Exemption, Approval, Registration and Reporting Procedures; Miscellaneous Provisions

Federal RegisterSep 14, 1995

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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,

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

* * * * *

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:

* * * * *

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.

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.

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.

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.

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.

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.

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.

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.

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.

* * * * *

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.

* * * * *

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.