Hazardous Materials; Miscellaneous Amendments (RRR), 15303-15331 [2013-04198]

Download as PDF Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—Executive Order 13175 (65 FR 67240, November 6, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes). 7. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks—This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act—EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 272 Note) does not apply to this rule. 10. Congressional Review Act—EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). This action will be effective on May 10, 2013. Dated: December 19, 2012. Judith A. Enck, Regional Administrator, Region 2. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. FOR FURTHER INFORMATION CONTACT: Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended (42 U.S.C. 6912(a), 6926, 6974(b)). Contents VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 [FR Doc. 2013–05481 Filed 3–8–13; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 105, 171, 172, 173, 177, 178, and 180 [Docket No. PHMSA–2011–0138 (HM–218G)] RIN 2137–AE78 Hazardous Materials; Miscellaneous Amendments (RRR) Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Final rule. AGENCY: PHMSA is amending the Hazardous Materials Regulations (HMR) to make miscellaneous amendments to update and clarify certain regulatory requirements. These amendments promote safer transportation practices, eliminate unnecessary regulatory requirements, address a petition for rulemaking, incorporate a special permit into the HMR, facilitate international commerce, and simplify the regulations. These amendments also update various entries in the Hazardous Materials Table (HMT) and corresponding special provisions, clarify the lab pack requirements for temperature-controlled materials, and require hazmat employers to make hazmat employee training records available upon request to an authorized official of the Department of Transportation (DOT) or an entity explicitly granted authority to enforce the HMR. DATES: Effective Date: This rule is effective May 10, 2013. Voluntary Compliance Date: Voluntary compliance with all amendments is authorized March 11, 2013. SUMMARY: Rob Benedict, Standards and Rulemaking Division, (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) PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 15303 B. Commenters II. Discussion of Amendments and Applicable Comments A. General Comments B. Provisions Adopted in This Final Rule and Discussion of Comments C. Comments Beyond the Scope of This Rulemaking D. Provisions Not Adopted in This Final Rule and Discussion of Comments III. Regulatory Analyses and Notices A. Statutory/Legal Authority for the Rulemaking B. Executive Order 12866, Executive Order 13563 and DOT Regulatory Policies and Procedures C. Executive Order 13132 D. Executive Order 13175 E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies F. Paperwork Reduction Act G. Regulatory Identifier Number (RIN) H. Unfunded Mandates Reform Act I. Environmental Assessment J. Privacy Act K. International Trade Analysis I. Background A. Notice of Proposed Rulemaking (NPRM) On April 26, 2012, PHMSA published a NPRM under Docket PHMSA 2011– 0138 [77 FR 24885] (HM–218G) that proposed amendments to update and clarify existing requirements of the HMR. The NPRM and this Final Rule are part of the Department of Transportation’s Retrospective Regulatory Review (RRR) designed to identify ways to improve the Hazardous Materials Regulations (HMR; 49 CFR parts 171–180). The NPRM proposed amendments to update and clarify existing requirements by incorporating changes into the HMR based on PHMSA’s own initiatives. The proposed amendments were identified through an extensive review of the HMR and previously issued letters of interpretation to the regulated hazardous materials transportation community. In addition, the NPRM proposed to incorporate a special permit with a longstanding history of safety into the HMR and respond to a petition for rulemaking. The changes proposed in the April 26, 2012 NPRM are summarized below: • Permit designated agents for nonresidents to submit designation requests by electronic mail in addition to traditional mail. • Add the Sulphur Institute’s (TSI) ‘‘Molten Sulphur Rail Tank Car Guidance’’ document to the list of informational materials not requiring incorporation by reference in § 171.7 (Responds to petition for rulemaking P– 1581). E:\FR\FM\11MRR1.SGM 11MRR1 15304 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations • Revise the § 172.101 Hazardous Materials Table (HMT) to correct an error in the transportation requirements for entries listed under the proper shipping name, ‘‘Hydrazine Dicarbonic Acid Diazide.’’ • Revise the § 172.101 HMT to remove the entry for ‘‘Zinc ethyl, see Diethylzinc’’ that was superseded by proper shipping names adopted in a previous rulemaking. • Add the inadvertently omitted entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III to the § 172.101 HMT. • Remove references to special provisions B72 and B74 in § 172.102. • Revise special provision 138 in § 172.102 to clarify the lead solubility calculation used to classify a material as a Marine Pollutant. • Revise the shipping paper requirements in § 172.203(e) to permit the placement of phrase ‘‘Residue last contained’’ before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence. • Update the training recordkeeping requirements in § 172.704 to specify that a hazmat employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or the Department of Homeland Security (DHS). • Clarify that the material of trade exception in § 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks. • Clarify the lab pack provisions in § 173.12 pertaining to temperaturecontrolled materials contained in a lab pack. • Clarify the exceptions for external emergency self-closing valves on cargo tank motor vehicles (CTMVs) in § 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation. • Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives. • Incorporate special permit DOT SP– 13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks. • Revise the requirements for cargo air transport of alcoholic beverages in § 173.150 to harmonize with the International Civil Aviation Organization’s (ICAO) Technical Instructions (TI). • Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets. • Revise § 178.2(c) to clarify the applicability of the closure notification requirements for packages containing residues. • Correct regulatory citations in § 178.2(c). • Clarify the requirements for the Flame Penetration Resistance test specified for chemical oxygen generators and certain compressed gases in Appendix E to Part 178. • Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases. B. Commenters The comment period for the April 26, 2012 NPRM closed on June 25, 2012. PHMSA received 22 public comments in response to the NPRM’s proposed amendments, from trade associations representing various industries, individual businesses, and concerned citizens who make up the regulated community. While the majority of the commenters supported the proposals in the NPRM, some commenters expressed adverse opinions with specific proposals. In response to the feedback provided by these commenters, PHMSA will address and discuss both the proposals adopted and not adopted into the HMR by this rulemaking under the heading, ‘‘Discussion of Amendments and Applicable Comments.’’ In addition, some commenters provided suggestions for revisions that were not specifically addressed in the NPRM, and therefore, are considered beyond the scope of this rulemaking. The comments, as submitted to this docket, may be accessed via https:// www.regulations.gov and were submitted by the following individuals, companies, and associations (abbreviations used throughout the document and Docket Reference numbers are also provided): mstockstill on DSK4VPTVN1PROD with RULES Commenter Abbreviation Docket reference American Coating Association, Inc ................................................................ American Trucking Association ...................................................................... Association of American Railroads ................................................................ Association of Hazmat Shippers .................................................................... Council on Safe Transportation of Hazardous Articles, Inc ........................... Dangerous Goods Advisory Council .............................................................. The Fertilizer Institute ..................................................................................... International Vessel Operators Dangerous Goods Association Inc ............... Koch Sulfur Products Company LLC ............................................................. National Association of Chemical Distributors ............................................... National Tank Truck Carriers ......................................................................... Oxbow Sulphur Inc ......................................................................................... Potash Corporation of Saskatchewan ............................................................ Richard Zbilski ................................................................................................ Reusable Industrials Packaging Association ................................................. Stericycle, Inc ................................................................................................. The Sulphur Institute ...................................................................................... Transammonia Inc .......................................................................................... Union Tank Car Company .............................................................................. U.S. Clay Producers Traffic Association ........................................................ Utility Solid Waste Activities Group ................................................................ Veolia ES Technical Solutions, L.L.C ............................................................ ACA ................................................... ATA .................................................... AAR ................................................... AHS ................................................... COSTHA ............................................ DGAC ................................................ TFI ..................................................... IVODGA ............................................. KSPC ................................................. NACD ................................................. NTTC ................................................. Oxbow ................................................ PCS ................................................... Richard Zbilski ................................... RIPA .................................................. Stericycle ........................................... TSI ..................................................... Transammonia ................................... UTCC ................................................. USCPTA ............................................ USWAG ............................................. Veolia ................................................. PHMSA–2011–0138–0012 PHMSA–2011–0138–0007 PHMSA–2011–0138–0022 PHMSA–2011–0138–0011 PHMSA–2011–0138–0010 PHMSA–2011–0138–0009 PHMSA–2011–0138–0021 PHMSA–2011–0138–0014 PHMSA–2011–0138–0025 PHMSA–2011–0138–0023 PHMSA–2011–0138–0019 PHMSA–2011–0138–0018 PHMSA–2011–0138–0026 PHMSA–2011–0138–0027 PHMSA–2011–0138–0016 PHMSA–2011–0138–0005 PHMSA–2011–0138–0017 PHMSA–2011–0138–0020 PHMSA–2011–0138–0029 PHMSA–2011–0138–0024 PHMSA–2011–0138–0013 PHMSA–2011–0138–0008 VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES II. Discussion of Amendments and Applicable Comments A. General Comments On September 30, 1993, President Bill Clinton issued Executive Order 12866 which asked Federal agencies ‘‘to enhance planning and coordination with respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory decision-making process; to restore the integrity and legitimacy of regulatory review and oversight; and to make the process more accessible and open to the public.’’ On October 21, 2011, President Barack Obama issued Executive Order 13563 which is supplemental to and reaffirms the principles, structures, and definitions governing contemporary regulatory review that were established in Executive Order 12866. This executive order urged government agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. Finally, federal agencies were directed to periodically review existing significant regulations; retrospectively analyze rules that may be outmoded, ineffective, insufficient, or excessively burdensome; and modify, streamline, expand, or repeal regulatory requirements in accordance with what has been learned. On May 10, 2012, President Barack Obama issued Executive Order 13610 (Identifying and Reducing Regulatory Burdens) reaffirming the goals of Executive Order 13563 (Improving Regulation and Regulatory Review) issued January 18, 2011, and Executive Order 12866 (Regulatory Planning and Review) issued September 30, 1993. Executive Order 13610 directs agencies to prioritize ‘‘those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens while protecting public health, welfare, safety, and our environment.’’ Executive Order 13610 further instructs agencies to give consideration to the cumulative effects of their regulations, including cumulative burdens, and prioritize reforms that will significantly reduce burdens. In accordance with Executive Orders 13610 and 13563, PHMSA has undertaken a retrospective review of the HMR. This final rule and the NPRM that preceded it are part of that initiative, and were based on an internal review of the HMR, special permits, petitions, and letters of interpretation. The April 26, 2012 NPRM specifically addressed a petition, a special permit, and various clarifications identified in letters of VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 interpretation and through PHMSA internal review of the HMR. The publication of the NPRM provided an opportunity for further public participation in the development of the regulatory amendments, and promoted an exchange of information and perspectives among the various stakeholders. PHMSA received 22 comments in response to the April 26, 2012 NPRM which were predominately positive. Some commenters agreed in principle with the proposed amendments and offered revisions to improve the clarity of the regulatory text. In some cases, no comments to proposed amendments were received. In these circumstances, PHMSA attributed the lack of comment to either the nature of the amendment being editorial, or a general acknowledgement from the regulated community that no opposition to the change was warranted. Finally, negative comments were also received on some specific issues. A detailed description of the original proposals in the April 26, 2012 NPRM, a summary of the comments received, responses to those comments, and PHMSA’s decision on future actions are detailed below. B. 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. To clearly identify the issues addressed in this final rule, PHMSA provides the following list of adopted amendments discussed in this section: • Permit designated agents for nonresidents to submit designation requests by electronic mail in addition to traditional mail. • Add the Sulphur Institute’s (TSI) ‘‘Molten Sulphur Rail Tank Car Guidance’’ document to the list of informational materials not requiring incorporation by reference in § 171.7 (Responds to petition for rulemaking P– 1581). • Revise the § 172.101 HMT to correct an error in the transportation requirements for entries listed under the proper shipping name, ‘‘Hydrazine Dicarbonic Acid Diazide.’’ • Revise the § 172.101 HMT to remove the entry for ‘‘Zinc ethyl, see Diethylzinc’’ that was superseded by proper shipping names adopted in a previous rulemaking. • Add the entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III to the § 172.101 HMT that were inadvertently omitted. PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 15305 • Remove references to special provisions B72 and B74 in § 172.102. • Revise special provision 138 in § 172.102 to clarify the lead solubility calculation used to classify a material as a Marine Pollutant. • Revise the shipping paper requirements in § 172.203(e) to permit the phrase ‘‘Residue last contained’’ to be placed before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence. • Update the training recordkeeping requirements in § 172.704 to specify that a hazmat employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or of an entity explicitly granted authority to enforce the HMR. • Clarify that the material of trade exception in § 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks. • Clarify the lab pack provisions in § 173.12 pertaining to temperaturecontrolled materials contained in a lab pack. • Clarify the exceptions for external emergency self-closing valves on CTMVs in § 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation. • Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives. • Incorporate special permit DOT SP– 13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks. • Revise the requirements for cargo air transport of alcoholic beverages § 173.150 to harmonize with the ICAO TI. • Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets. • Correct regulatory citations in § 178.2(c). • Clarify the requirements for the Flame Penetration Resistance test specified for chemical oxygen generators and certain compressed gases in Appendix E to Part 178. • Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases. E:\FR\FM\11MRR1.SGM 11MRR1 15306 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations Designated Agents for Non-Residents Currently, § 105.40 prescribes the requirements for designated agents for non-residents. In specific instances, such as the approval of fireworks manufactured by a foreign entity, the HMR require non-residents of the United States who perform hazmat operations within the United States to designate a permanent resident of the United States to act as an agent and receive documents on behalf of the nonresident. As specified in the HMR, nonresidents of the United States must prepare a designation notification and file it with PHMSA in accordance with § 105.40. The HMR only permit designated agent notification documents to be mailed to the Approvals and Permits Division, PHMSA, Attn: PHH–30, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590–0001, as specified in § 105.40(d). Revising this requirement to allow an agent designation to be transmitted by electronic mail would provide greater regulatory flexibility and align the submission of these documents with the procedures currently in place for the submission of other documents required by PHMSA. In the April 26, 2012 NPRM, PHMSA proposed to amend § 105.40(d) to permit agent designations to be submitted by electronic mail to the special permits or approvals office, as appropriate. The option to submit a completed agent designation to the Approvals and Permits Division by mail would remain unchanged. PHMSA received no comments on the proposed change to the requirements for designated agents for non-residents. Therefore, we are adopting these amendments to § 105.40(d), as proposed in the NPRM. mstockstill on DSK4VPTVN1PROD with RULES Molten Sulphur Tank Rail Car Guidance Document Section 171.7 lists all standards incorporated by reference into the HMR and informational materials not requiring incorporation by reference. The informational materials not requiring incorporation by reference are noted throughout the HMR and provide best practices and additional safety measures that are not mandatory but, may enhance safety and compliance. The Sulphur Institute (TSI) represents the sulfur industry in the United States on a variety of issues including the safe transportation of sulfur in commerce. TSI submitted petition P–1581 (Docket Number PHMSA–2007–28054) requesting that PHMSA incorporate by VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 reference TSI’s ‘‘Molten Sulphur Tank Rail Car Guidance Document.’’ This document provides best practices for the safe transport of molten sulfur in rail tank cars. TSI also requested that we amend § 173.24(b)(4) to add the sentence ‘‘Dried residue of molten sulfur on tank cars shall meet the ‘Molten Sulphur Rail Car Guidance Document’ incorporated by reference in § 171.7.’’ In the NPRM published on April 26, 2012, PHMSA proposed to adopt ‘‘Molten Sulphur Rail Tank Car Guidance’’ in the list of informational materials not requiring incorporation by reference in § 171.7(b). In addition, PHMSA proposed to revise the entries for ‘‘Sulfur, Molten’’ specified in the § 172.101 HMT to reference special provision ‘‘R1’’ and add special provision ‘‘R1’’ to the R codes specified in § 172.102(c)(6). This new special provision will recommend the use of the Molten Sulphur Rail Tank Car Guidance document when transporting ‘‘Sulfur, Molten’’ residues by rail; however, it will not make its use mandatory. PHMSA did not propose adding TSI’s suggested language ‘‘Dried residue of molten sulfur on tank cars shall meet the ‘Molten Sulphur Rail Car Guidance Document’ incorporated by reference in § 171.7’’ to § 173.24(b)(4). PHMSA received eight comments on the proposed addition of the ‘‘Molten Sulphur Rail Tank Car Guidance’’ to the list of informational materials not requiring incorporation by reference and subsequent addition of special provision ‘‘R1.’’ Seven of these comments expressed support: KOCH, Oxbow, PCS, TFI, Transammonia, TSI, and UTCC. KOCH, who ships more than 500,000 tons of sulfur annually; Oxbow, who ships over 13,000 railcars of molten sulfur annually; PCS who receives 1.6 million tons of sulfur annually; Transammonia, who ships over 2,500 railcars of molten sulfur annually; and UTCC, who provides the means of transporting sulfur in approximately 1,100 tank cars, note that they all assisted in developing this document and believe it will benefit carriers, government inspectors, and shippers by promoting safer handling practices. TFI, a national trade association representing fertilizer importers, producers, retailers and wholesalers, reiterates the comments of these companies. In addition to expressing support for the adoption of this document, one commenter, TSI, offers two minor editorial changes to the proposed regulatory text. Specifically, TSI requests PHMSA update the mailing address listed for TSI and that PHMSA PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 revise the edition listed for the document. In contrast, the AAR, on behalf of itself and its member railroads, provided comments that strongly oppose the proposed amendment. AAR states its belief that the TSI guidance contradicts certain requirements specified in the HMR. Specifically, AAR notes that § 173.24(b)(4) specifies ‘‘there will be no hazardous materials residue adhering to the outside of a package during transport.’’ Furthermore, § 174.57 specifies ‘‘all hazardous material which has leaked from a package in a rail car or on railroad property must be carefully removed.’’ AAR states that §§ 173.24(b)(4) and 174.57 appear to directly contradict the TSI guidance which permits residue on the outside of a rail car and only cautions against the presence of excessive residue. AAR notes that even small amounts of molten sulfur residue can generate significant concentrations of sulfur dioxide (SO2), and sulfur trioxide (SO3) which are both known eye and respiratory irritants, and hydrogen sulfide (H2S), which has demonstrated the ability to act as a nervous system toxin. Finally, AAR expresses concern that the presence of an ‘‘acceptable’’ level of molten sulfur residue on the outside of the rail car may cause emergency response actions when they are not necessary. PHMSA appreciates the comments received regarding this proposed amendment. PHMSA agrees with AAR that §§ 173.24(b)(4) and 174.57 specify that no hazardous materials residue is permitted to adhere to the outside of a package during transport and that all hazardous material that has leaked from a package in a rail car or on railroad property must be carefully removed. However, PHMSA believes that minimal levels of sulfur residue on the outside of a rail tank car pose minimal transportation risk due to physical state, chemical properties, and amount. PHMSA also recognizes the difficulty in removing dried sulfur residue while in transportation. PHMSA does not dispute AAR’s assertion that molten sulfur emits dangerous chemicals such H2S, SO2, and SO3. However, as noted above, the dried, fully-cooled residue does not generate such concentrations of H2S, SO2, and SO3 and poses little safety risk. To this end, PHMSA considers the ‘‘Molten Sulphur Rail Tank Car Guidance’’ to be a valuable tool for instances in which a minimal amount of residue remains on a tank car. AAR further comments that molten sulfur residue on the outside rail car E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations may cause emergency response actions when they are not necessary. Residue of molten sulfur could also pose a safety risk by obscuring valuable tank car markings, labels, and stencils as well as tank car safety appliance features, such as ladders. PHMSA believes that the ‘‘Molten Sulphur Rail Tank Car Guidance’’ provides information on when the cleaning and removing of this residue is necessary, thus decreasing the likelihood that the residue will obscure hazardous materials communication or safety features or result in unnecessary emergency response actions. PHMSA notes that the majority of comments for the adoption of the ‘‘Molten Sulphur Rail Tank Car Guidance’’ in the list of informational materials not requiring incorporation by reference in § 171.7(b) were positive and believes this adoption would be beneficial to carriers, government inspectors, and shippers. PHMSA further emphasizes that recognition of this document would not impose any new requirements. Instead, it would be adopted into the list of informational materials not requiring incorporation by reference, and therefore, would be provided for guidance purposes only. Therefore, PHMSA is adopting these amendments to §§ 171.7(b) and 172.102(c)(6) as proposed in the NPRM with the minor editorial changes identified by TSI. mstockstill on DSK4VPTVN1PROD with RULES Hazardous Materials Table (HMT) Revisions The HMT in § 172.101 contains information regarding the transport conditions, proper shipping name, hazard class and division, identification number, packing group, label codes, special provisions, authorized expectations, non-bulk, and bulk packagings, quantity limitations and vessel stowage requirements for hazardous materials. Accurate information in the HMT is essential for the safe shipment of hazardous materials by all modes. In the NPRM published on April 26, 2012, PHMSA proposed a number of revisions to the § 172.101 HMT, and the special provisions specified in § 172.102 to clarify the regulations, correct inadvertent errors, and improve the accuracy of the information contained in the HMT. The amendments to the § 172.101 HMT proposed in the April 26, 2012 NPRM included: • Remove the Packing Group II and III entries for the proper shipping name, ‘‘Hydrazine dicarbonic acid diazide’’ in the § 172.101 HMT and clarify that Hydrazine dicarbonic acid diazide’’ is forbidden. VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 • Remove the proper shipping name, ‘‘Zinc ethyl, see Diethylzinc’’ since ‘‘UN1366 Diethylzinc’’ is no longer listed in the § 172.101 HMT. Individuals offering ‘‘Zinc ethyl’’ should choose one of the more appropriate generic entries for organometallic compounds and substances. • Add the entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III. • Remove Special provision B72 from Column (7) for the following entries: Æ UN2484 tert-Butyl isocyanate; Æ UN3492 Toxic by inhalation liquid, corrosive, flammable, n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50; Æ UN3488 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50; and Æ UN3490 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50. • Remove Special provision B74 from Column (7) for the following entries: Æ NA2927 Ethyl phosphonothioic dichloride, anhydrous; Æ NA2845 Ethyl phosphonous dichloride, anhydrous pyrophoric liquid; Æ NA2927 Ethyl phosphorodichloridate; Æ NA2845 Methyl phosphonous dichloride, pyrophoric liquid; Æ UN1831 Sulfuric acid, fuming with 30 percent or more free sulfur trioxide; Æ UN3489 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an LC50 lower than or equal to 1000 ml/m3 and saturated vapor concentration greater than or equal to 10 LC50; and Æ UN3491 Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an LC50 lower or equal to 1000 ml/m3 and saturated vapor concentration greater than or equal to 10 LC50. • Revise the entries for ‘‘Sulfur, Molten’’ specified in the § 172.101 HMT to reference special provision ‘‘R1.’’ PHMSA received nine comments on these proposed revisions. Specifically, ACA supported the proposed addition of inadvertently omitted entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III. ACA noted it supports ‘‘this proposed amendment and [is] pleased to see that this correction is being addressed.’’ The eight other comments regarding these proposed revisions were related to PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 15307 the proposed revision of the entries for ‘‘Sulfur, Molten’’ specified in the § 172.101 HMT to reference special provision ‘‘R1.’’ Those comments are addressed above in the section entitled Molten Sulphur Tank Rail Car Guidance Document. Based on the aforementioned discussion, revision of the entries for ‘‘Sulfur, Molten’’ specified in the § 172.101 HMT to reference special provision ‘‘R1’’ will be adopted in this final rule. PHMSA did not receive any other comments on the proposed revisions to the § 172.101 HMT as the revisions proposed in the April 26, 2012 NPRM were primarily editorial in nature or simply correcting inadvertent errors in the HMT. Therefore, based on the above comments and no opposition to any of the other editorial amendments, PHMSA is adopting these amendments to the § 172.101 HMT as proposed in the NPRM. Special Provision Revisions The special provisions listed in column (7) of the § 172.101 HMT contain packaging provisions, prohibitions, exceptions from requirements for particular quantities or forms of materials, and requirements or prohibitions applicable to specific modes of transportation. In the April 26, 2012 NPRM, PHMSA proposed revisions to the special provisions specified in § 172.102 to clarify the regulations and correct inadvertent errors. The amendments to the special provisions contained in § 172.102 proposed in the April 26, 2012 NPRM included: • Add special provision ‘‘R1’’ to the R codes specified in § 172.102(c)(6). This new special provision will reference the ‘‘Molten Sulphur Rail Tank Car Guidance’’ document as a resource for best practices for the cleaning of tank cars containing ‘‘Sulfur, Molten’’, where product has spilled and dried on the exterior surface of the tank car. • Revise special provision 138 specified in § 172.102(c)(1) to harmonize the HMR with the International Maritime Dangerous Goods (IMDG) code and to clarify that the solubility calculation provided in special provision 138 should be applied when determining when to use the ‘‘lead compounds, soluble n.o.s.’’ entry in the List of Marine Pollutants found in § 172.101, Appendix B. PHMSA received nine comments on these proposed amendments. Eight of those comments are related to the proposed addition of special provision R1 and are addressed above in the section entitled Molten Sulphur Tank E:\FR\FM\11MRR1.SGM 11MRR1 15308 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES Rail Car Guidance Document. Based on those comments special provision R1 specified in § 172.102 will be adopted in this final rule. PHMSA received one comment on the proposed revision of special provision 138 specified in § 172.102. In its comment, IVODGA supports the proposed amendment which revises special provision 138 to clarify the solubility calculations to be used for classification and identification of lead compounds and to harmonize the HMR provisions with the IMDG Code SP 199. Specifically, IVODGA welcomes the corrections to the § 172.101 HMT to include the provisions of HM–215 rulemakings which maintain alignment with the international standards for the listed proper shipping names, hazard classes, packing groups, special provisions, and vessel stowage requirements. PHMSA did not receive any adverse comments to this proposed amendments, and is adopting the revision of special provision 138 specified in § 172.102 as proposed in the NPRM. Shipping Paper Requirements for Rail Shipments of Residues On December 29, 2006, PHMSA published a final rule under PHMSA– 06–25476 (HM–215I) [71 FR 78595] that permitted the continued use, for domestic shipments, of either one of two shipping description sequences in effect in the HMR on December 31, 2006, until January 1, 2013. Specifically, the HMR authorize the basic description of a hazardous material to consist of either the identification number first, followed by the proper shipping name, hazard class, and packing group, or as an alternative description sequence, the proper shipping name, hazard class, ID number and packing group. In addition, the basic description described above and specified in paragraphs § 172.202(a)(1)-(4) must be shown in the sequences described with no additional information interspersed. After January 1, 2013, only the basic shipping description sequence consisting of the identification number first, followed by the proper shipping name, hazard class, and packing group (in that order) is authorized. However, § 172.203 provides allowances for a shipping paper to contain information in addition to the basic shipping description specified in § 172.202. Specifically, § 172.203(e)(1) permits that the shipping paper for a packaging containing the residue of a hazardous material may include the words ‘‘RESIDUE: LAST CONTAINED * * *’’ in association with the basic description of the hazardous material VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 last contained in the packaging. Further, the shipping papers for tank cars containing the residue of a hazardous material must include the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ before the basic description. While the HMR provide a general provision, various international standards provide more specific guidance on the location of this phrase. Currently, the ICAO TI, IMDG Code, and UN Model Regulations require this phrase, if used, to be placed either before or after the basic shipping description. In the NPRM published on April 26, 2012, PHMSA proposed to revise § 172.203(e)(1) to permit the shipping paper for a packaging containing the residue of a hazardous material to include the words ‘‘RESIDUE: LAST CONTAINED * * *’’ before or after the basic shipping description of the hazardous material last contained in the packaging. PHMSA also proposed to remove the language ‘‘in association with’’ and replace it with the language ‘‘before or after’’ to align with various international standards. This proposed revision would harmonize the HMR with the ICAO TI, IMDG Code and UN Model Regulations. For rail shipments of tank cars, § 172.203(e)(2) requires that the description on the shipping paper for a tank car containing the residue of a hazardous material must include the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ before the basic description. Prior to the publication of the HM–215I final rule, the proper shipping name was the first piece of information required in the basic shipping description, and therefore, the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ preceded the proper shipping name. Effective January 1, 2013, rail shipments coming from Canada to the United States will be unable to comply with both the current requirements in the HMR for rail tank cars and the Transportation of Dangerous Goods (TDG) requirements. As stated above, after January 1, 2013, the proper shipping name will no longer be permitted to be the first piece of shipping information in the basic shipping description. Subsequently, the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ will no longer immediately precede the proper shipping name. Furthermore the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ may not be inserted into the basic description, as § 172.202(b) specifies the basic shipping description may not contain any additional information interspersed in the sequence described in § 172.202(a). Canada’s TDG regulations currently permit a residue of hazardous material PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 to be described as ‘‘Residue—Last ´ Contained’’ or ‘‘Residu—dernier contenu,’’ followed by the shipping name of the dangerous goods last contained in the means of containment. To address this issue, in the April 26, 2012 NPRM, PHMSA proposed to revise § 172.203(e)(2) to require the description on the shipping paper for a tank car containing the residue of a hazardous material to include the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ before or after the basic shipping description, or immediately preceding the proper shipping name. PHMSA received one comment on this proposed amendment. IVODGA welcomes the amendment and notes that an equivalent international standard of the IMDG Code Amendment 35–10, section 5.4.1.4.3.2 requires empty uncleaned packagings, IBCs, bulk containers, portable tanks, road tank vehicles and railway tank wagons that contain the residue of dangerous goods other than Class 7 to be described by entering the words ‘‘empty uncleaned’’ or ‘‘residue last contained’’ before or after the required basic description. IVOGDA acknowledges that § 171.22 already authorizes the offering for transportation and transporting hazardous materials in accordance with the IMDG Code. However, it also notes that the inconsistency of the terminology used on shipping documents and the sequence of information is an issue for trans-modal shipments. To further harmonize the HMR with the UN Model Regulations as adopted in the IMDG Code as well as other modal specific codes, in addition to the amendments proposed in the April 26, 2012 NPRM, IVODGA suggests that PHMSA consider revising the proposed text to permit the use of either term ‘‘empty uncleaned’’ or ‘‘residue last contained’’ as either option adequately communicates the hazard. PHMSA appreciates IVODGA’s support of this amendment as well as its clarifying suggestion with regard to the shipping paper requirements for empty packagings. As IVOGDA correctly acknowledges, § 171.22 already authorizes the offering for transportation and transporting hazardous materials in accordance with the IMDG Code and thus the use of the term ‘‘empty unclean.’’ As the proposals in the April 26, 2012 NPRM did not specifically address the language ‘‘empty uncleaned’’ and the HMR currently permits the use of a shipping paper in accordance with the IMDG code under § 171.22, PHMSA will not specifically add the term ‘‘empty uncleaned’’ to §§ 172.203(e)(1) and 172.203(e)(2). We are, however, adopting the amendments E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES to §§ 172.203(e)(1) and 172.203(e)(2) as proposed in the NPRM. Training Record Requirements The requirements for hazardous materials training are specified in § 172.704. This section includes a description of the applicability for hazardous materials training, the necessary components of a training program, and the recurrent training and recordkeeping requirements. Currently, 49 CFR part 172, subpart I describes the requirements for security plans. Specifically, §§ 172.802(d) and 172.820(i)(1) require that a copy of the security plan must be maintained and that security plan documentation be made available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation (DOT) or the Department of Homeland Security (DHS). Similar to the security plan requirements, the training requirements include a recordkeeping component. Specifically, as specified in § 172.704(d), a record of current training, inclusive of the preceding three years, must be created and retained by each hazmat employer for as long as that employee is employed by that employer as a hazmat employee and for 90 days thereafter. However, unlike the security plan documentation, the HMR currently do not stipulate that the training records must be made available upon request to authorized officials of the DOT or DHS. The Federal hazardous materials transportation law (Federal hazmat law, 49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation of hazardous material in intrastate, interstate, and foreign commerce. The Secretary has delegated this authority to PHMSA. Authority to enforce the HMR has been delegated to the Federal Aviation Administration ‘‘with particular emphasis on the transportation or shipment of hazardous materials by air;’’ the Federal Railroad Administration ‘‘with particular emphasis on the transportation or shipment of hazardous materials by railroad;’’ PHMSA ‘‘with particular emphasis on the shipment of hazardous materials and the manufacture, fabrication, marking, maintenance, reconditioning, repair or test of multimodal containers that are represented, marked, certified, or sold for use in the transportation of hazardous materials;’’ and the Federal Motor Carrier Safety Administration ‘‘with particular emphasis on the transportation or shipment of hazardous materials by highway’’ (CFR part 1, subpart C). In VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 addition, as provided in the Homeland Security Act and as defined in a Memorandum of Agreement between the DHS and the DOT, the United States Coast Guard (USCG) retained the ability to enforce the HMR with particular emphasis on the transportation or shipment of hazardous materials by vessel. Thus, enforcement of the HMR, including the training regulations, is shared among the DOT operating administrations, USCG and DHS, with each placing particular emphasis on their respective authorities. Federal hazmat law, 49 U.S.C. 5121(b)(2), states that a person subject to this law shall make the records, property, reports, and information available for inspection when the Secretary undertakes an investigation or makes a request. The completion of training in accordance with Subpart H of Part 172 is essential for hazmat employees handling hazardous materials and ensures proper compliance with the HMR resulting in a greater level of safety. The recordkeeping requirements specified in § 172.704(d) allow for hazmat employers and PHMSA personnel to verify that only individuals knowledgeable in the applicable regulations are handling hazardous materials. In the NPRM published on April 26, 2012, PHMSA proposed to revise § 172.704(d) to require that an employer must make hazmat employee training records required by Subpart H of Part 172 available upon request, at a reasonable time and location, to an authorized official of DOT or DHS. PHMSA received five comments on these proposed amendments to the training record retention requirements specified in § 172.704(d). Specifically, ATA believes that the proposed record availability provision is too broad and should be limited only to those agencies charged with enforcing PHMSA’s regulations in modal transportation. ATA notes multiple DHS agencies have a reason to access the security plans specified in §§ 172.802(d) and 172.820(i)(1). However, only one DHS agency, the USCG, has a responsibility for training records specified in § 172.704(d). As an alternative ATA suggests PHMSA amend the proposed changes to 172.704(d) by limiting the disclosure requirement to those agencies outside of the Department of Transportation (DOT) that are explicitly authorized by Congress to enforce hazmat training. ATA states this limitation is appropriate for many reasons. First, it aligns authority with enforcement requirements. Only agencies with a responsibility to enforce training PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 15309 compliance have any need to determine that training requirements have been met. Other agencies should not be tempted by the authority to audit a transporter’s records for purposes other than enforcing the HMR. Parallel to this, limiting the disclosure of this information to as few parties as is practicable represents proper government care for hazmat employees’ personally identifying information. Federal law mandates that agencies take care to ensure that privacy is a paramount concern. Limiting access to only those agencies with an explicitly granted authority to enforce the HMR is in the spirit of such statutes. In addition to the comments presented by ATA, IVODGA, DGAC, COSHTA and NTTC provided similar comments. All voiced general support for the proposal but note the language ‘‘an authorized official of the Department of Homeland Security’’ was too broad. IVODGA, DGAC, COSHTA, and NTTC all suggest the language be revised to indicate the USCG as the designated division of DHS with which training records must be presented upon request. In addition to the comments above, IVODGA further asks PHMSA to consider electronic means of recordkeeping as alternatives to hard copy documents for the sake of time saving in producing records at the request of a duly authorized representative of the DOT or DHS as amended. As this proposal was not presented in the April 26, 2012 NPRM, it is considered beyond the scope of this rulemaking and will not be addressed in this final rule. However, it should be noted that PHMSA currently does not prohibit the use of electronic training records as § 172.704 does not specify the manner in which records must be maintained. PHMSA agrees with the concerns raised by ATA, IVODGA, DGAC, COSHTA and NTTC regarding the availability of training records. Therefore, based on the comments received, in this final rule PHMSA is adopting the proposed amendments to the training record requirements specified in § 172.704(d) and will modify the text to replace the reference to an authorized official of ‘‘the Department of Homeland Security’’ with a reference to an authorized official ‘‘of an entity explicitly granted authority to enforce the HMR.’’ This will ensure that appropriate agencies, including the USCG, have access to the required training records, while limiting unnecessary review of training records and safeguarding personally identifying E:\FR\FM\11MRR1.SGM 11MRR1 15310 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations information for members of the regulated community. mstockstill on DSK4VPTVN1PROD with RULES Dewar Flasks Transported as Materials of Trade Section 173.6 specifies the exceptions for shipments of materials of trade. A material of trade, is defined in § 171.8 as ‘‘a hazardous material, other than a hazardous waste, that is carried on a motor vehicle for the purpose of protecting the health and safety of the motor vehicle operator or passengers; for the purpose of supporting the operation or maintenance of a motor vehicle (including its auxiliary equipment); or by a private motor carrier (including vehicles operated by a rail carrier) in direct support of a principal business that is other than transportation by motor vehicle.’’ Section 173.6 authorizes only specific hazard classes and quantities to use the materials of trade exception. A hazardous material that meets the definition of a material of trade and is transported by motor vehicle in conformance with § 173.6 is not subject to any other requirements of the HMR except for those explicitly set forth or referenced in § 173.6. PHMSA recently received a request for a formal letter of interpretation pertaining to the application of the materials of trade exception (Reference No.: 10–0101). The letter expressed confusion and concern regarding whether the exception would apply to Division 2.1 and Division 2.2 compressed gas transported in Dewar flasks. PHMSA acknowledged this requirement needs additional clarification, as we believe that increased clarity will help to ensure the intended application of the materials of trade exception. Therefore, in the NPRM, PHMSA proposed to modify § 173.6(a)(2) to clarify that Dewar flasks may be transported as materials of trade provided these materials meet all the requirements specified in § 173.6. PHMSA received no comments on these proposed amendments to the materials of trade requirements specified in § 173.6(a)(2). Therefore, we are adopting these amendments as proposed. Lab Packs Containing TemperatureControlled Materials Section 173.12 specifies the exceptions for shipment of waste materials including the requirements for waste packages known as ‘‘lab packs.’’ A lab pack, although not specifically defined in § 171.8, is considered a large outer packaging containing small inner packagings that are filled with various VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 compatible laboratory hazardous wastes. In accordance with § 173.12, a lab pack is a combination packaging consisting of a glass inner packaging, not exceeding 4 L (1 gallon) rated capacity, or a metal or plastic inner packaging, not exceeding 20 L (5.3 gallons) rated capacity. Inner packagings containing liquid must be surrounded by a chemically compatible absorbent material in sufficient quantity to absorb the total liquid contents. These inner packagings are then further packed in specification outer packaging and the completed package must not exceed a gross weight of 205 kilograms. The requirements and regulatory relief provided for the transportation of waste hazardous materials under the lab pack exception are further specified in § 173.12(b) of the HMR. On July 17, 2007, PHMSA published a request for comments regarding the conversion of special permits into the HMR in the Federal Register under Docket Number PHMSA–2007–27329 (HM–233A) [72 FR 388110] entitled, ‘‘Hazardous Materials: Conversion of Special Permits into Regulations of General Applicability.’’ In response to this notice PHMSA received comments requesting the incorporation of various special permits including special permit DOT SP–13192. Subsequently, PHMSA published in the Federal Register under Docket Number PHMSA–2009–27289 (HM–233A) [74 FR 68004] an NPRM entitled, ‘‘Hazardous Materials: Incorporation of Special Permits Into Regulations’’ proposing the incorporation of special permit DOT SP–13192. The lab pack requirements were then amended in a final rule published on May 14, 2010, in the Federal Register under Docket Number PHMSA–2009–0289 (HM–233A) [74 FR 53413] entitled, ‘‘Hazardous Materials: Incorporation of Special Permits into Regulations.’’ As part of these amendments, certain widely used and longstanding special permits, including special permit DOT SP–13192, were incorporated into the HMR. Specifically, the incorporation of this special permit authorized the transport of waste Division 4.2, Packing Group (PG) I material and Division 5.2 (organic peroxide) material in lab packs. PHMSA recently received a request for a formal letter of interpretation pertaining to the recent changes of the lab pack exception (Reference No.: 10– 0233). The writer expressed confusion and concern regarding whether the amendments of the HM–233A final rule authorized the transportation, as lab packs, of Division 4.1 and Division 5.2 materials that were also required to be temperature-controlled. PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 PHMSA acknowledged that this requirement needed additional clarification, as we believe that increased clarity will help to ensure that individuals transporting lab packs containing temperature-controlled materials are aware that such packagings are not excepted from other safety measures. Therefore, in the NPRM, PHMSA proposed to modify § 173.12 to clarify that temperaturecontrolled materials may be transported in lab packs provided these materials also meet the requirements in § 173.21(f)(1). PHMSA received one comment on this proposed amendment. Veolia commented that ‘‘PHMSA’s incorporation of the clarification to require shippers to also comply with operational controls for the transportation of temperature controlled materials in § 173.21(f)(1) is greatly appreciated.’’ Veolia did however note that it has additional safety concerns involving the shipment of Division 5.2 materials under the lab pack exception stemming from the adoption of the amendments of HM–233A that it believes PHMSA should also address. These additional safety concerns related to the HM–233A final rule were beyond the scope of this rulemaking and thus not addressed in this final rule. Therefore, we are adopting as proposed the amendment to clarify that temperature-controlled materials may be transported in lab packs provided these materials also meet the requirements in § 173.21(f)(1). Cargo Tank Motor Vehicles Self-Closing Stop Valves Section 173.33 provides the requirements for hazardous materials transported in CTMVs. This section includes general requirements for CTMVs, as well as more specific requirements for loading, maximum lading pressure, relief systems, and closing valves. Section 173.33(g) requires each liquid filling and liquid discharge line in a specification MC 338 cargo tank must be provided with a remotely-controlled internal self-closing stop valve except when the MC 338 cargo tank is used to transport argon, carbon dioxide, helium, krypton, neon, nitrogen, or xenon. The discharge control device requirements for a MC 338 cargo tank are found in § 178.338–11(b) and state that each liquid filling and liquid discharge line must be provided with a shut-off valve located as close to the tank as practicable and, unless the valve is manually operable at the valve, the line must also have a manual shut-off valve. E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations PHMSA received a request for a formal letter of interpretation regarding the current requirements for MC 338 cargo tanks (Reference No.: 06–0243). According to the request, most vacuum insulated MC 338 cargo tanks operate at temperatures below the reliable operating temperature of available internal self-closing stop valves, and currently no manufacturer builds an internal self-closing stop valve that will operate reliably at temperatures that may reach minus 452 °F. The requestor asked if a MC 338 cargo tank is required to have a remotely-controlled internal self-closing stop valve as specified in § 173.33(g), provided an external stop valve is present in accordance with § 178.338–11(b). PHMSA does not intend to require a remotely-controlled internal self-closing stop valve if the MC 338 cargo tank already uses an external self-closing stop valve to meet the requirements in § 178.338–11(b). Therefore, in the NPRM, we proposed to revise the provisions in § 173.33(g) to clarify this exception. PHMSA received no comments on these proposed amendments to the requirements for CMTV Self-Closing Stop Valves specified in § 173.33(g), and are adopting these amendments as proposed. mstockstill on DSK4VPTVN1PROD with RULES Explosive Packaging Editorial Revision Section 173.62 specifies packaging requirements for explosives. Specifically, § 173.62 provides a table that specifies the packaging instructions, and corresponding authorized inner, intermediate and outer packagings based on the assigned identification number of the explosive. In a final rule published on September 13, 2011, under Docket Number PHMSA–2011–0134 (HM– 244D) [76 FR 56304], entitled ‘‘Minor Editorial Corrections and Clarifications,’’ PHMSA revised § 173.62(c)(5) packaging instruction 130 to authorize the use of aluminum boxes (4B) and natural wood, sift-proof walls boxes (4C2). However, the following language was inadvertently removed from the first column of the packing instruction: ‘‘2. Subject to approval by the Associate Administrator, large explosive articles, as part of their operational safety and suitability tests, subjected to testing that meets the intentions of Test Series 4 of the UN Manual of Tests and Criteria with successful test results, may be offered for transportation in accordance with the requirements of this subchapter.’’ PHMSA did not intend to remove this portion of the packaging instruction and unnecessarily limit the transport of large VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 explosive articles. Therefore, in the April 26, 2012 NPRM, PHMSA proposed to revise § 173.62(c)(5) packing instruction 130 to reinstate the language inadvertently removed from the first column of packing instruction 130. PHMSA received no comments on these proposed amendments to the explosive packaging instruction 130 in § 173.62(c)(5). Therefore, we are adopting this amendment as proposed in the NPRM. Exclusive Use Vehicles for Regulated Medical Waste (RMW) Section 173.134 provides definitions and exceptions for infectious substances. Paragraph (c)(2) of this section requires a Regulated Medical Waste (RMW) that contains Category B cultures and stocks to be transported on a vehicle ‘‘used exclusively’’ to transport RMW. A Category B substance is defined as ‘‘an infectious substance that is not in a form generally capable of causing permanent disability or lifethreatening or fatal disease in otherwise healthy humans or animals when exposure to it occurs.’’ As amended on July 20, 2011, in a final rule published under Docket Number PHMSA–2009–0151 (HM– 218F) [76 FR 43510], entitled ‘‘Miscellaneous Amendments,’’ PHMSA revised § 173.134(c)(2) to incorporate the clarifications from a March 19, 2007 letter of interpretation (Ref. No. 07– 0057). Specifically, PHMSA specified 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. In response to the proposals in the HM–218F NPRM, Stericycle 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 those covered under special permit DOT SP– 13556, which authorizes the transportation of sharps in specialized containers. At the time of the July 20, 2011 final rule, PHMSA determined that incorporating special permit DOT SP– PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 15311 13556 into the HMR was beyond the scope of that rulemaking, but this issue would be addressed in a future NPRM. Therefore, in the NPRM published on April 26, 2012 PHMSA proposed to revise § 173.134(c)(2) to incorporate special permit DOT SP–13556 relating to the transport of regulated medical waste into the HMR. PHMSA received one comment from Stericycle expressing full support for this proposal. Stericycle did not suggest edits to the regulatory text incorporating DOT–SP 13556. Therefore, we are adopting this amendment as proposed in the NPRM. Furthermore, we are reinstating the text previously adopted in the HM–218F final rule published under Docket Number PHMSA–2009– 0151 (HM–218F) [76 FR 43510] as it was inadvertently deleted from the HMR. However, Stericycle did express its belief that the definition of sharps specified in § 173.134 (a)(6) should be amended to include unbroken glass contaminated with a pathogen or that could become contaminated with a pathogen so the regulated community has a better understanding of the definition of sharps. Although PHMSA agrees that a clarification of the definition of ‘‘sharps’’ may assist the regulated community in understanding the applicable requirements, such a revision is beyond the scope of the original proposed amendments and will not be addressed in this final rule. Alcoholic Beverages Exception Section 173.150 provides exceptions from the HMR for certain Class 3 flammable liquid material. Specifically, § 173.150(d) provides exceptions for alcoholic beverages for all modes of transport. An alcoholic beverage (wine and distilled spirits as defined in 27 CFR 4.10 and 5.11) that meets one of three conditions specified in § 173.150(d) is not subject to the requirements of the HMR for a Class 3 flammable liquid material. These conditions include; (1) Containing 24 percent or less alcohol by volume; (2) being packaged in an inner packaging of 5 L (1.3 gallons) or less, and for transportation on passenger-carrying aircraft conforming to § 175.10(a)(4) as checked or carry-on baggage; or (3) for a Packing Group III alcoholic beverage being packaged in a packaging of 250 L (66 gallons) or less, unless transported by air. Currently, the ICAO TI provide exceptions for alcoholic beverages transported via aircraft in Chapter 3; 3.1.1, Table 3–2, special provision A9 and Chapter 8; 8.1.2 paragraph (l). Specifically, Chapter 3; 3.1.1 Table 3–2 special provision A9 states that E:\FR\FM\11MRR1.SGM 11MRR1 mstockstill on DSK4VPTVN1PROD with RULES 15312 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations alcoholic beverages containing not more than 70 percent alcohol by volume, when packaged in receptacles of 5 liters of less are not subject to the ICAO TI when carried as cargo. In addition, as specified in Chapter 8; 1.1.2 paragraph (l) of the ICAO TI, alcoholic beverages with less than 24 percent alcohol by volume or alcoholic beverages in retail packaging and alcoholic beverages containing more than 24 percent but not more than 70 percent alcohol by volume in receptacles not exceeding 5 liters are permitted to be carried by passengers or crew in carry-on or checked luggage and are not otherwise subject to the ICAO TI. Generally, the HMR is harmonized with the ICAO TI with regard to the exceptions provided for alcoholic beverages shipped by passenger carrying and cargo aircraft. However, for cargo aircraft, the HMR does not align with the ICAO TI. For example, as specified in § 173.150(d), the HMR excepts alcoholic beverages in an inner packaging of 5 L (1.3 gallons) or less from regulation regardless of the alcohol percent on cargo aircraft. In contrast, the ICAO TI limits this exception to alcoholic beverages not exceeding 70 percent alcohol by volume. This lack of harmonization can lead to frustration of shipments of these types of materials in international air transport. To address this issue, in the April 26, 2012 NPRM, PHMSA proposed to revise the exceptions in § 173.150(d) to harmonize the alcoholic beverages exception via aircraft with the requirements in the ICAO TI, and to restructure the exceptions in § 173.150(d) to provide clarity on the requirements for the transport of alcoholic beverages by each mode of transport including passenger carrying and cargo aircraft. PHMSA received one comment on these proposed amendments. COSTHA strongly supports this and other international harmonization efforts. However, COSTHA believes the revisions to § 173.150, as proposed in the NPRM, prohibit the exception from being applied to alcohol shipped as cargo on passenger aircraft. The proposed text in § 173.150(d)(2)(iii) states alcoholic beverages transported aboard a cargo aircraft containing more than 24 percent but less than 70 percent alcohol by volume in an inner packaging of 5L (1.3 gallons) or less are not subject to the requirements of Subchapter C of the HMR. COSTHA notes that ICAO SP A9 states ‘‘[a]lcoholic beverages containing not more than 70 per cent alcohol by volume, when packed in receptacles of 5 litres or less, are not subject to these VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 instructions when carried as cargo.’’ In the ICAO TI, the word ‘cargo’ does not mean cargo aircraft, but is defined in ICAO 3.1 as ‘‘any property carried on an aircraft (passenger or cargo) other than mail and accompanied or mishandled baggage.’’ Therefore in an effort to fully harmonize COSTHA recommends PHMSA modify the language in the proposed § 173.150(d)(2)(iii) to remove the word ‘‘cargo’’ before aircraft allowing harmonization with the ICAO TI for alcoholic beverages on aircraft, both passenger and cargo. PHMSA appreciates COSTHA’s comments and its general support for the amendments. On a passenger carrying aircraft an alcoholic beverage could be transported in three specific scenarios: (1) As carry-on baggage, (2) in checked baggage, or (3) as cargo. The language proposed in the NPRM addressed the first two of these transport scenarios but neglected to account for alcoholic beverages shipped as cargo aboard a passenger carrying aircraft. PHMSA did not intend to prohibit the alcoholic beverage exception from being applied to alcohol being shipped as cargo on passenger aircraft. PHMSA agrees with the statement that ICAO SP A9 states ‘‘[a]lcoholic beverages containing not more than 70 per cent alcohol by volume, when packed in receptacles of 5 litres or less, are not subject to these instructions when carried as cargo’’ regardless of whether it is a passenger carrying or cargo carrying aircraft. Therefore, we are revising the proposed language in § 173.150(d)(2)(iii) so that the exception for alcoholic beverages containing more than 24% but less than 70% alcohol by volume in an inner packaging not exceeding 5 L (1.3 gallons) may be transported as cargo aboard both passenger and cargo aircraft. We also note that when carried as cargo aboard a passenger carrying aircraft, the passenger provisions of § 175.10(a)(4) would no longer be applicable. PHMSA is confident the revised text correctly reflects all transportation scenarios for alcoholic beverages and the exceptions provided for both passengers transporting alcoholic beverages via carry-on or checked baggage and transport of alcoholic beverages as cargo via cargo and passenger aircraft. Therefore, we are adopting these amendments as proposed in the NPRM, with the additional revision of § 173.150(d)(2)(iii). Exceptions for Non-Spillable Batteries Section 173.159 specifies requirements for the transportation of wet batteries, including non-spillable PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 batteries. Additional exceptions for nonspillable batteries are specified in § 173.159a. If certain transport conditions specified in §§ 173.159 and 173.159a are met, such as specific packaging and securement requirements, non-spillable batteries are excepted from the HMR. In a final rule published on January 14, 2009, under Docket Nos. PHMSA– 2007–0065 (HM–224D) and PHMSA– 2008–0005 (HM–215J) [74 FR 2200], entitled ‘‘Hazardous Materials: Revision to Requirements for the Transportation of Batteries and Battery-Powered Devices; and Harmonization With the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization’s Technical Instructions,’’ PHMSA amended § 173.159(f) to describe the conditions under which a battery is considered ‘‘non-spillable,’’ and relocated the exceptions pertaining to non-spillable batteries from §§ 173.159(d) and 173.159(f), to a new § 173.159a. However, when these exceptions were relocated, PHMSA inadvertently required that excepted non-spillable batteries must be securely packaged in strong outer packagings. This modification, in essence, prohibited excepted batteries from being palletized or placed on a skid. Therefore, in the NPRM published on April 26, 2012, PHMSA proposed to revise § 173.159a(c)(1) to except from the packaging requirements of § 173.159, non-spillable batteries that are secured to skids or pallets and capable of withstanding the shocks normally incident to transportation, provided the batteries meet the requirements of § 173.159(a) and are loaded or braced so as to prevent damage and short circuits in transit. Further, any other material loaded in the same vehicle must be blocked, braced, or otherwise secured to prevent contact with or damage to the batteries. PHMSA received one comment on these proposed amendments to the exceptions for non-spillable batteries specified in § 173.159a(c)(1). IVODGA welcomes the clarification of the exceptions in § 173.159a for nonspillable batteries secured to skids or pallets which align the HMR with the requirements and exceptions within the IMDG Code and supports the ongoing efforts to reduce frustrated shipments in multi-modal commerce by international carriers such as the IVODGA membership. However, IVODGA expresses confusion regarding the applicability of the incident reporting requirements to a shipment of batteries that meets the E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES exception provided in § 173.159a(d). To alleviate this perceived lack of clarity, IVODGA suggests PHMSA clarify the text in §§ 173.159a(b) and 173.159a(d) to specify whether the exception from incident reporting requirements is applicable. Based on the current text ‘‘are subject to the incident reporting requirements’’ specified in § 173.159a(b) it is apparent that shipments complying with this section would be subject to the incident reporting requirements. Furthermore, § 173.159a(d) states that ‘‘Non-spillable batteries are excepted from all other requirements of this subchapter when offered for transportation and transported in accordance’’ with paragraph (c) and (d) of § 173.159a. The term ‘‘excepted from all other requirements of this subchapter’’ is used throughout the HMR to indicate that only the requirements of the paragraph in which that statement is included would apply. Paragraphs (c) and (d) of § 173.159a do not mention incident reporting requirements. Therefore, we believe it is clear that provided a shipment of non-spillable batteries meets the requirements of § 173.159a(c) and § 173.159a(d), which do not include the incident reporting requirements, it is not subject to any other requirements contained in the HMR; therefore, we are not adopting any additional suggested amendments to § 173.159a. Based on the foregoing, PHMSA is adopting the amendment to § 173.159a(c)(1), as proposed in the NPRM. Cargo Tank Motor Vehicle Closures Section 177.834 provides the general requirements for the loading and unloading of vehicles intended to transport hazardous materials via ground transportation. Paragraph (j) of this section requires CTMVs to be transported with all valves and other closures in liquid discharge systems to be closed and free of leaks unless transported in accordance with the requirements for empty packages specified in § 173.29(b)(2). The provision specified in § 177.834(j) was added on May 30, 1996, in a final rule published under Docket Number HM–222B [61 FR 27166] to consolidate the closure requirements for cargo tanks transporting Class 3 (flammable liquid) materials, Class 8 (corrosive) materials, and Division 6.1 (poisonous) materials. This rule inadvertently overlooked the impact the closure requirement would have on MC 338 cargo tanks that transport cryogenic liquids. These tanks have external self-closing valves that are normally transported in an open position and are designed to close with a tremendous amount of force to ensure VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 proper closure. Subsequently, these valves require a large amount of force and effort to open. As a result, the potential for physical injury to employee personnel is increased and the ability of the valve system to operate is potentially compromised as a result of repeated cycling (opening, closing, and testing). In the NPRM published on April 26, 2012, PHMSA proposed to revise § 177.834(j) to permit external emergency self-closing valves on MC 338 cargo tanks containing residues of cryogenic liquids to remain either open or closed during transit. PHMSA received no comments on these proposed amendments to the closure requirements for external emergency self-closing valves on MC 338 cargo tanks specified in § 177.834(j), and are adopting these amendments as proposed. Cargo Tank Motor Vehicle (CTMV) Recordkeeping Certain CTMVs require as part of their specification both a CTMV manufacturer’s data report and a certificate stating that the completed CTMV conforms in all respects to the appropriate specification and the American Society of Mechanical Engineers (ASME) Code. Section 178.2(c)(1) currently excepts CTMVs that require a manufacturer’s data report and certificate from the notification requirements. Specifically, § 178.2(c)(1) states that CMTV’s in compliance with §§ 178.337–18 and 178.345–10 are excepted from the notification requirements specified in § 178.2(c)(1). The current reference to § 178.345–10 in § 178.2(c)(1) refers to pressure relief, not the CTMV manufacturer’s data report and certificates for DOT 406, 407 and 412 (CTMVs), and is in error. The correct citation should read § 178.345– 15, which refers to the manufacturer’s data report and certification of DOT 406, 407 and 412 CMTVs. In addition, we also note that a reference to a MC 338 cargo tank manufacturer’s data report certificate in § 178.338–19 is missing in § 178.2(c)(1). Therefore, in the April 26, 2012 NPRM, PHMSA proposed to correct these errors and omissions by replacing the reference to § 178.345–10 with § 178.345–15 and adding a reference to § 178.338–19. PHMSA received one positive comment and no negative comments on the proposed amendments to the recordkeeping requirements for CTMV specified in § 178.2(c)(1). DGAC supports such an amendment. This revision will increase compliance by revising incorrect citations and PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 15313 correcting unintended errors in the HMR. Therefore, we are adopting these clarifications as proposed in the NPRM. Flame Penetration Resistance Test Appendix E to Part 178 describes the Flame Penetration Resistance Test referenced throughout the HMR with regard to the outer packaging for chemical oxygen generators and cylinders containing compressed oxygen. This appendix specifies requirements for the Flame Penetration Resistance Test and includes criteria for acceptance of a passing test result, a summary of the test method and procedure, details on the preparation of test specimens, and construction and calibration specifications for the test equipment. The test procedure is described in section (g)(2) of this Appendix and references a ‘‘Figure 1,’’ However, the Figure 1 is omitted. In sections (d)(3) and (f)(2) of this Appendix, the design and calibration of the calorimeter is described and refers to a ‘‘Figure 2,’’ but Figure 2 is also omitted. In the April 26, 2012 NPRM, PHMSA proposed to add Figures 1 and 2 that were referenced but inadvertently omitted from Appendix E. PHMSA received no comments on the proposed addition of the figures inadvertently omitted in Appendix E to Part 178, and is adopting these amendments as proposed in the NPRM. Discharge System Inspection and Maintenance Program Section 180.416 details the requirements for a discharge system inspection and maintenance program for cargo tanks transporting liquefied compressed gases. Specifically, § 180.416 applies to operators using specification MC 330, MC 331, and nonspecification cargo tanks authorized under § 173.315(k) for transportation of liquefied compressed gases other than carbon dioxide. As part of the discharge system inspection specified in this section, the operator must visually inspect each delivery hose assembly at least once each calendar month in which the delivery hose assembly is in service and keep a record of each inspection. In accordance with § 180.416(d), that record must include the inspection date, the name of the person performing the inspection, the hose assembly identification number, the company name, the date the hose was assembled and tested, and an indication that the delivery hose assembly and piping system passed or failed the tests and inspections. There has been some confusion among the regulated community E:\FR\FM\11MRR1.SGM 11MRR1 15314 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES pertaining to the requirement to include ‘‘the company name’’ in the record as specified in § 180.416(d). Specifically, there was concern over whether ‘‘the company name’’ refers to the name of the operator or the name of the manufacturer of the hose. In the April 26, 2012 NPRM, PHMSA proposed to revise § 180.416(d) to clarify that the reference to the ‘‘company name’’ on the inspection record is the name of the hose manufacturer. PHMSA received no comments on the proposed clarification of the discharge system inspection and maintenance program recordkeeping requirements specified in § 180.416(d), and is adopting these amendments as proposed. C. Comments Beyond the Scope of This Rulemaking In this section, PHMSA discusses the comments to the NPRM that provided suggestions for additional revisions that were not specifically proposed in the NPRM. Based on an assessment of the proposed changes and the comments received, PHMSA identified four comments that are beyond the scope of this rulemaking action. Specifically, these comments were submitted by Stericycle, IVODGA, Veolia, and Richard Zbilski. These comments pertain to a revision to the definition of sharps, electronic retention of training records, the lab pack revisions adopted into the HMR in a final rule entitled ‘‘Hazardous Materials: Incorporation of Special Permits into Regulations’’ under PHMSA–2009–0289 [70 FR 43638] (HM–233A) and published in the Federal Register on May 14, 2010, and the environmental impact of fireworks. As these suggested amendments were not proposed in the NPRM and the regulated community was not given the opportunity to comment on these amendments, PHMSA is unable to address them in this final rule. If PHMSA chooses to pursue consideration of any of these comments, we will do so in a separate rulemaking. PHMSA appreciates Stericycle, IVODGA, Veolia, and Richard Zbilski bringing these issues to our attention and invites them to file petitions for rulemaking in accordance with § 106.95 including all information (see § 106.100) needed to support a petition if these commenters believe these amendments warrant rulemaking action. PHMSA briefly discusses these comments below. Revision to the Definition of Sharps In the April 26, 2012 NPRM, PHMSA proposed to incorporate special permit DOT SP–13556 into § 173.134, to VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in nonDOT specification containers fitted into wheeled racks. In addition to its comments regarding the incorporation of this special permit DOT SP–13556, Stericycle also submitted a comment with regard to the definition of the term ‘‘sharps’’ as specified in § 173.134(a)(6). Stericycle stated that the definition of ‘‘sharps’’ should be amended to include ‘‘unbroken glass contaminated with a pathogen or that could become contaminated with a pathogen so the regulated community has a better understanding of the definition of sharps.’’ Although clarification of the definition of ‘‘sharps’’ may assist the regulated community in understanding the applicable requirements, PHMSA has determined that such an amendment is beyond the scope of the proposals presented in the April 26, 2012 NPRM and therefore will not be addressed in this final rule. Electronic Retention of Training Records In addition to its comments regarding the proposed revisions to the training record requirements specified in § 172.704(d), IVODGA also requested PHMSA ‘‘consider electronic means of recordkeeping as alternatives to hard copy documents for the sake of time saving in producing records at the request of a duly authorized representative.’’ As this specific amendment was not proposed in the April 26, 2012 NPRM, it is considered outside the scope of this rulemaking and will not be addressed in this final rule. It should be noted that PHMSA currently does not prohibit the use of electronic training records as § 172.704 does not specify the manner (i.e. paper or electronic) in which records must be kept. Reconsideration of the Lab Pack Requirements Adopted Under HM– 233A In addition to its comments regarding the proposed revisions to the lab pack requirements specified in § 173.12, Veolia also requested that PHMSA reconsider amendments adopted in the HMR in a final rule entitled ‘‘Hazardous Materials: Incorporation of Special Permits into Regulations’’ under PHMSA–2009–0289 [75 FR 27205] (HM–233A) and published in the Federal Register on May 14, 2010. Specifically, Veolia requests PHMSA reconsider further amending the requirements for lab pack to address various safety concerns it claims have resulted from the adoption of the HM– PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 233A final rule. Veolia is concerned that amendments adopted in HM–233A rulemaking will diminish the safety of the shipments of waste Division 5.2 materials for disposal by increasing the potential for misclassification of the hazardous materials by the shipper and allowing the use of a less rigorous packaging. Veolia’s specific comments can be reviewed in the docket for this rulemaking. As the revisions to the lab pack requirements Veolia references were already proposed and offered for comment in the HM–233A NPRM and later addressed in the HM–233A final rulemaking, PHMSA does not intend to revisit them in this final rule. PHMSA believes the additional comprehensive comments from Veolia would be more appropriately addressed in a separate rulemaking specific to lab pack requirements where they can be offered for comment from the regulated community prior to adoption. We appreciate Veolia bringing its safety concerns to our attention and encourage it to file a petition for rulemaking in accordance with § 106.95 including all information (see § 106.100) needed to support a petition if it believes these amendments warrant rulemaking action. Fireworks Containing Sulfur PHMSA received one comment from a concerned individual regarding the pollution resulting from the use of fireworks. Specifically, the commenter expresses concern about the amount and type of pollution emitted when using fireworks. The topic of fireworks was not addressed in the April 26, 2012 NPRM, and is therefore, beyond the scope of this rulemaking. It should be noted that PHMSA published in the Federal Register under Docket Number PHMSA–2010–0320 [74 FR 68004] (HM–257) an NPRM entitled, ‘‘Hazardous Materials: Revision to Fireworks Approvals (RRR)’’ that addresses fireworks-related issues. The docket for the fireworks rulemaking can be found at https://www.regulations.gov under PHMSA–2010–0320 (HM–257). D. Provisions Not 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 identified one provision that we are not adopting in this final rule. Specifically, PHMSA received considerable negative comments on the proposed revision to the closure notification requirements. Below is a summary of the amendment proposed, the comments received, and E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES PHMSA’s rationale for not adopting this proposed amendment. Closure Notification Requirements Section 178.2 specifies the applicability of the requirements to specification packagings and the responsibilities of the manufacturer or other persons certifying compliance with the specification packaging requirements of Part 178. To achieve compliance with these requirements, the manufacturer or other person certifying compliance with the requirements of Part 178 must provide both notification to each person to whom a packaging is transferred of all requirements in Part 178 not met at the time of transfer, and applicable closure requirements for the packaging. These closure requirements include information specifying the type(s) and dimensions of the closures, including gaskets and any other components needed to ensure that the packaging is capable of successfully passing the applicable performance tests. This information must include any procedures to be followed, including closure instructions for inner packagings and receptacles, to effectively assemble and close the packaging for the purpose of preventing leakage in transportation. Closure instructions must provide for a consistent and repeatable means of closure that is sufficient to ensure the packaging is closed in the same manner as it was tested. In April 2006, PHMSA received a request (Reference No.: 06–0123) for a letter of interpretation seeking clarification of the closure notification requirements specified in § 178.2(c) for ‘‘packages’’ containing residues. This letter was submitted to PHMSA requesting additional clarification on two previously issued letters of interpretation (Reference Numbers 05– 0015 and 05–0265) which also addressed the topic of closure requirements with regard to ‘‘packaging’’ and ‘‘packages.’’ In response to Reference No. 06–0123, PHMSA indicated that ‘‘packages’’ containing residues must meet the notification requirements of § 178.2(c) and that we would clarify this issue in a future rulemaking. In the April 26, 2012 NPRM, PHMSA addressed this need for clarification by proposing to revise § 178.2(c) to specify that the notification requirements apply to a packaging containing a residue of a hazardous materials unless the packaging of hazardous materials meets the exceptions provided in § 173.29(b). PHMSA received seven comments on these proposed amendments from ACA, VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 AHS, DGAC, NACD, RIPA, USWA and Veolia. All of the comments were extensive and strongly opposed to the amendment proposed. The commenters addressed topics related to the proposed amendments such as the intent and applicability of § 178.2(c); impact on reconditioners, recyclers and re-users of packagings; information collection burden; economic implications, and the safety benefit, or lack thereof. PHMSA appreciates this feedback and an overview of these comments is provided below. The complete list of comments pertaining to this amendment is available in the docket for this rulemaking. Several commenters disagree with the proposed amendments to the closure notification requirements stating that the changes did not reflect the initial intent and applicability of § 178.2(c). DGAC, whose membership includes virtually all sectors of the hazmat transportation industry, correctly noted that the term ‘‘packaging’’ as defined in § 171.8 and used in part 178 of the HMR refers only to receptacles that do not contain hazardous material. Subsequently, § 178.2(c) would apply to individuals moving ‘‘packagings’’ as defined in § 171.8, and not ‘‘packages’’ which would include packagings containing hazardous materials. DGAC also states that the term ‘‘subsequent distributors,’’ as used in § 178.2(c)(1), is limited to intermediaries between the packaging manufacturer and the hazmat offeror who fills the packaging with hazardous material. Likewise, ACA agrees that the requirements of § 178.2(c) apply to packaging manufacturers and those who perform functions described in Part 178; not subsequent transporters of previously filled packages. Another commenter, AHS, notes that the closure requirements were originally intended to identify those tasks of a packaging manufacturer that had not been completed by that packaging manufacturer. Therefore, the filler would be aware that certain actions were still required to be completed to produce, what at the time, was DOT specification packaging (e.g. assembling and closing a knocked down fiberboard box). Furthermore, it is AHS’s understanding that the primary intent of the requirement to ship an emptied package containing residue as if it were still full (See § 173.29) was to maintain the original hazard communications for the residues and not for the purposes of closure requirement notification of the packaging. AHS notes that the terms ‘‘package’’ and ‘‘packaging’’ are often incorrectly used interchangeably and suggests that this was the case in the PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 15315 letter of interpretation Reference No.: 06–0123 that precipitated the proposed amendment. In addition to the concerns about the initial intent of § 178.2(c), all commenters on this amendment express concern regarding the vast impact such an amendment would have on the regulated community, specifically reconditioners, recyclers and re-users of packagings. It was consistently noted that this amendment would fundamentally change the way hazardous materials packages are transported and have implications throughout the transportation chain. Many commenters had concerns about the economic impact and an increase in information collection burden. While PHMSA originally perceived this amendment as a simple clarification of an existing requirement, many commenters noted that the revision would provide new requirements and thus impose a new economic and paperwork burden. DGAC notes that the cost of such a change would be significant and the economic evaluation provided in the April 26, 2012 NPRM fails to address the associated costs. Furthermore, DGAC notes this change would require information collection as the scope of those subject to the closure notification requirements would expand. This information collection was not addressed in the April 26, 2012 NPRM. ACA states this proposed requirement will add significant costs and complexity to compliance efforts for containers that are sent for reconditioning and reuse. AHS asks that full consideration be given to the economic and paperwork impact of requiring every shipper and re-shipper of a filled package to provide and retain closure instructions. NACD notes that the operational requirements could have substantial economic impacts on chemical distributors and customers and could: ‘‘[E]asily result in tens of thousands of dollars of additional costs for a distributor, increasing with the number of shipments. Costs would be substantial for all distributors and would result primarily from mailing closure instructions to hundreds of customers and answering numerous calls for technical assistance from many of these customers.’’ RIPA reiterates the above comments and notes that ‘‘[r]equiring that reconditioners be provided notifications is a costly paperwork burden with no safety benefit of any kind.’’ In addition to the cost of the proposed amendment, many commenters were concerned that no safety issue was identified to necessitate such a change. ACA notes E:\FR\FM\11MRR1.SGM 11MRR1 mstockstill on DSK4VPTVN1PROD with RULES 15316 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations that while PHMSA indicates that this requirement will increase compliance, there is no indication in the NPRM that there are incidents involving container residues that stemmed from insufficient closure or any discussion of the risk posed by residue containers. ACA concludes that there does not appear to be a significant safety risk involved in the movement of these types of shipments. AHS notes the difficulty of implementing such a requirement. It provides an example demonstrating this difficulty by noting that for UN 4G fiberboard cartons, small UN1A2 drums, and crimped lid or friction lid pails, there is no realistic method to re-close the outer receptacle, or to provide inner liners, cushioning material, etc., for a package that usually is being discarded or recycled. AHS requests PHMSA provide incident data to ascertain whether any record of safety problems involves emptied non-bulk packaging with closures in place but not secured in accordance with the original packaging manufacturer’s instructions. NACD reiterates the above comments and states ‘‘PHMSA does not provide evidence that leaking empty containers have been a safety problem.’’ Based on the considerable feedback and a further consideration of the closure requirements in § 178.2(c), PHMSA is not adopting the amendment to the closure notification requirements as proposed in the April 26, 2012 NPRM or any amendments to the closure notification requirements. After further review, and as noted by numerous commenters, PHMSA rationalizes that it is apparent that the applicability of § 178.2(c) is specific to ‘‘packagings’’ and not ‘‘packages.’’ As defined in § 171.8, a packaging ‘‘means a receptacle and any other components or materials necessary for the receptacle to perform its containment function in conformance with the minimum packing requirements of this subchapter’’ while a package ‘‘means a packaging plus its contents.’’ Furthermore, as many commenters note, PHMSA agrees that the term ‘‘subsequent distributors’’ as used in § 178.2(c)(1) is intended to address intermediaries between the manufacturer and the hazmat offeror who fills the packaging with hazardous material. It is apparent that the requirement to notify each person to whom the ‘‘packaging’’ is transferred is the responsibility of each subsequent ‘‘packaging’’ distributor, not each offeror of a ‘‘package.’’ Furthermore, as is evident from PHMSA’s review of the information collection burden associated with the VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 closure notification requirements, the population to which this regulation is intended to apply is restricted to packaging manufacturers and packaging distributors and not to the entirety of shippers and offerors of hazardous materials packages. Based on the comments received, PHMSA will not be adopting any changes in the closure notification requirements specified in § 178.2(c). Subsequently, closure notification requirements would not be required to accompany a package containing a residue of a hazardous material that is transported for the purposes of reconditioning, recycling or re-use. It was not PHMSA’s intent to propose an amendment that would impose a significant additional economic and information collection burden on the regulated community. Furthermore, PHMSA did not intend to expand the applicability of § 178.2(c) beyond ‘‘packagings’’ to include ‘‘packages.’’ Rather, PHMSA’s intention was to address an issue previously identified in a letter of interpretation. However, based on further review and the rationale presented by commenters, we are rescinding the letter of interpretation Reference No.: 06–0123 as the letter contains incorrect information. In addition, PHMSA is also rescinding letters of interpretation Reference Numbers 05–0015 and 05–0265 as they also contain misinformation. Finally, many commenters suggest a thorough economic and safety analysis be conducted before amendments similar to those proposed in § 178.2(c) for closure notification requirements are adopted. At this time, PHMSA does not foresee the need for such analysis as no amendments are being adopted. III. Regulatory Analyses and Notices A. Statutory/Legal Authority for This Rulemaking This final rule is published under authority of Federal hazardous materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous materials in intrastate, interstate, and foreign commerce. This final rule makes miscellaneous amendments to the HMR. In addition, this final rule corrects errors in the hazardous materials table and corresponding special provisions, clarifies the requirements for lab packing temperature controlled materials and clarifies various cargo tank provisions and revises the training requirements to require that a hazmat PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 employer must make hazmat employee training records available upon request to an authorized officials. These amendments clarify regulatory requirements and, where appropriate, decrease the regulatory burden without compromising the safe transportation of hazardous materials in commerce. B. Executive Order 12866, Executive Order 13563 and DOT Regulatory Policies and Procedures This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget (OMB). The final rule is not considered a significant rule under the Regulatory Policies and Procedures order issued by the Department of Transportation [44 FR 11034]. In this rulemaking, we amend miscellaneous provisions in the HMR to clarify the provisions and to relax overly burdensome requirements. PHMSA anticipates the amendments contained in this rule will have economic benefits to the regulated community. This final rule is designed to increase the clarity of the HMR, thereby increasing voluntary compliance while reducing compliance costs. Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. In addition, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; and (5) consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome. In this final rule, PHMSA has involved the public in the regulatory process in a variety of ways. Specifically, in this rulemaking PHMSA is addressing issues and errors that were identified and tagged for future rulemaking consideration in letters of interpretation issued to the regulated community and through other correspondence with PHMSA stakeholders. In addition, PHMSA has responded to the TSI’s request to incorporate a guidance document E:\FR\FM\11MRR1.SGM 11MRR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations designed to assist the sulfur industry in ensuring the safe transport of molten sulfur (P–1581). PHMSA asked for public comments based on the proposals in the NPRM and upon receipt of public comment, PHMSA has addressed all substantive comments in this rulemaking action. The amendments in the final rule promote simplification and harmonization through interagency coordination. Specifically, in this final rule, PHMSA is simplifying the lab pack requirements, the hazardous materials table and special provisions and the requirements for cargo tank transportation. These revisions are expected to produce a safety benefit derived from the increased clarity and reduced ambiguity in the special provisions to the § 172.101 HMT, and the lab packaging and cargo tank requirements of the HMR. There are minimal additional costs. The clarity will result in net benefits. This final rule also promotes harmonization with international standards, such as the IMDG Code, Canada’s TDG requirements and the ICAO TI with regard to the handling of ‘‘Lead compounds, soluble n.o.s.’’ via vessel, rail shipments of residue between the United States and Canada and alcoholic beverages via aircraft. These revisions to the § 172.101 HMT will eliminate errors in the § 172.101 HMT, reduce ambiguity, harmonize the HMR with international regulations, and improve clarity. Many of these revisions were brought to PHMSA’s attention through letters of interpretation requested from the regulated community. Although these revisions are minor, they are expected to produce a safety benefit derived from the increased clarity and accuracy of the text in the § 172.101 HMT. This final rule adopts amendments that reduce the regulatory burden on the regulated community, allows for flexibility in achieving compliance and maintains an appropriate level of safety. This final rule permits flexibility in achieving compliance when transporting cargo tanks while maintaining an appropriate level of safety. This final rule also incorporates a special permit DOT SP–13556 that has a strong record of safety. Incorporating this permit into the HMR will provide wider access to the benefits of the provisions granted in this special permit, therefore, fostering greater regulatory flexibility without compromising transportation safety. A majority of the amendments adopted in this rulemaking are simple clarifications and did not require significant scientific or technological VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 information. However, when necessary, PHMSA used scientific or technological information to support its regulatory action. Specifically, such data was considered when structuring alternatives on how to best deal with issues regarding the safe transport of cargo tanks and the transport of alcoholic beverages with greater than 70% alcohol by volume via cargo aircraft. This information was used in the evaluation of alternative proposals and ultimately this information determined how best to promote retrospective analysis to modify and streamline existing requirements that are outmoded, ineffective, insufficient, or excessively burdensome. C. Executive Order 13132 This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (‘‘Federalism’’). This final rule preempts state, local and Indian tribe requirements but does not adopt 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 that is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials. This final rule concerns the classification, packaging, and handling of hazardous materials, among other covered subjects and as adopted preempts any state, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 15317 ‘‘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 must determine and publish in the Federal Register the effective date of Federal preemption. That effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. PHMSA proposes the effective date of federal preemption be 90 days from publication of this final rule in this matter in the Federal Register. D. Executive Order 13175 This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (‘‘Consultation and Coordination with Indian Tribal Governments’’). Because this final rule does not have tribal implications and does not impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required. E. Regulatory Flexibility Act, Executive Order 13272, and DOT Procedures and Policies The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines the rule is not expected to have a significant impact on a substantial number of small entities. This final rule amends miscellaneous provisions in the HMR to clarify provisions based on PHMSA’s initiatives and correspondence with the regulated community. While maintaining safety, it relaxes certain requirements that are overly burdensome. The changes are generally intended to provide relief to shippers, carriers, and packaging manufacturers, including small entities. Consideration of alternative proposals for small businesses. The Regulatory Flexibility Act directs agencies to establish exceptions and differing compliance standards for small businesses, where it is possible to do so and still meet the objectives of applicable regulatory statutes. In the case of hazardous materials transportation, it is not possible to establish exceptions or differing standards and still accomplish our safety objectives. The impact of this final rule is not expected to be significant. The E:\FR\FM\11MRR1.SGM 11MRR1 15318 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES amendments are generally intended to provide relief to shippers, carriers, and packaging manufactures and testers, including small entities. This relief will provide marginal positive economic benefits to shippers, carriers, and packaging manufactures and testers, including small entities however; these benefits are not at a level that can be considered economically significant. Therefore, this final rule will not have a significant economic impact on a substantial number of small entities. This final rule has been developed in accordance with Executive Order 13272 (‘‘Proper Consideration of Small Entities in Agency Rulemaking’’) and DOT’s procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered. F. Paperwork Reduction Act This final rule does not impose any new information collection requirements and in three instances marginally decreases the information collection burden on the regulated community. Specifically the following information collections affected by this rulemaking are: • Office of Management and Budget (OMB) Control Number 2137–0051; Rulemaking and Special Permit Petitions: A slight reduction in information collection burden is anticipated due to the incorporation of a DOT SP–13556 into § 173.134. This permit will allow individuals more flexibility when transporting sharps and decrease the need for special permits applications when transporting sharps as regulated medical wastes. • OMB Control Number 2137–0034; Hazardous Materials Shipping Papers and Emergency Response Information: A negligible reduction in information collection burden due to relaxation of the shipping paper description requirements for residues specified in § 172.203. Specifically, this will allow individuals more flexibility on the shipping paper descriptions when shipping waste internationally, and will correct a regulatory inconsistency between the HMR and Canadian Transportation of Dangerous Goods (TDG) regulations, fostering international transport of residues. • OMB Control Number 2137–0557; Approvals for Hazardous Materials: A slight reduction in information collection burden is anticipated due to relaxation of approval submittal requirements specified in § 105.40. Specifically, this relaxation will permit individuals wishing to apply with PHMSA to be an approved designated VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 agent to submit their applications either by standard mail or electronic mail. Currently, the HMR only permits submission through standard mail. This change will result in a decrease in duplicate hard copies submitted to PHMSA as well as a decrease in the processing time for such applications. • Although no new training recordkeeping requirements are adopted in this final rule, a minimal increase in information collection burden may be realized due to increased awareness of the training requirements resulting from the modifications specified in § 172.704. However; in accordance with 49 U.S.C. 5107(g), training records are exempted from the requirements of the paperwork reduction act. G. Regulation Identifier Number (RIN) A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. H. Unfunded Mandates Reform Act This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141,300,000 or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule. I. Environmental Assessment The National Environmental Policy Act, 42 U.S.C. 4321–4375, requires federal agencies to analyze proposed actions to determine whether the action will have a significant impact on the human environment. The Council on Environmental Quality (CEQ) regulations require federal agencies to conduct an environmental review considering: (1) The need for the proposed action; (2) alternatives to the proposed action; (3) probable environmental impacts of the proposed action and alternatives; and (4) the agencies and persons consulted during the consideration process. PHMSA is adopting miscellaneous amendments to the HMR based on PHMSA’s own initiatives including a review of the HMR, previous letters of interpretation and special permits we issued. These amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; PO 00000 Frm 00042 Fmt 4700 Sfmt 4700 eliminate unnecessary regulatory requirements; facilitate international commerce; and make these requirements easier to understand. Description of Action Docket No. PHMSA–2011–0138 (HM– 218G), Final Rule Transportation of hazardous materials in commerce is subject to requirements in the HMR, issued under authority of Federal hazardous materials transportation law, codified at 49 U.S.C. 5101 et seq. To facilitate the safe and efficient transportation of hazardous materials in international commerce, the HMR provide that both domestic and international shipments of hazardous materials may be offered for transportation and transported under provisions of the international regulations. Adopted Amendments to the HMR In this final rule, PHMSA is adopting amendments to: • Permit designated agents for nonresidents to submit designation requests by electronic mail in addition to traditional mail. • Add the Sulphur Institute’s (TSI) ‘‘Molten Sulphur Rail Tank Car Guidance’’ document to the list of informational materials not requiring incorporation by reference in § 171.7 (Responds to petition for rulemaking P– 1581). • Revise the § 172.101 Hazardous Materials Table (HMT) to correct an error in the transportation requirements for entries listed under the proper shipping name, ‘‘Hydrazine Dicarbonic Acid Diazide.’’ • Revise the § 172.101 HMT to remove the entry for ‘‘Zinc ethyl, see Diethylzinc’’ that was superseded by proper shipping names adopted in a previous rulemaking. • Add the entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III to the § 172.101 HMT that were inadvertently omitted. • Remove references to special provisions B72 and B74 in § 172.102. • Revise special provision 138 in § 172.102 to clarify the lead solubility calculation used for classification of material as a Marine Pollutant. • Revise the shipping paper requirements in § 172.203(e) to permit the phrase ‘‘Residue last contained’’ to be placed before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence. E:\FR\FM\11MRR1.SGM 11MRR1 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES • Update the training recordkeeping requirements in § 172.704 to specify that a hazardous materials (hazmat) employer must make hazmat employee training records available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or of an entity explicitly granted authority to enforce the HMR. • Clarify that the materials of trade exception in § 173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar flasks. • Clarify the lab pack provisions in § 173.12 pertaining to temperaturecontrolled materials contained in a lab pack. • Clarify the exceptions for external emergency self-closing valves on CTMVs in § 173.33(g) to specify that external emergency self-closing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation. • Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives. • Incorporate special permit DOT SP– 13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in non-DOT specification containers fitted into wheeled racks. • Revise the requirements for cargo air transport of alcoholic beverages § 173.150 to harmonize with the ICAO TI. • Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets. • Revise § 178.2(c) to correct incorrect regulatory citations. • Clarify the requirements for the Flame Penetration Resistance test required for chemical oxygen generators and certain compressed gases in Appendix E to Part 178. • Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases. Alternatives Considered Alternative (1)—No action alternative: Leave the HMR as is; do not adopt above-described amendments. The HMR requires various updates and clarifications to correct certain omissions, and errors. This action also includes a few minor modifications to existing regulatory requirements. If PHMSA chose the no-action alternative, the public would not receive the benefit of the various updates, clarifications, and modifications to the HMR, which will provide information, enhance safety, and provide relief certain unnecessary requirements. Therefore, VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PHMSA rejected the do-nothing alternative. Alternative (2)—Preferred Alternative: Go forward with the proposed amendments to the HMR in the NPRM, as described above. Environmental Consequences Hazardous materials are substances that may pose a threat to public safety or the environment during transportation because of their physical, chemical, or nuclear properties. The hazardous materials regulatory system is a risk management system that is prevention oriented and focused on identifying a safety hazard and reducing the probability and quantity of a hazardous material release. Hazardous materials are categorized by hazard analysis and experience into hazard classes and packing groups. The regulations require each shipper to classify a material in accordance with these hazard classes and packing groups. The process of classifying a hazardous material is itself a form of hazard analysis. Further, the regulations require the shipper to communicate a material’s hazards through use of the hazard class, packing group, and proper shipping name on the shipping paper and the use of labels on packages and placards on transport vehicles. Thus, the shipping paper, labels, and placards communicate the most significant findings of the shipper’s hazard analysis. A hazardous material is assigned to one of three packing groups based upon its degree of hazard, from a high hazard, Packing Group I to a low hazard, Packing Group III material. The quality, damage resistance, and performance standards of the packaging in each packing group are appropriate for the hazards of the material transported. Under the HMR, hazardous materials are transported by aircraft, vessel, rail, and highway. The potential for environmental damage or contamination exists when packages of hazardous materials are involved in accidents or en route incidents resulting from cargo shifts, valve failures, package failures, loading, unloading, collisions, handling problems, or deliberate sabotage. The release of hazardous materials can cause human death or injury, the loss of ecological resources (e.g. wildlife habitats), and the contamination of air, aquatic environments, and soil. Contamination of soil can lead to the contamination of ground water. Compliance with the HMR substantially reduces the possibility of accidental release of hazardous materials. When developing potential regulatory requirements, PHMSA evaluates those PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 15319 requirements to consider the environmental impact of each amendment. Specifically, PHMSA evaluates the: risk of release and resulting environmental impact; risk to human safety, including any risk to first responders; longevity of the packaging; and if the proposed regulation would be carried out in a defined geographic area, the resources, especially any sensitive areas, and how they could be impacted by any proposed regulations. Of the regulatory changes adopted in this rulemaking, ten have been determined to be editorial. As such, these amendments have no impact on: the risk of release and resulting environmental impact; human safety; longevity of the packaging; and none of these amendments would be carried out in a defined geographic area. These editorial amendments are as follows: • Revise the § 172.101 Hazardous Materials Table (HMT) to correct an error in the transportation requirements for entries listed under the proper shipping name, ‘‘Hydrazine Dicarbonic Acid Diazide.’’ • Revise the § 172.101 HMT to remove the entry for ‘‘Zinc ethyl, see Diethylzinc’’ that was superseded by proper shipping names adopted in a previous rulemaking. • Re-insert the entries for ‘‘Paint related material, flammable, corrosive (including paint thinning or reducing compound)’’ UN3469, PG II, and PG III in the § 172.101 HMT that were inadvertently omitted. • Remove references to special provisions B72 and B74 in § 172.102. • Revise special provision 138 in § 172.102 to clarify the lead solubility calculation used for classification of material as a Marine Pollutant. • Correct an inadvertent deletion of the § 173.62 packaging requirements for explosives. • Clarify the exceptions in § 173.159a for non-spillable batteries secured to skids or pallets. • Revise § 178.2(c) to correct erroneous regulatory citations. • Clarify the requirements for the Flame Penetration Resistance test specified for chemical oxygen generators and certain compressed gases in Appendix E to Part 178. • Clarify the inspection record requirements in § 180.416 for discharge systems of cargo tanks transporting liquefied compressed gases. The remaining non-editorial amendments are discussed in further detail and evaluated based on their overall environmental impact as follows: • The requirement to permit designated agents for non-residents to E:\FR\FM\11MRR1.SGM 11MRR1 mstockstill on DSK4VPTVN1PROD with RULES 15320 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations submit designation requests by electronic mail in addition to traditional mail does not impact positively or negatively on the risk of release, risk to human safety, or longevity of the packaging as the requirements of the special permit are designed to provide an equivalent level of safety to current regulatory requirements. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The adoption of the Sulphur Institute’s (TSI) ‘‘Molten Sulphur Rail Tank Car Guidance’’ document to the list of informational materials not requiring incorporation by reference in § 171.7 makes this document a reference material only and thus would only have a minimal impact. Specifically, complying with this document will limit the obstruction of valuable tank car markings, labels, and stencils as well as tank car safety appliance features such as ladders, which may result in a minimal positive impact with regard to the risk of release and risk to human safety. PHMSA acknowledges that the presence of minimal amounts of residue on the outside of a rail tank car results in the emission of small amounts of H2S, SO2, and SO3. However, the presence of this residue is a longstanding occurrence related to the shipment of molten sulfur and not related to or caused by this rulemaking. The adoption or recognition of the ‘‘Molten Sulfphur Rail Tank Car Guidance’’ document seeks to decrease any minimal amount of risk caused by this residue. This guidance document may also have an impact on tank car cleanliness which may result in increased longevity of the packaging. In addition, this guidance document could be carried out throughout the country, and is not thought to be specific to defined geographic area that includes any sensitive areas. • The revision of the shipping paper requirements in § 172.203(e) to permit the phrase ‘‘Residue last contained’’ to be placed before or after the basic shipping description sequence, or for rail shipments, directly preceding the proper shipping name in the basic shipping description sequence may have a minimal positive environmental impact. This impact would result from the diminished amount of delayed shipments between the United States and Canada and thus could diminish the risk of release, and risk to human safety. PHMSA does not anticipate that this amendment will affect the longevity of the packaging. • PHMSA does not anticipate the requirement to update the training recordkeeping requirements in VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 § 172.704 to specify that a hazmat employer must make hazmat employee training records available upon request to an authorized official of the Department of Transportation or of an entity explicitly granted authority to enforce the HMR will have any environmental impacts. PHMSA views this amendment as procedural and thus would have no impact on the risk of release, risk to human safety, or longevity of the package. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The amendment to permit Division 2.1 and 2.2 gases in Dewar flasks to use the Material of Trade exception specified in § 173.6 does not provide any new regulatory requirement; it simply clarifies PHMSA’s interpretation of the applicability of the section. Therefore, this amendment is a clarification and thus would have no impact on the risk of release, risk to human safety, or longevity of the package. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The amendment that clarifies that temperature-controlled materials meeting the lab pack requirements in § 173.12 must also comply with § 173.21(f)(1) may have a small positive environmental impact. Specifically, this amendment could provide valuable guidance that could eliminate the inclusion of incompatible materials in a lab pack and thus, lessen the risk of a release and risk to human safety. This amendment will have no impact on the longevity of the package. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The amendment that clarifies the exceptions for external emergency selfclosing valves on CTMVs in § 173.33(g) to specify that external emergency selfclosing valves on MC 338 cargo tanks containing cryogenic liquids may remain open during transportation may have a slight impact on the longevity of the CTMV closing valves. Limiting the closure of these valves could eliminate some deterioration and extend the lifespan of these CTMV valves. PHMSA also anticipates a positive impact on risk to human safety. These valves are designed to close with a tremendous amount of force to ensure proper closure. Subsequently, these valves require a large amount of force and effort to open. As a result, the potential for physical injury to employee personnel is increased and the ability of the valve system to operate is potentially compromised as a result of PO 00000 Frm 00044 Fmt 4700 Sfmt 4700 repeated cycling (opening, closing, and testing). PHMSA does not anticipate any impacts on the risk of release. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The incorporation of special permit DOT SP–13556 into § 173.134, to authorize the transportation by motor vehicle of certain regulated medical wastes, designated as sharps, in nonDOT specification containers fitted into wheeled racks should have no environmental impact. As special permits are designed to provide an equivalent level of safety to current regulatory requirements PHMSA anticipates no impact on the risk of release, risk to human safety, or longevity of packaging. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. • The harmonization of the requirements for cargo air transport of alcoholic beverages specified in § 173.150 with the ICAO TI may have a minimal environmental impact. The international harmonization of hazardous materials regulations will discourage delayed shipments and thus could positively affect the risk of release, risk to human safety. PHMSA does not anticipate this amendment will affect the longevity of the packaging. Furthermore, this requirement would not be carried out in a defined geographic area including any sensitive areas. Agencies Consulted This final rule would affect some PHMSA stakeholders, including hazardous materials shippers and carriers by highway, rail, vessel, and aircraft, as well as package manufacturers and testers. PHMSA sought comment on the environmental assessment contained in the April 26, 2012, NPRM published under Docket PHMSA 2011–0138 [77 FR 24885] (HM– 218G) however, PHMSA did not receive any comments on the environmental assessment contained in that rulemaking. In addition, PHMSA sought comment from the following Federal Agencies and modal partners: • Department of Commerce • Department of Homeland Security • Department of Justice • Environmental Protection Agency • Health and Human Services • National Institute of Science and Technology • Occupational Safety and Health Administration • Federal Aviation Administration E:\FR\FM\11MRR1.SGM 11MRR1 15321 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations • Federal Motor Carrier Safety Administration • Federal Railroad Administration PHMSA did not receive any adverse comments on the amendments adopted in this final rule from these Federal Agencies. Conclusion PHMSA is adopting miscellaneous amendments to the HMR based on comments from the regulated community and PHMSA’s own rulemaking initiatives. The amendments are intended to update, clarify, or provide relief from certain existing regulatory requirements to promote safer transportation practices; eliminate unnecessary regulatory requirements; facilitate international commerce; and make these requirements easier to understand. These clarifications of regulatory requirements will foster a greater level of compliance with the HMR and thus, diminished levels of hazardous materials transportation incidents affecting the health and safety of the environment. Therefore, PHMSA concludes that no significant environmental impact will result from this rule. J. 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 Statement in the Federal Register published on April 11, 2000 (65 FR 19477), which may be viewed at https:// www.gpo.gov/fdsys/pkg/FR–2000–04– 11/pdf/00–8505.pdf. K. International Trade Analysis The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards are not considered unnecessary obstacles to the foreign commerce of the United States, so long as the standards have a legitimate domestic objective, such as the protection of safety, and do not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA notes the purpose is to ensure the safety of the American public, and has assessed the effects of this rule to ensure that it does not exclude imports that meet this objective. As a result, this final rule is not considered as creating an unnecessary obstacle to foreign commerce. vehicle safety, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 180 Hazardous materials transportation, Motor carriers, Motor vehicle safety, Packaging and containers, Railroad safety, Reporting and recordkeeping requirements. In consideration of the foregoing, we are amending 49 CFR Chapter I as follows: PART 105—HAZARDOUS MATERIALS PROGRAM PROCEDURES 1. The authority citation for part 105 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. List of Subjects 49 CFR Part 105 Administrative practice and procedure, Hazardous materials transportation, Penalties, Reporting and recordkeeping requirements. 2. In § 105.40, paragraph (d) is revised to read as follows: ■ § 105.40 Designated agents for nonresidents. * * * * * (d) Each designation must be submitted to: Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, Attn: PHH–30, U.S. Department of Transportation, East Building, 1200 New Jersey Avenue SE., Washington, DC 20590–0001 or by electronic mail to: specialpermits@dot.gov or approvals@dot.gov as appropriate. * * * * * 49 CFR Part 171 Exports, Hazardous materials transportation, Hazardous waste, Imports, Incorporation by reference, Reporting and recordkeeping requirements. 49 CFR Part 172 Education, Hazardous materials transportation, Hazardous waste, Incorporation by Reference, Labeling, Markings, Packaging and containers, Reporting and recordkeeping requirements. 49 CFR Part 173 Hazardous materials transportation, Incorporation by Reference, Packaging and containers, Radioactive materials, Reporting and recordkeeping requirements, Uranium. 49 CFR Part 177 Hazardous materials transportation, Loading and Unloading, Segregation and Separation. PART 171—GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS 3. The authority citation for part 171 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.45 and 1.53; Pub. L. 101–410 section 4 (28 U.S.C. 2461 note); Pub. L. 104–134, section 31001. 4. In § 171.7, in ‘‘Table 1 to 49 CFR 171.7—Materials Not Incorporated by Reference’’, the following entry is added in alphabetical order to read as follows: ■ 49 CFR Part 178 Hazardous materials transportation, Incorporation by reference, Motor § 171.7 * Reference material. * * * * mstockstill on DSK4VPTVN1PROD with RULES Source and name of material 49 CFR reference * * * * * * The Sulphur Institute, 1020 19th St. NW., Suite 520, Washington, DC 20036. Molten Sulphur Rail Tank Car Guidance document, November 2010 ........................................................................................ * * VerDate Mar<15>2010 * 17:01 Mar 08, 2013 * Jkt 229001 PO 00000 * Frm 00045 Fmt 4700 * Sfmt 4700 E:\FR\FM\11MRR1.SGM * 11MRR1 172.102 * 15322 * * Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations * * * PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS 5. The authority citation for part 172 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.53. 6. In § 172.101, the Hazardous Materials Table is amended by removing the entries under ‘‘[REMOVE]’’, by adding the entries under ‘‘[ADD]’’ in alphabetical order, and revising entries under ‘‘[REVISE]’’ to read as follows: ■ § 172.101 Purpose and use of hazardous materials table. mstockstill on DSK4VPTVN1PROD with RULES * VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00046 Fmt 4700 Sfmt 4700 E:\FR\FM\11MRR1.SGM * * 11MRR1 * * VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 ........................................ ........... PO 00000 Frm 00047 Fmt 4700 Paint related material, flammable, corrosive (including paint thinning or reducing compound). ........................................ Hydrazine dicarbonic acid diazide. [ADD]. Sfmt 4700 tert-Butyl isocyanate ...... ........... ........... E:\FR\FM\11MRR1.SGM Ethyl phosphonothioic dichloride, anhydrous. 11MRR1 Ethyl phosphonous dichloride, anhydrous pyrophoric liquid. Ethyl phosphorodichloridate. D ............ ........... [REVISE]. ........... ........... ........... ........... Zinc ethyl, see Diethylzinc. Hydrazine dicarbonic acid diazide. ........................................ ........... ........... [REMOVE]. (2) ........... (1) Symbols Hazardous materials descriptions and proper shipping names mstockstill on DSK4VPTVN1PROD with RULES D ............ D ............ 6.1 ............ 6.1 ............ * 6.1 ............ * 6.1 ............ * ................... * 3 ............... * Forbidden. * * ................... ................... * Forbidden. (3) Hazard class or division NA2927 .... NA2845 .... NA2927 .... UN2484 .... ................... UN3469 .... III .............. II ............... (4) Identification Nos. * * * * * * * * I ................ I ................ I ................ I ................ III .............. II ............... 8, 6.1 ........ 8, 6.1 ........ (5) PG 6.1, 8 ............... 6.1, 4.2 ............ * 6.1, 8 ............... * 6.1, 3 ............... * 3, 8 .................. * 3, 8 .................. * * * B16, B53, IB2, T7, TP2, TP13 B16, B53, IB3, T4, TP1. * (6) Label codes * 2, B9, B14, B32, T20, TP4, TP12, TP13, TP38, TP45. 2, B9, B14, B32, T20, TP4, TP12, TP13, TP38, TP45. 2, B9, B14, B32, T20, TP4, TP12, TP13, TP38, TP45. * 1, B9, B14, B30, T20, TP2, TP13, TP38, TP44. * IB3, T4, TP1, TP29. * IB2, T7, TP2, TP8, TP28. * * * 154 ...................... None ................... * (7) Special provisions (§ 172.102) None ......... None ......... * None ......... * None ......... * 150 ........... * 150 ........... * * * 203 ........... 202 ........... * (8A) Exceptions 227 227 227 226 203 202 241 243 (8B) Non-bulk 244 ........... 244 ........... * 244 ........... * 244 ........... * 242 ........... * 243 ........... * * * 5 L ............ Forbidden * (8C) Bulk (8) Packaging (§ 173.***) § 172.101—HAZARDOUS MATERIALS TABLE Forbidden Forbidden * Forbidden * Forbidden * 5 L ............ * 1 L ............ * * * 60 L .......... 30 L .......... * (9A) Passenger aircraft/rail Forbidden Forbidden Forbidden Forbidden 60 L .......... 5 L ............ D ............... D ............... (9B) Cargo aircraft only (9) Quantity limitations (10A) D D D D A B 40 40 Location 40. 18. 40. 40. 40. 40. III. II. (10B) Other (10) Vessel stowage Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations 15323 VerDate Mar<15>2010 (2) 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00048 Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50. Toxic by inhalation liquid, flammable, corrosive, n.o.s. with an LC50 lower than or equal to 1000 ml/m3 and saturated vapor concentration greater than or equal to 10 LC50. Sulfuric acid, fuming with 30 percent or more free sulfur trioxide. Sulfur, molten ................ Fmt 4700 G ............ G ............ Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated vapor concentration greater than or equal to 500 LC50. G ............ + ............ I ............. Sulfur, molten ................ D ............ D ............ Methyl phosphonous dichloride, pyrophoric liquid. (1) Symbols Hazardous materials descriptions and proper shipping names mstockstill on DSK4VPTVN1PROD with RULES (4) Identification Nos. UN2448 .... Sfmt 4700 E:\FR\FM\11MRR1.SGM * 6.1 ............ 6.1 ............ UN3490 .... UN3489 .... UN3488 .... * 8 ............... * 6.1 ............ UN1831 .... 4.1 ............ NA2448 .... * 6.1 ............ * 9 ............... NA2845 .... (3) Hazard class or division * * * * * I ................ I ................ I ................ I ................ III .............. III .............. I ................ (5) PG * 6.1, 4.3, 3 ........ 6.1, 3, 8 ........... * 6.1, 3, 8 ........... * 8, 6.1 ............... 4.1 ................... * 9 ...................... * 6.1, 4.2 ............ (6) Label codes * 1, B9, B14, B30, T22, TP2, TP13, TP27, TP38, TP44. 2, B9, B14, B32, T20, TP2, TP13, TP27, TP38, TP45. * 1, B9, B14, B30, T22, TP2, TP13, TP27, TP38, TP44. * 2, B9, B14, B32, B77, B84, N34, T20, TP2, TP12, TP13. * 30,B13, IB3, R1, T1, TP3. 30, B13, IB1, R1, T1, TP3. * 2, B9, B14, B16, B32, T20, TP4, TP12, TP13, TP38, TP45. (7) Special provisions (§ 172.102) * None ......... None ......... * None ......... * None ......... None ......... * None ......... * None ......... (8A) Exceptions 226 227 226 227 213 213 227 (8B) Non-bulk * 244 ........... 244 ........... * 244 ........... * 244 ........... 247 ........... * 247 ........... * 244 ........... (8C) Bulk (8) Packaging (§ 173.***) § 172.101—HAZARDOUS MATERIALS TABLE—Continued * Forbidden Forbidden * Forbidden * Forbidden Forbidden * Forbidden * Forbidden (9A) Passenger aircraft/rail Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden Forbidden (9B) Cargo aircraft only (9) Quantity limitations (10A) D D D C C C D Location 21, 28, 40, 49. 40, 125. 40, 125. 14, 40. 74. 61. 18. (10B) Other (10) Vessel stowage 15324 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations 11MRR1 G ............ Toxic by inhalation liquid, water-reactive, flammable, n.o.s. with an LC50 lower or equal to 1000 ml/m3 and saturated vapor concentration greater than or equal to 10 LC50. mstockstill on DSK4VPTVN1PROD with RULES VerDate Mar<15>2010 * 6.1 ............ UN3491 .... * I ................ * 6.1, 4.3, 3 ........ * 2, B9, B14, B32, T20, TP2, TP13, TP27, TP38, TP45. * None ......... 227 * 244 ........... * Forbidden Forbidden D 21, 28, 40, 49. Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00049 Fmt 4700 Sfmt 4700 E:\FR\FM\11MRR1.SGM 11MRR1 15325 15326 * * Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations * * * 7. In § 172.102, special provision 138 is revised in paragraph (c)(1) and paragraph (c)(6) is revised to read as follows: ■ § 172.102 Special provisions. * * * * * (c) * * * (1) * * * 138 This entry applies to lead compounds which, when mixed in a ratio of 1:1,000 with 0.07 M (Molar concentration) hydrochloric acid and stirred for one hour at a temperature of 23°C ± 2°C, exhibit a solubility of more than 5%. Lead compounds which, when mixed in a ratio of 1:1,000 with 0.07 M (Molar concentration) hydrochloric acid and stirred for one hour at a temperature of 23°C ± 2°C, exhibit a solubility of 5% or less are not subject to the requirements of this subchapter unless they meet criteria as another hazard class or division. Lead compounds that have a solubility of 5% or less in accordance with this special provision are not subject to the requirements of this subchapter that pertain to Marine Pollutants. * * * * * (6) ‘‘R’’ codes. These provisions apply only to transportation by rail. R1 A person who offers for transportation tank cars containing sulfur, molten or residue of sulfur, molten may reference the Sulfur Institute’s, ‘‘Molten Sulphur Rail Tank Car Guidance document’’ (see § 171.7 of this subchapter) to identify tank cars that may pose a risk in transportation due to the accumulation of formed, solid sulfur on the outside of the tank. * * * * * ■ 8. In § 172.203, paragraphs (e)(1) and (2) are revised to read as follows: § 172.203 Additional description requirements. * * * * (e) * * * (1) The description on the shipping paper for a packaging containing the residue of a hazardous material may include the words ‘‘RESIDUE: Last Contained * * *’’ immediately before or after the basic shipping description on the shipping paper. (2) The description on the shipping paper for a tank car containing the mstockstill on DSK4VPTVN1PROD with RULES * residue of a hazardous material must include the phrase, ‘‘RESIDUE: LAST CONTAINED * * *’’ immediately before or after the basic shipping description or immediately preceding the proper shipping name of the material on the shipping paper. * * * * * ■ 9. In § 172.704, paragraph (d) introductory text is revised to read as follows: § 172.704 Training requirements. * * * * * (d) Recordkeeping. Each hazmat employer must create and retain a record of current training of each hazmat employee, inclusive of the preceding three years, in accordance with this section for as long as that employee is employed by that employer as a hazmat employee and for 90 days thereafter. A hazmat employer must make a hazmat employee’s record of current training available upon request, at a reasonable time and location, to an authorized official of the Department of Transportation or of an entity explicitly granted authority to enforce the HMR. The record must include: * * * * * PART 173—SHIPPERS—GENERAL REQUIREMENTS FOR SHIPMENTS AND PACKAGINGS 10. The authority citation for part 173 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128, 44701; 49 CFR 1.45 and 1.53. 11. In § 173.6, paragraph (a)(2) is revised to read as follows: ■ § 173.6 Materials of trade exceptions. * * * * * (a) * * * (2) A Division 2.1 or 2.2 material in a cylinder with a gross weight not over 100 kg (220 pounds), in a Dewar flask meeting the requirements of § 173.320, or a permanently mounted tank manufactured to the ASME Code of not more than 70 gallon water capacity for a non-liquefied Division 2.2 material with no subsidiary hazard. * * * * * ■ 12. In § 173.12, paragraph (b)(3) is revised to read as follows: § 173.12 Exceptions for shipment of waste materials. * * * * * (b) * * * (3) Prohibited materials. The following waste materials may not be packaged or described under the provisions of this paragraph (b): a material poisonous-by-inhalation, a temperature controlled material unless it complies with § 173.21(f)(1), a Division 6.1, Packing Group I material, chloric acid, and oleum (fuming sulfuric acid). * * * * * 13. In § 173.33, paragraph (g) is revised to read as follows: ■ § 173.33 Hazardous materials in cargo tank motor vehicles. * * * * * (g) Remote control of self-closing stop valves—MC 330, MC 331 and MC 338 cargo tanks. Each liquid or vapor discharge opening in an MC 330 or MC 331 cargo tank and each liquid filling and liquid discharge line in an MC 338 cargo tank must be provided with a remotely controlled internal self-closing stop valve except when an MC 330 or MC 331 cargo tank is marked and used exclusively to transport carbon dioxide; an MC 338 is used to transport argon, carbon dioxide, helium, krypton, neon, nitrogen, or xenon; or an MC 338 utilizes an external self-closing stop valve to comply with the requirements in § 178.338–11(b). However, if the cargo tank motor vehicle was certified before January 1, 1995, this requirement is applicable only when an MC 330 or MC 331 cargo tank is used to transport a flammable liquid, flammable gas, hydrogen chloride (refrigerated liquid), or anhydrous ammonia; or when an MC 338 cargo tank is used to transport flammable ladings. * * * * * 14. In § 173.62, in paragraph (c)(5), in the Table of Packing Methods, Packing Instruction 130 is revised to read as follows: ■ § 173.62 Specific packaging requirements for explosives. * * * (c) * * * (5) * * * * * TABLE OF PACKING METHODS Packaging instruction Inner packagings Intermediate packagings * * * * * 130 ........................................................................ Not necessary ..... Not necessary ................. VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 Outer packaging * Boxes. E:\FR\FM\11MRR1.SGM 11MRR1 * 15327 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations TABLE OF PACKING METHODS—Continued Packaging instruction Inner packagings Intermediate packagings Outer packaging Particular Packaging Requirements: 1. The following applies to UN 0006, 0009, 0010, 0015, 0016, 0018, 0019, 0034, 0035, 0038, 0039, 0048, 0056, 0137, 0138, 0168, 0169, 0171, 0181, 0182, 0183, 0186, 0221, 0238, 0243, 0244, 0245, 0246, 0254, 0280, 0281, 0286, 0287, 0297, 0299, 0300, 0301, 0303, 0321, 0328, 0329, 0344, 0345, 0346, 0347, 0362, 0363, 0370, 0412, 0424, 0425, 0434, 0435, 0436, 0437, 0438, 0451, 0459 and 0488. Large and robust explosives articles, normally intended for military use, without their means of initiation or with their means of initiation containing at least two effective protective features, may be carried unpackaged. When such articles have propelling charges or are selfpropelled, their ignition systems must be protected against stimuli encountered during normal conditions of transport. A negative result in Test Series 4 on an unpackaged article indicates that the article can be considered for transport unpackaged. Such unpackaged articles may be fixed to cradles or contained in crates or other suitable handling devices. 2. Subject to approval by the Associate Administrator, large explosive articles, as part of their operational safety and suitability tests, subjected to testing that meets the intentions of Test Series 4 of the UN Manual of Tests and Criteria with successful test results, may be offered for transportation in accordance with the requirements of this subchapter. * * * 15. In § 173.134, paragraph (c)(2) is revised to read as follows: ■ § 173.134 Class 6, Division 6.2— Definitions and exceptions. mstockstill on DSK4VPTVN1PROD with RULES * * * * * (c) * * * (2) The following materials may be offered for transportation and transported as a regulated medical waste when packaged in a rigid non-bulk packaging conforming to the general packaging requirements of §§ 173.24 and 173.24a and packaging requirements specified in 29 CFR 1910.1030 and transported by a private or contract carrier in a vehicle used exclusively to transport regulated medical waste: (i) Waste stock or culture of a Category B infectious substance; (ii) Plant and animal waste regulated by the Animal and Plant Health Inspection Service (APHIS); (iii) Waste pharmaceutical materials; (iv) Laboratory and recyclable wastes; (v) Infectious substances that have been treated to eliminate or neutralize pathogens; (vi) Forensic materials being transported for final destruction; VerDate Mar<15>2010 17:01 Mar 08, 2013 Steel (4A). Aluminum (4B). Wood natural, ordinary (4C1). Wood natural, sift-proof walls (4C2). Plywood (4D). Reconstituted wood (4F). Fiberboard (4G). Plastics, expanded (4H1). Plastics, solid (4H2). Drums. Steel, removable head (1A2). Aluminum, removable head (1B2). Plywood (1D). Fiber (1G). Plastics, removable head (1H2). Large Packagings. Steel (50A). Aluminum (50B). Metal other than steel or aluminum (50N). Rigid plastics (50H). Natural wood (50C). Plywood (50D). Reconstituted wood (50F). Rigid fiberboard (50G). Jkt 229001 * * (vii) Rejected or recalled health care products; (viii) Documents intended for destruction in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) requirements; (ix) Medical or clinical equipment and laboratory products provided they are properly packaged and secured against exposure or contamination; or (x) Sharps in sharp containers provided the containers are securely closed to prevent leaks or punctures; do not exceed 18 gallons capacity; registered under the Medical Device Regulations of FDA; made of puncture resistant plastic that meets ASTM Standard F2132–01, Standard Specification for Puncture Resistance of Materials Used in Containers for Discarded Medical Needles and Other Sharps; and are securely fitted into wheeled racks that hold them in an upright position. The wheeled racks must contain full rows of sharps containers secured in place by a moveable bar; and must be securely held in place on the motor vehicle by straps or load bars during transportation. No shelf in any wheeled PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 * * rack may exceed the manufacturer’s recommended load capacity. * * * * * ■ 16. In § 173.150, paragraph (d) is revised to read as follows: § 173.150 Exceptions for Class 3 (flammable and combustible liquids). * * * * * (d) Alcoholic beverages. (1) An alcoholic beverage (wine and distilled spirits as defined in 27 CFR 4.10 and 5.11), when transported via motor vehicle, vessel, or rail, is not subject to the requirements of this subchapter if the alcoholic beverage: (i) Contains 24 percent or less alcohol by volume; (ii) Is contained in an inner packaging of 5 L (1.3 gallons) or less; or (iii) Is a Packing Group III alcoholic beverage contained in a packaging 250 liters (66 gallons) or less; (2) An alcoholic beverage (wine and distilled spirits as defined in 27 CFR 4.10 and 5.11), when transported via aircraft, is not subject to the requirements of this subchapter if the alcoholic beverage: (i) Contains 24 percent or less alcohol by volume; E:\FR\FM\11MRR1.SGM 11MRR1 15328 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations (ii) For transportation aboard a passenger-carrying aircraft, contains more than 24% but less than 70% alcohol by volume when in unopened retail packagings not exceeding 5 liters (1.3 gallons) carried in carry-on or checked baggage, with a total net quantity per person of 5 liters (1.3) gallons (See § 175.10(a)(4) of this subchapter); or (iii) When carried as cargo, contains more than 24% but less than 70% alcohol by volume in an inner packaging not exceeding 5 L (1.3 gallons). * * * * * ■ 17. In § 173.159a, paragraphs (c) introductory text and (c)(1) are revised to read as follows: § 173.159a batteries. mstockstill on DSK4VPTVN1PROD with RULES 17:01 Mar 08, 2013 Jkt 229001 18. The authority citation for part 177 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. 19. In § 177.834, paragraph (j)(2) is revised to read as follows: * * * * (c) Non-spillable batteries are excepted from the packaging requirements of § 173.159 under the following conditions: (1) Non-spillable batteries must be securely packed in strong outer packagings or secured to skids or pallets capable of withstanding the shocks normally incident to transportation. The batteries must meet the requirements of § 173.159(a), be loaded or braced so as VerDate Mar<15>2010 PART 177—CARRIAGE BY PUBLIC HIGHWAY ■ Exceptions for non-spillable * to prevent damage and short circuits in transit, and any other material loaded in the same vehicle must be blocked, braced, or otherwise secured to prevent contact with or damage to the batteries. A non-spillable battery which is an integral part of and necessary for the operation of mechanical or electronic equipment must be securely fastened in the battery holder on the equipment. * * * * * § 177.834 General requirements. * * * * * (j) * * * (2) All valves and other closures in liquid discharge systems are closed and free of leaks, except external emergency self-closing valves on MC 338 cargo tanks containing the residue of cryogenic liquids may remain either open or closed during transit. * * * * * PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 PART 178—SPECIFICATIONS FOR PACKAGINGS 20. The authority citation for part 178 continues to read as follows: ■ Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. 21. In § 178.2, paragraph (c)(1) introductory text is revised to read as follows: ■ § 178.2 Applicability and responsibility. * * * * * (c) Notification. (1) Except as specifically provided in §§ 178.337–18, 178.338–19, and 178.345–15 of this part, the manufacturer or other person certifying compliance with the requirements of this part, and each subsequent distributor of that packaging must: * * * * * 22. In Appendix E to Part 178, Figure 1 and Figure 2 are added following the text to read as follows: ■ Appendix E to Part 178—Flame Penetration Resistance Test * E:\FR\FM\11MRR1.SGM * * 11MRR1 * * VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00053 Fmt 4700 Sfmt 4725 E:\FR\FM\11MRR1.SGM 11MRR1 15329 ER11MR13.013</GPH> mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations PART 180—CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS 23. The authority citation for part 180 continues to read as follows: mstockstill on DSK4VPTVN1PROD with RULES ■ Authority: 49 U.S.C. 5101–5128; 49 CFR 1.53. 24. In § 180.416, paragraph (d)(5) is revised to read as follows: ■ VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 § 180.416 Discharge system inspection and maintenance program for cargo tanks transporting liquefied compressed gases. * * * * * (d) * * * (5) The operator must note each inspection in a record. That record must include the inspection date, the name of the person performing the inspection, the hose assembly identification number, the manufacturer of the hose assembly, the date the hose was assembled and tested, and an indication PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 that the delivery hose assembly and piping system passed or failed the tests and inspections. The operator must retain a copy of each test and inspection record at its principal place of business or where the vehicle is housed or maintained until the next test of the same type is successfully completed. * * * * * E:\FR\FM\11MRR1.SGM 11MRR1 ER11MR13.014</GPH> 15330 Federal Register / Vol. 78, No. 47 / Monday, March 11, 2013 / Rules and Regulations Issued in Washington, DC on February 19, 2013, under authority delegated in 49 CFR part 106. Cynthia L. Quarterman, Administrator, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2013–04198 Filed 3–8–13; 8:45 am] mstockstill on DSK4VPTVN1PROD with RULES BILLING CODE 4910–60–P VerDate Mar<15>2010 17:01 Mar 08, 2013 Jkt 229001 PO 00000 Frm 00055 Fmt 4700 Sfmt 9990 E:\FR\FM\11MRR1.SGM 11MRR1 15331

Agencies

[Federal Register Volume 78, Number 47 (Monday, March 11, 2013)]
[Rules and Regulations]
[Pages 15303-15331]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04198]

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DEPARTMENT OF TRANSPORTATION

Pipeline and Hazardous Materials Safety Administration

49 CFR Parts 105, 171, 172, 173, 177, 178, and 180

[Docket No. PHMSA-2011-0138 (HM-218G)]
RIN 2137-AE78

Hazardous Materials; Miscellaneous Amendments (RRR)

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

ACTION: Final rule.

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SUMMARY: PHMSA is amending the Hazardous Materials Regulations (HMR) to
make miscellaneous amendments to update and clarify certain regulatory
requirements. These amendments promote safer transportation practices,
eliminate unnecessary regulatory requirements, address a petition for
rulemaking, incorporate a special permit into the HMR, facilitate
international commerce, and simplify the regulations. These amendments
also update various entries in the Hazardous Materials Table (HMT) and
corresponding special provisions, clarify the lab pack requirements for
temperature-controlled materials, and require hazmat employers to make
hazmat employee training records available upon request to an
authorized official of the Department of Transportation (DOT) or an
entity explicitly granted authority to enforce the HMR.

DATES: Effective Date: This rule is effective May 10, 2013.
Voluntary Compliance Date: Voluntary compliance with all amendments
is authorized March 11, 2013.

FOR FURTHER INFORMATION CONTACT: Rob Benedict, Standards and Rulemaking
Division, (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:

Contents

I. Background
A. Notice of Proposed Rulemaking (NPRM)
B. Commenters
II. Discussion of Amendments and Applicable Comments
A. General Comments
B. Provisions Adopted in This Final Rule and Discussion of
Comments
C. Comments Beyond the Scope of This Rulemaking
D. Provisions Not Adopted in This Final Rule and Discussion of
Comments
III. Regulatory Analyses and Notices
A. Statutory/Legal Authority for the Rulemaking
B. Executive Order 12866, Executive Order 13563 and DOT
Regulatory Policies and Procedures
C. Executive Order 13132
D. Executive Order 13175
E. Regulatory Flexibility Act, Executive Order 13272, and DOT
Procedures and Policies
F. Paperwork Reduction Act
G. Regulatory Identifier Number (RIN)
H. Unfunded Mandates Reform Act
I. Environmental Assessment
J. Privacy Act
K. International Trade Analysis

I. Background

A. Notice of Proposed Rulemaking (NPRM)

On April 26, 2012, PHMSA published a NPRM under Docket PHMSA 2011-
0138 [77 FR 24885] (HM-218G) that proposed amendments to update and
clarify existing requirements of the HMR. The NPRM and this Final Rule
are part of the Department of Transportation's Retrospective Regulatory
Review (RRR) designed to identify ways to improve the Hazardous
Materials Regulations (HMR; 49 CFR parts 171-180). The NPRM proposed
amendments to update and clarify existing requirements by incorporating
changes into the HMR based on PHMSA's own initiatives. The proposed
amendments were identified through an extensive review of the HMR and
previously issued letters of interpretation to the regulated hazardous
materials transportation community. In addition, the NPRM proposed to
incorporate a special permit with a longstanding history of safety into
the HMR and respond to a petition for rulemaking. The changes proposed
in the April 26, 2012 NPRM are summarized below:
Permit designated agents for non-residents to submit
designation requests by electronic mail in addition to traditional
mail.
Add the Sulphur Institute's (TSI) ``Molten Sulphur Rail
Tank Car Guidance'' document to the list of informational materials not
requiring incorporation by reference in Sec. 171.7 (Responds to
petition for rulemaking P-1581).

[[Page 15304]]

Revise the Sec. 172.101 Hazardous Materials Table (HMT)
to correct an error in the transportation requirements for entries
listed under the proper shipping name, ``Hydrazine Dicarbonic Acid
Diazide.''
Revise the Sec. 172.101 HMT to remove the entry for
``Zinc ethyl, see Diethylzinc'' that was superseded by proper shipping
names adopted in a previous rulemaking.
Add the inadvertently omitted entries for ``Paint related
material, flammable, corrosive (including paint thinning or reducing
compound)'' UN3469, PG II, and PG III to the Sec. 172.101 HMT.
Remove references to special provisions B72 and B74 in
Sec. 172.102.
Revise special provision 138 in Sec. 172.102 to clarify
the lead solubility calculation used to classify a material as a Marine
Pollutant.
Revise the shipping paper requirements in Sec. 172.203(e)
to permit the placement of phrase ``Residue last contained'' before or
after the basic shipping description sequence, or for rail shipments,
directly preceding the proper shipping name in the basic shipping
description sequence.
Update the training recordkeeping requirements in Sec.
172.704 to specify that a hazmat employer must make hazmat employee
training records available upon request, at a reasonable time and
location, to an authorized official of the Department of Transportation
or the Department of Homeland Security (DHS).
Clarify that the material of trade exception in Sec.
173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar
flasks.
Clarify the lab pack provisions in Sec. 173.12 pertaining
to temperature-controlled materials contained in a lab pack.
Clarify the exceptions for external emergency self-closing
valves on cargo tank motor vehicles (CTMVs) in Sec. 173.33(g) to
specify that external emergency self-closing valves on MC 338 cargo
tanks containing cryogenic liquids may remain open during
transportation.
Correct an inadvertent deletion of the Sec. 173.62
packaging requirements for explosives.
Incorporate special permit DOT SP-13556 into Sec.
173.134, to authorize the transportation by motor vehicle of certain
regulated medical wastes, designated as sharps, in non-DOT
specification containers fitted into wheeled racks.
Revise the requirements for cargo air transport of
alcoholic beverages in Sec. 173.150 to harmonize with the
International Civil Aviation Organization's (ICAO) Technical
Instructions (TI).
Clarify the exceptions in Sec. 173.159a for non-spillable
batteries secured to skids or pallets.
Revise Sec. 178.2(c) to clarify the applicability of the
closure notification requirements for packages containing residues.
Correct regulatory citations in Sec. 178.2(c).
Clarify the requirements for the Flame Penetration
Resistance test specified for chemical oxygen generators and certain
compressed gases in Appendix E to Part 178.
Clarify the inspection record requirements in Sec.
180.416 for discharge systems of cargo tanks transporting liquefied
compressed gases.

B. Commenters

The comment period for the April 26, 2012 NPRM closed on June 25,
2012. PHMSA received 22 public comments in response to the NPRM's
proposed amendments, from trade associations representing various
industries, individual businesses, and concerned citizens who make up
the regulated community. While the majority of the commenters supported
the proposals in the NPRM, some commenters expressed adverse opinions
with specific proposals. In response to the feedback provided by these
commenters, PHMSA will address and discuss both the proposals adopted
and not adopted into the HMR by this rulemaking under the heading,
``Discussion of Amendments and Applicable Comments.'' In addition, some
commenters provided suggestions for revisions that were not
specifically addressed in the NPRM, and therefore, are considered
beyond the scope of this rulemaking. The comments, as submitted to this
docket, may be accessed via https://www.regulations.gov and were
submitted by the following individuals, companies, and associations
(abbreviations used throughout the document and Docket Reference
numbers are also provided):

----------------------------------------------------------------------------------------------------------------
Commenter Abbreviation Docket reference
----------------------------------------------------------------------------------------------------------------
American Coating Association, Inc...... ACA....................... PHMSA-2011-0138-0012
American Trucking Association.......... ATA....................... PHMSA-2011-0138-0007
Association of American Railroads...... AAR....................... PHMSA-2011-0138-0022
Association of Hazmat Shippers......... AHS....................... PHMSA-2011-0138-0011
Council on Safe Transportation of COSTHA.................... PHMSA-2011-0138-0010
Hazardous Articles, Inc.
Dangerous Goods Advisory Council....... DGAC...................... PHMSA-2011-0138-0009
The Fertilizer Institute............... TFI....................... PHMSA-2011-0138-0021
International Vessel Operators IVODGA.................... PHMSA-2011-0138-0014
Dangerous Goods Association Inc.
Koch Sulfur Products Company LLC....... KSPC...................... PHMSA-2011-0138-0025
National Association of Chemical NACD...................... PHMSA-2011-0138-0023
Distributors.
National Tank Truck Carriers........... NTTC...................... PHMSA-2011-0138-0019
Oxbow Sulphur Inc...................... Oxbow..................... PHMSA-2011-0138-0018
Potash Corporation of Saskatchewan..... PCS....................... PHMSA-2011-0138-0026
Richard Zbilski........................ Richard Zbilski........... PHMSA-2011-0138-0027
Reusable Industrials Packaging RIPA...................... PHMSA-2011-0138-0016
Association.
Stericycle, Inc........................ Stericycle................ PHMSA-2011-0138-0005
The Sulphur Institute.................. TSI....................... PHMSA-2011-0138-0017
Transammonia Inc....................... Transammonia.............. PHMSA-2011-0138-0020
Union Tank Car Company................. UTCC...................... PHMSA-2011-0138-0029
U.S. Clay Producers Traffic Association USCPTA.................... PHMSA-2011-0138-0024
Utility Solid Waste Activities Group... USWAG..................... PHMSA-2011-0138-0013
Veolia ES Technical Solutions, L.L.C... Veolia.................... PHMSA-2011-0138-0008
----------------------------------------------------------------------------------------------------------------

[[Page 15305]]

II. Discussion of Amendments and Applicable Comments

A. General Comments

On September 30, 1993, President Bill Clinton issued Executive
Order 12866 which asked Federal agencies ``to enhance planning and
coordination with respect to both new and existing regulations; to
reaffirm the primacy of Federal agencies in the regulatory decision-
making process; to restore the integrity and legitimacy of regulatory
review and oversight; and to make the process more accessible and open
to the public.''
On October 21, 2011, President Barack Obama issued Executive Order
13563 which is supplemental to and reaffirms the principles,
structures, and definitions governing contemporary regulatory review
that were established in Executive Order 12866. This executive order
urged government agencies to consider regulatory approaches that reduce
burdens and maintain flexibility and freedom of choice for the public.
Finally, federal agencies were directed to periodically review existing
significant regulations; retrospectively analyze rules that may be
outmoded, ineffective, insufficient, or excessively burdensome; and
modify, streamline, expand, or repeal regulatory requirements in
accordance with what has been learned.
On May 10, 2012, President Barack Obama issued Executive Order
13610 (Identifying and Reducing Regulatory Burdens) reaffirming the
goals of Executive Order 13563 (Improving Regulation and Regulatory
Review) issued January 18, 2011, and Executive Order 12866 (Regulatory
Planning and Review) issued September 30, 1993. Executive Order 13610
directs agencies to prioritize ``those initiatives that will produce
significant quantifiable monetary savings or significant quantifiable
reductions in paperwork burdens while protecting public health,
welfare, safety, and our environment.'' Executive Order 13610 further
instructs agencies to give consideration to the cumulative effects of
their regulations, including cumulative burdens, and prioritize reforms
that will significantly reduce burdens.
In accordance with Executive Orders 13610 and 13563, PHMSA has
undertaken a retrospective review of the HMR. This final rule and the
NPRM that preceded it are part of that initiative, and were based on an
internal review of the HMR, special permits, petitions, and letters of
interpretation. The April 26, 2012 NPRM specifically addressed a
petition, a special permit, and various clarifications identified in
letters of interpretation and through PHMSA internal review of the HMR.
The publication of the NPRM provided an opportunity for further public
participation in the development of the regulatory amendments, and
promoted an exchange of information and perspectives among the various
stakeholders.
PHMSA received 22 comments in response to the April 26, 2012 NPRM
which were predominately positive. Some commenters agreed in principle
with the proposed amendments and offered revisions to improve the
clarity of the regulatory text. In some cases, no comments to proposed
amendments were received. In these circumstances, PHMSA attributed the
lack of comment to either the nature of the amendment being editorial,
or a general acknowledgement from the regulated community that no
opposition to the change was warranted. Finally, negative comments were
also received on some specific issues. A detailed description of the
original proposals in the April 26, 2012 NPRM, a summary of the
comments received, responses to those comments, and PHMSA's decision on
future actions are detailed below.

B. 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. To clearly identify
the issues addressed in this final rule, PHMSA provides the following
list of adopted amendments discussed in this section:
Permit designated agents for non-residents to submit
designation requests by electronic mail in addition to traditional
mail.
Add the Sulphur Institute's (TSI) ``Molten Sulphur Rail
Tank Car Guidance'' document to the list of informational materials not
requiring incorporation by reference in Sec. 171.7 (Responds to
petition for rulemaking P-1581).
Revise the Sec. 172.101 HMT to correct an error in the
transportation requirements for entries listed under the proper
shipping name, ``Hydrazine Dicarbonic Acid Diazide.''
Revise the Sec. 172.101 HMT to remove the entry for
``Zinc ethyl, see Diethylzinc'' that was superseded by proper shipping
names adopted in a previous rulemaking.
Add the entries for ``Paint related material, flammable,
corrosive (including paint thinning or reducing compound)'' UN3469, PG
II, and PG III to the Sec. 172.101 HMT that were inadvertently
omitted.
Remove references to special provisions B72 and B74 in
Sec. 172.102.
Revise special provision 138 in Sec. 172.102 to clarify
the lead solubility calculation used to classify a material as a Marine
Pollutant.
Revise the shipping paper requirements in Sec. 172.203(e)
to permit the phrase ``Residue last contained'' to be placed before or
after the basic shipping description sequence, or for rail shipments,
directly preceding the proper shipping name in the basic shipping
description sequence.
Update the training recordkeeping requirements in Sec.
172.704 to specify that a hazmat employer must make hazmat employee
training records available upon request, at a reasonable time and
location, to an authorized official of the Department of Transportation
or of an entity explicitly granted authority to enforce the HMR.
Clarify that the material of trade exception in Sec.
173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar
flasks.
Clarify the lab pack provisions in Sec. 173.12 pertaining
to temperature-controlled materials contained in a lab pack.
Clarify the exceptions for external emergency self-closing
valves on CTMVs in Sec. 173.33(g) to specify that external emergency
self-closing valves on MC 338 cargo tanks containing cryogenic liquids
may remain open during transportation.
Correct an inadvertent deletion of the Sec. 173.62
packaging requirements for explosives.
Incorporate special permit DOT SP-13556 into Sec.
173.134, to authorize the transportation by motor vehicle of certain
regulated medical wastes, designated as sharps, in non-DOT
specification containers fitted into wheeled racks.
Revise the requirements for cargo air transport of
alcoholic beverages Sec. 173.150 to harmonize with the ICAO TI.
Clarify the exceptions in Sec. 173.159a for non-spillable
batteries secured to skids or pallets.
Correct regulatory citations in Sec. 178.2(c).
Clarify the requirements for the Flame Penetration
Resistance test specified for chemical oxygen generators and certain
compressed gases in Appendix E to Part 178.
Clarify the inspection record requirements in Sec.
180.416 for discharge systems of cargo tanks transporting liquefied
compressed gases.

[[Page 15306]]

Designated Agents for Non-Residents
Currently, Sec. 105.40 prescribes the requirements for designated
agents for non-residents. In specific instances, such as the approval
of fireworks manufactured by a foreign entity, the HMR require non-
residents of the United States who perform hazmat operations within the
United States to designate a permanent resident of the United States to
act as an agent and receive documents on behalf of the non-resident. As
specified in the HMR, non-residents of the United States must prepare a
designation notification and file it with PHMSA in accordance with
Sec. 105.40.
The HMR only permit designated agent notification documents to be
mailed to the Approvals and Permits Division, PHMSA, Attn: PHH-30, U.S.
Department of Transportation, East Building, 1200 New Jersey Avenue
SE., Washington, DC 20590-0001, as specified in Sec. 105.40(d).
Revising this requirement to allow an agent designation to be
transmitted by electronic mail would provide greater regulatory
flexibility and align the submission of these documents with the
procedures currently in place for the submission of other documents
required by PHMSA.
In the April 26, 2012 NPRM, PHMSA proposed to amend Sec. 105.40(d)
to permit agent designations to be submitted by electronic mail to the
special permits or approvals office, as appropriate. The option to
submit a completed agent designation to the Approvals and Permits
Division by mail would remain unchanged.
PHMSA received no comments on the proposed change to the
requirements for designated agents for non-residents. Therefore, we are
adopting these amendments to Sec. 105.40(d), as proposed in the NPRM.
Molten Sulphur Tank Rail Car Guidance Document
Section 171.7 lists all standards incorporated by reference into
the HMR and informational materials not requiring incorporation by
reference. The informational materials not requiring incorporation by
reference are noted throughout the HMR and provide best practices and
additional safety measures that are not mandatory but, may enhance
safety and compliance.
The Sulphur Institute (TSI) represents the sulfur industry in the
United States on a variety of issues including the safe transportation
of sulfur in commerce. TSI submitted petition P-1581 (Docket Number
PHMSA-2007-28054) requesting that PHMSA incorporate by reference TSI's
``Molten Sulphur Tank Rail Car Guidance Document.'' This document
provides best practices for the safe transport of molten sulfur in rail
tank cars. TSI also requested that we amend Sec. 173.24(b)(4) to add
the sentence ``Dried residue of molten sulfur on tank cars shall meet
the `Molten Sulphur Rail Car Guidance Document' incorporated by
reference in Sec. 171.7.''
In the NPRM published on April 26, 2012, PHMSA proposed to adopt
``Molten Sulphur Rail Tank Car Guidance'' in the list of informational
materials not requiring incorporation by reference in Sec. 171.7(b).
In addition, PHMSA proposed to revise the entries for ``Sulfur,
Molten'' specified in the Sec. 172.101 HMT to reference special
provision ``R1'' and add special provision ``R1'' to the R codes
specified in Sec. 172.102(c)(6). This new special provision will
recommend the use of the Molten Sulphur Rail Tank Car Guidance document
when transporting ``Sulfur, Molten'' residues by rail; however, it will
not make its use mandatory. PHMSA did not propose adding TSI's
suggested language ``Dried residue of molten sulfur on tank cars shall
meet the `Molten Sulphur Rail Car Guidance Document' incorporated by
reference in Sec. 171.7'' to Sec. 173.24(b)(4).
PHMSA received eight comments on the proposed addition of the
``Molten Sulphur Rail Tank Car Guidance'' to the list of informational
materials not requiring incorporation by reference and subsequent
addition of special provision ``R1.'' Seven of these comments expressed
support: KOCH, Oxbow, PCS, TFI, Transammonia, TSI, and UTCC. KOCH, who
ships more than 500,000 tons of sulfur annually; Oxbow, who ships over
13,000 railcars of molten sulfur annually; PCS who receives 1.6 million
tons of sulfur annually; Transammonia, who ships over 2,500 railcars of
molten sulfur annually; and UTCC, who provides the means of
transporting sulfur in approximately 1,100 tank cars, note that they
all assisted in developing this document and believe it will benefit
carriers, government inspectors, and shippers by promoting safer
handling practices. TFI, a national trade association representing
fertilizer importers, producers, retailers and wholesalers, reiterates
the comments of these companies. In addition to expressing support for
the adoption of this document, one commenter, TSI, offers two minor
editorial changes to the proposed regulatory text. Specifically, TSI
requests PHMSA update the mailing address listed for TSI and that PHMSA
revise the edition listed for the document.
In contrast, the AAR, on behalf of itself and its member railroads,
provided comments that strongly oppose the proposed amendment. AAR
states its belief that the TSI guidance contradicts certain
requirements specified in the HMR. Specifically, AAR notes that Sec.
173.24(b)(4) specifies ``there will be no hazardous materials residue
adhering to the outside of a package during transport.'' Furthermore,
Sec. 174.57 specifies ``all hazardous material which has leaked from a
package in a rail car or on railroad property must be carefully
removed.'' AAR states that Sec. Sec. 173.24(b)(4) and 174.57 appear to
directly contradict the TSI guidance which permits residue on the
outside of a rail car and only cautions against the presence of
excessive residue.
AAR notes that even small amounts of molten sulfur residue can
generate significant concentrations of sulfur dioxide (SO2),
and sulfur trioxide (SO3) which are both known eye and
respiratory irritants, and hydrogen sulfide (H2S), which has
demonstrated the ability to act as a nervous system toxin. Finally, AAR
expresses concern that the presence of an ``acceptable'' level of
molten sulfur residue on the outside of the rail car may cause
emergency response actions when they are not necessary.
PHMSA appreciates the comments received regarding this proposed
amendment. PHMSA agrees with AAR that Sec. Sec. 173.24(b)(4) and
174.57 specify that no hazardous materials residue is permitted to
adhere to the outside of a package during transport and that all
hazardous material that has leaked from a package in a rail car or on
railroad property must be carefully removed. However, PHMSA believes
that minimal levels of sulfur residue on the outside of a rail tank car
pose minimal transportation risk due to physical state, chemical
properties, and amount. PHMSA also recognizes the difficulty in
removing dried sulfur residue while in transportation.
PHMSA does not dispute AAR's assertion that molten sulfur emits
dangerous chemicals such H2S, SO2, and
SO3. However, as noted above, the dried, fully-cooled
residue does not generate such concentrations of H2S,
SO2, and SO3 and poses little safety risk. To
this end, PHMSA considers the ``Molten Sulphur Rail Tank Car Guidance''
to be a valuable tool for instances in which a minimal amount of
residue remains on a tank car.
AAR further comments that molten sulfur residue on the outside rail
car

[[Page 15307]]

may cause emergency response actions when they are not necessary.
Residue of molten sulfur could also pose a safety risk by obscuring
valuable tank car markings, labels, and stencils as well as tank car
safety appliance features, such as ladders. PHMSA believes that the
``Molten Sulphur Rail Tank Car Guidance'' provides information on when
the cleaning and removing of this residue is necessary, thus decreasing
the likelihood that the residue will obscure hazardous materials
communication or safety features or result in unnecessary emergency
response actions.
PHMSA notes that the majority of comments for the adoption of the
``Molten Sulphur Rail Tank Car Guidance'' in the list of informational
materials not requiring incorporation by reference in Sec. 171.7(b)
were positive and believes this adoption would be beneficial to
carriers, government inspectors, and shippers. PHMSA further emphasizes
that recognition of this document would not impose any new
requirements. Instead, it would be adopted into the list of
informational materials not requiring incorporation by reference, and
therefore, would be provided for guidance purposes only. Therefore,
PHMSA is adopting these amendments to Sec. Sec. 171.7(b) and
172.102(c)(6) as proposed in the NPRM with the minor editorial changes
identified by TSI.
Hazardous Materials Table (HMT) Revisions
The HMT in Sec. 172.101 contains information regarding the
transport conditions, proper shipping name, hazard class and division,
identification number, packing group, label codes, special provisions,
authorized expectations, non-bulk, and bulk packagings, quantity
limitations and vessel stowage requirements for hazardous materials.
Accurate information in the HMT is essential for the safe shipment of
hazardous materials by all modes.
In the NPRM published on April 26, 2012, PHMSA proposed a number of
revisions to the Sec. 172.101 HMT, and the special provisions
specified in Sec. 172.102 to clarify the regulations, correct
inadvertent errors, and improve the accuracy of the information
contained in the HMT. The amendments to the Sec. 172.101 HMT proposed
in the April 26, 2012 NPRM included:
Remove the Packing Group II and III entries for the proper
shipping name, ``Hydrazine dicarbonic acid diazide'' in the Sec.
172.101 HMT and clarify that Hydrazine dicarbonic acid diazide'' is
forbidden.
Remove the proper shipping name, ``Zinc ethyl, see
Diethylzinc'' since ``UN1366 Diethylzinc'' is no longer listed in the
Sec. 172.101 HMT. Individuals offering ``Zinc ethyl'' should choose
one of the more appropriate generic entries for organometallic
compounds and substances.
Add the entries for ``Paint related material, flammable,
corrosive (including paint thinning or reducing compound)'' UN3469, PG
II, and PG III.
Remove Special provision B72 from Column (7) for the
following entries:
[cir] UN2484 tert-Butyl isocyanate;
[cir] UN3492 Toxic by inhalation liquid, corrosive, flammable,
n.o.s. with an inhalation toxicity lower than or equal to 200 ml/m3 and
saturated vapor concentration greater than or equal to 500 LC50;
[cir] UN3488 Toxic by inhalation liquid, flammable, corrosive,
n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated
vapor concentration greater than or equal to 500 LC50; and
[cir] UN3490 Toxic by inhalation liquid, water-reactive, flammable,
n.o.s. with an LC50 lower than or equal to 200 ml/m3 and saturated
vapor concentration greater than or equal to 500 LC50.
Remove Special provision B74 from Column (7) for the
following entries:
[cir] NA2927 Ethyl phosphonothioic dichloride, anhydrous;
[cir] NA2845 Ethyl phosphonous dichloride, anhydrous pyrophoric
liquid;
[cir] NA2927 Ethyl phosphorodichloridate;
[cir] NA2845 Methyl phosphonous dichloride, pyrophoric liquid;
[cir] UN1831 Sulfuric acid, fuming with 30 percent or more free
sulfur trioxide;
[cir] UN3489 Toxic by inhalation liquid, flammable, corrosive,
n.o.s. with an LC50 lower than or equal to 1000 ml/m3 and saturated
vapor concentration greater than or equal to 10 LC50; and
[cir] UN3491 Toxic by inhalation liquid, water-reactive, flammable,
n.o.s. with an LC50 lower or equal to 1000 ml/m3 and saturated vapor
concentration greater than or equal to 10 LC50.
Revise the entries for ``Sulfur, Molten'' specified in the
Sec. 172.101 HMT to reference special provision ``R1.''
PHMSA received nine comments on these proposed revisions.
Specifically, ACA supported the proposed addition of inadvertently
omitted entries for ``Paint related material, flammable, corrosive
(including paint thinning or reducing compound)'' UN3469, PG II, and PG
III. ACA noted it supports ``this proposed amendment and [is] pleased
to see that this correction is being addressed.''
The eight other comments regarding these proposed revisions were
related to the proposed revision of the entries for ``Sulfur, Molten''
specified in the Sec. 172.101 HMT to reference special provision
``R1.'' Those comments are addressed above in the section entitled
Molten Sulphur Tank Rail Car Guidance Document. Based on the
aforementioned discussion, revision of the entries for ``Sulfur,
Molten'' specified in the Sec. 172.101 HMT to reference special
provision ``R1'' will be adopted in this final rule.
PHMSA did not receive any other comments on the proposed revisions
to the Sec. 172.101 HMT as the revisions proposed in the April 26,
2012 NPRM were primarily editorial in nature or simply correcting
inadvertent errors in the HMT. Therefore, based on the above comments
and no opposition to any of the other editorial amendments, PHMSA is
adopting these amendments to the Sec. 172.101 HMT as proposed in the
NPRM.
Special Provision Revisions
The special provisions listed in column (7) of the Sec. 172.101
HMT contain packaging provisions, prohibitions, exceptions from
requirements for particular quantities or forms of materials, and
requirements or prohibitions applicable to specific modes of
transportation. In the April 26, 2012 NPRM, PHMSA proposed revisions to
the special provisions specified in Sec. 172.102 to clarify the
regulations and correct inadvertent errors. The amendments to the
special provisions contained in Sec. 172.102 proposed in the April 26,
2012 NPRM included:
Add special provision ``R1'' to the R codes specified in
Sec. 172.102(c)(6). This new special provision will reference the
``Molten Sulphur Rail Tank Car Guidance'' document as a resource for
best practices for the cleaning of tank cars containing ``Sulfur,
Molten'', where product has spilled and dried on the exterior surface
of the tank car.
Revise special provision 138 specified in Sec.
172.102(c)(1) to harmonize the HMR with the International Maritime
Dangerous Goods (IMDG) code and to clarify that the solubility
calculation provided in special provision 138 should be applied when
determining when to use the ``lead compounds, soluble n.o.s.'' entry in
the List of Marine Pollutants found in Sec. 172.101, Appendix B.
PHMSA received nine comments on these proposed amendments. Eight of
those comments are related to the proposed addition of special
provision R1 and are addressed above in the section entitled Molten
Sulphur Tank

[[Page 15308]]

Rail Car Guidance Document. Based on those comments special provision
R1 specified in Sec. 172.102 will be adopted in this final rule.
PHMSA received one comment on the proposed revision of special
provision 138 specified in Sec. 172.102. In its comment, IVODGA
supports the proposed amendment which revises special provision 138 to
clarify the solubility calculations to be used for classification and
identification of lead compounds and to harmonize the HMR provisions
with the IMDG Code SP 199. Specifically, IVODGA welcomes the
corrections to the Sec. 172.101 HMT to include the provisions of HM-
215 rulemakings which maintain alignment with the international
standards for the listed proper shipping names, hazard classes, packing
groups, special provisions, and vessel stowage requirements. PHMSA did
not receive any adverse comments to this proposed amendments, and is
adopting the revision of special provision 138 specified in Sec.
172.102 as proposed in the NPRM.
Shipping Paper Requirements for Rail Shipments of Residues
On December 29, 2006, PHMSA published a final rule under PHMSA-06-
25476 (HM-215I) [71 FR 78595] that permitted the continued use, for
domestic shipments, of either one of two shipping description sequences
in effect in the HMR on December 31, 2006, until January 1, 2013.
Specifically, the HMR authorize the basic description of a hazardous
material to consist of either the identification number first, followed
by the proper shipping name, hazard class, and packing group, or as an
alternative description sequence, the proper shipping name, hazard
class, ID number and packing group. In addition, the basic description
described above and specified in paragraphs Sec. 172.202(a)(1)-(4)
must be shown in the sequences described with no additional information
interspersed. After January 1, 2013, only the basic shipping
description sequence consisting of the identification number first,
followed by the proper shipping name, hazard class, and packing group
(in that order) is authorized.
However, Sec. 172.203 provides allowances for a shipping paper to
contain information in addition to the basic shipping description
specified in Sec. 172.202. Specifically, Sec. 172.203(e)(1) permits
that the shipping paper for a packaging containing the residue of a
hazardous material may include the words ``RESIDUE: LAST CONTAINED * *
*'' in association with the basic description of the hazardous material
last contained in the packaging. Further, the shipping papers for tank
cars containing the residue of a hazardous material must include the
phrase, ``RESIDUE: LAST CONTAINED * * *'' before the basic description.
While the HMR provide a general provision, various international
standards provide more specific guidance on the location of this
phrase. Currently, the ICAO TI, IMDG Code, and UN Model Regulations
require this phrase, if used, to be placed either before or after the
basic shipping description.
In the NPRM published on April 26, 2012, PHMSA proposed to revise
Sec. 172.203(e)(1) to permit the shipping paper for a packaging
containing the residue of a hazardous material to include the words
``RESIDUE: LAST CONTAINED * * *'' before or after the basic shipping
description of the hazardous material last contained in the packaging.
PHMSA also proposed to remove the language ``in association with'' and
replace it with the language ``before or after'' to align with various
international standards. This proposed revision would harmonize the HMR
with the ICAO TI, IMDG Code and UN Model Regulations.
For rail shipments of tank cars, Sec. 172.203(e)(2) requires that
the description on the shipping paper for a tank car containing the
residue of a hazardous material must include the phrase, ``RESIDUE:
LAST CONTAINED * * *'' before the basic description. Prior to the
publication of the HM-215I final rule, the proper shipping name was the
first piece of information required in the basic shipping description,
and therefore, the phrase, ``RESIDUE: LAST CONTAINED * * *'' preceded
the proper shipping name.
Effective January 1, 2013, rail shipments coming from Canada to the
United States will be unable to comply with both the current
requirements in the HMR for rail tank cars and the Transportation of
Dangerous Goods (TDG) requirements. As stated above, after January 1,
2013, the proper shipping name will no longer be permitted to be the
first piece of shipping information in the basic shipping description.
Subsequently, the phrase, ``RESIDUE: LAST CONTAINED * * *'' will no
longer immediately precede the proper shipping name. Furthermore the
phrase, ``RESIDUE: LAST CONTAINED * * *'' may not be inserted into the
basic description, as Sec. 172.202(b) specifies the basic shipping
description may not contain any additional information interspersed in
the sequence described in Sec. 172.202(a). Canada's TDG regulations
currently permit a residue of hazardous material to be described as
``Residue--Last Contained'' or ``R[eacute]sidu--dernier contenu,''
followed by the shipping name of the dangerous goods last contained in
the means of containment.
To address this issue, in the April 26, 2012 NPRM, PHMSA proposed
to revise Sec. 172.203(e)(2) to require the description on the
shipping paper for a tank car containing the residue of a hazardous
material to include the phrase, ``RESIDUE: LAST CONTAINED * * *''
before or after the basic shipping description, or immediately
preceding the proper shipping name.
PHMSA received one comment on this proposed amendment. IVODGA
welcomes the amendment and notes that an equivalent international
standard of the IMDG Code Amendment 35-10, section 5.4.1.4.3.2 requires
empty uncleaned packagings, IBCs, bulk containers, portable tanks, road
tank vehicles and railway tank wagons that contain the residue of
dangerous goods other than Class 7 to be described by entering the
words ``empty uncleaned'' or ``residue last contained'' before or after
the required basic description. IVOGDA acknowledges that Sec. 171.22
already authorizes the offering for transportation and transporting
hazardous materials in accordance with the IMDG Code. However, it also
notes that the inconsistency of the terminology used on shipping
documents and the sequence of information is an issue for trans-modal
shipments. To further harmonize the HMR with the UN Model Regulations
as adopted in the IMDG Code as well as other modal specific codes, in
addition to the amendments proposed in the April 26, 2012 NPRM, IVODGA
suggests that PHMSA consider revising the proposed text to permit the
use of either term ``empty uncleaned'' or ``residue last contained'' as
either option adequately communicates the hazard.
PHMSA appreciates IVODGA's support of this amendment as well as its
clarifying suggestion with regard to the shipping paper requirements
for empty packagings. As IVOGDA correctly acknowledges, Sec. 171.22
already authorizes the offering for transportation and transporting
hazardous materials in accordance with the IMDG Code and thus the use
of the term ``empty unclean.'' As the proposals in the April 26, 2012
NPRM did not specifically address the language ``empty uncleaned'' and
the HMR currently permits the use of a shipping paper in accordance
with the IMDG code under Sec. 171.22, PHMSA will not specifically add
the term ``empty uncleaned'' to Sec. Sec. 172.203(e)(1) and
172.203(e)(2). We are, however, adopting the amendments

[[Page 15309]]

to Sec. Sec. 172.203(e)(1) and 172.203(e)(2) as proposed in the NPRM.
Training Record Requirements
The requirements for hazardous materials training are specified in
Sec. 172.704. This section includes a description of the applicability
for hazardous materials training, the necessary components of a
training program, and the recurrent training and recordkeeping
requirements.
Currently, 49 CFR part 172, subpart I describes the requirements
for security plans. Specifically, Sec. Sec. 172.802(d) and
172.820(i)(1) require that a copy of the security plan must be
maintained and that security plan documentation be made available upon
request, at a reasonable time and location, to an authorized official
of the Department of Transportation (DOT) or the Department of Homeland
Security (DHS).
Similar to the security plan requirements, the training
requirements include a recordkeeping component. Specifically, as
specified in Sec. 172.704(d), a record of current training, inclusive
of the preceding three years, must be created and retained by each
hazmat employer for as long as that employee is employed by that
employer as a hazmat employee and for 90 days thereafter. However,
unlike the security plan documentation, the HMR currently do not
stipulate that the training records must be made available upon request
to authorized officials of the DOT or DHS.
The Federal hazardous materials transportation law (Federal hazmat
law, 49 U.S.C. 5101 et seq.) authorizes the Secretary of Transportation
to prescribe regulations for the safe transportation of hazardous
material in intrastate, interstate, and foreign commerce. The Secretary
has delegated this authority to PHMSA. Authority to enforce the HMR has
been delegated to the Federal Aviation Administration ``with particular
emphasis on the transportation or shipment of hazardous materials by
air;'' the Federal Railroad Administration ``with particular emphasis
on the transportation or shipment of hazardous materials by railroad;''
PHMSA ``with particular emphasis on the shipment of hazardous materials
and the manufacture, fabrication, marking, maintenance, reconditioning,
repair or test of multi-modal containers that are represented, marked,
certified, or sold for use in the transportation of hazardous
materials;'' and the Federal Motor Carrier Safety Administration ``with
particular emphasis on the transportation or shipment of hazardous
materials by highway'' (CFR part 1, subpart C). In addition, as
provided in the Homeland Security Act and as defined in a Memorandum of
Agreement between the DHS and the DOT, the United States Coast Guard
(USCG) retained the ability to enforce the HMR with particular emphasis
on the transportation or shipment of hazardous materials by vessel.
Thus, enforcement of the HMR, including the training regulations, is
shared among the DOT operating administrations, USCG and DHS, with each
placing particular emphasis on their respective authorities.
Federal hazmat law, 49 U.S.C. 5121(b)(2), states that a person
subject to this law shall make the records, property, reports, and
information available for inspection when the Secretary undertakes an
investigation or makes a request. The completion of training in
accordance with Subpart H of Part 172 is essential for hazmat employees
handling hazardous materials and ensures proper compliance with the HMR
resulting in a greater level of safety. The recordkeeping requirements
specified in Sec. 172.704(d) allow for hazmat employers and PHMSA
personnel to verify that only individuals knowledgeable in the
applicable regulations are handling hazardous materials.
In the NPRM published on April 26, 2012, PHMSA proposed to revise
Sec. 172.704(d) to require that an employer must make hazmat employee
training records required by Subpart H of Part 172 available upon
request, at a reasonable time and location, to an authorized official
of DOT or DHS.
PHMSA received five comments on these proposed amendments to the
training record retention requirements specified in Sec. 172.704(d).
Specifically, ATA believes that the proposed record availability
provision is too broad and should be limited only to those agencies
charged with enforcing PHMSA's regulations in modal transportation. ATA
notes multiple DHS agencies have a reason to access the security plans
specified in Sec. Sec. 172.802(d) and 172.820(i)(1). However, only one
DHS agency, the USCG, has a responsibility for training records
specified in Sec. 172.704(d). As an alternative ATA suggests PHMSA
amend the proposed changes to 172.704(d) by limiting the disclosure
requirement to those agencies outside of the Department of
Transportation (DOT) that are explicitly authorized by Congress to
enforce hazmat training.
ATA states this limitation is appropriate for many reasons. First,
it aligns authority with enforcement requirements. Only agencies with a
responsibility to enforce training compliance have any need to
determine that training requirements have been met. Other agencies
should not be tempted by the authority to audit a transporter's records
for purposes other than enforcing the HMR. Parallel to this, limiting
the disclosure of this information to as few parties as is practicable
represents proper government care for hazmat employees' personally
identifying information. Federal law mandates that agencies take care
to ensure that privacy is a paramount concern. Limiting access to only
those agencies with an explicitly granted authority to enforce the HMR
is in the spirit of such statutes.
In addition to the comments presented by ATA, IVODGA, DGAC, COSHTA
and NTTC provided similar comments. All voiced general support for the
proposal but note the language ``an authorized official of the
Department of Homeland Security'' was too broad. IVODGA, DGAC, COSHTA,
and NTTC all suggest the language be revised to indicate the USCG as
the designated division of DHS with which training records must be
presented upon request.
In addition to the comments above, IVODGA further asks PHMSA to
consider electronic means of recordkeeping as alternatives to hard copy
documents for the sake of time saving in producing records at the
request of a duly authorized representative of the DOT or DHS as
amended. As this proposal was not presented in the April 26, 2012 NPRM,
it is considered beyond the scope of this rulemaking and will not be
addressed in this final rule. However, it should be noted that PHMSA
currently does not prohibit the use of electronic training records as
Sec. 172.704 does not specify the manner in which records must be
maintained.
PHMSA agrees with the concerns raised by ATA, IVODGA, DGAC, COSHTA
and NTTC regarding the availability of training records. Therefore,
based on the comments received, in this final rule PHMSA is adopting
the proposed amendments to the training record requirements specified
in Sec. 172.704(d) and will modify the text to replace the reference
to an authorized official of ``the Department of Homeland Security''
with a reference to an authorized official ``of an entity explicitly
granted authority to enforce the HMR.'' This will ensure that
appropriate agencies, including the USCG, have access to the required
training records, while limiting unnecessary review of training records
and safeguarding personally identifying

[[Page 15310]]

information for members of the regulated community.
Dewar Flasks Transported as Materials of Trade
Section 173.6 specifies the exceptions for shipments of materials
of trade. A material of trade, is defined in Sec. 171.8 as ``a
hazardous material, other than a hazardous waste, that is carried on a
motor vehicle for the purpose of protecting the health and safety of
the motor vehicle operator or passengers; for the purpose of supporting
the operation or maintenance of a motor vehicle (including its
auxiliary equipment); or by a private motor carrier (including vehicles
operated by a rail carrier) in direct support of a principal business
that is other than transportation by motor vehicle.'' Section 173.6
authorizes only specific hazard classes and quantities to use the
materials of trade exception. A hazardous material that meets the
definition of a material of trade and is transported by motor vehicle
in conformance with Sec. 173.6 is not subject to any other
requirements of the HMR except for those explicitly set forth or
referenced in Sec. 173.6.
PHMSA recently received a request for a formal letter of
interpretation pertaining to the application of the materials of trade
exception (Reference No.: 10-0101). The letter expressed confusion and
concern regarding whether the exception would apply to Division 2.1 and
Division 2.2 compressed gas transported in Dewar flasks.
PHMSA acknowledged this requirement needs additional clarification,
as we believe that increased clarity will help to ensure the intended
application of the materials of trade exception. Therefore, in the
NPRM, PHMSA proposed to modify Sec. 173.6(a)(2) to clarify that Dewar
flasks may be transported as materials of trade provided these
materials meet all the requirements specified in Sec. 173.6.
PHMSA received no comments on these proposed amendments to the
materials of trade requirements specified in Sec. 173.6(a)(2).
Therefore, we are adopting these amendments as proposed.
Lab Packs Containing Temperature-Controlled Materials
Section 173.12 specifies the exceptions for shipment of waste
materials including the requirements for waste packages known as ``lab
packs.'' A lab pack, although not specifically defined in Sec. 171.8,
is considered a large outer packaging containing small inner packagings
that are filled with various compatible laboratory hazardous wastes. In
accordance with Sec. 173.12, a lab pack is a combination packaging
consisting of a glass inner packaging, not exceeding 4 L (1 gallon)
rated capacity, or a metal or plastic inner packaging, not exceeding 20
L (5.3 gallons) rated capacity. Inner packagings containing liquid must
be surrounded by a chemically compatible absorbent material in
sufficient quantity to absorb the total liquid contents. These inner
packagings are then further packed in specification outer packaging and
the completed package must not exceed a gross weight of 205 kilograms.
The requirements and regulatory relief provided for the transportation
of waste hazardous materials under the lab pack exception are further
specified in Sec. 173.12(b) of the HMR.
On July 17, 2007, PHMSA published a request for comments regarding
the conversion of special permits into the HMR in the Federal Register
under Docket Number PHMSA-2007-27329 (HM-233A) [72 FR 388110] entitled,
``Hazardous Materials: Conversion of Special Permits into Regulations
of General Applicability.'' In response to this notice PHMSA received
comments requesting the incorporation of various special permits
including special permit DOT SP-13192. Subsequently, PHMSA published in
the Federal Register under Docket Number PHMSA-2009-27289 (HM-233A) [74
FR 68004] an NPRM entitled, ``Hazardous Materials: Incorporation of
Special Permits Into Regulations'' proposing the incorporation of
special permit DOT SP-13192. The lab pack requirements were then
amended in a final rule published on May 14, 2010, in the Federal
Register under Docket Number PHMSA-2009-0289 (HM-233A) [74 FR 53413]
entitled, ``Hazardous Materials: Incorporation of Special Permits into
Regulations.'' As part of these amendments, certain widely used and
longstanding special permits, including special permit DOT SP-13192,
were incorporated into the HMR. Specifically, the incorporation of this
special permit authorized the transport of waste Division 4.2, Packing
Group (PG) I material and Division 5.2 (organic peroxide) material in
lab packs.
PHMSA recently received a request for a formal letter of
interpretation pertaining to the recent changes of the lab pack
exception (Reference No.: 10-0233). The writer expressed confusion and
concern regarding whether the amendments of the HM-233A final rule
authorized the transportation, as lab packs, of Division 4.1 and
Division 5.2 materials that were also required to be temperature-
controlled.
PHMSA acknowledged that this requirement needed additional
clarification, as we believe that increased clarity will help to ensure
that individuals transporting lab packs containing temperature-
controlled materials are aware that such packagings are not excepted
from other safety measures. Therefore, in the NPRM, PHMSA proposed to
modify Sec. 173.12 to clarify that temperature-controlled materials
may be transported in lab packs provided these materials also meet the
requirements in Sec. 173.21(f)(1). PHMSA received one comment on this
proposed amendment. Veolia commented that ``PHMSA's incorporation of
the clarification to require shippers to also comply with operational
controls for the transportation of temperature controlled materials in
Sec. 173.21(f)(1) is greatly appreciated.'' Veolia did however note
that it has additional safety concerns involving the shipment of
Division 5.2 materials under the lab pack exception stemming from the
adoption of the amendments of HM-233A that it believes PHMSA should
also address. These additional safety concerns related to the HM-233A
final rule were beyond the scope of this rulemaking and thus not
addressed in this final rule. Therefore, we are adopting as proposed
the amendment to clarify that temperature-controlled materials may be
transported in lab packs provided these materials also meet the
requirements in Sec. 173.21(f)(1).
Cargo Tank Motor Vehicles Self-Closing Stop Valves
Section 173.33 provides the requirements for hazardous materials
transported in CTMVs. This section includes general requirements for
CTMVs, as well as more specific requirements for loading, maximum
lading pressure, relief systems, and closing valves.
Section 173.33(g) requires each liquid filling and liquid discharge
line in a specification MC 338 cargo tank must be provided with a
remotely-controlled internal self-closing stop valve except when the MC
338 cargo tank is used to transport argon, carbon dioxide, helium,
krypton, neon, nitrogen, or xenon.
The discharge control device requirements for a MC 338 cargo tank
are found in Sec. 178.338-11(b) and state that each liquid filling and
liquid discharge line must be provided with a shut-off valve located as
close to the tank as practicable and, unless the valve is manually
operable at the valve, the line must also have a manual shut-off valve.

[[Page 15311]]

PHMSA received a request for a formal letter of interpretation
regarding the current requirements for MC 338 cargo tanks (Reference
No.: 06-0243). According to the request, most vacuum insulated MC 338
cargo tanks operate at temperatures below the reliable operating
temperature of available internal self-closing stop valves, and
currently no manufacturer builds an internal self-closing stop valve
that will operate reliably at temperatures that may reach minus
452[emsp14][deg]F. The requestor asked if a MC 338 cargo tank is
required to have a remotely-controlled internal self-closing stop valve
as specified in Sec. 173.33(g), provided an external stop valve is
present in accordance with Sec. 178.338-11(b).
PHMSA does not intend to require a remotely-controlled internal
self-closing stop valve if the MC 338 cargo tank already uses an
external self-closing stop valve to meet the requirements in Sec.
178.338-11(b). Therefore, in the NPRM, we proposed to revise the
provisions in Sec. 173.33(g) to clarify this exception.
PHMSA received no comments on these proposed amendments to the
requirements for CMTV Self-Closing Stop Valves specified in Sec.
173.33(g), and are adopting these amendments as proposed.
Explosive Packaging Editorial Revision
Section 173.62 specifies packaging requirements for explosives.
Specifically, Sec. 173.62 provides a table that specifies the
packaging instructions, and corresponding authorized inner,
intermediate and outer packagings based on the assigned identification
number of the explosive.
In a final rule published on September 13, 2011, under Docket
Number PHMSA-2011-0134 (HM-244D) [76 FR 56304], entitled ``Minor
Editorial Corrections and Clarifications,'' PHMSA revised Sec.
173.62(c)(5) packaging instruction 130 to authorize the use of aluminum
boxes (4B) and natural wood, sift-proof walls boxes (4C2). However, the
following language was inadvertently removed from the first column of
the packing instruction:

``2. Subject to approval by the Associate Administrator, large
explosive articles, as part of their operational safety and
suitability tests, subjected to testing that meets the intentions of
Test Series 4 of the UN Manual of Tests and Criteria with successful
test results, may be offered for transportation in accordance with
the requirements of this subchapter.''

PHMSA did not intend to remove this portion of the packaging
instruction and unnecessarily limit the transport of large explosive
articles. Therefore, in the April 26, 2012 NPRM, PHMSA proposed to
revise Sec. 173.62(c)(5) packing instruction 130 to reinstate the
language inadvertently removed from the first column of packing
instruction 130.
PHMSA received no comments on these proposed amendments to the
explosive packaging instruction 130 in Sec. 173.62(c)(5). Therefore,
we are adopting this amendment as proposed in the NPRM.
Exclusive Use Vehicles for Regulated Medical Waste (RMW)
Section 173.134 provides definitions and exceptions for infectious
substances. Paragraph (c)(2) of this section requires a Regulated
Medical Waste (RMW) that contains Category B cultures and stocks to be
transported on a vehicle ``used exclusively'' to transport RMW. A
Category B substance is defined as ``an infectious substance that is
not in a form generally capable of causing permanent disability or
life-threatening or fatal disease in otherwise healthy humans or
animals when exposure to it occurs.''
As amended on July 20, 2011, in a final rule published under Docket
Number PHMSA-2009-0151 (HM-218F) [76 FR 43510], entitled
``Miscellaneous Amendments,'' PHMSA revised Sec. 173.134(c)(2) to
incorporate the clarifications from a March 19, 2007 letter of
interpretation (Ref. No. 07-0057). Specifically, PHMSA specified 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.
In response to the proposals in the HM-218F NPRM, Stericycle
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 those
covered under special permit DOT SP-13556, which authorizes the
transportation of sharps in specialized containers. At the time of the
July 20, 2011 final rule, PHMSA determined that incorporating special
permit DOT SP-13556 into the HMR was beyond the scope of that
rulemaking, but this issue would be addressed in a future NPRM.
Therefore, in the NPRM published on April 26, 2012 PHMSA proposed to
revise Sec. 173.134(c)(2) to incorporate special permit DOT SP-13556
relating to the transport of regulated medical waste into the HMR.
PHMSA received one comment from Stericycle expressing full support
for this proposal. Stericycle did not suggest edits to the regulatory
text incorporating DOT-SP 13556. Therefore, we are adopting this
amendment as proposed in the NPRM. Furthermore, we are reinstating the
text previously adopted in the HM-218F final rule published under
Docket Number PHMSA-2009-0151 (HM-218F) [76 FR 43510] as it was
inadvertently deleted from the HMR.
However, Stericycle did express its belief that the definition of
sharps specified in Sec. 173.134 (a)(6) should be amended to include
unbroken glass contaminated with a pathogen or that could become
contaminated with a pathogen so the regulated community has a better
understanding of the definition of sharps. Although PHMSA agrees that a
clarification of the definition of ``sharps'' may assist the regulated
community in understanding the applicable requirements, such a revision
is beyond the scope of the original proposed amendments and will not be
addressed in this final rule.
Alcoholic Beverages Exception
Section 173.150 provides exceptions from the HMR for certain Class
3 flammable liquid material. Specifically, Sec. 173.150(d) provides
exceptions for alcoholic beverages for all modes of transport. An
alcoholic beverage (wine and distilled spirits as defined in 27 CFR
4.10 and 5.11) that meets one of three conditions specified in Sec.
173.150(d) is not subject to the requirements of the HMR for a Class 3
flammable liquid material. These conditions include; (1) Containing 24
percent or less alcohol by volume; (2) being packaged in an inner
packaging of 5 L (1.3 gallons) or less, and for transportation on
passenger-carrying aircraft conforming to Sec. 175.10(a)(4) as checked
or carry-on baggage; or (3) for a Packing Group III alcoholic beverage
being packaged in a packaging of 250 L (66 gallons) or less, unless
transported by air.
Currently, the ICAO TI provide exceptions for alcoholic beverages
transported via aircraft in Chapter 3; 3.1.1, Table 3-2, special
provision A9 and Chapter 8; 8.1.2 paragraph (l). Specifically, Chapter
3; 3.1.1 Table 3-2 special provision A9 states that

[[Page 15312]]

alcoholic beverages containing not more than 70 percent alcohol by
volume, when packaged in receptacles of 5 liters of less are not
subject to the ICAO TI when carried as cargo. In addition, as specified
in Chapter 8; 1.1.2 paragraph (l) of the ICAO TI, alcoholic beverages
with less than 24 percent alcohol by volume or alcoholic beverages in
retail packaging and alcoholic beverages containing more than 24
percent but not more than 70 percent alcohol by volume in receptacles
not exceeding 5 liters are permitted to be carried by passengers or
crew in carry-on or checked luggage and are not otherwise subject to
the ICAO TI.
Generally, the HMR is harmonized with the ICAO TI with regard to
the exceptions provided for alcoholic beverages shipped by passenger
carrying and cargo aircraft. However, for cargo aircraft, the HMR does
not align with the ICAO TI. For example, as specified in Sec.
173.150(d), the HMR excepts alcoholic beverages in an inner packaging
of 5 L (1.3 gallons) or less from regulation regardless of the alcohol
percent on cargo aircraft. In contrast, the ICAO TI limits this
exception to alcoholic beverages not exceeding 70 percent alcohol by
volume. This lack of harmonization can lead to frustration of shipments
of these types of materials in international air transport.
To address this issue, in the April 26, 2012 NPRM, PHMSA proposed
to revise the exceptions in Sec. 173.150(d) to harmonize the alcoholic
beverages exception via aircraft with the requirements in the ICAO TI,
and to restructure the exceptions in Sec. 173.150(d) to provide
clarity on the requirements for the transport of alcoholic beverages by
each mode of transport including passenger carrying and cargo aircraft.
PHMSA received one comment on these proposed amendments. COSTHA
strongly supports this and other international harmonization efforts.
However, COSTHA believes the revisions to Sec. 173.150, as proposed in
the NPRM, prohibit the exception from being applied to alcohol shipped
as cargo on passenger aircraft. The proposed text in Sec.
173.150(d)(2)(iii) states alcoholic beverages transported aboard a
cargo aircraft containing more than 24 percent but less than 70 percent
alcohol by volume in an inner packaging of 5L (1.3 gallons) or less are
not subject to the requirements of Subchapter C of the HMR. COSTHA
notes that ICAO SP A9 states ``[a]lcoholic beverages containing not
more than 70 per cent alcohol by volume, when packed in receptacles of
5 litres or less, are not subject to these instructions when carried as
cargo.'' In the ICAO TI, the word `cargo' does not mean cargo aircraft,
but is defined in ICAO 3.1 as ``any property carried on an aircraft
(passenger or cargo) other than mail and accompanied or mishandled
baggage.'' Therefore in an effort to fully harmonize COSTHA recommends
PHMSA modify the language in the proposed Sec. 173.150(d)(2)(iii) to
remove the word ``cargo'' before aircraft allowing harmonization with
the ICAO TI for alcoholic beverages on aircraft, both passenger and
cargo.
PHMSA appreciates COSTHA's comments and its general support for the
amendments. On a passenger carrying aircraft an alcoholic beverage
could be transported in three specific scenarios: (1) As carry-on
baggage, (2) in checked baggage, or (3) as cargo. The language proposed
in the NPRM addressed the first two of these transport scenarios but
neglected to account for alcoholic beverages shipped as cargo aboard a
passenger carrying aircraft. PHMSA did not intend to prohibit the
alcoholic beverage exception from being applied to alcohol being
shipped as cargo on passenger aircraft. PHMSA agrees with the statement
that ICAO SP A9 states ``[a]lcoholic beverages containing not more than
70 per cent alcohol by volume, when packed in receptacles of 5 litres
or less, are not subject to these instructions when carried as cargo''
regardless of whether it is a passenger carrying or cargo carrying
aircraft. Therefore, we are revising the proposed language in Sec.
173.150(d)(2)(iii) so that the exception for alcoholic beverages
containing more than 24% but less than 70% alcohol by volume in an
inner packaging not exceeding 5 L (1.3 gallons) may be transported as
cargo aboard both passenger and cargo aircraft. We also note that when
carried as cargo aboard a passenger carrying aircraft, the passenger
provisions of Sec. 175.10(a)(4) would no longer be applicable.
PHMSA is confident the revised text correctly reflects all
transportation scenarios for alcoholic beverages and the exceptions
provided for both passengers transporting alcoholic beverages via
carry-on or checked baggage and transport of alcoholic beverages as
cargo via cargo and passenger aircraft. Therefore, we are adopting
these amendments as proposed in the NPRM, with the additional revision
of Sec. 173.150(d)(2)(iii).
Exceptions for Non-Spillable Batteries
Section 173.159 specifies requirements for the transportation of
wet batteries, including non-spillable batteries. Additional exceptions
for non-spillable batteries are specified in Sec. 173.159a. If certain
transport conditions specified in Sec. Sec. 173.159 and 173.159a are
met, such as specific packaging and securement requirements, non-
spillable batteries are excepted from the HMR.
In a final rule published on January 14, 2009, under Docket Nos.
PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J) [74 FR 2200],
entitled ``Hazardous Materials: Revision to Requirements for the
Transportation of Batteries and Battery-Powered Devices; and
Harmonization With the United Nations Recommendations, International
Maritime Dangerous Goods Code, and International Civil Aviation
Organization's Technical Instructions,'' PHMSA amended Sec. 173.159(f)
to describe the conditions under which a battery is considered ``non-
spillable,'' and relocated the exceptions pertaining to non-spillable
batteries from Sec. Sec. 173.159(d) and 173.159(f), to a new Sec.
173.159a.
However, when these exceptions were relocated, PHMSA inadvertently
required that excepted non-spillable batteries must be securely
packaged in strong outer packagings. This modification, in essence,
prohibited excepted batteries from being palletized or placed on a
skid. Therefore, in the NPRM published on April 26, 2012, PHMSA
proposed to revise Sec. 173.159a(c)(1) to except from the packaging
requirements of Sec. 173.159, non-spillable batteries that are secured
to skids or pallets and capable of withstanding the shocks normally
incident to transportation, provided the batteries meet the
requirements of Sec. 173.159(a) and are loaded or braced so as to
prevent damage and short circuits in transit. Further, any other
material loaded in the same vehicle must be blocked, braced, or
otherwise secured to prevent contact with or damage to the batteries.
PHMSA received one comment on these proposed amendments to the
exceptions for non-spillable batteries specified in Sec.
173.159a(c)(1). IVODGA welcomes the clarification of the exceptions in
Sec. 173.159a for non-spillable batteries secured to skids or pallets
which align the HMR with the requirements and exceptions within the
IMDG Code and supports the ongoing efforts to reduce frustrated
shipments in multi-modal commerce by international carriers such as the
IVODGA membership.
However, IVODGA expresses confusion regarding the applicability of
the incident reporting requirements to a shipment of batteries that
meets the

[[Page 15313]]

exception provided in Sec. 173.159a(d). To alleviate this perceived
lack of clarity, IVODGA suggests PHMSA clarify the text in Sec. Sec.
173.159a(b) and 173.159a(d) to specify whether the exception from
incident reporting requirements is applicable.
Based on the current text ``are subject to the incident reporting
requirements'' specified in Sec. 173.159a(b) it is apparent that
shipments complying with this section would be subject to the incident
reporting requirements. Furthermore, Sec. 173.159a(d) states that
``Non-spillable batteries are excepted from all other requirements of
this subchapter when offered for transportation and transported in
accordance'' with paragraph (c) and (d) of Sec. 173.159a. The term
``excepted from all other requirements of this subchapter'' is used
throughout the HMR to indicate that only the requirements of the
paragraph in which that statement is included would apply. Paragraphs
(c) and (d) of Sec. 173.159a do not mention incident reporting
requirements. Therefore, we believe it is clear that provided a
shipment of non-spillable batteries meets the requirements of Sec.
173.159a(c) and Sec. 173.159a(d), which do not include the incident
reporting requirements, it is not subject to any other requirements
contained in the HMR; therefore, we are not adopting any additional
suggested amendments to Sec. 173.159a. Based on the foregoing, PHMSA
is adopting the amendment to Sec. 173.159a(c)(1), as proposed in the
NPRM.
Cargo Tank Motor Vehicle Closures
Section 177.834 provides the general requirements for the loading
and unloading of vehicles intended to transport hazardous materials via
ground transportation. Paragraph (j) of this section requires CTMVs to
be transported with all valves and other closures in liquid discharge
systems to be closed and free of leaks unless transported in accordance
with the requirements for empty packages specified in Sec.
173.29(b)(2).
The provision specified in Sec. 177.834(j) was added on May 30,
1996, in a final rule published under Docket Number HM-222B [61 FR
27166] to consolidate the closure requirements for cargo tanks
transporting Class 3 (flammable liquid) materials, Class 8 (corrosive)
materials, and Division 6.1 (poisonous) materials. This rule
inadvertently overlooked the impact the closure requirement would have
on MC 338 cargo tanks that transport cryogenic liquids. These tanks
have external self-closing valves that are normally transported in an
open position and are designed to close with a tremendous amount of
force to ensure proper closure. Subsequently, these valves require a
large amount of force and effort to open. As a result, the potential
for physical injury to employee personnel is increased and the ability
of the valve system to operate is potentially compromised as a result
of repeated cycling (opening, closing, and testing).
In the NPRM published on April 26, 2012, PHMSA proposed to revise
Sec. 177.834(j) to permit external emergency self-closing valves on MC
338 cargo tanks containing residues of cryogenic liquids to remain
either open or closed during transit.
PHMSA received no comments on these proposed amendments to the
closure requirements for external emergency self-closing valves on MC
338 cargo tanks specified in Sec. 177.834(j), and are adopting these
amendments as proposed.
Cargo Tank Motor Vehicle (CTMV) Recordkeeping
Certain CTMVs require as part of their specification both a CTMV
manufacturer's data report and a certificate stating that the completed
CTMV conforms in all respects to the appropriate specification and the
American Society of Mechanical Engineers (ASME) Code. Section
178.2(c)(1) currently excepts CTMVs that require a manufacturer's data
report and certificate from the notification requirements.
Specifically, Sec. 178.2(c)(1) states that CMTV's in compliance with
Sec. Sec. 178.337-18 and 178.345-10 are excepted from the notification
requirements specified in Sec. 178.2(c)(1). The current reference to
Sec. 178.345-10 in Sec. 178.2(c)(1) refers to pressure relief, not
the CTMV manufacturer's data report and certificates for DOT 406, 407
and 412 (CTMVs), and is in error. The correct citation should read
Sec. 178.345-15, which refers to the manufacturer's data report and
certification of DOT 406, 407 and 412 CMTVs. In addition, we also note
that a reference to a MC 338 cargo tank manufacturer's data report
certificate in Sec. 178.338-19 is missing in Sec. 178.2(c)(1).
Therefore, in the April 26, 2012 NPRM, PHMSA proposed to correct
these errors and omissions by replacing the reference to Sec. 178.345-
10 with Sec. 178.345-15 and adding a reference to Sec. 178.338-19.
PHMSA received one positive comment and no negative comments on the
proposed amendments to the recordkeeping requirements for CTMV
specified in Sec. 178.2(c)(1). DGAC supports such an amendment. This
revision will increase compliance by revising incorrect citations and
correcting unintended errors in the HMR. Therefore, we are adopting
these clarifications as proposed in the NPRM.
Flame Penetration Resistance Test
Appendix E to Part 178 describes the Flame Penetration Resistance
Test referenced throughout the HMR with regard to the outer packaging
for chemical oxygen generators and cylinders containing compressed
oxygen. This appendix specifies requirements for the Flame Penetration
Resistance Test and includes criteria for acceptance of a passing test
result, a summary of the test method and procedure, details on the
preparation of test specimens, and construction and calibration
specifications for the test equipment. The test procedure is described
in section (g)(2) of this Appendix and references a ``Figure 1,''
However, the Figure 1 is omitted. In sections (d)(3) and (f)(2) of this
Appendix, the design and calibration of the calorimeter is described
and refers to a ``Figure 2,'' but Figure 2 is also omitted.
In the April 26, 2012 NPRM, PHMSA proposed to add Figures 1 and 2
that were referenced but inadvertently omitted from Appendix E.
PHMSA received no comments on the proposed addition of the figures
inadvertently omitted in Appendix E to Part 178, and is adopting these
amendments as proposed in the NPRM.
Discharge System Inspection and Maintenance Program
Section 180.416 details the requirements for a discharge system
inspection and maintenance program for cargo tanks transporting
liquefied compressed gases. Specifically, Sec. 180.416 applies to
operators using specification MC 330, MC 331, and non-specification
cargo tanks authorized under Sec. 173.315(k) for transportation of
liquefied compressed gases other than carbon dioxide. As part of the
discharge system inspection specified in this section, the operator
must visually inspect each delivery hose assembly at least once each
calendar month in which the delivery hose assembly is in service and
keep a record of each inspection. In accordance with Sec. 180.416(d),
that record must include the inspection date, the name of the person
performing the inspection, the hose assembly identification number, the
company name, the date the hose was assembled and tested, and an
indication that the delivery hose assembly and piping system passed or
failed the tests and inspections.
There has been some confusion among the regulated community

[[Page 15314]]

pertaining to the requirement to include ``the company name'' in the
record as specified in Sec. 180.416(d). Specifically, there was
concern over whether ``the company name'' refers to the name of the
operator or the name of the manufacturer of the hose.
In the April 26, 2012 NPRM, PHMSA proposed to revise Sec.
180.416(d) to clarify that the reference to the ``company name'' on the
inspection record is the name of the hose manufacturer.
PHMSA received no comments on the proposed clarification of the
discharge system inspection and maintenance program recordkeeping
requirements specified in Sec. 180.416(d), and is adopting these
amendments as proposed.

C. Comments Beyond the Scope of This Rulemaking

In this section, PHMSA discusses the comments to the NPRM that
provided suggestions for additional revisions that were not
specifically proposed in the NPRM. Based on an assessment of the
proposed changes and the comments received, PHMSA identified four
comments that are beyond the scope of this rulemaking action.
Specifically, these comments were submitted by Stericycle, IVODGA,
Veolia, and Richard Zbilski. These comments pertain to a revision to
the definition of sharps, electronic retention of training records, the
lab pack revisions adopted into the HMR in a final rule entitled
``Hazardous Materials: Incorporation of Special Permits into
Regulations'' under PHMSA-2009-0289 [70 FR 43638] (HM-233A) and
published in the Federal Register on May 14, 2010, and the
environmental impact of fireworks.
As these suggested amendments were not proposed in the NPRM and the
regulated community was not given the opportunity to comment on these
amendments, PHMSA is unable to address them in this final rule. If
PHMSA chooses to pursue consideration of any of these comments, we will
do so in a separate rulemaking. PHMSA appreciates Stericycle, IVODGA,
Veolia, and Richard Zbilski bringing these issues to our attention and
invites them to file petitions for rulemaking in accordance with Sec.
106.95 including all information (see Sec. 106.100) needed to support
a petition if these commenters believe these amendments warrant
rulemaking action. PHMSA briefly discusses these comments below.
Revision to the Definition of Sharps
In the April 26, 2012 NPRM, PHMSA proposed to incorporate special
permit DOT SP-13556 into Sec. 173.134, to authorize the transportation
by motor vehicle of certain regulated medical wastes, designated as
sharps, in non-DOT specification containers fitted into wheeled racks.
In addition to its comments regarding the incorporation of this special
permit DOT SP-13556, Stericycle also submitted a comment with regard to
the definition of the term ``sharps'' as specified in Sec.
173.134(a)(6). Stericycle stated that the definition of ``sharps''
should be amended to include ``unbroken glass contaminated with a
pathogen or that could become contaminated with a pathogen so the
regulated community has a better understanding of the definition of
sharps.'' Although clarification of the definition of ``sharps'' may
assist the regulated community in understanding the applicable
requirements, PHMSA has determined that such an amendment is beyond the
scope of the proposals presented in the April 26, 2012 NPRM and
therefore will not be addressed in this final rule.
Electronic Retention of Training Records
In addition to its comments regarding the proposed revisions to the
training record requirements specified in Sec. 172.704(d), IVODGA also
requested PHMSA ``consider electronic means of recordkeeping as
alternatives to hard copy documents for the sake of time saving in
producing records at the request of a duly authorized representative.''
As this specific amendment was not proposed in the April 26, 2012 NPRM,
it is considered outside the scope of this rulemaking and will not be
addressed in this final rule. It should be noted that PHMSA currently
does not prohibit the use of electronic training records as Sec.
172.704 does not specify the manner (i.e. paper or electronic) in which
records must be kept.
Reconsideration of the Lab Pack Requirements Adopted Under HM-233A
In addition to its comments regarding the proposed revisions to the
lab pack requirements specified in Sec. 173.12, Veolia also requested
that PHMSA reconsider amendments adopted in the HMR in a final rule
entitled ``Hazardous Materials: Incorporation of Special Permits into
Regulations'' under PHMSA-2009-0289 [75 FR 27205] (HM-233A) and
published in the Federal Register on May 14, 2010. Specifically, Veolia
requests PHMSA reconsider further amending the requirements for lab
pack to address various safety concerns it claims have resulted from
the adoption of the HM-233A final rule. Veolia is concerned that
amendments adopted in HM-233A rulemaking will diminish the safety of
the shipments of waste Division 5.2 materials for disposal by
increasing the potential for misclassification of the hazardous
materials by the shipper and allowing the use of a less rigorous
packaging. Veolia's specific comments can be reviewed in the docket for
this rulemaking. As the revisions to the lab pack requirements Veolia
references were already proposed and offered for comment in the HM-233A
NPRM and later addressed in the HM-233A final rulemaking, PHMSA does
not intend to revisit them in this final rule.
PHMSA believes the additional comprehensive comments from Veolia
would be more appropriately addressed in a separate rulemaking specific
to lab pack requirements where they can be offered for comment from the
regulated community prior to adoption. We appreciate Veolia bringing
its safety concerns to our attention and encourage it to file a
petition for rulemaking in accordance with Sec. 106.95 including all
information (see Sec. 106.100) needed to support a petition if it
believes these amendments warrant rulemaking action.
Fireworks Containing Sulfur
PHMSA received one comment from a concerned individual regarding
the pollution resulting from the use of fireworks. Specifically, the
commenter expresses concern about the amount and type of pollution
emitted when using fireworks. The topic of fireworks was not addressed
in the April 26, 2012 NPRM, and is therefore, beyond the scope of this
rulemaking. It should be noted that PHMSA published in the Federal
Register under Docket Number PHMSA-2010-0320 [74 FR 68004] (HM-257) an
NPRM entitled, ``Hazardous Materials: Revision to Fireworks Approvals
(RRR)'' that addresses fireworks-related issues. The docket for the
fireworks rulemaking can be found at https://www.regulations.gov under
PHMSA-2010-0320 (HM-257).

D. Provisions Not 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
identified one provision that we are not adopting in this final rule.
Specifically, PHMSA received considerable negative comments on the
proposed revision to the closure notification requirements. Below is a
summary of the amendment proposed, the comments received, and

[[Page 15315]]

PHMSA's rationale for not adopting this proposed amendment.
Closure Notification Requirements
Section 178.2 specifies the applicability of the requirements to
specification packagings and the responsibilities of the manufacturer
or other persons certifying compliance with the specification packaging
requirements of Part 178. To achieve compliance with these
requirements, the manufacturer or other person certifying compliance
with the requirements of Part 178 must provide both notification to
each person to whom a packaging is transferred of all requirements in
Part 178 not met at the time of transfer, and applicable closure
requirements for the packaging. These closure requirements include
information specifying the type(s) and dimensions of the closures,
including gaskets and any other components needed to ensure that the
packaging is capable of successfully passing the applicable performance
tests. This information must include any procedures to be followed,
including closure instructions for inner packagings and receptacles, to
effectively assemble and close the packaging for the purpose of
preventing leakage in transportation. Closure instructions must provide
for a consistent and repeatable means of closure that is sufficient to
ensure the packaging is closed in the same manner as it was tested.
In April 2006, PHMSA received a request (Reference No.: 06-0123)
for a letter of interpretation seeking clarification of the closure
notification requirements specified in Sec. 178.2(c) for ``packages''
containing residues. This letter was submitted to PHMSA requesting
additional clarification on two previously issued letters of
interpretation (Reference Numbers 05-0015 and 05-0265) which also
addressed the topic of closure requirements with regard to
``packaging'' and ``packages.'' In response to Reference No. 06-0123,
PHMSA indicated that ``packages'' containing residues must meet the
notification requirements of Sec. 178.2(c) and that we would clarify
this issue in a future rulemaking.
In the April 26, 2012 NPRM, PHMSA addressed this need for
clarification by proposing to revise Sec. 178.2(c) to specify that the
notification requirements apply to a packaging containing a residue of
a hazardous materials unless the packaging of hazardous materials meets
the exceptions provided in Sec. 173.29(b).
PHMSA received seven comments on these proposed amendments from
ACA, AHS, DGAC, NACD, RIPA, USWA and Veolia. All of the comments were
extensive and strongly opposed to the amendment proposed. The
commenters addressed topics related to the proposed amendments such as
the intent and applicability of Sec. 178.2(c); impact on re-
conditioners, recyclers and re-users of packagings; information
collection burden; economic implications, and the safety benefit, or
lack thereof. PHMSA appreciates this feedback and an overview of these
comments is provided below. The complete list of comments pertaining to
this amendment is available in the docket for this rulemaking.
Several commenters disagree with the proposed amendments to the
closure notification requirements stating that the changes did not
reflect the initial intent and applicability of Sec. 178.2(c). DGAC,
whose membership includes virtually all sectors of the hazmat
transportation industry, correctly noted that the term ``packaging'' as
defined in Sec. 171.8 and used in part 178 of the HMR refers only to
receptacles that do not contain hazardous material. Subsequently, Sec.
178.2(c) would apply to individuals moving ``packagings'' as defined in
Sec. 171.8, and not ``packages'' which would include packagings
containing hazardous materials. DGAC also states that the term
``subsequent distributors,'' as used in Sec. 178.2(c)(1), is limited
to intermediaries between the packaging manufacturer and the hazmat
offeror who fills the packaging with hazardous material. Likewise, ACA
agrees that the requirements of Sec. 178.2(c) apply to packaging
manufacturers and those who perform functions described in Part 178;
not subsequent transporters of previously filled packages.
Another commenter, AHS, notes that the closure requirements were
originally intended to identify those tasks of a packaging manufacturer
that had not been completed by that packaging manufacturer. Therefore,
the filler would be aware that certain actions were still required to
be completed to produce, what at the time, was DOT specification
packaging (e.g. assembling and closing a knocked down fiberboard box).
Furthermore, it is AHS's understanding that the primary intent of the
requirement to ship an emptied package containing residue as if it were
still full (See Sec. 173.29) was to maintain the original hazard
communications for the residues and not for the purposes of closure
requirement notification of the packaging. AHS notes that the terms
``package'' and ``packaging'' are often incorrectly used
interchangeably and suggests that this was the case in the letter of
interpretation Reference No.: 06-0123 that precipitated the proposed
amendment.
In addition to the concerns about the initial intent of Sec.
178.2(c), all commenters on this amendment express concern regarding
the vast impact such an amendment would have on the regulated
community, specifically re-conditioners, recyclers and re-users of
packagings. It was consistently noted that this amendment would
fundamentally change the way hazardous materials packages are
transported and have implications throughout the transportation chain.
Many commenters had concerns about the economic impact and an
increase in information collection burden. While PHMSA originally
perceived this amendment as a simple clarification of an existing
requirement, many commenters noted that the revision would provide new
requirements and thus impose a new economic and paperwork burden. DGAC
notes that the cost of such a change would be significant and the
economic evaluation provided in the April 26, 2012 NPRM fails to
address the associated costs. Furthermore, DGAC notes this change would
require information collection as the scope of those subject to the
closure notification requirements would expand. This information
collection was not addressed in the April 26, 2012 NPRM. ACA states
this proposed requirement will add significant costs and complexity to
compliance efforts for containers that are sent for reconditioning and
reuse. AHS asks that full consideration be given to the economic and
paperwork impact of requiring every shipper and re-shipper of a filled
package to provide and retain closure instructions. NACD notes that the
operational requirements could have substantial economic impacts on
chemical distributors and customers and could:

``[E]asily result in tens of thousands of dollars of additional
costs for a distributor, increasing with the number of shipments.
Costs would be substantial for all distributors and would result
primarily from mailing closure instructions to hundreds of customers
and answering numerous calls for technical assistance from many of
these customers.''

RIPA reiterates the above comments and notes that ``[r]equiring
that reconditioners be provided notifications is a costly paperwork
burden with no safety benefit of any kind.'' In addition to the cost of
the proposed amendment, many commenters were concerned that no safety
issue was identified to necessitate such a change. ACA notes

[[Page 15316]]

that while PHMSA indicates that this requirement will increase
compliance, there is no indication in the NPRM that there are incidents
involving container residues that stemmed from insufficient closure or
any discussion of the risk posed by residue containers. ACA concludes
that there does not appear to be a significant safety risk involved in
the movement of these types of shipments.
AHS notes the difficulty of implementing such a requirement. It
provides an example demonstrating this difficulty by noting that for UN
4G fiberboard cartons, small UN1A2 drums, and crimped lid or friction
lid pails, there is no realistic method to re-close the outer
receptacle, or to provide inner liners, cushioning material, etc., for
a package that usually is being discarded or recycled. AHS requests
PHMSA provide incident data to ascertain whether any record of safety
problems involves emptied non-bulk packaging with closures in place but
not secured in accordance with the original packaging manufacturer's
instructions. NACD reiterates the above comments and states ``PHMSA
does not provide evidence that leaking empty containers have been a
safety problem.''
Based on the considerable feedback and a further consideration of
the closure requirements in Sec. 178.2(c), PHMSA is not adopting the
amendment to the closure notification requirements as proposed in the
April 26, 2012 NPRM or any amendments to the closure notification
requirements.
After further review, and as noted by numerous commenters, PHMSA
rationalizes that it is apparent that the applicability of Sec.
178.2(c) is specific to ``packagings'' and not ``packages.'' As defined
in Sec. 171.8, a packaging ``means a receptacle and any other
components or materials necessary for the receptacle to perform its
containment function in conformance with the minimum packing
requirements of this subchapter'' while a package ``means a packaging
plus its contents.'' Furthermore, as many commenters note, PHMSA agrees
that the term ``subsequent distributors'' as used in Sec. 178.2(c)(1)
is intended to address intermediaries between the manufacturer and the
hazmat offeror who fills the packaging with hazardous material. It is
apparent that the requirement to notify each person to whom the
``packaging'' is transferred is the responsibility of each subsequent
``packaging'' distributor, not each offeror of a ``package.''
Furthermore, as is evident from PHMSA's review of the information
collection burden associated with the closure notification
requirements, the population to which this regulation is intended to
apply is restricted to packaging manufacturers and packaging
distributors and not to the entirety of shippers and offerors of
hazardous materials packages.
Based on the comments received, PHMSA will not be adopting any
changes in the closure notification requirements specified in Sec.
178.2(c). Subsequently, closure notification requirements would not be
required to accompany a package containing a residue of a hazardous
material that is transported for the purposes of re-conditioning,
recycling or re-use. It was not PHMSA's intent to propose an amendment
that would impose a significant additional economic and information
collection burden on the regulated community. Furthermore, PHMSA did
not intend to expand the applicability of Sec. 178.2(c) beyond
``packagings'' to include ``packages.'' Rather, PHMSA's intention was
to address an issue previously identified in a letter of
interpretation. However, based on further review and the rationale
presented by commenters, we are rescinding the letter of interpretation
Reference No.: 06-0123 as the letter contains incorrect information. In
addition, PHMSA is also rescinding letters of interpretation Reference
Numbers 05-0015 and 05-0265 as they also contain misinformation.
Finally, many commenters suggest a thorough economic and safety
analysis be conducted before amendments similar to those proposed in
Sec. 178.2(c) for closure notification requirements are adopted. At
this time, PHMSA does not foresee the need for such analysis as no
amendments are being adopted.

III. Regulatory Analyses and Notices

A. Statutory/Legal Authority for This Rulemaking

This final rule is published under authority of Federal hazardous
materials transportation law (Federal hazmat law; 49 U.S.C. 5101 et
seq.). Section 5103(b) of Federal hazmat law authorizes the Secretary
of Transportation to prescribe regulations for the safe transportation,
including security, of hazardous materials in intrastate, interstate,
and foreign commerce. This final rule makes miscellaneous amendments to
the HMR. In addition, this final rule corrects errors in the hazardous
materials table and corresponding special provisions, clarifies the
requirements for lab packing temperature controlled materials and
clarifies various cargo tank provisions and revises the training
requirements to require that a hazmat employer must make hazmat
employee training records available upon request to an authorized
officials. These amendments clarify regulatory requirements and, where
appropriate, decrease the regulatory burden without compromising the
safe transportation of hazardous materials in commerce.

B. Executive Order 12866, Executive Order 13563 and DOT Regulatory
Policies and Procedures

This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and was not reviewed by the
Office of Management and Budget (OMB). The final rule is not considered
a significant rule under the Regulatory Policies and Procedures order
issued by the Department of Transportation [44 FR 11034].
In this rulemaking, we amend miscellaneous provisions in the HMR to
clarify the provisions and to relax overly burdensome requirements.
PHMSA anticipates the amendments contained in this rule will have
economic benefits to the regulated community. This final rule is
designed to increase the clarity of the HMR, thereby increasing
voluntary compliance while reducing compliance costs.
Executive Order 13563 is supplemental to and reaffirms the
principles, structures, and definitions governing regulatory review
that were established in Executive Order 12866 Regulatory Planning and
Review of September 30, 1993. In addition, Executive Order 13563
specifically requires agencies to: (1) Involve the public in the
regulatory process; (2) promote simplification and harmonization
through interagency coordination; (3) identify and consider regulatory
approaches that reduce burden and maintain flexibility; (4) ensure the
objectivity of any scientific or technological information used to
support regulatory action; and (5) consider how to best promote
retrospective analysis to modify, streamline, expand, or repeal
existing rules that are outmoded, ineffective, insufficient, or
excessively burdensome.
In this final rule, PHMSA has involved the public in the regulatory
process in a variety of ways. Specifically, in this rulemaking PHMSA is
addressing issues and errors that were identified and tagged for future
rulemaking consideration in letters of interpretation issued to the
regulated community and through other correspondence with PHMSA
stakeholders. In addition, PHMSA has responded to the TSI's request to
incorporate a guidance document

[[Page 15317]]

designed to assist the sulfur industry in ensuring the safe transport
of molten sulfur (P-1581). PHMSA asked for public comments based on the
proposals in the NPRM and upon receipt of public comment, PHMSA has
addressed all substantive comments in this rulemaking action.
The amendments in the final rule promote simplification and
harmonization through interagency coordination. Specifically, in this
final rule, PHMSA is simplifying the lab pack requirements, the
hazardous materials table and special provisions and the requirements
for cargo tank transportation. These revisions are expected to produce
a safety benefit derived from the increased clarity and reduced
ambiguity in the special provisions to the Sec. 172.101 HMT, and the
lab packaging and cargo tank requirements of the HMR. There are minimal
additional costs. The clarity will result in net benefits.
This final rule also promotes harmonization with international
standards, such as the IMDG Code, Canada's TDG requirements and the
ICAO TI with regard to the handling of ``Lead compounds, soluble
n.o.s.'' via vessel, rail shipments of residue between the United
States and Canada and alcoholic beverages via aircraft.
These revisions to the Sec. 172.101 HMT will eliminate errors in
the Sec. 172.101 HMT, reduce ambiguity, harmonize the HMR with
international regulations, and improve clarity. Many of these revisions
were brought to PHMSA's attention through letters of interpretation
requested from the regulated community. Although these revisions are
minor, they are expected to produce a safety benefit derived from the
increased clarity and accuracy of the text in the Sec. 172.101 HMT.
This final rule adopts amendments that reduce the regulatory burden
on the regulated community, allows for flexibility in achieving
compliance and maintains an appropriate level of safety. This final
rule permits flexibility in achieving compliance when transporting
cargo tanks while maintaining an appropriate level of safety. This
final rule also incorporates a special permit DOT SP-13556 that has a
strong record of safety. Incorporating this permit into the HMR will
provide wider access to the benefits of the provisions granted in this
special permit, therefore, fostering greater regulatory flexibility
without compromising transportation safety.
A majority of the amendments adopted in this rulemaking are simple
clarifications and did not require significant scientific or
technological information. However, when necessary, PHMSA used
scientific or technological information to support its regulatory
action. Specifically, such data was considered when structuring
alternatives on how to best deal with issues regarding the safe
transport of cargo tanks and the transport of alcoholic beverages with
greater than 70% alcohol by volume via cargo aircraft. This information
was used in the evaluation of alternative proposals and ultimately this
information determined how best to promote retrospective analysis to
modify and streamline existing requirements that are outmoded,
ineffective, insufficient, or excessively burdensome.

C. Executive Order 13132

This final rule was analyzed in accordance with the principles and
criteria contained in Executive Order 13132 (``Federalism''). This
final rule preempts state, local and Indian tribe requirements but does
not adopt 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 that is
represented, marked, certified, or sold as qualified for use in the
transport of hazardous materials.
This final rule concerns the classification, packaging, and
handling of hazardous materials, among other covered subjects and as
adopted preempts 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 must determine and publish in the Federal
Register the effective date of Federal preemption. That effective date
may not be earlier than the 90th day following the date of issuance of
the final rule and not later than two years after the date of issuance.
PHMSA proposes the effective date of federal preemption be 90 days from
publication of this final rule in this matter in the Federal Register.

D. Executive Order 13175

This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13175 (``Consultation and
Coordination with Indian Tribal Governments''). Because this final rule
does not have tribal implications and does not impose substantial
direct compliance costs on Indian tribal governments, the funding and
consultation requirements of Executive Order 13175 do not apply, and a
tribal summary impact statement is not required.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to review regulations to assess their impact on small entities
unless the agency determines the rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule amends miscellaneous provisions in the HMR to clarify
provisions based on PHMSA's initiatives and correspondence with the
regulated community. While maintaining safety, it relaxes certain
requirements that are overly burdensome. The changes are generally
intended to provide relief to shippers, carriers, and packaging
manufacturers, including small entities.
Consideration of alternative proposals for small businesses. The
Regulatory Flexibility Act directs agencies to establish exceptions and
differing compliance standards for small businesses, where it is
possible to do so and still meet the objectives of applicable
regulatory statutes. In the case of hazardous materials transportation,
it is not possible to establish exceptions or differing standards and
still accomplish our safety objectives.
The impact of this final rule is not expected to be significant.
The

[[Page 15318]]

amendments are generally intended to provide relief to shippers,
carriers, and packaging manufactures and testers, including small
entities. This relief will provide marginal positive economic benefits
to shippers, carriers, and packaging manufactures and testers,
including small entities however; these benefits are not at a level
that can be considered economically significant. Therefore, this final
rule will not have a significant economic impact on a substantial
number of small entities.
This final rule has been developed in accordance with Executive
Order 13272 (``Proper Consideration of Small Entities in Agency
Rulemaking'') and DOT's procedures and policies to promote compliance
with the Regulatory Flexibility Act to ensure that potential impacts of
draft rules on small entities are properly considered.

F. Paperwork Reduction Act

This final rule does not impose any new information collection
requirements and in three instances marginally decreases the
information collection burden on the regulated community. Specifically
the following information collections affected by this rulemaking are:
Office of Management and Budget (OMB) Control Number 2137-
0051; Rulemaking and Special Permit Petitions: A slight reduction in
information collection burden is anticipated due to the incorporation
of a DOT SP-13556 into Sec. 173.134. This permit will allow
individuals more flexibility when transporting sharps and decrease the
need for special permits applications when transporting sharps as
regulated medical wastes.
OMB Control Number 2137-0034; Hazardous Materials Shipping
Papers and Emergency Response Information: A negligible reduction in
information collection burden due to relaxation of the shipping paper
description requirements for residues specified in Sec. 172.203.
Specifically, this will allow individuals more flexibility on the
shipping paper descriptions when shipping waste internationally, and
will correct a regulatory inconsistency between the HMR and Canadian
Transportation of Dangerous Goods (TDG) regulations, fostering
international transport of residues.
OMB Control Number 2137-0557; Approvals for Hazardous
Materials: A slight reduction in information collection burden is
anticipated due to relaxation of approval submittal requirements
specified in Sec. 105.40. Specifically, this relaxation will permit
individuals wishing to apply with PHMSA to be an approved designated
agent to submit their applications either by standard mail or
electronic mail. Currently, the HMR only permits submission through
standard mail. This change will result in a decrease in duplicate hard
copies submitted to PHMSA as well as a decrease in the processing time
for such applications.
Although no new training recordkeeping requirements are
adopted in this final rule, a minimal increase in information
collection burden may be realized due to increased awareness of the
training requirements resulting from the modifications specified in
Sec. 172.704. However; in accordance with 49 U.S.C. 5107(g), training
records are exempted from the requirements of the paperwork reduction
act.

G. Regulation Identifier Number (RIN)

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

H. Unfunded Mandates Reform Act

This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$141,300,000 or more to either state, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.

I. Environmental Assessment

The National Environmental Policy Act, 42 U.S.C. 4321-4375,
requires federal agencies to analyze proposed actions to determine
whether the action will have a significant impact on the human
environment. The Council on Environmental Quality (CEQ) regulations
require federal agencies to conduct an environmental review
considering: (1) The need for the proposed action; (2) alternatives to
the proposed action; (3) probable environmental impacts of the proposed
action and alternatives; and (4) the agencies and persons consulted
during the consideration process. PHMSA is adopting miscellaneous
amendments to the HMR based on PHMSA's own initiatives including a
review of the HMR, previous letters of interpretation and special
permits we issued. These amendments are intended to update, clarify, or
provide relief from certain existing regulatory requirements to promote
safer transportation practices; eliminate unnecessary regulatory
requirements; facilitate international commerce; and make these
requirements easier to understand.
Description of Action
Docket No. PHMSA-2011-0138 (HM-218G), Final Rule
Transportation of hazardous materials in commerce is subject to
requirements in the HMR, issued under authority of Federal hazardous
materials transportation law, codified at 49 U.S.C. 5101 et seq. To
facilitate the safe and efficient transportation of hazardous materials
in international commerce, the HMR provide that both domestic and
international shipments of hazardous materials may be offered for
transportation and transported under provisions of the international
regulations.
Adopted Amendments to the HMR
In this final rule, PHMSA is adopting amendments to:
Permit designated agents for non-residents to submit
designation requests by electronic mail in addition to traditional
mail.
Add the Sulphur Institute's (TSI) ``Molten Sulphur Rail
Tank Car Guidance'' document to the list of informational materials not
requiring incorporation by reference in Sec. 171.7 (Responds to
petition for rulemaking P-1581).
Revise the Sec. 172.101 Hazardous Materials Table (HMT)
to correct an error in the transportation requirements for entries
listed under the proper shipping name, ``Hydrazine Dicarbonic Acid
Diazide.''
Revise the Sec. 172.101 HMT to remove the entry for
``Zinc ethyl, see Diethylzinc'' that was superseded by proper shipping
names adopted in a previous rulemaking.
Add the entries for ``Paint related material, flammable,
corrosive (including paint thinning or reducing compound)'' UN3469, PG
II, and PG III to the Sec. 172.101 HMT that were inadvertently
omitted.
Remove references to special provisions B72 and B74 in
Sec. 172.102.
Revise special provision 138 in Sec. 172.102 to clarify
the lead solubility calculation used for classification of material as
a Marine Pollutant.
Revise the shipping paper requirements in Sec. 172.203(e)
to permit the phrase ``Residue last contained'' to be placed before or
after the basic shipping description sequence, or for rail shipments,
directly preceding the proper shipping name in the basic shipping
description sequence.

[[Page 15319]]

Update the training recordkeeping requirements in Sec.
172.704 to specify that a hazardous materials (hazmat) employer must
make hazmat employee training records available upon request, at a
reasonable time and location, to an authorized official of the
Department of Transportation or of an entity explicitly granted
authority to enforce the HMR.
Clarify that the materials of trade exception in Sec.
173.6 may be used when transporting Division 2.1 and 2.2 gases in Dewar
flasks.
Clarify the lab pack provisions in Sec. 173.12 pertaining
to temperature-controlled materials contained in a lab pack.
Clarify the exceptions for external emergency self-closing
valves on CTMVs in Sec. 173.33(g) to specify that external emergency
self-closing valves on MC 338 cargo tanks containing cryogenic liquids
may remain open during transportation.
Correct an inadvertent deletion of the Sec. 173.62
packaging requirements for explosives.
Incorporate special permit DOT SP-13556 into Sec.
173.134, to authorize the transportation by motor vehicle of certain
regulated medical wastes, designated as sharps, in non-DOT
specification containers fitted into wheeled racks.
Revise the requirements for cargo air transport of
alcoholic beverages Sec. 173.150 to harmonize with the ICAO TI.
Clarify the exceptions in Sec. 173.159a for non-spillable
batteries secured to skids or pallets.
Revise Sec. 178.2(c) to correct incorrect regulatory
citations.
Clarify the requirements for the Flame Penetration
Resistance test required for chemical oxygen generators and certain
compressed gases in Appendix E to Part 178.
Clarify the inspection record requirements in Sec.
180.416 for discharge systems of cargo tanks transporting liquefied
compressed gases.
Alternatives Considered
Alternative (1)--No action alternative: Leave the HMR as is; do not
adopt above-described amendments.
The HMR requires various updates and clarifications to correct
certain omissions, and errors. This action also includes a few minor
modifications to existing regulatory requirements. If PHMSA chose the
no-action alternative, the public would not receive the benefit of the
various updates, clarifications, and modifications to the HMR, which
will provide information, enhance safety, and provide relief certain
unnecessary requirements. Therefore, PHMSA rejected the do-nothing
alternative.
Alternative (2)--Preferred Alternative: Go forward with the
proposed amendments to the HMR in the NPRM, as described above.
Environmental Consequences
Hazardous materials are substances that may pose a threat to public
safety or the environment during transportation because of their
physical, chemical, or nuclear properties. The hazardous materials
regulatory system is a risk management system that is prevention
oriented and focused on identifying a safety hazard and reducing the
probability and quantity of a hazardous material release. Hazardous
materials are categorized by hazard analysis and experience into hazard
classes and packing groups. The regulations require each shipper to
classify a material in accordance with these hazard classes and packing
groups. The process of classifying a hazardous material is itself a
form of hazard analysis. Further, the regulations require the shipper
to communicate a material's hazards through use of the hazard class,
packing group, and proper shipping name on the shipping paper and the
use of labels on packages and placards on transport vehicles. Thus, the
shipping paper, labels, and placards communicate the most significant
findings of the shipper's hazard analysis. A hazardous material is
assigned to one of three packing groups based upon its degree of
hazard, from a high hazard, Packing Group I to a low hazard, Packing
Group III material. The quality, damage resistance, and performance
standards of the packaging in each packing group are appropriate for
the hazards of the material transported.
Under the HMR, hazardous materials are transported by aircraft,
vessel, rail, and highway. The potential for environmental damage or
contamination exists when packages of hazardous materials are involved
in accidents or en route incidents resulting from cargo shifts, valve
failures, package failures, loading, unloading, collisions, handling
problems, or deliberate sabotage. The release of hazardous materials
can cause human death or injury, the loss of ecological resources (e.g.
wildlife habitats), and the contamination of air, aquatic environments,
and soil. Contamination of soil can lead to the contamination of ground
water. Compliance with the HMR substantially reduces the possibility of
accidental release of hazardous materials.
When developing potential regulatory requirements, PHMSA evaluates
those requirements to consider the environmental impact of each
amendment. Specifically, PHMSA evaluates the: risk of release and
resulting environmental impact; risk to human safety, including any
risk to first responders; longevity of the packaging; and if the
proposed regulation would be carried out in a defined geographic area,
the resources, especially any sensitive areas, and how they could be
impacted by any proposed regulations.
Of the regulatory changes adopted in this rulemaking, ten have been
determined to be editorial. As such, these amendments have no impact
on: the risk of release and resulting environmental impact; human
safety; longevity of the packaging; and none of these amendments would
be carried out in a defined geographic area. These editorial amendments
are as follows:
Revise the Sec. 172.101 Hazardous Materials Table (HMT)
to correct an error in the transportation requirements for entries
listed under the proper shipping name, ``Hydrazine Dicarbonic Acid
Diazide.''
Revise the Sec. 172.101 HMT to remove the entry for
``Zinc ethyl, see Diethylzinc'' that was superseded by proper shipping
names adopted in a previous rulemaking.
Re-insert the entries for ``Paint related material,
flammable, corrosive (including paint thinning or reducing compound)''
UN3469, PG II, and PG III in the Sec. 172.101 HMT that were
inadvertently omitted.
Remove references to special provisions B72 and B74 in
Sec. 172.102.
Revise special provision 138 in Sec. 172.102 to clarify
the lead solubility calculation used for classification of material as
a Marine Pollutant.
Correct an inadvertent deletion of the Sec. 173.62
packaging requirements for explosives.
Clarify the exceptions in Sec. 173.159a for non-spillable
batteries secured to skids or pallets.
Revise Sec. 178.2(c) to correct erroneous regulatory
citations.
Clarify the requirements for the Flame Penetration
Resistance test specified for chemical oxygen generators and certain
compressed gases in Appendix E to Part 178.
Clarify the inspection record requirements in Sec.
180.416 for discharge systems of cargo tanks transporting liquefied
compressed gases.
The remaining non-editorial amendments are discussed in further
detail and evaluated based on their overall environmental impact as
follows:
The requirement to permit designated agents for non-
residents to

[[Page 15320]]

submit designation requests by electronic mail in addition to
traditional mail does not impact positively or negatively on the risk
of release, risk to human safety, or longevity of the packaging as the
requirements of the special permit are designed to provide an
equivalent level of safety to current regulatory requirements.
Furthermore, this requirement would not be carried out in a defined
geographic area including any sensitive areas.
The adoption of the Sulphur Institute's (TSI) ``Molten
Sulphur Rail Tank Car Guidance'' document to the list of informational
materials not requiring incorporation by reference in Sec. 171.7 makes
this document a reference material only and thus would only have a
minimal impact. Specifically, complying with this document will limit
the obstruction of valuable tank car markings, labels, and stencils as
well as tank car safety appliance features such as ladders, which may
result in a minimal positive impact with regard to the risk of release
and risk to human safety. PHMSA acknowledges that the presence of
minimal amounts of residue on the outside of a rail tank car results in
the emission of small amounts of H2S, SO2, and
SO3. However, the presence of this residue is a longstanding
occurrence related to the shipment of molten sulfur and not related to
or caused by this rulemaking. The adoption or recognition of the
``Molten Sulfphur Rail Tank Car Guidance'' document seeks to decrease
any minimal amount of risk caused by this residue. This guidance
document may also have an impact on tank car cleanliness which may
result in increased longevity of the packaging. In addition, this
guidance document could be carried out throughout the country, and is
not thought to be specific to defined geographic area that includes any
sensitive areas.
The revision of the shipping paper requirements in Sec.
172.203(e) to permit the phrase ``Residue last contained'' to be placed
before or after the basic shipping description sequence, or for rail
shipments, directly preceding the proper shipping name in the basic
shipping description sequence may have a minimal positive environmental
impact. This impact would result from the diminished amount of delayed
shipments between the United States and Canada and thus could diminish
the risk of release, and risk to human safety. PHMSA does not
anticipate that this amendment will affect the longevity of the
packaging.
PHMSA does not anticipate the requirement to update the
training recordkeeping requirements in Sec. 172.704 to specify that a
hazmat employer must make hazmat employee training records available
upon request to an authorized official of the Department of
Transportation or of an entity explicitly granted authority to enforce
the HMR will have any environmental impacts. PHMSA views this amendment
as procedural and thus would have no impact on the risk of release,
risk to human safety, or longevity of the package. Furthermore, this
requirement would not be carried out in a defined geographic area
including any sensitive areas.
The amendment to permit Division 2.1 and 2.2 gases in
Dewar flasks to use the Material of Trade exception specified in Sec.
173.6 does not provide any new regulatory requirement; it simply
clarifies PHMSA's interpretation of the applicability of the section.
Therefore, this amendment is a clarification and thus would have no
impact on the risk of release, risk to human safety, or longevity of
the package. Furthermore, this requirement would not be carried out in
a defined geographic area including any sensitive areas.
The amendment that clarifies that temperature-controlled
materials meeting the lab pack requirements in Sec. 173.12 must also
comply with Sec. 173.21(f)(1) may have a small positive environmental
impact. Specifically, this amendment could provide valuable guidance
that could eliminate the inclusion of incompatible materials in a lab
pack and thus, lessen the risk of a release and risk to human safety.
This amendment will have no impact on the longevity of the package.
Furthermore, this requirement would not be carried out in a defined
geographic area including any sensitive areas.
The amendment that clarifies the exceptions for external
emergency self-closing valves on CTMVs in Sec. 173.33(g) to specify
that external emergency self-closing valves on MC 338 cargo tanks
containing cryogenic liquids may remain open during transportation may
have a slight impact on the longevity of the CTMV closing valves.
Limiting the closure of these valves could eliminate some deterioration
and extend the lifespan of these CTMV valves. PHMSA also anticipates a
positive impact on risk to human safety. These valves are designed to
close with a tremendous amount of force to ensure proper closure.
Subsequently, these valves require a large amount of force and effort
to open. As a result, the potential for physical injury to employee
personnel is increased and the ability of the valve system to operate
is potentially compromised as a result of repeated cycling (opening,
closing, and testing). PHMSA does not anticipate any impacts on the
risk of release. Furthermore, this requirement would not be carried out
in a defined geographic area including any sensitive areas.
The incorporation of special permit DOT SP-13556 into
Sec. 173.134, to authorize the transportation by motor vehicle of
certain regulated medical wastes, designated as sharps, in non-DOT
specification containers fitted into wheeled racks should have no
environmental impact. As special permits are designed to provide an
equivalent level of safety to current regulatory requirements PHMSA
anticipates no impact on the risk of release, risk to human safety, or
longevity of packaging. Furthermore, this requirement would not be
carried out in a defined geographic area including any sensitive areas.
The harmonization of the requirements for cargo air
transport of alcoholic beverages specified in Sec. 173.150 with the
ICAO TI may have a minimal environmental impact. The international
harmonization of hazardous materials regulations will discourage
delayed shipments and thus could positively affect the risk of release,
risk to human safety. PHMSA does not anticipate this amendment will
affect the longevity of the packaging. Furthermore, this requirement
would not be carried out in a defined geographic area including any
sensitive areas.
Agencies Consulted
This final rule would affect some PHMSA stakeholders, including
hazardous materials shippers and carriers by highway, rail, vessel, and
aircraft, as well as package manufacturers and testers. PHMSA sought
comment on the environmental assessment contained in the April 26,
2012, NPRM published under Docket PHMSA 2011-0138 [77 FR 24885] (HM-
218G) however, PHMSA did not receive any comments on the environmental
assessment contained in that rulemaking. In addition, PHMSA sought
comment from the following Federal Agencies and modal partners:
Department of Commerce
Department of Homeland Security
Department of Justice
Environmental Protection Agency
Health and Human Services
National Institute of Science and Technology
Occupational Safety and Health Administration
Federal Aviation Administration

[[Page 15321]]

Federal Motor Carrier Safety Administration
Federal Railroad Administration
PHMSA did not receive any adverse comments on the amendments
adopted in this final rule from these Federal Agencies.
Conclusion
PHMSA is adopting miscellaneous amendments to the HMR based on
comments from the regulated community and PHMSA's own rulemaking
initiatives. The amendments are intended to update, clarify, or provide
relief from certain existing regulatory requirements to promote safer
transportation practices; eliminate unnecessary regulatory
requirements; facilitate international commerce; and make these
requirements easier to understand. These clarifications of regulatory
requirements will foster a greater level of compliance with the HMR and
thus, diminished levels of hazardous materials transportation incidents
affecting the health and safety of the environment. Therefore, PHMSA
concludes that no significant environmental impact will result from
this rule.

J. 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 Statement in
the Federal Register published on April 11, 2000 (65 FR 19477), which
may be viewed at https://www.gpo.gov/fdsys/pkg/FR-2000-04-11/pdf/00-8505.pdf.

K. International Trade Analysis

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal
agencies from establishing any standards or engaging in related
activities that create unnecessary obstacles to the foreign commerce of
the United States. Pursuant to these Acts, the establishment of
standards are not considered unnecessary obstacles to the foreign
commerce of the United States, so long as the standards have a
legitimate domestic objective, such as the protection of safety, and do
not operate in a manner that excludes imports that meet this objective.
The statute also requires consideration of international standards and,
where appropriate, that they be the basis for U.S. standards. PHMSA
notes the purpose is to ensure the safety of the American public, and
has assessed the effects of this rule to ensure that it does not
exclude imports that meet this objective. As a result, this final rule
is not considered as creating an unnecessary obstacle to foreign
commerce.

List of Subjects

49 CFR Part 105

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

49 CFR Part 171

Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.

49 CFR Part 172

Education, Hazardous materials transportation, Hazardous waste,
Incorporation by Reference, Labeling, Markings, Packaging and
containers, Reporting and recordkeeping requirements.

49 CFR Part 173

Hazardous materials transportation, Incorporation by Reference,
Packaging and containers, Radioactive materials, Reporting and
recordkeeping requirements, Uranium.

49 CFR Part 177

Hazardous materials transportation, Loading and Unloading,
Segregation and Separation.

49 CFR Part 178

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

49 CFR Part 180

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

In consideration of the foregoing, we are amending 49 CFR Chapter I
as follows:

PART 105--HAZARDOUS MATERIALS PROGRAM PROCEDURES

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

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

0
2. In Sec. 105.40, paragraph (d) is revised to read as follows:

Sec. 105.40 Designated agents for non-residents.

* * * * *
(d) Each designation must be submitted to: Approvals and Permits
Division, Pipeline and Hazardous Materials Safety Administration, Attn:
PHH-30, U.S. Department of Transportation, East Building, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001 or by electronic mail to:
specialpermits@dot.gov or approvals@dot.gov as appropriate.
* * * * *

PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53;
Pub. L. 101-410 section 4 (28 U.S.C. 2461 note); Pub. L. 104-134,
section 31001.

0
4. In Sec. 171.7, in ``Table 1 to 49 CFR 171.7--Materials Not
Incorporated by Reference'', the following entry is added in
alphabetical order to read as follows:

Sec. 171.7 Reference material.

* * * * *

------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------

* * * * * * *
The Sulphur Institute, 1020 19th St. NW., Suite 520,
Washington, DC 20036.
Molten Sulphur Rail Tank Car Guidance document, 172.102
November 2010......................................

* * * * * * *
------------------------------------------------------------------------

[[Page 15322]]

* * * * *

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

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

0
6. In Sec. 172.101, the Hazardous Materials Table is amended by
removing the entries under ``[REMOVE]'', by adding the entries under
``[ADD]'' in alphabetical order, and revising entries under
``[REVISE]'' to read as follows:

Sec. 172.101 Purpose and use of hazardous materials table.

* * * * *

[[Page 15323]]

Sec. 172.101--Hazardous Materials Table

Hazardous (8) Packaging (Sec. 173.***) (9) Quantity limitations (10) Vessel stowage
materials --------------------------------------------------------------------------------------------------------
Symbols descriptions and Hazard class or Identification PG Label codes Special provisions
proper shipping division Nos. (Sec. 172.102) Exceptions Non-bulk Bulk Passenger Cargo aircraft Location Other
names aircraft/rail only
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
(1) (2)............... (3)............ (4).............. (5)............ (6)................ (7)............... (8A)........... (8B) (8C).......... (9A).......... (9B).......... (10A) (10B)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[REMOVE].

* * * * * * *
Hydrazine Forbidden.
dicarbonic acid
diazide.
.................. ............... II............... 8, 6.1......... B16, B53, IB2, None.............. 202............ 243 Forbidden..... 30 L.......... D............. 40 II.
T7, TP2, TP13......
.................. ............... III.............. 8, 6.1......... B16, B53, IB3, T4, 154............... 203............ 241 5 L........... 60 L.......... D............. 40 III.
TP1.

* * * * * * *
Zinc ethyl, see
Diethylzinc.

* * * * * * *
[ADD].

* * * * * * *
Hydrazine Forbidden.
dicarbonic acid
diazide.

* * * * * * *
Paint related 3.............. UN3469........... II............. 3, 8............... IB2, T7, TP2, TP8, 150............ 202 243........... 1 L........... 5 L........... B 40.
material, TP28.
flammable,
corrosive
(including paint
thinning or
reducing
compound).
.................. ............... ................. III............ 3, 8............... IB3, T4, TP1, TP29 150............ 203 242........... 5 L........... 60 L.......... A 40.

* * * * * * *
[REVISE].

* * * * * * *
tert-Butyl 6.1............ UN2484........... I.............. 6.1, 3............. 1, B9, B14, B30, None........... 226 244........... Forbidden..... Forbidden..... D 40.
isocyanate. T20, TP2, TP13,
TP38, TP44.

* * * * * * *
D............ Ethyl 6.1............ NA2927........... I.............. 6.1, 8............. 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... D 40.
phosphonothioic T20, TP4, TP12,
dichloride, TP13, TP38, TP45.
anhydrous.
D............ Ethyl phosphonous 6.1............ NA2845........... I.............. 6.1, 4.2........... 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... D 18.
dichloride, T20, TP4, TP12,
anhydrous TP13, TP38, TP45.
pyrophoric liquid.
D............ Ethyl 6.1............ NA2927........... I.............. 6.1, 8............. 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... D 40.
phosphorodichlori T20, TP4, TP12,
date. TP13, TP38, TP45.

[[Page 15324]]

* * * * * * *
D............ Methyl phosphonous 6.1............ NA2845........... I.............. 6.1, 4.2........... 2, B9, B14, B16, None........... 227 244........... Forbidden..... Forbidden..... D 18.
dichloride, B32, T20, TP4,
pyrophoric liquid. TP12, TP13, TP38,
TP45.

* * * * * * *
D............ Sulfur, molten.... 9.............. NA2448........... III............ 9.................. 30,B13, IB3, R1, None........... 213 247........... Forbidden..... Forbidden..... C 61.
T1, TP3.
I............ Sulfur, molten.... 4.1............ UN2448........... III............ 4.1................ 30, B13, IB1, R1, None........... 213 247........... Forbidden..... Forbidden..... C 74.
T1, TP3.

* * * * * * *
+............ Sulfuric acid, 8.............. UN1831........... I.............. 8, 6.1............. 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... C 14, 40.
fuming with 30 B77, B84, N34,
percent or more T20, TP2, TP12,
free sulfur TP13.
trioxide.

* * * * * * *
G............ Toxic by 6.1............ UN3488........... I.............. 6.1, 3, 8.......... 1, B9, B14, B30, None........... 226 244........... Forbidden..... Forbidden..... D 40, 125.
inhalation T22, TP2, TP13,
liquid, TP27, TP38, TP44.
flammable,
corrosive, n.o.s.
with an LC50
lower than or
equal to 200 ml/
m3 and saturated
vapor
concentration
greater than or
equal to 500 LC50.
G............ Toxic by 6.1............ UN3489........... I.............. 6.1, 3, 8.......... 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... D 40, 125.
inhalation T20, TP2, TP13,
liquid, TP27, TP38, TP45.
flammable,
corrosive, n.o.s.
with an LC50
lower than or
equal to 1000 ml/
m3 and saturated
vapor
concentration
greater than or
equal to 10 LC50.

* * * * * * *
G............ Toxic by 6.1............ UN3490........... I.............. 6.1, 4.3, 3........ 1, B9, B14, B30, None........... 226 244........... Forbidden..... Forbidden..... D 21, 28, 40,
inhalation T22, TP2, TP13, 49.
liquid, water- TP27, TP38, TP44.
reactive,
flammable, n.o.s.
with an LC50
lower than or
equal to 200 ml/
m3 and saturated
vapor
concentration
greater than or
equal to 500 LC50.

[[Page 15325]]

G............ Toxic by 6.1............ UN3491........... I.............. 6.1, 4.3, 3........ 2, B9, B14, B32, None........... 227 244........... Forbidden..... Forbidden..... D 21, 28, 40,
inhalation T20, TP2, TP13, 49.
liquid, water- TP27, TP38, TP45.
reactive,
flammable, n.o.s.
with an LC50
lower or equal to
1000 ml/m3 and
saturated vapor
concentration
greater than or
equal to 10 LC50.

* * * * * * *
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 15326]]

* * * * *

0
7. In Sec. 172.102, special provision 138 is revised in paragraph
(c)(1) and paragraph (c)(6) is revised to read as follows:

Sec. 172.102 Special provisions.

* * * * *
(c) * * *
(1) * * *
138 This entry applies to lead compounds which, when mixed in a
ratio of 1:1,000 with 0.07 M (Molar concentration) hydrochloric acid
and stirred for one hour at a temperature of 23[deg]C
2[deg]C, exhibit a solubility of more than 5%. Lead compounds which,
when mixed in a ratio of 1:1,000 with 0.07 M (Molar concentration)
hydrochloric acid and stirred for one hour at a temperature of 23[deg]C
2[deg]C, exhibit a solubility of 5% or less are not
subject to the requirements of this subchapter unless they meet
criteria as another hazard class or division. Lead compounds that have
a solubility of 5% or less in accordance with this special provision
are not subject to the requirements of this subchapter that pertain to
Marine Pollutants.
* * * * *
(6) ``R'' codes. These provisions apply only to transportation by
rail.
R1 A person who offers for transportation tank cars containing
sulfur, molten or residue of sulfur, molten may reference the Sulfur
Institute's, ``Molten Sulphur Rail Tank Car Guidance document'' (see
Sec. 171.7 of this subchapter) to identify tank cars that may pose a
risk in transportation due to the accumulation of formed, solid sulfur
on the outside of the tank.
* * * * *

0
8. In Sec. 172.203, paragraphs (e)(1) and (2) are revised to read as
follows:

Sec. 172.203 Additional description requirements.

* * * * *
(e) * * *
(1) The description on the shipping paper for a packaging
containing the residue of a hazardous material may include the words
``RESIDUE: Last Contained * * *'' immediately before or after the basic
shipping description on the shipping paper.
(2) The description on the shipping paper for a tank car containing
the residue of a hazardous material must include the phrase, ``RESIDUE:
LAST CONTAINED * * *'' immediately before or after the basic shipping
description or immediately preceding the proper shipping name of the
material on the shipping paper.
* * * * *
0
9. In Sec. 172.704, paragraph (d) introductory text is revised to read
as follows:

Sec. 172.704 Training requirements.

* * * * *
(d) Recordkeeping. Each hazmat employer must create and retain a
record of current training of each hazmat employee, inclusive of the
preceding three years, in accordance with this section for as long as
that employee is employed by that employer as a hazmat employee and for
90 days thereafter. A hazmat employer must make a hazmat employee's
record of current training available upon request, at a reasonable time
and location, to an authorized official of the Department of
Transportation or of an entity explicitly granted authority to enforce
the HMR. The record must include:
* * * * *

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

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

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.

0
11. In Sec. 173.6, paragraph (a)(2) is revised to read as follows:

Sec. 173.6 Materials of trade exceptions.

* * * * *
(a) * * *
(2) A Division 2.1 or 2.2 material in a cylinder with a gross
weight not over 100 kg (220 pounds), in a Dewar flask meeting the
requirements of Sec. 173.320, or a permanently mounted tank
manufactured to the ASME Code of not more than 70 gallon water capacity
for a non-liquefied Division 2.2 material with no subsidiary hazard.
* * * * *

0
12. In Sec. 173.12, paragraph (b)(3) is revised to read as follows:

Sec. 173.12 Exceptions for shipment of waste materials.

* * * * *
(b) * * *
(3) Prohibited materials. The following waste materials may not be
packaged or described under the provisions of this paragraph (b): a
material poisonous-by-inhalation, a temperature controlled material
unless it complies with Sec. 173.21(f)(1), a Division 6.1, Packing
Group I material, chloric acid, and oleum (fuming sulfuric acid).
* * * * *

0
13. In Sec. 173.33, paragraph (g) is revised to read as follows:

Sec. 173.33 Hazardous materials in cargo tank motor vehicles.

* * * * *
(g) Remote control of self-closing stop valves--MC 330, MC 331 and
MC 338 cargo tanks. Each liquid or vapor discharge opening in an MC 330
or MC 331 cargo tank and each liquid filling and liquid discharge line
in an MC 338 cargo tank must be provided with a remotely controlled
internal self-closing stop valve except when an MC 330 or MC 331 cargo
tank is marked and used exclusively to transport carbon dioxide; an MC
338 is used to transport argon, carbon dioxide, helium, krypton, neon,
nitrogen, or xenon; or an MC 338 utilizes an external self-closing stop
valve to comply with the requirements in Sec. 178.338-11(b). However,
if the cargo tank motor vehicle was certified before January 1, 1995,
this requirement is applicable only when an MC 330 or MC 331 cargo tank
is used to transport a flammable liquid, flammable gas, hydrogen
chloride (refrigerated liquid), or anhydrous ammonia; or when an MC 338
cargo tank is used to transport flammable ladings.
* * * * *

0
14. In Sec. 173.62, in paragraph (c)(5), in the Table of Packing
Methods, Packing Instruction 130 is revised to read as follows:

Sec. 173.62 Specific packaging requirements for explosives.

* * * * *
(c) * * *
(5) * * *

Table of Packing Methods
----------------------------------------------------------------------------------------------------------------
Intermediate
Packaging instruction Inner packagings packagings Outer packaging
----------------------------------------------------------------------------------------------------------------

* * * * * * *
130................................ Not necessary........ Not necessary........ Boxes.

[[Page 15327]]

Particular Packaging Requirements: Steel (4A).
1. The following applies to UN Aluminum (4B).
0006, 0009, 0010, 0015, 0016, Wood natural, ordinary (4C1).
0018, 0019, 0034, 0035, 0038, Wood natural, sift-proof
0039, 0048, 0056, 0137, 0138, walls (4C2).
0168, 0169, 0171, 0181, 0182, Plywood (4D).
0183, 0186, 0221, 0238, 0243, Reconstituted wood (4F).
0244, 0245, 0246, 0254, 0280, Fiberboard (4G).
0281, 0286, 0287, 0297, 0299, Plastics, expanded (4H1).
0300, 0301, 0303, 0321, 0328, Plastics, solid (4H2).
0329, 0344, 0345, 0346, 0347, Drums.
0362, 0363, 0370, 0412, 0424,
0425, 0434, 0435, 0436, 0437,
0438, 0451, 0459 and 0488.
Large and robust explosives Steel, removable head
articles, normally intended for (1A2).
military use, without their means Aluminum, removable head
of initiation or with their means (1B2).
of initiation containing at least Plywood (1D).
two effective protective features, Fiber (1G).
may be carried unpackaged. When Plastics, removable head
such articles have propelling (1H2).
charges or are self-propelled, Large Packagings.
their ignition systems must be Steel (50A).
protected against stimuli Aluminum (50B).
encountered during normal Metal other than steel or
conditions of transport. A aluminum (50N).
negative result in Test Series 4 Rigid plastics (50H).
on an unpackaged article indicates Natural wood (50C).
that the article can be considered Plywood (50D).
for transport unpackaged. Such Reconstituted wood (50F).
unpackaged articles may be fixed Rigid fiberboard (50G).
to cradles or contained in crates
or other suitable handling devices.
2. Subject to approval by the
Associate Administrator, large
explosive articles, as part of
their operational safety and
suitability tests, subjected to
testing that meets the intentions
of Test Series 4 of the UN Manual
of Tests and Criteria with
successful test results, may be
offered for transportation in
accordance with the requirements
of this subchapter.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

0
15. In Sec. 173.134, paragraph (c)(2) is revised to read as follows:

Sec. 173.134 Class 6, Division 6.2--Definitions and exceptions.

* * * * *
(c) * * *
(2) The following materials may be offered for transportation and
transported as a regulated medical waste when packaged in a rigid non-
bulk packaging conforming to the general packaging requirements of
Sec. Sec. 173.24 and 173.24a and packaging requirements specified in
29 CFR 1910.1030 and transported by a private or contract carrier in a
vehicle used exclusively to transport regulated medical waste:
(i) Waste stock or culture of a Category B infectious substance;
(ii) Plant and animal waste regulated by the Animal and Plant
Health Inspection Service (APHIS);
(iii) Waste pharmaceutical materials;
(iv) Laboratory and recyclable wastes;
(v) Infectious substances that have been treated to eliminate or
neutralize pathogens;
(vi) Forensic materials being transported for final destruction;
(vii) Rejected or recalled health care products;
(viii) Documents intended for destruction in accordance with the
Health Insurance Portability and Accountability Act of 1996 (HIPAA)
requirements;
(ix) Medical or clinical equipment and laboratory products provided
they are properly packaged and secured against exposure or
contamination; or
(x) Sharps in sharp containers provided the containers are securely
closed to prevent leaks or punctures; do not exceed 18 gallons
capacity; registered under the Medical Device Regulations of FDA; made
of puncture resistant plastic that meets ASTM Standard F2132-01,
Standard Specification for Puncture Resistance of Materials Used in
Containers for Discarded Medical Needles and Other Sharps; and are
securely fitted into wheeled racks that hold them in an upright
position. The wheeled racks must contain full rows of sharps containers
secured in place by a moveable bar; and must be securely held in place
on the motor vehicle by straps or load bars during transportation. No
shelf in any wheeled rack may exceed the manufacturer's recommended
load capacity.
* * * * *
0
16. In Sec. 173.150, paragraph (d) is revised to read as follows:

Sec. 173.150 Exceptions for Class 3 (flammable and combustible
liquids).

* * * * *
(d) Alcoholic beverages. (1) An alcoholic beverage (wine and
distilled spirits as defined in 27 CFR 4.10 and 5.11), when transported
via motor vehicle, vessel, or rail, is not subject to the requirements
of this subchapter if the alcoholic beverage:
(i) Contains 24 percent or less alcohol by volume;
(ii) Is contained in an inner packaging of 5 L (1.3 gallons) or
less; or
(iii) Is a Packing Group III alcoholic beverage contained in a
packaging 250 liters (66 gallons) or less;
(2) An alcoholic beverage (wine and distilled spirits as defined in
27 CFR 4.10 and 5.11), when transported via aircraft, is not subject to
the requirements of this subchapter if the alcoholic beverage:
(i) Contains 24 percent or less alcohol by volume;

[[Page 15328]]

(ii) For transportation aboard a passenger-carrying aircraft,
contains more than 24% but less than 70% alcohol by volume when in
unopened retail packagings not exceeding 5 liters (1.3 gallons) carried
in carry-on or checked baggage, with a total net quantity per person of
5 liters (1.3) gallons (See Sec. 175.10(a)(4) of this subchapter); or
(iii) When carried as cargo, contains more than 24% but less than
70% alcohol by volume in an inner packaging not exceeding 5 L (1.3
gallons).
* * * * *

0
17. In Sec. 173.159a, paragraphs (c) introductory text and (c)(1) are
revised to read as follows:

Sec. 173.159a Exceptions for non-spillable batteries.

* * * * *
(c) Non-spillable batteries are excepted from the packaging
requirements of Sec. 173.159 under the following conditions:
(1) Non-spillable batteries must be securely packed in strong outer
packagings or secured to skids or pallets capable of withstanding the
shocks normally incident to transportation. The batteries must meet the
requirements of Sec. 173.159(a), be loaded or braced so as to prevent
damage and short circuits in transit, and any other material loaded in
the same vehicle must be blocked, braced, or otherwise secured to
prevent contact with or damage to the batteries. A non-spillable
battery which is an integral part of and necessary for the operation of
mechanical or electronic equipment must be securely fastened in the
battery holder on the equipment.
* * * * *

PART 177--CARRIAGE BY PUBLIC HIGHWAY

0
18. The authority citation for part 177 continues to read as follows:

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

0
19. In Sec. 177.834, paragraph (j)(2) is revised to read as follows:

Sec. 177.834 General requirements.

* * * * *
(j) * * *
(2) All valves and other closures in liquid discharge systems are
closed and free of leaks, except external emergency self-closing valves
on MC 338 cargo tanks containing the residue of cryogenic liquids may
remain either open or closed during transit.
* * * * *

PART 178--SPECIFICATIONS FOR PACKAGINGS

0
20. The authority citation for part 178 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

0
21. In Sec. 178.2, paragraph (c)(1) introductory text is revised to
read as follows:

Sec. 178.2 Applicability and responsibility.

* * * * *
(c) Notification. (1) Except as specifically provided in Sec. Sec.
178.337-18, 178.338-19, and 178.345-15 of this part, the manufacturer
or other person certifying compliance with the requirements of this
part, and each subsequent distributor of that packaging must:
* * * * *

0
22. In Appendix E to Part 178, Figure 1 and Figure 2 are added
following the text to read as follows:

Appendix E to Part 178--Flame Penetration Resistance Test

* * * * *

[[Page 15329]]

[GRAPHIC] [TIFF OMITTED] TR11MR13.013

[[Page 15330]]

[GRAPHIC] [TIFF OMITTED] TR11MR13.014

PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS

0
23. The authority citation for part 180 continues to read as follows:

Authority: 49 U.S.C. 5101-5128; 49 CFR 1.53.

0
24. In Sec. 180.416, paragraph (d)(5) is revised to read as follows:

Sec. 180.416 Discharge system inspection and maintenance program for
cargo tanks transporting liquefied compressed gases.

* * * * *
(d) * * *
(5) The operator must note each inspection in a record. That record
must include the inspection date, the name of the person performing the
inspection, the hose assembly identification number, the manufacturer
of the hose assembly, the date the hose was assembled and tested, and
an indication that the delivery hose assembly and piping system passed
or failed the tests and inspections. The operator must retain a copy of
each test and inspection record at its principal place of business or
where the vehicle is housed or maintained until the next test of the
same type is successfully completed.
* * * * *

[[Page 15331]]

Issued in Washington, DC on February 19, 2013, under authority
delegated in 49 CFR part 106.
Cynthia L. Quarterman,
Administrator, Pipeline and Hazardous Materials Safety Administration.
[FR Doc. 2013-04198 Filed 3-8-13; 8:45 am]
BILLING CODE 4910-60-P

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