[Federal Register Volume 77, Number 122 (Monday, June 25, 2012)]
[Rules and Regulations]
[Pages 37961-37992]
[FR Doc No: 2012-13960]

Vol. 77

Monday,

No. 122

June 25, 2012

Part II

Department of Transportation

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Pipeline and Hazardous Materials Safety Administration

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

Hazardous Materials: Incorporating Rail Special Permits Into the
Hazardous Materials Regulations; Final Rule

Federal Register / Vol. 77 , No. 122 / Monday, June 25, 2012 / Rules
and Regulations

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

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

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

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

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

ACTION: Final rule.

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

DATES: Effective date: July 25, 2012.
    Voluntary compliance date: PHMSA is authorizing voluntary
compliance beginning June 25, 2012.
    Incorporation by reference date: The incorporation by reference of
certain publications listed in this rule was previously approved by the
Director of the Federal Register on October 1, 2003 and March 16, 2009.

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

SUPPLEMENTARY INFORMATION:

I. Background
    A. Notice of Proposed Rulemaking
    B. Comments on the NPRM
II. Amendments Adopted in Final Rule
III. Section-by-Section Review
IV. Regulatory Analyses and Notices
    A. Statutory/Legal Authority for the Rulemaking
    B. Executive Order 12866, Executive Order 13563, and DOT
Regulatory Policies and Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
    F. Paperwork Reduction Act
    G. Regulatory Identifier Number (RIN)
    H. Unfunded Mandates Reform Act
    I. Environmental Assessment
    J. Privacy Act

I. Background

A. Notice of Proposed Rulemaking

    The Pipeline and Hazardous Materials Safety Administration (PHMSA)
and the Federal Railroad Administration (FRA) issued a notice of
proposed rulemaking (NPRM) on August 18, 2011 [76 FR 51324] under
Docket No. PHMSA 2010-0018 (HM-216B) to amend the Hazardous Materials
Regulations (HMR; 49 CFR Parts 171-180) to incorporate requirements
based on seven existing special permits for transportation by railroad
issued by PHMSA under 49 CFR Part 107, Subpart B (Sec. Sec.  107.101 to
107.127). This NPRM was part of an ongoing review by PHMSA to identify
widely used and longstanding special permits with established safety
records for adoption into HMR. The numbers of the special permits
considered for incorporation in the NPRM are DOT-SP: 7616, 9388, 11184,
12095, 12905, 14333, and 14622. PHMSA identified these special permits
as implementing new technologies and operational techniques that
achieve a safety level that corresponds to or exceeds the safety level
required under the HMR. In addition, we also addressed two petitions
for rulemaking in the NPRM: P-1497 and P-1567. P-1497 pertains to the
use of electronic shipping papers; P-1567 pertains to the removal of
the AAR-600 portable tank program for previously adopted standards that
meet or exceed AAR-600 requirements.
    Based on the aforementioned special permits and petitions for
rulemaking, we subsequently proposed amendments to the HMR to:
    (a) Establish an alternative tank car qualification program;
    (b) Permit the electronic transmission of shipping paper
information;
    (c) Permit straight threads in the clean out and/or inspection port
openings of a Department of Transportation (DOT) Specification 110A500W
multi-unit tank car tank;
    (d) Permit alternative start-to-discharge pressure requirements for
certain DOT Specification 105J500W tank cars containing chlorine;
    (e) Permit alternative pressure relief requirements for pressure
relief devices for DOT Specification 105J300W tank cars containing
certain flammable liquids;
    (f) Permit certain DOT and Association of American Railroad (AAR)
specification tank cars with stainless steel identification plates to
have their specification and other required information stamped on the
identification plate instead of the tank car head provided certain
requirements are met;
    (g) Permit liquefied anhydrous ammonia gas or ammonia solution to
be measured by a metering device when loaded into a tank car as an
alternative to measuring the cars by weight;
    (h) Revise Sec.  179.13(b) to require that rail tank cars with a
gross weight that exceeds 263,000 but not 286,000 pounds containing
poisonous-by-inhalation (PIH) materials must be approved for use by the
FRA's Associate Administrator for Railroad Safety; and
    (i) Eliminate use of the AAR 600 program concerning the FRA's
approval of bulk packagings in container-on-flat-car (COFC) or trailer-
on-flat-car (TOFC) service that is incorporated into Sec.
174.63(c)(2).

B. Comments on the NPRM

    The comment period for the NPRM closed on October 17, 2011.
Thirteen entities provided comments in response to the NPRM. Most of
the commenters support the proposals in the NPRM, while several
commenters request modifications to the proposed regulations for
clarity. Still others suggest certain proposals be eliminated
altogether from consideration. PHMSA has summarized these comments in
the ``Section-by-Section Review'' discussion of this rulemaking.
Specifically, PHMSA received comments from the following:

1. Alltranstek LLC (Alltranstek)
2. American Railcar Leasing LLC (ARL)
3. Association of American Railroads (AAR)
4. The Chlorine Institute
5. CIT Group
6. Council on Safe Transportation of Hazardous Articles, Inc. (COSTHA)
7. Dangerous Goods Advisory Council (DGAC)

8. The Dow Chemical Company (Dow)
9. GATX Corporation (GATX)
10. International Vessel Operators Dangerous Goods Association (IVODGA)
11. Midland Rail Services, LLC (Midland)
12. Union Pacific Railroad (UPC)
13. Union Tank Car Company (UTC)

II. Amendments Adopted in Final Rule

    The following is a summary of the amendments PHMSA is adopting in
this final rule. This list does not include minor editorial changes.
     The reference to Sec.  174.63 is removed from the AAR
Manual of Standards and Recommended Practices M-1002 listing in Sec.
171.7.
     Definitions for ``Electronic data interchange'' and
``Train consist'' are added to Sec.  171.8.
     Requirements for electronic shipping papers, electronic
data interchange (EDI) standards, and electronic signature
certification for hazardous material rail shipments are added to
Sec. Sec.  172.201(a)(5), 172.202(b), 172.204(a)(3)(ii), and (d)(3).
     Requirements for verbal certification of shipping papers
for rail hazardous materials shipments are added to Sec.
172.204(a)(3)(i) and (d)(3).
     The emergency response telephone number requirements are
revised to clarify that telephone numbers outside the United States
(U.S.) must be accompanied by the international access code or the plus
sign, country code, and city code, as appropriate, needed to complete
the call.
     Section 172.604(a)(3)(ii) is revised to clarify that the
emergency response telephone number must be entered on the shipping
paper in the manner prescribed in Sec.  172.604(b).
     Provisions to allow tank cars and multi-unit tank cars to
be loaded with liquefied anhydrous ammonia gas or ammonia solution
through the use of a metering device are added to Sec.  173.314(e).
     Section 173.314(k)(2) is added to permit DOT 105J500W tank
cars equipped with combination safety relief valves with a start-to-
discharge pressure of 360 psi to be used as authorized packagings for
inhalation hazard zone B Chlorine gas.
     Section 174.63(c)(2) is revised to remove the requirement
for tank cars in container-on-flat-car (COFC) or trailer-on-flat-car
(TOFC) service from complying with the AAR 600 program in the AAR
Specification for Tank Cars, ``Specifications for the Acceptability of
Tank Containers.''
     Section 179.13(b) is revised to specify FRA approval of
tank cars carrying poisonous-by-inhalation materials with a gross
weight on rail up to 286,000 pounds.
     Requirements to permit tank car information to be stamped
on permanent identification plates placed on opposite ends of a tank
car instead of stamped into the tank's head are added to Sec. Sec.
179.24, 179.100-20, 179.200-24, 179.201-10, and 179.220-25.
     Requirements to permit straight threads to be used instead
of tapered threads in the clean-out/inspection ports of DOT
Specification 110A multi-unit tank car tanks are added to Sec.
179.300-13.
     The applicability provisions for 49 CFR Part 180 are
revised to include Part 174 in Sec.  180.501(a).
     Section 180.501(b) is added to require tank car owners to
develop written tank car qualification procedures required under Sec.
179.7 for their tank car employees, and to require tank car facilities
to incorporate an owner's qualification program in the facility's
quality assurance program.
     New paragraph (d) is added to Sec.  180.501 to require
that documents must be made available upon request to credentialed FRA
employees or authorized U.S. Department of Transportation employees.
     Definitions from the former Tank Car Qualification Program
(TCQ-1) concerning tank car qualification and maintenance, some with
revisions, are added to Sec.  180.503.
     Paragraph Sec.  180.507(b) is removed. This paragraph was
added to the HMR in an earlier rulemaking to require tank cars
authorized to transport cryogenic liquids under an exemption (DOT-E)
issued before October 1, 1984, to remove the earlier exemption number,
stamp the tank car with the appropriate Class DOT-113 specification,
and mark the tank car with the applicable DOT-E number. PHMSA proposed
in the NPRM to replace the DOT-E number marked on the tank with the
applicable DOT-SP number. However, the FRA has determined most of the
tank cars subject to this paragraph have been modified, that one
special permit of this type may exist, and that the tank cars
authorized under that special permit have already been marked with the
current DOT-SP number. Therefore, FRA has determined the need for this
section no longer exists.
     Section 180.509 is amended to add conditions and
frequencies of inspections and tests for qualifying a tank car that
were authorized under former TCQ-1. These provisions:
    [cir] Require that reports of all inspections and tests be sent to
the tank car owner, and for a coating or lining, to the coating or
lining owner;
    [cir] Permit the FRA Associate Administrator for Railroad Safety to
declare a tank car in unsafe operating condition based on the existence
of an objectively reasonable and articulable belief instead of a
probable cause;
    [cir] Simplify the ``Allowable Shell Thickness Reduction'' table
for a tank car's service life thickness allowance;
    [cir] Require the owner of a tank car coating or lining to ensure
the adequacy and compatibility of the coating or lining for the
material being offered for transport and to establish and maintain a
record of service of the coating or lining and commodity combination,
including an appropriate inspection interval that is not to exceed
eight years, unless evidence or scientific analysis can be provided
that supports a longer inspection interval;
    [cir] Require tank car owners to ensure a tank car's service
equipment is qualified at least once every 10 years; and
    [cir] Clarifies that the Associate Administrator for Railroad
Safety must approve alternative inspection and test procedures or
intervals based on a damage-tolerance analysis or service reliability
assessment.
     The introductory paragraph of Sec.  180.511 is revised to
require the representation of a qualified tank car's inspections and
tests to be marked on the tank in conformance with Sec.  180.515.
     Section 180.511(d) is revised to include a requirement
that the safety system inspection must also show no indication of a
defect that may reduce the reliability of tank car before its next
inspection and test.
     Section 180.511(g) is revised to require a hydrostatic
test for the inner tank of a DOT Class 115 specification tank car.
     Section 180.511(h) is added to establish acceptable
results for inspection and test requirements for service equipment.
     Section 180.513 is revised to require that, in addition to
having to comply with the AAR's Specifications for Tank Cars, a tank
car facility making repairs, alterations, conversions, or modifications
to a tank car must comply with the tank car owner's requirements, and
must obtain the permission of the equipment owner before performing
work that would affect the alteration, conversion, repair, or
qualification of the owner's equipment. Also, after this work is
performed, the tank's service equipment must successfully pass the leak
test prescribed in Sec.  180.509(j).
     The tank car marking requirements prescribed in Sec.
180.515(a) are revised to

establish that dates displayed on a consolidated stencil take
precedence over dates that are modified and not stenciled, pursuant to
interval adjustments for service equipment, linings, and granted
alternative inspection intervals.
     Section 180.515(b) is revised to specifically list
converted DOT 105, 109, 112, 114, and 120 specification tank cars as
being required to have new specification and conversion date markings.
     Section 180.515(c) is revised to state the installation
date of a reclosing pressure relief device on a tank car is the test
date the device is ``qualified,'' instead of ``pressure tested,''
within six months from the date it was installed and protected from
deterioration.
     Section 180.517(a) establishes that the builder's
signature on a tank car's certificate of construction and marking of
the tank car with the tank's specification represent that all the
appropriate inspections and tests were performed successfully and the
tank is qualified for use.
     Section 180.517(b) is revised to require that the written
report of a tank car's qualification inspections and tests must be
provided in a common readable form to FRA upon request, and must
include the tank car reporting mark and number, specification, name of
the inspector, and the unique code (station stencil) identifying the
facility.
     49 CFR Part 180, Subpart D, is added to include materials
the FRA has determined may, under certain conditions, corrode carbon
steel tanks or service equipment at a rate that may reduce their
reliability.

III. Section-by-Section Review

    The following is a section-by-section review of the amendments
adopted in this final rule.

Part 171

Section 171.7

    Section 171.7 addresses industry standards and other reference
materials that are incorporated by reference into the HMR. In the NPRM,
we proposed to remove the reference to Sec.  174.63 under the AAR
Manual of Standards and Recommended Practices, M-1002, (December, 2000)
because we proposed to discontinue use of the AAR 600 program of the
AAR's Specification for Tank Cars, entitled ``Specifications for the
Acceptability of Tank Containers,'' in Sec.  174.63(c)(2). PHMSA
received no comments on the specific proposed language change to this
section. Therefore, in this final rule, this language is being adopted
as proposed in the NPRM.
    It should be noted that several commenters object to PHMSA
maintaining this edition in the HMR, stating that many of these
standards are not applicable to the material being regulated or are
obsolete compared to the AAR's 2007 edition of this publication.
Several commenters request that PHMSA revise the HMR in this final rule
to permit current and future editions of AAR M-1002 to be incorporated
into the HMR when they are published.
    Before incorporating any organization's technical guidance into the
HMR as a material incorporated by reference, PHMSA and the appropriate
modal agency staff conduct an extensive technical review of the
document to determine if the standards it establishes are safe and in
conformance with the HMR. In addition, in such instances, federal
agencies must comply with the other requirements concerning
incorporating materials by reference, such as soliciting public comment
on their incorporation as required under the Administrative Procedure
Act, and completing procedures for their incorporation issued by the
Federal Register. Therefore, PHMSA is denying this request. However, we
will consider the 2007 or later edition of the AAR's M-1002 for
possible incorporation into the HMR in a future rulemaking.

Section 171.8

    Section 171.8 provides definitions and abbreviations used
throughout the HMR. In the NPRM, we proposed to add a definition to
indicate that a ``train consist'' means a written record of the
contents and location of each rail car in a train. Our intention was to
provide a definition for a provision proposed in Sec.  172.204(a)(3)(i)
to permit a carrier to record acknowledgment on a shipping paper that
will accompany a rail hazardous material shipment or other document,
like a train consist, that a correct, complete shipping description was
received verbally over the telephone, and is in conformance with Sec.
174.24. Commenters state that although a train consist is used to
assist rail carriers, it is not an official shipping paper document,
and that Sec.  174.24 refers only to shipping papers. We agree.
Therefore, we are adopting this proposed definition in Sec.  171.8, but
are not adding this phrase to Sec.  172.204(a)(3)(i).

Part 172

Section 172.201

    Section 172.201 specifies requirements for the preparation and
retention of shipping papers used to describe hazardous materials in
transportation. In the NPRM, we proposed minor editorial changes to
clarify Sec.  172.201(a)(2), and proposed to revise Sec.  172.201(a)(5)
to add provisions prescribed in DOT-SP 7616 for the acceptance,
availability, forwarding, verification, and retention of electronic
shipping paper information transmitted by EDI for the development of
shipping papers used to transport hazardous materials by railcar. We
also proposed requirements concerning the generation of residue
shipping papers by carriers.
    Most of the commenters support amending the HMR to permit EDI
transmission of shipping paper information. The DGAC states that, while
EDI is generally well-understood without a definition, if retained in
the final rule, PHMSA should move the last two sentences of proposed
Sec.  172.201(a)(5) into a definition of EDI and place it under general
definitions prescribed in Sec.  171.8 so that EDI's use is clearly not
limited to rail transportation. The two sentences in the NPRM state:

    For the purpose of this section electronic data interchange
(EDI) means the computer-to-computer exchange of business data in
standard formats. In EDI, information is organized according to a
specific format (electronic transmission protocol) agreed upon by
the sender and receiver of this information, and transmitted through
a computer transaction that requires no human intervention or
retyping at either end of the transaction.

    PHMSA and FRA agree that this commenter's remarks have merit. We
also believe referring the regulated public to the existence of this
new definition in Sec.  171.8 instead of Sec.  172.201(a)(5) will
assist them with correctly applying this requirement. Therefore, PHMSA
will eliminate the phrase ``For the purposes of this section'' from the
first sentence of Sec.  172.201(a)(5), remove the last two sentences of
that section and place them in a new definition for EDI under Sec.
171.8, and add regulatory text to Sec.  172.201(a)(5) to refer the user
to the new location of the EDI definition.
    In the NPRM, PHMSA proposed to require under Sec.
172.201(a)(5)(iii) that a carrier that generates a shipping paper for
tank cars containing residue using information from the previous loaded
movement of a hazard materials packaging must ensure the description of
the material that accompanies the shipment complies with the offerer's
request. The DGAC assumes in all cases the carrier would have to comply
with the offerer's instructions regardless of how the information is
transmitted and recommends PHMSA delete this

provision because it is unnecessary. PHMSA and FRA disagree with the
commenter that in all cases the carrier will comply with the offerer's
instructions when generating a residue shipping paper based on a
previous loaded hazardous materials package. PHMSA and FRA believe,
instead, that the implementation of this provision will make carriers
aware of their responsibilities to properly describe and class a
residue hazardous material in transportation. Therefore, PHMSA is
denying this request.
    In the NPRM, PHMSA proposed to require under Sec.  172.201(a)(5)(v)
that an electronic shipping paper issued for the rail transport of
hazardous materials under Sec.  172.201(a)(5) be retained for the same
amount of time and in the same manner required for other hazardous
materials shipping papers as prescribed in Sec.  172.201(e). The DGAC
requests the removal of the shipping paper retention proposal for EDI
shipping papers under Sec.  172.201(a)(5)(v) because shipping papers
issued under Sec.  172.201 must be retained in conformance with Sec.
172.201(e). The DGAC also notes that Sec.  172.201(e) currently
requires the shipper to retain a copy of the shipping paper from the
time the shipment is offered until at least two years after issuance,
and Sec.  174.24 requires rail carriers to retain the shipping paper
for at least one year. PHMSA and FRA agree with the commenter that
shipping papers issued under Sec.  172.201 are subject to the shipping
paper retention requirements prescribed in Sec.  172.201(e); therefore,
PHMSA will remove Sec.  172.201(a)(5)(v).
    In the NPRM, PHMSA proposed to revise Sec.  172.201(a)(5)(i) to
require that electronic shipping paper information provided under Sec.
172.201(a)(5) must be made available to the shipper and carrier at all
times the material is in transportation, and that the carrier must have
and maintain a printed copy of this information until delivery of the
hazardous material is complete. Several commenters opposed the proposed
requirement in Sec.  172.201(a)(5)(i). The AAR suggested the
requirement be changed to require that the shipping paper information
``be available to the shipper and carrier at all times during
transport'' and a printed copy accompany the shipment until delivery is
complete. The IVOGDA requests that PHMSA permit immediate access to
hazard communication information for all those involved in
transportation, including emergency responders, by providing existing
EDI transmission methods to these individuals and eliminate the
requirement that paper documents be transmitted with these shipments in
keeping with the Paperwork Elimination Act, which allows and
encourages:

the acquisition and use of information technology, including
alternative information technologies that provide for electronic
submission, maintenance, or disclosure of information as a
substitute for paper and for the use and acceptance of electronic
signatures. 44 U.S.C. 3504(a)(1)(B)(vi).

    The IVOGDA interprets the Act as stating electronic signatures
``are required to be compatible with standards that are generally used
in commerce,'' industry, and by State governments. The IVOGDA also
interprets the Act as stating electronic signatures ``may not
inappropriately favoring [sic] one industry or technology'' over
another and questions if the NPRM's application of this provision to
rail transport only complies with the Act. The DGAC and COSTHA also
support permitting the use of EDI in all modes of transport. In
addition, the IVOGDA states the Act provides that electronic records,
signatures, or other forms of electronic authentication ``shall not be
denied legal effect, validity, or enforceability when such records are
in electronic form.'' To comply with the Act, the IVOGDA requests
PHMSA: Remove the word ``rail'' in Sec. Sec.  172.201(a)(5),
172.202(b), 172.204(a), (a)(3), and (d)(3); revise the proposed
language in Sec.  172.205(a)(5)(i) that proposes to require that the
carrier have and maintain a printed copy of the shipping paper ``until
delivery of the hazardous material on the shipping paper is complete;''
to adopt a provision to require the carrier to make a copy of the
shipping document(s) available upon request; and allow those complying
with ICAO Technical Instruction and IMDG Code EDI regulations to
produce these documents upon request. Several commenters note that the
UN Model Regulations, ICAO Technical Instructions, and International
Maritime Organization Dangerous Goods Code, and UN ADR all recognize
the use of EDI-generated shipping papers that are issued and retained
electronically only as an acceptable alternative to paper documents.
IVOGDA also notes the encrypted coding of an EDI shipping paper adds an
additional layer of security that helps to ``conceal the presence of
high value cargoes that might be the target of piracy or hijacking
during transport.'' IVOGDA further notes permitting the use of EDI
shipping papers in an electronic format only promotes environmental
conservation by supporting a paperless operation, complies with the
provisions of the Government Paperwork Elimination Act (44 U.S.C.
3504), and helps companies distribute their newest products rapidly and
maintain inventory throughout the world. Union Pacific states it
maintains its EDI shipping paper electronically in a manner that can be
printed as received or in a format that conforms to the requirements in
the HMR, and recommends the following wording be added to Sec.
172.201(a)(5)(i):

    When the information applicable to the consignment is provided
under this requirement, the information must be available to the
shipper and carrier at all times during transport. When a paper
document is produced, the data must be presented as required by this
subpart.

    In addition, the DGAC notes that DOT-SP 7616 permits these
documents to be retained electronically by the carrier but the NPRM
proposed that a written copy of the shipping paper must accompany the
shipment. The DGAC requests that if electronic storage of the EDI
shipping paper be permitted by the HMR, if the format of the electronic
data is agreed [to] by both parties, and the data can be used to
produce a printed shipping paper document, no further requirement
concerning the format of the computer data for EDI shipping papers is
needed.
    DOT-SP 7616 authorizes a rail freight carrier to accept hazardous
materials shipping paper information by voice communication through the
telephone or through EDI for use in the creation of a physical shipping
paper that accompanies the shipment and that is retained by the shipper
and carrier for one year from the date of shipment. DOT-SP 7616 also
authorizes a variance in the shipping paper certification requirement
for EDI shipping papers that allows for an abbreviated certification
statement or the completion of a field on a form to represent the
completed certification. DOT-SP 7616 does not include an exception that
permits a rail hazardous material shipment to be transported without a
printed copy of the applicable shipping paper. Further, DOT-SP 7616
requires rail shippers of hazardous materials that use EDI shipping
papers to provide the rail staff with a copy of the shipping papers,
which it states can include waybills, train consists, or other similar
documents (see DOT-SP 7616, paragraph 8(d)). PHMSA and FRA are aware of
no adverse consequences or incidents have been reported concerning
hazardous materials shipments using shipping papers generated with
telephonic or EDI transmitted information.
    One purpose of a printed shipping paper for hazardous materials

shipments is to provide emergency responders with timely and accurate
information needed to respond to a possible hazardous materials
release. PHMSA and FRA are aware that emergency responders do not have
devices that allow them to access EDI shipping papers that are
electronically retained. However, we are aware that emergency
responders typically acquire this information from shipping papers
located in the locomotive or from train crew consists. If these sources
are not available, emergency responders call the railroad and request
the train's consist. Emergency responders typically have had timely
access to emergency response information using one of these methods.
Historically, PHMSA and FRA have found delays in retrieving shipping
paper information at the site of a rail hazardous materials incident
can contribute to increased risks associated with the management and
containment of the hazards associated with these materials. Further,
rail incidents often occur in remote locations and/or on difficult
terrain, which may further delay the arrival of emergency responders to
an incident site. A physical copy of a shipping paper at the scene of
an incident helps emergency responders respond quickly and accurately
when trying to mitigate the effects of a hazardous materials release.
As a result, PHMSA and FRA disagree with the position presented by the
IVOGDA that a printed copy of the information on an electronic shipping
paper does not need to accompany a rail hazardous materials shipment,
and PHMSA is denying this request. However, PHMSA will continue to
investigate this issue, and may address it in a future rulemaking.
    Several commenters request the proposed requirements for EDI be
revised to make them harmonious with international regulations for this
activity. Specifically, the IVOGDA, DGAC, and COSTHA request that PHMSA
allow the use of EDI under the HMR to promote the accurate and timely
transmission of these documents and to reduce the difficulties and
delays that can occur in all modes of transport, both international and
domestic, when shipping documents are not harmonious. While it is
always PHMSA's goal to harmonize the HMR whenever safely possible with
international requirements, we did not propose this revision in the
NPRM. Therefore, it is outside the scope of this rulemaking, but we may
consider it in a future rulemaking.
    The IVOGDA also requests PHMSA provide regulations that specify the
transfer container responsibilities from one carrier to another within
the same mode of transport or between modes. In addition, the IVOGDA
notes Section 5.4 of the United Nations Recommendations for the
Transport of Dangerous Goods (UN Recommendations) includes in all its
references to dangerous goods transport documents a provision to allow
information by the use of electronic data processing and EDI
techniques, and that similar provisions are located in Chapter 4 of the
International Civil Aviation Organization (ICAO) Technical Instructions
for the Transport of Dangerous Goods (Technical Instructions), and
Chapter 5.4 of the International Maritime Dangerous Goods Code (IMDG
Code). PHMSA did not propose in the NPRM to specify the transfer
container responsibilities between carriers within the same or
different modes of transport; therefore, it is outside of the scope of
this rulemaking. However, PHMSA may consider this issue in a future
rulemaking.
    Several commenters oppose the requirement proposed in Sec.
172.201(a)(5)(ii) that an EDI shipping paper contain a full or
abbreviated certification. These commenters state the special permit
for these transmissions permitted the name of the principal person,
etc., for the shipment to appear in a field designed to represent the
certification as a method that worked well and no purpose would be
served by requiring a printed version of the certification. A few
commenters request that PHMSA add a provision to Sec.  172.204 to
clarify that an authorized signature in a designated field on the form
is sufficient to denote a completed shipper's certification. The DGAC
also questions the abbreviated representation of a shipper's
certification may not be appropriate for some hazardous materials
packages, such as portable tanks that are interlined to other transport
modes. This commenter requests the abbreviated certification discussed
earlier be limited to rail transport only.
    One of the basic HMR requirements for a shipping paper is that the
person taking responsibility for the shipment agrees by signing the
certification statement that the shipment has been prepared properly
for transportation. PHMSA is concerned designating a blank signature
block on a shipping paper as representing the shipper's certification
without the shipper's certification statement, and deeming the shipping
paper prepared in this manner as certified when the block is filled in
with the name of the shipper or their representative, may not make
shipper fully aware of the responsibilities they are agreeing to under
this requirement. Omitting this statement may also make it unclear to
the emergency responder or enforcement official who is taking
responsibility for the compliance of the shipment with the HMR.
However, PHMSA and FRA are also aware that under the special permit
shippers were permitted to use this method with no adverse consequences
or incidents reported. Therefore, we agree with the position of the
commenters and will revise the regulatory text to require that only for
EDI shipping papers the shipper's certification may be represented by
completing a specific field for this purpose in the manner prescribed
in DOT-SP 7616.
    In Sec.  172.201(a)(5) of the NPRM, PHMSA and FRA also proposed to
add language to regulate the transmission of shipping papers by
facsimile. The DGAC and Union Pacific request that since the provision
for transporting these documents electronically by facsimile is a
common occurrence and was not provided for in the special permit, this
provision should be removed from the amended requirements. PHMSA and
FRA disagree with the commenters' request to eliminate the provision to
allow shipping papers to be transmitted by facsimile into the HMR
because this was not specifically mentioned in the special permit being
incorporated. As the commenters state, sending shipping papers by
facsimile is a common practice that is currently not provided for under
the HMR, but this type of transaction does qualify as another form of
electronic transmission of a shipping paper. PHMSA and FRA believe
establishing minimal HMR requirements for shipping paper facsimile
transmissions based on current industry practices will have little
effect on the regulated public while clarifying that transmission of
shipping papers by this method is a regulated activity. In addition,
this requirement safeguards this transaction by providing modest
guidance how these materials are to be processed. Therefore, PHMSA is
incorporating provisions under Sec. Sec.  172.201(a)(5). PHMSA is also
incorporating provisions to transmit shipping papers by facsimile under
Sec. Sec.  172.202, 172.204 and 172.604 of the HMR.

Section 172.202

    Section 172.202 specifies requirements for the description of
hazardous materials on shipping papers. In the NPRM, we proposed to add
a third sentence to paragraph (b) to specify that shipping descriptions
for

hazardous materials offered or intended for transportation by rail that
contain all of the information required in subpart C and that are
formatted and ordered in accordance with recognized electronic data
interchange standards and, to the extent possible, in the order and
manner required by this subpart are deemed to be in compliance with
paragraph (b) of this section. Commenters did not provide remarks on
this proposed requirement. Therefore, PHMSA is adopting this language
as proposed.

Section 172.204

    Section 172.204 specifies requirements for a hazardous material
shipper's certification on a shipping paper. In the NPRM, PHMSA
proposed to revise Sec.  172.204(a), (a)(3), and (d)(3) to incorporate
provisions currently authorized under DOT-SP 7616, and to permit the
shipper's certification for rail hazardous materials shipments to be
transmitted verbally by telephone or electronically by computer, as
requested by Petition No. P-14333.
    As discussed earlier in this final rule under section-by-section
heading ``Section 171.8,'' PHMSA and FRA proposed in the NPRM to
require the verbal acknowledgement of the receipt of shipping paper
information by telephone to be recorded on the shipping document or in
a separate record, such as a train consist. Union Pacific requests
proposed Sec.  172.204(a): (1) Be revised to add the words
telephonically or electronically to clarify the method in which these
documents will be received, and (2) change ``train consist'' to
``waybill'' in proposed Sec.  172.204(a)(3)(i) because the waybill is
the singular record of a hazardous material shipment for the duration
of the shipment and the shipper's certification is never placed on the
train list. Some other commenters also request that PHMSA replace the
wording ``train consist'' prescribed in Sec.  172.204(a)(3)(i) with
``waybill'' because waybills, and not train consists, are the actual
shipping document. PHMSA and FRA acknowledge that verbal communication
of a shipper's certification can be received either by telephone or
through a computer using software designed to allow it to operate like
a telephone. PHMSA also agrees with commenters that adding wording that
explains how the shipping paper certification can be received either
verbally by telephone or electronically may provide clarity for users
of these regulations, and promote safety. PHMSA and FRA agree with
these commenters that this final rule should not require the shipper's
certification statement on a train consist, but also believe the
definition of a ``train consist'' is useful. Therefore, as stated
earlier in this preamble, PHMSA will replace the word ``train consist''
with ``waybill'' in Sec.  172.204(a)(3)(i), and will also move the
proposed definition of ``train consist'' from Sec.  171.8 to Sec.
180.503 of the HMR.
    In Sec.  172.204(a)(3)(i) of the NPRM, PHMSA proposed to
incorporate regulatory text that would permit shipping paper
information to be received via oral communication over the telephone.
Several commenters support inclusion of regulations that would permit
shipping paper information to be communicated by telephone or EDI. The
Association of American Railroads (AAR) states transmitting shipping
paper information by telephone is necessary when electronic systems do
not work, although it acknowledges its members do not routinely rely on
this method. Based on this experience, the AAR states verbal
transmission of this information is a necessary option to provide rail
shippers with information that will support efficient transportation.
The AAR also states it is not aware ``of instances where safety has
been undermined through the verbal transmission of shipping papers.''
Some commenters object to this proposal. These commenters state they
believe errors could occur when recording shipping paper information
orally through use of the telephone, the information provided by
telephone cannot be verified, errors that could occur during this
recording process could compromise the integrity of the hazardous
materials information, and these, in turn, could compromise safety.
These commenters also state the verbal transmission method does not
create a sufficient record of the transaction. Others thought
communicating this information by telephone is not necessary. COSTHA
thought, as an alternative to verbal communication of shipping paper
information, this rulemaking action should incorporate EDI transmission
of shipping paper information for all modes of transport.
    PHMSA and FRA are aware that electronic systems for conveying
transport information are used predominantly in the hazardous materials
industry but agree with commenters that there are times when electronic
systems do not work correctly (e.g., a software malfunction or viral
contamination) or do not work at all (e.g., during an electrical outage
or weather emergency). Although these instances may be rare, when they
occur back-up methods must be permitted to ensure safety. While the
method of conveying this information verbally by telephone may create a
greater opportunity for error than a properly working electronic form
of transmission, historically, this method has proven to be effective
because it has occurred without notable incident or error. In fact,
PHMSA and FRA are aware that this method of transmitting shipping paper
information has occurred without appreciable incident for decades.
Therefore, PHMSA is denying the commenters' request to disallow the
verbal transmission of shipping paper information by telephone and will
incorporate these requirements as proposed in the NPRM.
    Union Pacific also requests PHMSA delete proposed Sec.
172.204(a)(3)(ii) and replace it with:

    Electronic certification. When transmitted electronically, by
entering the name of the principal person, partner, officer, or
employee of the offeror or his agent in a specific EDI field defined
for that purpose.

    Union Pacific states completing a field with the appropriate
representative information will allow ``electronic verification that
the shipment is certified,'' and adding abbreviated shipper's
certification boiler language ``does not add value to the EDI message *
* * and does not readily lend itself to verification in EDI
processing.'' This commenter also requests PHMSA change the word
``may'' to ``must'' under proposed Sec.  172.204(d)(3) to clarify that
one of the individuals listed in that paragraph must certify the
shipment. The HMR requires each shipper to sign a shipper's
certification statement to attest that a hazardous materials shipping
paper has been properly prepared in conformance with the HMR.
    PHMSA and FRA agree with the commenter that requiring a field on an
EDI transmitted shipping paper to represent a shipper's certification
statement is more appropriate than requiring abbreviated shipper's
certification language be added to a field on an EDI shipping paper.
PHMSA and FRA also acknowledge that using this method of certification
will harmonize the HMR's EDI requirements with how the shipper's
certification is achieved for EDI shipping papers issued under the UN
Recommendations, ICAO Technical Instructions, and IMDG Code. However,
PHMSA and FRA believe the language in Sec.  172.204(a)(3)(ii) should be
revised to emphasize that by completing the signature field on an EDI
document, the shipper is certifying that the document complies with the
certification requirements prescribed in Sec.  172.204(a). Therefore,
PHMSA will

revise this section to emphasize that signing an EDI shipping paper is,
in effect, also signing the shipper's certification statement.
    The DGAC notes that the list of individuals who may sign the
abbreviated EDI shipper's certification proposed in Sec. Sec.
172.204(a)(3)(ii) and 172.204(d)(3) differs slightly from the list in
existing Sec.  172.204(d)(1) and requests for consistency that the list
in Sec.  172.204(d)(1) be used in the other two sections. PHMSA agrees
with the commenters and, in this final rule, will make the lists in
these three sections consistent.

Section 172.604

    Section 172.604 specifies requirements for an emergency response
telephone number. To address incomplete international phone numbers
PHMSA is encountering on shipping paper documents, in the NPRM, we
proposed to revise the introductory text in paragraph (a) to specify
that, for telephone numbers outside of the U.S., sufficient information
must be provided to complete the call. In its comments, the DGAC notes
that PHMSA did not include a preamble discussion of its proposal to
amend Sec.  172.604(a), and states it would be helpful to further
clarify that for numbers outside of the U.S., the complete number
required is the number needed to compete the call within the U.S. The
DGAC also states that this provision is already indicated in U.S.
Variation 15 of the ICAO Technical Instructions. PHMSA added this
provision to address incomplete international phone numbers it is
encountering on shipping paper documents. PHMSA agrees with the
commenter and will make this revision in this final rule.
    In the NPRM, we also proposed to revise paragraph (a)(3)(ii) of
Sec.  172.604 to specifically require that the emergency response
telephone number must be entered on a shipping paper in the manner
prescribed in paragraph (b) of this section. Commenters did not provide
remarks on this proposed requirement. Therefore, PHMSA is adopting this
language as proposed.

Part 173

Section 173.314

Metering Device
    Section 173.314 specifies the requirements for tank cars and multi-
unit tank car tanks that transport compressed gases. In the NPRM, we
errantly proposed to add Sec.  173.314(e)(2) to permit any hazardous
material to be loaded into a tank car through use of a metering device.
The metering device technology is currently authorized under Special
Permit DOT-SP 9388 for loading only ``UN 1005, Ammonia, anhydrous, 2.2
(non-flammable gas),'' or ammonia solution. Therefore, PHMSA is
correcting the provisions in Sec.  173.314(e)(2) concerning the use of
a metering device for loading tank cars and multi-unit tank cars to
apply to anhydrous ammonia or ammonia solution only.
    PHMSA and FRA also proposed in the NPRM to require under Sec.
173.314(e)(2)(i)(B)(4) that materials loaded into a tank car using a
metering device must be visually inspected for any signs of damage for
accessories inside the loading dome and under Sec.
173.314(e)(2)(i)(D), after sitting loaded and undisturbed for 10
minutes, this same tank car must be given a final check for leaks prior
to closing the dome cover and properly inserting the dome pin. Midland
Rail Services, LLC, (Midland) says the wording ``loading dome'' and
``dome cover'' are not consistent with the terminology used in the rail
and tank car industry. This commenter states the appropriate wording is
``protective housing'' and ``protective housing cover,'' respectively.
This commenter also states the word ``accessories'' refers to devices
listed in Sec.  179.100-13, which are called ``service equipment''
under Sec.  180.509(c)(3)(i), and requests PHMSA revise Sec.
173.314(e)(2)(i)(B)(4) to state ``* * * service equipment inside the
protective housing,'' and Sec.  173.314(e)(2)(i)(D) to state ``* * *
check for leaks must be conducted prior to closing protective housing
cover * * * protective housing cover pin.'' PHMSA and FRA agree with
the commenter. PHMSA will revise these sections, but to accommodate all
the closure devices possible on a tank car, PHMSA is simplifying the
regulatory text in proposed Sec.  173.314(e)(2)(i)(D) to make it more
general. Also, as discussed later in this preamble, PHMSA deleted Sec.
173.314(e)(2)(i)(A) in response to a commenters request. Therefore, in
this final rule Sec.  173.314(e)(2)(i)(B) and (e)(2)(i)(D) are
renumbered Sec.  173.314(e)(2)(i)(A) and (e)(2)(i)(C), respectively.
    In Sec.  173.314(e)(2)(i) of the NPRM, PHMSA and FRA propose to
permit DOT specification tank cars in commerce transportation that
contain anhydrous ammonia liquefied gas or ammonia solution measured by
a metering device when loaded into the tank. AllTranstek objected to
several provisions concerning this proposal that we have discussed in
the following paragraphs.
Personal Protective Equipment
    In the NPRM, PHMSA proposed to require under Sec.
173.314(e)(2)(i)(A) that employees loading and unloading ammonia
liquefied gas or ammonia solution measured with a metering device wear
personal protective equipment (PPE) designed to protect them from the
dangers associated with these materials. The NPRM also proposed that
the PPE used must comply with the Department of Labor's Occupational
Safety and Health Administration, and the state and local laws where
either of these tasks are being performed. AllTranstek requests PHMSA
remove the language requiring PPE for employees performing this
activity, stating that this equipment is regulated by the Department of
Labor's Occupational Safety and Health Administration (OSHA). For
improved safety, PHMSA has historically required the use of PPE
throughout the HMR for those hazardous materials that pose a greater
risk of damage to the employee or environment if released. However,
PHMSA recognizes the authority of OSHA regulations concerning the
management and use of PPE in the workplace and will, therefore, make
this change by deleting Sec.  173.314(e)(2)(i)(A) and renumbering in
consecutive order the remaining paragraphs in Sec.  173.314(e)(2)(i).
Pre-Trip Inspections
    AllTranstek requests PHMSA remove language proposed in Sec.
173.314(e)(2)(i)(B) requiring the undercarriage assembly of the tank to
be inspected because this is a function of qualified and designated
railroad employees and repair shops regulated under the FRA's Freight
Car Safety Standards (49 CFR Part 215) and would require plant
operators to obtain additional training on mechanical functions and
condemning limits of operational railroad stock.
    The FRA agrees with the commenter that Sec.  215.13 is a FRA
requirement that prescribes pre-departure inspections for freight cars
before they are placed in a train and agrees that revising Sec.
173.314(e)(2)(i)(B) to add this ``would require plant operators to
obtain additional training on mechanical functions and condemning
limits of operational stock.'' Section 215.13(c) permits a train crew
member who is not an inspector designated under Sec.  215.11 to conduct
an inspection of ``imminently hazardous conditions'' listed in 49 CFR
Part 215, Appendix D, ``that are likely to cause an accident or
casualty before the train arrives at its destination.'' This section
also states

``these conditions are readily discoverable by a train crew member in
the course of a customary inspection'' of a tank car, a task that a
train crew is normally trained to perform on a tank car after loading
and before it is offered for transportation. Therefore, PHMSA will make
this change by replacing all of proposed Sec.  173.314(e)(2)(i)(B),
which listed undercarriage and several other inspection requirements,
with a more general statement to require that tank cars offered for
transportation must comply with applicable government safety
regulations, and, as discussed earlier in this preamble, renumber this
section as Sec.  173.314(e)(2)(i)(A).
    AllTranstek also requests PHMSA remove proposed language from Sec.
173.314(e)(2)(i)(B) concerning signage, setting brakes and wheel
blocks, leak testing, and inspecting hoses, connections, valves, and
accessories because these items are currently regulated in Sec.
173.31(d) and (g), as part of the steps the HMR requires for examining
a tank car before shipping.
    The HMR require shippers to inspect a tank car prior to offering it
for transportation (see Sec.  173.31(d)) and that the tank car must not
be offered for transportation if a nonconforming condition is
identified unless a one-time approval is obtained (see Sec.  174.50).
The HMR also contains additional requirements for transloading tank
cars under Sec.  174.67. PHMSA has historically referenced Sec.  173.31
in other sections of the HMR to promote safety. However, as stated
earlier in this preamble, we agree with the commenter that the
requirements proposed for Sec.  173.314(e)(2)(i)(B) are not needed
because they are covered under other federal regulations. Therefore,
PHMSA will make this change to the regulatory text where it now appears
in as Sec.  173.314(e)(2)(i)(A).
    In addition, AllTranstek opposes language proposed in Sec.
173.314(e)(2)(i)(C) to record defects and certify inspection and
completion of loading and unloading procedures because offerers cannot
offer defective packages into transportation and operators must follow
written operating procedures under OSHA's process safety management
standards prescribed in 29 CFR 1910.119(f).
    PHMSA and FRA agree that shippers must inspect a tank car prior to
offering it for transportation and that the tank car must not be
offered for transportation if a nonconforming condition is identified
unless a one-time approval is obtained. However, we believe requiring
shippers to record defects and certify inspection and completion of
their loading procedures is appropriate to track defects in their tank
cars so they can identify defect or damage trends and make needed
adjustments to equipment specification or maintenance procedures to
eliminate them. Also, certifying the inspection and loading and
unloading procedures for metered loads is important for determining the
cause of non-accidental releases. Therefore, PHMSA is denying this
request. However, due to the renumbering of the paragraphs discussed
earlier in this preamble, the language that appeared in proposed as
Sec.  173.314(e)(2)(i)(C) now appears in Sec.  173.314(e)(2)(i)(B).
    Because of the increased accuracy and reliability of flow meter
technology in the magnetic gauging device, AllTranstek requests that
PHMSA remove the proposed requirement to measure one out of every 10
tank cars loaded with a magnetic gauging device to verify the load
amount since this is also proposed in the NPRM under Sec.
173.314(e)(2)(i) and (e)(2)(ii). AllTranstek also requests that PHMSA
consider removing recordkeeping language from liquefied gases delivered
through by meter because the HMR does not require this type of
elaborate recordkeeping for any other hazardous material loaded into a
packaging.
    Although PHMSA and FRA agree with the commenter that flow meters
are becoming increasingly accurate, we still believe an alternative
form of measurement is necessary to confirm the safety of this type of
loading operation for anhydrous ammonia or ammonia solution. Further,
the NPRM proposed this requirement in Sec.  173.314(e)(2)(ii) only.
Therefore, PHMSA is denying this request.
Water Capacity Marking
    In the NPRM, PHMSA and FRA proposed to require tank car markings to
be stamped on tank car identification plates instead of the tank car
head in several sections of the HMR provided certain requirements are
met. Midland requests PHMSA revise Sec.  173.314(e)(2)(iii)(H) to state
``Water capacity of tank in pounds'' instead of proposed ``Water
capacity of tank car (pounds)'' for uniformity with industry and 49 CFR
language. Midland also states current Sec.  179.22 and AAR M-1002,
Appendix C, do not require a pressure tank car to be marked and/or
stenciled with the water capacity of the tank in pounds. This commenter
states PHMSA removed stenciling and stamping from the HMR, formally
prescribed in Sec. Sec.  179.100-21(b) and 179.100-20, several years
ago when it replaced outage and filling limits for tank cars based upon
``maximum permitted filling densities,'' formally under Sec.
173.314(c), with ``outage and filling limits'' based on the tank's
volumetric capacity, currently prescribed in Sec. Sec.  173.314(c) and
173.24b(1), and not its water weight capacity. Further, Midland states
the tank identification plate prescribed in paragraph 4.0 of AAR M-
1002, Appendix C, does not require showing the water weight capacity of
a tank car.
    The following five compressed gases are loaded into a tank car
based on allowable filling densities:

UN 1017, Chlorine, 2.3 (poisonous gas), 5.1 (oxidizer), 8
(corrosive)
UN 1053, Hydrogen sulfide, 2.3, 2.1 (flammable gas)
UN 1069, Nitrosyl chloride, 2.3, 8
UN 1079, Sulfur dioxide, 2.3, 8
UN 2191, Sulfuryl fluoride, 2.3

    The other compressed gases are loaded to a filling limit. ``Maximum
permitted filling density'' is a subset of the term ``outage and
filling limits,'' which is prescribed in Sec.  173.24a(d) for non-bulk
packages and in Sec.  173.24b(a) for bulk packages. Further, the HMR
require the stamping or stenciling of a tank car's water capacity in
pounds under Sec. Sec.  179.201-10(a) and 179.400-25(c), and as
criteria for tank car inspections and reports in the ``Record of
Hydrostatic Test Table'' under Sec.  179.500-18(c). PHMSA did not
propose under Sec.  173.314(e)(2)(iii)(H) of the NPRM to replace the
proposed term ``Water capacity of tank car (pounds)'' with ``Water
capacity of tank in pounds,'' but agree with the commenter that the use
of these two terms may be confusing to some HMR users. PHMSA and FRA
also agree with the commenter that the term ``water capacity of tank in
pounds'' is more consistent with AAR M-1002 than a tank car's water
weight capacity proposed in Sec.  173.314(e)(2)(iii)(H). Therefore, for
clarity and consistency PHMSA is revising the term ``Water capacity of
tank car in pounds'' to read ``Water capacity of tank in pounds'' in
Sec.  173.314(e)(2)(iii)(H). We may review making this change in
additional sections in a future rulemaking. In addition, PHMSA
recognizes that each facility may have a different specific gravity at
a reference temperature. Therefore, PHMSA has revised Sec.
173.314(e)(2)(iii)(J) to remove ``(@ 105 [deg]F-0.5796 and @ 115
[deg]F-0.5706)'' and replace it with the phrase ``at the reference
temperature.'' PHMSA further recognizes that the HMR ensures
compatibility with international transportation standards by expressing
most units of measure in International System or metric units (see
Sec.  171.10);

therefore, PHMSA has revised Sec.  173.314(e)(2)(iii) to include metric
units of measure.

Part 174

Section 174.63

    Section 174.63 specifies requirements for the portable tanks, IM
portable tanks, intermediate bulk containers (IBCs), Large packagings,
cargo tanks, and multi-unit tank car tanks. In the NPRM, we proposed to
discontinue the AAR-600 requirement in the HMR for portable tanks
because PHMSA adopted standards for portable tanks in container-on-
flat-car (COFC) or trailer-on-flat-car (TOFC) service under other
sections of the HMR. The Gold Tank Inspection Service, Inc., petitioned
PHMSA (P-1567) to discontinue the AAR-600 program because, in addition
to the new HMR standards, the HMR no longer permits portable tanks to
be built to the AAR 600 standard unless they are DOT Specification 60
and International Standard 1496-3 portable tanks. Further, after
January 1, 2010 (see Sec.  171.14(d); Docket No. RSPA-2000-7702 (HM-
215D), 66 FR 33316; and amended, 67 FR 15736), the HMR requires all
portable tanks to meet or exceed AAR 600 requirements, and the AAR 600
does not cover portable tank requirements. Commenters did not provide
remarks on this proposed requirement. However, PHMSA realizes in
attempting to eliminate the AAR 600 standard, it erroneously proposed
to remove the entire requirement under Sec.  174.63(c)(2). Our
intention was to state that a tank and flatcar in COFC or TOFC service
must conform to the applicable requirements of the HMR concerning their
specification to ensure their acceptable performance. Therefore, in
this final rule, PHMSA is revising this language to reflect its
original intent.

Part 179

Section 179.13

    Section 179.13 specifies tank car capacity and gross weight
limitations. In the NPRM, PHMSA proposed to revise Sec.  179.13(b) to
correct an error that occurred in a final rule published on May 14,
2010 (75 FR 27205), issued under Docket No. PHMSA-2009-0289 (HM-233A).
In that rule, PHMSA erroneously omitted a provision to require FRA
approval of rail tank cars with a gross weight on rail that exceeds
263,000 pounds but not 286,000 pounds before they may be used to
transport poisonous-by-inhalation (PIH) hazardous materials. PHMSA
proposed to revise this section to add the FRA approval statement. We
received several commenters expressing support for this correction,
without any negative comments. Therefore, we are adopting this change
as proposed in this NPRM.
    In addition, in its comments Dow states that it operates under DOT-
SP 12858 and DOT-SP 14173 which allow the operation of tank cars
carrying Ethylene oxide at a gross rail load of 286,000 pounds. Dow
requests that only DOT-SP 14173 be incorporated into the HMR. As an
alternative, Dow suggests that DOT-SP 12858 not be incorporated into
the HMR because Dow has made over 8,000 shipments with these tank cars
with no safety incidents. However, DOT-SP 12858 permits the use of tank
cars constructed to the AAR S-259 standard which does not align with
the proposed requirements. If this cannot be achieved, Dow requests
that Sec.  179.13(b) be revised to read as follows:
    Tank cars containing poisonous-by-inhalation material meeting
the applicable authorized tank car specifications listed in Sec.
173.244(a)(2) or (a)(3), or Sec.  173.314(c) or (d) may have a gross
weight on rail of up to 286,000 pounds upon approval by the
Associate Administrator for Railroad Safety, FRA. Tank cars
exceeding 263,000 pounds and up to 286,000 pounds gross weight on
rail must meet the requirements of the Association of American
Railroads, Manual of Standards and Recommended Practices, Section C-
III, Car Construction Fundamentals and Details, S-259 or S-286 (IBR;
see Sec.  171.7 of this subchapter). Any increase in weight above
263,000 pounds may not be used to increase the quantity of the
contents of the tank car.

    DOT-SP 12858 permits ``UN 1040, Ethylene oxide, 2.3 (poisonous
gas), 2.1 (flammable gas)'' to be transported in DOT Specification
105J400W tank cars constructed of TC-128 Gr B (norm) steel. The tank
car must also comply with specific ``Certificate of Construction''
numbers, AAR Standard S-259, and other betterment requirements. DOT-SP
14173 permits ethylene oxide or ethylene oxide with nitrogen up to a
total pressure of 1 megapascal (MPa) (10 bar) at 50 [deg]C to be
transported in a DOT Specification 105J400W tank car that has a tank
test pressure of 400 psig, gross weight on rail load of 286,000 pounds,
conforms with the AAR Standard S-286 and Manual C-III, Section 2.5, and
additional betterment requirements, some of which are identical to
those prescribed in DOT-SP 12858. PHMSA notes that although DOT-SP
12858 was incorporated into the HMR effective October 1, 2010, in a
final rule issued under Docket No. HM-233A, PHMSA erroneously omitted
its provision that required FRA approval for railcars transporting PIH
materials. PHMSA stated this intent in the preamble of both the Docket
No. HM-233A NPRM and final rule. Therefore, to correct this error,
Sec.  179.13(b) is revised to include this requirement. The Docket No.
HM-233A final rule also stated:

    These amendments also apply to any special permits this agency
issues during the development of this final rule whose provisions
are identical in every respect to those described in the rulemakings
issued under this docket.

    Because DOT-SP 14173 requires tank cars to be constructed to the
AAR S-286 standard, which is currently required under the HMR, it
contains provisions that are not identical to those in DOT-SP 12858, so
the above-referenced statement from that final rule does not apply.
Further, DOT-SP 14173 was not proposed for incorporation into the HMR
in the NPRM issued under Docket No. HM-216B. As a result, the public
has not been given an opportunity to comment on its incorporation as
required under the Administrative Procedure Act. Therefore, it cannot
be incorporated into the HMR through them at this time. However, PHMSA
may review incorporating DOT-SP 14173 into the HMR in a future
rulemaking.

Section 179.24

    New Sec.  179.24 was proposed in the NPRM to specify stamping
requirements for identification plates for rail cars. In the NPRM, we
specifically proposed to permit certain DOT and AAR specification tank
cars with stainless steel identification plates to have their
specification and other required information stamped on the
identification plate instead of the tank car head. The stainless steel
identification plates are required for newly constructed tank cars
built on or after July 25, 2012. The FRA notes that all the tank car
builders are parties to DOT-SP 12905; therefore the work prescribed
under Sec.  179.24 is already being performed and the 30-day effective
date also prescribed in this requirement is probably not necessary. We
did not receive any comments on this proposal. Therefore, it is being
adopted as proposed in the NPRM.

Section 179.100-20

    Section 179.100-20 specifies certification stamping requirements
for pressure tank cars. In the NPRM, PHMSA proposed to require that
newly constructed DOT tanks cars display specification and other
required information stamped on stainless steel identification plates
instead of into the metal of the tank heads, as formerly prescribed in
Sec.  179.24(a). This section specifies tank car capacity and gross
weight limitations. We did not receive

any comments on this proposal. Therefore, it is being adopted as
proposed in the NPRM.
    Midland requests that the requirement to show the water capacity of
the tank in pounds as part of a tank car's specification marking be
removed. This requirement to mark and/or stencil a tank car's water
capacity in pounds is currently prescribed in Sec. Sec.  179.201-10(a)
and 179.400-25(c). Midland states that several years ago PHMSA removed
stenciling and stamping from the HMR, formally prescribed in Sec. Sec.
179.100-21(b) and 179.100-20, when it replaced outage and filling
limits for tank cars based upon ``maximum permitted filling
densities,'' formally under Sec.  173.314(c), with ``outage and filling
limits'' based on the tank's volumetric capacity, currently prescribed
in Sec. Sec.  173.314(c) and 173.24b(1), and not its water weight
capacity. Further, Midland states the tank identification plate
prescribed in paragraph 4.0 of AAR M-1002, Appendix C, does not require
showing the water weight capacity of a tank car. PHMSA did not propose
this change in the NPRM; therefore, it is outside the scope of this
rulemaking. For this reason, PHMSA is denying this commenter's request.
However, we may consider this issue in a future rulemaking.

Section 179.200-24

    Section 179.200-24 specifies certification stamping requirements
for non-pressure tank cars. In the NPRM, PHMSA proposed to require that
newly constructed non-pressure DOT tanks cars display specification and
other required information stamped on stainless steel identification
plates instead of into the metal of the tank heads, as formerly
prescribed in Sec.  179.24(a). We did not receive any comments on this
proposal. Therefore, it is being adopted as proposed in the NPRM.

Section 179.201-10

    Section 179.201-10 specifies water capacity marking requirements
for non-pressure tank cars. In the NPRM, PHMSA proposed to permit
authorized DOT non-pressure tank cars with stainless steel
identification plates to have the water capacity of the tank in pounds
stamped on the identification plate instead of into the metal head of
the tank as prescribed in Sec.  179.24(a) after December 31, 2011. We
did not receive any comments on this proposal. However, we did revise
the effective date of this provision to July 25, 2012. Therefore, it is
being adopted with this date change but, otherwise, as proposed in the
NPRM.

Section 179.220-25

    Section 179.220-25 specifies stamping requirements for non-pressure
tank car tanks consisting of an inner container supported with an outer
shell (Class DOT 115). In the NPRM, PHMSA proposed to add a new
paragraph (b) to require stainless steel identification plates on newly
constructed Class DOT 115 non-pressure tank cars. The plates must be
stamped with the specification and other required information instead
of into the metal heads of the tank as prescribed in Sec.  179.24(a).
We did not receive any comments on this proposal. Therefore, it is
being adopted as proposed in the NPRM.

Section 179.300-13

    Section 179.300-13 specifies venting, loading and unloading valve
requirements for multi-unit tank car tanks designed to be removed from
car structure for filling and emptying (Classes DOT-106A and 110AW). In
the NPRM, PHMSA proposed to permit straight threads to be used in the
outlet ports of DOT Specification 110A multi-unit tank cars instead of
taper threads. The requirement also stipulates that stainless steel
safety wire used for hex plugs in threaded boss ports must not fail
during its intended use. We did not receive any comments on this
proposal. Therefore, it is being adopted as proposed in the NPRM.

Part 180

Section 180.501

    Section 180.501 specifies additional requirements concerning the
qualification and maintenance of tank cars that apply to persons who
manufacture, fabricate, mark, maintain, repair, inspect, or service
tank cars to ensure their continued qualification. In the NPRM, PHMSA
proposed to make existing paragraph 180.501(b) new paragraph (c), and
add new paragraphs (b) and (d) to this section to clarify,
respectively, the minimally acceptable framework each owner's tank car
qualification program must have, and to specify that documents
concerning the tank car's qualification must be made available upon
request to FRA staff or an authorized representative of the U.S.
Department of Transportation. The FRA is aware that parties to DOT-SP
12095, which includes a large majority of the tank car owners, have
either developed written procedures or purchased procedures from
another company, such as a builder or management company like
Alltranstek. The minority of tank car owners may experience an expense
developing these procedures. However, they also have the option of
approving the procedures of the tank car facility performing the
inspections and/or repairs. As a result, their costs should be
negligible. We did not receive any comments on this proposal.
Therefore, it is being adopted as proposed in the NPRM.

Section 180.503

    Section 180.503 specifies that the definitions in Sec. Sec.  171.8
and 179.2 apply to the tank car qualification and maintenance
requirements prescribed in 49 CFR Part 180, Subpart F. In the NPRM,
PHMSA proposed to add or modify into the HMR definitions prescribed in
DOT-SP 12095 concerning tank car qualification and maintenance. The
NPRM proposed to add definitions for the following terms: (1) Lining/
coating, (2) Corrosive to the tank or service equipment, (3) Defects,
(4) Interior heating system, (5) Modification, (6) Objectively
reasonable and articulable belief, (7) Qualification, (8) Railworthy/
Railworthiness, (9) Reinforced tank shell butt weld, (10) Reinforcing
plate, (11) Reliability, (12) Safety system, (13) Service equipment
owner, and (14) Tank car owner. The NPRM also proposed to modify the
definitions of these terms with minor edits or rewording: (1) Design
level of reliability and safety, (2) Maintenance, (3) Reactive to the
tank or service equipment, (4) Representation, and (5) Service
equipment. The term ``reinforcing plate'' is revised to read
``reinforcing pad'' to be consistent with the terminology in Sec. Sec.
179.100-16 and 179.200-19. The NPRM did not add the definitions of
these terms because they already exist in Sec.  171.8: (1) Bottom
shell, and (2) Top shell.
    We received comments on these seven definitions: Corrosive to the
tank or service equipment, defects, qualification, safety system,
maintenance, reactive to the tank or service equipment, and
representation. We also received recommendations to add two definitions
that were not proposed in the NPRM, ``inspection and test'' and ``tank
car,'' and discuss each definition and our responses in the following
paragraphs. In addition, we reversed the wording for the definition for
``Lining/coating'' to ``Coating/lining'' in the final rule to clarify
that this term does not refer to linings placed on the external surface
of a tank car. Further, any definitions proposed in the NPRM that did
not receive comments are being adopted as proposed.

A. Corrosive to the Tank or Service Equipment

    In the NPRM, PHMSA proposed to add the definition ``corrosive to
the tank

and service equipment'' to mean ``a material identified in proposed 49
CFR Part 180, Appendix D, of the NPRM, or a material when in contact
with the inner shell of the tank or service equipment may have a severe
corrosion rate on steel or aluminum based on criteria in Sec.
173.137(c)(2).'' Proposed Appendix D to Part 180 lists materials that
the FRA determined under certain conditions can corrode carbon steel
tanks or service equipment at a rate that may reduce the design level
of reliability and safety of the tank or equipment to an unsafe level
before its next qualification. The HMR permits the corrosion rate on
steel or aluminum prescribed in Sec.  173.137(c)(2) to be used as one
of the methods for determining whether or not a material meets the
hazard class definition of a Packing Group (PG) III corrosive material.
    A few commenters support including the list of materials corrosive
to the tank or service equipment the NPRM proposed in Appendix D of 49
CFR Part 180 with some modifications. Several commenters recommend the
49 CFR Part 180, Appendix D list be modified to remove materials that
are not corrosive to the tank according to a corrosion rate of 2.5
milli-inch per year (mpy) (0.0025 inch per year) to harmonize it with
the description of corrosion to the tank prescribed in Section C, Part
III, of the AAR's M-1002, Appendix L. They specifically recommend
removing ``methyl methacrylate monomer, stabilized,'' from the list
because it does not meet this AAR definition. ARL, GATX, and UTLX
suggest PHMSA and FRA review the National Association of Corrosion
Engineers (NACE) documentation on this subject prior to issuing this
rulemaking. Specifically, GATX Corporation states the NACE Corrosion
Data Survey establishes that ``methyl methacrylate has a corrosion rate
on carbon steel of less than 2 [mpy],'' but the AAR's M-1002, Appendix
L, does not list the material as corrosive because its corrosion rate
on steel does not exceed the AAR's 2.5 mpy standard. Therefore, GATX
recommends it be removed from the 49 CFR Part 180, Appendix D list.
    FRA added the list in Appendix D to TCQ-1 to address significant
damage the agency's staff found occurring in tank cars that contained
materials that do not meet the HMR definition for a corrosive material.
However, we agree with the commenters that it would be inaccurate to
leave methyl methacrylate monomer, stabilized, on this list because at
50 [deg]F and 100 percent concentration this material has a corrosion
rate on steel of less than 2 mpy. Therefore, we have removed methyl
methacrylate monomer, stabilized, from the 49 CFR Part 180, Appendix D
list. We emphasize that the list in Appendix D is not exhaustive and
any material identified as non-corrosive under the HMR that causes
corrosive damage to a tank car or its service equipment is included
under this requirement. Further, we may amend this list in the future
to include additional materials we determine behave in a similar
manner.
    Section 173.137(c)(2) defines Packing Group III corrosive materials
as materials that do ``not cause full thickness destruction of intact
skin tissue but exhibit a corrosion on either steel or aluminum
surfaces exceeding 6.25 mm (0.25 inch) a year at a test temperature of
55 [deg]C (130 [deg]F) when tested on both materials.'' It also states
``the corrosion may be determined in accordance with the UN Manual of
Tests and Criteria (IBR, see Sec.  171.7 of this subchapter) or other
equivalent test methods.'' Several commenters object to using the
corrosion rate on steel of 6.25mm (0.25 inch) a year to define the
corrosive rate of a material on tank car or its service equipment
saying that, although it is part of the HMR's criteria prescribed in
Sec.  173.137(c)(2) for classifying Class 8 (corrosive) materials, it
has little to do with describing the effect of these materials on tank
cars and their appurtenances. Many commenters expressed the belief that
the definition was too strict and unworkable under a tank car corrosion
control and prevention program or introduced terms too subjective to be
quantified. For example, the Union Tank Car Company (UTC) suggests
PHMSA remove the word ``severe'' from Sec.  180.503 to remove the
subjectivity this word introduces to the definition. UTC also states
the proposed definition does not harmonize with AAR M-1002, Section C-
III, Appendix L, and recommends the final rule specifically reference
this AAR appendix. Dow states the rate proposed in the NPRM is twice
that of the AAR MSRP, Section C-III, Appendix L, paragraph 8.3, which
is 2.5 mpy. Dow also requests the definition be revised to a corrosion
rate of 5 mpy or 0.005 inches per year, and states this rate would
allow the opportunity for two qualifications to inspect an item before
the tank car reaches the minimum allowable limit for local corrosion.
The CIT Group and GATX Corporation request that the rate be changed to
0.0125 inches per year to allow for a minimum steel thickness of 0.3125
inches in a 10-year cycle. GATX states the proposed definition suggests
a corrosion rate on steel of 0.25 inches per year, which it believes is
severe. AllTranstek states the corrosive rate in the proposed
definition ``assumes that a typical tank will experience metal loss
over a 40-year period before reaching the minimum shell thickness.''
ARL and CIT Group state the proposed definition is so lenient it would
exclude the majority of commodities listed in proposed 49 CFR Part 180,
Appendix D. Most commenters recommend PHMSA modify the definition
``corrosive to the tank or service equipment'' to exclude materials not
corrosive to the tank according to a corrosion rate of 2.5 mpy (0.0025
inch per year) to harmonize this definition with the description of
corrosion to the tank prescribed in Section C, Part III, of the AAR's
M-1002, Appendix L.
    PHMSA and FRA agree with commenters that proposing to define a
material that is ``corrosive to the tank or service equipment'' based
on the Class 8 definition prescribed in Sec.  173.137(c)(2) of the HMR
may not effectively capture the effects of corrosion on a tank car and
its service equipment in use over time. We also agree that harmonizing
this definition with the corrosive rate on steel in Appendix L of M-
1002 creates a definition based on industry experience with this type
of damage to tank cars that will help prevent corrosion to the tank and
service equipment, and reduce the occurrence of non-accidental releases
and malfunctioning valves. FRA states this rate would also not exceed
the allowable thickness reduction after 10 years for the bottom shell
of a pressure tank. Further, PHMSA and FRA agree that removing
subjective terms, such as the word ``severe,'' to the extent possible
promotes clarity in regulations, which improves safety. Therefore, in
this final rule, we are revising the definition for ``corrosive to the
tank or service equipment'' to remove the word ``severe'' and establish
a corrosion rate on steel of 2.5 mpy.

B. Defects

    In the NPRM, PHMSA proposed to add the definition ``defect'' to
mean ``abrasions;'' corrosion; cracks; dents; flaws in welds;
distortions; erosion; missing, damaged, leaking or loose components and
fasteners; and other conditions that lower the design level of
reliability. The NPRM also repeats the full definition in Sec.
180.509(b).
    AllTranstek, CIT Group, and UTLX request the definition for
``defect'' be placed only in Sec.  180.503 to represent what is meant
by the term everywhere else it appears in 49 CFR Part 180,

Subpart F, instead of repeating the full definition in each place the
term is used, such as in Sec.  180.509(b). We agree with the commenters
that this revision promotes clarity, and will make this change.

C. Inspection and Test

    In the NPRM, PHMSA and FRA used the phrase ``inspections and
tests'' as part of the qualification definition by stating these were
required through careful and critical examination to accomplish
qualification. AllTranstek and the CIT Group ask PHMSA to revise the
final rule by adding a new definition for ``inspection and test'' to
clarify what this wording means. AllTranstek and the CIT Group
specifically request that this definition include wording that means an
activity intended to: (1) Assess the current condition of equipment
against the applicable tank car specification (i.e., acceptance
criteria), (2) test the operation or functionality of the equipment,
and (3) determine if maintenance is required to restore the equipment
to its specification.
    FRA interprets an ``inspection'' to be a visual examination to
search for physical indications of deterioration or failure, and a
``test'' to be a physical demonstration that the tank or features
function as designed. A tank car's successful completion of its
inspection and test means it should remain in compliance throughout the
predetermined qualification interval. PHMSA and FRA consider these
qualification tasks. PHMSA and FRA also agree with commenters that
adding regulatory language in this final rule that explains what is
meant by inspection and test, although we believe the word ``test'' is
self-explanatory. Therefore, PHMSA will add a definition to Sec.
180.509 to clarify what is meant by ``inspection and test.'' PHMSA
considers ordinary repairs to be ``routine'' maintenance and
extraordinary repairs to be unexpected repairs needed to address a tank
car's failure that occurs between inspections, such as repairs due to
incidents, or repairs that will typically cause a tank car to be
removed from service. PHMSA and FRA agree with commenters that use of
the words ``ordinary'' and ``extraordinary'' are subjective and, thus,
confusing. Therefore, PHMSA will replace the word ``ordinary'' with
``routine'' and remove the word ``extraordinary'' from the definition
for maintenance in Sec.  180.503.

D. Maintenance

    In the NPRM, PHMSA and FRA proposed to add a definition for
``maintenance'' under Sec.  180.503. AllTranstek states the rail
industry uses the words ``maintenance'' and ``qualification''
interchangeably, and the way these terms are defined in the NPRM causes
confusion. AllTranstek states PHMSA needs to revise these definitions
to clarify when an owner or tank car facility is responsible for
determining if a tank or component of a tank car is qualified for
continued use. GATX states the definition should include any repair,
from the ordinary to the extraordinary. This commenter also noted the
proposed rule does not make clear what ordinary repairs are under the
HMR. ARL and UTLX recommend that the definition for maintenance be
clarified to ensure users of these requirements have a clear
understanding of what is meant by maintenance, inspection and test, and
qualification. UTLX requests the ``maintenance'' definition exclude
activities that are performed by operators and shippers at facilities
that are not certified or registered by the AAR. Several commenters
also request PHMSA revise the definition for ``maintenance'' to state
it is performed after an inspection and test and includes maintenance
tasks that return a tank car to its current specification, such as
lubricating a bolt, replacing a gasket or valve, or tightening
fastener, replacing a cracked weld, and replacing metal loss. These
commenters state maintenance does not include modifications that would
alter the tank car's specification or maintenance activities (e.g.,
replacing a manway gasket, lubricating fasteners, tool tightening
fasteners) that are performed by operators at facilities not registered
or certified by the AAR. GATX Corporation questions what ``ordinary''
repairs in the maintenance definition means, and suggests that there is
no need to exclude extraordinary repairs from this definition. GATX
Corporation also requests the definition be revised to read as follows
``Maintenance means necessary and proper inspection, upkeep, or
preservation, including ordinary repairs.''
    PHMSA and FRA agree with commenters that maintenance can include
tasks such as lubricating a bolt, replacing a gasket or valve, or
tightening a fastener. PHMSA and FRA also agree with commenters that
maintenance tasks include significant repairs to return a tank car to
its specification, such as repairing a cracked weld and replacing a
tank car's metal loss, or damage resulting from activities involving a
tank car's inspection and test. However, PHMSA and FRA disagree with
commenters that the words ``maintenance'' and ``qualification'' can be
used interchangeably. In this rule, PHMSA proposed a general definition
of maintenance to cover its broad applicability to the elements
prescribed in Sec.  180.509. Under this section, maintenance can be
classified as scheduled (periodic inspection) or unscheduled (non-
periodic inspection); it can also include activities that support
qualification and those that do not. Maintenance activities that
support qualification are repairs made to the tank car features that
are specifically inspected and tested in conformance with the
requirements under Sec.  180.509. A tank car owner is required to
establish inspection intervals, based on experience and data analysis,
throughout which the car will remain qualified to transport hazardous
materials. It is important to note that unscheduled maintenance
activities that support qualification should be an indicator to the
tank car owner that its inspection (qualification) interval may not be
adequate and should be reevaluated. We interpret ``qualification'' as
prescribed inspections and tests that must be performed to verify that
a tank car is in satisfactory condition for continued use and, thus,
meets the requirements of the HMR. As stated earlier in this preamble,
PHMSA and FRA interpret ``ordinary'' repairs as ``routine'' repairs and
activities that are needed to maintain an in-operation tank car to its
specification after completion of its last satisfactory qualification
and before its next qualification is due. We also interpret
``extraordinary'' repairs as unexpected repairs that occur between
inspections and are needed to address the failure of a tank car or its
appurtenances covered under 49 CFR Part 180, Subpart F. Therefore,
PHMSA will add a definition for ``inspection and test'' to Sec.
180.503, and language to Sec.  180.509 to clarify what is meant by this
wording. Further, PHMSA and FRA note the commenters who recommended
that PHMSA revise the definition of maintenance to apply to repairs
performed at AAR registered or certified facilities only did not
provide information on the costs and benefits associated with this
proposal. The FRA believes eliminating work performed at facilities
that are not registered or certified by the AAR may introduce costs and
operational delays that are prohibitive, and that insufficient
information exists to make this determination at this time. Therefore,
PHMSA is denying this request from the commenters, but may

consider it in a future rulemaking if sufficient cost and benefit
information becomes available. Depending on the work required, the FRA
notes most work performed on DOT specification tank cars and tank cars
transporting regulated commodities must be done by registered or
certified facilities. Also, the HMR cover work that must be performed
by registered or certified facilities. As a result, the FRA has
determined distinguishing between work performed at registered or
certified facilities and those facilities that do not have either one
of these designations would result in little, if any, cost
implications.

E. Qualification

    In the NPRM, PHMSA proposed to add the definition ``qualification''
as ``relevant to a tank'' to mean ``the car conforms to the
specification to which it was built or modified, to the requirements of
this Subpart, to the requirements of the AAR Tank Car Manual * * * and
to the owner's acceptance criteria. Qualification is accomplished by
careful and critical examination using inspections and tests based on a
written program that verifies conformance, followed by a written
representation of that conformance. A tank car that passes the
appropriate tests for its specification, has a signed test report, is
marked to denote this passage, and is considered qualified for
hazardous materials transportation under'' the HMR. For ease of use,
Note 1 of the table of required tank car tests and inspections that
accompanies this definition was revised to include the reference to
Sec.  180.509 where paragraph (f)(2) is found. This qualification
definition varies from the one prescribed in TCQ-1 in that it is
reorganized and revised to state in the first sentence what the term
means, in the second sentence how to achieve it, and in the last
sentence what is meant by written representation of successful test.
    ARL and UTLX state additions to the qualification definition in the
NPRM changed its scope to incorporate the entire AAR Manual, and
request that it be revised to reference the AAR M-1002, Section C-III,
Appendix D. These commenters state incorporating the entire manual into
the qualification definition will not allow tank car owners needed
flexibility except through the issuance of another special permit.
These commenters also state because the reference to the December 2000
version of the AAR's M-1002 does not include additional tank car
qualification requirements in the AAR's latest Appendix D, this would
allow obsolete requirements to be incorporated into this rulemaking's
revisions to 49 CFR Part 180. In addition, GATX Corporation states the
section references in Sec.  171.7 for the AAR's M-1002 include
requirements that do not have anything to do with tank cars or their
qualification, such as requirements for intermediate bulk and ton
containers as well as tank car manufacturing. GATX Corporation requests
that this definition include only those M-1002 requirements that apply
to tank car qualification by inserting the phrase ``applicable to tank
car qualification'' in the definition where it refers to AAR's M-1002.
AllTranstek states qualification is merely the final process of
verifying and representing in writing that the scheduled or non-
scheduled work was performed properly, and recommends the qualification
definition be revised as follows:

    Qualification means the act or process of verifying, validating,
and certifying in writing that an item conforms to the design
specification. Qualification is something you do after an inspection
and test, after maintenance, or after a modification (i.e., an
alteration or conversion) that changes the design specification. [*
* *]

    AllTranstek also states the HMR require persons who perform
inspection and test, maintenance, or modification functions on a tank
or component subject to the HMR to prepare a report and sign it;
thereby, certifying the tank or component is ``qualified for continued
use'' and conforms to its design specification, or a new design
specification given proper approvals. See Sec.  180.1.
    PHMSA and FRA agree incorporating the entire AAR M-1002 into the
qualification definition without limiting it to only those requirements
applicable to tank car qualification is confusing and alters the scope
of this definition as it was used in TCQ-1. The TCQ-1 definition of
qualification proposed in the NPRM includes (1) inspection and test,
(2) verifying that the results of the inspection and test meet the
owner's acceptance criteria, and (3) representation that the tank car
meets the criteria. The revised definition AllTranstek recommended
separates verification and representation from the inspection and test.
FRA considers inspection and testing (e.g., careful and critical
examination) to be an integral part of the definition of qualification
in DOT-SP 12095. Also, PHMSA and FRA agree with the commenters that
adding a definition for inspection and test to the HMR in this final
rule would help clarify its intent that the qualification definition be
used as it was prescribed in DOT-SP 12095. Therefore, PHMSA is revising
the definition for ``qualification'' in Sec.  180.503 to clarify that
only those provisions in M-1002 concerning tank cars apply, and is
adding a definition for ``inspection and test'' in Sec.  180.503 to
clarify its meaning in the qualification definition.
    In the NPRM, the definition for qualification under Sec.  180.503
states in its second sentence that ``Qualification is accomplished by
careful and critical examination using inspections and tests based on a
written program that verifies conformance, followed by a written
representation of that conformance.'' The third sentence of this
definition states ``A tank car that passes the appropriate tests for
its specification, has a signed test report, is marked to denote this
passage, and is considered qualified for hazardous materials
transportation under this subchapter.''
    Some commenters request PHMSA revise the definition of the word
``qualification'' to state it involves verifying in writing that the
work performed on a tank as well as a tank car component was done
properly and that this work complies with the requirements for its
specification after this work is completed. Some commenters also
request that the qualification definition be revised to require that in
addition to passing the appropriate tests a tank car must pass
appropriate inspections, as well. For example, AllTranstek states
scheduled testing (e.g., every 10 years) and non-scheduled maintenance
and repair activities both require an inspection.
    As stated earlier in this preamble, PHMSA and FRA agree with
commenters that tank car qualification definition, as this word was
previously used under TCQ-1, requires that the tank car and its service
equipment be inspected and tested to verify that the work performed
meets the owner's acceptance criteria. The definition also states the
work must have ``documentation of that conformance'' and a ``signed
test report.'' Because the qualification definition already satisfies
these commenters' requests, no further revisions of this type are
needed to the definition. Therefore, PHMSA is denying this request.
    AllTranstek requests PHMSA remove the table in the
``qualification'' definition in Sec.  180.503, or move the leakage
pressure test on this table to the ``service equipment'' definition in
Sec.  180.509(k), since a leakage pressure test is required to be
performed after service equipment is applied to the tank. Leakage
pressure tests reveal tank car leaks where valves are connected and
also leaks on welds around and between pads. Leakage pressure tests

can also be performed and passed independent of qualification. PHMSA
and FRA agree with commenter that a leakage pressure test must be
performed after service equipment is applied to a tank car (see Sec.
180.509(j)). Therefore, PHMSA and FRA agree that the table under the
qualification definition is no longer needed and will be removed.

F. Reactive to the Tank or Service Equipment

    In the NPRM, PHMSA proposed to add a definition for ``reactive to
the tank or service equipment'' under Sec.  180.503. Some commenters
request PHMSA remove the definition ``Reactive to the tank or service
equipment'' from Sec.  180.503, and the wording ``or reactive'' from
Sec.  180.509(f)(2)(ii)(A) so that materials that react with the tank
to produce heat, gases, or pressure but are not corrosive to the tank's
base metal will not place an unnecessary burden on tank car owners and
operators to frequently inspect tank car thickness.
    FRA understands the commenters' concerns about an owner being
responsible for protecting the tank against adverse conditions not
related to the preservation of tank shell thickness. However, FRA
disagrees with the commenters that owner should not be held
responsible. Both DOT-SP 12095 and the changes proposed in the NPRM for
Sec.  180.509 appropriately hold the coating/lining owners responsible
for the performance of their coatings and/or linings. Similarly, the
tank car owners must remain responsible for the overall reliability and
safety of their tank cars. Tank car owners must assert control over the
materials transported in their tank cars through lease agreements. FRA
has learned too many shippers defer to a product purity (PP)
designation for their coating/lining if a commodity is not listed in
DOT-SP 12095's Appendix D table. Tank car owners must require that
their lessees demonstrate that both the internal coating/lining and the
designation and subsequent inspection intervals and methods used are
appropriate. Therefore, FRA believes the requirement proposed in the
NPRM for Sec.  180.509(f)(2)(iii)(A) is reasonable unless it can be
demonstrated that the reaction of the material with the tank that
produces heat, gas, or pressure, does not affect in any way the
mechanical properties of the steel or cause changes in appearance in
exposed areas of the tank or its service equipment that could be
identified during a visual inspection. If these conditions are met, the
owner could then request an alternative inspection procedure under
Sec.  180.509(l). Therefore, PHMSA is denying the commenters' request.

H. Representation

    In the NPRM, PHMSA and FRA propose to reword the definition for
``representation'' in Sec.  108.503. ARL states the definition for
``representation'' in the NPRM does not agree with the proposed
regulatory text for Sec. Sec.  180.511 and 180.517(b) in that it
doesn't recognize retaining documents electronically. This commenter
recommends PHMSA revise the proposed definition of representation to
recognize electronic document retention to eliminate confusion.
    PHMSA and FRA disagree that requirements concerning electronic
retention of data need to be repeated in the ``representation''
definition concerning the representation of a tank car's qualification.
This definition establishes that a tank car is qualified and railworthy
through documentation in writing or marking, thereby, explaining what
``qualification'' means and not the documents required for it, which
are in other HMR sections. However, PHMSA and FRA acknowledge that
referencing the applicable sections in Sec. Sec.  180.511 and 180.517
would assist the user with applying these requirements. Therefore, for
clarity, PHMSA is adding the appropriate references for these sections
to the definition of representation in Sec.  180.503.

I. Safety System

    In the NPRM, we proposed to add a definition for ``Safety system''
under Sec.  180.503. ARL requests for clarification that PHMSA replace
the wording ``the HMR'' in the NPRM's proposed definition for ``Safety
system'' with the wording ``this subchapter.'' PHMSA and FRA agree with
the commenter that this wording may clarify the full scope of the
applicability of this definition, and will make this editorial change.
    Under Sec.  173.24 of the HMR, paragraphs (b)(2) and (b)(3)
prohibit a package used for the shipment of hazardous materials to be
made, filled, and closed so that under normal transportation conditions
there will be no identifiable release hazardous materials and the
effectiveness of the package will not be substantially reduced.
Further, the NPRM proposed to incorporate Appendix A of TCQ-1, which
lists materials that are capable, under certain conditions, of
corroding a tank car or its service equipment. The language that
precedes the lists in the appendix explains that the list is not all-
encompassing and reminds owners and operators that they have a duty to
ensure that no in-service tank will deteriorate below the specified
minimum thickness requirements prescribed in DOT-SP 12095. TCQ-1 does
not include a definition for materials that are reactive to a tank.
Since the issuance of TCQ-1, FRA has become aware of incidents
involving chemicals reacting with tank cars and their components
through the use of inadequate or defective tank car coatings and/or
linings. Some of these reactions are corrosive but others include
mixtures of gases or vapors that could significantly reduce the
effectiveness of a tank car. Examples include:
     Hydrolysis resulting in the formation of dilute acid;
     Preferential corrosion of a carbon steel tank in the
presence of stainless steel components (e.g., if an internal coating of
a carbon steel tank has a small breach and the contents of the tank
equipped with a stainless stee siphon pipe form a conductive liquid,
the tank will experience concentrated, aggressie corrosion at the
location of the breach; and
     Generation of excessive pressure or explosive, flammable,
toxic, asphyxiating vapors when the material in the tank car is exposed
to the tank and/or its components, heat, or moisture.
    FRA is aware of incidents where a chemical was placed in a tank car
with an incompatible or defective lining allowing the chemical to come
in contact with the steel of the tank and react. In one instance, the
pressure generated from the reaction within the tank was sufficient to
cause the pressure relief device to become unseated from the tank car.
No one was injured, but the tank car was severely damaged and had to be
removed permanently from service. The FRA determined in each of these
scenarios the tank car lining owners believed the lining or internal
coating used in an in-service tank car was there to ensure product
purity when it was actually needed to protect the tank. Also, FRA
learned some tank car lining owners assume no coating/lining
inspections are required for tank cars that contain products not
included on the TCQ-1 Appendix A list. Both assumptions are incorrect.
A coating or lining owner must understand and prevent conditions that
can cause adverse reactions to comply with the general packaging
requirements for all hazardous materials packagings prescribed in Sec.
173.24(b). Under Sec.  173.24(b), a package used for the shipment of
hazardous materials must be designed, constructed, maintained, filled,
its contents so limited, and

closed, so that under conditions that normally occur in transportation:
(1) There will be no identifiable release of hazardous materials to the
environment; (2) the effectiveness of the packaging will not be
substantially reduced; and (3) there will be no mixture of gases or
vapors in the package which could through any credible spontaneous
increase of heat or pressure, significantly reduce the effectiveness of
the packaging. If adverse reactions can be prevented by installing a
lining or internal coating, the coating or lining must be maintained
and/or inspected as required in Subpart F of 49 CFR Part 180. In
addition, a coating or lining applied with the primary purpose of
protecting the product is subject to periodic inspections and test
requirements. PHMSA and FRA proposed in the NPRM to add a new
definition for ``reactive to the tank and service equipment'' and
modify related regulatory text in Sec. Sec.  180.503 and 180.509 to
address these safety concerns. Therefore, PHMSA is denying these
commenters' requests.
    GATX Corporation states that the shipper and not the tank car owner
should be responsible for ``protecting the tank against other adverse
conditions not related to preservation of tank shell thickness, such as
reactivity that results in pressure build up, harmful byproducts,
etc.''
    PHMSA and FRA agree with this commenter that shippers should be
responsible for ensuring tank car lining integrity and appropriateness
as well as the tank shell's thickness. Shippers are often the tank car
lessees, and they often apply or have applied tank car coatings and/or
linings to mitigate the specific risks of transporting their material
in a tank car. On the other hand, lessor tank car owners may not know
what materials are loaded in their tanks such that they are unable to
ensure the integrity or appropriateness of a tank car's coating and/or
lining. In addition, FRA and PHMSA believe shippers of materials in
tank cars have the most knowledge about the risks of the materials
about the risks of the materials they ship and the types of lining
needed. FRA and PHMSA also believe it is appropriate that they be
responsible for visually inspecting coatings and linings and
determining their compatibility with the load being shipped. However, a
tank car owner is still responsible for its tank car and must establish
the conditions under which interior coatings and lining can be applied
or removed as well as the materials that may be in a tank car, even if
the owner is not the coating or lining owner. Therefore, PHMSA is
denying this request.

J. Tank Car

    In the NPRM, PHMSA and FRA proposed to incorporate the requirements
for tank cars in TCQ-1 with modifications under the HMR. AllTranstek
requests the term ``tank car'' be changed to ``tank and components
subject to this subchapter'' throughout the regulatory text proposed
for 49 CFR Part 180. This commenter states this wording is consistent
with the scope of Sec. Sec.  179.1(a), 179.2(a)(11), and 180.501 in
that it will clarify that trucks, wheels, axles, airbrake equipment,
draft systems, and safety appliances of a tank car are subject to the
FRA's regulations prescribed in 49 CFR Parts 215, 231, and 232, but not
the HMR.
    PHMSA and the FRA agree that certain components of a tank car are
solely subject to FRA regulations, but requirements concerning the safe
design, use, and testing of a tank car and its components are also
prescribed in the HMR. In addition, although the HMR contains several
references to tank cars, neither ``Tank car'' or ``tank car tank'' are
specifically defined in the HMR or DOT-SP 12095. ``Tank and components
subject to this subchapter'' is a phrase that is also not used or
defined in the HMR. Further, FRA and PHMSA believe this phrase in
misleading in that the systems of a tank car depend on each for the
safe operation of the entire tank car and should not be examined or
managed individually in a manner that relieves the shipper or carrier
of specific individual requirements, such as relief from a one-time
movement or subjective assessments of conditions normally deemed to be
unsafe in transportation such as determining only damage or cracks of a
specific size are subject to the regulations. PHMSA and FRA agree with
the commenters that adding a definition for ``tank car tank'' would
provide clarity and promote consistency when complying with these
regulations. PHMSA and FRA recognize that this definition was not
proposed in the NPRM, and may be subject to possible revision in a
future rulemaking, but believe its addition will promote the consistent
understanding of this wording in the HMR and, thereby, improve safety.
Therefore, PHMSA is accepting this commenter's request.

Section 180.507

    Section 180.507 specifies that each DOT specification tank car used
to transport hazardous materials must meet the requirements of 49 CFR
Part 180, Subpart F or its applicable specification requirements. In
the NPRM, PHMSA proposed to revise the first sentence in (b)(2) of
Sec.  180.507 to require the owner or operator of a tank car authorized
to transport a cryogenic liquid that conforms with a special permit or
exemption issued before October 1, 1984 remove the special permit or
exemption number and re-mark the tank car with the appropriate Class
DOT-113 specification followed by the applicable special permit number.
We did not receive any comments on this proposal. However, after this
provision was issued the FRA determined the need for this section no
longer exists because most of the tank cars subject to this paragraph
have been modified, that one special permit of this type may exist, and
that the tank cars authorized under that special permit have already
been marked with the current DOT-SP number. Therefore, PHMSA is
removing Sec.  180.507(b).

Section 180.509

    Section 180.509 specifies requirements that each tank car facility
shall use to inspect and test the specification of tank cars. In the
NPRM, PHMSA proposed to add requirements under Sec.  180.509(b) to
require the owner of a tank car coating or lining to perform an
appropriate inspection and test according to the type of defect and
maintenance or repair performed if the tank car shows evidence of
abrasion, corrosion, cracks, dents, distortions, defects in welds, or
any other condition that would make the tank car unsafe in
transportation or if the tank car was involved in an accident and shows
evidence of damage that may adversely affect its capability to retain
its contents or otherwise remain railworthy. The conditions and
frequencies of inspections and tests are based on the tank car owner's
or coating or lining owner's knowledge of the tank car and/or coating
or lining. The procedures and intervals proposed in the NPRM and
prescribed in this final rule are intended to prevent failure between
inspections and minimize the liability of shipping hazardous materials.
    ARL and GATX request that PHMSA change the title in the NPRM for
Sec.  180.509(b) from ``Conditions requiring inspection and test of
tank cars'' to ``Conditions requiring qualification of tank cars''
because it is inconsistent with the use of the word ``qualification''
in the titles of Sec.  180.509 (Requirements for qualification of
specification tank cars) and Sec.  180.509(c) (Frequency of
qualification). ARL and UTLX also request PHMSA change the title ``Tank
and Shell Thickness Qualification Frequencies'' for Figure A under

Sec.  180.509(f)(2)(iii)(B) to ``Tank Shell or Head Thickness
Qualification Frequencies'' because this section has been updated in
the proposed rulemaking to include tank car heads. PHMSA and FRA agree
with the commenters that the changes to these titles clarify for the
user what is covered in this paragraph and table. PHMSA will make these
changes.
    In the NPRM, PHMSA proposed to require in 180.509(d)(2) that tank
cars be visually inspected when a lining, coating, head protection,
insulation, or thermal protection is partially or totally removed.
PHMSA and FRA also proposed under Sec.  180.509(e)(4) to permit direct,
remote, or enhanced visual inspection. UTLX requests PHMSA revise Sec.
180.509(e)(4)(v) to list visual testing as ``VT'' and remote visual
inspection as ``RVI'' to agree with AAR M-1002, Section C, Part III,
Appendix T, which defines these terms separately. PHMSA and FRA agree
with this commenter's suggestion that this change is consistent with
AAR M-1002 and will make the change in this final rule.
    With regard to a tank car coating or lining service history under
Sec.  180.509(i)(2), the FRA notes the owner must define an inspection
interval. If coating or lining inspection has not been performed in
that interval, the coating or lining owner has committed a violation.
Under these new requirements, this owner must also define the
acceptance (or rejection) criteria for the coating or lining. If the
inspection result indicates its condition did not meet the minimum
acceptance criteria, the coating or lining owner has committed a
violation. Further, the FRA wants the following information collected
and available during inspections concerning tank car coatings and
linings: (1) Manufacturer recommendations, (2) previous inspection
reports, (3) repair records, (4) service history (in the form of the
number of trips), and (5) in-service inspections. The intent of the
coating/lining inspection requirement is for the coating/lining owner
to analyze inspection and test results with respect to the specific
lading(s) the tank car is transporting. For example, if a shipper has
fleet of rubber-lined cars and has transported three different
commodities in the cars, the shipper needs to evaluate the inspection
and test results relative to a specific commodity assuming the tank car
is in dedicated service. Stated another way, if a tank car is used for
hydrochloric acid service, the shipper needs to consider the
performance of the lining to that service rather than aggregating the
test results with results from linings in other services.

Section 180.511

    Section 180.511 specifies what results are acceptable to qualify
tank car inspections and tests. In the NPRM, PHMSA proposed: (1) To
revise the introductory text of Sec.  180.511 to require the
representation of a qualified tank car's inspections and tests to be
marked on the tank in conformance with Sec.  180.515, (2) to revise
Sec.  180.511(d) to include a requirement that the safety system
inspection must also show no indication of a defect that may reduce the
reliability of a tank car before its next inspection and test, (3) to
revise Sec.  180.511(g) to require a hydrostatic test for the inner
tank of a DOT Class 115 specification tank car, and (4) to add Sec.
180.511(h) to establish acceptable results for inspection and test
requirements for service equipment.
    We did not receive any comments on these proposals. Therefore, they
are being adopted as proposed in the NPRM. However, the FRA notes that
there are approximately 370 DOT Class 115 specification tank cars in
existence, based on 2010 numbers, and this is a very small percentage
of the entire tank car fleet. Further, the FRA states these tank cars
are hydrostatically tested in lieu of the structural integrity test,
and there is little cost difference between these tests. The FRA also
states we cannot know all the acceptance criteria currently used to
inspect and test service equipment, so the costs associated with these
tasks are difficult to quantify, but the FRA believes those facilities
that were pressure testing the valve rather than ``disassembling and
inspecting'' may experience a cost increase of $100.00 to $200.00,
which may be considerable, to perform the latter type of inspection. In
addition, the FRA states a valve rebuild, depending on its condition,
could also increase costs along with the rate of valve replacement.

Section 180.513

    Section 180.513 specifies the requirements a tank car facility must
comply with to perform repairs, alternations, conversions, and
modifications to a tank car. In the NPRM, PHMSA proposed to revise
paragraph (a), revise paragraph (b) and renumber it paragraph (c), and
add new paragraphs (b) and (d) to require that: (1) In addition to
having to comply with the AAR's Specifications for Tank Cars, a tank
car facility making repairs, alterations, conversions, or modifications
to a tank car must comply with the tank car owner's requirements; (2)
must obtain the permission of the equipment owner before performing
work that would affect the alteration, conversion, repair, or
qualification of the owner's equipment; and (3) after the work is
performed, the tank's service equipment must successfully pass the leak
test prescribed in Sec.  180.509(j).
    We did not receive any comments on this proposal. Therefore, it is
being adopted as proposed in the NPRM. The FRA notes the time needed to
perform the tasks prescribed in the new requirements and their costs
may increase a little initially but should result in tank cars being
sent to approved facilities over time. Historically, the FRA has found
work performed on tank cars at approved facilities has resulted in
improvements in their safe performance. Also, the FRA notes a tank car
and its service equipment must successfully pass the leak test
prescribed in Sec.  180.509(j) prior to the release of a tank car from
a repair facility.

Section 180.515

    Section 180.515 specifies the marking requirements for tank cars
that pass their inspections and tests with acceptable results. In the
NPRM, PHMSA proposed to require that tank car marking requirements in
Sec.  180.515(a) be revised to establish that dates displayed on a
consolidated stencil take precedence over dates that are modified and
not stenciled, pursuant to interval adjustments for service equipment,
linings, and granted alternative inspection intervals. The NPRM also
proposed to revise Sec.  180.515(b) to specifically list converted DOT
105, 109, 112, 114, and 120 specification tank cars, instead of
``pressure converted'' tank cars, as being required to have new
specification and conversion date markings. We also proposed to revise
Sec.  180.515(c) to require that the ``installation date'' of a
reclosing pressure relief device on a tank car must be the test date
the device is qualified, instead of ``pressure tested,'' which must be
within six months from the date it was installed and protected from
deterioration. The FRA notes tank car owners must now ensure the
stencils on their cars are accurate to avoid civil penalties resulting
from the discovery of violations during inspections; however, this
provision should result in no additional costs. We did not receive any
comments on this proposal. Therefore, it is being adopted as proposed
in the NPRM.

Section 180.517

    Section 180.517 specifies the reporting and record retention
requirements of certified specification tank car tanks. In the NPRM,
PHMSA proposed to revise Sec.  180.517(a) to require the builder's
signature on a tank car's certificate of construction and marking of
the tank car with the tank's specification as representation that all
the appropriate inspections and tests were performed successfully and
the tank is qualified for use. PHMSA also proposed in the NPRM to
revise Sec.  180.517(b) to require that the written report of a tank
car's qualification inspections and tests must be provided in a common
readable format to FRA upon request, and must include the tank car
reporting mark and number, specification, name of the inspector, and
the unique code (station stencil) identifying the facility. The FRA's
inspection authority currently affords its staff access to this
information. As a result, the regulations prescribed for this section
should result in no additional costs. We did not receive any comments
on this proposal. Therefore, it is being adopted as proposed in the
NPRM.

Appendix D to Part 180

    PHMSA proposed to add a new 49 CFR Part 180, Appendix D, to include
materials the FRA has determined may, under certain conditions, corrode
carbon steel tanks or service equipment at a rate that may reduce their
reliability. The provisions concerning Appendix D of Part 180 were
discussed earlier in this preamble under the heading Section 180.503
for the definition of ``Corrosive to the tank or service equipment.''
We stated some commenters request PHMSA revise the list to exclude
materials that do not meet the AAR's description of materials that are
corrosive to the tank in Section C, Part III, Appendix L, of the AAR's
M-1002. The AAR describes these materials as having a corrosion rate of
2.5 mpy or more. We agreed with the commenters to make this change but
emphasized that the list in Appendix D is not exhaustive, and includes
any material that can cause corrosive damage to a tank car or its
service equipment or that otherwise reduces the reliability and safety
of their design.
Sufficient Time To Remove Obsolete Special Permit Markings on Tank Cars
    In its comments, Dow requests, on behalf of the Rohm & Haas
Company, that PHMSA provide ``sufficient extra time to obliterate
special permit number stenciling from each rail tank car'' at or before
the tank car's next requalification. Dow states if PHMSA requires DOT-
SP stenciling to be removed at the tank car's shipping location prior
to its next shipment, Dow would incur additional costs of approximately
$30,000 or $70,000 to obliterate each stenciling, as well as
operational constraints to perform this task safely. The issue of
special permit stenciling or marking removal was not discussed in the
NPRM for this rulemaking action. However, effective March 3, 2011,
PHMSA did issue a final rule concerning cargo tanks under Docket No.
PHMSA-2010-0017 (HM-245, 2/1/2011, 76 FR 5483) that added a provision
under Sec.  173.23(h) to authorize any packaging permanently marked
with a special permit number (DOT-SP) that has been incorporated into
the HMR to continue to be marked with that obsolete special permit
number for the life of the packaging, i.e., without removal or
obliteration. Neither the final rule issued under Docket No. HM-245
final rule nor the HMR require non-permanent special permit stencils or
markings to be removed if the special permit is obsolete.
    On January 25, 2011, FRA published a notice in the Federal Register
providing approval of certain tank cars to exceed the gross load on
rail (GRL) limitation of 263,000 pounds without the need for a special
permit (76 FR 4250). FRA also stated in the notice that all markings on
tank cars subject to the GRL special permits that had been incorporated
into the HMR under the final rule PHMSA published on May 14, 2010
(Docket No. PHMSA-2009-0289, 75 FR 27205, 5/4/2010), must be removed or
obliterated by January 25, 2012, or at the tank car's first shopping
event, whichever came first. FRA received several requests after the
publication of that notice to extend the deadline for removing the
special permit markings from tank cars to the date each subject tank
car is required to have its next qualification under 49 CFR Part 180 to
reduce costs and eliminate the need to provide hazmat employees in
locations where this task is normally not performed with the proper
equipment and training to perform the task. On January 27, 2012 (77 FR
4271), FRA agreed with the commenters' requests and issued a notice
entitled ``Special Permit Marking Removal'' in the Federal Register
that extended the deadline for removing the special permit markings
from tank cars to the date each subject tank car is required to have
its next qualification under 49 CFR Part 180. Based on the new Sec.
173.23(h) and recent FRA notice, PHMSA has determined the commenter's
request has already been met and no further action is needed.
Table Summary of the Provisions Adopted Into Part 180 From DOT-SP 12095
    For ease of the reader, the following table summarizes the changes
incorporated into 49 CFR Part 180 from DOT-SP 12095.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                Proposed change to 49 CFR
       Number                      Section No.                           Part 180                         Proposed change from DOT-SP 12095
--------------------------------------------------------------------------------------------------------------------------------------------------------
1..................  180.501................................  Applicability................  Existing paragraph (b) is now paragraph (c), and new
                                                                                paragraph (b) and (d) are added to clarify, respectively,
                                                                                the minimally acceptable framework each owner's tank car
                                                                                qualification program must have, and specifies that
                                                                                documents must be made available upon request to FRA or an
                                                                                authorized representative of the U.S. Department of
                                                                                Transportation.
2..................  180.503 (Definitions)..................  Bottom shell.................  Not added. This definition already exists in Sec.   171.8.
                                                              Coating/lining owner.........  Minor edits. ``Coating'' made first word in definition to
                                                                                clarify that this definition applies to internal tank car
                                                                                coatings and linings only.
                                                              Corrosive to the tank or       Added corrosion rate requirement.