{"operation":"document","citation":"12-0265","title":"Scopelitis, Garvin, Light, Hanson & Feary, P.C. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2013-02-07","effective_on":null,"summary":"12-0265 response to Scopelitis, Garvin, Light, Hanson & Feary, P.C. concerning 180.417.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0265.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0265.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-12-0265","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretation%20Files/2013/120265.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\n1200 New Jersey Avenue, SE\nWashington, D.C. 20590\nFEB 0 7 2013\nMr. Timothy Wiseman\nAttorney\nScopelitis, Garvin, Light, Hanson & Feary, P.C.\n10 West Market Street, Suite 1500\nIndianapolis, IN 46204\nRef. No. 12-0265\nDear Mr. Wiseman:\nThis responds to your December 3, 2012 letter requesting clarification of the record\nretention requirements for portable tanks under the Hazardous Materials Regulations (HMR;\n49 CFR Parts 171-180). You request clarification whether a similar exception from record\nretention requirements for an owner of a cargo tank under§ 180.417(a)(3)(ii) exists for your\n(ICC/DOT 51) portable tanks. Specifically, you ask whether, in the absence of the\nmanufacturer's certificate for the specification and the manufacturer's data report required\nby the American Society of Mechanical Engineers (ASME) Code, the owner may copy the\ninformation marked on the portable tank plate(s) and have a registered inspector certify the\nportable tank conforms to the specification; and then retain this documentation in a record.\nNo exception from the record retention requirements for an owner of a portable tank exists\nsimilar to the exception afforded a cargo tank owner under§ 180.417(a)(3)(ii). The\nrequirements for the qualification and maintenance of a portable tank, including an\nauthorized ICC/DOT 51 portable tank, are found in Subpart G ofPart 180 ofthe HMR.\nRecord retention requirements are specified in § 180.605(1). No exception is written into\nthese requirements allowing for reproduction of the stamp plate information and certification\nof conformance with the specification by a registered inspector in the absence of a\nmanufacturer's data report and certification. The exception found in§ 180.417(a)(3)(ii) was\noriginally adopted under a final rule (HM-183, 183A) (54 FR 24982, 25032; June 12, 1989)\nincorporating regulations for the manufacture of a cargo tank, and its maintenance,\noperation, repair, and requalification and was specific to cargo tanks only.\n\n<<<PAGE 2>>>\n\nMaintaining a written record of the qualification of a portable tank in a manner alternative to\nwhat is prescribed in the HMR may possibly be obtained through issuance of a special\npermit by the Associate Administrator for Hazardous Materials Safety, Pipeline and\nHazardous Materials Safety Administration. The application process for a special permit\nand minimum criteria for justification of a level of safety at least equal to regulation or that\nis consistent with the public interest is outlined in 49 CFR Part 107, Subpart B.\nI hope this information is helpful. If you have further questions, please contact this office.\nDelmer Bil~~\nSenior Regulatory Advisor\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\nTIMOTHYW. WISEMAN\nMANAGING PARTNER\ntwiseman@scopelitis.com\nDer Kt~leren\n~ 180. ~/7\nCo.r3o Ms\nl?v .. 1)J.__b5\nDecember 3, 2012\nVIA U.S. MAIL\nU.S. DOT\nPHMSA Office of Hazardous Materials Standards\nAttn: PHH-10\nEast Building\n1200 New Jersey Avenue, SE\nWashington, DC 20590-0001\nRe: Request for Official Interpretation\nDear Sir I Madam:\nMy firm represents Multistar Industries, Inc. d/b/a Multifrost, Inc.\n(\"Multistar''), which is engaged in the business of transporting hazardous\nmaterials to and from its customers' locations throughout the Pacific\nNorthwest. Specifically, Multistar transports ammonia anhydrous in tanks\nbuilt to ICC/DOT-51, MC-330, and MC-331 specifications (the majority being\nICC/DOT-51 tanks). Multistar does not have the manufacturer's data reports,\ncertificates, or related papers for its fleet of ICC/DOT-51 tanks as required by\n49 C.F.R. § 180.605(1). Although Multistar is aware of an exception to a similar\nrecord-retention policy for cargo tanks (see 49 C.F.R. § 180.417(a)(3)(ii)), it is\nunclear whether this exception also applies to Multistar's fleet of ICC/DOT-51\nportable tanks. Accordingly, this letter requests clarification on that issue.\n49 C.F.R. § 180.417(a)(3) provides\n(3) DOT Specification cargo tanks manufactured before September 1, 1995--\n(ii) ASME Code Stamped cargo tanks. If the owner does not have\nthe manufacturer's certificate required by the specification and the\nmanufacturer's data report required by the ASME, the owner may\ncontact the National Board for a copy of the manufacturer's data\nreport, if the cargo tank was registered with the National Board, or\ncopy the information contained on the cargo tank's identification\nand ASME Code plates. Additionally, both the owner and the\n------·--·-·-·----· ------------\n\n<<<PAGE 4>>>\n\nPage 2\nDecember 3, 2012\nRegistered Inspector must certify that the cargo tank fully\nconforms to the specification. The owner must retain such\ndocuments, as specified in this section. (emphasis added).\nAssuming its MC-330/331 tanks were manufactured before September 1,\n1995, this provision would seemingly permit Multistar to simply copy and\nretain the information contained on the cargo tanks' identification and ASME\nCode plates and have a registered inspector certify that the tanks fully conform\nto the specifications. Indeed, following a recent FMCSA compliance review,\nMultistar received a written interpretation (enclosed as Exhibit A) from Mr.\nJeffrey James, FMCSA Washington Division Administrator, confirming this\nunderstanding.\nIt is unclear, however, whether this exception-which by its own terms applies\nto DOT specification cargo tanks-applies equally to Multistar's ICC/DOT-51\nportable tanks, such that Multistar need only retain a copy of the portable\ntanks' identification and ASME Code plates and have a registered inspector\ncertify that the tanks fully conform to the specifications. Multistar, by counsel,\nrecently posed this very question to PHMSA Investigator Terry Pollard, who\nopined that the exception would apply to Multistar's ICC/DOT-51 tanks (see E-\nmail exchange with Terry Pollard, enclosed as Exhibit B). Multistar has since\nverified that these particular tanks were never registered with the National\nBoard. Accordingly, Multistar respectfully requests an official interpretation\nregarding whether the exception found at 49 C.F.R. § 180.417(a)(3)(ii) applies\nequally to its MC-330/331 and its ICC/DOT-51 tanks, assuming the tanks\nwere manufactured prior to September 1, 1995.\nIf you have any questions or need any additional information, please do not\nhesitate to contact me.\nVery truly yours,\nTimothy W. Wiseman\nAttorney for Multistar Industries, Inc.\nd/b/a Multifrost, Inc.\nTWW/bkw\nEnclosures\ncc: Peter Vanourek (via U.S. Mail)\nJedd Miloud (via E-mail)\nJerry Calderon (via E-mail)\n\n<<<PAGE 5>>>\n\nMultistar Industries, Inc. (USDOT #461410)\nSafety Management Plan - Third Supplement\nNovember 29,2012\nSince the recent compliance review of our operations by the FMCSA, Multistar\nIndustries, Inc. (\"Multistar\") continues to make operational changes to ensure\ncompliance with the various regulations impacting our business as a interstate\nmotor carrier of hazardous materials. In that regard, we respectfully requests\nthat this letter and its various attachments be reviewed by the FMCSA as a Third\nSupplement to the previously submitted Safety Management Plan materials\nprovided to your office last month. In submitting this Third Supplement, we\nremain committed to working with the agency to ensure continued safe and\ncompliant transportation operations.\n1. Removal of MC-330 & MC-331 Tanks from Service. Multistar\nwill remove all MC-330 and MC-331 tanks (other than its cargo tank motor\nvehicles (\"CTMV\"}) from service involving the transportation of hazardous\nmaterials. Specifically, the following tanks will be removed from service in the\ntransportation of ammonia solution, ammonia anhydrous, or any other\nhazardous material:\nMSITANKNO.\nTANK SPECIFICATION\nMSI 500-01\nMSI 500-02\nMSI 500-04\nMSI 500-07\nMSI 500-08\nMSI 500-25\nMSI 1000-20\nMSI 1500-02\nMSI 1500-03\nMSI 1000-19\nMC331\nMC331\nMC331\nMC331\nMC331\nMC331\nMC331\nMC331\nMC331\nMC330\nIn addition, the other MC-330 and MC-331 tanks currently listed out-of-service\n(\"OOSu) as in the Tank Inventory previously provided by Multistar will continue\nto remain OOS. All of these tanks will be kept in the designated \"hospital\" where\nall other out-of-service (\"OOS\") tanks are kept. The tanks will be marked with a\nbright orange OOS tag, and all employees will be instructed to not use these\ntanks for any reason.\nMultistar will keep all MC-330 and MC-331 tanks OOS until otherwise approved\nin writing by the FMCSA. In that regard, Multistar reserves the right to seek a\nSpecial Permit and/or Authorization from the PHMSA regarding whether such\ntanks can be legally used in the manner these tanks were previously used by\nMultistar. However, even if such a Special Permit and/or Authorization is\nreceived by Multistar, it agrees not to return these tanks to service without first\nobtaining written authorization from the FMCSA.\nThe only limited use of these tanks going forward will be their transportation as\nempty containers to customers and/ or for disposal. However, in that rare event,\nMultistar will first ensure that the tanks are cleaned and purged, and that all\nlabels are removed or covered up prior to and during transportation.\nFor the sake of clarity, Multistar will continue to use the following cargo tank\nmotor vehicles, subject of course to compliance with all applicable FMCSR/HMR\nregulations:\n\n<<<PAGE 6>>>\n\nCARGO TANK MOTOR VEHICLES\n2400-01\n4040-04\n6500-03\n10600-01\nMC330\nMC330\nMC330\nMC331\n2. Inspection of ICC/DOT-51. Non-Specification and Nurse Tanks-\nMultistar agrees to remove all other tanks (other than its CTMVs), including its\ninventory of ICC/DOT-51, Non-Spec and Nurse Tanks from service until such\ntanks have been inspected by a certified third party cargo tank inspector. In that\nregard, Multistar intends to use C.H.S. Transportation (\"CHS\") in Pasco, WA to\nconduct the HMR-required inspections for all of its tanks. The plan is to have\nCHS inspect approximately 10 tanks at a time. If the tanks pass the required\nleakage, visual and other required HMR tests for the specific type of tank at\nissue, then and only then will the tank be placed in service by Multistar.\nIn addition, Multistar will have CHS inspect any questionable welds on each tank\nto determine if the weld impacts the barrel or shell of the tank without the proper\ncertification. If so, then the tank will be placed OOS. However, Multistar is of\nthe belief that all of the welding it has done to any of the applicable tanks was\ndone to the apparatus (e.g. the landing skids primarily) rather than to the barrel\nor shell of the tank itself. However, the landing skids themselves were welded\nonto the tank by the manufacturer itself, rather than by Multistar. Multistar will\nconfirm that CHS and any other third party testing facility is properly certified\nwith the FMCSA with a CT certification and registered inspectors.\nIf desired by the FMCSA, Multistar will submit copies of all completed CHS tank\ninspections and pictures of the sides and each end of every tank to confirm that\n(1) the inspection was successfully completed and (2) the tanks are properly\nmarked and labeled for transportation.\n2\n\n<<<PAGE 7>>>\n\n3. Tank Birth Certificate Issue. - Multistar does not have the\nmanufacturer's data report, certificate or related papers for its fleet of ICC/DOT-\n51 tanks as required by 49 CFR 180.605(1). It has verified that these particular\ntanks were never registered with the National Board. However, Multistar, by its\nlegal counsel, has reached out to PHMSA enforcement personnel (Terry Pollard\nspecificaUy), who has initially indicated that Multistar could, in lieu of the actual\nmanufacturer information, keep a copy of the specification plate on file similar to\nthe exception currently allowed by PHMSA for MC-330 and MC-331 tanks.\nMu1tistar will be filing the attached Request for Official Interpretation with\nPHMSA in the next few days to clarify that the process allowed for MC-330/331\ntanks will also suffice for ICC/DOT-51 tanks. Multistar will share both the\nRequest and the PHMSA's response to the FMCSA.\n4. Non-SPecification Tanks - Multistar intends to submit an\naffidavit with any supporting documents from Jiri Vanourek along with any\navailable supporting documents to demonstrate that its fleet of non-specification\ntanks meets the requirements of Note 17 of 49 C.F.R. 173.315. In addition,\nbefore any of these tanks are used, they will first undergo testing by CHS as\nrequired by Note 17 (see Section 2 above).\nCERTIFICATION STATEMENT\nMultistar Industries, Inc. continues to affirm that it will operate in compliance\nwith the Federal Motor Carrier Safety Regulations and the hazardous material\nregulations, and that our operations currently meet the safety standards and\nfa tors spe<fied in 49 C.F.R. § 385.5. ·\n3","truncated":false,"body_characters":12807}