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Class I railroad carriers in this country aren’t used to losing their game of government influence and lobbying. Traditionally, they use the cover fire they get from the American Association of Railroads (AAR) to throw money and influence around Capitol Hill until they can dictate all public policy dealing with our rail industry.

Every time one of our men or women reads a new system bulletin that makes their profession less safe or makes the service provided to customers less dependable and wonders why this change could happen, the answer is usually rooted in carriers’ influence on regulation.

In the past four years, SMART-TD has made progress in turning that tide. The Class I railroad companies and AAR have seen a distinct drop in their win percentage. When they are shot down by the Department of Transportation, they often see “In light of comments put forward by SMART-TD” as the lead-in to the bad news. Here’s another of these rude awakenings.

Carriers try to eliminate hard copies

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) announced in the Federal Register that the AAR and the carriers took yet another loss at the hands of SMART-TD, the AFL-CIO’s Transportation Trades Department (TTD) and common sense.

AAR was attempting to take the CT-168 and all hazmat paperwork out of the locomotive, making the tablets and company computer systems the only line of defense when hazmat is involved in a derailment or other rail emergency.

As they did last June in the National Transportation Safety Board’s hearing on the derailment in East Palestine, Ohio, the industry attempted to sell the idea that their “Ask Rail” cell phone application would make it so local EMS personnel are able to quickly and easily obtain consist information of any train involved in an incident. SMART-TD made your position clear: That is not good enough. Many places where we work are not in WiFi-friendly hotspots of technology!

AAR and the railroads went out of their way to make the argument that the conductor of a train crew was able to use their assigned tablet to upload the consist and hazmat paperwork to emergency workers through Dropbox and other software.

We all know this is a poor excuse for emergency preparedness and is just another attempt to push the idea that technology can easily replace people in our industry.

In light of the announcement from the Department of Transportation and PHMSA, SMART-TD is proud to say that paper copies of hazmat paperwork and the all-important CT-168 will remain onboard locomotive cabs in this country!

PHMSA sides with SMART’s argument

SMART-TD would like to thank PHMSA, and the leadership at the Department of Transportation. Without them valuing common sense and the safety of our crews, AAR could have easily chipped this line of defense away from workers and first responders.

“This might not sound like a big deal, but it absolutely is,” SMART-TD President Jeremy Ferguson said. “The safety of our members and the community often hinges on access to this hazmat paperwork and the professionalism of our people to know how to apply the information. Anyone willing to tell you a tablet and WiFi is adequate to depend on in a high-stakes crisis involving hazmat doesn’t have the public’s best interest or the physical safety of railroaders in mind. Our crews keep the consist information up to date at all times. When a train works a handful of yards in a day, the computer systems often don’t have the most up to date information on what’s in the train until it goes by the next AEI reader. SMART-TD’s members continue to be the most reliable variable in cases of emergency. The Department of Transportation and PHMSA were able to see our value and in this ruling they have ensured we will continue to have the necessary tools to keep ourselves, each other, and our communities as safe as possible.”

The ruling also increases access to the consist and hazmat information beyond the emergency services of just the community the event took place in.

 Jared Cassity, head of SMART-TD’s National Safety Team, put it like this: “When a derailment or other disaster happens in a small town like we saw in East Palestine, Ohio, emergency workers are coming from every direction and multiple other jurisdictions to help out. If these men and women are fighting against the dangerous materials our trains are hauling, they should have access to all the information we can give them to try to keep themselves safe. We can’t expect them to operate in the dark and assume the information will get to them. It’s not hard to imagine scenarios where this information will get to them too late after it’s been given to one town’s fire chief and filtered through the command center and makes it to the front lines.”

Your input helped!

In their announcement, PHMSA cited that their ruling was heavily influenced by public comments. As they described the logic behind their decision, they consistently cited our union along with the AFL-CIO’s TTD.

“We’re thrilled PHMSA and the Department of Transportation ruled on the side of our union and our years of safe practices in this matter,” National Legislative Director Greg Hynes said. “We will stay engaged in the public comment process to make sure our members continue to have their voice heard in all future matters affecting their safety!”

Follow this link to see the full public comment SMART-TD submitted to PHMSA in this matter.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has granted Energy Transport Solutions LLC of Doral, Fla., a special permit that allows for the transport of liquid natural gas (LNG) on a route from Wyalusing, Pa., to Gibbstown, N.J.
U.S. Rep. Peter DeFazio of Oregon and U.S. Rep. Tom Malinowski of New Jersey, both members of the House Committee on Transportation and Infrastructure, responded with disappointment to the PHMSA announcement Dec. 6.
“News of PHMSA’s decision to jump ahead of its notice of proposed rulemaking on moving LNG by rail and grant a special permit to Energy Transport Solutions, LLC to move LNG by rail tank car is deeply disturbing,” DeFazio said. “This reckless move by the Administration puts communities in harm’s way. For months I have been sounding the alarm on this dangerous plan. Not only has PHMSA failed to take the proper steps of testing, analyzing or reviewing this unprecedented plan, it failed to provide Congress and the public the opportunity to consider whether the permit’s operating conditions sufficiently address the potential safety implications — an opportunity that’s required by law. The agency rushed its job, spending a measly six months considering this petition and the nearly 3,000 public comments it received.
“In June, Congress passed my amendment to prohibit DOT from finalizing the LNG by rail rule that President Trump intends to rush through in 13 months. I urge the Senate to work with us to put a stop to these irresponsible actions.”
Malinowski said the agency has ignored safety concerns expressed by multiple groups.
“The movement of LNG by rail tank car presents unique and substantial risks to public safety and the environment. This decision by the Department of Transportation to allow LNG to move in large volumes without adequate safeguards is irresponsible, and yet another example of the Administration putting corporate interests over the safety of the American public,” he said.
The north-to-south route is about 175 miles. It runs from fracking shale wells in northern Pennsylvania to a port in New Jersey and likely will be served by Norfolk Southern, the Philadelphia Inquirer reported. The permit expires in November 2021 and allows for no intermediate stops on the route when the LNG is being transported.
Read an article about the permit from the Philadelphia Inquirer.
Read the special permit issued by PHMSA.

On August 8, SMART Transportation Division submitted comments to the Pipeline and Hazardous Materials Safety Administration (PHMSA) regarding the proposal of transporting liquid natural gas (LNG) by rail.
In our comments, National Legislative Director John Risch recognizes the potential safety hazards associated with the transportation of LNG by rail, but also points out that the Federal Railroad Administration (FRA) has established safety protocols and procedures to transport it safely.
“Recognizing the safety hazards involved and the work FRA safety experts have already done on this issue, we support the transport of LNG by rail provided the conditions imposed by FRA in their November 2, 2015, letter of authority to the Alaska Railroad, and the restrictions contained in the March 3, 2016, letter to the Florida East Coast Railway are imposed,” Risch wrote.
Click here to read our full comments as well as the FRA letters mentioned above.

The U.S. House of Representatives on Monday, June 24, passed an amendment that would block President Donald Trump’s Executive Order in April to the Department of Transportation to fast-track the allowance of liquid natural gas (LNG) to be transported by rail.
“In its never-ending quest to put profit ahead of people, the Trump administration is now trying to bypass long-standing requirements for transportation of LNG by putting it into 100-car trains that roll through densely-populated areas at upwards of 50 miles per hour,” said U.S. Rep. Peter DeFazio (D – Ore.), chair of the House Committee on Transportation and Infrastructure, who introduced the amendment. “This plan is beyond absurd. Should even one tank car get punctured, the results could be devastating. My amendment blocks this brazen attempt by the administration. I urge the Senate to follow suit and stop a massive catastrophe before it’s too late.”
The Pipeline and Hazardous Materials Safety Administration (PHMSA) moved ahead earlier this month with a plan to authorize six trains, of 100 or more rail tank cars, to move LNG for export through densely populated areas. DeFazio’s amendment would block this special permit as well, which currently is open for comment until July 8.
Read more on this story at Freightwaves.com.
Read an earlier story about the executive order.

The Bellingham Herald reports that last week the Department of Transportation’s Pipeline and Hazardous Material Safety Administration (PHMSA) decided to repeal a rule that required electronically controlled pneumatic (ECP) braking systems be installed on all oil trains.
The original rule was intended to increase safety and help prevent the derailment and puncturing of cars. DOT’s original analysis of ECP brakes found that they “can reduce the number of cars in a derailment that puncture and release their contents by almost 20 percent compared to other braking technologies.”
With conventional air brakes, the braking message must go through each car individually before moving on to the next car; this process can take up to two minutes for the brake application to reach the back of a freight train. ECP braking uses electronic controls that applies the brakes to all cars consistently and at the same time, providing more control and shortening the stopping distance, which leads to a lower risk of derailment or coupling breakage.
Washington state Governor Jay Inslee criticized the repeal, saying in a press release that the decision to repeal is a “reckless disregard for the life and property of all who live or work along the rail tracks.”
“I fear the day we witness a destructive or deadly derailment that could have been prevented with readily available technology,” he said.
The PHMSA cited a reduction in benefits to the rail carriers from $254 million in benefits to businesses and $215 to $358 million in savings related to safety when the first analysis of ECP braking was done, down to $131 to $198 million in total benefits, as the reason for their repeal of the rule. PHMSA said the lower estimates stem from a decrease in the amount of oil being transported by rail.
The Association of American Railroad (AAR), an organization representing rail carriers, praised the repeal, while Inslee, environmental groups and unions protest this reduction in safety.
Click here to read the full story from the Bellingham Herald.

These comments are on behalf of the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART).  The SMART Transportation Division, formerly the United Transportation Union, is an organization representing approximately 125,000 transportation employees with active rail members in all operating crafts, including engineers, conductors, trainmen, switchmen and yardmasters.
This is in response to the PHMSA’s request for additional information regarding its current regulations on Electronically Controlled Pneumatic (ECP) braking systems.
As a locomotive train engineer for 30 years who has operated trains with ECP brakes, I can attest that ECP brakes are the greatest safety advancement I have seen in my 40 years in the railroad industry. ECP brakes slow and stop trains up to 70 percent faster than conventional brakes and are the safest, most-advanced train braking system in the world.
The most recent analysis of ECP braking systems has focused almost exclusively on comparing ECP brakes with conventional braking systems during emergency brake applications. The analysis also evaluated conventional brakes with distributed power, which is a small aid to conventional brake systems.  I readily admit that ECP brakes are only slightly better than conventional brake systems during emergency brake applications. But reviewing ECP brakes only as they apply to emergency applications is a mistake because emergency brake applications on freight trains are a rare event. PHMSA needs to consider other very significant safety benefits that ECP brakes provide in the safe movement of trains.
The most recent ECP review was unnecessary and was a response by Congress to demands from the nation’s railroads to repeal the rule. ECP brakes have been studied and analyzed for years, and the jury is in — if we truly want to take rail safety to a higher level, ECP brakes are the means by which to do so.
The latest study focused on one aspect of ECP brakes because in emergency applications ECP brakes are only slightly better than conventional brakes and would not justify the entire costs of their installation. The real failure will be if PHMSA does not look at comprehensive analyses of ECP brakes that have already been done on freight train operations. This can be corrected by reviewing past studies, including FRA’s final report titled ECP Brake System for Freight Service that was produced by Booz Allen Hamilton and released in August 2006.
Conventional train air brake systems are a 140-year-old technology that has evolved to its maximum capabilities. You can add dynamic braking, which has been around since the 1930s, and you can add distributive power, which has been around since the 1990s, to conventional air brakes, and you gain slightly in improved braking. But the only dramatic advancement to improve a freight train’s braking ability and safety is from ECP brakes. As a locomotive engineer, operating a train with ECP brakes is like driving the new top-of-the-line Tesla while operating a freight train with outdated conventional brakes is like driving a 1974 Ford Galaxie 500. The differences are that significant and substantial.
Below are 11 key reasons why ECP brakes are better than conventional air brakes:

  1. ECP brakes maintain a train’s brake pipe pressure 100 percent of the time, conventional brakes do not.The colder the weather, the thinner the air, the more crucial maintaining brake pressure is.
  2. ECP brakes allow for a “graduated” release. An engineer can partially release the train’s brakes without having to fully release them. This is vitally important because once a train’s brakes are released, it takes time to recharge the train’s brake pipe pressure in order for the brakes to work again. The graduated release feature allows an engineer to maintain the speed of his/her train down steep grades with a partial application of the brakes and without fully releasing and reapplying the train’s brakes repeatedly.The graduated release feature all but eliminates the possibility of a runaway train.
  3. When the engineer makes an emergency application of the brakes, every car with ECP brakes applies its brakes 100 percent of the time.This is not always true with conventional brakes.
  4. ECP brakes would have prevented the terrible Lac-Megantic oil train tragedy that killed 47 people and destroyed the town, a factor cited in Transport Canada’s report on the accident.These brakes would have prevented the accident because when air pressure on a car equipped with ECP brakes drops below 50 psi, the car automatically goes into emergency. Therefore, even an improperly secured train will not roll away.
  5. ECP brakes allow the crew to monitor every car in the train in real timeto determine if the brakes are applied or released. Conventional brakes do not.
  6. ECP brakes record retrievable data associated with brake failures.There is no such review for conventional brakes. Trains are inspected every 1,000-1,800 miles, and if the brakes are working during the inspection, the car moves on. If a car has brakes that fail to apply during that inspection, the car is taken to a repair facility. Often, that facility is a heated shop where the car warms up. The brakes are then tested, and if they work at that point, the car is not repaired and instead placed back in the train.
  7. ECP brakes all but eliminate in-train forces because all the cars apply and release at once.Conventional brakes create a multitude of in-train forces, some of which damage couplers, knuckles, draft rigging and merchandise.  These in-train forces also cause break-in-twos and derailments.
  8. ECP brakes cause all cars to brake evenly, which dramatically reduces damage to wheels and brake shoes, saving a great deal of money in maintenance and repair.Conventional brakes do not. The modest cost of installing ECP brakes, approximately $3,000 per car on a new DOT 117 tank car that costs $144,000 to build, and about $60,000 per locomotive, will be more than paid for in the savings in car repairs, let alone reduced train derailments.
  9. ECP brakes can be modified to apply hand brakes to a railcar automatically from the locomotive, allowing the crew to apply a hand brake on every car in the train in seconds.Conventional brakes must be applied by hand, and it can take an hour or more to properly secure a train.
  10. ECP brakes are required by the American Association of Railroads (AAR) for the movement of nuclear waste trains because they are the safest braking system available.
  11. ECP brakes can be modified and will evolve to do everything sophisticated wayside train detectors do nowand will do it in real time, eventually eliminating the need for wayside detectors.

For the safety of rail workers and the residents in surrounding cities and towns that trains run through, it is vital that ECP brakes be phased in on freight trains. We ask that PHMSA retain the final rule so we can gradually and cost effectively evolve our antiquated, outdated freight train braking systems into the best they can be.
In addition, we request that PHMSA hold a public hearing where I can explain in detail the benefits of ECP brakes and answer any questions the agency might have.
Thank you for the opportunity to comment.
John Risch
National Legislative Director
SMART- Transportation Division

On July 10, the House Appropriations Committee released the fiscal year 2018 Transportation, Housing and Urban Development funding bill, which includes funding for the Department of Transportation (DOT), the Department of Housing and Urban Development and other related agencies.
Although the bill will fund many important transportation projects and agencies, including Amtrak, at the same time it eliminates funding for DOT’s TIGER grant program and prohibits any funding for the ongoing California high-speed rail project.

Tiger grant defunded

In effect since 2009, the Transportation Investment Generating Economic Recovery (TIGER) grant program provides funding to improve safety and economic opportunity. It has supported innovative projects including multi-modal and multi-jurisdictional projects and has improved access to reliable, safe and affordable transportation for communities.
Since the program’s inception, the TIGER grant program has provided a combined $5.1 billion to 421 projects in all 50 states and U.S. territories. Demand is high in the TIGER grant program and 2016 saw requests that far exceeded the available funds allotted to the program.
If the House Appropriations bill passes as is, this valuable and much sought after program will be eliminated.

SMART TD reaction to bill

“These levels of funding for Amtrak are significant compared to the White House’s disastrous plan to eliminate long distance trains,” said John Risch, SMART TD national legislative director. “There is still a long ways to go in the process. We will continue to work with the entire House and Senate to strike the awful language regarding California high speed rail and try to get increased funding for both transit and passenger rail.

“In North Dakota, there is a nasty big-truck provision in the bill that would increase allowable truck weights to 129,000 lbs. – that needs to be removed,” Risch continued. “North Dakota’s roads and bridges are already being pounded by oil industry trucks and this terrible idea makes it final that passage road conditions will get far worse.”

Transportation Funding Highlights

Department of Transportation (DOT) – The bill includes $17.8 billion in discretionary appropriations for the Department of Transportation for fiscal year 2018. This is $646 million below the fiscal year 2017 enacted level and $1.5 billion above the President’s request. In total budgetary resources, including offsetting collections, the bill provides $76.7 billion to improve and maintain our nation’s transportation infrastructure.
The bill targets funding to programs and projects that will increase efficiency, safety, reliability and quality of life for the traveling public, and that will help improve commerce and economic growth.

  • Air – Included in the legislation is $16.6 billion in total budgetary resources for the Federal Aviation Administration (FAA) – $153 million above the fiscal year 2017 enacted level and $435 million above the request. This will provide full funding for all air traffic control personnel, including 14,500 air traffic controllers, 7,400 safety inspectors and operational support personnel. The bill also builds on several years of increased funding by providing over $1 billion for the FAA’s Next Generation Air Transportation Systems (NextGen), and funds Contract Towers at $162 million. These investments will help ease future congestion and help reduce delays for travelers in U.S. airspace. In addition, the bill does not include new passenger facility and general aviation fees.
  • Highways – The bill allows $45 billion from the Highway Trust Fund to be spent on the Federal-aid Highways Program, which is $968 million above the fiscal year 2017 level. This funding mirrors the authorized levels and will provide much needed growth and improvements within America’s highway system.
  • Rail – The Federal Railroad Administration (FRA) is funded at $2.2 billion, $360 million over the fiscal year 2017 enacted level and $1.1 billion above the request. The bill provides a total of $1.4 billion for Amtrak, of which $328 million is for the Northeast Corridor grants, and $1.1 billion is to support the national network. The bill also continues to require overtime limits for Amtrak employees to reduce unnecessary costs. Rail safety and research programs are funded at $258.3 million, equal to the fiscal year 2017 enacted level. This will fund inspectors and training, plus maintenance and safety investments to the physical rail infrastructure, to help ensure the safety of passengers and local communities. The bill also provides funding for two authorized grant programs. It funds the Federal-State Partnership for State of Good Repair grants at $500 million, which will address some of the $38 billion backlog on the Northeast Corridor – needs that must be addressed simply to sustain current rail services. In addition, the Consolidated Rail Infrastructure and Safety Improvements Grants are funded at $25 million, a reduction of $43 million from the fiscal year 2017 enacted level. Eligible activities include capital and safety improvements, planning, environmental work and research. The bill prohibits funding for high speed rail in California, the California High Speed Rail Authority, and for FRA to administer a grant agreement with the Authority that contains a tapered match. The bill prohibits the Surface Transportation Board from taking action regarding the construction of high-speed rail in California unless the Board has jurisdiction over the entire project.
  • Transit – The bill provides $11.75 billion in total budgetary resources for the Federal Transit Administration (FTA) – $662 million below the fiscal year 2017 enacted level and $526 million above the request. Transit formula grants total $9.7 billion – consistent with the authorization level – to help local communities build, maintain and ensure the safety of their mass transit systems. Within this amount, $1.75 billion is included for Capital Investment Grants, and $1 billion for “Full Funding Grant Agreement” (FFGA) transit projects. Core capacity projects receive $145 million in the bill, $182 million is included to fund all state and local “Small Starts” projects, and $400 million is included for new projects that provide both public transportation and inner-city passenger rail service. These programs provide competitive grant funding for major transit capital investments – including rapid rail, light rail, bus rapid transit and commuter rail – that are planned and operated by local communities. Bill language limits the federal match for New Starts projects to 50 percent.
  • Maritime – The legislation includes $490.6 million for the Maritime Administration, $31.9 million below the fiscal year 2017 enacted level. This funding level will continue to increase the productivity, efficiency and safety of the nation’s ports and intermodal water and land transportation. The Maritime Security Program is funded at the full authorized level of $300 million.
  • Safety – The legislation contains funding for the various transportation safety programs and agencies within the Department of Transportation. This includes $927 million in total budgetary resources for the National Highway Traffic Safety Administration (NHTSA) – an increase of $15 million over the fiscal year 2017 enacted level – and $758 million is included for the Federal Motor Carrier Safety Administration (FMCSA), $113.6 million above the fiscal year 2017 enacted level.  Also included is $268 million for the Pipeline and Hazardous Materials Safety Administration (PHMSA), an increase of $3.7 million over the fiscal year 2017 enacted level.
  • Grants – The legislation eliminates National Infrastructure Investment grants (also known as TIGER grants), which were funded at $500 million in fiscal year 2017.

Click here to read the full press release from the House Appropriations Committee.

csx locomotiveA week after railroads lost an appeal against the U.S. Department of Transportation’s new brake requirements, CSX Corp. (NYSE: CSX) has reinforced its stance against the new program.

The new brake rules were issued by the DOT in May, and included phasing in tougher tank car standards and new electronically controlled pneumatic braking systems on any trains carrying more than 70 cars of crude oil by 2021. On November 11, the agency’s Pipeline and Hazardous Materials Administration denied appeals against the rules.

Read more from Jacksonville Business Journal.

PHMSAOn May 8, 2015, the Pipeline and Hazardous Materials Safety Administration, in coordination with the Federal Railroad Administration (FRA), published a final rule entitled, “Hazardous Materials: Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains,” which adopted requirements designed to reduce the consequences and, in some instances, reduce the probability of accidents involving trains transporting large quantities of Class 3 flammable liquids.

The Hazardous Materials Regulations provide a person the opportunity to appeal a PHMSA action, including a final rule. PHMSA received six appeals regarding the final rule, one of which was withdrawn.

The five remaining appeals were submitted by the Dangerous Goods Advisory Council (DGAC), American Chemistry Council (ACC), Association of American Railroads (AAR), American Fuel & Petrochemical Manufacturers (AFPM), and jointly the Umatilla, Yakama, Warm Springs, and Nez Perce tribes (Columbia River Treaty Tribes) and the Quinault Indian Nation (Northwest Treaty Tribes).

Dangerous Goods Advisory Council

The DGAC contends that the applicability of the final rule should be limited to the transportation of crude oil and ethanol trains, which, it says, was the stated intention of the rule. DGAC argues that, if the Department wishes to pursue enhanced tank car standards and operational requirements for other Class 3 (flammable liquid) materials, it should do so in a separate rulemaking.

American Chemistry Council

ACC believes that the scope of the final rule will inadvertently affect nearly 40,000 legacy DOT-111 tank cars that transport Class 3 flammable liquids that were not accounted for in the accompanying RIA. ACC states that because a shipper cannot know how a carrier will assemble a train, the possibility that a shipper’s tank car will be placed into an HHFT will force all shippers of Class 3 materials to retrofit or purchase tank cars to meet the DOT-117R or DOT-117 specification. ACC believes that, coupled with a retrofit timeline that does not match the Canadian timeline, the final rule will fail to properly address the risks associated with hazardous materials offered and transported in unit trains.

Association of American Railroads

AAR contests the scope of the final rule because it permits shippers to continue to package Class 3 flammable liquid materials in tank cars that do not meet the new DOT-117 tank car standard. AAR states that PHMSA has created two pools of tank cars, those that meet the heightened standard for HHFTs and those that do not. As a result, AAR asserts, shippers may continue to offer Class 3 flammable liquid materials in DOT-111 tank cars as long as the DOT-111 is not placed in an HHFT. According to AAR, this places an unjustified burden on the railroads to continuously analyze the composition of each train transporting Class 3 flammable liquid materials in DOT-111 tank cars. AAR claims that PHMSA’s argument, that through fleet management the railroads can avoid this issue, is baseless. AAR believes that PHMSA should harmonize with Canada by banning the use of DOT-111 tank cars for transporting any Class 3 flammable liquid materials. By failing to harmonize with Canada in this respect, AAR contends that the U.S. market will become flooded with legacy DOT-111 tank cars, which will further exacerbate the fleet management challenges U.S. railroads will face to construct trains to avoid meeting the definition of an HHFT. To support its appeal, AAR submitted waybill data from its subsidiary Railinc showing numbers of flammable liquid shipments tendered in smaller groups of cars that do not by themselves meet the definition of an HHFT. Data from the first quarter of 2015 illustrate that 37,000 cars of flammable liquids (other than crude oil and ethanol) were tendered in blocks of 20 cars or fewer. During the same period, 37,576 tank cars of other flammable liquids (other than the 25,009 tank cars of crude oil or 39,956 tank cars of ethanol) were tendered in groups of fewer than 35 cars. According to AAR, had the final rule been in effect, a total of 102,541 cars of flammable liquids could have moved in existing DOT-111s. AAR contends that PHMSA should specify a sunset date for discontinuing the use of DOT-111 tank cars for hazardous materials not in an HHFT.

 Summary of PHMSA and FRA response

PHMSA denies the appellants’ (DGAC, ACC, AAR, AFPM, and Treaty Tribes) appeals on Scope of Rulemaking, Tribal Impacts and Consultation, Retrofit Timeline and Tank Car Reporting Requirements, Thermal Protection for Tank Cars, and Advanced Brake Signal Propagation Systems. We conclude we reasonably determined how to apply new regulations and provided the regulatory analysis to support those decisions. While we understand that shippers, carriers, and tank car manufacturers for Class 3 flammable liquids will face new challenges in the wake of these regulations, we maintain that they are capable of complying with the final rule. We also deny DGAC’s appeal to eliminate or provide further guidance for the Sampling and Testing program. The sampling and testing program is reasonable, justified, necessary and clear as written. Additionally, we disagree that a delayed compliance date of March 31, 2016 should be provided for implementation of the requirements in § 173.41 for shippers to implement changes for training and documentation.

With respect to Information Sharing/Notification, PHMSA announced in a May 28, 2015, notice that it would extend the Emergency Order applicable to the topic of Information Sharing/Notification indefinitely, while it considered options for codifying the disclosure requirement permanently. Furthermore, on July 22, 2015, FRA issued a public letter instructing railroads transporting crude oil that they must continue to notify SERCs of the expected movement of Bakken crude oil trains through individual States. While the treaty tribes and other stakeholders will have the opportunity to comment on these future regulatory proposals in the course of that rulemaking proceeding, PHMSA will continue to seek opportunities to reach out to the tribes and consultation from tribal leaders.

Click here to read the full ruling.