[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Proposed Rules]
[Pages 13313-13327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5335]



[[Page 13313]]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

39 CFR Parts 172 and 177

[Docket Number PHMSA-2007-28119 (HM-247)]
RIN 2137-AE37


Hazardous Materials: Cargo Tank Motor Vehicle Loading and 
Unloading Operations

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: In this NPRM, PHMSA is proposing to amend the Hazardous 
Materials Regulations to require each person (i.e., carrier or 
facility) who engages in cargo tank loading or unloading operations to 
perform a risk assessment of the loading and unloading operation and 
develop and implement safe operating procedures based upon the results 
of the risk assessment. The proposed operational procedures include 
requirements to address several aspects of loading and unloading, 
including provisions for facilities to develop maintenance testing 
programs for transfer equipment (i.e., hose maintenance programs) used 
to load or unload cargo tank motor vehicles (CTMVs). In addition, PHMSA 
is proposing to require each employee who engages in cargo tank loading 
or unloading operations to receive training and be evaluated on the 
employee's qualifications to perform loading or unloading functions. 
PHMSA is proposing these amendments to reduce the risk associated with 
the loading and unloading of cargo tank motor vehicles that contain 
hazardous materials.

DATES: Submit comments by May 10, 2011. To the extent possible, PHMSA 
will consider late-filed comments as a final rule is developed.

ADDRESSES: You may submit comments identified by the docket number 
(PHMSA-2007-28119) by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: Docket Operations, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, Routing 
Symbol M-30, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: To Docket Operations, Room W12-140 on the 
ground floor of the West Building, 1200 New Jersey Avenue, SE., 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
    Instructions: All submissions must include the agency name and 
docket number for this notice at the beginning of the comment. Note 
that all comments received will be posted without change to the docket 
management system, including any personal information provided.
    Docket: For access to the dockets to read background documents or 
comments received, go to http://www.regulations.gov, or DOT's Docket 
Operations Office (see ADDRESSES).
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (65 FR 19477) or you 
may visit http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Kurt Eichenlaub or Dirk Der Kinderen, 
Office of Hazardous Materials Standards, (202) 366-8553, Pipeline and 
Hazardous Materials Safety Administration.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    This NPRM proposes requirements for each person (i.e., carrier or 
facility) who loads, unloads, or provides transfer equipment \1\ to 
load or unload a hazardous material to or from a cargo tank motor 
vehicle in accordance with part 177. The proposal addresses safety 
concerns raised by National Transportation Safety Board (NTSB) and 
Chemical and Safety Hazard Investigation Board (CSB) investigations, 
and PHMSA's internal review of hazardous material incident data. The 
proposal aims to reduce the overall number of hazardous material 
incidents caused by human error and equipment failures during cargo 
tank loading and unloading operations. As discussed in more detail 
throughout this document, the NPRM proposes the following requirements:
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    \1\ The phrase ``transfer equipment'' includes any device in the 
loading and unloading system that is designed specifically to 
transfer product between the internal valve on the cargo tank and 
the first permanent valve on the supply or receiving equipment 
(e.g., pumps, piping, hoses, connections, etc.).

------------------------------------------------------------------------
           Affected entities                         Proposal
------------------------------------------------------------------------
Cargo tank carriers, and facilities       Assess the risks of
 that engage in part 177 loading or       loading and unloading
 unloading operations.                    operations and develop written
                                          operating procedures.
                                          Train hazmat employees
                                          in the relevant aspects of the
                                          operational procedures.
                                          Annually qualify
                                          hazmat employees who perform
                                          loading and unloading
                                          operations.
Facilities providing transfer equipment   Develop and implement
 for cargo tank loading and unloading     a periodic maintenance
 operations under part 177.               schedule to prevent
                                          deterioration of equipment and
                                          conduct periodic operational
                                          tests to ensure that the
                                          equipment functions as
                                          intended.
                                          Ensure that the
                                          equipment meets the
                                          performance standards in part
                                          178 for specification cargo
                                          tanks.
------------------------------------------------------------------------

    The overall costs and benefits of the proposed regulations are 
dependent on the level of existing pre-compliance and the overall 
effectiveness of the proposed regulations (reduction in loading/
unloading incidents). To monetize the costs and benefits PHMSA used a 
number of assumptions to develop a base case.\2\ In aggregate, PHMSA 
estimates the mean present value of the total monetizable costs of 
these proposals (over 20 years, 7% discount

[[Page 13314]]

rate \3\) to be $18.5 million and total monetizable benefits (over 20 
years, 7% discount rate) to be $18.3 million. A summary of the expected 
annual costs and benefits is provided in the table below.
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    \2\ PHMSA's assumptions used to develop the base case are 
described in detail in the preliminary regulatory impact assessment, 
which is available for review in the docket for this rulemaking.
    \3\ Ordinarily, one important area for sensitivity analysis is 
the discount rate used for converting future values into present 
values; OMB's guidance is to use a 3-percent rate as a sensitivity 
case to the standard 7-percent rate. In this case, costs and 
benefits accrue evenly across time (i.e., at the same levels for 
each year in the 20-year analysis period) and thus the choice of 
discount rate does not affect the nature of the results.

                                          Base Case Benefits and Costs
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                                                     Discount       PV benefit
              Year                Annual benefit    factor (7%)        (7%)         Annual cost    PV cost  (7%)
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2012............................      $1,729,971            1.07      $1,616,795     $ 1,744,861     $ 1,630,711
2013............................       1,729,971            1.14       1,511,023       1,744,861       1,524,029
2014............................       1,729,971            1.23       1,412,171       1,744,861       1,424,326
2015............................       1,729,971            1.31       1,319,786       1,744,861       1,331,146
2016............................       1,729,971            1.40       1,233,445       1,744,861       1,244,061
2017............................       1,729,971            1.50       1,152,752       1,744,861       1,162,674
2018............................       1,729,971            1.61       1,077,339       1,744,861       1,086,611
2019............................       1,729,971            1.72       1,006,859       1,744,861       1,015,525
2020............................       1,729,971            1.84         940,989       1,744,861         949,089
2021............................       1,729,971            1.97         879,429       1,744,861         886,999
2022............................       1,729,971            2.10         821,897       1,744,861         828,971
2023............................       1,729,971            2.25         768,128       1,744,861         774,739
2024............................       1,729,971            2.41         717,876       1,744,861         724,055
2025............................       1,729,971            2.58         670,912       1,744,861         676,687
2026............................       1,729,971            2.76         627,021       1,744,861         632,418
2027............................       1,729,971            2.95         586,001       1,744,861         591,045
2028............................       1,729,971            3.16         547,664       1,744,861         552,378
2029............................       1,729,971            3.38         511,836       1,744,861         516,241
2030............................       1,729,971            3.62         478,351       1,744,861         482,468
2031............................       1,729,971            3.87         447,057       1,744,861         450,905
                                  ..............  ..............      18,327,332  ..............      18,485,077
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    PHMSA requests comments on the analysis underlying these estimates, 
as well as possible approaches to reduce the costs of this rule while 
maintaining or increasing the benefits. While PHMSA has concluded that 
the aggregate benefits justify the aggregate costs, under some 
scenarios, the monetizable benefits may fall short of the monetizable 
costs. PHMSA seeks comments on possible changes or flexibilities that 
might improve the rule.

II. Background

    On January 4, 2008, PHMSA published a notice (73 FR 916) to solicit 
comments and information on a set of recommended practices for loading 
and unloading operations involving bulk packagings used to transport 
hazardous materials. In that notice, PHMSA summarized incident data 
related to bulk loading and unloading operations, discussed 
recommendations issued by the NTSB and CSB, provided an overview of 
current Federal regulations applicable to bulk loading and unloading 
operations, summarized the results of a public workshop PHMSA hosted in 
June 2007, and set forth proposed recommended practices for bulk 
loading and unloading operations. PHMSA indicated its intention to 
consider strategies for enhancing the safety of bulk loading and 
unloading operations, including whether additional regulatory 
requirements may be necessary. In addition, PHMSA solicited comments on 
whether there are existing gaps or overlaps in regulations promulgated 
by PHMSA, the Occupational Safety and Health Administration (OSHA), the 
Environmental Protection Agency (EPA), and the United States Coast 
Guard (USCG) that adversely affect the safety of these operations, and 
how any identified gaps or overlaps in Federal regulations should be 
addressed.
    The proposed recommended practices set forth in the notice 
suggested that an offeror, carrier, or facility operator should conduct 
a thorough, orderly, systematic analysis to identify, evaluate, and 
control the hazards associated with specific loading and unloading 
operations and develop a step-by-step guide to loading and unloading 
that is clear, concise, and appropriate to the level of training and 
knowledge of its employees. PHMSA recommended that operating procedures 
address specific pre-loading/pre-unloading operations, loading/
unloading operations, and post-loading/post-unloading operations and 
the procedures should be reviewed as often as necessary to ensure that 
they reflect current operating practices, materials, technology, 
personnel responsibilities, and equipment. In addition, PHMSA suggested 
that the operating procedures should identify and implement emergency 
procedures (including training and drills), maintenance and testing of 
equipment, and training in the operational procedures.
    In this NPRM, PHMSA is proposing to amend the Hazardous Materials 
Regulations (HMR; 49 CFR parts 171-180) to require persons who load a 
hazardous material into, or unload a hazardous material from, a CTMV to 
develop and implement safety procedures governing such operations. 
PHMSA's review of transportation incident data and the findings of 
several NTSB and CSB accident investigations involving bulk hazardous 
materials loading and unloading operations suggest there may be 
opportunities to enhance the safety of such operations. (See Section II 
of this notice for detailed discussion). Several comments PHMSA 
received in response to our January 2008 notice generally support this 
view. PHMSA has identified a broad range of highway- and rail-specific 
loading and unloading safety issues that should be addressed through 
rulemaking. PHMSA plans to address the identified safety issues through 
separate rulemakings. PHMSA is evaluating the safety issues associated 
with rail tank car loading and unloading operations and may propose 
regulatory changes if our safety analysis concludes that such action is 
warranted.

[[Page 13315]]

III. Analysis of the Problem

A. Review of Incident Data

    In an effort to develop data to help identify and target risks 
associated with bulk loading and unloading of hazardous materials 
transported by highway and rail, PHMSA reviewed incident data submitted 
in accordance with the reporting criteria specified in Sec.  171.16 of 
the HMR. A report, ``A Summary Evaluation of Risk Associated with Bulk 
Loading/Unloading of Hazmat'' (February 8, 2007), is available in the 
docket for this rulemaking. PHMSA conducted a detailed review of 
hazardous materials transportation incidents occurring over a three-
year period (2004-06). An overarching conclusion of the review is that 
addressing risks associated with bulk loading and unloading operations 
for highway and rail transport provides an opportunity to enhance the 
safety of such operations and reduce the overall risk of serious 
incidents.
    Based on indications from the initial review of incident data, and 
following a review of comments received in response to our January 4, 
2008 notice, PHMSA conducted an additional review of serious incident 
data involving bulk loading and unloading of hazardous materials 
transported by highway and rail occurring over a five-year period 
(2003-07) (PHMSA has since updated the review to include incident data 
through 2009).\4\ PHMSA reviewed serious incidents involving hazardous 
materials in quantities of 3,000 liters or greater to identify the 
causes of the incidents and to identify common issues or problems that 
should be addressed. The analysis of the incident data suggests that 
human error is the greatest single primary cause of incidents during 
loading and unloading operations, accounting for 33% of serious 
incidents that reported a failure cause (26% of all incident reports 
reviewed). [Note that the analysis reflects failure causes reported on 
incident reports. Not all incident reports reported a failure cause and 
PHMSA did not make an assumption on the failure cause for those 
incidents where a failure cause was not indicated on the report; 
approximately 39% of the incident reports did not include a failure 
cause] During our review of incident data we noted that human error 
generally was a result of inattention to detail when performing a 
loading or unloading function; examples include failure to attend or 
monitor the operation, leaving valves in the wrong position, or 
improperly connecting hoses and other equipment. Overfilling of 
packagings or receiving tanks accounted for 25% of the incidents. 
Defective or deteriorating devices or components (e.g., valve failure, 
gasket leak) as the primary cause accounted for approximately 16% of 
serious incidents, and a variety of other causes (e.g., freezing 
temperatures, lading plugs in piping, lading/vessel incompatibility) 
accounted for the remainder. Further, a comparison of the serious 
incidents shows that the overwhelming majority involved CTMVs by 
highway; approximately 90% (615 of 680) of the serious incidents 
occurred during highway loading or unloading operations, and 
approximately 75% of those incidents involved CTMVs.
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    \4\ PHMSA analyzed incident report data contained in the 
Hazardous Materials Information System (HMIS; http://phmsa.dot.gov/hazmat/incident-report). An excel spreadsheet containing the data 
used for this analysis and a PowerPoint presentation that summarizes 
the results of the review are available in the docket for this 
rulemaking.
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    The general conclusion of the review is that the safety of bulk 
loading and unloading operations can be enhanced through targeted 
requirements such as more comprehensive training for hazmat employees 
performing a bulk loading or unloading function or more detailed 
procedures for conducting such operations. (See Section V Section-by-
Section Review for detailed descriptions of the proposed amendments in 
this notice). PHMSA seeks comments or data relevant to the accuracy of 
the conclusion that human error is the leading causal factor in CTMV 
loading and unloading incidents.
    PHMSA is proposing additional training and qualification 
requirements as a means to increase hazmat employee awareness and 
accountability while reducing on-the-job complacency. As a result, 
PHMSA expects a reduction in the number of loading and unloading 
incidents caused by human error. Significant reductions to human error 
have been recognized using similar methods in the transportation and 
medicine fields. A discussion of these findings is available in the 
Preliminary Regulatory Impact Assessment, which is available in the 
docket for this rulemaking. Further, the incident analysis suggests 
that specific safety regulations targeting the loading and unloading of 
CTMVs used for highway transportation would address the majority of 
serious loading and unloading incidents. All data used for the report 
and our additional review are available from the Hazardous Materials 
Information System (HMIS; http://phmsa.dot.gov/hazmat/library/data-stats/incidents). PHMSA is seeking comments on whether the estimated 
costs and benefits, detailed in the Preliminary Regulatory Impact 
Assessment for these proposals, provide an accurate representation of 
the expected costs and benefits of the proposed regulations. Further, 
do commenters agree that documentation of operational procedures along 
with additional hazmat employee training and qualification is the best 
way to reduce the overall number of loading and unloading incidents 
caused by human error? If not, what are some more effective approaches, 
both regulatory and non-regulatory, to reduce the overall number of 
loading and unloading incidents caused by human error?

B. NTSB Accident Investigations

    NTSB has investigated several serious accidents related to bulk 
loading and unloading operations:
    On July 14, 2001, in Riverview, Michigan, methyl mercaptan was 
released from a rail tank car during unloading, when a pipe attached to 
a fitting on the unloading line fractured and separated. The methyl 
mercaptan ignited, engulfing the tank car in flames. Fire damage to 
cargo transfer hoses on an adjacent tank car resulted in the release of 
chlorine. Three plant employees were killed in the accident, and about 
2,000 people in the surrounding neighborhood were evacuated from their 
homes. The fractured piping used for the unloading operation exhibited 
significant corrosion damage. As a result of this investigation, NTSB 
issued the following recommendations to DOT:
    [cir] I-02-1: Develop, with the assistance of the Environmental 
Protection Agency and Occupational Safety and Health Administration, 
safety requirements that apply to the loading and unloading of railroad 
tank cars, highway cargo tanks, and other bulk containers that address 
the inspection and maintenance of cargo transfer equipment, emergency 
shutdown measures, and personal protection requirements.
    [cir] I-02-2: Implement, after the adoption of safety requirements 
developed in response to Safety Recommendation I-02-1, an oversight 
program to ensure compliance with these requirements.
    On September 13, 2002, in Freeport, Texas, a tank car containing 
about 6,500 gallons of hazardous waste ruptured at a transfer station. 
The car had been steam-heated to permit the transfer of the waste to a 
CTMV for subsequent disposal. As a result of the accident, 28 people 
received minor injuries, and residents living within one mile of the

[[Page 13316]]

accident site had to shelter-in-place for 5\1/2\ hours. The tank car, 
highway cargo tank, and transfer station were destroyed. The force of 
the explosion propelled a 300-pound tank car dome housing about \1/3\ 
mile away from the tank car. Two storage tanks near the transfer 
station were damaged; they released about 660 gallons of the hazardous 
material oleum (fuming sulfuric acid and sulfur trioxide). As a result 
of its investigation, NTSB issued the following recommendation to 
PHMSA:
    [cir] R-04-10: In cooperation with the Occupational Safety and 
Health Administration and the Environmental Protection Agency, develop 
regulations that require safe operating procedures to be established 
before hazardous materials are heated in a railroad tank car for 
unloading; at a minimum, the procedures should include the monitoring 
of internal tank pressure and cargo temperature.

C. CSB Accident Investigations

    CSB has investigated two incidents in which chlorine was released 
during rail tank car unloading operations:
    On August 14, 2002, in Festus, Missouri, approximately 24 tons of 
chlorine were released during a three-hour period following the rupture 
of an unloading hose. The magnitude of the incident was exacerbated 
because the emergency shutdown system failed to operate properly. Three 
residents were admitted to the hospital, and hundreds of residents were 
evacuated or asked to shelter-in-place.
    On August 11, 2005, in Baton Rouge, Louisiana, a chlorine transfer 
hose ruptured. However, the emergency shutdown system operated 
properly, and the release ended in under a minute. The successful 
activation of the emergency shutdown system prevented a major release 
and off-site impact. As a result of its investigations, CSB issued 
recommendation 2006-06-I-LA-RI to DOT to:

    Expand the scope of DOT regulatory coverage to include chlorine 
rail car unloading operations. Ensure the regulations specifically 
require remotely operated emergency isolation devices that will 
quickly isolate a leak in any of the flexible hoses (or piping 
components) used to unload a chlorine rail car. The shutdown system 
must be capable of stopping a chlorine release from both the rail 
car and the facility chlorine receiving equipment. Require the 
emergency isolation system be periodically maintained and 
operationally tested to ensure it will function in the event of an 
unloading system chlorine leak.

    Other accidents illustrate that loading and unloading operations 
involving CTMVs can also have catastrophic consequences. For example, 
on October 6, 2007, at a foundry in Tacoma, Washington, a delivery 
driver took an improperly repaired fill hose and began to unload the 
gas from his 8,000-gallon tanker truck. In less than a minute, the hose 
detached from its connection to the truck's tank, which allowed propane 
gas to rapidly flow from the open valve and fill the air with the 
explosive gas; the liquefied petroleum (LP) gas ignited and the first 
explosion engulfed the truck and fill area. Eight minutes later, the 
heated tanker truck exploded in a huge fireball witnessed by hundreds 
of people in the area and heard up to a mile away. The truck driver was 
fatally injured. The accident investigation found that workers had 
improperly repaired the foundry's damaged LP-gas fill hose, attaching 
the fill nozzle using fasteners that were not designed to withstand 
pressurized gas. The Washington State Department of Labor and 
Industries cited the company for three serious violations of workplace 
safety and health regulations that contributed to the explosion.

IV. Comments on January 2008 Notice and Measures Being Considered for 
Adoption

    In response to PHMSA's January 4, 2008 notice, PHMSA received 
comments from the following organizations and individuals:

 ACCU CHEM Conversion, Inc. (Accu Chem)
 American Chemistry Council (ACC)
 American Gas Association (AGA)
 American Petroleum Institute (API)
 American Trucking Associations (ATA)
 Arkema, Inc.
 Association of American Railroads (AAR)
 Daniel Roe
 Dangerous Goods Advisory Council (DGAC)
 Distrigas of Massachusetts LLC (Distrigas)
 DuPont Global Logistics (DuPont)
 Independent Liquid Terminals Association (ILTA)
 Institute of Makers of Explosives (IME)
 National Association of SARA Title III Program Officials 
(NASTTPO)
 National Association of Chemical Distributors (NACD)
 National Association of State Fire Marshals (NASFM)
 National Grid
 National Propane Gas Association (NPGA)
 National Tank Truck Carriers, Inc. (NTTC)
 National Transportation Safety Board (NTSB)
 New York State Department of Environmental Conservation 
(NYSDEC)
 Oklahoma Hazardous Materials Emergency Response Commission 
(OHMERC)
 The Chlorine Institute, Inc. (CI)
 The Dow Chemical Company (Dow)
 U.S. Chemical Safety and Hazard Investigation Board (CSB)
 Utility Solid Waste Activities Group (USWAG)

    Some of the comments are discussed as they relate to the measures 
PHMSA is considering in this NPRM to enhance the safety of loading and 
unloading bulk packagings.

A. Operating Procedures

    Most commenters support adoption in the HMR of procedures governing 
loading and unloading of bulk packagings as the best way to enhance the 
safety of such operations. ACC states, ``[s]uccessfully enhancing 
safety depends on there being an enforceable Federal rule on the 
loading and unloading of bulk hazmat shipments in the truck and rail 
modes.'' NTSB supports incorporation of the recommended practices into 
the HMR:

    [T]he proposed recommended practices for the bulk loading and 
unloading of hazardous materials are comprehensive and 
satisfactorily address [safety deficiencies]. Implementation of and 
compliance with the proposed recommended practices by carriers, 
shippers, and consignees of hazardous materials transported in tank 
cars, cargo tanks, and other bulk containers will significantly 
improve the safety of loading and unloading of hazardous materials 
transported in bulk.

    ACC, Arkema, DGAC, DuPont, and IME support regulatory requirements 
governing loading and unloading of bulk packagings, but recommend the 
adoption of a set of operating procedures proposed by the Interested 
Parties for Hazardous Materials Transportation (Interested Parties) and 
submitted to PHMSA as a petition for rulemaking by DGAC. IME states, 
``[w]e do not believe that the `recommended practices' published in the 
[January 4, 2008 notice] are as comprehensive as those developed by the 
Interested Parties * * * PHMSA's recommended practices do not address, 
for example, incidental storage or security.''
    PHMSA agrees with commenters on the need to implement regulations 
governing the loading and unloading of bulk transport tanks. PHMSA's 
review of incident data involving tanks with a capacity of 3,000 liters 
or greater revealed that 90% of the incidents occur by highway, and 
nearly all of those incidents involve cargo tank motor

[[Page 13317]]

vehicles. PHMSA also notes that there are unique operational 
differences between loading and unloading operations conducted by 
highway and rail (types of equipment, operating environments, 
techniques, access, training, etc.). Therefore, PHMSA is limiting the 
scope of the proposals in this rulemaking to CTMVs. Safety issues 
related to loading and unloading by rail continue to be evaluated and 
may be addressed in a future rulemaking action. PHMSA believes a 
regulatory approach that targets the primary causes of loading and 
unloading incidents involving cargo tank motor vehicles is the most 
cost beneficial approach. Security and incidental storage of bulk 
transport tanks are beyond the scope of this rulemaking action.
    Two commenters oppose adoption of regulations governing loading and 
unloading of bulk packagings. ILTA suggests that ``it is unnecessary to 
either proceed with issuing the proposal as a recommended practice or 
to move forward with a rulemaking. Our position is based on: (1) 
Existing regulations that presently address each [recommended 
practice]; (2) jurisdictional conflict * * * ; and (3) cost-benefit 
considerations.'' ILTA suggests that other Federal agencies, 
particularly EPA, currently regulate loading and unloading operations 
and that adoption by PHMSA of its proposed recommended practices would 
result in ``redundancy of enforcement authority with regard to loading 
operations that is neither necessary nor warranted.'' ILTA also 
suggests that ``the benefits of implementing [the recommended 
practices] would be minimal.'' Accu Chem states that most hazardous 
materials facilities have implemented procedures governing loading and 
unloading operations and that the real problem is inadequate training. 
``It is [Accu Chem's] opinion that the best way to minimize complacency 
in the work place is by constant bombardment of wide[ly] accepted 
industry practices. By this [we] mean new hire training, monthly safety 
meetings, and yearly refresher training.''
    PHMSA disagrees with the commenter's assertion that rulemaking is 
unnecessary. PHMSA's incident analysis indicates that there are loading 
and unloading safety risks that could be reduced by implementing 
additional loading and unloading regulations.
    PHMSA does agree with the commenter that additional training is 
necessary to reduce the safety risks associated with CTMV loading and 
unloading. PHMSA has modified its approach to addressing loading and 
unloading safety issues. In this NPRM, PHMSA is proposing targeted 
requirements to address safety issues identified through the incident 
analysis discussed earlier in this notice. PHMSA is proposing 
additional training and qualification requirements for hazmat employees 
who engage in CTMV loading and unloading operations. The proposal 
includes a requirement for annual qualification for hazmat employees 
who perform CTMV loading and unloading operations. PHMSA coordinated 
this proposal with EPA and does not believe that any of the proposals 
in this notice would create redundant enforcement authority or conflict 
with existing EPA regulations.
    API, NACD, and NPGA express concern that both the recommended 
practices set forth in our January 4, 2008 notice and the operational 
procedures proposed by the Interested Parties may be too prescriptive. 
These commenters recommend that PHMSA develop a broad performance 
standard that accommodates existing standards and regulations already 
in widespread use by the regulated community. NACD suggests the 
adoption of a rule that establishes hazard level-based performance 
standards rather than prescriptive requirements. For example, NACD 
expresses concern that the elements outlined in the DGAC November 17, 
2007 petition for rulemaking ``are too prescriptive and would not be 
appropriate for all situations. In addition, requirements that are too 
prescriptive might not recognize that many elements are already covered 
by other existing laws and regulations.''
    PHMSA has modified its approach to addressing loading and unloading 
safety issues in this rulemaking action. The proposals in this notice 
are intended to be performance based and flexible to allow persons to 
develop operational procedures unique to their industry and operating 
environment. Further, PHMSA recognizes that existing industry standards 
may address many of the proposals in this notice. Therefore, existing 
standards and procedures may be used to comply with the regulations 
proposed in this notice.
    ATA and NTTC contend that the adoption of regulations governing 
loading and unloading of bulk packagings ``has the potential to create 
additional liability for motor carriers and to erode the regulatory 
uniformity necessary for carrier[s] to operate in compliance with the 
HMR.'' These commenters note that a typical truck driver serves dozens 
or even hundreds of facilities each year, and requiring motor carriers 
to train drivers on each facility's loading and unloading practices is 
impractical. ATA states that, ``[i]t is critically important that PHMSA 
not choose a path forward that allows each facility to enact unique 
operating requirements and simultaneously holds motor carriers legally 
responsible for mastering the nuances contained in each facility's 
operating procedures.'' (Emphasis in original.)
    PHMSA understands the concerns presented by the commenters. In this 
notice, PHMSA is proposing requirements that would apply to operators 
of facilities that actively engage in loading and unloading operations 
(e.g., provide equipment such as hoses to the carrier for loading or 
unloading) in addition to the motor carriers. Further, PHMSA recognizes 
that many carriers may not be trained in the operational procedures 
unique to certain facilities. Therefore, PHMSA is proposing that the 
facility operators take on responsibility for communicating any unique 
operating requirements to the carrier prior to loading or unloading. In 
addition, if the facility operator provides employees or equipment to 
the carrier for loading or unloading operations, then it is PHMSA's 
intent that the facility operator share responsibility for the safety 
of the loading or unloading operation.

B. Procedures Recommended by the Interested Parties

    ACC, DGAC, DuPont, IME, and NACD advocate incorporating into the 
HMR operating procedures proposed by the Interested Parties, an 
informal association of shippers, carriers, and industrial package 
organizations. DGAC submitted a petition, on behalf of the Interested 
Parties, to incorporate the procedures into the HMR. Their procedures 
address the loading, unloading, and incidental storage of hazardous 
materials in bulk packagings having a capacity greater than 3,000 
liters. The scope of their procedures is limited to bulk packagings 
with capacities greater than 3,000 liters on the basis that: (1) PHMSA 
already uses this capacity as an upper limit for intermediate bulk 
containers; (2) packagings up to 3,000 liters are handled very much 
like non-bulk packagings in that they are not loaded or unloaded in the 
same manner or locations as rail tank cars and CTMVs; and (3) the 3,000 
liter capacity threshold is sufficient to ensure that the bulk 
packagings of primary concern to PHMSA and NTSB (e.g., rail tank cars, 
CTMVs, portable tanks) are covered.
    The operating procedures developed and proposed by the Interested 
Parties specify information and processes that offerors, consignees, or 
transloading

[[Page 13318]]

facility operators must address. Some key elements include procedures 
applicable to pre-transfer operations (e.g., securement of the 
transport vehicle against movement), transfer operations (e.g., 
monitoring the temperature of the lading), post-transfer operations 
(e.g., evacuation of the transfer system and depressurization of the 
containment vessel), storage incidental to movement (e.g., monitoring 
for leaks and releases), and emergency procedures (e.g., use of 
emergency shutdown systems). However, other commenters, including NACD, 
suggest that the operating procedures proposed by the Interested 
Parties ``are too prescriptive and would not be appropriate for all 
situations.'' These commenters support adoption of risk-based 
performance standards rather than prescriptive requirements.
    PHMSA commends the Interested Parties for their efforts to develop 
consensus-based loading and unloading procedures. However, at present, 
PHMSA finds more persuasive the view of those commenters who suggest 
that those procedures may not be appropriate for all companies and all 
situations. Accordingly, PHMSA's approach is to consider measures that 
are mode-specific to account for operating differences in the highway 
and rail modes. Safety of rail loading and unloading operations may be 
addressed in a separate future rulemaking action. In addition, in this 
notice, PHMSA is considering a more flexible regulatory regime than 
that proposed by the interested parties to permit companies to adapt 
operating procedures to site-specific and material-specific safety 
concerns. Note that PHMSA used the operating procedures proposed by the 
Interested Parties as a baseline in developing the amendments proposed 
in this NPRM. These proposed amendments cover most of the areas 
specified in their proposal. However, PHMSA has modified the proposal 
to target specific loading and unloading safety risks identified 
through the incident analysis discussed earlier in this notice.

V. Proposal

    Based on comments received in response to the January 2008 notice 
and analysis of the safety risks posed by bulk loading and unloading 
operations involving CTMVs, in this NPRM, PHMSA proposes to require 
persons who load or unload cargo tanks to develop and implement 
operating procedures governing these operations. PHMSA agrees with 
those commenters who suggest that a regulatory requirement for the 
development and implementation of operating procedures will be more 
effective in reducing risks than issuance of a set of recommended 
practices or procedures. PHMSA believes that a regulatory approach 
would establish a uniform safety standard that ensures safety and 
accountability of all persons who engage in CTMV loading and unloading 
operations. As a result, PHMSA expects a reduction in the overall 
number of loading and unloading incidents, particularly for those 
companies who do not already implement the safety practices proposed in 
this notice. PHMSA is seeking comments on whether there are better 
alternatives, regulatory or non-regulatory, that would adequately 
address the loading and unloading safety issues identified in this 
notice.
    Currently, the HMR require each hazmat employee to receive 
function-specific training at least once every three years. Function-
specific training includes training in the specific job functions that 
the hazmat employee is responsible for performing, including 
regulations applicable to loading and unloading. In this NPRM, PHMSA 
proposes to require each hazmat employer who loads or unloads hazardous 
materials from a cargo tank to ensure that the hazmat employees 
conducting such operations are trained and qualified. PHMSA is 
proposing to require operators to develop and implement a qualification 
program that provides ongoing year-round training, including practice 
sessions, drills, supervisor observation, and other mechanisms to 
identify and correct problems or errors that could lead to an incident. 
Under this proposal, at minimum, persons who engage in loading and 
unloading operations would have to be qualified by their employer at 
least once each year. Hazmat employers would be required to document 
that each hazmat employee has been trained and qualified on an annual 
basis. The costs and benefits of this proposed requirement are 
discussed in detail in the Preliminary Regulatory Impact Assessment, 
which is available in the docket for this rulemaking. PHMSA is seeking 
comment on the accuracy of the estimated costs and benefits of such a 
training and qualification program, and whether commenters agree that 
this type of qualification program would effectively reduce the overall 
number of loading and unloading incidents caused by human error.

VI. Section-by-Section Review

Part 172

Training and Qualification
    The proposed recommended practices in PHMSA's January 2008 notice 
included a section on training, emphasizing that personnel involved in 
loading and unloading and emergency response operations need to know 
and understand their specific responsibilities during loading and 
unloading operations, including attendance or monitoring 
responsibilities. Several commenters (NPGA, IME, DGAC) suggest that the 
recommended training requirements are unnecessary because training for 
hazardous materials employees is already addressed in Subpart H of Part 
172 of the HMR. Two commenters (Dow, Accu Chem) support the training 
provisions. ``It only makes sense to make DOT refresher training a 
yearly requirement in step with EPA and OSHA * * * [T]he best way to 
minimize complacency in the workplace is by constant bombardment of 
widely excepted [sic] industry practices.'' (Accu Chem)
    As discussed in detail above, PHMSA's analysis of loading and 
unloading accidents suggests that human error is a significant causal 
factor. PHMSA agrees with Accu Chem that ``constant bombardment'' may 
help to change the safety culture and eliminate complacency in a way 
that periodic training requirements cannot. Therefore, in this NPRM, 
PHMSA proposes a new approach to training and qualification. PHMSA is 
proposing to require companies subject to the requirements in this NPRM 
to develop a training plan and a qualification program that provide 
ongoing training, reinforcement of that training, and periodic 
evaluation of employees who perform loading and unloading tasks. The 
training and qualification program should include routine practice 
sessions, drills, supervisor observation, quality control groups, and 
other mechanisms to identify and correct problems or errors that could 
lead to incidents. In particular, such programs should include 
mandatory refresher training and evaluation after releases or ``close-
calls''--events that could have led to a release of a hazardous 
material. Under the proposed amendments, the employer would be 
responsible for developing and implementing the training and 
qualification program. The employer would be required to maintain 
training records and provide recurrent training for each of its 
employees, at least once every three years, in

[[Page 13319]]

accordance with the training requirements in Part 172, Subpart H. In 
addition, the employer must annually evaluate and certify that 
employees who engage in loading, unloading, or transloading operations 
are satisfactorily qualified to do so. An employer may not certify that 
an employee is qualified until that person demonstrates that they can 
successfully perform the loading or unloading operation in accordance 
with the employer's operational procedures. Certification must be 
documented in the employee's training record along with the date of 
certification. PHMSA is seeking comment on the additional training and 
qualification requirements proposed herein. More specifically, PHMSA is 
asking commenters to provide input as to what should be included in the 
additional training and qualification requirements, and the associated 
costs and benefits of the proposed training and qualification 
requirements. In addition, PHMSA is seeking information on how many 
hazmat employers are currently practicing annual qualification programs 
that include similar elements to those proposed in this notice.
    The use of formalized and documented procedures, safety checklists, 
and additional training will reduce loading/unloading errors, resulting 
in a reduction in the number and severity of incidents of these types. 
The magnitude of the impact will vary from industry to industry and 
from firm to firm. An example from Great Britain is the public-private 
Safer Port Initiative, which achieved a 22 percent overall reduction in 
serious accidents at maritime freight facilities through the use of 
standardized guidance and safety audits.\5\ (Other fields, such as 
medicine, have seen even more dramatic results, with relatively simple 
interventions such as written checklists leading to reductions in human 
error of 66 percent or more.\6\) Numerous industry associations in the 
U.S. have also promoted the use of standardized procedures and 
checklists in hazardous materials transportation. For example, the 
Chlorine Institute requires its member companies to use a standardized 
checklist for bulk handling of chlorine.\7\ Although these practices 
are believed to yield safety benefits, no quantitative estimates of 
their effects in the cargo tank loading/unloading context are 
available. PHMSA is seeking comments on the overall effectiveness of 
safety training and employee qualification programs in the hazardous 
materials transportation industry. More specifically, PHMSA is seeking 
data and information that could be used to better estimate the amount 
of human error reduction that could be expected from implementing the 
additional training and qualification requirements proposed in this 
notice.
---------------------------------------------------------------------------

    \5\ Safer Ports Initiative, http://www.saferports.org.uk/spi_1.
    \6\ Pronovost, Peter, Dale Needham, Sean Berenholtz, David 
Sinopoli, Haitao Chu, Sara Cosgrove, Bryan Sexton, Robert Hyzy, Gary 
Roth, Joseph Bander, John Kepros, and Christine Goeschel. ``An 
Intervention to Decrease Catheter-Related Bloodstream Infections in 
the ICU.'' New England Journal of Medicine 355.26 (2006): 2725.
    \7\ Chlorine Institute, Inc., ``Dear Chlorine User'' letter, 
July 22, 2008.
---------------------------------------------------------------------------

Section 177.831

A. General Applicability
    In this NPRM, PHMSA proposes to add a new section (Sec.  177.831) 
to Subpart B of Part 177 to address loading and unloading procedures 
for cargo tanks. Based on comments received in response to PHMSA's 
January 4, 2008, notice and analysis of the safety risks associated 
with loading and unloading of bulk packagings, PHMSA is proposing 
requirements for each person (facility or carrier) who loads or unloads 
cargo tanks to perform a risk assessment and develop and implement 
operating procedures, based upon the results of the risk assessment, 
governing these operations. Due to distinct differences in loading and 
unloading operations conducted by rail and highway, PHMSA is planning 
to address rail loading and unloading operations in a separate 
rulemaking.
    The proposed cargo tank loading and unloading procedures are based 
on the proposed recommended practices published in PHMSA's January 2008 
notice. PHMSA's intention is to establish a performance standard for 
assessing safety risks and implementing measures to address those 
risks, allowing sufficient flexibility to accommodate unique or site-
specific operating conditions.
    The proposed requirements in the new Sec.  173.831 would apply to 
facilities that conduct loading operations or provide transfer 
equipment to the motor carrier for loading and unloading, and motor 
carriers who conduct loading and unloading operations. As one commenter 
suggests, ``Unlike an employee at a fixed facility that can be trained 
on the detailed operations of that facility, the typical truck driver 
services dozens or even hundreds of different facilities each year. * * 
* [F]or non-standardized chemical deliveries, the facility operator 
must play an active role in helping to ensure that the facility's 
operating procedures are followed.'' (ATA) PHMSA agrees. To address the 
issues highlighted in the ATA and NTTC comments, PHMSA is proposing 
adoption of operating procedures that would differentiate between 
operating procedures for the loading and unloading of CTMVs conducted 
at facilities and assisted by facility personnel and those conducted by 
motor carrier personnel. The proposed regulations in this notice would 
require facilities that have unique operating procedures to communicate 
those procedures to the motor carrier through direct supervision, 
written instruction, or training programs designed to provide the motor 
carrier with sufficient knowledge and experience to perform the loading 
or unloading operation in accordance with the facility's operating 
procedures. PHMSA notes that, in many cases, motor carriers and 
facilities share responsibility for loading or unloading hazardous 
materials (e.g., a motor carrier uses a hose provided by a facility to 
unload the contents of a cargo tank into the facility's storage tanks). 
Therefore, motor carriers and facility operators should work together 
to ensure that loading or unloading procedures and equipment are safe 
and compatible.
    The proposed requirements in the new Sec.  172.831 also address 
cargo tank loading and unloading operations conducted solely by motor 
carrier personnel. As indicated above, for loading and unloading 
operations conducted at facilities, the facility operator has primary 
responsibility for compliance with the operating procedure requirements 
proposed in this NPRM. Frequently, however, a motor carrier will 
deliver and unload hazardous materials at a residence, business, or 
other venue where primary responsibility for the safety of the transfer 
operation belongs to the motor carrier. Examples include deliveries of 
fuel oil or propane to residences or businesses, or gasoline to local 
gas stations. As proposed in this NPRM, a motor carrier's 
responsibility for developing loading and unloading procedures extends 
to the CTMV and associated equipment, attachments, and appurtenances. 
Thus, for a loading or unloading operation that takes place at a 
facility and is supervised by facility personnel, the motor carrier 
must conduct a risk assessment and develop operating procedures that 
are specific to the cargo tank involved in the transfer operation. A 
similar proposal in this notice applies for loading or unloading 
operations at locations where the motor carrier is primarily 
responsible for the safety of the transfer operation, such as at a 
business or residence. For example,

[[Page 13320]]

a motor carrier that delivers and unloads propane at a residence must 
conduct a risk assessment for such operations. The motor carrier need 
not conduct a separate risk assessment of each residence or retail 
outlet (i.e., gas station) to which it delivers propane or gasoline, 
but may instead assess the overall risk of such operations and develop 
operating procedures that apply generally to such operations.
    PHMSA is not proposing requirements for other bulk packagings such 
as portable tanks or intermediate bulk containers (IBCs) in this 
rulemaking. PHMSA agrees with the comment submitted by NACD, which 
states, ``[t]he data on the most serious loading and unloading 
incidents seems to implicate packagings over 3,000 liters. * * * The 
Hazardous Materials Interested Parties Working Group chose a limit of 
3,000 liters based upon the fact that most packagings smaller than that 
are not loaded and unloaded using pumping equipment and are not loaded 
while on the transport vehicle.'' The agency's assessment of the safety 
risks associated with loading and unloading operations suggests that 
loading and unloading operations involving large-capacity containers 
(e.g., cargo tanks) pose more significant risks, based on the quantity 
of material being handled and the potential consequences of a release, 
than smaller packages and containers.
B. Risk Assessment and Operating Procedures
    PHMSA agrees with commenters who suggest that a regulatory 
requirement for the development and implementation of operating 
procedures will be more effective in reducing risks than the issuance 
of a set of recommended practices or procedures. A regulatory approach 
provides a uniform set of safety requirements, provides a mechanism for 
accountability through compliance inspections, and levels the 
competitive playing field by requiring all companies engaged in hazmat 
loading and unloading operations to meet the same minimum set of safety 
regulations.
    The operating procedures would be based on a systematic assessment 
of the risks associated with the specific loading or unloading 
procedure and would, at a minimum, consider: the characteristics and 
hazards of the material to be loaded or unloaded; measures necessary to 
ensure safe handling of the material; and conditions that could affect 
the safety of the operation, including access control, lighting, 
ignition sources, physical obstructions, and weather conditions. The 
operating procedures would address pre-loading or pre-unloading 
procedures, loading or unloading procedures, emergency management, 
post-loading or post-unloading procedures, and maintenance and testing 
of equipment. These measures would include general requirements for an 
operating procedure's components, rather than a prescriptive list of 
specific items that should be included, resulting in a performance 
standard that would provide operators with the flexibility necessary to 
develop operating procedures addressing their individual situations and 
operations. Accordingly, each operating procedure would be different 
because it would be based on an operator's individualized assessment of 
the safety risks associated with the specific hazardous materials it 
ships or transports and its own circumstances and operational 
environment. PHMSA is seeking comments on whether the general 
components of an operational procedure proposed in this notice would 
adequately address safety risks while providing enough flexibility to 
address individual situations and environments.
    PHMSA is proposing to require facilities that perform loading or 
unloading operations or provide transfer equipment to the motor carrier 
for loading or unloading operations to ensure that the carrier is 
either (a) supervised or assisted by a facility employee who is trained 
on the operating procedures, or (b) provided with written instructions 
on how to conduct the loading or unloading operation in accordance with 
the facility's unique operating procedures. To provide flexibility, a 
facility need not provide supervision or written instructions if the 
motor carrier has sufficient knowledge to perform the loading or 
unloading operation in accordance with the facility's operating 
procedures. ``Sufficient knowledge'' may include formal or on-the-job 
training in the operating procedures of a particular facility, or 
significant experience performing loading or unloading operations in 
accordance with the operating procedures of a particular facility. The 
term ``transfer equipment'' includes any device in the loading and 
unloading system that is designed specifically to transfer product 
between the internal valve on the cargo tank and the first permanent 
valve on the supply or receiving equipment (e.g., pumps, piping, hoses, 
connections, etc.). As proposed in this notice, by providing ``transfer 
equipment'' for a loading or unloading operation, the facility would 
share responsibility with the carrier for ensuring the integrity of the 
equipment, that it is compatible with the tank and the material, and 
that the carrier has sufficient knowledge to perform the loading or 
unloading operation in accordance with facility operating procedures. 
PHMSA is seeking comment on whether this requirement would facilitate 
better communication between facility operators and carrier personnel, 
thus reducing the overall risk of an incident during loading or 
unloading operations. Further, PHMSA is seeking comments and 
information on the overall number of facilities that actually provide 
equipment, such as hoses, personnel, or instruction to carriers for 
loading or unloading operations performed at those facilities. Should 
PHMSA implement regulations applicable to facility operators that 
provide transfer equipment, or actively engage in CTMV loading or 
unloading operations?
    PHMSA is proposing to require the risk assessment and operating 
procedures to be in writing and a copy maintained on the motor vehicle, 
or for facilities the principal place of business (i.e., office at the 
facility where loading and unloading operations are conducted), for as 
long as the operating procedures remain in effect.
    The operating procedures must be accessible at or through the 
principal place of business and must be made available, upon request, 
to an authorized official of a Federal, state, or local government 
agency at reasonable times and locations. At a minimum, the proposed 
operating procedures must cover:
    (1) Pre-loading or -unloading procedures to ensure the integrity of 
the cargo tank and associated transfer equipment, prepare the cargo 
tank and equipment for the transfer operation, and verify the vessel 
into which the material is to be transferred;
    (2) Loading or unloading procedures for monitoring the transfer 
operation;
    (3) Procedures for handling emergencies;
    (4) Post-loading or -unloading procedures to ensure that all 
transfer equipment is disconnected and all valves and closures are 
secured;
    (5) Facility oversight of carrier personnel; and
    (6) Design, maintenance, and testing of equipment.
    PHMSA is soliciting comments on the proposed documentation 
requirements for the operational procedures. Should facilities be 
required to document their loading and unloading operating procedures? 
If so, are the minimum requirements for documenting risk assessments 
and operational procedures appropriate and flexible enough to

[[Page 13321]]

apply to all types of loading and unloading operations? Would 
documented loading and unloading procedures ensure compliance and 
improve the overall safety of loading and unloading operations? Would 
regulated entities incur documentation costs to develop and maintain 
risk assessments and operational procedures? If so, what is a fair 
estimate of the potential costs?
    For each component of the operating procedures, PHMSA is proposing 
that the procedures include measures to address particular risks to 
safety. For example, pre-loading and -unloading procedures must include 
measures to ensure that the cargo tank and transfer equipment are free 
of defects, leaks, or other unsafe conditions; secure the tank; and 
verify that the material is being transferred into the appropriate 
packagings or containment vessels. Similarly, loading and unloading 
procedures must include measures to initiate and control lading flow; 
monitor the temperature of the material being transferred and the 
pressures of the vessels involved in the process; monitor filling 
limits; and terminate lading flow.
    PHMSA has a particular concern for cargo tank loading and unloading 
operations that utilize a hose provided by the facility at which the 
operation takes place rather than the hose that is carried on a cargo 
tank motor vehicle. The HMR require operators of MC 330, MC 331, and 
non-specification cargo tanks used for the transportation of liquefied 
compressed gases to implement a comprehensive hose maintenance program 
that includes monthly visual inspections, annual leakage tests, and 
pressure testing of new and repaired hose assemblies (see Sec.  
180.416). Further, the HMR require the operator to visually inspect the 
hose prior to initiating the unloading operation and after the 
operation is complete. The operator may not use a hose found to have 
any of the following conditions: (1) Damage to the hose cover that 
exposes the reinforcement; (2) wire braid reinforcement that has been 
kinked or flattened so as to permanently deform the wire braid; (3) 
soft spots when not under pressure, bulging under pressure, or loose 
outer covering; (4) damaged, slipping, or excessively worn hose 
couplings; or (5) loose or missing bolts or fastenings on bolted hose 
coupling assemblies.
    PHMSA is concerned that facility hoses may not be maintained to the 
standard established under the HMR (see piping and hose requirements in 
Sec. Sec.  173.345-9, 178.337-9, and 180.416). The 2007 accident in 
Tacoma, Washington, described above, demonstrates the serious safety 
problems that can result from the use of a damaged or improperly 
repaired hose for unloading operations. Therefore, in this NPRM, PHMSA 
is proposing to require facilities that provide transfer equipment that 
is connected directly to CTMVs and used to load or unload product from 
the tank, to implement maintenance and inspection programs consistent 
with existing standards for hoses carried aboard CTMVs. At a minimum, 
the operational procedure must include a hose maintenance program. 
Further, PHMSA is proposing to require the operator of the CTMV to 
conduct a visual examination of the facility equipment being used for 
the loading or unloading operation to identify any obvious defects that 
could substantially impact the safety of the loading or unloading 
operation, because the vehicle operator must not commence a loading or 
unloading operation using equipment that is found to have any readily 
apparent defect. Note that the operator of the motor vehicle is not 
expected to use instruments or take extraordinary actions to check 
components not readily visible. The operator of the transport vehicle 
may rely on information provided by the facility to determine that the 
transfer equipment meets the appropriate specifications, is of sound 
quality, has been properly tested and maintained, and is compatible 
with the material.
C. Relationship to Other Federal, State, or Industry Standards
    PHMSA is proposing a paragraph Sec.  177.831(c) to address the 
relationship of the proposed requirements for loading and unloading 
risk assessments and operating procedures to other Federal or state 
regulatory requirements. As discussed above, both OSHA and EPA regulate 
operations involving the handling of hazardous materials at fixed 
facilities.
    For example, OSHA's Process Safety Management (PSM) standard (29 
CFR 1910.119) contains requirements for processes that use, store, 
manufacture, handle, or transport particular chemicals on-site. Bulk 
loading and unloading operations involving PSM-covered chemicals are 
subject to the requirements of the PSM standard. The PSM standard 
requires employers to compile process safety information (PSI) to 
enable employers and employees to identify and understand the hazards 
of the process. The PSI must include: (1) Physical and reactivity data 
of the highly hazardous chemicals in the process; (2) safe upper and 
lower limits of the process such as temperatures, pressures, flows and 
compositions; and (3) an evaluation of the consequences of deviation. 
Using the PSI, employers must perform a process hazard analysis to 
systematically identify, evaluate, and control the hazards of the 
process. After an employer completes a process hazard analysis, the 
employer must develop and implement written operating procedures 
providing clear, written instructions for safe operations of a process, 
including loading and unloading operations to or from bulk containers 
(see 29 CFR 1910.119(f)). After the procedures are developed, each 
employee (including contract employees) involved in loading and off-
loading operations must be trained in accordance with 29 CFR 
1910.119(g) in an overview of the process and the procedures required.
    The OSHA standards also include requirements for the handling and 
storage of specific hazardous materials, such as compressed gases, 
flammable and combustible liquids, explosives and blasting agents, 
liquefied petroleum gases, and anhydrous ammonia. For example, the OSHA 
standard at 29 CFR 1910.106, Flammable and combustible liquids, 
contains requirements for storage of these liquids, including among 
others, requirements for grounding and bonding during transfer 
operations and controlling ignition sources, such as static 
electricity. Specifically, 29 CFR 1910.106(f), Bulk plants, contains 
requirements for workplaces that receive flammable and combustible 
liquids by rail tank car and cargo tank motor vehicle. These bulk 
plants store or blend the flammable and combustible liquids for 
subsequent distribution by various modes of transportation, including 
rail tank cars. The standard at 29 CFR 1910.106(f) also contains 
specific provisions for loading and unloading facilities. Additionally, 
the OSHA standard at 29 CFR 1910.120, Hazardous waste operations and 
emergency response, establishes requirements for emergency response 
operations. When there is a release of a hazardous substance, or a 
substantial threat of a release, then emergency response operations 
must comply with 29 CFR 1910.120(q).
    In situations where an operation or a material is not covered by 
the PSM standard or the other OSHA standards, employers are obligated 
under Section 5(a)(1)--``the General Duty Clause''--of the Occupational 
Safety and Health Act of 1970 to protect employees from serious 
``recognized'' hazards.
    EPA regulations also establish a general duty for facility owners 
or operators to identify hazards associated with the accidental 
releases of

[[Page 13322]]

extremely hazardous substances, design and maintain a safe facility as 
needed to prevent such releases, and minimize the consequences of 
releases. In addition, stationary sources with more than a threshold 
quantity of a regulated substance in a process are subject to EPA's 
accident prevention regulations, including the requirement to develop 
risk management plans (40 CFR part 68). EPA's risk management plan 
requirements are virtually identical to the OSHA PSM standards. 
Facilities must develop and implement risk management plans that 
contain three main elements: (1) A hazard assessment; (2) a prevention 
program; and (3) an emergency response program.
    EPA's Spill Prevention, Control, and Countermeasure (SPCC) program 
(40 CFR part 112) for non-transportation-related facilities is designed 
to prevent the discharge of oil from non-transportation-related onshore 
and offshore facilities into or onto the navigable waters of the United 
States or adjoining shorelines.'' SPCC regulations apply to the 
following facilities: (1) Oil storage facilities, including all related 
equipment and appurtenances and bulk plant storage; (2) terminal oil 
storage; (3) pumps and drainage systems used in the storage of oil, 
except for in-line or breakout tanks needed for the continuous 
operation of a pipeline system; and (4) any terminal facility, unit, or 
process integrally associated with the transfer of oil in bulk to or 
from a vessel. The SPCC regulations include several requirements for 
facility rail tank car and cargo tank motor vehicle loading and 
unloading racks, such as a secondary containment system and lights or 
barriers to prevent the vehicle from departing the facility prior to 
disconnecting transfer lines. Loading racks, transfer hoses, loading 
arms, and other equipment that is appurtenant to a non-transportation-
related facility or terminal and that is used to transfer oil in bulk 
to or from highway vehicles or rail cars are also subject to regulation 
under the SPCC program. Facility owners and operators should be aware 
that the regulation of equipment or operations by PHMSA does not 
preclude EPA from regulating the same equipment or operations. 
Additionally, DOT jurisdiction does not define the limits of EPA 
jurisdiction and in certain cases there may be overlapping regulations. 
However, today's action may allow compliance with the SPCC rule to 
satisfy the new PHMSA requirements. Further, the proposals in this NPRM 
do not affect the scope of EPA's authority or regulations promulgated 
under CAA Section 112(r) or the Oil Pollution Act.
    States may also have adopted standards or regulations applicable to 
the handling, including loading and unloading, of hazardous materials 
at fixed facilities. For example, all states have adopted the National 
Fire Protection Association (NFPA) Standard 58, LP-Gas Code. NFPA 58 is 
a nationally recognized consensus document used throughout the United 
States as the primary standard for installing systems used to store, 
handle, transport, and use liquefied petroleum gases. NFPA 58 requires 
written operating procedures for loading and unloading that address, 
among other items, transfer hoses, chocks, fire extinguishers, sources 
of ignition, personnel, containers, signage, security and access, and 
fire response. The standard also requires written maintenance 
procedures that address corrosion control, physical protection, hoses, 
piping, appurtenances, containers, and fire protection equipment.
    In addition, as noted in the January 2008 notice, PHMSA is aware of 
a variety of existing national consensus standards that address bulk 
loading and unloading operations. For example, the American Petroleum 
Institute (API) has issued Recommended Practices for Loading and 
Unloading MC 306/DOT 406 cargo tank motor vehicles (RP  1007). 
The American Chemistry Council has developed the Responsible 
Care[supreg] management system, which establishes an integrated, 
structured approach to drive results in seven key areas: (1) Community 
awareness and emergency response; (2) security; (3) distribution; (4) 
employee health and safety; (5) pollution prevention; (6) process 
safety; and (7) product stewardship.
    Several commenters (API, ILTA) express concern that the adoption of 
PHMSA regulations applicable to loading and unloading operations would 
complicate jurisdictional boundaries between DOT and EPA. 
``Implementation of the [recommended practices] would result in 
redundancy of enforcement authority with regard to loading operations 
that is neither necessary nor warranted. Further simplification of 
these jurisdictional boundaries should be an objective for future 
action rather than confusion through the implementation of competing or 
duplicative regulation.'' (ILTA) Commenters suggest that it ``would be 
appropriate for PHMSA to acknowledge that [proposed requirements for 
loading and unloading procedures] would not apply to facilities already 
covered by SPCC, or to state that other Federal agency regulations 
provide sufficient documentation for the [PHMSA regulations].'' (API)
    Similarly, one commenter is concerned ``over the potential for 
confusion or conflict for those who already comply with the 
requirements of NFPA 58 if the proposed recommended practices were to 
be adopted as regulation by PHMSA.'' (NPGA) This commenter recommends 
that ``for any action PHMSA chooses to take with regard to the proposed 
recommended practices, the agency should defer to any industry 
consensus standards pertaining to the loading and unloading process 
that are already adopted as regulation.''
    PHMSA agrees with commenters that HMR requirements applicable to 
loading and unloading operations should not conflict with regulations 
or standards already in widespread use by hazardous materials shippers, 
carriers, and consignees. Therefore, PHMSA is proposing that 
regulations, protocols, guidelines, or standards developed by other 
Federal agencies, state agencies, international organizations, or 
industry may be used to satisfy the requirements in the NPRM provided 
such regulations or guidelines cover the risk assessment and operating 
procedure components specified in the NPRM.

VII. Regulatory Analyses and Notices

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    This notice of proposed rulemaking is considered a significant 
regulatory action under Executive Order 12866 and the Regulatory 
Policies and Procedures of the Department of Transportation (44 FR 
11034) because of significant public interest. A regulatory evaluation 
is available for review in the public docket for this rulemaking, and 
PHMSA seeks comments on the methodology, assumptions, and calculations 
contained within it.
    Executive Orders 12866 and 13563 require agencies to regulate in 
the ``most cost-effective manner,'' to make a ``reasoned determination 
that the benefits of the intended regulation justify its costs,'' and 
to develop regulations that ``impose the least burden on society.'' In 
this NPRM we propose to amend the Hazardous Materials Regulations to 
require each person (i.e., carrier or facility) who engages in cargo 
tank loading or unloading operations to perform a risk assessment of 
the loading and unloading operation and develop and implement safe 
operating procedures based upon

[[Page 13323]]

the results of the risk assessment. Many firms are part of industry 
associations with voluntary codes of safe practice, and these practices 
may be sufficient for compliance with the rule as long as all of the 
relevant safety areas are addressed and documented. PHMSA assumes that 
for firms in these categories, the proposed rule requires little or no 
change to existing practice or behavior and incremental compliance 
costs will thus be close to zero. At the same time, the potential for 
additional safety benefits is also very limited in these cases, as 
existing practice and operations are already minimizing the number of 
incidents. Therefore, the benefit and cost figures discussed below 
should be viewed as upper bounds, both of which will be reduced by the 
extent of current practice. Although comments in the docket provided 
some information on current practices, the share of firms for which the 
changes will be minimal cannot be estimated. As such, this evaluation 
uses a breakeven analysis to assess the cost-effectiveness of the rule 
at any given level of current practice. PHMSA asks that commenters 
provide data, information, or professional estimates on how many 
companies are currently performing the safety elements proposed in this 
notice.
    PHMSA estimates the upper bound of total compliance costs for 
documentation and training is $3.5 million per year. This reflects the 
total costs that would be incurred if none of the relevant hazmat 
carriers were currently subject to voluntary practices or non-DOT 
regulations that are similar to the proposed rule. There were 3,501 
relevant incidents during the ten-year study period, including those 
that related to errors in loading or unloading and those that occurred 
during transportation but that were ultimately caused by errors in 
loading. Together, these incidents resulted in four hazmat-related 
fatalities, 157 hazmat-related injuries, and a total societal cost of 
$69.2 million over ten years, or an annual average of $6.9 million.
    Based on the assumptions and estimates described above, the 
breakeven point for this rule--that is, the point at which benefits and 
costs are approximately equal--occurs at an incident-reduction 
effectiveness level of approximately 40 percent for affected firms. For 
this analysis, based on available literature and expert judgment, we 
believe that an effectiveness level of 40 percent is a reasonable 
assumption for this group of safety interventions, particularly since 
the subject incidents have been defined narrowly as those in which 
(largely preventable) human error occurs during the loading or 
unloading phase, such as overfilling, over-pressurizing, or loading 
incompatible materials. The table below summarizes the annual benefits 
and costs of the proposed rule. (See the Regulatory Impact Assessment, 
which is available in the docket for this rulemaking). The benefit-cost 
ratio is roughly 1.0. These benefit and cost figures depend on the 
assumptions that have been made, particularly on the extent of current 
compliance and the effectiveness of the interventions.

                                          Base Case Benefits and Costs
----------------------------------------------------------------------------------------------------------------
                                                     Discount       PV benefit
              Year                Annual benefit    factor (7%)        (7%)         Annual cost    PV cost (7%)
----------------------------------------------------------------------------------------------------------------
2012............................      $1,729,971            1.07      $1,616,795      $1,744,861      $1,630,711
2013............................       1,729,971            1.14       1,511,023       1,744,861       1,524,029
2014............................       1,729,971            1.23       1,412,171       1,744,861       1,424,326
2015............................       1,729,971            1.31       1,319,786       1,744,861       1,331,146
2016............................       1,729,971            1.40       1,233,445       1,744,861       1,244,061
2017............................       1,729,971            1.50       1,152,752       1,744,861       1,162,674
2018............................       1,729,971            1.61       1,077,339       1,744,861       1,086,611
2019............................       1,729,971            1.72       1,006,859       1,744,861       1,015,525
2020............................       1,729,971            1.84         940,989       1,744,861         949,089
2021............................       1,729,971            1.97         879,429       1,744,861         886,999
2022............................       1,729,971            2.10         821,897       1,744,861         828,971
2023............................       1,729,971            2.25         768,128       1,744,861         774,739
2024............................       1,729,971            2.41         717,876       1,744,861         724,055
2025............................       1,729,971            2.58         670,912       1,744,861         676,687
2026............................       1,729,971            2.76         627,021       1,744,861         632,418
2027............................       1,729,971            2.95         586,001       1,744,861         591,045
2028............................       1,729,971            3.16         547,664       1,744,861         552,378
2029............................       1,729,971            3.38         511,836       1,744,861         516,241
2030............................       1,729,971            3.62         478,351       1,744,861         482,468
2031............................       1,729,971            3.87         447,057       1,744,861         450,905
                                  ..............  ..............      18,327,332  ..............      18,485,077
----------------------------------------------------------------------------------------------------------------

B. Executive Order 13132

    This notice has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
notice would preempt state, local, and Indian tribe requirements but 
does not propose any regulation with substantial direct effects on the 
States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous materials transportation law, 49 U.S.C. 5101 
et seq., contains an express preemption provision (49 U.S.C. 5125(b)) 
preempting State, local, and Indian tribe requirements on the following 
subjects:
    (1) The designation, description, and classification of hazardous 
materials;
    (2) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (3) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
contents, and placement of those documents;
    (4) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified

[[Page 13324]]

for use in transporting hazardous material.
    This proposed rule addresses subject area (2), above. If adopted as 
final, this rule would preempt any state, local, or Indian tribe 
requirements concerning these subjects unless the non-Federal 
requirements are ``substantively the same'' as the Federal 
requirements.
    Federal hazardous materials transportation law provides at 49 
U.S.C. 5125(b)(2) that, if DOT issues a regulation concerning any of 
the covered subjects, DOT must determine and publish in the Federal 
Register the effective date of Federal preemption. The effective date 
may not be earlier than the 90th day following the date of issuance of 
the final rule and not later than two years after the date of issuance. 
PHMSA proposes that the effective date of Federal preemption will be 90 
days from publication of a final rule in this matter in the Federal 
Register.

C. Executive Order 13175

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this NPRM does 
not have tribal implications and does not impose substantial direct 
compliance costs, the funding and consultation requirements of 
Executive Order 13175 do not apply.

D. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities 
unless the agency determines that a rule is not expected to have a 
significant impact on a substantial number of small entities. The 
primary costs to small entities include developing and updating a risk 
assessment, developing and updating operating procedures, and 
additional training for hazmat employees who perform loading and 
unloading operations.
    PHMSA expects the impacts of this rule will be quite limited for 
many small entities due to their compliance with other, existing 
Federal regulations or their participation in industry-wide 
initiatives. For example, many hazmat shippers and carriers already 
document their loading/unloading safety practices to comply with 
Occupational Safety and Health Administration (OSHA) rules on workplace 
safety, Environmental Protection Agency (EPA) regulations on 
environmental protection, or state and local requirements. PHMSA's 
proposed rule also explicitly acknowledges that many firms are part of 
industry associations with voluntary codes of safe practice, and that 
these may be sufficient for compliance with the rule as long as all of 
the relevant safety areas are addressed and documented. For firms in 
these categories, the proposed rule requires little or no change to 
existing practice or behavior and incremental compliance costs will 
thus be close to zero. Therefore, the benefit and cost figures 
discussed below should be viewed as upper bounds, both of which will be 
reduced by the extent of current practice.
    PHMSA estimates that there are 5,427 potentially affected small 
entities. The annualized documentation cost for developing and updating 
the risk assessment and the operating procedures is estimated to be 
$250/small entity. The annualized cost of additional training for 
affected employees, primarily drivers of cargo tank motor vehicles, is 
estimated to be approximately $22/employee. Further, PHMSA estimates 
that approximately 50% of small businesses are already implementing 
procedures which would be compliant with the proposals in this notice. 
Based upon the above estimates and assumptions, PHMSA certifies that 
the proposals in this NPRM would not have a significant economic impact 
on a substantial number of small entities. Further information on the 
estimates and assumptions used to evaluate the potential impacts to 
small entities is available in the Regulatory Impact Assessment that 
has been placed in the public docket for this rulemaking. In this 
notice, PHMSA is soliciting comments on the preliminary conclusion that 
the proposals in this NPRM would not cause a significant economic 
impact on a substantial number of small entities.

E. Paperwork Reduction Act

    PHMSA currently has an approved information collection under OMB 
Control No. 2137-0034, ``Hazardous Materials Shipping Papers and 
Emergency Response Information,'' expiring on May 31, 2011. We estimate 
an additional increase in burden as a result of this proposed 
rulemaking.
    Section 1320.8(d), Title 5, Code of Federal Regulations requires 
PHMSA to provide interested members of the public and affected agencies 
an opportunity to comment on information collection and recordkeeping 
requests. This notice identifies proposed new requirements regarding 
cargo tank motor vehicles to the current information collections under 
OMB Control No. 2137-0034. Under OMB Control No. 2137-0034, we 
anticipate an increase in burden resulting from proposals to require 
persons who engage in cargo tank loading or unloading operations to 
perform a risk assessment of their loading and unloading operation, and 
to develop and implement safe operating procedures based upon the 
results of the risk assessment. In addition, PHMSA is proposing to 
require persons who engage in cargo tank loading or unloading 
operations to develop and implement a training and qualification 
program for employees who perform loading or unloading functions. PHMSA 
will submit revised information collections to the Office of Management 
and Budget (OMB) for approval based on the requirements in this 
proposed rule. We estimate that the additional information collection 
burden as proposed under this rulemaking is as follows:
    OMB Control No. 2137-0034: Hazardous Materials Shipping Papers and 
Emergency Response Information.
    Additional Annual Number of Respondents: 6,538.
    Additional Annual Responses: 6,538.
    Additional Annual Burden Hours: 65,380.
    Additional Annual Burden Cost: $1,438,360.
    PHMSA specifically requests comments on the information collection 
and recordkeeping burden associated with developing, implementing, and 
maintaining these requirements for approval under this proposed rule.
    Address written comments to the Dockets Unit as identified in the 
ADDRESSES section of this rulemaking. We must receive your comments 
prior to the close of the comment period identified in the DATES 
section of this rulemaking. Under the Paperwork Reduction Act of 1995, 
no person is required to respond to an information collection unless it 
displays a valid OMB control number. If these proposed requirements are 
adopted in a final rule with any revisions, PHMSA will resubmit any 
revised information collection and recordkeeping requirements to the 
OMB for re-approval.
    Please direct your requests for a copy of this proposed revised 
information collection to Steven Andrews or T. Glenn Foster, Office of 
Hazardous Materials Standards (PHH-12), Pipeline and Hazardous 
Materials Safety Administration, 1200 New Jersey Avenue, SE., 2nd 
Floor, Washington, DC 20590-0001.

F. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal

[[Page 13325]]

Regulations. The Regulatory Information Service Center publishes the 
Unified Agenda in April and October of each year. The RIN contained in 
the heading of this document can be used to cross-reference this action 
with the Unified Agenda.

G. Unfunded Mandates Reform Act

    This notice does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It will not result in costs of $140.8 
million or more, in the aggregate, to any of the following: State, 
local, or Native American tribal governments, or the private sector.

H. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA) requires 
Federal agencies to consider the consequences of major Federal actions 
and prepare a detailed statement on actions significantly affecting the 
quality of the human environment. PHMSA has preliminarily concluded 
that there are no significant environmental impacts associated with 
this NPRM. In fact, PHMSA believes that the proposed regulations will 
have a positive impact on the environment by reducing the number of 
incidents involving the release of a hazardous material; and, in the 
case of a release, minimizing the quantity of hazardous material 
released to the environment.
    As discussed in Section II of this document, PHMSA performed an 
analysis of incident data to identify and target risks associated with 
bulk loading and unloading of hazardous materials transported by 
highway and rail. PHMSA's review of transportation incident data and 
the findings of several NTSB and CSB accident investigations involving 
bulk hazardous material loading and unloading operations suggest there 
may be opportunities to enhance the safety of such operations, thereby 
reducing the overall impact to the environment of hazardous material 
releases during CTMV loading and unloading.
    PHMSA considered three separate alternatives for addressing the 
identified loading and unloading safety problem: (1) Do nothing; (2) 
propose operating procedures developed by the Interested Parties 
working group for the loading and unloading of both highway and rail 
transport tanks with a capacity of more than 3,000 liters; and (3) 
propose performance-based loading and unloading requirements 
specifically involving CTMVs, using the Interested Parties proposal as 
a baseline. Alternative (1) was not chosen because it would neglect a 
safety problem identified by PHMSA, NTSB, CSB, and the Interested 
Parties. Alternative (2) was not chosen because some of the 
requirements proposed by the Interested Parties may not be appropriate 
for all companies and all situations. In particular, PHMSA believes 
that operational differences between the highway and rail modes should 
be handled separately. Alternative (3) was selected because PHMSA 
believes that a risk-based performance standard provides the necessary 
flexibility for affected persons to develop operating procedures that 
are appropriate for their unique operating conditions. In addition, it 
minimizes the overall compliance burden to companies who have already 
implemented operating procedures in accordance with existing industry 
standards or with other Federal or state requirements.
    In this NPRM, PHMSA is proposing to require persons who load or 
unload CTMVs to perform a ``risk assessment'' of the CTMV transfer 
operations and to develop ``operating procedures'' based upon the risk 
assessment. The operating procedures must include mechanisms to ensure 
that transfer equipment is appropriate for the material being 
transferred and has been properly maintained and tested. Further, the 
operating procedures must address ``emergency management,'' including 
mechanisms to monitor for leaks and releases, and to immediately stop 
the flow of product when a release is detected. PHMSA is also proposing 
additional training and qualification requirements for persons who load 
and unload CTMVs. The proposed regulations are intended to improve 
safety by significantly reducing human error and minimizing the number 
of equipment failures during loading and unloading operations. As a 
result, PHMSA expects that the proposed regulations could significantly 
reduce the number of incidents involving a release of a hazardous 
material to the environment during CTMV loading and unloading.
    PHMSA is soliciting comments on the preliminary conclusion that the 
proposals in this NPRM would not cause significant impacts to the 
environment.

List of Subjects

49 CFR Part 172

    Hazardous materials transportation, Hazardous waste, Labeling, 
Packaging and containers, Reporting and recordkeeping requirements, 
Training.

49 CFR Part 177

    Hazardous materials transportation, Motor Carriers, Radioactive 
Materials, Reporting and recordkeeping requirements.

    In consideration of the foregoing, PHMSA is proposing to amend 
Title 49, Subtitle B, Chapter I as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, TRAINING 
REQUIREMENTS, AND SECURITY PLANS

    1. The authority citation for part 172 continues to read as 
follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

    2. In Sec.  172.704, paragraphs (a)(2)(iii) and (d)(6) are added to 
read as follows:


Sec.  172.704  Training requirements.

    (a) * * *
    (2) * * *
    (iii) Function-specific training for hazmat employees who perform 
duties related to loading, unloading, or transloading of hazardous 
materials to or from a cargo tank motor vehicle must be designed to 
ensure that the employees understand and implement the training they 
have received in accordance with this paragraph and are capable of 
performing the activities necessary to complete their assigned duties 
safely. Evaluation of the employee's qualifications must be performed 
at least annually for each covered employee and must include 
observation and feedback by the hazmat employer of the hazmat 
employee's performance of covered functions. Mechanisms to evaluate 
hazmat employees include, but are not limited to, regular and routine 
performance of covered duties or specific practice sessions and drills 
designed to assess employee performance. At a minimum, the 
qualification program must include provisions to:
    (A) Identify covered tasks and employees;
    (B) Observe and evaluate each covered employee's performance of 
covered tasks;
    (C) Provide feedback to covered employees regarding performance of 
covered tasks;
    (D) Establish a performance improvement process for employees;
    (E) Initiate an employee evaluation under the program if the hazmat 
employer has reason to believe that the employee is no longer qualified 
to safely perform a covered task or if an

[[Page 13326]]

employee's performance contributed to an unintentional release of a 
hazardous material.
* * * * *
    (d) * * *
    (6) Certification, including the date, that the employee is 
qualified to perform loading, unloading, or transloading operations in 
accordance with the qualification program developed by the hazmat 
employer in accordance with paragraph (a)(2)(iii) of this section, as 
applicable. The hazmat employer may not certify that the employee is 
qualified until the employee successfully performs the job function in 
accordance with the documented operating procedures.
* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    3. The authority citation for part 177 continues to read as 
follows:

    Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

    4. In Subpart B, Sec.  172.831 is added to read as follows:


Sec.  177.831  Cargo tank loading and unloading.

    (a) Risk assessment. Each person who loads, unloads, or provides 
transfer equipment to load or unload a hazardous material to or from a 
cargo tank motor vehicle (including any device in the loading and 
unloading system that is designed specifically to transfer product 
between the internal valve on the cargo tank and the first permanent 
valve on the supply or receiving equipment (e.g., pumps, piping, hoses, 
connections, etc.) must conduct a systematic analysis to identify and 
evaluate the hazards associated with the specific loading or unloading 
operation. This analysis must:
    (1) Clearly identify the loading or unloading activities for which 
the facility personnel or the operator of a cargo tank motor vehicle is 
responsible.
    (2) Assess current procedures utilized to ensure the safety of 
loading or unloading operations and identify any areas where those 
procedures could be improved. The analysis must be appropriate to the 
complexity of the process and the materials involved in the operation, 
including--
    (i) The characteristics and hazards of the material to be loaded or 
unloaded;
    (ii) Measures necessary to ensure safe handling of the material, 
such as temperature or pressure controls; and
    (iii) Conditions that could affect the safety of the loading or 
unloading operation, including access control, lighting, ignition 
sources, and physical obstructions.
    (3) The analysis must be in writing and must be retained with the 
operating procedures specified in paragraph (b) of this section.
    (b) Operating procedures. Each person required to prepare a risk 
assessment in accordance with paragraph (a) of this section must 
develop, maintain, and adhere to an operating procedure for the 
specific loading or unloading operation based on the completed risk 
assessment. At a minimum, the operating procedure must include the 
following elements:
    (1) Pre-loading/pre-unloading. Procedures to ensure the integrity 
of the cargo tank and associated transfer equipment, secure the cargo 
tank against movement, prepare the cargo tank and transfer equipment 
for the loading or unloading operation, and verify the vessel into 
which the material is to be transferred. The procedures must include 
measures to--
    (i) Identify the piping path, equipment lineups, and operational 
sequencing and procedures for connecting piping, hoses, or other 
transfer connections;
    (ii) Verify that the material is being transferred into the 
appropriate containment vessel and that the vessel is compatible with 
the lading and has sufficient capacity to retain the quantity of 
material to be transferred;
    (iii) Check components of the transfer system, including transfer 
equipment such as delivery hose assemblies, piping, and connections 
that are readily observed, to ensure that they are of sound quality, 
without obvious defects detected through visual observation and audio 
awareness, and that connections are secure. This check must be made 
after the pressure in the transfer system has reached at least 
equilibrium with the pressure in the cargo tank. Operators need not use 
instruments or take extraordinary actions to check components not 
readily visible. Pumps, piping, hoses, and connections supplied by a 
facility or the motor carrier and used to load into or unload from a 
cargo tank must be compatible with the lading and meet performance, 
maintenance, and testing requirements in part 178, subpart J, and Sec.  
180.416 of this subchapter, as appropriate for the cargo tank 
specification. The driver of the cargo tank motor vehicle may rely on 
information provided by the facility operator to confirm that transfer 
equipment provided by the facility meets appropriate requirements. No 
person may load into or unload a cargo tank motor vehicle using 
components of the transfer system that could result in an unsafe 
condition, including delivery hose assemblies found to have any 
condition identified in Sec.  180.416(g)(1) of this subchapter or 
piping systems found to have any condition identified in Sec.  
180.416(g)(2) of this subchapter.
    (2) Loading/unloading. Procedures for monitoring the transfer 
operation, including measures to--
    (i) Initiate and control the lading flow;
    (ii) Monitor the temperature of the material being transferred and 
the pressures of the cargo tank into which the material is being 
transferred;
    (iii) For materials that must be heated prior to being loaded or 
unloaded, ascertain and monitor the heat input to be applied and the 
rate at which the heat will be applied and monitor the pressure inside 
the vessel being heated to ensure that the heating process does not 
result in over-pressurization or an uncontrolled exothermic reaction;
    (iv) Monitor filling limits and ensure that the quantity of 
hazardous material to be transferred is appropriate for the cargo tank 
or containment vessel;
    (v) Terminate lading flow; and
    (vi) Ensure that the cargo tank is attended by a qualified person 
at all times when it is being loaded or unloaded.
    (A) Except for unloading operations subject to Sec. Sec.  
177.837(d), 177.840(p), 177.840(q), and 177.840(r)(2) of this 
subchapter, a qualified person ``attends'' the loading or unloading of 
a cargo tank if, throughout the process, the person is alert and is 
within 7.6 m (25 feet) of the cargo tank. The qualified person 
attending the cargo tank must have an unobstructed view of the cargo 
tank and delivery hose to the maximum extent practicable during the 
unloading operation.
    (B) A person is ``qualified'' if he has been trained and 
satisfactorily evaluated in accordance with subpart H of part 172 of 
this subchapter.
    (3) Emergency management. Procedures for handling emergencies, 
including --
    (i) Instrumentation to monitor for leaks and releases;
    (ii) Equipment to isolate leaks and releases and to take other 
appropriate emergency shutdown measures;
    (iii) Training in the use of emergency response equipment;
    (iv) Emergency shutdown systems and the assignment of shutdown 
responsibility to qualified operators to ensure that emergency shutdown 
is executed in a safe and timely manner;
    (v) Emergency communication and spill reporting; and
    (vi) Safe startup after an emergency shutdown.
    (4) Post-loading/post-unloading. Procedures for securing the 
transfer

[[Page 13327]]

equipment, transport vehicle or packaging, and vessel into which the 
material is transferred, including--
    (i) Measures to evacuate the transfer system and depressurize the 
containment vessel;
    (ii) Measures to safely disconnect the transfer equipment; and
    (iii) Measures to secure fittings, valves, and closures.
    (5) Design, maintenance, and testing of transfer equipment. 
Transfer equipment, used to unload cargo tanks must be compatible with 
the lading and meet the performance requirements in part 178, subpart J 
of this subchapter, as appropriate for the cargo tank specification. 
Transfer equipment and systems, including pumps, piping, hoses, and 
connections, must be properly maintained and tested (see Sec.  180.416 
for liquefied compressed gases). Each person who conducts these 
operations must develop and implement a periodic maintenance schedule 
to prevent deterioration of equipment and conduct periodic operational 
tests to ensure that the equipment functions as intended. Equipment and 
system repairs must be completed promptly and prior to any subsequent 
loading or unloading operation. The procedures developed in accordance 
with this paragraph must include a hose maintenance program.
    (6) Facility oversight of carrier personnel. An operator of a 
facility required to perform a risk assessment in accordance with 
paragraph (a) of this section must ensure that any carrier who loads or 
unloads a cargo tank motor vehicle at that facility--
    (i) Is supervised by trained facility personnel who are trained on 
the facility's loading and unloading operating procedures;
    (ii) Is provided with written instructions on how to conduct the 
transfer operation in accordance with the facility's procedures; or
    (iii) Has sufficient information to conduct the transfer operation 
in accordance with the facility's procedures.
    (7) Recordkeeping. The operating procedures must be in writing and 
must be retained for as long as the procedures remain in effect. The 
operating procedures must be clearly written and easy to understand and 
must be reviewed annually and updated as necessary to ensure that they 
reflect current operating practices, materials, technology, personnel 
responsibilities, and equipment. Facility operating procedures must be 
available at the loading or unloading facility. Motor carrier operating 
procedures must be carried in the transport vehicle. Operating 
procedures must be made available, upon request, to an authorized 
official of a Federal, State, or local government agency at reasonable 
times and locations.
    (c) Exceptions: To avoid unnecessary duplication, risk assessments, 
and operating procedures that conform to regulations, standards, 
protocols, or guidelines issued by other Federal agencies, state 
agencies, international organizations, or industry organizations may be 
used to satisfy the requirements in this part, or portions thereof, 
provided such operating procedures address the requirements specified 
in this part. Examples include the Occupational Safety and Health 
Administration's Process Safety Management Standards at 29 CFR 1910.119 
and the Environmental Protection Agency's Risk Management Program 
regulations at 40 CFR part 68 and Spill Prevention, Control and 
Countermeasures Program at 40 CFR part 112; state regulations or 
standards, such as state incorporation of National Fire Protection 
Association Standard 58, LP-Gas Code; or standards, protocols, or 
guidelines issued by industry organizations or consensus-standards 
organizations.
    5. In Sec.  177.834, the section heading is revised to read as 
follows, and paragraph (i) is removed and reserved:


Sec.  177.834  Additional general requirements.

* * * * *

    Issued in Washington, DC, on March 1, 2011, under authority 
delegated in 49 CFR part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 2011-5335 Filed 3-10-11; 8:45 am]
BILLING CODE 4910-60-P