[Federal Register: May 30, 2003 (Volume 68, Number 104)]
[Rules and Regulations]
[Page 32409-32414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30my03-24]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 173, 177 and 178
[Docket No. RSPA-01-10533 (HM-218A)]
RIN 2137-AD44
Transportation of Hazardous Materials; Unloading of Intermodal
(IM) and UN Portable Tanks on Transport Vehicles
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Hazardous Materials Regulations to
permit, for an interim period and subject to certain unloading
conditions, the unloading of IM and UN portable tanks transporting
certain liquid hazardous materials when those tanks are not equipped
with a thermal means of remote activation of the internal self-closing
stop-valves fitted on the bottom discharge outlets. Permitting such
unloading for an interim period affords operators time to bring the
portable tanks into conformance with the regulations.
DATES: Effective Date: June 30, 2003.
Voluntary Compliance Date: RSPA is authorizing immediate voluntary
compliance, however, RSPA may further revise this rule as a result of
appeals that may be received.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials Standards, telephone, (202) 366-8553, or Philip Olson, Office
of Hazardous Materials Technology, (202) 366-4504, Research and Special
Programs Administration, U.S. Department of Transportation, 400 Seventh
St., SW., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
On February 22, 2002, the Research and Special Programs
Administration (``RSPA'' or ``we'') published a notice of proposed
rulemaking (NPRM) (67 FR 8220) under Docket HM-218A. The NPRM proposed
to permit, for an interim period and subject to certain conditions, the
unloading of intermodal (IM) portable tanks transporting certain liquid
hazardous materials when those tanks are not equipped with a thermal
means of remote activation of the internal self-closing stop-valves
fitted on the bottom discharge outlets.
The NPRM was based on the appeal of a denial of a petition for
reconsideration and a petition for rulemaking regarding the provisions
in Sec. 177.834(o) of the Hazardous Materials Regulations (HMR; 49 CFR
parts 171-180), permitting an IM portable tank to be unloaded while it
remains on a transport vehicle. The petitions were in response to a
final rule under Docket RSPA-97-2905 (HM-166Y; 63 FR 37454; July 10,
1998) which incorporated miscellaneous changes into the HMR based on
petitions for rulemaking and our own initiative. The effective date of
the final rule was October 1, 1998. Among other provisions, the HM-166Y
final rule allows an IM portable tank transporting a liquid hazardous
material that is flammable, pyrophoric, oxidizing, or toxic, to be
unloaded while remaining on a transport vehicle with the power unit
attached, provided the outlet requirements in 49 CFR 178.345-11 and the
attendance requirements in 49 CFR 177.834(i) are met. Section 178.345-
11 includes requirements for loading/unloading outlets on cargo tanks
to be equipped with self-closing systems with remote means of closure
capable of thermal activation at temperatures not exceeding 250 [deg]F.
Section 177.834(i) includes requirements for ensuring that cargo tanks
are attended by a qualified person during loading and unloading. The
intent of the unloading provision in the HM-166Y final rule was to
provide regulatory relief for operators of IM portable tanks equipped
with a thermal means of remote activation of the internal self-closing
stop-valves fitted on the bottom discharge outlets (known as ``fusible
links''). The outlet requirement provides an automatic means to shut
down unloading in a fire situation when an operator is not able to
manually activate the closure.
In response to industry concerns about the need for additional time
to equip portable tanks with fusible links, an NPRM in this docket was
published on February 22, 2002. The NPRM proposed to permit IM portable
tanks not currently equipped with fusible links to be unloaded while
remaining on a transport vehicle under certain conditions.
Specifically, we proposed that the shipper and the carrier would share
responsibility for verifying that the consignee's facility conforms to
the Department of Labor's Occupational Safety and Health
Administration's (OSHA) fire suppression and emergency shutdown
requirements, OSHA's and the Environmental Protection Agency's (EPA)
emergency response planning requirements, and an emergency discharge
control procedure. Alternatively, conformance to equivalent non-federal
requirements would be authorized. The NPRM proposed to permit such
unloading operations until October 1, 2003, providing a total of five
years from the October 1, 1998 effective date of the July 10, 1998
final rule to equip the portable tanks. Additionally, the shipper and
the carrier would be responsible for compliance with the attendance
requirements in Sec. 177.834(o), ensuring that public access is denied
during unloading, ensuring that persons performing unloading functions
are trained in handling emergencies, and ensuring that the operator of
the vehicle has determined that all of the above conditions have been
met prior to unloading.
II. Discussion of Comments
We received comments to the February 22, 2002 NPRM in this docket
from the Dangerous Goods Advisory Council (DGAC), the American
Chemistry Council (the Council), Air Products and Chemicals, Inc. (Air
Products), and Merck & Co., Inc.
DGAC, the Council, and Air Products request that we authorize the
proposed interim unloading conditions as a permanent option to
retrofitting IM portable tanks. These commenters believe that we should
be in alignment with international standards and that a domestic-only
requirement would cause ``difficult logistic problems for foreign
shippers trying to serve the U.S. market.'' DGAC and the Council ask
whether foreign shippers would ``be compelled to retrofit part of their
fleets
[[Page 32410]]
that would be reserved for the U.S. market.'' They also state that the
retrofitting requirement may create confusion for foreign markets not
familiar with U.S. operations and maintenance. DGAC and the Council
state that if the interim provisions allow an equivalent level of
safety, it would be ``far simpler'' and ``more efficient'' to authorize
the interim provisions on a permanent basis. Air Products adds that
``safety can be achieved'' by either the retrofitting requirement or by
adopting the proposed interim conditions on a permanent basis.
As stated in the HM-218A NPRM and the June 21, 2001 final rule
published under Docket HM-215D (66 FR 33316), we continue to believe
that if a portable tank is to be unloaded in the same manner as a cargo
tank, it should be equipped with the same emergency shutdown devices
required for cargo tanks. To accommodate industry concerns about the
amount of time required for retrofits, the NPRM proposed alternative
unloading conditions for an interim period for IM portable tanks not
currently equipped with a thermal means of remote activation of the
internal self-closing stop-valve fitted on bottom discharge outlets. We
never intended to make the alternative unloading procedures permanent
because we do not believe that the alternative unloading procedures
provide the same level of safety as a fusible link.
DGAC, the Council, and Air Products do not dispute the need for
extra safety measures, but now assert that the interim provisions
provide an equivalent level of safety to retrofitting and should be
allowed as a permanent alternative to retrofitting. We disagree. In the
February 22, 2002 NPRM, we stated that the conditions, as discussed
later in this preamble, provide an acceptable level of safety during an
interim period by reducing the possibility of fire and release of
hazardous materials during the unloading of IM portable tanks. We do
not believe that the conditions provide an equivalent level of safety
on a long-term or permanent basis. A fusible link operates to shut down
an unloading operation automatically, without the necessity for human
intervention. The alternative procedures provided in the NPRM depend on
human intervention to handle a fire during an unloading operation.
While this is acceptable in the short term, we do not consider that the
safety level provided is equivalent to that achieved by an automatic
means to shut down unloading.
With respect to the comments that the requirement should be in
alignment with international standards, we agree that, generally,
harmonization of domestic and international transportation requirements
is a beneficial and worthy objective. However, as with all safety
regulations, we review and consider each amendment to the international
standards on its own merit. There are a number of instances where we
impose more stringent requirements for the domestic transportation of
hazardous materials than the international requirements. Our goal is to
harmonize without sacrificing the current HMR level of safety.
In the HM-215D final rule, we estimated that the cost of installing
a fusible link at the time an IM portable tank is manufactured is
approximately $40.00 to $70.00 per portable tank; based on information
provided by tank, tank valve, and component manufacturers. Installation
at the time of manufacture avoids downstream retrofitting costs, costs
associated with shipping delays, and logistical problems at a later
date. In previous discussions, DGAC and the Tank Container Association
stated that retrofitting portable tanks would cost approximately
$200.00 to $250.00 per portable tank. We reiterate our earlier
statements that, on the basis of these costs, it makes economic sense
to install the devices at the time of manufacture.
DGAC and the Council ask whether we intend to compel foreign
shippers to ``retrofit part of their fleets that would be reserved for
the U.S. market.'' Just as U.S. exporters of hazardous materials are
responsible for compliance with international and individual country
requirements regarding hazardous materials transportation, foreign
shippers are responsible for compliance with U.S. variations from
international standards. If foreign shippers choose to operate in the
U.S., they must comply with the HMR.
DGAC, the Council, and Air Products also oppose requiring shippers
and carriers to share the responsibility for ensuring that unloading
facilities are in compliance with OSHA and EPA regulations. They state
that doing so will:
--Prompt differing interpretations of the requirements for the
facility, especially when multiple shippers and carriers serve a
particular facility.
--Pose problems with shippers and carriers who are unlikely to be aware
of state or local requirements, other than OSHA's.
--Pose conformance problems because foreign shippers would have no
means to assure compliance, leaving the problem solely to the carrier.
The commenters believe that we should require the consignee to be
the responsible party.
Federal hazardous materials transportation law (Federal hazmat law;
49 U.S.C. 5101 et seq.) requires the Secretary of Transportation to
prescribe regulations for the safe transportation of hazardous material
in intrastate, interstate, and foreign commerce. 49 U.S.C. 5103(b).
Those regulations apply to persons transporting hazardous materials in
commerce, persons who cause hazardous materials to be transported in
commerce, and persons who manufacture and maintain packagings
represented as qualified for use in transporting hazardous materials in
commerce. 49 U.S.C. 5103(b)(1)(A). Thus, the HMR generally do not
prescribe regulations for facilities to which hazardous materials are
consigned; rather, the HMR apply to persons who prepare hazardous
materials for transportation or who transport hazardous materials in
commerce. For this reason, we are requiring a shipper and/or a carrier,
rather than a consignee, to assure compliance with the conditions
established for unloading a portable tank without removing it from the
transport vehicle. Persons interested in a more detailed discussion of
the applicability of the Federal hazardous materials transportation law
and the HMR to specific functions and activities should review the NPRM
published under Docket HM-223 on June 14, 2001 (66 FR 32420).
In addition, DGAC asks whether shippers and carriers would be held
partly responsible should a problem occur during unloading, and fire or
shutdown capabilities prove less than adequate. Any person, domestic or
foreign, engaged in an activity regulated by federal, state or local
requirements must understand and comply with all applicable
regulations. Shippers and carriers engaged in the transportation of
hazardous materials in commerce must be trained in the applicable
requirements of the HMR and, additionally, are responsible for all
applicable federal, state or local requirements. If an incident occurs
when ``fire or shutdown capabilities prove less than adequate,'' upon
investigation, it may be determined that either or both parties are
responsible. We do not consider it burdensome for shippers and carriers
to contact facilities to determine whether the applicable OSHA and EPA
requirements have been met. The requirements in the HM-166Y final rule
granted relief from the longstanding prohibitions in the HMR against
unloading portable tanks while
[[Page 32411]]
on transport vehicles with the power units attached. The relief was
intended for operators of portable tanks equipped with fusible links
carrying flammable, pyrophoric, oxidizing, or toxic liquid hazardous
materials. This final rule grants further relief by permitting such
unloading for an interim period when portable tanks with bottom outlets
are not equipped with fusible links. Nevertheless, operators retain the
option to equip their portable tanks with the fusible links.
The Council also suggests the requirement for a portable tank to be
contained entirely within the horizontal outline of the vehicle,
without overhang or projection of any part of the tank assembly, when
it is loaded onto a highway or rail transport vehicle is more
appropriately addressed as a vehicle size requirement under the Federal
Highway Administration (FHWA) regulations applicable to vehicle size
and weight (23 CFR, Section 658). We do not agree. The portable tank is
not part of the transport vehicle and, therefore, is not covered by
FHWA requirements concerning vehicle size. The manner in which a
portable tank is loaded onto a transport vehicle prior to its
transportation in commerce will have a direct impact on the safety of
hazardous materials during transportation and, thus, should be
regulated under the HMR. Further, this was not a proposed requirement.
This has been a requirement since we adopted the IM portable tank
standards. The requirement is currently in Sec. 173.32(g)(1) and,
prior to the HM-215D final rule, was located in Sec. 173.32c(m).
A fourth commenter, Merck & Co., supports the limited time
extension; however, Merck requests regulatory text clarifications.
Merck and Co. asks us to clarify that the retrofitting requirement
applies to subsidiary, as well as primary, hazards of flammable,
pyrophoric, oxidizing and toxic hazardous materials. In this final
rule, we are clarifying that the retrofitting requirement applies to
primary and subsidiary hazards for liquid materials of Class 3
(flammable), PG I and II, and PG III with a flash point less than 100
[deg]F (38 [deg]C); Division 5.1 (oxidizer), PG I and II; and Division
6.1 (poisonous/toxic), PG I and II. Application of the retrofitting
requirement is identified in the appropriate proper shipping name entry
in the Sec. 172.101 Table by assignment of a T Code in Column (7)
authorizing a bottom outlet when a packaging authorization section
(Sec. 173.242 or Sec. 173.243) in Column (8C) contains a requirement
specifying that the tank's bottom discharge outlet must be equipped
with an internal shut-off device in conformance with Sec.
178.275(d)(3). Consistent with cargo tank exceptions, certain low
hazard liquids assigned to the packaging authorization section, Sec.
173.241, are excepted from the retrofitting requirement. In addition,
we removed pyrophoric hazardous materials from the retrofitting
requirement because bottom openings are prohibited on portable tanks
transporting these materials. We are making the clarifications in
Sec. Sec. 173.32(h)(3), 177.834(o)(3) and 178.275(d)(3)(iv), as well
as the packaging authorization sections Sec. Sec. 173.242(c)(4) and
173.243(c).
We are also revising certain paragraphs, as noted in the Section-
by-Section Review portion of this preamble, to clarify that UN, as well
as IM, portable tanks are subject to the retrofitting requirement. In
the HM-215D final rule published June 21, 2001, we applied the
requirement to UN portable tanks.
Finally, due to the delay in issuing this final rule, we are
extending the proposed October 1, 2003 interim date to October 1, 2004.
Based on the above discussion, we are authorizing the unloading
without removal from a transport vehicle of IM and UN portable tanks
transporting certain liquid hazardous materials and not equipped with a
thermal means of remote activation of the internal self-closing stop-
valves fitted on the bottom discharge outlets until September 30, 2004,
provided certain conditions are met. This date provides manufacturers,
lessors, and users of the affected portable tanks a total of six years
from the October 1, 1998 effective date of the July 10, 1998 final rule
to equip the tanks with a thermal means for remotely activating bottom
discharge outlets. Because these tanks undergo periodic inspection
every five years, the date also provides the opportunity for the
retrofitting to be done at the time of the periodic inspection, thereby
minimizing cost impacts. Many of these tanks should already be equipped
with thermal links. On and after October 1, 2004, an affected IM and UN
portable tank, with a bottom outlet, may not be unloaded while
remaining on a transport vehicle with the power unit attached unless it
fully conforms to the outlet requirements in Sec. 178.275(d)(3).
III. Section-by-Section Review
Part 171
Section 171.12 and 171.12a. We are adding a new paragraph Sec.
171.12(b)(21) and Sec. 171.12a(b)(20) to clarify that UN and IM
portable tanks unloaded while remaining on a transport vehicle with the
motive power unit attached must meet the requirements in Sec.
177.834(o).
Part 173
Section 173.32. In Sec. 173.32, we are revising paragraph (g)(1)
by removing the reference to Sec. 177.834(i)(2). The referenced
section, which addresses attendance and unloading requirements, is no
longer necessary with the adoption of Sec. 173.32(h)(3). Section
173.32(h)(3) references a more appropriate section for portable tanks;
Sec. 177.834(o). New paragraph (h)(3) alerts shippers of their shared
responsibility for ensuring that portable tanks not conforming to the
requirements in Sec. 178.275(d)(3) are unloaded only at facilities
conforming to the applicable OSHA and EPA requirements. The paragraph
also clarifies which hazardous materials are subject to these
requirements.
Sections 173.242 and 173.243. We are adding a new Sec.
173.242(c)(4) and adding a sentence to Sec. 173.243(c) to clarify when
the retrofitting requirement applies to IM and UN portable tanks.
Part 177
Section 177.834. We are revising Sec. 177.834(o) to permit, until
October 1, 2004, the unloading of IM and UN portable tanks not meeting
the outlet requirements in Sec. 178.275(d)(3), provided certain
unloading conditions are met. The shipper and the carrier share
responsibility for verifying that the consignee's facility meets
certain conditions and that the following requirements are met:
(1) The facility at which the portable tank is to be unloaded must
have systems in place that conform to: Applicable OSHA fire suppression
requirements in 29 CFR 1910.106(e); the emergency shutdown requirements
in 29 CFR 1910.119(f); and OSHA's and EPA's emergency response planning
requirements in 29 CFR 1910.119(f) and 40 CFR part 68. In addition, the
facility must have an emergency discharge control procedure in place
applicable to unloading operations, including instructions for handling
emergencies that may occur during the unloading operation.
Alternatively, equivalent or more stringent non-federal requirements
are authorized.
(2) There must be no public access to the unloading area during the
unloading process.
(3) The attendance requirements in Sec. 177.834(o) must be met.
(4) Prior to unloading, the operator of the vehicle on which the
portable tank is transported must ascertain the conditions in Sec.
177.834(o) are met.
[[Page 32412]]
(5) Persons performing unloading functions must be trained in
handling emergencies that may occur during the unloading operation.
We are also changing the outlet section reference for portable
tanks from Sec. 178.345-11 to Sec. 178.275(d)(3). In the HM-215D
final rule, we added Sec. 178.275(d)(3) to address the requirements
for equipping UN portable tanks with a thermal means of remote
activation of the internal self-closing stop-valves fitted on the
bottom discharge outlets. Although the two sections contain the same
requirements, the addition of Sec. 178.275(d)(3) into the HMR now
makes it a more appropriate reference because it is specific to
portable tank requirements.
Finally, we are revising Sec. 177.834(o) to clarify that the
requirement for a thermal means of remote activation of bottom
discharge outlets applies to IM and UN portable tanks containing liquid
hazardous materials of Class 3 (flammable), PG I and II, and PG III
with a flash point less than 100 [deg]F (38 [deg]C); Division 5.1
(oxidizer), PG I and II; and Class 6.1 (poisonous/toxic), PG I and II,
when the appropriate proper shipping name entry in the Sec. 172.101
table is assigned a T Code in Column (7) authorizing a bottom outlet
and a packaging authorization section (Sec. 173.242 or Sec. 173.243)
in Column (8C) requiring internal valves in conformance with Sec.
178.275(d)(3). In this way, we are limiting the applicability to
materials posing a risk of fire or acute health and environmental
risks. This revision is consistent with the current requirements
located in Sec. Sec. 178.345-11 and 178.275.
Part 178
Section 178.275. We are revising paragraph (d)(3) to clarify when
IM and UN portable tanks are subject to the retrofitting requirements.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget. The rule is not
considered a significant rule under the Regulatory Policies and
Procedures of the Department of Transportation [44 FR 11034]. Benefits
resulting from the adoption of the alternative interim provisions in
this final rule include providing the industry additional time to come
into compliance with existing regulatory requirements for those
portable tanks intended to be unloaded in the same manner as cargo
tanks. There is no requirement in the current regulations, and we are
not incorporating one in this final rule, for an IM or UN portable tank
to conform to the outlet requirements if it is not intended to be
unloaded while it remains on a transport vehicle with the power unit
attached. Because this final rule eases the regulatory compliance
burden for operators of portable tanks by providing an alternative
interim provision, a regulatory analysis or a regulatory evaluation is
not warranted. Any adverse safety impacts that may occur from the
regulatory relief provided by this amendment would be minimized by
conformance with the interim provisions adopted herein.
B. Executive Order 13132
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts state, local and Indian tribe requirements but does
not incorporate any regulation that has 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.
Federal hazardous material transportation law, 49 U.S.C. 5101-5127,
contains an express preemption provision (49 U.S.C. 5125(b)) preempting
state, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(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; and
(5) The design, manufacture, fabrication, marking, maintenance,
recondition, repair, or testing of a packaging or container
represented, marked, certified, or sold as qualified for use in
transporting hazardous material.
This final rule addresses covered subject items (2) and (5), above,
and would preempt state, local, and Indian tribe requirements not
meeting the ``substantively the same'' standard.
Federal hazardous materials transportation law provides at Sec.
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.
The effective date of federal preemption will be November 26, 2003.
C. Executive Order 13175
This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
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
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 a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule applies to manufacturers, operators, lessors and users of IM
and UN portable tanks, some of whom are small entities. This final rule
benefits such persons by further relaxing an existing regulatory
requirement for an interim period. Therefore, I certify this rule will
not have a significant economic impact on a substantial number of small
entities.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid
Office of Management and Budget (OMB) control number. This final rule
does not impose any new information collection burdens. The information
collection associated with information specified in Sec. 177.834(o) of
this final rule is currently required by other Federal regulations. In
Sec. 177.834(o)(2)(i) and (o)(2)(iii), the information collection
requirements pertaining to fire suppression and emergency shutdown are
currently required by the Department of Labor's OSHA. Finally, in Sec.
177.834(o)(2)(iv), the emergency response planning requirements are
currently required by the Environmental Protection Agency. Based on the
above
[[Page 32413]]
discussion, this final rule does not require any additional incremental
burden hours.
F. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
G. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to either state, local or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
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. We developed an assessment to
determine the effects of this revision on the environment and whether a
more comprehensive environmental impact statement may be required. Our
findings conclude there are no significant environmental impacts
associated with this rule. Allowing the unloading of IM and UN portable
tanks for an interim period, provided the unloading conditions in this
rulemaking are met, permits operators to minimize the potential for
environmental damage or contamination and allows manufacturers, lessors
and users the needed time to properly equip the IM and UN portable
tanks. For interested parties, an environmental assessment is available
in the public docket.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, we propose to amend 49 CFR
Chapter I as follows:
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
0
1. The authority citation for part 171 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
2. In Sec. 171.12, a new paragraph (b)(21) is added to read as
follows:
Sec. 171.12 Import and export shipments.
* * * * *
(b) * * *
(21) No person may offer an IM or UN portable tank containing
liquid hazardous materials of Class 3, PG I or II, or PG III with a
flash point less than 100 [deg]F (38 [deg]C); Division 5.1, PG I or II;
or Division 6.1, PG I or II, for unloading while it remains on a
transport vehicle with the motive power unit attached, unless it
conforms to the requirements in Sec. 177.834(o) of this subchapter.
* * * * *
0
3. In Sec. 171.12a, a new paragraph (b)(20) is added to read as
follows:
Sec. 171.12a Canadian shipments and packagings.
* * * * *
(b) * * *
(20) No person may offer an IM or UN portable tank containing
liquid hazardous materials of Class 3, PG I or II, or PG III with a
flash point less than 100 [deg]F (38 [deg]C); Division 5.1, PG I or II;
or Division 6.1, PG I or II, for unloading while it remains on a
transport vehicle with the motive power unit attached, unless it
conforms to the requirements in Sec. 177.834(o) of this subchapter.
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
0
4. The authority citation for part 173 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
0
5. In Sec. 173.32, paragraph (g)(1) is revised and a new paragraph
(h)(3) is added to read as follows:
Sec. 173.32 Requirements for the use of portable tanks.
* * * * *
(g) * * *
(1) A portable tank containing a hazardous material may not be
loaded onto a highway or rail transport vehicle unless loaded entirely
within the horizontal outline of the vehicle, without overhang or
projection of any part of the tank assembly.
* * * * *
(h) * * *
(3) No person may offer a liquid hazardous material of Class 3, PG
I or II, or PG III with a flash point of less than 100 [deg]F (38
[deg]C); Division 5.1, PG I or II; or Division 6.1, PG I or II, in an
IM or UN portable tank that is equipped with a bottom outlet as
authorized in Column (7) of the Sec. 172.101 Table of this subchapter
by assignment of a T Code in the appropriate proper shipping name
entry, for unloading to a facility while it remains on a transport
vehicle with the power unit attached unless--
(i) The tank outlets conform to Sec. 178.275(d)(3) of this
subchapter; or
(ii) The facility at which the IM or UN portable tank is to be
unloaded conforms to the requirements in Sec. 177.834(o) of this
subchapter.
* * * * *
0
6. In Sec. 173.242, a new paragraph (c)(4) is added to read as
follows:
Sec. 173.242 Bulk packagings for certain medium hazard liquids and
solids, including solids with dual hazards.
* * * * *
(c) * * *
(4) Unless provided by Sec. 173.32(h)(3), an IM 101, 102 or UN
portable tank with a bottom outlet and used to transport a liquid
hazardous material that is a Class 3, PG I or II, or PG III with a
flash point of less than 38 [deg]C (100 [deg]F); Division 5.1 PG I or
II; or Division 6.1, PG I or II, must have internal valves conforming
to Sec. 178.275(d)(3) of this subchapter.
0
7. In Sec. 173.243, in paragraph (c), a second sentence is added to
read as follows:
Sec. 173.243 Bulk packaging for certain high hazard liquids and dual
hazard materials which pose a moderate hazard.
* * * * *
(c) * * * Unless provided by Sec. 173.32(h)(3), an IM 101, 102 or
UN portable tank, with a bottom outlet, used to transport a liquid
hazardous material that is a Class 3, PG I or II, or PG III with a
flash point of less than 38 [deg]C (100 [deg]F); Division 5.1, PG I or
II; or Division 6.1, PG I or II, must have internal valves conforming
to Sec. 178.275(d)(3) of this subchapter.
* * * * *
[[Page 32414]]
PART 177--CARRIAGE BY PUBLIC HIGHWAY
0
8. The authority citation for part 177 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
9. In Sec. 177.834, paragraph (o) is revised to read as follows:
Sec. 177.834 General requirements.
* * * * *
(o) Unloading of IM and UN portable tanks. No person may unload an
IM or UN portable tank while it remains on a transport vehicle with the
motive power unit attached except under the following conditions:
(1) The unloading operation must be attended by a qualified person
in accordance with the requirements in paragraph (i) of this section.
The person performing unloading functions must be trained in handling
emergencies that may occur during the unloading operation.
(2) Prior to unloading, the operator of the vehicle on which the
portable tank is transported must ascertain that the conditions of this
paragraph (o) are met.
(3) An IM or UN portable tank equipped with a bottom outlet as
authorized in Column (7) of the Sec. 172.101 Table of this subchapter
by assignment of a T Code in the appropriate proper shipping name
entry, and that contains a liquid hazardous material of Class 3, PG I
or II, or PG III with a flash point of less than 100 [deg]F (38
[deg]C); Division 5.1, PG I or II; or Division 6.1, PG I or II, must
conform to the outlet requirements in Sec. 178.275(d)(3) of this
subchapter; or, until October 1, 2004, be unloaded only at a facility
conforming to the following--
(i) The applicable fire suppression requirements in 29 CFR
1910.106(e), (f), (g), (h), and (i);
(ii) The emergency shutdown requirements in 29 CFR 1910.119(f),
1910.120(q) and 1910.38(a);
(iii) The emergency response planning requirements in 29 CFR part
1910 and 40 CFR part 68;
(iv) An emergency discharge control procedure applicable to
unloading operations, including instructions on handling emergencies
that may occur during the unloading operation; and
(v) Public access to the unloading area must be controlled in a
manner ensuring no public access during unloading.
(4) Alternatively, conformance to equivalent or more stringent non-
federal requirements is authorized in place of paragraphs (o)(3)(i)
through (o)(3)(iv) of this section.
PART 178--SPECIFICATIONS FOR PACKAGINGS
0
10. The authority citation for part 178 continues to read as follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
0
11. In Sec. 178.275, paragraph (d)(3)(iv) is revised to read as
follows:
Sec. 178.275 Specification for UN Portable Tanks intended for the
transportation of liquid and solid hazardous materials.
* * * * *
(d) * * *
(3) * * *
(iv) For UN portable tanks, with bottom outlets, used for the
transportation of liquid hazardous materials that are Class 3, PG I or
II, or PG III with a flash point of less than 100 [deg]F (38 [deg]C);
Division 5.1, PG I or II; or Division 6.1, PG I or II, the remote means
of closure must be capable of thermal activation. The thermal means of
activation must activate at a temperature of not more than 250 [deg]F
(121 [deg]C).
* * * * *
Issued in Washington, DC on May 22, 2003, under authority
delegated in 49 CFR part 1.
Samuel G. Bonasso,
Acting Administrator.
[FR Doc. 03-13492 Filed 5-29-03; 8:45 am]
BILLING CODE 4910-60-P