[Federal Register Volume 76, Number 21 (Tuesday, February 1, 2011)]
[Rules and Regulations]
[Pages 5483-5494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2014]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 171 and 173

[Docket No. PHMSA-2010-0017 (HM-245)]
RIN 2137-AE56


Hazardous Materials: Incorporation of Certain Cargo Tank Special 
Permits Into Regulations

AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA), 
DOT.

ACTION: Final rule.

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SUMMARY: The Pipeline and Hazardous Materials Safety Administration is 
amending the Hazardous Materials Regulations by incorporating 
provisions contained in certain widely used or longstanding cargo tank 
special permits that are granted to multiple parties and have 
established safety records. Special permits allow a company or 
individual to package or ship a hazardous material in a manner that 
varies from the regulations provided an equivalent level of safety is 
maintained. The revisions are intended to provide wider access to the 
regulatory flexibility offered in the special permits and eliminate the 
need for numerous renewal requests, thereby facilitating commercial 
activity and reducing paperwork burdens while continuing to maintain an 
appropriate level of safety.

DATES: Effective date: The effective date of this final rule is March 
3, 2011.

[[Page 5484]]

    Incorporation by reference: The incorporation by reference of 
certain publications listed in the rule is approved by the Director of 
the Federal Register as of March 3, 2011.
    Voluntary Compliance date: Immediate voluntary compliance with the 
requirements of this final rule is authorized as of February 1, 2011.

FOR FURTHER INFORMATION CONTACT: Joan McIntyre or Matthew Nickels, 
Standards and Rulemaking Division, (202) 366-8553, Pipeline and 
Hazardous Materials Safety Administration (PHMSA), or John Van 
Steenburg, Office of Enforcement and Compliance, (202) 366-5125, 
Federal Motor Carrier Safety Administration (FMCSA), 1200 New Jersey 
Avenue, SE., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

Preamble Table of Contents

I. Background
II. List of Commenters, General Comments, and Beyond-the-Scope 
Comments
III. Discussion of Amendments and Applicable Comments
IV. Regulatory Analyses and Notices

I. Background

    On July 21, 2010, PHMSA issued a notice of proposed rulemaking 
(NPRM; 75 FR 42364) proposing to incorporate into the Hazardous 
Materials Regulations (HMR) provisions contained in six widely used and 
longstanding cargo tank special permits that are granted to multiple 
parties and have established safety records. We discussed how this 
action would reduce paperwork and compliance burdens, lower cost 
burdens on both industry and government by removing the need to apply 
for and renew special permits, and facilitate commerce while 
maintaining a level of safety equal to or greater than that of the 
current HMR requirements. We proposed to incorporate the provisions of 
six special permits into the HMR. We did not propose to materially 
change the special permits, nor did we seek comments for revising the 
special permits. (See Beyond-the-Scope discussion under ``II. Comments 
to the NPRM.'')
    The six special permits addressed in the NPRM were:
     Special Permit (SP) 11209--Authorization to transport 
liquefied petroleum gas (LPG) in non-DOT specification cargo tank motor 
vehicles known as moveable fuel storage tenders that are used 
exclusively for agricultural purposes.
     SP 13113--Authorization to transport Division 6.1 liquid 
soil pesticide fumigants in DOT specification MC 306 and DOT 406 cargo 
tank motor vehicles and DOT 57 portable tanks that are used exclusively 
for agricultural purposes.
     SP 12284--Authorization to transport certain hazardous 
materials used for roadway striping in non-DOT specification cargo 
tanks.
     SP 13341--Authorization for private motor carriers to 
transport LPG in consumer storage containers filled to greater than 
five percent of the container's water capacity.
     SP 10950--Authorization to transport nurse tanks securely 
mounted on field trucks.
     SP 13554--Authorization for nurse tanks with missing or 
illegible ASME plates to continue to be used in anhydrous ammonia 
service under specified conditions.
    The decision to consider the incorporation of these special permits 
into the HMR is based on special permits issued by PHMSA under 49 CFR 
part 107, subpart B (Sec. Sec.  107.101 to 107.127) and the length of 
time these special permits have been in use with demonstrated records 
of safety. A special permit sets forth alternative requirements to the 
HMR by means that achieve a level of safety equal to or greater than 
that required by regulation and that are consistent with the public 
interest. Congress expressly authorized DOT to issue these variances in 
the Hazardous Materials Transportation Act of 1975.
    As discussed in the NPRM, the HMR generally are performance-
oriented regulations that provide the regulated community with a 
certain amount of flexibility in meeting safety requirements. However, 
not every transportation situation can be anticipated and included in 
the regulations. Innovation is one of the strengths of our economy and 
the hazardous materials community is particularly strong at developing 
new technologies and pioneering ways of moving materials. Special 
permits enable the hazardous materials industry to quickly, 
effectively, and safely integrate new products and technologies into 
the production and transportation stream, thereby providing a mechanism 
for testing new technologies, promoting increased transportation 
efficiency and productivity, and ensuring global competitiveness.
    PHMSA conducts ongoing reviews of special permits to identify 
widely used and longstanding special permits with established safety 
records for adoption into the HMR. Adoption of special permits as rules 
of general applicability provides wider access to the benefits and 
regulatory flexibility of the provisions granted in the special 
permits. Factors that influence whether a special permit is a candidate 
for regulatory incorporation include: the safety record of the special 
permit; the properties of the hazardous material; the transportation 
operations conducted under a special permit; the potential for broad 
application of a special permit; suitability of provisions in the 
special permit for incorporation into the HMR; rulemaking activity in 
related areas; and agency priorities. Special permits reduce the volume 
and complexity of the HMR by addressing unique or infrequent 
transportation situations that would be difficult to accommodate in 
regulations intended for use by a wide range of shippers and carriers. 
Converting special permits into regulations reduces paperwork burdens.
    Although PHMSA does not issue special permits to industry 
associations, PHMSA may issue a special permit to members of an 
industry association when many of its members have a common interest in 
obtaining authority to perform a specific transportation activity. 
Special permits issued to the members of associations are potentially 
among the most suitable types of special permits for later adoption 
into the HMR. Such special permits have broad applicability, and many 
of them have been in effect for a number of years and have proven 
safety records.

II. List of Commenters, General Comments, and Beyond-the-Scope Comments

    PHMSA received 16 comments in response to the NPRM. Some of the 
commenters requested that we expedite the issuance of this final rule 
because of impending expiration dates for certain special permits. We 
recognize their concerns and have made every effort to finalize this 
rulemaking in an expeditious manner. While the majority of the 
commenters supported the proposals in the NPRM, some commenters had 
suggestions for additional revisions and one commenter questioned the 
safety of certain special permits. Comments that addressed the 
recommendation of additional revisions are beyond the scope of this 
rulemaking (see Beyond-the-Scope comments following the list of 
commenters). The comments, as submitted to this docket, may be accessed 
via http://www.regulations.gov and were submitted by the following 
individuals, companies and associations:
    (1) Far West Agribusiness Association; PHMSA-2010-0017-0002.
    (2) Dusty Farm Co-Op; PHMSA-2010-0017-0003.
    (3) The Fertilizer Institute; PHMSA-2010-0017-0004.

[[Page 5485]]

    (4) Trinity Containers, LLC; PHMSA-2010-0017-0005.
    (5) Lisa Anderson; PHMSA-2010-0017-0006.
    (6) North Central AG; PHMSA-2010-0017-0007.
    (7) James T. Osterhaus; PHMSA-2010-0017-0008.
    (8) National Propane Gas Association; PHMSA-2010-0017-0009.
    (9) American Trucking Associations, Inc.; PHMSA-2010-0017-0010.
    (10) American Welding and Tank, LLC; PHMSA-2010-0017-0011.
    (11) National Tank Truck Carriers, Inc.; PHMSA-2010-0017-0012.
    (12) Fisk Tank Carrier; PHMSA-2010-0017-0013.
    (13) National Fire Protection Association; PHMSA-2010-0017-0014 and 
0018.
    (14) Agricultural Retailers Association; PHMSA-2010-0017-0015.
    (15) CHS Inc.; PHMSA-2010-0017-0016.
    (16) CHS Agri Service Center; PHMSA-2010-0017-0017.

Beyond-the-Scope Comments

    Comments that addressed the recommendation of additional revisions 
to those proposed in the NPRM are beyond the scope of this rulemaking 
and, therefore, cannot be addressed for incorporation into the HMR in 
this final rule. Such revisions must first be presented in an NPRM to 
provide opportunity for comment from industry and the public. While we 
agree that certain beyond-the-scope issues merit PHMSA's consideration, 
we urge those commenters who submitted beyond-the-scope issues to 
request a change in the regulations by filing the recommendations as 
petitions for rulemakings in accordance with Sec. Sec.  106.95 and 
106.100.
    Beyond-the-Scope comments to this rulemaking include the following:
     The National Tank Truck Carriers (NTTC) had concerns about 
carrier-type status and limitations to non-agricultural operations, 
stating that all special permits should have these limitations removed. 
This rulemaking addresses incorporating special permits as currently 
written.
     For SP 11209 and SP 13113, the American Trucking 
Association (ATA) contended that the special permits should not be 
limited to private motor carriers and agricultural operations, adding 
that PHMSA must provide evidence that for-hire carriers and non-
agricultural activities are unsafe. As stated previously, this 
rulemaking addresses incorporating special permits as currently 
written. ATA is encouraged to further explain its arguments in favor of 
wider applicability of the provisions and submit a petition for 
rulemaking.
     For SP 11209, the National Fire Protection Association 
(NFPA) questioned why the special permit requires that the cargo tanks 
be painted white, aluminum, or other light reflecting color, because it 
is not a requirement in NFPA 58 for propane storage tanks. This 
rulemaking addresses incorporating special permits as currently 
written.
     For SP 11209, NTTC asked whether a carrier should follow 
the HMR requirements or the NFPA requirements in cases where the HMR 
adopts an NFPA requirement by citing it in the HMR regulatory text. 
NTTC states that in such cases, there are a number of places in NFPA 
pamphlets that conflict with requirements in the HMR. The commenter 
suggests that special permits should include a statement that cargo 
tanks must conform to a certain NFPA requirement unless that 
requirement conflicts with an HMR requirement. In its comment, NFPA 
provided the following example: ``NFPA requires double bulkheads 
between compartments on cargo tanks hauling flammable liquids while 
Title 49 CFR does not.'' While this may be an issue that requires 
further investigation, SP 11209 authorizes the transport of liquefied 
petroleum gases, not flammable liquids. We are unaware of conflicts 
between NFPA Pamphlet 58 and SP 11209 or any other incorporated by 
reference material, but we invite NTTC to identify any conflicts and 
present their issues in a petition for rulemaking. This rulemaking 
addresses incorporating special permits as currently written.
     For SP 13113, the Agricultural Retailers Association (ARA) 
suggested that movements of liquid pesticide fumigants in MC 306, DOT 
406, and DOT 57 containers should be authorized from distribution point 
to retail facility. The association stated that there is no safety 
difference between movements from distribution point to retail facility 
and movements from retail facility to farm. This rulemaking addresses 
incorporating special permits as currently written.
     For SP 10950, the Far West Agribusiness Association, the 
Fertilizer Institute, and Dusty Farm Co-Op support the rulemaking, but 
recommend that we expand the current 50 air mile radius to a 100 air 
mile radius for consistency with the Federal Motor Carrier Safety 
Administration's (FMCSA) regulations. This rulemaking addresses 
incorporating special permits as currently written.
     For SP 13554, Trinity Containers requested that, for nurse 
tanks, a percentage of the actual material thickness or five percent be 
used for the head and shell minimum thickness allowance. ARA stated 
that when SP 13554 was originally granted, the specifications of older 
nurse tanks were used to determine a minimum head and body thickness 
for a tank to pass the thickness test. The commenter stated that, 
currently, nurse tanks are built with a different diameter and grade of 
material, which allows the tanks to be built thinner than previously 
built, yet still conform to the ASME Code standards. The result is that 
many new nurse tanks do not meet the thickness thresholds in SP 13554 
due to improved engineering. American Welding and Tank LLC stated that 
PHMSA should take into consideration the ASME Code thickness changes 
throughout the years applicable to one thickness for heads and one for 
shells. The commenter states that the head and shell minimum thickness 
allowance does not consider the tank diameter or the edition of the 
ASME Code in effect when the tanks were manufactured. American Welding 
requests that we incorporate an allowable reduction material thickness 
based on the actual thickness of the tank. This rulemaking addresses 
incorporating special permits as currently written.
     Under its SP 13554 comments, ATA recommends that PHMSA 
incorporate standards that are available free of charge. No new 
standards were proposed to be incorporated into the HMR, nor adopted in 
this final rule. The free-of-charge comment is beyond the scope of this 
rulemaking.
     Fisk Tank Carrier requested that we add the provisions of 
a seventh special permit, SP 14980, which authorizes the one-way 
transportation in commerce of liquefied petroleum gas (LPG) in certain 
non-DOT specification storage tanks by private carrier motor vehicle.
     NFPA suggested that we incorporate by reference the 2011 
edition of the NFPA 58 that was published in September of 2010. If not 
possible due to time constraints, they recommend that we adopt the 2008 
edition.
     NTTC objected to PHMSA incorporating by reference 
materials that are prepared by third party private entities when the 
material is not made publicly available to the regulated industry.
     The Fertilizer Institute requested that we address a 
petition for rulemaking that they previously submitted and that 
requested PHMSA to require the testing of all nurse tanks

[[Page 5486]]

regardless of illegible identification plates. The petition will be 
addressed in a separate future rulemaking.

III. Discussion of Amendments and Applicable Comments

    The six special permits addressed in this final rule that authorize 
cargo tank transportation operations not specifically permitted under 
the HMR were initially issued to members of industry associations or 
similar organizations. They have well-established safety records and 
therefore PHMSA has determined that they are excellent candidates for 
incorporation into the HMR. Incorporating these special permits into 
the HMR will eliminate the need for over 10,000 current grantees to 
reapply for the renewal of six special permits every four years and for 
PHMSA to process the renewal applications, thereby eliminating a 
significant paperwork burden both on industry and the government.
    A discussion of incorporating the provisions of six special permits 
into the HMR and their applicable comments follows below. As discussed 
earlier in this preamble, most of the commenters are supportive of this 
rulemaking. Those comments that are within the scope of this rulemaking 
are discussed below.
    The Fertilizer Institute pointed out that in the NPRM's preamble, 
we reversed the paragraph numbers in the preamble from the regulatory 
text for Sec.  173.315(m)(2) and (m)(3). The NPRM's preamble error is 
noted. The regulatory text was correct in the proposed regulatory text, 
and the preamble discussion in this final rule reflects the correction 
of the printing error.
    Lisa Anderson is opposed to incorporating some of the proposed 
special permits because she contends that they do not provide an 
equivalent level of safety as cargo tanks tested under the current 
requirements in Part 180 of the HMR. As discussed in the preambles of 
the NPRM and this final rule, we chose the six permits addressed in 
this rulemaking precisely because of their demonstrated safety records. 
Although the comment is duly noted, we do suggest that the commenter 
submit a petition for rulemaking.

A. Moveable Fuel Storage Tenders

    SP 11209 authorizes the transportation of LPG in non-DOT 
specification cargo tank motor vehicles, commonly known as moveable 
fuel storage tenders, used exclusively for agricultural purposes. 
Moveable fuel storage tenders are used to supply LPG fuel to farmers 
for crop drying, crop irrigation, flame weeding, plant defoliation 
prior to harvest, and other agricultural operations.
    This special permit has been in effect since 1994 and has been 
utilized by over 3,400 grantees. A review of the Hazardous Materials 
Incident Data library did not reveal any incidents related to this 
special permit over the past ten years. Each vehicle operated under 
this special permit conforms to the ASME Code in effect at the time of 
its manufacture. Provisions governing the design and use of these 
vehicles are included in NFPA 58, Liquefied Petroleum Gas Code.
    Mr. James T. Osterhaus, NPGA, CHS Inc., and CHS Agri Service 
Center, submitted the following comments (see their full comments at 
http://www.regulations.gov). James Osterhaus took issue with the 
following sentence from the preamble text of the NPRM: ``In addition, 
transportation of a moveable fuel storage tender to an LPG distribution 
facility for re-filling would be permitted only if it contains no more 
than five percent of its water capacity.'' Mr. Osterhaus is correct 
that this sentence could be misleading because moveable fuel storage 
tenders are not permitted to be ``refilled'' at any location except the 
point of use. However, we believe that proposed Sec.  173.5(d)(9), 
taken from the special permit, is clear: ``Transportation of the 
movable fuel storage tender between its point of use and a liquefied 
petroleum gas distribution facility is authorized only if the cargo 
tank contains no more than five percent of its water capacity.'' Mr. 
Osterhaus suggests that we add the following language for clarity, ``A 
movable fuel storage tender may only be filled at the consumer's 
premises or point of use. Transportation of a moveable fuel storage 
tender containing more than five percent of its water capacity from a 
liquefied distribution facility to a consumer's premises or point of 
use is prohibited.'' We agree that the first sentence of Mr. Osterhaus' 
suggestion would ensure clarity, and we have added it to Sec.  
173.5(d)(9). We believe the addition of the second sentence would be 
redundant.
    The National Fire Protection Association (NFPA) recommends that we 
revise ``NFPA Pamphlet 58'' to read more correctly as ``NFPA 58, 
Liquefied Petroleum Gas Code.'' We agree and have made the correction 
each place it appears in this rulemaking (Sec. Sec.  173.5 and 173.315 
for SP 11209 and SP 13554, respectively). NFPA also recommends that we 
incorporate a more current edition of this Code into the HMR (see 
Beyond-the-Scope comments in Section II of this preamble).
    Additionally, NFPA suggests that we revise the regulatory text for 
incorporating SP 11209 into Sec.  173.5 by removing paragraphs (d)(1), 
(d)(2), (d)(3) and (d)(6) because the paragraphs duplicate the 
requirements in NFPA 58, Liquefied Petroleum Gas Code. We disagree with 
NFPA. We believe that deleting these paragraphs from the HMR is 
unnecessary and that the inclusion of the paragraphs provides a user-
friendly aspect to this section. We are, therefore, leaving the 
paragraphs in place.
    This final rule incorporates the terms of SP 11209 into the HMR as 
proposed in the NPRM with the exception of the addition of the 
following sentence to Sec.  173.5(d)(9) for clarification: ``A movable 
fuel storage tender may only be filled at the consumer's premises or 
point of use.'' PHMSA is amending Sec.  173.5 to authorize the 
transportation of LPG in moveable fuel storage tenders used exclusively 
for agricultural purposes and operated by a private motor carrier. (A 
``private motor carrier,'' as defined in interpretation letters issued 
by PHMSA, is a carrier who transports the business's own products and 
does not provide such transportation service to other businesses). As 
proposed in the NPRM, a non-DOT specification cargo tank motor vehicle 
used as a moveable fuel storage tender must: (1) Have a minimum design 
pressure of 250 psig; (2) conform to the requirements of the ASME Code 
in effect at the time the cargo tank was manufactured and marked 
accordingly; (3) have a water capacity of 1,200 gallons or less; (4) 
conform to applicable requirements in NFPA 58, Liquefied Petroleum Gas 
Code; and (5) be mounted securely on a motor vehicle. In addition, the 
cargo tank must be filled as prescribed in Sec.  173.315(b). When 
filled, transportation of a moveable fuel storage tender would be 
limited to movements over local roads between fields using the shortest 
practical distance. In addition, transportation of a moveable storage 
fuel tender to a moveable fuel storage tender facility would be 
permitted only if it contains no more than five percent of its water 
capacity.

B. Liquid Soil Pesticide Fumigants

    SP 13113 authorizes the transportation of Division 6.1 liquid soil 
pesticide fumigants in MC 306 and DOT 406 cargo tank motor vehicles and 
DOT 57 portable tanks used exclusively for agricultural purposes. 
Liquid soil pesticide fumigants are used by farmers as an alternative 
to the agricultural use of methyl bromide to ensure the adequate 
protection of crops from pest infestation and to preserve agricultural

[[Page 5487]]

productivity. Transportation of these materials is limited to private 
motor carriage and must be between a bulk loading facility and farms 
(including between farms) not exceeding 150 miles from one another.
    This special permit has been in effect since 2002 and has been 
utilized by hundreds of grantees. A review of the Hazardous Materials 
Incident Data library did not reveal any incidents related to this 
special permit since the date of its issuance. Prior to 2002, when this 
material was classed as Dichloropropenes, 6.1, UN2047, PG III, it was 
routinely shipped, in accordance with Sec.  173.242, in MC 306 and DOT 
406 cargo tanks and DOT 57 portable tanks. The same tanks have been 
widely used to transport gasoline, a low flashpoint PG II liquid. The 
pressure relief systems and bottom discharge equipment on the cargo 
tanks offer equivalent safety in terms of containment and operation of 
pressure relief systems. Also, stainless steel DOT 57 portable tanks 
provide comparable containment to metal, rigid plastic, and composite 
Intermediate Bulk Containers (IBCs), which are authorized for transport 
of Division 6.1 liquid soil pesticide fumigants under Sec.  173.202.
    PHMSA is incorporating the terms of SP 13113 into the HMR by 
amending Sec.  173.5. MC 306 and DOT 406 cargo tank motor vehicles used 
for the transportation of these fumigants must: (1) meet qualification 
and maintenance requirements (including periodic testing and 
inspection) in accordance with Subpart E of Part 180; and (2) conform 
to the pressure relief system requirements specified in Sec.  
173.243(b)(1). In addition, MC 306 cargo tank motor vehicles must be 
equipped with stop-valves capable of being remotely closed by manual 
and mechanical means; and DOT 406 cargo tanks must conform to the 
bottom outlet requirements specified in Sec.  173.243(b)(2). DOT 57 
portable tanks used to transport Division 6.1 liquid soil pesticide 
fumigants must be constructed of stainless steel.

C. Non-DOT Specification Cargo Tanks Used for Roadway Striping

    SP 12284 authorizes the transportation in commerce of certain 
hazardous materials used for roadway striping in non-DOT specification 
cargo tanks. These non-DOT specification cargo tanks are used for the 
low hazard job of applying roadway striping to paved roads throughout 
the United States.
    This special permit has been in effect since 1999 and has been 
utilized by over 100 grantees. A review of the Hazardous Materials 
Incident Data library did not reveal any incidents related to this 
special permit since the date of its issuance. Based on this safety 
record, PHMSA is incorporating the provisions of SP 12284 into the HMR 
by adding a new paragraph (c) to Sec.  173.5a to authorize the 
transportation of certain hazardous materials used for roadway striping 
in non-DOT specification cargo tanks provided the conditions specified 
in the new paragraph are met. The new paragraph (c) specifies 
conditions that include packaging specifications, inspection and 
testing requirements, requirements for maintaining records, and 
operational controls. Consistent with the special permit, paragraph (c) 
includes certain/special marking requirements that are in addition to 
the applicable marking and placarding requirements in subparts D and F. 
The section title heading is also revised to reflect the addition of 
non-DOT specification cargo tanks used for roadway striping into this 
section. Finally, Sec.  173.242(b) is revised to include the 
authorization to use non-DOT specification cargo tanks used for roadway 
striping.

D. LPG Storage Containers

    SP 13341 authorizes the transportation by private motor carrier of 
LPG in consumer storage containers in quantities greater than five 
percent of the container's water capacity. The storage containers 
designated in the special permit are designed for permanent 
installation on consumer premises. The special permit authorizes one-
way transportation only, from the consumer location to the container 
owner's nearest LPG plant.
    This special permit has been in effect since 2004 and has been 
utilized by several thousand grantees. A review of the Hazardous 
Materials Incident Data library did not reveal any incidents related to 
this special permit since the date of its issuance. Prior to 1998, 
consumer storage containers filled with LPG to greater than five 
percent water capacity were routinely transported without any known 
incidents. The prohibition of transporting containers filled to more 
than five percent water capacity resulted from concern of the potential 
for confusion between ASME and DOT tanks, as ASME tanks are not 
designed to be lifted by the lugs with product inside. This final rule 
requires lifting with slings, not by the lugs. Also, transporting a 
tank with some product is sometimes preferable from a safety standpoint 
than removing LPG from a tank at a residence. NPGA, CHS Inc., and CHS 
Agri Service Center offered additional safety and efficiency 
information concerning this special permit in their comments (see their 
comments at http://www.regulations.gov).
    PHMSA is incorporating the terms of SP 13341 into the HMR by 
revising Sec.  173.315(j) to authorize the transportation of LPG in 
consumer storage containers in quantities greater than five percent of 
the container's water capacity. The storage container must have a water 
capacity not exceeding 500 gallons and be ASME ``U'' stamped to 
indicate that it was designed and constructed in accordance with ASME 
Code requirements. In addition, the container must be inspected for 
leaks, corroded or abraded areas, dents, weld distortions, or any other 
conditions that could make the container unsafe for transportation. 
PHMSA is also requiring that: (1) Only one storage container be 
transported at one time on a motor vehicle; (2) the storage container 
be lifted by slings, not by lifting lugs; and (3) the storage container 
be loaded and secured on the motor vehicle so that the container is 
well-secured against movement and completely within the envelope of the 
vehicle. Finally, transportation is limited to one-way movement from 
the consumer's premises to the container owner's nearest facility.

E. Nurse Tanks

    Nurse tanks are non-DOT specification cargo tanks used to transport 
and apply anhydrous ammonia fertilizers. The HMR authorize the use of 
nurse tanks operated by private motor carriers exclusively for 
agricultural purposes provided that the nurse tank: (1) Has a minimum 
design pressure of 250 psig and meets the requirements of Section VIII 
of the ASME code in effect at the time the nurse tank was manufactured; 
(2) is equipped with pressure relief valves; (3) has a capacity of 
3,000 gallons or less; (4) is loaded to a filling density no greater 
than 56 percent; and (5) is securely mounted on a farm wagon. Because 
they are non-DOT specification containers, nurse tanks that are not 
operating under a special permit are not subject to periodic 
inspection, testing, or requalification requirements.
    Nurse tanks mounted on field trucks. SP 10950 authorizes the use of 
a nurse tank securely mounted on a field truck. Field trucks are 
specifically designed and equipped to improve safety and efficiency by 
being more maneuverable and more stable than a farm wagon when moving 
over hilly terrain. A definition for field trucks is specified in Sec.  
173.315 as new paragraph (m)(3)(iv). These trucks are operated in 
remote

[[Page 5488]]

rural areas in eastern Washington, Oregon, and northern Idaho within a 
short distance of the fertilizer distribution point. The special permit 
has been in effect since 1993 and has been utilized by over one hundred 
grantees. A review of the Hazardous Materials Incident Data library did 
not reveal any incidents related to this special permit since the date 
of its issuance. Tanks operated under this special permit are subject 
to the periodic testing requirements under Subpart E of Part 180.
    The American Trucking Associations (ATA) supports the incorporation 
of the provisions in SP 10950 into the HMR. However, the organization 
requests that registration be a requirement, stating that PHMSA would 
lose the ability to track transporters of anhydrous ammonia and other 
hazardous materials without such a requirement, thereby losing its 
ability to quantify safety performance, collect data, initiate 
investigations and pursue enforcement actions. We believe ATA misread 
SP 10590 as excepting the permit holder from registration requirements. 
This is not the case. The special permit specifically states in Item 
11, third bullet, that the permit holders must comply with the 
registration requirements.
    For SP 10950 provisions, ATA also requested that we incorporate an 
exception from the security plan requirements ``similar to the 
exemption afforded to users of anhydrous ammonia nurse tanks.'' If ATA 
is referring to SP 13554, Item 11, second bullet, that provision 
specifically requires conformance to the security plan requirements. 
Users of SP 13554 were not excepted from security requirements, and as 
stated earlier in this preamble, we are not deviating from the current 
special permit provisions in this rulemaking. Therefore, the security 
plan requirements in Subpart I of Part 172 will remain applicable to 
nurse tanks mounted on field trucks. PHMSA is incorporating the 
provisions of SP 10950 into the HMR by adding a new paragraph (m)(3) to 
Sec.  173.315.
    Nurse tanks with missing or illegible ASME plates. As indicated 
above, nurse tanks must be manufactured in accordance with the 
applicable ASME Code requirements in effect at the time of manufacture. 
The ASME Code requires tanks built to its specifications to have an 
attached plate that lists the manufacturer, maximum allowable working 
pressure, minimum design metal temperature, and the year of 
manufacture. A number of nurse tanks are missing the required ASME 
plates or have illegible ASME plates. SP 13554 permits the continued 
use in anhydrous ammonia service of nurse tanks with missing or 
illegible ASME plates provided the tanks are inspected and tested. 
Specifically, the tanks must undergo an external visual inspection and 
testing using the procedures specified in Sec.  180.407(d), a thickness 
test using the procedures specified in Sec.  180.407(i), and a pressure 
test using the procedures specified in Sec.  180.407(g). The special 
permit also establishes minimum head and shell thickness, and nurse 
tanks not meeting those levels must be removed from service. Nurse 
tanks that pass the above-described tests must be marked with a unique 
owner's identification number and must pass the same tests at least 
every five years to remain in service.
    We received a comment from ATA under SP 13554 which stated concern 
``over PHMSA's incorporation of industry consensus standards into the 
HMR where such standards are developed without the benefit of formal 
rulemaking and where such standards are not provided to the public free 
of charge. This pay-to-play system of developing regulatory standards 
raises questions under the Administrative Procedures Act (5 U.S.C. 500 
et seq.), which requires agencies to provide interested persons with 
notice and an opportunity to participate in the rulemaking process.'' 
The commenter continued, ``To cure this defect, PHMSA should first 
publish the industry standard in the Federal Register and solicit 
comments on it prior to its incorporation in the HMR.'' PHMSA is not 
adopting any new standards in this final rule, as the Section VIII of 
the ASME Code was previously incorporated by reference into the HMR.
    This special permit has been in effect since 2004 and has been 
utilized by thousands of grantees. A review of the Hazardous Materials 
Incident Data library did not reveal any incidents related to this 
special permit since the date of its issuance. Although 49 CFR 
173.315(m) requires that a nurse tank ``meet the requirements of the 
edition of Section VIII of the ASME Code in effect at the time it was 
manufactured and is marked accordingly,'' if the plate is missing or 
illegible the nurse tank cannot be used. Therefore, these additional 
requirements that nurse tanks operating under the special permit must 
follow (i.e., the thickness testing, the pressure testing, and the 
external visual inspection), provide information about condition of the 
tank to ensure for the safe continued use of these tanks.
    In this final rule, PHMSA is incorporating the terms of SP 13554 
into the HMR by adding a new paragraph (m)(2) in Sec.  173.315. 
Existing nurse tanks with missing or illegible ASME plates that 
successfully pass the required inspections and tests and are marked 
with a unique identifier are authorized to remain in service.
In Summary
    Based on the above discussion, this final rule amends the HMR by 
incorporating the provisions contained in six widely used and 
longstanding cargo tank special permits that, in summary, will provide 
the following:
     Authorization to transport liquefied petroleum gas (LPG) 
in non-DOT specification cargo tank motor vehicles known as moveable 
fuel storage tenders that are used exclusively for agricultural 
purposes (SP 11209).
     Authorization to transport Division 6.1 liquid soil 
pesticide fumigants in DOT Specification MC 306 and DOT 406 cargo tank 
motor vehicles and DOT 57 portable tanks, used exclusively for 
agricultural purposes (SP 13113).
     Authorization to transport certain hazardous materials 
used for roadway striping in non-DOT specification cargo tanks (SP 
12884).
     Authorization for private motor carriers to transport LPG 
in consumer storage containers in quantities greater than five percent 
of the container's water capacity (SP 13341).
     Authorization to transport nurse tanks securely mounted on 
field trucks (SP 10950).
     Authorization for nurse tanks with missing or illegible 
ASME plates to continue to be used in anhydrous ammonia service under 
specified conditions (SP 13554).
    Additionally, in Sec.  171.7, we are revising the entry, American 
Society of Mechanical Engineers (ASME) and the National Fire Protection 
Association (NFPA) to reflect the addition of the incorporated by 
reference materials to the applicable adopted regulatory text.
    In Sec.  173.23, we are redesignating current paragraph (h) as new 
paragraph (i) and adding a provision to new paragraph (h) that 
authorizes packagings permanently marked with a special permit number 
for which the provisions of the special permit were incorporated into 
the HMR to continue to be used for the life of the packagings without 
removing or obliterating the special permit markings. This provision 
will serve to avoid imposing the burden of requiring the removal from 
service of such packagings while the markings are removed or 
obliterated.
    Finally, in Sec.  173.242, we are revising paragraph (b) to reflect 
the authorization of non-DOT specification cargo tanks used for roadway 
striping.

[[Page 5489]]

IV. Rulemaking Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under the authority of 49 U.S.C. 
5103(b), which authorizes the Secretary to prescribe regulations for 
the safe transportation, including security, of hazardous material in 
intrastate, interstate, and foreign commerce. 49 U.S.C. 5117(a) 
authorizes the Secretary of Transportation to issue special permits, 
which exempt a person transporting a hazardous material, or a person 
causing a hazardous material to be transported, from a regulation 
promulgated under 49 U.S.C. 5103(b), 5104, 5110, or 5112 of the Federal 
Hazardous Materials Transportation Law. The conditions or ``safety 
control measures'' of each special permit must ensure that the action 
performed pursuant to the special permit achieves a safety level at 
least equal to the safety level required under the law, or consistent 
with the public interest, if a required safety level does not exist. 
This final rule will amend the regulations by incorporating provisions 
from certain widely used and longstanding special permits that have 
established a history of safety.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) and was therefore not reviewed by the Office of 
Management and Budget (OMB). The rulemaking is not considered a 
significant rule under the Regulatory Policies and Procedures order 
issued by the Department of Transportation (44 FR 11034).
    In this final rule, PHMSA is amending the HMR by incorporating 
alternatives this agency has permitted under widely used and 
longstanding special permits with established safety records that we 
have determined meet the safety criteria for inclusion in the HMR. 
Incorporation of these special permits into regulations of general 
applicability will provide shippers and carriers with additional 
flexibility to comply with established safety requirements, thereby 
reducing transportation costs and increasing productivity. In addition, 
the provisions in this NPRM will reduce the paperwork burden on 
industry and this agency caused by continued renewals of special 
permits. The provisions of this final rule will promote the continued 
safe transportation of hazardous materials while reducing 
transportation costs for the industry and administrative costs for the 
agency.

C. Executive Order 13132

    This final rule was analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
final rule will 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 governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply. Federal hazardous 
material transportation law, 49 U.S.C. 5101-5128, 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 materials; and
    (5) The design, manufacture, fabrication, marking, maintenance, 
reconditioning, repair, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous materials.
    This final rule addresses covered subject items (2), (3), and (5) 
and would preempt any State, local, or Indian tribe requirements not 
meeting the ``substantively the same'' standard. Federal hazardous 
materials transportation law provides at 49 U.S.C. Sec.  5125(b)(2) 
that, if PHMSA issues a regulation concerning any of the covered 
subjects, PHMSA 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 is 90 days after the publication 
of this final rule in the Federal Register.

D. 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 on Indian tribal governments, the funding and 
consultation requirements of Executive Order 13175 do not apply.

E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to review regulations to assess their impact on small entities. 
An agency must conduct a regulatory flexibility analysis unless it 
determines and certifies that a rule is not expected to have a 
significant impact on a substantial number of small entities. This 
final rule incorporates into the HMR certain widely used special 
permits. Incorporation of these special permits into regulations of 
general applicability will provide shippers and carriers with 
additional flexibility to comply with established safety requirements, 
thereby reducing transportation costs and increasing productivity. 
Therefore, I certify this rulemaking will not have a significant 
economic impact on a substantial number of small entities.
    This final rule has been developed in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act to ensure that potential impacts of 
rules on small entities are properly considered.

F. Paperwork Reduction Act

    This final rule does not impose new information collection 
requirements. PHMSA has an approved information collection under OMB 
Control Number 2137-0051, ``Rulemaking, Special Permits, and Preemption 
Requirements,'' currently being reviewed for renewal by OMB. This final 
rule may result in a decrease in the annual burden and costs under OMB 
Control Number 2137-0051 due to the revisions to incorporate provisions 
contained in certain widely used or longstanding special permits that 
have established safety records.
    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to an information collection unless it has been approved by OMB 
and displays a valid OMB control number. Section 1320.8(d), Title 5, 
Code of Federal Regulations requires that PHMSA provide interested 
members of the public and affected agencies an

[[Page 5490]]

opportunity to comment on information and recordkeeping requests.
    PHMSA has developed burden estimates to reflect changes in this 
final rule. PHMSA estimates that the information collection and 
recordkeeping burden in this final rule would be decreased as follows:
    OMB Control No. 2137-0051:
    Decrease in Annual Number of Respondents: 185.
    Decrease in Annual Responses: 185.
    Decrease in Annual Burden Hours: 185.
    Decrease in Annual Burden Costs: $7,400.
    Requests for a copy of this information collection should be 
directed to Deborah Boothe or T. Glenn Foster, Standards and Rulemaking 
Division, Pipeline and Hazardous Materials Safety Administration, 1200 
New Jersey Avenue, SE., Washington, DC 20590-0001, Telephone (202) 366-
8553.

G. 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 contained in the heading of 
this document may be used to cross-reference this action with the 
Unified Agenda.

H. Unfunded Mandates Reform Act of 1995

    This final rule does not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It does not result in costs of 
$141.3 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.

I. Environmental Assessment

    The National Environmental Policy Act of 1969 (NEPA), as amended 
(42 U.S.C. 4321-4347), requires Federal agencies to consider the 
consequences of major Federal actions and prepare a detailed statement 
on actions that significantly affect the quality of the human 
environment.
    The hazardous materials regulatory system is a risk management 
system that is prevention oriented and focused on identifying hazards 
and reducing the probability and quantity of a hazardous materials 
release. Hazardous materials are categorized by hazard analysis and 
experience into hazard classes and packing groups. The regulations 
require each shipper to classify a material in accordance with these 
hazard classes and packing groups; the process of classifying a 
hazardous material is itself a form of hazard analysis. Further, the 
regulations require the shipper to communicate the material's hazards 
by identifying the hazard class, packing group, and proper shipping 
name on shipping papers and with labels on packages and placards on 
transport vehicles. Thus, the shipping paper, labels, and placards 
communicate the most significant findings of the shipper's hazard 
analysis. Most hazardous materials are assigned to one of three packing 
groups based upon its degree of hazard, from a high hazard Packing 
Group I material to a low hazard Packing Group III material. The 
quality, damage resistance, and performance standards for the 
packagings authorized for the hazardous materials in each packing group 
are appropriate for the hazards of the material transported.
    Hazardous materials are transported by aircraft, vessel, rail, and 
highway. The potential for environmental damage or contamination exists 
when packages of hazardous materials are involved in transportation 
incidents. The need for hazardous materials to support essential 
services means transportation of highly hazardous materials is 
unavoidable. However, these shipments frequently move through densely 
populated or environmentally sensitive areas where the consequences of 
an incident could be loss of life, serious injury, or significant 
environmental damage. The ecosystems that could be affected by a 
hazardous materials release during transportation include atmospheric, 
aquatic, terrestrial, and vegetal resources (for example, wildlife 
habitats). The adverse environmental impacts associated with releases 
of most hazardous materials are short-term impacts that can be greatly 
reduced or eliminated through prompt clean-up of the incident scene.
    In this final rule, PHMSA is incorporating the terms of six special 
permits into the HMR. Several of the proposals in this NPRM involve the 
transportation of LPG. LPG is a Division 2.1 (flammable gas) material 
that poses an explosive, fire, blast, or projection hazard. If 
released, LPG may cause eye or skin irritation and, if inhaled, it may 
irritate the respiratory tract. Moderate exposure may cause headache or 
dizziness. Elevated exposure may cause unconsciousness or respiratory 
arrest. Further, by diluting the oxygen concentration in air below the 
level necessary to support life, LPG can act as an asphyxiant. LPG is 
not known to cause long-term ecological damage. The provisions in this 
final rule are intended to ensure that LPG will be transported in a 
variety of applications with no release from its packaging and, thus, 
no adverse safety or environmental impacts.
    One of the provisions in this final rule involves Division 6.1 
liquid soil pesticide fumigants. Soil fumigation is a chemical control 
strategy used independently or in conjunction with cultural and 
physical control methods to reduce populations of soil organisms. Soil 
fumigants can effectively control soil-borne organisms, such as 
nematodes, fungi, bacteria, insects, weed seeds, and weeds. Different 
fumigants have varying effects on the control of these pests. Some are 
pest-specific, while others are broad spectrum biocides that kill most 
soil organisms. Soil fumigants are used in agriculture, nurseries, 
ornamental beddings, forest systems, and other areas where soil-borne 
pests can harm or devastate desirable plants. Because of treatment 
costs, applicators use soil fumigants primarily on high value crops, 
such as vegetables, fruits, and ornamentals. Control of soil-borne 
pests increases plant aesthetics, plant quality and vigor, crop yields, 
and ultimately profitability. Soil fumigants are closely regulated by 
the Environmental Protection Agency to prevent adverse health impacts 
to agricultural workers or bystanders (people who live, work, or 
otherwise spend time near fields that are fumigated). This final rule 
will help to ensure that liquid soil pesticide fumigants are 
transported without incident on or between farms and the bulk loading 
facility.
    Several provisions in this final rule address the transportation of 
anhydrous ammonia. Anhydrous ammonia is a poisonous by inhalation (PIH) 
material. When anhydrous ammonia is released into water, it floats on 
the surface, rapidly dissolving into the water as ammonium hydroxide 
while simultaneously boiling into the atmosphere as gaseous ammonia. 
High concentrations of ammonia (greater than 1700 parts per million 
(ppm)) in the atmosphere cause compulsive coughing and death, while 
lower concentrations (lower than 700 ppm) cause eye and throat 
irritation. Ammonia is lighter than air so that it dissipates in the 
atmosphere, the rate of dissipation depending on weather and wind 
conditions.
    In an aquatic or wetland environment, ammonium hydroxide would 
cause fish, planktonic, and benthic organism mortality in the vicinity 
of the release, the amount depending on the volume of anhydrous ammonia 
released. The

[[Page 5491]]

chemical would also strip protective oils from the feathers of shore 
birds, causing drowning or infection. Such die-offs could spur high 
nutrient levels that could stimulate noxious blooms of algae. 
Terrestrial vegetation would also be either damaged or killed, 
depending on atmospheric concentrations.
    The cleanup effort from a release of anhydrous ammonia would 
require the removal of soil containing anhydrous ammonia quickly to 
avoid contamination of the water table. Ammonia emissions would be 
released during the cleanup effort as contaminated soil is disturbed.
    The provisions in this final rule will require certain nurse tanks 
used to transport anhydrous ammonia to, from, and between farm fields 
to be inspected and tested periodically to identify problems that could 
result in a leak or release.
    There are no significant environmental impacts associated with the 
provisions in this final rule. In the NPRM, PHMSA specifically 
solicited comments on the potential environmental impacts of adopting 
the provisions of the six special permits, and none were received. The 
process through which special permits are issued requires the applicant 
to demonstrate that the alternative transportation method or packaging 
provides an equivalent level of safety as that provided in the HMR. 
Implicit in this process is that the special permit must provide an 
equivalent level of environmental protection as that provided in the 
HMR. Thus, incorporation of special permits as regulations of general 
applicability maintains the existing environmental protections built 
into the HMR. In addition, the provisions applicable to nurse tanks 
will enhance the integrity of those tanks, thereby reducing the 
possibility of an anhydrous ammonia release.

J. Privacy Act

    Anyone is able to search the electronic form of all comments and 
written communications received into any of our dockets by the name of 
the individual submitting the comment (or signing the comment, if 
submitted on behalf of an association, business, labor union, etc.). 
You may review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78), or at http://www.regulations.gov.

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, Incorporation by reference, 
Packaging and containers, Radioactive materials, Reporting and 
recordkeeping requirements, Uranium.

    In consideration of the foregoing, 49 CFR chapter I is amended 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. 5101-5128, 44701; 49 CFR 1.45 and 1.53; 
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134 
section 31001.


0
2. In Sec.  171.7, in the paragraph (a)(3) table, in the second column, 
``49 CFR reference,'' under the entry, National Fire Protection 
Association, the entry ``NFPA 58--Liquefied Petroleum Gas Code, 2001 
Edition'' is amended by adding the section ``173.5'' in appropriate 
numerical order.

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

0
3. The authority citation for part 173 continues to read as follows:

    Authority:  49 U.S.C. 5101-5128, 44701; 49 CFR 1.45, 1.53.


0
4. In Sec.  173.5, paragraphs (d), (e), and (f) are redesignated as 
paragraphs (f), (g) and (h) respectively, and new paragraphs (d) and 
(e) are added to read as follows:


Sec.  173.5  Agricultural operations.

* * * * *
    (d) Moveable fuel storage tenders. A non-DOT specification cargo 
tank motor vehicle may be used to transport Liquefied petroleum gas, 
UN1075, including Propane, UN1978, as moveable fuel storage tender used 
exclusively for agricultural purposes when operated by a private 
carrier under the following conditions:
    (1) The cargo tank must have a minimum design pressure of 250 psig.
    (2) The cargo tank must meet the requirements of the HMR in effect 
at the time of its manufacture and must be marked accordingly. For 
questions regarding these requirements, contact PHMSA by either:
    (i) Telephone (800) 467-4922 or (202) 366-4488 (local); or
    (ii) By electronic mail (e-mail) to: [email protected].
    (3) The cargo tank must have a water capacity of 1,200 gallons or 
less.
    (4) The cargo tank must conform to applicable requirements in 
National Fire Protection Association (NFPA) 58, Liquefied Petroleum Gas 
Code (IBR, see Sec.  171.7 of this subchapter).
    (5) The cargo tank must be securely mounted on a motor vehicle.
    (6) The cargo tank must be filled in accordance with Sec.  
173.315(b) for liquefied petroleum gas.
    (7) The cargo tank must be painted white, aluminum, or other light-
reflecting color.
    (8) Transportation of the filled moveable fuel storage tender is 
limited to movements over local roads between fields using the shortest 
practical distance.
    (9) Transportation of the moveable fuel storage tender between its 
point of use and a liquefied petroleum gas distribution facility is 
authorized only if the cargo tank contains no more than five percent of 
its water capacity. A movable fuel storage tender may only be filled at 
the consumer's premises or point of use.
    (e) Liquid soil pesticide fumigants. MC 306 and DOT 406 cargo tank 
motor vehicles and DOT 57 portable tanks may be used to transport 
liquid soil pesticide fumigants, Pesticides, liquid, toxic, flammable, 
n.o.s., flash point not less than 23 degrees C, 6.1, UN2903, PG II, 
exclusively for agricultural operations by a private motor carrier 
between a bulk loading facility and a farm (including between farms). 
However, transportation is not to exceed 150 miles between the loading 
facility and the farm, and not more than five days are permitted for 
intermediate stops for temporary storage. Additionally, transport is 
permitted only under the following conditions:
    (1) Cargo tanks. MC 306 and DOT 406 cargo tank motor vehicles must:
    (i) Meet qualification and maintenance requirements (including 
periodic testing and inspection) in accordance with Subpart E of Part 
180 of this subchapter;
    (ii) Conform to the pressure relief system requirements specified 
in Sec.  173.243(b)(1);
    (iii) For MC 306 cargo tanks, be equipped with stop-valves capable 
of being remotely closed by manual and mechanical means; and
    (iv) For DOT 406 cargo tanks, conform to the bottom outlet 
requirements specified in Sec.  173.243(b)(2).

[[Page 5492]]

    (2) Portable tanks. DOT 57 portable tanks must--
    (i) Be constructed of stainless steel; and
    (ii) Meet qualification and maintenance requirements of Subpart G 
of Part 180 of this subchapter.
* * * * *

0
5. In Sec.  173.5a, the section heading is revised and new paragraph 
(c) is added to read as follows:


Sec.  173.5a  Oilfield service vehicles, mechanical displacement meter 
provers, and roadway striping vehicles exceptions.

* * * * *
    (c) Roadway striping. In addition to conformance with all other 
applicable requirements of this subchapter, non-DOT specification cargo 
tanks used for roadway striping are authorized provided all the 
following conditions in this paragraph (c) are met.
    (1) Authorized materials. Only the hazardous materials listed in 
the table below may be transported in roadway striping vehicles. Cargo 
tanks may not be filled to a capacity that would be greater than liquid 
full at 130 [deg]F.

                                         Hazardous Materials Description
----------------------------------------------------------------------------------------------------------------
                                                 Hazard class/      Identification
             Proper shipping name                   division            number              Packing  group
----------------------------------------------------------------------------------------------------------------
Adhesives, containing a flammable liquid.....                3              UN1133   II
Paint including paint, lacquer, enamel,                      3              UN1263   II
 stain, shellac solution, varnish, polish,
 liquid filler, and liquid lacquer base.
Paint related material including paint                       3              UN1263   II
 thinning drying, removing, or reducing
 compound.
Flammable liquids, n.o.s. \a\................                3              UN1993   II
Gasoline.....................................                3              UN1203   II
Acetone \b\..................................                3              UN1090   II
Dichloromethane \b\..........................                6.1            UN1593   III
Ethyl methyl ketone or Methyl ethyl ketone                   3              UN1193   II
 \b\.
Ethyl acetate \b\............................                3              UN1173   II
Methanol \b\.................................                3              UN1230   II
Organic peroxide type E, liquid (Dibenzoyl                   5.2            UN3107   II
 peroxide) \c\.
Petroleum distillates, n.o.s. or Petroleum                   3              UN1268   III
 products, n.o.s. \b\.
1,1,1-Trichloroethane \b\....................                6.1            UN2831   III
Toluene \b\..................................                3              UN1294   II
Xylenes \b\..................................                3              UN1307   II, III
Environmentally hazardous substance, liquid,                 9              UN3082   III
 n.o.s. \c\.
Corrosive liquid, basic, organic, n.o.s. \c\.                8              UN3267   III
Corrosive liquids, n.o.s.\c\.................                8              UN1760   III
Elevated temperature liquid, n.o.s., at or                   9              UN3257   III
 above 100 [deg]C and below its flash point
 (including molten metals, molten salts,
 etc.) \d\.
----------------------------------------------------------------------------------------------------------------
\a\: Adhesive containing ethyl acetate.
\b\: Solvent.
\c\: Catalyst.
\d\: Thermoplastic material non-hazardous at room temperature.

    (2) Cargo tank requirements. Each non-DOT specification cargo tank 
used for roadway striping must be securely bolted to a motor vehicle 
and must--
    (i) Be constructed and certified in conformance with the HMR in 
effect at the time of its manufacture and must be marked accordingly. 
For questions regarding these requirements, contact PHMSA by either: 
(1) Telephone (800) 467-4922 or (202) 366-4488 (local); or (2) by 
electronic mail (e-mail) to: [email protected];
    (ii) Have a minimum design pressure of 100 psig;
    (iii) Have a maximum capacity of 500 gallons;
    (iv) For solvents and organic peroxides, the cargo tank may not 
contain more than 50 gallons;
    (v) Be given an external visual inspection prior to each use to 
ensure that it has not been damaged on the previous trip;
    (vi) Be retested and reinspected in accordance with Sec.  
180.407(c) of this subchapter as specified for an MC 331 cargo tank 
motor vehicle; and
    (vii) Be securely mounted to a motor vehicle in accordance with the 
securement provisions prescribed in Sec. Sec.  393.100 through 393.106 
of this title.
    (3) Test records. The owner or operator of the roadway striping 
vehicle must maintain hydrostatic test records in accordance with Sec.  
180.417(b) and must make those records available to any representative 
of the Department of Transportation upon request.
    (4) Marking. A non-DOT specification cargo tank used for roadway 
striping must be plainly marked on both sides near the middle in 
letters at least two inches in height on a contrasting background 
``ROADWAY STRIPING''.
    (5) Operational controls. A non-DOT specification cargo tank used 
for roadway striping may not be pressurized when the motor vehicle is 
traveling to and from job sites. Additionally, the distance traveled by 
a non-DOT specification cargo tank used for roadway striping may not 
exceed 750 miles. Thermoplastic resin may only be heated during roadway 
striping operations.

0
6. In Sec.  173.23, paragraph (h) is redesignated as paragraph (i) and 
new paragraph (h) is added to read as follows:


Sec.  173.23  Previously authorized packaging.

* * * * *
    (h) A packaging that is permanently marked with a special permit 
number, ``DOT-SP'' or ``DOT-E,'' for which the provisions of the 
special permit have been incorporated into this subchapter may continue 
to be used for the life of the packaging without obliterating or 
otherwise removing the special permit number.
* * * * *

0
7. In Sec.  173.242, the introductory text in paragraph (b) is revised 
to read as follows:


Sec.  173.242  Bulk packagings for certain medium hazard liquids and 
solids, including solids with dual hazards.

* * * * *
    (b) Cargo tanks: Specification MC 300, MC 301, MC 302, MC 303, MC 
304, MC 305, MC 306, MC 307, MC 310, MC 311,

[[Page 5493]]

MC 312, MC 330, MC 331, DOT 406, DOT 407, and DOT 412 cargo tank motor 
vehicles; and non-DOT specification cargo tank motor vehicles when in 
compliance with Sec.  173.5a(c). Cargo tanks used to transport Class 3, 
Packing Group I or II, or Packing Group III with a flash point of less 
than 38 [deg]C (100 [deg]F); Class 6, Packing Group I or II; and Class 
8, Packing Group I or II materials must conform to the following 
special requirements:
* * * * *

0
8. In Sec.  173.315, paragraphs (j) and (m) are revised to read as 
follows:


Sec.  173.315  Compressed gases in cargo tanks and portable tanks.

* * * * *
    (j) Consumer storage containers. (1) Storage containers for 
liquefied petroleum gas or propane charged to five percent of their 
capacity or less and intended for permanent installation on consumer 
premises may be shipped by private motor carrier under the following 
conditions:
    (i) Each container must be constructed in compliance with the 
requirements in Section VIII of the ASME Code (IBR, see Sec.  171.7 of 
this subchapter) and must be marked to indicate compliance in the 
manner specified by the respective Code. Containers built in compliance 
with earlier editions starting with 1943 are authorized.
    (ii) Each container must be equipped with safety devices in 
compliance with the requirements for safety devices on containers as 
specified in NFPA 58, Liquefied Petroleum Gas Code (IBR, see Sec.  
171.7 of this subchapter).
    (iii) The containers must be braced or otherwise secured on the 
vehicle to prevent relative motion while in transit. Valves or other 
fittings must be adequately protected against damage during 
transportation. (See Sec.  177.834(a) of this subchapter).
    (2) Storage containers with a water capacity not exceeding 500 
gallons charged with liquefied petroleum gas to more than five percent 
of their capacity and intended for permanent installation on consumer 
premises may be transported by private motor carrier one-way only from 
the consumer's premises to the container owner's nearest facility under 
the following conditions:
    (i) Each container must be constructed in compliance with the 
requirements in Section VIII of the ASME Code and must be marked to 
indicate compliance in the manner specified by the respective Code.
    (ii) Maximum permitted filling density may not exceed that 
specified in paragraph (b) of this section.
    (iii) Prior to loading on a motor vehicle, the container must be 
inspected by a trained and qualified person for leaks, corroded or 
abraded areas, dents, distortions, weld defects, or other condition 
that may render the container unsafe for transportation. A record of 
the inspection must be legibly signed and dated by the person 
performing the inspection and retained by the container owner for two 
years. The signature on the inspection record represents a 
certification that the container has been inspected and has no defects 
that would render it unsafe for transportation under the HMR. The 
record of inspection must include the date of inspection, the 
inspector's contact information (such as a telephone number), the 
container's serial number and container size (water capacity), 
estimated amount of hazardous material, and the origin and destination 
of shipment.
    (iv) Only one storage container may be transported on a motor 
vehicle.
    (v) For loading on a motor vehicle, the container must be lifted by 
slings, which must be completely wrapped around the container. Lifting 
lugs may not be used. The slings must be rated to a weight sufficient 
to accommodate the container and its lading and shall comply with ASME 
B30.9 on slings used for lifting purposes, and must be visually 
inspected prior to each use. A sling showing evidence of tears, 
fraying, or other signs of excessive wear may not be used.
    (vi) The storage container must be secured on a motor vehicle so 
that the container is completely within the envelope of the vehicle and 
does not extend beyond the vehicle frame.
    (vii) The storage container must be placed on the vehicle in a 
manner, such as in a cradle, which ensures that no weight is placed on 
the supporting legs during transportation.
    (viii) The storage container must be secured against movement 
during transportation. Bracing must conform with the requirements of 
paragraph (j)(1)(iii) of this section and Sec.  177.834(a) of this 
subchapter and with Section 6-5.2 of NFPA 58, Liquefied Petroleum Gas 
Code. Straps or chains used as tie-downs must be rated to exceed the 
maximum load to be transported and conform to the requirements in 
Sec. Sec.  393.100 through 393.106 of this title.
    (ix) Tow trailers used to transport storage containers in 
accordance with this paragraph (j)(2) must provide rear end protection 
that conforms to requirements in Sec.  393.86 of this title.
    (3) Storage containers of less than 1,042 pounds water capacity 
(125 gallons) may be shipped when charged with liquefied petroleum gas 
in compliance with DOT filling density.
* * * * *
    (m) General. (1) A cargo tank that is commonly known as a nurse 
tank and considered an implement of husbandry transporting anhydrous 
ammonia and operated by a private motor carrier exclusively for 
agricultural purposes is excepted from the specification requirements 
of part 178 of this subchapter if it:
    (i) Has a minimum design pressure of 250 psig, meets the 
requirements of the edition of Section VIII of the ASME Code in effect 
at the time it was manufactured, and is marked with a valid ASME plate.
    (ii) Is equipped with pressure relief valves meeting the 
requirements of CGA Standard S-1.2 (IBR, see Sec.  171.7 of this 
subchapter);
    (iii) Is painted white or aluminum;
    (iv) Has a capacity of 3,000 gallons or less;
    (v) Is loaded to a filling density no greater than 56 percent;
    (vi) Is securely mounted on a farm wagon or meets paragraph (m)(3) 
of this section; and
    (vii) Is in conformance with the requirements of part 172 of this 
subchapter except that shipping papers are not required; and it need 
not be marked or placarded on one end if that end contains valves, 
fittings, regulators or gauges when those appurtenances prevent the 
markings and placard from being properly placed and visible.
    (2) Nurse tanks with missing or illegible ASME plates. Nurse tanks 
with missing or illegible ASME plates may continue to be operated 
provided they conform to the following requirements:
    (i) Each nurse tank must undergo an external visual inspection and 
testing in accordance with Sec.  180.407(d) of this subchapter.
    (ii) Each nurse tank must be thickness tested in accordance with 
Sec.  180.407(i) of this subchapter. A nurse tank with a capacity of 
less than 1,500 gallons must have a minimum head thickness of 0.203 
inch and a minimum shell thickness of 0.239 inch. A nurse tank with a 
capacity of 1,500 gallons or more must have a minimum thickness of 
0.250 inch. Any nurse tank with a thickness test reading of less than 
that specified in this paragraph at any point must be removed from 
hazardous materials service.
    (iii) Each nurse tank must be pressure tested in accordance with 
Sec.  180.407(g) of this subchapter. The minimum test pressure is 375 
psig. Pneumatic testing is not authorized.
    (iv) Each nurse tank must be inspected and tested by a person

[[Page 5494]]

meeting the requirements of Sec.  180.409(d) of this subchapter. 
Furthermore, each nurse tank must have the tests performed at least 
once every five years after the completion of the initial tests.
    (v) After each nurse tank has successfully passed the visual, 
thickness, and pressure tests, welded repairs on the tank are 
prohibited.
    (vi) After the nurse tank has successfully passed the visual, 
thickness, and pressure tests, it must be marked in accordance with 
Sec.  180.415(b), and permanently marked near the test and inspection 
markings with a unique owner's identification number in letters and 
numbers at least \1/2\ inch in height and width.
    (vii) Each nurse tank owner must maintain a copy of the test 
inspection report prepared by the inspector. The test report must 
contain the results of the test and meet the requirements in Sec.  
180.417(b) and be made available to a DOT representative upon request.
    (3) Field truck mounted tanks. A non-DOT specification cargo tank 
(nurse tank) securely mounted on a field truck is authorized under the 
following conditions:
    (i) The tank is in conformance with all the requirements of 
paragraph (m)(1) of this section, except that the requirement in 
paragraph (m)(1)(vi) does not apply;
    (ii) The tank is inspected and tested in accordance with subpart E 
of part 180 of this subchapter as specified for an MC 331 cargo tank;
    (iii) The tank is restricted to rural roads in areas within 50 
miles of the fertilizer distribution point where the nurse tank is 
loaded; and
    (iv) For the purposes of this section, a field truck means a 
vehicle on which a nurse tank is mounted that is designed to withstand 
off-road driving on hilly terrain. Specifically, the vehicle must be 
outfitted with stiffer suspension (for example, additional springs or 
airbags) than would be necessary for a comparable on-road vehicle, a 
rear axle ratio that provides greater low end torque, and a braking 
system and tires designed to ensure stability in hilly terrain. The 
field truck must have low annual over-the-road mileage and be used 
exclusively for agricultural purposes.
* * * * *

    Issued in Washington, DC, on January 13, 2011 under authority 
delegated in 49 CFR part 1.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2011-2014 Filed 1-31-11; 8:45 am]
BILLING CODE 4910-60-P