[Federal Register Volume 67, Number 36 (Friday, February 22, 2002)]
[Proposed Rules]
[Pages 8220-8223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4284]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Parts 173 and 177

[Docket No. RSPA-01-10533 (HM-218A)]
RIN 2137-AD44


Transportation of Hazardous Materials; Unloading of Intermodal 
(IM) Portable Tanks on Transport Vehicles

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: RSPA proposes to amend the Hazardous Materials Regulations to 
permit, for an interim period and subject to certain unloading 
conditions, the unloading of intermodal (IM) portable tanks 
transporting certain liquid hazardous materials that 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 would afford operators time to bring 
the IM portable tanks into conformance with the regulations.

DATES: Comments must be received by April 8, 2002.

ADDRESSES: Address your comments to the Dockets Management System, U.S. 
Department of Transportation, 400 Seventh St., SW., Room PL 401, 
Washington, DC 20590-0001. Comments must identify Docket Number RSPA-
01-10533 (HM-218A). If you wish to receive confirmation of receipt of 
your comments, include a self-addressed, stamped postcard. You may also 
submit and review all comments by accessing the Dockets Management 
System's website at http://dms.dot.gov. The Dockets Management System 
is located on the Plaza Level of the Nassif Building at the above 
address. You may view public dockets between the hours of 9 a.m. and 5 
p.m., Monday through Friday, except on federal holidays.

FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous 
Materials Standards, Research and Special Programs Administration, U.S. 
Department of Transportation, 400 Seventh St., SW., Washington, DC 
20590-0001, telephone (202) 366-8553.

SUPPLEMENTARY INFORMATION:

I. Background

    In this NPRM, the Research and Special Programs Administration 
(RSPA) (hereafter, ``we'' means RSPA) addresses the appeal of a denial 
of a petition for reconsideration and a petition for rulemaking. Both 
of these actions are 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.
    On July 10, 1998, we published a final rule under Docket RSPA-97-
2905 (HM-166Y; 63 FR 37454) amending the HMR by incorporating 
miscellaneous changes based on petitions for rulemaking and our own 
initiative. The effective date of the final rule was October 1, 1998. 
Among other provisions, the 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.
    We received three petitions for reconsideration to the July 10, 
1998, final rule. The Dangerous Goods Advisory Council (DGAC), the Tank 
Container Association (TCA), and Merck & Co., Inc. requested a 2\1/2\ 
year extension of the compliance date, stating it was not feasible to 
equip existing IM portable tanks with fusible links by October 1, 1998. 
On October 30, 1998, we published a final rule (HM-166Y; 63 FR 58323) 
denying the three petitions for reconsideration to the July 10, 1998, 
final rule. The denial was based on our belief that unloading an IM 
portable tank in the same manner as a cargo tank, but without the same 
outlet requirements, poses increased safety risks in a fire situation 
when an operator is not able to manually activate the closure.
    After publication of the October 30, 1998, final rule, we received 
an appeal of the denial of the petitions for reconsideration from TCA, 
reiterating the request for extending the compliance date for 2\1/2\ 
years. We also received a petition for rulemaking from the DGAC, 
requesting we adopt operating conditions for unloading an IM portable 
tank with no thermal means of remote activation of the internal self-
closing stop-valves installed on the bottom discharge outlets, when it 
is on a transport vehicle. DGAC suggested these unloading operations be 
permitted only at facilities:
    1. Equipped with fire suppression systems as required by the 
Department of Labor's Occupational Safety and Health Administration 
(OSHA) regulations codified at 29 Code of Federal Regulations (CFR) 
1910.106;
    2. Providing static electricity protection and bonding as required 
by 29 CFR 1910.106;
    3. Implementing emergency response plans and procedures in 
accordance with OSHA regulations codified at 29 CFR 1910.120;
    4. Conforming to the OSHA process safety management standards, 
codified at 29 CFR 1910.119, the Environmental Protection Agency (EPA) 
risk management regulations, codified at 40 CFR Part 68, or an 
equivalent program; and
    5. Prohibiting public access to the unloading area.
    In addition, the operator would be required to comply with the 
attendance requirements in Sec. 177.834(i) of the HMR.
    DGAC stated its recommended operating restrictions would ensure an 
equivalent level of safety to the outlet requirements in Sec. 178.345-
11. DGAC suggested these operating restrictions could be adopted on an 
interim basis to provide sufficient time for operators to equip their 
IM portable tanks with the outlet requirement. In a subsequent 
submission, DGAC requested a three-year extension of the compliance 
date to assure sufficient time for operators to equip all affected IM 
portable tanks.
    The intent of the unloading provision in the July 10, 1998, 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. We continue to believe 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. However, after re-
examining the issues raised by DGAC and TCA, we are proposing to 
permit, for an interim period, an IM portable tank not currently 
equipped with a thermal means of remote activation of the

[[Page 8221]]

internal self-closing stop-valve fitted on bottom discharge outlets, to 
be unloaded while remaining on a transport vehicle under certain 
conditions. The conditions, as proposed later in this preamble, would 
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. Permitting such unloading 
for a temporary period affords operators additional time to equip IM 
portable tanks in accordance with the outlet requirement, if they want 
to be able to unload these tanks in the same manner as cargo tanks.
    In this NPRM, we are proposing to permit such unloading operations 
until October 1, 2003. This date provides manufacturers, lessors, and 
users of the affected IM portable tanks a total of five 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. Since these tanks are periodically inspected every five years, 
it also provides the opportunity for the retrofit to be done at the 
time of the periodic inspection, thus minimizing cost impacts. Many of 
these tanks should already be so equipped. On and after October 1, 
2003, an IM portable tank containing a hazardous material that is 
flammable, pyrophoric, oxidizing or toxic, could 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).
    We are also proposing to change the outlet section reference for IM 
portable tanks from Sec. 178.345-11 to Sec. 178.275(d)(3). In a final 
rule published June 21, 2001 (RSPA-2000-7702, HM-215D; FR 66 33316), 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 is a more 
appropriate reference because it is specific to IM portable tank 
requirements.
    Based on the above discussion, we are proposing to revise 
Sec. 177.834(o) to permit, until October 1, 2003, the unloading of an 
IM portable tank not meeting the outlet requirements in 
Sec. 175.275(d)(3), provided certain unloading conditions are met. The 
shipper and the carrier would 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 IM 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, respectively; or equivalent or more stringent non-federal 
requirements; and an emergency discharge control procedure in place 
applicable to unloading operations, including instructions for handling 
emergencies that may occur during the unloading operation.
    (2) Public access to the unloading area must be controlled in a 
manner ensuring that public access is denied during unloading.
    (3) The attendance requirements in Sec. 177.834(o) must be met.
    (4) Prior to unloading, the operator of the vehicle on which the IM 
portable tank is transported must ascertain the conditions in proposed 
paragraph (o) are met.
    (5) Persons performing unloading functions must be trained in 
handling emergencies that may occur during the unloading operation.
    In Sec. 173.32, as amended under HM-215D, we are proposing to 
revise paragraph (g)(1) by removing the reference to 
Sec. 177.834(i)(2). The referenced section, which addresses attendance 
and unloading requirements, would no longer be necessary with the 
adoption of proposed Sec. 173.32(h)(3), which references a more 
appropriate section for IM portable tanks (Sec. 177.834(o)). Proposed 
paragraph (h)(3) would alert shippers of their shared responsibility 
for ensuring that IM 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, or are equipped to remove the 
portable tank from the transport vehicle prior to unloading.
    Finally, we are proposing to further revise Sec. 177.834(o) to 
clarify the requirement for a thermal means of remote activation of 
bottom discharge outlets applies only to liquid hazardous materials 
that are flammable, pyrophoric, oxidizing or toxic. In this way we are 
limiting the applicability to materials posing a risk of fire or acute 
health and environmental risks. This clarification proposal is 
consistent with the current requirements located in Secs. 178.345-11 
and 178.275.

II. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed 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 proposed rule 
is not considered a significant rule under the Regulatory Policies and 
Procedures of the Department of Transportation [44 FR 11034]. The costs 
and benefits of this proposed rule are considered to be so minimal as 
to not warrant preparation of a regulatory impact analysis or a 
regulatory evaluation. The provisions of this proposed rule respond to 
an industry petition and would impose little or no additional costs on 
the affected companies. The proposed alternative interim provisions 
provide the industry additional time to come into compliance with 
existing regulatory requirements for those IM 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 proposing one in 
this NPRM, for an IM 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. Any adverse safety 
impacts from the regulatory relief provided by this proposal would be 
minimized by conformance with the interim provisions proposed herein.

B. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
proposed rule would preempt state, local and Indian tribe requirements 
but does not propose 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;

[[Page 8222]]

    (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; or
    (5) The design, manufacture, fabrication, marking, maintenance, 
recondition, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This proposed rule addresses 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. 
RSPA proposes the effective date of federal preemption will be 180 days 
from publication of a final rule in this matter in the Federal 
Register.

C. Executive Order 13175

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''). Because this proposed 
rule does not have tribal implications, does not impose substantial 
direct compliance costs, and is required by statute, 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 
proposed rule applies to manufacturers, operators, lessors and users of 
IM portable tanks, some of whom are small entities. This proposed rule 
would benefit such persons by further relaxing an existing 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 proposed 
rule does not propose any new information collection burdens. The 
information collection associated with information specified in 
Sec. 177.834(o) of this proposed rule is currently required by other 
Federal regulations. In the proposed 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 the proposed 
Sec. 177.834(o)(2)(iv), the emergency response planning requirements 
are currently required by the Environmental Protection Agency. Based on 
this discussion, this proposed 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 proposed 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 proposed 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 proposed rule. Allowing the unloading of 
IM portable tanks for an interim period, provided the unloading 
conditions proposed in this rulemaking are met, permits operators to 
avoid the potential for environmental damage or contamination and 
allows manufacturers, lessors and users the needed time to properly 
equip the IM portable tanks. For interested parties, an environmental 
assessment is available in the public docket.

List of Subjects

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.

    In consideration of the foregoing, we propose to amend 49 CFR 
Chapter I as follows:

PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND 
PACKAGINGS

    1. The authority citation for part 173 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

    2. In Sec. 173.32, paragraph (g)(1) would be revised and a new 
paragraph (h)(3) would be 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 on to 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 an IM portable tank transporting a liquid 
hazardous material that is flammable, pyrophoric, oxidizing, or toxic, 
as defined in part 173, to a facility for unloading 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;
    (ii) The facility at which the IM portable tank is to be unloaded 
conforms to the requirements in Sec. 177.834(o) of this subchapter; or
    (iii) The facility at which the IM portable tank is to be unloaded 
is equipped to remove an IM portable tank

[[Page 8223]]

from a transport vehicle prior to unloading.
* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

    4. The authority citation for part 177 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
    5. In Sec. 177.834, paragraph (o) would be revised to read as 
follows:


Sec. 177.834  General requirements.

* * * * *
    (o) Unloading of IM portable tanks. No person may unload an IM 
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 IM 
portable tank is transported must ascertain the conditions of this 
paragraph (o) are met.
    (3) An IM portable tank containing a liquid hazardous material that 
is flammable, pyrophoric, oxidizing, or toxic, as defined in part 173 
of this subchapter, must conform to the outlet requirements in 
Sec. 178.275(d)(3) of this subchapter; or, until October 1, 2003, 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, 40 CFR Part 68, or equivalent or more stringent non-federal 
requirements, and an emergency discharge control procedure applicable 
to unloading operations including instructions on handling emergencies 
that may occur during the unloading operation; and
    (iv) Public access to the unloading area must be controlled in a 
manner ensuring no public access during unloading.

    Issued in Washington, DC on February 19, 2002, under authority 
delegated in 49 CFR part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 02-4284 Filed 2-21-02; 8:45 am]
BILLING CODE 4910-60-P