[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