[Federal Register Volume 76, Number 18 (Thursday, January 27, 2011)]
[Proposed Rules]
[Pages 4847-4854]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1695]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 173
[Docket No. PHMSA-2009-0303 (HM-213D)]
RIN 2137-AE53
Hazardous Materials: Safety Requirements for External Product
Piping on Cargo Tanks Transporting Flammable Liquids
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: PHMSA is proposing to amend the Hazardous Materials
Regulations to prohibit the transportation of flammable liquids in
unprotected external product piping on DOT specification cargo tank
motor vehicles. If adopted as proposed, these amendments will reduce
fatalities and injuries that result from accidents during
transportation involving the release of flammable liquid from
unprotected external product piping.
DATES: Written comments should be submitted on or before March 28,
2011.
ADDRESSES: You may submit comments identified by the docket number
(PHMSA-2009-0303 (HM-213D) by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: Docket Operations, U.S. Department of
Transportation, West Building, Ground Floor, Room W12-140, Routing
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: To Docket Operations, Room W12-140 on the
ground floor of the West Building, 1200 New Jersey Avenue, SE.,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
Instructions: All submissions must include the agency name and
docket number for this notice at the beginning of the comment. All
comments received will be posted without change to the Federal Docket
Management System (FDMS), including any personal information.
Docket: For access to the dockets to read background documents or
comments received, go to http://www.regulations.gov or DOT's Docket
Operations Office (see ADDRESSES).
Privacy Act: Anyone is able to search the electronic form of any
written communications and comments received into any of our dockets by
the name of the individual submitting the document (or signing the
document, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78).
FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, Standards and
Rulemaking Division, Pipeline and Hazardous Materials Safety
Administration, telephone (202) 366-8553; or Leonard Majors,
Engineering and Research Division, Pipeline and Hazardous Materials
Safety Administration, telephone (202) 366-4545.
SUPPLEMENTARY INFORMATION:
[[Page 4848]]
I. Background
A. Statement of the Problem
In final rules published under Docket HM-183, PHMSA's predecessor
agency (Research and Special Programs Administration--RSPA) amended the
Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to prohibit
the transportation of Division 5.1 (oxidizing), 5.2 (organic
peroxides), 6.1 (toxic), and Class 8 (corrosive to skin only) hazardous
materials in external product piping of a DOT specification cargo tank
motor vehicle (CTMV), unless the vehicle is equipped with bottom damage
protection devices. See 49 CFR 173.33(e), adopted at 54 FR 24982, 25005
(June 12, 1989), and 55 FR 37028, 37049 (Sept. 7, 1990). The external
product piping refers to loading or unloading lines located on the
bottom portion of cargo tanks that are exposed to vehicle collision.
The term ``wetlines'' is commonly used in reference to external product
piping when it contains product, specifically, hazardous material (see
Sec. 171.8 of the HMR) transported as cargo and is used throughout
this notice of proposed rulemaking (NPRM) to describe the practice of
transporting hazardous material in external product piping.
As explained in the June 12, 1989 final rule, the prohibition
against wetlines was not applied to flammable liquids, such as
gasoline, because ``[a]ll motor fuels must be metered for tax
purposes'' and no method existed ``to drain product from the cargo tank
piping back into the loading facility and maintain proper accounting
for tax purposes.'' 54 FR 24937. Metering of motor fuels for tax
purposes continues to date and a method to drain these fuels from cargo
tank loading lines while still maintaining proper accounting has yet to
be developed due to the cost considerations of installation of a
process at loading racks capable of returning the product remaining in
cargo tank loading lines to the loading facility or receiving the
product as waste. In the September 7, 1990 final rule, we reiterated
that the prohibition of wetlines was applicable only to DOT
specification cargo tanks used to transport liquid hazardous materials
and clarified that the prohibition in Sec. 173.33(e) does not apply to
liquid hazardous materials authorized for transportation in non-
specification CTMVs. We also stated that ``we strongly encourage the
petroleum industry to consider the risk it accepts in operating cargo
tank motor vehicles over the highway with hazardous materials retained
in the piping and that the hazardous materials industry consider and
recommend possible alternatives to eliminate this risk in the most
cost-effective manner.'' 55 FR 37030.
Thus, it remains that there is a segment of the CTMV population
that transports flammable liquid material that is not subject to
prohibition of wetlines unless the vehicle is equipped with bottom
damage protection devices. We believe this continues to be an important
safety concern. These CTMVs continue to be involved in motor vehicle
accidents resulting loss of life attributable to wetlines (see Section
II Incident Analysis). Although no catastrophic incident has occurred
in the recent past, PHMSA and the National Transportation Safety Board
(NTSB) contend that incidents similar to the Yonkers, NY incident
described in NTSB Recommendation (H-98-27; discussed in detail below)
is likely to occur in the future. We base our concerns on the
population of CTMVs involved in flammable liquid service, the daily
volume of traffic on our Nation's roadways, and the possibility the
average motor vehicle occupancy will increase as gasoline prices
increase.\1\ Outside of existing conspicuity and outreach initiatives,
there is little that PHMSA can do to prevent a collision between a
motor vehicle and the wetlines of a CTMV. However, PHMSA can implement
additional measures to ensure that DOT specification CTMVs are utilized
and designed in a manner that fully considers the likelihood and
potential consequences of a wetlines incident and the hazards that such
an incident poses to the vehicle driver and traveling public.
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\1\ Federal Highway Administration, Summary of Travel Trends:
2001 National Household Travel Survey. Dec 2004. http://nhts.ornl.gov/2001/pub/STT.pdf.
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B. National Transportation Safety Board Recommendation
The National Transportation Safety Board (NTSB) is an independent
Federal accident investigation agency. Since its creation in 1967, the
NTSB has been determining the probable cause of transportation
accidents and formulating safety recommendations to improve
transportation safety. On May 18, 1998, the NTSB issued safety
recommendation H-98-27 recommending that DOT:
Prohibit the carrying of hazardous materials in external piping
of cargo tanks, such as loading lines, that may be vulnerable to
failure in an accident.
This recommendation resulted from an NTSB investigation of an accident
occurring on October 9, 1997, in Yonkers, New York, that involved a
passenger vehicle and a CTMV containing 8,800 gallons of gasoline. In
its investigation report, the NTSB stated that the immediate result of
the accident was a fire inside and below the car and that the fuel for
the initial fire was the gasoline released from the cargo tank's
loading lines (i.e., the wetlines) during impact. The fire was then fed
by gasoline from the cargo tank's compartments. The NTSB concluded
that, had the loading lines been empty, the fire likely would not have
occurred. Based on its investigation, the NTSB identified the operation
of a CTMV with unprotected loading lines carrying hazardous materials
as a serious safety issue. NTSB recommendations are included among the
actions that drive PHMSA to initiate rulemakings. The NTSB
Recommendation (H-98-27) and the accident report (NTSB Report Number
HAR98-02) can be reviewed at http://www.ntsb.gov/.
NTSB continues to recommend the prohibition of what it considers
the unsafe practice of transporting flammable liquids in wetlines. In
recent correspondence with PHMSA, the NTSB expressed disappointment in
our efforts to address the intent of their recommendation including the
withdrawal of our December 30, 2004 NPRM (HM-213B; 69 FR 78375) and
restated their concern by highlighting the results of an accident
report (NTSB Report Number HZB-09-01) regarding a motor vehicle
accident involving a CTMV transporting gasoline and a passenger vehicle
that occurred July 1, 2009. The NTSB determined that the vehicle struck
a wetline causing the release of 13 gallons which resulted in a fire
that caused the death of the driver of the passenger vehicle. The NTSB
noted that this accident illustrates why it believes PHMSA should
prohibit the practice of transporting flammable liquids in wetlines.
The NTSB concluded in its correspondence that based on the age of the
recommendation, the lack of measurable progress by PHMSA to satisfy the
intent of the recommendation, and that this unresolved issue
contributed to the severity of another accident, their recommendation
was downgraded from ``Open-Acceptable Response'' to ``Open-Unacceptable
Response.'' The NTSB indicated that it would be willing to reconsider
its position on the recommendation pending the publication of a
rulemaking that prohibits the transportation of flammable liquids in
wetlines.
[[Page 4849]]
C. Docket No. HM-213B
On February 10, 2003, PHMSA published an advance notice of proposed
rulemaking (ANPRM; 68 FR 6689) to solicit comments and information
regarding methods to reduce the safety hazard associated with the
retention of lading in unprotected wetlines. We asked commenters to
address a number of issues to assist in making a determination as to
whether regulatory changes could be affected, including the state of
technological development, practical alternatives to protect the
wetlines or eliminate the safety problem, the effectiveness of measures
such as increased conspicuity or side guards, and industry practices to
minimize the safety problem.
Based on comments received in response to the February 10, 2003,
ANPRM and PHMSA assessment of the safety issues, on December 30, 2004,
the agency published a notice of proposed rulemaking (NPRM; 69 FR
78375) proposing to amend the HMR to prohibit the carriage of flammable
liquids in wetlines on a DOT specification cargo tank, unless the CTMV
was equipped with bottom damage protection devices. PHMSA proposed a
quantity limit of one liter or less in each pipe, but did not propose a
specific method for achieving this standard. The NPRM included an
exception from the proposed requirements for truck-mounted (e.g.,
straight truck) DOT specification CTMVs. PHMSA proposed to require
compliance with the proposed changes two years after the effective date
of a final rule to provide time for planning, developing, and testing
damage protection systems or systems designed to remove hazardous
materials from product piping, or for redesigning CTMVs to eliminate
external product piping altogether; and proposed to permit CTMV
operators five years to phase in requirements applicable to existing
CTMVs to minimize the costs of down time for installation of equipment
or redesigns by providing an opportunity to retrofit an existing CTMV
during the scheduled requalification time because each specification
CTMV must undergo periodic hydrostatic pressure testing every five
years.
Based on comments received in response to the notices, the agency
reevaluated data and information concerning potential costs and
benefits of regulatory alternatives to ensure that a final rule
prohibiting the transportation of flammable liquids in unprotected
wetlines would be cost-effective. After extensive analysis, PHMSA
concluded that the quantifiable benefits accruing from such a
prohibition would not justify corresponding costs. Accordingly, PHMSA
withdrew the NPRM on June 7, 2006 (71 FR 32909).
Table 1--Summary of HM-213B Rulemaking Actions
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Rulemaking action Publication date Purpose
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Advanced Notice of Proposed February 10, 2003 Solicit comments and
Rulemaking. information
regarding methods to
reduce the safety
risks associated
with the retention
of flammable liquids
in unprotected
wetlines.
Notice of Proposed Rulemaking. December 30, 2004 Propose amendments to
prohibit the
carriage of
flammable liquids in
wetlines on a DOT
specification cargo
tank, unless the
CTMV was equipped
with bottom damage
protection devices.
Notice of Withdrawal.......... June 7, 2006..... Withdraw rulemaking
proposal after
agency review of
comments received
and cost-benefit
analysis.
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In the June 7, 2006, notice of withdrawal, PHMSA made it clear that
the NPRM was being withdrawn on the basis of public comments and
additional data and analysis. PHMSA concluded that further regulation
would not produce the level of benefits we originally expected and that
the quantifiable benefits of proposed regulatory approaches would not
justify the corresponding costs. As indicated in the withdrawal, PHMSA
developed and implemented an outreach program to educate the industry,
first responder community, and the public about potential risks
associated with unprotected wetlines on these vehicles. PHMSA continued
to collect data and other information in order to address its concerns
further if warranted. Based on the number of wetlines incidents that
continue to occur as well as the open NTSB recommendation, as well as
concerns regarding the possibility of a low probability high-
consequence event associated with a wetlines incident, PHMSA has
reopened a wetlines rulemaking action.
In the withdrawal notice, we noted and commended the voluntary
efforts taken by the flammable liquid industry to limit the safety
hazard associated with the transportation of flammable liquids in
unprotected wetlines. We indicated that one large gasoline distributor
has installed purging systems on its CTMVs. In addition, another large
gasoline distributor has installed damage protection equipment on its
CTMVs which could help to mitigate the consequences of a collision with
a motor vehicle.
II. Incident Analysis
In 2009, PHMSA reviewed approximately 6,800 incidents involving
CTMVs transporting flammable or combustible liquids that occurred
during the 10-year period from 1999-2009. PHMSA identified 172
incidents during this period in which wetlines were determined to be
damaged and/or ruptured. A total of 18 of these incidents involved
fires. Of these, eight incidents resulted in a fatality or injury. More
specifically, four incidents resulted in five fatalities and four
incidents resulted in four injuries directly attributable to a wetline
release--that is, the fatalities and injuries resulted from a fire
rather than blunt force trauma or some other event that would have
occurred whether or not the wetline was damaged. Incident reports
submitted to PHMSA can be reviewed at PHMSA's Hazmat Safety Community
Web site at: http://phmsa.dot.gov/hazmat/incident-report.
PHMSA continues to be concerned about the potential for serious
consequences resulting from an incident involving the collision of a
passenger vehicle and the wetlines on a CTMV transporting a flammable
liquid such as gasoline. Because the external piping used to load and
unload cargo tanks in flammable liquid fuel service is located on the
underside (i.e., the belly) of a cargo tank, without protection, the
piping remains exposed to a collision. The Yonkers incident
investigated by the NTSB is a primary example of one such incident. As
noted above, the incident involved a CTMV loaded with 8,800 gallons of
gasoline. The CTMV was traveling under an overpass of the New York
State Thruway (Thruway)
[[Page 4850]]
when it was struck by a passenger vehicle. The vehicle hit the right
side of the cargo tank in the area of the cargo tank housing the tank's
wetlines, damaging the wetlines and releasing the gasoline they
contained. The ensuing fire destroyed both vehicles and the overpass of
the Thruway; the Thruway remained closed for approximately six months.
The driver of the passenger vehicle was killed; the driver of the truck
was not injured. The damage was estimated at $7 million. As serious as
this incident was, under different circumstances the consequences could
have been even more severe--if the incident had occurred during rush
hour, for example, or if there had been more than one occupant of the
passenger vehicle. We believe the risks associated with the carriage of
flammable liquids in wetlines, particularly the potential for multiple
fatalities and injuries resulting from the collision of a passenger
vehicle with the wetlines on a CTMV, warrant renewed rulemaking action.
III. Regulatory Evaluation
This NPRM is based on and supported by cost-benefit conclusions
presented in the regulatory evaluation. The evaluation is available for
review in the docket to this rulemaking. The evaluation of costs and
benefits for this proposed rulemaking relies on a number of different
assumptions that are independent--i.e., any change in unit cost
assumptions will not affect the calculation of benefits, and vice
versa. In addition, our cost estimates are based on a complete set of
direct and indirect costs, most based on consensus estimates with
stakeholders. In contrast, our benefit calculations are based on
incidents occurring over the past ten years and the estimated
consequences of a catastrophic event spread out over 20 years. As a
result of our decision to spread the catastrophic event benefits over
20 years, PHMSA considers the values for estimated benefits to be
conservative as evidenced through sensitivity analysis (see Section V
Executive Order 12866 and DOT Regulatory Policies and Procedures). We
invite comment on our selection and determination of assumptions and
calculations presented in the regulatory evaluation.
IV. Proposals in this NPRM
In this NPRM, PHMSA is proposing to prohibit the transportation of
flammable liquids in exposed external product piping unless the CTMV is
equipped with bottom damage protection that conforms to the
requirements of Sec. 178.337-10 or Sec. 178.345-8(b)(1), as
appropriate.
Since external product piping configurations on CTMVs transporting
gasoline or other flammable liquids may possibly contain minimal
amounts product even by design or when drained or purged, we are
proposing to allow a residue quantity of no more than one liter (0.26
gallon or 33 ounces) to remain in each pipe. This allowance is a
performance standard based on vehicle design. We assume that there much
less of a hazard associated with this residual amount of flammable
material and invite comment on this threshold quantity.
Operators of CTMVs achieving this performance standard would not be
subject to the bottom damage protection requirements. We believe that
compliance with this standard could be monitored by field operations
personnel observing loading practices at a terminal or by viewing site
gauges on piping when a CTMV is in transportation. We assume that there
will be no additional enforcement costs associated with this monitoring
and seek comment on the appropriateness of this assumption as well as
the plausibility of enforcing this performance standard.
We are not proposing a specific method for achieving this residue
standard but rather permitting latitude in developing measures to
achieve compliance with either the damage protection requirements or
prohibition of flammable liquid in wetlines to the one liter residue
level. For example, an operator may elect to design external loading
lines such that the quantity that remains is less than one liter per
pipe. However, an operator may choose not to achieve this performance
standard and continue the practice of wetlines by installing bottom
damage protection on each CTMV. We invite comment on methods that can
be used to achieve this performance standard and the costs associated
with those methods.
Combustible Liquids. As proposed in this NPRM, the wetlines
prohibition would not apply to a material classed as a combustible
liquid or to a Class 3 flammable liquid material reclassed as a
combustible liquid (see Sec. 172.120(b) of the HMR). Because of their
higher flashpoints, combustible liquids pose a lesser hazard than
flammable liquids and are afforded a number of exceptions throughout
the HMR. Moreover, our review of wetlines incidents occurring over the
ten-year review of incidents included incidents involving transport of
both combustible liquids and flammable liquids that could have been
reclassed as combustible liquids. None of the wetlines incidents
involving this class of materials resulted in a fatality or an injury.
We invite comments concerning whether combustible liquids should be
subject to the wetlines prohibition.
Truck-Mounted DOT Specification Cargo Tank Motor Vehicles. In this
NPRM, PHMSA is proposing to except truck-mounted DOT Specification
CTMVs (i.e., straight trucks) from the prohibition of wetlines
containing flammable liquids. Straight trucks are designed and
constructed with engine, body, and cargo tank permanently mounted to
the same chassis. Based on the protective features afforded by their
chassis and running gear, straight trucks present less of a hazard than
most trailer and semi-trailer CTMVs because the external product piping
is not exposed to impact from a vehicle collision in the same manner.
Under this proposal, components of the CTMV framework such as chassis
rails and cross-members, suspension components, structural mounting
members, or any other device that substantially protects wetlines from
the impact forces of another motor vehicle are expected to provide
adequate bottom damage protection. We invite comment on whether this
exception for straight trucks provides an acceptable level of safety,
whether prohibiting flammable liquids in wetlines on straight trucks
should be considered, or if a quantifiable design or performance
standard should be developed for these types of CTMVs. In addition, we
invite comment on whether a Design Certifying Engineer (see Sec. 171.8
of the HMR) should be required for determination whether straight
trucks are adequately protected as part of the design certification
process that is required for all DOT specification CTMVs. We invite
comment on the cost of implementing a requirement for such a
certification process.
Transition Period and Compliance. In this NPRM, PHMSA is proposing
that the changes become effective two years after publication of the
final rule. The two-year transition period provides time for planning,
developing, and testing damage protection systems or systems designed
to remove hazardous materials from product piping, or for redesigning
CTMVs. Following this two-year deferral period, each newly manufactured
DOT Specification CTMV designed with external product piping would be
subject to the requirements and each existing CTMV would be required to
comply with the prohibition within ten years. Acknowledging that
existing CTMVs would most likely have to be placed out of service to
implement a measure to comply with the
[[Page 4851]]
requirements, we are instituting a ten-year compliance period to
accommodate this burden in hopes that this would allow sufficient time
to schedule CTMVs to be out of service. We would expect that work on
retrofits for existing CTMVs could be conducted at the same time as the
periodic hydrostatic pressure tests that occur during the compliance
period. The two-year transition period and ten-year compliance period
are needed to balance the economic and operational impacts on CTMV
operators and the safety enhancements from implementation of this
requirement. We invite comment on the proposed two-year transition
period as well as the extended ten-year compliance period for existing
CTMVs. We also invite comment regarding the material, engineering, and
labor costs associated retrofitting a cargo tank to comply with the
proposed requirements.
Conforming amendment. For consistency in the application of the
exception from the prohibition of wetlines for residue amounts of
hazardous materials as adopted at 54 FR 24982, 25005 (June 12, 1989)
and 55 FR 37028, 37049 (Sept. 7, 1990), PHMSA is proposing to revise
the current exception in Sec. 173.33(e) for hazardous materials other
than flammable liquids to also specify an allowance for a residue
quantity of one liter to remain in each line.
Table 2--Summary of Proposed Amendments
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Proposed requirement: Prohibit carriage of flammable liquid in
wetlines of a DOT specification cargo
tank unless the CTMV is equipped with
bottom damage protection devices.
Compliance date: Two years from date of publication of
final rule.
Existing CTMVs have an additional ten
years to come into compliance.
Exceptions to the proposed Truck- mounted CTMVs (i.e., straight
requirement: trucks).
CTMVs containing combustible
liquids including reclassed
combustibles.
CTMVs with wetlines designed, drained or
purged so that the quantity of flammable
liquid remaining does not exceed 1 L.
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V. Regulatory Analyses and Notices
A. Statutory Authority for This Rulemaking
This rulemaking is issued under the authority of the Federal
hazardous materials transportation law (49 U.S.C. 5101 et seq.). 49
U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe
regulations for the safe transportation, including security, of
hazardous materials in intrastate, interstate, and foreign commerce.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is a significant regulatory action under section
3(f) of Executive Order 12866 and, therefore, was reviewed by the
Office of Management and Budget. The proposed rule is also a
significant rule under the Regulatory Policies and Procedures of the
Department of Transportation (44 FR 11034). A regulatory evaluation is
available for review in the docket.
To evaluate the benefits and costs of the proposal to prohibit the
carriage of flammable liquids in wetlines, we identified several
technologies that would permit operators to reduce the risk from
wetlines containing flammable liquids involved in a motor vehicle
accident. The technologies included engineering redesigns such as
shorter loading lines or relocating of loading lines such that the CTMV
chassis provides protection from damage, or other alternatives such as
installation of a fire suppression system. The technology selected for
this final analysis is a manual purging system that can be installed
without welding. This system is the lowest-cost system currently
available that will allow for compliance with the performance standard
of the proposed requirement. We invite comment to provide information
on alternative technologies as well as the cost and benefits of such
technologies to comply with the proposed requirement. A purging system
evacuates the wetlines by forcing the liquid material out of the
wetlines and into the cargo tank body. After loading of a cargo tank is
completed and the main cargo compartment valves are closed, the system
introduces compressed air from an auxiliary tank through an air filter
and regulator into the lines. The purge can be completed after the CTMV
leaves the loading racks and will not create additional standing time
for the vehicle.
The regulatory evaluation assumes a total of 27,000 CTMVs would be
affected by a rule, and the cost to install a manual, non-welded
purging system would be $2,585 per CTMV (the cost numbers are based on
information provided by equipment vendors). We also assumed the average
service life for a CTMV in flammable liquid service is 20 years; thus,
we assume on average five percent of the fleet would be retired each
year. We invite comment on our assumption of the population of CTMVs in
flammable liquid service that would be affected by this rulemaking as
well as the assumed service life.
Benefits include avoided injuries and property damage attributable
to wetlines incidents and avoided traffic delays, evacuations,
emergency response, and environmental damage. For the ten-year period
from January 1, 1999 through December 31, 2008, based on a review of
incident narratives provided within each incident report including any
follow-up communication with persons submitting the report for further
clarification of the narrative, we identified 172 incidents in which
wetlines were damaged and/or ruptured and a release occurred. A total
of 18 of these incidents involved fires. These incidents resulted in
five fatalities, four injuries, and millions of dollars in property
damage.
We considered five alternatives. For purposes of this proposed
rulemaking, newly constructed is defined as any new construction of a
CTMV after the 2-year transition period following the effective date of
the rulemaking:
(1) Do nothing;
(2) Prohibit the carriage of flammable liquids in wetlines on newly
constructed and existing CTMVs. Existing CTMVs must be compliant in
five years.
(3) Prohibit the carriage of flammable liquids in wetlines on newly
constructed and existing CTMVs. Existing CTMVs must be compliant in ten
years.
(4) Prohibit the carriage of flammable liquids in wetlines on newly
constructed and existing CTMVs. Existing CTMVs must be compliant in
fifteen years.
[[Page 4852]]
(5) Prohibit the carriage of flammable liquids in wetlines on newly
constructed and existing CTMVs. Existing CTMVs must be compliant in
twenty years. Given the estimated 20-year service life of CTMVs, this
alternative implies that only newly constructed cargo tanks would be
subject to the prohibition.
The present value benefits and costs for the compliance
alternatives are provided below at 3% and 7% discount rates. A benefit-
cost ratio of greater than 1.0 indicates a cost beneficial rulemaking.
At the 3% discount rate, the ratios are just under 1.0 for all four
alternatives.
Table 3--Present Value Benefits and Costs of Rule
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P.V. Total P.V. Total costs Benefit-cost P.V. Total P.V. Total costs Benefit-cost
Alternative benefits (3%) (3%) ratio (3%) benefits (7%) (7%) ratio (7%)
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(1) Compliance within 20 Years.............. $51,644,863 $52,484,501 0.98 $29,759,689 $34,334,871 0.87
(2) Compliance within 15 Years.............. 64,658,075 66,467,692 0.97 37,762,060 44,138,243 0.86
(3) Compliance within 10 Years.............. 78,965,221 82,419,898 0.96 47,589,156 56,967,584 0.84
(4) Compliance within 5 Years............... 94,714,950 100,635,691 0.94 59,741,517 73,886,787 0.81
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In addition to identifying the benefits and costs, we also
developed corresponding sensitivity values to see how sensitive the
analysis to changes in data used to calculate the ratios. The series of
sensitivity analyses developed provide ranges of benefits and costs for
each alternative. As previously indicated, in our base case, the
benefit-cost ratios are marginally less than 1.0. However, adjustment
of data points for the sensitivity analyses dramatically shifts the
averages above 1.0 in all cases, reflecting the relative confidence
between benefits and costs. For example, keeping costs the same as the
baseline and increasing the number of fatalities per incident to 3
compared to the baseline of 1.6, and raising other (non-casualty)
reported damages and associated damages by 10% increases the benefit-
cost ratio to 1.6. For a complete discussion of the sensitivity
analysis, please review the regulatory evaluation available in the
docket to this rulemaking.
A summary of the sensitivity analysis is provided below in Table 4.
High and low values are identified at both 3% and 7% discount rates.
Table 4--Sensitivity Values of Benefit and Cost Factors
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Benefit Cost BCR Net benefits
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LOW HIGH LOW HIGH LOW HIGH LOW HIGH
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3% TOTAL:
20 Yrs.............................. $51,644,863 $76,148,563 $44,489,385 $57,732,951 0.89 1.71 ($6M) $32M
15 Yrs.............................. 64,658,075 95,336,093 56,389,062 73,114,461 0.88 1.69 (8M) 39M
10 Yrs.............................. 78,965,221 116,431,484 69,997,980 90,661,888 0.87 1.66 (12M) 46M
5 Yrs............................... 94,714,950 139,653,913 85,574,656 110,699,260 0.86 1.63 (16M) 54M
7% TOTAL:
20 Yrs.............................. 29,759,689 43,879,631 29,355,848 37,768,359 0.79 1.49 (8M) 15M
15 Yrs.............................. 37,762,060 55,678,849 37,768,477 48,552,068 0.78 1.47 (11M) 18M
10 Yrs.............................. 47,589,156 70,168,563 48,818,082 62,664,342 0.76 1.44 (15M) 21M
5 Yrs............................... 59,741,517 88,086,798 63,440,597 81,275,466 0.74 1.39 (22M) 25M
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We selected alternative 3 for which the benefit-cost ratio is 0.96
(discounted at 3%). Our analysis is based on estimates in evaluating
benefits and costs. Both costs and benefits rely on different
assumptions that are independent--i.e., any change in unit cost
assumptions will not affect the calculation of benefits, and vice
versa. Our cost estimates are based on a complete set of direct and
indirect costs. In contrast, our benefit calculations are based on
incidents occurring over the past ten years and the estimated
consequences of a far less-likely catastrophic event spread out over 20
years. Although serious wetlines incidents occurred before and after
the study period, PHMSA believes that this ten-year period is more
representative of events likely to occur over the next ten years. To
account for the uncertainty in the analysis, we conducted a series of
sensitivity analyses. This resulted in ranges of costs and benefits for
each alternative we evaluated. For this proposal, the benefit-cost
ratios range from 0.87 to 1.66 (discounted at 3%) for the 10-year
compliance period for existing CTMVs. Because of the uncertainties
inherent in calculating the overall benefits that would accrue and the
potential for a wetlines incident to result in catastrophic
consequences, we are confident that the costs associated with the
proposed requirement will be more than offset by resulting benefits not
quantified in this analysis, such as long-term environmental
remediation and litigation costs avoided.
C. Executive Order 13132
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''), and the
President's memorandum on ``Preemption'' is published in the Federal
Register on May 22, 2009 (74 FR 24693). This NPRM would preempt State,
local and Indian tribe requirements, but does not propose any
regulation that has direct effects on the States, the relationship
between the
[[Page 4853]]
national government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply. We invite State and local governments and Indian tribes to
comment on the effect that adoption of proposed requirements may have
on safety or environmental protection programs which we have not
considered.
The Federal hazardous material transportation law, 49 U.S.C. 5101-
5128, contains an express preemption provision (49 U.S.C. 5125(b)) that
preempts State, local, and Indian tribe requirements on certain
subjects. These subjects are:
(1) The designation, description, and classification of hazardous
material;
(2) The packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(3) The preparation, execution, and use of shipping documents
related to hazardous material and requirements related to the number,
contents, and placement of those documents;
(4) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(5) the design, manufacturing, fabricating, marking, maintenance,
reconditioning, repairing, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This NPRM addresses covered subject No. 5 and would preempt any
State, local, or Indian tribe requirements not meeting the
``substantively the same'' standard. Federal hazardous materials
transportation law provides at 49 U.S.C. 5125(b)(2) that, if the
Secretary of Transportation issues a regulation concerning any of the
covered subjects, the Secretary must determine and publish in the
Federal Register the effective date of Federal preemption. The
effective date may not be earlier than the 90th day following the date
of issuance of the final rule and not later than two years after the
date of issuance. We propose that the effective date of Federal
preemption will be 90 days after the date of publication of a final
rule in the Federal Register.
D. Executive Order 13175
This proposed rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 13175
(``Consultation and Coordination with Indian Tribal Governments'').
Because this NPRM does not have tribal implications, does not impose
substantial direct compliance costs, and is not required by statute,
the funding and consultation requirements of Executive Order 13175 do
not apply.
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Polices
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
Federal agencies to consider the effects of the regulatory action on
small business and other small entities and to minimize any significant
economic impact. The term ``small entities'' comprises small businesses
and not-for-profit organizations that are independently owned and
operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. Accordingly, DOT
policy requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these businesses.
PHMSA is proposing this regulatory action because flammable liquids
transported in wetlines continue to be involved in motor vehicle
accidents and contribute to the fatality, injury, and damage to persons
and property involved in an accident. The objective of this proposed
rulemaking is to prohibit the transport of flammable liquids in
wetlines unless protected against damage by bottom damage protection
devices. This regulatory action is being proposed under the authority
of the Federal hazardous materials transportation law (49 U.S.C. 5101
et seq.). 49 U.S.C. 5103(b) authorizes the Secretary of Transportation
to prescribe regulations for the safe transportation of hazardous
materials in commerce. PHMSA does not have definitive data on the
number of small entities to which this proposed regulatory action would
apply but a cursory review of industries and registrants within the
industries that self-identify as small business indicates a significant
number of small entities. This regulatory action imposes no new
reporting or recordkeeping requirement on small entities nor are we
aware of any Federal program that would duplicate or conflict with this
regulatory action.
PHMSA completed a regulatory flexibility analysis of the impact of
this proposed rulemaking on small entities. We concluded that the NPRM
has the potential to create significant economic impacts on a
substantial number of small entities. However, due to patterns of CTMV
ownership in affected industries, we believe many small entities will
be impacted to a lesser extent than larger entities, or excepted from
regulation altogether. PHMSA considered the impacts on small entities
in its development of four regulatory alternatives (excluding the do
nothing alternative), but we believe further accommodations would be
inconsistent with the safety goal of the proposed regulation to prevent
incidents involving unprotected wetlines containing flammable liquid
which pose a safety hazard regardless of the size of the entity that
owns or operates the CTMV. However, we believe the proposed 10-year
compliance period for existing CTMVs affords small entities some
flexibility in compliance by allotting a significant amount of time to
small entities to retrofit their CTMVs or to acquire CTMVs that are in
compliance to replace their existing fleet not in compliance.
Additionally, we believe the exception from the requirements of this
proposed regulatory action for wetlines on CTMVs containing no more
than one liter of flammable liquid is a performance standard that also
provides small entities with some flexibility in achieving compliance.
Nonetheless, PHMSA has not identified any significant alternatives
(i.e., technologies) that meet the statutory objectives and which
minimizes any significant impact on small entities. We invite small
entities to comment on alternatives that would meet the objective of
this proposed regulatory action and minimize any significant impact on
small entities.
The detailed small business analysis is available for review in the
docket as part of the regulatory evaluation for this rulemaking. We
invite comment addressing the impact that the proposals in this NPRM
may have on small entities.
This proposed rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered. DOT has notified
the Small Business Administration's Chief Counsel for Advocacy (SBA) of
this notice of proposed rulemaking.
F. Paperwork Reduction Act
This NPRM imposes no new information collection requirements.
G. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal
[[Page 4854]]
Regulations. The Regulatory Information Service Center publishes the
Unified Agenda in April and October of each year. The RIN number
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
H. Unfunded Mandates Reform Act
This NPRM does not impose unfunded mandates under the Unfunded
Mandates Reform Act of 1995. It does not result in costs of $141.3
million or more to either State, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objectives of the rule.
I. Environmental Assessment
The National Environmental Policy Act of 1969 (NEPA) requires
Federal agencies to consider the consequences of major Federal actions
and prepare a detailed statement on actions significantly affecting the
quality of the human environment. There are no significant
environmental impacts associated with this NPRM. An initial
environmental assessment is available in the docket.
J. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (65 FR 19477) or you may visit http://www.dot.gov/privacy.html.
List of Subjects in 49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements, and
Uranium.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
1. The authority citation for part 173 continues to read as follow:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.
2. In Sec. 173.33, paragraph (e) is revised to read as follows:
Sec. 173.33 Hazardous materials in cargo tank motor vehicles.
* * * * *
(e) Retention of hazardous materials in product piping during
transportation. (1) Liquid hazard material other than Class 3
(flammable liquid) material. No person may offer for transportation or
transport a liquid hazardous material in Division 5.1 (oxidizer),
Division 5.2 (organic peroxide), Division 6.1 (toxic), or Class 8
(corrosive to skin only) in the external product piping of a DOT
specification cargo tank motor vehicle unless the vehicle is equipped
with bottom damage protection devices conforming to the requirements of
Sec. 178.337-10 or Sec. 178.345-8(b) of this subchapter, as
appropriate, or the accident damage protection requirements of the
specification under which the cargo tank motor vehicle was
manufactured. This requirement does not apply to a cargo tank motor
vehicle with external product piping designed, drained or purged so
that the amount of material remaining in each pipe does not exceed one
liter (0.26 gallon).
(2) Class 3 (flammable liquid) material. No person may offer or
transport Class 3 material in the external product piping of a cargo
tank motor vehicle marked and certified to a DOT specification on or
after [DATE TWO YEARS AFTER EFFECTIVE DATE OF FINAL RULE] unless the
cargo tank motor vehicle is protected with the bottom damage protection
devices conforming to the requirements of Sec. 178.337-10 or Sec.
178.345-8(b) of this subchapter, as appropriate. A cargo tank motor
vehicle marked or certified to a DOT specification before [DATE TWO
YEARS AFTER EFFECTIVE DATE OF FINAL RULE] must be in compliance with
requirements of this section by [DATE TWELVE YEARS AFTER EFFECTIVE DATE
OF FINAL RULE]. The requirements in this paragraph (e)(2) do not apply
to--
(i) A cargo tank motor vehicle designed and constructed with
engine, body, and cargo tank permanently mounted on the same chassis
with external product piping protected from impact by another motor
vehicle by the structural components of the cargo tank motor vehicle,
such as damage protection guards, framing members, or wheel assemblies;
(ii) A cargo tank motor vehicle containing combustible liquid as
defined in accordance with Sec. 173.120 of this part or a Class 3
flammable liquid material reclassed as a combustible liquid in
accordance with Sec. 173.120; or
(iii) A cargo tank motor vehicle with external product piping
designed, drained or purged so that the amount of material remaining in
each pipe does not exceed one liter (0.26 gallon).
(3) A sacrificial device equipped in accordance with Sec. 178.345-
8(b)(2) of this subchapter, may not be used to satisfy the accident
damage protection requirements of this paragraph (e) if hazardous
material is retained in product piping in excess of excepted amounts
during transportation.
* * * * *
Issued in Washington, DC, on January 14, 2011, under authority
delegated in 49 CFR part 1.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-1695 Filed 1-26-11; 8:45 am]
BILLING CODE 4910-60-P