defined parameters, mined gases and
liquids do not. Unlike manufactured goods, organic materials from oil
and gas production represent a unique challenge in regards to
classification. Differences in the chemical makeup of the raw material
can vary over time and geographical location. Typically, organic
materials from oil and gas production at a well head are passed through
a ``separator'' to remove the gas, sediment, and water from the crude.
As such, there are multiple hazardous materials that are commonly
shipped from the well-site including: Crude, natural gas condensate,
and natural gas liquid.
    Given this variability, there is a responsibility under Sec.
173.22 of the HMR for an offeror to ensure the proper characterization
and classification of their materials. Proposed Sec.  173.41 would
explicitly require a sampling and testing program for mined gases and
liquids, including crude oil. Under proposed Sec.  173.41(a), this
program must address the following key elements that are designed to
ensure proper classification and characterization of crude oil:
     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),\51\
and location of extraction;
---------------------------------------------------------------------------

    \51\ 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.
    The sampling and testing program should account for appreciable
differences in the material as a result of time, temperature, etc., but
need not measure ordinary and minor differences in materials. If an
offeror assigns all of its materials to the most stringent packing
group classification, this may serve as one possible justification for
a lower frequency of testing. The offeror would still need to justify
less frequent testing of other properties such as corrosivity. Sampling
along the length of the supply chain will be used to understand the
processing and transportation effects but may be less frequent than
final testing prior to rail car loading.
    As a result of Secretary Foxx's call to Action, on February 21,
2014 the API agreed to pursue various actions including to work with
PHMSA and other representatives from the Department of Transportation
to share information and expertise on crude oil characteristics. API
created a working group on entitled the ``API Classification & Loading
of Crude Oil Work Group.'' Within this working group were two task
groups: ``Crude Oil Classification Task Group'' and the ``Crude Oil
Quantity & Quality Measurement Task Group.''
    A six month schedule was launched in early 2014, with working
groups meeting every two weeks throughout the country. The goal of this
group was to develop a consensus industry standard for crude oil
testing, sampling and unloading. PHMSA personnel have been active
participants in these meetings. In June 2014 the API working group
finalized a draft standard ``Recommend Practices 3000'' (RP 3000). RP
3000 provides industry best practices, including those regarding
testing and sampling methods. The draft standard is currently in the
balloting process with API members and is on a path to finalization and
thus in not considered in the rulemaking. PHMSA is encouraged by the
development of such an industry standard and API's continued work in
the standard and beyond to improve the accuracy of classification of
materials and the overall safety or operational rail requirements. Once
finalized PHMSA may consider adoption of such a standard and in
addition those in the regulated community may petition for the
incorporation of such standard through the processes outlined in
section 106.95 of the HMR.
    Proposed Sec.  173.41(b) would link the certification requirements,
as prescribed in Sec.  172.204, to the sampling and testing program.
Specifically, by certifying the shipment in accordance with Sec.
172.204, the offeror of the hazardous material is certifying compliance
with the sampling and testing program for mined gases and liquids
described above. Based on comments to the ANPRM, we considered
regulatory changes related to the vapor pressure of a flammable liquid.
As mentioned in the Background section of this preamble, above, prior
to 1990 the HMR clearly 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, and 120 tank cars). Specifically, Sec.
173.119(f) indicated that flammable liquids with a vapor pressure that
exceeded 27 psia but less than 40 psia at 100 [deg]F (at 40 psia, the
material met the definition of a compressed gas), were only authorized
for transportation in one of the authorized pressure cars. The older
regulations recognized that those flammable liquids that exhibited high
vapor pressures, such as those liquids with dissolved gases, require
additional care in packaging. We are not currently proposing any
regulatory changes related to vapor pressure of a material. However,
PHMSA seeks comments from the regulated community on the role of vapor
pressure in the classification, characterization, and packaging
selection process for a flammable liquid and whether regulatory changes
to establish vapor pressure thresholds for packaging selection are
necessary.
    Proposed Sec.  173.41(c) would require that the sampling and
testing program be documented in writing and retained while it remains
in effect. It should be noted the while the sampling and testing
program is required be documented in writing and retained while it
remains in effect we are not require a specified retention requirement
for the actual testing records. We acknowledge testing results will be
supplemental materials to support the requirements of the sampling and
testing program. The proposed requirement specifies that 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, or portions thereof, must be
provided 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 revision. If a sampling and testing program is updated,
revised or superseded, documentation of the program that was updated,
revised, or superseded must be retained for 5 additional years.
    Proposed Sec.  173.41(d) would mandate that 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 DOT.
    It should be noted above in early 2014 API created a working group
on entitled the ``API Classification & Loading of Crude Oil Work
Group.'' The goal of this group was to develop a consensus industry
standard (RP 3000) that would address testing and sampling of crude
oil. PHMSA personnel have been active participants in these meetings.
PHMSA is encouraged by the development of such an industry standard and
API's continued work in the standard and beyond to improve the accuracy
of classification of materials and the overall safety or operational
rail requirements. Once finalized PHMSA may consider adoption of such a
standard and in addition those in the regulated community may petition
for the incorporation of the standard through the processes outlined in
section 106.95 of the HMR.
    PHMSA seeks public comment on the following discussions and
questions. When commenting, please reference the specific portion of
the proposal, explain the reason for any recommended change, and
include the source, methodology, and key assumptions of any supporting
evidence.
    (1.) What are the differences in the process and costs for
classification of mined gases compared to mined liquids such as crude
oil?
    (2.) How much variability exists across a region due to location,
time, temperature, or mining methods for gases and liquids?
    (3.) Would more or less specificity regarding the components of a
sampling and testing program aid offerers of shipments to be in
compliance with proposed Sec.  173.41?
    (4.) Do the guidelines provides sufficient clarity to offerors to
understand whether they are in compliance with these requirements?
    (5.) How could PHMSA provide flexibility and relax the sampling and
testing requirements for offerors who voluntarily use the safest
packaging and equipment replacement standards?

E. Additional Requirements for High-Hazard Flammable Trains

    In the September 6, 2013 ANPRM we outlined the additional safety
enhancements, which may include both rail car design and rail carrier
operational changes that were considered by the T87.6 Task Force, and
we provided the public an opportunity to comment. Below are the key
considerations of the task force from both a tank car design and
operations standpoint.

    Table 16--Key Considerations and Findings of the T87.6 Task Force
------------------------------------------------------------------------

-------------------------------------------------------------------------
                             Tank car design
------------------------------------------------------------------------
Thermal protection to address breaches attributable to exposure to fire
 conditions.
Findings--Modeling of tank cars exposed to pool fire conditions using a
 version of AFFTAC current at the time the TF was active, and using pure
 ethanol as a surrogate, indicate thermal protection and a jacket was
 not necessary for a tank car to survive 100 minutes in a pool fire. A
 pressure relieve valve with a flow capacity of 27,000 SCFM with a start
 to discharge pressure of 75 psig was needed to ensure the tank car
 survived 100 minutes.
------------------------------------------------------------------------
Roll-over protection to prevent damage to top and bottom fittings and
 limit stresses transferred from the protection device to the tank
 shell.
Findings--Research comparing the top fittings protection required for
 the CPC-1232 compliance car and the protection required in the HMR for
 certain tank cars based on dynamic loads was considered preliminary and
 not sufficient to base a recommendation.
------------------------------------------------------------------------
Hinged and bolted manways to address a common cause of leakage during
 accidents and Non-Accident Releases (NARS);
Findings--Representatives of the shipping community expressed the
 following concerns regarding the elimination of hinged and bolted
 manways.
     The existing infrastructure at the loading and unloading
     facilities has been designed make use of the 20'' manway.
     Through the manway the facilities recover vapor, inspect
     the interior of the cars, obtain samples of heels in the tanks,
     insert a stinger used to dissipate energy of a fluid moving at a
     high flow rate, gauge the volume in the car during loading, access
     the car for periodic and ad hoc cleaning. In some cases all of the
     loading/unloading appurtenances have been incorporated onto a
     housing that fits over the manway.
     If a bolted pressure plate like assembly is required the
     loaded volume may be determined using existing technology. The
     specific gravity of crude oil varies from 0.6 to 1.0 limiting the
     usefulness of a magnetic gauging device.
Alternatives to hinged and bolted securement are currently under
 development and testing.
------------------------------------------------------------------------
Bottom outlet valve (BOV) elimination;
Findings--The working group concluded elimination of the allowance for
 BOVs is not a viable option in the near term. The Task Force then
 considered enhanced protection of the bottom outlet valve. Appendix E
 of the AAR's Tank Car Specifications provides the standards for bottom
 discontinuity protection. In order to move forward with this concept,
 the design criteria will need to be developed. Time constraints
 prohibit this task force from advancing this concept. Also, inspection
 of the 10 cars involved in a recent derailment indicates the bottom
 outlet protection functions as designed and no valve were significantly
 damaged.
AAR TCC created a docket T10.5 and a task force to evaluate bottom
 outlet performance. Task force T87.6 recommends that the TCC add
 development of design criteria for enhanced bottom outlet protection to
 the T10.5 charge. The following are other ideas being investigated by
 T10.5 that are germane to T87.6.
     Shipment of the car without the BOV handle attached and
     development of a standard/universal handle attachment.
     Eliminate use of overly strong handle.
     Incorporating operating stops on valve bodies.

     The working group will also engage BOV manufacturers to
     determine if valve configurations or design be altered to prevent
     damage documented in recent derailments.
------------------------------------------------------------------------
Increasing outage from 1 percent to 2 percent to improve puncture
 resistance.
Increasing the minimum allowed outage was a difficult option to evaluate
 because the commodities are loaded below the reference temperature and
 the outage at the loading temperature is well above the regulatory
 minimum. It was reported Ethanol was loaded to an outage of
 approximately 4%. The American Petroleum Institute (API) surveyed a
 number of its members to learn the outage of ethanol as received. The
 outages ranged from 2.86% to 6.23%.
To further evaluate the benefit of this option, the AFFTAC subgroup
 performed simulations to determine the benefit (to survivability in a
 pool fire) offered by increased outage. Based on the results of the
 simulation a tank car with 2% outage had an insignificant change in
 performance when exposed to a pool fire.
------------------------------------------------------------------------
                         Rail Carrier Operations
------------------------------------------------------------------------
Rail integrity (e.g., broken rails or welds, misaligned track,
 obstructions, track geometry, etc.) to reduce the number and severity
 of derailments;
Findings--The Task Force urged groups charged with addressing track
 integrity issues to aggressively work toward a quick and meaningful
 resolution. In addition, the Task Force urged developers and suppliers
 of rail flaw detection technology to continue to make the advancement
 and production of the technologies a priority.
------------------------------------------------------------------------
Alternative brake signal propagation systems ECP, DP, and two-way EOT to
 reduce the number of cars and energy associated with derailments;
Findings--Based on the simulation results and analysis of the data it
 was concluded the alternatives considered provided marginal benefits.
 Moreover the identified obstacles to implementation represent a
 considerable time and cost investment and the predicted benefits would
 not be realized for months or years in the future. As such, this
 working group will not make a recommendation related to alternative
 brake signal propagation systems.
------------------------------------------------------------------------
Speed restrictions for key trains containing 20 or more loaded tank cars
 (on August 5, 2013, AAR issued Circular No. OT-55-N addressing this
 issue);
Findings--The working group recommended that OT-55 not be modified due
 to the adverse impact on cycle times and the resulting increase in the
 number of tank cars which would be required to transport these
 commodities in the same time frame. Most of the benefit of the reduced
 speed restriction is already in place, since five of the seven Class 1
 railroads already handle unit trains of these commodities as key
 trains.
------------------------------------------------------------------------
Emergency response to mitigate the risks faced by response and salvage
 personnel, the impact on the environment, and delays to traffic on the
 line.
Findings--The Task Force supports the RFA's proposed recommendation and
 in turn, recommends the AAR request updates from the RFA regarding the
 availability of mobile stores of AR-AFFF.
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    As part of PHMSA and FRA's systematic approach to rail hazardous
materials transportation safety, in this NPRM, in addition to new tank
car design standards, PHMSA is proposing operational requirements for
HHFTs. Some of these operational requirements are consistent with the
T87.6 Task Force and discussed in further detail below.
a. Speed Restriction
    Speed is a factor that may contribute 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 laws of physics indicate that if an accident occurred at 40 mph
instead of 50 we should expect a reduction of kinetic energy of 36%.
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 allow a locomotive engineer to
identify a safety problem ahead and stop the train before an accident
occurs, which could lead to accident prevention. PHMSA only quantifies
benefits in this proposed rule from mitigating the severity of
accidents. With respect to prevention, PHMSA notes that reduced speeds
will reduce the risk of accidents on net, though some risks could
increase under limited circumstances.
    PHMSA and FRA used a ten mile speed differential in calculating an
effectiveness rate for the 40 mph speed restriction options, which
assumes that at the time of an accident trains would be going 10 mph
slower if the speed restriction were at 40 mph rather than 50 mph.
Braking is often applied before an accident occurs, and the speed
differential at the time of an accident that results from trains
operating at top speeds of 50 mph and 40 mph could be different than 10
mph. Furthermore, in some cases, other restrictions on speed or
congestion could affect speed at the time of the accident. PHMSA lacks
a basis to modify the assumption that speeds would be 10 mph different
at the time of accidents and seeks comment on how we may better
determine how speed restrictions would affect actual speed at the time
of an accident.
    A simulation program, Train Energy & Dynamics Simulator (TEDS) was
used to study the dynamics and energy levels of trains under a variety
of operational conditions. Specifically, TEDS was used to determine the
stopping distance and the rate of dissipation of kinetic energy (KE) of
a generic, 100 tank car train on level tangent track equipped with the
candidate brake signal propagation systems. The simulations were used
to determine the relative performance of the different systems. The
model was validated using brake signal propagation data from Wabtec and
data from a BNSF test performed in 2008.
    This modeling tool was then used to determine the remaining energy
to be dissipated and the speed at selected locations in the train when
that tank car reached a defined point specified as the Point of
Derailment (POD). By comparing the results for each technology,
assumptions were made for the difference in number of cars reaching the
point of derailment, remaining kinetic energy of all of the cars in the
train at a set time interval, and conditional probability of release
(CPR) of the train. This modeling supported the conclusion that a 10
mph speed reduction would reduce the harm of a derailment by 36%.

    PHMSA anticipates the reductions in the speed of trains that employ
less safe tank cars will prevent fatalities and other injuries, and
limit the amount of property damage done in an accident. PHMSA expects
fewer safety benefits would be realized from a reduction in speed as
the tank car fleet is enhanced as proposed in this NPRM.
    As noted above, T87.6 Task Force considered this issue but did not
recommend action, primarily because of the ``adverse impact on cycle
times and the resulting increase in the number of tank cars which would
be required to transport these commodities in the same time frame.''
    However, given the increasing risks of HHFTs, in the ANPRM we asked
several questions regarding AAR Circular No. OT-55-N. Specifically, we
asked if the Circular adequately addressed speed restrictions. The
majority of the commenters indicated that the current voluntary 50-mph
speed restriction is acceptable. Further, during the industry Call to
Action, the rail and crude oil industries agreed to consider further
voluntary improvements, including speed restrictions in high
consequence areas, similar to the requirements that are established by
the routing requirements in Part 172, Subpart I of the HMR. As a result
of those efforts, AAR indicates that 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 DOT Specification 111 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.
    In their comments, AAR and the ASLRRA stated,

    Following Lac-M[eacute]gantic, AAR's and ASLRRA's members
reviewed their operating practices with respect to the
transportation of hazardous materials. The decision was made to
expand OT-55, the industry circular on recommended operating
practices, to encompass all hazardous materials, including flammable
liquids. OT-55's operating restrictions now apply to trains
containing one car of a TIH material, spent nuclear fuel, or high-
level radioactive waste or 20 cars of any combination of other
hazardous materials. The 20-car threshold was chosen in recognition
that in the context of Lac-M[eacute]gantic, the concern is over a
pool fire involving multiple cars. In addition, crude oil and
ethanol typically are shipped in unit trains.

    Further, AAR and the ASLRRA stated,

    OT-55 has existed for two decades and has been adhered to by the
railroad industry. There is no need to incorporate its provisions
into the hazardous materials regulations. With respect to the 50-mph
speed limit, that is the regulatory limit for TIH.\52\ AAR and
ASLRRA are unaware of any analysis justifying a lower speed limit
and is concerned that a lower speed limit will have the
counterproductive effect of causing shippers to divert freight to
other transportation modes.
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    \52\ 49 CFR 174.86(b).

    Proposed Sec.  174.310(a)(4) would establish a 50-mph maximum speed
restriction for HHFTs. It was suggested that there is no need to
incorporate the speed restrictions of OT-55. OT-55 is a recommended
practice and, as such, does not carry the weight of law. A subscribing
railroad can, without concern of a penalty, move these trains at speeds
exceeding the industry standard and as discussed previously, increase
the energy and likelihood of catastrophic damage to tank cars involved
in a train accident. Codifying this voluntary commitment will ensure
that the benefits of these speed restrictions are realized
indefinitely. Without codification of these requirements the speed
restrictions could be subsequently lifted prematurely and increase
risk. Additionally, in the event that a rail carrier cannot comply with
the proposed braking requirements discussed in the Alternative Brake
Propagation Systems section of this NPRM, the rail carrier would not be
permitted to operate HHFTs at speeds exceeding 30-mph.
    Finally, we are proposing three Options for a 40-mph speed
restriction for any HHFT unless all tank cars containing flammable
liquids meet or exceed the proposed standards for the DOT Specification
117 tank car. We request comments on which Option would have greatest
net social benefits and whether the 40-mph speed restriction is
necessary. Those 40-mph speed limit options are as follows:

Option 1: 40 mph Speed Limit All Areas

    All HHFTs are limited to a maximum speed of 40 mph, unless all
tank cars meet or exceed the proposed performance standards for the
DOT Specification 117 tank car.

Option 2: 40 mph 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, unless
all tank cars meet or exceed the proposed standards for the DOT
Specification 117 tank car. An area that has a population of more
than 100,000 people would be defined using municipal borders, as
determined by census population data. The 40 mph limitation to
maximum speed would apply when any part of a HHFT is operating
within that municipal border. PHMSA estimates that approximately 10%
of the track miles for crude oil and ethanol traffic are traversed
in cites with a population greater than 100,000 people. We seek
comments on this assumption. Therefore, only 10% of the track miles
would be impacted.

Option 3: 40 mph in 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 limits of HTUAs, unless all tank cars meet or
exceed the proposed standards for the DOT Specification 117 tank