Hazardous Materials: Incorporation of Statutorily Mandated Revisions to the Hazardous Materials Regulations, 73156-73166 [05-23754]

Download as PDF 73156 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations (2) * * * (iii) A spare part for foreignmanufactured vehicles, equipment, machinery, or systems, provided the acquisition is restricted to the original manufacturer or its supplier; * * * * * List of Topics PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 252.225–7027 and 252.225–7028 [Amended] 30. Sections 252.225–7027 and 252.225–7028 are amended in the introductory text by removing ‘‘225.7308’’ and adding in its place ‘‘225.7307’’. I [FR Doc. 05–23721 Filed 12–8–05; 8:45 am] BILLING CODE 5001–08–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 105, 106, 107, 110, 171, 172, 173, 174, 175, 176, 177, 178 and 180 [Docket No. PHMSA–2005–22208 (HM–240)] RIN 2137–AE12 Hazardous Materials: Incorporation of Statutorily Mandated Revisions to the Hazardous Materials Regulations Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. AGENCY: SUMMARY: This final rule revises terminology, definitions, and requirements for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. These amendments include revising the definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer;’’ revision of shipping paper retention requirements; providing a security plan exception for farmers; adding conditional applicability of postal laws and regulations; and replacement of ‘‘Exemption’’ with ‘‘Special permit.’’ DATES: Effective date: January 9, 2006. FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or Kurt Eichenlaub, Office of Hazardous Materials Standards, (202) 366–8553, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590–0001. SUPPLEMENTARY INFORMATION: VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 I. Background II. Summary of Issues A. Definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer’’ B. Revision of shipping paper retention requirements C. Security plan exception for farmers D. Applicability of postal laws and regulations E. Replacement of ‘‘Exemption’’ with ‘‘Special permit’’ III. Regulatory Analysis A. Statutory/Legal Authority for This Rulemaking B. Executive Order 12866 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Unfunded Mandates Reform Act of 1995 G. Paperwork Reduction Act H. Environmental Impact Analysis I. Regulation Identifier Number (RIN) I. Background Section 5103 of the Federal Hazardous Materials Transportation Law (Federal hazmat law; 49 U.S.C. 5101 et seq.) authorizes the Pipeline and Hazardous Materials Safety Administration (PHMSA) to prescribe safety and security regulations for the transportation of hazardous materials in interstate, intrastate, and foreign commerce. The Hazardous Materials Safety and Security Reauthorization Act of 2005 (the Act; Title VII of Pub. L. 109–59, 119 Stat. 1144 (August 10, 2005)) amended Federal hazmat law by revising certain terminology, definitions, and requirements. This final rule revises the Hazardous Materials Regulations (HMR; 49 CFR parts 171– 180) and the hazardous materials program and rulemaking procedures in 49 CFR parts 105, 106 and 107 to be consistent with changes mandated by the Act. Because these amendments are mandated and self-executing, notice and public procedure are unnecessary. By making these amendments effective without the customary 30-day delay following publication, the changes will appear in the next revision of Title 49, Code of Federal Regulations. The following is a summary of the changes made in this final rule. II. Summary of Issues The Act mandates revisions to the following provisions of the HMR and the hazardous materials program and rulemaking procedures: A. Definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer’’ B. Revision of shipping paper retention requirements PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 C. Security plan exception for farmers D. Applicability of postal laws and regulations E. Replacement of ‘‘Exemption’’ with ‘‘Special permit’’ A. Definitions of ‘‘Hazmat Employee’’ and ‘‘Hazmat Employer’’ We are revising the definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer’’ in § 171.8 for consistency with editorial revisions adopted under the Act. We are revising the definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer’’ to specify both of these definitions include self-employed individuals. Also, both definitions are revised to include persons that represent, mark, certify, or sell packaging components as qualified for use in transporting hazardous materials in commerce. In addition, the Act amends § 5107 of Federal hazmat law to mandate general awareness and safety training pursuant to § 172.704 of the HMR for railroad maintenance-of-way employees and railroad signalmen. Therefore, we are also revising the definition of ‘‘hazmat employee’’ to include railroad maintenance-of-way employees and railroad signalmen. To provide rail carriers with sufficient time to implement the new training requirements, we are requiring initial training for maintenance-of-way employees and railroad signalmen to be completed by October 1, 2006. Section 172.704 requires each hazmat employee to receive general awareness/ familiarization training, functionspecific training, safety training, and security awareness training. Functionspecific training is not necessary for railroad maintenance-of-way employees and railroad signalmen who do not perform functions specifically regulated under the HMR. Thus, we are revising § 172.704(e) to provide an exception from function-specific training for such railroad maintenance-of-way employees and railroad signalmen. We are also excepting railroad maintenance-of-way employees and railroad signalmen from the requirement in § 172.704(a)(4) for security awareness training because such training is not mandated under the Act. However, we may consider requiring such training for railroad maintenance-of-way employees and railroad signalmen in a future rulemaking. B. Revision of Shipping Paper Retention Requirements Under the HMR, each person who provides a shipping paper must retain a copy of the shipping paper for 375 days after the hazardous material is accepted by the initial carrier. Each carrier must E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations also retain a copy of the shipping paper for 375 days. The Act amends § 5110 of Federal hazmat law to require shippers to retain a copy of a shipping paper for a period of two years after the shipping paper is provided to a carrier and to require carriers to retain a copy of a shipping paper for a period of one year after the date the shipping paper is received from the shipper. Therefore, we are revising §§ 172.201(e), 174.24, 175.30, 176.24, and 177.817 of the HMR to incorporate the shipping paper retention requirements in the Act. For purposes of shipping paper retention, a year is calculated from the exact date the shipping paper is provided to the initial carrier until the same date the following year. For example, a carrier who receives a shipping paper on October 1, 2006, must retain a copy of the shipping paper through September 30, 2007. Shippers and carriers of a hazardous waste must continue to retain a shipping paper for 3 years after the material is accepted by the initial carrier. C. Security Plan Exception for Farmers The Act exempts certain agricultural operations from the requirement in subpart I of part 172 of the HMR for persons who offer for transportation or transport certain hazardous materials in commerce to develop and implement security plans. Therefore, we are adding a new paragraph (c) to § 172.800 to provide an exemption from the security plan requirements for farmers who generate less than $500,000 annually in gross receipts from the sale of agricultural commodities and products; transport hazardous materials in direct support of their farming operations; and transport hazardous materials by highway or rail within 150-mile radius of their farming operations. D. Applicability to Postal Laws and Regulations The Act amends § 5126(b) of Federal hazmat law with respect to its applicability to postal laws and regulations. Consistent with the Act, we are revising § 171.1(d)(7) of the HMR to clarify the HMR do not apply to any matter subject to the postal laws and regulations of the United States, except in the case of an ‘‘imminent hazard.’’ ‘‘Imminent hazard’’ is defined in the Act as the ‘‘existence of a condition relating to hazardous material that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 begun to lessen the risk of that death, illness, injury, or endangerment.’’ E. Replacement of ‘‘Exemption’’ With ‘‘Special Permit’’ The Act amends section 5117 of Federal hazmat law to change the term ‘‘exemption’’ to ‘‘special permit’’ and provides for an initial effective period of two years and renewals of up to four years. In this final rule we are replacing most of the appearances of the word ‘‘exemption’’ with ‘‘special permit.’’ This amendment will apply to various forms of ‘‘exemption,’’ such as plural, singular, e-mail addresses, and mailing addresses. In addition, we are making the following revisions to the HMR: —Current exemptions will be effective until they expire, are terminated, or become due for renewal. Current exemptions will be replaced by special permits at the time when a renewal application is submitted and approved by the Associate Administrator. —Packagings and shipping papers prepared in accordance with a new special permit issued on or after October 1, 2005 must be marked with ‘‘DOT–SP’’ and the appropriate special permit number, unless otherwise specified by the special permit. —Packagings and shipping papers previously marked ‘‘DOT–E’’ in accordance with a current exemption generally may continue in use so long as the provisions in the exemption remain valid. Continued use of preprinted shipping papers and ‘‘DOT– E’’ markings on packagings will be evaluated on a case-by-case basis when current exemptions become due for renewal. —An initial special permit will be valid for up to two years before it expires or becomes due for renewal. For the purposes of a party to a special permit, a new applicant is considered to be a ‘‘new’’ holder for assigning an expiration date. If renewed, a special permit will be valid for up to four years before the next renewal. —The Office of Hazardous Materials Exemptions and Approvals (OHMEA) is renamed the Office of Hazardous Materials Special Permits and Approvals (OHMSPA). —The e-mail address for OHMSPA is revised from Exemptions@rspa.dot.gov to Specialpermits@dot.gov. PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 73157 III. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. The amendments in this final rule are being adopted for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. B. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The cost impact of the changes effected by this final rule is expected to be minimal. The major cost impact will be incurred by rail carriers to comply with the new requirements for providing general awareness and safety training to maintenance-of-way employees and railroad signalmen. We estimate approximately 7,000 rail employees will be affected. Because rail carriers already are required to provide this training to hazmat employees, carriers will not incur costs to develop the training. Thus, total training costs will be those associated with time lost from work for the training. We estimate the training will require 3 hours to complete; therefore, using an average employment cost of $22.00/hour, total training costs for the first year will be 7,000 employees × $22.00/hour × 3 hours or $462,000. Hazmat employees must receive recurrent training every three years; thus, for subsequent years, rail carriers will incur a total of $154,000 in annual costs to train maintenance-of-way employees and railroad signalmen. This final rule will result in reduced costs for persons who apply to renew special permits because a special permit may now be renewed for four years rather than two years as is currently the case. C. Executive Order 13132 This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 E:\FR\FM\09DER1.SGM 09DER1 73158 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations (‘‘Federalism’’). This final rule does not adopt any regulation that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts state law. Therefore, preparation of a federalism assessment is not warranted. G. Paperwork Reduction Act 49 CFR Part 175 There are no new information collection requirements in this final rule. Hazardous materials transportation, Air carriers, Reporting and recordkeeping requirements. H. Environmental Impact Analysis 49 CFR Part 176 There are no environmental impacts associated with this final rule. Hazardous materials transportation, Maritime carriers, Reporting and recordkeeping requirements. I. Regulation Identifier Number (RIN) A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. 49 CFR Part 177 List of Subjects 49 CFR Part 180 49 CFR Part 105 49 CFR Part 106 Hazardous materials transportation, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements, Special permits. In consideration of the foregoing, amend 49 CFR Chapter I as follows: E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies Administrative practice and procedure, Hazardous materials transportation, Special permits. PART 105—HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL PROCEDURES I certify this final rule will not have a significant economic impact on a substantial number of small entities. This rule amends the HMR for consistency with the Hazardous Materials Safety and Security Reauthorization Act of 2005. The cost impacts of this rule are expected to be minimal. As noted above, the major cost impact will be incurred by rail carriers to comply with the new requirements for providing general awareness and safety training to maintenance-of-way employees and railroad signalmen. We estimate first year compliance costs will total $462,000, with subsequent year annual costs at $154,000. This final rule will result in reduced costs for persons who apply to renew special permits because a special permit may now be renewed for four years rather than two years as is currently the case. 49 CFR Part 107 D. Executive Order 13175 This final rule has been 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, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply. F. Unfunded Mandates Reform Act of 1995 16:58 Dec 08, 2005 Jkt 208001 49 CFR Part 110 Disaster assistance, Education, Grant programs—environmental protection, Grant programs—Indians, Hazardous materials transportation, Hazardous substances, Indians, Reporting and recordkeeping requirements. 49 CFR Part 171 49 CFR Part 172 Education, Hazardous materials transportation, Markings, Packaging and containers, Reporting and recordkeeping requirements, Special permits. Hazardous materials transportation, Packaging and containers, Reporting and recordkeeping requirements, Special permits. 49 CFR Part 174 Hazardous materials transportation, Rail carriers, Reporting and recordkeeping requirements. Frm 00036 Fmt 4700 Hazardous materials transportation, Motor vehicle safety, Packaging and containers, Reporting and recordkeeping requirements. 1. The authority citation for part 105 continues to read as follows: Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. 2. In § 105.5, make the following changes: I a. In paragraph (b), revise paragraph (2) of the definition for ‘‘Competent Authority Approval’’; and I b. In paragraph (b), remove the definition for ‘‘Exemption’’ and add a definition for ‘‘Special permit’’ in appropriate alphabetical order. The revisions read as follows: I § 105.5 Applicability, Hazardous materials transportation, Reporting and recordkeeping requirements. PO 00000 49 CFR Part 178 I Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements, Special permits. 49 CFR Part 173 This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 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. VerDate Aug<31>2005 Administrative practice and procedure, Hazardous materials transportation. Hazardous materials transportation, Motor carriers, Reporting and recordkeeping requirements. Sfmt 4700 Definitions. * * * * * (b) * * * * * * * * Competent Authority Approval means * * * (2) A special permit or approval issued under subchapter A or C of this chapter. * * * * * Special permit means a document issued by the Associate Administrator under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). The terms ‘‘special permit’’ and E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations ‘‘exemption’’ have the same meaning for purposes of subchapter A or C of this chapter or other regulations issued under 49 U.S.C. 5101 through 5127. An exemption issued prior to October 1, 2005 remains valid until it is past its expiration date, terminated by the Associate Administrator, or is issued as a special permit, whichever occurs first. * * * * * § 105.15 3. In § 105.15, remove the term ‘‘Exemption’’ and add the term ‘‘Special permit’’ in alphabetical order. I 4. In § 105.25, revise paragraphs (a)(2) and (b)(2)(iv) to read as follows: Reviewing public documents. * * * * * (a) * * * (2) Applications for special permits numbered DOT–E or DOT–SP 11832 and above. Also available are supporting data, memoranda of any informal meetings with applicants, related Federal Register notices, public comments, and decisions granting or denying applications for special permits. * * * * * (b) * * * (2) * * * (iv) Applications for special permits numbered below DOT–E or DOT–SP 11832 and related background information are available for public review and copying at the Office of Hazardous Materials Safety, Office of Hazardous Materials Special Permits and Approvals, U.S. Department of Transportation, Room 8100, 400 7th Street, SW., Washington, DC 20590– 0001. * * * * * § 105.30 [Amended] 5. In § 105.30, in the introductory text, remove the term ‘‘exemption’’ and add the term ‘‘special permit’’ in its place. I 6. In § 105.40, revise paragraph (d) to read as follows: I § 105.40 Designated agents for nonresidents. * * * * * (d) Address. Send your designation to: Office of Hazardous Materials Special Permits and Approvals, Pipeline and Hazardous Materials Safety Administration, Attn: PHH–30, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590– 0001. * * * * * VerDate Aug<31>2005 16:58 Dec 08, 2005 7. The authority citation for part 107 continues to read as follows: I Authority: 49 U.S.C. 5101–5127, 44701; Pub. L. 101–410 section 4 (28 U.S.C. 2461 note); Pub. L. 104–121 sections 212–213; Pub. L. 104–134 section 31001; 49 CFR 1.45, 1.53. PART 107—[NOMENCLATURE CHANGE] [Amended] I § 105.25 PART 107—HAZARDOUS MATERIALS PROGRAM PROCEDURES Jkt 208001 8. In part 107, remove the term ‘‘exemption’’ and add the term ‘‘special permit’’ in its place in each place it appears, as follows: I a. Section 107.117(e); I b. Section 107.117(g) in two places; I c. Section 107.305(a); I d. Section 107.309(a); I e. Section 107.311(a); I f. Section 107.311(b)(1); I g. Section 107.335; I h. Section 107.337; I i. Appendix A to Subpart D, Part IV. F.; I j. Section 107.402(b)(3); I k. Section 107.503(a)(6); I l. Section 107.801(a)(3); I m. Section 107.807(a); and I n. Section 107.807(b)(2). I 9. In part 107, remove the term ‘‘exemptions’’ and add the term ‘‘special permits’’ in its place in each place it appears, as follows: I a. Subpart B heading; I b. Section 107.101; and I c. Appendix A to subpart D, part IV. F. in the heading and text. I 10. In part 107, remove the phrase ‘‘an exemption’’ and add the phrase ‘‘a special permit’’ in its place in each place it appears, as follows: I a. Section 107.329(a); I b. Section 107.329(b); I c. Section 107.501(a); I d. Section 107.502(b); I e. Section 107.801(a)(2); and I f. Section 107.803(c)(3). I 11. In § 107.1, revise the definitions for ‘‘Applicant,’’ ‘‘Application,’’ ‘‘Competent Authority Approval,’’ ‘‘Holder,’’ and ‘‘Party’’; remove the definitions for ‘‘Exemption’’ and ‘‘Manufacturer exemption’’; and add a definition for ‘‘Special permit’’ and ‘‘Manufacturing special permit’’ in the appropriate alphabetical order, to read as follows: I Section 107.1 Definitions * * * * * Applicant means the person in whose name a special permit, approval, registration, a renewed or modified special permit or approval, or party status to a special permit is requested to be issued. PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 73159 Application means a request under subpart B of this part for a special permit, a renewal or modification of a special permit, party status to a special permit, or a request under subpart H of this part for an approval, or renewal or modification of an approval. * * * * * Competent Authority Approval means an approval by the competent authority that is required under an international standard (for example, the ICAO Technical Instructions for the Safe Transport of Dangerous Goods by Air and the International Maritime Dangerous Goods Code). Any of the following may be considered a competent authority approval if it satisfies the requirement of an international standard: (1) A specific regulation in subchapter A or C of this chapter. (2) A special permit or approval issued under subchapter A or C of this chapter. (3) A separate document issued to one or more persons by the Associate Administrator. * * * * * Holder means the person in whose name a special permit or approval has been issued. * * * * * Manufacturing special permit means a special permit from compliance with specified requirements that otherwise must be met before representing, marking, certifying (including requalifying, inspecting, and testing), selling or offering a packaging or container as meeting the requirements of subchapter C of this chapter governing its use in the transportation in commerce of a hazardous material. A manufacturing special permit is a special permit issued to a manufacturer of packagings who does not offer for transportation or transport hazardous materials in packagings subject to the special permit. Party means a person, other than a holder, authorized to act under the terms of a special permit. * * * * * Special permit means a document issued by the Associate Administrator under the authority of 49 U.S.C. 5117 permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). The terms ‘‘special permit’’ and ‘‘exemption’’ have the same meaning for purposes of subchapter A or C of this chapter or other regulations issued under 49 U.S.C. 5101 through 5127. An E:\FR\FM\09DER1.SGM 09DER1 73160 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations exemption issued prior to October 1, 2005 remains valid until it is past its expiration date, terminated by the Associate Administrator, or is issued as a special permit, whichever occurs first. * * * * * I 12. In § 107.105, revise the section heading and paragraphs (a)(1), (a)(4), (c), and (d) to read as follows: § 107.105 Application for special permit. (a) * * * (1) Be submitted for timely consideration, at least 120 days before the requested effective date, in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366– 3753 or (202) 366–3308 or by electronic mail (e-mail) to: Specialpermits@dot.gov; * * * * * (4) For a manufacturing special permit, a statement of the name and street address of each facility where manufacturing under the special permit will occur. * * * * * (c) Description of special permit proposal. The application must include the following information that is relevant to the special permit proposal: (1) A citation of the specific regulation from which the applicant seeks relief; (2) Specification of the proposed mode or modes of transportation; (3) A detailed description of the proposed special permit (e.g., alternative packaging, test, procedure or activity) including, as appropriate, written descriptions, drawings, flow charts, plans and other supporting documents; (4) A specification of the proposed duration or schedule of events for which the special permit is sought; (5) A statement outlining the applicant’s basis for seeking relief from compliance with the specified regulations and, if the special permit is requested for a fixed period, a description of how compliance will be achieved at the end of that period; (6) If the applicant seeks emergency processing specified in § 107.117, a statement of supporting facts and reasons; (7) Identification and description of the hazardous materials planned for transportation under the special permit; VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 (8) Description of each packaging, including specification or special permit number, as applicable, to be used in conjunction with the requested special permit; (9) For alternative packagings, documentation of quality assurance controls, package design, manufacture, performance test criteria, in-service performance and service-life limitations. (10) When a Class 1 material is forbidden for transportation by aircraft except under a special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an applicant for a special permit to transport such Class 1 material on passenger-carrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material. (d) Justification of special permit proposal. The application must demonstrate that a special permit achieves a level of safety at least equal to that required by regulation, or if a required safety level does not exist, is consistent with the public interest. At a minimum, the application must provide the following: (1) Information describing all relevant shipping and incident experience of which the applicant is aware that relates to the application; (2) A statement identifying any increased risk to safety or property that may result if the special permit is granted, and a description of the measures to be taken to address that risk; and (3) Either: (i) Substantiation, with applicable analyses, data or test results, that the proposed alternative will achieve a level of safety that is at least equal to that required by the regulation from which the special permit is sought; or (ii) If the regulations do not establish a level of safety, an analysis that identifies each hazard, potential failure mode and the probability of its occurrence, and how the risks associated with each hazard and failure mode are controlled for the duration of an activity or life-cycle of a packaging. I 13. In § 107.107, revise paragraphs (a), (b)(1), (b)(2), (b)(5), and (d) to read as follows: § 107.107 Application for party status. (a) Any person eligible to apply for a special permit may apply to be made party to an application or an existing special permit, other than a manufacturing special permit. (b) * * * PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 (1) Be submitted in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366– 3753 or (202) 366–3308 or by electronic mail (e-mail) to: Specialpermits@dot.gov; (2) Identify by number the special permit application or special permit to which the applicant seeks to become a party; * * * * * (5) For a Class 1 material that is forbidden for transportation by aircraft except under a special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an applicant for party status to a special permit to transport such Class 1 material on passengercarrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material. * * * * * (d) A party to a special permit is subject to all terms of that special permit, including the expiration date. If a party to a special permit wishes to renew party status, the special permit renewal procedures set forth in § 107.109 apply. I 14. Revise § 107.109 to read as follows: § 107.109 Application for renewal. (a) Each application for renewal of an exemption or special permit or party status to an exemption or special permit must: (1) Be submitted in duplicate to: Associate Administrator for Hazardous Materials Safety (Attention: Special Permits, PHH–31), Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001. Alternatively, the application with any attached supporting documentation submitted in an appropriate format may be sent by facsimile (fax) to: (202) 366– 3753 or (202) 366–3308 or by electronic mail (e-mail) to: Specialpermits@dot.gov; (2) Identify by number the exemption or special permit for which renewal is requested; E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations (3) State the name, street and mailing addresses, e-mail address optional, and telephone number of the applicant; if the applicant is not an individual, state the name, street and mailing addresses, e-mail address optional, and telephone number of an individual designated as an agent of the applicant for all purposes related to the application; (4) Include either a certification by the applicant that the original application, as it may have been updated by any application for renewal, remains accurate and complete; or include an amendment to the previously submitted application as is necessary to update and assure the accuracy and completeness of the application, with certification by the applicant that the application as amended is accurate and complete; and (5) Include a statement describing all relevant shipping and incident experience of which the applicant is aware in connection with the exemption or special permit since its issuance or most recent renewal. If the applicant is aware of no incidents, the applicant shall so certify. When known to the applicant, the statement should indicate the approximate number of shipments made or packages shipped, as the case may be, and number of shipments or packages involved in any loss of contents, including loss by venting other than as authorized in subchapter C. (6) When a Class 1 material is forbidden for transportation by aircraft, except under an exemption or special permit (see Columns 9A and 9B in the table in 49 CFR 172.101), an application to renew an exemption or special permit to transport such Class 1 material on passenger-carrying or cargo-only aircraft with a maximum certificated takeoff weight of less than 12,500 pounds must certify that no person within the categories listed in 18 U.S.C. 842(i) will participate in the transportation of the Class 1 material. (b) If at least 60 days before an existing exemption or special permit expires the holder files an application for renewal that is complete and conforms to the requirements of this section, the exemption will not expire until final administrative action on the application for renewal has been taken. I 15. In § 107.113, revise paragraphs (a), (b), (f)(2)(i), (f)(5), (h), and (j) to read as follows: exemption or special permit to determine if it is complete and conforms with the requirements of this subpart. This determination will be made within 30 days of receipt of the application for special permit, modification of special permit, or party to special permit, and within 15 days of receipt of an application for renewal of an exemption or special permit. If an application is determined to be incomplete, the applicant is informed of the reasons. (b) An application, that is not a renewal, party to, or emergency special permit application, and is determined to be complete is docketed. Notice of the application is published in the Federal Register, and an opportunity for public comment is provided. All comments received during the comment period are considered before final action is taken on the application. * * * * * (f) * * * (2) * * * (i) Is at least equal to that required by the regulation from which the special permit is sought, or * * * * * (5) The applicant is fit to conduct the activity authorized by the exemption or special permit. This assessment may be based on information in the application, prior compliance history of the applicant, and other information available to the Associate Administrator. * * * * * (h) The initial exemption or special permit terminates according to its terms or, if not otherwise specified, 24 months from the date of issuance. A subsequent renewal of a special permit terminates according to its terms or, if not otherwise specified, 48 months after the date of issuance. A grant of party status to an exemption or special permit, unless otherwise stated, terminates on the date that the exemption or special permit expires. * * * * * (j) The Associate Administrator publishes in the Federal Register a list of all special permit grants, denials, and modifications and all special permit applications withdrawn under this section. I 16. In § 107.121, revise the section heading and paragraphs (a), (b), and (c) to read as follows: § 107.113 Application processing and evaluation. (a) The Associate Administrator reviews an application for special permit, modification of special permit, party to special permit, or renewal of an § 107.121 Modification, suspension or termination of special permit or grant of party status. (a) The Associate Administrator may modify an exemption, a special permit, or grant of party status on finding that: VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 73161 (1) Modification is necessary so that the exemption or special permit reflects current statutes and regulations; or (2) Modification is required by changed circumstances to meet the standards of § 107.113(f). (b) The Associate Administrator may modify, suspend or terminate an exemption or special permit or grant of party status, as appropriate, on finding that: (1) Because of a change in circumstances, the exemption, special permit, or party status no longer is needed or no longer would be granted if applied for; (2) The application contained inaccurate or incomplete information, and the exemption, special permit, or party status would not have been granted had the application been accurate and complete; (3) The application contained deliberately inaccurate or incomplete information; or (4) The holder or party knowingly has violated the terms of the exemption, special permit or an applicable requirement of this chapter, in a manner demonstrating the holder or party is not fit to conduct the activity authorized by the exemption or special permit. (c) Except as provided in paragraph (d) of this section, before an exemption, special permit, or grant of party status is modified, suspended or terminated, the Associate Administrator notifies the holder or party in writing of the proposed action and the reasons for it, and provides an opportunity to show cause why the proposed action should not be taken. (1) The holder or party may file a written response that shows cause why the proposed action should not be taken within 30 days of receipt of notice of the proposed action. (2) After considering the holder’s or party’s written response, or after 30 days have passed without response since receipt of the notice, the Associate Administrator notifies the holder or party in writing of the final decision with a brief statement of reasons. * * * * * I 17. In § 107.123, revise paragraph (a) introductory text to read as follows: § 107.123 Reconsideration. (a) An applicant for special permit, a special permit holder, or an applicant for party status to an exemption or special permit may request that the Associate Administrator reconsider a decision under § 107.113(g), § 107.117(e) or § 107.121(c) of this part. The request must— * * * * * E:\FR\FM\09DER1.SGM 09DER1 73162 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations 18. In § 107.127, revise paragraph (a) to read as follows: I § 107.127 Availability of documents for public inspection. (a) Documents related to an application under this subpart, including the application itself, are available for public inspection, except as specified in paragraph (b) of this section, at the Office of the Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, Office of Hazardous Materials Special Permits and Approvals, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590–0001, Room 8102. Office hours are 8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays when the office is closed. Copies of available documents may be obtained as provided in part 7 of this title. Documents numbered 11832 and above may also be viewed at the website address https://dms.dot.gov. * * * * * § 107.227 [Amended] 19. In § 107.227, the term ‘‘district court’’ is removed and ‘‘court of appeals’’ is added in its place. I 20. In § 107.307, revise paragraph (a) introductory text, and paragraph (b) to read as follows: I § 107.307 General. (a) When the Associate Administrator and the Office of Chief Counsel have reason to believe that a person is knowingly engaging or has knowingly engaged in conduct which is a violation of the Federal hazardous material transportation law or any provision of this subchapter or subchapter C of this chapter, or any exemption, special permit, or order issued thereunder, for which the Associate Administrator or the Office of Chief Counsel exercise enforcement authority, they may— * * * * * (b) In the case of a proceeding initiated for failure to comply with an exemption or special permit, the allegation of a violation of a term or condition thereof is considered by the Associate Administrator and the Office of Chief Counsel to constitute an allegation that the special permit holder or party to the special permit is failing, or has failed to comply with the underlying regulations from which relief was granted by the special permit. Appendix A To Subpart D of Part 107— [Amended] 21. In part 107, in Appendix A to subpart D, in the table in section II, I VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 Guidelines for Civil Penalties, remove the term ‘‘exemption’’ and add the term ‘‘exemption or special permit’’ each place it appears. I 22. In § 107.705, revise paragraph (a)(3) to read as follows: § 107.705 Registrations, reports, and applications for approval. (a) * * * (3) If a report is required by an approval, a registration or a special permit, identify the approval, registration or special permit number; * * * * * I 23. In § 107.805, paragraphs (a), (c)(2), (d), and (f) are revised to read as follows: § 107.805 Approval of cylinder requalifiers. (a) General. A person must meet the requirements of this section to be approved to inspect, test, certify, repair, or rebuild a cylinder in accordance with a DOT specification under subpart C of part 178 or subpart C of part 180 of this chapter or under the terms of a special permit issued under this part. * * * * * (c) * * * (2) The DOT specification/special permit cylinders that will be inspected, tested, repaired, or rebuilt at the facility; * * * * * (d) Issuance of requalifier identification number (RIN). The Associate Administrator issues a RIN as evidence of approval to requalify DOT specification/special permit cylinders if it is determined, based on the applicant’s submission and other available information, that the applicant’s qualifications and, when applicable, facility are adequate to perform the requested functions in accordance with the criteria prescribed in subpart C of part 180 of this chapter. * * * * * (f) Exceptions. Notwithstanding the requirements in paragraphs (b) and (c) of this section, a person who only performs inspections in accordance with § 180.209(g) of this chapter may submit an application that, in addition to the information prescribed in § 107.705(a), identifies the DOT specification/special permit cylinders to be inspected; certifies the requalifier will operate in compliance with the applicable requirements of subchapter C of this chapter; certifies the persons performing inspections have been trained and have the information contained in each applicable CGA pamphlet incorporated by reference in § 171.7 of this chapter applicable to the requalifiers’ activities; and includes the signature of the person making the PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 certification and the date on which it was signed. Each person must comply with the applicable requirements in this subpart. In addition, the procedural requirements in subpart H of this part apply to the filing, processing and termination of an approval issued under this subpart. After May 31, 2004, no person may requalify a DOT specification/special permit cylinder in accordance with § 180.209(g) of this chapter unless that person has been issued a RIN as provided in paragraph (d) of this section. * * * * * PART 110 —HAZARDOUS MATERIALS PUBLIC SECTOR TRANING AND PLANNING GRANTS 24. The authority citation for part 110 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 110.30 [Amended] 25. In § 110.30, in paragraphs (b)(2) and (c)(2), the phrase ‘‘two fiscal years’’ is removed and ‘‘five fiscal years’’ is added in its place each place it appears. I PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 26. The authority citation for part 171 continues to read as follows: I Authority: 49 U.S.C. 5101–5127, 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. PART 171—[NOMENCLATURE CHANGE] 27. In part 171, remove the phrase ‘‘an exemption’’ and add the phrase ‘‘an exemption or special permit’’ in its place each place it appears, as follows: I a. Section 171.1(g); I b. Section 171.2(b) in two places; I c. Section 171.2(c) in two places; I d. Section 171.2(e); I e. Section 171.2(f); and I f. Section 171.2(i) in two places; I g. Section 171.2(m) in three places. I 28. In § 171.1, revise paragraph (d)(7) to read as follows: I § 171.1 Applicability of Hazardous Materials Regulations (HMR) to persons and functions. * * * * * (d) * * * (7) Any matter subject to the postal laws and regulations of the United States, except in the case of an imminent hazard. * * * * * I 29. In § 171.2, revise paragraphs (g) and (h) to read as follows: E:\FR\FM\09DER1.SGM 09DER1 73163 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations § 171.2 General requirements. * * * * (g) No person may represent, mark, certify, sell, or offer a packaging or container as meeting the requirements of this subchapter governing its use in the transportation of a hazardous material in commerce unless the packaging or container is manufactured, fabricated, marked, maintained, reconditioned, repaired, and retested in accordance with the applicable requirements of this subchapter. No person may represent, mark, certify, sell, or offer a packaging or container as meeting the requirements of an exemption, a special permit, approval, or registration issued under this subchapter or subchapter A of this chapter unless the packaging or container is manufactured, fabricated, marked, maintained, reconditioned, repaired, and retested in accordance with the applicable requirements of the exemption, special permit, approval, or registration issued under this subchapter or subchapter A of this chapter. The requirements of this paragraph apply whether or not the packaging or container is used or to be used for the transportation of a hazardous material. (h) The representations, markings, and certifications subject to the prohibitions of paragraph (g) of this section include: (1) Specification identifications that include the letters ‘‘ICC’’, ‘‘DOT’’, ‘‘CTC’’, ‘‘MC’’, or ‘‘UN’’; (2) Exemption, special permit, approval, and registration numbers that include the letters ‘‘DOT’’, ‘‘EX’’, ‘‘M’’, or ‘‘R’’; and (3) Test dates associated with specification, registration, approval, retest, exemption, or special permit markings indicating compliance with a test or retest requirement of the HMR, or an exemption, special permit, approval, or registration issued under the HMR or under subchapter A of this chapter. * * * * * I 30. In § 171.6, in paragraph (b)(2), in the table, revise the entry for OMB control number 2137–0051 to read as follows: Current OMB control No. Title Title 49 CFR part or section where identified and described * * 2137–0051 ........................................................ * * * Rulemaking and Special Permit Petitions ........ * * * * 31. In § 171.8, revise the definitions of ‘‘hazmat employee’’ and ‘‘hazmat employer’’; remove the definition for ‘‘Exemption’’; and add a definition for ‘‘Special permit’’ in the appropriate alphabetical order to read as follows: I § 171.8 Definitions and abbreviations. * * * * * Hazmat employee means: (1) A person who is: (i) Employed on a full-time, part time, or temporary basis by a hazmat employer and who in the course of such full time, part time or temporary employment directly affects hazardous materials transportation safety; (ii) Self-employed (including an owner-operator of a motor vehicle, vessel, or aircraft) transporting hazardous materials in commerce who in the course of such self-employment directly affects hazardous materials transportation safety; (iii) A railroad signalman; or (iv) A railroad maintenance-of-way employee. (2) This term includes an individual, employed on a full time, part time, or temporary basis by a hazmat employer, or who is self-employed, who during the course of employment: (i) Loads, unloads, or handles hazardous materials; VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 * Frm 00041 Fmt 4700 * * * (b) * * * (2) Table Sfmt 4700 * * * * §§ 105.30, 105.40, 106.95, 106.110, 107.107, 107.109, 107.113, 107.121, 107.123, 107.125, 107.211, 107.215, 107.217, 107.221, 107.223. * (ii) Designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs, or tests a package, container or packaging component that is represented, marked, certified, or sold as qualified for use in transporting hazardous material in commerce. (iii) Prepares hazardous materials for transportation; (iv) Is responsible for safety of transporting hazardous materials; (v) Operates a vehicle used to transport hazardous materials. Hazmat employer means: (1) A person who employs or uses at least one hazmat employee on a fulltime, part time, or temporary basis; and who: (i) Transports hazardous materials in commerce; (ii) Causes hazardous materials to be transported in commerce; or (iii) Designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs or tests a package, container, or packaging component that is represented, marked, certified, or sold by that person as qualified for use in transporting hazardous materials in commerce; (2) A person who is self-employed (including an owner-operator of a motor vehicle, vessel, or aircraft) transporting materials in commerce; and who: PO 00000 § 171.6 Control numbers under the Paperwork Reduction Act. * 107.105, 107.117, 107.205, 107.219, * (i) Transports hazardous materials in commerce; (ii) Causes hazardous materials to be transported in commerce; or (iii) Designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs or tests a package, container, or packaging component that is represented, marked, certified, or sold by that person as qualified for use in transporting hazardous materials in commerce; or (3) A department, agency, or instrumentality of the United States Government, or an authority of a State, political subdivision of a State, or an Indian tribe; and who: (i) Transports hazardous materials in commerce; (ii) Causes hazardous materials to be transported in commerce; or (iii) Designs, manufactures, fabricates, inspects, marks, maintains, reconditions, repairs or tests a package, container, or packaging component that is represented, marked, certified, or sold by that person as qualified for use in transporting hazardous materials in commerce. * * * * * Special permit means a document issued by the Associate Administrator under the authority of 49 U.S.C. 5117 E:\FR\FM\09DER1.SGM 09DER1 73164 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations permitting a person to perform a function that is not otherwise permitted under subchapter A or C of this chapter, or other regulations issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). The terms ‘‘special permit’’ and ‘‘exemption’’ have the same meaning for purposes of subchapter A or C of this chapter or other regulations issued under 49 U.S.C. 5101 through 5127. An exemption issued prior to October 1, 2005 remains valid until it is past its expiration date, terminated by the Associate Administrator, or issued as a special permit, whichever occurs first. * * * * * PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS 32. The authority citation for part 172 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 172.102 [Amended] 33. In § 172.102, in paragraph (c)(1), amend special provision 139 to remove the term ‘‘exemption’’ and add the term ‘‘special permit’’ in its place. I 34. In § 172.201, revise paragraph (e) to read as follows: I § 172.201 Preparation and retention of shipping papers. * * * * * (e) Retention and Recordkeeping. Each person who provides a shipping paper must retain a copy of the shipping paper required by § 172.200(a), or an electronic image thereof, that is accessible at or through its principal place of business and must make the shipping paper available, upon request, to an authorized official of a Federal, State, or local government agency at reasonable times and locations. For a hazardous waste, the shipping paper copy must be retained for three years after the material is accepted by the initial carrier. For all other hazardous materials, the shipping paper must be retained for two years after the material is accepted by the initial carrier. Each shipping paper copy must include the date of acceptance by the initial carrier, except that, for rail, vessel, or air shipments, the date on the shipment waybill, airbill, or bill of lading may be used in place of the date of acceptance by the initial carrier. A motor carrier (as defined in § 390.5 of subchapter B of chapter III of subtitle B) using a shipping paper without change for VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 multiple shipments of one or more hazardous materials having the same shipping name and identification number may retain a single copy of the shipping paper, instead of a copy for each shipment made, if the carrier also retains a record of each shipment made, to include shipping name, identification number, quantity transported, and date of shipment. I 35. In § 172.203, revise paragraph (a) to read as follows: § 172.203 Additional description requirements. (a) Special permits. Except as provided in § 173.23 of this subchapter, each shipping paper issued in connection with a shipment made under a special permit must bear the notation ‘‘DOT–SP’’ followed by the special permit number assigned and located so that the notation is clearly associated with the description to which the special permit applies. Each shipping paper issued in connection with a shipment made under an exemption or special permit issued prior to October 1, 2007, may bear the notation ‘‘DOT–E’’ followed by the number assigned and so located that the notation is clearly associated with the description to which it applies. * * * * * I 36. In § 172.301, revise paragraph (c) to read as follows: § 172.301 General marking requirements for non-bulk packagings. * * * * * (c) Special permit packagings. Except as provided in § 173.23 of this subchapter, the outside of each package authorized by a special permit must be plainly and durably marked ‘‘DOT–SP’’ followed by the special permit number assigned. Packages authorized by an exemption issued prior to October 1, 2007, may be plainly and durably marked ‘‘DOT–E’’ in lieu of ‘‘DOT–SP’’ followed by the number assigned as specified in the most recent version of that exemption. * * * * * I 37. In § 172.302, revise paragraph (c) to read as follows: § 172.302 General marking requirements for bulk packagings. * * * * * (c) Special permit packagings. Except as provided in § 173.23 of this subchapter, the outside of each package used under the terms of a special permit must be plainly and durably marked ‘‘DOT–SP’’ followed by the special permit number assigned. Packages authorized by an exemption issued prior to October 1, 2007 may be plainly and PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 durably marked ‘‘DOT–E’’ in lieu of ‘‘DOT–SP’’ followed by the number assigned as specified in the most recent version of that exemption. * * * * * I 38. In § 172.704, revise paragraphs (a)(2)(i) and (e) to read as follows: § 172.704 Training requirements. (a) * * * (2) * * * (i) Each hazmat employee must be provided function-specific training concerning requirements of this subchapter, or exemptions or special permits issued under subchapter A of this chapter, that are specifically applicable to the functions the employee performs. * * * * * (e) Limitations. The following limitations apply: (1) A hazmat employee who repairs, modifies, reconditions, or tests packagings, as qualified for use in the transportation of hazardous materials, and who does not perform any other function subject to the requirements of this subchapter, is not subject to the training requirement of paragraph (a)(3) of this section. (2) A railroad maintenance-of-way employee or railroad signalman, who does not perform any function subject to the requirements of this subchapter, is not subject to the training requirements of paragraphs (a)(2), (a)(4), or (a)(5) of this section. Initial training for a railroad maintenance-of-way employee or railroad signalman in accordance with this section must be completed by October 1, 2006. I 39. In § 172.800, add a new paragraph (c) to read as follows: § 172.800 Purpose and applicability. * * * * * (c) Exceptions. Transportation activities of a farmer, who generates less than $500,000 annually in gross receipts from the sale of agricultural commodities or products, are not subject to this subpart if such activities are: (1) Conducted by highway or rail; (2) In direct support of their farming operations; and (3) Conducted within a 150-mile radius of those operations. PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 40. The authority citation for part 173 continues to read as follows: I Authority: 49 U.S.C. 5101–5127, 44701; 49 CFR 1.45, 1.53. E:\FR\FM\09DER1.SGM 09DER1 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations * * * * (f) See § 172.800(b) pertaining to security plans. I 42. In § 173.22, revise paragraphs (a)(2)(v), (a)(3)(i), and (a)(3)(ii) to read as follows: (c) When an exemption or special permit issued to a person who offers a hazardous material contains requirements that apply to a carrier of the hazardous material, the offeror shall furnish a copy of the current exemption or special permit to the carrier before or at the time a shipment is tendered. I 44. In § 173.23, a new paragraph (h) is added to read as follows: § 173.22 § 173.23 41. In § 173.5, add a new paragraph (f) to read as follows: I § 173.5 Agricultural operations. * Shippers responsibility. (a) * * * (2) * * * (v) An exemption or special permit issued under subchapter A of this chapter. (3) * * * (i) Except for the marking on the bottom of a metal or plastic drum with a capacity over 100 L which has been reconditioned, remanufactured or otherwise converted, the manufacturer’s certification, specification, approval, or exemption or special permit marking (see §§ 178.2 and 179.1 of this subchapter); or (ii) With respect to cargo tanks provided by a carrier, the manufacturer’s identification plate or a written certification of specification or exemption or special permit provided by the carrier. * * * * * I 43. Revise § 173.22a to read as follows: § 173.22a Use of packagings authorized under special permits. (a) Except as provided in paragraph (b) of this section, no person may offer a hazardous material for transportation in a packaging the use of which is dependent upon an exemption or special permit issued under subpart B of part 107 of this title, unless that person is the holder of or a party to the exemption or special permit. (b) If an exemption or special permit authorizes the use of a packaging for the transportation of a hazardous material by any person or class of persons other than or in addition to the holder of the exemption or special permit, that person or a member of that class of persons may use the packaging for the purposes authorized in the exemption or special permit subject to the terms specified therein. Copies of exemptions and special permits may be obtained by accessing the Hazardous Materials Safety Web site at https:// hazmat.dot.gov/ specialpermits_index.htm or by writing to the Associate Administrator for Hazardous Materials Safety, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590–0001, Attention: Records Center. VerDate Aug<31>2005 16:58 Dec 08, 2005 Jkt 208001 Previously authorized packaging. * * * * * (h) An exemption packaging or shipping paper that is permanently marked ‘‘DOT-E’’ prior to October 1, 2007, may continue in use as long as the exemption or special permit remains valid, unless otherwise specified in the exemption or special permit. § 173.124 45. In § 173.124, amend paragraph (a)(1)(ii)(A) to replace the phrase ‘‘An exemption’’ with the phrase ‘‘A special permit.’’ 46. In § 173.301, revise paragraph (j) and paragraph (l) introductory text to read as follows: I § 173.301 General requirements for shipment of compressed gases in cylinders and spherical vessels. * * * * * (j) Non-specification cylinders in domestic use. Except as provided in paragraphs (k) and (l) of this section, a filled non-DOT specification cylinder, other than a DOT exemption or special permit cylinder or a cylinder used as a fire extinguisher in conformance with § 173.309, may not be offered for transportation or transported to, from, or within the United States. * * * * * (l) Filling of foreign cylinders for export. A cylinder not manufactured, inspected, tested and marked in accordance with part 178 of this subchapter, or a cylinder manufactured to other than a DOT specification or exemption or special permit, may be filled with a gas in the United States and offered for transportation and transported for export, if the following conditions are met: * * * * * I 47. In § 173.403, in the definition for ‘‘Exemption Value,’’ the last sentence is revised to read as follows: § 173.403 Definitions. * * * * * Exemption value * * * An exemption value is different from an exemption, as specified under the definition for special permit in § 171.8 of this subchapter. * * * * * PO 00000 Frm 00043 Fmt 4700 PART 174—CARRIAGE BY RAIL 48. The authority citation for part 174 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 174.24 Sfmt 4700 [Amended] 49. In § 174.24, in paragraph (b), remove the phrase ‘‘375 days’’ and add the phrase ‘‘one year’’ in its place. I PART 175—CARRIAGE BY AIRCRAFT 50. The authority citation for part 175 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 175.30 [Amended] 73165 [Amended] 51. In § 175.30, in paragraph (a)(2), remove the phrase ‘‘375 days’’ and add the phrase ‘‘one year’’ in its place. I § 175.33 [Amended] 52. In § 175.33, in paragraph (a)(10) remove the phrase ‘‘an exemption’’ and add the phrase ‘‘a special permit’’ in its place. I PART 176—CARRIAGE BY VESSEL 53. The authority citation for part 176 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 176.24 [Amended] 54. In § 176.24, in paragraph (b), remove the phrase ‘‘375 days’’ and add the phrase ‘‘one year’’ in its place. I 55. Section 176.31 is revised to read as follows: I § 176.31 Special permits. If a hazardous material is being transported by vessel under the authority of an exemption or special permit and a copy of the exemption or special permit is required to be on board the vessel, it must be kept with the dangerous cargo manifest. PART 177—CARRIAGE BY PUBLIC HIGHWAY 56. The authority citation for part 177 continues to read as follows: I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 177.817 [Amended] 57. In § 177.817, in paragraph (f), remove the phrase ‘‘375 days’’ and add the phrase ‘‘one year’’ in its place. I E:\FR\FM\09DER1.SGM 09DER1 73166 Federal Register / Vol. 70, No. 236 / Friday, December 9, 2005 / Rules and Regulations special permit’’ in its place each place it appears, as follows: I a. Section 179.3(c); and I b. Section 179.4(a). PART 178—SPECIFICATIONS FOR PACKAGINGS 58. The authority citation for part 178 continues to read as follows: I PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. § 178.3 [Amended] 62. The authority citation for part 180 continues to read as follows: I 59. In § 178.3, in paragraph (d) remove the word ‘‘exemption’’ and add the word ‘‘special permit’’ in its place in two places. I Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. PART 179—SPECIFICATIONS FOR TANK CARS PART 180—[NOMENCLATURE CHANGE] 60. The authority citation for part 179 continues to read as follows: I 63. In part 180, remove the term ‘‘exemption’’ and add the term ‘‘special permit’’ in its place each place it appears, as follows: I a. Section 180.3(b)(2); I b. Section 180.201; I c. Section 180.205(b); I d. Section 180.205(c) introductory text in two places; I e. Section 180.205(f)(1); I Authority: 49 U.S.C. 5101–5127; 49 CFR part 1.53. PART 179—[NOMENCLATURE CHANGE] 61. In part 179, remove the phrase ‘‘an exemption’’ and add the phrase ‘‘a I f. Section 180.205(f)(4); I g. Section 180.205(h)(4)(iii); I h. Section 180.205(i)(1)(vii) in three places; I i. Section 180.205(i)(1)(viii); and I j. Section 180.213(f) introductory text. I 64. In part 180, remove the phrase ‘‘an exemption’’ and add the phrase ‘‘a special permit’’ in its place each place it appears, as follows: I a. Section 180.3(a); I b. Section 180.3(b)(3); and I c. Section 180.205(i)(1)(iv). I 65. In § 180.209, in paragraph (a)(1), in ‘‘Table 1—Requalification of Cylinders’’, the entry for ‘‘exemption cylinder’’ is revised to read as follows: I § 180.209 Requirements for requalification of specification cylinders. (a) * * * (1) * * * TABLE 1.—REQUALIFICATION OF CYLINDERS 1 Specification under which cylinder was made Minimum test pressure (psig) 2 * * Exemption or special permit cylinder ................ * * * See current exemption or special permit ......... * § 180.215 * * [Amended] 66. Section 180.215 is amended in paragraphs (a)(5), (b) introductory text, I * Requalification (years) * * See current exemption or special permit * and (b)(2), by removing the term ‘‘exemption’’ and adding the term ‘‘special permit’’ each place it appears. * Issued in Washington, DC, on December 1, 2005, under authority delegated in 49 CFR part 1. Brigham A. McCown, Acting Administrator. [FR Doc. 05–23754 Filed 12–8–05; 8:45 am] BILLING CODE 4910–60–P VerDate Aug<31>2005 17:14 Dec 08, 2005 Jkt 208001 PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 * E:\FR\FM\09DER1.SGM 09DER1

Agencies

[Federal Register Volume 70, Number 236 (Friday, December 9, 2005)]
[Rules and Regulations]
[Pages 73156-73166]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23754]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 105, 106, 107, 110, 171, 172, 173, 174, 175, 176, 177, 
178 and 180

[Docket No. PHMSA-2005-22208 (HM-240)]
RIN 2137-AE12


Hazardous Materials: Incorporation of Statutorily Mandated 
Revisions to the Hazardous Materials Regulations

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule revises terminology, definitions, and 
requirements for consistency with the Hazardous Materials Safety and 
Security Reauthorization Act of 2005. These amendments include revising 
the definitions of ``hazmat employee'' and ``hazmat employer;'' 
revision of shipping paper retention requirements; providing a security 
plan exception for farmers; adding conditional applicability of postal 
laws and regulations; and replacement of ``Exemption'' with ``Special 
permit.''

DATES: Effective date: January 9, 2006.

FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite or Kurt 
Eichenlaub, Office of Hazardous Materials Standards, (202) 366-8553, 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 400 Seventh Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

List of Topics

I. Background
II. Summary of Issues
    A. Definitions of ``hazmat employee'' and ``hazmat employer''
    B. Revision of shipping paper retention requirements
    C. Security plan exception for farmers
    D. Applicability of postal laws and regulations
    E. Replacement of ``Exemption'' with ``Special permit''
III. Regulatory Analysis
    A. Statutory/Legal Authority for This Rulemaking
    B. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    C. Executive Order 13132
    D. Executive Order 13175
    E. Regulatory Flexibility Act, Executive Order 13272, and DOT 
Procedures and Policies
    F. Unfunded Mandates Reform Act of 1995
    G. Paperwork Reduction Act
    H. Environmental Impact Analysis
    I. Regulation Identifier Number (RIN)

I. Background

    Section 5103 of the Federal Hazardous Materials Transportation Law 
(Federal hazmat law; 49 U.S.C. 5101 et seq.) authorizes the Pipeline 
and Hazardous Materials Safety Administration (PHMSA) to prescribe 
safety and security regulations for the transportation of hazardous 
materials in interstate, intrastate, and foreign commerce. The 
Hazardous Materials Safety and Security Reauthorization Act of 2005 
(the Act; Title VII of Pub. L. 109-59, 119 Stat. 1144 (August 10, 
2005)) amended Federal hazmat law by revising certain terminology, 
definitions, and requirements. This final rule revises the Hazardous 
Materials Regulations (HMR; 49 CFR parts 171-180) and the hazardous 
materials program and rulemaking procedures in 49 CFR parts 105, 106 
and 107 to be consistent with changes mandated by the Act.
    Because these amendments are mandated and self-executing, notice 
and public procedure are unnecessary. By making these amendments 
effective without the customary 30-day delay following publication, the 
changes will appear in the next revision of Title 49, Code of Federal 
Regulations.
    The following is a summary of the changes made in this final rule.

II. Summary of Issues

    The Act mandates revisions to the following provisions of the HMR 
and the hazardous materials program and rulemaking procedures:

A. Definitions of ``hazmat employee'' and ``hazmat employer''
B. Revision of shipping paper retention requirements
C. Security plan exception for farmers
D. Applicability of postal laws and regulations
E. Replacement of ``Exemption'' with ``Special permit''

A. Definitions of ``Hazmat Employee'' and ``Hazmat Employer''

    We are revising the definitions of ``hazmat employee'' and ``hazmat 
employer'' in Sec.  171.8 for consistency with editorial revisions 
adopted under the Act. We are revising the definitions of ``hazmat 
employee'' and ``hazmat employer'' to specify both of these definitions 
include self-employed individuals. Also, both definitions are revised 
to include persons that represent, mark, certify, or sell packaging 
components as qualified for use in transporting hazardous materials in 
commerce. In addition, the Act amends Sec.  5107 of Federal hazmat law 
to mandate general awareness and safety training pursuant to Sec.  
172.704 of the HMR for railroad maintenance-of-way employees and 
railroad signalmen. Therefore, we are also revising the definition of 
``hazmat employee'' to include railroad maintenance-of-way employees 
and railroad signalmen. To provide rail carriers with sufficient time 
to implement the new training requirements, we are requiring initial 
training for maintenance-of-way employees and railroad signalmen to be 
completed by October 1, 2006.
    Section 172.704 requires each hazmat employee to receive general 
awareness/familiarization training, function-specific training, safety 
training, and security awareness training. Function-specific training 
is not necessary for railroad maintenance-of-way employees and railroad 
signalmen who do not perform functions specifically regulated under the 
HMR. Thus, we are revising Sec.  172.704(e) to provide an exception 
from function-specific training for such railroad maintenance-of-way 
employees and railroad signalmen. We are also excepting railroad 
maintenance-of-way employees and railroad signalmen from the 
requirement in Sec.  172.704(a)(4) for security awareness training 
because such training is not mandated under the Act. However, we may 
consider requiring such training for railroad maintenance-of-way 
employees and railroad signalmen in a future rulemaking.

B. Revision of Shipping Paper Retention Requirements

    Under the HMR, each person who provides a shipping paper must 
retain a copy of the shipping paper for 375 days after the hazardous 
material is accepted by the initial carrier. Each carrier must

[[Page 73157]]

also retain a copy of the shipping paper for 375 days. The Act amends 
Sec.  5110 of Federal hazmat law to require shippers to retain a copy 
of a shipping paper for a period of two years after the shipping paper 
is provided to a carrier and to require carriers to retain a copy of a 
shipping paper for a period of one year after the date the shipping 
paper is received from the shipper. Therefore, we are revising 
Sec. Sec.  172.201(e), 174.24, 175.30, 176.24, and 177.817 of the HMR 
to incorporate the shipping paper retention requirements in the Act. 
For purposes of shipping paper retention, a year is calculated from the 
exact date the shipping paper is provided to the initial carrier until 
the same date the following year. For example, a carrier who receives a 
shipping paper on October 1, 2006, must retain a copy of the shipping 
paper through September 30, 2007. Shippers and carriers of a hazardous 
waste must continue to retain a shipping paper for 3 years after the 
material is accepted by the initial carrier.

C. Security Plan Exception for Farmers

    The Act exempts certain agricultural operations from the 
requirement in subpart I of part 172 of the HMR for persons who offer 
for transportation or transport certain hazardous materials in commerce 
to develop and implement security plans. Therefore, we are adding a new 
paragraph (c) to Sec.  172.800 to provide an exemption from the 
security plan requirements for farmers who generate less than $500,000 
annually in gross receipts from the sale of agricultural commodities 
and products; transport hazardous materials in direct support of their 
farming operations; and transport hazardous materials by highway or 
rail within 150-mile radius of their farming operations.

D. Applicability to Postal Laws and Regulations

    The Act amends Sec.  5126(b) of Federal hazmat law with respect to 
its applicability to postal laws and regulations. Consistent with the 
Act, we are revising Sec.  171.1(d)(7) of the HMR to clarify the HMR do 
not apply to any matter subject to the postal laws and regulations of 
the United States, except in the case of an ``imminent hazard.'' 
``Imminent hazard'' is defined in the Act as the ``existence of a 
condition relating to hazardous material that presents a substantial 
likelihood that death, serious illness, severe personal injury, or a 
substantial endangerment to health, property, or the environment may 
occur before the reasonably foreseeable completion date of a formal 
proceeding begun to lessen the risk of that death, illness, injury, or 
endangerment.''

E. Replacement of ``Exemption'' With ``Special Permit''

    The Act amends section 5117 of Federal hazmat law to change the 
term ``exemption'' to ``special permit'' and provides for an initial 
effective period of two years and renewals of up to four years. In this 
final rule we are replacing most of the appearances of the word 
``exemption'' with ``special permit.'' This amendment will apply to 
various forms of ``exemption,'' such as plural, singular, e-mail 
addresses, and mailing addresses.
    In addition, we are making the following revisions to the HMR:

--Current exemptions will be effective until they expire, are 
terminated, or become due for renewal. Current exemptions will be 
replaced by special permits at the time when a renewal application is 
submitted and approved by the Associate Administrator.
--Packagings and shipping papers prepared in accordance with a new 
special permit issued on or after October 1, 2005 must be marked with 
``DOT-SP'' and the appropriate special permit number, unless otherwise 
specified by the special permit.
--Packagings and shipping papers previously marked ``DOT-E'' in 
accordance with a current exemption generally may continue in use so 
long as the provisions in the exemption remain valid. Continued use of 
pre-printed shipping papers and ``DOT-E'' markings on packagings will 
be evaluated on a case-by-case basis when current exemptions become due 
for renewal.
--An initial special permit will be valid for up to two years before it 
expires or becomes due for renewal. For the purposes of a party to a 
special permit, a new applicant is considered to be a ``new'' holder 
for assigning an expiration date. If renewed, a special permit will be 
valid for up to four years before the next renewal.
--The Office of Hazardous Materials Exemptions and Approvals (OHMEA) is 
renamed the Office of Hazardous Materials Special Permits and Approvals 
(OHMSPA).
--The e-mail address for OHMSPA is revised from Exemptions@rspa.dot.gov 
to Specialpermits@dot.gov.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This final rule is published under authority of Federal hazardous 
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et 
seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary 
of Transportation to prescribe regulations for the safe transportation, 
including security, of hazardous materials in intrastate, interstate, 
and foreign commerce. The amendments in this final rule are being 
adopted for consistency with the Hazardous Materials Safety and 
Security Reauthorization Act of 2005.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is not considered a significant regulatory action 
under section 3(f) of Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget. This rule is not 
significant under the Regulatory Policies and Procedures of the 
Department of Transportation (44 FR 11034).
    The cost impact of the changes effected by this final rule is 
expected to be minimal. The major cost impact will be incurred by rail 
carriers to comply with the new requirements for providing general 
awareness and safety training to maintenance-of-way employees and 
railroad signalmen. We estimate approximately 7,000 rail employees will 
be affected. Because rail carriers already are required to provide this 
training to hazmat employees, carriers will not incur costs to develop 
the training. Thus, total training costs will be those associated with 
time lost from work for the training. We estimate the training will 
require 3 hours to complete; therefore, using an average employment 
cost of $22.00/hour, total training costs for the first year will be 
7,000 employees x $22.00/hour x 3 hours or $462,000. Hazmat employees 
must receive recurrent training every three years; thus, for subsequent 
years, rail carriers will incur a total of $154,000 in annual costs to 
train maintenance-of-way employees and railroad signalmen.
    This final rule will result in reduced costs for persons who apply 
to renew special permits because a special permit may now be renewed 
for four years rather than two years as is currently the case.

C. Executive Order 13132

    This final rule has been analyzed in accordance with the principles 
and criteria in Executive Order 13132

[[Page 73158]]

(``Federalism''). This final rule does not adopt any regulation that: 
(1) Has substantial direct effects on the States, the relationship 
between the national government and the States, or the distribution of 
power and responsibilities among the various levels of government; (2) 
imposes substantial direct compliance costs on State and local 
governments; or (3) preempts state law. Therefore, preparation of a 
federalism assessment is not warranted.

D. Executive Order 13175

    This final rule has been 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, does not impose substantial direct 
compliance costs on Indian tribal governments, and does not preempt 
tribal law, the funding and consultation requirements of Executive 
Order 13175 do not apply.

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

    I certify this final rule will not have a significant economic 
impact on a substantial number of small entities. This rule amends the 
HMR for consistency with the Hazardous Materials Safety and Security 
Reauthorization Act of 2005. The cost impacts of this rule are expected 
to be minimal. As noted above, the major cost impact will be incurred 
by rail carriers to comply with the new requirements for providing 
general awareness and safety training to maintenance-of-way employees 
and railroad signalmen. We estimate first year compliance costs will 
total $462,000, with subsequent year annual costs at $154,000. This 
final rule will result in reduced costs for persons who apply to renew 
special permits because a special permit may now be renewed for four 
years rather than two years as is currently the case.

F. Unfunded Mandates Reform Act of 1995

    This rule does not impose unfunded mandates under the Unfunded 
Mandates Reform Act of 1995. It does not result in costs of $120.7 
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.

G. Paperwork Reduction Act

    There are no new information collection requirements in this final 
rule.

H. Environmental Impact Analysis

    There are no environmental impacts associated with this final rule.

I. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

List of Subjects

49 CFR Part 105

    Administrative practice and procedure, Hazardous materials 
transportation.

49 CFR Part 106

    Administrative practice and procedure, Hazardous materials 
transportation, Special permits.

49 CFR Part 107

    Administrative practice and procedure, Hazardous materials 
transportation, Penalties, Reporting and recordkeeping requirements, 
Special permits.

49 CFR Part 110

    Disaster assistance, Education, Grant programs--environmental 
protection, Grant programs--Indians, Hazardous materials 
transportation, Hazardous substances, Indians, Reporting and 
recordkeeping requirements.

49 CFR Part 171

    Applicability, Hazardous materials transportation, Reporting and 
recordkeeping requirements.

49 CFR Part 172

    Education, Hazardous materials transportation, Markings, Packaging 
and containers, Reporting and recordkeeping requirements, Special 
permits.

49 CFR Part 173

    Hazardous materials transportation, Packaging and containers, 
Reporting and recordkeeping requirements, Special permits.

49 CFR Part 174

    Hazardous materials transportation, Rail carriers, Reporting and 
recordkeeping requirements.

49 CFR Part 175

    Hazardous materials transportation, Air carriers, Reporting and 
recordkeeping requirements.

49 CFR Part 176

    Hazardous materials transportation, Maritime carriers, Reporting 
and recordkeeping requirements.

49 CFR Part 177

    Hazardous materials transportation, Motor carriers, Reporting and 
recordkeeping requirements.

49 CFR Part 178

    Hazardous materials transportation, Motor vehicle safety, Packaging 
and containers, Reporting and recordkeeping requirements.

49 CFR Part 180

    Hazardous materials transportation, Motor vehicle safety, Packaging 
and containers, Reporting and recordkeeping requirements, Special 
permits.
    In consideration of the foregoing, amend 49 CFR Chapter I as 
follows:

PART 105--HAZARDOUS MATERIALS PROGRAM DEFINITIONS AND GENERAL 
PROCEDURES

0
1. The authority citation for part 105 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

0
2. In Sec.  105.5, make the following changes:
0
a. In paragraph (b), revise paragraph (2) of the definition for 
``Competent Authority Approval''; and
0
b. In paragraph (b), remove the definition for ``Exemption'' and add a 
definition for ``Special permit'' in appropriate alphabetical order.
    The revisions read as follows:


Sec.  105.5  Definitions.

* * * * *
    (b) * * *
* * * * *
    Competent Authority Approval means * * *
    (2) A special permit or approval issued under subchapter A or C of 
this chapter.
* * * * *
    Special permit means a document issued by the Associate 
Administrator under the authority of 49 U.S.C. 5117 permitting a person 
to perform a function that is not otherwise permitted under subchapter 
A or C of this chapter, or other regulations issued under 49 U.S.C. 
5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). 
The terms ``special permit'' and

[[Page 73159]]

``exemption'' have the same meaning for purposes of subchapter A or C 
of this chapter or other regulations issued under 49 U.S.C. 5101 
through 5127. An exemption issued prior to October 1, 2005 remains 
valid until it is past its expiration date, terminated by the Associate 
Administrator, or is issued as a special permit, whichever occurs 
first.
* * * * *


Sec.  105.15  [Amended]

0
3. In Sec.  105.15, remove the term ``Exemption'' and add the term 
``Special permit'' in alphabetical order.
0
4. In Sec.  105.25, revise paragraphs (a)(2) and (b)(2)(iv) to read as 
follows:


Sec.  105.25  Reviewing public documents.

* * * * *
    (a) * * *
    (2) Applications for special permits numbered DOT-E or DOT-SP 11832 
and above. Also available are supporting data, memoranda of any 
informal meetings with applicants, related Federal Register notices, 
public comments, and decisions granting or denying applications for 
special permits.
* * * * *
    (b) * * *
    (2) * * *
    (iv) Applications for special permits numbered below DOT-E or DOT-
SP 11832 and related background information are available for public 
review and copying at the Office of Hazardous Materials Safety, Office 
of Hazardous Materials Special Permits and Approvals, U.S. Department 
of Transportation, Room 8100, 400 7th Street, SW., Washington, DC 
20590-0001.
* * * * *


Sec.  105.30  [Amended]

0
5. In Sec.  105.30, in the introductory text, remove the term 
``exemption'' and add the term ``special permit'' in its place.

0
6. In Sec.  105.40, revise paragraph (d) to read as follows:


Sec.  105.40  Designated agents for non-residents.

* * * * *
    (d) Address. Send your designation to: Office of Hazardous 
Materials Special Permits and Approvals, Pipeline and Hazardous 
Materials Safety Administration, Attn: PHH-30, U.S. Department of 
Transportation, 400 7th Street, SW., Washington, DC 20590-0001.
* * * * *

PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES

0
7. The authority citation for part 107 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 44701; Pub. L. 101-410 section 4 
(28 U.S.C. 2461 note); Pub. L. 104-121 sections 212-213; Pub. L. 
104-134 section 31001; 49 CFR 1.45, 1.53.

PART 107--[NOMENCLATURE CHANGE]

0
8. In part 107, remove the term ``exemption'' and add the term 
``special permit'' in its place in each place it appears, as follows:
0
a. Section 107.117(e);
0
b. Section 107.117(g) in two places;
0
c. Section 107.305(a);
0
d. Section 107.309(a);
0
e. Section 107.311(a);
0
f. Section 107.311(b)(1);
0
g. Section 107.335;
0
h. Section 107.337;
0
i. Appendix A to Subpart D, Part IV. F.;
0
j. Section 107.402(b)(3);
0
k. Section 107.503(a)(6);
0
l. Section 107.801(a)(3);
0
m. Section 107.807(a); and
0
n. Section 107.807(b)(2).

0
9. In part 107, remove the term ``exemptions'' and add the term 
``special permits'' in its place in each place it appears, as follows:
0
a. Subpart B heading;
0
b. Section 107.101; and
0
c. Appendix A to subpart D, part IV. F. in the heading and text.
0
10. In part 107, remove the phrase ``an exemption'' and add the phrase 
``a special permit'' in its place in each place it appears, as follows:

0
a. Section 107.329(a);
0
b. Section 107.329(b);
0
c. Section 107.501(a);
0
d. Section 107.502(b);
0
e. Section 107.801(a)(2); and
0
f. Section 107.803(c)(3).

0
11. In Sec.  107.1, revise the definitions for ``Applicant,'' 
``Application,'' ``Competent Authority Approval,'' ``Holder,'' and 
``Party''; remove the definitions for ``Exemption'' and ``Manufacturer 
exemption''; and add a definition for ``Special permit'' and 
``Manufacturing special permit'' in the appropriate alphabetical order, 
to read as follows:


Section 107.1  Definitions

* * * * *
    Applicant means the person in whose name a special permit, 
approval, registration, a renewed or modified special permit or 
approval, or party status to a special permit is requested to be 
issued.
    Application means a request under subpart B of this part for a 
special permit, a renewal or modification of a special permit, party 
status to a special permit, or a request under subpart H of this part 
for an approval, or renewal or modification of an approval.
* * * * *
    Competent Authority Approval means an approval by the competent 
authority that is required under an international standard (for 
example, the ICAO Technical Instructions for the Safe Transport of 
Dangerous Goods by Air and the International Maritime Dangerous Goods 
Code). Any of the following may be considered a competent authority 
approval if it satisfies the requirement of an international standard:
    (1) A specific regulation in subchapter A or C of this chapter.
    (2) A special permit or approval issued under subchapter A or C of 
this chapter.
    (3) A separate document issued to one or more persons by the 
Associate Administrator.
* * * * *
    Holder means the person in whose name a special permit or approval 
has been issued.
* * * * *
    Manufacturing special permit means a special permit from compliance 
with specified requirements that otherwise must be met before 
representing, marking, certifying (including requalifying, inspecting, 
and testing), selling or offering a packaging or container as meeting 
the requirements of subchapter C of this chapter governing its use in 
the transportation in commerce of a hazardous material. A manufacturing 
special permit is a special permit issued to a manufacturer of 
packagings who does not offer for transportation or transport hazardous 
materials in packagings subject to the special permit.
    Party means a person, other than a holder, authorized to act under 
the terms of a special permit.
* * * * *
    Special permit means a document issued by the Associate 
Administrator under the authority of 49 U.S.C. 5117 permitting a person 
to perform a function that is not otherwise permitted under subchapter 
A or C of this chapter, or other regulations issued under 49 U.S.C. 
5101 et seq. (e.g., Federal Motor Carrier Safety routing requirements). 
The terms ``special permit'' and ``exemption'' have the same meaning 
for purposes of subchapter A or C of this chapter or other regulations 
issued under 49 U.S.C. 5101 through 5127. An

[[Page 73160]]

exemption issued prior to October 1, 2005 remains valid until it is 
past its expiration date, terminated by the Associate Administrator, or 
is issued as a special permit, whichever occurs first.
* * * * *

0
12. In Sec.  107.105, revise the section heading and paragraphs (a)(1), 
(a)(4), (c), and (d) to read as follows:


Sec.  107.105  Application for special permit.

    (a) * * *
    (1) Be submitted for timely consideration, at least 120 days before 
the requested effective date, in duplicate to: Associate Administrator 
for Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 400 7th Street, SW., Washington, DC 20590-0001. 
Alternatively, the application with any attached supporting 
documentation submitted in an appropriate format may be sent by 
facsimile (fax) to: (202) 366-3753 or (202) 366-3308 or by electronic 
mail (e-mail) to: Specialpermits@dot.gov;
* * * * *
    (4) For a manufacturing special permit, a statement of the name and 
street address of each facility where manufacturing under the special 
permit will occur.
* * * * *
    (c) Description of special permit proposal. The application must 
include the following information that is relevant to the special 
permit proposal:
    (1) A citation of the specific regulation from which the applicant 
seeks relief;
    (2) Specification of the proposed mode or modes of transportation;
    (3) A detailed description of the proposed special permit (e.g., 
alternative packaging, test, procedure or activity) including, as 
appropriate, written descriptions, drawings, flow charts, plans and 
other supporting documents;
    (4) A specification of the proposed duration or schedule of events 
for which the special permit is sought;
    (5) A statement outlining the applicant's basis for seeking relief 
from compliance with the specified regulations and, if the special 
permit is requested for a fixed period, a description of how compliance 
will be achieved at the end of that period;
    (6) If the applicant seeks emergency processing specified in Sec.  
107.117, a statement of supporting facts and reasons;
    (7) Identification and description of the hazardous materials 
planned for transportation under the special permit;
    (8) Description of each packaging, including specification or 
special permit number, as applicable, to be used in conjunction with 
the requested special permit;
    (9) For alternative packagings, documentation of quality assurance 
controls, package design, manufacture, performance test criteria, in-
service performance and service-life limitations.
    (10) When a Class 1 material is forbidden for transportation by 
aircraft except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), an applicant for a special permit to 
transport such Class 1 material on passenger-carrying or cargo-only 
aircraft with a maximum certificated takeoff weight of less than 12,500 
pounds must certify that no person within the categories listed in 18 
U.S.C. 842(i) will participate in the transportation of the Class 1 
material.
    (d) Justification of special permit proposal. The application must 
demonstrate that a special permit achieves a level of safety at least 
equal to that required by regulation, or if a required safety level 
does not exist, is consistent with the public interest. At a minimum, 
the application must provide the following:
    (1) Information describing all relevant shipping and incident 
experience of which the applicant is aware that relates to the 
application;
    (2) A statement identifying any increased risk to safety or 
property that may result if the special permit is granted, and a 
description of the measures to be taken to address that risk; and
    (3) Either:
    (i) Substantiation, with applicable analyses, data or test results, 
that the proposed alternative will achieve a level of safety that is at 
least equal to that required by the regulation from which the special 
permit is sought; or
    (ii) If the regulations do not establish a level of safety, an 
analysis that identifies each hazard, potential failure mode and the 
probability of its occurrence, and how the risks associated with each 
hazard and failure mode are controlled for the duration of an activity 
or life-cycle of a packaging.

0
13. In Sec.  107.107, revise paragraphs (a), (b)(1), (b)(2), (b)(5), 
and (d) to read as follows:


Sec.  107.107  Application for party status.

    (a) Any person eligible to apply for a special permit may apply to 
be made party to an application or an existing special permit, other 
than a manufacturing special permit.
    (b) * * *
    (1) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 400 7th Street, SW., Washington, DC 20590-0001. 
Alternatively, the application with any attached supporting 
documentation submitted in an appropriate format may be sent by 
facsimile (fax) to: (202) 366-3753 or (202) 366-3308 or by electronic 
mail (e-mail) to: Specialpermits@dot.gov;
    (2) Identify by number the special permit application or special 
permit to which the applicant seeks to become a party;
* * * * *
    (5) For a Class 1 material that is forbidden for transportation by 
aircraft except under a special permit (see Columns 9A and 9B in the 
table in 49 CFR 172.101), an applicant for party status to a special 
permit to transport such Class 1 material on passenger-carrying or 
cargo-only aircraft with a maximum certificated takeoff weight of less 
than 12,500 pounds must certify that no person within the categories 
listed in 18 U.S.C. 842(i) will participate in the transportation of 
the Class 1 material.
* * * * *
    (d) A party to a special permit is subject to all terms of that 
special permit, including the expiration date. If a party to a special 
permit wishes to renew party status, the special permit renewal 
procedures set forth in Sec.  107.109 apply.

0
14. Revise Sec.  107.109 to read as follows:


Sec.  107.109  Application for renewal.

    (a) Each application for renewal of an exemption or special permit 
or party status to an exemption or special permit must:
    (1) Be submitted in duplicate to: Associate Administrator for 
Hazardous Materials Safety (Attention: Special Permits, PHH-31), 
Pipeline and Hazardous Materials Safety Administration, U.S. Department 
of Transportation, 400 7th Street, SW., Washington, DC 20590-0001. 
Alternatively, the application with any attached supporting 
documentation submitted in an appropriate format may be sent by 
facsimile (fax) to: (202) 366-3753 or (202) 366-3308 or by electronic 
mail (e-mail) to: Specialpermits@dot.gov;
    (2) Identify by number the exemption or special permit for which 
renewal is requested;

[[Page 73161]]

    (3) State the name, street and mailing addresses, e-mail address 
optional, and telephone number of the applicant; if the applicant is 
not an individual, state the name, street and mailing addresses, e-mail 
address optional, and telephone number of an individual designated as 
an agent of the applicant for all purposes related to the application;
    (4) Include either a certification by the applicant that the 
original application, as it may have been updated by any application 
for renewal, remains accurate and complete; or include an amendment to 
the previously submitted application as is necessary to update and 
assure the accuracy and completeness of the application, with 
certification by the applicant that the application as amended is 
accurate and complete; and
    (5) Include a statement describing all relevant shipping and 
incident experience of which the applicant is aware in connection with 
the exemption or special permit since its issuance or most recent 
renewal. If the applicant is aware of no incidents, the applicant shall 
so certify. When known to the applicant, the statement should indicate 
the approximate number of shipments made or packages shipped, as the 
case may be, and number of shipments or packages involved in any loss 
of contents, including loss by venting other than as authorized in 
subchapter C.
    (6) When a Class 1 material is forbidden for transportation by 
aircraft, except under an exemption or special permit (see Columns 9A 
and 9B in the table in 49 CFR 172.101), an application to renew an 
exemption or special permit to transport such Class 1 material on 
passenger-carrying or cargo-only aircraft with a maximum certificated 
takeoff weight of less than 12,500 pounds must certify that no person 
within the categories listed in 18 U.S.C. 842(i) will participate in 
the transportation of the Class 1 material.
    (b) If at least 60 days before an existing exemption or special 
permit expires the holder files an application for renewal that is 
complete and conforms to the requirements of this section, the 
exemption will not expire until final administrative action on the 
application for renewal has been taken.

0
15. In Sec.  107.113, revise paragraphs (a), (b), (f)(2)(i), (f)(5), 
(h), and (j) to read as follows:


Sec.  107.113  Application processing and evaluation.

    (a) The Associate Administrator reviews an application for special 
permit, modification of special permit, party to special permit, or 
renewal of an exemption or special permit to determine if it is 
complete and conforms with the requirements of this subpart. This 
determination will be made within 30 days of receipt of the application 
for special permit, modification of special permit, or party to special 
permit, and within 15 days of receipt of an application for renewal of 
an exemption or special permit. If an application is determined to be 
incomplete, the applicant is informed of the reasons.
    (b) An application, that is not a renewal, party to, or emergency 
special permit application, and is determined to be complete is 
docketed. Notice of the application is published in the Federal 
Register, and an opportunity for public comment is provided. All 
comments received during the comment period are considered before final 
action is taken on the application.
* * * * *
    (f) * * *
    (2) * * *
    (i) Is at least equal to that required by the regulation from which 
the special permit is sought, or
* * * * *
    (5) The applicant is fit to conduct the activity authorized by the 
exemption or special permit. This assessment may be based on 
information in the application, prior compliance history of the 
applicant, and other information available to the Associate 
Administrator.
* * * * *
    (h) The initial exemption or special permit terminates according to 
its terms or, if not otherwise specified, 24 months from the date of 
issuance. A subsequent renewal of a special permit terminates according 
to its terms or, if not otherwise specified, 48 months after the date 
of issuance. A grant of party status to an exemption or special permit, 
unless otherwise stated, terminates on the date that the exemption or 
special permit expires.
* * * * *
    (j) The Associate Administrator publishes in the Federal Register a 
list of all special permit grants, denials, and modifications and all 
special permit applications withdrawn under this section.

0
16. In Sec.  107.121, revise the section heading and paragraphs (a), 
(b), and (c) to read as follows:


Sec.  107.121  Modification, suspension or termination of special 
permit or grant of party status.

    (a) The Associate Administrator may modify an exemption, a special 
permit, or grant of party status on finding that:
    (1) Modification is necessary so that the exemption or special 
permit reflects current statutes and regulations; or
    (2) Modification is required by changed circumstances to meet the 
standards of Sec.  107.113(f).
    (b) The Associate Administrator may modify, suspend or terminate an 
exemption or special permit or grant of party status, as appropriate, 
on finding that:
    (1) Because of a change in circumstances, the exemption, special 
permit, or party status no longer is needed or no longer would be 
granted if applied for;
    (2) The application contained inaccurate or incomplete information, 
and the exemption, special permit, or party status would not have been 
granted had the application been accurate and complete;
    (3) The application contained deliberately inaccurate or incomplete 
information; or
    (4) The holder or party knowingly has violated the terms of the 
exemption, special permit or an applicable requirement of this chapter, 
in a manner demonstrating the holder or party is not fit to conduct the 
activity authorized by the exemption or special permit.
    (c) Except as provided in paragraph (d) of this section, before an 
exemption, special permit, or grant of party status is modified, 
suspended or terminated, the Associate Administrator notifies the 
holder or party in writing of the proposed action and the reasons for 
it, and provides an opportunity to show cause why the proposed action 
should not be taken.
    (1) The holder or party may file a written response that shows 
cause why the proposed action should not be taken within 30 days of 
receipt of notice of the proposed action.
    (2) After considering the holder's or party's written response, or 
after 30 days have passed without response since receipt of the notice, 
the Associate Administrator notifies the holder or party in writing of 
the final decision with a brief statement of reasons.
* * * * *

0
17. In Sec.  107.123, revise paragraph (a) introductory text to read as 
follows:


Sec.  107.123  Reconsideration.

    (a) An applicant for special permit, a special permit holder, or an 
applicant for party status to an exemption or special permit may 
request that the Associate Administrator reconsider a decision under 
Sec.  107.113(g), Sec.  107.117(e) or Sec.  107.121(c) of this part. 
The request must--
* * * * *

[[Page 73162]]


0
18. In Sec.  107.127, revise paragraph (a) to read as follows:


Sec.  107.127  Availability of documents for public inspection.

    (a) Documents related to an application under this subpart, 
including the application itself, are available for public inspection, 
except as specified in paragraph (b) of this section, at the Office of 
the Associate Administrator for Hazardous Materials Safety, Pipeline 
and Hazardous Materials Safety Administration, Office of Hazardous 
Materials Special Permits and Approvals, U.S. Department of 
Transportation, 400 7th Street, SW., Washington, DC 20590-0001, Room 
8102. Office hours are 8:30 a.m. to 5 p.m., Monday through Friday, 
except Federal holidays when the office is closed. Copies of available 
documents may be obtained as provided in part 7 of this title. 
Documents numbered 11832 and above may also be viewed at the website 
address https://dms.dot.gov.
* * * * *


Sec.  107.227  [Amended]

0
19. In Sec.  107.227, the term ``district court'' is removed and 
``court of appeals'' is added in its place.

0
20. In Sec.  107.307, revise paragraph (a) introductory text, and 
paragraph (b) to read as follows:


Sec.  107.307  General.

    (a) When the Associate Administrator and the Office of Chief 
Counsel have reason to believe that a person is knowingly engaging or 
has knowingly engaged in conduct which is a violation of the Federal 
hazardous material transportation law or any provision of this 
subchapter or subchapter C of this chapter, or any exemption, special 
permit, or order issued thereunder, for which the Associate 
Administrator or the Office of Chief Counsel exercise enforcement 
authority, they may--
* * * * *
    (b) In the case of a proceeding initiated for failure to comply 
with an exemption or special permit, the allegation of a violation of a 
term or condition thereof is considered by the Associate Administrator 
and the Office of Chief Counsel to constitute an allegation that the 
special permit holder or party to the special permit is failing, or has 
failed to comply with the underlying regulations from which relief was 
granted by the special permit.

Appendix A To Subpart D of Part 107--[Amended]

0
21. In part 107, in Appendix A to subpart D, in the table in section 
II, Guidelines for Civil Penalties, remove the term ``exemption'' and 
add the term ``exemption or special permit'' each place it appears.

0
22. In Sec.  107.705, revise paragraph (a)(3) to read as follows:


Sec.  107.705  Registrations, reports, and applications for approval.

    (a) * * *
    (3) If a report is required by an approval, a registration or a 
special permit, identify the approval, registration or special permit 
number;
* * * * *

0
23. In Sec.  107.805, paragraphs (a), (c)(2), (d), and (f) are revised 
to read as follows:


Sec.  107.805  Approval of cylinder requalifiers.

    (a) General. A person must meet the requirements of this section to 
be approved to inspect, test, certify, repair, or rebuild a cylinder in 
accordance with a DOT specification under subpart C of part 178 or 
subpart C of part 180 of this chapter or under the terms of a special 
permit issued under this part.
* * * * *
    (c) * * *
    (2) The DOT specification/special permit cylinders that will be 
inspected, tested, repaired, or rebuilt at the facility;
* * * * *
    (d) Issuance of requalifier identification number (RIN). The 
Associate Administrator issues a RIN as evidence of approval to 
requalify DOT specification/special permit cylinders if it is 
determined, based on the applicant's submission and other available 
information, that the applicant's qualifications and, when applicable, 
facility are adequate to perform the requested functions in accordance 
with the criteria prescribed in subpart C of part 180 of this chapter.
* * * * *
    (f) Exceptions. Notwithstanding the requirements in paragraphs (b) 
and (c) of this section, a person who only performs inspections in 
accordance with Sec.  180.209(g) of this chapter may submit an 
application that, in addition to the information prescribed in Sec.  
107.705(a), identifies the DOT specification/special permit cylinders 
to be inspected; certifies the requalifier will operate in compliance 
with the applicable requirements of subchapter C of this chapter; 
certifies the persons performing inspections have been trained and have 
the information contained in each applicable CGA pamphlet incorporated 
by reference in Sec.  171.7 of this chapter applicable to the 
requalifiers' activities; and includes the signature of the person 
making the certification and the date on which it was signed. Each 
person must comply with the applicable requirements in this subpart. In 
addition, the procedural requirements in subpart H of this part apply 
to the filing, processing and termination of an approval issued under 
this subpart. After May 31, 2004, no person may requalify a DOT 
specification/special permit cylinder in accordance with Sec.  
180.209(g) of this chapter unless that person has been issued a RIN as 
provided in paragraph (d) of this section.
* * * * *

PART 110 --HAZARDOUS MATERIALS PUBLIC SECTOR TRANING AND PLANNING 
GRANTS

0
24. The authority citation for part 110 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec.  110.30  [Amended]

0
25. In Sec.  110.30, in paragraphs (b)(2) and (c)(2), the phrase ``two 
fiscal years'' is removed and ``five fiscal years'' is added in its 
place each place it appears.

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

0
26. The authority citation for part 171 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127, 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.

PART 171--[NOMENCLATURE CHANGE]

0
27. In part 171, remove the phrase ``an exemption'' and add the phrase 
``an exemption or special permit'' in its place each place it appears, 
as follows:
0
a. Section 171.1(g);
0
b. Section 171.2(b) in two places;
0
c. Section 171.2(c) in two places;
0
d. Section 171.2(e);
0
e. Section 171.2(f); and
0
f. Section 171.2(i) in two places;
0
g. Section 171.2(m) in three places.

0
28. In Sec.  171.1, revise paragraph (d)(7) to read as follows:


Sec.  171.1  Applicability of Hazardous Materials Regulations (HMR) to 
persons and functions.

* * * * *
    (d) * * *
    (7) Any matter subject to the postal laws and regulations of the 
United States, except in the case of an imminent hazard.
* * * * *

0
29. In Sec.  171.2, revise paragraphs (g) and (h) to read as follows:

[[Page 73163]]

Sec.  171.2  General requirements.

* * * * *
    (g) No person may represent, mark, certify, sell, or offer a 
packaging or container as meeting the requirements of this subchapter 
governing its use in the transportation of a hazardous material in 
commerce unless the packaging or container is manufactured, fabricated, 
marked, maintained, reconditioned, repaired, and retested in accordance 
with the applicable requirements of this subchapter. No person may 
represent, mark, certify, sell, or offer a packaging or container as 
meeting the requirements of an exemption, a special permit, approval, 
or registration issued under this subchapter or subchapter A of this 
chapter unless the packaging or container is manufactured, fabricated, 
marked, maintained, reconditioned, repaired, and retested in accordance 
with the applicable requirements of the exemption, special permit, 
approval, or registration issued under this subchapter or subchapter A 
of this chapter. The requirements of this paragraph apply whether or 
not the packaging or container is used or to be used for the 
transportation of a hazardous material.
    (h) The representations, markings, and certifications subject to 
the prohibitions of paragraph (g) of this section include:
    (1) Specification identifications that include the letters ``ICC'', 
``DOT'', ``CTC'', ``MC'', or ``UN'';
    (2) Exemption, special permit, approval, and registration numbers 
that include the letters ``DOT'', ``EX'', ``M'', or ``R''; and
    (3) Test dates associated with specification, registration, 
approval, retest, exemption, or special permit markings indicating 
compliance with a test or retest requirement of the HMR, or an 
exemption, special permit, approval, or registration issued under the 
HMR or under subchapter A of this chapter.
* * * * *

0
30. In Sec.  171.6, in paragraph (b)(2), in the table, revise the entry 
for OMB control number 2137-0051 to read as follows:


Sec.  171.6  Control numbers under the Paperwork Reduction Act.

* * * * *
    (b) * * *
    (2) Table

------------------------------------------------------------------------
                                                    Title 49 CFR part or
                                                        section where
   Current OMB control No.            Title            identified and
                                                          described
------------------------------------------------------------------------
 
                              * * * * * * *
2137-0051...................  Rulemaking and        Sec.  Sec.   105.30,
                               Special Permit        105.40, 106.95,
                               Petitions.            106.110, 107.105,
                                                     107.107, 107.109,
                                                     107.113, 107.117,
                                                     107.121, 107.123,
                                                     107.125, 107.205,
                                                     107.211, 107.215,
                                                     107.217, 107.219,
                                                     107.221, 107.223.
 
                              * * * * * * *
------------------------------------------------------------------------


0
31. In Sec.  171.8, revise the definitions of ``hazmat employee'' and 
``hazmat employer''; remove the definition for ``Exemption''; and add a 
definition for ``Special permit'' in the appropriate alphabetical order 
to read as follows:


Sec.  171.8  Definitions and abbreviations.

* * * * *
    Hazmat employee means: (1) A person who is:
    (i) Employed on a full-time, part time, or temporary basis by a 
hazmat employer and who in the course of such full time, part time or 
temporary employment directly affects hazardous materials 
transportation safety;
    (ii) Self-employed (including an owner-operator of a motor vehicle, 
vessel, or aircraft) transporting hazardous materials in commerce who 
in the course of such self-employment directly affects hazardous 
materials transportation safety;
    (iii) A railroad signalman; or
    (iv) A railroad maintenance-of-way employee.
    (2) This term includes an individual, employed on a full time, part 
time, or temporary basis by a hazmat employer, or who is self-employed, 
who during the course of employment:
    (i) Loads, unloads, or handles hazardous materials;
    (ii) Designs, manufactures, fabricates, inspects, marks, maintains, 
reconditions, repairs, or tests a package, container or packaging 
component that is represented, marked, certified, or sold as qualified 
for use in transporting hazardous material in commerce.
    (iii) Prepares hazardous materials for transportation;
    (iv) Is responsible for safety of transporting hazardous materials;
    (v) Operates a vehicle used to transport hazardous materials.
    Hazmat employer means:
    (1) A person who employs or uses at least one hazmat employee on a 
full-time, part time, or temporary basis; and who:
    (i) Transports hazardous materials in commerce;
    (ii) Causes hazardous materials to be transported in commerce; or
    (iii) Designs, manufactures, fabricates, inspects, marks, 
maintains, reconditions, repairs or tests a package, container, or 
packaging component that is represented, marked, certified, or sold by 
that person as qualified for use in transporting hazardous materials in 
commerce;
    (2) A person who is self-employed (including an owner-operator of a 
motor vehicle, vessel, or aircraft) transporting materials in commerce; 
and who:
    (i) Transports hazardous materials in commerce;
    (ii) Causes hazardous materials to be transported in commerce; or
    (iii) Designs, manufactures, fabricates, inspects, marks, 
maintains, reconditions, repairs or tests a package, container, or 
packaging component that is represented, marked, certified, or sold by 
that person as qualified for use in transporting hazardous materials in 
commerce; or
    (3) A department, agency, or instrumentality of the United States 
Government, or an authority of a State, political subdivision of a 
State, or an Indian tribe; and who:
    (i) Transports hazardous materials in commerce;
    (ii) Causes hazardous materials to be transported in commerce; or
    (iii) Designs, manufactures, fabricates, inspects, marks, 
maintains, reconditions, repairs or tests a package, container, or 
packaging component that is represented, marked, certified, or sold by 
that person as qualified for use in transporting hazardous materials in 
commerce.
* * * * *
    Special permit means a document issued by the Associate 
Administrator under the authority of 49 U.S.C. 5117

[[Page 73164]]

permitting a person to perform a function that is not otherwise 
permitted under subchapter A or C of this chapter, or other regulations 
issued under 49 U.S.C. 5101 et seq. (e.g., Federal Motor Carrier Safety 
routing requirements). The terms ``special permit'' and ``exemption'' 
have the same meaning for purposes of subchapter A or C of this chapter 
or other regulations issued under 49 U.S.C. 5101 through 5127. An 
exemption issued prior to October 1, 2005 remains valid until it is 
past its expiration date, terminated by the Associate Administrator, or 
issued as a special permit, whichever occurs first.
* * * * *

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

0
32. The authority citation for part 172 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec.  172.102  [Amended]

0
33. In Sec.  172.102, in paragraph (c)(1), amend special provision 139 
to remove the term ``exemption'' and add the term ``special permit'' in 
its place.

0
34. In Sec.  172.201, revise paragraph (e) to read as follows:


Sec.  172.201  Preparation and retention of shipping papers.

* * * * *
    (e) Retention and Recordkeeping. Each person who provides a 
shipping paper must retain a copy of the shipping paper required by 
Sec.  172.200(a), or an electronic image thereof, that is accessible at 
or through its principal place of business and must make the shipping 
paper available, upon request, to an authorized official of a Federal, 
State, or local government agency at reasonable times and locations. 
For a hazardous waste, the shipping paper copy must be retained for 
three years after the material is accepted by the initial carrier. For 
all other hazardous materials, the shipping paper must be retained for 
two years after the material is accepted by the initial carrier. Each 
shipping paper copy must include the date of acceptance by the initial 
carrier, except that, for rail, vessel, or air shipments, the date on 
the shipment waybill, airbill, or bill of lading may be used in place 
of the date of acceptance by the initial carrier. A motor carrier (as 
defined in Sec.  390.5 of subchapter B of chapter III of subtitle B) 
using a shipping paper without change for multiple shipments of one or 
more hazardous materials having the same shipping name and 
identification number may retain a single copy of the shipping paper, 
instead of a copy for each shipment made, if the carrier also retains a 
record of each shipment made, to include shipping name, identification 
number, quantity transported, and date of shipment.

0
35. In Sec.  172.203, revise paragraph (a) to read as follows:


Sec.  172.203  Additional description requirements.

    (a) Special permits. Except as provided in Sec.  173.23 of this 
subchapter, each shipping paper issued in connection with a shipment 
made under a special permit must bear the notation ``DOT-SP'' followed 
by the special permit number assigned and located so that the notation 
is clearly associated with the description to which the special permit 
applies. Each shipping paper issued in connection with a shipment made 
under an exemption or special permit issued prior to October 1, 2007, 
may bear the notation ``DOT-E'' followed by the number assigned and so 
located that the notation is clearly associated with the description to 
which it applies.
* * * * *

0
36. In Sec.  172.301, revise paragraph (c) to read as follows:


Sec.  172.301  General marking requirements for non-bulk packagings.

* * * * *
    (c) Special permit packagings. Except as provided in Sec.  173.23 
of this subchapter, the outside of each package authorized by a special 
permit must be plainly and durably marked ``DOT-SP'' followed by the 
special permit number assigned. Packages authorized by an exemption 
issued prior to October 1, 2007, may be plainly and durably marked 
``DOT-E'' in lieu of ``DOT-SP'' followed by the number assigned as 
specified in the most recent version of that exemption.
* * * * *

0
37. In Sec.  172.302, revise paragraph (c) to read as follows:


Sec.  172.302  General marking requirements for bulk packagings.

* * * * *
    (c) Special permit packagings. Except as provided in Sec.  173.23 
of this subchapter, the outside of each package used under the terms of 
a special permit must be plainly and durably marked ``DOT-SP'' followed 
by the special permit number assigned. Packages authorized by an 
exemption issued prior to October 1, 2007 may be plainly and durably 
marked ``DOT-E'' in lieu of ``DOT-SP'' followed by the number assigned 
as specified in the most recent version of that exemption.
* * * * *

0
38. In Sec.  172.704, revise paragraphs (a)(2)(i) and (e) to read as 
follows:


Sec.  172.704  Training requirements.

    (a) * * *
    (2) * * *
    (i) Each hazmat employee must be provided function-specific 
training concerning requirements of this subchapter, or exemptions or 
special permits issued under subchapter A of this chapter, that are 
specifically applicable to the functions the employee performs.
* * * * *
    (e) Limitations. The following limitations apply:
    (1) A hazmat employee who repairs, modifies, reconditions, or tests 
packagings, as qualified for use in the transportation of hazardous 
materials, and who does not perform any other function subject to the 
requirements of this subchapter, is not subject to the training 
requirement of paragraph (a)(3) of this section.
    (2) A railroad maintenance-of-way employee or railroad signalman, 
who does not perform any function subject to the requirements of this 
subchapter, is not subject to the training requirements of paragraphs 
(a)(2), (a)(4), or (a)(5) of this section. Initial training for a 
railroad maintenance-of-way employee or railroad signalman in 
accordance with this section must be completed by October 1, 2006.

0
39. In Sec.  172.800, add a new paragraph (c) to read as follows:


Sec.  172.800  Purpose and applicability.

* * * * *
    (c) Exceptions. Transportation activities of a farmer, who 
generates less than $500,000 annually in gross receipts from the sale 
of agricultural commodities or products, are not subject to this 
subpart if such activities are:
    (1) Conducted by highway or rail;
    (2) In direct support of their farming operations; and
    (3) Conducted within a 150-mile radius of those operations.

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

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

    Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.

[[Page 73165]]


0
41. In Sec.  173.5, add a new paragraph (f) to read as follows:


Sec.  173.5  Agricultural operations.

* * * * *
    (f) See Sec.  172.800(b) pertaining to security plans.

0
42. In Sec.  173.22, revise paragraphs (a)(2)(v), (a)(3)(i), and 
(a)(3)(ii) to read as follows:


Sec.  173.22  Shippers responsibility.

    (a) * * *
    (2) * * *
    (v) An exemption or special permit issued under subchapter A of 
this chapter.
    (3) * * *
    (i) Except for the marking on the bottom of a metal or plastic drum 
with a capacity over 100 L which has been reconditioned, remanufactured 
or otherwise converted, the manufacturer's certification, 
specification, approval, or exemption or special permit marking (see 
Sec. Sec.  178.2 and 179.1 of this subchapter); or
    (ii) With respect to cargo tanks provided by a carrier, the 
manufacturer's identification plate or a written certification of 
specification or exemption or special permit provided by the carrier.
* * * * *

0
43. Revise Sec.  173.22a to read as follows:


Sec.  173.22a  Use of packagings authorized under special permits.

    (a) Except as provided in paragraph (b) of this section, no person 
may offer a hazardous material for transportation in a packaging the 
use of which is dependent upon an exemption or special permit issued 
under subpart B of part 107 of this title, unless that person is the 
holder of or a party to the exemption or special permit.
    (b) If an exemption or special permit authorizes the use of a 
packaging for the transportation of a hazardous material by any person 
or class of persons other than or in addition to the holder of the 
exemption or special permit, that person or a member of that class of 
persons may use the packaging for the purposes authorized in the 
exemption or special permit subject to the terms specified therein. 
Copies of exemptions and special permits may be obtained by accessing 
the Hazardous Materials Safety Web site at https://hazmat.dot.gov/
specialpermits_index.htm or by writing to the Associate Administrator 
for Hazardous Materials Safety, U.S. Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590-0001, Attention: Records 
Center.
    (c) When an exemption or special permit issued to a person who 
offers a hazardous material contains requirements that apply to a 
carrier of the hazardous material, the offeror shall furnish a copy of 
the current exemption or special permit to the carrier before or at the 
time a shipment is tendered.

0
44. In Sec.  173.23, a new paragraph (h) is added to read as follows:


Sec.  173.23  Previously authorized packaging.

* * * * *
    (h) An exemption packaging or shipping paper that is permanently 
marked ``DOT-E'' prior to October 1, 2007, may continue in use as long 
as the exemption or special permit remains valid, unless otherwise 
specified in the exemption or special permit.


Sec.  173.124  [Amended]

0
45. In Sec.  173.124, amend paragraph (a)(1)(ii)(A) to replace the 
phrase ``An exemption'' with the phrase ``A special permit.''
    46. In Sec.  173.301, revise paragraph (j) and paragraph (l) 
introductory text to read as follows:


Sec.  173.301  General requirements for shipment of compressed gases in 
cylinders and spherical vessels.

* * * * *
    (j) Non-specification cylinders in domestic use. Except as provided 
in paragraphs (k) and (l) of this section, a filled non-DOT 
specification cylinder, other than a DOT exemption or special permit 
cylinder or a cylinder used as a fire extinguisher in conformance with 
Sec.  173.309, may not be offered for transportation or transported to, 
from, or within the United States.
* * * * *
    (l) Filling of foreign cylinders for export. A cylinder not 
manufactured, inspected, tested and marked in accordance with part 178 
of this subchapter, or a cylinder manufactured to other than a DOT 
specification or exemption or special permit, may be filled with a gas 
in the United States and offered for transportation and transported for 
export, if the following conditions are met:
* * * * *

0
47. In Sec.  173.403, in the definition for ``Exemption Value,'' the 
last sentence is revised to read as follows:


Sec.  173.403  Definitions.

* * * * *
    Exemption value * * * An exemption value is different from an 
exemption, as specified under the definition for special permit in 
Sec.  171.8 of this subchapter.
* * * * *

PART 174--CARRIAGE BY RAIL

0
48. The authority citation for part 174 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec.  174.24  [Amended]

0
49. In Sec.  174.24, in paragraph (b), remove the phrase ``375 days'' 
and add the phrase ``one year'' in its place.

PART 175--CARRIAGE BY AIRCRAFT

0
50. The authority citation for part 175 continues to read as follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.


Sec.  175.30  [Amended]

0
51. In Sec.  175.30, in paragraph (a)(2), remove the phrase ``375 
days'' and add the phrase ``one year'' in its place.


Sec.  175.33  [Amended]

0
52. In Sec.  175.33, in paragraph (a)(10) remov