Hazardous Materials: Cargo Tank Motor Vehicle Loading and Unloading Operations, 10461-10465 [2014-03205]
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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Proposed Rules
List of Subjects
Environmental protection,
Agricultural commodities, Feed
additives, Food additives, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: February 12, 2014.
Daniel J. Rosenblatt,
Acting Director, Registration Division, Office
of Pesticide Programs.
[FR Doc. 2014–03861 Filed 2–24–14; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Chapter 2
[Docket No. DARS–2014–0012]
Review of Statutory and Regulatory
Requirements
DARS, Department of Defense.
ACTION: Notice of extension of public
comment period.
AGENCY:
The Defense Procurement and
Acquisition Policy (DPAP) gives notice
that the comment period announced in
the February 12, 2014 (79 FR 8402)
notice of request for public comments
on DPAP’s review of statutory and
regulatory requirements, will be
extended an additional 40 days until
April 23, 2014. DPAP is currently
conducting an assessment to identify
impacts experienced by industry
resulting from contracting statutes.
DATES: Submit written comments to the
address shown below on or before April
23, 2014. Comments received will be
considered by DoD in the formation of
a recommendation to the Secretary of
Defense if a revision to the definition is
necessary and appropriate.
ADDRESSES: Submit comments to: Mr.
Michael Canales, Room 5E621, 3060
Defense Pentagon, Washington, DC
20301–3060. Comments may also be
submitted by fax at (703) 614–1254, or
by email at michael.j.canales4.civ@
mail.mil.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Canales, DPAP/CPIC, by
telephone at (703) 695–8571, or by
email at michael.j.canales4.civ@
mail.mil.
SUPPLEMENTARY INFORMATION: The
purpose of the assessment is to support
an internal Department of Defense (DoD)
effort to reduce compliance impacts that
do not achieve the benefits intended by
contracting statutes. As part of this
assessment, DPAP would like to receive
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SUMMARY:
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the views of interested parties
identifying particular impacts
associated with specific contracting
statutes. There is an extensive body of
law and regulation that govern the
Department’s business. We are seeking
to better understand the impact
experienced by industry resulting from
requirements based on statute. Our
initial review identified approximately
400 DFARS requirements based solely
on statute. The Director, DPAP, is
soliciting public input to identify
particular impacts associated with
specific contracting statutes, with
reference to—
• Particular impacts associated with
specific contracting statutes;
• Why the identified impact does not
achieve the intended benefit of the
identified legislation, or why the
intended benefit is not helpful to the
Department; and
• Any recommendations for
alternative approaches to achieve the
intended benefit of the identified
legislation.
We are also interested in candidate
DFARS and component supplements
requirements that, although not based in
statute, warrant similar consideration.
Manuel Quinones,
Editor, Defense Acquisition Regulations
System.
[FR Doc. 2014–04067 Filed 2–24–14; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 177
[Docket Number PHMSA–2007–28119 (HM–
247)]
RIN 2137–AE37
Hazardous Materials: Cargo Tank
Motor Vehicle Loading and Unloading
Operations
Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Withdrawal of notice of
proposed rulemaking (NPRM).
AGENCY:
PHMSA is closing this
rulemaking proceeding under this
docket having reconsidered our
proposal for additional regulations
associated with cargo tank motor
vehicle (CTMV) loading or unloading
operations. This action is based on the
findings of the regulatory assessment,
comments to docket of this rulemaking,
and completion of a supplementary
SUMMARY:
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policy analysis on how best to address
the safety risks of bulk loading and
unloading operations. As an alternative
to new regulatory requirements, PHMSA
will be issuing a guidance document to
provide best practices for CTMV loading
and unloading operations; and will be
conducting research to better
understand the wide range of human
factors that contribute to hazardous
materials incidents including those
associated with CTMV loading and
unloading operations.
Effective February 25, 2014, the
proposed rule published in the Federal
Register on March 11, 2011 at 76 FR
13313 is withdrawn.
DATES:
Dirk
Der Kinderen, Office of Hazardous
Materials Safety, Pipeline and
Hazardous Materials Safety
Administration, telephone (202–366–
8553.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
I. Background
II. Regulatory Assessment
III. Comments on the NPRM
A. Scope
B. Risk Assessment
C. Operating Procedures
D. Training and Qualification
E. Recordkeeping
F. Compliance
IV. Reconsideration of the NPRM
A. Guidance
B. Outreach Campaign
C. Human Factors Study
D. Memorandum of Understanding
V. Conclusion
I. Background
On March 11, 2011, PHMSA
published an NPRM under Docket
PHMSA–2007–28119 (76 FR 13313)
(HM–247) to amend the hazardous
materials regulations (HMR; 49 CFR
Parts 171–180) by requiring each person
who engages in CTMV loading or
unloading operations to perform a risk
assessment of its loading and unloading
operations and develop and implement
safe operating procedures based upon
the results of the risk assessment.
PHMSA also proposed additional
personnel training and qualification
requirements for persons who perform
these operations.
In the NPRM, PHMSA discussed the
safety problem associated with CTMV
loading and unloading operations,
including:
• A summary of loading and
unloading incident data;
• National Transportation Safety
Board (NTSB) and Chemical Safety
Board (CSB) safety recommendations
issued to PHMSA as a result of accident
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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Proposed Rules
investigations related to bulk loading
and unloading operations; 1
• Recommended operating
procedures proposed by the Interested
Parties for Hazardous Materials
Transportation (Interested Parties) (an
informal association of offerors, carriers,
and industrial package manufacturers);
• A petition (P–1506) for rulemaking
submitted by the Dangerous Goods
Advisory Council (DGAC); and
• Comments received in response to
PHMSA’s notice of recommended
practices published on January 4, 2008
under Docket Number PHMSA–2007–
28119 (73 FR 916) (Notice No. 07–9).
In the NPRM, PHMSA indicated that
adopting regulations to require offerors,
carriers, or facility operators to develop
and implement operating procedures
governing the loading and unloading of
a CTMV would enhance the safety of
such operations. We solicited comments
on the regulations proposed and the
accuracy of PHMSA’s cost and benefits
estimates set forth in the preliminary
regulatory impact assessment. The
NPRM and supporting documents are
available for review in the docket for
this rulemaking at www.regulations.gov.
A summary of the proposed changes is
provided in the following Table 1:
TABLE 1—PROPOSED NEW REQUIREMENTS AND AFFECTED ENTITIES
Affected entities
New requirements
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.
• 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 CTMVs.
Facilities providing transfer equipment for cargo tank loading and unloading operations under part 177.
As part of PHMSA’s initial
rulemaking efforts in this area, a
preliminary analysis was completed.
Through this analysis it was apparent
that shipments of hazardous materials
(hazmat) by CTMV pose some level of
risk to public safety on a daily basis. A
2007 Commodity Flow Survey by the
Bureau of Transportation Statistics
highlights this by indicating that an
estimated 323.5 billion-ton-miles of
hazardous materials were transported in
2007 of which approximately a third
(104 billion-ton-miles) was transported
by truck and an additional 7 percent
was by multimodal transport that
included truck. We believe we can
safely reason that a similar amount is
transported annually today, which
presents ample opportunity for
incidents to occur during the course of
highway transportation including
during CTMV loading and unloading
operations.
As the HMR currently requires
function specific training and
recordkeeping of this training (See 49
CFR Part 172 Subpart H) and has
loading and unloading requirements for
transport via public highways (See 49
CFR Part 177 Subpart B), PHMSA
expects that most entities already have
some manner of documentation
surrounding process review, training of
personnel, and maintenance of
equipment involved in these operations.
Other federal agencies also have
requirements associated with loading
and unloading operations that
encompass bulk transport vehicles. The
Occupational Safety and Health
Administration (OSHA) Process Safety
Management (PSM) standard (See 29
CFR 1910.119) contains requirements
for processes that use, store,
manufacture, handle, or transport highly
hazardous chemicals on-site including
bulk-loading and unloading operations
involving PSM-covered chemicals.
Additionally, the Environmental
Protection Agency (EPA) regulations
establish a general duty clause for
facility owners or operators of facilities
that produce, handle, process,
distribute, or store certain chemicals.
The regulations entail identification of
hazards associated with the accidental
releases of extremely hazardous
substances; prevention of such releases,
and minimization of the consequences
of releases.
Despite these requirements incidents
do continue to occur. An analysis of
CTMV loading and unloading incidents
during the 10-year period 2000–2009
revealed that, among other causes,
human error is the greatest primary
cause of accidents. Most human error
accidents can be attributed to
inattention to detail in performing a
loading or unloading function,
including failure to follow attendance
requirements, leaving valves in open or
closed positions, improperly connecting
hoses and other equipment, or not
disconnecting hoses prior to vehicles
having completed fill operation. This
leads to accidents such as overfilling
receiving tanks, over-pressurizing
CTMVs, or loading/unloading
incompatible materials. About 3,500
incidents could be attributed to CTMV
loading and unloading incidents. These
incidents resulted in an estimated $68
million in societal damages, or $6.8
million per year, during the 10-year
analysis period. Thus, there is a cost to
society from CTMV loading and
unloading incidents.
Following the publication of the HM–
247 NPRM, PHMSA updated the
regulatory assessment. The updated
analysis estimated benefits associated
with the proposed rule from avoidance
of incidents at $1.7 million annually
while costs are estimated to be $1.1
million annually. The overall estimated
impacts identified in the analysis are
predicated on the level of existing precompliance and the overall effectiveness
of the regulations. We assume 50
percent 2 of affected entities would
already be in compliance with the
1 NTSB Safety Recommendations I–02–1, I–02–2,
and R–04–10 and CSB Recommendation 2006–06–
I–LA–RI. On July 12, 2013 PHMSA published safety
advisory guidance (78 FR 41853) on safety
precautions and recommended guidance for
persons responsible for unloading or transloading
hazardous materials from rail tank cars, specifically,
heating of rail tank cars for unloading or
transloading. The publication of this guidance
resulted in the NTSB closing recommendations I–
02–1 and I–02–2 as ‘‘Closed—Acceptable
Alternative Action.’’
2 The 50 percent compliance rate is based on
comments to the docket noting the prevalence of
other non-DOT governmental requirements and
anecdotal reports of use of industry codes.
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II. Regulatory Assessment
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Federal Register / Vol. 79, No. 37 / Tuesday, February 25, 2014 / Proposed Rules
proposed measures, and that
implementation of the proposed
regulations would reduce incidents by
40 percent.3
Furthermore, in the absence of true
data, we rely heavily on estimates of
variables used in calculating the
benefits and costs, either from previous
analyses for other rulemaking efforts or
from newly calculated estimates.
Although, we did not receive adverse
comments on our estimates and also
received some supportive comments, we
remain concerned about achieving a
valid result. Despite the 1.5 benefit-cost
ratio PHMSA is concerned that the
overall benefit of regulatory action is
overestimated based on the role that
human error plays in loading and
unloading incidents. Due to this
uncertainty, PHMSA conducted a
supplementary policy analysis to help
decision-makers determine whether
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regulatory action was the best path
forward or if non-regulatory approaches
may be just as effective. This
supplementary analysis is discussed in
Section IV of this withdrawal notice.
III. Comments on the NPRM
In response to PHMSA’s March 11,
2011 NPRM, PHMSA received
comments from 44 organizations and
individuals:
TABLE 2—COMMENTERS TO THE NPRM
Docket No.
PHMSA–2007–28119–XXXX
Commenter
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Agricultural Retailers Association (ARA) .........................................................................................................
Akzo Nobel Chemicals, Inc. ............................................................................................................................
American Chemistry Council (ACC) ................................................................................................................
American Gas Association (AGA) ...................................................................................................................
American Trucking Association (ATA) .............................................................................................................
Anonymous ......................................................................................................................................................
Arkema, Inc. .....................................................................................................................................................
Association of American Railroads ..................................................................................................................
Bayer Material Science ....................................................................................................................................
BP Products North America, Inc. ....................................................................................................................
Brian T. Knapp .................................................................................................................................................
Dangerous Goods Advisory Council (DGAC) .................................................................................................
Distrigas of Massachusetts, LLC .....................................................................................................................
Dow Chemical Company (Dow) ......................................................................................................................
Dupont Global Logistics ...................................................................................................................................
Far West Agribusiness Association (FWAA) ...................................................................................................
Illinois Fertilizer & Chemical Association (IFCA) .............................................................................................
International Brotherhood of Teamsters (IBT) .................................................................................................
Institute of Makers of Explosives (IME) ...........................................................................................................
Joyce Dillard ....................................................................................................................................................
National Association of Chemical Distributers (NACD) ...................................................................................
National Association of State Fire Marshals ...................................................................................................
National Grid ....................................................................................................................................................
National Propane Gas Association (NPGA) ....................................................................................................
National Tank Truck Carriers (NTTC) .............................................................................................................
National Transportation Safety Board (NTSB) ................................................................................................
New England Fuel Institute .............................................................................................................................
Petroleum Marketers Association of America (PMAA) ...................................................................................
PPG Industries, Inc. .........................................................................................................................................
Salt River Project Agricultural Improvement and Power District (SRP) ..........................................................
Sara Thane ......................................................................................................................................................
Society of Independent Gasoline Marketers of America (SIGMA) .................................................................
Syngenta Crop Protection ...............................................................................................................................
The Chlorine Institute ......................................................................................................................................
The Fertilizer Institute (TFI) .............................................................................................................................
U.S. Chemical Safety and Hazard Investigation Board (CSB) .......................................................................
Utility Solid Waste Activities Group (USWAG) ................................................................................................
Valero Energy Corporation ..............................................................................................................................
Veolia ES Technical Solutions, LLC ................................................................................................................
The comments are available for
review in the docket for this rulemaking
at www.regulations.gov. The comments
generally opposed adoption of this
rulemaking and covered the following
range of topics associated with the
proposed requirements: Scope; risk
assessment; operating procedures;
training and qualification;
recordkeeping; and the compliance date.
A brief summary of the essence of
comments for each topic follows:
3 The 40 percent effectiveness rate is based on a
literature review and our best judgment that
indicates this rate is a reasonable estimate of the
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A. Scope
Commenters noted confusion about
the applicability of the proposed rule,
namely, how the rulemaking would
apply in the absence of a carrier at a
facility as well as the extent of the reach
of the applicability (e.g., Does it end at
the first permanent valve on the
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0053;
0047;
0059, 0061; 0062; 0063; 0064;
0065;
0052;
0051;
0092;
0035;
0049;
0084
0097
0085
0075
0091
0067
0046
0048
0082
0096
0086
0081
0078
0070
0080
0066
0069
0089
0079
0094
0087
0054
0050
0088
0095
0098
0093
0099
0090
0073
0060
0076
0071
0083
0084
0100
0074
0068
0077
receiving equipment?). Additionally,
commenters questioned whether there is
a minimum threshold before the
rulemaking would apply (i.e., 3,000
liters) and whether the rulemaking truly
is performance-based rather than
prescriptive.
B. Risk Assessment
PHMSA proposed to require any
person who loads or unloads hazmat or
reduction of human errors should the NPRM be
implemented.
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provides transfer equipment to load or
unload a CTMV to prepare a risk
assessment of the operation. The risk
assessment was to include specific
minimum measures to address the
safety of such operations. PHMSA
received a substantial number of
comments on the proposed provisions
associated with this requirement to
conduct a risk assessment. Commenters
primarily expressed concern over the
possibility of duplication of efforts by
facilities and carriers.
C. Operating Procedures
PHMSA proposed to require each
person who is subject to the risk
assessment requirement to develop,
maintain, and adhere to an operating
procedure for the specific loading or
unloading operation based on the
completed risk assessment. The
operating procedures were to include
provisions that address pre-loading/
unloading, loading/unloading,
emergency management, post-loading/
unloading, design, maintenance and
testing of transfer equipment, facility
oversight of carrier personnel, and
recordkeeping. Commenters questioned
the intent of provisions for the
maintenance and testing of transfer
equipment within the operating
procedure requirements. Commenters
discussed additional issues such as
alternative measures for attendance
during a loading operation.
D. Training and Qualification
PHMSA proposed annual evaluation
of hazmat employees performing CTMV
loading and unloading operations
through measures such as direct
observation of routine performance of
duties or through practice sessions and
drills. Many commenters strongly
opposed this proposal. They generally
asserted that PHMSA significantly
underestimated the costs of such a
requirement in the preliminary
assessment for the NPRM.
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E. Recordkeeping
PHMSA proposed recordkeeping
requirements for the written risk
assessment and operating procedure.
Several commenters suggested that this
proposed requirement to document and
retain risk assessments is overly
burdensome and unnecessary.
F. Compliance
Commenters requested an extended
compliance date to allow for time to
conduct a complete review of current
practices and to implement
improvements or updates while others
suggested that a significant majority of
potentially affected entities already have
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operating procedures in place that
would satisfy the regulations set forth in
this proposed rule such that an
extended compliance period would not
be necessary.
IV. Reconsideration of the NPRM
PHMSA conducts a policy analysis to
identify and manage risks in the
transportation of hazmat. The policy
analysis makes use of a risk
management framework that defines the
main elements of identified risk(s) and
outlines possible ways to address the
risk(s). The process begins when a risk
in the transportation of hazmat is first
assessed (e.g., when a risk is presented
to PHMSA through an NTSB safety
recommendation), and ends with an
agency decision on implementation of
an identified approach of how to
manage the risk, such as implementing
a new regulation.
In consideration of the negative
comments on the NPRM and
uncertainties about regulatory action as
well as the uncertainties of the
regulatory assessment, PHMSA
conducted a supplementary policy
analysis to help decision-makers
determine whether this effort is the best
course of action. After this policy
analysis, we reconsidered our approach
to address the safety risks of bulk
loading and unloading operations
through rulemaking. The analysis raised
concerns on the effectiveness of
implementing any new regulations
covering loading and unloading
operations including whether any
proposed regulations would be: (1)
Redundant because the activity is
already covered in some manner under
the current HMR; (2) impactful in that
many of the incidents having occurred
in the past would probably continue to
occur because of the human element in
incidents indicating that further
regulation may be ineffective; and (3)
confusing to implement without an
memorandum of understanding (MOU)
among the agencies that have oversight
clearly defining roles and enforcement
of these types of operations.
The subsequent recommendations of
the assessment include (in no particular
order of priority): (1) Preparing a
guidance document that, together with
current regulations, provides direction
on bulk loading and unloading
operational procedures, use of personal
protective equipment, and maintenance
and inspection of transfer equipment;
(2) engaging in a rigorous outreach
campaign to raise awareness; (3)
implementing a human factor study
associated with bulk loading and
unloading operations; and (4) finalizing
a (MOU) with the Occupational Safety
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and Health Administration (OSHA) and,
possibly, the Environmental Protection
Agency (EPA) in order to specify any
new regulatory requirements and
enforcement roles. These
recommendations are discussed in
further detail below.
A. Guidance
Agency guidance includes any
statement of policy, interpretation of a
regulation, or any other method used to
communicate to the regulated public the
agency expectations. Guidance is not
legally binding and may not mandate or
require a particular action but rather is
intended to provide helpful
information, clarify a rule’s or statute’s
meaning, or communicate our policy for
implementing requirements. Based on
concerns raised on the effectiveness of
further regulation in the supplementary
policy analysis, it is better served that
PHMSA prepare a guidance document
that provides helpful information on
CTMV loading and unloading
operations in addition to what is
required by regulation. The guidance
would cover, in part, training on
operational procedures, provision of
personal protection equipment, and
maintenance and inspection of transfer
equipment including emergency
shutdown systems and would be based
on the content and structure of the
proposed regulations in the NPRM.
Although not binding as stated earlier,
we believe issuing a guidance document
still provides an opportunity to enhance
safety by clarifying the current
requirements, providing helpful
information, outlining our expectations
for CTMV loading and unloading
operations, and clearly attributing
human error to loading and unloading
incidents.
B. Outreach Campaign
To supplement the abovementioned
plans for issuing guidance, PHMSA
plans to develop and implement an
outreach program to raise awareness of
the ongoing risk of CTMV loading and
unloading incidents and to educate
regulated entities on ways to prevent or
mitigate the risks.
C. Human Factors Study
Human factors research involves the
study of the way humans relate to the
world around them. Human factors
certainly play a role in hazmat
transportation especially bulk loading
and unloading operations because
individuals are directly involved (e.g.,
handling of transfer equipment) and
thus, human factors research is included
among the priorities of PHMSA’s Office
of Hazardous Materials Safety (OHMS)
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research and development (R&D) fiveyear strategic plan (2012–2017). In
general, from review of hazmat incident
report data for all incident types, we
have found that human error is the
fourth-most cited cause of failure as is
similarly indicated above in Section II
specific to loading and unloading
incidents.
The goal of the OHMS R&D program
is to enhance the safety mission and
identify and mitigate the emerging risks
associated with hazmat transportation
and to better understand the factors
contributing to these risks. This human
factors research effort is, among other
things, designed to supply information
necessary to guide future changes in
regulations. OHMS created this priority
to examine human involvement in the
release of hazmat (e.g., human error), to
research regulations that involve human
impact, and develop new strategies to
reduce human handling errors.
Although historically overlooked in
hazmat transportation safety research,
we view this type of research essential
as the safe transportation of all hazmat
involves human interaction within the
transportation system. This research
would involve some manner of
assessment of human factors in bulk
loading and unloading operations
including for CTMV operations. Results
of such research may bear out
significant information that can be used
to support future rulemaking action.
at this time. PHMSA has based this
decision on its concerns that further
regulation would create redundancies,
confusion, and possibly be ineffective in
preventing many of the very same
incidents it is intended to address. Nonregulatory approaches are available in
the short term that would still provide
an opportunity to enhance safety of
CTMV loading and unloading
operations by raising awareness and
communicating our expectations. Key
non-regulatory activities include:
1. Issuing a guidance document for
CTMV loading and unloading
operations;
2. Implementing an outreach
campaign to educate the regulated
community on current regulatory
requirements and best safety practices;
and
3. Conducting human factors research
to examine human involvement in
release of hazmat and to potentially use
this to support future consideration of
rulemaking to address CTMV loading
and unloading operations.
Accordingly, PHMSA is withdrawing
the March 11, 2011 NPRM and
terminating this rulemaking proceeding.
Issued in Washington, DC on February 10,
2014, under authority delegated in 49 CFR
Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
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D. Memorandum of Understanding
As part of a plan to enhance safety of
bulk loading and unloading operations
(including CTMV operations), PHMSA
had envisioned development of an MOU
with OSHA to clarify responsibilities.
This plan called for a two-pronged
approach of an MOU supplemented by
a phased rulemaking approach (i.e., first
a rulemaking to address CTMV loading
and unloading operations followed by
rulemakings for tank cars and other bulk
packaging). But, since we are
withdrawing this rulemaking, PHMSA
does not plan to develop an MOU at this
time because development of the MOU
was intended to be directly linked to the
new regulations proposed in the NPRM.
[FR Doc. 2014–03205 Filed 2–24–14; 8:45 am]
V. Conclusion
PHMSA has concluded that adopting
the regulations proposed under the
NPRM is not the best course of action
AGENCY:
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BILLING CODE 4910–60–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 130722646–4081–01]
RIN 0648–BD54
International Fisheries; Pacific Tuna
Fisheries; Establishment of Tuna
Vessel Monitoring System in the
Eastern Pacific Ocean; Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
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10465
Proposed rule; request for
comments; correction.
ACTION:
This action corrects a web
address provided for the submission of
electronic public comments in a notice
that published on February 6, 2014.
DATES: Comments on the proposed rule
and the initial regulatory flexibility
analysis (IRFA) must be submitted on or
before March 10, 2014. A public hearing
will be held from 1 p.m. to 4 p.m. PST,
February 28, 2014, in Long Beach, CA.
FOR FURTHER INFORMATION CONTACT:
Heidi Taylor, NMFS West Coast Region,
562–980–4039, or Rachael Wadsworth,
NMFS West Coast Region, 562–980–
4036.
SUMMARY:
NMFS
proposed regulations that would
establish requirements for a satellitebased vessel monitoring system (VMS)
for U.S. commercial fishing vessels, 24
meters or more in overall length, used
to target any fish of the genus Thunnus
or of the species Euthynnus
(Katsuwonus) pelamis (skipjack tuna) in
the area bounded by the west coast of
the Americas and on the north, south
and west respectively, by the 50° N. and
50° S. parallels, and the 150° W.
meridian.
SUPPLEMENTARY INFORMATION:
Need for Correction
NMFS provided methods to submit
public comments that include
electronic, mail and a public hearing.
However, the web address provided for
the submission of electronic public
comments is incorrect.
Correction
Accordingly, in the notice published
on February 6, 2014 (79 FR 7152), on
page 7152, third column, in the first
bullet point of the ADDRESSES section,
the web address provided for the
submission of electronic public
comments is corrected to read as
follows: www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20130117
Dated: February 18, 2014.
Samuel D. Rauch III,
Deputy Assistant Administrator for
Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2014–03911 Filed 2–24–14; 8:45 am]
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]]>Agencies
[Federal Register Volume 79, Number 37 (Tuesday, February 25, 2014)]
[Proposed Rules]
[Pages 10461-10465]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03205]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Part 177
[Docket Number PHMSA-2007-28119 (HM-247)]
RIN 2137-AE37
Hazardous Materials: Cargo Tank Motor Vehicle Loading and
Unloading Operations
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Withdrawal of notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: PHMSA is closing this rulemaking proceeding under this docket
having reconsidered our proposal for additional regulations associated
with cargo tank motor vehicle (CTMV) loading or unloading operations.
This action is based on the findings of the regulatory assessment,
comments to docket of this rulemaking, and completion of a
supplementary policy analysis on how best to address the safety risks
of bulk loading and unloading operations. As an alternative to new
regulatory requirements, PHMSA will be issuing a guidance document to
provide best practices for CTMV loading and unloading operations; and
will be conducting research to better understand the wide range of
human factors that contribute to hazardous materials incidents
including those associated with CTMV loading and unloading operations.
DATES: Effective February 25, 2014, the proposed rule published in the
Federal Register on March 11, 2011 at 76 FR 13313 is withdrawn.
FOR FURTHER INFORMATION CONTACT: Dirk Der Kinderen, Office of Hazardous
Materials Safety, Pipeline and Hazardous Materials Safety
Administration, telephone (202-366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
II. Regulatory Assessment
III. Comments on the NPRM
A. Scope
B. Risk Assessment
C. Operating Procedures
D. Training and Qualification
E. Recordkeeping
F. Compliance
IV. Reconsideration of the NPRM
A. Guidance
B. Outreach Campaign
C. Human Factors Study
D. Memorandum of Understanding
V. Conclusion
I. Background
On March 11, 2011, PHMSA published an NPRM under Docket PHMSA-2007-
28119 (76 FR 13313) (HM-247) to amend the hazardous materials
regulations (HMR; 49 CFR Parts 171-180) by requiring each person who
engages in CTMV loading or unloading operations to perform a risk
assessment of its loading and unloading operations and develop and
implement safe operating procedures based upon the results of the risk
assessment. PHMSA also proposed additional personnel training and
qualification requirements for persons who perform these operations.
In the NPRM, PHMSA discussed the safety problem associated with
CTMV loading and unloading operations, including:
A summary of loading and unloading incident data;
National Transportation Safety Board (NTSB) and Chemical
Safety Board (CSB) safety recommendations issued to PHMSA as a result
of accident
[[Page 10462]]
investigations related to bulk loading and unloading operations; \1\
---------------------------------------------------------------------------
\1\ NTSB Safety Recommendations I-02-1, I-02-2, and R-04-10 and
CSB Recommendation 2006-06-I-LA-RI. On July 12, 2013 PHMSA published
safety advisory guidance (78 FR 41853) on safety precautions and
recommended guidance for persons responsible for unloading or
transloading hazardous materials from rail tank cars, specifically,
heating of rail tank cars for unloading or transloading. The
publication of this guidance resulted in the NTSB closing
recommendations I-02-1 and I-02-2 as ``Closed--Acceptable
Alternative Action.''
---------------------------------------------------------------------------
Recommended operating procedures proposed by the
Interested Parties for Hazardous Materials Transportation (Interested
Parties) (an informal association of offerors, carriers, and industrial
package manufacturers);
A petition (P-1506) for rulemaking submitted by the
Dangerous Goods Advisory Council (DGAC); and
Comments received in response to PHMSA's notice of
recommended practices published on January 4, 2008 under Docket Number
PHMSA-2007-28119 (73 FR 916) (Notice No. 07-9).
In the NPRM, PHMSA indicated that adopting regulations to require
offerors, carriers, or facility operators to develop and implement
operating procedures governing the loading and unloading of a CTMV
would enhance the safety of such operations. We solicited comments on
the regulations proposed and the accuracy of PHMSA's cost and benefits
estimates set forth in the preliminary regulatory impact assessment.
The NPRM and supporting documents are available for review in the
docket for this rulemaking at www.regulations.gov. A summary of the
proposed changes is provided in the following Table 1:
Table 1--Proposed New Requirements and Affected Entities
------------------------------------------------------------------------
Affected entities New requirements
------------------------------------------------------------------------
Cargo tank carriers and facilities that Assess the risks of
engage in part 177 loading or loading and unloading
unloading operations. operations and develop written
operating procedures.
Train hazmat employees
in the relevant aspects of the
operational procedures.
Annually qualify
hazmat employees who perform
loading and unloading
operations.
Facilities providing transfer equipment Develop and implement
for cargo tank loading and unloading a periodic maintenance
operations under part 177. schedule to prevent
deterioration of equipment and
conduct periodic operational
tests to ensure that the
equipment functions as
intended.
Ensure that the
equipment meets the
performance standards in part
178 for specification CTMVs.
------------------------------------------------------------------------
II. Regulatory Assessment
As part of PHMSA's initial rulemaking efforts in this area, a
preliminary analysis was completed. Through this analysis it was
apparent that shipments of hazardous materials (hazmat) by CTMV pose
some level of risk to public safety on a daily basis. A 2007 Commodity
Flow Survey by the Bureau of Transportation Statistics highlights this
by indicating that an estimated 323.5 billion-ton-miles of hazardous
materials were transported in 2007 of which approximately a third (104
billion-ton-miles) was transported by truck and an additional 7 percent
was by multimodal transport that included truck. We believe we can
safely reason that a similar amount is transported annually today,
which presents ample opportunity for incidents to occur during the
course of highway transportation including during CTMV loading and
unloading operations.
As the HMR currently requires function specific training and
recordkeeping of this training (See 49 CFR Part 172 Subpart H) and has
loading and unloading requirements for transport via public highways
(See 49 CFR Part 177 Subpart B), PHMSA expects that most entities
already have some manner of documentation surrounding process review,
training of personnel, and maintenance of equipment involved in these
operations. Other federal agencies also have requirements associated
with loading and unloading operations that encompass bulk transport
vehicles. The Occupational Safety and Health Administration (OSHA)
Process Safety Management (PSM) standard (See 29 CFR 1910.119) contains
requirements for processes that use, store, manufacture, handle, or
transport highly hazardous chemicals on-site including bulk-loading and
unloading operations involving PSM-covered chemicals. Additionally, the
Environmental Protection Agency (EPA) regulations establish a general
duty clause for facility owners or operators of facilities that
produce, handle, process, distribute, or store certain chemicals. The
regulations entail identification of hazards associated with the
accidental releases of extremely hazardous substances; prevention of
such releases, and minimization of the consequences of releases.
Despite these requirements incidents do continue to occur. An
analysis of CTMV loading and unloading incidents during the 10-year
period 2000-2009 revealed that, among other causes, human error is the
greatest primary cause of accidents. Most human error accidents can be
attributed to inattention to detail in performing a loading or
unloading function, including failure to follow attendance
requirements, leaving valves in open or closed positions, improperly
connecting hoses and other equipment, or not disconnecting hoses prior
to vehicles having completed fill operation. This leads to accidents
such as overfilling receiving tanks, over-pressurizing CTMVs, or
loading/unloading incompatible materials. About 3,500 incidents could
be attributed to CTMV loading and unloading incidents. These incidents
resulted in an estimated $68 million in societal damages, or $6.8
million per year, during the 10-year analysis period. Thus, there is a
cost to society from CTMV loading and unloading incidents.
Following the publication of the HM-247 NPRM, PHMSA updated the
regulatory assessment. The updated analysis estimated benefits
associated with the proposed rule from avoidance of incidents at $1.7
million annually while costs are estimated to be $1.1 million annually.
The overall estimated impacts identified in the analysis are predicated
on the level of existing pre-compliance and the overall effectiveness
of the regulations. We assume 50 percent \2\ of affected entities would
already be in compliance with the
[[Page 10463]]
proposed measures, and that implementation of the proposed regulations
would reduce incidents by 40 percent.\3\
---------------------------------------------------------------------------
\2\ The 50 percent compliance rate is based on comments to the
docket noting the prevalence of other non-DOT governmental
requirements and anecdotal reports of use of industry codes.
\3\ The 40 percent effectiveness rate is based on a literature
review and our best judgment that indicates this rate is a
reasonable estimate of the reduction of human errors should the NPRM
be implemented.
---------------------------------------------------------------------------
Furthermore, in the absence of true data, we rely heavily on
estimates of variables used in calculating the benefits and costs,
either from previous analyses for other rulemaking efforts or from
newly calculated estimates. Although, we did not receive adverse
comments on our estimates and also received some supportive comments,
we remain concerned about achieving a valid result. Despite the 1.5
benefit-cost ratio PHMSA is concerned that the overall benefit of
regulatory action is overestimated based on the role that human error
plays in loading and unloading incidents. Due to this uncertainty,
PHMSA conducted a supplementary policy analysis to help decision-makers
determine whether regulatory action was the best path forward or if
non-regulatory approaches may be just as effective. This supplementary
analysis is discussed in Section IV of this withdrawal notice.
III. Comments on the NPRM
In response to PHMSA's March 11, 2011 NPRM, PHMSA received comments
from 44 organizations and individuals:
Table 2--Commenters to the NPRM
------------------------------------------------------------------------
Commenter Docket No. PHMSA-2007-28119-XXXX
------------------------------------------------------------------------
Agricultural Retailers Association 0084
(ARA)..............................
Akzo Nobel Chemicals, Inc........... 0097
American Chemistry Council (ACC).... 0053; 0085
American Gas Association (AGA)...... 0075
American Trucking Association (ATA). 0047; 0091
Anonymous........................... 0059, 0061; 0062; 0063; 0064; 0067
Arkema, Inc......................... 0046
Association of American Railroads... 0048
Bayer Material Science.............. 0082
BP Products North America, Inc...... 0096
Brian T. Knapp...................... 0086
Dangerous Goods Advisory Council 0065; 0081
(DGAC).............................
Distrigas of Massachusetts, LLC..... 0078
Dow Chemical Company (Dow).......... 0070
Dupont Global Logistics............. 0080
Far West Agribusiness Association 0066
(FWAA).............................
Illinois Fertilizer & Chemical 0069
Association (IFCA).................
International Brotherhood of 0089
Teamsters (IBT)....................
Institute of Makers of Explosives 0079
(IME)..............................
Joyce Dillard....................... 0094
National Association of Chemical 0052; 0087
Distributers (NACD)................
National Association of State Fire 0054
Marshals...........................
National Grid....................... 0050
National Propane Gas Association 0088
(NPGA).............................
National Tank Truck Carriers (NTTC). 0051; 0095
National Transportation Safety Board 0098
(NTSB).............................
New England Fuel Institute.......... 0093
Petroleum Marketers Association of 0092; 0099
America (PMAA).....................
PPG Industries, Inc................. 0090
Salt River Project Agricultural 0073
Improvement and Power District
(SRP)..............................
Sara Thane.......................... 0060
Society of Independent Gasoline 0076
Marketers of America (SIGMA).......
Syngenta Crop Protection............ 0071
The Chlorine Institute.............. 0083
The Fertilizer Institute (TFI)...... 0084
U.S. Chemical Safety and Hazard 0035; 0100
Investigation Board (CSB)..........
Utility Solid Waste Activities Group 0049; 0074
(USWAG)............................
Valero Energy Corporation........... 0068
Veolia ES Technical Solutions, LLC.. 0077
------------------------------------------------------------------------
The comments are available for review in the docket for this
rulemaking at www.regulations.gov. The comments generally opposed
adoption of this rulemaking and covered the following range of topics
associated with the proposed requirements: Scope; risk assessment;
operating procedures; training and qualification; recordkeeping; and
the compliance date. A brief summary of the essence of comments for
each topic follows:
A. Scope
Commenters noted confusion about the applicability of the proposed
rule, namely, how the rulemaking would apply in the absence of a
carrier at a facility as well as the extent of the reach of the
applicability (e.g., Does it end at the first permanent valve on the
receiving equipment?). Additionally, commenters questioned whether
there is a minimum threshold before the rulemaking would apply (i.e.,
3,000 liters) and whether the rulemaking truly is performance-based
rather than prescriptive.
B. Risk Assessment
PHMSA proposed to require any person who loads or unloads hazmat or
[[Page 10464]]
provides transfer equipment to load or unload a CTMV to prepare a risk
assessment of the operation. The risk assessment was to include
specific minimum measures to address the safety of such operations.
PHMSA received a substantial number of comments on the proposed
provisions associated with this requirement to conduct a risk
assessment. Commenters primarily expressed concern over the possibility
of duplication of efforts by facilities and carriers.
C. Operating Procedures
PHMSA proposed to require each person who is subject to the risk
assessment requirement to develop, maintain, and adhere to an operating
procedure for the specific loading or unloading operation based on the
completed risk assessment. The operating procedures were to include
provisions that address pre-loading/unloading, loading/unloading,
emergency management, post-loading/unloading, design, maintenance and
testing of transfer equipment, facility oversight of carrier personnel,
and recordkeeping. Commenters questioned the intent of provisions for
the maintenance and testing of transfer equipment within the operating
procedure requirements. Commenters discussed additional issues such as
alternative measures for attendance during a loading operation.
D. Training and Qualification
PHMSA proposed annual evaluation of hazmat employees performing
CTMV loading and unloading operations through measures such as direct
observation of routine performance of duties or through practice
sessions and drills. Many commenters strongly opposed this proposal.
They generally asserted that PHMSA significantly underestimated the
costs of such a requirement in the preliminary assessment for the NPRM.
E. Recordkeeping
PHMSA proposed recordkeeping requirements for the written risk
assessment and operating procedure. Several commenters suggested that
this proposed requirement to document and retain risk assessments is
overly burdensome and unnecessary.
F. Compliance
Commenters requested an extended compliance date to allow for time
to conduct a complete review of current practices and to implement
improvements or updates while others suggested that a significant
majority of potentially affected entities already have operating
procedures in place that would satisfy the regulations set forth in
this proposed rule such that an extended compliance period would not be
necessary.
IV. Reconsideration of the NPRM
PHMSA conducts a policy analysis to identify and manage risks in
the transportation of hazmat. The policy analysis makes use of a risk
management framework that defines the main elements of identified
risk(s) and outlines possible ways to address the risk(s). The process
begins when a risk in the transportation of hazmat is first assessed
(e.g., when a risk is presented to PHMSA through an NTSB safety
recommendation), and ends with an agency decision on implementation of
an identified approach of how to manage the risk, such as implementing
a new regulation.
In consideration of the negative comments on the NPRM and
uncertainties about regulatory action as well as the uncertainties of
the regulatory assessment, PHMSA conducted a supplementary policy
analysis to help decision-makers determine whether this effort is the
best course of action. After this policy analysis, we reconsidered our
approach to address the safety risks of bulk loading and unloading
operations through rulemaking. The analysis raised concerns on the
effectiveness of implementing any new regulations covering loading and
unloading operations including whether any proposed regulations would
be: (1) Redundant because the activity is already covered in some
manner under the current HMR; (2) impactful in that many of the
incidents having occurred in the past would probably continue to occur
because of the human element in incidents indicating that further
regulation may be ineffective; and (3) confusing to implement without
an memorandum of understanding (MOU) among the agencies that have
oversight clearly defining roles and enforcement of these types of
operations.
The subsequent recommendations of the assessment include (in no
particular order of priority): (1) Preparing a guidance document that,
together with current regulations, provides direction on bulk loading
and unloading operational procedures, use of personal protective
equipment, and maintenance and inspection of transfer equipment; (2)
engaging in a rigorous outreach campaign to raise awareness; (3)
implementing a human factor study associated with bulk loading and
unloading operations; and (4) finalizing a (MOU) with the Occupational
Safety and Health Administration (OSHA) and, possibly, the
Environmental Protection Agency (EPA) in order to specify any new
regulatory requirements and enforcement roles. These recommendations
are discussed in further detail below.
A. Guidance
Agency guidance includes any statement of policy, interpretation of
a regulation, or any other method used to communicate to the regulated
public the agency expectations. Guidance is not legally binding and may
not mandate or require a particular action but rather is intended to
provide helpful information, clarify a rule's or statute's meaning, or
communicate our policy for implementing requirements. Based on concerns
raised on the effectiveness of further regulation in the supplementary
policy analysis, it is better served that PHMSA prepare a guidance
document that provides helpful information on CTMV loading and
unloading operations in addition to what is required by regulation. The
guidance would cover, in part, training on operational procedures,
provision of personal protection equipment, and maintenance and
inspection of transfer equipment including emergency shutdown systems
and would be based on the content and structure of the proposed
regulations in the NPRM. Although not binding as stated earlier, we
believe issuing a guidance document still provides an opportunity to
enhance safety by clarifying the current requirements, providing
helpful information, outlining our expectations for CTMV loading and
unloading operations, and clearly attributing human error to loading
and unloading incidents.
B. Outreach Campaign
To supplement the abovementioned plans for issuing guidance, PHMSA
plans to develop and implement an outreach program to raise awareness
of the ongoing risk of CTMV loading and unloading incidents and to
educate regulated entities on ways to prevent or mitigate the risks.
C. Human Factors Study
Human factors research involves the study of the way humans relate
to the world around them. Human factors certainly play a role in hazmat
transportation especially bulk loading and unloading operations because
individuals are directly involved (e.g., handling of transfer
equipment) and thus, human factors research is included among the
priorities of PHMSA's Office of Hazardous Materials Safety (OHMS)
[[Page 10465]]
research and development (R&D) five-year strategic plan (2012-2017). In
general, from review of hazmat incident report data for all incident
types, we have found that human error is the fourth-most cited cause of
failure as is similarly indicated above in Section II specific to
loading and unloading incidents.
The goal of the OHMS R&D program is to enhance the safety mission
and identify and mitigate the emerging risks associated with hazmat
transportation and to better understand the factors contributing to
these risks. This human factors research effort is, among other things,
designed to supply information necessary to guide future changes in
regulations. OHMS created this priority to examine human involvement in
the release of hazmat (e.g., human error), to research regulations that
involve human impact, and develop new strategies to reduce human
handling errors. Although historically overlooked in hazmat
transportation safety research, we view this type of research essential
as the safe transportation of all hazmat involves human interaction
within the transportation system. This research would involve some
manner of assessment of human factors in bulk loading and unloading
operations including for CTMV operations. Results of such research may
bear out significant information that can be used to support future
rulemaking action.
D. Memorandum of Understanding
As part of a plan to enhance safety of bulk loading and unloading
operations (including CTMV operations), PHMSA had envisioned
development of an MOU with OSHA to clarify responsibilities. This plan
called for a two-pronged approach of an MOU supplemented by a phased
rulemaking approach (i.e., first a rulemaking to address CTMV loading
and unloading operations followed by rulemakings for tank cars and
other bulk packaging). But, since we are withdrawing this rulemaking,
PHMSA does not plan to develop an MOU at this time because development
of the MOU was intended to be directly linked to the new regulations
proposed in the NPRM.
V. Conclusion
PHMSA has concluded that adopting the regulations proposed under
the NPRM is not the best course of action at this time. PHMSA has based
this decision on its concerns that further regulation would create
redundancies, confusion, and possibly be ineffective in preventing many
of the very same incidents it is intended to address. Non-regulatory
approaches are available in the short term that would still provide an
opportunity to enhance safety of CTMV loading and unloading operations
by raising awareness and communicating our expectations. Key non-
regulatory activities include:
1. Issuing a guidance document for CTMV loading and unloading
operations;
2. Implementing an outreach campaign to educate the regulated
community on current regulatory requirements and best safety practices;
and
3. Conducting human factors research to examine human involvement
in release of hazmat and to potentially use this to support future
consideration of rulemaking to address CTMV loading and unloading
operations.
Accordingly, PHMSA is withdrawing the March 11, 2011 NPRM and
terminating this rulemaking proceeding.
Issued in Washington, DC on February 10, 2014, under authority
delegated in 49 CFR Part 106.
Magdy El-Sibaie,
Associate Administrator for Hazardous Materials Safety, Pipeline and
Hazardous Materials Safety Administration.
[FR Doc. 2014-03205 Filed 2-24-14; 8:45 am]
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