[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Proposed Rules]
[Pages 13313-13327]
[FR Doc No: 2011-5335]

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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,<PHONE_NUMBER>, 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
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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.
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    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

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.

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

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

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

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

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,

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

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

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

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

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

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

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

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