Hazardous Materials; Miscellaneous Amendments, 43510-43532 [2011-17687]

Agencies

• Pipeline and Hazardous Materials Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43510-43532]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17687]



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Vol. 76

Wednesday,

No. 139

July 20, 2011

Part V





Department of Transportation





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Pipeline and Hazardous Materials Safety Administration





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49 CFR Parts 107, 171, 172, et al.





Hazardous Materials; Miscellaneous Amendments; Final Rule

Federal Register / Vol. 76 , No. 139 / Wednesday, July 20, 2011 / 
Rules and Regulations

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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: Final rule.

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SUMMARY: PHMSA is amending the Hazardous Materials Regulations to make 
miscellaneous amendments to update and clarify certain regulatory 
requirements. These amendments are intended to: promote safer 
transportation practices; eliminate unnecessary regulatory 
requirements; finalize outstanding petitions for rulemaking; facilitate 
international commerce; and simplify the regulations. PHMSA anticipates 
that the amendments contained in this rule will generate economic 
benefits to the regulated community.

DATES: Effective Date: This final rule is effective on August 19, 2011.
    Voluntary Compliance Date: Voluntary compliance with all these 
amendments, including those with delayed mandatory compliance, is 
authorized as of July 20, 2011.
    Incorporation by Reference Date: The incorporation by reference of 
publications listed in this final rule has been approved by the 
Director of the Federal Register as of August 19, 2011.

FOR FURTHER INFORMATION CONTACT: Deborah L. Boothe, Standards and 
Rulemaking Branch, (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

A. Notice of Proposed Rulemaking (NPRM)

    On September 29, 2010, PHMSA published a Notice of Proposed 
Rulemaking (NPRM) under this docket HM-218F. (74 FR 16135). The NPRM 
proposed amendments to the Hazardous Materials Regulations (HMR; 49 CFR 
parts 171-180) based on PHMSA initiatives and petitions for rulemaking 
submitted in accordance with 49 CFR 106.95. Most of the amendments 
proposed in the NPRM were intended to provide relief to industry by 
eliminating, revising, clarifying, or relaxing regulatory requirements. 
Below we summarize the changes proposed in the September 29, 2010 NPRM:
     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 proposed to add 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; revise 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 proposed change would 
harmonize the HMR with the current exception in the international 
regulations for these devices.
     Update and clarify various hazard communication 
requirements including: Class 9 label specifications; placard size; IBC 
markings; and Division 6.2 labels.
     Authorize the use of an alternative bend test for DOT 3AA 
and DOT 3AAX steelcylinders.
     Revise Sec.  178.71 to authorize the use of either a proof 
pressure test 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.''

B. Commenters

    The comment period for the NPRM closed on November 29, 2010. Eleven 
different commenters provided comments in response to the NPRM. PHMSA 
received comments from the following companies, and organizations:

 United Parcel Service (UPS)
 Worthington Cylinder Corporation (Worthington)
 Veolia Environmental Services
 Institute of Makers of Explosives (IME)
 PPG Industries, Inc.
 Barlen and Associates, Inc.
 Arrowhead Industrial Services USA, Inc.
 New England Fuel Institute
 Stericycle, Inc.
 Truck Trailer Manufacturers Association (TTMA)
 American Trucking Associations (ATA)

II. Provisions Adopted in This Final Rule and Discussion of Comments

    In this section, PHMSA discusses the changes proposed in the NPRM 
and the comments received in response to the NPRM. Based on an 
assessment of the proposed changes and the comments received, PHMSA 
identifies the provisions that are adopted in this final rule. Also, to 
clearly identify the issues addressed in this final rule, PHMSA 
provides the following list of contents for this section:

A. Updated Incorporations by Reference
B. Definition of ``Person''
C. Consolidation Bins
D. Transitional Provisions
E. Reporting Infectious Substances Incidents

[[Page 43511]]

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 Transloading Operations
M. Cylinders
N. Cargo Tanks
O. Permeation Devices
P. Alcoholic Beverage Exception
Q. Special Permits
R. Lab Packs
S. Batteries Containing Sodium or Cells Containing Sodium
T. Additional Issues Addressed in This Rule

A. Updated Incorporations by Reference

    Generally, PHMSA strives to promote consistency by incorporating 
existing consensus standards into the HMR. Through the ``National 
Technology Transfer and Advancement Act of 1996,'' government agencies 
are directed to use voluntary consensus standards. According to the 
Office of Management and Budget (OMB) Circular A-119, ``Federal 
Participation in the Development and Use of Voluntary Consensus 
Standards and in Conformity Assessment Activities,'' government 
agencies must use voluntary consensus standards whenever practical in 
the development of regulations. Agency adoption of industry standards 
promotes productivity and efficiency in government and industry, 
expands opportunities for international trade, conserves resources, 
improves health and safety, and protects the environment.
    PHMSA actively participates in the development and updating of 
consensus standards through representation on more than 20 consensus 
standard bodies. Section 171.7 lists the matters incorporated by 
reference into the HMR. PHMSA regularly reviews updated consensus 
standards and considers their merit for inclusion into the HMR. Below 
we discuss the consensus standards being considered for adoption in 
this final rule.
    In response to a petition for rulemaking (petition number P-1495; 
Docket Number PHMSA-2007-28054) submitted by IME, 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 IME's 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).
    Currently, we reference Bureau of Explosives (BOE) Pamphlets in 
several sections of the HMR that establish general handling and loading 
requirements for the transportation of hazardous materials by rail 
(e.g., Sec. Sec.  174.55(a); 174.101(o)(2)(3); 174.112(c)(3), and 
174.115(b)(3)) (see Sec.  171.7). The 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 Guide 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 AAR, 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 various directions 
during transport (e.g., forward, backward, side-to-side, etc.). 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.
    In the NPRM, PHMSA clearly indicated that updating the 
incorporation by adding reference to these standards promotes safety 
without imposing significant compliance burdens. The standards have a 
well established and documented safety history. Further, adopting the 
standards will enhance the current level of safety achieved under the 
HMR.
    PHMSA received mostly supportive comments. However, PHMSA received 
one comment from the ATA opposing the incorporation by reference of AAR 
Pamphlet 6C into the HMR. ATA stated, ``ATA opposes the incorporation 
by reference of industry standards where such standards are developed 
without the benefit of formal rulemaking and where such standards are 
not provided to the public free of charge. We note that Pamphlet 6C is 
not available to the public but may be ordered from the Association of 
American Railroads for $120.'' ATA further stated that ``PHMSA should 
first publish the text of the standard in the Federal Register and 
solicit comments on it prior to its incorporation into the HMR. In 
addition, PHMSA should ensure that the specific industry standard 
incorporated into the HMR remains available to the regulated community 
free of charge.'' ATA suggested PHMSA make a copy of the standards 
available on its Web site.

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    PHMSA agrees with the commenter that it would be useful for 
everyone to be able to access these documents. To this end, PHMSA 
continues to research appropriate methods to provide matters 
incorporated by reference to the regulated community. For example, on 
March 1, 2011, PHMSA published an advance notice of proposed rulemaking 
(ANPRM) under Docket No. PHMSA-2005-0019 (HM-241), entitled ``Hazardous 
Materials: Adoption of ASME Code Section XII and the National Board 
Inspection Code.'' The ANPRM considers incorporation by reference of 
the ASME's ``Boiler and Pressure Vessel Code, Section XII'' for the 
design, construction, and certification of cargo tank motor vehicles, 
cryogenic portable tanks and multi-unit-tank car tanks (ton tanks) and 
the National Board of Boiler and Pressure Vessel Inspector's (National 
Board) ``National Board Inspection Code'' as it applies to the 
continuing qualification and maintenance of ASME stamped cargo tank 
motor vehicles, portable tanks, and multi-unit-tank car tanks (ton 
tanks) constructed to standards in ASME Section VII or ASME Section XII 
(76 FR 11191). In the ANPRM, PHMSA notified the public of the 
electronic availability of the ASME ``Boiler and Pressure Vessel Code, 
Section XII'' (2010 Edition) and the National Board's ``National Board 
Inspection Code'' (2007 Edition). Further, PHMSA extended the comment 
period for the ANPRM published on December 23, 2010 (75 FR 80765). 
Moving forward, PHMSA will work to make matters incorporated by 
reference available to the public for review, free of charge, during 
open comment periods.
    As for AAR Pamphlet 6C, PHMSA believes that we can and should adopt 
the standard since the standard provides an enhanced level of safety 
without imposing significant compliance burdens. These materials have a 
well-established and documented safety history. As in the case of ASTM 
E290-97a, this is an alternative and this final rule does not mandate 
the use of this standard. Therefore, at this time, we are adopting all 
of the incorporation by references, including the AAR Pamphlet 6C, as 
proposed.

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, PHMSA proposed 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.
    PHMSA did not receive any comments regarding this amendment; 
therefore, PHMSA adopts this amendment as proposed.

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 materials it contains. 
The 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 suggested that consolidation bins promote 
safety by reducing damage to packages of hazardous materials, improve 
regulatory compliance by ensuring that packages are effectively blocked 
and braced on a vehicle, improve transportation efficiency by 
minimizing handling of numerous small packages, and allow 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 unlabeling 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 packaging 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 the consolidation 
bin be marked with an indication of each hazard class or division 
within it; that 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 that 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 proposed to allow an exception from labeling for 
consolidation bins used for the convenience of a motor carrier. 
However, PHMSA was 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 proposed in the NPRM to require the bin 
to be marked in a manner that indicates it contains a hazardous 
material. We also proposed to incorporate several provisions of the 
special permit, including limiting the size of a consolidation bin to 
less than

[[Page 43513]]

64 cubic feet capacity, so as not to conflict with hazard communication 
requirements for freight containers. We also proposed that the 
consolidation bin must be reusable, made of materials such as plastic, 
wood, or metal. PHMSA was concerned that consolidation bins made of 
cardboard are not of sufficient strength to meet the requirements in 
this proposal. Accordingly, PHMSA requested 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 proposed in the NPRM 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 proposed 
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 
proposed 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).
    PHMSA received comments, from ATA, the UPS, and PPG Industries, 
Inc. regarding this proposed amendment. UPS supports the proposed 
labeling exception for consolidation bins. UPS indicated their 
experience using consolidation bins has been very successful. According 
to UPS, terminals using the bins have experienced zero damage to 
packages contained in the bins, a great improvement compared to UPS's 
efforts to secure these types of packages without consolidations bins. 
UPS supports, and ATA does not object to, proposals that would permit 
marking the bin or using a tag to indicate each hazard class or 
division contained therein, in place of requiring the application of 
individual hazard labels. According to UPS, ``the ability to use such 
consolidation bins without the labeling requirement greatly improves 
and simplifies the processes involved in using the bins.'' However, UPS 
and ATA do not support the proposal to limit the use of consolidation 
bins to a single motor carrier. UPS states `` * * * that this proposed 
limitation potentially removes the safe and beneficial handling 
practices it experiences from application in networks involving motor 
carriers utilizing contracts with other motor carriers to extend 
coverage.''
    UPS indicates that when used for small, unpalletized packages of 
hazardous materials, the consolidation bins significantly reduce 
damages. In light of these benefits, UPS respectfully requests that 
PHMSA reconsider its proposed limitation restricting use of the bins to 
a single motor carrier. UPS states, ``These bins should be available to 
move among motor carriers that collectively, and through contracts, 
make up a comprehensive operating network * * *'' UPS believes that 
``as long as the motor carriers in the network are operating under 
contract to the main motor carrier company, the drivers working for the 
vendor carriers are fully informed about bins being used, and are 
advised on how to identify the contents in the bins, interlining can 
successfully be used across the network.'' In addition, ATA commented 
that PHMSA could permit interlining and transfers of consolidation bins 
between carriers by including a requirement to inform the subsequent 
carrier on the use of the consolidation bin and its contents.
    PPG Industries supports the use of consolidation bins by motor 
carriers to consolidate small packages of hazardous materials as 
proposed. PPG states, ``The benefits of package consolidation and 
reduced damage would seem to outweigh the lack of display of hazard 
labels on the outside of consolidation bins containing small 
packages.''
    PHMSA agrees with the important safety benefits of providing for 
the use of consolidation bins when transporting hazardous materials by 
motor vehicle. However, we do not agree with commenters who requested 
that the proposed limitation for the use of consolidation bins by a 
single motor carrier be removed. The use of consolidation bins is a 
carrier function. Each carrier operation is unique to that particular 
carrier, as well as their consolidation bins they use for consolidating 
and securing freight. Limiting the use of the consolidation bins to a 
single motor carrier actually enhances safety in handling and 
transporting hazardous materials. In addition, freight transferred 
between carriers may be overpacked to provide the same safety and 
handling benefits. Therefore, we are adopting this amendment as 
proposed.
    PHMSA requested 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 received no comments on 
the use of cardboard and what standards should be established if 
cardboard would be authorized. PHMSA is concerned that consolidation 
bins made of cardboard are not of sufficient strength to meet the 
requirements in this proposal. Therefore, PHMSA is not authorizing the 
use of cardboard consolidation bins. The consolidation bin requirements 
are adopted as proposed.

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 proposed in the NPRM 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. PHMSA proposed 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. PHMSA 
proposed to relocate this transitional provision to Sec.  172.552.
     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. PHMSA proposed 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 appropriate when describing gasoline and ethanol 
mixtures.
    PHMSA did not receive any comments opposing these amendments. 
However, PHMSA received comments from PPG Industries and New England

[[Page 43514]]

Fuel Institute (NEFI) supporting these amendments.
    PHMSA's proposal to move the provision for use of the 5.2 label and 
5.2 placard, conforming to the label and placard specifications in 
effect on December 31, 2006, with a January 1, 2011 transition date, 
except for highway transportation, is now outdated. Therefore, PHMSA is 
removing the provision authorizing use of the 5.2 label and 5.2 placard 
in effect on December 31, 2006 for all modes except highway until 
January 1, 2011 since the date has now passed. The use of the 5.2 
placard in effect on December 31, 2006, is authorized for use by 
highway until January 1, 2014. With the exception of the transitional 
provision regarding the 5.2 label with the January 1, 2011 transition 
date discussed above, PHMSA is adopting this amendment as proposed.
    Additionally, PHMSA's proposal to move the provision to a Special 
Provision 178 for the use of proper shipping name ``Gasohol gasoline 
mixed with ethyl alcohol, with no more than 20 percent alcohol'' which 
went into effect on January 28, 2008, may continue to be used until 
October 1, 2010. This provision authorizing the use of the proper 
shipping name ``Gasohol gasoline mixed with ethyl alcohol, with no more 
than 20 percent alcohol'' is now out dated since the October 1, 2010 
transition date has passed. Therefore, we are not adopting this 
amendment as proposed. As of October 1, 2010, the new 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 appropriate.

E. Reporting Infectious Substances Incidents

    Section 171.15 establishes requirements for immediate notice of 
incidents involving certain hazardous materials. The Centers for 
Disease Control and Prevention is no longer accepting calls providing 
notice of incidents involving an infectious substance (etiologic 
agent). In the NPRM, PHMSA proposed 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 proposed 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.''
    PHMSA did not receive any comments opposing this amendment; 
therefore, this deletion is adopted as proposed.

F. Hazard Communication for Intermediate Bulk Containers (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 that 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. To 
comply with both the HMR and IMDG Code, some shippers are having 
difficulty fitting all of the various markings, labels, placards on 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, PHMSA proposed in the NPRM 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 proposed 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.
    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 packaging 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 the NPRM, PHMSA 
proposed 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.
    PHMSA did not receive any comments opposing these amendments. 
However, PPG Industries suggested that it would be clearer to have the 
IBC marking options displayed in one section within Subpart D of Part 
172. They believed having the marking reference within the placarding 
section is confusing.
    PHMSA disagrees with PPG Industries' suggestion. The placarding 
exception in Sec.  172.514(c) is the impetus of this regulatory change. 
The link between the placarding and marking exceptions is essential to 
provide consistency and eliminate confusion. We are adopting these 
amendments as proposed.

G. HMT Revisions

    PHMSA proposed a number of revisions to the Hazardous Materials 
Table (HMT; Sec.  172.101), for the purpose of harmonizing with 
international standards. These proposed revisions included 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. PHMSA proposed to clarify 
this provision by including further instruction on the use of the word 
``or.'' We proposed 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''

[[Page 43515]]

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. PHMSA proposed 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 would 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 proposed 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.
    PHMSA became aware of a typographical error in the entry 
``Formaldehyde solutions'' which has an extra comma between 
``Formaldehyde'' and ``solutions.'' Therefore, PHMSA proposed to 
correct this error by removing the comma between ``Formaldehyde'' and 
``solutions'' in the proper shipping name for UN1198.
    PHMSA received no comments on these proposed changes to the HMT. 
Therefore, we are adopting these amendments, with an edit to 
``Formaldehyde solutions, UN1198,'' entry as proposed.
     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. In the NPRM, PHMSA proposed 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. PHMSA proposed 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'' 
would 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 the HMR requirements 
provided the conditions of Sec.  173.175 are met. This proposed 
revision was submitted to PHMSA as a petition for rulemaking (petition 
number P-1493; Docket Number PHMSA-2007-27318) 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.
    PHMSA received no comments concerning these proposed amendments. 
Therefore, we are adopting these amendments as proposed.
     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, PHMSA 
proposed in the NPRM 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.''
    The proposed change is consistent with an exception recently 
adopted within the United Nations Model Regulations on the Transport of 
Dangerous Goods (UN Model Regulations). The exception adopted into the 
UN Model Regulations expands packing provision PP1 of Packing 
Instruction P001 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, PHMSA indicated that it was 
evaluating the adoption of these provisions. (75 FR 63). PHMSA has 
completed this review and proposed to adopt this provision on the basis 
that environmentally hazardous paints, adhesives, printing inks, etc. 
pose a lesser hazard than flammable and corrosive paints which are 
already provided this exception in the HMR.
    PHMSA received one comment from PPG Industries supporting the 
proposal to add Special Provision 173. PHMSA did not receive any 
comments opposing the HMT changes discussed above. Therefore, we are 
adopting this amendment as proposed.

H. Hazard Communication

    1. Section 172.203(c) provides additional shipping paper 
description requirements. PHMSA received a petition for rulemaking 
(petition number P-1456; Docket Number PHMSA-2005-21198) from the AAR 
to suggest that we require shipping papers 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 proposed to 
revise Sec.  172.203(c) to require a notation that the LPG shipment 
does not contain an odorant.
    We received one comment from New England Fuel Institute (NEFI) 
supporting this proposed amendment. NEFI supports adding the words 
``non-odorized'' to the proper shipping name on shipping papers for 
non-odorized LPG, and believes it will aid emergency responders.
    We received no comments opposing this amendment. Therefore, we are 
adopting this amendment as proposed.
    2. Section 172.324 provides additional marking requirements for 
hazardous substances in non-bulk packaging. For clarification purposes, 
PHMSA proposed 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

[[Page 43516]]

parentheses, in association with the proper shipping name or the 
identification number, as applicable.
    PHMSA received one comment from PPG Industries noting that PHMSA 
adopted this marking requirement under Docket HM-215K (76 FR 3308). The 
commenter is correct, the new limited quantity marking amendment was 
adopted in the Docket HM-215K, final rule, published on January 19, 
2011. Therefore, PHMSA is not adopting the proposed amendment in this 
final rule.
    3. 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 proposed to remove the text that 
refers to the CDC on the label. The text states ``In U.S.A. Notify 
Director--CDC, Atlanta, GA 1-800-232-0124''. PHMSA proposed to allow 
three years from the effective date of the final rule to use up 
existing stocks.
    PHMSA received no comments on this proposed amendment. Therefore, 
we are adopting this amendment as proposed.
    4. 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 
international 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 international 
standards such as the International Civil Aviation Organization (ICAO) 
Technical Instructions and the International Maritime Dangerous Good 
(IMDG) Code. Some shipments are being delayed and required to be 
relabeled by international carriers due to this difference in the Class 
9 label specifications. In an effort to avoid continued frustrated or 
delayed shipments, PHMSA proposed in the NPRM to revise the Class 9 
label specifications by removing the horizontal line running across the 
label at its midpoint. We also proposed a three year transition from 
the effective date of the final rule to deplete existing stocks.
    PHMSA received one comment from the UPS on this proposal to revise 
the Class 9 label. UPS supports this proposed change for its potential 
to eliminate shipment delays.
    PHMSA received no comments opposing this amendment. Therefore, 
PHMSA is adopting this amendment as proposed.
    5. 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, PHMSA proposed in the NPRM 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.
    PHMSA received one comment from the New England Fuel Institute 
supporting this proposed amendment, as long as the current placard size 
and design is maintained and authorized, in addition to the harmonized 
placards. PHMSA is adopting this amendment as proposed. However, the 
HMR will continue to permit the use of the larger placard sizes.

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 the NPRM, PHMSA proposed to revise 
Sec.  173.134(c)(2) to incorporate the clarifications from a March 19, 
2007 letter of interpretation (Ref. No. 07-0057). Specifically, PHMSA 
proposed to clarify 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.
    PHMSA received one comment from Stericycle, Inc. (Stericycle) 
supporting this amendment. Stericycle also commented that the rationale 
underlying PHMSA's decision to authorize the transportation of multiple 
waste streams from medical facilities should also apply to other 
regulated activities, specifically to Special Permit 13556, which 
authorizes the transportation of sharps in specialized containers.
    PHMSA has determined that incorporating Special Permit 13556 into 
the HMR is beyond the scope of this rulemaking. Therefore, PHMSA is 
adopting this amendment as proposed.

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 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, in the NPRM, PHMSA 
proposed 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:''
    PHMSA did not receive any comments regarding this amendment. 
However, PHMSA is developing a more comprehensive rulemaking to address 
this issue, as well as other issues involving fireworks. Therefore, in 
this final rule, PHMSA is not adopting any requirements specific to 
fireworks.

K. Explosives

    Section 173.60 provides general packaging requirements for shipping 
Class 1 (explosive) materials. In a petition for rulemaking (petition 
number P-1527; Docket Number PHMSA-2008-0195), 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

[[Page 43517]]

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.'' In the NPRM, 
PHMSA proposed 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.
    PHMSA did not receive any comments regarding this amendment; 
therefore, we are adopting this amendment as proposed.

L. Rail Transloading Operations

    Section 174.67 provides general requirements for rail tank car 
transloading operations for hazardous materials. In a petition for 
rulemaking (petition number P-1481; Docket Number PHMSA-2006-25900), 
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 Environmental 
Protection Agency 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.
    In response to this petition, PHMSA proposed to revise Sec.  174.67 
in the NPRM to clarify and further address closed systems in 
transloading operations. PHMSA proposed 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.
    PHMSA received no comments regarding this amendment; therefore, we 
are adopting this amendment as proposed.

M. Cylinders

    1. 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 [72 FR 55091], 
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 the NPRM, we proposed 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. In the 
NPRM, PHMSA proposed to revise these sections to prescribe the PRD 
setting tolerance for DOT 39 cylinders.
    Worthington Cylinder Corporation (Worthington) supports the 
proposal but stated it creates a major conflict with CGA Publication S-
1.1 and completely eliminates shipping DOT 39 cylinders by air where 
the rupture disk is welded to the cylinder. Worthington agrees that a 
proposed change can be submitted to CGA and CGA Publication S-1.1 in 
order to ``catch-up'' to 49 CFR requirements. Worthington also stated 
that oxygen can be shipped in low-pressure cylinders and that PHMSA 
only considered high pressure DOT 39 cylinders that contain a valve 
with a rupture disk. Worthington suggested adding the alternative use 
of a CG-2 or CG-3 device as defined in CGA Publication S-1.1 to our 
proposal to maintain an acceptable level of safety. Worthington stated, 
``Adding the alternative use of a CG-2 or CG-3 device would maintain 
the level of safety by having maximum containment of the oxygen or 
oxygen mixture in the cylinder. Like the CG-1 device, the CG-2 or CG-3 
device will empty the contents of the cylinder.''
    Barlen and Associates (Barlen) did not support our proposal stating 
it effectively bans air shipment of oxygen and its mixtures in DOT 39-
cylinders. Barlen stated that ``even if the DOT at some point again 
allowed air shipment of oxygen, this proposed change would still for 
all practicable purposes ban air shipments of oxygen and oxygen-rich 
mixtures in DOT-39 cylinders.'' Barlen also suggested that a 
``different solution might be for DOT to totally ignore the CGA S-1.1 
and change all DOT-39 cylinders to its `shipped by air only' setting. 
However, that solution would involve changing the settings on millions 
of DOT-39 cylinders (all those 1 pound Bernzomatic type cylinders, 
etc.)''
    PHMSA has considered Worthington and Barlen's comments and 
suggestions. Further, PHMSA recently received a petition for rulemaking 
(P-1580) highlighting additional concerns regarding the PRD setting for 
DOT 39 cylinders. To fully consider both the comments and the petition 
PHMSA has elected not to adopt the proposed amendment to the PRD 
setting for DOT-39 cylinders in this final rule. PHMSA plans to address 
the issue in a future rulemaking.
    2. 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. In the NPRM, PHMSA 
proposed to consolidate the inspectors' 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.

[[Page 43518]]

    Worthington opposed the proposed amendments in Sec.  178.35 to 
require certification reports available at or before the time of 
delivering the cylinders to the purchaser. Worthington indicates that 
the proposal should consider that a single manufacturing facility can 
produce tens of thousands of cylinders daily. Depending on the cylinder 
design, this could require 50-75 reports daily. To comply with the 
required proposal for reports before shipment arrives at the customers, 
Worthington stated that, ``cylinder manufacturers and independent 
inspection agencies will have to add personnel which increases customer 
costs for no value added or safety benefit.''
    PHMSA does not agree with the commenter. This documentation is 
necessary to understand and evaluate cylinder related failures (e.g., 
as cylinder burst) and to promote safety. The certification reports 
from the inspector and given to the manufacturer must be available at 
or before the time of delivering the cylinders to the purchaser. PHMSA 
compliance inspectors revealed that sometimes these reports are 
completed several months after the cylinders are sold.
    PHMSA is adopting the revisions to test reports in Sec.  178.35 as 
proposed. This change will clarify that a cylinder manufacturer must 
have all completed test and certification reports available at or 
before the time of delivering the cylinders to the purchaser.
    3. 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 (petition number P-1513; Docket Number PHMSA-2008-0065) from 
Worthington 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, in the NPRM, 
PHMSA proposed to revise paragraphs (j) and (l) in Sec.  178.37 to 
authorize the use of the bend test.
    PHMSA received no comments regarding this proposed amendment to 
allow the use of the bend test on cylinders. Therefore, PHMSA is 
adopting this amendment as proposed.
    4. Section 178.71 contains design and manufacturing specifications 
for UN pressure receptacles, including the specification marking 
requirements. In the NPRM, PHMSA proposed 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 indicated 
in the NPRM that the combination of the proof pressure test, hardness 
test, and UE should provide adequate assurance that each cylinder 
received a proper heat treatment.
    Arrowhead opposed the proposal in Sec.  178.71 to allow the use of 
proof pressure testing versus the current mandatory volumetric 
expansion testing on all cylinders. The ISO 7866 and 9809 standards 
currently permit the use of either the proof pressure test or 
volumetric expansion test. The commenter recommends that the current 
language in the HMR remain unchanged requiring the mandatory volumetric 
expansion testing of all cylinders.
    PHMSA does not agree with Arrowhead's comments. Arrowhead did not 
provide any evidence of cylinder failure due to lack of volumetric 
expansion testing or technical rational in support of its comments. 
PHSMA is not eliminating the current volumetric expansion test for 
cylinders. ISO Standards 9809-1, 2, 3 and 7866 provides alternative 
volumetric expansion test to proof pressure testing. Based on extensive 
technical work of ISO/TC58/SC3/WG14 which was completed by the U.S. 
experts and major U.S. cylinder manufacturers, we have concluded the 
testing methods as described in ISO 9809(s) and ISO 7866 standards 
provide adequate and safe methods of ensuring proper heat treatment. 
Additionally, many of these cylinders have been manufactured under 
these standards and safely used for over 15 years.
    PHMSA does not agree with Arrowhead's comments as stated above. 
Therefore, we are adopting this amendment as proposed.

N. Cargo Tanks

    1. 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. Cargo 
tank motor vehicles composed of more than one cargo tank may be 
constructed with the individual cargo tanks manufactured to a single 
specification or to different specifications. Each cargo tank must 
conform in all respects with the specification for which it is 
constructed and certified.
    The strength of the connecting structure joining multiple cargo 
tanks in a cargo tank motor vehicle must meet the structural design 
requirements in Sec.  178.345-3. Any void within the connecting 
structure must be vented to the atmosphere and have a drain located on 
the bottom centerline. Each drain must be accessible and must be kept 
open at all times. The drain in any void within the connecting 
structure of a carbon steel, self-supporting cargo tank may be either a 
single drain of at least 1.0 inch dia