Tuesday, December 25, 2012

DOT Rules List

I recently did a blog post on the belated publication of the 2012 Unified Agenda by the Obama Administration and a separate look at some DHS rules that could have an impact on chemical facility security issues. Today I would like to take a brief look at the DOT Rule List for rulemakings that might impact on chemical transportation safety and pipeline safety.

There are a total of 28 such rulemakings listed in the DOT Rule List. While the vast majority come from the Pipeline and Hazardous Material Safety Administration (no surprise there) there were two rulemakings from the Federal Railroad Administration that made my shortlist; a PTC rule and a rule concerning the use of emergency escape breathing apparatus. Both of these I have previously addressed in this blog so I won’t dwell on these rules here.

New PHMSA Rules

Of the 26 PHMSA rulemakings listed in the DOT Rule List most are rules that have been making their way through the rulemaking process for quite some time and the regulated communities are well aware of their existence. There are, however, eight rulemakings that are new to the Unified Agenda and have never been officially addressed by PHMSA in the Federal Register. They are listed in the table below.

Hazardous Materials: Rail Petitions and Recommendations to Improve the Safety of Railroad Tank Car Transportation (RRR)
Proposed Rule
Hazardous Materials: Requirements for the Safe Transportation of Bulk Explosives (RRR)
Proposed Rule
Pipeline Safety: Standards for Conducting Condition Assessments of In-Service Pipelines
Proposed Rule
Pipeline Safety: Changes to the National Pipeline Mapping System Data Collection and Standards
Proposed Rule
Pipeline Safety: Miscellaneous Amendments Related to Reauthorization and Petitions for Rulemaking (RRR)
Proposed Rule
Hazardous Materials: Resumption of Transportation
Final Rule
Hazardous Materials: Temporary Reduction of Registration Fees
Final Rule
Hazardous Materials: Penalty Action Guidelines Update

Table 1: New PHMSA Rulemakings

Direct Rulemaking

I’ll discuss the last two first as they concern rules that are going directly to publication of Final Rules without going through the interim process of publishing an notice of proposed rulemaking. This is allowed under US law when the rule mainly concerns internal operations of the rulemaking agency or it has a negligible impact on the regulated community.

The first rule would modify 49 CFR §107.612 for the 2013-2014 registration period, reducing the registration fees for persons who transport, or offer for transportation, certain categories and quantities of hazardous materials. Annual adjustments to the fee structure are required to maintain the national Hazardous Materials Emergency Preparedness (HMEP) grants program. This reduction is necessary because there was an excess remaining in that fund at the end of the 2011-2-12 registration period. The Unified Agenda listing for this rule does not indicate how large a reduction is anticipated, but any reduction is apparently deemed an insignificant impact on the regulated community.

The justification for the direct rulemaking for the Penalty Action Guidelines Update is less clear. PHMSA is responding to requirements in MAP 21 (PL 112-141 §33010) to eliminate the minimum civil penalties (except for training related deficiencies) and to increase the maximum penalties for a knowing violation and a violation resulting in death, serious illness, or severe injury to any person or substantial destruction of property to $75,000 and $175,000, respectively. While a $75,000 (or $175,000) may seem to be significant (it sure does to me), since it may only be levied on violators, the argument is made that it would not have a significant effect on the regulated community as a whole.

New Hazardous Materials Rulemakings

The first of the hazardous material rulemakings would address some petitions from industry and recommendations made by the NTSB. The proposed rulemaking would:

• Identify elements of non-conformity that do not require a movement approval from the Federal Railroad Administration (FRA);

• Correct an unsafe condition associated with pressure relief valves (PRV) on rail cars transporting carbon dioxide, refrigerated liquid;

• Revise outdated regulations applicable to the repair and maintenance of DOT Specification 110, DOT Specification 106, and ICC 27 tank car tanks (ton tanks);

• Except ruptured discs from removal if the inspection itself damages, changes, or alters the intended operation of the device; and

• Enhance the standards for DOT Specification 111 tank cars used to transport Packing Group I and II hazardous materials

PHMSA expects to have an advanced notice of proposed rulemaking (ANPRM) published in the Federal Register in February 2013.

The bulk explosives rulemaking would update the HMR to reflect current special permit and competent authority rulings and are the result of petitions by industry. The revision would authorize the transportation of certain explosives, ammonium nitrate, ammonium nitrate emulsions, and other specific hazardous materials in bulk packagings for use in blasting operations on specialized vehicles, multi-purpose bulk trucks (MBTs). This is part of PHMSA’s effort to codify some long standing special permits.

PHMSA expects to publish an NPRM in July, 2013.

The final hazardous materials related rule addresses a problem with a relatively recent PHMSA rule that allows inspectors to open packagings enroute to determine if they comply with the hazmat packaging regulations. Industry has long complained about the delays in transit this causes for certain perishable items, including ratio-isotopes. This rulemaking would address the requirements of MAP 21 (§33009) to address:

• The safe and expeditious resumption of transportation of perishable hazardous material, including radio-pharmaceuticals and other medical products, that may require timely delivery due to life-threatening situations;

• The means by which non-compliant packages are placed out-of-service or the resumption of transportation of compliant packages;

• Appropriate training and equipment for inspectors; and

• The proper closure of packages in accordance with the hazmat regulations.

PHMSA expects to publish this NPRM in February, 2013.

Pipeline Safety Rulemakings

The first pipeline safety rule making would address the standards for conducting condition assessments of in-service pipelines. It would incorporate by reference existing consensus standards for assessing internal corrosion and stress corrosion cracking. PHMSA expects to have this rulemaking published in March, 2013.

The second rulemaking would address the submission of geospatial information, including the data accuracy standards for mapping, and more complete description of facilities, including elements such as:

• Pipeline diameter;
• "Smart piggability";
• Type/location of blocking valves; and
• Coating of pipe

PHMSA expects to have the NPRM for this rule published in June, 2013.

The final pipeline safety rulemaking is a catch-all rule that would make revisions based on various legislative initiatives and petitions for rulemakings. Among other things it would address:

• Renewal process for special permits;
• Cost recovery for design reviews; and
• Incident reporting

PHMSA expects to publish this NPRM in June, 2013.

Rulemaking Delays

If, as I mentioned in an earlier blog, DHS is notorious for missing deadlines, I don’t think that PHMSA has ever met a deadline. While part of that is due to the large number of rules that PHMSA has in the pipeline a greater part of the problem in bureaucratic inertia. Since January 1st 2011, PHMSA has only submitted six rules to OMB for approval, and only one of those was in 2012. With 26 rules ‘planned’ for submission in 2013, it will be remarkable if more than a handful make it to publication in the Federal Register.

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