[Federal Register: January 28, 2008 (Volume 73, Number 18)]
[Rules and Regulations]
[Page 4699-4720]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28ja08-7]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials Safety Administration
49 CFR Parts 171, 172, 173, 175, 177, 178, 180
[Docket No. PHMSA-05-21812 (HM-218D)]
RIN 2137-AE10
Hazardous Materials; Miscellaneous Amendments
AGENCY: Pipeline and Hazardous Materials Safety Administration (PHMSA),
DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: PHMSA is amending the Hazardous Materials Regulations to
update, clarify or provide relief from certain requirements governing
the classification, packaging, or labeling of hazardous materials
transported in commerce. Among other provisions, PHMSA is adopting a
new proper shipping name and identification number for fuel blends
composed of ethanol and gasoline. In addition, PHMSA is updating
references to consensus standards, revising and clarifying certain
hazard communication requirements, and clarifying transportation
requirements applicable to dry ice, detonator assemblies, and
explosives. PHMSA is also expanding exceptions from regulation for
small quantities of hazardous materials.
DATES: Effective date: The effective date of these amendments is
October 1, 2008.
Incorporation by Reference Date: The incorporation by reference of
certain publications listed in these amendments is approved by the
Director of the Federal Register as of October 1, 2008.
Voluntary Compliance: Compliance with the requirements adopted
herein is
[[Page 4700]]
authorized as of January 28, 2008. However, persons voluntarily
complying with these regulations should be aware that appeals may be
received and as a result of PHMSA's evaluation of these appeals, the
amendments adopted in this final rule could be subject to further
revision.
FOR FURTHER INFORMATION CONTACT: Cameron Satterthwaite, Office of
Hazardous Materials Standards, (202) 366-8553, Pipeline and Hazardous
Materials Safety Administration, U.S. Department of Transportation,
1200 New Jersey Avenue, SE., Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule adopts various updates and amendments to the
Hazardous Materials Regulations (HMR; 49 CFR parts 171-180) based on
PHMSA initiatives and petitions for rulemaking submitted in accordance
with 49 CFR 106.95. Most of the amendments, as detailed below, are
intended to provide relief to industry by eliminating, revising,
clarifying, or relaxing regulatory requirements.
This final rule also adds a new entry to the Hazardous Materials
Table (HMT) for ethanol and gasoline blends with more than 10 percent
alcohol (e.g., E85). This new entry--``Ethanol and gasoline mixtures or
Ethanol and motor spirit or Ethanol and petrol mixture, with more than
10% ethanol, 3, UN 3475, II,''--coupled with a revision to the entry--
``Gasohol gasoline mixed with ethyl alcohol, with not more than 20
percent alcohol, 3, NA1203, II''--will enhance the effectiveness of
hazard communication and response by aligning the classification scheme
with emergency response protocols. Because these protocols vary based
on the concentration of ethanol (or ``ethyl alcohol'') in a gasoline
mixture, differentiating in the classification of blends is critical to
effective hazard communication. To minimize regulatory cost and burden,
these requirements will not become effective for two years; however,
voluntary compliance is permitted immediately.
In response to two petitions for rulemaking, we are adopting
expanded small quantity exceptions for Packing Group II and III
materials in Class 3, Division 4.1, Division 4.2, Division 4.3,
Division 5.1, Division 6.1, Class 8, and Class 9. This exception is
expected to yield annual savings of about $1 million, with no adverse
safety impact.
Also in this final rule, we are:
(1) Updating provisions incorporating consensus standards issued by
the Chlorine Institute and the Compressed Gas Association (see
Sec. Sec. 171.7, 173.301, 178.337-9, and 178.337-10).
(2) Adding a definition for ``household wastes'' to clarify the
current exception in the HMR for transportation of such materials (see
Sec. Sec. 171.8, 173.12 and 173.134).
(3) Revising the HMT to harmonize certain entries with
international standards (see Sec. 172.101) by removing, adding, and
revising certain proper shipping names.
(4) Revising certain hazard communication provisions to address
shipping paper requirements for marine pollutants, marking requirements
for limited quantities, proper shipping name markings on packages, and
labeling of intermediate bulk containers (IBCs) (see Sec. Sec.
172.203, 172.315, and 172.406).
(5) Clarifying requirements applicable to the transportation of dry
ice on aircraft, detonator assemblies, and packagings authorized for
the transportation of certain explosives (see Sec. Sec. 173.24,
173.61, 173.62, 173.217, 175.30, and 175.900).
(6) Clarifying that a shipper must use a carrier with a safety
permit to transport hazardous materials for which safety permits are
required as specified under the Federal Motor Carrier Safety
Regulations (see Sec. 173.22).
(7) Clarifying segregation requirements for hazardous materials
transported by motor carrier (see Sec. 177.848).
II. Notice of Proposed Rulemaking
We published a notice of proposed rulemaking (NPRM) under this
docket on September 26, 2006 (71 FR 55757). The comment period for the
NPRM closed on November 24, 2006. PHMSA received comments from the
following individuals, companies, and organizations:
(1) Lawrence Laude (Laude; PHMSA-05-21812-3);
(2) Hydro-Test Products Inc. (Hydro-Test; PHMSA-05-21812-4);
(3) Henry Hsiu (Hsiu; PHMSA-05-21812-5);
(4) Archer Daniels Midland Company (ADM; PHMSA-05-21812-6);
(5) Regulatory Resources Inc. (RRI; PHMSA-05-21812-7);
(6) United Parcel Service (UPS; PHMSA-05-21812-8);
(7) Florida Power and Light Company (FPL; PHMSA-05-21812-9);
(8) Laboratory Corporation of America (LabCorp; PHMSA-05-21812-10);
(9) Krista Duncan (Duncan; PHMSA-05-21812-11);
(10) Petroleum Marketers Association of America (PMAA; PHMSA-05-
21812-12);
(11) Health and Personal Care Logistics Conference, Inc. (H&PCLC;
PHMSA-05-21812-13);
(12) Association of Hazmat Shippers, Inc. (AHS; PHMSA-05-21812-14);
(13) Veolia Environmental Services Technical Solutions L.L.P.C.
(Veolia; PHMSA-05-21812-15);
(14) National Tank Truck Carriers (NTTC; PHMSA-05-21812-16);
(15) Renewable Fuels Association (RFA; PHMSA-05-21812-17);
(16) American Trucking Associations (ATA; PHMSA-05-21812-18);
(17) Petroleum Marketers and Convenience Stores of Iowa (PMCI;
PHMSA-05-21812-19);
(18) Shell Chemical LP (Shell Chemical; PHMSA-05-21812-20); and
(19) BWXT Pantex, LLC (BWXT Pantex; PHMSA-05-21812-21).
Commenters were generally supportive of PHMSA's efforts to update,
clarify, or provide relief from certain regulatory requirements. Many
of the proposals in the NPRM were either fully supported by commenters
or received no comment; these amendments are adopted as proposed. Each
of the proposals, with corresponding comments, is discussed in more
detail below.
III. Section-by-Section Review
A. Gasoline/Ethanol Fuel Blends (Sec. Sec. 171.14, 172.101, 172.102,
172.336)
Alternative fuels have been produced and used on a small scale for
decades, driven by environmental, economic, and energy security
concerns. The most common of these fuels, designated E85, is being used
and transported in increasing volumes in the United States. A blend of
85 percent ethyl alcohol (ethanol) and 15 percent petroleum (gasoline),
E85 poses unique hazards that must be communicated and understood
immediately in the case of a transportation incident. E85 and other
fuel blends with high ethanol concentration are polar/water-miscible
flammable liquids (i.e., they mix with water) and will degrade the
effectiveness of fire-fighting foam that is not alcohol-resistant.
The 2004 Emergency Response Guidebook (ERG2004) instructs emergency
responders to use different fire extinguishing materials based on the
relative concentration of ethanol in a blended fuel. ERG 2004 refers to
Guide 127 (Flammable Liquids Polar/Water-Miscible), which specifies the
use of alcohol resistant foam for response to incidents involving
Alcohols, n.o.s., 3, UN1987, or Denatured alcohol, 3, NA1987. For
incidents involving blends of gasoline and ethanol (typically
[[Page 4701]]
transported under the shipping descriptions ``Flammable liquid, n.o.s.,
(ethanol, gasoline), 3, UN1993'', and ``Gasohol, 3, NA1203''), ERG 2004
refers to Guide 128 (Flammable Liquids Non-Polar/Water-Immiscible).
Guide 128 specifies the use of regular foam but contains the following
warning: ``CAUTION: For mixtures containing a high percentage of an
alcohol or polar solvent, alcohol-resistant foam may be more
effective.''
To help emergency responders utilize the most effective emergency
response procedures for incidents involving fuel blends composed of
ethanol (or ``ethyl alcohol'') and gasoline in various concentrations,
we proposed in the NPRM to add a new proper shipping description,
``Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol
and petrol mixture, with more than 10% ethanol, 3, UN3475, II'' to the
HMT. This new HMT entry is consistent with a new shipping description
adopted within the Fifteenth Revised Edition of the United Nations
Recommendations on the Transport of Dangerous Goods (UN
Recommendations).
In addition, we proposed to revise the hazard communication
requirements for compartmented cargo tanks, tank cars, or cargo tanks
that carry materials under this description. Currently, the HMR provide
exceptions from the identification number marking requirements for each
of the different liquid petroleum distillate fuels, including gasohol
containing up to 20% ethanol, transported in a compartmented cargo tank
or tank car if the identification number is displayed for the liquid
petroleum distillate fuel having the lowest flash point. Because of
this exception, emergency responders may not know that fires involving
materials transported in a compartmented cargo tank or tank car should
be handled with alcohol resistant foam. In the NPRM, we proposed to
eliminate this exception for materials described under the proposed new
HMT entry ``Ethanol and gasoline mixture or Ethanol and motor spirit or
Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475,
II''. Thus, as proposed, display of the new UN identification number
for ethanol fuel blends would be required to ensure that emergency
responders understand the unique response measures applicable to such
materials.
To facilitate compliance with the new provisions applicable to
ethanol fuel blends, we proposed a two-year transition period. We asked
commenters specifically to address the proposed transition period,
including whether the transition period would provide sufficient time
for shippers and carriers to incorporate the proposed new shipping name
and UN identification number into shipping papers and package markings
with minimal disruptions to normal business operations. We also asked
if the proposed two-year transition period should be shortened to
ensure that the new shipping name and UN identification number are
utilized as quickly as possible. In addition, we requested comments on
how to balance these two potentially competing goals.
Shell strongly supports the addition of the new proper shipping
description, ``Ethanol and gasoline mixture or Ethanol and motor spirit
or Ethanol and petrol mixture, with more than 10% ethanol, 3, UN3475,
II.'' Shell contends the new description will provide more effective
guidance to emergency responders. Shell also notes that ethanol content
greater than 10 percent in motor fuel blends requires alcohol resistant
foam to minimize blanket break down and vapor breakthrough and re-
ignition.
Five commenters [ADM, PMAA, NTTC, RFA, and PMCI] suggest that the
emergency response requirements cited in the NPRM could be satisfied
through other, more effective or less costly means. PMCI suggests that
adoption of the proposed amendments would increase confusion for
persons attempting to determine the most appropriate shipping
description for gasoline/alcohol fuel blends. NTTC and PMCI suggest
using a uniform gasoline ``UN1203'' marking for both gasoline and
gasoline/alcohol fuel blends, while revising the ERG to specify the use
of alcohol resistant foam for any Class 3, Flammable liquid, rather
than incorporating a new shipping description into the HMR. As an
alternative to this approach, PMCI recommends authorizing the new
shipping description for both gasoline and gasoline/alcohol fuel
blends. Under this alternative, multiple compartmented cargo tanks
transporting both gasoline and gasoline/alcohol fuel blends could
display only one UN identification number rather than multiple UN
identification numbers representing different types of fuel blends.
Several commenters addressed the potential cost impacts of our
proposal to limit the applicability of the current exception that
permits display of the UN identification number for the material having
the lowest flashpoint on multi-compartmented cargo tank motor vehicles
and rail tank cars transporting different liquid petroleum distillate
fuels, including gasoline and gasohol. One commenter [PMAA] asserts
that the proposed rule would impose significant costs for retrofitting
trucks to display multiple UN identification numbers. In response to
our request for specific comments regarding the costs for tank truck
carriers to comply with the proposal, NTTC states that it is unable to
quantify the total number of tank trucks in ethanol service. NTTC
states that its members operate over 10,000 petroleum trailers and that
these trailers are equipped to transport both ethanol and gasoline,
although NTCC cannot confirm the extent to which trailers actually
transport both materials. NTTC further asserts that due to the shortage
of petroleum trailers currently in service, with the introduction of
ultra-low sulfur diesel (ULSD) and other alternative fuels, it is not
practical to ``dedicate'' these trailers exclusively to gasoline or
ethanol service. As a result, NTTC suggests that trailers should be
equipped to handle both. Regarding the identification marking
provisions, NTTC states that the majority of cargo tank motor vehicles,
most of which have multiple compartments, have Hazard Class 3,
FLAMMABLE LIQUID placards with UN1203 ``gasoline'' markings permanently
affixed to them. NTTC estimates costs approaching or equaling $600 per
vehicle to convert the identification numbers and placards on a multi-
compartmented cargo tank.
We believe that the new shipping description for gasoline/ethanol
fuel blends will enhance emergency responders' ability to respond
effectively to incidents involving these materials. A unique shipping
description and UN identification number will enable emergency
responders to quickly identify whether an ethanol fuel blend is present
and minimize confusion as to appropriate response measures. The new
shipping description will be incorporated into the 2008 edition of the
ERG. Therefore, we are adopting the proposed new shipping description
``Ethanol and gasoline mixture or Ethanol and motor spirit mixture or
Ethanol and petrol mixture, with more than 10% ethanol, Class 3,
UN3475, II.''
We disagree with the cost estimates from NTTC. As detailed in a May
1, 2006 letter of clarification (Reference Number 01-0082R; included in
the docket for this rulemaking), the marking exception does not apply
to multi-compartment cargo tanks or rail tank cars containing a fuel
blend with more than 10 percent alcohol and various petroleum
distillate fuels because the alcohol-fuel blend does not meet the
definition for a petroleum distillate fuel. Therefore, a multi-
compartment cargo
[[Page 4702]]
tank or rail tank car containing an alcohol-fuel blend together with
petroleum distillate fuels such as gasoline must be marked with the
identification number applicable to the fuel blend, in addition to the
identification number of the petroleum distillate fuel.
For example, under current requirements, a compartmented cargo tank
containing Gasoline, UN1203; Diesel Fuel, UN1993; Flammable liquid,
n.o.s. (E85), UN1993; and Denatured Alcohol, NA1987, must display
identification numbers ``1203,'' ``1993'' (for the E85), and ``1987.''
After the effective date of this final rule, a compartmented cargo tank
carrying the same materials will be required to display identification
numbers ``1203,'' ``3475'' (for the E85), and ``1987.'' In this
scenario, the only modification is replacement of the identification
number ``1993'' (for the E85) with new identification number ``3475''
for gasoline and alcohol blends containing more than 10% alcohol. The
cost to replace one identification number marking on up to 4 sides of
the vehicle should be significantly less than the costs estimated by
commenters.
Further, to minimize the cost of transitioning to the new UN3475
marking, we are permitting motor carriers to transport E85 in
accordance with the most recent marking requirements in place prior to
the publication of this rule for a period of two years following the
effective date of this final rule. Specifically, we are permitting use
of compartmented cargo tanks, tank cars, and cargo tanks displaying the
current UN identification number marking of the distillate fuel having
the lowest flashpoint in addition to the UN identification number
marking of fuel blends containing more than 10 percent alcohol. We
believe the two-year transition period will substantially reduce the
financial burden on carriers affected by this amendment by allowing
them to retain the current permanent markings on their tanks while
transitioning to the new identification marking for UN3475. We did not
receive any comments opposing the implementation of a two-year
transition period.
Currently, the HMR references special provision 172 under the
entries ``Denatured alcohol, NA1987'' and ``Alcohols, n.o.s., UN1987.''
Special provision 172 allows for the alcohols described under these
entries to contain up to 5 percent petroleum products. The ethanol
blend, E95, is an alcohol solution containing up to 5 percent petroleum
product and may be described as either ``Denatured alcohol, NA1987'' or
``Alcohols, n.o.s., UN1987.'' Therefore, to maintain consistency with
the current requirements and to further offset potential costs, we are
allowing transportation of ethanol and gasoline blends containing no
more than 5 percent petroleum product and described as ``Denatured
alcohol'' or ``Alcohols, n.os.'' to be marked with the identification
number ``1987'' instead of ``3475.'' This exception is consistent with
a comment submitted by RFA noting that many ethanol-fuel blends such as
E95 (containing 95% ethanol and 5% gasoline), are currently shipped in
bulk packagings marked with the UN identification number ``1987,''
corresponding to the proper shipping names ``Denatured alcohol'' and
``Alcohols, n.o.s.'' Although we are not introducing a new shipping
description that corresponds to the identification number ``1987'' as
suggested by RFA, we agree that the proper shipping names ``Alcohols,
n.o.s., UN1987'' and ``Denatured alcohol, NA1987'' are acceptable
alternatives to the new proper shipping name ``Ethanol and gasoline
mixture or Ethanol and motor spirit mixture or Ethanol and petrol
mixture, with more than 10% ethanol, UN3475'' for ethanol and gasoline
mixtures containing not more than 5 percent petroleum products.
In relation to adding the new proper shipping description,
``Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol
and petrol mixture, with more than 10% ethanol, 3, UN3475, II,'' we
proposed in the NPRM to add a new Special Provision 177 in Sec.
172.102 to specify the proper applicability of this new description. We
received no comments opposing this proposed amendment and are,
therefore, adopting it as proposed.
To correspond with the new shipping description in this final rule,
we are also revising the entry for ``Gasohol gasoline mixed with ethyl
alcohol, with not more than 20 percent alcohol, 3, NA1203, II'' to
limit this entry to gasoline blends with not more than 10 percent
alcohol. The purpose of this revision is to make it explicitly clear
that gasoline blends containing more than 10 percent ethanol should be
described under the new shipping description ``Ethanol and gasoline
mixture or Ethanol and motor spirit or Ethanol and petrol mixture, with
more than 10% ethanol, 3, UN3475, II.'' To minimize the financial
impact of this revision we are authorizing continued use of the entry
``Gasohol gasoline mixed with ethyl alcohol, with not more than 20
percent alcohol, 3, NA1203, II'' for two years following the effective
date of this final rule.
In conjunction with the new description for gasoline and ethanol
blends with more than 10 percent ethanol, Shell suggests removing the
entry ``Gasohol, NA1203'' and revising the entry for ``Gasoline,
UN1203'' to add a special provision that specifically communicates to
shippers that the entry ``Gasoline, UN1203'' may be used for gasoline
and ethanol blends with not more than 10 percent ethanol for use in
spark-ignition engines. We agree that Shell's suggestion has merit.
Although we are not removing the entry ``Gasohol, NA1203'' in this
rule, we are revising the entry ``Gasoline, UN1203'' to allow for this
description to be used for gasoline and ethanol blends with not more
than 10 percent ethanol. We are revising the proper shipping name in
column 2 of the HMT to include the allowance in italics following the
name ``Gasoline.'' This will provide shippers with the flexibility to
accurately describe gasoline containing small amounts of ethanol on
their shipping documentation. The ever increasing amount of gasoline
blends containing 10 percent or less ethanol makes this modification
particularly important.
The following chart compares currently authorized proper shipping
names and the proper shipping names authorized under this final rule
for gasoline and gasoline-alcohol blends:
------------------------------------------------------------------------
Proper shipping name
Current proper and ID number
Material shipping name and ID authorized in this
number final rule
------------------------------------------------------------------------
Gasoline, with not more than Gasohol, NA1203..... Gasohol,
10% ethanol. NA1203.
Gasoline UN
1203.
Gasoline, with not more than Gasohol, NA1203..... Gasohol,
20% ethanol. NA1203 (w/ not
more than 10%
ethanol).
Gasoline UN
1203 (w/ not more
than 10% ethanol)
Ethanol
and gasoline
mixture, UN3475
(w/ more than
10% ethanol)
[[Page 4703]]
Gasoline/ethanol blends with Ethanol
more than 10% ethanol.. Flammable and gasoline
liquid, n.o.s., mixture, UN3475.
UN1993. Alcohols,
Gasohol, n.o.s., UN1987
NA1203(w/ not more (Alcohol mixtures
than 20% ethanol). containing up to 5%
gasoline).
Denatured
alcohol, NA1987
(Alcohol
mixtures
containing up to
5% gasoline).
Ethanol
and gasoline
mixture, UN3475
(Alcohol
mixtures
containing up to
5% gasoline).
E85 (85% ethanol, 15% Flammable liquid, Ethanol and gasoline
gasoline). n.o.s., UN1993. mixture, UN3475.
Alcohol mixtures containing
up to 5% gasoline. Alcohols, Alcohols,
n.o.s., UN1987. n.o.s., UN1987.
Denatured Denatured
alcohol, NA1987. alcohol, NA1987.
Ethanol and
gasoline mixture,
UN3475.
E95 (95% ethanol, 5%
gasoline). Alcohols, Alcohols,
n.o.s., UN1987. n.o.s., UN1987.
Denatured Denatured
alcohol, NA1987. alcohol, NA1987.
Ethanol
and gasoline
mixture, UN3475.
------------------------------------------------------------------------
B. Marine Pollutants (Sec. Sec. 171.4 and 172.203)
Marine pollutants are hazardous materials that present an
environmental hazard to rivers, lakes, streams, oceans, and other
marine habitats. Section 171.4 prohibits the transportation of
materials meeting the definition of a marine pollutant except in
accordance with HMR requirements. Marine pollutants transported in non-
bulk packagings are excepted from HMR requirements, unless the
transportation is by vessel.
The International Vessel Operators Hazardous Materials Association,
Inc. (VOHMA) petitioned PHMSA (P-1465) to amend the HMR to clarify that
the exception for non-bulk packages of marine pollutants transported by
motor vehicle, rail car or aircraft does not apply to a marine
pollutant ``intended for transport'' aboard a vessel. VOHMA states that
the current language suggests the consignor who prepares the shipment
and offers it in intermodal transportation has no obligation to declare
the marine pollutant on the shipping paper if the initial transport is
by motor vehicle or rail. As a result, a shipment intended for
transportation by vessel and initially offered into transportation by
highway, rail or air may be improperly described on the vessel shipping
documents by a freight forwarder.
To address VOHMA's concerns, in the NPRM we proposed to clarify in
Sec. 171.4(c) that shipments for which all or part of the
transportation is by vessel must conform to applicable HMR
requirements, even if the initial transportation is by rail or highway.
We also proposed to amend Sec. 172.203(l), which addresses shipping
paper requirements for shipments of marine pollutants, to clarify that
marine pollutants in non-bulk packagings transported all or in part by
vessel must be shown on the shipping paper with the words ``Marine
Pollutant'' appearing in association with the basic description.
One commenter [Hsiu] supports the proposed clarification. Another
commenter [Shell Chemical] expresses concern regarding our proposed
clarification in Sec. 172.203(l). Shell Chemical states that
addressing marine pollutants only is not broad enough to address
VOHMA's petition. Shell Chemical notes that the proposed amendment for
marine pollutants would not address other shipping paper provisions
specific to vessel shipments and the IMDG Code, which, while not
required for U.S. domestic land transportation, are mandatory for
vessel transportation. The commenter notes as an example the
requirement for adding the minimum flashpoint to the shipping paper if
the flashpoint is less than 60.5[deg]C, which is required in Sec.
172.203(i) for vessel transportation. The commenter also states that
shippers who use computer systems may have a problem generating a
single shipping description to meet all the requirements for vessel
shipments where the initial carriage is by highway and subsequent
carriage is by vessel. In this situation, according to Shell Chemical,
the computer system normally generates two shipping documents: one for
the highway portion of the shipment and another, which is sent to the
shipper's port agent, covering the vessel portion and containing the
IMDG Code description. To address these issues, Shell Chemical suggests
revising only Sec. 172.203(i) to require a shipper who offers a
hazardous material by vessel either directly or indirectly to provide
the initial carrier or port agent all information necessary for
shipment in accordance with the IMDG Code and allow for the IMDG Code
information to appear either on the initial carrier's shipping paper or
on a separate document. We disagree. The addition of the language
proposed by Shell Chemical would require all vessel shipments to
conform to the IMDG Code, which is authorized but not required for
domestic shipments. Further, because no provision of the HMR prohibits
inclusion of additional information in a shipping paper, making express
allowance for this in Sec. 172.203(i) would be redundant and
unnecessary. Therefore, we are adopting the amendments as proposed.
C. Incorporation by Reference (Sec. 171.7)
The ``National Technology Transfer and Advancement Act of 1996''
directs agencies to use voluntary consensus standards. According to the
Office of Management and Budget (OMB), Circular A-119, ``Federal
Participation in the Development and Use of Voluntary Consensus
Standards and in Conformity Assessment Activities,'' government
agencies must use voluntary consensus standards wherever practical in
the development of regulations. Agency adoption of industry standards
promotes productivity and efficiency in government and industry,
expands opportunities for international trade, conserves resources,
improves health and safety, and protects the environment.
To these ends, PHMSA actively participates in the development and
updating of consensus standards through representation on more than 20
national consensus standards bodies. PHMSA regularly reviews updated
consensus standards and considers their merit for inclusion in the HMR.
Section 171.7 lists all standards incorporated by reference into the
HMR.
In this case, we evaluated the following updated consensus
standards pertaining to cargo tanks and compressed gas cylinders and
determined that the revised standards provide an enhanced level of
safety
[[Page 4704]]
without imposing significant compliance burdens. These standards have a
well-established and documented safety history; their adoption will
maintain the high safety standard currently achieved under the HMR. We
received no comments opposing our adoption of the consensus standards
and informational materials proposed in the NPRM. Therefore, we are
updating, revising, and adding the following reference materials in
paragraphs (a)(3) and (b) of Sec. 171.7:
In response to a Chlorine Institute petition (P-1444),
under the entry ``Chlorine Institute,'' we are updating ``Type 1\1/2\
JQ 225, Dwg., H51970, Revision D April 5, 1989; or Type 1\1/2\ JQ 225,
Dwg. H50155, Revision F, April 4, 1989'' to Revisions F and H
respectively.
In response to a Chlorine Institute petition (P-1444),
under the entry ``Chlorine Institute,'' we are updating ``Section 3,
Pamphlet 57, Emergency Shut-Off Systems for Bulk Transfer of Chlorine,
3rd Edition, October 1997'' to the 4th Edition, October 2003.
In response to a Chlorine Institute petition (P-1444),
under the entry ``Chlorine Institute,'' we are adding a reference to
``Section 3, Pamphlet 166 Angle Valve Guidelines for Chlorine Bulk
Transportation, 1st Edition, October 2002.''
In response to a Chlorine Institute petition (P-1444) and
a Midland Manufacturing Corporation petition (P-1448), under the entry
``Chlorine Institute,'' we are adding a reference to ``Typical Manway
Arrangement Chlorine Cargo Tank, Dwg. 137-5, November 1996.''
In response to a Chlorine Institute petition (P-1444),
under the entry ``Chlorine Institute,'' we are removing the reference
to ``Standards for Housing and Manway Covers for Steel Cargo Tanks,
Dwgs. 137-1 and 137-2, September 1, 1982.''
In response to a Compressed Gas Association (CGA) petition
(P-1482), we are updating ``CGA Pamphlet C-5 Cylinder Service Life--
Seamless Steel High Pressure Cylinders, 1991'' to the reaffirmed 1995
Edition.
In response to a CGA petition (P-1472), we are updating
``CGA Pamphlet C-7, A Guide for the Preparation of Precautionary
Markings of Compressed Gas Containers, appendix A, issued 1992 (6th
Edition)'' to the 2004 (Eighth) Edition. The updated pamphlet allows
for hazard class numbers to be placed on subsidiary labels which is
prohibited in the 1992 Edition.
In response to a CGA petition (P-1440), we are authorizing
the use of ``S-1.1, Pressure Relief Device Standards--Part 1--Cylinders
for Compressed Gases, 2005 (with the exception of paragraph 9.1.1.1),
Twelfth Edition'' for DOT specification cylinders and UN pressure
receptacles. Consequently, we will be removing references to the Ninth
Edition (1996) and Eleventh Edition (2003).
In response to a CGA petition (P-1440), we are updating
``CGA Pamphlet S-7, Method for Selecting Pressure Relief Devices for
Compressed Gas Mixtures in Cylinders, 1996'' to the 2005 Edition.
We are updating ``ISO 7225, Gas cylinders--Precautionary
labels, First Edition, November 1994, (Corrected and reprinted August
1995), (E)'' to the Second Edition, July 2005.
Paragraph (b) of this section contains a list of informational
materials not requiring incorporation by reference. These materials are
for informational purposes only and are not mandatory requirements. In
the NPRM, we proposed to revise paragraph (b) of this section to add a
reference to CGA publication, ``C-1.1, Personnel Training and
Certification Guidelines for Cylinder Requalification by the Volumetric
Expansion, issued 2004 (1st Edition).'' In addition we proposed to add
a new paragraph (g)(6) to Sec. 180.205 to indicate that the CGA
publication is an example of materials that may be used to train
personnel in requalifying cylinders using the volumetric expansion
method.
One commenter [Hydro-Test] states that other commercially available
guidelines concerning the requalification of cylinders may be
overlooked if the CGA publication is specifically referenced in the
HMR. We recognize that other satisfactory training materials are
available or may be developed. It is not our intention to require the
use of a particular set of training materials. Rather, as the rule text
makes explicit, the referenced publication is cited only as an example
of available training materials.
D. Household Wastes (Sec. Sec. 171.8, 173.12, and 173.134)
Although the HMR explicitly exempt shipments of ``hazardous waste''
(Sec. 173.134(b)(13)(i)), the term ``hazardous waste'' is not defined
in the rules. In the NPRM, we proposed to include a new definition for
``Household wastes'' to mean ``any solid waste (including garbage,
trash, and sanitary waste from septic tanks) derived from households
(including single and multiple residences, hotels and motels,
bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds, and day-use recreation areas).'' We also proposed to clarify
in Sec. 173.12, which provides packaging exceptions for hazardous
waste shipments, that household wastes are not subject to the HMR.
Three commenters [Duncan; Veolia; and RRI] oppose the amendments,
suggesting that the proposed definition would allow unregulated
transportation of household hazardous wastes to and from household
waste collection centers. RRI also asserts the proposed definition
could cause confusion because it would except all ``household wastes,''
without regard to hazards, quantities, or commercial or personal
generation.
The commenters appear to have misunderstood our intent in proposing
a definition for ``household wastes.'' The definition is intended to
clarify a long-standing exception from regulation under the HMR for
waste materials that are generated from households (including single
and multiple residences, hotels and motels, bunkhouses, ranger
stations, crew quarters, campgrounds, picnic grounds, and day-use
recreation areas). Such household wastes typically are picked up at
curbside by municipal governments for disposal in accordance with
applicable State or local government requirements.
In regard to collection centers, we note that the transportation of
consolidated household waste material in a motor vehicle by a
government employee, solely for noncommercial government purposes, is
not ``commercial'' transportation for purposes of the HMR and,
therefore, is not subject to the requirements of the HMR (see Sec.
171.1(d)(5)). However, transportation of a consolidated hazardous waste
shipment from a collection center by a commercial motor carrier under
contract to a government entity is ``commercial'' transportation for
purposes of the HMR and, therefore, is subject to all applicable HMR
requirements.
RRI also questions the use of undefined terms within the proposed
definition, such as ``solid waste,'' ``sanitary waste,'' ``hotel,'' and
``motel.'' RRI observes that the Environmental Protection Agency (EPA)
uses similar terminology, but may define such terms differently,
causing confusion regarding the applicability of these terms. We
disagree. The term ``solid waste'' is meant to cover those items
commonly found in household trash and garbage receptacles; the meaning
of the terms ``hotel,'' ``motel,'' and ``sanitary waste'' should be
evident from the way these terms are used in the definition. Further,
although there are similarities
[[Page 4705]]
in terminology between PHMSA's and EPA's requirements, PHMSA's
definitions are intended to stand on their own for the purposes of
transportation under the HMR.
For the reasons described above, in this final rule, we are
adopting the definition and clarifications for ``Household waste'' as
proposed in the NPRM.
E. Hazardous Materials Table (HMT; Sec. 172.101)
Section 172.101 contains the HMT and explanations for each of the
columns in the HMT. This final rule makes various amendments to the
HMT. For the purpose of the Government Printing Office's publication
procedures, changes to the HMT appear under three sections of the
Table, ``remove,'' ``add,'' and ``revise.''
In the NPRM, we proposed to harmonize certain proper shipping names
in the HMR with the Fourteenth revised edition of the UN
Recommendations, the 2007-2008 International Civil Aviation
Organization Technical Instructions for the Safe Transport of Dangerous
Goods by Air (ICAO Technical Instructions), and Amendment 33 to the
International Maritime Organization Dangerous Goods Code (IMDG Code),
and to correct other entries. One commenter [Laude] identified an error
in the NPRM: The non-bulk packaging references for the HMT entry
``Radioactive material, Type A package non-special form, non fissile or
fissile excepted, Class 7, UN2915,'' were incorrect. This error has
been corrected in this final rule. We did not receive any comments
opposing these proposed changes and are, therefore, adopting the
amendments as proposed. In addition we are removing two entries for
``Hydrazine aqueous solution, with more than 37% hydrazine, by mass,
UN2030.'' A duplicate entry was inadvertently added during the process
of amending ``Hydrazine aqueous solution, with more than 37% hydrazine,
by mass, UN2030'' under docket HM-244, which was published in the
Federal Register on October 1, 2007 (72 FR 52578). Both of these
entries contained errors. Therefore, we are removing both entries and
adding the correct description for ``Hydrazine aqueous solution, with
more than 37% hydrazine, by mass, UN2030.''
F. Special Provisions (Sec. 172.102)
Section 172.102 lists a number of special provisions applicable to
the transportation of specific hazardous materials. Special provisions
contain packaging provisions, prohibitions, and exceptions applicable
to particular quantities or forms of hazardous materials. In the NPRM,
we proposed to revise Special Provision B69 to clarify that metal
covered hopper cars, covered motor vehicles, portable tanks, and non-
specification bins must be sift-proof and weather-resistant and to
remove the requirement for bins to be approved by the Associate
Administrator. We received no comments on this proposal; therefore, we
are adopting it without change in this final rule.
G. Package Marking--RQ (Sec. Sec. 172.315 and 172.324)
Except for transportation by aircraft, Sec. 172.315 excepts
limited quantity shipments of hazardous materials from the requirement
for marking the proper shipping name of the material on the package
when the identification number of the material is shown within a
square-on-point configuration. In the NPRM, we proposed to revise Sec.
172.315 to clarify that if a shipper identifies a limited quantity
material which is also a hazardous substance, the shipper is required
to mark the letters ``RQ'' on the package in association with the
square-on-point configuration containing the identification number of
the material.
We received two comments [Hsiu and RRI] supporting the proposed
amendment. RRI suggests that, for increased visibility, this provision
should be added to Sec. 172.324, which contains the marking
requirements for hazardous substances in non-bulk packagings. We agree;
therefore, in this final rule, we are revising Sec. 172.324 to add
this clarification and adopting the amendment to Sec. 172.315 as
proposed.
We also invited comments on whether or not the name of the
hazardous substance should also be included along with the letters
``RQ,'' even though the proper shipping name is not required. Hsiu
recommends we remove all hazardous substance marking requirements for
limited quantity shipments to expedite the movement of international
shipments; international regulations do not require ``RQ'' markings. We
disagree. It is important to identify packages containing a hazardous
substance, regardless of the size of the package. This marking is
necessary for emergency responders who respond to incidents involving
packages containing hazardous substances and are required to implement
EPA mandated procedures tied to the risk associated with reportable
quantity amounts. Therefore, we are also revising Sec. 172.324 to
incorporate this provision.
H. Placement of Labels (Sec. 172.406)
Section 172.406 specifies the placement of labels on a package.
Paragraph (e) of this section prescribes requirements for the duplicate
labeling of packages based on size. Paragraph (e)(1) requires each
package or overpack having a volume of 1.8 m\3\ (64 cubic feet) or more
to be labeled on at least two sides or two ends (other than the bottom
of the package). In the NPRM, we proposed to add a new paragraph (e)(6)
to clarify that IBCs having a volume of 1.8 m\3\ (64 cubic feet) or
more are required to be labeled on at least two sides or two ends. We
received no comments on this proposal; therefore, we are adopting it
without change in this final rule.
I. Small Quantity Exceptions (Sec. 173.4)
Section 173.4 establishes exceptions for small quantities of
hazardous materials. In response to petitions from the Dangerous Goods
Advisory Council (DGAC) (P-1454) and Pharmaceutical Research and
Manufacturers of America (PhRMA) (P-1457), we proposed in the NPRM to
except de minimis quantities (less than 1 gram for solids and less than
1 milliliter for liquids per inner packaging) of PG II and PG III
materials of Class 3, Division 4.1, Division 4.2, Division 4.3,
Division 5.1, Division 6.1, Class 8, and Class 9 materials. We proposed
to require these materials to be transported in a combination
packaging, with cushioning and absorbent material that would be capable
of sustaining a drop test and a compressive load test.
We received five comments supporting this proposal [RRI, Hsiu, FPL,
H&PCLC, and AHS). RRI suggests the performance-based criteria be
removed from the packaging requirements in favor of a requirement for a
strong, tight packaging in conformance with Part 173, Subpart B.
Additionally, RRI suggests amending the gross mass packaging limits by
removing the 64 pound gross weight limitation while retaining the net
hazardous material mass provisions to allow for more packaging
configurations. RRI believes these suggestions would generate more cost
savings than the proposed rule. We disagree. The packaging performance
standard proposed in the NPRM is consistent with the performance
standard currently required for shipments of small quantities under
Sec. 173.4 and with the packaging standard recommended in the two
petitions for rulemaking we received on this issue. The transportation
history of the small quantity exception demonstrates that the packaging
standard provides a high
[[Page 4706]]
level of safety; moreover, the standard is measurable and enforceable.
Therefore, we are adopting the packaging standard proposed in the NPRM.
Hsiu asks whether packaging tests and recordkeeping are mandatory.
Packaging tests and recordkeeping are not mandatory. The performance
standard proposed in the NPRM and adopted in this final rule is a
capability standard. Capability may be demonstrated in a variety of
different ways, such as engineering analysis, selective testing of
similar packages, or actual testing of each specific design type.
Two commenters request we expand the small quantity exception
proposed in the NPRM. Hsiu requests that explosives classed as Division
1.4S be included within the small quantity exception; FPL requests we
authorize sample bottles containing up to 2 mL under the small quantity
exception. Hsiu's and FPL's requests are beyond the scope of this
rulemaking. A petition for rulemaking may be submitted to us in
accordance with 49 CFR Part 106, Subpart B.
Therefore, in this final rule, we are adopting a new exception for
small quantities--less than 1 gram for solids and less than 1
milliliter for liquids per inner packaging. When packaged for
transportation as specified in accordance with the new paragraph (e),
these materials are in amounts and forms that do not pose an
unreasonable risk to health and safety or property.
J. Agricultural Exceptions (Sec. 173.5)
Section 173.5 establishes the conditions under which agricultural
products such as pesticides and fertilizers are excepted from HMR
requirements. In order to utilize the exceptions provided, paragraph
(b)(2) specifies limits for the amount of agricultural product that may
be transported in a single vehicle. In the NPRM, we proposed to clarify
this exception by replacing the term ``vehicle'' with ``motor
vehicle.'' We received no comments on this proposal; therefore, we are
adopting it without change in this final rule.
K. Hazardous Waste Exceptions (Sec. 173.12)
Section 173.12 provides packaging exceptions for shipments of
hazardous waste materials. In a final rule published on January 24,
2005, under Docket No. RSPA 03-16370 (HM-233; 70 FR 3304), we added a
new paragraph (e) to this section to authorize the storage, loading and
transportation of waste cyanide and waste cyanide mixtures or solutions
with Class 8 acids under certain conditions. In the NPRM, we proposed
to revise paragraph (e) to authorize the transportation of waste
cyanides and waste cyanide mixtures or solutions with not only Class 8
acids but all acids. We received no comments on this proposal;
therefore, we are adopting it without change in this final rule.
L. Shipper Responsibilities (Sec. 173.22)
Section 173.22 establishes a shipper's responsibility for complying
with applicable HMR requirements. In the NPRM, we proposed, in response
to a petition from NTTC (P-1469), to amend this section to require
shippers who offer certain hazardous materials for transportation to
use carriers holding a valid safety permit issued by the Federal Motor
Carrier Safety Administration (FMCSA). FMCSA regulations (49 CFR Part
385, Subpart E) require motor carriers transporting certain types and
amounts of hazardous materials to apply for a safety permit. To obtain
a safety permit, a carrier must have a ``satisfactory'' safety rating
and must meet certain other safety and security requirements. The
safety permit requirements apply to motor carriers transporting: (1) A
highway route-controlled quantity of a Class 7 (radioactive) material;
(2) certain high explosives; (3) certain toxic inhalation hazard (TIH)
materials; and (4) certain bulk shipments of liquefied methane gas and
liquefied natural gas. A carrier may not transport any of the listed
materials unless it has a valid safety permit.
We received one comment supporting this proposal [ATA]. We received
four comments opposing this proposal [Hsiu, Veolia, Shell Chemical, and
NTTC]. Hsiu states that this is against the precedent PHMSA established
when it determined that shippers are not responsible for verifying
hazardous materials endorsements on commercial driver licenses. Veolia
notes that, currently, FMCSA has chosen to limit dispersal of the
required information to only State and local law enforcement personnel
due to security concerns. Shell notes that the obligation to secure and
maintain a safety permit under 49 CFR 385.403 is the motor carrier's
and not the shipper's. Shell is concerned that this proposal, if
adopted, would establish the wrong precedent, placing shippers in an
enforcement role for which they are ill equipped. We also received
comments from the petitioner, NTTC, who opposes this amendment due to
the lack of a publicly accessible and updated list of carriers who hold
current safety permits.
We note that the proposal in the NPRM implements a statutory
requirement in 49 U.S.C. 5109(f), which provides that a shipper
offering a hazardous material for transportation in commerce may only
offer that material to a motor carrier with a safety permit issued in
accordance with 49 U.S.C. 5109. We do not agree that by incorporating
this statutory provision into the HMR we are placing shippers in an
``enforcement'' role. Rather, we are asking shippers, consistent with
statutory requirements, to exercise due diligence and responsible care
with respect to selecting motor carriers. Therefore, we are adopting
the proposal in this final rule.
In accordance with 49 CFR 385.417, ``a motor carrier must provide
the number of its safety permit to a person who offers a [covered
hazardous material] for transportation in commerce.'' FMCSA issues each
motor carrier a paper copy of its safety permit. A shipper may request
the carrier's safety permit number or a copy of its safety permit to
verify that it is using a carrier holding a valid safety permit.
M. General Packaging Requirements (Sec. 173.24)
Section 173.24 establishes general requirements for packagings and
packages. Paragraph (g) of this section addresses the venting of
packages to reduce internal pressures that may develop by the evolution
of gas from the contents during transportation. Currently, this
paragraph specifies that a package containing a hazardous material and
transported on board an aircraft must not vent. In the NPRM, we
proposed to revise paragraph (g)(1) to specify that the venting of
packagings containing carbon dioxide, solid (dry ice) would not be
prohibited for air transportation. We received no comments opposing
this proposed amendment. However, one commenter [UPS] notes that Sec.
173.320(c) refers shippers of refrigerated and cryogenic liquids to
ICAO Packing Instruction (PI) 202. ICAO PI 202 applies to Class 2
refrigerated liquefied gases in open and closed cryogenic receptacles
authorized for air transportation that require venting. We agree with
the commenter that cryogenic liquids as specified in Sec. 173.320(c)
should also be referenced in this section. Therefore, in this final
rule, we are adopting the proposed amendment and adding a reference to
ICAO PI 202.
N. Transportation of Explosives (Sec. Sec. 173.61, 173.62)
Section 173.61 establishes requirements for transporting Class 1
(explosive) materials in the same outside packaging with other
materials that could, under normal conditions of transportation,
adversely affect the
[[Page 4707]]
explosive or its packaging. Paragraph (c) of this section lists
specific explosives that may not be transported in the same outside
packaging as other Class 1 materials. In a final rule published May 6,
1997 (HM 215B; 62 FR 24708), we added a new entry to the HMT
``Detonator, assemblies, non-electric for blasting,'' UN0500. This
entry should have also been added to paragraph (c) to indicate that
this material is not authorized to be packed together with other Class
1 explosives. In the NPRM, we proposed to correct this oversight by
amending paragraph (c) to include UN 0500 ``Detonator assemblies, non-
electric for blasting.'' We received no comments on this proposal;
therefore, we are adopting it without change in this final rule.
Section 173.62 establishes specific packaging requirements for
Class 1 (explosive) materials. The Table of Packing Methods in
paragraph (c) specifies the packing instructions assigned to each
explosive. In the NPRM, we proposed to revise packing instruction (PI)
134 in the Table of Packing Methods to authorize the use of a
specification 4H1 plastic box as an outer packaging for certain
explosives. We received no comments on this proposal; therefore, we are
adopting it without change in this final rule.
O. Transportation of Dry Ice (Sec. Sec. 173.217, 175.10, 175.900)
Section 173.217 establishes packaging requirements for dry ice
(carbon dioxide, solid). In the NPRM, we proposed to revise this
section for clarity and to harmonize the HMR with requirements in the
ICAO Technical Instructions applicable to the transportation of dry ice
by air. Currently under paragraph (d), the HMR require the shipper to
have a specific and special written arrangement with the air carrier to
transport more than 441 pounds of dry ice in a single compartment. The
ICAO Technical Instructions no longer include this requirement. The
United Parcel Service (UPS) petitioned PHMSA (P-1439) to amend this
section for consistency with the most recent edition of the ICAO
Technical Instructions. We agreed and proposed to revise the current
paragraph (d) accordingly. In addition, we proposed to revise paragraph
(d) to address air specific provisions such as ventilation safety
procedures, net mass marking requirements, and quantity limit
exceptions for dry ice used as a refrigerant for non-hazardous
materials. Further, we proposed requirements for air carriers who
transport dry ice in a proposed new Sec. 175.900.
In the NPRM, we proposed to require shippers to mark the net mass
of dry ice contained in the package on the outside of the package. Two
commenters [LabCorp and UPS] request clarification regarding the
proposed net mass marking requirements. LabCorp states that the NPRM is
not clear as to whether the proposed net mass marking requirement
specified in Sec. 173.217(c)(1) is in addition to, rather than in
place of, the standard requirement in Sec. 172.301 to mark the package
with the proper shipping name and UN number. We agree and are revising
the language in paragraph (c)(1) to specify that the net mass marking
requirement is in addition to the applicable marking requirements in
Part 172, Subpart D. We are also adding a statement to clarify that
each unit load device (ULD) when used as the packaging for dry ice
would be subject to all the applicable marking requirements for dry
ice. We are also adding clarification in Sec. 175.900 to specify that
if an operator adds dry ice to such a ULD, the net mass marking would
need to be revised if the amount of dry ice exceeds the net mass
quantity marked on the ULD. UPS also suggests the text should be
clarified to specify that the quantity limits in columns (9A) and (9B)
of the HMT are not applicable to dry ice that is used as a refrigerant
for non-hazardous materials and is loaded in a unit load device or
other type of pallet. We agree, and have revised Sec. 173.217(c)
accordingly.
UPS also suggests slight revisions to clarify the applicability of
the marking requirements for packagings containing less than 5 pounds
of dry ice. These proposed revisions would create redundancy and are
therefore unnecessary. Accordingly, we are not incorporating these
suggested revisions.
The HMR require a shipper to have a specific and special written
arrangement with an air carrier to transport more than 441 pounds of
dry ice in a single compartment. The ICAO Technical Instructions have
been broadened by removing the 441 pound threshold of dry ice in a
single compartment and the requirement for a specific and written
arrangement with the carrier. In the NPRM, in response to a UPS
petition (P-1439), we proposed to incorporate the ICAO Technical
Instructions' provisions, which require the shipper of the dry ice and
the carrier to make arrangements to ensure that proper ventilation
procedures are followed. We received three comments on the proposed
revisions [Hsiu, LabCorp, and UPS]. Both Hsiu and LabCorp question the
interpretation of the phrase ``arrangements between the shipper and the
operator'' and state the carrier requirements specified in Part 175
thoroughly address safety issues. Although we agree that the
transportation of hazardous materials by aircraft is adequately
addressed in Part 175, the intent of the proposed dry ice requirements
is to notify the initial air carrier, through advance shipper-carrier
arrangements, of the quantities of dry ice that will be aboard the
aircraft. The stowage of dry ice is the responsibility of the aircraft
operator and is based on the specific aircraft type, the number of air
exchanges per hour in the cargo compartment, the method of packing and
stowing, whether animals are carried in the compartment, and other
factors. The shipper should provide notification of the amount of dry
ice to be shipped to the carrier in advance to afford the carrier the
opportunity to take into account these safety factors. To eliminate
confusion, we are clarifying that it is the carrier's responsibility to
comply with the dry ice transportation provision in Sec. 175.900. Note
that the arrangements required under this final rule need not be in
writing.
The HMR provide an exception from the shipping paper and
certification requirements for dry ice shipments prepared in accordance
with applicable requirements, provided the package is marked ``Carbon
dioxide, solid'' or ``Dry ice'' and includes an indication that the
material being refrigerated is used for diagnostic or treatment
purposes. To avoid confusion, we proposed to revise Sec. 173.217(e) to
specify that only dry ice actually used to refrigerate materials being
shipped for diagnostic or treatment purposes may be transported under
this exception. We did not receive any comments opposing this proposed
revision; therefore, we are adopting it without change in this final
rule.
Section 175.10 establishes exceptions for the transportation of
certain hazardous materials by aircraft, including hazardous materials
that may be carried by passengers or crew members in checked or carry-
on baggage. In the NPRM, we proposed to revise paragraph (a)(10) to
harmonize the HMR with the ICAO Technical Instructions applicable to
the transportation of dry ice in checked or carry-on baggage by
excepting from the HMR shipments of dry ice used to pack perishables in
carry-on and checked baggage. In the NPRM, we indicated the net mass
requirement would be 2.3 kg (5 pounds). The ICAO Technical Instructions
allow 2.5 kg (5.5 pounds). To correct this inconsistency, we are
amending the section to read ``2.5 kg (5.5 pounds).'' Likewise, we are
amending Sec. 173.217(c) to raise the limit
[[Page 4708]]
from 2.3 kg to 2.5 kg for such packages when transported as cargo.
Although the ICAO TI does not provide a cargo exception equivalent to
that found in Sec. 173.217(c), we believe that establishing a
consistent limit for packages transported as cargo and packages
transported by passengers or crew members will facilitate the
transportation of such packages.
In response to a UPS petition (P-1439) and to harmonize with
international standards, we proposed to add a new Sec. 175.900 to
incorporate the ICAO Technical Instructions aircraft loading
requirements for carbon dioxide, solid (dry ice). The proposed
amendment would provide guidelines to the aircraft operator for
handling dry ice shipments based on the aircraft type, the aircraft
ventilation rates, the method of packing and stowing, the presence of
animals on the flight. In addition, the proposed amendment would
require the aircraft operator to ensure that the ground staff is
informed of the presence of dry ice, and provide the Pilot-in-Command
with information to reflect any quantity change of dry ice.
We received one comment [UPS] supporting this proposal. We did not
receive any comments opposing the proposed amendment; therefore, we are
adopting it without change in this final rule. UPS also suggested
including text in either this section or in Sec. 175.33 (Shipping
paper and notification of pilot-in-command provisions) to adopt DOT-E
12378, which allows for dry ice loaded on an aircraft to be shown as
aggregate mass (in kg) quantity per loading position, rather than a net
mass (in kg) quantity per package. Because this additional requirement
was not proposed in the NPRM, it is beyond the scope of this
rulemaking. However, we agree that there may be some merit in adopting
the provision in DOT-E 12378, which allows for dry ice loaded on an
aircraft to be shown as an aggregate quantity per loading position,
rather than a net quantity per package; we will consider this issue in
a future rulemaking.
P. Transportation of Compressed Gas in Cylinders (Sec. Sec. 173.301,
173.304, 173.306)
Section 173.301 establishes general requirements for the
transportation of compressed gases in cylinders and spherical pressure
vessels. Paragraph (f) of this section addresses pressure relief
devices (PRDs), and paragraph (g) addresses manifolded cylinders in
transportation. Paragraphs (f) and (g) require pressure relief devices
to conform to the applicable provisions specified in CGA S-1.1 and CGA
S-7. In response to a CGA petition (P-1440), we proposed in the NPRM to
update the incorporation by reference of CGA publications S-1.1 and S-
7. We did not receive any comments opposing this proposed revision;
therefore, we are adopting it without change in this final rule. In
addition, paragraph (c) is revised to incorporate the updated CGA S-1.1
and CGA S-7 publications specified above.
Section 173.304a specifies additional requirements for shipments of
liquefied compressed gases in specification cylinders. Paragraph
(e)(1)(ii) is revised to incorporate the updated revision to CGA
Pamphlet S-1.1 as specified in the preamble language for Sec. 171.7.
Section 173.306 establishes transportation requirements for limited
quantities of compressed gases. We are reprinting paragraphs (i), (j),
and (k) to correct the paragraph designations.
Q. Transportation of Gas Generator Assemblies (Sec. 173.335)
Section 173.335 establishes requirements for the transportation of
gas generator assemblies. This entry was initially added in a December
21, 1990 (55 FR 52402; HM-181) rulemaking to harmonize the HMR with
various international standards such as the ICAO Technical
Instructions, IMDG Code, and UN Recommendations. However, ICAO removed
this entry in the 2003-2004 edition of the ICAO Technical Instructions.
In the NPRM, we proposed to remove this section in its entirety to
harmonize with ICAO. We did not receive any comments opposing this
deletion; therefore, we are removing it from the HMR in this final
rule.
R. Motor Carrier Segregation Requirements (Sec. 177.848)
Section 177.848 addresses segregation requirements for hazardous
materials transported by motor carrier. Currrently, in paragraph
(a)(1), the segregation requirements apply to hazardous materials in
packages that are required to be labeled. However, the current
requirements do not specify whether these segregation provisions apply
to hazardous materials in packages which require placarding. In the
NPRM, we proposed to revise paragraph (a)(1) to specify that the
segregation requirements for hazardous materials would be applicable to
packages that require placarding. We did not receive any comments
opposing this amendment; therefore, we are adopting it as proposed.
S. UN Portable Tanks (Sec. 178.274)
Section 178.274 establishes design and manufacturing requirements
for UN portable tanks. Currently, paragraph (b)(1) specifies that the
design temperature range for the shell of a UN portable tank must be -
40 [deg] C to -50 [deg] C (-40 [deg] F to 122 [deg] F). The temperature
range ``-0 [deg] C to -50 [deg] C'' should be specified as ``-40 [deg]
C to 50 [deg] C.'' In the NPRM, we proposed to revise paragraph (b)(1)
to correct this error. We did not receive any comments opposing this
amendment; therefore, we are adopting it as proposed.
T. MC 331 Cargo Tanks (Sec. Sec. 178.337-9, 178.337-10)
Section 178.337-9 establishes requirements for pressure relief
devices, piping, valves, hoses, and fittings on MC 331 specification
cargo tanks. Paragraph (b)(8) requires angle valves used on cargo tanks
intended for chlorine service to conform to the Chlorine Institute Dwg.
104-8. In response to petitions for rulemaking from the Chlorine
Institute (P-1444) and Midland Manufacturing Corporation (P-1448), we
proposed, in the NPRM, to revise paragraph (b)(8) to incorporate the
Chlorine Institute's ``Section 3, Pamphlet 166 Angle Valve Guidelines
for Chlorine Bulk Transportation, 1st Edition,'' dated October 2002, to
authorize the use of an alternative angle valve for cargo tanks that
transport chlorine. We did not receive any comments opposing this
amendment; therefore, we are adopting it as proposed.
Section 178.337-10 establishes accident damage protection
requirements for MC 331 specification cargo tanks. The Chlorine
Institute petitioned PHMSA (P-1444) to update the references to the
Chlorine Institute's drawings 137-1 and 137-2 entitled ``Standards for
Housing and Manway Covers for Steel Cargo Tanks,'' dated September 1,
1982, by replacing them with the Chlorine Institute's drawing 137-5
entitled ``Typical Manway Arrangement Chlorine Cargo Tank,'' dated
November 1996. In the NPRM, we proposed to revise paragraph (d) to
remove the Chlorine Institute's drawings 137-1 and 137-2, and replace
them with the Chlorine Institute's updated drawing 137-5. We did not
receive any comments opposing this amendment; therefore, we are
adopting it as proposed.
U. Office of Hazardous Materials Enforcement Investigator (Sec.
107.305)
Section 107.305 specifies the authority of the PHMSA Office of
Hazardous Materials Enforcement (OHME) to initiate and conduct
investigations. This section also details the authority of each OHME
inspector in relation to the process of conducting
[[Page 4709]]
investigations and inspections. For clarity, we are revising several
paragraphs in this section to replace the term ``inspector'' with the
term ``investigator.'' This will help reduce confusion since the term
``inspector'' is used in other areas of the HMR with a different
meaning.
V. Minor Editorial Correction (Sec. 172.704)
In Sec. 172.704, at paragraph (a)(2)(ii), a reference to obsolete
``Sec. Sec. 171.11 and 171.12'' is corrected to read ``Sec. Sec.
171.22 through 171.25.''
IV. Sunset Provision
In the NPRM, we requested comments on whether certain amendments
should be tied to a sunset provision. We received two comments (Hsiu
and Shell Chemical) opposing inclusion of a sunset provision. We agree
that such a provision is not appropriate for this rulemaking and,
accordingly, are not including a sunset provision in this final rule.
V. 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.
B. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) Executive Order 12866 and, therefore, was not
reviewed by the Office of Management and Budget (OMB). The final rule
is not considered a significant rule under the Regulatory Policies and
Procedures order issued by the U.S. Department of Transportation (44 FR
11034).
In this final rule, we are amending the HMR to clarify and relax
overly burdensome requirements. We are also responding to requests from
industry associations, including the Chlorine Institute and Compressed
Gas Association, to add references and update standards that are
incorporated in the HMR. PHMSA believes the final rule will yield net
economic benefits by enhancing the clarity of the HMR, thereby
increasing compliance while reducing compliance costs. Further, the
creation of an exception to the HMR for small quantities of certain
hazardous materials (less than 1 gram for solids and less than 1
milliliter for liquids), and clarification that household wastes are
not subject to the HMR, will reduce packaging and compliance costs to
the regulated community. This final rule also updates the HMR to
incorporate the most recent editions of industry consensus standards.
Incorporation by reference of recognized standards and materials
reduces the regulatory burden on persons who offer or transport
hazardous materials in commerce.
The major implementation cost associated with adoption of this
final rule relates to our addition of a new shipping name and UN number
for fuel blends composed of ethanol (``ethyl alcohol'') and gasoline in
various concentrations. For these materials, we are adding a new entry
``Ethanol and gasoline mixture or Ethanol and motor spirit or Ethanol
and petrol mixture, with more than 10% ethanol, 3, UN3475, II'' to the
HMT. The new shipping name and UN number will help emergency responders
utilize the most effective procedures for incidents involving ethanol/
gasoline blends.
Ethanol/gasoline blends currently are transported primarily by
motor vehicle. Adoption of the new shipping name and ID number will
necessitate remarking of cargo tank motor vehicles used to transport
ethanol/gasoline fuel blends. Commenters to the NPRM suggested that
these costs could amount to $600 per cargo tank for a multi-
compartmented vehicle. As discussed in detail above, we believe that
commenters have over-stated potential compliance costs associated with
remarking cargo tank motor vehicles. However, to minimize the cost of
transitioning to the new shipping name and UN number, we are providing
a two-year transition period, during which the currently authorized
shipping name and UN number for ethanol/gasoline fuel blends may
continue to be used. This extended transition period will provide
companies with sufficient time to plan for and implement the changes in
an orderly and deliberate fashion.
To further offset potential costs, we are allowing for ethanol and
gasoline blends with not more than 5 percent petroleum products and
described as ``Denatured alcohol'' or ``Alcohols, n.o.s.'' to continue
to be marked with the identification number ``1987'' instead of
``3475.'' Thus, shippers and carriers of these ethanol/gasoline blends
will incur no compliance costs associated with adoption of this final
rule.
We estimate that the costs associated with remarking cargo tanks
used to transport ethanol/fuel blends will range from $4 to $15 per
cargo tank motor vehicle. There are approximately 30,000 cargo tank
motor vehicles used to transport gasoline and related products.
Assuming that half of these vehicles will need to be remarked with the
UN identification number for ethanol/gasoline blends, the total costs
to the affected industry will range from $60,000 (15,000 vehicles x $4)
to $225,000 (15,000 vehicles x $15). We believe that these costs will
be more than offset by the public safety benefits of more effective and
efficient emergency response to transportation incidents involving
ethanol/gasoline shipments. As explained above, use of the new name and
ID number will facilitate rapid deployment of emergency response
measures and materials best suited to these incidents.
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 implement 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 hazmat law (49 U.S.C. 5125(b)) expressly preempts
State, local, and Indian tribe requirements on certain covered
subjects. Covered subjects are:
(i) The designation, description, and classification of hazardous
materials;
(ii) The packing, repacking, handling, labeling, marking, and
placarding of hazardous materials;
(iii) The preparation, execution, and use of shipping documents
related to hazardous materials and requirements related to the number,
content, and placement of those documents;
(iv) The written notification, recording, and reporting of the
unintentional release in transportation of hazardous materials; or
(v) The design, manufacture, fabrication, marking, maintenance,
reconditioning, repair, or testing of a packaging or container which is
represented, marked, certified, or sold as qualified for use in the
transport of hazardous materials.
This final rule concerns the classification, packaging, marking,
labeling, and handling of hazardous materials, among other covered
subjects. This final rule preempts any State, local,
[[Page 4710]]
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 hazmat law provides 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 (49 U.S.C. 5125(b)(2)). 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. The
effective date of Federal preemption is 90 days from publication of
this final rule.
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 rule does
not have tribal implications, does not impose substantial direct
compliance costs on Indian tribal governments, and does not preempt
tribal law, the funding and consultation requirements of Executive
Order 13175 do not apply, 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.
An agency must conduct a regulatory flexibility analysis unless it
determines and certifies that a rule is not expected to have a
significant impact on a substantial number of small entities. This
final rule amends provisions in the HMR based on petitions for
rulemaking and PHMSA initiatives. These amendments are intended to
update, clarify or provide relief from certain regulatory requirements.
While maintaining safety, it relaxes certain requirements that are
overly burdensome and updates references to consensus standards that
are incorporated in the HMR. The changes are generally intended to
provide relief to shippers, carriers, and packaging manufacturers,
including small entities. The major implementation cost associated with
adoption of this final rule relates to our addition of a new shipping
name and UN number for fuel blends composed of ethanol (``ethyl
alcohol'') and gasoline in various concentrations. For these materials,
we are adding a new entry ``Ethanol and gasoline mixture or Ethanol and
motor spirit or Ethanol and petrol mixture, with more than 10% ethanol,
3, UN3475, II'' to the HMT. The new shipping name and UN number will
help emergency responders utilize the most effective procedures for
incidents involving ethanol/gasoline blends.
Ethanol/gasoline blends currently are transported primarily by
motor vehicle. Adoption of the new shipping name and ID number will
necessitate remarking of cargo tank motor vehicles used to transport
ethanol/gasoline fuel blends. Commenters to the NPRM suggested that
these costs could amount to $600 per cargo tank for a multi-
compartmented vehicle. As discussed in detail above, we believe that
commenters have over-stated potential compliance costs associated with
remarking cargo tank motor vehicles. However, to minimize the cost of
transitioning to the new shipping name and UN number, we are providing
a two-year transition period, during which the currently authorized
shipping name and UN number for ethanol/gasoline fuel blends may
continue to be used. This extended transition period will provide
companies with sufficient time to plan for and implement the changes in
an orderly and deliberate fashion.
To further offset potential costs, we are allowing for ethanol and
gasoline blends with not more than 5 percent petroleum products and
described as ``Denatured alcohol'' or ``Alcohols, n.o.s.'' to continue
to be marked with the identification number ``1987'' instead of
``3475.'' Thus, shippers and carriers of these ethanol/gasoline blends
will incur no compliance costs associated with adoption of this final
rule.
We estimate that the costs associated with remarking cargo tanks
used to transport ethanol/fuel blends will range from $4 to $15 per
cargo tank motor vehicle. There are approximately 30,000 cargo tank
motor vehicles used to transport gasoline and related products.
Assuming that half of these vehicles will need to be remarked with the
UN identification number for ethanol/gasoline blends, the total costs
to the industry associated with this provision of the final rule will
range from $60,000 (15,000 vehicles x $4) to $225,000 (15,000 vehicles
x $15). We believe that these costs will be more than offset by the
emergency response benefits that will result from adoption of the new
shipping name and UN number. As indicated above, the new name and ID
number will help emergency responders utilize the most effective
response procedures for incidents involving ethanol/gasoline blends.
More effective emergency response techniques reduce the time required
to handle an incident and, thus, the costs associated with the
incident.
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
rules on small entities are properly considered.
F. Paperwork Reduction Act
This proposed rule does not impose any new information collection
requirements.
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 (2 U.S.C. Sec. Sec. 1532-1538).
It does not result in costs of $120.7 million or more to either State,
local, or tribal governments, in the aggregate, or to the private
sector, and is the least burdensome alternative that achieves the
objective of the rule.
I. Environmental Assessment
The National Environmental Policy Act (42 U.S.C. Sec. Sec. 4321-
4375) requires that Federal agencies analyze proposed actions to
determine whether the action will have a significant impact on the
human environment. The Counsel on Environmental Quality (CEQ)
regulations order 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. 40 CFR 1508.9(b).
1. Purpose and Need
PHMSA is making miscellaneous amendments to the HMR based on
petitions for rulemaking and PHMSA's own initiatives. The amendments
are intended to update, clarify, or provide
[[Page 4711]]
relief from certain existing regulatory requirements to promote safer
transportation practices; eliminate unnecessary regulatory
requirements; resolve outstanding petitions for rulemaking; facilitate
international commerce; and make these requirements easier to
understand.
2. Alternatives
In developing this proposed rule, we considered two alternatives:
(1) Do nothing.
(2) Propose revisions to the HMR based on petitions for rulemaking
and PHMSA initiatives.
Alternative 1
Because our goal is to facilitate uniformity, compliance, commerce
and safety in the transportation of hazardous materials, we rejected
this alternative.
Alternative 2
Many of the industry standards currently incorporated by reference
have been revised and updated to incorporate new technology and
methodology. Proposed changes would relax requirements in certain
instances while still ensuring safety, clarify regulatory requirements,
and make the regulatory provisions more consistent--all in furtherance
of the safe transportation of hazardous materials in commerce.
3. Analysis of Environmental Impacts
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, or loading, unloading, or handling problems. The ecosystems
that could be affected by a release include air, water, soil, and
ecological resources (for example, wildlife habitats). The adverse
environmental impacts associated with releases of most hazardous
materials are short-term impacts that can be greatly reduced or
eliminated through prompt clean up of the accident scene. Most
hazardous materials are not transported in quantities sufficient to
cause significant, long-term environmental damage if they are released.
The hazardous material regulatory system is a risk management
system that is prevention-oriented and focused on identifying a hazard
and reducing the probability and quantity of a hazardous material
release. Making the regulatory provisions in the HMR clearer and more
consistent with international transportation and industry standards
will promote compliance and thereby enhance the safe transportation of
hazardous materials and the protection of the environment. Updating the
references to industry standards enhances safety an environmental
protection by recognizing the use of new technologies. Our proposal to
relax certain regulatory requirements is based on PHMSA's experience,
review, and determination that the changes are consistent with safety.
Neither the ``do nothing'' alternative nor the action alternative would
result in any significant impacts on the environment.
4. Consultations and Public Comment
Various modal agencies, including FAA, FMCSA, FRA, and the USCG
were consulted and participated in the notice and comment process. A
listing of the commenters is specified in the SUPPLEMENTARY INFORMATION
section under ``Background.'' No commenters addressed the potential
environmental impacts of the proposals in the NPRM.
5. Decision about the Degree of Environmental Impact
PHMSA finds that the selected alternative will not have a
significant impact on the human environment.
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) or you
may visit http://dms.dot.gov.
List of Subjects
49 CFR Part 107
Hazardous material programs, Registration, Approvals, Enforcement.
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 175
Hazardous materials transportation, Air carriers, Reporting and
recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Incorporation by reference,
Motor carriers, Segregation requirements, Reporting and recordkeeping
requirements.
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, Incorporation by reference,
Motor carriers, Motor vehicle safety, Packaging and containers,
Railroad safety, Reporting and recordkeeping requirements.
0
In consideration of the foregoing, we are amending 49 CFR Chapter I as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
0
The authority citation for part 107 continues to read as follows:
Authority: 49 U.S.C. 5101-5127, 44701; Pub. L. 101-410 section 4
(28 U.S.C. 2461 note); Pub. L. 104-134, section 31001; 49 CFR 1.45,
1.53.
0
2. In Sec. 107.305, paragraph (b) is revised to read as follows:
Sec. 107.305 Investigations.
* * * * *
(b) Investigations and Inspections. Investigations under 49 U.S.C.
5121(a) are conducted by personnel duly authorized for that purpose by
the Associate Administrator. Inspections under 49 U.S.C. 5121(c) are
conducted by Hazardous Materials Enforcement Specialists or Hazardous
Materials Compliance Investigators, also known as ``hazmat
investigators'' or ``investigators,'' whom the Associate Administrator
has designated for that purpose.
(1) An investigator will, on request, present his or her
credentials for examination, but the credentials may not be reproduced.
[[Page 4712]]
(2) An investigator may administer oaths and receive affirmations
in any matter under investigation by the Associate Administrator.
(3) An investigator may gather information by reasonable means
including, but not limited to, interviews, statements, photocopying,
photography, and video- and audio-recording.
(4) With concurrence of the Director, Office of Hazardous Materials
Enforcement, Pipeline and Hazardous Materials Safety Administration, an
investigator may issue a subpoena for the production of documentary or
other tangible evidence if, on the basis of information available to
the investigator, the documents and evidence materially will advance a
determination of compliance with this subchapter or subchapter C.
Service of a subpoena shall be in accordance with Sec. 105.50. A
person to whom a subpoena is directed may seek review of the subpoena
by applying to the Office of Chief Counsel in accordance with Sec.
105.55(a). A subpoena issued under this paragraph may be enforced in
accordance with Sec. 105.55(b).
* * * * *
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. 171.4, paragraph (c) is revised to read as follows:
Sec. 171.4 Marine Pollutants.
* * * * *
(c) Exceptions. Except when all or part of the transportation is by
vessel, the requirements of this subchapter specific to marine
pollutants do not apply to non-bulk packagings transported by motor
vehicle, rail car or aircraft.
0
5. In Sec. 171.7, in the paragraph (a)(3) table, the following
amendments are made:
a. Under the entry ``Chlorine Institute, Inc.,'' the entry ``Type
1\1/2\ JQ 225, Dwg., H51970, Revision D April 5, 1989; or Type 1\1/2\
JQ 225, Dwg. H50155, Revision F, April 4, 1989'' is revised;
b. Under the entry ``Chlorine Institute, Inc.,'' the entry
``Section 3, Pamphlet 57, Emergency Shut-Off Systems for Bulk Transfer
of Chlorine, 3rd Edition, October 1997'' is revised;
c. Under the entry ``Chlorine Institute, Inc.,'' the entry
``Section 3, Pamphlet 166 Angle Valve Guidelines for Chlorine Bulk
Transportation, 1st Edition, October 2002'' is added;
d. Under the entry ``Chlorine Institute, Inc.,'' the entry
``Typical Manway Arrangement Chlorine Cargo Tank, Dwg. 137-5, November
1996'' is added;
e. Under the entry ``Chlorine Institute, Inc.,'' the entry
``Standards for Housing and Manway Covers for Steel Cargo Tanks, Dwgs.
137-1 and 137-2, September 1, 1982'' is removed;
f. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA Pamphlet C-5 Cylinder Service Life--Seamless Steel High Pressure
Cylinders, 1991'' is revised;
g. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA Pamphlet C-7, A Guide for the Preparation of Precautionary
Markings of Compressed Gas Containers, appendix A, issued 1992 (6th
Edition)'' is revised;
h. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA Pamphlet S-1.1, Pressure Relief Device Standards--Part 1--
Cylinders for Compressed Gases, 2001 (with the exception of paragraph
9.1.1.1), Ninth Edition'' is removed;
i. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA Pamphlet S-1.1, Pressure Relief Device Standards--Part 1--
Cylinders for Compressed Gases, 2003 (with the exception of paragraph
9.1.1.1), Eleventh Edition'' is removed;
j. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA S-1.1, Pressure Relief Device Standards--Part 1--Cylinders for
Compressed Gases, 2005 (with the exception of paragraph 9.1.1.1),
Twelfth Edition'' is added;
k. Under the entry ``Compressed Gas Association, Inc.,'' the entry
``CGA Pamphlet S-7, Method for Selecting Pressure Relief Devices for
Compressed Gas Mixtures in Cylinders, 1996'' is revised;
l. Under the entry ``International Organization for
Standardization,'' the entry ``ISO 7225, Gas cylinders--Precautionary
labels, First Edition, November 1994, (Corrected and reprinted August
1995), (E)'' is revised; and
m. In paragraph (b), a new entry ``Compressed Gas Association,
Inc.,'' 4221 Walney Road, 5th Floor, Chantilly, Virginia 20151, ``C-
1.1--Personnel Training and Certification Guidelines for Cylinder
Requalification By the Volumetric Expansion, issued 2004 (1st
Edition)'' is added in alphabetical order.
The revisions and additions read as follows:
Sec. 171.7 Reference material.
(a) * * *
(3) Table of material incorporated by reference. * * *
------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Chlorine Institute, Inc.
------------------------------------------------------------------------
* * * * * * *
Type 1\1/2\ JQ 225, Dwg., H51970, Revision F, 173.315
November 1996; or Type 1\1/2\ JQ 225, Dwg.
H50155, Revision H, November 1996................
Section 3, Pamphlet 57, Emergency Shut-Off Systems 177.840
for Bulk Transfer of Chlorine, Edition 4, October
2003.............................................
Section 3, Pamphlet 166, Angle Valve Guidelines 178.337-9
for Chlorine Bulk Transportation, 1st Edition,
October 2002.....................................
* * * * * * *
Typical Manway Arrangement Chlorine Cargo Tank, 178.337-10
Dwg 137-5, November 1996.........................
[[Page 4713]]
* * * * * * *
------------------------------------------------------------------------
Compressed Gas Association, Inc.
------------------------------------------------------------------------
* * * * * * *
CGA C-5, Cylinder Service Life--Seamless Steel 173.302a
High Pressure Cylinders, 1991 (reaffirmed 1995)..
* * * * * * *
CGA C-7, Guide to Preparation of Precautionary 172.400a
Labeling and Marking of Compressed Gas
Containers, Appendix A, issued 2004 (8th Edition)
* * * * * * *
CGA S-1.1, Pressure Relief Device Standards--Part 173.301, 173.304a
1--Cylinders for Compressed Gases, 2005 (with the 178.75
exception of paragraph 9.1.1.1), Twelfth Edition.
* * * * * * *
CGA S-7, Method for Selecting Pressure Relief 173.301
Devices for Compressed Gas Mixtures in Cylinders,
2005.............................................
* * * * * * *
------------------------------------------------------------------------
International Organization for Standardization
------------------------------------------------------------------------
* * * * * * *
ISO 7225, Gas cylinders--Precautionary labels, 178.71
Second Edition, July 2005, (E)...................
* * * * * * *
------------------------------------------------------------------------
(b) List of informational materials not requiring incorporation by
reference.
* * *
------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------
* * * * * * *
------------------------------------------------------------------------
Compressed Gas Association, Inc., 4221 Walney Road, 5th Floor,
Chantilly, Virginia 20151
------------------------------------------------------------------------
CGA C-1.1, Personnel Training and Certification 180.209
Guidelines for Cylinder Requalification By the
Volumetric Expansion Method, 2004, First Edition.
* * * * * * *
------------------------------------------------------------------------
0
6. In Sec. 171.8, a new definition for ``Household waste'' is added in
alphabetical order to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Household waste means any solid waste (including garbage, trash,
and sanitary waste from septic tanks) derived from households
(including single and multiple residences, hotels and motels,
bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds, and day-use recreation areas). This term is not applicable to
consolidated shipments of household hazardous materials transported
from collection centers. A collection center is a central location
where household waste is collected.
* * * * *
0
7. In Sec. 171.14, a new paragraph (h) is added to read as follows:
Sec. 171.14 Transitional provisions for implementing certain
requirements.
* * * * *
(h) The proper shipping name ``Gasohol gasoline mixed with ethyl
alcohol, with not more than 20 percent alcohol'' in effect on January
28, 2008, may continue to be used until October 1, 2010.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
0
8. The authority citation for part 172 continues to read as follows:
Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.45 and 1.53.
0
9. In Sec. 172.101, the Hazardous Materials Table is amended by
removing, adding and revising, in the appropriate alphabetical
sequence, the following entries to read as follows:
[[Page 4714]]
Sec. 172.101.--Hazardous Materials Table
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Hazardous (8) Packaging (Sec. 173.***) (9) Quantity limitations (10) Vessel stowage
materials Hazard Special ---------------------------------------------------------------------------------------------------------------
Symbols descriptions and class or Identification PG Label codes provisions
proper shipping division numbers (Sec. Exceptions Non-bulk Bulk Passenger Cargo aircraft Location Other
names 172.102) aircraft/rail only
(1) (2)............... (3) (4).............. (5)............ (6).............. (7)............ (8A).......... (8B).......... (8C).......... (9A).......... (9B).......... (10A)......... (10B)
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[REMOVE:]
* * * * * * *
Gas generator 2.2 ................. ............... 2.2.............. ............... None.......... 335........... None.......... 75 kg......... 150 kg........ A.............
assemblies
(aircraft),
containing a
nonflammable non-
toxic gas and a
propellant
cartridge.
* * * * * * *
D............... Gasohol gasoline 3 NA1203........... II............. 3................ 144............ 150........... 202........... 242........... 5 L........... 60............ E.............
mixed with ethyl
alcohol, with not
more than 20
percent alcohol.
Gasoline.......... 3 UN1203........... II............. 3................ 144, B1, B33, 150........... 202........... 242........... 5 L........... 60 L.......... E.............
T8.
* * * * * * *
Hydrazine, aqueous 8 UN2030........... I.............. 8, 6.1........... B16, B53, T10, None.......... 201........... 243........... Forbidden..... 2.5 L......... D............. 40, 52
solution, with TP2, TP13.
more than 37%
hydrazine, by
mass.
II............. 8, 6.1........... B16, B53, IB2, None.......... 202........... 243........... Forbidden..... 30 L.......... D............. 40, 52
T7, TP2, TP13.
III............ 8, 6.1........... B16, B53, IB3, 154........... 203........... 241........... 5 L........... 60 L.......... D............. 40, 52
T4, TP2.
* * * * * * *
Hydrazine aqueous 8 UN2030........... I.............. 8, 6.1........... 151, B16, B53, None.......... 201........... 243........... Forbidden..... 2.5 L......... D............. 40
solution, with T10, TP2, TP13.
more than 37%
hydrazine, by
mass.
II............. 8, 6.1........... B16, B53, IB2, None.......... 202........... 243........... Forbidden..... 30 L.......... D............. 40
T7, TP2, TP13.
III............ 8, 6.1........... B16, B53, IB3, 154........... 203........... 241........... 5 L........... 60 L.......... D............. 40
T4, TP1.
* * * * * * *
[ADD:]
[[Page 4715]]
* * * * * * *
Ethanol and 3 UN3475........... II............. 3................ 144, 177, IB2, 150........... 202........... 242........... 5 L........... 60 L.......... E.............
gasoline mixture T4, TP1.
or Ethanol and
motor spirit
mixture or
Ethanol and
petrol mixture,
with more than
10% ethanol.
* * * * * * *
D............... Gasohol gasoline 3 NA1203........... II............. 3................ 144............ 150........... 202........... 242........... 5 L........... 60 L.......... E.............
mixed with ethyl
alcohol, with not
more than 10%
alcohol.
Gasoline includes 3 UN1203........... II............. 3................ 144, B1, B33, 50............ 202........... 242........... 5 L........... 60 L.......... E.............
gasoline mixed T8.
with ethyl
alcohol, with not
more than 10%
alcohol.
* * * * * * *
Hydrazine aqueous 8 UN2030........... I.............. 8, 6.1........... B16, B53, T10, None.......... 201........... 243........... Forbidden..... 2.5 L......... D............. 40, 52
solution, with TP2, TP13.
more than 37%
hydrazine, by
mass.
II............. 8, 6.1........... B16, B53, IB2, None.......... 202........... 243........... Forbidden..... 30 L.......... D............. 40, 52
T7, TP2, TP13.
III............ 8, 6.1........... B16, B53, IB3, 154........... 203........... 241........... 5 L........... 60 L.......... D............. 40, 52
T4, TP1.
* * * * * * *
Polyamines,
flammable,
corrosive, n.o.s.
see Amines,
flammable,
corrosive, n.o.s.
Polyamines,
liquid,
corrosive, n.o.s.
see Amines,
liquid,
corrosive, n.o.s.
Polyamines,
liquid,
corrosive,
flammable, n.o.s.
see Amines,
liquid,
corrosive,
flammable, n.o.s.
* * * * * * *
[REVISE:]
* * * * * * *
Radioactive 7 UN2915........... ............... 7................ A56, W7, W8.... None.......... 415, 418, 419. 415, 418, 419. ..... |
