[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Proposed Rules]
[Pages 10461-10465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03205]
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 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: Withdrawal of notice of proposed rulemaking (NPRM).
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SUMMARY: PHMSA is closing this rulemaking proceeding under this docket
having reconsidered our proposal for additional regulations associated
with cargo tank motor vehicle (CTMV) loading or unloading operations.
This action is based on the findings of the regulatory assessment,
comments to docket of this rulemaking, and completion of a
supplementary policy analysis on how best to address the safety risks
of bulk loading and unloading operations. As an alternative to new
regulatory requirements, PHMSA will be issuing a guidance document to
provide best practices for CTMV loading and unloading operations; and
will be conducting research to better understand the wide range of
human factors that contribute to hazardous materials incidents
including those associated with CTMV loading and unloading operations.
DATES: Effective February 25, 2014, the proposed rule published in the
Federal Register on March 11, 2011 at 76 FR 13313 is withdrawn.
FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, Office of Hazardous
Materials Safety, Pipeline and Hazardous Materials Safety
Administration, telephone (202-366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
II. Regulatory Assessment
III. Comments on the NPRM
A. Scope
B. Risk Assessment
C. Operating Procedures
D. Training and Qualification
E. Recordkeeping
F. Compliance
IV. Reconsideration of the NPRM
A. Guidance
B. Outreach Campaign
C. Human Factors Study
D. Memorandum of Understanding
V. Conclusion
I. Background
On March 11, 2011, PHMSA published an NPRM under Docket PHMSA-2007-
28119 (76 FR 13313) (HM-247) to amend the hazardous materials
regulations (HMR; 49 CFR Parts 171-180) by requiring each person who
engages in CTMV loading or unloading operations to perform a risk
assessment of its loading and unloading operations and develop and
implement safe operating procedures based upon the results of the risk
assessment. PHMSA also proposed additional personnel training and
qualification requirements for persons who perform these operations.
In the NPRM, PHMSA discussed the safety problem associated with
CTMV loading and unloading operations, including:
A summary of loading and unloading incident data;
National Transportation Safety Board (NTSB) and Chemical
Safety Board (CSB) safety recommendations issued to PHMSA as a result
of accident
[[Page 10462]]
investigations related to bulk loading and unloading operations; \1\
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\1\ NTSB Safety Recommendations I-02-1, I-02-2, and R-04-10 and
CSB Recommendation 2006-06-I-LA-RI. On July 12, 2013 PHMSA published
safety advisory guidance (78 FR 41853) on safety precautions and
recommended guidance for persons responsible for unloading or
transloading hazardous materials from rail tank cars, specifically,
heating of rail tank cars for unloading or transloading. The
publication of this guidance resulted in the NTSB closing
recommendations I-02-1 and I-02-2 as ``Closed--Acceptable
Alternative Action.''
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Recommended operating procedures proposed by the
Interested Parties for Hazardous Materials Transportation (Interested
Parties) (an informal association of offerors, carriers, and industrial
package manufacturers);
A petition (P-1506) for rulemaking submitted by the
Dangerous Goods Advisory Council (DGAC); and
Comments received in response to PHMSA's notice of
recommended practices published on January 4, 2008 under Docket Number
PHMSA-2007-28119 (73 FR 916) (Notice No. 07-9).
In the NPRM, PHMSA indicated that adopting regulations to require
offerors, carriers, or facility operators to develop and implement
operating procedures governing the loading and unloading of a CTMV
would enhance the safety of such operations. We solicited comments on
the regulations proposed and the accuracy of PHMSA's cost and benefits
estimates set forth in the preliminary regulatory impact assessment.
The NPRM and supporting documents are available for review in the
docket for this rulemaking at www.regulations.gov. A summary of the
proposed changes is provided in the following Table 1:
Table 1--Proposed New Requirements and Affected Entities
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Affected entities New requirements
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Cargo tank carriers and facilities that Assess the risks of
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 CTMVs.
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II. Regulatory Assessment
As part of PHMSA's initial rulemaking efforts in this area, a
preliminary analysis was completed. Through this analysis it was
apparent that shipments of hazardous materials (hazmat) by CTMV pose
some level of risk to public safety on a daily basis. A 2007 Commodity
Flow Survey by the Bureau of Transportation Statistics highlights this
by indicating that an estimated 323.5 billion-ton-miles of hazardous
materials were transported in 2007 of which approximately a third (104
billion-ton-miles) was transported by truck and an additional 7 percent
was by multimodal transport that included truck. We believe we can
safely reason that a similar amount is transported annually today,
which presents ample opportunity for incidents to occur during the
course of highway transportation including during CTMV loading and
unloading operations.
As the HMR currently requires function specific training and
recordkeeping of this training (See 49 CFR Part 172 Subpart H) and has
loading and unloading requirements for transport via public highways
(See 49 CFR Part 177 Subpart B), PHMSA expects that most entities
already have some manner of documentation surrounding process review,
training of personnel, and maintenance of equipment involved in these
operations. Other federal agencies also have requirements associated
with loading and unloading operations that encompass bulk transport
vehicles. The Occupational Safety and Health Administration (OSHA)
Process Safety Management (PSM) standard (See 29 CFR 1910.119) contains
requirements for processes that use, store, manufacture, handle, or
transport highly hazardous chemicals on-site including bulk-loading and
unloading operations involving PSM-covered chemicals. Additionally, the
Environmental Protection Agency (EPA) regulations establish a general
duty clause for facility owners or operators of facilities that
produce, handle, process, distribute, or store certain chemicals. The
regulations entail identification of hazards associated with the
accidental releases of extremely hazardous substances; prevention of
such releases, and minimization of the consequences of releases.
Despite these requirements incidents do continue to occur. An
analysis of CTMV loading and unloading incidents during the 10-year
period 2000-2009 revealed that, among other causes, human error is the
greatest primary cause of accidents. Most human error accidents can be
attributed to inattention to detail in performing a loading or
unloading function, including failure to follow attendance
requirements, leaving valves in open or closed positions, improperly
connecting hoses and other equipment, or not disconnecting hoses prior
to vehicles having completed fill operation. This leads to accidents
such as overfilling receiving tanks, over-pressurizing CTMVs, or
loading/unloading incompatible materials. About 3,500 incidents could
be attributed to CTMV loading and unloading incidents. These incidents
resulted in an estimated $68 million in societal damages, or $6.8
million per year, during the 10-year analysis period. Thus, there is a
cost to society from CTMV loading and unloading incidents.
Following the publication of the HM-247 NPRM, PHMSA updated the
regulatory assessment. The updated analysis estimated benefits
associated with the proposed rule from avoidance of incidents at $1.7
million annually while costs are estimated to be $1.1 million annually.
The overall estimated impacts identified in the analysis are predicated
on the level of existing pre-compliance and the overall effectiveness
of the regulations. We assume 50 percent \2\ of affected entities would
already be in compliance with the
[[Page 10463]]
proposed measures, and that implementation of the proposed regulations
would reduce incidents by 40 percent.\3\
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\2\ The 50 percent compliance rate is based on comments to the
docket noting the prevalence of other non-DOT governmental
requirements and anecdotal reports of use of industry codes.
\3\ The 40 percent effectiveness rate is based on a literature
review and our best judgment that indicates this rate is a
reasonable estimate of the reduction of human errors should the NPRM
be implemented.
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Furthermore, in the absence of true data, we rely heavily on
estimates of variables used in calculating the benefits and costs,
either from previous analyses for other rulemaking efforts or from
newly calculated estimates. Although, we did not receive adverse
comments on our estimates and also received some supportive comments,
we remain concerned about achieving a valid result. Despite the 1.5
benefit-cost ratio PHMSA is concerned that the overall benefit of
regulatory action is overestimated based on the role that human error
plays in loading and unloading incidents. Due to this uncertainty,
PHMSA conducted a supplementary policy analysis to help decision-makers
determine whether regulatory action was the best path forward or if
non-regulatory approaches may be just as effective. This supplementary
analysis is discussed in Section IV of this withdrawal notice.
III. Comments on the NPRM
In response to PHMSA's March 11, 2011 NPRM, PHMSA received comments
from 44 organizations and individuals:
Table 2--Commenters to the NPRM
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Commenter Docket No. PHMSA-2007-28119-XXXX
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Agricultural Retailers Association 0084
(ARA)..............................
Akzo Nobel Chemicals, Inc........... 0097
American Chemistry Council (ACC).... 0053; 0085
American Gas Association (AGA)...... 0075
American Trucking Association (ATA). 0047; 0091
Anonymous........................... 0059, 0061; 0062; 0063; 0064; 0067
Arkema, Inc......................... 0046
Association of American Railroads... 0048
Bayer Material Science.............. 0082
BP Products North America, Inc...... 0096
Brian T. Knapp...................... 0086
Dangerous Goods Advisory Council 0065; 0081
(DGAC).............................
Distrigas of Massachusetts, LLC..... 0078
Dow Chemical Company (Dow).......... 0070
Dupont Global Logistics............. 0080
Far West Agribusiness Association 0066
(FWAA).............................
Illinois Fertilizer & Chemical 0069
Association (IFCA).................
International Brotherhood of 0089
Teamsters (IBT)....................
Institute of Makers of Explosives 0079
(IME)..............................
Joyce Dillard....................... 0094
National Association of Chemical 0052; 0087
Distributers (NACD)................
National Association of State Fire 0054
Marshals...........................
National Grid....................... 0050
National Propane Gas Association 0088
(NPGA).............................
National Tank Truck Carriers (NTTC). 0051; 0095
National Transportation Safety Board 0098
(NTSB).............................
New England Fuel Institute.......... 0093
Petroleum Marketers Association of 0092; 0099
America (PMAA).....................
PPG Industries, Inc................. 0090
Salt River Project Agricultural 0073
Improvement and Power District
(SRP)..............................
Sara Thane.......................... 0060
Society of Independent Gasoline 0076
Marketers of America (SIGMA).......
Syngenta Crop Protection............ 0071
The Chlorine Institute.............. 0083
The Fertilizer Institute (TFI)...... 0084
U.S. Chemical Safety and Hazard 0035; 0100
Investigation Board (CSB)..........
Utility Solid Waste Activities Group 0049; 0074
(USWAG)............................
Valero Energy Corporation........... 0068
Veolia ES Technical Solutions, LLC.. 0077
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The comments are available for review in the docket for this
rulemaking at www.regulations.gov. The comments generally opposed
adoption of this rulemaking and covered the following range of topics
associated with the proposed requirements: Scope; risk assessment;
operating procedures; training and qualification; recordkeeping; and
the compliance date. A brief summary of the essence of comments for
each topic follows:
A. Scope
Commenters noted confusion about the applicability of the proposed
rule, namely, how the rulemaking would apply in the absence of a
carrier at a facility as well as the extent of the reach of the
applicability (e.g., Does it end at the first permanent valve on the
receiving equipment?). Additionally, commenters questioned whether
there is a minimum threshold before the rulemaking would apply (i.e.,
3,000 liters) and whether the rulemaking truly is performance-based
rather than prescriptive.
B. Risk Assessment
PHMSA proposed to require any person who loads or unloads hazmat or
[[Page 10464]]
provides transfer equipment to load or unload a CTMV to prepare a risk
assessment of the operation. The risk assessment was to include
specific minimum measures to address the safety of such operations.
PHMSA received a substantial number of comments on the proposed
provisions associated with this requirement to conduct a risk
assessment. Commenters primarily expressed concern over the possibility
of duplication of efforts by facilities and carriers.
C. Operating Procedures
PHMSA proposed to require each person who is subject to the risk
assessment requirement to develop, maintain, and adhere to an operating
procedure for the specific loading or unloading operation based on the
completed risk assessment. The operating procedures were to include
provisions that address pre-loading/unloading, loading/unloading,
emergency management, post-loading/unloading, design, maintenance and
testing of transfer equipment, facility oversight of carrier personnel,
and recordkeeping. Commenters questioned the intent of provisions for
the maintenance and testing of transfer equipment within the operating
procedure requirements. Commenters discussed additional issues such as
alternative measures for attendance during a loading operation.
D. Training and Qualification
PHMSA proposed annual evaluation of hazmat employees performing
CTMV loading and unloading operations through measures such as direct
observation of routine performance of duties or through practice
sessions and drills. Many commenters strongly opposed this proposal.
They generally asserted that PHMSA significantly underestimated the
costs of such a requirement in the preliminary assessment for the NPRM.
E. Recordkeeping
PHMSA proposed recordkeeping requirements for the written risk
assessment and operating procedure. Several commenters suggested that
this proposed requirement to document and retain risk assessments is
overly burdensome and unnecessary.
F. Compliance
Commenters requested an extended compliance date to allow for time
to conduct a complete review of current practices and to implement
improvements or updates while others suggested that a significant
majority of potentially affected entities already have operating
procedures in place that would satisfy the regulations set forth in
this proposed rule such that an extended compliance period would not be
necessary.
IV. Reconsideration of the NPRM
PHMSA conducts a policy analysis to identify and manage risks in
the transportation of hazmat. The policy analysis makes use of a risk
management framework that defines the main elements of identified
risk(s) and outlines possible ways to address the risk(s). The process
begins when a risk in the transportation of hazmat is first assessed
(e.g., when a risk is presented to PHMSA through an NTSB safety
recommendation), and ends with an agency decision on implementation of
an identified approach of how to manage the risk, such as implementing
a new regulation.
In consideration of the negative comments on the NPRM and
uncertainties about regulatory action as well as the uncertainties of
the regulatory assessment, PHMSA conducted a supplementary policy
analysis to help decision-makers determine whether this effort is the
best course of action. After this policy analysis, we reconsidered our
approach to address the safety risks of bulk loading and unloading
operations through rulemaking. The analysis raised concerns on the
effectiveness of implementing any new regulations covering loading and
unloading operations including whether any proposed regulations would
be: (1) Redundant because the activity is already covered in some
manner under the current HMR; (2) impactful in that many of the
incidents having occurred in the past would probably continue to occur
because of the human element in incidents indicating that further
regulation may be ineffective; and (3) confusing to implement without
an memorandum of understanding (MOU) among the agencies that have
oversight clearly defining roles and enforcement of these types of
operations.
The subsequent recommendations of the assessment include (in no
particular order of priority): (1) Preparing a guidance document that,
together with current regulations, provides direction on bulk loading
and unloading operational procedures, use of personal protective
equipment, and maintenance and inspection of transfer equipment; (2)
engaging in a rigorous outreach campaign to raise awareness; (3)
implementing a human factor study associated with bulk loading and
unloading operations; and (4) finalizing a (MOU) with the Occupational
Safety and Health Administration (OSHA) and, possibly, the
Environmental Protection Agency (EPA) in order to specify any new
regulatory requirements and enforcement roles. These recommendations
are discussed in further detail below.
A. Guidance
Agency guidance includes any statement of policy, interpretation of
a regulation, or any other method used to communicate to the regulated
public the agency expectations. Guidance is not legally binding and may
not mandate or require a particular action but rather is intended to
provide helpful information, clarify a rule's or statute's meaning, or
communicate our policy for implementing requirements. Based on concerns
raised on the effectiveness of further regulation in the supplementary
policy analysis, it is better served that PHMSA prepare a guidance
document that provides helpful information on CTMV loading and
unloading operations in addition to what is required by regulation. The
guidance would cover, in part, training on operational procedures,
provision of personal protection equipment, and maintenance and
inspection of transfer equipment including emergency shutdown systems
and would be based on the content and structure of the proposed
regulations in the NPRM. Although not binding as stated earlier, we
believe issuing a guidance document still provides an opportunity to
enhance safety by clarifying the current requirements, providing
helpful information, outlining our expectations for CTMV loading and
unloading operations, and clearly attributing human error to loading
and unloading incidents.
B. Outreach Campaign
To supplement the abovementioned plans for issuing guidance, PHMSA
plans to develop and implement an outreach program to raise awareness
of the ongoing risk of CTMV loading and unloading incidents and to
educate regulated entities on ways to prevent or mitigate the risks.
C. Human Factors Study
Human factors research involves the study of the way humans relate
to the world around them. Human factors certainly play a role in hazmat
transportation especially bulk loading and unloading operations because
individuals are directly involved (e.g., handling of transfer
equipment) and thus, human factors research is included among the
priorities of PHMSA's Office of Hazardous Materials Safety (OHMS)
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research and development (R&D) five-year strategic plan (2012-2017). In
general, from review of hazmat incident report data for all incident
types, we have found that human error is the fourth-most cited cause of
failure as is similarly indicated above in Section II specific to
loading and unloading incidents.
The goal of the OHMS R&D program is to enhance the safety mission
and identify and mitigate the emerging risks associated with hazmat
transportation and to better understand the factors contributing to
these risks. This human factors research effort is, among other things,
designed to supply information necessary to guide future changes in
regulations. OHMS created this priority to examine human involvement in
the release of hazmat (e.g., human error), to research regulations that
involve human impact, and develop new strategies to reduce human
handling errors. Although historically overlooked in hazmat
transportation safety research, we view this type of research essential
as the safe transportation of all hazmat involves human interaction
within the transportation system. This research would involve some
manner of assessment of human factors in bulk loading and unloading
operations including for CTMV operations. Results of such research may
bear out significant information that can be used to support future
rulemaking action.
D. Memorandum of Understanding
As part of a plan to enhance safety of bulk loading and unloading
operations (including CTMV operations), PHMSA had envisioned
development of an MOU with OSHA to clarify responsibilities. This plan
called for a two-pronged approach of an MOU supplemented by a phased
rulemaking approach (i.e., first a rulemaking to address CTMV loading
and unloading operations followed by rulemakings for tank cars and
other bulk packaging). But, since we are withdrawing this rulemaking,
PHMSA does not plan to develop an MOU at this time because development
of the MOU was intended to be directly linked to the new regulations
proposed in the NPRM.
V. Conclusion
PHMSA has concluded that adopting the regulations proposed under
the NPRM is not the best course of action at this time. PHMSA has based
this decision on its concerns that further regulation would create
redundancies, confusion, and possibly be ineffective in preventing many
of the very same incidents it is intended to address. Non-regulatory
approaches are available in the short term that would still provide an
opportunity to enhance safety of CTMV loading and unloading operations
by raising awareness and communicating our expectations. Key non-
regulatory activities include:
1. Issuing a guidance document for CTMV loading and unloading
operations;
2. Implementing an outreach campaign to educate the regulated
community on current regulatory requirements and best safety practices;
and
3. Conducting human factors research to examine human involvement
in release of hazmat and to potentially use this to support future
consideration of rulemaking to address CTMV loading and unloading
operations.
Accordingly, PHMSA is withdrawing the March 11, 2011 NPRM and
terminating this rulemaking proceeding.
Issued in Washington, DC on February 10, 2014, under authority
delegated in 49 CFR Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2014-03205 Filed 2-24-14; 8:45 am]
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