[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \1\ Federal Highway Administration, Summary of Travel Trends: 
2001 National Household Travel Survey. Dec 2004. http://nhts.ornl.gov/2001/pub/STT.pdf.
---------------------------------------------------------------------------

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
------------------------------------------------------------------------
       Rulemaking action         Publication date         Purpose
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

    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
------------------------------------------------------------------------
 
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 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%)
--------------------------------------------------------------------------------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Benefit                          Cost                        BCR                Net benefits
                                         ---------------------------------------------------------------------------------------------------------------
                                                LOW            HIGH             LOW            HIGH          LOW        HIGH        LOW          HIGH
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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