[Federal Register Volume 63, Number 132 (Friday, July 10, 1998)]
[Rules and Regulations]
[Pages 37454-37463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18060]
[[Page 37453]]
_______________________________________________________________________
Part II
Department of Transportation
_______________________________________________________________________
Research and Special Programs Administration
_______________________________________________________________________
49 CFR Part 171, et al.
Transportation of Hazardous Materials; Miscellaneous Amendments; Final
Rule
Federal Register / Vol. 63, No. 132 / Friday, July 10, 1998 / Rules
and Regulations
[[Page 37454]]
DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 171, 172, 173, 175, 177, 178 and 180
[Docket No. RSPA-97-2905 (HM-166Y)]
RIN 2137-AC41
Transportation of Hazardous Materials; Miscellaneous Amendments
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the Hazardous Materials Regulations
(HMR) by incorporating miscellaneous changes based on petitions for
rulemaking and RSPA initiative. This action is necessary to improve
safety and to respond to petitions for rulemaking. The intended effect
of these regulatory changes is to update, clarify or provide relief
from certain regulatory requirements.
DATES: Effective: The effective date of these amendments is October 1,
1998.
Compliance: Compliance with the regulations, as amended herein, is
authorized after August 24, 1998.
Incorporation by reference: The incorporation by reference of a
publication listed in this final rule is approved by the Director of
the Federal Register as of October 1, 1998.
FOR FURTHER INFORMATION CONTACT: Joan McIntyre, Office of Hazardous
Materials Standards, Research and Special Programs Administration, U.S.
Department of Transportation, 400 Seventh Street, SW., Washington, DC
20590-0001, telephone (202) 366-8553.
SUPPLEMENTARY INFORMATION:
I. Background
On March 4, 1995, the President directed Federal agencies to
perform an extensive review of all agency regulations and eliminate or
revise those requirements that are outdated or in need of reform. This
final rule is consistent with the goals of the President's Regulatory
Reinvention Initiative. In a continuing effort to review the HMR for
necessary revisions, RSPA is eliminating, revising, clarifying and
relaxing certain regulatory requirements in this final rule. On
September 24, 1997, RSPA issued a notice of proposed rulemaking (NPRM)
under Docket RSPA-97-2905 (HM-166Y) (62 FR 50222). The NPRM proposed a
number of miscellaneous changes to the HMR, designed primarily to
reduce regulatory burdens on industry by incorporating changes into the
HMR based on RSPA's own initiative and petitions for rulemaking,
submitted in accordance with 49 CFR 106.31. The NPRM contained
information concerning each proposal and invited public comment.
Readers should refer to the NPRM for additional background discussion.
RSPA received about 20 comments in response to the NPRM. These
comments were submitted by representatives of trade associations,
hazardous materials consulting firms, chemical manufacturers, a testing
and manufacturing laboratory and an air carrier. The commenters
expressed support for various proposals, but several raised concerns
about certain provisions in the proposals that are discussed below. One
commenter requested amendments to the HMR other than those proposed as
part of this initiative; the commenter's letter was accepted as a
petition for rulemaking under 49 CFR 106.31.
II. Summary of Regulatory Changes by Section
The following is a section-by-section summary of changes and, where
applicable, a discussion of comments received.
Part 171
Section 171.7
Based on a petition for rulemaking from the Association of American
Railroads (AAR) (P-1315), RSPA proposed to update the incorporation by
reference of the AAR manual, ``AAR Manual of Standards and Recommended
Practices, Section C-Part III, Specifications for Tank Cars,
Specification M-1002,'' from the 1992 edition to the 1996 edition. RSPA
and the Federal Railroad Administration (FRA) reviewed the referenced
requirements in the 1996 manual and agree that the changes will enhance
public safety. Therefore, RSPA is incorporating the 1996 edition by
reference.
However, Sec. 173.31(b)(5) provides for tank cars modified with
bottom discontinuity protection before July 1, 1996, to conform to the
requirements of Appendix Y of the 1992 edition of the AAR manual.
Appendix Y of the 1996 edition of the AAR manual is under review by an
industry task group, of which FRA is a member, and will be revised when
the group's task is complete. Until completion of that review, RSPA
also is retaining its incorporation by reference of the 1992 edition
with a corresponding reference to Sec. 173.31.
Section 171.8
In the NPRM, RSPA proposed to add a definition for ``self-defense
spray'' to correspond with the proposed new entry, ``Self-defense
sprays, non-pressurized, containing not more than 2 percent tear gas
substances,'' Class 9, that would be added in the Sec. 172.101
Hazardous Materials Table (HMT). Two commenters suggested that RSPA add
descriptive information in the definition. The Air Line Pilots
Association (ALPA) suggested adding, as an example, the commonly used
term, ``pepper spray,'' as part of the definition. The other commenter,
the Association of Defense Spray Manufacturers (ADSM) suggested that
RSPA either add the words ``containing not more than two percent tear
gas or ten percent oleoresin capsicum'' in the proposed definition or
consider capsaicin (the primary capsaicinoid present in oleoresin
capsicum) to be a tear gas substance and disregard the percentage of
oleoresin capsicum. ADSM stated that not all pepper sprays list the
capsicum content on the label and some sprays are labeled as a higher
percentage active ingredient. Although oleoresin capsicum is the active
ingredient in pepper sprays, RSPA is concerned that limiting the
definition or shipping description to oleoresin capsicum would exclude
other active ingredients that may be under development for use in self-
defense sprays in the future. Therefore, RSPA is revising the
definition to state that for self-defense sprays the two percent by
mass limitation applies only to tear gas substances (such as
chloroacetephenone), but not to other sprays such as (pepper sprays).
The definition of ``Marine pollutant'' is revised by adding a
reference to Sec. 171.4, which contains certain exceptions for marine
pollutants. Adding the reference responds to a petitioner (P-1256) who
stated that these exceptions are often overlooked.
Section 171.18
Section 171.18 is amended to remove an obsolete section concerning
registrations filed with the Bureau of Explosives (BOE).
Section 171.19
RSPA is revising Sec. 171.19 by terminating all remaining BOE
approvals, other than those made under approval provisions in Part 179.
The majority of BOE approvals have been converted to approvals issued
by the Associate Administrator for Hazardous Materials Safety (AAHMS).
RSPA believes that any remaining BOE
[[Page 37455]]
approvals, other than those applying to Part 179 requirements, are
obsolete. Any person holding a BOE approval who is affected by this
termination may apply for a new approval by the AAHMS.
Part 172
Section 172.101
RSPA is adding three new entries and revising eight existing
entries to the HMT.
The three new entries are ``Pepper spray, see Aerosols, etc. or
Self-defense spray, non-pressurized,'' ``Self-defense spray, see
Aerosols,etc.'' and ``Self-defense spray, non-pressurized.'' Because
``not more than two percent by mass of a tear gas substance'' is
specified in the definition of ``self-defense spray,'' the phrase is
not needed as part of the proper shipping names and RSPA is removing it
from the proper shipping names in this final rule. These entries
clarify that both the aerosol and non-aerosol self-defense sprays are
subject to the regulations. Related changes are made to Sec. 171.8 by
adding a definition of ``self-defense spray,'' to Sec. 172.102 by
adding a new special provision A37 for the entry, ``Self-defense spray,
non-pressurized,'' and to Sec. 175.10.
The entries, ``Corrosive solids, water-reactive, n.o.s.'' (UN3096)
and ``Water-reactive solid, corrosive, n.o.s.'' (UN3131) are corrected
by removing Special Provision 128 for Packing Groups II and III. For
the entry, ``Aluminum smelting by-products or Aluminum remelting by-
products'' (UN3170), Special Provision 128, containing a hazard
communication requirement, is added for Packing Groups II and III.
The entry, ``Detonators, non-electric for blasting,'' UN0455 in
Column (8A), is corrected by removing the erroneous reference ``none''
in the packaging exceptions column to read ``63(f), 63(g).''
RSPA proposed to amend the entry ``Trifluoroacetyl chloride'' by
adding Special Provision ``B7'' to Column (7), in response to a
petition for rulemaking (P-1254). Special Provision B7 states that
safety relief devices are not authorized on multi-unit tank car tanks.
The openings for the safety relief devices must be plugged or blank
flanged. After publication of the NPRM, another petitioner (P-1329)
requested that RSPA add Special Provision B7 for the entries,
``Dimethylhydrazine, unsymmetrical,'' ``Hydrazine, anhydrous or
Hydrazine aqueous solutions with more than 64 percent hydrazine, by
mass.'' and ``Methylhydrazine.'' The petitioner stated that it is the
sole producer of these materials and pointed out that safe shipping
experience has been established through DOT exemptions, DOT-E 11200 and
DOT-E 11490, which authorize the shipment of hydrazine materials in
multi-unit tank car tanks without relief devices. The petitioner also
sponsored a risk analysis that focused on the transportation of
propellants that are toxic and the risks associated with those
materials when transported in multi-unit tank car tanks equipped with
or without safety relief devices. The results of the analysis
determined that there is an increased likelihood of the release of
toxic materials when a relief device is present. The petitioner
submitted similar comments in response to the NPRM. RSPA has studied
the risk analysis prepared by the University of Central Florida and
finds it to be credible. RSPA also has determined that the three
additional materials described on the petition are similar in nature to
``Trifluoroacetyl chloride.'' Because of the safe shipping history of
the hydrazine products in multi-unit tank car tanks without relief
devices under the exemptions, their similarity to ``Trifluoroacetyl
chloride,'' and the analysis's conclusions that these materials can be
safely shipped in multi-unit tank car tanks without relief devices,
RSPA agrees with the petitioner that these materials warrant the same
provision as for ``Trifluoroacetyl chloride.'' Therefore, the four
entries, ``Trifluoroacetyl chloride,'' ``Dimethylhydrazine,
unsymmetrical,'' ``Hydrazine, anhydrous `` and ``Methylhydrazine'' are
amended by adding Special Provision ``B7.''
Section 172.102
Special Provision 128 is corrected to provide that aluminum
smelting by-products and aluminum remelting by-products meeting the
definition of Class 8, Packing Groups II and III may also be classified
in Division 4.3 and transported under ``Aluminum smelting by-products
or Aluminum remelting by-products.'' An editorial revision is also made
to the special provision to clarify that, when classified as Division
4.3, the Class 8 must be communicated as a subsidiary risk hazard.
Section 173.32c
RSPA is revising paragraph (j) to allow monolithic (non-flowable)
solid materials to be loaded into IM portable tanks to a filling
density of less than 80 percent by volume. Paragraph (j) currently
specifies that an IM portable tank, or compartment thereof, having a
volume greater than 7,500 liters may not be loaded to a filling density
less than 80 percent by volume. The former requirement was intended to
cover liquid and flowable solid hazardous materials in order to
minimize the risk of accidents resulting from the sloshing and shifting
of the center of gravity. A monolithic solid material which conforms to
the tank geometry, such that the shifting of the center of gravity is
not possible, can be safely transported in an IM portable tank at a
filling density of less than 80 percent by volume.
In addition, a new sentence is added to paragraph (m) which
contains the reference to Sec. 177.834(h) for unloading of an IM
portable tank.
Section 173.40
Paragraph (d)(1) is revised to clarify that a strong outside box,
used to provide protection for a thin-walled cylinder or a cylinder
equipped with a valve, does not need to be made to a specific UN
standard. This change is consistent with similar provisions in
Sec. 173.301(g)(2) and (k) that permit a non-specification box to be
used for protection of the cylinder or valve.
Section 173.56
In the NPRM, RSPA proposed to broaden the provisions in
Sec. 173.56(b)(1) for persons who receive approval to examine and
assign recommended shipping names, divisions and compatibility groups
for new explosives. The proposal stated that the person applying for
the approval must meet the following criteria: (1) Is not be controlled
by, or financially dependent upon, any entity that manufactures or
markets explosives; (2) Does not perform any type of work in the
explosives industry other than testing for determination of hazard
class or performance; (3) Either has, or employs a person who has, at
least ten years' experience in the examination, testing and evaluation
of explosives; and (4) Is a resident of the United States.
One commenter contended that the proposed criterion to exclude
explosives manufacturers was overly restrictive and stated that
provisions should be similar to those in Sec. 173.56(j), which allows
manufacturers of Class 1.4 fireworks to classify their own items.
However, another commenter stated that the proposed criterion should be
more restrictive, stating that the criterion would permit the approval
of too many persons and, thereby, render the activity economically
infeasible.
RSPA disagrees with both commenters. First, under Sec. 173.56(j),
fireworks manufacturers are permitted to classify their own items
provided the
[[Page 37456]]
items' chemical compositions conform to the parameters prescribed in
the American Pyrotechnics Association's (APA) Standard for Construction
of Fireworks. These chemical compositions identified in the APA
standard have been used for over 50 years and their safety and
stability are well known. They also have a proven transportation safety
record. A similar situation does not apply to other types of
explosives. Second, the proposed criterion provides for the approval of
persons who have the prescribed experience in the examination, testing
and evaluation of explosives. RSPA does not believe a limitation on the
number of qualified persons who are approved to perform this function
should be imposed by RSPA. Therefore, RSPA is adopting the provisions
as proposed.
Also, as proposed in the NPRM, RSPA is revising paragraph (i) to
provide for RSPA to classify a material or device without a prior
examination when adequate data is available.
Section 173.156
RSPA is revising paragraph (b)(1) to clarify that the package
markings specified in subpart D of part 172 do not apply to cages,
carts, boxes or similar overpacks containing ORM-D materials that are
offered for transportation or transported according to
Sec. 173.156(b)(1).
Section 173.308.
RSPA is revising paragraph (b) to clarify that when transporting up
to 1,500 cigarette lighters on one motor vehicle by highway, the only
part 172 provisions that do not apply are the hazard communication
requirements in subparts C through G (i.e., shipping papers, marking,
labeling, placarding, emergency response information) and the training
requirements in subpart H. Special Provision N10 applies. RSPA also is
revising paragraph (b) to require that the outer packaging be marked to
identify the total number of devices contained in the package.
Section 173.469
In paragraph (a)(4)(i), the value of 1.3 x 10 -24 is
amended to read 1.3 x 10 -4 in order to correct a printing
error.
Part 175
Section 175.10
RSPA proposed to permit one self-defense device, not exceeding 118
ml (4 fluid ounces), per passenger, in checked baggage, provided the
device incorporates a positive means to prevent accidental discharge.
The Air Line Pilots Association (ALPA) supported the proposal to
regulate self-defense spray devices but stated: ``We also re-affirm our
opposition to hazardous material items that are considered weapons of
self-defense to be carried by passengers on their person, placed in
carry-on baggage, or placed in checked baggage. We maintain this
position, in part, because these items could potentially be used in a
threatening manner and subsequent release that would be debilitating to
the passengers and crew. Additionally, our concern includes that there
is no way to inspect or determine, prior to a release or incident, if
the positive means (safety device) referenced in new [proposed]
paragraph Sec. 175.10(a)(4)(ii) is operable and in place to prevent
accidental discharge and release of the contents, specifically with
reference to the aerosols.''
In a few cases, self-defense sprays have been discovered in
passengers' carry-on luggage after the devices were accidentally
initiated. These situations were effectively mitigated by flight crews
and investigated by Federal Aviation Administration (FAA) personnel.
FAA is unaware of any reported cases of self-defense sprays, packed in
checked baggage, initiating in flight and causing discomfort to
passengers or crew. Therefore, RSPA is revising paragraph (a)(4) to
clarify that all types of self-defense sprays are prohibited from being
transported by air in a passenger compartment, either on one's person
or in carry-on baggage. However, RSPA is permitting one self-defense
device to be carried in checked baggage.
An air carrier expressed its support for the proposal but stated
that it had a general concern that RSPA's statement in the preamble
discussion to the Sec. 172.101 HMT in the NPRM, characterizing mace and
pepper sprays as a ``deadly or dangerous weapon,'' could be
misconstrued. The air carrier requested that RSPA clarify that the
responsibility of the air carrier is to post warning signs, such as
required by proposed Sec. 175.25, or otherwise notify the passenger of
the regulations, and not to conduct questioning of passengers or
searching of baggage for these items. RSPA did not intend in the
preamble of the NPRM to imply that air carriers or airport personnel
would be required to implement additional controls to screen each
passenger or each passenger's baggage.
In addition, this section is revised to clarify that the quantity
limits in paragraphs (a)(4)(i) and (a)(4)(ii) apply to both medicinal
and toilet articles and to Division 2.2 aerosols for sporting or home
use. This section also is editorially revised to make it easier to read
and use.
Section 175.25
Paragraph (a) requires that aircraft operators display notices
warning passengers against carrying undeclared hazardous materials
aboard aircraft, in either their luggage or on their persons. As
proposed in the NPRM, RSPA is revising the language used in the notice
to reflect changes in the statutory citation and penalties. A new
paragraph (a) is added to allow aircraft operators to display existing
notices containing the obsolete language until January 1, 2002.
In addition, based on RSPA and FAA initiative, RSPA is making four
other non-substantive changes that provide greater carrier flexibility.
First, the introductory language to paragraph (a)(1) is revised to
read: ``At a minimum, each notice must communicate the following
information:''. Second, the wording in current paragraph (a)(3) is
revised to permit additional information, examples, or illustration, if
not inconsistent with the required wording. These changes are
consistent with the introductory language in Sec. 175.26(a) and permit
the specified information to be conveyed to the public while leaving
the format for presenting the information, such as the use of graphics,
to air carriers' discretion. Third, paragraph (a)(2)(i) is revised to
permit posters displayed by U.S. air carriers to have information
printed in other languages, in addition to the required English. This
wording facilitates communication of the required information to non-
English speaking passengers and is consistent with Sec. 175.26(b)(1).
Fourth, paragraph (a)(2)(ii) is revised to require that the lettering
for only the first paragraph of the notice be at least 0.4 inch in
height and the lettering for all other paragraphs be at least 0.2 inch
in height. The reduction of the lettering size will allow more space
for other information, such as graphics.
Finally, as proposed, the quantity limit reference also is
corrected for medicinal and toilet articles carried in a passenger's
luggage to read 70 ounces for consistency with the exception provided
in Sec. 175.10(a)(4)(i).
Section 175.26
This section requires each person who engages in the acceptance or
transport of cargo for transportation by aircraft to display a notice,
to persons offering such cargo, of the applicable requirements for
hazardous materials aboard aircraft. RSPA is amending the wording
required in the notice to state that a violation can result in five
years' imprisonment and penalties of $250,000
[[Page 37457]]
or more (49 U.S.C. 5124). In addition, a new paragraph (a)(4) is added
to allow each person who accepts or transports cargo for transportation
by aircraft to display existing notices containing the obsolete
language until January 1, 2002.
Part 177
Section 177.834
RSPA proposed to relax a provision in paragraph (h) to permit an IM
portable tank to be unloaded while remaining on a transport vehicle
with the power unit attached, provided the tank meets the outlet
requirements in Sec. 178.345-11 and is attended during the unloading,
as currently required for cargo tank motor vehicles under
Sec. 177.834(i). Section 178.345-11(b)(1)(iii) provides that the remote
means of closure for the stop valve on a cargo tank must be capable of
thermal activation when required by Part 173 for materials which are
flammable, pyrophoric, oxidizing, or poisonous liquids. Three
commenters stated that many IM portable tanks are not fitted with
outlet valves meeting this requirement. They stated that RSPA should
allow sufficient time for valve manufacturers to develop a valve system
that works with a fusible link for installation on new IM portable
tanks and that all existing IM portable tanks should be excepted from
the valve requirement. One of the commenters, the Chemical
Manufacturers Association, stated that the redesign of a proven cargo
handling system and the retrofit of existing portable tanks to provide
for thermal activation capability would be both expensive and
disruptive of commerce because tanks would have to be removed from
service.
RSPA disagrees with the commenters. The tank outlets are required
to be equipped with this feature to ensure that the valve closes in a
fire situation. Cargo tanks have been required to have this feature for
many years. RSPA believes that when an IM portable tank is used in the
same manner as a cargo tank it should have the same level of safety in
the event the operator cannot manually operate the closure. RSPA
received no comments on the proposal from valve manufacturers.
A fourth commenter, the National Tank Truck Carriers, Inc. (NTTC),
stated that the proposed amendment will increase the use of IM portable
tanks for transporting hazardous materials, nationwide. Therefore, IM
portable tanks, when operating as cargo tanks, should be subject to all
safety requirements paralleling those of traditional cargo tank motor
vehicles, including emergency shut-down equipment, fusible and/or
frangible device, etc., and, in addition, the requalification
requirements contained in Part 180.
NTTC also stated that RSPA should specify the types of motor
vehicle chassis, or securement devices, to use for IM portable tanks.
NTTC stated that, with the types of trailers ranging from special
``container only'' chassis to equipment, such as, so-called ``goose-
neck'' trailers, drop frame trailers and the conventional ``flat bed''
units, container securement is not adequately addressed in the Federal
Motor Carrier Safety Regulations (49 CFR 393.100 et. seq.).
RSPA disagrees with NTTC that these IM portable tanks should meet
the cargo tank requalification requirements in subpart E of Part 180
and that additional securements should apply to them. RSPA received no
specific data indicating that the current requirements are inadequate.
RSPA will continue to monitor the transportation experience of these
tanks to determine if there may be a need to revise the securement
requirements in a future rulemaking action.
Several commenters stated that the proposal to permit on-vehicle
unloading of IM portable tanks should also apply to loading and pointed
out RSPA's comment in the preamble that ``portable tanks are not
intended to be filled or emptied while attached to a transport vehicle
or a ship during transportation.'' The statement in the NPRM was in
error. RSPA intended to say that portable tanks may not be emptied
while remaining on a transport vehicle with the motive power attached
during transportation. The restriction contained in the next-to-last
sentence of current paragraph (h) does not apply to loading. Therefore,
the comments are beyond the scope of this rulemaking.
Another commenter stated that the cargo tank attendance rule in
paragraph (i)(3) is ``onerous and perhaps outmoded'' and should be
revised to provide exceptions for cargo tanks loaded or unloaded inside
plant facilities without public access. The need, if any, for changes
to attendance requirements are beyond the scope of this rulemaking.
Finally, a commenter requested that the proposal be broadened to
include all bulk packagings and that the definition of a cargo tank, in
Sec. 171.8, be amended to include an intermediate bulk container (IBC).
RSPA may address other bulk packagings in a future rulemaking action. A
proposal to amend the definition of a cargo tank is being considered
under Docket HM-213.
In conclusion, as proposed in the NPRM, RSPA is permitting IM
portable tanks to be unloaded without being removed from the motor
vehicle if the outlet requirements in Sec. 178.345-11 and the
Sec. 178.337-11 and attendance requirements are met.
Section 177.848
In paragraph (f), the Compatibility Table for Class 1 (Explosive)
Materials is revised to clarify that Groups B and D are not compatible.
However, a domestic exception (4) is allowed for Detonators when they
are transported in accordance with the restrictions in Sec. 177.835(g).
To avoid the possibility of incompatible explosives being transported
together, RSPA is clarifying the restriction by replacing the entry
``4'' with the entry ``X(4)''.
Part 178
Section 178.65
Paragraph (i)(2)(viii)(A) is revised to update the citation ``49
U.S.C. 1809'' to read ``49 U.S.C. 5124.''
Sections 178.352 through 178.364
Several specification packaging requirements for radioactive
materials contain obsolete section references. RSPA is updating these
section references in this final rule.
Part 180
Section 180.405
RSPA is revising paragraph (c)(1) to recognize that the date marked
on certain older cargo tanks was the date initial construction began
rather than the date construction was completed. This action more
precisely grandfathers cargo tanks in a manner consistent with former
Sec. 173.33(b)(1) (in effect prior to December 31, 1990), which read:
``A cargo tank of the specification listed in Column 1 may be used when
authorized in this part, provided the tank construction began before
the date in Column 2.'' This provision applied to MC 300, 301, 302,
303, 304, 305, 310, 311 and 330 cargo tank motor vehicles.
Finally, paragraph (f) is revised to allow the continued use of a
cargo tank equipped with a self-closing system before September 1,
1993, but remarked and certified after that date.
Regulatory Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule is not considered a significant regulatory
action under section 3(f) of Executive Order 12866 and, therefore, was
not reviewed by the Office of Management and Budget. This rule is not
significant under the Regulatory Policies and Procedures of
[[Page 37458]]
the Department of Transportation (44 FR 11034).
The costs and benefits asociated with this final rule are
considered to be so minimal as to not warrant preparation of a
regulatory impact analysis or regulatory evaluation.
B. Executive Order 12612
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 12612 (``Federalism'').
Federal law expressly preempts State, local, and Indian tribe
requirements applicable to the transportation of hazardous material
that cover certain subjects and are not substantively the same as the
Federal requirements. 49 U.S.C. 5125(b)(1). These 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 those 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.
This final rule concerns the classification, packaging, marking,
labeling, and handling of hazardous material, among other covered
subjects.
This final rule would preempt any State, local, or Indian tribe
requirements concerning these subjects unless the non-Federal
requirements are ``substantively the same'' (see 49 CFR 107.202(d)) as
the Federal requirements.
Federal law (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.
C. Regulatory Flexibility Act
This final rule would amend miscellaneous provisions in the HMR,
generally to clarify those provisions and to relax requirements that
are overly burdensome. The proposed changes in this rule are generally
intended to provide relief to shippers, carriers, and packaging
manufacturers, some of whom are small entities (for example, small
businesses, governmental jurisdictions and not-for-profit
organizations). The costs and benefits associated with this proposed
rule are considered to be so minimal as to not warrant preparation of a
regulatory impact analysis or regulatory evaluation. Small incremental
cost increases are associated with updating the hazardous materials
information shown on airport signs in Secs. 175.25 and 175.26. A
delayed compliance date of January 1, 2002, is provided for displaying
the notices to allow for a sufficient transition period. Therefore, I
certify that this proposal will not, if promulgated, have a significant
economic impact on a substantial number of small entities.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, no person is required to
respond to a collection of information unless it displays a valid OMB
control number. This final rule does not propose any new information
collection burdens. Information collection requirements addressing the
approval of explosives in Sec. 173.56 are currently approved under OMB
approval number 2137-0557. This approval expires July 31, 1999.
E. Regulation Identifier Number (RIN)
A regulation identifier number (RIN) is assigned to each regulatory
action listed in the Unified Agenda of Federal Regulations. The
Regulatory Information Service Center publishes the Unified Agenda in
April and October of each year. The RIN number contained in the heading
of this document can be used to cross-reference this action with the
Unified Agenda.
F. Unfunded Mandates Reform Act
This final rule does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to either State, local, or tribal governments, in
the aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objective of the rule.
List of Subjects
49 CFR Part 171
Exports, Hazardous materials transportation, Hazardous waste,
Imports, Incorporation by reference, Reporting and recordkeeping
requirements.
49 CFR Part 172
Hazardous materials transportation, Hazardous waste, Labels,
Markings, Packaging and containers, Reporting and recordkeeping
requirements.
49 CFR Part 173
Hazardous materials transportation, Packaging and containers,
Radioactive materials, Reporting and recordkeeping requirements,
Uranium.
49 CFR Part 175
Air carriers, Hazardous materials transportation, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 177
Hazardous materials transportation, Motor carriers, Radioactive
materials, Reporting and recordkeeping requirements.
49 CFR Part 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
49 CFR Part 180
Hazardous materials transportation, Motor carriers, Motor vehicle
safety, Packaging and containers, Reporting and recordkeeping
requirements.
In consideration of the foregoing, 49 CFR chapter I is amended as
follows:
PART 171--GENERAL INFORMATION, REGULATIONS AND DEFINITIONS
1. The authority citation for part 171 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 49 CFR 1.53.
2. In the Sec. 171.7(a)(3) Table, under the entry ``Association of
American Railroads'', a new entry is added in appropriate alphabetical
order to read as follows:
Sec. 171.7 Reference material.
(a) Matter incorporated by reference. * * *
(3) Table of material incorporated by reference. * * *
[[Page 37459]]
------------------------------------------------------------------------
Source and name of material 49 CFR reference
------------------------------------------------------------------------
* * * *
* * *
Association of American Railroads,
* * * *
* * *
AAR Manual of Standards and Recommended 174.63; 179.6; 179.7; 179.12;
Practices, Section C--Part III, 179.15; 179.16; 179.20;
Specifications for Tank Cars, 179.22; 179.100; 179.101;
Specification M-1002, September 1996. 179.102; 179.103; 179.200;
179.201; 179.220; 179.300;
179.400; 180.509; 180.513;
180.515; 180.517.
* * * *
* * *
------------------------------------------------------------------------
* * * * *
Sec. 171.7 [Amended]
3. In addition, in the Sec. 171.7(a)(3) Table, under the entry
``Association of American Railroads'', for the entry ``AAR Manual of
Standards and Recommended Practices, Section C--Part III,
Specifications for Tank Cars, Specification M-1002, September 1992'',
in the second column, the existing section references are removed and a
new reference ``173.31'' is added in their place.
4. In Sec. 171.8, the following definition is added in the
appropriate alphabetical order to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Self-defense spray means an aerosol or non-pressurized device that:
(1) Is intended to have an irritating or incapacitating effect on a
person or animal; and
(2) Meets no hazard criteria other than for Class 9 (for example, a
pepper spray; see Sec. 173.140(a) of this subchapter) and, for an
aerosol, Division 2.1 or 2.2 (see Sec. 173.115 of this subchapter),
except that it may contain not more than two percent by mass of a tear
gas substance (e.g., chloroacetophenone (CN) or 0-
chlorobenzylmalonitrile (CS); see Sec. 173.132(a)(2) of this
subchapter.)
* * * * *
Sec. 171.8 [Amended]
5. In addition, in Sec. 171.8, for the definition ``Marine
pollutant'', in the first sentence, the wording ``this subchapter
and,'' is removed and ``this subchapter (also see Sec. 171.4) and,'' is
added in its place.
Sec. 171.18 [Removed and Reserved]
6. Section 171.18 is removed and reserved.
7. Section 171.19 is revised to read as follows:
Sec. 171.19 Approvals or authorizations issued by the Bureau of
Explosives.
Effective December 31, 1998, approvals or authorizations issued by
the Bureau of Explosives (BOE), other than those issued under part 179
of this subchapter, are no longer valid.
PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
8. The authority citation for part 172 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
9. In Sec. 172.101, the Hazardous Materials Table is amended by
adding the following entries, in appropriate alphabetical order, to
read as follows:
Sec. 172.101 Purpose and use of hazardous materials table.
* * * * *
[[Page 37460]]
Sec. 172.101 Hazardous Materials Table
Hazardous (8) Packaging (Sec. 173.* (9) Quantity limitations (10) Vessel stowage
materials Hazard * *) -------------------------------------------------------------
Symbols descriptions and class or Identification PG Label Special ------------------------------
proper shipping division numbers codes provisions Non- Passenger Cargo aircraft Location Other
names Exceptions bulk Bulk aircraft/rail only
(1) (2).............. (3) (4)............. (5).......... (6) (7).......... (8A) (8B) (8C) (9A)............. (9B)............. (10A)........ (10B)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
[ADD:]
Pepper spray, see ........ ................ ............. ....... ............. .......... ....... ....... ................. ................. ............. .......
Aerosols, etc.
or Self-defense
spray, non-
pressurized.
* * * * * * *
Self-defense ........ ................ ............. ....... ............. .......... ....... ....... ................. ................. ............. .......
spray, aerosol,
see Aerosols,
etc.
+AD........... Self-defense 9 NA3334.......... III.......... 9 A37.......... 155 203 None No limit......... No limit......... A............ .......
spray, non-
pressurized.
* * * * * * *
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 37461]]
Sec. 172.101 [Amended]
10. In addition, in Sec. 172.101, in the Hazardous Materials Table,
the following changes are made:
a. For the entry, ``Aluminum smelting by-products or Aluminum
remelting by-products'' (UN3170), for Packing Groups II and III, in
Column (7), the special provision ``128,'' is added immediately before
``B106'', each place it appears.
b. For the entry, ``Corrosive solids, water-reactive, n.o.s.''
(UN3096), for Packing Group II, in Column (7), the special provision
``128,'' is removed.
c. For the entry, ``Detonators, non-electric for blasting.'',
UN0455, in Column (8A), the reference ``None'' is revised to read
``63(f), 63(g)''.
d. For the entry, ``Dimethylhydrazine, unsymmetrical'', in Column
(7), the special provision ``B7,'' is added immediately following
``2,''.
e. For the entry, ``Hydrazine, anhydrous or Hydrazine aqueous
solutions with more than 64 percent hydrazine, by mass.'', in Column
(7), the special provision ``B7,'' is added immediately following
``A10,''.
f. For the entry, ``Methylhydrazine'', in Column (7), the special
provision ``B7,'' is added immediately following ``1,''.
g. For the entry, ``Trifluoroacetyl chloride'', in Column (7), the
special provision ``B7,'' is added immediately following ``2,''.
h. For the entry, ``Water-reactive solid, corrosive, n.o.s.''
(UN3131), for Packing Groups II and III, in Column (7), the special
provision ``128,'' is removed each place it appears.
10a. In Sec. 172.102, paragraph (c)(1) is amended by revising
Special Provision 128 and paragraph (c)(2) is amended by adding Special
Provision A37 to read as follows:
Sec. 172.102 Special provisions.
* * * * *
(c) * * *
(1) * * *
Code/Special Provisions
* * * * *
128. Regardless of the provisions of Sec. 172.101(c)(12),
aluminum smelting by-products and aluminum remelting by-products
described under this entry, meeting the definition of Class 8,
Packing Group II and III may be classed as a Division 4.3 material
and transported under this entry. The presence of a Class 8 hazard
must be communicated as required by this Part for subsidiary
hazards.
(2) * * *
Code/Special Provisions
* * * * *
A37. This entry applies only to a material meeting the
definition in Sec. 171.8 of this subchapter for self-defense spray.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
11. The authority citation for part 173 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
12. Sec. 173.32c, in paragraph (m), a second sentence is added to
read as follows:
Sec. 173.32c Use of Specification IM portable tanks.
* * * * *
(m) * * * In addition, for unloading an IM portable tank, see
Sec. 177.834(h) of this subchapter.
* * * * *
Sec. 173.32c [Amended]
13. In addition, Sec. 173.32c, in paragraph (j), the first word
``An'' is removed and ``Except for a non-flowable solid, an'' is added
in its place.
Sec. 173.40 [Amended]
14. In Sec. 173.40, in paragraph (d)(1), in the first sentence, the
wording ``4C1, 4D, 4F, 4G, 4H1 or 4H2'' is removed.
15. In Sec. 173.56, paragraph (b)(1) is revised to read as follows:
Sec. 173.56 New explosives--definition and procedures for
classification and approval.
* * * * *
(b) * * *
(1) Except for an explosive made by or under the direction or
supervision of the Department of Defense (DOD) or the Department of
Energy (DOE), a new explosive must be examined and assigned a
recommended shipping description, division and compatibility group,
based on the tests and criteria prescribed in Secs. 173.52, 173.57 and
173.58. The person requesting approval of the new explosive must submit
to the Associate Administrator for Hazardous Materials Safety a report
of the examination and assignment of a recommended shipping
description, division, and compatibility group. If the Associate
Administrator finds the approval request meets the regulatory criteria,
the new explosive will be approved in writing and assigned an EX
number. The examination must be performed by a person who is approved
by the Associate Administrator under the provisions of subpart H of
part 107 of this chapter and who--
(i) Has (directly, or through an employee involved in the
examination) at least ten years of experience in the examination,
testing and evaluation of explosives;
(ii) Does not manufacture or market explosives, and is not
controlled by or financially dependent on any entity that manufactures
or markets explosives, and whose work with respect to explosives is
limited to examination, testing and evaluation; and
(iii) Is a resident of the United States.
* * * * *
Sec. 173.56 [Amended]
16. In addition, in Sec. 173.56, in paragraph (i), the wording ``,
following examination in accordance with paragraph (b) of this section,
revise its'' is removed and the wording ``specify a'' is added in its
place.
17. In Sec. 173.156, paragraph (b)(1) introductory text is revised
to read as follows:
Sec. 173.156 Exceptions for ORM materials.
* * * * *
(b) * * *
(1) Strong outer packagings as specified in this part, marking
requirements specified in subpart D of part 172 of this subchapter, and
the 30 kg (66 pounds) gross weight limitation are not required for
materials classed as ORM-D when--
* * * * *
18. In Sec. 173.308, paragraph (b) is revised to read as follows:
Sec. 173.308 Cigarette lighter or other similar device charged with
fuel.
* * * * *
(b) When no more than 1,500 devices covered by this section are
transported in one motor vehicle by highway, the requirements of
subparts C through H of part 172 of this subchapter, and part 177 of
this subchapter do not apply. However, no person may offer for
transportation or transport the devices or prepare the devices for
shipment unless that person has been specifically informed of the
requirements of this section. The outer packaging, as specified in
Special Provision N10 of Sec. 172.102(c)(5) of this subchapter, must be
plainly and durably marked with the required proper shipping name
specified in Sec. 172.101 of this subchapter, or the words ``CIGARETTE
LIGHTERS'' and the number of devices contained in the package.
* * * * *
Sec. 173.469 [Amended]
19. In Sec. 173.469(a)(4)(i), in the second sentence, the
mathematical expression ``(1.3 x 10 -\24\'' is removed and
``(1.3 10-4'' is added in its place.
[[Page 37462]]
PART 175--CARRIAGE BY AIRCRAFT
20. The authority citation for part 175 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
21. In Sec. 175.10, paragraph (a)(4) is revised to read as follows:
Sec. 175.10 Exceptions.
(a) * * *
(4) The following hazardous materials when carried by a passenger
or crew member for personal use in conformance with the following
conditions:
(i) Non-radioactive medicinal and toilet articles (including
aerosols) may be carried in checked or carry-on baggage;
(ii) One self-defense spray (see Sec. 171.8 of this subchapter),
not exceeding 118 ml (4 fluid ounces) by volume, that incorporates a
positive means to prevent accidental discharge may be carried in
checked baggage only;
(iii) Other aerosols in Division 2.2 with no subsidiary risk may be
carried in checked baggage only; and
(iv) The aggregate quantity of hazardous materials carried by the
person may not exceed 2 kg (70 ounces) by mass or 2 liters (68 fluid
ounces) by volume and the capacity of each container may not exceed 0.5
kg (18 ounces) by mass or 470 ml (16 fluid ounces) by volume.
* * * * *
22. In Sec. 175.25, the introductory text to paragraph (a)(1), the
second and fifth full paragraphs of the notice in paragraph (a)(1), and
paragraphs (a)(2)(i), (a)(2)(ii) and (a)(3) are revised; and a new
paragraph (a)(4) is added, to read as follows:
Sec. 175.25 Notification at air passenger facilities of hazardous
materials restrictions.
(a) * * *
(1) At a minimum, each notice must communicate the following
information:
* * * * *
A violation can result in five years' imprisonment and penalties
of $250,000 or more (49 U.S.C. 5124).
* * * * *
There are special exceptions for small quantities (up to 70
ounces total) of medicinal and toilet articles carried in your
luggage and certain smoking materials carried on your person.
* * * * *
(2) * * *
(i) In legible English and may, in addition to English, be
displayed in other languages; and
(ii) In lettering of at least 1 cm (0.4 inch) in height for the
first paragraph and 6.0 mm (0.2 inch) in height for the other
paragraphs; and
* * * * *
(3) Size and color of the notice are optional. Additional
information, examples, or illustrations, if not inconsistent with the
required information, may be included.
(4) Notwithstanding the requirements of paragraph (a)(1) of this
section, a notice with the wording ``A violation can result in
penalties of up to $25,000 and five years' imprisonment. (49 U.S.C.
1809)'' may be used through December 31, 2001.
* * * * *
23. In Sec. 175.26, paragraph (a)(2) is revised and a new paragraph
(a)(4) is added to read as follows:
Sec. 175.26 Notification at cargo facilities of hazardous materials
requirements.
(a) * * *
(2) A violation can result in five years' imprisonment and
penalties of $250,000 or more (49 U.S.C. 5124).
* * * * *
(4) Notwithstanding the requirements of paragraph (a)(2) of this
section, a notice with the wording ``A violation can result in
penalties of up to $25,000 and five years' imprisonment (49 U.S.C.
1809)'' may be used through December 31, 2001.
* * * * *
PART 177--CARRIAGE BY PUBLIC HIGHWAY
24. The authority citation for part 177 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 177.834 [Amended]
25. In Sec. 177.834, in paragraph (h), in the next to the last
sentence, the wording ``cargo tank'' is removed and the wording ``cargo
tank or IM portable tank'' is added in its place, and a new paragraph
(o) is added to read as follows:
Sec. 177.834 General requirements.
* * * * *
(o) Unloading of IM portable tanks. An IM portable tank may be
unloaded while remaining on a transport vehicle with the power unit
attached if the tank meets the outlet requirements in Sec. 178.345-11
of this subchapter and the tank is attended by a qualified person
during the unloading in accordance with the requirements in paragraph
(i) of this section.
Sec. 177.848 [Amended]
26. In Sec. 177.848, in (f), in the Compatibility Table for Class 1
(Explosive) Materials, for compatibility group B, under the column
headed ``D'' and for compatibility group D, under the column headed
``B'', the entry ``4'' is removed and ``X(4)'' is added in
both places.
PART 178--SPECIFICATIONS FOR PACKAGINGS
27. The authority citation for part 178 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 178.352-4 [Amended]
28. In Sec. 178.352-4, at the end of the section, the section
reference ``Sec. 178.103(3)(c)(1)'' is revised to read ``Sec. 178.352-
3(c)(1)''.
Sec. 178.354-2 [Amended]
29. In Sec. 178.354-2, in the first sentence of paragraph (a), the
section reference ``Sec. 178.104-5'' is revised to read ``Sec. 178.354-
5''.
Sec. 178.354-3 [Amended]
30. In Sec. 178.354-3, in paragraph (c) introductory text, the
section reference ``Sec. 178.104-3(a)(1)'' is revised to read
``paragraph (a)(1) of this section''.
Sec. 178.354-5 [Amended]
31. In Sec. 178.354-5, in paragraph (a), the wording ``Sec. 173.24
of this chapter'' is revised to read ``Sec. 178.3''.
Sec. 178.356-4 [Amended]
32. In Sec. 178.356-4, in paragraph (a), the wording ``Sec. 173.24
of this subchapter'' is revised to read ``Sec. 178.3''.
Sec. 178.358-3 [Amended]
33. In Sec. 178.358-3, the following changes are made:
a. In paragraph (b)(6), the section reference ``Sec. 178.121-5(c)''
is revised to read ``Sec. 178.358-5(c)''.
b. In paragraph (c), the section reference ``Sec. 178.121-5(b)'' is
revised to read ``Sec. 178.358-5''.
Sec. 178.358-5 [Amended]
34. In Sec. 178.358-5, in paragraph (a), the wording ``Sec. 173.24
of this subchapter'' is revised to read ``Sec. 178.3''.
Sec. 178.360-2 [Amended]
35. In Sec. 178.360-2, the section reference ``Sec. 178.34-4'' is
revised to read ``Sec. 178.360-4''.
Sec. 178.362-3 [Amended]
36. In Sec. 178.362-3, in paragraph (b), the section reference
``Sec. 178.104-4'' is revised to read ``Sec. 178.354-4''.
Sec. 178.364-5 [Amended]
37. In Sec. 178.364-5, in paragraph (a), the wording ``Sec. 173.24
of this subchapter'' is revised to read ``Sec. 178.3''.
[[Page 37463]]
PART 180--CONTINUING QUALIFICATION AND MAINTENANCE OF PACKAGINGS
38. The authority citation for part 180 continues to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
39. In Sec. 180.405, paragraph (c)(1) is revised, paragraph (f)(7)
is redesignated as paragraph (f)(8) and new paragraph (f)(7) is added
to read as follows:
Sec. 180.405 Qualification of cargo tanks.
* * * * *
(c) * * * (1) A cargo tank made to a specification listed in Column
1 of Table 1 or Table 2 of this paragraph (c)(1) may be used when
authorized in this part, provided--
(i) The cargo tank initial construction began on or before the date
listed in Table 1, Column 2, as follows:
Table 1
------------------------------------------------------------------------
Column 1 Column 2
------------------------------------------------------------------------
MC 300................................. Sept. 2, 1967.
MC 301................................. June 12, 1961.
MC 302, MC 303, MC 304, MC 305, MC 310, Sept. 2, 1967.
MC 311.
MC 330................................. May 15, 1967.
------------------------------------------------------------------------
(ii) The cargo tank was marked or certified before the date listed
in Table 2, Column 2, as follows:
Table 2
------------------------------------------------------------------------
Column 1 Column 2
------------------------------------------------------------------------
MC 306, MC 307, MC 312................. Sept. 1, 1995.
------------------------------------------------------------------------
* * * * *
(f) * * *
(7) A cargo tank remarked and certified in conformance with this
paragraph (f) is excepted from the provisions of Sec. 180.405(c).
* * * * *
Issued in Washington, DC, on July 2, 1998, under authority
delegated in 49 CFR part 106.
Kelley S. Coyner,
Deputy Administrator, Research and Special Programs Administration.
[FR Doc. 98-18060 Filed 7-9-98; 8:45 am]
BILLING CODE 4910-60-P
