[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Proposed Rules]
[Pages 47723-47734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22816]
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DEPARTMENT OF TRANSPORTATION
Research and Special Programs Administration
49 CFR Parts 107, 171, 172, 173 and 178
[Docket No. HM-207C, Notice No. 95-9]
RIN 2137-AC63
Exemption, Approval, Registration and Reporting Procedures;
Miscellaneous Provisions
AGENCY: Research and Special Programs Administration (RSPA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: To expedite processing of applications and to promote clarity
and program consistency, RSPA is proposing to revise the procedures for
applying for exemptions and to establish procedures for applying for
approvals, registering (other than the hazmat registration program),
and reporting. In addition, the proposed rule would amend in minor ways
a number of provisions, mostly procedural. The intended effect of this
NPRM is to provide guidance for persons required to obtain an approval,
register, or report with RSPA. By clarifying the requirements, RSPA
would reduce the need to seek additional information necessary to
complete the processing of applications. The proposed changes also
would reduce the processing time.
DATES: Comments. Comments must be received by November 28, 1995.
ADDRESSES: Comments. Address comments to Dockets Unit (DHM-30),
Hazardous Materials Safety, RSPA, U.S. Department of Transportation,
Washington, DC 20590-0001. Comments should identify the docket and
notice number and be submitted, when possible, in five copies. Persons
wishing to receive confirmation of receipt of their comments should
include a self-addressed, stamped postcard. The Dockets Unit is located
in Room 8421 of the Nassif Building, 400 Seventh Street SW, Washington
DC 20590-0001. Office hours are 8:30 am to 5:00 pm Monday through
Friday, except on public holidays when the office is closed.
FOR FURTHER INFORMATION CONTACT: Jennifer Antonielli, Office of
Hazardous Materials Standards, (800) 467-4922, or Kathleen Molinar,
Office of the Chief Counsel, (202) 366-4400, RSPA, Department of
Transportation, 400 Seventh 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 material
in commerce. 49 U.S.C. 5103. The Research and Special Programs
Administration (RSPA) is the administration within the Department of
Transportation primarily responsible for implementing the Federal
hazmat law. 49 CFR 1.53. 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 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
subpart B of part 107.
In addition, in numerous instances the HMR require authorization 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
material for transportation, and transporting hazardous material.
Elsewhere, the HMR impose reporting requirements on those engaging in
certain hazmat transportation activity. A significant portion of the
regulated community is subject to one or more of these types of
requirements. Procedures to be followed in seeking an approval from
RSPA, registering with RSPA or reporting to RSPA may be found in the
HMR provision establishing the particular requirement, but in many
cases these procedures are absent or incomplete. There are no general
procedural rules in the HMR governing these matters.
This proposed rule would revise existing exemption procedures at 49
CFR subpart B of part 107 and create a new subpart H of part 107 to
establish a similar procedural framework for approvals, registrations
and reports.
[[Page 47724]]
RSPA processes numerous approval, registration and reporting
matters, and practices have developed over time. Nevertheless,
establishment of formal procedures through regulation provides
desirable guidance to all those who now or in the future may be subject
to HMR approval, registration or reporting requirements, and fosters
the greatest possible consistency in RSPA's handling of these matters.
The proposed procedures, in many respects, parallel those for
exemptions, and this rule would modify them, and largely codify the
approval, registration and reporting procedures that RSPA currently
follows. Establishing procedures in 49 CFR part 107 for approvals,
registration, and reports would minimize the need for RSPA to seek
information from applicants in order to complete the processing of
applications.
The procedures for approvals, registration and reporting are
limited in their application in two respects. First, under the HMR,
other Federal agencies, including the United States Coast Guard, the
Federal Highway Administration, the Nuclear Regulatory Commission, the
Departments of Defense and Energy, the Bureau of Mines, the Bureau of
Alcohol, Tobacco and Firearms, and non-Federal entities such as the
Association of American Railroads, issue approvals or receive
registrations or reports under the HMR. For example, under
Sec. 176.415, Coast Guard approval must be obtained before loading or
unloading certain explosives onto or from vessels. The procedures
established in this rulemaking would apply only with respect to those
matters that, under the HMR, are handled by RSPA. Those matters for
which the HMR assigns responsibility to other entities will continue to
be handled according to the procedures of those entities.
Second, this rule does not supersede existing procedures for
approvals, registration, or reporting, such as the minimum content of
the application or the RSPA office where it is to be filed. Where 49
CFR subpart H of part 107 supplements a specific HMR requirement, both
will apply. In the unlikely event that subpart H conflicts with an
element of the specific approval, registration, or reporting
requirement, the specific requirement will govern. Comments are invited
on any apparent conflicts.
Proposed amendment of selected provisions in 49 CFR part 107 would
clarify and, in some cases, slightly modify RSPA procedures with
respect to rulemaking, preemption determinations and enforcement.
Certain provisions of 49 CFR part 171 would be amended for clarity.
Sections 172.302 and 173.22a would be amended to incorporate
requirements currently in Appendix B to subpart B of part 107. A new
Sec. 178.3(d) would permit only those persons authorized under an
exemption or their agents to certify a packaging to the exemption.
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. RSPA issued a notice on April
4, 1995, (Docket HM-222; 60 FR 17049) requesting comments on regulatory
reform and announced seven public meetings nationwide to identify
obsolete and burdensome regulations which can be eliminated from the
HMR and techniques to improve its customer services. Some of the
commenters responding to the notice under Docket HM-222 identified the
exemption and approval procedures contained in the HMR as areas in need
of clarification and reform. Today's notice is consistent with the
goals of the President to clarify and revise Federal agency regulations
to relieve unnecessary regulatory burdens.
III. Request for Comments
Comments are invited with respect to all of the proposed changes.
In particular, RSPA is interested in whether commenters believe the
changes would make the process of applying for an exemption or approval
simpler or more efficient, and whether paperwork burdens would be
eased; whether the proposed provisions are clear; and how the rule
would affect small businesses and other entities.
IV. Summary of Proposed Amendments
A. Exemptions
The exemption procedures at 49 CFR subpart B of part 107 would be
reorganized to provide a framework that is more logically arranged than
at present. The proposed rule sets forth application requirements for
exemptions, exemption modifications, procedures for seeking party
status to an exemption and renewing an exemption or a grant of party
status. The proposed rule would establish three processing categories--
routine, priority, and emergency; the standards to qualify for priority
or emergency processing; and the procedures and review criteria to be
applied in each category. Next, the notice would set forth the powers
of the Associate Administrator for Hazardous Materials Safety
(Associate Administrator) to modify, suspend, or terminate an exemption
or grant of party status; the standards to do so, and the procedures to
be followed. Finally, this NPRM proposes procedures for reconsideration
of an exemption decision by the Associate Administrator and appeal of
that decision to the RSPA Administrator.
Substantively, the current regulations would be revised in several
respects. Summaries of the more significant proposed revisions follow.
In this notice, timely filing requirements under the subpart would
be clarified by standardizing the ``filing'' date as the date a
submission is received at the specified RSPA office. Also, the required
contents of an application would be expanded in several respects. The
applicant would need to list HMR exemptions, approvals, and other
authorizations previously or currently held that are related to the
subject of the application and known to the applicant; this information
would facilitate prompt processing of the application by expediting
review of other relevant information. In addition, the applicant would
be required to identify each manufacturing facility that would be
operating under the requested exemption; this information would
facilitate later RSPA inspections. A foreign applicant, after
designating a domestic agent for service, would be required to consent
in writing to personal jurisdiction with respect to all matters under
the Federal hazmat law related to the exemption. The proposed rule also
provides that an applicant's failure to respond to a request by RSPA
for additional information within 30 days would result automatically in
application denial. Paperwork burdens would be reduced by requiring
only duplicate, rather than triplicate, application submissions.
In the proposal, the Associate Administrator explicitly would be
authorized to consider evidence of an applicant's capability and
integrity in deciding on an application. A pending or completed
enforcement action for HMR violations could be considered, to the
extent the Associate Administrator found it to be relevant. If an
enforcement action were only pending, and a final finding of violation
had not been made, that would be considered in assessing the weight the
enforcement action should be given in deciding on an application.
The standards for routine and emergency application processing
would be clarified, and a third category, that of priority processing,
would be created. The rule would formalize, but not modify, the way in
which exemption applications now are
[[Page 47725]]
routinely processed. When an application is determined to be complete,
it is published in the Federal Register and public comment is
solicited. The application then is considered under prescribed
standards, including demonstration of an equivalent level of safety and
whether the applicant has the capability and integrity necessary to
operate under the exemption.
Similarly, the proposed rule would not change how an emergency
exemption application is processed, but would clarify and slightly
modify the standards for qualifying for emergency processing. The
standard would be expanded to include likelihood of significant injury
to persons, rather than only loss of life. Also, the proposed rule
would clarify that a likelihood of significant economic harm, standing
alone, does not entitle an applicant to emergency processing; whether
the prospect of significant economic loss constitutes an emergency
would be a matter for the Associate Administrator's judgment. For
example, the Associate Administrator may find that a carrier's loss of
transportation revenue or failure to gain new revenue, or a shipper's
failure immediately to gain a new market, would not justify emergency
processing.
Specifically, the rule would add a provision that the Associate
Administrator may determine a risk of economic loss to the applicant,
or to another person engaged in the hazmat activity in cooperation with
the applicant, not to be the basis for a finding of emergency if the
applicant or another person could have filed for routine application
processing in a timely manner. If an application qualifies for
emergency processing, it is not published in the Federal Register,
subject to public comment, or held strictly to the submission
requirements for routine processing. Further, recognizing that urgency
may not permit the fullest deliberation, the standard for granting the
exemption is simply whether doing so is in the public interest, in
light of the standards that apply to an application processed
routinely. Through the proposed provision, RSPA seeks to ensure that
emergency processing, which affords less public review and a risk of
reduced agency deliberation, is used only in the case of a risk of
significant economic loss where urgency is required to avert the loss
and the need for urgency could not have been avoided.
The NPRM would create a third processing category, priority
processing, for applications that do not qualify for emergency
processing, but merit more expeditious consideration than that
routinely accorded. An application that qualifies for priority
processing, unlike one processed on an emergency basis, would be
subject to public comment and the full degree of deliberation given to
applications processed routinely. The priority designation merely would
authorize RSPA to deviate from its ``first in, first out'' policy and
consider the application ahead of those received earlier. Applications
qualifying for priority processing would be those of governmental
bodies when deemed by the Associate Administrator to be in the public
interest, and those in which expeditious processing would be necessary
to avoid significant economic loss. As in the case of emergency
processing, if the significant economic loss were that of the applicant
or another person engaged with the applicant in the hazmat activity,
the need for the exemption may not have been foreseeable at a time when
an application could have been processed routinely. Otherwise, the
Associate Administrator would have the discretion to find that the
application does not qualify for priority processing.
The proposed rule would clarify the standards for exemption
modification, suspension, and termination and give the Associate
Administrator more flexibility as to 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 find it justified to terminate
an exemption, but is vague. Further, the sharp distinction 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 a
particular circumstance recommends--for example, requiring the
termination of an exemption when modification might suffice.
The proposed rule would authorize modification whenever necessary
to conform an exemption to changed statute or regulation, or other
circumstances. It would authorize modification, suspension, or
termination: (1) Whenever, because of a change in circumstances, the
exemption no longer would be granted if applied for; (2) if it was
granted on the basis of inaccurate or incomplete information; or (3) if
the holder violates the exemption in a way that demonstrates
insufficient competence or integrity to act under the exemption. In
addition, any exemption granted on the basis of an application that the
Associate Administrator finds was deliberately inaccurate or incomplete
would be subject to modification, suspension, or termination, even
where the exemption would have been granted absent the inaccuracy or
incompleteness.
Finally, the proposed rule would formalize procedures for
requesting reconsideration of an exemption decision by the Associate
Administrator and appealing the Associate Administrator's decision to
the RSPA Administrator. During the pendency of a request for
reconsideration or an appeal, the Associate Administrator or the
Administrator, respectively, on a finding of risk to persons or
property, could deem the modification, suspension, or termination
effective for a period of up to 90 days. Otherwise the exemption, if
current, would remain in effect until the decision.
B. Approvals, Registrations, Reports
The proposed rule establishes a framework for processing approval
requests similar to that for exemption applications. It also describes
procedures for filing registrations and reports with RSPA.
The proposed rule specifies minimum contents of an application for
approval to be filed with RSPA, identifies the RSPA office to which the
filing would be directed, and sets forth procedures by which an
application for approval would be processed.
Next, the proposed rule sets forth standards and procedures for
modifying, suspending and terminating approvals. The proposed standards
are similar to the procedures for modifying, suspending and terminating
exemptions. Modification would be authorized broadly to conform an
approval to changed law or circumstances. Modification, suspension and
termination all would be available if new information indicates that
the approval would not be granted if now applied for; if the holder has
demonstrated insufficient capability or integrity to perform the
authorized activity; or if the application contained deliberately
inaccurate or incomplete information. The holder would be allowed an
opportunity to respond to the proposed action before it becomes final;
however, where necessary to avert
[[Page 47726]]
a risk of harm to persons or property, the Associate Administrator
could declare the modification, suspension or termination effective
pending the holder's response and any subsequent reconsideration, for
up to 90 days.
Finally, the proposed rule would provide for reconsideration of the
Associate Administrator's decision on granting, modifying, suspending
or terminating an approval, and for appeal of that decision to the
Administrator.
C. Miscellaneous Amendments
The proposed rule would amend a number of procedural provisions of
49 CFR parts 107, 171, 172, 173, and 178. Amendments would be made for
clarity in Secs. 107.202, 107.203, 107.205, 107.211, 107.213 (new
section), 107.217, 107.223, 107.227, 107.331, 171.1, 171.2, 171.8,
172.302, 173.22a, and 178.3. Requirements for exemption holders now
found at Appendix B to subpart B of part 107, would be moved to
Secs. 172.302(c) and 173.22a(c).
Several provisions governing preemption determinations would be
revised. The NPRM would modify Sec. 107.205(a) to delete the
requirement that the applicant notify the affected State, local, or
tribal government that it has 45 days in which to comment on the
application for preemption. Because the date on which the government
body receives the applicant's notice is not fixed to the date on which
the application is published in the Federal Register, this
specification is somewhat arbitrary. The State, local, or tribal
government would continue to have, ordinarily, 45 days in which to
comment, but this time frame would simply be specified in the Federal
Register notice setting forth the application.
Section 107.209(b) would be deleted. The Associate Administrator's
authority to issue a preemption determination on his or her own
initiative was eliminated by the Hazardous Materials Transportation
Uniform Safety Act, Public Law 101-615, Sec. 13 (Nov. 16, 1990).
Sections 107.209(d) and 107.221(d) would be amended to specify more
concretely who would be given personal notice of a preemption or waiver
of preemption determination. Presently, the Associate Administrator
notifies each person ``readily identifiable * * * as one who is
affected by the determination.'' Appeal rights of parties depend on
timely receipt of the Associate Administrator's preemption decision.
The present standard is vague and could prompt a challenge by a person
who did not receive notice of a decision. The proposed rule limits
personal notice of the decision to a specified group of persons: those
who commented substantially on the matter (this would exclude, for
instance, those who merely submitted form letters favoring or opposing
preemption) and those who requested notice.
Section 107.305(b) would be clarified in two regards. Additional
language would clarify the right of a regulated party to examine an
inspector's credentials, but prohibit that party from reproducing them.
In addition, it would make explicit the inspector's authority to employ
reasonable means of information gathering and documentation in
performing an inspection. These means include, but are not limited to,
interviewing and taking statements from representatives of the
inspected person, photocopying, photographing, and taking audio and
video recordings.
An added provision of Sec. 107.305(b) would authorize the Director,
Office of Hazardous Materials Enforcement (OHME), or his delegated
representative, to issue a subpoena for the production of documentary
or other tangible evidence. This authority is vested in the
Administrator by Sec. 107.13(a) and would be delegated by the proposed
rule from the Administrator to the OHME Director. A person on whom a
subpoena is served would have the opportunity to apply to the RSPA
Chief Counsel within 10 days of service to modify or quash the
subpoena.
A new Sec. 171.2(h) explicitly would prohibit creating or altering
an exemption, approval, registration, or other official document to
fraudulently indicate authority to offer or transport hazardous
materials or manufacture packagings for hazardous materials. Similarly,
offering a hazardous material for transportation or transporting a
hazardous material in commerce, or representing, marking, certifying,
or selling a packaging, under a false or altered exemption, approval,
registration, or similar document would be prohibited. Currently, 18
U.S.C. 1001 prescribes a criminal sanction for knowingly or willfully
making or using a false document in a matter within the jurisdiction of
a Federal agency. The proposed rule would create a separate civil
sanction. Liability for a civil penalty would arise only when a
violation is committed knowingly within the meaning of 49 U.S.C.
5123(a)(1); that is, when the person either knew or, in the exercise of
reasonable care, should have known that the document was false or
altered. Accordingly, for example, a carrier would not be subject to a
civil penalty for transporting a hazardous material under authority of
an exemption altered by a shipper, absent facts establishing the
carrier's knowledge that the exemption was altered.
In addition, the proposed rule would amend Sec. 178.3 by adding a
new paragraph (d) to specifically prohibit anyone, other than the
exemption holder, a person with party status to an exemption, or a
third party tester, from certifying that a packaging meets the terms of
an exemption. This provision is necessary to assure that packagings
manufactured under the terms of an exemption are marked and certified
only by those persons authorized to do so.
V. Rulemaking Analyses and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This notice of proposed rulemaking 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 notice is not significant according to the Regulatory
Policies and Procedures of the Department of Transportation (44 FR
11034).
The proposed rule would not result in any additional costs to
persons subject to the HMR, but would result in modest cost savings to
a small number of them and to the agency. Because of the minimal
economic impact of this rule, preparation of a regulatory impact
analysis or regulatory evaluation is not warranted. This certification
may be revised as a result of public comment.
B. Executive Order 12612
This action has been analyzed in accordance with the principles and
criteria in Executive Order 12612 (``Federalism''). This proposed
rulemaking has no substantial effects on States, local governments, or
Indian tribes and does not impair their ability to impose their own
procedures for obtaining an exemption or approval, or for registering
and reporting. Therefore, preparation of a federalism assessment is not
warranted.
C. Regulatory Flexibility Act
I certify that this notice of proposed rulemaking will not have a
significant economic impact on a substantial number of small entities.
This notice proposes to amend existing and add new procedural
provisions to clarify existing practice. The amendments contained in
this notice do not impose any new requirements on persons subject to
the HMR; thus, there are no direct or indirect adverse economic
[[Page 47727]]
impacts for small units of government, businesses, or other
organizations.
D. Paperwork Reduction Act
Under 49 U.S.C. 5108, the information management requirements of
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) do not apply to
this proposed rule.
VI. List of Subjects
49 CFR Part 107
Administrative practice and procedure, Hazardous material
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 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 178
Hazardous materials transportation, Motor vehicle safety, Packaging
and containers, Reporting and recordkeeping requirements.
In consideration of the foregoing, 49 CFR Chapter I would be
amended as follows:
PART 107--HAZARDOUS MATERIALS PROGRAM PROCEDURES
1. The authority citation for Part 107 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127, 44701; 49 CFR 1.45, 1.53.
2. In Sec. 107.3, definitions would be added in alphabetical order
to read as follows:
Sec. 107.3 Definitions.
Accident means an event resulting in the unintended and
unanticipated release of hazardous material.
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, renewed or
modified exemption, grant of party status to an exemption, approval, or
registration is requested to be issued.
Application means a request under this subpart for an exemption, a
renewal or modification of an exemption, a grant of party status to an
exemption, an approval, or a registration.
* * * * *
Associate Administrator means the Associate Administrator for
Hazardous Materials Safety.
* * * * *
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), U.S. Department of Transportation, Research and
Special Programs Administration, 400 Seventh Street SW, Washington DC,
20590-0001.
Holder means the person in whose name an exemption or approval has
been issued.
* * * * *
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
requirements that otherwise must be met before representing, marking,
certifying, selling or offering a packaging or container as meeting the
requirements of this subchapter or subchapter B governing its use in
the transportation in commerce of a hazardous material.
Party means a person, other than a holder, authorized to act under
the terms of an exemption.
* * * * *
Registration means a written acknowledgement from the Associate
Administrator that the registrant is performing a function for which
registration is required under subchapter C. For purposes of this
subpart, ``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 subchapter C.
* * * * *
Shipper exemption means an exemption from compliance with
requirements of this subchapter or subchapter C that otherwise must be
met before offering a hazardous material for transportation or
transporting a hazardous material in commerce.
* * * * *
3. In Sec. 107.5, paragraph (a) would be 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 must 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.
* * * * *
4. Subpart B of part 107 would be revised to read as follows:
Subpart B--Exemptions
Sec. 107.101 Purpose and scope.
This subpart prescribes procedures for the issuance, modification
and termination of exemptions from requirements of this subchapter, or
subchapter C of this chapter.
Sec. 107.105 Application for exemption.
(a) Each application for an exemption or modification of an
exemption must--
(1) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety, U.S. Department of Transportation,
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
[[Page 47728]]
(2) State the name, street and mailing addresses, and telephone
number of the applicant; if the applicant is not an individual, state
the name of an individual designated as an agent of the applicant for
all purposes related to the application;
(3) For a manufacturing exemption, state the name and street
address of each of the applicant's or contractor's facilities where
manufacturing under the exemption will occur;
(4) If the applicant is not a resident of the United States,
contain a designation of agent for service in accordance with
Sec. 107.7, and a statement that the applicant consents to personal
jurisdiction in the United States for purposes of the Federal hazardous
material transportation law related to the exemption;
(5) Cite the regulation from which the applicant seeks relief,
including the publication year of the Code of Federal Regulations
volume from which the citation is taken;
(6) If known by the applicant, list identifying numbers of all
exemptions, approvals and registrations previously or currently held by
the applicant under this chapter that are related to the subject matter
of the application;
(7) Specify the proposed mode(s) of transportation;
(8) Describe in detail the proposed exemption (e.g., alternative
packaging, test, procedure or activity). Including, as appropriate,
written descriptions, drawings, flow charts, plans and other supporting
documents;
(9) Specify the proposed duration or schedule of events for which
the exemption is sought;
(10) State why the applicant wishes to be relieved from compliance
with the specified regulations and, if the exemption is requested for a
fixed period, how compliance will be achieved at the end of that
period;
(11) If the applicant seeks expedited processing under Sec. 107.115
or Sec. 107.117, set forth the supporting facts and grounds;
(12) Identify and describe the hazardous materials planned for
transportation under the exemption. Provide the chemical name, common
name, hazard class, identification number, packing group, form,
quantity, properties, and characteristics of hazardous material to be
offered or transported in conjunction with the exemption, including
composition and percentage (specified by volume or weight) of each
chemical, if a solution or mixture;
(13) List each packaging, including specification or exemption
number, as applicable, to be used in conjunction with the requested
exemption;
(14) For alternative packagings, document quality assurance
controls necessary to provide safe performance, including package
design, manufacture, performance test criteria, in-service performance
and service life limitations;
(15) Include information describing all relevant shipping and
accident experience of which the applicant is aware that relates to the
application;
(16) Identify any increased risk to safety or property that may
result if the exemption is granted, and specify the measures that the
applicant considers necessary or appropriate to address that risk;
(17) Substantiate, with applicable analyses, data or test results,
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 material in commerce; and
(18) For an exemption involving a hazardous material, packaging
material, packaging design or technology where direct comparison cannot
be made to an existing standard in subchapter C, provide an analysis
that:
(i) identifies each hazard associated with the proposed activity,
(ii) identifies each potential failure mode and the probability of
its occurrence, and
(iii) describe how the risk associated with each hazard and failure
mode is controlled for life of a packaging or duration of an activity
to a level comparable to that provided by the regulation and is
consistent with the public interest.
(b) Unless expedited processing under Sec. 107.115 or Sec. 107.117
is requested and granted, applications are processed in the order in
which they are filed. For timely consideration, an application should
be submitted at least 180 days before the requested effective date.
(c) To request confidential treatment for information contained in
the application, the applicant must comply with Sec. 107.5(a).
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
manufacture, mark, and sell exemption.
(b) Each application filed under this section must--
(1) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety, U.S. Department of Transportation,
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
(2) Identify by number the exemption application or exemption to
which the applicant seeks to become a party;
(3) State the name, address and telephone number of the applicant;
if the applicant is not an individual, state the name 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, and a statement that the applicant consents to personal
jurisdiction in the United States for purposes of the Federal hazardous
material transportation law related to the exemption.
(c) The Associate Administrator grants party status to an applicant
on finding that--
(1) The applicant is eligible to apply for the exemption;
(2) The application or exemption to which the applicant seeks to
become a party concerns a continuing matter; and
(3) Granting party status does not compromise information qualified
for confidential treatment under Sec. 107.5.
(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 must--
(1) Be submitted in duplicate to: Associate Administrator for
Hazardous Materials Safety, U.S. Department of Transportation,
Washington, DC 20590-0001. Attention: Exemptions, DHM-31;
(2) Identify by number the exemption for which renewal is
requested;
(3) State the name, address, and telephone number of the applicant;
if the applicant is not an individual, state the name 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 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
[[Page 47729]]
(5) Include a statement describing all relevant shipping and
accident experience of which the applicant is aware in connection with
the exemption since its issuance or most recent renewal. If aware of no
accidents, the applicant shall so certify. The statement must indicate
the approximate number of shipments made or packages shipped, as the
case may be, and the 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.
Sec. 107.113 Application processing.
(a) The Associate Administrator reviews an application to determine
if it is complete and conforms with the requirements of this subpart.
This determination usually is made within 30 days of receipt of an
application for exemption or modification of 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 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 expedited
processing under Sec. 107.115 or Sec. 107.117 is requested and granted,
applications are processed in the order in which they are filed.
(d) 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 is deemed incomplete and is denied.
(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 conditions that are appropriate
to protect health, safety or property.
(f) The Associate Administrator may grant the 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(s) 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 demonstrates the level of capability and
integrity required to conduct the activity authorized by the exemption.
A pending or completed enforcement action may be considered evidence of
insufficient competence or integrity.
(g) The 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 terminates.
(i) The Associate Administrator, on determining that an application
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 and party status grants, denials and
modifications and all applications withdrawn under this section.
Sec. 107.115 Priority processing.
(a) An application is granted priority processing if the Associate
Administrator, on the basis of the application and any inquiry
undertaken, finds that--
(1) If the applicant is a governmental body, priority processing is
in the public interest;
(2) If the applicant is not a governmental body:
(i) Priority processing is necessary to prevent significant
economic loss; and
(ii) The significant economic loss could not be prevented were the
application processed routinely.
(b) Where the risk of 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 priority processing if timely application could
have been made.
(c) A request for priority processing on the basis of potential
economic loss must reasonably describe and estimate the potential loss.
(d) An application given priority processing receives the same
level of substantive review as one processed routinely.
(e) A decision to deny priority processing may not be the subject
of a request for reconsideration under Sec. 107.123.
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 or priority basis; or
(2) Emergency processing is necessary to prevent significant
economic loss that could not be prevented if the application were
processed on a routine or priority 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 comply with
Sec. 107.105(a)(17) and include such supporting information specified
in Sec. 107.105(a)(2) through (a)(16) as the receiving Department of
Transportation official deems necessary to process the application. An
application on an
[[Page 47730]]
emergency basis must be submitted through the appropriate Department of
Transportation official, as follows:
(1) Certificate Holding Aircraft Operators: The Federal Aviation
Administration Civil Aviation Security Office that serves the place
where the flight(s) will originate or that is responsible for the
operators' overall aviation security program.
(2) Noncertificate Holding Aircraft Operators (Operators Operating
Under 14 CFR Part 91): The Federal Aviation Administration Civil
Aviation Security Office that serves the place where the flight(s) will
originate. The nearest Civil Aviation Security Office may be located by
calling the FAA Duty Officer, 202-863-5100 (any hour).
(3) Motor Carriers: Chief, Hazardous Materials Division, Office of
Motor Carrier Field Operations, Federal Highway Administration,
Department of Transportation, Washington, DC 20590-0001, 202-366-4415
(day); 202-267-2100 (night).
(4) Rail Carriers: Associate Administrator for Safety, Federal
Railroad Administration, Department of Transportation, Washington, DC
20590-0001, 202-366-9178 or 366-0488 (day); 202-267-2100 (night).
(5) Water Carriers: Chief, Hazardous Materials Standards Branch,
Operating and Environmental Standards Division, United States Coast
Guard, 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) An emergency exemption is to be limited in scope and duration
to that which is necessary to address the circumstances which
constitute the emergency.
(g) A determination that an emergency does not exist may not be the
subject of a request for reconsideration under Sec. 107.123.
(h) Within 90 days following issuance of an emergency exemption, a
notice of issuance, with a statement of the basis for the finding of
emergency and the scope and duration of the exemption, is published in
the Federal Register.
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 changed circumstances, the exemption or party status
would not be granted if application were made now;
(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 insufficient capability or integrity to conduct the
activity authorized by the exemption.
(c) 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
therefor, 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 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 to
the notice, 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. Modification, suspension or termination
shall be accompanied by a brief statement of grounds.
Sec. 107.123 Reconsideration.
(a) An applicant, a holder or a party may request that the
Associate Administrator reconsider a decision under Sec. 107.113(g),
Sec. 107.117(e) or Sec. 107.121(c). The request must--
(1) Be in writing and filed within 20 days of receipt of the
decision;
(2) State in detail all alleged errors of fact and law;
(3) Enclose all documentation in support of the request to
reconsider, with a justification for failure to provide the
documentation previously; and
(4) State in detail the modification of the final decision sought.
(b) 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, for a maximum of 90
days from the date of the holder's or party's receipt of the notice.
(c) The Associate Administrator considers newly submitted
information on a showing that the information could not reasonably have
been submitted during application processing.
(d) 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. 107.125 Appeal.
(a) A person who requested reconsideration under Sec. 107.123 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 all alleged errors of fact and law;
(3) Enclose all documentation in support of the appeal, with a
justification for failure to provide the documentation previously; 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 immediately effective pending a decision on appeal, for a
maximum of 90 days from the date of the holder's or party's receipt of
the decision.
(c) The Administrator considers newly submitted information on a
showing that the information could not reasonably have been submitted
during application processing or reconsideration.
(d) 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.
[[Page 47731]]
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, Dockets
Unit (DHM-30), U.S. Department of Transportation, 400 Seventh Street
SW., Washington, DC 20590 0001. 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.
5. In Sec. 107.202, paragraph (a), introductory text, would be
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]
6. In Sec. 107.202(b)(3), the wording ``49 U.S.C. 5125(b) or(c)''
would be revised to read ``49 U.S.C. 5125(c).''
Sec. 107.205 [Amended]
7. In Sec. 107.205, in paragraph (a), at the end of the first
sentence, the wording ``within 45 days'' would be removed.
8. In addition, in Sec. 107.205, paragraph (b) would be revised to
read as follows:
Sec. 107.205 Notice.
* * * * *
(b) The Associate Administrator may publish notice of an
application in the Federal Register and may notify in writing any
person readily identifiable as affected by the ruling.
* * * * *
9. In Sec. 107.209, paragraph (b) would be removed, paragraphs (c),
(d) and (e) would be redesignated as paragraphs (b), (c) and (d),
respectively, and newly designated paragraph (c) would be 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 may publish the determination or notice of the
determination in the Federal Register.
* * * * *
10. In Sec. 107.211, in paragraph (a), the second sentence would be
revised to read as follows:
Sec. 107.211 Petition for reconsideration.
(a) * * * The petition must be filed within 20 days of publication
of the determination in the Federal Register.
* * * * *
11. A new Sec. 107.213 would be 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 Administrator by filing a petition with the court within 60 days
after the Administrator's decision becomes final.
12. In Sec. 107.217, paragraph (d) would be revised to read as
follows:
Sec. 107.217 Notice.
* * * * *
(d) The Associate Administrator may notify any other persons who
may be affected by the ruling.
* * * * *
13. In Section 107.221, paragraph (a), (b), introductory text, (c)
through (e) would be 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 State or political subdivision or Indian tribe
requirement 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 State or political
subdivision or Indian tribe requirement unreasonably burdens commerce,
the Associate Administrator considers:
* * * * *
(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 may 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 or Indian tribe is preempted under the Federal
hazardous material transportation law or any regulation issued
thereunder, or whether preemption is waived.
14. In Sec. 107.223, paragraph (a) would be revised to read as
follows:
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 order
in the Federal Register.
* * * * *
Sec. 107.227 [Amended]
15. In Sec. 107.227, the wording ``Sec. 107.203(a) or'' would be
removed.
Sec. 107.299 [Removed]
16. Section 107.299 would be removed.
17. In Sec. 107.305, paragraph (b) would be revised to read as
follows:
Sec. 107.305 Investigations.
* * * * *
(b) Investigators. Investigations under 49 U.S.C. 5121(a) are
conducted by Hazardous Materials Safety 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 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
[[Page 47732]]
Administrator for Hazardous Materials Safety. An inspector may gather
information by reasonable means including, but not limited to,
interviews, statements, photocopying, photography, and video- and
audiorecording.
(3) On concurrence of the Director, Office of Hazardous Materials
Enforcement, 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 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).
* * * * *
18. In Sec. 107.331, the introductory paragraph and paragraph (d)
would be revised to read as follows:
Sec. 107.331 Assessment considerations.
After finding a knowing violation under this subpart, the Chief
Counsel assesses a civil penalty taking the following into account:
* * * * *
(d) The respondent's prior violations;
* * * * *
19. A new subpart H of part 107 would be added to read as follows:
Subpart H--Approvals, Registrations and Submissions
Sec. 107.701 Purpose and scope.
(a) 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 requirements of this subpart are in addition to any
requirements in this chapter applicable to a specific approval,
registration or report. If compliance with both a specific requirement
and a requirement 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 provisions of this subpart.
Sec. 107.705 Registration and reporting.
(a) Each registration or report under this section must be filed
with the Associate Administrator for Hazardous Materials Safety,
Research and Special Programs Administration, U.S. Department of
Transportation, 400 Seventh Street SW, Washington, DC 20590-0001,
Attention: Approvals, DHM-32, and contain, in order--
(1) A citation to the section and, if applicable, subsection of the
chapter under which the registration or report is made;
(2) If the report is required by an approval, a registration or an
exemption, a citation to the approval, registration or exemption
number;
(3) The name, address, and telephone number of the person on whose
behalf the registration or report is made and, if different, the person
making the registration or report;
(4) If the person on whose behalf the registration or report is
made is not a resident of the United States, a designation of agent for
service in accordance with Sec. 107.7; and
(5) A description of the activity for which the registration or
report is required.
(b) If the Associate Administrator determines that the registration
or report does not comply with applicable requirements, the
registration or reporting party shall make further submissions as the
Associate Administrator deems necessary for compliance.
(c) To request confidential treatment for information contained in
the registration or report, the applicant must comply with
Sec. 107.5(a).
Sec. 107.707 Applications.
(a) Each application under this section must be filed with the
Associate Administrator for Hazardous Materials Safety, Research and
Special Programs Administration, U.S. Department of Transportation, 400
Seventh Street SW., Washington, DC 20590-0001, Attention: Approvals,
DHM-32 and contain the following, in order--
(1) A citation to the section and, if applicable, subsection of the
chapter under which the approval is sought;
(2) If an application for renewal or modification, a citation to
the existing approval;
(3) The name, address, and telephone number of--
(i) The applicant;
(ii) If different, the person filing the application; and
(iii) For an applicant that is not an individual, an individual
designated as an agent of the applicant for all purposes related to the
application;
(4) If the applicant is not a resident of the United States, a
designation of agent for service in accordance with Sec. 107.7, and a
statement that the applicant consents to personal jurisdiction in the
United States for all purposes under the Federal hazardous material
transportation law related to the activity for which the approval is
required;
(5) A description of the activity for which the approval is
required; and
(6) A copy of each document from an entity other than the Office of
Hazardous Materials Safety required under the section cited at
Sec. 107.707(a)(1) as a prerequisite to the approval.
(b) Each application under this section must contain the following,
in order:
(1) The proposed duration of the approval;
(2) The transport mode or modes affected, as applicable;
(3) A full explanation, including all relevant information and
documentation, as to why the applicant qualifies for the approval under
applicable criteria, and why the approval otherwise is in accordance
with law;
(4) All relevant shipping and accident experience;
(5) Identify any increased risk to safety or property that may
result if the approval is granted, and specify the measures that the
applicant considers necessary or appropriate to address that risk; and
(6) Substantiate, 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.
(c) For those approvals with an expiration date, each application
for renewal or modification shall 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 applicant, on written request, shall be issued one or more written
extensions 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 must comply with Sec. 107.5(a).
Sec. 107.709 Application processing.
(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
[[Page 47733]]
applicant does not respond to a written request for additional
information within 30 days of the date the request was received, the
application will be deemed incomplete and denied.
(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 conditions appropriate to protect
health, safety and property.
(d) The Associate Administrator may deny the application if--
(1) The application does not comply with this subpart;
(2) The application contains inadequate justification, or otherwise
does not meet the criteria set forth in the section or subsection under
which the approval is sought;
(3) The application contains a materially false or materially
misleading statement, or fails to state a material fact;
(4) The applicant does not demonstrate the qualifications set forth
in the applicable regulations; or
(5) The applicant does not demonstrate the level of capability and
integrity required to perform the activity for which the application is
filed. A pending or completed enforcement action may be considered
evidence of insufficient capability or integrity.
(e) Unless otherwise specified in this chapter or by the Associate
Administrator, an approval 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.
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 changed circumstances, the approval would not be
granted if application were made now;
(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
insufficient capability or integrity to conduct the activity for which
the approval is required.
(c) 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) The Associate Administrator, if necessary to avoid a measurable
risk of significant harm to persons or property, may in the
notification declare the proposed action immediately effective, for a
maximum of 90 days from the date of the holder's receipt of the notice.
(3) After considering the holder's written response to the notice,
or after 30 days have passed without response from receipt of the
notice, the Associate Administrator notifies the holder in writing of
the final decision. Modification, suspension or termination shall be
accompanied by a brief statement of grounds.
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 all alleged errors of fact and law;
(3) Enclose all documentation in support of the request to
reconsider, with a justification for failure to provide the
documentation previously; 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 all alleged errors of fact and law;
(3) Enclose all documentation in support of the appeal, with a
justification for failure to provide the documentation previously; 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, for a maximum of 90 days
from the date of the holder's receipt of the decision.
(c) The Administrator considers newly submitted information on a
showing that the information could not reasonably have been submitted
during application processing or reconsideration.
(d) 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
20. The authority citation for part 171 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
Sec. 171.1 [Amended]
21. In Sec. 171.1, in the introductory text of paragraph (a), the
wording ``in commerce'' would be added immediately following the
wording ``materials'' and preceding ``by''.
22. Also in Sec. 171.1, a new paragraph (d) would be added to read
as follows:
Sec. 171.1 Purpose and scope.
* * * * *
(d) The use of terms and symbols prescribed in this subchapter for
the stamping, marking, labeling, placarding and description of
hazardous materials and packagings used in their transport.
23. In Sec. 171.2, paragraphs (a), (b), (c) and (d) would be
revised and a new paragraph (h) would be added to read as follows:
[[Page 47734]]
Sec. 171.2 General requirements.
(a) No person may offer or accept a hazardous material for
transportation in commerce unless that person complies with subpart G
of part 107 of this chapter, as applicable, and the hazardous material
is properly classed, described, packaged, marked, labeled, and in
condition for shipment as required or authorized by applicable
requirements of this subchapter and of any exemption, approval or
registration issued under subchapter A.
(b) No person may transport a hazardous material in commerce unless
that person complies with subpart G of part 107 of this chapter, and
the hazardous material is handled and transported in accordance with
applicable requirements of this subchapter and of any exemption,
approval or registration issued under subchapter A.
(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 subchapter A,
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 and of any exemption,
approval or registration issued under subchapter A.
(d) The representations, markings, and certifications subject to
the prohibitions of paragraph (c) of this section include:
(1) Specification identifications that include the letters ``DOT''
or ``UN'';
(2) Exemption, approval, and registration numbers that include the
letters ``DOT''; 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 subchapter A.
* * * * *
(h) No person shall--
(1) Falsify or alter an exemption, approval, registration or other
grant of authority issued under this subchapter or subchapter B 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 B of this chapter.
Sec. 171.3 [Amended]
24. In Sec. 171.3, paragraph (c) and the Note would be removed, and
paragraph (d) would be redesignated as paragraph (c).
25. In Sec. 171.8, a definition of ``Approval'' would be added and
the definition of ``Person'' would be revised to read as follows:
Sec. 171.8 Definitions and abbreviations.
* * * * *
Approval means a written authorization from the Associate
Administrator for Hazardous Materials Safety to perform a function for
which prior authorization by the Associate Administrator is required
under Subchapter C.
* * * * *
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 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND
TRAINING REQUIREMENTS
26. The authority citation for Part 172 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
27. In Sec. 172.302, paragraph (c) would be revised to read as
follows:
Sec. 172.302 General marking requirements for bulk packagings.
* * * * *
(c) Exemption packagings. The outside of each bulk package used
under the terms of an exemption shall be plainly and durably marked
``DOT-E'' followed by the exemption number assigned, in letters at
least two inches high on a contrasting background.
* * * * *
PART 173--SHIPPERS--GENERAL REQUIREMENTS FOR SHIPMENTS AND
PACKAGINGS
28. The authority citation for part 173 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
29. In Sec. 173.22a, a new paragraph (c) would be added to read as
follows:
Sec. 173.22a Use of packagings authorized under exemptions.
* * * * *
(c) When an exemption issued to a shipper contains special carrier
requirements, the shipper shall furnish a copy of the exemption to the
carrier before or at the time a shipment is tendered.
PART 178--SPECIFICATIONS FOR PACKAGINGS
30. The authority citation for Part 178 would continue to read as
follows:
Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.
31. In Sec. 178.3, a new paragraph (d) would be 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 September 8, 1995, under authority
delegated in 49 CFR part 106.
Alan I. Roberts,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 95-22816 Filed 9-13-95; 8:45 am]
BILLING CODE 4910-60-P
