PHMSA received six appeals in response to the new tank car standards that were published in May. Of those appeals, only five were reviewed. One was withdrawn and the others were submitted by DGAC, ACC, AAR, AFPM, Columbia River Treaty Tribes and Northwest Treaty Tribes.
One of the issues discussed in the appeals focuses on concern over the definition of HHFT. DGAC and ACC believe the new definition is entirely too broad and should be adjusted to only include railroad operations and not tank car specifications.
DGAC feels that the shippers and railroads will have no way of knowing if the tank cars they are offering to a carrier will be assembled into a manifest train that will meet the criteria of HHFT, which now has additional requirements to ensure the cars comply with the new standards. DGAC would also like the term and definition of HHFUT (high hazard flammable unit train) to be eliminated because it is unnecessary and was not proposed in the NPRM. In addition, DGAC is also requesting the speed restrictions listed in the final rule only apply to crude oil and ethanol trains because imposing speed restrictions on all flammable liquid trains will create delays in rail operations.
American Chemistry Council (ACC) would like PHMSA to revise the final rule to clarify retrofitting existing tank cars only applies to those carrying ethanol or crude oil and not to those that carry other class 3 flammable liquids. ACC feels that by removing retrofitting requirements on Class 3 flammable liquids other than crude oil and ethanol would reduce the capacity issues facing shops and would also provide greater harmonization with Transport Canada’s analogous retrofit schedule.
American Association of Railroads (AAR) opposes the final rule because it allows shippers to load Class 3 flammable liquids in DOT-111 tank cars that don’t meet the new standards as long as those cars are not placed in an HHFT. This puts unnecessary burden on railroads as they have to continuously analyze each train that is carrying Class 3 flammable liquids in DOT-111 tank cars. AAR is asking PHMSA to ban the use of DOT-111 tank cars from transporting all Class 3 flammable liquid materials.
PHMSA and FRA responded to the appeals stating that they disagree with the statements submitted in the appeals and feel the new rule was issued after careful consideration of comments submitted during the rulemaking process and the risks flammable liquids pose. Both agencies acknowledge that shippers and carriers are going to face new challenges regarding the new regulations but believe that by working together all parties should be able to comply with the final rule. The statement went on to say that both agencies feel that limiting the scope of rulemaking to include only crude oil and ethanol not only fails to align with the intent and applicability of the Hazardous Materials Regulations it is also short-sighted and could potentially lead to inconsistencies and safety concerns later on.
PHMSA has denied the request to remove the definition of HHFUT. The definition, while not expressly proposed in the NPRM, was developed based on the comments received on the NPRM and a careful cost analysis. PHMSA feels that the definition is within the scope of the NPRM proposal.
AAR feels that all tank cars transporting flammable materials should be retrofitted to DOT-117R requirements. Shippers feel that only those cars that transport crude oil or ethanol should be retrofitted. PHMSA feels the final rule is a balance between the two opinions. The rule requires retrofitting all tank cars in crude oil and ethanol service plus the 354 tank cars in PG III service by estimating roughly 10 percent of trains transporting PG III commodities might meet the HHFT definition, and thus, that 10 percent of the cars would require retrofitting.
Read the complete 89 page document: Docket No. PHMSA-2012-0082 (HM-251)