March 27, 2002

Dr. Robert McGuire
Associate Administrator for Hazardous Materials Safety
Dockets Management System
U.S. Department of Transportation
Room PL 401
400 Seventh St., SW
Washington, DC 20590-0001

Re: DOT Docket No. RSPA-01-10533 (HM-218A); "Transportation of Hazardous Materials; Unloading of Intermodal (IM) Portable Tanks on Transport Vehicles" (Notice of proposed rulemaking published February 22, 2002)

Dear Dr. McGuire:

The Dangerous Goods Advisory Council (DGAC) is an international, non-profit, educational organization devoted to promoting safety in the domestic and international transportation and handling of hazardous materials, substances and wastes. DGAC represents shippers, carriers of all modes, container manufacturers and reconditioners, emergency response and waste clean-up companies, and a variety of other companies and trade associations involved in the field of hazardous materials transportation.

We appreciate the relief offered in this proposed rule which would permit, under specified conditions, the unloading of IM portable tanks transporting certain liquid hazardous materials that are not equipped with thermally activated bottom closure devices. With one exception, DGAC supports your proposed rule. We agree with your approach to incorporate certain appropriate OSHA and EPA standards into activities that are within RSPA's jurisdiction. However, for the reasons outlined later in this letter, we believe that the conditions should remain a permanent part of the regulations and not expire, as proposed, on October 1, 2003.

The preamble to the rule states that the shipper and carrier should share the responsibility for verifying that the consignee's facility meets certain conditions, which includes conformance with OSHA fire suppression requirements, OSHA emergency shutdown requirements, and OSHA/EPA emergency response planning requirements. The proposed requirements for shipper and carrier, respectively, are § 173.32(h)(3)(ii) and § 177.834(o)(2).

Taken in a broad sense, these proposed requirements would mean the shipper and/or carrier must ascertain whether the provisions have been properly met. We believe this situation could lead to differing interpretations of the requirements for the facility. The problem would be compounded when multiple shippers/carriers serve a particular facility. Another complication is that shippers/carriers are unlikely to be aware of state or local requirements that are in excess of those of OSHA. If a problem should occur during unloading, and fire or shutdown capabilities prove less than adequate, would these entities be held partly responsible? In addition, foreign shippers would have no means to assure compliance, leaving the problem solely to the carrier. We recommend the proposed requirements be revised to clearly indicate that the consignee is responsible for compliance with the facility regulations. DGAC believes this operation should be under RSPA jurisdiction, as we pointed out in our comments on docket HM-223 (January 24, 2002 letter to RSPA).

Concerning the proposed October 1, 2003 date for requiring the thermally activated device to be installed, DGAC now believes all interests would be better served if the conditions on facilities were made a permanent option in the regulations. We were present at the December 2001 UN Transport Sub-Committee meeting when the U.S. representative presented a position paper on this issue. It did not receive enough support to require the devices be fitted on UN portable tanks. Countries not voting for the proposal mentioned several reasons for their lack of support, including the need for further justification and practical problems with retrofitting equipment. This situation now leaves a large proportion of the world's portable tanks with no mandate to fit or retrofit a thermally activated bottom closure device. We would anticipate that a U.S.-only requirement would create confusion and result in very difficult logistics problems for foreign shippers trying to serve the U.S. market. For example, would they be compelled to retrofit part of their fleets that would be reserved for the U.S. market? It's also possible the U.S. required equipment may create problems in other countries where technicians are not familiar with their operation and maintenance. For these reasons, we strongly encourage RSPA to harmonize with international regulations by not mandating the device.

We don't question the need for additional safety precautions for unloading certain hazardous materials while a tank remains on the transport vehicle with the power unit attached; rather, we think restricting the regulatory approach to only the installation of these devices is too narrow, given the problems that will be caused with the large number of tanks that will not have them installed because they are not required outside the U.S. In our view, since the added precautions on facilities will represent an equivalent level of safety, it is far simpler to allow either the device or the operational precautions to be followed when unloading.

We appreciate your consideration of these comments and would be pleased to provide more information, if needed.

Sincerely,

Michael Morrissette
Vice President