80_FR_81751 80 FR 81501 - Hazardous Materials: Safety Requirements for External Product Piping on Cargo Tanks Transporting Flammable Liquids

80 FR 81501 - Hazardous Materials: Safety Requirements for External Product Piping on Cargo Tanks Transporting Flammable Liquids

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration

Federal Register Volume 80, Issue 250 (December 30, 2015)

Page Range81501-81503
FR Document2015-32681

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.

Federal Register, Volume 80 Issue 250 (Wednesday, December 30, 2015)
[Federal Register Volume 80, Number 250 (Wednesday, December 30, 2015)]
[Proposed Rules]
[Pages 81501-81503]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-32681]



[[Page 81501]]

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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

[[Page 81502]]

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,

[[Page 81503]]

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

    \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]
 BILLING CODE 4910-60-P



                                                                      Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules                                                       81501

                                                    DEPARTMENT OF TRANSPORTATION                              E. Findings                                            the Fixing America’s Surface
                                                                                                            V. Conclusion                                            Transportation Act, or ‘‘FAST Act’’.2
                                                    Pipeline and Hazardous Materials                        I. What action is PHMSA taking?                          The Act outlines legislation to improve
                                                    Safety Administration                                                                                            the Nation’s surface transportation
                                                                                                               PHMSA is withdrawing notice of                        infrastructure, including roads, bridges,
                                                    49 CFR Part 173                                         proposed rulemaking (NPRM)                               transit systems, and the rail
                                                                                                            ‘‘Hazardous Materials: Safety                            transportation network. Among its many
                                                    [Docket Number PHMSA–2009–0303 (HM–                     Requirements for External Product
                                                    213D)]                                                                                                           provisions is a mandate for PHMSA to
                                                                                                            Piping on Cargo Tanks Transporting                       withdraw this rulemaking no later than
                                                    RIN 2137–AE53                                           Flammable Liquids’’ (HM–213D)                            thirty days from the date of enactment
                                                                                                            published January 27, 2011 (76 FR 4847)                  of the FAST Act (see section 7206 of the
                                                    Hazardous Materials: Safety                             under Docket No. PHMSA–2009–0303.                        Fast Act).
                                                    Requirements for External Product                       This rulemaking proposed to stop
                                                    Piping on Cargo Tanks Transporting                      flammable liquids from being                             IV. Background on Development of this
                                                    Flammable Liquids                                       transported in unprotected product                       Rulemaking
                                                                                                            piping (generally referred to as the                       Although PHMSA is congressionally
                                                    AGENCY: Pipeline and Hazardous                          ‘‘wetlines’’) on the cargo tank of existing
                                                    Materials Safety Administration                                                                                  mandated to withdraw this rulemaking,
                                                                                                            and newly manufactured DOT                               below we discuss past and recent
                                                    (PHMSA), DOT.                                           specification cargo tank motor vehicles.                 actions in development of this
                                                    ACTION: Withdrawal of notice of
                                                                                                            II. What did PHMSA propose and why?                      rulemaking.
                                                    proposed rulemaking.
                                                                                                               PHMSA proposed to stop the                            A. Regulatory Assessment
                                                    SUMMARY:   PHMSA is withdrawing the                     transportation of flammable liquids in                      PHMSA developed the assessment to
                                                    notice proposing to stop the                            unprotected external product piping on                   evaluate regulatory action using data
                                                    transportation of flammable liquid                      DOT specification cargo tank motor                       from hazardous materials incident
                                                    material in unprotected external                        vehicles (CTMVs) unless the piping was                   reports over a 12.25-year time period
                                                    product piping on DOT specification                     protected from accident or bottom                        (January 1999 to March 2011). PHMSA
                                                    cargo tank motor vehicles as mandated                   damages or the piping was designed or                    used a manual purging system 3 as the
                                                    by the ‘‘Fixing America’s Surface                       emptied in a way to remove the hazard                    workable option to address the safety
                                                    Transportation Act’’ or the ‘‘FAST Act’’.               of containing flammable liquid. PHMSA                    hazard of flammable liquid in
                                                    Although PHMSA is withdrawing its                       proposed this change because exposed                     unprotected wetlines. Under previous
                                                    rulemaking proposal, the agency will                    piping containing flammable liquid can                   rulemaking efforts, PHMSA identified
                                                    continue to consider methods to                         contribute to the severity of accidents                  several technologies and design
                                                    improve the safety of transporting                      involving a CTMV and an automobile,                      considerations that could allow
                                                    flammable liquid by cargo tank motor                    and because we currently do not require                  operators of CTMVs to address this
                                                    vehicle. PHMSA will also continue to                    external piping containing flammable                     safety hazard and asked for public input
                                                    analyze current incident data and                       liquid to be protected like other                        on the practicality of using these
                                                    improve the collection of future                        hazardous material. Except for                           options to protect against or prevent the
                                                    incident data to assist in making an                    flammable liquid, § 173.33(e) of the                     safety hazard.4 PHMSA’s conclusions
                                                    informed decision on methods to                         Hazardous Materials Regulations (HMR:                    regarding the practicality of alternatives
                                                    address this issue further, if warranted.               Parts 171–180) does not allow the                        remain valid. PHMSA believes a manual
                                                    DATES: The notice of proposed                           transport of liquid hazardous material in                purging system is the only workable
                                                    rulemaking published January 27, 2011                   piping of a DOT specification cargo tank                 option based on our understanding of
                                                    (76 FR 4847) is withdrawn as of                         motor vehicle unless it is equipped with                 currently available and implemented
                                                    December 30, 2015.                                      accident damage or bottom damage                         technologies for addressing this safety
                                                    FOR FURTHER INFORMATION CONTACT: Dirk                   protection devices.1 PHMSA also issued                   hazard.
                                                    Der Kinderen, Office of Hazardous                       this proposed requirement to fully                          In developing an analysis of the
                                                    Materials Standards, Pipeline and                       address the National Transportation                      benefits of the rulemaking, PHMSA
                                                    Hazardous Materials Safety                              Safety Board (NTSB) Safety                               considered avoided injuries, property
                                                    Administration, telephone (202) 366–                    Recommendation H–98–27. This                             damage, traffic delays, evacuations,
                                                    8553; or Leonard Majors, Office of                      recommendation reads:                                    emergency response, and environmental
                                                    Hazardous Materials Technology,                           Prohibit the carrying of hazardous                     damage; in developing an analysis of the
                                                    Pipeline and Hazardous Materials Safety                 materials in external piping of cargo tanks,             costs, we considered the installation,
                                                    Administration, telephone (202) 366–                    such as loading lines that may be vulnerable             maintenance, and associated impacts of
                                                    4545.                                                   to failure in an accident.                               a equipping a CTMV with a manual
                                                                                                            III. Why is PHMSA withdrawing the                        purging system. PHMSA evaluated
                                                    SUPPLEMENTARY INFORMATION:
                                                                                                            rulemaking?                                              various implementation timelines
                                                    I. What action is PHMSA taking?
                                                    II. What did PHMSA propose and why?                                                                              ranging from a 5-year period to a 20-year
                                                                                                               PHMSA is withdrawing the                              period as the alternative actions. The
                                                    III. Why is PHMSA taking this action?                   rulemaking in accordance with a
                                                    IV. Background on Development of the
                                                          Rulemaking
                                                                                                            congressional mandate. On December 4,                       2 See Public Law 114–94, 129; Stat. 1312,
mstockstill on DSK4VPTVN1PROD with PROPOSALS




                                                       A. Regulatory Assessment                             2015, President Obama signed into law                    December 4, 2015.
                                                                                                                                                                        3 The manual purging system is a pneumatic
                                                       B. Government Accountability Office
                                                          (GAO) Report and the Moving Ahead for               1 The HMR currently prohibits liquid hazardous         system consisting of tubes, check valves, and a
                                                                                                            materials in Divisions 5.1 (oxidizer), 5.2 (organic      control box installed on a CTMV that uses
                                                          Progress in the 21st Century Act (MAP–                                                                     compressed air to clear the wetlines by forcing the
                                                                                                            peroxide), 6.1 (toxic), and Class 8 (corrosive to skin
                                                          21)                                               only) to remain in wetlines after loading or             liquid material out of the piping and into the cargo
                                                       C. Post-GAO Report Analysis                          unloading. Due to complications associated with          tank body.
                                                       D. Commenter Concerns                                the loading practices and economics of transporting         4 On December 30, 2004, the agency published an
                                                       1. Incident Analysis                                 Class 3 flammable liquids, the provision does not        NPRM (69 FR 78375) that discussed a number of
                                                       2. Cost and Benefit Estimation                       apply to flammable liquids.                              possible alternative actions.



                                               VerDate Sep<11>2014   16:44 Dec 29, 2015   Jkt 238001   PO 00000   Frm 00027   Fmt 4702   Sfmt 4702   E:\FR\FM\30DEP1.SGM     30DEP1


                                                    81502              Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules

                                                    best-case scenario benefit-cost ratio                   made changes to improve the quality of                discount rate was not net beneficial. The
                                                    (BCR) was estimated to be 0.78, based                   its incident data, the concerns that GAO              BCRs ranged from 0.47 to 0.67 for the
                                                    on a 20-year period (which would result                 identified call into question the                     high average cost scenario.
                                                    in a de facto applicability to new                      usefulness of PHMSA’s data for
                                                                                                                                                                  D. Commenter Concerns
                                                    construction only, based on PHMSA’s                     evaluating the benefits of avoiding these
                                                    assumption of a 20-year useful service                  incidents—particularly the extent to                    In general, most commenters to the
                                                    life for a CTMV), and a 7 percent                       which a wetlines rule would prevent                   NPRM opposed the proposed ban and
                                                    discount rate.5 The assessment used the                 fatalities. Finally, the GAO stated that              indicated that they do not believe
                                                    DOT’s Value of Statistical Life (VSL) of                PHMSA’s economic analysis used to                     wetlines containing flammable liquid
                                                    $6.1 million at the time, which now has                 support the NPRM does not account for                 are a safety risk, citing PHMSA’s own
                                                    been revised to $9.2 million. Based on                  these limitations and therefore, the                  statistics that the frequency of wetlines
                                                    PHMSA’s additional review of data                       analysis does not adequately convey the               incidents is low and the frequency of
                                                    following the publication of the NPRM                   uncertainty of PHMSA’s calculated                     incidents that lead to injury or death is
                                                    and the outcome of the Government                       benefit of the rule. Moreover, GAO                    extremely low. They also expressed
                                                    Accountability Office (GAO) audit                       concluded that PHMSA’s analysis has                   concerns regarding PHMSA’s incident
                                                    (discussed below), the number of fatal                  not adequately addressed the market                   analyses, regulatory assessment,
                                                    incidents was reduced from four to                      uncertainty with regard to the                        implementation of the rule, and safety
                                                    three. These two changes were not                       technology used as the basis for                      impacts of the rule. The remaining
                                                    accounted for in the assessment, but the                addressing the safety hazard. See the                 commenters either supported the
                                                    net effect on the BCR is minor because                  GAO report for the complete discussion                rulemaking on the basis of improved
                                                    the increase in benefits from the revised               of the GAO audit and summary of                       safety for the public or offered
                                                    VSL is similar in magnitude to the                      conclusions and recommendations.                      suggestions to strengthen or make
                                                    decrease in benefits associated with the                                                                      clearer PHMSA’s efforts to address the
                                                                                                            C. Post-GAO Report Analysis                           safety hazard. The opposition comments
                                                    decrease in fatal incidents.
                                                                                                               Following the GAO report, PHMSA                    mainly address PHMSA’s incident
                                                    B. Government Accountability Office                     examined the regulatory assessment,                   analysis and development of the costs
                                                    (GAO) Report and the Moving Ahead for                   taking into account the GAO findings as               and benefits of the regulatory
                                                    Progress in the 21st Century Act (MAP–                  well as industry comments to help make                assessment. PHMSA summarizes these
                                                    21) 6                                                   a determination on whether to withdraw                concerns in greater detail below. This
                                                       The MAP–21, enacted in July 2012,                    the rulemaking. This analysis also took               summary of comments is for the benefit
                                                    temporarily stopped PHMSA from                          into account the updated VSL. The                     of the reader for understanding of
                                                    issuing a final rule and required the                   analysis considered five scenarios for                stakeholder information presented
                                                    GAO to examine the risks of, and                        calculating the estimated societal                    during the notice and comment portion
                                                    alternatives to, transporting flammable                 benefits and four scenarios for the                   of this rulemaking. The complete body
                                                    liquids in wetlines. The GAO examined                   estimated costs. This additional analysis             of comments both in opposition to and
                                                    PHMSA’s process for identifying                         served as a sensitivity analysis of the               support of the rule is available for
                                                    wetlines incidents among its reported                   regulatory assessment for the NPRM.                   review at the docket to the rulemaking
                                                    hazardous materials incidents, analyzed                 The different scenarios for estimated                 (www.regulations.gov).
                                                    how useful PHMSA’s incident data from                   benefits were based on:                               1. Incident Analysis
                                                    January 1999 through March 2011 are                        • The incident analysis data used in
                                                                                                            the regulatory assessment—i.e.,                          Commenters questioned whether all
                                                    for identifying such incidents, and
                                                                                                            ‘‘incident data’’;                                    incidents and their associated data used
                                                    examined whether the data accurately
                                                                                                               • the incident data, including only                in PHMSA’s preliminary analyses
                                                    captured information about the
                                                                                                            those incidents involving a fire;                     should be included in the assessment
                                                    incidents’ consequences.
                                                       In its final report, the GAO concluded                  • the incident data plus the Yonkers,              with respect to: (1) The criteria used to
                                                    that because PHMSA does not                             NY fatal incident data;                               decide whether an incident qualified as
                                                    specifically provide an option to                          • the incident data, adjusted to                   a wetlines incident; (2) whether deaths,
                                                                                                            account for the GAO recommendations;                  injuries, or any other costs were actually
                                                    indicate a wetlines incident on its
                                                                                                            and                                                   the result of the material contained in
                                                    incident reporting form, it is difficult to
                                                    identify the number of wetlines                            • the incident data, adjusted to                   the wetlines; and (3) relevance of
                                                                                                            account for the GAO recommendations                   proposed requirements. For example,
                                                    incidents from PHMSA’s incident data.7
                                                                                                            plus the Yonkers, NY fatal incident                   they asserted that any incident
                                                    Additionally, due to inaccuracy of the
                                                                                                            data.                                                 involving the release of more than fifty
                                                    damages associated with incidents,
                                                                                                               PHMSA calculated a range of                        gallons 8 without a fire resulting from a
                                                    GAO believes the magnitude of the risks
                                                                                                            potential BCR outcomes, based on the                  wetlines release should be excluded
                                                    wetlines pose to safety is also unclear.
                                                                                                            five scenarios for estimated benefits and             based on the assumption that a spill of
                                                    It also noted that, although PHMSA has
                                                                                                            the two scenarios for estimated average               more than fifty gallons indicates that
                                                      5 A BCR is an indicator of the relative benefits of   costs. It is reasonable to assume that the            there was a breach of the cargo tank
                                                    a project to its cost. A BCR of 1.0 indicates the       BCR lies somewhere between the                        itself (e.g., tank shell rupture, damage to
                                                    benefits equal the cost. Thus, for the best-case        highest and lowest BCR outcomes from                  an internal valve) such that any action
                                                    scenario the BCR of 0.78 indicates that the             this analysis. Under the low average                  to comply with the proposed
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                                                    estimated costs of complying with the rulemaking                                                              performance standard—like purging the
                                                    are greater than the estimated safety benefits.
                                                                                                            cost estimate, in four of the five
                                                      6 See Public Law 112–141, 126; Stat. 405, July 6,     estimated benefit scenarios the BCR at a              wetlines—would not have prevented the
                                                    2012.                                                   7 percent discount rate was not net                   larger release of material. Additionally,
                                                      7 CARGO TANK TRUCKS: Improved Incident                beneficial. The BCRs ranged from 0.77
                                                    Data and Regulatory Analysis Would Better Inform        to 1.1 for the low average cost scenario.               8 A basic assumption used in wetlines incident

                                                    Decisions about Safety Risks, Report to                                                                       determination is that depending on the number of
                                                    Congressional Committees, GAO–13–721,
                                                                                                            In comparison, under the high average                 cargo tank compartments and the size of the
                                                    September 2013, http://www.gao.gov/assets/660/          cost estimate, in all five estimated                  product piping, wetlines can contain up to 50
                                                    657755.pdf.                                             benefit scenarios the BCR at a 7 percent              gallons of product.



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                                                                      Federal Register / Vol. 80, No. 250 / Wednesday, December 30, 2015 / Proposed Rules                                                81503

                                                    they argued that data indicating                        automated purging system. Commenters                    (3) the uncertainty that such an event
                                                    damages not directly linked to wetlines                 suggest this because they believe that                will ever occur again—no data supports
                                                    damage or release should not be                         owners will invest in the automated                   the PHMSA assumption that this is a 20-
                                                    included. For example, costs associated                 system out of concern that drivers will               year event.
                                                    with damage to the CTMV from a motor                    forget to operate the manual system and
                                                                                                                                                                  E. Findings
                                                    vehicle collision should not be included                because an automated system will
                                                    in the total for purposes of the analysis.              provide the added benefit of discovery                   Although a safety hazard exists, the
                                                       PHMSA agrees that only those costs                   of a faulty emergency valve and would                 regulatory assessment and further
                                                    associated with damages to the wetline                  continue to purge the lines during                    analysis indicate that prohibiting the
                                                    and release of material from the                        transportation if such a faulty valve                 transportation of flammable liquids in
                                                    wetlines should be counted.                             were present. Details of this pricing can             wetlines is unlikely to be cost
                                                    Unfortunately, under the current format                 be found in the regulatory assessment                 beneficial. Additionally, the GAO report
                                                    of incident report information it is                    and other documents submitted to the                  has pointed out a number of
                                                    difficult to parse out the costs of                     docket for this rulemaking. PHMSA’s                   uncertainties with the data collection
                                                    wetlines-related damages from the total                 post-GAO analysis took into                           and analysis that would have a direct
                                                    body of damages where damages occur                     consideration the cost of the automated               impact on PHMSA’s ability to fully
                                                    beyond those associated with wetlines,                  system.                                               characterize the degree of risk that
                                                    unless some assumptions are made. For                      Operational delays. Many                           wetlines containing flammable liquids
                                                    instance, in the case of an incident                    commenters argued that PHMSA has not                  pose to the safety of transportation.
                                                    involving a fire, PHMSA assumed the                     accounted for delay costs to the shipper              V. Conclusion
                                                    fire was started and was propagated by                  or carrier due to operation of a purging
                                                    the wetlines release.                                   system at the loading rack of a terminal                 PHMSA is withdrawing this
                                                       Upon consideration of the comments,                  facility. The delay would be caused by                rulemaking in accordance with the
                                                    PHMSA conducted further review of the                   the driver of the CTMV waiting                        FAST Act. PHMSA, however, will
                                                    172 incidents that were initially                       anywhere from three to six minutes for                continue to examine this issue,
                                                    determined to be wetlines incidents in                  the system to complete the purging                    particularly by monitoring flammable
                                                    our preliminary analyses. Prior to this                 process prior to moving the CTMV.                     liquid wetlines incidents, in
                                                    review, PHMSA became aware that                         Commenters based this on their                        consideration of any future actions.
                                                    some of the data in our original set of                 understanding that the regulations                    Likely future actions include non-
                                                    incidents was not accurate and likely                   would not allow the vehicle to move                   regulatory initiatives to improve the
                                                    led to the critical comments. This data                 until it is essentially empty—only a                  safety of transporting flammable liquid
                                                    had since been corrected and a revised                  residue remains in the piping.                        in unprotected external product piping
                                                    list of incidents was placed in the                     Completion of the purging process                     on CTMVs.
                                                    docket (8/12/2011; PHMSA–2009–                          would be an indicator that it is empty.                 Issued in Washington, DC, on December
                                                    0303–0048). PHMSA also reviewed                            Weight penalty. PHMSA estimated                    22, 2015, under authority delegated in 49
                                                    additional CTMV incidents that                          that a manual purging system is                       CFR Part 1.97.
                                                    occurred from January 1, 2009 to March                  expected to add about 48 pounds to a                  William S. Schoonover,
                                                    31, 2011 to capture more recent data.                   CTMV. To the extent that a shipper or                 Deputy Associate Administrator.
                                                    This review resulted in a final                         carrier operates at Federal or State gross            [FR Doc. 2015–32681 Filed 12–29–15; 8:45 am]
                                                    determination of 132 wetlines incidents.                weight limits, the shipper or carrier                 BILLING CODE 4910–60–P
                                                    A total of 59 incidents where removed                   would have to ship less product because
                                                    after a review of the original 172                      of this additional weight. Commenters
                                                    incidents, and 19 incidents were added                  disagreed with the estimate that only                 DEPARTMENT OF TRANSPORTATION
                                                    after a review of more recent data.                     25% of vehicle trips are at the
                                                                                                            maximum allowable weight and                          Federal Motor Carrier Safety
                                                    2. Benefit and Cost Estimation                                                                                Administration
                                                                                                            therefore affected by the additional
                                                      Manual Purging System. Most                           weight of a purging system. Informal
                                                    commenters took issue with PHMSA’s                      surveys of carriers by the American                   49 CFR Part 393
                                                    estimation of the costs of installing a                 Trucking Association and the National                 [Docket No. FMCSA–2014–0428]
                                                    manual purging system.9 In general,                     Tank Truck Carriers found that as much
                                                    they believe PHMSA underestimated                       as 80% of trips are at the maximum                    RIN 2126–AB67
                                                    the total cost presented through                        allowable weight. Again, PHMSA’s post-
                                                    incorrect assumptions and inclusion of                  GAO analysis accounted for this.                      Parts and Accessories Necessary for
                                                    cost factors that do not reflect real-world                Yonkers, NY Incident. Commenters                   Safe Operation: Federal Motor Vehicle
                                                    applications. Commenters indicated that                 believe the Yonkers, NY incident that                 Safety Standards Certification for
                                                    PHMSA underestimated the true costs                     led to NTSB Safety Recommendation                     Commercial Motor Vehicles Operated
                                                    of a manual purging system by, for                      (H–98–27) should not be included in the               by United States-Domiciled Motor
                                                    example, not incorporating a markup                     regulatory assessment for several                     Carriers; Withdrawal
                                                    cost. Commenters provide a range of                     reasons, including:                                   AGENCY: Federal Motor Carrier Safety
                                                    cost estimates from $4,000 to $10,000.                     (1) The belief that the fire in the                Administration (FMCSA), DOT.
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                                                    Some also think the regulatory                          incident was not caused by a wetlines                 ACTION: Notice of withdrawal.
                                                    assessment should have been developed                   release because the original NTSB
                                                    using a mix of costs of the manual                      accident report concluded that the fire               SUMMARY: The Federal Motor Carrier
                                                    system and the more expensive                           was fed by fuel from the cargo tank                   Safety Administration (FMCSA)
                                                                                                            compartments, implying a breach of the                withdraws its June 17, 2015, notice of
                                                      9 PHMSA used a per-unit price of $2,300 based

                                                    on the advertised price of the one manufacturer of
                                                                                                            cargo tank;                                           proposed rulemaking (NPRM), which
                                                    purging systems currently designing and installing         (2) the incident predates the incident             would have required each commercial
                                                    such systems.                                           analysis period; and                                  motor vehicle (CMV) operated by a


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Document Created: 2015-12-30 03:15:51
Document Modified: 2015-12-30 03:15:51
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionWithdrawal of notice of proposed rulemaking.
DatesThe notice of proposed rulemaking published January 27, 2011 (76 FR 4847) is withdrawn as of December 30, 2015.
ContactDirk 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.
FR Citation80 FR 81501 
RIN Number2137-AE53

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