Federal Register / Vol. 76, No. 48 / Friday, March 11, 2011 / Proposed Rules 13313 

1The 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.). 

2PHMSA’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. 

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). 

SUMMARY: In this NPRM, PHMSA is 

proposing to amend the Hazardous 

Materials Regulations to require each 

person (i.e., carrier or facility) who 

engages in cargo tank loading or 

unloading operations to perform a risk 

assessment of the loading and unloading 

operation and develop and implement 

safe operating procedures based upon 

the results of the risk assessment. The 

proposed operational procedures 

include requirements to address several 

aspects of loading and unloading, 

including provisions for facilities to 

develop maintenance testing programs 

for transfer equipment (i.e., hose 

maintenance programs) used to load or 

unload cargo tank motor vehicles 

(CTMVs). In addition, PHMSA is 

proposing to require each employee 

who engages in cargo tank loading or 

unloading operations to receive training 

and be evaluated on the employee’s 

qualifications to perform loading or 

unloading functions. PHMSA is 

proposing these amendments to reduce 

the risk associated with the loading and 

unloading of cargo tank motor vehicles 

that contain hazardous materials. 

DATES: Submit comments by May 10, 

2011. To the extent possible, PHMSA 

will consider late-filed comments as a 

final rule is developed. 

ADDRESSES: You may submit comments 

identified by the docket number 

(PHMSA–2007–28119) by any of the 

following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 1–202–493–2251. 

• Mail: Docket Operations, U.S. 

Department of Transportation, West 

Building, Ground Floor, Room W12– 

140, Routing Symbol M–30, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. 

• Hand Delivery: To Docket 

Operations, Room W12–140 on the 

ground floor of the West Building, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

Holidays. 

Instructions: All submissions must 

include the agency name and docket 

number for this notice at the beginning 

of the comment. Note that all comments 

received will be posted without change 

to the docket management system, 

including any personal information 

provided. 

Docket: For access to the dockets to 

read background documents or 

comments received, go to http:// 

www.regulations.gov, or DOT’s Docket 

Operations Office (see ADDRESSES). 

Privacy Act: Anyone is able to search 

the electronic form of any written 

communications and comments 

received into any of our dockets by the 

name of the individual submitting the 

document (or signing the document, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477) or you may visit http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Kurt 

Eichenlaub or Dirk Der Kinderen, Office 

of Hazardous Materials Standards, (202) 

366–8553, Pipeline and Hazardous 

Materials Safety Administration. 

SUPPLEMENTARY INFORMATION: 

I. Executive Summary 

This NPRM proposes requirements for 

each person (i.e., carrier or facility) who 

loads, unloads, or provides transfer 

equipment 1 to load or unload a 

hazardous material to or from a cargo 

tank motor vehicle in accordance with 

part 177. The proposal addresses safety 

concerns raised by National 

Transportation Safety Board (NTSB) and 

Chemical and Safety Hazard 

Investigation Board (CSB) 

investigations, and PHMSA’s internal 

review of hazardous material incident 

data. The proposal aims to reduce the 

overall number of hazardous material 

incidents caused by human error and 

equipment failures during cargo tank 

loading and unloading operations. As 

discussed in more detail throughout this 

document, the NPRM proposes the 

following requirements: 

Affected entities Proposal 

Cargo tank carriers, and facilities that engage in part 177 loading or 

unloading operations.

• Assess the risks of loading and unloading 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 for cargo tank loading and unloading operations under part 177.• 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. 

• Ensure that the equipment meets the performance standards in part 

178 for specification cargo tanks. 

The overall costs and benefits of the 

proposed regulations are dependent on 

the level of existing pre-compliance and 

the overall effectiveness of the proposed 

regulations (reduction in loading/ 

unloading incidents). To monetize the 

costs and benefits PHMSA used a 

number of assumptions to develop a 

base case.2 In aggregate, PHMSA 

estimates the mean present value of the 

total monetizable costs of these 

proposals (over 20 years, 7% discount 


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3Ordinarily, 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. 

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. 

BASE CASE BENEFITS AND COSTS

Year Annual benefit Discount factor 

(7%) 

PV benefit 

(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 

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 postloading/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. 


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4PHMSA analyzed incident report data contained 

in the Hazardous Materials Information System 

(HMIS; http://phmsa.dot.gov/hazmat/incidentreport). 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. 

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 

§ 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. 

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-bySection 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/datastats/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: 

Æ 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. 

Æ 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 


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accident site had to shelter-in-place for 

51⁄2 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: 

Æ 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 threehour 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 


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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 


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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 materialspecific 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 functionspecific 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 48 / Friday, March 11, 2011 / Proposed Rules 13319 

5Safer Ports Initiative, http:// 

www.saferports.org.uk/spi_1. 6Pronovost, 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 CatheterRelated Bloodstream Infections in the ICU.’’ New 

England Journal of Medicine 355.26 (2006): 2725. 

7Chlorine Institute, Inc., ‘‘Dear Chlorine User’’ 

letter, July 22, 2008. 

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. 

Section 177.831 

A. General Applicability 

In this NPRM, PHMSA proposes to 

add a new section (§ 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 § 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 § 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, 


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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 largecapacity 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 48 / Friday, March 11, 2011 / Proposed Rules 13321 

apply to all types of loading and 

unloading operations? Would 

documented loading and unloading 

procedures ensure compliance and 

improve the overall safety of loading 

and unloading operations? Would 

regulated entities incur documentation 

costs to develop and maintain risk 

assessments and operational 

procedures? If so, what is a fair estimate 

of the potential costs? 

For each component of the operating 

procedures, PHMSA is proposing that 

the procedures include measures to 

address particular risks to safety. For 

example, pre-loading and -unloading 

procedures must include measures to 

ensure that the cargo tank and transfer 

equipment are free of defects, leaks, or 

other unsafe conditions; secure the tank; 

and verify that the material is being 

transferred into the appropriate 

packagings or containment vessels. 

Similarly, loading and unloading 

procedures must include measures to 

initiate and control lading flow; monitor 

the temperature of the material being 

transferred and the pressures of the 

vessels involved in the process; monitor 

filling limits; and terminate lading flow. 

PHMSA has a particular concern for 

cargo tank loading and unloading 

operations that utilize a hose provided 

by the facility at which the operation 

takes place rather than the hose that is 

carried on a cargo tank motor vehicle. 

The HMR require operators of MC 330, 

MC 331, and non-specification cargo 

tanks used for the transportation of 

liquefied compressed gases to 

implement a comprehensive hose 

maintenance program that includes 

monthly visual inspections, annual 

leakage tests, and pressure testing of 

new and repaired hose assemblies (see 

§ 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 

§§ 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 

§ 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 PSMcovered 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 offloading 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 


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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-transportationrelated facilities is designed to prevent 

the discharge of oil from nontransportation-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®

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 


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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 hazmatrelated 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, overpressurizing, 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

Year Annual benefit Discount factor 

(7%) 

PV benefit 

(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 


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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 reapproval. 

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 


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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 crossreference 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 § 172.704, paragraphs (a)(2)(iii) 

and (d)(6) are added to read as follows: 

§ 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 


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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, § 172.831 is added to 

read as follows: 

§ 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 § 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 § 180.416(g)(1) of 

this subchapter or piping systems found 

to have any condition identified in 

§ 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 §§ 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 48 / Friday, March 11, 2011 / Proposed Rules 13327 

equipment, transport vehicle or 

packaging, and vessel into which the 

material is transferred, including— 

(i) Measures to evacuate the transfer 

system and depressurize the 

containment vessel; 

(ii) Measures to safely disconnect the 

transfer equipment; and 

(iii) Measures to secure fittings, 

valves, and closures. 

(5) Design, maintenance, and testing 

of transfer equipment. Transfer 

equipment, used to unload cargo tanks 

must be compatible with the lading and 

meet the performance requirements in 

part 178, subpart J of this subchapter, as 

appropriate for the cargo tank 

specification. Transfer equipment and 

systems, including pumps, piping, 

hoses, and connections, must be 

properly maintained and tested (see 

§ 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 § 177.834, the section heading is 

revised to read as follows, and 

paragraph (i) is removed and reserved: 

§ 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 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203 and 252 

RIN 0750–AG98 

Defense Federal Acquisition 

Regulation Supplement; Display of 

DoD Inspector General Fraud Hotline 

Posters (DFARS Case 2010–D026) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule. 

SUMMARY: DoD is proposing to issue a 

rule amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to require contractors to 

display the DoD fraud hotline poster in 

common work areas. 

DATES: Comments on the proposed rule 

should be submitted in writing to the 

address shown below on or before May 

10, 2011, to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2010–D026, 

using any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting 

‘‘DFARS Case 2010–D026’’ under the 

heading ‘‘Enter keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘DFARS Case 2010–D026.’’ Follow 

the instructions provided at the ‘‘Submit 

a Comment’’ screen. Please include your 

name, company name (if any), and 

‘‘DFARS Case 2010–D026’’ on your 

attached document. 

• E-mail: dfars@osd.mil. Include 

DFARS Case 2010–D026 in the subject 

line of the message. 

• Fax: 703–602–0350. 

• Mail: Defense Acquisition 

Regulations System, Attn: Ms. Clare 

Zebrowski, OUSD (AT&L) DPAP/DARS, 

Room 3B855, 3060 Defense Pentagon, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check www.regulations.gov 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Clare Zebrowski, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), Room 3B855, 3060 

Defense Pentagon, Washington, DC 

20301–3060. Telephone 703–602–0289; 

facsimile 703–602–0350. Please cite 

DFARS Case 2010–D026. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This rule proposes to implement the 

recommendations of the DoD Inspector 

General (IG), by providing a DFARS 

clause to use in lieu of the FAR clause 

52.203–14, Display of Hotline Poster(s). 

GAO Report GAO–09–591, Regarding 

the Display of DoD Inspector General 

Fraud Hotline Posters by DoD 

Contractors, recommended that the DoD 

IG determine the need for defense 

contractors’ display of the DoD IG’s 

fraud hotline poster, including directing 

a contractor to display the DoD IG 

hotline poster in common work areas for 

performance of DoD contracts. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS