[Federal Register Volume 61, Number 91 (Thursday, May 9, 1996)]
[Rules and Regulations]
[Pages 21084-21102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11400]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 107, 171, 173 and 178
[Docket No. HM-207C, Amdt. Nos. 107-38, 171-141, 173-249, and 178-113]
RIN 2137-AC63
Exemption, Approval, Registration and Reporting Procedures;
Miscellaneous Provisions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: In this final rule, RSPA revises procedures for applying for
exemptions and establishes procedures for applying for approvals, and
registering and filing reports with RSPA. In addition, RSPA amends
certain provisions, mostly procedural, in the Hazardous Materials
Regulations. This rulemaking action is intended to expedite processing
of applications and to promote clarity and program consistency. It is
part of the President's Regulatory Reinvention Initiative to revise all
agency regulations that are in need of reform.
DATES: Effective date: The effective date of these amendments is
October 1, 1996.
Compliance date: Voluntary compliance with the regulations, as
[[Page 21085]]
amended herein, is authorized as of July 12, 1996.
FOR FURTHER INFORMATION CONTACT: Kathleen Stokes Molinar, Office of the
Chief Counsel, (202) 366-4400, or Diane LaValle, Office of Hazardous
Materials Standards, (800) 467-4922, RSPA, Department of
Transportation, 400 7th Street, SW, Washington, DC 20590-0001.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal hazardous material transportation law (Federal hazmat
law; 49 U.S.C. 5101-5127) directs the Secretary of Transportation to
prescribe regulations for the safe transportation of hazardous
materials in commerce. RSPA is the agency within the Department of
Transportation primarily responsible for implementing the Federal
hazmat law. RSPA does so through the Hazardous Materials Regulations
(HMR; 49 CFR Parts 171-180). Under 49 U.S.C. 5117(a), RSPA is
authorized to issue an exemption from specific requirements of the
Federal hazmat law or the HMR if an applicant demonstrates that public
safety will not be compromised. The procedures governing application
for an exemption and the manner in which the application is processed
are found at 49 CFR part 107, subpart B.
In numerous instances, the HMR require approval by, or registration
with, RSPA before a person may engage in particular hazmat
transportation-related activities in areas such as manufacturing and
certifying hazardous material packagings, offering hazardous materials
for transportation, and transporting hazardous materials. The HMR also
impose reporting requirements on persons engaging in certain hazardous
materials transportation activities. A significant portion of the
regulated community is subject to one or more of these requirements.
Procedures to be followed in seeking an approval from RSPA, registering
with RSPA, or reporting to RSPA are often found in the HMR provision
establishing the particular requirement, but in many cases these
procedures are absent or incomplete.
This final rule revises procedures for exemptions in subpart B of
part 107 and establishes procedures for approvals, registrations and
reports in subpart H of part 107. Establishment of formal procedures
for approval, registration, and reporting activities provides uniform
and consistent guidance to all those who may be subject to these
requirements in the HMR, and fosters consistency in RSPA's handling of
these matters. Additionally, this final rule minimizes RSPA's need to
seek additional information from applicants in order to complete the
processing of these matters.
The procedures adopted in this final rule for approvals,
registrations, and reports are limited in their application. Other
Federal agencies (e.g., the United States Coast Guard (USCG) and the
Federal Railroad Administration (FRA)) issue approvals or receive
registrations or reports under the HMR. For example, under
Sec. 176.415, persons are required to obtain approvals from the USCG
before loading or unloading certain explosives onto or from vessels.
The procedures established in this rule apply only with respect to
those matters under the HMR that are handled by RSPA. Those matters for
which the HMR assign responsibility to other entities will continue to
be handled according to the procedures of those entities.
II. Regulatory Reinvention Initiative
In a March 4, 1995 memorandum, the President directed Federal
agencies to review all agency regulations and eliminate or revise those
that are outdated or in need of reform. On April 4, 1995 (60 FR 17049),
and July 28, 1995 (60 FR 38888), RSPA issued notices requesting
comments on regulatory reform and announcing several public meetings
nationwide to identify obsolete and burdensome regulations that can be
eliminated from the HMR and techniques to improve RSPA's customer
services. Some of the commenters responding to those notices and
participating in the public meetings identified the exemption and
approval procedures as areas in need of clarification and reform. This
rule is consistent with the goals of the President to clarify and
revise Federal agency regulations to relieve unnecessary regulatory
burdens and to clarify regulatory requirements.
III. Summary of Comments and Regulatory Changes
On September 14, 1995, RSPA published a notice of proposed
rulemaking (NPRM) under Docket HM-207C (60 FR 47723). In the NPRM, RSPA
proposed to revise the exemption procedures of subpart B of part 107
and adopt new procedures in subpart H of part 107 for approvals,
registration, and reporting information to RSPA.
RSPA received 16 comments to the NPRM from offerors and carriers of
hazardous materials, chemical and packaging manufacturers, consulting
firms, and the United States Department of Energy. Commenters were
generally supportive of RSPA's effort to revise and clarify the
procedures for exemptions and establish procedures for approvals,
registration, and reporting. The comments and RSPA's response to them
are discussed below.
Part 107
Subpart A--General Provisions
Sec. 107.3 Definitions.
Commenters requested clarification of the difference between
approvals and exemptions and, further, requested that RSPA explain the
difference between an approval and a competent authority approval. An
approval is a written authorization to take some action delineated in a
particular regulation (e.g., Sec. 173.21) in the HMR and is
specifically authorized in that regulation. Approvals generally are
limited in scope, such as in Sec. 178.604(b)(2) that authorizes an
applicant to apply for an approval to deviate from the number of
samples used in conducting a leakproofness test. Because issuance of
all approvals is specifically recognized in the HMR and almost all
approval documents can be made available for public review,
applications are not published in the Federal Register.
Sections 171.11 and 171.12 authorize compliance with international
standards (i.e., the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by Air
(ICAO Technical Instructions) and the International Maritime Dangerous
Goods Code (IMDG Code)) as an alternative to compliance with certain
provisions of the HMR. For certain types of activities, both the ICAO
Technical Instructions and the IMDG Code have provisions which require
that the activity be approved by the competent authority of the country
of origin. The Associate Administrator for Hazardous Materials Safety
(Associate Administrator), RSPA, is the competent authority for the
United States of America (see the definition of ``competent authority''
in 49 CFR Sec. 171.8).
A competent authority approval means an approval by the competent
authority which is required under the provisions of international
regulations, such as the ICAO Technical Instructions or the IMDG Code.
To the extent that it satisfies the requirement of the international
regulations, any of the following may serve as a competent authority
approval: a specific regulation of subchapter A or C, an exemption or
approval issued under the provisions of subchapter A or C, or a
separate document issued to one or more persons by the Associate
Administrator. In other words, if an activity is authorized for
international transport under the HMR,
[[Page 21086]]
then the HMR serves as the competent authority approval. An exemption
or approval may serve as a competent authority approval provided the
exemption or approval does not prohibit any international transport. To
facilitate international commerce, for a function that relates only to
a requirement of an international standard, and not to the HMR, the
Associate Administrator may issue a competent authority approval as a
separate document that is not related to either an approval or an
exemption under the HMR.
An exemption allows an applicant to perform a function which is not
authorized under the HMR and which, in fact, would be a violation of
the HMR in the absence of the exemption. An exemption may involve an
authorization to engage in a function for which there is no provision
in the regulations. A ``manufacturing exemption'' is an exemption
issued to a manufacturer of packagings who does not offer for
transportation or transport hazardous materials in packagings subject
to the exemption.
The process of applying for an exemption, as provided by the
Federal hazardous materials transportation law (49 USC 5117), requires
that the applicant provide documentation demonstrating that the
proposed process or activity will meet a level of safety at least
equivalent to that provided by the HMR or, if the regulations do not
contain a specified level of safety, will be consistent with the public
interest. Notice of most exemption applications is published in the
Federal Register for public comment prior to their being granted or
denied.
For clarity, RSPA is adopting definitions in Sec. 107.3 for
``approval,'' ``competent authority approval,'' ``exemption,'' and
``manufacturing exemption'' to differentiate between approvals and
exemptions and clarify the types of exemptions and approvals that are
issued.
One commenter requested that the proposed term ``accident'' be
replaced with ``incident'' to avoid confusion. The commenter stated
that the word ``incident'' is currently used in the HMR and has the
same connotation as the proposed definition of accident. The commenter
also stated that other modal agencies within DOT use the term
``accident'' to mean a collision between moving vehicles (e.g., the
FHWA expressly defines ``accident'' as a motor vehicle collision). RSPA
agrees and is adopting the term ``incident'' to refer to an event
resulting in the unintended or unanticipated release of hazardous
material or an event which meets incident reporting requirements in
171.15 or 171.16.
Another commenter suggested that RSPA define the term
``registration'' to describe what the term includes, rather than what
it does not include. The commenter recommended that the wording ``
`registration' does not include registration under Subpart F or G of
this part'' be removed. RSPA agrees that providing examples of the
types of registration covered under this definition is beneficial and
is adding several examples. RSPA has not granted the commenter's
request to delete the language referencing specific registration
requirements that are not included in the definition. RSPA believes
that this exclusionary language provides as much guidance as a
description of what types of ``registration'' are included in the
definition.
No comments were received concerning other proposed definitions,
and those definitions are adopted as proposed.
Subpart B--Exemptions
Sec. 107.101 Purpose and scope. One commenter requested that all
exemptions be described as ``competent authority approvals'' to provide
for greater acceptance outside the United States since competent
authority approvals are accepted internationally. An exemption concerns
a variance from the HMR and not the international regulations. As
previously indicated, an exemption may be used as competent authority
approval to the extent that it is suitable for international transport
and satisfies the approval requirement of the applicable international
regulation. However, a number of exemptions, such as those applicable
to transportation by motor vehicle only, are not applicable under
international regulations. Therefore, RSPA is not adopting the
commenter's suggestion.
Another commenter suggested that RSPA adopt only two procedures:
one for approvals and exemptions, and the other for registrations and
reports. The commenter contended that the requirements, procedures, and
justifications related to exemptions and approvals are sufficiently
different that users of the regulations are better served by RSPA
providing separate, self-contained provisions for exemptions and
approvals. This commenter added that since applicants are not always
sure whether to submit an application requesting an exemption, approval
or registration, RSPA should be responsible for determining the
appropriate action since the data required for each is the same. RSPA
is not adopting the commenter's suggestion that RSPA determine the
appropriate action for submitted applications because it is the
applicant's responsibility to make this determination and the
requirements are different. By defining the terms ``exemption,''
``approval,'' and ``registration,'' as well as clarifying the
procedures for obtaining each, RSPA is assisting applicants in
determining the appropriate action.
One commenter stated that the exemption procedures do not provide
for carrier exemptions. The commenter requested that more general
procedures be adopted for carrier exemptions because the application
information differs from that required for shippers and packaging
manufacturers. For consistency, RSPA utilizes the same exemption
application procedure for all applicants (e.g., packaging
manufacturers, shippers, and carriers). In this final rule, RSPA is
clarifying the types of information required of an exemption applicant
(see preamble discussion under Sec. 107.105). Additionally, RSPA is
including language in the rule under the ``emergency processing''
provisions of Sec. 107.117 which should assist carriers by directing an
applicant to seek an emergency exemption through the modal office for
the proposed initial mode of transportation.
One commenter strongly recommended that RSPA incorporate more
exemptions into the HMR to allow industry more flexibility and reduce
the number of exemptions. The commenter requested that RSPA explain the
standards which it utilizes to determine which exemptions are
incorporated into the HMR. The commenter stated that ``making this
information [the standards which RSPA utilizes] public would provide a
clearer picture of the need for a more flexible regulatory scheme and
give a benchmark on which to assess efforts to incorporate existing
exemptions.''
Although RSPA has no formal set of standards for selecting
exemptions to be converted to regulations of general applicability,
RSPA periodically reviews existing exemptions to prioritize them as to
their suitability for conversion to regulations. Whether a specific
exemption is a candidate for regulatory action depends on any number of
factors, such as the expressed interest of the exemption holder or
others, the suitability of the exemption for conversion, rulemaking
activity in related areas, agency priorities, and whether the process,
packaging or activity authorized by the exemption has provided a
clearly demonstrated
[[Page 21087]]
level of safety equivalent to that which is provided by the HMR.
Another commenter recommended that RSPA automatically incorporate
exemptions into the HMR after the second renewal of the exemption. RSPA
agrees that if an exemption of general applicability demonstrates a
level of safety equivalent to the HMR, the provisions of the exemption
ultimately may be suitable for incorporation into the HMR. However,
RSPA is not adopting the commenter's recommendation. As previously
discussed, a number of factors influence whether an exemption is
proposed for conversion to a regulation.
Sec. 107.105 Application for exemption. Commenters supported
RSPA's proposal to require that applicants submit exemption
applications in duplicate, rather than triplicate. Commenters stated
that this amendment would reduce the burden on applicants, and RSPA is
adopting the requirement as proposed.
One commenter requested that applicants be required to submit the
application information in numerical order consistent with the
application procedures so that RSPA can quickly determine if any
information is missing. While RSPA encourages applicants to follow the
format utilized in the rule when submitting application materials, RSPA
believes that its personnel can expeditiously determine the
completeness of an application. Further, RSPA does not want to place
another requirement on applicants; therefore, RSPA recommends but is
not mandating use of this commenter's suggestion.
Another commenter suggested that proposed Sec. 107.105 (a)(2) and
(a)(4) be combined. Proposed paragraph (a)(2) requires that an
applicant who is not an individual (i.e., the applicant is a
corporation, partnership, or the like) designate an agent pursuant to
the laws of the United States. Proposed paragraph (a)(4), however,
requires a foreign applicant to designate an agent within the United
States. This paragraph applies to both individuals and legal entities.
To avoid confusion between an agent for a U.S. applicant that is not an
individual and an agent for a foreign applicant, RSPA is keeping the
two requirements as separate paragraphs (a)(2) and (a)(3),
respectively, in this final rule.
One commenter suggested that RSPA require applicants to provide a
Material Safety Data Sheet (MSDS) or emergency response information for
hazardous materials in an application to confirm that this information
is consistent with the Emergency Response Guidebook. RSPA agrees that
an MSDS may contain useful information, such as hazard properties of a
commodity, for inclusion in an application and this information may be
needed to justify an application. RSPA believes that an MSDS is not
necessary in most instances and did not propose to require MSDS' or
emergency response information with exemption applications. Therefore,
RSPA is not adopting the commenter's suggestion.
Several commenters expressed concern regarding what they perceive
as the increased quantity and detail of information required to be
included in an exemption application. Some commenters stated that
supplying this information would place an undue burden on applicants
and make it more difficult or even impossible to obtain an exemption or
approval. Without providing any supporting statistics or financial
data, one commenter stated that trying to meet some of these
requirements could substantially increase the paperwork burdens for
both the applicant and RSPA, and the U.S. Department of Energy (DOE)
stated that the new requirements would impose severe economic impacts
on applicants who use contractors because the contractors would have to
perform extensive analyses and compilation of information to satisfy
the new requirements.
RSPA believes that the administrative burden on applicants remains
unchanged under proposed Sec. 107.105 and under the provisions adopted
in this final rule. The information and analyses set forth in this
final rule for exemption applications are essentially what is required
under the Federal hazmat law and what RSPA historically has requested,
often during the processing of the exemption. By clearly specifying
this information in the regulations, RSPA hopes to minimize delays in
application processing and requests for extra submissions from
applicants occasioned by RSPA's having to obtain additional information
from exemption applicants at a later time. Additionally, the commenters
who raised these ``increased burden'' arguments have not submitted
supporting documentation demonstrating that exemption applicants'
paperwork or economic burdens will be increased by this regulatory
change. Finally, RSPA notes that an applicant is not required to submit
information which is inapplicable to the exemption request or which is
impracticable for the applicant to obtain. Therefore, RSPA does not
believe that paperwork and economic burdens upon an exemption applicant
will increase, and is adopting the regulatory change essentially as
proposed.
Several commenters requested that RSPA clarify certain information
required in the proposed application procedures. Specifically, one
commenter recommended that RSPA consolidate and clarify the information
required in proposed paragraphs (a)(14) through (a)(18). Another
commenter requested clarification of what is meant in proposed
Sec. 107.105(a)(16) by ``any increased risk to safety or property that
may result if the exemption is granted.'' The commenter stated that
RSPA needs to specify the extent of analysis an applicant is required
to provide in the application. Another commenter requested that RSPA
add language in proposed paragraphs (a)(16) and (a)(18) that applicants
provide risks that ``are known or could reasonably have been expected
to be known'' to clarify that a ``full-blown'' risk assessment is not
intended by RSPA. Another commenter added that it is unclear whether an
applicant is required to include the information in proposed paragraph
(a)(18). The commenter requested that RSPA add some examples to clarify
when the provision is required.
The Federal hazmat law requires each person seeking an exemption to
provide a safety analysis that justifies the exemption (49 U.S.C.
5117(b)). The information required under Sec. 107.105 is intended to
elicit the information and analyses necessary to demonstrate that the
requested exemption provides an equivalent level of safety to that
afforded by the HMR or, if the HMR do not establish a level of safety,
is consistent with the public interest and will adequately protect
against risk to life and property.
The safety analyses required to support exemptions can vary
greatly. The analyses may range from simple comparative analyses relied
upon by an applicant seeking an exemption which will permit minor
variations in packaging, to complex risk analyses for complex packaging
systems involving new technologies or materials of construction. The
risks presented by new technologies and materials are often more
difficult to evaluate, and may require a more extensive safety
analysis.
Successful shipping experience may be useful to support a safety
analysis, but does not necessarily demonstrate that a particular
package or transport practice provides a level of safety equivalent to
that authorized. Successful shipping experience may only indicate that
a package was not subjected to a drop, impact, or fire during
transportation. A safety analysis
[[Page 21088]]
of a package or transport practice that includes exposure to normal and
accident environments is a more valid indication of the level of safety
provided by the package or transport practice, than simply looking to
whether a history of incidents exists. Therefore, RSPA is requiring the
applicant to describe all relevant shipping and incident experience of
which the applicant is aware that relates to the application. The
applicant also must specify safety control measures (e.g., use of a
private carrier or additional packaging) necessary to demonstrate that
the proposed package or transport practice meets a level of safety
equivalent to that afforded by the HMR and is in the public interest.
In response to commenters' requests, RSPA is clarifying the information
specified in proposed paragraphs (a)(16) through (a)(18).
Several commenters stated that certain requested information may be
unavailable to the applicant. One commenter stated that some of the
requested information, such as service life and performance of an
alternative packaging, constitutes reasons for the exemption--to find
these answers by authorizing controlled shipments under an exemption.
Commenters stated that the proposed changes facilitate the ability of
the Associate Administrator to reject an application not deemed
complete. One commenter stated that, if an applicant cannot identify a
potential failure mode and its possibility of an occurrence, the
application would be deemed incomplete and could be denied.
The proposed language of Sec. 107.105 was intended to expedite
processing of exemption applications for the benefit of persons seeking
exemptions. RSPA acknowledges that not all information about a proposed
alternative packaging or activity is available at the time an exemption
is requested. However, an exemption is granted only when an applicant
has provided sufficient information to demonstrate that the requested
variation from the regulatory requirement will afford a level of safety
equivalent to that which is provided by the HMR. This demonstration
must include information relevant to the expected service, performance
and limitations of the packaging.
Commenters also stated that certain information may not be
applicable to some exemptions. For example, some commenters expressed
concern that the requirement to provide detailed commodity information
(proposed Sec. 107.105(a)(12)) may not be necessary or appropriate for
an exemption that authorizes manufacture of a packaging. The commenters
stated that lack of this information could result in the rejection of
the application. Commenters requested that Sec. 107.105 be modified to
indicate that such detailed information must be included in an
application only when appropriate based on the nature of the exemption
being sought. In response to commenters' concerns, RSPA is requiring
the applicant to provide information in the application only when it is
appropriate to demonstrate that the proposal meets the statutory and
regulatory standards. Therefore, this final rule indicates that an
applicant need only submit information that is relevant to an
application.
Other commenters expressed opposition to RSPA's proposal to extend
the recommended time period for filing an exemption application from
120 days to 180 days before the requested effective date of the
exemption. The commenters indicated that this extended deadline
appeared to be contrary to the stated purpose of the rule--reduction of
the processing time of exemption applications and renewals. Another
commenter requested that RSPA also issue or deny an exemption in the
same time period when a properly prepared application is submitted.
RSPA's proposal was intended to parallel the Federal hazmat law
requirement, 49 U.S.C. 5117, that the Secretary of Transportation issue
or renew an exemption for which an application was filed, or deny such
issuance or renewal, within 180 days after the first day of the month
following the date of the filing of such application. RSPA understands
that many parties requesting exemptions cannot anticipate their needs
beyond four months. Therefore, RSPA is addressing the needs of its
customers by retaining the 120-day application filing time. However,
RSPA notes that 120 days is often not enough time for processing an
incomplete or very complicated exemption application, and encourages
parties to file an application for an exemption as early as possible.
Another commenter objected to the proposal to limit the use of
manufacturing exemptions to specific plants or locations. The commenter
stated that many shippers are also manufacturers and use more than one
vendor to supply a packaging. The commenter requested the flexibility
to use alternative suppliers of its packaging. RSPA did not propose to
limit the use of manufacturing exemptions to particular plants, but to
require applicants to identify the location of each facility where an
exemption would be used. It was RSPA's intention to limit the
application and definition of a manufacturing exemption to a
manufacturer of packagings who does not offer for transportation or
transport hazardous materials in the exemption packagings it produces
(i.e., a business entity engaged in the manufacturing and marketing
packagings for use by other entities). A person who manufacturers,
marks and sells packagings under an exemption may do so at dozens of
facilities without restriction; however, RSPA is retaining the
requirement that applicants for manufacturing exemptions identify the
location of each facility where manufacturing under an exemption will
occur. The requirement does not apply to shippers who produce
packagings for their own use.
Based on the foregoing, RSPA is revising the exemption application
procedures essentially as proposed with modifications as described
above, reformatting of the section and revising of certain provisions
to make them less burdensome.
Sec. 107.107 Application for party status. This section is adopted
essentially as proposed. Paragraph (a)(4) is revised to delete an
information requirement pertaining to consent to U.S. jurisdiction.
Paragraph (c) is revised to reference Sec. 107.113 (e) and (f) for the
manner by which the Associate Administrator grants or denies
applications.
Sec. 107.109 Application for renewal. This section is adopted
essentially as proposed. One commenter requested that one renewal
application suffice for all parties to an exemption. A single renewal
application would not provide all incident experience encountered by
all parties to an exemption. Further, where there are numerous parties
to an exemption and each attained party status on a different date,
issuance of a blanket renewal for all parties becomes unworkable from a
timing perspective. For example, persons who attained party status
close to the date for the blanket renewal may find themselves
immediately faced with renewal. RSPA, therefore, is not adopting this
suggestion.
One commenter encouraged RSPA to extend the exemption renewal
process from two years to five years to alleviate some of the
administrative burdens on RSPA and the regulated industry. The
commenter stated that RSPA could determine whether an exemption should
continue based on any incidents that occur during the life of the
exemption. Another commenter stated that an exemption period of three
years may be more appropriate for the information required in the
revised application procedures. Another
[[Page 21089]]
commenter suggested that RSPA seek a legislative change that allows
exemptions to remain in effect until such time as the Secretary finds
that continuation is no longer in the public interest or the exemption
holder withdraws the exemption. The Federal hazardous materials
transportation law (49 U.S.C. 5117) currently provides that an
exemption can be issued for no more than a two-year maximum period of
time; therefore, RSPA lacks statutory authority to extend the two-year
period. However, on March 27, 1996, a legislative proposal was sent to
Congress which included a request that the two-year exemption
limitation be extended to four years.
Sec. 107.111 Withdrawal. One commenter requested that RSPA clarify
that all documents deemed confidential by the Associate Administrator
in accordance with Sec. 107.5 that are related to an active or inactive
application will remain confidential. RSPA accepts the commenter's
suggestion and is adding a statement in this section clarifying this
point and further clarifying that the time period for which
confidential treatment will be afforded comports with the guidelines of
the Freedom of Information Act (5 U.S.C. 552(b)). Specifically,
submissions which fall within the definition of ``trade secrets'' or
``commercial or financial information obtained from a person and
privileged or confidential'' will remain confidential indefinitely,
unless the party requesting the confidential treatment notifies the
Associate Administrator that the confidential treatment is no longer
desired.
Sec. 107.113 Application processing. Commenters raised concerns
about the proposed language in paragraph (a) with respect to the time
frame in which a determination is made concerning whether an
application is complete. The commenters requested that RSPA remove the
proposed wording ``usually is made'' and retain the current wording
``will be made.'' One commenter stated that the requirement is
reasonable since it is only a determination of the application's
completeness and not a decision on its merits. RSPA agrees with the
commenter and is retaining the current wording in paragraph (a) as
requested.
Seven of the 15 commenters were strongly opposed to RSPA's proposal
to consider the existence of pending or completed enforcement actions
as a factor in determining whether an exemption applicant demonstrates
fitness to conduct an activity that would be authorized under the
exemption. One commenter stated that RSPA's technical experts should be
able to determine the safety of the subject of a proposed exemption
request without reference to enforcement actions on unrelated subjects.
Another commenter stated that, historically, RSPA could deny an
exemption application on any basis. The commenter stated that the
proposed language could create an unnecessarily adversarial situation.
One commenter stated that it objected to consideration of pending or
completed enforcement actions as ``prima facie evidence of an
applicant's capability or integrity.'' The commenter stated that, in
cases where assessed penalties were low, respondents in enforcement
actions may have adopted a ``no contest'' posture in an enforcement
action and paid a penalty, rather than expend the time and money
necessary to litigate an action. If enforcement history is used against
these respondents, the commenter said that a business decision to not
contest the action would have more severe consequences than successful
resistance to an enforcement action by a more litigious respondent. The
commenter also stated that denial of an exemption or approval because
of enforcement history would punish the violator twice for a violation.
The commenter added that Congress, in developing the hazardous
materials transportation legislation, had considered and rejected
adoption of a licensing concept because existing enforcement powers are
sufficiently strong to address violations, without denying authority to
operate under an exemption or approval. The commenter concluded that
the ``enforcement history'' provision should be very narrowly tailored:
only prior violations which indicate flagrant disregard for HMR
compliance should be considered. Another commenter suggested that only
enforcement actions of a ``significant nature'' be considered evidence
of insufficient competence or integrity.
In general, RSPA believes that consideration of completed
enforcement actions and certain pending enforcement actions as evidence
of an applicant's capability and integrity is a legitimate means of
protecting the public. It is not punishment but recognition of relevant
information. Enforcement actions may be indicative of an applicant's
ability or willingness to comply with the applicable regulations.
Because the Associate Administrator is considering whether to authorize
compliance with specific alternatives to the HMR, the likelihood of an
applicant's compliance with those alternatives is relevant to public
safety.
One commenter suggested that RSPA revise paragraph (a)(5) to read
``The application may be denied if the shipping and accident experience
supplied by the applicant in accordance with Sec. 107.105(a) which
directly relates to the exemption being sought demonstrates that
approval of the application poses a potential threat to life or
property.'' Limiting consideration to only an applicant's shipping and
accident experience which directly relates to the exemption sought
fails to protect the public from applicants with poor compliance
histories who seek exemptions to authorize new hazardous materials
transportation activities.
One commenter stated that the rule is unclear as to whether
violations that qualify for the ticketing program are considered
``enforcement actions'' under the proposed rule. The commenter
recommended that RSPA not consider ticketed violations. RSPA will
consider ticketed violations as part of an applicant's compliance
history, using the criteria specified in Sec. 107.331 to assess the
weight to be given to the violation.
DOE requested clarification of the provision concerning
consideration of past violations in determining an applicant's
capability and integrity as it applies to government entities that use
contractors. DOE also asked RSPA to clarify the terms ``pending'' and
``complete'' as used in the proposed regulation and the type of
activity that warrants a determination of ``lack of integrity.''
For purposes of regulatory compliance, RSPA looks to the entity
whose act or omission constitutes a violation of the HMR. In response
to DOE's question regarding the status of an enforcement action as
either ``pending'' or ``complete,'' an enforcement case historically
has been initiated by issuance of a Notice of Probable Violation
(NOPV). However, RSPA recently established a pilot ``ticketing''
program permitting initiation of an enforcement case by issuance of a
ticket. Thus, a case is ``pending'' from the date of issuance of either
the NOPV or the ticket until a final order has been issued and the time
for appeal has expired. If the order has been appealed in a timely
manner, the case is ``pending'' until the RSPA Administrator
(Administrator) issues an Action on Appeal. When an order has become
final or when an order was appealed and the Administrator has issued an
Action on Appeal, the enforcement action is considered to be
``complete.''
RSPA is adopting the proposed rule with several modifications. In
making a determination to grant or deny a request for an exemption,
RSPA will consider information submitted in the
[[Page 21090]]
application package, compliance history of the applicant, and other
information available to the Associate Administrator.
Another commenter objected to the proposed language providing that
an applicant who failed to respond within 30 days to a request for
additional information would have his or her application deemed
incomplete and denied. The commenter stated that, where reasonable and
appropriate, an extension of time should be granted. RSPA understands
the commenter's concern. Currently, if an applicant fails to respond to
a request for additional information for good cause, RSPA grants a 30-
day extension. To clarify this point, RSPA is adding a provision in
this section and Sec. 107.709 (approval application processing) that
allows an applicant to submit a written request for a 30-day extension.
Finally, commenters stated that, while they favored initiating a
rulemaking in addition to issuing an exemption, they did not agree with
initiating a rulemaking in lieu of issuing an exemption. The commenters
stated that the latter penalized an applicant because rulemaking
usually has taken longer than processing of an exemption request. One
of the commenters noted that, in its experience, RSPA staff faced with
this situation would issue an exemption to the applicant, and
concurrently initiate a rulemaking action, which could lead ultimately
to issuance of a rule of general applicability.
RSPA has seldom issued a rulemaking in lieu of processing an
exemption application, and RSPA does not intend to change that policy.
However, RSPA believes that if the subject of an exemption application
is so broad and of such general applicability that it should result in
a rulemaking action, going forward with issuance of the exemption
during the pendency of the rulemaking process may have the effect of
prejudging the rulemaking. A large number of applications for similar
exemptions or ``party to'' status may also adversely impact RSPA's
programs. For these reasons, the Associate Administrator may either
process the exemption application, use the application as a basis for
rulemaking, or do both. When an applicant meets all other regulatory
requirements and demonstrates a compelling necessity for an exemption,
the Associate Administrator may issue an exemption.
Sec. 107.115 Priority processing. Some commenters supported RSPA's
proposal to establish a new priority processing category for
applications that do not qualify for emergency processing but merit
more expeditious consideration than routine processing. One commenter
stated that overall processing time should be reduced. However, other
commenters expressed concern that the processing time of routine and
priority exemption applications would be the same if each must undergo
the same review process as proposed. Some commenters opposed a priority
processing category because it would delay the preparation and
processing of applications for exemptions as each applicant tried to
demonstrate significant economic loss and RSPA evaluated each
application.
One commenter requested that RSPA provide an indication of the time
in which RSPA would respond to a priority exemption application.
Another commenter requested that RSPA provide the Associate
Administrator the flexibility to issue temporary exemptions to
applicants who qualify for priority processing while the application is
being processed to minimize financial burdens on the applicant.
Commenters stated that cases that have the potential for severe
economic harm are already handled by emergency processing.
Another commenter requested that RSPA clarify why current emergency
processing should be replaced by two separate processing categories
that appear to be more complex. The commenter noted that, in the NPRM,
priority processing would be based on economic factors and emergency
processing would be based on life and property criteria. The commenter
stated that, in the current emergency processing procedures, RSPA
considers either endangerment to life or property or serious economic
loss. The commenter asked whether RSPA, by proposing two separate
processing categories, is suggesting that it considers a health threat
to be more important than economic loss, even if the health threat is
remote and the economic loss is substantial.
One commenter objected to the proposed rule requiring non-
government entities to meet higher standards than government entities
to qualify for priority processing. Based on the comments, RSPA has
determined that adding a priority processing category is not warranted.
Therefore, the proposal is not adopted in this final rule.
Sec. 107.117 Emergency processing. Commenters favored the
continued existence of an emergency processing category. One commenter
stated that the current procedures require that ``an applicant need
only show that existing conditions necessitate the transportation of a
hazardous material, or that the protection of life and property would
not be possible if such material is not transported.'' The commenter
objected to the proposed emergency processing procedures in that they
require applicants to demonstrate that such processing is necessary to
prevent ``significant injury'' to persons or property. The commenter
requested that RSPA remove the term ``significant'' because it is
subjective. The current procedures allow only applicants who can show
that a life-threatening situation exists to qualify for emergency
processing. In the proposed rule, RSPA responded to requests of
applicants that a broader standard be utilized in determining that
emergency processing is warranted. At the same time, RSPA proposed to
include the term ``significant'' to set a reasonable limit on the
expanded criteria, and believes that the term is necessary to ensure
fairness to applicants awaiting routine processing by not allowing
applicants to allege ``minor'' injuries or losses as the basis for
emergency processing.
One commenter stated that, under the proposed rule, the Associate
Administrator could deny priority or emergency processing if timely
application could have been made. The commenter requested that RSPA
allow an applicant to explain circumstances that may have contributed
to the applicant not filing an application in a timely manner so that
the applicant may still be considered for priority or emergency
processing. RSPA contemplates that an applicant seeking emergency
processing will provide evidence of circumstances that prevented the
applicant from filing the application in a timely manner.
One commenter stated that it is unlikely that applicants who
request emergency processing will be able to supply the information
specified in proposed Sec. 107.105(a)(17) for analyses, data, or test
results. In response to comments to the proposed application procedures
in Sec. 107.105, RSPA is clarifying the extent to which applicants are
required to supply analyses, data, or test results. See preamble
discussion under Sec. 107.105.
Another commenter stated that the ``emergency processing'' language
appeared to apply only to ``carrier'' exemptions and questioned its
applicability to exemptions issued to shippers. The commenter stated
that the proposed rule directs carriers to send the exemption
application to the office of the modal administration which has
oversight responsibility for the carrier's mode of transportation
(e.g., FHWA, the Federal Railroad Administration, etc.).
[[Page 21091]]
The commenter stated that shippers often utilize more than one mode and
therefore the proposed requirement that an application be sent to only
one modal office requires ``fine tuning.'' Any applicant, including a
shipper, seeking an emergency exemption must submit the application to
the specified modal contact official for the initial mode of
transportation to be utilized.
Some commenters suggested that emergency exemption applications be
submitted directly to RSPA, consistent with other exemption
submissions, and not to the specific modal administration. An emergency
exemption application is most expeditiously handled when submitted to
the applicable modal administration, where an immediate analysis of the
proposed transportation can be performed by personnel having expertise
in the affected mode of transportation. This process will eliminate the
need for RSPA to forward the exemption application to the affected mode
for input, thus allowing for more expeditious application review and
more timely and efficient customer service.
In this final rule the section is adopted essentially as proposed
with editorial changes for clarity. Proposed paragraph (f) is deleted
as unnecessary, and proposed paragraph (g) and (h) are redesignated as
(f) and (g), respectively.
Sec. 107.121 Modification, suspension, or termination of exemption
or grant of party status. One commenter expressed concern that the
proposed rule would allow termination simply ``for no other reason than
if the Department wants it terminated regardless of the shipping and
incident experience * * *.'' The commenter argued that: (1) This
provision appears contrary to the performance-oriented packaging
system; (2) this provision gives no regard to contracts for the supply
of materials between shippers and consignees; (3) the exemption holder
is placed at the mercy of RSPA personnel; (4) it is doubtful that the
proposed rule comported with the intent of Congress; (5) the proposed
rule does not comport with the preamble, which indicates that the
purpose of the NPRM is to expedite processing of applications and
promote program consistency; and (6) based on the foregoing, the
proposed rule is ``significant.''
This rule clarifies standards for exemption modification,
suspension, and termination and gives the Associate Administrator more
flexibility to determine which of the three remedies is appropriate in
a given situation. Presently, the Associate Administrator may modify or
suspend an exemption if its provisions are violated or if new
information suggests that the activity under the exemption creates a
risk to life or property. The Associate Administrator may terminate an
exemption if it is no longer consistent with the public interest, is no
longer necessary due to a change in the regulations, or was granted on
the basis of false or misleading information. The ``public interest''
criterion encompasses all grounds on which the Associate Administrator
may terminate an exemption, but it is vague. Furthermore, the sharp
distinction that the existing regulation draws between those conditions
that justify modifying or suspending an exemption and those that
justify terminating it handicap the Associate Administrator in taking
the action that is most appropriate in a particular circumstance. For
example, the current regulation may require the termination of an
exemption when modification would suffice.
The Associate Administrator's decision to modify, suspend, or
terminate an exemption must be based on the criteria specified in the
proposed regulatory text (see 49 CFR 107.121 (a) and (b)).
In this final rule Sec. 107.121 is adopted essentially as proposed.
Paragraph (d) is added to specify conditions by which the Associate
Administrator may declare a proposed action immediately effective.
Sec. 107.123 Reconsideration. One commenter suggested that RSPA
clarify that applications denied pursuant to Sec. 107.113(d) are
eligible for reconsideration in accordance with this section. RSPA
agrees that they are eligible for reconsideration, but sees no reason
for a rule change. In the NPRM, RSPA specifically stated that
applicants may request reconsideration of decisions made under
Secs. 107.113(g), 107.117(e), and 107.121(c). This section is adopted
as proposed.
Subpart C--Preemption
One commenter suggested that ``Associate Administrator for
Hazardous Materials Safety'' be revised to read ``Associate
Administrator'' for consistency with other sections in part 107. RSPA
agrees and, in the interest of achieving consistency, is modifying the
language of subpart C as suggested in all general references to the
Associate Administrator. Also, RSPA is making other minor modifications
to the regulatory language of subpart C for clarity and consistency.
Sec. 107.205 Notice. One commenter recommended changing ``may
publish notice of an application'' in paragraph (b), to ``will publish
notice of, including an opportunity to comment on, an application.''
RSPA agrees and is revising the paragraph to require publication of the
notice in the Federal Register.
In paragraph (c) and in Secs. 107.211(c), 107.217(c), and
107.223(c), RSPA is adding a sentence, ``Late-filed comments are
considered so far as practicable.'' This sentence reflects the manner
in which RSPA has handled late-filed comments in preemption matters and
is consistent with Sec. 106.23 concerning the handling of late-filed
comments in rulemaking actions. Because this change is merely a
modification to a rule of agency procedure, public notice and an
opportunity to comment on the change are not mandated by the
Administrative Procedure Act.
Sec. 107.209 Determination. Commenters also favored revision of
paragraph (c) to change ``may publish'' to ``will publish''. RSPA
agrees and is making this change.
One commenter disagreed with the proposed deletion of paragraph (b)
to eliminate the Associate Administrator's authority to issue a
preemption determination on his or her own initiative. The commenter
did not agree that the authority was eliminated by the Hazardous
Materials Transportation Uniform Safety Act of 1990 (HMTUSA). The
commenter recommended adding language allowing the Associate
Administrator to issue a preemption determination where he or she is
directly affected by a requirement of a State or political subdivision
or Indian tribe. RSPA disagrees. The pre-HMTUSA regulations authorized
RSPA to issue inconsistency rulings, which were merely advisory in
nature, on its own initiative. However, in enacting HMTUSA, Congress
replaced these advisory inconsistency rulings with authorization to
issue binding preemption determinations and, further, provided for
issuance of preemption determinations only in response to applications
by ``directly affected'' persons. See 49 U.S.C. 5125(d). In light of
these statutory changes, RSPA believes that it is inappropriate for the
Associate Administrator to initiate a preemption determination
proceeding on his or her own initiative. Therefore, paragraph (b) is
eliminated as proposed.
Sec. 107.211 Petition for reconsideration. RSPA proposed to amend
this section by revising paragraph (a) to read ``The petition must be
filed within 20 days of publication of the determination in the Federal
Register.'' A commenter expressed concern about this language in light
of RSPA's proposal to make publication
[[Page 21092]]
optional. As previously stated, RSPA will publish all preemption
determinations and, therefore, this language will not be problematic.
The proposal is adopted in this final rule.
Sec. 107.213 Judicial review. In the NPRM, RSPA proposed to add a
new section to allow a party to a proceeding under Sec. 107.203(a) to
seek review by the appropriate district court of the United States of a
decision of the Administrator by filing a petition with the court
within 60 days after the Administrator's decision becomes final. One
commenter recommended that references to the ``Administrator'' be
changed to the ``Associate Administrator.'' RSPA agrees with this
suggestion and amends this section accordingly. The commenter also
requested that RSPA specify when its decision on a petition for
reconsideration of a preemption determination becomes final. The
Associate Administrator's decision becomes final when it is published
in the Federal Register. RSPA is amending this section to clarify this
issue. In addition, RSPA is revising the wording ``decision'' to read
``determination'' to minimize confusion.
Sec. 107.217 Notice. One commenter suggested that the word
``ruling'' in paragraph (d) be changed to ``outcome of a determination
on the application.'' RSPA agrees with this suggestion, and is making
the change accordingly.
Sec. 107.221 Determination. A commenter asked that, in paragraph
(d), the word ``may'' be changed to ``will'' concerning publication of
determinations in the Federal Register. RSPA agrees and is making this
change.
Sec. 107.223 Petition for reconsideration. One commenter suggested
that the term ``order'' be changed to ``determination.'' For clarity
and consistency, RSPA is making this change.
Sec. 107.227 Judicial review. RSPA is amending this section for
consistency with Sec. 107.213. See preamble discussion under
Sec. 107.213.
Subpart D--Enforcement
Sec. 107.305 Investigations. A commenter opposed the proposal to
authorize RSPA inspectors to issue subpoenas for the production of
documents or other tangible evidence because of the potential for
abuse. RSPA is adopting the provision as proposed. RSPA inspectors are
broadly empowered, through delegations of investigatory authority under
the Federal hazmat law, 49 U.S.C. 5121, to collect evidence reasonably
related to hazardous materials compliance inspections. Their use of a
subpoena without involvement of RSPA's Office of the Chief Counsel will
improve program efficiency by expediting the information-gathering
process. The potential for inspectors to abuse this authority is
minimal because the Director of the Office of Hazardous Materials
Enforcement must approve the issuance of the subpoena and the recipient
of the subpoena may seek review of the subpoena by RSPA's Office of the
Chief Counsel under Sec. 107.13(h).
For clarity, RSPA added the words `also known as ``hazmat
inspectors'' or ``inspectors''' after the words ``Hazardous Materials
Enforcement Specialists.'' This addition was not proposed in the NPRM,
but is added on RSPA's initiative to provide consistency between
Sec. 107.305(b) and subparagraphs (1), (2), and (3) which refer to
``inspectors.''
Sec. 107.315 Admission of violations. Paragraphs (c) and (d) are
revised to delete the recommendation that payment of a civil penalty be
documented by forwarding a photocopy of the respondent's electronic
fund transfer receipt or check to the Office of the Chief Counsel. This
administrative change, not in the NPRM, eliminates a potential
paperwork burden on the regulated industry. Because this change is
merely a modification to a rule of agency procedure, public notice and
opportunity to comment on the change are not required by the
Administrative Procedure Act.
Sec. 107.331 Assessment considerations. This section is adopted
essentially as proposed, with a minor editorial revision.
Subpart H--Approvals, Registrations and Submissions.
Sec. 107.107 Purpose and scope. This section is adopted as
proposed.
Sec. 107.705 Registration and reporting. One commenter recommended
that RSPA develop a standard form in place of general procedures for
registrations and reports. RSPA does not believe that a standard form
is practical, considering the variation in information required for the
numerous approvals, registrations, and reports that would have to be
accommodated by a standard generic form.
Except as discussed in the following paragraph, this section is
adopted as proposed.
Sec. 107.707 Applications. The proposed provisions for renewal of
approvals state that RSPA will issue a written extension to operate
under an expired approval until RSPA makes a final determination on the
application. One commenter requested that the renewal procedures for
approvals be consistent with renewal procedures for exemptions in that
if an application is submitted at least 60 days prior to the expiration
date, the expiration is automatically extended until RSPA makes a final
determination on the application. RSPA agrees with the commenter, and
is adopting the suggestion. Further, since the requirements for
registration and reporting specified in the proposed Sec. 107.705 and
the requirements for an approval application specified in Sec. 107.707
are essentially the same, RSPA is eliminating the separate language of
Sec. 107.707, and combining the ``registration and reporting''
requirements of Sec. 107.707 with the ``approval application''
requirements Sec. 107.705, in a section entitled ``Registrations,
reports, and applications for approval.''
Sec. 107.709 Application processing. Commenters again expressed
opposition to RSPA's proposal to permit the Associate Administrator to
consider pending or completed enforcement actions in determining
whether an approval application is processed or denied. This issue is
discussed under Sec. 107.113 and RSPA is modifying this section
similarly.
Sec. 107.711 Withdrawal. With respect to documents submitted in
conjunction with an exemption application which is later withdrawn, one
commenter requested that RSPA clarify that all documents deemed
confidential by the Associate Administrator in accordance with
Sec. 107.5 that are related to an active or inactive application will
remain confidential. RSPA has agreed to do so, and is extending this
confidential treatment to documents submitted in conjunction with an
approval application. See preamble comments to 49 CFR Sec. 107.111.
Sec. 107.713 Approval modification, suspension, or termination.
One commenter raised the same concerns about the proposed procedures
for modification, suspension, or termination of approvals as he raised
regarding modification, suspension, or termination of exemptions. RSPA
discussed these issues under Sec. 107.121. Paragraph (d) is added to
specify conditions by which the Associate Administrator may declare a
proposed action immediately effective. Otherwise, the section is
adopted as proposed.
Sec. 107.715 Reconsideration. Paragraph (b) is adopted as
proposed.
Sec. 107.717 Appeal. Proposed paragraph (c) is not adopted for the
same reasons as discussed under Sec. 107.715 above. Otherwise, the
section is adopted as proposed.
[[Page 21093]]
Part 171
Sec. 171.1 Purpose and scope. One commenter recommended that the
wording ``in commerce'' be added following ``hazardous materials''
throughout this section for clarity and consistency with the Federal
hazardous material transportation law. RSPA agrees and is modifying
paragraph (a) accordingly.
Additionally, a new paragraph (d) is added, as proposed, to clarify
that the requirements of subchapter C are applicable to the use of
terms and symbols prescribed in this subchapter for marking, labeling,
placarding, and describing hazardous materials and packagings used in
their transport.
Sec. 171.2 General requirements. The modifications of paragraphs
(a) through (d), and the addition of paragraph (h) are adopted
essentially as proposed in the NPRM, with minor modifications to the
regulatory language for accuracy and clarity. Identifications listed in
paragraph (d) have been expanded to include most, if not all, of the
identifications covered by the regulations.
Sec. 171.3 Hazardous waste. A commenter objected to RSPA's
proposal to eliminate paragraph (c) of this section; the commenter
opined that the paragraph implements a requirement of the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. 6923(b), that all RCRA
rules issued by the Environmental Protection Agency be consistent with
the Federal hazmat law and the HMR. The commenter also stated that
retention of this provision is necessary to inform states implementing
RCRA of the necessity for consistency with the Federal hazmat law and
the HMR. For preemption purposes, RSPA looks at hazardous waste issues
together with issues covering all other hazardous materials. RCRA's
directive that EPA's hazardous waste requirements be consistent with
the Federal hazmat law does not mandate that RSPA establish a separate
preemption provision for hazardous waste. Therefore, RSPA is deleting
paragraph (c), including the note contained therein, as proposed.
Sec. 171.8 Definitions. RSPA is adopting a definition for
``approval'' and revising the definition for ``person'', as proposed.
In addition, RSPA is adding a definition for ``exemption'' for clarity.
Because this latter change is merely informative, public notice and
opportunity to comment on the change are not required by the
Administrative Procedure Act.
Part 172
Sec. 172.302 General marking requirements for bulk packagings. A
commenter requested that RSPA authorize markings for small portable
tanks and intermediate bulk containers (IBC's) to be only one inch
high. The commenter suggested that, instead of incorporating the
minimum height of exemption number markings into Sec. 172.302(c), RSPA
should cross-reference Sec. 172.302(b), which requires exemption
markings to be the same size as other required markings on bulk
packagings and makes the marking size dependent upon the size and
capacity of the packaging. The commenter also requested that width
requirements for exemption markings be specified. RSPA is considering
changes to the marking height and width requirements under a separate
rulemaking action. Therefore, the proposed change in the NPRM and this
commenter's suggested change regarding size of exemption markings are
not adopted as part of this final rule.
Part 173
Sec. 173.22a Use of packagings authorized under exemptions.
Proposed paragraph (c) is revised to refer to ``offeror'' rather than
``shipper.'' Also, a sentence is added to clarify that a carrier shall
maintain a copy of an exemption in the same manner as for a shipping
paper.
Part 178
Sec. 178.3 Marking of packagings. Paragraph (d) is adopted as
proposed.
IV. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is not considered a significant regulatory action
under section 3(f) of Executive Order 12866 and, therefore, was not
subject to review by the Office of Management and Budget. The rule is
not significant according to the Regulatory Policies and Procedures of
the Department of Transportation (44 FR 11034).
This final rule will not result in any additional costs to persons
subject to the HMR. Therefore, preparation of a regulatory impact
analysis or regulatory evaluation is not warranted.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism''). The
Federal hazardous materials transportation law (49 U.S.C. 5101-5127)
contains an express preemption provision that preempts State, local,
and Indian tribe requirements on certain covered subjects. Covered
subjects are:
(i) the designation, description, and classification of hazardous
material;
(ii) the packing, repacking, handling, labeling, marking, and
placarding of hazardous material;
(iii) the preparation, execution, and use of shipping documents
pertaining to hazardous material and requirements respecting the
number, content, and placement of such documents;
(iv) the written notification, recording, and reporting of the
unintentional release in transportation of hazardous material; or
(v) the design, manufacturing, fabrication, marking, maintenance,
reconditioning, repairing, or testing of a package or container which
is represented, marked, certified, or sold as qualified for use in the
transportation of hazardous material.
Title 49 U.S.C. 5125(b)(2) provides that if DOT issues a regulation
concerning any of the covered subjects after November 16, 1990, DOT
must determine and publish in the Federal Register the effective date
of Federal preemption. That effective date may not be earlier than the
90th day following the date of issuance of the final rule and not later
than two years after the date of issuance. The effective date of
Federal preemption for this final rule is October 1, 1996. Because RSPA
lacks discretion in this area, preparation of a Federalism assessment
is not warranted.
C. Regulatory Flexibility Act
I certify that this final rule will not have a significant economic
impact on a substantial number of small entities. This final rule
amends existing requirements and adds new procedural provisions to
clarify existing practice. The amendments contained in this rule do not
impose any new requirements on persons subject to the HMR; thus, there
are no direct or indirect adverse economic impacts for small units of
government, businesses, or other organizations.
D. Paperwork Reduction Act
Information collection requirements applicable to applications for
exemptions contained in this final rule are unchanged in substance and
amount of burden from those currently approved by the Office of
Management and Budget (OMB) under OMB control number 2137-0051. RSPA is
requesting revision of the OMB approval to update section references in
accordance with changes made in this final rule. Information collection
requirements applicable to approvals are unchanged in substance and
amount of burden from those previously approved under OMB control
number 2137-0557. RSPA is requesting reinstatement and revision of this
approval from OMB and will
[[Page 21094]]
display, through publication in the Federal Register, the control
number when it is approved by OMB. Public comment on this request has
been invited through publication of a Federal Register notice on March
5, 1996 (61 FR 8706). Under the Paperwork Reduction Act of 1995, no
person is required to respond to a requirement for collection of
information unless the requirement displays a valid OMB control number.
E. Regulation Identification Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous materials
transportation, Packaging and containers, Penalties, Reporting and
recordkeeping requirements.
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1-2. The authority citation for part 107 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
3. In Sec. 107.3, definitions are added in alphabetical order to
read as follows:
Sec. 107.3 Definitions.
* * * * *
Acting knowingly means acting or failing to act while
(1) Having actual knowledge of the facts giving rise to the
violation, or
(2) Having the knowledge that a reasonable person acting in the
same circumstances and exercising due care would have had.
Administrator means the Administrator, Research and Special
Programs Administration.
Applicant means the person in whose name an exemption, approval,
registration, a renewed or modified exemption or approval, or party
status to an exemption is requested to be issued.
Application means a request under subpart B of this part for an
exemption, a renewal or modification of an exemption, party status to
an exemption, or a request under subpart H of this part for an
approval, or renewal or modification of an approval.
Approval means a written authorization, including a competent
authority approval, from the Associate Administrator to perform a
function for which prior authorization by the Associate Administrator
is required under subchapter C of this chapter.
* * * * *
Associate Administrator means the Associate Administrator for
Hazardous Materials Safety, Research and Special Programs
Administration.
* * * * *
Competent Authority Approval means an approval by the competent
authority which is required under the provisions of an international
standard, such as the International Civil Aviation Organization's
Technical Instructions for the Safe Transport of Dangerous Goods by Air
or the International Maritime Dangerous Goods Code. To the extent that
it satisfies the requirement of the international standard, any of the
following may serve as a competent authority approval: a specific
regulation of this subchapter or subchapter C of this chapter, an
exemption or approval issued under the provisions of this subchapter or
subchapter C of this chapter, or a separate document issued to one or
more persons by the Associate Administrator.
Exemption means a document issued under the authority of 49 U.S.C.
5117 by the Associate Administrator that authorizes a person to perform
a function that is not otherwise authorized under this subchapter,
subchapter C, or other regulations issued under 49 U.S.C. 5101-5127
(e.g., Federal Highway Administration routing).
* * * * *
Filed means received at the Research and Special Programs
Administration office designated in the applicable provision or, if no
office is specified, at the Office of Hazardous Materials Exemptions
and Approvals (DHM-30), Research and Special Programs Administration,
U.S. Department of Transportation, 400 7th Street SW., Washington DC,
20590-0001.
Holder means the person in whose name an exemption or approval has
been issued.
* * * * *
Incident means an event resulting in the unintended and
unanticipated release of a hazardous material or an event meeting
incident reporting requirements in Sec. 171.15 or Sec. 171.16 of this
chapter.
* * * * *
Investigation includes investigations authorized under 49 U.S.C.
5121 and inspections authorized under 49 U.S.C. 5118 and 5121.
Manufacturing exemption means an exemption from compliance with
specified requirements that otherwise must be met before representing,
marking, certifying (including requalifying, inspecting, and testing),
selling or offering a packaging or container as meeting the
requirements of subchapter C of this chapter governing its use in the
transportation in commerce of a hazardous material. A manufacturing
exemption is an exemption issued to a manufacturer of packagings who
does not offer for transportation or transport hazardous materials in
packagings subject to the exemption.
Party means a person, other than a holder, authorized to act under
the terms of an exemption.
* * * * *
Registration means a written acknowledgment from the Associate
Administrator that a registrant is authorized to perform a function for
which registration is required under subchapter C of this chapter
(e.g., registration with RSPA as a cylinder retester pursuant to 49 CFR
173.34(e)(1), or registration in accordance with 49 CFR 178.503
regarding marking of packagings). For purposes of subparts A through E,
``registration'' does not include registration under subpart F or G of
this part.
Report means information, other than an application, registration
or part thereof, required to be submitted to the Associate
Administrator pursuant to this subchapter, subchapter B or subchapter C
of this chapter.
* * * * *
[[Page 21095]]
4. In Sec. 107.5, paragraph (a) is revised to read as follows:
Sec. 107.5 Request for confidential treatment.
(a) If any person filing a document with the Associate
Administrator claims that some or all the information contained in the
document is exempt from the mandatory public disclosure requirements of
the Freedom of Information Act (5 U.S.C. 552), is information referred
to in 18 U.S.C. 1905, or is otherwise exempt by law from public
disclosure, and if that person requests the Associate Administrator not
to disclose the information, that person shall file, together with the
document, a second copy of the document with the confidential
information deleted. The person shall indicate each page of the
original document that is confidential or contains confidential
information by marking or stamping ``confidential'' on each page for
which a claim of confidentiality is made, and may file a statement
specifying the justification for the claim of confidentiality. If the
person states that the information comes within the exception in 5
U.S.C. 552(b)(4) for trade secrets and commercial or financial
information, that person shall include a statement as to why the
information is privileged or confidential. If the person filing a
document does not mark or stamp a document as confidential or submit a
second copy of the document with the confidential information deleted,
the Associate Administrator may assume that there is no objection to
public disclosure of the document in its entirety.
* * * * *
Sec. 107.5 [Amended]
5. In addition, in Sec. 107.5, in paragraph (b), the phrase
``Associate Administrator for Hazardous Materials Safety'' is revised
to read ``Associate Administrator'' both places it appears.
6. Subpart B of part 107 is revised to read as follows:
Subpart B--Exemptions
Subpart B--Exemptions
107.101 Purpose and scope.
107.105 Application for exemption.
107.107 Application for party status.
107.109 Application for renewal.
107.111 Withdrawal.
107.113 Application processing and evaluation.
107.117 Emergency processing.
107.121 Modification, suspension or termination of exemption or
grant of party status.
107.123 Reconsideration.
107.125 Appeal.
107.127 Availability of documents for public inspection.
* * * * *
Sec. 107.101 Purpose and scope.
This subpart prescribes procedures for the issuance, modification
and termination of exemptions from requirements of this subchapter,
subchapter C of this chapter, or regulations issued under chapter 51 of
49 U.S.C.
Sec. 107.105 Application for exemption.
(a) General. Each application for an exemption or modification of
an exemption must--
(1) Be submitted in duplicate and, for timely consideration, at
least 120 days before the requested effective date to: Associate
Administrator for Hazardous Materials Safety, Research and Special
Programs Administration, U.S. Department of Transportation, 400 7th
Street, SW, Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
(2) State the name, street and mailing addresses, and telephone
number of the applicant; if the applicant is not an individual, state
the name, street and mailing addresses, and telephone number of an
individual designated as an agent of the applicant for all purposes
related to the application;
(3) If the applicant is not a resident of the United States, a
designation of agent for service in accordance with Sec. 107.7 of this
part; and
(4) For a manufacturing exemption, a statement of the name and
street address of each facility where manufacturing under the exemption
will occur.
(b) Confidential treatment. To request confidential treatment for
information contained in the application, the applicant shall comply
with Sec. 107.5(a).
(c) Description of exemption proposal. The application must include
the following information that is relevant to the exemption proposal:
(1) A citation of the specific regulation from which the applicant
seeks relief;
(2) Specification of the proposed mode or modes of transportation;
(3) A detailed description of the proposed exemption (e.g.,
alternative packaging, test, procedure or activity) including, as
appropriate, written descriptions, drawings, flow charts, plans and
other supporting documents;
(4) A specification of the proposed duration or schedule of events
for which the exemption is sought;
(5) A statement outlining the applicant's basis for seeking relief
from compliance with the specified regulations and, if the exemption is
requested for a fixed period, a description of how compliance will be
achieved at the end of that period;
(6) If the applicant seeks emergency processing specified in
Sec. 107.117, a statement of supporting facts and reasons;
(7) Identification and description of the hazardous materials
planned for transportation under the exemption;
(8) Description of each packaging, including specification or
exemption number, as applicable, to be used in conjunction with the
requested exemption;
(9) For alternative packagings, documentation of quality assurance
controls, package design, manufacture, performance test criteria, in-
service performance and service-life limitations;
(d) Justification of exemption proposal. The application must
demonstrate that an exemption achieves a level of safety at least equal
to that required by regulation, or if a required safety level does not
exist, is consistent with the public interest. At a minimum, the
application must provide the following:
(1) Information describing all relevant shipping and incident
experience of which the applicant is aware that relates to the
application;
(2) A statement identifying any increased risk to safety or
property that may result if the exemption is granted, and a description
of the measures to be taken to address that risk; and
(3) Either--
(i) Substantiation, with applicable analyses, data or test results,
that the proposed alternative will achieve a level of safety that is at
least equal to that required by the regulation from which the exemption
is sought; or
(ii) If the regulations do not establish a level of safety, an
analysis that identifies each hazard, potential failure mode and the
probability of its occurrence, and how the risks associated with each
hazard and failure mode are controlled for the duration of an activity
or life-cycle of a packaging.
Sec. 107.107 Application for party status.
(a) Any person eligible to apply for an exemption may apply to be
made party to an application or an existing exemption, other than a
manufacturing exemption.
(b) Each application filed under this section must--
(1) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety, Research and Special Programs
Administration, U.S. Department of Transportation, 400 7th Street, SW,
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
[[Page 21096]]
(2) Identify by number the exemption application or exemption to
which the applicant seeks to become a party;
(3) State the name, street and mailing addresses, and telephone
number of the applicant; if the applicant is not an individual, state
the name, street and mailing addresses, and telephone number of an
individual designated as the applicant's agent for all purposes related
to the application; and
(4) If the applicant is not a resident of the United States,
provide a designation of agent for service in accordance with
Sec. 107.7.
(c) The Associate Administrator grants or denies an application for
party status in the manner specified in Sec. 107.113(e) and (f) of this
subpart.
(d) A party to an exemption is subject to all terms of that
exemption, including the expiration date. If a party to an exemption
wishes to renew party status, the exemption renewal procedures set
forth in Sec. 107.109 apply.
Sec. 107.109 Application for renewal.
(a) Each application for renewal of an exemption or party status to
an exemption must--
(1) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety, Research and Special Programs
Administration, U.S. Department of Transportation, 400 7th Street, SW,
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
(2) Identify by number the exemption for which renewal is
requested;
(3) State the name, street and mailing addresses, and telephone
number of the applicant; if the applicant is not an individual, state
the name, street and mailing addresses, and telephone number of an
individual designated as an agent of the applicant for all purposes
related to the application;
(4) Include either a certification by the applicant that the
original application, as it may have been updated by any application
for renewal, remains accurate and complete; or include an amendment to
the previously submitted application as is necessary to update and
assure the accuracy and completeness of the application, with
certification by the applicant that the application as amended is
accurate and complete; and
(5) Include a statement describing all relevant shipping and
incident experience of which the applicant is aware in connection with
the exemption since its issuance or most recent renewal. If the
applicant is aware of no incidents, the applicant shall so certify.
When known to the applicant, the statement should indicate the
approximate number of shipments made or packages shipped, as the case
may be, and number of shipments or packages involved in any loss of
contents, including loss by venting other than as authorized in
subchapter C.
(b) If at least 60 days before an existing exemption expires the
holder files an application for renewal that is complete and conforms
to the requirements of this section, the exemption will not expire
until final administrative action on the application for renewal has
been taken.
Sec. 107.111 Withdrawal.
An application may be withdrawn at any time before a decision to
grant or deny it is made. Withdrawal of an application does not
authorize the removal of any related records from the RSPA dockets or
files. Applications that are eligible for confidential treatment under
Sec. 107.5 will remain confidential after the application is withdrawn.
The duration of this confidential treatment for trade secrets and
commercial or financial information is indefinite, unless the party
requesting the confidential treatment of the materials notifies the
Associate Administrator that the confidential treatment is no longer
required.
Sec. 107.113 Application processing and evaluation.
(a) The Associate Administrator reviews an application for
exemption, modification of exemption, party to exemption, or renewal of
an exemption to determine if it is complete and conforms with the
requirements of this subpart. This determination will be made within 30
days of receipt of the application for exemption, modification of
exemption, or party to exemption, and within 15 days of receipt of an
application for renewal of an exemption. If an application is
determined to be incomplete, the applicant is informed of the reasons.
(b) An application, other than a renewal, party to, or emergency
exemption application, that is determined to be complete is docketed.
Notice of the application is published in the Federal Register, and an
opportunity for public comment is provided. All comments received
during the comment period are considered before final action is taken
on the application.
(c) No public hearing or other formal proceeding is required under
this subpart before the disposition of an application. Unless emergency
processing under Sec. 107.117 is requested and granted, applications
are usually processed in the order in which they are filed.
(d) During the processing and evaluation of an application, the
Associate Administrator may request additional information from the
applicant. If the applicant does not respond to a written request for
additional information within 30 days of the date the request was
received, the application may be deemed incomplete and denied. However,
if the applicant responds in writing within the 30-day period
requesting an additional 30 days within which it will gather the
requested information, the Associate Administrator may grant the 30-day
extension.
(e) The Associate Administrator may grant or deny an application,
in whole or in part. In the Associate Administrator's discretion, an
application may be granted subject to provisions that are appropriate
to protect health, safety or property. The Associate Administrator may
impose additional provisions not specified in the application or remove
conditions in the application that are unnecessary.
(f) The Associate Administrator may grant an application on finding
that--
(1) The application complies with this subpart;
(2) The application demonstrates that the proposed alternative will
achieve a level of safety that:
(i) Is at least equal to that required by the regulation from which
the exemption is sought, or
(ii) If the regulations do not establish a level of safety, is
consistent with the public interest and adequately will protect against
the risks to life and property inherent in the transportation of
hazardous materials in commerce;
(3) The application states all material facts, and contains no
materially false or materially misleading statement;
(4) The applicant meets the qualifications required by applicable
regulations; and
(5) The applicant is fit to conduct the activity authorized by the
exemption. This assessment may be based on information in the
application, prior compliance history of the applicant, and other
information available to the Associate Administrator.
(g) An applicant is notified in writing whether the application is
granted or denied. A denial contains a brief statement of reasons.
(h) An exemption and any renewal thereof terminates according to
its terms or, if not otherwise specified, two years after the date of
issuance. A grant of party status to an exemption, unless otherwise
stated, terminates on the date that the exemption expires.
(i) The Associate Administrator, on determining that an application
[[Page 21097]]
concerns a matter of general applicability and future effect and should
be the subject of rulemaking, may initiate rulemaking under part 106 of
this chapter in addition to or instead of acting on the application.
(j) The Associate Administrator publishes in the Federal Register a
list of all exemption grants, denials, and modifications and all
exemption applications withdrawn under this section.
Sec. 107.117 Emergency processing.
(a) An application is granted emergency processing if the Associate
Administrator, on the basis of the application and any inquiry
undertaken, finds that--
(1) Emergency processing is necessary to prevent significant injury
to persons or property (other than the hazardous material to be
transported) that could not be prevented if the application were
processed on a routine basis; or
(2) Emergency processing is necessary for immediate national
security purposes or to prevent significant economic loss that could
not be prevented if the application were processed on a routine basis.
(b) Where the significant economic loss is to the applicant, or to
a party in a contractual relationship to the applicant with respect to
the activity to be undertaken, the Associate Administrator may deny
emergency processing if timely application could have been made.
(c) A request for emergency processing on the basis of potential
economic loss must reasonably describe and estimate the potential loss.
(d) An application submitted under this section must conform to
Sec. 107.105 to the extent that the receiving U.S. Department of
Transportation official deems necessary to process the application. An
application on an emergency basis must be submitted to the U.S.
Department of Transportation modal contact official for the initial
mode of transportation to be utilized, as follows:
(1) Certificate-Holding Aircraft: The Federal Aviation
Administration Civil Aviation Security Office that serves the place
where the flight will originate or that is responsible for the aircraft
operator's overall aviation security program. The nearest Civil
Aviation Security Office may be located by calling the FAA Duty
Officer, 202-267-3333 (any hour).
(2) Noncertificate-Holding Aircraft (Those Which Operate Under 14
CFR Part 91): The Federal Aviation Administration Civil Aviation
Security Office that serves the place where the flight will originate.
The nearest Civil Aviation Security Office may be located by calling
the FAA Duty Officer, 202-267-3333 (any hour).
(3) Motor Vehicle Transportation: Director, Office of Motor Carrier
Research and Standards, Federal Highway Administration, U.S. Department
of Transportation, Washington, DC 20590-0001, 202-366-4001 (day); 202-
267-2100 (night).
(4) Rail Transportation: Staff Director, Hazardous Materials
Division, Office of Safety Assurance and Compliance, Federal Railroad
Administration, U.S. Department of Transportation, Washington, DC
20590-0001, 202-366-0509 or 366-0523 (day); 202-267-2100 (night).
(5) Water Transportation: Chief, Hazardous Materials Standards
Branch, Operating and Environmental Standards Division, United States
Coast Guard, U.S. Department of Transportation, Washington, DC 20593-
0001, 202-267-1577 (day); 202-267-2100 (night).
(e) On receipt of all information necessary to process the
application, the receiving Department of Transportation official
transmits to the Associate Administrator, by the most rapid available
means of communication, an evaluation as to whether an emergency exists
under Sec. 107.117(a) and, if appropriate, recommendations as to the
conditions to be included in the exemption. If the Associate
Administrator determines that an emergency exists under Sec. 107.117(a)
and that, with reference to the criteria of Sec. 107.113(f), granting
of the application is in the public interest, the Associate
Administrator grants the application subject to such terms as necessary
and immediately notifies the applicant. If the Associate Administrator
determines that an emergency does not exist or that granting of the
application is not in the public interest, the applicant immediately is
so notified.
(f) A determination that an emergency does not exist is not subject
to reconsideration under Sec. 107.123 of this part.
(g) Within 90 days following issuance of an emergency exemption,
the Associate Administrator will publish, in the Federal Register, a
notice of issuance with a statement of the basis for the finding of
emergency and the scope and duration of the exemption.
Sec. 107.121 Modification, suspension or termination of exemption or
grant of party status.
(a) The Associate Administrator may modify an exemption or grant of
party status on finding that--
(1) Modification is necessary so that an exemption reflects current
statutes and regulations; or
(2) Modification is required by changed circumstances to meet the
standards of Sec. 107.113(f).
(b) The Associate Administrator may modify, suspend or terminate an
exemption or grant of party status, as appropriate, on finding that--
(1) Because of a change in circumstances, the exemption or party
status no longer is needed or no longer would be granted if applied
for;
(2) The application contained inaccurate or incomplete information,
and the exemption or party status would not have been granted had the
application been accurate and complete;
(3) The application contained deliberately inaccurate or incomplete
information; or
(4) The holder or party knowingly has violated the terms of the
exemption or an applicable requirement of this chapter, in a manner
demonstrating the holder or party is not fit to conduct the activity
authorized by the exemption.
(c) Except as provided in paragraph (d) of this section, before an
exemption or grant of party status is modified, suspended or
terminated, the Associate Administrator notifies the holder or party in
writing of the proposed action and the reasons for it, and provides an
opportunity to show cause why the proposed action should not be taken.
(1) The holder or party may file a written response that shows
cause why the proposed action should not be taken within 30 days of
receipt of notice of the proposed action.
(2) After considering the holder's or party's written response, or
after 30 days have passed without response since receipt of the notice,
the Associate Administrator notifies the holder or party in writing of
the final decision with a brief statement of reasons.
(d) The Associate Administrator, if necessary to avoid a risk of
significant harm to persons or property, may in the notification
declare the proposed action immediately effective.
Sec. 107.123 Reconsideration.
(a) An applicant for exemption, an exemption holder, or an
applicant for party status to an exemption may request that the
Associate Administrator reconsider a decision under Sec. 107.113(g),
Sec. 107.117(e) or Sec. 107.121(c) of this part. The request must--
(1) Be in writing and filed within 20 days of receipt of the
decision;
(2) State in detail any alleged errors of fact and law;
(3) Enclose any additional information needed to support the
request to reconsider; and
[[Page 21098]]
(4) State in detail the modification of the final decision sought.
(b) The Associate Administrator grants or denies, in whole or in
part, the relief requested and informs the requesting person in writing
of the decision. If necessary to avoid a risk of significant harm to
persons or property, the Associate Administrator may, in the
notification, declare the action immediately effective.
Sec. 107.125 Appeal.
(a) A person who requested reconsideration under Sec. 107.123 and
is denied the relief requested may appeal to the Administrator. The
appeal must--
(1) Be in writing and filed within 30 days of receipt of the
Associate Administrator's decision on reconsideration;
(2) State in detail any alleged errors of fact and law;
(3) Enclose any additional information needed to support the
appeal; and
(4) State in detail the modification of the final decision sought.
(b) The Administrator, if necessary to avoid a risk of significant
harm to persons or property, may declare the Associate Administrator's
action effective pending a decision on appeal.
(c) The Administrator grants or denies, in whole or in part, the
relief requested and informs the appellant in writing of the decision.
The Administrator's decision is the final administrative action.
Sec. 107.127 Availability of documents for public inspection.
(a) Documents related to an application under this subpart,
including the application itself, are available for public inspection,
except as specified in paragraph (b) of this section, at the Office of
the Associate Administrator for Hazardous Materials Safety, Research
and Special Programs Administration, Dockets Unit, U.S. Department of
Transportation, 400 7th Street, SW, Washington, DC 20590-0001, Room
8421. Office hours are 8:30 a.m. to 5:00 p.m., Monday through Friday,
except holidays when the office is closed. Copies of available
documents may be obtained as provided in part 7 of this title.
(b) Documents available for inspection do not include materials
determined to be withheld from public disclosure under Sec. 107.5 and
in accordance with the applicable provisions of section 552(b) of title
5, United States Code, and part 7 of this title.
7. In Sec. 107.201, paragraph (d) is revised to read as follows:
Sec. 107.201 Purpose and scope.
* * * * *
(d) Unless otherwise ordered by the Associate Administrator, an
application for a preemption determination which includes an
application for a waiver of preemption will be treated and processed
solely as an application for a preemption determination.
8. In Sec. 107.202, in paragraph (a), the introductory text is
revised to read as follows:
Sec. 107.202 Standards for determining preemption.
(a) Except as provided in Sec. 107.221 and unless otherwise
authorized by Federal law, any requirement of a State or political
subdivision thereof or an Indian tribe, that concerns one of the
following subjects and that is not substantively the same as any
provision of the Federal hazardous material transportation law, this
subchapter or subchapter C that concerns that subject, is preempted:
* * * * *
Sec. 107.202 Amended]
9. In addition, in Sec. 107.202, in paragraph (b)(3), the wording
``49 U.S.C. 5125 (b) or (c)'' is revised to read ``49 U.S.C. 5125(c)''.
Sec. 107.203 [Amended]
10. In Sec. 107.203, the following changes are made:
a. In paragraph (a), the wording ``a State, political subdivision,
or Indian tribe'' is revised to read ``a State or political subdivision
thereof or an Indian tribe'' each place it appears.
b. In paragraphs (a) and (d), the phrase ``for Hazardous Materials
Safety'' is removed immediately following ``Associate Administrator''
each place it appears.
11. Section 107.205 is revised to read as follows:
Sec. 107.205 Notice.
(a) If the applicant is other than a State, political subdivision,
or Indian tribe, the applicant shall mail a copy of the application to
the State, political subdivision, or Indian tribe concerned accompanied
by a statement that the State, political subdivision, or Indian tribe
may submit comments regarding the application to the Associate
Administrator. The application filed with the Associate Administrator
must include a certification that the applicant has complied with this
paragraph and must include the names and addresses of each State,
political subdivision, or Indian tribe official to whom a copy of the
application was sent.
(b) The Associate Administrator will publish notice of, including
an opportunity to comment on, an application in the Federal Register
and may notify in writing any person readily identifiable as affected
by the outcome of the determination.
(c) Each person submitting written comments to the Associate
Administrator with respect to an application filed under this section
shall send a copy of the comments to the applicant and certify to the
Associate Administrator that he or she has complied with this
requirement. The Associate Administrator may notify other persons
participating in the proceeding of the comments and provide an
opportunity for those other persons to respond. Late-filed comments are
considered so far as practicable.
Sec. 107.207 [Amended]
12. In Sec. 107.207, the following changes are made:
a. In paragraph (a), the wording ``or her'' is added immediately
following the word ``his'' each place it appears.
b. In paragraphs (a) and (b), the wording ``for Hazardous Materials
Safety'' is removed immediately following ``Associate Administrator''
each place it appears.
c. In paragraphs (a) and (b), the wording ``or she'' is added
immediately following the word ``he'' each place it appears.
13. In Sec. 107.209, paragraph (b) is removed, and paragraphs (c),
(d), and (e) are redesignated as paragraphs (b), (c), and (d),
respectively, and newly designated paragraph (c) is revised to read as
follows:
Sec. 107.209 Determination.
* * * * *
(c) The Associate Administrator provides a copy of the
determination to the applicant and to any other person who
substantially participated in the proceeding or requested in comments
to the docket to be notified of the determination. A copy of each
determination is placed on file in the public docket. The Associate
Administrator will publish the determination or notice of the
determination in the Federal Register.
* * * * *
Sec. 107.209 [Amended]
14. In addition, in Sec. 107.209, in paragraphs (a) and (b), the
phrase ``for Hazardous Materials Safety'' is removed following
``Associate Administrator'' each place it appears.
15. In Sec. 107.211, paragraph (a) is revised and a sentence is
added at the end of paragraph (c) to read as follows:
[[Page 21099]]
Sec. 107.211 Petition for reconsideration.
(a) Any person aggrieved by a determination issued under
Sec. 107.209 may file a petition for reconsideration with the Associate
Administrator. The petition must be filed within 20 days of publication
of the determination in the Federal Register.
* * * * *
(c) * * * Late-filed comments are considered so far as practicable.
* * * * *
16. A new Sec. 107.213 is added to read as follows:
Sec. 107.213 Judicial review.
A party to a proceeding under Sec. 107.203(a) may seek review by
the appropriate district court of the United States of a decision of
the Associate Administrator by filing a petition with the court within
60 days after the Associate Administrator's determination becomes
final. The determination becomes final when it is published in the
Federal Register.
Sec. 107.215 [Amended]
17. In Sec. 107.215, in paragraph (a), the phrase ``for Hazardous
Materials Safety'' is removed immediately following ``Associate
Administrator'' each place it appears, and the wording ``State,
political subdivision, or Indian tribe'' is revised to read ``State or
political subdivision thereof or an Indian tribe.''
18. In Sec. 107.217, paragraph (d) is revised to read as follows:
Sec. 107.217 Notice.
* * * * *
(d) The Associate Administrator may notify any other persons who
may be affected by the outcome of a determination on the application.
* * * * *
Sec. 107.217 [Amended]
19. In addition, in Sec. 107.217, in paragraphs (a), (b), (c), and
(e), the phrase ``for Hazardous Materials Safety'' is removed
immediately following the wording ``Associate Administrator'' each
place it appears, and the following sentence is added at the end of
paragraph (c):
* * * * *
(c) * * * Late-filed comments are considered so far as practicable.
Sec. 107.219 [Amended]
20. In Sec. 107.219, the following changes are made:
a. In paragraphs (a), (b), (c), and (d), the phrase ``for Hazardous
Materials Safety'' is removed immediately following the wording
``Associate Administrator'' each place it appears.
b. In paragraphs (a) and (b), the wording ``or she'' is added
immediately following ``he,'' each place it appears, and the wording
``or her'' is added immediately following ``his,'' each place it
appears.
c. In paragraphs (c)(1) and (c)(2), the phrase ``State or political
subdivision'' is revised to read ``State or political subdivision
thereof or Indian tribe'' each place it appears.
21. Section 107.221 is revised to read as follows:
Sec. 107.221 Determination.
(a) After considering the application and other relevant
information received or obtained during the proceeding, the Associate
Administrator issues a determination.
(b) The Associate Administrator may issue a waiver of preemption
only on finding that the requirement of the State or political
subdivision thereof or Indian tribe affords the public a level of
safety at least equal to that afforded by the requirements of the
Federal hazardous material transportation law or the regulations issued
thereunder and does not unreasonably burden commerce. In determining if
the requirement of the State or political subdivision thereof or Indian
tribe unreasonably burdens commerce, the Associate Administrator
considers:
(1) The extent to which increased costs and impairment of
efficiency result from the requirement of the State or political
subdivision thereof or Indian tribe.
(2) Whether the requirement of the State or political subdivision
thereof or Indian tribe has a rational basis.
(3) Whether the requirement of the State or political subdivision
thereof or Indian tribe achieves its stated purpose.
(4) Whether there is need for uniformity with regard to the subject
concerned and if so, whether the requirement of the State or political
subdivision thereof or Indian tribe competes or conflicts with those of
other States or political subdivisions thereof or Indian tribes.
(c) The determination includes a written statement setting forth
relevant facts and legal bases and providing that any person aggrieved
by the determination may file a petition for reconsideration with the
Associate Administrator.
(d) The Associate Administrator provides a copy of the
determination to the applicant and to any other person who
substantially participated in the proceeding or requested in comments
to the docket to be notified of the determination. A copy of the
determination is placed on file in the public docket. The Associate
Administrator will publish the determination or notice of the
determination in the Federal Register.
(e) A determination under this section constitutes an
administrative finding of whether a particular requirement of a State
or political subdivision thereof or Indian tribe is preempted under the
Federal hazardous material transportation law or any regulation issued
thereunder, or whether preemption is waived.
22. In Sec. 107.223, paragraph (a) is revised to read as follows,
and the following sentence is added at the end of paragraph (c):
Sec. 107.223 Petition for reconsideration.
(a) Any person aggrieved by a determination under Sec. 107.221 may
file a petition for reconsideration with the Associate Administrator.
The petition must be filed within 20 days of publication of the
determination in the Federal Register.
* * * * *
(c) * * * Late-filed comments are considered so far as practicable.
23. Section 107.227 is revised to read as follows:
Sec. 107.227 Judicial review.
A party to a proceeding under Sec. 107.215(a) may seek review by
the appropriate district court of the United States of a decision of
the Associate Administrator by filing a petition with the court within
60 days after the Associate Administrator's determination becomes
final. The determination becomes final when it is published in the
Federal Register.
Sec. 107.299 [Removed]
24. Section 107.299 is removed.
25. 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, also known as
``hazmat inspectors'' or ``inspectors,'' whom the Associate
Administrator has designated for that purpose.
(1) An inspector will, on request, present his or her credentials
for examination, but the credentials may not be reproduced.
(2) An inspector may administer oaths and receive affirmations in
any matter under investigation by the Associate Administrator.
[[Page 21100]]
(3) An inspector 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, Research and Special Programs Administration, an inspector
may issue a subpoena for the production of documentary or other
tangible evidence if, on the basis of information available to the
inspector, 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. 107.13 (c) and
(d). 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. 107.13(h). A subpoena issued under this paragraph may be enforced
in accordance with Sec. 107.13(i).
* * * * *
Sec. 107.315 [Amended]
26. In Sec. 107.315, in paragraphs (c) and (d), the last sentence
is removed.
27. In Sec. 107.331, the introductory paragraph and paragraph (d)
are revised to read as follows:
Sec. 107.331 Assessment considerations.
After finding a knowing violation under this subpart, the Office of
Chief Counsel assesses a civil penalty taking the following into
account:
* * * * *
(d) The respondent's prior violations;
* * * * *
28. A new subpart H of part 107 is added to read as follows:
Subpart H--Approvals, Registrations and Submissions
Sec.
107.701 Purpose and scope.
107.705 Registrations, reports, and applications for approval.
107.709 Processing of an application for approval, including an
application for renewal or modification.
107.711 Withdrawal.
107.713 Approval modification, suspension or termination.
107.715 Reconsideration.
107.717 Appeal.
Sec. 107.701 Purpose and scope.
This subpart prescribes procedures for the issuance, modification
and termination of approvals, and the submission of registrations and
reports, as required by this chapter.
(b) The procedures of this subpart are in addition to any
requirements in subchapter C of this chapter applicable to a specific
approval, registration or report. If compliance with both a specific
requirement of subchapter C of this chapter and a procedure of this
subpart is not possible, the specific requirement applies.
(c) Registration under subpart F or G of this part is not subject
to the procedures of this subpart.
Sec. 107.705 Registrations, reports, and applications for approval.
(a) A person filing a registration, report, or application for an
approval, or a renewal or modification of an approval subject to the
provisions of this subpart must--
(1) File the registration, report, or application with the
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration, U.S. Department of Transportation, 400
7th Street, SW, Washington, DC 20590-0001, Attention: Approvals, DHM-
32;
(2) Identify the section of the chapter under which the
registration, report, or application is made;
(3) If a report is required by an approval, a registration or an
exemption, identify the approval, registration or exemption number;
(4) Provide the name, street, mailing address, and telephone number
of the person on whose behalf the registration, report, or application
is made and, if different, the person making the filing;
(5) If the person on whose behalf the filing is made is not a
resident of the United States, provide a designation of agent for
service in accordance with Sec. 107.7;
(6) Provide a description of the activity for which the
registration or report is required; and
(7) Provide additional information as requested by the Associate
Administrator, if the Associate Administrator determines that a filing
lacks pertinent information or otherwise does not comply with
applicable requirements.
(b) In addition to the provisions in paragraph (a) for an approval,
an application for an approval, or an application for modification or
renewal of an approval, the applicant must provide--
(1) A description of the activity for which the approval is
required;
(2) The proposed duration of the approval;
(3) The transport mode or modes affected, as applicable;
(4) Any additional information specified in the section containing
the approval; and
(5) For an approval which provides exceptions from regulatory
requirements or prohibitions--
(i) Identification of any increased risk to safety or property that
may result if the approval is granted, and specification of the
measures that the applicant considers necessary or appropriate to
address that risk; and
(ii) Substantiation, with applicable analyses or evaluations, if
appropriate, demonstrating that the proposed activity will achieve a
level of safety that is at least equal to that required by the
regulation.
(c) For an approval with an expiration date, each application for
renewal or modification must be filed in the same manner as an original
application. If a complete and conforming renewal application is filed
at least 60 days before the expiration date of an approval, the
Associate Administrator, on written request from the applicant, will
issue a written extension to permit operation under the terms of the
expired approval until a final decision on the application for renewal
has been made. Operation under an expired approval is prohibited absent
a written extension. This paragraph does not limit the authority of the
Associate Administrator to modify, suspend or terminate an approval
under Sec. 107.713.
(d) To request confidential treatment for information contained in
the application, the applicant shall comply with Sec. 107.5(a).
Sec. 107.709 Processing of an application for approval, including an
application for renewal or modification.
(a) No public hearing or other formal proceeding is required under
this subpart before the disposition of an application.
(b) At any time during the processing of an application, the
Associate Administrator may request additional information from the
applicant. If the applicant does not respond to a written request for
additional information within 30 days of the date the request was
received, the application may be deemed incomplete and denied. However,
if the applicant responds in writing within the 30-day period
requesting an additional 30 days within which it will gather the
requested information, the Associate Administrator may grant the 30-day
extension.
(c) The Associate Administrator may grant or deny an application,
in whole or in part. At the Associate Administrator's discretion, an
application may be granted subject to provisions that are appropriate
to protect health, safety and property. The Associate Administrator may
impose additional provisions not specified in
[[Page 21101]]
the application, or delete conditions in the application which are
unnecessary.
(d) The Associate Administrator may grant an application on finding
that--
(1) The application complies with this subpart;
(2) The application demonstrates that the proposed activity will
achieve a level of safety that--
(i) Is at least equal to that required by the regulation, or
(ii) If the regulations do not establish a level of safety, is
consistent with the public interest and adequately will protect against
the risks to life and property inherent in the transportation of
hazardous materials in commerce;
(3) The application states all material facts, and contains no
materially false or materially misleading statement;
(4) The applicant meets the qualifications required by applicable
regulations; and
(5) The applicant is fit to conduct the activity authorized by the
approval, or renewal or modification of approval. This assessment may
be based on information in the application, prior compliance history of
the applicant, and other information available to the Associate
Administrator.
(e) Unless otherwise specified in this chapter or by the Associate
Administrator, an approval in which a term is not specified does not
expire.
(f) The Associate Administrator notifies the applicant in writing
of the decision on the application. A denial contains a brief statement
of reasons.
Sec. 107.711 Withdrawal.
An application may be withdrawn at any time before a decision to
grant or deny it is made. Withdrawal of an application does not
authorize the removal of any related records from the RSPA dockets or
files. Applications that are eligible for confidential treatment under
Sec. 107.5 will remain confidential after the application is withdrawn.
The duration of this confidential treatment for trade secrets and
commercial or financial information is indefinite, unless the party
requesting the confidential treatment of the materials notifies the
Associate Administrator that the confidential treatment is no longer
required.
Sec. 107.713 Approval modification, suspension or termination.
(a) The Associate Administrator may modify an approval on finding
that--
(1) Modification is necessary to conform an existing approval to
relevant statutes and regulations as they may be amended from time to
time; or
(2) Modification is required by changed circumstances to enable the
approval to continue to meet the standards of Sec. 107.709(d).
(b) The Associate Administrator may modify, suspend or terminate an
approval, as appropriate, on finding that--
(1) Because of a change in circumstances, the approval no longer is
needed or no longer would be granted if applied for;
(2) The application contained inaccurate or incomplete information,
and the approval would not have been granted had the application been
accurate and complete;
(3) The application contained deliberately inaccurate or incomplete
information; or
(4) The holder knowingly has violated the terms of the approval or
an applicable requirement of this chapter in a manner demonstrating
lack of fitness to conduct the activity for which the approval is
required.
(c) Except as provided in paragraph (d) of this section, before an
approval is modified, suspended or terminated, the Associate
Administrator notifies the holder in writing of the proposed action and
the reasons for it, and provides an opportunity to show cause why the
proposed action should not be taken.
(1) The holder may file a written response with the Associate
Administrator within 30 days of receipt of notice of the proposed
action.
(2) After considering the holder's or party's written response, or
after 30 days have passed without response since receipt of the notice,
the Associate Administrator notifies the holder in writing of the final
decision with a brief statement of reasons.
(d) The Associate Administrator, if necessary to avoid a risk of
significant harm to persons or property, may in the notification
declare the proposed action immediately effective.
Sec. 107.715 Reconsideration.
(a) An applicant or a holder may request that the Associate
Administrator reconsider a decision under Sec. 107.709(f) or
Sec. 107.713(c). The request must:
(1) Be in writing and filed within 20 days of receipt of the
decision;
(2) State in detail any alleged errors of fact and law;
(3) Enclose any additional information needed to support the
request to reconsider; and
(4) State in detail the modification of the final decision sought.
(b) The Associate Administrator considers newly submitted
information on a showing that the information could not reasonably have
been submitted during application processing.
(c) The Associate Administrator grants or denies, in whole or in
part, the relief requested and informs the requesting person in writing
of the decision.
Sec. 107.717 Appeal.
(a) A person who requested reconsideration under Sec. 107.715 may
appeal to the Administrator the Associate Administrator's decision on
the request. The appeal must:
(1) Be in writing and filed within 30 days of receipt of the
Associate Administrator's decision on reconsideration;
(2) State in detail any alleged errors of fact and law;
(3) Enclose any additional information needed to support the
appeal; and
(4) State in detail the modification of the final decision sought.
(b) The Administrator, if necessary to avoid a risk of significant
harm to persons or property, may declare the Associate Administrator's
action effective pending a decision on appeal.
(c) The Administrator grants or denies, in whole or in part, the
relief requested and informs the appellant in writing of the decision
on appeal. The Administrator's decision on appeal is the final
administrative action.
PART 171--GENERAL INFORMATION, REGULATIONS, AND DEFINITIONS
29. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 171.1 [Amended]
30. In Sec. 171.1, in the introductory text of paragraph (a), the
wording ``in commerce'' is added immediately following the wording
``materials'' and preceding ``by''.
31. Also in Sec. 171.1, a new paragraph (d) is added to read as
follows:
Sec. 171.1 Purpose and scope.
* * * * *
(d) The use of terms and symbols prescribed in this subchapter for
the marking, labeling, placarding and description of hazardous
materials and packagings used in their transport.
32. In Sec. 171.2, paragraphs (a), (b), (c) and (d) are revised and
a new paragraph (h) is added to read as follows:
Sec. 171.2 General requirements.
(a) No person may offer or accept a hazardous material for
transportation in commerce unless that person is registered in
conformance with subpart G of part 107 of this chapter, if applicable,
and the hazardous material is properly classed, described, packaged,
marked, labeled, and in
[[Page 21102]]
condition for shipment as required or authorized by applicable
requirements of this subchapter, or an exemption, approval or
registration issued under this subchapter or subchapter A of this
chapter.
(b) No person may transport a hazardous material in commerce unless
that person is registered in conformance with subpart G of part 107 of
this chapter, if applicable, and the hazardous material is handled and
transported in accordance with applicable requirements of this
subchapter, or an exemption, approval or registration issued under this
subchapter or subchapter A of this chapter.
(c) No person may represent, mark, certify, sell, or offer a
packaging or container as meeting the requirements of this subchapter
or an exemption, approval or registration issued under this subchapter
or subchapter A of this chapter, governing its use in the
transportation in commerce of a hazardous material, whether or not it
is used or intended to be used for the transportation of a hazardous
material, unless the packaging or container is manufactured,
fabricated, marked, maintained, reconditioned, repaired and retested,
as appropriate, in accordance with applicable requirements of this
subchapter, or an exemption, approval or registration issued under this
subchapter or subchapter A of this chapter.
(d) The representations, markings, and certifications subject to
the prohibitions of paragraph (c) of this section include, but are not
limited to--
(1) Specification identifications that include the letters ``ICC,''
``DOT,'' ``MC,'' or ``UN'';
(2) Exemption, approval, and registration numbers that include the
letters ``DOT,'' ``EX,'' ``M,'' or ``R''; and
(3) Test dates associated with specification, registration,
approval, retest or exemption markings indicating compliance with a
test or retest requirement of this subchapter, or an exemption, an
approval or a registration issued under this subchapter or subchapter A
of this chapter.
* * * * *
(h) No person shall--
(1) Falsify or alter an exemption, approval, registration or other
grant of authority issued under this subchapter or subchapter A of this
chapter; or
(2) Offer a hazardous material for transportation or transport a
hazardous material in commerce, or represent, mark, certify, or sell a
packaging or container, under a false or altered exemption, approval,
registration or other grant of authority issued under this subchapter
or subchapter A of this chapter.
Sec. 171.3 [Amended]
33. In Sec. 171.3, paragraph (c) and the Note are removed, and
paragraph (d) is redesignated as paragraph (c).
34. In Sec. 171.8, the definitions of ``Approval'' and
``Exemption'' are added in alphabetical order and the definition of
``Person'' is revised to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Approval means a written authorization, including a competent
authority approval, from the Associate Administrator to perform a
function for which prior authorization by the Associate Administrator
is required under subchapter C of this chapter.
* * * * *
Exemption means a document issued under the authority of 49 U.S.C.
5117 by the Associate Administrator that authorizes a person to perform
a function that is not otherwise authorized under this subchapter,
subchapter C, or other regulations issued under 49 U.S.C. 5101-5127
(e.g., Federal Highway Administration routing).
* * * * *
Person means an individual, firm, copartnership, corporation,
company, association, joint-stock association, including any trustee,
receiver, assignee, or similar representative thereof; or government,
Indian tribe, or agency or instrumentality of any government or Indian
tribe when it offers hazardous material for transportation in commerce
or transports hazardous material to further a commercial enterprise,
but such term does not include:
(1) The United States Postal Service;
(2) For the purposes of 49 U.S.C. 5123 and 5124, any agency or
instrumentality of the Federal Government.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
35. The authority citation for Part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
36. In Sec. 173.22a, a new paragraph (c) is added to read as
follows:
Sec. 173.22a Use of packagings authorized under exemptions.
* * * * *
(c) When an exemption issued to a person who offers a hazardous
material contains requirements that apply to a carrier of the hazardous
material, the offeror shall furnish a copy of the exemption to the
carrier before or at the time a shipment is tendered. When the
provisions of the exemption require it to be in the possession of a
carrier during transportation in commerce, the carrier shall maintain
the copy of the exemption in the same manner as required for a shipping
paper.
PART 178--SPECIFICATIONS FOR PACKAGINGS
37. The authority citation for Part 178 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
38. In Sec. 178.3, a new paragraph (d) is added to read as follows:
Sec. 178.3 Marking of packagings.
* * * * *
(d) No person may mark or otherwise certify a packaging or
container as meeting the requirements of a manufacturing exemption
unless that person is the holder of or a party to that exemption, an
agent of the holder or party for the purpose of marking or
certification, or a third party tester.
Issued in Washington, DC on May 2, 1996, under authority
delegated in 49 CFR part 1.
Rose A. McMurray,
Acting Deputy Administrator, Research and Special Programs
Administration.
[FR Doc. 96-11400 Filed 5-8-96; 8:45 am]
BILLING CODE 4910-60-P
