Hazardous Materials; Miscellaneous Amendments, 60017-60036 [2010-24274]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Proposed Rules]
[Pages 60017-60036]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-24274]


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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 107, 171, 172, 173, 174, 177, 178, and 180

[Docket No. PHMSA-2009-0151 (HM-218F)]
RIN 2137-AE46


Hazardous Materials; Miscellaneous Amendments

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

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: PHMSA proposes to make miscellaneous amendments to the 
Hazardous Materials Regulations to update and clarify certain 
regulatory requirements. Among other provisions, PHMSA is proposing to 
add a labeling exception for ``consolidation bins'' to facilitate use 
of bins as a method of consolidating packages for ease of handling when 
transported by motor vehicle and to clarify that the definition of 
``person,'' as that term is used in the regulations, also includes 
persons who manufacture, test, repair, and recondition packaging. PHMSA 
also proposes to provide an exception from regulation for permeation 
devices containing small amounts of hazardous materials.

DATES: Comments must be received by November 29, 2010.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-493-2251.
     Mail: Dockets Management System; U.S. Department of 
Transportation, Dockets Operations, M-30, Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand Delivery: To U.S. Department of Transportation, 
Dockets Operations, M-30, Ground Floor, Room W12-140, 1200 New Jersey 
Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.
    Instructions: Include the agency name and docket number PHMSA-2009-
0151 (HM-218F) or RIN 2137-AE46 for this rulemaking at the beginning of 
your comment. Note that all comments received will be posted without 
change to https://www.regulations.gov including any personal information 
provided. If sent by mail, comments must be submitted in duplicate. 
Persons wishing to receive confirmation of receipt of their comments 
must include a self-addressed stamped postcard.
    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act

[[Page 60018]]

Statement in the Federal Register published on April 11, 2000 (65 FR 
19477), or you may visit https://www.regulations.gov.
    Docket: You may view the public docket through the Internet at 
https://www.regulations.gov or in person at the Docket Operations office 
at the above address (See ADDRESSES).

FOR FURTHER INFORMATION CONTACT: Deborah L. Boothe, Office of Hazardous 
Materials Standards, (202) 366-8553, Pipeline and Hazardous Materials 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION: 

I. Background

    This NPRM is designed to update and clarify existing requirements 
by incorporating changes into the Hazardous Materials Regulations (HMR; 
49 CFR parts 171-180) based on PHMSA's own initiatives and petitions 
for rulemaking submitted in accordance with 49 CFR 106.95. To this end, 
PHMSA is proposing to eliminate, revise, clarify and relax certain 
regulatory requirements.
    In this NPRM, PHMSA is proposing to:
     Update incorporations by reference of industry consensus 
standards issued by the Aluminum Association; the American Society for 
Testing and Materials; and the Institute of Makers of Explosives (see 
Sec. Sec.  173.63 and 177.835).
     Add a requirement for each applicant to a special permit 
under Sec. Sec.  107.105, 107.107, and 107.109 to identify their role 
as a shipper (offeror), carrier, or both.
     Revise the definition of ``person'' to include those who 
manufacture, test, repair, and recondition packages (see Sec.  171.8).
     Revise the Hazardous Materials Table (HMT) to harmonize 
certain entries with international standards (see Sec.  172.101) by 
adding and revising certain proper shipping names. Most significantly, 
we are adding a new entry ``Formaldehyde solutions (with not less than 
10% and less than 25% formaldehyde)'' to clarify requirements 
applicable to formaldehyde and formalin with less than 10% 
formaldehyde; revising the entry for ``Environmentally hazardous 
substances, liquid, n.o.s.'' to provide packaging exceptions for 
certain materials that are assigned to UN3082; and adding a new special 
provision 176 to Sec.  172.102 to clarify the differences between Class 
3 and Class 9 formaldehyde solutions.
     Add a new italicized entry to the HMT for ``Permeation 
devices'' referencing a new Sec.  173.175 applicable to permeation 
devices to provide an exception for permeation devices containing 
hazardous materials. Permeation devices are used for calibrating air 
quality monitoring devices for consistency. This change harmonizes the 
HMR with the current exception in the international regulations for 
these devices.
     Update and clarify hazard communication requirements 
applicable to Class 9 label specifications; placard size; IBCs; and 
Division 6.2 labels.
     Authorize the use of an alternative bend test for DOT 3AA 
and 3AAX steel cylinders.
     Revise Sec.  178.71 to authorize the use of either a proof 
pressure or volumetric expansion test as described in the ISO 7866 and 
9809 standards.
     Revise Sec.  171.14 transitional provisions to remove 
expired transitional provisions and incorporate certain transitional 
provisions into the specific sections of the HMR.
     Revise provisions in Sec.  173.56(j) to further clarify 
the use of the American Pyrotechnics Association (APA) standard for 
classifying and approving fireworks.
     Revise Sec.  172.404 to provide a labeling exception for 
consolidation bins used to transport hazardous materials by motor 
carrier.
     Revise Sec.  178.345.1 to allow vapors to escape through a 
vent or drain.
     Revise Sec.  178.320 cargo tank wall definition.
     Revise Sec.  178.347-1 to clarify that a cargo tank motor 
vehicle with a Maximum Allowable Working Pressure (MAWP) greater than 
35 psig or designed to be loaded by vacuum must be constructed and 
certified in accordance with the ASME Code.
     Revise Sec.  178.347-4 to make a clear distinction between 
``designed to be loaded by vacuum'' and ``built to withstand full 
vacuum.''

II. Proposals in This NPRM

A. Updated Incorporations by Reference
B. Definition of ``Person''
C. Consolidation Bins
D. Transitional Provisions
E. Reporting Infectious Substances Incidents
F. Hazard Communication for IBCs
G. HMT Revisions
H. Hazard Communication
I. Exclusive Use Vehicles for Regulated Medical Waste (RMW)
J. Fireworks
K. Explosives
L. Rail Transportation of Hazardous Materials
M. Rail Transloading Operations
N. Cylinders
O. Cargo Tanks
P. Permeation Devices
Q. Alcoholic Beverage Exception
R. Special Permits
S. Batteries Containing Sodium or Cells Containing Sodium

A. Updated Incorporations by Reference

    Section 171.7 lists the materials incorporated by reference into 
the HMR. In response to a petition for rulemaking (P-1495), PHMSA 
reviewed the updated American Society for Testing and Materials 
Standard pertaining to the use of an alternate bend test for DOT 3AA 
and 3AAX cylinders in accordance with (ASTM E290-97a (2004), ``Standard 
Test Methods for Bend Testing for Material for Ductility''). PHMSA also 
reviewed the updated Association of American Railroads' (AAR) pamphlet 
pertaining to the Intermodal Loading of Products in Closed Trailers and 
Containers (AAR Pamphlet 6C); and the updated Institute of Makers of 
Explosives' Standard pertaining to the Safe Transportation of 
Detonators (IME SLP-22, Recommendations for the Safe Transportation of 
Detonators in a Vehicle with Certain Other Explosive Materials, dated 
February 2007). PHMSA found no provisions that would impose additional 
requirements or would have an adverse impact on safety. Therefore, in 
this NPRM, PHMSA is proposing to update the materials incorporated by 
reference to include the most recent editions of these standards.

B. Definition of ``Person''

    Section 171.8 lists definitions for commonly used terms in the HMR. 
The current definition of ``person'' is inconsistent with the 
definition in the Federal hazardous materials transportation law 
(Federal hazmat law; 49 U.S.C. 5101 et seq.) in that it does not 
include persons who manufacture, repair, or test packaging authorized 
for the transportation of hazardous materials. For consistency with the 
statutory definition, we are proposing to revise the definition of 
``person'' in Sec.  171.8 to include packaging manufacturers as well as 
repairers and testers of packaging used for the transportation of 
hazardous materials.

C. Consolidation Bins

    Consolidation bins are commonly used by motor carriers to 
consolidate and transport hazardous materials packages. Consolidation 
bins are not offered by a shipper, rather, they are used by a motor 
carrier to consolidate, secure against movement, and provide additional 
protection for small packages. Currently, under the provisions of Sec.  
172.404(b), a consolidation bin is an outside container and must be 
labeled as required for each of the hazardous

[[Page 60019]]

materials it contains. The American Trucking Associations (ATA) 
petitioned PHMSA (petition number P-1545; Docket Number PHMSA-2009-
0236) to allow motor carriers to use consolidation bins to transport 
packages of hazardous materials without having to affix labels to the 
consolidation bin for each class of hazardous material contained within 
the bin.
    In its petition, ATA suggests that using consolidation bins 
promotes safety by reducing damage to packages of hazardous materials, 
improves regulatory compliance by ensuring that packages are 
effectively blocked and braced on a vehicle, improves transportation 
efficiency by minimizing handling of numerous small packages, and 
allows packages moving to a specific terminal to be grouped together 
and to be transferred more efficiently from one motor vehicle to 
another. However, according to ATA, motor carriers are foregoing the 
use of consolidation bins because the dynamic nature of motor carrier 
operations makes the labeling and un-labeling of the bins 
impracticable. ATA gives the following reasons:
     Drivers would have to be trained on when to affix and 
remove labels as freight is picked up and dropped off.
     Each motor vehicle would have to be equipped with multiple 
sets of all labels, as drivers do not know the hazard classes of 
freight they will pick up prior to arriving at the consignor's 
facility.
     It is physically difficult to properly affix labels on a 
reusable consolidation bin in a manner that ensures they do not come 
off while in transportation and then remove those labels as packages 
within the bins are delivered.
    ATA states: ``The use of unlabeled consolidation bins will not 
compromise the safe transportation of hazardous materials. Hazardous 
materials packaging loaded into the consolidation bin will be marked, 
labeled, and manifested on a hazardous material shipping paper. While 
some of these package labels may not be visible within the 
consolidation bin, this situation is identical to the current 
transportation of packagings where labels may be obscured by the 
position of the package or its placement in the vehicle * * *.'' In its 
petition, ATA proposes a new paragraph (c) to Sec.  172.404 to allow a 
motor carrier to use an unlabeled consolidation bin for its own 
convenience, to include trailer-on-flatcar service, and proposes a 
specific definition in Sec.  171.8 for the term ``consolidation bin''.
    In addition to the petition for rulemaking by ATA, PHMSA issued 
special permit, DOT-SP 14881, authorizing the use of consolidation bins 
without hazard warning labels on the outside of the bins. This special 
permit was issued on December 3, 2009 and has been routinely used with 
no reported incidents. The special permit requires that the 
consolidation bin be marked with an indication of each hazard class or 
division within it; that the packages be secured within the bin by 
other packages or other suitable means to prevent shifting or 
significant relative motion between the packages; that the 
consolidation bins be otherwise properly blocked and braced within the 
transport vehicle; and that the packages be loaded only by employees of 
the motor carrier.
    PHMSA agrees there are safety benefits to using consolidation bins 
and that it may be impractical for a motor carrier to label and remove 
labels for packages transported in consolidation bins. Therefore, we 
are proposing to allow an exception from labeling for consolidation 
bins used for the convenience of a motor carrier. However, PHMSA is 
concerned that, in the absence of any marking or label on the 
consolidation bin, a person other than the person who had placed 
packages in the bin may have no indication the bin contains a hazardous 
material. To address this concern, and consistent with the terms of the 
special permit, we propose to require the bin to be marked in a manner 
that indicates it contains a hazardous material. We also propose to 
incorporate several provisions of the special permit, including 
limiting the size of a consolidation bin to less than 64 cubic feet 
capacity, so as not to conflict with hazard communication requirements 
for freight containers. We also propose that the consolidation bin must 
be reusable, made of materials such as plastic, wood, or metal. PHMSA 
is concerned that consolidation bins made of cardboard are not of 
sufficient strength to meet the requirements in this proposal. 
Accordingly, PHMSA is requesting comments on the use of cardboard and 
what standards should be established if cardboard would be authorized 
for use, i.e., thickness, wall type, burst strength, etc.
    We also propose that packages may only be placed within the 
consolidation bin and the bin be loaded on a motor vehicle by an 
employee of a single motor carrier. Additionally, we propose that 
consolidation bins may only be transported by a single motor carrier, 
or on railcars transporting such vehicles. We believe the proposed 
language in Sec.  172.404(c) obviates the need for a separate 
definition for ``consolidation bin'' in Sec.  171.8.
    In addition to the proposal to address the ATA petition, we propose 
to revise paragraph (b) of Sec.  172.404, to clarify that an outside 
container or overpack need not be labeled, if labels on the packages 
contained therein are visible, for consistency with the overpack 
provisions of Sec.  173.25(a)(2).

D. Transitional Provisions

    Section 171.14 provides transitional provisions for recently 
adopted regulatory changes. Most of the provisions in this section are 
outdated. Therefore, for better understanding of the transitional 
provisions, we are proposing to remove this section and outdated 
provisions from the HMR and add the remaining provisions to the 
appropriate sections in the HMR to which they apply, as follows:
     Shipping description sequence. Section 171.14(e) permits 
the shipping description sequences in effect on December 31, 2006, to 
be used until January 1, 2013. In this NPRM, PHMSA proposes to relocate 
this transitional provision to Sec.  172.202(b).
     Division 5.2 labels and placards. Section 171.14(f) 
authorizes the use of a Division 5.2 label and a Division 5.2 placard 
that conform to the label and placard specifications in effect on 
December 31, 2006, until January 1, 2011, except for transportation by 
highway. For transportation by highway, a Division 5.2 placard 
conforming to the specifications in Sec.  172.552 of this subchapter in 
effect on December 31, 2006 may be used until January 1, 2014. In this 
NPRM, PHMSA is proposing to relocate these transitional provisions to 
Sec. Sec.  172.427 and 172.552, respectively.
     Class 3 and Division 6.1 definitions. Section 171.14(g) 
authorizes the use of the Class 3 and Division 6.1 classification 
criteria and packing group assignments in effect on December 31, 2006, 
until January 1, 2012. In this NPRM, PHMSA proposes to relocate these 
transitional provisions to Sec. Sec.  173.120 and 173.121 for Class 3 
materials and to Sec. Sec.  173.132 and 173.133 for Division 6.1 
materials.
     Gasohol. The transitional provision for gasohol in Sec.  
171.14(h) would be relocated to a new Special Provision 178 to specify 
that effective October 1, 2010, the proper shipping name ``Ethanol and 
gasoline mixture or ethanol and motor spirit mixture or ethanol and 
petrol mixture,'' and the revised proper shipping name ``Gasohol 
gasoline mixed with ethyl alcohol, with not more than 10% alcohol'' 
must be used, as

[[Page 60020]]

appropriate when describing gasoline and ethanol mixtures.

E. Reporting Infectious Substances Incidents

    Section 171.15 establishes requirements for immediate notice of 
incidents involving certain hazardous materials incidents. The Centers 
for Disease Control and Prevention is no longer accepting calls 
providing notice of incidents involving an infectious substance 
(etiologic agent). Therefore, we are proposing to remove the 
alternative to provide notice to the Centers for Disease Control and 
Prevention of incidents involving an infectious substance (etiologic 
agent). Specifically, we are proposing to remove the following text 
from paragraph (a) referencing the Centers for Disease Control and 
Prevention which states: ``Notice involving an infectious substance 
(etiologic agent) may be given to the Director, Centers for Disease 
Control and Prevention, U.S. Public Health Service, Atlanta, GA, 800-
232-0124 (toll free), in place of notice to the NRC.''

F. Hazard Communication for IBCs

    Section 172.336 requires identification numbers to be displayed on 
either orange panels or a plain white square-on-point display 
configuration having the same outside dimensions as a placard. Section 
172.514 provides an exception to placarding for IBCs which authorizes 
IBCs to be labeled rather than placarded. However, there is no 
provision in the HMR that allows the proper shipping name and UN number 
to be displayed in lieu of displaying the UN number on a placard, 
orange panel, or white square-on-point configuration [49 CFR 
172.332(a)]. For international transport in accordance with the IMDG 
Code, IBCs are not required to display a UN number on a placard or 
orange panel. They are, however, required to be marked and labeled as a 
package. To comply with both the HMR requirements and IMDG Code 
provisions, some shippers are having difficulty fitting all of the 
various markings, labels, placards in a steel cage IBC. These IBCs are 
constructed with a metal plate and all of the required markings, 
labels, placards do not fit in the allowed space on the metal plate; 
some must be affixed to the metal boards with clips or other holding 
devices which, although secured, run the risk of becoming dislodged 
during transportation. To meet all of the necessary requirements, a 
shipper may place all of the following items on the IBC: A placard with 
the UN number; a hazard label; the proper shipping name and UN number; 
and the GHS product labeling requirements. Shippers generally do not 
use the UN number on the orange panel because this configuration is too 
large for the metal plate.
    For international harmonization, we are proposing to revise Sec.  
172.336 by adding a new paragraph (d) to indicate that when a bulk 
packaging is labeled instead of placarded in accordance with Sec.  
172.514(c), identification numbers may be displayed in accordance with 
Sec.  172.301(a)(1). Additionally, we are proposing to revise Sec.  
172.514(c)(4) to indicate that IBCs that are labeled on two opposite 
sides rather than placarded, are authorized to display the proper 
shipping name and UN number in lieu of displaying the UN number on a 
placard, orange panel, or white square-on-point configuration.

G. HMT Revisions

    In this NPRM, PHMSA is proposing a number of revisions to the 
Hazardous Materials Table (HMT; Sec.  172.101). Proposed changes to the 
HMT will appear under two sections of the Table, ``add,'' and 
``revise.'' Proposed amendments to the HMT for the purpose of 
harmonizing with international standards include, but are not limited 
to, the following:
     Section 172.101(c) provides instruction on the use of the 
Column (2) list of hazardous materials descriptions and proper shipping 
names in the HMT. Included in paragraph (c)(2) is instruction on use of 
the word ``or.'' The word ``or'' in italics indicates that there is a 
choice of terms in the sequence that may be used as the proper shipping 
name or as part of the proper shipping name. We are clarifying this 
provision by proposing further instruction on the use of the word 
``or.'' For clarification, we are proposing to include examples to 
indicate that the term ``or'' authorizes the use of either the first or 
the second term in the description of the hazardous materials in the 
proper shipping name. For example, the entry ``Carbon dioxide, solid or 
Dry ice'' means that either ``Carbon dioxide, solid'' or ``Dry ice'' 
may be used as the proper shipping name; and, the entry ``Articles, 
pressurized pneumatic or hydraulic'' means that either ``Articles, 
pressurized pneumatic'' or ``Articles, pressurized hydraulic'' may be 
used as the proper shipping name.
     The entries for ``Formaldehyde, solutions'' and 
``Formalin'' are sometimes used incorrectly. Formalin is specifically 
defined as a 37% aqueous solution of formaldehyde. A 10% formalin 
solution and 10% formaldehyde solution are not the same materials for 
transport purposes. Many diagnostic and biological samples are 
transported by commercial aircraft in formaldehyde solutions of various 
concentrations. Some samples transported in 10% or greater formaldehyde 
solutions are incorrectly shipped as unregulated materials. Other 
samples transported in 3.7% formaldehyde (10% formalin) solutions are 
incorrectly shipped as fully regulated hazardous materials. A 
formaldehyde solution, with less than 25% but not less than 10% 
formaldehyde is a Class 9 material. In this NPRM, PHMSA is proposing to 
include a new italicized entry in Column (2) of the HMT for 10%-25% 
formaldehyde solutions to enhance understanding of the entries in the 
HMT. This new entry will reference the proper shipping names ``Aviation 
regulated liquid, n.o.s'' and ``Other regulated substances, liquid, 
n.o.s.''
    Formalin is an aqueous solution of formaldehyde and methanol and is 
a Class 3 flammable liquid material. The entry ``Formaldehyde 
solutions, flammable, UN1198'' is intended for use as a hazardous 
materials description for formalin. Note that the less common 
``methanol-free'' formalin is not a Class 3 material. Therefore, for 
further clarification, we are also proposing to revise the 
``Formaldehyde, solutions, flammable entry by adding a new special 
provision 176 to specify that the entry is intended for use as proper 
shipping name for formaldehyde solutions containing methanol.
     In a final rule, under Docket HM-215I, PHMSA revised the 
proper shipping name for ``Regulated medical waste, n.o.s, UN3291'' to 
include ``Clinical waste unspecified, n.o.s.'' and ``(BIO) Medical 
waste, n.o.s.'' under a combined proper shipping name entry. It has 
come to our attention that combining all the proper shipping names 
under the one entry makes it difficult to know the other proper 
shipping names exist. We are proposing to give each proper shipping 
name its own entry in the HMT with a cross reference to the others.
     For the entry ``Battery-powered vehicle or Battery-powered 
equipment, UN3171,'' the stowage category ``A'' entry in Column (10A) 
was inadvertently omitted. We are proposing to reinstate in Column 
(10A) of the HMT stowage category ``A''.
     A new italicized entry ``Permeation devices, containing 
dangerous goods, for calibrating air quality monitoring equipment'' 
will be added referencing Sec.  173.175 to indicate that permeation 
devices that contain dangerous goods and are used for calibrating air 
quality monitoring devices are not subject to

[[Page 60021]]

these requirements provided the conditions are met. This proposed 
revision was submitted to PHMSA as a petition for rulemaking (P-1493) 
from the URS Corp. requesting harmonization with the international 
regulations on the exception for permeation devices in Special 
Provision A41 of the ICAO Technical Instructions.
    Section 172.102 lists a number of special provisions applicable to 
the transportation of specific hazardous materials. Special provisions 
contain packaging requirements, prohibitions, and exceptions applicable 
to particular quantities or forms of hazardous materials. For 
consistency with international regulations, we propose to amend Sec.  
172.102, special provisions, as follows:
     PHMSA is proposing to add a new Special Provision 173 to 
provide a specification package exception for certain adhesives, 
printing inks, printing ink-related materials, paints, paint- related 
materials, and resin solution which are assigned to ``Environmentally 
hazardous substances, liquid, n.o.s., UN3082.'' This is consistent with 
an exception recently adopted within the UN Model Regulations on the 
Transport of Dangerous Goods. The exception adopted by the UN was an 
expansion of the current packing provision PP1 of Packing Instruction 
P001 of the UN Model Regulations and provides that metal or plastic 
packaging for substances of Packing Groups II and III in quantities of 
5 liters or less per packaging are not required to be packed in 
specification packaging when transported under specific conditions. In 
the HM-215J final rule published January 4, 2010 (75 FR 63), PHMSA 
indicated that it was evaluating the adoption of these provisions. 
PHMSA has completed this review and is proposing to adopt the provision 
on the basis that environmentally hazardous paints, adhesives, printing 
inks, etc. pose a lesser degree of risk than flammable and corrosive 
paints which are already provided this exception in the HMR.

H. Hazard Communication

    Section 172.203(c) provides additional shipping paper description 
requirements. PHMSA received a petition for rulemaking (P-1456) from 
the AAR to suggest that a shipping paper be required to include a 
notation for shipments of non-odorized liquefied petroleum gas (LPG). 
Most LPG shipments contain an odorant. Thus, in the event of an 
accident involving LPG, emergency responders may assume that no LPG is 
leaking if they cannot detect an odor. To ensure that emergency 
responders are made aware that a shipment of LPG is not odorized, PHMSA 
proposes to revise Sec.  172.203(c) to require a notation that the LPG 
shipment does not contain an odorant.
    Section 172.324 provides additional marking requirements for 
hazardous materials in non-bulk packaging. For clarification purposes, 
in this NPRM, PHMSA proposes to amend this section to require a package 
containing a limited quantity that also meets the definition for a 
hazardous substance to be marked with the name of the hazardous 
substance on the package, in parentheses, in association with the 
proper shipping name or the identification number, as applicable.
    Section 172.336 requires identification numbers to be displayed on 
either orange panels or a plain white square-on-point display 
configuration on transport vehicles and freight containers carrying 
hazardous materials. In a petition for rulemaking (P-1392), Vinings 
Industries, Inc., has noted that given the size of bulk packaging 
covered by the placard-to-label exception and the fact that these 
packagings are generally transported in closed vehicles, the same logic 
used to justify a small display of the hazard identity (e.g., labels 
instead of placards) would support a small, more flexible, display of 
the identification number. PHMSA agrees that the petition has merit. 
Therefore, in this NPRM, PHMSA proposes to revise Sec.  172.336 by 
adding new paragraph (d) to allow the use of smaller identification 
markings when a bulk packaging is labeled instead of placarded.
    Section 172.432 describes the Infectious Substance label size and 
color and provides an illustration of how it must appear. References to 
the Centers for Disease Control (CDC) are no longer required on this 
label. Therefore, we are proposing to remove the text that refers to 
the CDC on the label. (In U.S.A. Notify Director--CDC, Atlanta, GA 1-
800-232-0124.) We are allowing three years from the effective date of 
the final rule to use up existing stocks.
    Section 172.446 describes the Class 9 label specifications, 
including size, color, and an illustration of how it must appear. The 
Class 9 label specifications illustrated in the HMR is different from 
that in the United Nations (UN) and all of the modal regulations in 
that it features a thin, horizontal line running across the label at 
its midpoint (just at the bottom of the vertical black bars). There is 
no similar line in the UN or other international standards. Some 
shipments are being delayed and required to be relabeled by European 
carriers due to this difference in the Class 9 label specifications. In 
an effort to avoid continued frustrated or delayed shipments, in this 
NPRM, PHMSA proposes to revise the Class 9 label specifications by 
removing the horizontal line running across the label at its midpoint. 
We are allowing three years from the effective date of the final rule 
to use up existing stocks.
    Section 172.519 establishes general specifications for placards. 
Paragraph (c)(1) states that each placard must measure at least 273 mm 
(10.8 inches) on each side and must have a solid line inner border 
approximately 12.7 mm (0.5 inches) from each edge. For international 
harmonization, we are proposing to authorize the use of placards 
measuring from 250 mm (9.84 inches) on each side and having a solid 
line inner border approximately 12.7 mm (0.5 inches) from each edge.

I. Exclusive Use Vehicles for Regulated Medical Waste (RMW)

    Section 173.134 establishes definitions and exceptions for 
infectious substances. Paragraph (c)(2) requires RMW that contains 
Category B cultures and stocks to be transported on a vehicle ``used 
exclusively'' to transport RMW. In a letter of interpretation issued on 
March 19, 2007 (Ref. No. 07-0057), PHMSA clarified that the exception 
in Sec.  173.134(c)(2) applies to their shipping scenario when 
transporting the various types of medical waste as described below. 
PHMSA is proposing to revise Sec.  173.134(c)(2) to incorporate the 
clarifications from the March 19, 2007 letter of interpretation. 
Specifically, PHMSA is clarifying that the following materials may be 
transported on a vehicle used exclusively to transport RMW: (1) Plant 
and animal waste regulated by the Animal and Plant Health Inspection 
Service (APHIS); (2) waste pharmaceutical materials; (3) laboratory and 
recyclable wastes; (4) infectious substances that have been treated to 
eliminate or neutralize pathogens; (5) forensic materials being 
transported for final destruction; (6) rejected or recalled health care 
products; and (7) documents intended for destruction in accordance with 
Health Insurance Portability and Accountability Act of 1996 (HIPAA) 
requirements.

J. Fireworks

    Section 173.56 specifies the requirements for classification and 
approval of new explosives, including fireworks in Sec.  173.56(j). The 
section incorporates by reference the APA Standard 87-1 for classifying 
and approving fireworks. The text of

[[Page 60022]]

Sec.  173.56(j) permits the use of APA Standard 87-1 for determining 
fireworks classification as Division 1.3 or 1.4 explosive materials. 
The APA standard is also used to classify a pyrotechnic device as 1.1G. 
Therefore, we are proposing to delete the words ``Division 1.3 and 
1.4'' in the introductory paragraph so that the sentence reads, 
``Fireworks may be classed and approved by the Associate Administrator 
without prior examination and offered for transportation if the 
following conditions are met:''

K. Explosives

    Section 173.60 provides general packaging requirements for shipping 
Class 1 (explosive) materials. In a petition for rulemaking (P-1527), 
Mr. Alexander Fucito, the petitioner, asks PHMSA to revise the HMR to 
allow flexibility in testing and preparation of unpackaged shipments 
consisting of large and robust explosive articles. The petitioner 
contends that the current thermal stability and drop test requirements 
provided by Test Series 4 of the UN Manual of Tests and Criteria are 
unsafe and pose an unrealistic burden for persons who transport these 
articles. The petitioner asks PHMSA to revise Sec.  173.60(b) to allow 
large and robust foreign munitions to be transported in the original, 
manufacturer provided, shipping configuration.
    Section 173.60(b)(14) contains the same language as the footnote in 
Packaging Instruction 130 for named UN numbers in the UN 
Recommendations, Paragraph 4.1.5.15. However, there is a second 
paragraph to Paragraph 4.1.5.15 that has not yet been incorporated into 
the HMR. That paragraph reads: ``Where such large explosive articles 
are as part of their operational safety and suitability tests are 
subjected to test regimes that meet the intentions of these Regulations 
and such tests have been successfully undertaken, the competent 
authority may approve such articles to be transported under these 
Regulations.'' PHMSA is proposing to add modified text of this 
paragraph from the 15th Edition of the UN Recommendations to Sec. Sec.  
173.60(b)(14) and 173.62(c) Packing Instruction 130 in the Table of 
Packing Methods to provide greater harmonization and account for the 
concerns expressed by Mr. Fucito in Petition P-1527.

L. Rail Transportation of Hazardous Materials

    Sections 174.55(a); 174.101(o)(2)(3); 174.112(c)(3), and 
174.115(b)(3) establish general handling and loading requirements for 
the transportation of hazardous materials by rail. The Bureau of 
Explosives (BOE), part of the AAR, was founded in 1907 by the railroad 
industry to serve as a self-policing agency to promote the safe 
transportation of explosives and other hazardous materials. The BOE 
wrote some of the first hazardous materials regulations which were 
subsequently adopted and expanded upon by the Interstate Commerce 
Commission (ICC) and later the U.S. Department of Transportation. A 
number of BOE publications are referenced in the HMR for bulk and non-
bulk shipments of hazardous materials.
    Several of the BOE publications focus on the safe transportation of 
non-bulk packages of hazardous materials in trailer-on-flatcar service, 
including BOE Pamphlet No. 6, Approved Methods for Loading and Bracing 
Carload and Less Than Carload Shipments of Explosives and Other 
Hazardous Materials; Pamphlet No. 6A, Approved Methods for Loading and 
Bracing Carload Shipments of Military Ammunition and Explosives; and 
BOE Pamphlet 6C, Approved Methods for Loading and Bracing Trailers and 
Less-Than-Trailer Shipments of Explosives and Other Dangerous Articles 
Via Trailer-on-Flat-car and Container-on-Flat-car. Pamphlets 6 and 6A 
were last updated in 1976.
    With the increasing use of intermodal methods as the preferred 
means of shipping non-bulk packages of hazardous materials, the AAR 
subsequently issued the Intermodal Loading Guide for Products in Closed 
Trailers and Containers (Guide), replacing BOE Pamphlet 6C, Pamphlet 
No. 45, and Circular No. 43-C. This Guide was issued in 1995. Despite 
the industry change, BOE Pamphlets 6 and 6A remain in effect and are 
referenced in the HMR.
    The Intermodal Loading Guide for Products in Closed Trailers and 
Containers is intended to be a comprehensive manual for loading 
commodities in trailers and containers for shipment by rail. 
Incorporated into this Guide are AAR Circular 43-D, Rules for Governing 
the Loading, Blocking and Bracing of Freight in Closed Trailers and 
Containers for TOFC/COFC Service, the approved loading and bracing 
information contained in AAR Bureau of Explosives Pamphlet 6C, and AAR 
Pamphlet No. 45 on general loading in closed trailers and containers.
    The ``General Rules'' as contained in Circular 43-D are issued by 
the Association of American Railroads, and have been formulated for the 
purpose of providing safe methods of loading in closed trailers or 
containers. During normal transportation, trailers and containers may 
move in a backwards or reverse direction for all or part of their 
journey. Dynamic forces may shift an unsecured load or cause lading to 
exert excessive pressure against the front, rear doors, or sides of the 
trailer or container. Lading that is improperly blocked and braced can 
shift and cause the vehicle to lean on the flatcar. A leaning vehicle 
can cause a sideswipe or contribute to a derailment. The loading 
methods, as described in the Guide, are approved by the Damage 
Prevention and Freight Claim Committee and are minimum industry 
acceptance standards that have been evaluated and approved by the 
member railroad carriers serving on the committee.
    PHMSA is proposing to revise Part 174 to properly reflect the 
current Guide by replacing references to Pamphlet 6C in Sec. Sec.  
174.55(a); 174.101(o)(2)(3); 174.112(c)(3); and 174.115(b)(3). At each 
of these section references, places where Pamphlets 6 and 6C are 
referenced, Pamphlet 6 will remain and Pamphlet 6C will be replaced by 
the Intermodal Loading Guide for Products in Closed Trailers and 
Containers.

M. Rail Transloading Operations

    Section 174.67 provides general requirements for rail tank car 
transloading operations for hazardous materials. In a petition for 
rulemaking (P-1481), Musket Corporation requests several revisions to 
this section. Specifically, the petitioner asks for clarification of 
manhole opening requirements, suggesting that the requirement for 
manhole covers to be opened during transloading operations conflicts 
with procedures to contain or control vapors during transloading or 
unloading operations where venting is accomplished through vapor valves 
rather than manhole openings. Additionally, certain companies 
pneumatically unload tank cars, and this process cannot be accomplished 
with the manhole cover open. In addition, the petitioner notes that the 
language requiring manhole covers to be opened during this process 
conflicts with regulations from other regulatory bodies, such as the 
EPA National Emission Standards for Hazardous Air Pollutants for Source 
Categories, Subpart PP. Finally, the petitioner suggests that this 
requirement conflicts with a number of air quality control permits that 
restrict the amount of emissions companies can vent into the 
atmosphere.
    PHMSA agrees that the petition has merit. Therefore, in this NPRM, 
PHMSA

[[Page 60023]]

proposes to revise Sec.  174.67 to clarify and further address closed 
systems in transloading operations. PHMSA proposes that for closed 
systems, before a manhole cover or outlet valve cap is removed from a 
tank car, the car must be relieved of all interior pressure by cooling 
the tank with water or by venting the tank by raising the safety valve 
or opening the dome vent at short intervals. However, if venting to 
relieve pressure will cause a dangerous amount of vapor to collect 
outside the car, venting and unloading must be deferred until the 
pressure is reduced by allowing the car to stand overnight, otherwise 
cooling the contents, or allow venting to a closed collection system. 
These precautions are not necessary when the car is equipped with a 
manhole cover that hinges inward or with an inner manhole cover that 
does not have to be removed to unload the car, and when pressure is 
relieved by piping vapor into a condenser or storage tank.

N. Cylinders

    Section 173.302 provides the requirements for filling cylinders 
with non-liquefied (permanent) compressed gases. Section 173.304 
provides the requirements for filling cylinders with liquefied 
compressed gases. In a final rule under Docket HM-224B, PHMSA added DOT 
39 cylinders to the types of cylinders authorized for the 
transportation of compressed oxygen and other oxidizing gases aboard 
aircraft in Sec. Sec.  173.302 and 173.304. It has come to our 
attention that when we included DOT 39 cylinders with the other types 
of cylinders, we did not recognize that DOT 39 cylinders have a 
different pressure relief device (PRD) setting tolerance than the other 
authorized cylinders. Therefore, in this NPRM, we are proposing to 
revise paragraph (f)(2) of Sec.  173.302 and paragraph (f)(2) of Sec.  
173.304 to prescribe the PRD setting tolerance for DOT 39 cylinders.
    Section 178.35 contains general requirements for specification 
cylinders. Paragraphs (c)(4) and (g) require the inspector to complete 
certain reports containing the applicable information listed in the 
Compressed Gas Association publication, CGA C-11 ``Recommended 
Practices for Inspection of Compressed Gas Cylinders at Time of 
Manufacture'' and any additional information or markings required by 
the applicable specification. These documents must be provided to the 
cylinder manufacturer and, upon request, to the purchaser. PHMSA 
compliance inspections reveal sometimes these reports are completed 
several months after the cylinders are sold. PHMSA is proposing to 
consolidate the inspector's reports requirements into paragraph (c)(4). 
A new paragraph (g) would be added to clarify the cylinder manufacturer 
must have all completed test and certification reports available at or 
before the time of delivering the cylinders to the purchaser. In 
addition, the manufacturer's report retention requirement in paragraph 
(h) would be relocated to paragraph (g) and paragraph (h) would be 
removed.
    Section 178.37 sets forth manufacturing specifications for DOT 3AA 
and 3AAX seamless steel cylinders, in addition to requirements set 
forth in Sec.  173.35. Paragraphs (j) and (l) specify the flatting test 
procedures and rejection criteria respectively. PHMSA received a 
petition (P-1513) from Worthington Cylinders Corp. requesting a 
revision to Sec.  178.37 to authorize the use of an alternate bend test 
conducted in accordance with the procedures in ASTM E 290-97a (2004) 
for DOT 3AA and 3AAX cylinders. The petitioner states that the proposed 
bend test demonstrates ductility of the cylinder with the same accuracy 
as the flattening test at a lower cost to cylinder manufacturers. We 
agree with the petitioner that the use of the bend test is acceptable 
for cylinders. Therefore, we are proposing to revise paragraphs (j) and 
(l) in Sec.  178.37 to authorize the use of the bend test.
    Section 178.71 contains design and manufacturing specifications for 
UN pressure receptacles, including the specification marking 
requirements. PHMSA is proposing to relax the requirements in paragraph 
(o)(6) of the HMR to allow the use of a proof pressure test. The ISO 
7866 and 9809 standards permit either the proof pressure test or 
volumetric expansion test to be used. The volumetric expansion test 
measures the cylinder's elastic expansion and assures the cylinder 
received a proper heat treatment. However, the ISO standards also 
require each cylinder be subjected to a hardness test and a 
comprehensive shear wave ultrasonic examination (UE). PHMSA believes 
the combination of the proof pressure test, hardness test, and UE 
should provide adequate assurance that each cylinder received a proper 
heat treatment. In addition, PHMSA is revising paragraph (c)(1) to 
include the proof pressure test.

O. Cargo Tanks

    Section 178.345-1(i)(2) establishes general design and construction 
requirements for DOT 406 (Sec.  178.346), DOT 407 (Sec.  178.347), and 
DOT 412 (Sec.  178.348) cargo tank motor vehicles. Previous 
interpretations of this section indicate that a vent must be located as 
close to the top centerline of the tank as practicable and the drain as 
close to the bottom centerline of the tank as practicable. Through 
discussions with industry and enforcement personnel, we have determined 
that requiring an opening on top of a cargo tank to vent vapors that 
accumulate in the void space may not be the best practice. In many 
instances, such as with gasoline, the vapors are heavier than air and 
it is not necessary to require cargo tanks to be vented to the 
atmosphere through a vent located near the top centerline. Vapors 
heavier than air escape through the drain opening. In addition, venting 
voids through the top of a cargo tank may cause premature corrosion of 
the void space as a result of water penetration. Allowing the vent to 
be plugged will also make it easier to identify when there is actually 
a leak in the bulkhead. Hazardous materials leaking from the drain will 
cause an obvious stain/dirt buildup that, with the top vent plugged, 
cannot be a result of water draining from the top vent and must be a 
leaking bulkhead.
    To address this problem, in this NPRM, PHMSA proposes to revise 
Sec.  178.345-1 to clearly indicate that any void area within the 
connecting structure of a cargo tank between double bulk heads must be 
vented to the atmosphere through the required drain or through a 
separate vent. The proposed revision will ensure that void spaces in 
the connecting structure of DOT 406, 407, and 412 cargo tank motor 
vehicles are properly vented to allow for the escape of product vapors. 
This change also promotes the longevity of the tanks by clarifying that 
it is not necessary to place a vent in the top of a void space where 
rain water can easily infiltrate the void space and cause corrosion if 
the product vapors are heavier than air and will vent through the 
drain. This clarification ensures that the vent is located in the most 
appropriate location for the material being transported. However, we 
urge manufacturers to continue allowing for access to the void space 
through the top of the tank. In addition, we suggest the continued 
placement of inspection openings of sufficient size and number to 
permit proper visual internal inspection of the connecting structure.
    Section 178.320 includes a definition for ``cargo tank wall''--the 
cargo tank wall includes those parts of the cargo tank that make up the 
primary lading retention structure, including shell, bulkheads, and 
fittings and, when closed, yield the minimum volume of the cargo tank 
assembly. Confusion has

[[Page 60024]]

resulted from the use of ``cargo tank assembly'' in the definition. The 
term ``cargo tank assembly'' as used in that definition, is simply 
referring to the completed cargo tank motor vehicle. Since ``cargo tank 
assembly'' is synonymous with ``cargo tank motor vehicle,'' a term that 
is defined in Sec.  178.320, we are proposing to replace the term 
``cargo tank assembly'' with ``completed cargo tank motor vehicle.''
    Section 178.347-1(c) requires a cargo tank with a MAWP greater than 
35 psig and each tank designed to be loaded by vacuum to be constructed 
and certified in accordance with the ASME Code. The wording used for 
this requirement has resulted in some confusion. Generally, the ``and'' 
would mean that a tank would need to be both designed to be loaded by 
vacuum and have a MAWP greater than 35 psig to be subject to the 
construction and certification requirements of the ASME Code. This is 
not the intent of the current requirement. Therefore, we are proposing 
to clarify the requirement to clearly state that a cargo tank motor 
vehicle with a MAWP greater than 35 psig or designed to be loaded by 
vacuum must be constructed and certified in accordance with the ASME 
Code, in line with our original intent.
    The introductory text to Sec.  178.347-1(d) requires tanks with a 
MAWP of 35 psig or less to be constructed in accordance with the ASME 
Code. We are clarifying this requirement to indicate, in line with 
Sec.  178.347-1(b), cargo tanks that are designed to withstand full 
vacuum but have a MAWP of 35 psig or less and are not designed to be 
loaded by vacuum are only required to be constructed in accordance with 
the ASME Code. They do not require certification under the ASME Code.
    Section 178.347-4(b) states that vacuum relief devices are not 
required for cargo tanks designed to be loaded by vacuum or built to 
withstand full vacuum. We are revising this section to make a clear 
distinction between the phrase ``designed to be loaded by vacuum'' and 
``built to withstand full vacuum.'' If a cargo tank manufacturer 
designs a cargo tank ``to withstand full vacuum'' it is only required 
to be constructed in accordance with the ASME Code, not certified. 
However, a cargo tank that is loaded by vacuum is required to be 
constructed and certified in accordance with the ASME Code. The intent 
of the final user of the equipment will determine whether a tank will 
be vacuum loaded and required to be a certified (``U'' stamped) vessel. 
A manufacturer may design a tank to withstand full vacuum to ensure 
that it is sufficiently robust to endure the stresses associated with 
transportation of hazardous materials, including changes in product 
temperatures and the vacuum created during unloading. Designing a tank 
to withstand full vacuum does not mean that the tank is actually 
equipped to or used in vacuum service.
    Section 180.417(b)(1)(v) requires the minimum thickness of the 
cargo tank shell and heads to be noted on inspection and test reports 
when the cargo tank is thickness tested in accordance with Sec.  
180.407(d)(4), Sec.  180.407(e)(3), Sec.  180.407(f)(3), or Sec.  
180.407(i). It has come to our attention that the reference to Sec.  
180.407(d)(4), which addresses thickness testing of ring stiffeners or 
other appurtenances, is incorrect. After reviewing the final rule to 
Docket HM-213 (68 FR 19257; April 18, 2003) and the response to appeals 
(68 FR 52363; September 3, 2003), the rules that established current 
paragraph (b)(1), it is apparent that the correct reference for this 
section should be Sec.  180.407(d)(5), which refers to thickness 
testing of corroded or abraded areas of the cargo tank wall. Therefore, 
we are proposing to remove the reference to Sec.  180.407(d)(4) in 
Sec.  180.417(b)(1)(v) and replace it with the reference to Sec.  
180.407(d)(5).

P. Permeation Devices

    Permeation devices are used to calibrate air quality monitoring 
equipment. These devices may contain extremely small quantities of 
hazardous materials and are subject to Special Provision A41 when 
transported by air under the International Civil Aviation 
Organization's Technical Instructions for the Safe Transport of 
Dangerous Goods by Air (ICAO TI). Special Provision A41 authorizes the 
transportation of permeation devices on aircraft provided stringent 
safety requirements are met. International shippers of these devices 
are able to take advantage of this special provision. However, no 
similar provision exists in the HMR. Therefore, in response to a 
petition (P-1493) from the URS Corporation, and to facilitate domestic 
and international transportation, we are proposing to add a new Sec.  
173.175 on Permeation devices in Part 173 that will authorize the 
transportation of permeation devices by aircraft in the same manner as 
is provided in Special Provision A41 of the ICAO TI.

Q. Alcoholic Beverage Exception

    Section 173.150 provides for exceptions from regulation for Class 3 
flammable liquid material. Specifically, Sec.  173.150(d) provides 
exceptions for alcoholic beverages. An alcoholic beverage (as defined 
in 27 CFR 4.10 and 5.11) meeting one of three conditions outlined in 
Sec.  173.150(d) is not subject to the requirements of the HMR for a 
Class 3 flammable liquid material. One of the conditions provides that 
the alcoholic beverage must be in an inner packaging of 5 L (1.3 
gallons) or less, and for transportation on passenger aircraft, must 
conform to Sec.  175.10(a)(4) of the HMR as checked or carry-on baggage 
(see Sec.  173.150(d)(2)). This provision for transportation by 
passenger aircraft was added in a final rule published on June 21, 2001 
(HM-215D; 66 FR 33316) to clarify that alcoholic beverages carried by 
passengers or crewmembers must conform to the air passenger and 
crewmember exception provided in Sec.  175.10(a)(4). In the final rule, 
we stated:

We are revising [Sec.  173.150(d)] by clarifying that alcoholic 
beverages containing over 24% alcohol by volume are not excepted 
from regulation when transported by a passenger or crewmember on 
passenger-carrying aircraft except as provided in [Sec.  
175.10(a)(4)].

    This provision for transportation by passenger aircraft was not 
intended to restrict cargo transport of an alcoholic beverage in the 
same manner as when carried by passengers or crewmembers. Therefore, in 
this NPRM, PHMSA is proposing to clarify Sec.  173.150(d)(2) by 
specifying that the condition for transportation on passenger aircraft 
applies to an alcoholic beverage carried by passengers or crewmembers 
and that an alcoholic beverage (of any concentration of alcohol by 
volume) in an inner packaging of 5 L (1.3 gallons) or less transported 
as cargo on a cargo aircraft or a passenger aircraft is not subject to 
the requirements of the HMR.

R. Special Permits

Special Permit Application
    Procedures for applying for special permits are established in 49 
CFR part 107.
    In a notice of proposed rulemaking under HM-233B (75 FR 43230; July 
23, 2010), PHMSA proposed to incorporate new requirements for 
application of a new special permit, party status to a special permit 
and renewal of a special permit issued by PHMSA under 49 CFR part 107, 
subpart B (Sec. Sec.  107.101 to 107.127). A special permit sets forth 
alternative requirements--or a variance--to the requirements in the HMR 
in a way that achieves a level of safety at least equal to the level of 
safety required under the regulations or that is consistent with the 
public interest. Congress expressly authorized DOT to issue these 
variances in the Hazardous

[[Page 60025]]

Materials Transportation Act of 1975. In this notice, we are proposing 
to incorporate an additional requirement for each applicant to identify 
whether they are acting as a shipper or a carrier under Sec. Sec.  
107.105, 107.107 and 107.109.
    PHMSA conducts a fitness review of each company requesting action 
on a special permit including applications for a new special permit. 
Current criteria from the Federal Motor Carrier Safety Administration 
(FMCSA) require a Satisfactory rating based on a Compliance Review 
(with a few exceptions). FMCSA conducts a review of any motor carrier 
that does not meet their criteria. Their criteria does not, however, 
apply to a company that ships (offers) hazardous materials under the 
terms of a special permit and does not perform any carrier function. 
The ability of PHMSA to identify a company as a shipper (offeror), a 
carrier, or both will facilitate the fitness review process. Therefore, 
we are proposing to add a requirement for each applicant to identify 
their transport function under Sec. Sec.  107.105, 107.107, and 
107.109.
Lab Packs
    In a final rule under docket HM-233A (75 FR 20275; May 14, 2010), 
PHMSA adopted amendments to eliminate the need for DOT-SP 13192. This 
special permit authorized certain hazardous materials packaged in lab 
packs conforming to Sec.  173.12(b) to be excepted from segregation 
requirements in parts 174, 176, and 177 of the HMR provided the 
materials conform to the segregation requirements in Sec.  173.12(e). 
We first issued DOT-SP 13192 in 2001 to consolidate earlier special 
permits that allowed different combinations of incompatible materials, 
including waste materials, to be transported together on the same 
transport vehicle and it has proven to be a safe method of 
transportation. In the final rule, we inadvertently left out a proposal 
to except lab packs from the requirement in Sec.  172.203(i)(2) of the 
HMR which requires the minimum flashpoint if it is 60 [deg]C (140 
[deg]F) or below (in [deg]C closed cup (c.c.)) in association with the 
basic description when transported by water. This requirement may be 
overly restrictive for a lab pack which may contain a number of 
hazardous materials with different flashpoints. Instead, for those 
materials with a flashpoint of 61 [deg]C or less, DOT-SP 13192 
authorized the identification of the lowest flashpoint for all 
hazardous materials in the lab pack as a range of less than 23 [deg]C 
or 23 [deg]C to 61 [deg]C. In this NPRM, we propose to incorporate this 
exception for lab packs transported by cargo vessel thus eliminating 
the need for DOT-SP 13192.
    In this same final rule, PHMSA adopted exceptions from segregation 
for certain waste hazardous materials in lab packs and non-bulk 
packagings consistent with the provisions of DOT-SP 13192. These 
exceptions are referenced in the segregation requirements for public 
highway transport in Sec.  177.848(c). In making the conforming 
amendment to Sec.  177.848(c), we inadvertently prohibited all 
cyanides, cyanide mixtures and solutions from being stored, loaded and 
transported with acids. The prohibition applies only to those cyanides, 
cyanide mixtures and solutions that would generate hydrogen cyanide 
when mixed with acids. Therefore, we are proposing to correct this 
section by clarifying the segregation conditions.

S. Batteries Containing Sodium or Cells Containing Sodium

    The HMR currently authorize the transport of sodium cells and 
batteries under the descriptions ``Batteries containing sodium'' or 
``Cells containing sodium'' (UN3292). Section 173.189 limits the types 
of hazardous materials which may be contained in such batteries to 
sodium, sulfur and polysulfides. Over time, other sodium battery 
chemistries have emerged and become more widely used and commonly 
transported. For example, some batteries with sodium metal chloride 
chemistries use sodium tetrachloroaluminate as a secondary electrolyte. 
In this NPRM, PHMSA is proposing to expand the list of authorized 
chemistries to include all sodium compounds provided they meet the 
criteria specified in Sec.  173.189. This amendment, if adopted, will 
align the HMR with the 17th Edition of the UN Model Regulations 
effective January 1, 2013.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

    This NPRM 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.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed rule is not considered a significant regulatory 
action under section 3(f) Executive Order 12866 and, therefore, was not 
reviewed by the Office of Management and Budget (OMB). The proposed 
rule is not considered a significant rule under the Regulatory Policies 
and Procedures order issued by the U.S. Department of Transportation 
(44 FR 11034).
    In this notice, we propose to amend miscellaneous provisions in the 
HMR to clarify the provisions and to relax overly burdensome 
requirements. We are also responding to requests from industry 
associations to update and add references to standards that are 
incorporated in the HMR. PHMSA anticipates the proposals contained in 
this rule will have economic benefits to the regulated community. This 
NPRM is designed to increase the clarity of the HMR, thereby increasing 
voluntary compliance while reducing compliance costs. This NPRM also 
proposes to update a number of incorporations by reference to permit 
the industry to utilize the most recent versions of industry consensus 
standards. Incorporation of material by reference reduces the 
regulatory burden on persons who offer hazardous material for 
transportation and persons who transport hazardous materials in 
commerce. Industry standards developed and adopted by consensus are 
accepted and followed by the industry; thus, their inclusion in the HMR 
assures that the industry is not forced to comply with a different set 
of standards to accomplish the same safety goal.
    Further, the addition of an exception for permeation devices 
containing hazardous materials used for calibrating air quality 
monitoring devices for consistency with the current exception in the 
international regulations for these devices, as well as adding a new 
italicized entry to the HMT for ``Permeation devices'' referencing 
Sec.  173.175, will result in reduced compliance costs by reducing 
regulatory compliance. This exception will also promote international 
harmonization. The proposal to provide an exception to labeling for 
consolidation bins used to transport hazardous materials by motor 
carrier will reduce compliance costs.
    Additionally, this NPRM proposes to add a new Special Provision 173 
to provide a specification package exception for certain adhesives, 
printing inks, printing ink-related materials, paints, paint-related 
materials and resin solution assigned to ``Environmentally hazardous 
substances, liquid, n.o.s., UN 3082.'' Overall, the proposals in this 
NPRM should reduce regulatory burdens on the regulated community

[[Page 60026]]

while increasing flexibility and transportation options.

C. Executive Order 13132

    This proposed rule was analyzed in accordance with the principles 
and criteria contained in Executive Order 13132 (``Federalism''). This 
proposed rule would preempt state, local and Indian tribe requirements 
but does not propose any regulation that has substantial direct effects 
on the states, the relationship between the national government and the 
states, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The federal hazardous material transportation law, 49 U.S.C. 
5125(b)(1), contains an express preemption provision (49 U.S.C. 
5125(b)) preempting state, local, and Indian tribe requirements on 
certain covered subjects. Covered subjects are:
    (i) The designation, description, and classification of hazardous 
materials;
    (ii) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous materials;
    (iii) The preparation, execution, and use of shipping documents 
related to hazardous materials and requirements related to the number, 
content, and placement of those documents;
    (iv) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous materials; or
    (v) The design, manufacture, fabrication, marking, maintenance, 
reconditioning, repair, or testing of a packaging or container which is 
represented, marked, certified, or sold as qualified for use in the 
transport of hazardous materials.
    This proposed rule concerns the classification, packaging, marking, 
labeling, and handling of hazardous materials, among other covered 
subjects. If adopted, this rule would preempt any state, local, or 
Indian tribe requirements concerning these subjects unless the non-
Federal requirements are ``substantively the same'' (see 49 CFR 
107.202(d) as the Federal requirements.)
    Federal hazardous materials transportation law provides at 49 
U.S.C. 5125(b)(2) that if PHMSA issues a regulation concerning any of 
the covered subjects, PHMSA m