[Federal Register Volume 68, Number 104 (Friday, May 30, 2003)]
[Rules and Regulations]
[Pages 32409-32414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13492]


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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