[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Proposed Rules]
[Pages 81501-81503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32681]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 173
[Docket Number 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: Withdrawal of notice of proposed rulemaking.
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SUMMARY: PHMSA is withdrawing the notice proposing to stop the
transportation of flammable liquid material in unprotected external
product piping on DOT specification cargo tank motor vehicles as
mandated by the ``Fixing America's Surface Transportation Act'' or the
``FAST Act''. Although PHMSA is withdrawing its rulemaking proposal,
the agency will continue to consider methods to improve the safety of
transporting flammable liquid by cargo tank motor vehicle. PHMSA will
also continue to analyze current incident data and improve the
collection of future incident data to assist in making an informed
decision on methods to address this issue further, if warranted.
DATES: The notice of proposed rulemaking published January 27, 2011 (76
FR 4847) is withdrawn as of December 30, 2015.
FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, Office of Hazardous
Materials Standards, Pipeline and Hazardous Materials Safety
Administration, telephone (202) 366-8553; or Leonard Majors, Office of
Hazardous Materials Technology, Pipeline and Hazardous Materials Safety
Administration, telephone (202) 366-4545.
SUPPLEMENTARY INFORMATION:
I. What action is PHMSA taking?
II. What did PHMSA propose and why?
III. Why is PHMSA taking this action?
IV. Background on Development of the Rulemaking
A. Regulatory Assessment
B. Government Accountability Office (GAO) Report and the Moving
Ahead for Progress in the 21st Century Act (MAP-21)
C. Post-GAO Report Analysis
D. Commenter Concerns
1. Incident Analysis
2. Cost and Benefit Estimation
E. Findings
V. Conclusion
I. What action is PHMSA taking?
PHMSA is withdrawing notice of proposed rulemaking (NPRM)
``Hazardous Materials: Safety Requirements for External Product Piping
on Cargo Tanks Transporting Flammable Liquids'' (HM-213D) published
January 27, 2011 (76 FR 4847) under Docket No. PHMSA-2009-0303. This
rulemaking proposed to stop flammable liquids from being transported in
unprotected product piping (generally referred to as the ``wetlines'')
on the cargo tank of existing and newly manufactured DOT specification
cargo tank motor vehicles.
II. What did PHMSA propose and why?
PHMSA proposed to stop the transportation of flammable liquids in
unprotected external product piping on DOT specification cargo tank
motor vehicles (CTMVs) unless the piping was protected from accident or
bottom damages or the piping was designed or emptied in a way to remove
the hazard of containing flammable liquid. PHMSA proposed this change
because exposed piping containing flammable liquid can contribute to
the severity of accidents involving a CTMV and an automobile, and
because we currently do not require external piping containing
flammable liquid to be protected like other hazardous material. Except
for flammable liquid, Sec. 173.33(e) of the Hazardous Materials
Regulations (HMR: Parts 171-180) does not allow the transport of liquid
hazardous material in piping of a DOT specification cargo tank motor
vehicle unless it is equipped with accident damage or bottom damage
protection devices.\1\ PHMSA also issued this proposed requirement to
fully address the National Transportation Safety Board (NTSB) Safety
Recommendation H-98-27. This recommendation reads:
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\1\ The HMR currently prohibits liquid hazardous materials in
Divisions 5.1 (oxidizer), 5.2 (organic peroxide), 6.1 (toxic), and
Class 8 (corrosive to skin only) to remain in wetlines after loading
or unloading. Due to complications associated with the loading
practices and economics of transporting Class 3 flammable liquids,
the provision does not apply to flammable liquids.
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.
III. Why is PHMSA withdrawing the rulemaking?
PHMSA is withdrawing the rulemaking in accordance with a
congressional mandate. On December 4, 2015, President Obama signed into
law the Fixing America's Surface Transportation Act, or ``FAST
Act''.\2\ The Act outlines legislation to improve the Nation's surface
transportation infrastructure, including roads, bridges, transit
systems, and the rail transportation network. Among its many provisions
is a mandate for PHMSA to withdraw this rulemaking no later than thirty
days from the date of enactment of the FAST Act (see section 7206 of
the Fast Act).
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\2\ See Public Law 114-94, 129; Stat. 1312, December 4, 2015.
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IV. Background on Development of this Rulemaking
Although PHMSA is congressionally mandated to withdraw this
rulemaking, below we discuss past and recent actions in development of
this rulemaking.
A. Regulatory Assessment
PHMSA developed the assessment to evaluate regulatory action using
data from hazardous materials incident reports over a 12.25-year time
period (January 1999 to March 2011). PHMSA used a manual purging system
\3\ as the workable option to address the safety hazard of flammable
liquid in unprotected wetlines. Under previous rulemaking efforts,
PHMSA identified several technologies and design considerations that
could allow operators of CTMVs to address this safety hazard and asked
for public input on the practicality of using these options to protect
against or prevent the safety hazard.\4\ PHMSA's conclusions regarding
the practicality of alternatives remain valid. PHMSA believes a manual
purging system is the only workable option based on our understanding
of currently available and implemented technologies for addressing this
safety hazard.
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\3\ The manual purging system is a pneumatic system consisting
of tubes, check valves, and a control box installed on a CTMV that
uses compressed air to clear the wetlines by forcing the liquid
material out of the piping and into the cargo tank body.
\4\ On December 30, 2004, the agency published an NPRM (69 FR
78375) that discussed a number of possible alternative actions.
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In developing an analysis of the benefits of the rulemaking, PHMSA
considered avoided injuries, property damage, traffic delays,
evacuations, emergency response, and environmental damage; in
developing an analysis of the costs, we considered the installation,
maintenance, and associated impacts of a equipping a CTMV with a manual
purging system. PHMSA evaluated various implementation timelines
ranging from a 5-year period to a 20-year period as the alternative
actions. The
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best-case scenario benefit-cost ratio (BCR) was estimated to be 0.78,
based on a 20-year period (which would result in a de facto
applicability to new construction only, based on PHMSA's assumption of
a 20-year useful service life for a CTMV), and a 7 percent discount
rate.\5\ The assessment used the DOT's Value of Statistical Life (VSL)
of $6.1 million at the time, which now has been revised to $9.2
million. Based on PHMSA's additional review of data following the
publication of the NPRM and the outcome of the Government
Accountability Office (GAO) audit (discussed below), the number of
fatal incidents was reduced from four to three. These two changes were
not accounted for in the assessment, but the net effect on the BCR is
minor because the increase in benefits from the revised VSL is similar
in magnitude to the decrease in benefits associated with the decrease
in fatal incidents.
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\5\ A BCR is an indicator of the relative benefits of a project
to its cost. A BCR of 1.0 indicates the benefits equal the cost.
Thus, for the best-case scenario the BCR of 0.78 indicates that the
estimated costs of complying with the rulemaking are greater than
the estimated safety benefits.
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B. Government Accountability Office (GAO) Report and the Moving Ahead
for Progress in the 21st Century Act (MAP-21) \6\
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\6\ See Public Law 112-141, 126; Stat. 405, July 6, 2012.
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The MAP-21, enacted in July 2012, temporarily stopped PHMSA from
issuing a final rule and required the GAO to examine the risks of, and
alternatives to, transporting flammable liquids in wetlines. The GAO
examined PHMSA's process for identifying wetlines incidents among its
reported hazardous materials incidents, analyzed how useful PHMSA's
incident data from January 1999 through March 2011 are for identifying
such incidents, and examined whether the data accurately captured
information about the incidents' consequences.
In its final report, the GAO concluded that because PHMSA does not
specifically provide an option to indicate a wetlines incident on its
incident reporting form, it is difficult to identify the number of
wetlines incidents from PHMSA's incident data.\7\ Additionally, due to
inaccuracy of the damages associated with incidents, GAO believes the
magnitude of the risks wetlines pose to safety is also unclear. It also
noted that, although PHMSA has made changes to improve the quality of
its incident data, the concerns that GAO identified call into question
the usefulness of PHMSA's data for evaluating the benefits of avoiding
these incidents--particularly the extent to which a wetlines rule would
prevent fatalities. Finally, the GAO stated that PHMSA's economic
analysis used to support the NPRM does not account for these
limitations and therefore, the analysis does not adequately convey the
uncertainty of PHMSA's calculated benefit of the rule. Moreover, GAO
concluded that PHMSA's analysis has not adequately addressed the market
uncertainty with regard to the technology used as the basis for
addressing the safety hazard. See the GAO report for the complete
discussion of the GAO audit and summary of conclusions and
recommendations.
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\7\ CARGO TANK TRUCKS: Improved Incident Data and Regulatory
Analysis Would Better Inform Decisions about Safety Risks, Report to
Congressional Committees, GAO-13-721, September 2013, http://www.gao.gov/assets/660/657755.pdf.
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C. Post-GAO Report Analysis
Following the GAO report, PHMSA examined the regulatory assessment,
taking into account the GAO findings as well as industry comments to
help make a determination on whether to withdraw the rulemaking. This
analysis also took into account the updated VSL. The analysis
considered five scenarios for calculating the estimated societal
benefits and four scenarios for the estimated costs. This additional
analysis served as a sensitivity analysis of the regulatory assessment
for the NPRM. The different scenarios for estimated benefits were based
on:
The incident analysis data used in the regulatory
assessment--i.e., ``incident data'';
the incident data, including only those incidents
involving a fire;
the incident data plus the Yonkers, NY fatal incident
data;
the incident data, adjusted to account for the GAO
recommendations; and
the incident data, adjusted to account for the GAO
recommendations plus the Yonkers, NY fatal incident data.
PHMSA calculated a range of potential BCR outcomes, based on the
five scenarios for estimated benefits and the two scenarios for
estimated average costs. It is reasonable to assume that the BCR lies
somewhere between the highest and lowest BCR outcomes from this
analysis. Under the low average cost estimate, in four of the five
estimated benefit scenarios the BCR at a 7 percent discount rate was
not net beneficial. The BCRs ranged from 0.77 to 1.1 for the low
average cost scenario. In comparison, under the high average cost
estimate, in all five estimated benefit scenarios the BCR at a 7
percent discount rate was not net beneficial. The BCRs ranged from 0.47
to 0.67 for the high average cost scenario.
D. Commenter Concerns
In general, most commenters to the NPRM opposed the proposed ban
and indicated that they do not believe wetlines containing flammable
liquid are a safety risk, citing PHMSA's own statistics that the
frequency of wetlines incidents is low and the frequency of incidents
that lead to injury or death is extremely low. They also expressed
concerns regarding PHMSA's incident analyses, regulatory assessment,
implementation of the rule, and safety impacts of the rule. The
remaining commenters either supported the rulemaking on the basis of
improved safety for the public or offered suggestions to strengthen or
make clearer PHMSA's efforts to address the safety hazard. The
opposition comments mainly address PHMSA's incident analysis and
development of the costs and benefits of the regulatory assessment.
PHMSA summarizes these concerns in greater detail below. This summary
of comments is for the benefit of the reader for understanding of
stakeholder information presented during the notice and comment portion
of this rulemaking. The complete body of comments both in opposition to
and support of the rule is available for review at the docket to the
rulemaking (www.regulations.gov).
1. Incident Analysis
Commenters questioned whether all incidents and their associated
data used in PHMSA's preliminary analyses should be included in the
assessment with respect to: (1) The criteria used to decide whether an
incident qualified as a wetlines incident; (2) whether deaths,
injuries, or any other costs were actually the result of the material
contained in the wetlines; and (3) relevance of proposed requirements.
For example, they asserted that any incident involving the release of
more than fifty gallons \8\ without a fire resulting from a wetlines
release should be excluded based on the assumption that a spill of more
than fifty gallons indicates that there was a breach of the cargo tank
itself (e.g., tank shell rupture, damage to an internal valve) such
that any action to comply with the proposed performance standard--like
purging the wetlines--would not have prevented the larger release of
material. Additionally,
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they argued that data indicating damages not directly linked to
wetlines damage or release should not be included. For example, costs
associated with damage to the CTMV from a motor vehicle collision
should not be included in the total for purposes of the analysis.
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\8\ A basic assumption used in wetlines incident determination
is that depending on the number of cargo tank compartments and the
size of the product piping, wetlines can contain up to 50 gallons of
product.
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PHMSA agrees that only those costs associated with damages to the
wetline and release of material from the wetlines should be counted.
Unfortunately, under the current format of incident report information
it is difficult to parse out the costs of wetlines-related damages from
the total body of damages where damages occur beyond those associated
with wetlines, unless some assumptions are made. For instance, in the
case of an incident involving a fire, PHMSA assumed the fire was
started and was propagated by the wetlines release.
Upon consideration of the comments, PHMSA conducted further review
of the 172 incidents that were initially determined to be wetlines
incidents in our preliminary analyses. Prior to this review, PHMSA
became aware that some of the data in our original set of incidents was
not accurate and likely led to the critical comments. This data had
since been corrected and a revised list of incidents was placed in the
docket (8/12/2011; PHMSA-2009-0303-0048). PHMSA also reviewed
additional CTMV incidents that occurred from January 1, 2009 to March
31, 2011 to capture more recent data. This review resulted in a final
determination of 132 wetlines incidents. A total of 59 incidents where
removed after a review of the original 172 incidents, and 19 incidents
were added after a review of more recent data.
2. Benefit and Cost Estimation
Manual Purging System. Most commenters took issue with PHMSA's
estimation of the costs of installing a manual purging system.\9\ In
general, they believe PHMSA underestimated the total cost presented
through incorrect assumptions and inclusion of cost factors that do not
reflect real-world applications. Commenters indicated that PHMSA
underestimated the true costs of a manual purging system by, for
example, not incorporating a markup cost. Commenters provide a range of
cost estimates from $4,000 to $10,000. Some also think the regulatory
assessment should have been developed using a mix of costs of the
manual system and the more expensive automated purging system.
Commenters suggest this because they believe that owners will invest in
the automated system out of concern that drivers will forget to operate
the manual system and because an automated system will provide the
added benefit of discovery of a faulty emergency valve and would
continue to purge the lines during transportation if such a faulty
valve were present. Details of this pricing can be found in the
regulatory assessment and other documents submitted to the docket for
this rulemaking. PHMSA's post-GAO analysis took into consideration the
cost of the automated system.
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\9\ PHMSA used a per-unit price of $2,300 based on the
advertised price of the one manufacturer of purging systems
currently designing and installing such systems.
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Operational delays. Many commenters argued that PHMSA has not
accounted for delay costs to the shipper or carrier due to operation of
a purging system at the loading rack of a terminal facility. The delay
would be caused by the driver of the CTMV waiting anywhere from three
to six minutes for the system to complete the purging process prior to
moving the CTMV. Commenters based this on their understanding that the
regulations would not allow the vehicle to move until it is essentially
empty--only a residue remains in the piping. Completion of the purging
process would be an indicator that it is empty.
Weight penalty. PHMSA estimated that a manual purging system is
expected to add about 48 pounds to a CTMV. To the extent that a shipper
or carrier operates at Federal or State gross weight limits, the
shipper or carrier would have to ship less product because of this
additional weight. Commenters disagreed with the estimate that only 25%
of vehicle trips are at the maximum allowable weight and therefore
affected by the additional weight of a purging system. Informal surveys
of carriers by the American Trucking Association and the National Tank
Truck Carriers found that as much as 80% of trips are at the maximum
allowable weight. Again, PHMSA's post-GAO analysis accounted for this.
Yonkers, NY Incident. Commenters believe the Yonkers, NY incident
that led to NTSB Safety Recommendation (H-98-27) should not be included
in the regulatory assessment for several reasons, including:
(1) The belief that the fire in the incident was not caused by a
wetlines release because the original NTSB accident report concluded
that the fire was fed by fuel from the cargo tank compartments,
implying a breach of the cargo tank;
(2) the incident predates the incident analysis period; and
(3) the uncertainty that such an event will ever occur again--no
data supports the PHMSA assumption that this is a 20-year event.
E. Findings
Although a safety hazard exists, the regulatory assessment and
further analysis indicate that prohibiting the transportation of
flammable liquids in wetlines is unlikely to be cost beneficial.
Additionally, the GAO report has pointed out a number of uncertainties
with the data collection and analysis that would have a direct impact
on PHMSA's ability to fully characterize the degree of risk that
wetlines containing flammable liquids pose to the safety of
transportation.
V. Conclusion
PHMSA is withdrawing this rulemaking in accordance with the FAST
Act. PHMSA, however, will continue to examine this issue, particularly
by monitoring flammable liquid wetlines incidents, in consideration of
any future actions. Likely future actions include non-regulatory
initiatives to improve the safety of transporting flammable liquid in
unprotected external product piping on CTMVs.
Issued in Washington, DC, on December 22, 2015, under authority
delegated in 49 CFR Part 1.97.
William S. Schoonover,
Deputy Associate Administrator.
[FR Doc. 2015-32681 Filed 12-29-15; 8:45 am]
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